Ronald Liang v. Appeal Tribunal (Buildings)

HCAL 67/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 67 OF 2008

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Before:  Hon Reyes J in Chambers

Date of Hearing:  19 August 2008

Date of Decision:  21 August 2008

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D E C I S I O N

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I.   INTRODUCTION

1.Mr. Liang is the Authorised Person for 4 development sites at 11-12 Headland Road.  On each site it is proposed to build a 3-storey single-family house over a car park. 

2.The plans for each house envisage a void space over the living-room area.  The voids will occupy between 9% and 9.9% of the Usable Floor Space (UFS) of a given house.  If the voids are included in the calculation of Gross Floor Area (GFA) of their respective houses, then each house will exceed its permitted plot ratio of 0.75.

3.Mr. Liang applied to the Building Authority for the void spaces to be excluded from the calculation of GFA under Buildings Ordinance (Cap.123) (BO) s.42(1).  The relevant submission was made on 28 March 2007.  But on 26 April 2007 the Authority rejected Mr. Liang’s plans on the ground that the void spaces in each house were “excessive”.

4.Mr. Liang appealed to the Tribunal.  By a Decision dated 10 April 2008, the Tribunal dismissed Mr. Liang’s appeal.

5.Mr. Liang now seeks leave to apply for judicial review against the latter decision.  He says that the Tribunal acted unreasonably and failed to exercise its discretion properly.  He essentially relies on 2 grounds:-

(1) That the Tribunal wrongly held that the voids did not constitute “special circumstances” (within the meaning of BO s.42(1)) rendering it desirable to exclude them from the calculation of GFA.

(2) That the Tribunal wrongly held that Mr. Liang had no legitimate expectation that the voids would be treated as a “special circumstance”.

II.  BACKGROUND

6.BO s.42 provides:-

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

(2) Every application for an exemption under this section 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.

....”

7.Building (Planning) Regulations (Cap.123 sub. leg.) (BPR) r.23(3)(a) provides that:-

“... for the purposes of regulations 19, 20, 21 and 22 [relating to site coverage and plot ratio], the gross floor area of a building shall be the area contained within the external walls of the building measured at each floor level (including any floor below the level of ground), together with the balcony of each building, which shall be calculated from the overall dimensions of the balcony (including the thickness of the sides thereof), and the thickness of the external walls of the building.”

By reason of this provision, void spaces are included in the calculation of GFA.

III. DISCUSSION

A.  Ground 1: Tribunal wrongly held voids not “special circumstances”

8.The Tribunal accepted that the Authority (or the Tribunal in reconsidering the Authority’s decision) could exempt the voids from the calculation of GFA.  But, under BO s.42(1), that could only be done, if there existed ‘special circumstances” making the exemption desirable.

9.Thus, there were 2 stages (the Tribunal thought) which a decision-maker had to go through.  First, the decision-maker had to satisfy itself of the existence of special circumstances.  Second, in light of the special circumstances, the decision-maker had to take account of “all the relevant considerations in the exercise of its discretion whether to grant the exemption in favour of the applicant”.

10.The Tribunal, while sensitive to and sympathetic with the developer’s desire to have a large void space in the living room area, did not think that the void could be treated as a special circumstance. 

11.The Tribunal stated:-

“58.   It is understandable why a developer would like to include a void in the formal sitting area or the foyer in a prestigious development like the ones in question.  In our view, it is always desirable to have houses with voids like those which have been proposed by [Mr. Liang] in this case. They would not only provide better lighting and ventilation; they would also enhance the value of the house and add on an aesthetic value to the whole development.  However, in our view, neither the voids in themselves nor those factors which make the voids become desirable would constitute to ‘special circumstances’ which would justify the Building Authority to exercise its discretion.

59.    Again, in this regard, we agree with the observation made by this Tribunal in The Peak Road Case, where the Tribunal in a similar situation found that:-

‘It is always desirable for any owner to be able to carry out works to its house so as to ensure better internal ventilation or to enhance the prestige of it by having a grander and higher entrance foyer.  There is nothing special about it.’  [emphasis added]

60.    [Mr. Liang] ... has listed out a number of reasons of why he says that the void should be excluded from the GFA calculations.  They included the assertion that the houses are located in a prestigious location and ‘it is common practice and a market need to provide spacious formal living room with high headroom to represent the prestige of this type of development, thus fulfilling the expectation of the residents.’ [emphasis added]  Further, [Mr. Liang] stated that the void served two major functions, namely, as a statement of the residents’ status and as a visual linkage between the living room and the storey above.

61.    With respect, they are only reasons of why it is desirable to have voids in the formal living area of a prestigious development like the one in question, they do not amount to ‘special circumstances’ for the exemption of GFA calculation under section 42(1) of the BO.

62.    In his closing submissions, Mr. [Johnny] Mok [SC] [appearing for Mr. Liang] submitted that the Building Authority has always treated ‘void’ as constituting ‘special circumstances’ so that he routinely exercised his discretion under section 42 of the BO to exempt ‘voids’ from GFA calculation under 23(3)(a) of the B(P)R.  He stated that the evidence of this was ‘overwhelming’ by referring us to various parts of the transcripts and the documents referred to in the hearing.

63.    We cannot agree with this view.  It is one thing to say that there existed an established practice to treat void differently from ordinary floor space by the Building Authority in that he may exempt them from the GFA calculation in appropriate cases, it is quite another to say that the Building Authority has always treated void as ‘special circumstances’ for the purposes of section 42(1) so that it would automatically require the Building Authority to exercise his discretion whenever voids are involved.  This Tribunal cannot agree with [Mr. Liang’s] submission that the existence of the void in itself makes it ‘special’ and therefore constitute to ‘special circumstances’ for the purpose of section 42(1) of the BO.”

12.In its intended judicial review, Mr. Liang proposes to make similar arguments to those summarised by the Tribunal in the passage just quoted.

13.Mr. Johnny Mok SC essentially alleges that the Tribunal ignored “overwhelming” evidence that the Authority has consistently treated voids as a “special circumstance” because they do not occupy any actual floor.  Mr. Mok submits that, if the Authority had not treated voids in themselves as constituting “special circumstances”, the Authority would have had no jurisdiction to treat voids as exempted from GFA calculations. 

14.Mr. Mok accepts that there may be debate over whether, voids being special circumstances, a given void space should be exempted depending on (say) the percentage of UFS taken up by a void and any other relevant factors.  That (Mr. Mok says) would have been a matter for the Tribunal to consider in the exercise of its discretion.  But that (Mr. Mok says) is precisely what the Tribunal did not do, since it held that there was no special circumstance justifying the exercise of any discretion. 

15.I am unable to find that the Tribunal erred in its reasoning.

16.First, I do how see how the Authority’s treatment of voids in the past is relevant to the present application.  In light of BO s.42(2) the Authority or the Tribunal (when called upon to exercise the Authority’s discretion afresh in an appeal) must consider an application on its own merits, regardless of whether exemptions have or have not previously been granted in relation to voids.  The Authority and the Tribunal are not required to take account of exemptions granted in the past.

17.Second, the Tribunal obviously did not regard the proposed void spaces here as a special circumstance in itself.  However, I see nothing irrational in this stance. 

18.The Tribunal accepted that the voids served a useful function.  But the Tribunal felt that functionality without more was insufficient to justify exempting the voids here from GFA calculations.  Something more (the Tribunal thought) than the fact that a feature was desirable was needed to merit departure from statutory provision in this particular case. 

19.Developers typically incorporate all sorts of desirable features into their plans so as to attract buyers.  It makes good sense commercially to do so.  But that commercial attractiveness would not necessarily make any given feature special in itself.  I consequently cannot regard as irrational, the view that mere attractiveness is not a special circumstance calling for relaxation in GFA calculations.

20.Mr. Mok observes that, since rejecting the March 2007 submission, the Authority in September 2007 approved a submission of nearly identical plans for the same development site.  The only difference is that in the new submission the voids occupy just below 5% of UFS.  Mr. Mok deduces from this that the Authority still has a policy of treating voids as special circumstances.  Otherwise, no exemption (Mr. Mok explains) could have been granted at all under s.42(1).

21.I do not agree that the subsequent approval by the Authority falsifies the Tribunal’s decision.  The Tribunal is not bound by what the Authority does in the exercise of a discretion.  Therefore, I do not see how the exercise by the Authority (rightly or wrongly) of a discretion to approve the new submission with 5% UFS voids logically means that the Tribunal had to regard the voids of 9% – 9.9% UFS in the March 2007 submission as a special circumstance justifying exemption from GFA calculations.  As s.42(2) states, each case must be considered on its own merits.

22.I do not think that this first ground of review is arguable.  I take this view however “overwhelming” the evidence that in the past for whatever reason voids of particular characteristics have been exempted from GFA calculations.

B.  Ground 2: Tribunal failed to take account of Mr. Liang’s legitimate expectation

23.Mr. Liang alleged that the Authority had an “established policy” of exempting void spaces from the calculation of GFA.  He contended that the policy changed in July 2007 such that a 5% UFS standard (as opposed to a 10% UFS standard) was applied by the Building Authority when considering whether to exempt a void space from GFA calculations.  But Mr. Liang said that he had not been informed about this change in policy.

24.The Tribunal found that there could be no legitimate expectation.  It held that there could have been no clear and unambiguous representation which had led Mr. Liang to act in any particular way.  By a letter dated 16 March 2007 in response to an inquiry from Mr. Liang, the Authority (the Tribunal held) “had made it abundantly clear ... that each case must be decided on its on merits”.

25.More specifically, in its 16 March 2007 the Authority had written that:-

“when considering similar application under the Buildings Ordinance, we will take into account all relevant considerations, including inter alia, the relevant town plan, the lease, the size and design of both the house and the void, the effect of the building bulk and height, the provisions of measures to prevent any possible abuse, innovative design and the views of other relevant departments.”

26.Mr. Liang now proposes to argue that, based on the Authority’s consistent practice in the past of exempting voids and the Authority’s statements in correspondence, the voids in this particular instance should have been treated as a special circumstance.  He says that past practice and the Authority’s letters gave rise to an unambiguous representation and thereby a legitimate expectation.

27.In my view, the submission is untenable. 

28.In light of BO s.42(2) and the 16 March 2007 letter, I do not see how there could have been any representation by Government that the void spaces featured in Mr. Liang’s 28 March 2007 application would automatically be treated as a special circumstance.

29.Whatever the previous practice may have been, it could not in the present situation have given rise to any expectation.  At all times, statute and the Authority made it plain that each application had to be (and would be) considered on its own merits.  I think that the Tribunal was wholly correct in the conclusion which it drew on this issue.

IV. CONCLUSION

30.In my judgement, Mr. Liang’s grounds for judicial review are untenable.  I do not believe that the Tribunal acted irrationally or failed to exercise its discretion properly.  Leave to apply for judicial review is refused.

Mr Johnny Mok, SC and Mr Raymond Ho, instructed by Messrs Lo & Lo, for the applicant