Multi-strategic Investments Ltd v. Attorney General

HCMP000819/1983

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

Coram: Hon. Mantell J.

Date of Hearing: 9th and 10th April, 1984.

Date of Delivery of Judgment: 11th April, 1984.

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JUDGMENT

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1. There is a plot of land to the north east of Mount Davis Road. At one time it was the site of a two storey house. On 15th December 1979 it was assigned to the plaintiff company which pulled down the house and proposed to replace it with a block of flats thirty-seven storeys high. The proposal was turned down by the Building Authority. They said that the proposed building was too high in relation to the thirteen storey block on the adjoining site. The next application was less ambitious but also was refused for the same reason. Then followed successively two further submissions to the Building Authority for approval for fourteen and thirteen storey blocks. Both were rejected. I am only concerned with the last and the reason given in the Building Authority's letter of refusal dated 26th November 1982:

"As the site does not abut a street, I determine under Building (Planning) Regulation 19 that the redevelopment be restricted to what previously existed on the site."

Regulation 19 of the Building (Planning) Regulations provides:

"Where a site abuts on a street less than 4.5 m wide or does not abut on a street, the height of a building on that site or of that building, the site coverage for the building and any part thereof and the plot ratio for the building shall be determined by the Building Authority."

So, if the site does not abut on a street at least 4.5 m wide, there is no doubt that questions of building height, site coverage and plot ratio are for the Building Authority to determine. On the other hand, if the site does abut on a street of 4.5 m or more, it is, in the first place, a class A site; it is not caught by Regulation 19; questions of height, site coverage and plot ratio are to be decided by reference to different regulations and it is common ground that under those regulations the plaintiffs proposals fall within permitted limits. In that case, the Building Authority would not have any discretion under Regulation 19 so far as those matters are concerned and it would not be necessary to challenge the present determination which, without explanation, I feel compelled to say, seems quite extraordinary.

2. Mount Davis Road follows the lower slope of Mount Davis round from Pokfulam to Victoria Road. It drops all the way. To the north and east of the road the land rises. To the south and west it falls. The site, therefore, is on the higher ground. Where the road has been cut out of the hillside has resulted in a somewhat steeper slope than was previously produced by the natural contours of the land, or so it appeared to me and seems to be accepted by both counsel. I can only describe this north eastern boundary to Mount Davis Road as an embankment. There is a side road leading to the property which in the past and for the time being provides access for vehicles and pedestrians under Crown licence. The access road remains Crown Land. The only point at which it touches the plaintiff's property is at the point where it meets the plaintiff's driveway. Three quarters of the way up the embankment to which I have referred is the boundary of the plaintiff's property. Along its length the boundary is on average about 8 feet above the level of the roadway and between 8 and 10 feet back from the metalled part of Mount Davis Road. All this can be seen much better than described from the plans and sections, the scale model which I have seen, and best of all from a visit to the site. It is agreed that both Mount Davis Road and the access road are streets within the meaning of Regulation 19. No one disputes that the width of the metalled part of Mount Davis road is 4.5 m or more. The width of the access road is in issue.

3. The plaintiff contends:

(1)	that the highway of Mount Davis Road extends up to the boundary of its property so as to form a common boundary between the two and so that the latter does indeed abut on the former however literal or restricted a meaning is given to the words "abut on",
(2)	that although there is a portion of Crown Land, namely most of the embankment, between its property and the metalled part of Mount Davis Road and that in no place does the metalled highway and the plaintiff's property meet, nevertheless, on a true construction of the regulation and on the authority of the Mightystream case that is not to say that the one does not "abut"the other.

I have taken the liberty or reversing the plaintiff's first two contentions as it seems to me, with respect, that as I have put them the second is the subsidiary one.

4. The plaintiff further submits:

(3)	that the access road is a street of not less than 4.5 m in width and that the property abuts on it at the point where the road meets the site.

Declarations are sought to give effect to those contentions.

5. As to the first proposition, it is said by the Crown that the embankment cannot properly be regarded as part of the highway so that at no point does the property and the highway have a common boundary. As to the second, it is said that "abut on" means "contiguous with" and that to fall outside Regulation 19 the highway and the property must have a common boundary at some point which Mr. Strawbridge argues is prevented at all points by the presence of the embankment. With regard to the third contention, it is said that in the context of these regulations "abut on a street" can only mean "abut on the side of a street" and the point at which a street meets a site is not to be taken as a point of abutment. In any event it is said that the access road is not 4.5 m wide.

6. In Attorney General v. Mightystream Limited,⁽¹⁾ the learned trial judge said that in any particular case it was a matter of fact and degree as to whether a site could be said to abut on a street. This is how it was put:

"In any case, it must be a question of fact depending on the facts and application of any rules which may have been laid down in the cases 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 commonsense way bearing in mind that it is for the authority seeking to restrict the owner's use 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."

On the facts of that particular case, the trial judge held as a matter of fact and degree that the presence of a nullah between the site and the street did prevent there being any abutment of the two. That test was approved by the Court of Appeal; it was not disapproved by the Privy Council. As was said in the speech of Lord Wilberforce giving the decision of the Privy Council:

"The learned trial judge inspected the location and formed the view that the nullah was a very substantial natural feature separating the site from Borrett Road, that it must be a matter of fact and degree whether in such a case the site could, nevertheless, be said to abut on the road, and that in this case it did not. The Court of Appeal did not consider it justifiable to disagree with the judge's findings.

The respondent invited their Lordships to disagree with the decision of the trial judge and to hold that the site does abut on Borrett Road, but their Lordships do not consider that they would be justified in reversing what is in effect a finding based upon observation and local knowledge which appears to be a reasonable conclusion on the facts."

The question arises as to whether the test of fact and degree was being applied to fix the boundary of the street or highway or whether its application suggests that there need not be contiguity or a common boundary for there to be abutment. If the latter, and had I felt able to apply it, having seen the site I would have had no hesitation in finding that as a matter of fact and degree the site does abut on the metalled roadway. But I am constrained to give the words "abut on" their more literal and restricted meaning as a result of the way they were construed by the Privy Council in the context of the same regulations in the Aik San Realty case.⁽²⁾   In that case, the question was whether a 15 inch strip of land in separate ownership prevented that part of the boundary of the site which lay behind from fronting the street on the other side. It was not a Regulation 19 case, but in coming to its conclusion, the Privy Council distinguished between "abuts" and "fronts", and also, suggested that reference to other cases decided under different legislation or rules were not particularly helpful in construing words as used in these regulations. Lord Diplock in giving the decision of the Committee put it in this way:

"It may 'abut' the street i.e. be contiguous with the boundary of the street at street level; it may 'front' the street i.e. be set back from the street without being contiguous with its boundary."

In my judgment, I am bound by that construction so if it be the case that the embankment is not part of the highway, the plaintiff must fail in both its first and second contentions. But whereas "abut on" or "abut" have been given a restricted meaning, "street" and "highway" have not and if the test of fact and degree is relevant to fixing the boundary of a street or highway, it may be that having regard to the definition of street appearing in Section 2(1) of the Building Ordinance which provides that "street" includes the whole of any highway whether a thoroughfare or not, and to the decision in the Mightystream case, I am able to take a different view with regard to the fixing of the boundary of Mount Davis Road. In the Mightystream case, the whole of the highway was held to include kerb stones on either side for the purpose of calculating its width. Mayo J. in the Beaux Estates case ⁽³⁾ took a similar view of grass verges but in a decision which preceded that of the Privy Council he thought that for the purpose of determining width the fact that pedestrians could use the verges was an important consideration. For my part, I think it would be appropriate to employ the test of fact and degree both for the purpose of determining width and for the purpose of fixing the boundary of the highway. That is, if it be right that there are two, distinct questions. I am much influenced by the visual impression which I received on my visit to the site. But I also take into account the fact that the embankment separating the metalled portion of road from the plaintiff's land can have use and value only if transferred to the site, or if used for road widening (and in parenthesis I note that it is conceded by the Crown that such a plan for road widening does exist) or for planting a screen or decorative border. I also take account of my strong impression that the embankment as one sees it was formed at the time of the road being built. I would be entirely satisfied if the burden were on the plaintiff that the boundary of the highway and the site coincide. I am certainly not satisfied that they do not. I do not think that the embankment can properly be described as a verge but with the substitution of "embankment" for "verge" in 1(b) of the summons and also the inclusion of the words "for the purposes of Regulation 19", I am prepared to make declarations in terms of both paragraphs 1(a) and (b) of the summons. Strictly it is not necessary for the plaintiff's purposes to have any decision as to paragraph 1(c) of the summons but Mr. Strawbridge reminds me that my findings of fact in relation to the access road may be important hereafter.

That the access road is a street within Regulation 19 is conceded as it must be in the light of the decision in the Mightystream case. I am satisfied that the site "abuts on" the street for the purposes of Regulation 19. Mr. Strawbridge very persuasively says that in other places in the regulations the word "abut" has been used in a context which necessarily presupposes that the street runs alongside the site, for which proposition he produces a number of examples. Even so, it is not necessary to put any different meaning or construction on the word "abut" and the fact that different regulations deal with different situations does not help me with regard to Regulation 19. However, it is conceded that the access road is not 4.5 m wide unless one takes into account land which is outside the kerbs on both sides of the road. I felt on inspection that there is no difficulty on the Hount Davis side of the road but on the Mount Davis Road side the land falls away sharply and would certainly not pass Mr. Justice Mayo's test in the Beaux Estates case, not do I think it would pass a test based on "fact or degree". If the embankment below the access road is within the boundary of the main highway, it cannot be within the boundary of the access road also. If the plaintiff is to have his cake, he cannot also eat it.

(1) H.C.M.P. No. 536/81 unreported

(2) Aik San Realty Ltd. v. Attorney General - Privy Council Appeal 48/81

(3) Beaux Estate Ltd. v. Attorney General H.C. M.P. No. 1446/82 unreported

Representation:

Denis Chang,Q.C., K. Bokhary,Q.C. and A. Ismail instructed by Woo, Kwan, Lee & Lo for Plaintiff.

N. Strawbridge, Crown Counsel for Defendant.