Mightystream Ltd v. Attorney General
Read the full judgment text of HCMP 586/1981 on BabelCite. This High Court CFI judgment.
1. By this originating summons the plaintiff company seeks a declaration as to the true construction of certain provisions of the Building (Planning) Regulations ("the Regulations") made by the Governor in Council under s.38 of the Building Ordinance (Cap. 123) ("the Ordinance"). A number of consequential declarations are also sought.
Cited by 1 case
|
HCMP000586/1981
IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS -----------------
----------------- Coram: Fuad, J. Date of Judgment: 8th October, 1981. ----------------- JUDGMENT ----------------- 1. By this originating summons the plaintiff company seeks a declaration as to the true construction of certain provisions of the Building (Planning) Regulations ("the Regulations") made by the Governor in Council under s.38 of the Building Ordinance (Cap. 123) ("the Ordinance"). A number of consequential declarations are also sought. 2. The plaintiff company is the registered owner of Inland Lot. No. 2232, 12 Bowen Road, by virtue of an assignment dated 9th July 1980 of a Crown lease granted in 1918. On the 28th April 1980, a Mr. Kevin MA Ching-ngor, an "authorized person" within the meaning of the Building Ordinance applied to the Building Authority on behalf of the plaintiff for the approval of plans to re-develop the site. It was proposed that a building comprising 24 storeys of domestic accommodation (over four storeys of car parks) would be built. The flats would be built to a high standard of a quality intended for the more affluent members of society. It is common ground that the proposed height would comply with regulation 16 of the Regulations and the site coverage and plot ratio would be within the permissible limits in respect of "Class A sites" under the Regulations. 3. The developers' hopes were dashed when they received a letter dated the 20th June 1980 by which the Authority informed them, inter alia, of its view, as follows:-
4. There is no controversy that under regulation 19, the Authority has power to determine the height of, and the site coverage and plot ratio for, the building if the site does not abut a street or if it abuts a street less than 4.5 m wide. If the Authority is right the building would have to be only about half its proposed height and the potential loss to the developers does not need to be stressed. 5. It is contended by Mr. Ogden, on behalf of the plaintiff company, that the Building Authority wrongly construed the Ordinance and the Regulations and that a true construction of the relevant provisions, when read together, renders the site one to which regulation 19 has no application and one which falls within the definition of the expression "class A site" in the Regulations. For the Crown, Mr. Kaplan supports the Authority's stand. 6. At the invitation of Counsel for the parties the Court visited the site during the hearing. We approached the site along Borrett Road from the North. At a certain point, where there are two trees, Borrett Road leads slightly to the left onto a bridge which connects it with the site. At the same point there is a road which continues slightly to the right which seems to lead only to a car port belonging to an occupant of another house on Bowen Road. It is not clear whether that part of the road is still named Borrett Road or not. The west side of the site is bounded by a "nullah" which the bridge crosses on its way to the site. 7. It would now be convenient to set out the relevant legislative provisions. In the interpretation section of the Ordinance, s.2, the following definition occurs:-
In Regulation 2 of the Regulations we find the following definitions:-
8. Mr. Ogden contends that since the bridge leading from Borrett Road to the site is a road-bridge, it is a "street" within the meaning of s.2 of the Ordinance. 9. As regards its width, while conceding that for nearly all of its length (approximately 22 m.) the bridge is less than 4.5 m wide measured between the paving stones at each side, he argues that the proper approach is to measure the overall width of the bridge because the definition of "street" in s.2 states that it "includes the whole or any part of any ............ road-bridge." In Mr. Ogden's submission, therefore, since the site abuts a street not less than 4.5 m wide, it is a class A site. 10. It was also contended on behalf of the plaintiff that the "nullah" at the edge of the site should be disregarded and the site in fact also abutted Borrett Road which, it was common ground, was more than 4.5 m wide throughout its relevant length. This was so in respect of the road which led from the two trees to the car port whether it could still properly be called Borrett Road or not. 11. As part of his argument in relation to the foot-bridge, Mr. Ogden submitted that the definitions of the word "street" in the Ordinance and the Regulations should be read together. Mr. Kaplan's case is that the governing definition of "street" is that contained in the Regulations. There can be no doubt that unless the contrary intention appears or can be inferred, words and expressions in subsidiary legislation bear the meaning attributed to them by the principal legislation under which they are made. This principle is enshrined in s.31 of the Interpretation and General Clauses Ordinance (Cap. 1). However it is quite common, where circumstances require, to assign a different meaning to a word in subsidiary legislation to that which it bears in the enabling statute and, of course, there can be no objection to this if the ultra vires rule is not infringed. 12. Mr. Ogden seeks some support for his contention from the general words with which regulation 2 of the Regulations begin -
This formula, Mr. Ogden suggests, has the effect of enlarging, and not derogating from the meaning given to the word "street" in the Ordinance. Mr. Kaplan counters by pointing out that since the word "footpath" occurs in the definitions of "street" in the Ordinance and the Regulations, this is some indication that the two definitions are to be separately construed for the purpose of the Ordinance and the Regulations. It is to be noted that "street" is the only word defined in the general interpretation clause of both the Ordinance and the Regulations, although it is given a special meaning for the purposes of regulation 16. 13. It is not usual for a draftsman to repeat (except ex abundanti cautela) a provision in legislation which is not necessary by virtue of a general interpretation statute. Certainly the draftsman here did so in the Regulations when he defined "Ordinance". This was unnecessary in view of the concluding words of s.31 of the Interpretation and General Clauses Ordinance. In my judgment the opening words of regulation 2 are not to be construed as requiring definitions of the same word occurring in the Ordinance and the Regulations to be read as one. I agree with Mr. Kaplan that the presence of the word "footpath" in both definitions is highly significant I reach the conclusion that it is the definition of "street" in the Regulations which is relevant to the determination of this summons. 14. It was no part of Mr. Ogden's case that the bridge was a street as ordinarily understood and it clearly not so. Nor is it rendered so by virtue of the extended meaning to "street" given by regulation 2 of the Regulations. In so far as the plaintiff company bases the reliefs sought by its summons on the existence of the bridge, I find in favour of the Crown. 15. I have now to consider whether Borrett Road can help the plaintiff company. For their contention to succeed, the court must be satisfied that the site abuts Borrett Road. Mr. Ogden asks me to hold that for a site to abut a street it does not have to touch the road itself and so for that purpose the existence of the "nullah" must be ignored. While recognizing that the cases he cited to me were not of any great value since the subject matter of the legislation construed in them had to be borne in mind in resolving their scope and objects so that the true intention of the legislature could be determined, Mr. Ogden drew my attention to Wakefield Local Board of Health v. Lee (1876) 1 Ex. 336. In that case a statute of 1848 empowered the Board to require owners or occupiers of premises "fronting, adjoining, or abutting" certain streets to carry out certain works. The premises of the respondents were separated from the relevant street by a narrow stream crossed by two bridges under their control. The Court by a majority held that the premises fronted and abutted the street. There was for practical purposes no division by intervening land and the premises could be said in popular language to abut upon the street, for the bridges, so far as appeared, were useful only to the respondents - they might also be said to front the lane. Cleasby, B. held that the most important word was "adjoining" and since the stream was very small the premises were not really separated from the street and might be said to adjoin it. All three judges emphasized that it was essentially a question of fact. 16. In Lightbound v. Higher Bebington Local Board (1885) 16 Q.B.D. 577 the Board sought from a resident his share of the expenses incurred for paving and making a street on the grounds that his plots of land with two cottages on it were premises "fronting, adjoining or abutting" the street. The plots of land were divided from the street by a wall 5 feet in height. A public footpath ran between the two plots and there was access to the street through an opening in the wall. It was only the backs of the cottages which faced the street and there was no access for vehicles from the cottages to the street except by way of a small roadway which led into one end of the street without touching the part of the street that had been paved. The Court of Appeal held that the resident was not the owner of premises "fronting, adjoining or abutting" on the street within the meaning of the relevant statute, and upheld the finding of the Q.B.D. against the Board. 17. It seems to me that in any given case it must be a question of fact, depending on the facts and the application of any rules which may have been laid down in the cases (slightly to paraphrase the words of Lord Esher, M.R. in Lightbound at p.580) whether a site abuts a street in the ordinary meaning of the word abut, in the absence of a definition. I think, too, that the court must approach the problem in a practical and common sense way, bearing in mind that it is for the authority seeking to restrict the owner's user of the land to satisfy the court that his contention cannot be right. Clearly every slight obstruction or intervention between a site and a street could not be said to prevent the former from abutting the latter. It will be a question of degree. 18. Here, as I observed from the view, there is a very substantial natural feature in the form of the "nullah" which lies between Borrett Road and the site throughout its length, even where the roadway continues (by whatever name) up to the car port belonging to the other house on Bowen Road. The "nullah" increases in width and depth as it runs down hill but it is far from something in the nature of a mere gulley which might perhaps properly be disregarded, if precise contiguity is not required. In my judgment it cannot successfully be maintained that despite the existence of the "nullah" (it was not measured for me, probably because its irregular features would make it most difficult to do so) the plaintiff company's site abuts in its entymological sense, any part of Borrett Road, or its continuation. I hold the view that in any fair use of language the site does not have a common boundary with a street, nor does it border or end upon a street. 19. I therefore reach the conclusion on the facts before me, applied to the relevant legislative provisions, that the Building Authority was right to object to the proposed plans and to make the appropriate determinations under regulation 19 of the Regulations. The plaintiff company is not therefore entitled to any of the reliefs sought, and the summons is dismissed with costs.
Representation: Michael Ogden, Q.C. & Kemal Bokhary (Woo, Kwan, Lee & Lo) for Plaintiff. Neil Kaplan, Senior Asst. Crown Solicitor & S.Y. Chan, C.C. for Defendant/Attorney General. |
Other judgments that cite this case