Yeung Pui Yee v. The Building Authority

Case No.HCMP 930/1988

Court

High Court CFI

Date04 Oct 1988

Judge—

Case Document

100%Judiciary

HCMP000930/1988

IN THE HIGH COURT OF HONG KONG

1988, No. M.P. 930

HEADNOTE

The owner of a building applied for a judicial review of the action of the Building Authority in issuing a Practice Note to authorized persons under the Buildings Ordinance which she claimed misstated the law and made it impossible for her to obtain proper professional assistance in connection with proposed alterations to her (originally unauthorized) building.

HELD :

that if the Practice Note had stated the law incorrectly it would have been susceptible to review, but that in fact it did not do so; accordingly the application for a judicial review was dismissed.

1988, No. M.P. 930

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF CERTAIN ACTIONS OF THE BUILDING AUTHORITY IN RELATIONS TO THE PREMISES SITUATED ON THE ROOF OF PAK ON BUILDING 105 AUSTIN ROAD.

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BETWEEN

	YEUNG PUI YEE	Applicant

	AND

	THE BUILDING AUTHORITY	Respondent

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Coram: The Hon. Mr. Justice Godfrey in Court

Date of Hearing: 4 October 1988

Date of Delivery of Judgment: 4 October 1988

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JUDGMENT

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1. The Applicant for a judicial review in this case is one Yeung Pui Yee. The Respondent is the Building Authority constituted by the Buildings Ordinance, Cap. 123. The complaint of the Applicant relates to a "Practice Note for Authorized Persons and Registered Structural Engineers" issued by the Buildings Ordinance Office over the signature of the Building Authority.

2. Practice Notes such as this are issued by way of guidance by the Building Authority and are not statutory in character. The Practice Note to which I have referred was issued in July 1987 and revised in April 1988. It is the revision of April 1988 ("the April 1988 Practice Note") with which this application is concerned.

3. The April 1988 Practice Note is headed as follows:

"Unauthorized Alterations and Additions Buildings Ordinance section 14"

Its contents are in the following terms:

	"There may be occasions when a client will approach you regarding the submission of plans for building works which have already been completed. This Practice Note is intended to enable you to advise your clients on the course of action I would take when such plans are submitted.
	2. Section 14(1) of the Buildings Ordinance provides that no person shall commence or carry out any building works without having first obtained my approval and consent. In this connection, section 42(5) further provides that my powers of exemption are not applicable to section 14. It is therefore abundantly clear that I have no powers to give retrospective approval or consent in respect of building works which have alreasdy been commenced, carried out or completed. In the circumstances, applications for approval of any plan or consent for the commencement of building works for works which have been commenced, carried out or completed would not therefore be processed but would be returned to you with a note referring to the limitations of my powers as described herein.
	3. Should a client contemplate pursuing building works without first obtaining my approval and consent, the opportunity should be taken to bring the contents of this Practice Note to his attention. Your client should be firmly advised that the commencement or carrying out of any buildings works without having first obtained my approval and consent may result in prosecution proceedings being instituted under Part IV of the Buildings Ordinance and if found guilty, the offender could face a heavy fine or even a custodial sentence. Furthermore, an order may be served under section 24, or other relevant section, of the Buildings Ordinance requiring, inter alia, the demolition of such building works.
	This revised Practice Note replaces the one on the same subject issued in July 1987."

The awful warnings contained in the body of the April 1988 Practice Note appear to me, on its true construction, to apply to the commencement carrying out or completion of any building works, whether unauthorized alterations and additions or not. In that respect, therefore, it is perhaps unfortunate that the heading of the April 1988 Practice Note refers only to unauthorized alterations and additions. (I should further mention the directions to index it under "section 14 of the Buildings Ordinance: Unauthorized alterations and additions: " and for good measure "Unauthorized alterations and additions: Building Ordiance section 14.")

4. The history of the matter is long and complicated; but the crucial question raised on this application is simple enough. It is whether the Building Authority in the April 1988 Practice Note has set out the law correctly. If it has not, then it is accepted on behalf of the Building Authority that the action of the Building Authority in issusing it is susceptible to review. On the other hand, if it does not set out the law correctly, then the Applicant accepts that she is not entitled to succeed in the present application.

5. The point made by the Applicant is this: she says that on a fair reading of the April 1988 Practice Note the persons to whom it is addressed would read it in the following sense:

"If your proposal for alterations is concerned with a structure which has been erected in contravention of section 14(l) the Building Authority will not entertain your proposal at all."

It is accepted by the Building Authority that if that is indeed its meaning, or could reasonably be understood by the persons to whom it is addressed to be the correct meaning, then it is open to review.

6. From the point of view of the Applicant, her argument is that the persons to whom the circular is addressed, in particular authorized persons, do in fact read the 1988. Practice Note in this way. Accordingly, none of those she has approached are prepared to give her any assistance in the task on which she has embarked. The task on which she has embarked is that of getting the Building Authority to agree to certain alterations and additions to an existing building in Austin Road, being one for the original construction of which approval under section 14 was not originally obtained. She complains that in these circumstances, she is in effect stalemated by the action of the Building Authority.

7. I have read and re-read the April 1988 Practice Note. It seems to me that on no proper construction can it bear the meaning for which the Applicant contends. If the Applicant is right in believing that hers is the way in which authorized persons do in fact read it (she tendered no evidence from any such persons to that effect) then perhaps this judgment may serve to disbuse them of the misapprehensions under which they are labouring. As it seems to me, the April 1988 Practice Note is concerned only with the problem to which it in terms relates. There is no such implication or inference as the Applicant suggests is to be drawn from it. It has the effect of reminding authorized persons that no building works can be effected without first obtaining such approval and consent. Despite the heading, it seems to me irrelevant whether the building works are new building works or works of alteration and addition. To all such building works, section 14(1) of the Buildings Ordinance applies. The provisions of section 42 of the Buildings Ordinance (which relate to modification of requirements under the Buildings Ordinance) are not applicable to applications to dispense with the requirements of section 14 and authorized persons are reminded of this also.

8. When the Building Authority states, as it does:

"It is therefore abundantly clear that I have no powers to give retrospective approval or consent in respect of building works which have already been commenced, carried out or completed"

the Building Authority states the law correctly. It states it correctly both in respect of new building works and in respect of unauthorized alterations and additions to existing building works, whether those existing building works were themselves originally authorized under section 14 or not. When the Building Authority gives the following guidance to authorized persons:

"In the circumstances, applications for approval of any plan or consent for the commencement of building works, for works which have been commenced, carried out or completed will not therefore be processed; they will be returned to you with a note referring to the limitations in my power as described herein"

it does no more than state what the consequences will be of a failure by the authorized person to take any notice of the Ordinance or of the guidance about it which the April 1988 Practice Note is intended to give.

9. As I have said, the Court can interfere if, but only if, the April 1988 Practice Note states the law incorrectly. In my opinion, it does not state the law incorrectly. In particular, it does not have the effect which the Applicant claims to believe that it has. In these circumstances, I dismiss this application.

	(G. M. Godfrey)
	Judge of the High Court

Representation:

Mr. Barry Sceats instructed by Messrs. Howell & Co. for the Applicant.

Mr. D. Hinchen, Senior Crown Counsel of the Attorney-General's Chambers for the Respondent.