Treasure Spot Finance Co Ltd v. Director of Lands
Read the full judgment text of HCAL 72/2004 on BabelCite. This High Court CFI judgment was delivered on 21 March 2005.
1. This is an application for judicial review. The decisions under challenge are the decisions of the District Lands Officer, Yuen Long, on behalf of the Chief Executive to respectively revoke and cancel three building licences and the related certificates of exemption, in respect of three pieces of land, set out in letters all dated 28 June 2003.
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HCAL 72/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 72 OF 2004 ____________ BETWEEN
____________ Before: Hon A Cheung J in Court Date of Hearing: 21 February 2005 Date of Judgment: 21 March 2005 _______________ J U D G M E N T _______________ Application for judicial review 1.This is an application for judicial review. The decisions under challenge are the decisions of the District Lands Officer, Yuen Long, on behalf of the Chief Executive to respectively revoke and cancel three building licences and the related certificates of exemption, in respect of three pieces of land, set out in letters all dated 28 June 2003. 2.The three pieces of land are all situated in the same lot, i.e. Taxlord Lot No. 920 in Demarcation District No. 111. They are respectively known as Section X, Section Y and Section W (“Section X”, “Section Y” and “Section W” respectively). They are owned by a Mr Chan, a Mr Lai and a Mr Kan respectively, all indigenous male villagers in the New Territories. The small house policy 3.The building licences in question were licences granted pursuant to the Government’s “small house policy”. According to the Government material that has been placed before the Court by agreement, the background of the small house policy is as follows:
Facts 4.The three landowners of Sections X, Y and W all qualified for concessionary treatment under the policy. They were granted building licences, all on the same standard terms, on 15 April 1998, 1 March 1997 and 15 April 1998 respectively. 5.Under each of the building licences, the landowner was required to build and complete a small house on his land within a period of 36 calendar months (condition 2). Moreover, there were restrictions on alienation (condition 4(a)). They were subject to an exception in relation to building mortgage. Condition 4(c) of the building licence read as follows:
6.Condition 28 of the building licence provided for the right of re-entry by the Government of the land should the licensee/landowner fail or neglect to observe or comply with any of the conditions in the building licence. However, it was common ground during the hearing, and the application for judicial review proceeded on the basis, that in practice the sanction for non-compliance with the building covenant was merely a right on the part of the Government to revoke the building licence. 7.According to the building covenants in the three building licences, the original building periods for Sections X, Y and W expired on 14 April 2001, 28 February 2000 and 14 April 2001 respectively. 8.For Section X, there were three subsequent offers by the Government to extend the building period for another 12 months (to 14 April 2002), which were made by letters dated 14 November 2001, 11 December 2001 and 13 March 2002, upon payment of an additional premium of several hundred dollars. But none of the offers were taken up by the landowner. 9.For Section Y, there were two offers by the Government to extend the building deadline by 24 months (to 28 February 2002), which were made by letters dated 19 June 2001 and 22 October 2001. The subsequent offer was accepted by the landowner on 31 October 2001 and a nominal additional premium (of several hundred dollars) was paid. After the expiry of the extended building period, by two further letters dated 3 May 2002 and 10 June 2002, the Government again offered to extend the building period by yet another period of 12 months (to 28 February 2003). Again the second of those two offers was accepted by the landowner, and the additional premium of several hundred dollars was paid on 17 June 2002. 10.For Section W, there were three offers by the Government to extend the original building period by 12 months (to 14 April 2002), which were made by letters dated 14 November 2001, 11 December 2001 and 30 February 2002. None of those offers were accepted by the landowner. By letters respectively dated 23 April 2002 and 28 May 2002, the Government again offered to extend the building deadline to 14 April 2003. The last offer was accepted by the landowner, who paid a nominal additional premium on 5 June 2002. 11.Thus in summary, for Section X, the building period was never extended and it expired on 14 April 2002. For Section Y, there were two extensions for a total period of 36 months. The building period, as extended, expired on 28 February 2003. For Section W, there was one single extension of 24 months. The building period, as extended, expired on 14 April 2003. For Sections Y and W, there was no further extension after 28 February 2003 and 14 April 2003 respectively. 12.The Applicant, a licensed moneylender, came into the picture in the following way. In 2001, the Applicant agreed to lend to each of the three landowners a building loan of $1.1 million to finance the construction of the small houses, which was to be secured by a building mortgage of the land. On 18 June 2001, the Applicant applied on behalf of the landowners to the District Lands Officer, Yuen Long, for his consent to the three landowners executing the building mortgages in favour of the Applicant, as securities for the loans contemplated. In relation to each application, by letter dated 7 November 2001, the Director of Lands gave his consent on terms and conditions. Amongst other things, the Director required that the building mortgage be in the form approved by him. The Director also required the Applicant as mortgagee to undertake to notify him immediately when the mortgagee’s right to exercise the power of sale or foreclosure pursuant to the building mortgage should arise or when the mortgagee should intend to take possession of the land or to appoint a receiver or otherwise to take any steps to enforce the security. The Director further required the Applicant as mortgagee to undertake to apply to the Director for and obtain from him, his consent to all or any of these enforcement actions and in the event of the Director’s consent being so granted to pay any additional premium that might be due, prior to the taking of any of the actions by way of enforcement of the security under the building mortgage. 13.The approved form of building mortgage provided, amongst other things, that the building loan of $1.1 million be advanced in accordance with certificates issued by the building contractor named in the building mortgage certifying the various stages of construction works as set out in the third schedule to the building mortgage. According to the third schedule, the mortgage loan was to be drawndown by stages, with the first instalment of the loan (not exceeding $165,000.00) only payable upon the completion of the foundation works. All subsequent instalment payments were works-related, and there was thus no question of any drawdown of the building loan prior to commencement of work. 14.After the respective consents were obtained, three building mortgages, in the same standard approved form, were executed by the three landowners in favour of the Applicant on 13 November 2001. The Applicant in turn gave the Director the requisite undertakings on the same day. 15.Pausing here, it should be pointed out that under clause 3(a) of each of the building mortgages, the mortgagor/landowner covenanted with the Applicant as mortgagee that “the Building Licence is now good valid and subsisting and in no wise void or voidable”. 16.But as can be seen from the summary of facts set out above, what the landowners of Section X and Section W covenanted regarding the respective building licences were only half-truths. For it should be remembered that for Section X, the building period of 36 months had expired on 14 April 2001, and there was never any extension of the building period. Thus as at the time of the building mortgage, the building licence was liable to be revoked. Likewise, for Section W, the original 36 months building period expired on 14 April 2001, and the extension of 24 months to 14 April 2003 only took place on 5 June 2002. As of 13 November 2001 when the building mortgage was executed, the building licence was liable to be revoked by the Government. 17.In contrast, whilst the original 36 months building period for section Y had expired on 28 February 2000, it had been extended by 24 months to 28 February 2002 on 31 October 2001, shortly before the execution of the building mortgage. 18.Continuing with the relevant chronology, it would appear from the Applicant’s own case and evidence that sometime between the execution of the building mortgages and January 2002 when the Applicant had a site visit of the three pieces of land, the Applicant advanced to each of the landowners a sum of $165,000.00 as part of the building loans under the building mortgages, even though no construction works (foundational or otherwise) had been carried out, let alone completed, on the three pieces of land, quite contrary to the provisions in the building mortgages and in particular the payment timetables set out in the respective third schedules to the mortgages. According to the Applicant’s explanation given to the District Lands Officer, Yuen Long, at a subsequent stage, “it was a common practice that [the Applicant] would release 15% of the mortgage loan to the licensee before commencement of building works” (paragraph 4 of the minutes of meeting held on 13 August 2003 – see below). 19.According to the Applicant, in January 2002, during a routine site visit, it discovered that the development of the three pieces of land fell behind schedule. A further site visit was paid by the Applicant in April 2002 and no progress was observed to have been made at all. The Applicant said that in view of the unsatisfactory progress, it decided to issue proceedings against the landowners for enforcement of the securities. By letters all dated 22 July 2002, the Applicant through their solicitors asked the Director for his consent to the Applicant’s taking of enforcement proceedings, in compliance with the undertakings that the Applicant had previously given to the Director. 20.By then (22 July 2002), it should be remembered, the building periods for Sections Y and W had been extended to 28 February 2003 and 14 April 2003, whereas that for Section X had already expired. 21.But the Director took time to consider the position. The extended building periods for Sections Y and W eventually expired in February and April 2003, and there was no subsequent extension or application for extension. This remained the position until 2 June 2003 when the solicitors acting for the Applicant wrote to the District Lands Officer three letters in respect of the building licences in essentially identical terms as follows:
22.The belated applications for extension of time in respect of the three building licences were unsuccessful. As mentioned at the outset, by letters all dated 26 June 2003, the Director of Lands wrote to the three landowners to revoke the building licences for failure to comply with the respective building covenants. 23.On the following day, the District Lands Officer, Yuen Long wrote to the Applicant’s solicitors informing the latter that the Applicant’s applications for extending the building periods could not be entertained by reason of the revocation of the building licences. 24.By letter dated 7 July 2003, the Director of Lands wrote to the solicitors informing them that by reason of the revocation of the building licences, the Director would cease to process the Applicant’s applications for consent to enforce the building mortgages, the Director having obviously taken the common sense approach that (despite the wide wording of the undertakings) there was no question of the Applicant requiring any consent from him to enforce the building mortgages after the revocation of the building licences – of course, the three pieces of land as securities for enforcement would no longer enjoy the building licences as part of their attributes. 25.After receipt of the above letters, the Applicant obtained an appointment to meet with the District Lands Officer on 13 August 2003. According to the minutes of the meeting,
26.Pursuant to what had been discussed and suggested in the meeting, the Applicant’s solicitors by letter dated 11 September 2003 made representations to the District Lands Officer, Yuen Long and asked for a reconsideration of the revocation of the building licences. Apart from asserting that in reliance on the consents given to the execution of the building mortgages, the Applicant had released a sum of $165,000.00 to each of the landowners as the first drawdown, the Applicant also relied on the following grounds:
27.But the Applicant’s effort was in vain. By letter dated 23 October 2003, the District Lands Officer, Yuen Long wrote to the Applicant, effectively refusing to reverse the revocation of the building licences and certificates of exemption. The District Lands Officer wrote:
Grounds for judicial review 28.In this application for judicial review, the Applicant seeks to challenge the decisions of the District Lands Officer to revoke the three building licences and the relevant certificates of exemption, as set out in the three letters all dated 26 June 2003. What is not under challenge as such is the implied decision contained in the letter of 23 October 2003 refusing to reverse the revocation of the building licences and certificates of exemption. Nor does the Applicant challenge as such the delay (if any) in and eventual cessation of the processing of its application for consent to take enforcement proceedings in relation to the three building mortgages, although the application featured prominently in counsel’s arguments. 29.The Applicant relies on three specific grounds in the form 86A, namely legitimate expectation, procedural impropriety and Wednesbury unreasonableness. Each of these three grounds will be dealt with in turn. In addition, the question arose as to whether the decisions of the District Lands Officer are amenable to judicial review at all. This raises the question of whether the decisions fall within the public law or private law domain. For reasons that will become immediately apparent, I will not deal with this question in any detail and will refrain from expressing any definite view on the matter. Amenability to judicial review of decisions made under the small house policy 30.Counsel’s arguments on whether the decisions to revoke the building licences are amenable to judicial review raise the general question of whether decisions made under the Government’s small house policy are amenable to judicial review, and the specific question of whether a decision to revoke a building licence by reason of expiry of the building period (whether as extended or not) is amenable to judicial review. 31.Given the subject matter raised and the potential implications of a decision on the issue may have – particularly in relation to the general question of whether decisions made under the small house policy are amenable to judicial review, and in the light of the conclusions that I have reached in relation to the three substantive grounds of challenge raised on behalf of the Applicant by counsel, I am not prepared to express any view on the matter. Whatever I would otherwise have wished to say on the subject would be obiter in nature. I do not think it wise to make obiter observations on an important subject with potentially wide implications on such a flimsy footing. 32.In those circumstances, I would simply record the gist of counsel’s arguments here. 33.Mr Ismail, counsel for the Respondent, argued by reliance on leading cases like Hang Wah Chong Investment Co. Ltd v. Attorney General [1981] HKLR 336 (PC) and Canadian Overseas Development Co. Ltd v. Attorney General [1991] 1 HKC 288 (CA) that the District Lands Officer, in deciding to revoke the building licences, on behalf of the Chief Executive, was merely acting in the capacity of a private lessor/licensor, exercising a power given to him under contract (i.e. the building licence). He was not performing or discharging any public function. His decisions are therefore not amenable to judicial review. 34.Mr Kenneth C L Chan (appearing together with Mr Roland Lau) argued on behalf of the Applicant that the high authority of the two cases cited by Mr Ismail notwithstanding, the present case is clearly distinguishable because the decisions were made in the context of the Government’s well-known small house policy. Counsel argued that the Government’s implementation of the small house policy involve or concern matters pertaining to town planning, environmental protection, land use and development in the New Territories and the unique position and rights of the indigenous male villagers of the New Territories given their peculiar historical background. Furthermore, as this is a concessionary policy, it affects (in the prejudicial sense) the public at large as a majority sector of the public does not qualify for concessionary treatment under the policy and is in that sense prejudiced against. 35.Counsel further placed heavy reliance on a decision of Keith J (as he then was) in Hong Kong and China Gas Co. Ltd v. Director of Lands [1997] 3 HKC 520, where the learned judge distinguished Hang Wah Chong and Canadian Overseas Development by reference to the function played by the officer whose decision was under challenge. His Lordship placed emphasis on the function performed by the officer through his decision, rather than his source of power. 36.Counsel relied on de Smith, Woolf & Jowell’s Principles of Judicial Review (1999 ed.) paras. C-018 and C-019 in support of his submission on the true distinction between private law and public law:
37.Mr Ismail, in his argument, urged the Court to focus not on the small house policy and the decisions made under it in general, but rather on the decisions to revoke the building licences. Counsel argued that when making the decisions, albeit in the context of the small house policy, the District Lands Officer was not performing any public function at all – he revoked the licences because the building covenants had not been complied with. Counsel argued that there was no public function or public element involved in the decisions. 38.As I say, I am reluctant and indeed not prepared to express any views on counsel’s competing arguments. It is not necessary for me to do so given my conclusions on the substantive grounds of challenge. All I would say is that both sides have made reasonably arguable submissions. Legitimate expectation 39.Turning to the first substantive ground of challenge, i.e. legitimate expectation, the Applicant argues in paragraphs 18 and 19 of the form 86A as follows:
40.I have no difficulty in rejecting this ground of challenge. As Mr Ismail has reminded this Court, to be legitimate, the expectation must be reasonable in the light of the official conduct which is said to have given rise to the expectation. This depends on the conduct of the public authority, what it has committed itself to as well as what the applicant is entitled to expect: Ng Siu Tung v. Director of Immigration [2002] 5 HKCFAR 1, 43H-J (para. 101). 41.In my judgment, on the facts, what the Applicant may reasonably argue (and I need not decide on it) is that there was a legitimate expectation that the building licences would not be revoked within a period of time counting from the date consents to the building mortgages were given (7 November 2001), which would be reasonably required by the landowners to complete the construction of the small houses exercising all due diligence. 42.I say that this is reasonably arguable because as pointed out above, as of 7 November 2001, the building periods for Section X and Section W had expired. As for Section Y, the building period had just been extended to 28 February 2002, less than 4 months from 7 November 2001. It is common ground that as of 7 November 2001(and indeed as of any other material time), no construction work had been carried out. Yet the building mortgages were consented to by the District Lands Officer. The approved form of the building mortgages set out expressly a covenant by the mortgagee that the building licences were still subsisting. 43.In those circumstances, in my view, it is reasonably arguable in favour of the Applicant that it had, as of 7 November 2001, a legitimate expectation that the Director, having consented to the execution of the building mortgages, would allow the landowners respectively a reasonable period of time to complete construction of the small houses, which (construction) had not been started yet – to the knowledge of all concerned. 44.However, that is the extent that I am prepared to go along with the Applicant in its case of legitimate expectation. The expectation of non-revocation of the licences cannot have been an open-ended one. As Mr Ismail has submitted, it cannot be seriously suggested that by consenting to the building mortgages, the Government has represented to the Applicant that it will never revoke the building licences, no matter how late the construction works may be. 45.In considering what should be the reasonable period of time, one must bear in mind the history of the matter. By 7 November 2001, the three building licences were already more than three or four years old; yet no building work whatsoever had been commenced. For this reason, in my judgment, any legitimate expectation that can be derived from the facts and in particular the length of the period of non-revocation must be informed by the past history, and it must be computed on the basis that the landowners must exercise all due diligence to complete the works. 46.Here, I should point out that the crucial question is the non-revocation of the building licences, rather than any extension of the building periods. For the expiry of the building period would not automatically terminate the building licence. It would simply give rise to a right to terminate the licence. So long as the licence has not been terminated, one may continue to carry out the building works. That is why thus far in my discussion on what can or cannot be reasonably argued by the Applicant regarding legitimate expectation, I have expressed it in terms of the non-revocation of the building licences rather than extension of the building periods. 47.Thus analysed, I think it is beyond reasonable argument to the contrary that the eventual revocation of the building licences on 26 June 2003, almost 20 months after the granting of consent to the building mortgages, cannot possibly have involved any violation of any reasonably arguable legitimate expectation on the part of the Applicant relating to the non-revocation of the licences. 48.At the hearing, Mr Chan did not seek to argue otherwise on this aspect of the case. 49.For those reasons, I reject the ground of challenge based on legitimate expectation. Procedural impropriety 50.As regards procedural impropriety, the Applicant’s point is that he had not been told of the District Lands Officer’s intention to revoke the licences, and had never been given any opportunity to make representations to the District Lands Officer before the decisions to revoke the building licences were made. 51.During hearing, I have heard much argument on whether the Applicant knew about the actual positions regarding the extension(s), if any, of the building periods in relation to the three pieces of land at the material times. In my judgment, regardless of the Applicant’s extent of knowledge or information prior to 2 June 2003, the Applicant must have known about the true positions by the time it wrote to the District Lands Officers through its solicitors on 2 June 2003 – the material parts of the letters have already been extracted above. It is clear from a plain reading of the three identical letters that the Applicant must have known about the latest positions by then. In fact neither the form 86A nor the supporting affirmation of the Applicant suggested otherwise. 52.But more importantly, I do not think this is the crucial issue. The crucial issue involved in this ground of challenge is twofold – firstly, whether the Applicant enjoyed the right to be heard or make representations; and secondly, if the answer to the preceding question is in the affirmative, whether that opportunity or right had been substantively granted. 53.In my judgment, the answer to the second question must be “yes”, which therefore renders the first question academic. The matter is covered by the legal principles expounded and applied by Chu J in Lam Yuet Mei v. Permanent Secretary for Education and Manpower [2004] 3 HKLRD 524, 540 to 541 (paras. 53 to 60):
54.The facts of our case are of course different. But in my judgment, the same principles apply. Assuming that the Applicant had a right to be heard or make representations, that right was not infringed because the Applicant had been afforded sufficient opportunities after the decisions to revoke the licences had been made to make representations to the District Lands Officer, with a view to procuring the reversal of the decisions. Two opportunities had been given – the face-to-face meeting in August and the letter of representations in September 2003. 55.That the Applicant has not chosen to challenge the eventual decision of the District Lands Officer not to reverse the building licences, as implied in his letter dated 23 October 2003, written in response to the written representations and request for reconsideration of the revocation, cannot alter substantively the above analysis. Certainly it cannot improve the Applicant’s challenge of the Director’s earlier decisions in June 2003. The reality is that the Applicant has been given adequate opportunities to make representations, and it has been heard. 56.For these reasons, the second ground of challenge also falls away. Wednesbury unreasonableness 57.This leaves the final ground of challenge, namely Wednesbury unreasonableness. 58.Again I have no hesitation in rejecting it. The District Lands Officer has explained in the meeting in August 2003 (as evidenced by the minutes) as well as his letter of 23 October 2003 the reasons for his decisions. I can find nothing wrong, in the public law sense, with those decisions. Certainly, in my judgment, in the public law sense, the decisions were not unreasonable. Quite certainly, they could not be described as “perverse”. 59.The building licences were granted in 1997 or 1998. By June 2003 or October 2003, they were more than five or six years old. The original 36 months construction periods had long expired. In relation to Section X, there was never any extension. In relation to Section Y and Section W, the subsequent extensions had also expired. 60.More importantly, this is not a case where some works had already been carried out on the land so that only further time would be required so as to complete the construction. It was not such a case. No work whatsoever had been carried out on the three pieces of land despite the lapse of more than five or six years, and despite the availability of the building mortgages. 61.In those circumstances, I totally fail to see how this Court sitting in its supervisory role in these proceedings could call the relevant decisions of revocation Wednesbury unreasonable, irrational or perverse. 62.The Applicant complains that the District Lands Officer did not take into account the fact that it had advanced monies under the building mortgages to the landowners, so that the revocation of the building licences would affect the Applicant financially as mortgagees. As noted above, the revocation of the building licences would not affect the enforceability of the building mortgages over the three pieces of land as such. But without the benefit of the building licences, the three pieces of land would, presumably, be less valuable than they would otherwise have been. Although there is no direct evidence, I am prepared to assume that the land, without the building licences, would not be sufficient in terms of value to cover the outstanding building loans plus interests (which are charged at the rate of 35% per annum). 63.The fallacy of the whole argument lies in this simple fact: the building loans were drawndown and allowed to be drawndown other than in accordance with the terms of the building mortgages that had been approved by the Director of Lands in the first place. For it must be remembered that advance of the loans under the building mortgages was to be and should have been done by instalments and by reference to the stages of the construction works. As no construction works had actually been carried out, there should not have been any drawdown, as per the third schedules to the building mortgages. Yet according to a so-called “common practice”, the Applicant chose to advance 15% of the agreed building loans to the landowners, even though no building works had been commenced, let alone completed. In those circumstances, the Applicant had only itself to blame. There was simply no causal connection between the revocation of the building licences and the loss (if any) suffered or to be suffered by the Applicant in having the values of their securities diminished by the revocation. 64.In my judgment, from the perspective of the District Lands Officer, the loss or potential loss to the Applicant was not something that he need take or ought to have taken into account. Put at the highest (without deciding it), the District Lands Officer was only obliged to take into account the financial interest of the Applicant as mortgagee under and pursuant to the building mortgages. Any loss that the Applicant might suffer other than by reason of its performance of the terms of the building mortgages should not be a concern to the District Lands Officer, in deciding whether to revoke the building licences. On the facts, the (partial) loans advanced to the landowners, which are said to have been covered by the building mortgages although the building mortgages did not require the making of those (partial) loans, as well as the accruing interests, were not something that the District Lands Officer need take into account in reaching his decisions. In my judgment, that is a complete answer to the Applicant’s complaint. 65.But then Mr Chan argued on behalf of his client at the hearing that when the District Lands Officer decided to revoke the licences in June 2003, the above analysis did not go through his mind at all. He simply failed to take into account the then known fact that the Applicant had advanced monies to the landowners under the building mortgages. In those circumstances, it is not open to this Court to supplement the reasons actually relied on by the District Lands Officer in reaching his decisions. 66.I am doubtful whether on the facts counsel’s argument is correct. In any event, I reject it. First, in my judgment, I am entitled to take into account what happened subsequently at the face-to-face meeting in August 2003 and the letter of representation written in September 2003. Any defect in the reasoning of the original decisions to revoke has been remedied, in my judgment, by the subsequent process involving the Applicant’s setting out its full case before the District Lands Officer and the latter’s willingness to entertain the request for a reconsideration of the revocation. In the District Lands Officer’s letter dated 23 October 2003 already extracted above, he correctly dealt with the fact that monies had been advanced by the Applicant to the three landowners. The answer given, which accords with my analysis above, was impeccable. 67.Secondly and in any event, judicial review is a discretionary remedy. The court has a discretion not to grant any relief if no prejudice is suffered. Given my above analysis, any technical failure to consider the position of the Applicant and the financial implications to the Applicant if the licences were revoked back in June 2003 did not, in my judgment, cause the Applicant any loss or real prejudice. Put another way, even if the matter were taken into account and considered in June 2003, the result would still have been the same, by reason of the analysis that I have set out above. For that reason also, I reject counsel’s argument. Application for consent to issue enforcement proceedings 68.As mentioned above, during submission, much was said about the Applicant’s application for consent to issue enforcement proceedings against the landowners by letter dated 22 July 2002, which was not replied to until the following year. In my judgment, that is neither here nor there and does not really assist the three grounds of challenge relied on in the form 86A. In any event, that application was overtaken by subsequent events, i.e. the belated application by letter dated 2 June 2003 for extension of the respective building periods. Furthermore, as I noted above, there is no challenge regarding the Director’s handling of that application for consent to issue enforcement proceedings as such. Finally, regardless of what the Applicant knew or did not know in 2002 and whether the Director should have replied to the Applicant earlier informing it of the latest positions, by the time of its solicitors’ letter dated 2 June 2003, the Applicant must have been made aware of the latest positions regarding the expiry of the building periods (and thus the Applicant’s applications for extension). Revocation of the exemptions 69.The decisions to revoke the relevant certificates of exemption, issued by the Director pursuant to the Building Ordinance (Application to the New Territories) Ordinance (Cap. 121), really stand or fall together with the decisions to revoke the building licences. Nothing really turns on the Ordinance, save that Mr Chan argued on behalf of the Applicant that the Ordinance forms part of the scheme of things to implement the small house policy and gives statutory underpinning to some of the necessary and relevant decisions required to be made under or in pursuance of the small house policy. Outcome 70.For all the above reasons, I dismiss the application for judicial review. I make a costs order nisi that the Applicant pay to the Respondent the costs of these proceedings; such costs are to be taxed if not agreed. Unless either party should apply to vary the costs order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14 days period. 71.I thank counsel for their assistance.
Mr Kenneth C L Chan and Mr Roland Lau, instructed by Messrs Kenneth Woo & Co., for the Applicant Mr Anthony Ismail, instructed by the Secretary for Justice, for the Respondent | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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