Emperor Hotel (HK) Ltd v. Building Authority

HCAL 36/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 36 OF 2008

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Before: Hon Reyes J in Court

Date of Hearing: 18 June 2008

Date of Decision: 24 June 2008

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D E C I S I O N

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I.   INTRODUCTION

1.Emperor seeks leave to apply for judicial review.

II.  BACKGROUND

2.On 16 October 2007 Emperor applied to the Authority for the approval of a building plan in respect of a Happy Valley residential development.

3.By letter dated 12 December 2007 the Authority refused approval.  The letter stated that the plan was disapproved under Buildings Ordinance (Cap.123) s.16(1)(d). This was because (according to the Authority) portions of the development ought to have been (but were not) included in the calculation of gross floor area. 

4.The letter also required, pursuant to BO s.16(1)(i), that Emperor provide additional information and particulars in relation to the proposed development.  BO s.16(1)(i) empowers the Authority to refuse to approve a plan where:-

“in his opinion, it is necessary for him to have further particular 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 the regulations, to enable him fully to consider such plans.”

5.Further, the letter identified certain “contraventions on non-fundamental issues”.  In this connection, it required Emperor to demonstrate compliance with specific building codes and regulations.

6.On 24 December 2007 Emperor applied to the Building Authority to approve a revised plan in relation to the proposed development.

7.On 28 December 2007 the Authority asked Emperor to provide 2 more copies of the revised plan.  Emperor did so on 31 December 2007.

8.By letter dated 22 January 2008 the Authority disapproved the revised plan.  However, the Authority did not send this 2^nd letter until 10.18 a.m. on 24 January 2008.

9.It is Emperor’s case that the second letter is of no effect.  This is because by BO s.15 the Authority is deemed to have approved a plan unless he notifies his refusal within a prescribed time. 

10.Under Building (Administration) Regulations (BAR) r.30(3)(c), in the absence of prior contrary indication, the Authority is deemed to have given his approval to plans:-

“which, having been previously submitted to the Building Authority for approval, are submitted to him again for approval, 30 days from the date on which the plans were last submitted”.

11.Emperor contends that BAR r.30(3)(c) applies here so that, the 2^nd letter having been sent more than 30 days after 24 December 2007, the revised plan must be deemed to have been approved before the 2nd letter was sent out.  If so, the 2^nd letter would be ineffective as a refusal of approval.  Emperor wrote to the Authority pointing this out.

12.But the Authority disagreed with Emperor.  The Authority contended that the operative provision was not BAR r.30(3)(c), but BAR r.29(3).  The latter 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) [relating to street works] of the Ordinance shall be deemed to be a fresh application in respect of the plans which the Building Authority had refused to approve.”

13.If the submission of the revised plan constituted a “fresh application” under BAR r.29(3), then the Authority’s position is that the deadline for sending out the 2nd disapproval letter was 60 (not 30) days from 24 December 2007.  This would be the result of applying BAR r.30(3)(a) which allows the Authority 60 days in which to consider a first-time application for approval of a building plan.

14.As a subsidiary argument, the Authority says that (insofar as applicable) any 30 day-limit should run from 31 December (when the extra copies of the revised plan were received), not 24 December 2007.

15.Emperor has appealed to the Buildings Appeal Tribunal against the Authority’s refusal.  That appeal was made without prejudice to Emperor’s present application for judicial review.  The appeal (which is supposed to consider the substance of the Authority’s grounds for refusal as well as whether the 2nd letter was ineffective) is ongoing. 

16.Emperor suggests that it would save the time and costs of a protracted appeal if Emperor’s judicial review against the validity of the 2nd letter should now proceed.  For the purposes of today, I shall assume (without necessarily accepting) that it is expedient for me to determine the question of judicial review despite the ongoing appeal.

17.Note incidentally that BAR r.30(3)(b) concerns the submission to the Authority of plans which have been ‘so extensively revised as to constitute, in the opinion of the Building Authority, a major revision of such plans”.  In such case, subject to the Authority notifying its opinion of a major revision to an applicant’s representatives within 30 days of submission, the relevant time for consideration by the Authority is 60 days.  There is no evidence in this case that the Authority considered the revised plan to be a major change from what had been submitted earlier.  I shall therefore assume that BAR r.30(3)(b) does not apply here.

III. DISCUSSION

A.  Whether deadline of 60 or 30 days

18.Mr. Ismail (appearing for Emperor) faintly suggests that the initial disapproval letter was only a refusal under BO s.16(1)(d), and did not at all involve a refusal under BO s.16(1)(i). 

19.But I think that this is untenable.  Read in context, the 1^st letter was plainly refusing permission under s.16(1)(d) (by reason of a wrong calculation); under s.16(1)(i) (by reason of a want of particulars); and for non-fundamental contraventions. 

20.Mr. Ismail then latches on to the fact that the 1st disapproval letter expressly refers to Emperor’s plan being refused under BO ss. 16(1)(d) and 16(1)(i) as well as non-fundamental contraventions.  This means (Mr. Ismail argues) that the submission of the revised plans was not consequent upon any disapproval solely under s.16(1)(i) as required to bring BAR r.29(3) into effect.

21.I also think that this argument is untenable.  Although it does not have to do so, the Authority may give several reasons for disapproving a plan.  Merely because many reasons (including s.16(1)(i)) are given by the Authority for a  disapproval cannot logically have the result that s.16(1)(i) ceases to be an operative reason.  Regulation 29(3) would still come into play.  There is nothing in the wording of r.29(3) that makes it operative if (and only if) s.16(1)(i) is the sole reason for disapproval of a plan. 

22.Mr. Ismail then says that the Authority’s position is contrary to the words “[w]ithout prejudice to regulation 30(3)” which preface r.29(3).  If the Authority is right, every submission of a revised plan following a disapproval which included (but was not restricted to) a disapproval under ss.16(1)(i) would (Mr. Ismail points out) be deemed a “fresh application”.  This would (Mr. Ismail submits) in effect “prejudice” the self-contained code of time limits found in r.30(3).

23.I am unable to accept Mr. Ismail’s submission. 

24.Consider the provision upon which Mr. Ismail seeks to rely for a 30-day time limit.  All BAR r.30(3)(c) provides is that where plans are re-submitted “having been previously submitted to the Building Authority,” the Authority will be deemed to have approved the plans unless the Authority signifies otherwise within 30 days. 

25.In actuality BAR r.30(3)(c) leaves open the question of what precisely a re-submission consists.  For example, if “further particulars” are submitted with a plan following a disapproval, BAR r.30(3)(c) says nothing about whether such constitutes a re-submission of a plan previously submitted or a fresh application for consideration of a similar (but not identical) plan.

26.BAR r.29(3) clarifies at least some of the lack of definition in r.30(3)(c) over what constitutes a plan previously submitted.  Regulation 29(3) stipulates that, where a plan has been refused because of lack of particulars, the Authority may proceed as if a fresh application has been made whether or not the more fully articulated plan subsequently submitted is substantially similar to the one previously put forward.

27.Consequently, I do not think that BAR r.30(3)(c) is contradicted (“prejudiced”) by a conclusion that, when a plan is disapproved under s.16(1)(i) among several reasons, a 60-day limit will apply because a re-submission is deemed to be a fresh application. 

28.Before me, Mr. Ismail has gone extensively into the legislative history of BAR rr. 29(3) and 30(3).  I do not repeat that history in detail here. 

29.In essence, following discussions in ExCo and LegCo, the words “Without prejudice to regulation 30(3)” were added to r.29(3).  At the same time r.30(3) was revised to provide for the present time limits of 60 and 30 days.  Before such revision, sub-paragraphs (a), (b) and (c) of r.30(3) all stipulated 28-day time limits. The amendment to r.29(3) was described in the Explanatory Note accompanying gazettal as a “minor amendment” consequential upon the simultaneous revision of the r.30(3) time limits. 

30.I have not found that legislative history to be indicative (or even arguably indicative) as to how BAR rr. 29(3) and 30(3) should be construed. 

31.The relationship between rr. 29(3) and 30(3) has in fact been previously canvassed by authority.  In Peninsula Knitters Limited HCMP No. 3788 of 1992, 28 April 1993, on similar facts Mayo J refused judicial review. 

32.In his Judgment, Mayo J said this:-

“Mr. Ismail submitted that Regulation 30(3)(c) governed the position on the August 1990 plans. It was important to note that Regulation 29(3) only referred to a ‘fresh application’ and not a fresh application.  The two were not synonymous. It could well be the case that a second or subsequent application could be regarded as being a ‘fresh application’.

The way he put it in his very helpful skeleton argument was:-

‘(d)    Regulation 30(3)(c) applies because the plans are plans submitted to the Building Authority ‘again for approval’ having been ‘previously submitted to the Building Authority for approval’.

They are not ‘plans ... submitted to the Building Authority for approval for the first time’, and ‘plans which are resubmitted for approval so extensively revised as to constitute, in the opinion of the Authority, a major revision of the plans last submitted to him’.

These resubmissions can never be ‘plans ... submitted for the first time to the Building Authority for approval’ because there can only be one ‘first time’ submission.’

He also argued that the reference to ‘other plans’ in both Regulation 29(3) and Regulation 30(3)(c) supported his contention that there was a close nexus between these Regulations and that what the legislature had contemplated was that if plans did not come within the criteria of Regulation 30(3)(a) or (b) approval had to be forthcoming within 30 days if the deeming provision was not to become operative.

This, I accept, is an attractive argument.  I do not consider that it is correct.  I accept the validity of the submission made by Mr. Bradley [for the Authority] that if this argument was correct, Regulation 29(3) would be rendered redundant.  Mr. Ismail’s answer to this was that even on this interpretation of the legislation regulation 29(3) would at least have the effect of stopping time running and it would serve some purpose.  I do not think that this is right.  The fact that reference is made in Regulation 29(3) to section 16(1)(i) and (2)(f) would suggest to me that the legislature definitely intended that the operation of Regulation 30(3)(c) was subject to Regulation 29(3).

Mr. Bradley submitted if Regulation 30(3)(c) was subject to Regulation 29(3) there was no necessity for the Building Authority to give any notice to the Applicant under Regulation 30(4) and the failure of the Authority to give any such Notice was therefore not a relevant consideration.  I accept that this is correct.”

33.Mr. Ismail says that I should treat Peninsula Knitters as persuasive (but not binding) authority.  He observes that the ExCo memos and minutes in relation to BAR rr. 29(3) and 30(3) were not available at the time when Peninsula Knitters was decided.

34.Since I have not found the ExCo memos and minutes which I have been shown to be of much help, I do not think that I can discount Mayo J’s reasoning in Peninsula Knitters on account of those historical documents. 

35.On the contrary, Mayo J’s logic seems to me as cogent now as it would have been in 1993. I respectfully adopt his reasoning without reservation. 

36.In particular, the same rhetorical question that Mayo J asked can be posed here: If Mr. Ismail is right, then what function would BAR r.29(3) serve?  As a matter of statutory construction, to give meaning to r.29(3) requires that it be read in the way the Authority has suggested.  Otherwise, r.29(3) would be otiose and I do not suppose that the Legislature could have intended to maintain a meaningless provision.

37.I remind myself that I am here only considering whether Emperor should have leave to seek judicial review.  For this purpose, I must assess whether Emperor has a reasonably arguable case. 

38.In my view, on the undisputed facts and in light of BAR r.29(3) and Peninsula Knitters, I do not think that Emperor has an arguable case that the operative time limit was 30 days.  In my judgment, it is indisputable that the 2^nd letter was within the operative time limit in BAR r.30(3)(a) of 60 days.

B.  Whether time runs from 24 or 31 December 2007

39.Given my conclusion on the 2nd letter, it is unnecessary to consider the validity of the Authority’s stance that any time limit (whether 30 or 60 days) ran from 31 (and not 24) December 2007.  This being an ex parte application in which the Authority is unrepresented, there is all the more reason to refrain from commenting on this subsidiary argument.

IV. CONCLUSION

40.Emperor has no reasonably arguable case for judicial review.  Leave to apply for judicial review is therefore refused.

Mr Anthony Ismail instructed by Messrs Fred Kan & Co, for the Applicant