Building Authority v. Appeal Tribunal (Buildings)

HCAL 158/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 158 OF 2005

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BETWEEN

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Before: Hon Lam J in Court

Date of Hearing: 31 July 2006

Date of Judgment: 16 August 2006

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J U D G M E N T

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1.China Resources (Holdings) Company Limited [“the Applicant”] currently operates a container warehouse at Yen Chow Street, Kowloon Inland Lot No. 11011.  It planned to relocate a concrete batching plant of its associated company to this site.  For that purpose, it had to apply for approval of the necessary building works from the Building Authority.  The application was first made in October 2003.  A traffic consultant had been engaged and a traffic impact assessment report was submitted with the application.  The application was refused by the Building Authority on 2 December 2003.  For present purposes, the relevant ground for refusal as set out in a letter of that date was,

“Your proposal is unacceptable under Buildings Ordinance section 16(1)(i) in that further clarification and justification should be submitted [to] demonstrate compliance with the adverse comments from Assistant Commissioner for Transport/Urban … In this connection, I reserve my position under Buildings Ordinance section 16(1)(h).”

2.It is not necessary to set out the details of the adverse comments.  They related to traffic impact considerations as regards the site itself as well as those in the vicinity.

3.The last paragraph of that letter reads,

“In view of Assistant Commissioner for Transport/Urban’s adverse comments on various aspects and his recommendation that the application is deemed to be unacceptable under Buildings Ordinance section 16(1)(h), you are advised that a re-submission may be regarded as a fresh submission under Building (Administration) Regulation 29(3).”

4.On 23 February 2004, the Applicant resubmitted the plans with a revised traffic impact assessment report.  The Building Authority again received adverse comments from the Assistant Commissioner for Transport/Urban.  On 21 April 2004, the Building Authority refused the resubmitted application under Section 16(1)(j).  The reason given was similar to that for the earlier refusal.  The letter also ended with a paragraph similar to the one set out in Paragraph 3 above.

5.The Applicant appealed against that refusal.  On 6 September 2005, the Appeals Tribunal [“the Tribunal”] allowed the appeal.  The Tribunal gave its reasons for decision on 26 October 2005.

6.The Building Authority considered that there were errors of law in the Tribunal’s decision.  On 6 December 2005, it applied to this court for leave to apply for judicial review.  Leave was granted on 8 December 2005.

7.The judicial review was heard on 31 July 2006.  The Tribunal took a neutral stance.  The Applicant was notified about the judicial review.  It did not wish to become a party to these proceedings and looked to the Building Authority to present all relevant facts and arguments to the court.  In a letter dated 9 January 2006, the Applicant set out its position as follows,

(a) The Tribunal’s determination was correct;

(b) The Applicant did not wish to incur further legal costs in the matter;

(c) Section 16(1)(h) had never been a ground of disapproval and counsel for the Building Authority had confirmed that at the proceedings before the Tribunal.  Therefore, the Building Authority should not be entitled to argue the case based on Section 16(1)(h) in the judicial review.

8.The arguments at the judicial review revolved around a very narrow compass.  Basically, they are pure questions of construction of Section 16(1).  This is because the Tribunal decided the appeal on pure points of law without any examination of the merits of adverse comments by the Assistant Commissioner for Transport/Urban.  That in turn was due to the way in which the Applicant argued the appeal before the Tribunal.

9.The Tribunal’s reasoning can be summarized as follows,

(a) The Building Authority could not refuse to give approval under Section 16(1)(j) in April 2004 as the 2004 submission was a fresh application and Section 16(1)(i) had not been evoked in respect of that application;

(b) As the proposed building works did not involve means of access or other opening to or from any street, Section 16(1)(h) is not applicable.  Particulars concerning traffic assessment were irrelevant and unnecessary. 

10.The relevant provisions under Section 16(1) are,

“The Building Authority may refuse to give his approval of any plans of building works where, …

(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;

(j) any further particulars or other plans delivered to him, upon his refusal, under paragraph (i), to give his approval to any plans, are not to his satisfaction; …”

The applicability of section 16(1)(j)

11.In the present context, the substantive objections to the plans submitted by the Applicant in 2003 and 2004 were traffic considerations.  The Applicant contended that they should not be relevant in this judicial review since the Building Authority had not relied on Section 16(1)(h) in refusing to grant approval.

12.Mr Lam accepted that the further particulars referred to in Section 16(1)(i) and (j) must relate to matters relevant to the approval or refusal to approve of plans by the Building Authority under Sections 14 and 16 of the Building Ordinance.  Plainly, the Building Authority would be taking irrelevant consideration into account if it, for example, asks for particulars relating to the financing of the building works in a submission.

13.As mentioned, the Building Authority reserved its position regarding Section 16(1)(h) in the letters of 2 December 2003 and 21 April 2004.  However, by evoking Section 16(1)(i) and (j) respectively with reference to the adverse comments of the Assistant Commissioner for Transport/Urban, the Building Authority in effect invited the Applicant to address matters pertaining to traffic considerations.  The basis on which traffic considerations are said to be relevant in the present case is Section 16(1)(h).

14.The Applicant contended before the Tribunal and the Tribunal accepted that traffic considerations are irrelevant.  I shall deal with this point in the next section.

15.In order to decide whether Section 16(1)(j) is applicable in the present case, it is necessary to understand the nature of a refusal under Section 16(1)(i) and (j) and how the Building Authority processes an application in practice.

16.The evidence shows that when a plan is submitted to the Building Authority for approval under Section 14, it would invite comments from other relevant government departments.  Hence, in the instant case, comments were sought from the Transport Department.  When such comments were received, the Building Authority has to consider whether it is necessary to have further information from an applicant to enable it to fully consider the plans.  If further information is required, Section 16(1)(i) will be evoked.  Ex hypothesi, the plans have not been fully considered at that stage.

17.Although the reply was couched in terms of disapproval of the plans, it should not be taken as a final decision on the part of the Building Authority.  By its very nature, especially if Section 16(1)(i) and (j) are read together, a refusal based on Section 16(1)(i) should be taken as an invitation to the applicant to submit further particulars to meet the concerns specified in the letter from the Building Authority.

18.This was what happened when the Building Authority refused the Applicant’s plans in December 2003.  Hence, the last paragraph in that letter clearly envisaged that it was open to the Applicant to make a re-submission with further particulars dealing with the specific concerns raised by the Assistant Commissioner for Transport/Urban.

19.Upon a re-submission, the Building Authority will consult the relevant departments.  When the relevant departmental comments are received, the Building Authority has to consider whether it can reach a mature decision on the application or whether fairness demands another opportunity be given to the applicant to address those comments.

20.In the instant case, the Building Authority did not reach a final decision on the traffic implications regarding the Applicant’s 2004 submissions.  Instead, the Building Authority refused to grant approval pursuant to Section 16(1)(j).  Mr Lam told this court that this means a further re-submission could still be considered.  Thus, the last paragraph in the letter of 21 April 2004 advised the Applicant on further re-submission.

21.Given that the 2004 submission was in respect of the same building works as per the 2003 submission, the Building Authority regarded it as a case falling within the scope of Section 16(1)(j).  In other words, the 2004 submission was treated as “further particulars” upon a previous refusal under Section 16(1)(i).

22.The Tribunal, based on the arguments advanced by the Applicant, held that it was not open to the Building Authority to adopt such a stance as it had indicated that the 2004 re-submission would be treated as a fresh application under Building (Administration) Regulation 29(3).

23.That regulation provides,

“Without prejudice to regulation 30(3), the submission of further particulars or other plans consequent upon the refusal of the Building Authority to give his approval under section 16(1)(i) or (2)(f) of the Ordinance shall be deemed to be a fresh application in respect of the plans which the Building Authority had refused to approve.”

24.The Tribunal was of the view that a fresh application is to be contrasted with a re-submission.  In the former case, the Building Authority could not rely on Section 16(1)(j) without first rejecting the re-submission under Section 16(1)(i).

25.With respect, such a construction would render Section 16(1)(j) otiose.  A refusal under Section 16(1)(i) will inevitably trigger Regulation 29(3).  If a submission of further particulars consequent upon a refusal under Section 16(1)(i) could not be immediately dealt with under Section 16(1)(j), it is difficult to see how that sub-section could ever be applied.  All further particulars would be rejected under Section 16(1)(i).

26.That cannot be the intention of the legislature.  In my judgment, the deeming effect under Regulation 29(3) should be construed in the light of Section 16(1)(i) and (j).  A submission of further particulars that is deemed to be a fresh application under Regulation 29(3) is still “further particulars … delivered … upon … refusal under paragraph (i)” within the meaning of Section 16(1)(j).

27.The significance of the deeming effect under Regulation 29(3) is that time starts to run afresh for the purposes of calculating the time lapse leading to a deemed approval under Section 15 and Regulation 30 of the Building (Administration) Regulation.

28.Therefore, the crucial question is whether the 2004 submission can properly be regarded as further particulars delivered upon a previous refusal under Section 16(1)(i).  Considering the matter by reference to substance rather than form, comparing the 2004 submission with the 2003 submission, I do not see why the 2004 submission cannot be so regarded.

29.In the circumstances, the Building Authority was entitled to rely on Section 16(1)(j) in April 2004.  The Tribunal erred in law in holding that such course was not open.

The relevance of traffic impact considerations

30.The real issue in this case should be whether the Building Authority was entitled to take into account of traffic impact considerations.  It depends on the potential applicability of Section 16(1)(h).

31.Two elements have to be present before Section 16(1)(h) can be evoked,

(a) the building works consist of or any part thereof involves the construction, formation or laying out of any means of access or other opening to or from any street;

(b) the Building Authority is of the opinion that the place at or manner in which such means of access or other opening opens to the street is dangerous or likely to be dangerous or prejudicial to the safety or convenience of traffic using the street.

32.The Tribunal was of the view that the building works do not involve means of access or other opening to or from any street.  Hence, element (a) was absent and Section 16(1)(h) is not applicable.

33.The Building Authority contends that the proposed works involve the construction, formation or laying out, for the purposes of the concrete batching plant, of means of access or other opening to or from Yen Ming Road.  In particular, the following are regarded as means of access or opening by the Building Authority under Section 16(1)(h),

(a) the opening in the building structure forming the entrance to or exit from the plant;

(b) the proposed route on the site for emergency vehicular access from Yen Ming Road to the plant as designated on the site layout plan submitted by the Applicant.

34.In the submissions before the Tribunal, the Applicant argued that no building work was proposed to be carried out in respect of any access to the site.  In particular, there is no proposed work involving any construction, formation or laying out of any means of access or other opening to or from any street and no roadwork or change to the existing ingress or egress is involved.  The Tribunal apparently accepted that submission.

35.Regulation 5 of the Building (Planning) Regulations provides,

“(1) Every building shall be provided with means of obtaining access thereto from a street.

(2) The Building Authority may require the provision of an access lane or access road within the site of any new building.”

36.In addition, there are provisions in Regulations 5 and 6 of the Building (Private Streets and Access Roads) Regulations prescribing the minimum width for means of vehicular access.

37.Hence, the means of access from the proposed plant to Yen Ming Road is an essential part of the Applicant’s 2004 application.

38.At present, as shown by the photographs at p. 112 and 113 of the hearing bundle, the strip of land designated as emergency vehicular access in the 2004 plans is being used by the Applicant for container storage.  The existing approved plans did not provide for such vehicular access. 

39.Although I have no evidence as regards the extent to which construction or formation works are necessary in order to provide for such vehicular access in accordance with the requirements in the Building Ordinance and its subsidiary regulations, at least the strip of land has to be laid out for such purpose in terms of its designation for such usage in the approved building plans as well as actual physical arrangement for ensuring that it would not be used for other purposes.

40.Therefore, the proposed works involve the laying out of a means of access from the concrete batching plant to Yen Ming Road.  The first element in Section 16(1)(h) is satisfied.

41.The Tribunal did not consider the appeal with regard to the second element.  In the Applicant’s submissions before the Tribunal, paragraphs 43 onwards dealt with substantive merits regarding the traffic impact assessments.  Those issues were not addressed in the Tribunal’s reasons for decision.  In the light on my conclusion on the first element, the appeal should be restored before the Tribunal for determination of the remaining issues.

42.I express no view in this judgment with regard to the permissible scope to which traffic impact assessment would be relevant to the decision of the Building Authority in the light of the wordings of element (b) in Section 16(1)(h).  This is a matter that the Tribunal may have to address and if the Tribunal considers it necessary, the parties may be invited to make further submissions on the point.

Relief

43.I will grant a declaration in terms of Paragraph 1 in the Notice of Application.  As regards the applicability of Section 16(1)(h), I will limit myself to a declaration that the proposed works involve the laying out of a means of access from the concrete batching plant to Yen Ming Road.

44.I will also grant an order of certiorari quashing the decision of the Tribunal on 6 September 2005 and issue an order of mandamus directing the Tribunal to restore the appeal for determination of the remaining issues.

45.In view of the stance taken by the parties, I will make no order as to costs.

Mr Godfrey Lam, instructed by Department of Justice, for the Applicant

Respondent: Appeal Tribunal (Building), in person, (Absent)