Tsui Koon Tin and Others v. The Building Authority

CACV 354/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 354 OF 2002

(ON APPEAL FROM HCAL NO. 161 OF 2002)

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BETWEEN

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Before:  Hon Cheung and Tang JJA in Court

Date of Hearing: 17 May 2006

Date of Judgment: 24 May 2006

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J U D G M E N T

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Hon Tang JA (giving the judgment of the Court):

1.This is an appeal from the order of Chung J made on 5September 2002, refusing leave to apply for judicial review.

2.It is not known why the appeal has taken so long to be heard.

3.The application concerned structures erected on the roof of No. 18 Grampian Road, Kowloon.  The applicants are the occupants of the various structures of the roof.

4.The application concerns a total of eight orders made by the Building Authority under section 24(1) of the Buildings Ordinance (“the Ordinance”), Cap. 123, requiring the removal of building works on the roof which have been erected in contravention of section 14(1) of the Ordinance.  Section 14(1) provides:

(1)  Save as otherwise provided, no person shall commence or carry out any building works or street works without having first obtained from the Building Authority-

(a)   his approval in writing of documents submitted to him in accordance with the regulations; and

(b)   his consent in writing for the commencement of the building works or street works shown in the approved plan.  (Amended 68 of 1993 s. 6)

5.No. 18 Grampian Road was completed in 1975 and according to the approved building plan for the roof, produced on behalf of the applicants, which was approved on 23 November 1973, the structures with which we are concerned have not been approved.  In other words, they came within section 14(1) of the Ordinance, and were unauthorized buildings works (“UBW”).

6.The basis of the application is that under the policy disclosed in the press release dated 30 March 1988 regarding “The control of Unauthorized Building Works”, issued by the Buildings Ordinance Office of the Buildings and Lands Department, the applicants had the legitimate expectation that the roof structures would not be required to be demolished unless their continued presence would constitute an imminently dangerous situation where there is obvious danger to life or property.

7.Alternatively it was submitted that no clearance should be required until all UBW which constitute an imminently dangerous situation have been removed.

8.The press release is reproduced in full below:

“Appendix II  P.1
(Sect. 1 Inst. No.3)
Press Release – 30.3.88
The Control of Unauthorised Building Works

The Buildings Ordinance Office of the Buildings and Lands Department has adopted since early this month a new system of priorities for the better control of unauthorised building works (UBW).

The New System of Priorities

2. The new system of priorities is part of the proposals contained in the Department’s “Consultation Document on the Control of Unauthorised Building Works” which has been given extensive consultation since March 1987.  Under the system, UBW are to be classified into a high priority group for which enforcement action shall be taken as a matter of priority and a low priority group for which enforcement action may be deferred.  The criteria for distinguishing the two groups are :

(i)     High Priority

(a)    UBW constituting an imminently dangerous situation where there is an obvious danger to life or property.

(b)    Significant new UBW irrespective of the date of completion of the building in which the UBW have been carried out.

(c)    Such UBW or particular types of UBW in buildings, lanes, streets, areas, etc. as may be recommended for demolition or other remedial action by public bodies or government agencies.

(d)    Major UBW which contravene the Buildings Ordinance and lease conditions at the same time.

(ii)    Low Priority

UBW not covered by the High Priority group will fall into the Low Priority group for which no enforcement action will be taken for the time being.  Cases in this group will, however, be upgraded when it is considered appropriate to do so.

District Clearances

3. Additionally, the Buildings Ordinance Office (BOO) will embark upon large-scale clearances of UBW on a district-by-district basis.  Comprehensive clearance programmes will be prepared either on BOO’s own initiative or as a result of recommendations received from public bodies including District Boards, Environmental Improvement Committees and Building Management Co-ordination Committees.  There will be wide consultation before any clearance programme is implemented to ensure its success.  Priority will be given to those programmes where owners’ incorporations, mutual-aid committees or other building management agencies are likely to take a positive role.

Priority Demolition

4. No new UBW will be permitted.  BOO’s internal reorganisation has been completed and a new “Priority Unit” has been in operation since November 1987.  Staff of the Unit are able to go into action within two working days.  For the achievement of the common goal of a safer and more pleasant environment, BOO appeals to members of the public to report cases to its staff if they see illegal building works going on.  (Telephone No. 848 2340 or 848 2369)

Other Measures

5. A number of other measures have been introduced to improve efficiency within the existing legislative framework.  Several more proposals requiring amendments to the law are under active consideration.

Buildings Ordinance Office

Buildings and Lands Department

March 1988

Issued & Revised : July 1990”

9.These submissions are contrary to any reasonable reading of the press release.  The fact that the UBW in the present case fell into the low priority group under the press release of 30 March 1988, simply meant:

“… no enforcement action will be taken for the time being.  Cases in this group will, however, be upgraded when it is considered appropriate to do so.”

10.So it is not arguable that there was an legitimate expectation that no enforcement action would be taken unless the aforementioned conditions stated in paras. 6 and 7 above were satisfied.

11.Moreover, the policy has since been modified.

12.In April 2001, a new policy called “A Comprehensive Strategy for Building Safety and Timely Maintenance Implementation Plan” (“the 2002 Policy”) was published.  Para. 16 is relevant and provides as follows:

“16    The Buildings Department has been enforcing the law against unauthorised building works in accordance with a policy established in 1988.  With changes in circumstances and increases of resources over the years, we now revise the enforcement policy (Appendix) for wider scope for action.”

13.The Appendix provides as follows:

“Revised enforcement policy against unauthorised building works

The revised enforcement policy against unauthorised building works (as indicated in italics) will re-focus priorities and broaden the scope for enforcement action.  Resources will be directed to the removal of:

(a)     items constituting obvious or imminent danger to life or property;

(b)     new items, irrespective of the date of completion of the building where they have been carried out;

(c)     items in or on buildings, on podiums and rooftops, in yards and lanes (including unauthorised site formation works) constituting a serious hazard or a serious environmental nuisance, as determined by the Building Authority;

(d)     major individual items;

(e)     items in or on individual buildings with extensive unauthorised building works;

(f)      items identified in buildings or groups of buildings targeted for large-scale operations or maintenance programmes; and

(g)     unauthorised alterations to or works in environmentally friendly features of a building (eg balconies, sky or podium gardens) for which exemption from calculation of gross floor area has been granted by the Building Authority.

On other items, the Buildings Department will issue the proposed statutory warning notices registrable against property title (paragraph 23(b)).”

14.Regarding the orders issued to the applicants, and we take Order UBZ/U22/0774/01 as an example, by letter dated 30 August 2002, the Buildings Department informed Bing Choy & Associates, who were acting for the applicants at the material time as follows:

“Please be advised that the previous enforcement policy of this department has been revised following the publication of a booklet in this regard by the Planning and Lands Bureau in April 2001, to the effect that enforcement priority was extended to include as well those unauthorized building works (UBWs) in buildings targeted for large-scale operations.  As the subject building was selected as one of the targets under the Blitz Unauthorized Building Works Clearance operation (BUC 2001), Orders against such UBWs were issued pursuant to the said revised policy.”

15.It is clear that the orders were issued under and in compliance with the 2001 policy.

16.Another point relied on by the applicants is that the roof structures posed no danger at all.  But that was not the only reason which would justify an order for removal.  It is clear from the restatement of policy in 2001 quoted above that:

“(f)    items identified in buildings or groups of buildings targeted for large-scale operations or maintenance programmes;”

could be a reason for immediate enforcement action.

17.The 5th applicant, Siu Fung-kuen, who addressed us on behalf of the other applicants, also submitted that there is a regulation which permitted unauthorized structures on the roof provided they were built before September 1979.

18.Miss Siu was unable to draw our attention to any such regulation.  We are not aware of any such regulation.

19.Having regard to the clear wording of section 14(1) and the fact that the approved roof plan did not contain any of the structures in question, this is also an unarguable ground.

20.For the above reasons, the appeal is dismissed.

1^st to 3^rd Applicants, 5^th and 6^th Applicants, in person, present.

4^th Applicant, represented by Ms Ho Sui Ping, present.