Sun Honest Development Ltd v. Appeal Tribunal (Buildings)

HCAL 45/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS

NO. 45 OF 2003

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Coram: Hon Chung J in Court

Date(s) of Hearing: 20 and 21 November 2003

Date of Handing Down Judgment: 26 July 2004

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J U D G M E N T

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Introduction

1.This is an application for judicial review against the determination of the Appeal Tribunal (Buildings) given in Appeal Tribunal (Buildings) Case No. 152-2001 on 26 February 2003. Leave to apply was given on 13 May 2003.

2.According to the Notice of Application for Leave to Apply for Judicial Review (Form 86A), the determination of the Appeal Tribunal (Buildings) ("the tribunal") was given pursuant to s. 50, Buildings Ordinance (Cap. 123). S. 44(1), Cap. 123 provides:-

"A person aggrieved by any decision made by the Building Authority in the exercise of a discretion conferred on him under this Ordinance may, except where this Ordinance provides otherwise, appeal from that decision in accordance with this Part ... ".

S. 47, Cap. 123 provides:-

"A person exercising the right of appeal conferred by section 44 shall give notice of appeal in the prescribed manner, appealing from the relevant decision, to the Secretary to the [tribunal] ... ".

S. 48(1), Cap. 123 provides:-

"Where a notice of appeal is given under section 47, the Chief Executive shall appoint, from the [tribunal] Panel, a tribunal consisting of a Chairman and not less than 2 members, for the purpose of hearing and determining the appeal to which the notice relates".

Finally, s. 50(2), Cap. 123 provides:-

"In determining an appeal, the [tribunal] may make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such order as it thinks fit".

Background Facts

3.Wang Fung Terrace is an inland lot (Inland Lot No. 3289) located just off Tai Hang Road, Hong Kong. Access (in particular vehicular access) to Wang Fung Terrace from Tai Hang Road is through a paved access road ("the said paved access road"). The applicant is the developer of No. 4 and 4A-4D, Wang Fung Terrace (No. 4 is erected on Section L, Inland Lot No. 3289 whereas No. 4A-4D is erected on the Remaining Portion) (collectively "the subject site").

4.A lane ("the said lane") separates the subject site from No. 2, Wang Fung Terrace ("No.2"). The said lane is half owned by the owners of No. 2 and half owned by the owner of the subject site (at least for the purpose of this application, the last-mentioned owner is the applicant). The portion of the said lane owned by applicant is called "gridline 1" in the Form 86A.

5.There is no express right of way over the said lane. According to the Form 86A, the said lane now provides the only access to No. 3, Wang Fung Terrace ("No. 3"). Access of No. 2, No. 3 and the subject site to Tai Hang Road is through the said lane which then leads on to the said paved access road (see also para. 3 above).

6.On 27 August 2001, the applicant applied for the approval of building plans to erect a 40-storey residential building at the subject site. The area of gridline 1 has been included in the calculation of the site area. The applicant notes in the Form 86A that, in 1979, the owner of No. 2 included half of the area of the said lane in the calculation of the gross site area when it applied for the approval of building plans. Those plans were approved by the Building Authority.

7.The subject site (in fact, the whole of Wang Fung Terrace) has been zoned "Residential (Group B)" on the approved Causeway Bay OZP No. S/H6/9 ("the said approved OZP"). There is no restriction on the development intensity or building height under such zoning.

8.The Building Authority refused to approve the applicant's building plans, relying on ss. 16(1)(d), (g), (h) and (i), Cap. 123. Those provisions are:-

"The Building Authority may refuse to give his approval of any plans of building works where-

...

(d) the carrying out of the building works shown thereon would contravene the provisions of this Ordinance or of any other enactment, or would contravene any approved or draft plan prepared under the Town Planning Ordinance (Cap 131);

...

(g) the carrying out of the building works shown thereon would result in a building differing in height, design, type or intended use from buildings in the immediate neighbourhood or previously existing on the same site;

(h) the building works consist of, or any part thereof involves, the construction, formation or laying out of any means of access or other opening, not being a street or access road, to or from any street, and the place at or manner in which such means of access or other opening opens on to the street is, in his opinion, such as to be dangerous or likely to be dangerous or prejudicial to the safety or convenience of traffic using the street, or which may be expected to use the same;

(i) in his opinion, it is necessary for him to have further particulars of such plans or of the building works shown thereon or, where all the plans prescribed by regulations have not been submitted, to have one or more of the other plans prescribed by regulations, to enable him fully to consider such plans" (emphasis supplied).

9.The applicant is dissatisfied with the refusal and appealed to the tribunal.

10.There was a later submission of building plans by the applicant but this application is not concerned with that (and is only concerned with the earlier submission of building plans).

The Tribunal's Determination

11.After hearing the parties, the tribunal unanimously dismissed the appeal (as well as another appeal with which this application is not concerned).

Issues Raised in this Application

12.Under the heading "The Grounds of Review" in the Form 86A, the applicant contends that the decision should be judicially reviewed because:-

(a) insofar as it was based on s. 16(1)(g), it failed to follow the guidance provided by the said approved OZP and is contrary to s. 13, Town Planning Ordinance (Cap. 131);

(b) insofar as it was based on s. 16(1)(h), it misinterpreted that provision;

(c) insofar as it was based on s. 16(1)(d) and Reg. 23(3)(a), Building(Planning) Regulations, it was based on an error of law and fact;

(d) further to (c) above, a consistent approach should have been adopted in relation to the inclusion of the area of gridline 1; the same treatment should have been given to the applicant's application for approval as that given to the 1979 application of the owner of No. 2;

(e) further to (c) and (d) above, insofar as the decision was based on s. 16(1)(d) and (i) in relation to minor matters in the building plans, it failed to consider that those matters should have been dealt with by way of various Practice Notes for Authorised Persons instead of a refusal to approve the building plans.

At the beginning of the hearing of this application, the applicant sought (and was given) leave to rely on a further ground, namely, apparent bias on the part of the chairman of the tribunal.

13.The above grounds will be dealt with below in the same order set out above.

(1) S. 16(1)(g), Cap. 123

14.The tribunal visited Wang Fung Terrace and made the following observation in its decision:-

"Wang Fung Terrace could be described as topographically unique ... [It] is situate on a headland projecting out into what is essentially an area of valley. The area of Wang Fung Terrace is a plateau surrounded on three sides by escarpments, and on the remaining side, a substantial permanently built wall which denies any sort of access or communication between the terrace and ... a neighbouring development ... " (para. 14 thereof);

"In [the tribunal's] view, the escarpments are capable of forming the boundaries of [the subject site's] immediate neighbourhood ... The same can be said of the wall ...

For all these reasons, [the tribunal] is satisfied and determines that the immediate neighbourhood of [the subject site], is that area comprising Wang Fung Terrace" (para. 20 and 21 thereof).

15.The tribunal then went on to describe the buildings in Wang Fung Terrace and their plot ratios (buildings of a few storeys high and plot ratios from 1.5 to 2.25). It also observed in the decision that No. 6, Wang Fung Terrace is a domestic building of 16-storey with a plot ratio of 5.254 (before 1997, that site used to have a 3-storey domestic building). The tribunal also noted that the applicant's intended development would result in a 40-storey domestic building with a plot ratio of 7.95.

16.The tribunal's decision then referred to the first meeting of the Building Authority Conference held on 24 October 2001 and the second meeting held on 27 November 2001. After having referred to the above matters, the tribunal said:-

"As to the exercise of statutory power ... Mr Justice Mayo (as he then was) in Rich Resources Enterprises Limited -v- The Attorney General No. 3896 of 1991, Unreported, Date of Judgment 10th April 1992 at page 8, had this to say :-

'S. 16(1)(g) related to the height of buildings and adjoining buildings in its vicinity. It was unrealistic to attempt to argue ... that 16(1)(g) was primarily concerned with aesthetic factors such as the overall profile of the buildings. The height of the buildings primarily dictated the number of occupants who would be using them and the [Building Authority] was undoubtedly under a duty to take into account such factors as the density of the development ... '" (para. 31 thereof);

"... a primary concern of both conferences was the height of the proposed building and its height compared with the height of other buildings in the vicinity. Such a comparison is fundamental to a proper exercise of the statutory discretion, if for no other reason than as was observed by Mayo J, the height of buildings primarily dictated the number of occupants and the [Building Authority] had a statutory duty to take into account density, which for these purposes is the density of the [applicant's] proposed building compared with the density of other buildings on Wang Fung Terrace" (para. 32 thereof).

17.The applicant's complaint is essentially this. Insofar as the tribunal's decision is based on density of the buildings, it is inconsistent with the standards of guidance under s. 13, Town Planning Ordinance (Cap. 131). Insofar as the said decision is based on planning considerations, it is wrong in law. These arguments will be elaborated below.

18.S. 13, Cap. 131 provides:-

"Approved plans shall be used by all public officers and bodies as standards for guidance in the exercise of any powers vested in them" (emphasis supplied).

As stated above, the subject site (and Wang Fung Terrace) has been zoned "Residential (Group B)" on the said approved OZP and there is no restriction on the development intensity or building height under such zoning. The applicant complains herein that the tribunal failed to use the said approved OZP and that it wrongfully paid regard to density.

19.The applicant submits that it is trite law the Building Authority should not, in exercise of its discretion, refuse to approve plans on the basis of planning consideration. The following decisions of the tribunal are relied upon in support of this proposition:-

(a) Ngau Tau Kok Road (1972) para. 9 and 13-14;

(b) Hok Sz Terrace (1973) para. 5;

(c) 1 Robinson Road (1973) pp. 9-10 and 13-14;

(d) 101-3 Boundary Street (1979) para. 7;

(e) 10-11 Knutsford Terrace para. 10(a).

20.On the other hand, the respondent contends that s. 13, Cap. 131 does not take remove from the Building Authority its discretionary power to refuse building plans pursuant to s. 16(1)(g), Cap. 123. The tribunal was fully aware of the said approved OZP. Hence, at para. 25 of its decision, the tribunal said:-

"At the first meeting of the Building Authority Conference held on the 24th October 2001 ... [the] agenda of the conference was the exercise of the discretion under sec. 16(1)(g) of the Ordinance, and there participated a representative of the Planning Department, who observed that Wang Fung Terrace was zoned Residential Group B on [the said approved OZP] and that although there were no statutory planning restrictions on the development intensity and building height, her Department was concerned over the height of the development and considered Wang Fung Terrace unique in character and worthy of preservation ... ".

Further, the tribunal was also fully aware of the argument that, in invoking s. 16(1)(g), planning consideration was taken into account, and, so it was argued, this was beyond the ambit of the discretion: para. 29, the decision.

21.The respondent further relies on the Hong Kong court of appeal decision in Wing On Co. Ltd. v. Building Authority (1996) 6 HKPLR 432 where it was held the word "may" in s. 16(1) gives the Building Authority a residual discretion to approve building plans which departed from a draft outline zoning plan: pp. 3, 5 and 8 of the judgment. The Building Authority's discretionary power is hence not fettered by the draft outline zoning plans.

22.The applicant argues, on the other hand, that the Wing On Co. Ltd. case cannot assist the respondent. This is because that decision only laid down that the tribunal has a residual discretion when the draft outline zoning plans are contravened; but it does not mean that the tribunal has such a discretion where the proposed development is in fact consistently with the outline zoning plans. The applicant also argues that s. 16(1)(g) is applicable only where a proposed development is a "sore-thumb" (that is an "out-of-line") development.

23.I agree with the respondent's contention. It is true the Wing On Co. Ltd. case was concerned with s. 16(1)(d) whereas this part of this application is about s. 16(1)(g). Despite this difference, I do not see any valid basis to conclude that the discretion conferred by s. 16(1) should be limited in the way suggested by the applicant. I also agree with the tribunal's approach set out in para. 32 of its decision: see para. 16 above. Accordingly, I conclude that there is no substance in this complaint.

(2) S. 16(1)(h), Cap. 123

24.This complaint is related to vehicular access from Tai Hang Road to the subject site and vice versa. As stated above, this is via the said lane and the said paved access road: see also para. 42, the tribunal's decision which reads:-

"[The said paved access road] serves the whole of Wang Fung Terrace and is the only means by which vehicular traffic can gain access to the terrace. [The said paved access road] is said to average at around 5.2 metres in width and its most distinguishing feature is a sloped almost 180 degree bend which has been aptly described in these proceedings as 'the hairpin bend' ... ".

25.The tribunal then observed:-

"In so far as concerns [s. 16(1)(h)], the issues focused on whether it had any application at all and if so, whether the bend was a danger or likely to be a danger to those using [the said paved access road]": para. 42 thereof.

The tribunal also mentioned proposed schemes aimed at improving the said paved access road but noted that, since the proposals involved an incremental approach to the problem, the condition of the said paved access road would not be improved until other buildings on Wang Fung Terrace had been redeveloped.

26.The tribunal then stated the applicant's contention:-

"The [applicant's] contention was that the hairpin bend even if a place of danger or likely danger, could not be said to be sufficiently proximate to [the subject site] for [s. 16(1)(h)] to apply. ... ": para. 47, the decision.

The tribunal referred to the decision of Mayo J in Circumwealth Co. Ltd. v. A-G, MP No. 3209 of 1992, unrep., 4 February 1993. After quoting a few passages from that decision, the tribunal continued:-

"Whilst what would comprise a test of proximity was not propounded by the learned judge, it is apparent from his reasoning that proximity is not simply a question of distance. And in the instant case in so far as concerns traffic conditions there would be a direct causal connection between any increase in traffic generated by the occupiers of the [applicant's] proposed building and the traffic conditions presently prevailing at the hairpin bend ... Accordingly, it is [the tribunal's] view that the distance between [the subject site] and the hairpin bend is not so great as to offend [the] test of proximity": para. 47, the decision (emphasis supplied).

27.This part of the applicant's case is essentially that the tribunal has failed to correctly focus on the operative part of s. 16(1)(h) which reads:-

"... any means of access or other opening ... to and from any street, and the place at or manner in which such means of access or other opening opens on to the street is ... "

such as to be dangerous or likely to be dangerous or prejudicial to the safety or convenience to traffic using the street (and so on). According to the applicant's argument, the words "means of access or other opening" should refer to "the said lane" and the word "street" should refer to "the said paved access road and/or Tai Hang Road". Hence, in present context, s. 16(1)(h) should read like this:-

"... [the said lane] ... to or from [the said paved access road and/or Tai Hang Road], and the place at or manner in which [the said lane] opens on to [the said paved access road and/or Tai Hang Road] is in his opinion such as to be dangerous or likely to be dangerous or prejudicial to the safety or convenience of traffic using [the said paved access road and/or Tai Hang Road] ... ".

Instead, (according to the applicant's argument) it appears the tribunal has wrongly considered:-

"... [the said paved access road] ... to or from [Tai Hang Road], and the place at or manner in which [the said paved access road] opens on to [Tai Hang Road] is, in his opinion, such as to be dangerous or likely to be dangerous or prejudicial to the safety or convenience of traffic using [Tai Hang Road] ... ".

28.Insofar as the words "means of access or other opening" in s. 16(1)(h) should refer to "the said lane", the applicant's argument must be correct. This is because s. 16(1)(h) provides:-

"... the building works consist of, or any part thereof involves, the construction, formation or laying out of any means of access or other opening ..." (emphasis supplied).

There is no suggestion that the approved plans submitted by the applicant are concerned with "building works" which may consist of (or involve) "the construction, formation or laying out of" the said paved access road or Tai Hang Road.

29.The part of the tribunal's decision relevant to how it concluded on s. 16(1)(h) aspect can be found at para. 48-57. There is no need to set them out in details save to say this: those paragraphs are about the condition of the hairpin bend and the vehicular traffic thereat.

30.However, this does not mean that the tribunal has necessarily misdirected itself as regards the true meaning and the proper application of s. 16(1)(h). As stated above (at para. 25 and 26), the tribunal has correctly identified the issue now raised in this part of the applicant's case. It has, relying on the Circumwealth decision, concluded in the respondent's favour.

31.I do not understand the applicant's argument to be that the phrase "... the place at ... which ... means of access or other opening opens on to the street" cannot include a place sufficiently proximate thereto. The point taken by the applicant is rather that the test adopted by the tribunal for determining proximity is erroneous.

32.Physical distance between

"a means of access or other opening"

and

"... the place at ... which ... [it] opens on to the street"

may be an important factor in determining if a place is sufficiently proximate for the purpose of s. 16(1)(h). Physical distance between the said lane and the said paved access road has in fact been taken into account by the tribunal: para. 47, the decision. However, I agree with the tribunal that it is not the only factor. There are many other possible factors. At the end, what can amount to a relevant factor would depend on the facts of each case. In this application, "direct causal connection" resulting in an increase in traffic volume can be a relevant factor.

33.For the above reasons, I do not consider the reasoning or conclusion of the tribunal (and, insofar as the tribunal was relying on the Circumwealth decision, that of Mayo J) to be wrong.

(3) S. 16(1)(d), Cap. 123 and Reg. 23(2)(a), Cap. 123 Reg.

34.S. 16(1)(d) has been set out (at para. 8) above. Reg. 23(2)(a), Building (Planning) Regulations (Cap. 123 Reg) ("the Planning Regulations") reads:-

"In determining ... 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".

35.The applicant's complaint here centres on the exclusion of gridline 1 in the calculation of site coverage. Because of reg. 23(2)(a), whether it should have been so excluded in turn depends on whether it is a "street or service lane". The tribunal found that it was. The tribunal's approach to this issue is reflected in the following passages of its decision:-

"The issue between the parties focused on whether [the said lane] was in law a street for the purpose of the Planning Regulations. If it was not, then its area could be taken into account for the purpose of computing site coverage; if it was, then that area had to be excluded ... In this respect, [the respondent] in their refusal letters had noted ... :-

'[...] The existing street along [gridline 1] shall be deducted from site area. Building (Planning) Regulation 23(2)(a) refers.'

... the parties accepted that [the said lane] could not be a street for the purposes of the Planning Regulations, if it were established that the developer of [the subject site] had a total control of [the said lane] at the time the building works were to commence ... ": para. 59.

36.In the factual context of this application, whether the applicant has "total control of the said lane" depends on whether any third party has a right of way over it. At the end, the tribunal concluded that third parties enjoy a right of way and hence the said lane was a street.

37.The applicant does not contend in this application that the above approach is wrong. At para. 35, Form 86A, it says:-

"The issue ... depends on whether any third party has a right of way over [the said lane], in other words, whether at the time the proposed development is to take place, [the applicant] will have total control of the entire gridline 1. A.G. v Cheng Yick Chi [1983] 1 HKC 14, 19J and 20D. The only possible third parties are the owners and occupiers of No. 3 [Wang Fung Terrace]".

38.The applicant's complaints are:-

(1) the tribunal wrongly cast the burden of proof on it: para. 59, the decision;

(2) while the tribunal correctly concluded that there was no express grant of a right of way (para. 60, the decision), nor a right of way by prescription (para. 65, the decision), it erred in concluding that a right of way has arisen by necessity (para. 62-64, the decision);

(3) the tribunal failed to adopt a consistent approach regarding whether gridline 1 should be included.

39.On the other hand, the respondent argues that:-

(a) the applicant cannot rely on fresh evidence adduced only in this application in support of its arguments concerning the tribunal's finding of a right of way arising by necessity;

(b) in any event, even if the fresh evidence was admissible, the tribunal's finding is still correct to the extent that a right of way has arisen by implication;

(c) the tribunal ought to have found that a right of way by prescription exists.

These will be discussed below under separate sub-headings.

(a) Fresh Evidence

40.Para. 42-49, Form 86A refer to the conveyancing history of Wang Fung Terrace (that is, Inland Lot No. 3289). The fresh evidence relied on by the applicant in this application relates to a mortgage and a reassignment. The last-mentioned documents are relied on in the Form 86A in the following manner.

41.After Wang Fung Terrace (in the form of Inland Lot No. 3289) was assigned by Government to the first owner, it was partitioned into sub-lots. One of the sub-lots, Section J, became No. 3 (Wang Fung Terrace). No. 3 was assigned by the first owner to a purchaser. At that time, another sub-lot, the Remaining Portion, was mortgaged by the first owner and was not re-assigned to him until later. As noted above (at para. 3), the Remaining Portion is No. 4A-4D but at that time, the Remaining Portion was in fact No. 1, 4, 4A-4D and 5. In any event, it is (and was) part of the subject site.

42.Accordingly, so it is contended in the Form 86A, at the time of the assignment of No. 3, the first owner was not the legal owner of the Remaining Portion and hence no easement of necessity could arise over the Remaining Portion.

43.Further, contrary to the tribunal's finding, at the time of assignment of No. 3, the first owner still owned No. 2 but he did not own No. 4. Thus, insofar as access from No. 3 to the said paved access road was practicable over No. 2, No. 3 would enjoy a right of way over No. 2 (even if No. 3 should also enjoy a concurrent right of way over No. 4). Consequently, there was no easement of necessity over No. 4, or over gridline 1.

44.The respondent submits that there is no evidence the above-mentioned fresh evidence could not reasonably have been adduced by the applicant. The respondent therefore submits that the applicant cannot rely on the fresh evidence to impeach the tribunal's decision. The following passage in R v. Home Secretary, ex parte Al-Mehdawi [1990] 1 AC 876, 898G-900E is relied upon by the respondent in support:-

"... Thus the decision [referring to R v. West Sussex Quarter Sessions, ex parte Albert and Maud Johnson Trust Ltd. [1974] QB 24] demonstrates that even in relation to a public law decision conclusively determining a matter of status (the existence of a public right of way over land) and even assuming a valid ground for attacking the decision by certiorari (new evidence not available at the trial) the party attacking the decision cannot invoke that ground when the reason for the non-availability of that evidence at the trial is his own solicitor's failure to exercise due diligence to discover it in time ... " (per Lord Bridge).

45.I agree with the respondent. Accordingly, the above-mentioned fresh evidence cannot be used in this application.

(b) Right of Way by Implication

46.I also agree with the respondent that the applicant's contention that a mortgagor is not the legal owner for a piece of land such that he is unable to grant any right of way is incorrect. In such connection, the following authorities are against the applicant's contention:-

(a) Beddington v. Atlee (1887) 35 Ch D 317;

(b) Poulton v. Moore [1915] 1 KB 400, 412.

47.The respondent further argues that, pursuant to the conditions of sale of the then Crown lease, the assignee covenanted with the Government to develop the whole of Wang Fung Terrace: see general condition 6 and special conditions 1-3 and 13. It is undisputed that Wang Fung Terrace was partitioned before June 1935 (the date of a reassignment to the first owner) to form the subject-matters of different sale and purchase agreements: para. 44, Form 86A. The respondent asks me to infer from the whole circumstance that, in relation to No. 2-4 and 4A-4D, Wang Fung Terrace, a building scheme must have been intended right from the beginning. Further, it must have been intended (as part of that building scheme) that a right of way (that is, the said lane) was to be enjoyed by No. 3-4. Reliance is placed on Megarry & Wade: The Law of Real Property (2000) 6th Ed., para. 18-098, 18-100 and 18-102.

48.The respondent also refers to the following Hong Kong cases as instances of easement arising by implication:-

(1) Chiu Shu-choi v. Merrilong Dyeing Works Ltd. [1990] 1 HKLR 385;

(2) Goodtex Land Co. Ltd. v. Lung Kwong Emporium Co. Ltd. [1993] 1 HKC 645, 648.

49.In brief, I agree with the above further argument of the respondent.

(c) Easement by Prescription

50.The tribunal was satisfied (as a matter of fact-finding) that all the factual criteria relevant for establishing a right of way by prescription have been established: para. 65, the decision. However, the tribunal agrees with the applicant's argument that in Hong Kong such a right does not exist in law. Thus, the tribunal said:-

"... the [applicant] has submitted that as a matter of law such a right cannot exist ... in Hong Kong, whilst the [respondent] has submitted the matter is at least arguable. In this respect, the [tribunal] feels itself bound by the judgment of Deputy Judge Jerome CHAN (as he was then) in Tang Tim Fat & Anor -v- Chan Fok Kei & Ors (1992) 2 HKC 623 to the effect that there are no prescriptive rights over land in Hong Kong ... ": para. 65, the decision.

51.The respondent relies on the following Hong Kong cases in support of its argument:-

(a) Chung Yeung Hung v. Law Man Nga [1997] HKLRD 1022;

(b) Kong Sau Ching & Others v. Kong Pak Yan & Others, unrep., HCA 13429/1997 and HCMP 4363/1997.

The respondent also relies on the Application of English Law Ordinance (Cap. 88) and the lost modern grant concept.

52.Because I have able to determine this application without having to resort to this matter, I prefer not to decide on the issue until another occasion where fuller arguments are put forth. For present purposes, I would only observe that, had it been necessary to decide on this matter, I am inclined to agree with the respondent.

(d) Consistent Approach

53.The applicant alleges that the tribunal has adopted an inconsistent approach when deciding if gridline 1 should be included in the computation of site coverage.

54.S. 42(1), Cap. 123 provides:-

"Where in the opinion of the Building Authority special circumstances render it desirable he may, on receipt of an application therefor and upon payment of the prescribed fee, permit by notice in writing modifications of the provisions of this Ordinance" (emphasis supplied).

The tribunal made the following observations in relation to s. 42(1):-

"... the [tribunal] takes this opportunity to express the view that if at some future time an application were made for exemption under sec. 42 ... to modify the provisions of Regulation 23, then given the same circumstances it should be granted. For reason that firstly, because of the treatment accorded to Number 6 in the matter of site coverage. And secondly, because the rezoning of Wang Fung Terrace to Residential Group (C) has reduced the maximum plot ratio now available to the [subject site]": para. 54, the decision.

55.The applicant complains that, in relation to No. 2, the Building Authority allowed half of the said lane to be included in the calculation of site coverage: see also para. 6 and 12(d) above. Further, the same approach was adopted in relation to an access road shared by No. 6 and No. 7 and the whole of the said access road was included for such purpose. The Building Authority did not require the owners of No. 2 or No. 6 to apply for exemption under s. 42(1).

56.The respondent's response to the complain is simple: s. 42(1) prescribes that the Building Authority is to act "on receipt of an application". S. 42(2), Cap. 123 provides that:-

"Every application for an exemption under this section shall be in the specified form, and shall be considered on its own merits by the Building Authority who shall not be required to take account of exemptions granted in the past" (emphasis supplied).

The respondent argues that, in the absence of a proper application, the Building Authority's discretionary power is simply not engaged.

57.I agree with the respondent. I say nothing at present about whether the Building Authority is obliged to adopt the so-called "consistent" approach in light of s. 42(2).

S. 16(1)(d) and (i)

58.The gist of this complaint has been set out in para. 12(e) above. As has been pointed out in the applicant's skeleton arguments, no reliance has been placed by the tribunal on these matters: para. 10 thereof. It is therefore unnecessary to deal with them here.

Appearance of Bias

59.At the beginning of the hearing of this application, the applicant sought leave to rely on an additional ground of application. This was not opposed by the respondent.

60.The applicant does not accuse the chairman of the tribunal to have actual bias. The complaint is that he was also acting (or, at least, has acted) as counsel for the Building Authority in other matters while sitting as the chairman of the tribunal. This is said to give rise to an appearance of bias.

61.On the other hand, the respondent points out the following matters which arise out of the statutory scheme relating to the constitution of the tribunal:-

(a) members of the tribunal are appointed by the Chief Executive for periods not exceeding 3 years: s. 45;

(b) members are called upon to serve on the tribunal on an ad hoc basis: s. 48;

(c) the chairman is a legal practitioner with qualification for appointment as a district judge: s. 48(2);

(d) public officers may be appointed as a chairman or a member of the tribunal: s. 48(3);

(e) reasons for decision must be given by the tribunal: r. 12(1) and (2), (Building (Appeal) Regulations (Cap. 123 Reg)) and the decisions of the tribunal are subject to judicial review.

62.Further, the respondent points out that, when a public officer is appointed to sit on the tribunal, s. 48(4) directs him as follows:-

"... where a public officer is a Chairman or a member of the Appeal Tribunal he shall, as regards the performance of his functions as such Chairman or member-

(a) act in his personal capacity only; and

(b) not be subject to any direction to which he might be subject in his capacity as a public officer".

Thus, the statute considers it sufficient protection to the parties by giving a public officer the above direction when he is appointed to the tribunal.

63.The parties do not dispute that the proper test for determining whether there has been an appearance of bias is this: whether a fair minded and informed observer would be led to conclude that there was a real possibility that the tribunal was biased:-

(a) Deacons v. White & Cate [2003] 3 HKC 374;

(b) Locabail (UK) Ltd. v. Bayfield Properties Ltd. [2000] QB 451;

(c) The Building Authority v. Business Rights Ltd., unrep., CACV 212/1993;

(d) Taylor v. Lawrence [2003] QB 528;

(e) Metropolitan Properties Co. (FGC) Ltd. v. Lannon [1968] 3 All ER 304;

(f) Porter v. Magill [2002] AC 357.

64.Particular emphasis has been placed by the applicant on the following passage in Lannon:-

"No man can be an advocate for or against a party in one proceeding, and at the same time sit as a judge of that party in another proceeding ... So, also, a barrister or solicitor should not sit on a case to which one of his clients is a party ... " (p. 310G).

65.The facts of Lannon are as follows. Tenants of a block of flats applied to the rent officer to register a fair rent for their flats under the Rent Act 1965. The landlord proposed to increase the rent and objected to the rent officer's determination. He applied to the rent assessment committee. The relevant facts are that:-

(a) the chairman of the committee lived with his father (who was the tenant of another block of flats);

(b) the last-mentioned block of flats belonged to an associate company in the same group as the above-mentioned landlord;

(c) the firm of the chairman (himself a solicitor) acted for tenants from time to time in similar disputes;

(d) the chairman has himself assisted in writing a letter to the rent officer on his father's behalf;

(e) the committee fixed as the fair rents various amounts which were below those put forward by the experts, those put forward by the rent officer and those offered by the tenants;

(f) the committee omitted to give reasons why they did not accept the expert evidence in their written reasons for decision.

66.The English court of appeal quashed the committee's decision. It is entirely understandable why it so decided based on the facts of the appeal (summarised above). In the course of his judgment, Lord Denning said:-

"... Ought [the chairman] to have sat? I think not. If he was himself a tenant in differences with his landlord about the rent of his flat, he clearly ought not to sit on a case against the selfsame landlord, also about the rent of a flat, albeit another flat. In this case he was not a tenant, but the son of a tenant; but that makes no difference. No reasonable man would draw any distinction between him and his father, seeing that he was living with him and assisting him with his case" (p. 310D-F).

The passage in Lannon relied upon by the applicant (see para. 64 above) must be read in such context.

67.I agree with the respondent that when deciding matters of this kind, the whole circumstance (including the entire statutory scheme) ( that is, the circumstance reasonably known to an informed observer) has to be looked at: see also remarks to similar effect in The Building Authority v. Business Rights Ltd., p. 6, per Litton JA (as he then was).

68.I also accept the respondent's argument that the statutory scheme of Cap. 123 relating to the tribunal shows that the statute must have intended that matters falling within the jurisdiction of the tribunal are to be determined by an ad hoc tribunal consisting of professionals and specialists appointed for such purpose: see similar comments in the Wing On Co. Ltd. case, p. 2, per Sears J. Bearing in mind particularly the provisions of s. 48(4), I do not consider the mere fact of a chairman of the tribunal acting at the same time as counsel for the Building Authority in other unrelated matters is sufficient to found a case of bias.

Conclusion

69.To conclude, this application is dismissed.

Costs

70.There is no apparent reason to departure from the usual rule that costs should follow the event. There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application be paid by the applicant to the respondent to be taxed if not agreed.

Representation:

Mr Robert Tsang SC, leading Mr Leo Remedios, instructed by Messrs

Tsang Chau & Shuen, for the Applicant

Appeal Tribunal (Buildings) was not represented

Mr Mok Yeuk Chi and Mr Alexander Stock, instructed by Secretary for Justice, for the Building Authority