Ho King Kwan v. Attorney General

Case No.CACV 61/1986[1986] HKLR 1148

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACV000061/1986

1986 No. 61

(Civil)

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HEADNOTE

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Building Authority, order by - Whether subject to judicial review by courts - whether earlier communication gave rise to a legitimate expectation that no further action would be taken in relation to an unauthorised roof structure on the grounds of fire-hazard.

On 15th August 1979 the Building Authority certified to the applicant that works required by an earlier notice complaining of fire-hazard had been completed to its satisfaction. The works which had been required involved the removal of a roof structure. It had not been removed but had been modified. On 15th November 1984 the Authority served a further notice on the applicant again requiring the removal of the same structure on the same grounds. Negotiations followed to no avail. On 1st November 1985 a Closure Order was made in the District Court. Pursuant to leave application was made in the High Court to quash the order of 15th November 1984. On 29th April 1986 it was refused.

On appeal by the applicant:-

Held, dismissing the appeal, (1) that the terms of the communication of 15th August 1979 did not provide the applicant with the legitimate expectation that no further action on the grounds of fire-hazard would ever be taken so long as the structure remained unaltered.

(2) that any such expectation would imply an intolerable fetter on the Authority's discharge of its statutory duties.

The following cases are referred to in the judgments:

Birkdale District Electric Supply Co. Ltd. v Southport Corporation 1926 AC 353 In re Findlay 1985 AC 318

CCSU v Minister for Civil Service 1985 AC 374

IN THE COURT OF APPEAL

1986 No. 61

(Civil)

IN THE MATTER of an Application by HO KING KWAN for leave to apply for judicial Review

and

IN THE MATTER of the Building Authority's Order under Section 24(1) of the Buildings Ordinance

and

IN THE MATTER of the implementation of the said Order by the Building Authority

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BETWEEN

HO KING KWAN

Applicant (Appellant)

and

ATTORNEY GENERAL

Respondent

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Coram: Cons, V.P., Yang & Kempster JJ.A.

Date of Hearing: 1st-2nd July 1986

Date of Judgment: 2nd July 1986

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JUDGMENT

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Kempster, J.A.:

1. The history of events material to this appeal begins on 12th November 1976 when the applicant's father received a notice from the Building Authority requiring him, or the applicant, to demolish a structure which, as long ago as 1964, the father had erected on the roof of premises known as 185 Aberdeen Main Road. By 1976 the applicant was the lessee of the roof of such premises. The matter was not then pursued but on 25th January 1978 the applicant received a further notice requiring him to remove the structure by the 1st May following and on 8th March 1978 yet another, the material terms of which read:

"It has been brought to my attention that the additional storey created by the structures erected upon the roof contravene Building (Planning) Regulations 41(1) and 41(2) and Building (Construction) Regulations 5 and 7.

- In accordance with the powers vested in me under the provisions of Section 24(1) of the Buildings Ordinance, I hereby order you as owner(s) to remove the said additional structures erected on the roof and reinstate the building in accordance with the approved plans. You are required to commence work by 14th April 1978 and to complete it by 14th June 1978."

Negotiations between the applicant's father and representatives of the Authority followed. According to the father he agreed to move and did move, at his own expense, the kitchen and lavatory portions of the structure to a different part of the roof to allow for free access from the stairway in case of fire. On 15th August 1979 the applicant received a letter from the Authority purporting to acknowledge compliance with the requirements of the Notice dated 8th March 1978. Its terms are material:

"I refer to Notice No. 10100/78 which was served on you on 8th March 1978 in connection with unauthorised building works which had been carried out at the above premises. I note that the works required by the above-mentioned Notice have been completed and I am writing to confirm that the Notice has been complied with satisfactorily."

It is common ground that the roof structure had not in fact been removed. Save for the erection and removal of a plank, a matter not relied upon by the Authority, the state of the roof has remained unaltered since.

2. On 15th November 1984 the Authority returned to the charge serving the applicant with the following order pursuant to section 24(1) of the Ordinance:

"	It has been brought to my attention that building works carried out at the above address are in contravention of Section 14(l) of the Buildings Ordinance and Building (Planning) Regulation 41(1). 2. The said building works comprise structures erected on and over the roof and canopy over 5th Floor including a water closet; a structure erected within the staircase enclosure; the removal of parts of the staircase enclosure wall; the removal of the approved door opening onto the roof; an unauthorised door, which opens onto the roof; an unauthorised window in the staircase enclosure wall. 3. In accordance with the powers vested in me under the provisions of Section 24(l) of the Buildings Ordinance, I hereby order you as owner(s) -
	(a)	to demolish or to remove or to carry out such alteration of the building, building works, as may be necessary to cause the same to comply with the provisions of this Ordinance, or otherwise to put an end to the contraventions thereof;
	(b)	to reinstate that part of the building so affected by the said building works in accordance with plans approved by the Building Authority; and
	(c)	to commence the work described in sub paragraphs (a) and (b) of this paragraph within one month and complete such work within two months of the date of this Order, all to the satisfaction of the Building Authority."

Solicitors were instructed on behalf of the applicant and a protracted exchange of letters followed rehearsing the matters just outlined. Eventually, on 21st June 1985, a meeting took place at the Authority's Offices. It was abortive. After due notice application was made to Judge Roy on 1st November 1985 for a closure order Pursuant to section 27(1)(a) and such an order was made. The Judge had no option. The applicant sought leave to bring up the closure order for judicial review but his application was refused by Mayo J; the refusal being upheld by this Court on 7th February 1986.

3. Perhaps encouraged by something said by one of the Justices of Appeal the applicant again sought leave to apply for judicial review; this time of the notice and order of the Authority made on 15th November 1984. Leave was granted by Deputy High Court Judge O'Dea on 20th February 1986 but on 29th April 1986 Mayo J refused the substantive application and the second appeal to us followed. It falls for consideration within the context of the judicial control of executive action.

4. The Authority purported to act pursuant to section 24(1) on the footing that the structure had been erected in contravention of section 14(1) and of Regulation 41(1) of Building (Planning) Regulations. In layman's terms it was alleging that no approval had been obtained for its construction and that there was no appropriate means of escape to the roof in case of emergency.

5. The notice and order in question was made by the Authority in the exercise of its discretion and as such could have been made the subject of appeal by the applicant pursuant to section 44 of the Ordinance. However, he failed to take the steps provided for in the First Schedule within the 3 weeks allowed and that course is no longer open to him.

6. In an affirmation made on 24th March 1986 Mr. Cheng Wai Dart, a Government Building Surveyor, who, we were told, was acting on reports and not on the basis of personal knowledge, stated as follows: -

The explanation of the conduct of the Building Authority is

(i)		Although many roof-top structures may be dangerous it was not always possible prior to 1984 to enforce their demolition due to lack of resources;
(ii)		Total enforcement of a demolition order requires considerable resources because officers of the Building Authority and contractors may have to physically dismantle the structures and then design other works (such as drains and guttering) which may be necessary as a result of demolition;
(iii)		Due to lack of resources a stop-gap expedient was sometimes adopted whereby partial compliance with a demolition order was tolerated. In the present case, for example, the owner of the building himself made a clearing on the roof to facilitate escape in case of fire. It is obviously much less demanding of resources to accept partial compliance of this kind than to insist on full compliance;
(iv)		It must be remembered, however, that this structure is on the top of a single-staircase six-storey building. In my opinion the structure in its present form constitutes a fire-hazard in so far as it may impede escape across the roof. In the event of fire an occupant may not be able to escape or may face a higher than necessary risk of injury in trying to escape, as a result of the existence of the structure;
(v)		By 1984 we had acquired the man-power and resources to enforce full compliance with demolition orders and one was issued in this case in November 1984.

I considered this particular case in detail on its merits before approving the Order. I considered that if we did not insist on demolition of the structure we would be doing an injustice to other occupants of the building who would be put to unnecessary risk.

Mr. Cheng had not, it appears, been concerned with the fact that the structure lacked authorisation.

7. The Authority's approach has been criticised as inconsistent with its earlier expression of satisfaction and challenged as conflicting with the applicant's legitimate expectations which were, contends Mr. Bernacchi on his behalf, that the roof structure, as modified prior to 15th August 1979, should be allowed to remain in situ, unchallenged as a fire risk, indefinitely.

8. It cannot be maintained on the evidence that the Authority acted in bad faith or outrageously in the exercise of its statutory powers. No error of law is alleged. On the other hand it is arguable that the order qualifies as the subject matter of an application for judicial review at the instance of the applicant insofar as it involved a decision which deprived him of some benefit or advantage which he had in the past been permitted by the Authority to enjoy whether or not he could legitimately have expected this state of affairs to continue until there had been communicated to him some rational grounds for a changed approach and he had been afforded the opportunity to comment: In re Findlay ⁽¹⁾, per Lord Scarman; CCSU v Minister for Civil Service ⁽²⁾ per Lord Diplock. We cannot consider the decision to make an order itself, which would involved an appeal, but only the manner in which the decision to make an order was reached. As to this it must be accepted that the applicant was afforded every subsequent opportunity to express his views. To that extent he was treated fairly. Further, the Authority's concern for safety can hardly be stigmatised as irrational. Nonetheless, the critical question, albeit not relied on by Mr. Bernacchi, is whether the applicant could legitimately have expected to have been given prior information and opportunity for comment. I cannot, for my part, accept the submission that the applicant's legitimate expectation was that no further enforcement action would ever be taken against him on the basis of fire-hazard so long as there was no change in the nature or disposition of the roof structure; an expectation which would imply an intolerable fetter on the Authority's discharge of its statutory duties. Birkdale District Electric Supply Co. Ltd. v Southport Corporation ⁽³⁾.

9. The only representation made by the letter of 15th August 1979, as I construe it in the light of the history outlined and of the applicant's inescapable knowledge that it could not be taken at its face value, is that no further action would be taken by the Authority in relation to the roof structure pursuant to the Notice of 8th March 1978 or at all unless the applicant failed to comply with a further notice. That representation, which defines the limits of the applicant's legitimate expectation, has been honoured. Insofar as it is suggested that the Authority's internal policy directives constituted a representation to the world at large entitling the applicant to rely on them there is a crying lack of relevant evidence.

10. In dismissing the application Mayo J also relied upon delay. Although he referred to the terms of 0.53 r 4(1)(b) of the Rules of the Supreme Court he did not find that the grant of relief would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration. However, at least insofar as the applicant seeks an order of certiorari to quash the order of the Authority, he is fixed with undue delay by the terms of r 4(2) of Order 53 and has a heavy burden to discharge. Be that as it may I do not find it necessary to uphold the decision of the judge on grounds of delay.

11. For the reasons given I would dismiss this appeal.

Cons V.P.:

12. I agree with what my Lord has said and the conclusions to which he has come and I too would dismiss the appeal.

Yang J.A.:

13. I agree and have nothing that I can usefully add.

D. CONS V.P.

T.L. YANG J.A.

M. KEMPSTER J.A.

(1) 1985 AC 318 at p.338

(2) 1985 AC 374 at p. 408

(3) 1926 AC 353 at p.364

Representation:

B. Bernacchi Q.C., Patrick Woo (Authur Au & Co.) for Applicant/Appellant

John Burdett, Miss Adela Au (Crown Solicitors) for Respondent

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