Sky Wide Development Ltd and Others v. Building Authority

HCAL 116/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 116 OF 2008

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Before:  Hon Lam J in Court

Date of Hearing:  16 October 2008

Date of Decision:  16 October 2008

Date of Reasons for Decision:  24 October 2008

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REASONS  FOR  DECISION

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1.The 1^st to 9^th Applicants applied for leave to seek judicial review in respect of the decision of the Building Appeal Tribunal on 8 July 2008 rejecting their appeals against Building Orders made on 17 July and 30 March 2006 respectively.  Before the hearing of the leave application, the 7^th and 8^th Applicants withdrew their applications.

2.The other Applicants applied for leave to seek judicial review in respect of the Building Orders made on 28 February, 28 March and 18 July 2006 respectively.  They had not appealed to the Building Appeal Tribunal.  Their applications are therefore subject to two procedural objections: (a) the applications are seriously out of time; (b) they have not explained why they have chosen not to appeal to the Tribunal.

3.After hearing submissions, I dismissed all applications.  The following are my reasons.

4.The Building Orders were made by the Building Authority under Section 24 of the Buildings Ordinance in respect of unauthorized rooftop structures found at the respective premises of the Applicants.  There is no dispute that the structures were unauthorized and therefore under the Buildings Ordinance, the Building Authority had the power to make the orders.

5.The Applicants relied on what they regarded as a policy statement issued by the Building Authority on the priority of enforcement action to be taken to remove unauthorized structures.  In a nutshell, the Applicants said their cases did not fall within the top priority enforcement category spelt out in the policy.  They contended that the Building Authority had misinterpreted that policy statement and treated their cases as falling within that category.  As a result they were deprived of a de facto benefit of having more time to remove their structures voluntarily.

6.At the hearing, the Applicants were represented by Mr Pun.  Counsel told this court that he could not and did not argue on the basis that the Applicants had a legitimate expectation that their structures would be tolerated.  This is plainly right.  In the press release of 21 February 2003 relied on by the Applicants, the Acting Director of Buildings made it clear that enforcement action would be taken against illegal rooftop structures and it was only a matter of priority and time.

7.Further, one must not lose sight that the press release was only some comments by the Acting Director regarding certain aspects of the enforcement policy of the Building Authority and it was not meant to be comprehensive.

8.The full terms of the enforcement policy were set out in a document “Buildings Department’s Enforcement Policy against Unauthorized Building Works” published in 2001.  In that policy statement, the following was said,

“In view of the very large number of UBWs in Hong Kong, the Buildings Department takes immediate enforcement action against all new UBWs and UBWs which pose an obvious hazard to life or property.  Priority will be given to the removal of the following types of such works:-

(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 rooftop, in yards and lanes (including unauthorized site formation works) constituting a serious hazard or serious environmental nuisance, as determined by the Building Authority;

(d) major individual items;

(e) items in or on individual buildings will extensive unauthorized building works;

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

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

9.The Director of Buildings explained that policy in a press release on 30 April 2001.  It was a policy to intensify enforcement action regarding UBWs and prioritized enforcement is revised to immediate enforcement with increase of resources.  The rationale behind is that prompt and firm enforcement action was the key to producing a real long-term deterrent effect against construction of UBWs.

10.A very important point to note is that the policy is an enforcement policy, not a tolerance policy.  It was only because of the limited resource available that priority has to be accorded to certain classes of cases.  One should not construe such policy in a way to read it as an assurance to the public that no enforcement action will be taken against UBWs falling outside those categories.  Nor should one read that policy as saying that no enforcement action will be taken regarding UBWs outside those categories until all prioritized cases have been dealt with.

11.Mr Pun accepted the above analysis and he agreed that the policy on priority of enforcement action is there to provide guidance on deployment of resources.

12.The argument of the Applicants is founded upon the interpretation of the following statements in the press release of 2003.

“The Buildings Department accords top priority to the clearance of illegal rooftop structures on single staircase buildings, and aim at removing them all by 2007.

Illegal rooftop structures on single staircase buildings obstruct fire escape routes causing fire hazards to occupants.  Clearance of these structures cannot be delayed.

As the rooftop of a single staircase building may need to be used as the refuge area of occupants in case of fire, it should be clear of any obstruction at all times.”

13.The Applicants’ case is that the statements should be read together with regulation 39(2) of the Building (Planning) Regulations and The Code of Practice for the Provision of Means of Escape in case of Fire.  So read, it is contended that only rooftop structures at those single staircase buildings in which the level of the highest floor is more than 13 m above ground level or which exceed 4 storeys in height come within the category of top enforcement priority.  Thus, it is argued that the structures of the Applicants do not come within that category.

14.A fundamental question in the present context is what is the applicable policy.  As I said, the press release of 2003 only dealt with certain aspects in the enforcement policy published in 2001.  It referred to the top priority in the clearance of illegal rooftop structures in single staircase buildings.  Though the Assistant Director went on to provide some reasons for giving such task top priority, I do not think one can reasonably put forward an argument that what he said was way of qualification to the enforcement policy published in 2001.  Mr Pun invited this court to treat the 2003 press release as a revision of the 2001 policy.  Having considered the materials placed before me and the submissions of counsel, I must say this is not arguable.

15.Neither do I see any arguable basis to read down the scope of the statement of 2003 by linking it with the requirements in regulation 39(2) of the Building (Planning) Regulations and The Code of Practice for the Provision of Means of Escape in case of Fire.  In this connection, I find the following reasons given by the Buildings Appeal Tribunal in rejecting the Applicants’ appeals eminently sensible and sound.

“The words ‘single staircase building’ in the published policy contained in the press release of 21 February 2003 are descriptive term.  A building is described to be single staircase building because it has a single staircase not because whether the staircase is to continue to the roof.  Even if the staircase is not required to continue to the roof, the building will not cease to be a single staircase building.  Further, even there is no regulatory provision for the staircase to continue to the roof, residents will use that staircase leading to the roof as means of escape in case of fire.  Though fire hazards for buildings with less than four storeys are less serious than taller buildings, the said published policy is fairly and reasonably applicable to all single staircase buildings regardless of height and numbers of storeys.”

16.It can be seen from the response of the Building Authority filed in the Tribunal that it was relying on paragraph (f) in the enforcement policy of 2001, viz. items identified in buildings or groups of buildings targeted for large-scale operations.  In other words, enforcement action was taken not only because the structures of the Applicants were rooftop structures in a single staircase building constituting a serious hazard under paragraph (c) of the policy.  Thus, the reference to fire hazard was only an additional consideration for enforcement action and the statement of the Assistant Director in the 2003 press release was not directly engaged as a ground of taking enforcement actions against the Applicants.

17.On the whole, I see no reasonable arguable basis for contending that the Building Orders were issued in contravention of published policy.

18.Further, even if there were any contravention of policy, it does not necessarily follow that the Building Orders were null and void.  It has to be remembered that there is no dispute that the Applicants’ structures were UBWs and they had no legitimate expectation to retain the same. 

19.Mr Pun placed great reliance on Gransden v Secretary of State for the Environment (1985) 54 P & CR 86 at p.93-4.  Woolf J (as he then was) set out five propositions,

(a) If the power conferring statute lays down what matters are to be regarded as material, the policy cannot make a matter which is otherwise a material consideration an irrelevant consideration;

(b)    If the policy is a lawful policy, viz. it does not go beyond the proper role of a policy by seeking to do more than indicating the weight which should be given to relevant considerations, then the body determining an application must have regard to the policy;

(c) The fact that a body has to have regard to the policy does not mean that it needs necessarily to follow the policy.  However, if it is going to depart from the policy, it must give clear reasons for not doing so in order that the recipient of its decision will know why the decision is being made as an exception to the policy and the grounds upon which the decision is taken;

(d)    It is essential that the policy is properly understood by the determining body.  If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy;

(e) If proper regard is not given to the policy, then the court will quash its decision unless the situation is one of those exceptional cases where the court can be quite satisfied that the failure to have proper regard to the policy has not affected the outcome in that the decision would in any event have been the same.

20.On the facts of that case, relief was refused notwithstanding the court found the decision making body to have misapplied the policy because the court concluded that the outcome would be the same.  This is the application of proposition (e) which I shall call the ground of inevitability.

21.Mr Pun urged this court not to refuse leave on the ground of inevitability.  He cited the well known article by Lord Bingham in [1991] PL 64 and the judgment of A Cheung J in Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679.

22.With respect, having regards to the following, I do not see how it can reasonably be arguable that the Buildings Appeal Tribunal could have rationally decided that the Building Orders should have been set aside even if there were any misinterpretation of the enforcement policy as regards illegal rooftop structures in single staircase building as fire hazard,

(a) The policy is a policy on priority of enforcement necessitated by limitation in resources and NOT a policy on toleration of any UBWs, and that the ultimate goal is to clear all UBWs;

(b)    The necessary resources in question had been deployed when the Building Orders were made;

(c) To set aside the orders at this stage would cause a waste of resources in a manner that would not further the objectives of the policy;

(d)    The Applicants had no legal right or legitimate expectation to retain the UBWs.  As per the policy statement, they should have voluntarily caused the UBWs to be demolished even without any building orders and they have been given ample time to do so;

(e) As explained by the Tribunal, the UBWs in question can still properly be regarded as obstructions to fire escape even though it may be arguable (and I put it no higher than that since the Building Authority has a counter-argument) that they do not strictly fall within regulation 39(2) of the Building (Planning) Regulations;

(f) The ground relied on by the Building Authority to take enforcement action is ground (f) instead of ground (c) in the policy statement of 2001;

(g) The enforcement policy in 2001 calls for immediate enforcement action regarding high priority cases and it does not rule out enforcement actions for other cases before the completion of all high priority cases.  In the press release of 2003, the Assistant Director envisaged the removal of all high priority rooftop illegal structures by 2007.  The Building Orders were made in 2006.  By the time when the appeals were disposed of, it was July 2008.

23.Regarding the 10^th to 20^th Applicants, it is difficult to see why this court should entertain their applications to challenge Building Orders made in 2006.  They do not even bother to appeal to the Tribunal.  There is no acceptable explanation for the delay.  The fact that the structures were still there is not a good reason for this court to ignore the requirement under Order 53 Rule 4.  As in the case of the other Applicants, their applications do not have any reasonably arguable ground to sustain a judicial review.

Mr Hectar Pun & Mr Newman Lam, instructed by Messrs Chan, Lau & Wai, for the Applicants

Ms Teresa Wu, instructed by Department of Justice, for the Respondent