Cho Hsun Co Ltd v. Attorney General
Read the full judgment text of HCMP 1910/1982 on BabelCite. This High Court CFI judgment.
1. We are concerned with the two parcels of land known as Nos. 33 and 35 Kin Wah Street. Both lots were the subject matter of a Deed of Assignment, in each case dated the 10th November 1981. The material part of the Assignment referred to by counsel is the reservation of the two rights of way: one in front facing south and measuring 36' in depth, the other in the rear being of 3'. These represent, so counsel argued, the only two limitations as to enjoyment of proprietary right to the land so ass
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HCMP001910/1982
IN THE HIGH COURT OF JUSTICE MISCELLANEOUS PROCEEDING
___________ BETWEEN
___________ Coram: Hon. Liu J. Date: 24th May, 1983. ___________ JUDGMENT ___________ 1. We are concerned with the two parcels of land known as Nos. 33 and 35 Kin Wah Street. Both lots were the subject matter of a Deed of Assignment, in each case dated the 10th November 1981. The material part of the Assignment referred to by counsel is the reservation of the two rights of way: one in front facing south and measuring 36' in depth, the other in the rear being of 3'. These represent, so counsel argued, the only two limitations as to enjoyment of proprietary right to the land so assigned. Hence, it was contended that user of the rest of these parcels was in no way restricted. 2. On the 23rd June 1952, building plans were submitted for approval. They are exhibit "CHR-1" referred to in the affidavit of Mr. Riley filed herein on the 3rd January 1983. What is at once apparent is that in addition to the three-foot right of way in the rear, there was a seven-foot set back together making an equal contribution to what was described on the 1952 plans as a twenty-foot motor lane. 3. There is no evidence as to precisely how the superstructures on Nos. 33 and 35 Kin Wah Street and those directly facing its northern rear boundary were regulated in construction. However, we have the aid of the survey plan exhibited to the said affidavit of Mr. Riley and therein marked "CHR-6", the first one of which bearing a serial number 5556/01, drawn on scale, shows the width of this space between Nos. 33 and 35 Kin Wah Street and the structures or buildings directly opposite their rear northern face as 6.5 meters. 4. Returning to the seven-foot set back, it was contended by Mr. Chan, counsel for the plaintiff, that the use to which this portion might be put was subject to no legal hindrance, nor under any legal restraint. The court has had no sight of the Block Crown Lease, but it was strongly urged by Mr. Chan that no curtailment of the free exercise of an owner's proprietary right should be recognised unless the contrary was shown by the person making such an assertion, that is to say, in these proceedings, the defendant. 5. On behalf of the Attorney General, Mr. Barlow was at plains to point out that the mere existence of the approval for the 1952 submissions and the issuance of the occupation permit in June 1953 would presuppose a requirement for building control by the authority and that the seven foot set back could not be used otherwise than as part of the twenty-foot motor lane. Reference was also made to the 1950 legislation and the aspect of dedication. 6. Mr. Riley, a member of the Buildings Ordinance Office in his said affidavit, fed us the information that the Building Authority is entitled as of right at any time to require the removal of the temporary structures to which I shall return in a moment or two. The duration for which these temporary structures have stood was also a matter in dispute. 7. It was disclosed that along both sides of this 6.5-meter space sandwiched between the two rows of buildings bounded in part on the southern side by the northern rear face of the building standing on the lots for Nos. 33 and 35 Kin Wah Street were, in a number of places, temporary structures erected for a period of as long as 30 years. But according to the opinion of Mr. Riley, these temporary structures would not be more than 20 years old. 8. It is quite unnecessary to resolve these conflicts between the parties to these proceedings because, whether or not the present user of these temporary structures is lawful, the ultimate questions to be asked must be: "Has it the effect of changing the structural characteristics or other essential features of this strip of land 6.5 meters wide?" and "Has it the effect of reducing its width?" 9. In passing, I should say a little more about this 6.5 meter-wide area running parallel to the rear of Nos. 33 and 35 Kin Wah Street. This strip is interspersed on both sides with temporary structures which from the rear of Nos. 33 and 35 Kin Wah Street extend 4 to 5 feet well into its centre. The encroachments of the temporary structures from the opposite side are of similar dimensions. The space apparently no longer admits motor traffic, but it still provides, so I was told, quite free pedestrian access. 10. The plaintiff, Cho Hsun Company Limited, as the current registered owner of these lots submitted proposed building plans to the Building Authority for approval in December 1981. To those submissions, the Building Authority raised some objections only two of which form the central issue in these proceedings, and they are:
11. Suffice it for me to say that at one time there was some misunderstanding as to the term "right of way" referred to by the Building Authority but that it is now reasonably clear that by the "rear right of way", it was meant by the Building Authority to include not only the reservation of the rear 3 foot right of way in the 1951 Deeds of Assignment for these lots but also the adjoining seven-foot set back as shown in the 1952 submissions for the erection of the present Nos. 33 and 35 Kin Wah Street. 12. It is common ground that the temporary structures are what they are and that the space under consideration has at all material times been in the state as we know it to-day. We have the affidavit evidence, the description in various documents as well as the assistance of the photographs. 13. An application for site inspection was declined. The application was made on instructions but was not strongly pressed as the survey plans, documented information and visual aid provided by the photographs were regarded as reliable and adequate. Moreover, we are concerned with temporary structures. That has, time and again, been conceded by the plaintiff. So long as they are admitted to be temporary structures, the size, shape, dimensions and the mode of their construction are not matters of any real significance. 14. But for these temporary structures the disputed space forms part of a street as statutorily defined. The definition of a street is given in section 2 of the Buildings Ordinance, which reads as follows:
A private street is earlier defined in the same section as meaning:
15. From there, I turn to regulation 16 of the Building (Planning) Regulations for yet a further definition of "street" which means under regulation 16(4) "a street or service lane at least 4.5 meters wide". Regulation 23(2)(a) stipulates that in determining for the purposes of regulation 20, 21 or 22 the area of the site on which a building is erected, no account shall be taken of any part of any street or service lane. Lastly, I need refer to regulation 23(1)(c) which imposes a similar limitation on the definition of a street, confining it to "a street that is less than 4.5 meters" which then "shall be deemed not to be a street". 16. We have been advised by the Judicial Committee in the Mightystream Limited case to pay no regard to the definition of "street" in the Interpretation and General Clauses Ordinance, Chapter 1. 17. I repeat the two questions I have posed, which, I think, would provide a solution to the issues debated in these proceedings: Have these temporary structures the effect of changing the structural characteristics or other essential features of the 6.5 meter-wide rear space? Have they the effect of reducing its width? Obviously, we are confined to the sites of Nos. 33 and 35 Kin Wah Street. 18. These are temporary structures. They have been erected, so I was told, and thereafter occupied since the 50's. But they have not attained or been accorded the status of permanency. Indeed, they were conceded to be just temporary structures. These temporary structures as described and depicted do not, in my view, introduce any modification or alteration to the structural or constructural features of the strip of land in question. In any sense, this 6.5-meter strip under consideration between the two rows of buildings is an alley, lane, footpath or passage within the meaning of "street" under the Buildings Ordinance and the Building (Planning) Regulations. These temporary structures have not, in my judgment, given to this unbuild upon portion any characteristic or feature inconsistent with that of a street as statutorily defined. Actual user, lawful or not, has not brought about any change to the nature of this elongated portion. These temporary structures can, therefore, at best be permanent obstruction which has clearly left the essential features of this 6.5-meter space unaffected. 19. The dispute between the plaintiff and the Building Authority in its 1981 submissions revolves around the definition of "street" under the Buildings Ordinance and the Building (Planning) Regulations. It is not necessary to go into the precise extent and scope of the controversy. It need merely be said that the true interpretation of "street" as applied to this space on the facts not disputed would determine the objections of the Building Authority to the plaintiff's 1981 submission. 20. In applying the definition of "street" as statutorily defined to the common facts in these proceedings, I have come to the conclusion that despite these temporary structures the seven-foot set back in 1952 together with the three-foot right of way in the rear of the plaintiff's lots for Nos. 33 and 35 Kin Wah Street form part of a street of more than 4.5 meters wide within the meaning of the Buildings Ordinance and the Building (Planning) Regulations and that the actual width of such "street" has in no way been diminished. The answers to the questions above posed are therefore both in the negative. Hence, I hold that the Building Authority's objection under section 16(1)(d) of the Buildings ordinance to the 1981 submissions of the plaintiff's on the two aspects I have expressly enumerated is valid. Consequently, it remains for me to dismiss the plaintiff's application with costs to the defendant.
Representation: Mr. Warren Chan instructed by Messrs. Deacons for the Plaintiff. Mr. Barlow of Legal Department for the Respondent. |