Tsui Tim Sang and Another v. The Building Authority and Another
Read the full judgment text of HCMP 765/1990 on BabelCite. This High Court CFI judgment was delivered on 18 December 1990.
1. With the agreement of all parties all these applications for Judicial Review were heard together. The relief being sought is similar and the background situation has a number of common elements.
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HCMP000765/1990 1990 No. MP765 IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANEOUS PROCEEDINGS ______________
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______________ Coram: The Hon. Mr. Justice Mayo in Court Date of Hearing: 4, 5, 6 & 7 December 1990 Date of Delivery of Judgment: 18 December 1990 __________ JUDGMENT _____________ 1. With the agreement of all parties all these applications for Judicial Review were heard together. The relief being sought is similar and the background situation has a number of common elements. 2. It is, however, necessary to divide these applications into 3 groups. The reason for this is that the various appeals against the first Demolition Orders which will be referred to later proceeded at a different rate and consequently different considerations have to be borne in mind having regard to the grounds advanced in support of these applications. 3. The first group comprises cases where there had been an oral hearing of the first appeal and arguably a decision had been reached by the 2nd Respondent on it. The applications coming within this group are MP765 and MP766. 4. The second group consists of cases where appeals against the said first Demolition Orders were still outstanding when the second Demolition Orders were served on them which were stated by the 1st Respondent to supercede the first Demolition Order. 5. Applications coming within this group include MP767, 768 and 769. 6. The third group consists of cases where no appeal was outstanding against the first Demolition Order and Mr. Woo, for all the Applicants rightly conceded that applications in this group were much weaker. At the end of the day if I understood the position correctly, the only justification for proceeding with these applications was that if relief was going to be given on applications in groups l and 2, it was reasonable to also grant similar relief to the remaining applications. This group comprises MP770, 771 and 772. 7. All of the Applicants are owners of flats on the top floors of blocks of flats in Taikoo Shiny which is a major residential complex. 8. In addition to the interest the Applicants have in their flats, they also have rights to use the roof tops above their flats. 9. It is the contention of the 1st Respondent that the Applicants have erected structures on the roof tops which contravene building regulations and various Demolition Orders have been issued requiring the Applicants to demolish the structures. 10. The Applicants make various complaints concerning the manner in which the 1st Respondent have proceeded against them and the way the 2nd Respondent has conducted itself. 11. As there has been controversy in the hearing before me concerning both the relief sought and the grounds of the applications, I consider it to be necessary to set out in full all of this which is essentially in a common form in all the applications. 12. The Applicants are dissatisfied with the 2nd Respondent's Decision to dismiss their appeals against Demolition Orders issued by the 1st Respondent which was contained in a letter dated 15th December 1989. This letter reads:-
13. The Relief sought by the Applicants is:-
The amended grounds upon which the Relief is sought are:-
14. These amended grounds, however, were not the same as the amendments originally sought by the Applicants. When the application for leave to amend was made to Mr. Justice Jones, it was proposed that ground A5 should read as follows:-
15. While the Appeal was successful in part it is clear from the duly perfected order mane by the Court of Appeal on the 27th November 1990 that the Court of Appeal would not permit the grounds to be amended so as to enable issue estoppel to be pleaded. In hearing these applications, I have declined to allow Mr. Patrick Woo to argue that there had been such estoppel although it will be noted later in this judgment that in effect Mr. Woo has attempted to argue precisely this in a roundabout way. 16. Another difficulty which was encountered in this matter related to the Relief which is sought. It will be noted from a perusal of the said Relief that it is all directed against the 2nd Respondent. It was, however, obvious from the submissions made by Mr. Woo that the main thrust of the complaints he was making was directed against the 1st Respondent. Mr. Andrews for the 1st Respondent complained that he found himself in an embarrassing position in such a situation. While I have considerable sympathy for the dilemma he found himself in, I considered that it was only realistic to allow the applications to proceed on the basis that roles were being assumed by both the 1st and 2nd Respondents and that I should attempt to consider the matter at large rather than adopting too pedantic an approach. 17. I will now attempt to give a brief outline of the most important facts that have a bearing on the applications which are extracted from the affidavits lodged in their support. I would mention here that one of the difficulties which was encountered was the proliferation of files containing the supporting documentation. A lot of time was wasted tracking down the different references in the various files. The presentation of the material could have been very much improved. 18. The Taikoo Shing Estate was developed from the mid 1970s to the mid 1980s. 19. As I have already said it is alleged that various structures were installed on the roof tops of the blocks. Some of these were constructed by the Applicants themselves and some by their predecessors in title. I do not consider that any difficulty arises out of this distinction. 20. What is clear, however, is that no applications were made by anyone for any approvals or consents to the construction of any of the erections. I have no doubt whatever that in the majority of the cases it would have been obvious to the persons erecting the structures that they constituted non-compliance with the terms of the Deed of Mutual Covenant which they were bound by and also that they were a violation of the requirements of the Building Ordinance Cap. 123. 21. On 30th December 1985, the 1st Respondent issued Demolition Orders which took this form.
22. At this point it may be helpful to consider the procedure which is laid down for providing machinery for appeals against orders made pursuant to S. 24(1) of C. 123. This is contained in the first schedule to the Ordinance which is as follows:- " FIRST SCHEDULE Procedure of Appeal Tribunal
23. All of the Applicants responded in a fairly similar manner. In this connection, it is pertinent to observe that there is a Residents Association for top floor flat owners and it is evident that all of the Applicants have been assisting each other and attempting to formulate a common policy in meeting the problems they were encountering. I make no criticism of this. 24. They also attempted to enter into negotiations with the 1st Respondent so as to thrash out an Agreement as to what type of structures would be acceptable and what would not. 25. These discussions were of an ongoing nature and some attempts were made to embrace the reasoning propounded by the Decisions which were beginning to emerge from the 2nd Respondent. 26. It appeared that the main factors which determined whether the structures would be acceptable were their size in relation to the overall area on the roof and whether they could be used for domestic purposes or were capable of adaptation to such a purpose. 27. I was shown the minutes of a meeting attended by members of the Association and a representative of the 1st Respondent when such matters were discussed. These were dated 10th June 1987. 28. What is clear, however, from these minutes and from further correspondence which was exchanged between the Association and the 1st Respondent is that no Agreement was ever concluded on this subject. During the course of the hearing before me, Mr. Woo acknowledged that this was so and applied to amend Ground 2(c) by deleting it. 29. The Applicants' response to the Demolition Order in MP765 was in these terms:-
30. In accordance with the procedure above described the 1st Respondent wrote to the Applicants as follows:- "I refer to your letter of 1 January 1986.
31. At this time, a number of other appeals were outstanding in relation to other alleged contraventions of the Building Ordinance concerning structures on the roof tops of other blocks in Taikoo Shing. 32. I was taken through the record of 2 such appeals at some length and it would appear that there was a considerable amount of controversy over both the way in which the 1st Respondent should exercise discretions reposed in it and the attitude which should be adopted towards the different types structures which had been erected on the roof tops. 33. The members of the Tribunal were supplied with an Appeal file which contained plans and photographs of the structures together with the notes taken by the officer in the Building Authority who inspected the roof top when ascertaining whether in his opinion contraventions had occurred. 34. The bundle also contained the objections which had been lodged by the Applicants. 35. It is evident that initially it was the policy of the 2nd Respondent to hold open meetings when representations could be made by Appellants. 36. The letter to the Applicants informing them of the appeal was in these terms:-
Several appeals were heard on 17th March 1988. A sensible practice appears to have been adopted of inviting Appellants to agree whatever documents could be agreed so as to save time and expense. 37. It would appear from the record of one of the other appeals relating to a Mr. Wong that when he was invited to agree the documents he declined to do so on the ground that there was already an Agreement in existence. He appears to have been referring to the Agreement I have already referred to which Mr. Woo accepted had never been consummated. 38. The President of the Tribunal Mr. Ernest Lim then decided to adjourn the proceedings so that he could see what it was all about. 39. The Association, without advising the 1st Respondent furnished the 2nd Respondent with copies of the correspondence and other material which they had on the negotiations and discussions which they had been having with the 1st Respondent. 40. The 2nd Respondent never reconvened Mr. Wong's appeal but simply issued a letter as follows:-
41. The 2nd Respondent also adjourned other appeals and did not reconvene them. So far as the first group of Applicants are concerned, they received a letter from the 2nd Respondent in slightly different terms to Mr. Wong.
42. Mr. Andrews was highly critical of the approach which had been adopted by the 2nd Respondent. He argued that there was an overwhelming inference that the 2nd Respondent had acted upon the materials which had been furnished by the Association and that the Decisions which had been reached had been determined without the 1st Respondent having any opportunity to make representations or to point out to the 2nd Respondent that they were proceeding under a false premise if they concluded that any Agreement had in fact been reached between the Association and the 1st Respondent. 43. There was a further problem. It was by no means certain that the Rulings or Decisions contained in the two letters I have just referred to were in fact final determinations of the appeals lying before the 2nd Respondent. Indeed, it appeared likely that reference was being made to a preliminary issue in both cases. I say this because this is specifically referred to in the letter sent to Mr. Wong and as the facts in both appeals were similar, it is likely that this was also the case in the other appeals which were adjourned for apparently the same reason, namely to afford the 2nd Respondent an opportunity to consider the nature of any previous Agreement which may have been reached between the parties. 44. Mr. Woo argued that if the 1st Respondent was dissatisfied with the 2nd Respondent's determination of the matter, the correct course for them to adopt was for them to seek to judicially review the 2nd Respondent's decisions. 45. This, of course, brings us back to what appears to me to be one of the central issues in these cases, namely whether the 1st Respondent was entitled to abandon the proceedings relating to the Demolition Orders it had issued and begin again by issuing further Demolition Orders. Mr. Woo attempted to circumvent the restriction imposed upon him of not being able to plead issue estoppel by arguing that although the 1st Respondent may have been entitled at law to proceed in the way they did, having regard to all of the circumstances of the case, it was unfair of them to have done so. 46. His argument, so far as the first group was concerned, was that the 2nd Respondent had exercised a quasi judicial function and that it should address its mind to the way the discretion had been exercised by the 1st Respondent on issuing subsequent orders. 47. The simple answer to this complaint is that it is clear from the papers which were before the second Appeal Tribunal that the previous history of the matter was before the 2nd Respondent. Indeed, it was evident from the objections made by the Applicants to the second Demolition Order that they were making complaint that the issue had already been determined and that they objected to it being ventilated on a second occasion. 48. Associated with this complaint is the objection which is made to the 2nd Respondent's decision to proceed with the hearings on the papers rather than affording the Applicants an opportunity of making oral representations at the hearing. 49. Earlier in this judgment, I have cited an extract of the first schedule to Ch. 123 from which it is clear that the 2nd Respondent have an unfettered discretion to proceed either on the papers or after a hearing when the parties could be heard. 50. Mr. Woo based his submissions on this on what he described as being the legitimate expectations of Applicants, particularly in Group 2. 51. On the facts which were before me. I do not see how it could possibly be argued that any promise or representation was made to any of the Applicants. At the most an indication was given to them on the appeal against the first Demolition Order that a hearing would be fixed. No promise was made to this effect and certainly nothing was said or done which could in my view amount to giving rise to a legitimate expectation on the part of any of these Applicants. 52. The other main objection made by Mr. Woo is the inadequacy of the reasons given by the 2nd Respondent for the Decision they reached. In this connection, it is necessary to bear in mind the amount of material which was in existence and the overriding circumstances of the various appeals. 53. All of these Applicants were fully aware of the objections which were being made by the 1st Respondent. They all accepted that they had not presented plans and obtained the requisite approvals from the 1st Respondent. They also knew from the discussions which had taken place between the Association and the 1st Respondent, the sort of factors which would be weighed in determining whether any particular structures would be permitted. I do not think that it can be reasonably contended that insufficient reasons were given for the Decisions which were reached if they are considered in the context of the overall situation. 54. Mr. Woo referred me to a number of authorities during the course of his submissions tome. I am convinced that these references are only helpful if it is borne in mind that the 1st and 2nd Respondents were exercising statutory functions and that there are accordingly limitations imposed upon the extent to which any decisions they may make may legitimately be the subject of judicial review. 55. The law on this is conveniently encapsulated in the speech of Lord Scarman in R. v. IRC, Ex parte Preston 1985 1 AC 835 at p.851:-
I have no doubt whatever that on the facts as I have briefly summarised them the conduct of the 1st and 2nd Respondent's falls far short of the type of behaviour which would justify a court in interfering with the manner they have exercised their powers. It does not begin to approach the type of situations Lord Scarman was referring to in Ex parte Preston. 56. I also received some assistance from the judgment of Kempster J.A. in Ho King Kwan v: A.G. 1986 HKLR 1148 which was a similar case to the present ones. Mr. Justice Kempster made it clear in his judgment that it would impose an intolerable burden on the Authority's discharge of its statutory duties if restrictions were to be made upon the circumstances when Demolition Orders could be made. 57. For the reasons I have given, I am satisfied that all of these applications for judicial review must fail and I dismiss then accordingly. 58. I will hear the parties on costs and on what orders should be made concerning the 8 further applications which are still outstanding.
Representation: Mr. Patrick Woo (Robert Lee & Fong) for Applicants. Mr. Robert Andrews (Attorney General's Chambers) for 1st Respondent. Mr. Patrick O'Sullivan (Attorney General's Chamber) for 2nd Respondent. |