Tung Well Investment Ltd v. Secretary for Environment, Transport and Works

LDRW 6/2004

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Railways Ordinance Application No. 6 of 2004

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JUDGMENT

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Background

1.This is an application made by the Applicant for determination of compensation payable by the Respondent as a result of disturbance caused by the closure of roads and the works associated with it (“the Construction Works”) pursuant to Item 4(a) and 4(b) of Part II of the Schedule of the Railways Ordinance, Cap. 519. (“the Ordinance”).

2.The Applicant is the principal tenant of a 4-storey shopping centre in the name of “The Elegance”, which occupies Basement 1, Street Level, Ground Level and First Floor of the building known as Sheraton Hong Kong Hotel and Towers at 20 Nathan Road, Tsim Sha Tsui, Kowloon, Hong Kong (“the Premises”).  There are altogether 61 shop units in the Premises, which are let out by the Applicant for investment purposes.  The Applicant commenced its leasing business at the Premises in 1998.

3.The Premises is situated on an “island site” surrounded by 3 streets, namely Salisbury Road to the south, Nathan Road to the west and Middle Road to the east and the north.  It is accessible either from the street level or the subway level as follows:-

Street Level

(i)    Entrance from Middle Road (the “Northern Entrance”);

(ii)     Entrance from Salisbury Road (the “Southern Entrance”); and

(iii)   Direct Entrances of Ground Floor Shops.

Subway Level

The entrance at basement connects the subway across from Nathan Road and Salisbury Road.

4.Entrances from the street level (“Subject Entrances”) are the main accesses for customers to approach the Premises.  Pedestrians, shoppers and/or potential customers usually approach the Premises via the main access roads, namely Nathan Road, Middle Road and Salisbury Road.  Although there is an underground entrance to the Premises, it is “insignificant” in the sense that it is seldom used by the public.

5.The Construction Works were occasioned by the Government’s plan to build the East Rail Extension for KCRC from Hung Hom to Tsim Sha Tsui which was scheduled to commence by Government Gazette in early 2002 and was completed at about the end of 2004 straddling a period of almost 3 years.

6.The Applicant seeks to recover the following loss and expenses:-

(a)     Loss of rental income when the Construction Works were being carried out;

(b)    Service Fee and Promotional Fee Income Loss;

(c)     Light box rental loss;

(d)    Additional signage cost; and

(e)     Extra re-partitioning cost.

7.By a consent order dated 9 October 2007, the parties agree that there be a split trial on the Respondent’s liability to pay the Applicant statutory compensations with reference to issues framed as follows:-

“(a) Whether or not parts of Nathan Road, Middle Road, Salisbury Road and/or other roads (which locations are more specifically identified in the Notices of orders made by the Respondent which were gazetted as G.N. 5514 on 31^st August 2001, G.N. 2376 on 17^th April 2002, G.N. 5238 on 27^th August 2002, G.N. 2410 on 7^th April 2003, G.N. 5819 on 20^th August 2003, G.N. 2350 on 7^th April 2004 and G.N. 5144 on 3^rd August 2004 (collectively “the G.N. Notices”), and for periods referred to in the G.N. Notices) were closed under section 22 of the Railways Ordinance, Cap. 519.

(b) Whether or not there was extinction, modification or restriction of any private right of access to the premises known as The Elegance, at Sheraton, Hong Kong Hotel and Towers, 20 Nathan Road, Tsim Sha Tsui, Kowloon, Hong Kong (“the Premises”) by reason of the road closures referred to in issue (a) above.

(c) Whether or not access to the Premises was adversely affected because of the matters referred to in Issues (a) or (b) above.

Particulars of Access to the Premises

	Locations of Access to the Premises (as shown in the attached plan showing different entrance points)	Periods when the access to the Premises was adversely affected according to the Applicant’s contention
1.	Middle Road Entrance No. 1 Access for a corridor leading to a G/F entrance facing driveway	Jan-02 to Nov-04
2.	Middle Road Entrance No. 2 Access for Shop G03	Jan-02 to Nov-04
3.	Middle Road Entrance No. 3 Access for street level arcade	Jan-02 to Nov-04
4.	Middle Road Entrance No. 4 Access for Shop G01	Jan-02 to Nov-04
5.	Middle Road Entrance No. 5 Access for 1/F arcade	Jan-02 to Nov-04
6.	Nathan Road Entrance No. 1 Access for Shop G01	Mar-02 Jul-02 to Apr-03 Jul-04 to Nov-04
7.	Nathan Road Entrance No. 2 Access for Shop G02	Mar-02 Jul-02 to Apr-03 Jul-04 to Nov-04
8.	Salisbury Road Entrance No. 1 Access for street level arcade	Mar-02 to Nov-04
9.	Salisbury Road Entrance No. 2 Access for Shop G09	Mar-02 to Nov-04
10.	Salisbury Road Entrance No. 3 Access for a corridor leading to a G/F entrance facing driveway	Mar-02 to Nov-04
11.	Salisbury Road Entrance No. 4 Access for Shop G5	Mar-02 to Nov-04
12.	Salisbury Road Entrance No. 5 Access for Shop G06	Mar-02 to Nov-04
13.	Salisbury Road Entrance No. 6 Access for Shop G08	Mar-02 to Nov-04

(d) Whether or not there was disturbance (namely the dispossession of the Applicant of the Premises or the interruption of or interference with a trade or business, whether such dispossession, interruption or interference is temporary or permanent as defined in section 2 of part I of the Schedule to the Railways Ordinance) resulting from the road closure if so determined in Issue (a) above, or extinction, modification or restriction of the private right if so determined in Issue (b) above.

(e) Whether or not the Applicant is entitled to statutory compensation under section 32 and Item 4(a) and (b) of Part II of the Schedule of the Railways Ordinance (subject to proof of loss and causation in the assessment of the compensation in a separate hearing if so determined in favour of the Applicant).”

8.The hearing before us is for the determination of the above issues, which will be referred to as Issues (a) to (e) respectively.

The Relevant Statutory Provisions

9.The following provisions of the Ordinance are relevant to the Applicant’s claim:-

Section 4

“If the Secretary proposes that a railway is to be constructed or modified, improved or extended in a way which the Secretary considers is not minor, he is to prepare or cause to be prepared a scheme for the railway that-

(a) sets out the general nature and effects of the railway;

(a)       includes a plan delineating the boundaries of the scheme showing-

(i) the land that the Government may resume under this Ordinance for or incidental to the railway;

(ii) the land in, under or over which the Government may create an easement or other permanent or temporary right under this Ordinance for or incidental to the railway and the nature of the easement or right;

(iii) the roads, foreshore or sea-bed over which the Government may exercise powers under this Ordinance for or incidental to the railway and indicate the extent to which the powers may be exercised.”

Section 22

“(1) The Secretary may, for the purposes of or incidental to the scheme, in relation to any road, Government foreshore or sea-bed described in the scheme, by order –

(a)   authorize the closure or substantial alteration of the road or part of it either permanently or temporarily.”

Section 23

“(1) Notice of an order under section 22(1) in respect of any road, foreshore or sea-bed must be-

…

(b) published-

(i) in Chinese and English in one issue of the Gazette;”

Section 31

“Except to the extent of the rights to compensation under section 32, a person does not have any right against the Government or any other person to recover money-

(b)      For any use authorized under this Ordinance; or

(c)       For any works or anything else authorized under this Ordinance.”

Section 32

“(1) The right to compensation referred to in section 31 is the right to recover from the Government for the matters set out in column 1 of Part II of the Schedule a sum assessed on the basis specified in column 2 and with regard to Part I of the Schedule, subject to-

(a)       the claim being served on the Secretary within the period specified in column 4 of Part II of the Schedule; and

(b)      the other provisions of this Ordinance.

(2)      A person described in column 3 of Part II of the Schedule has the right to recover compensation for the matters set out in column 1 to the extent suffered or incurred by him as assessed under this Ordinance.

(3)      The rights to compensation mentioned in the Schedule exist in addition to any benefit accruing to a claimant as a result of the implementation of any conditions imposed by the Chief Executive in Council under section 11(4).”

Item 4 of Column 1 of Part II of The Schedule

“(a) The closure of, or extinction, modification or restriction of a private right in respect of, a road or part of a road under section 22 of this Ordinance, so that access to any land is adversely affected.

(b) Disturbance resulting from that closure, extinction, modification or restriction.”

Issue (a)

10.Before making the present application, the Applicant had in fact submitted an application to the Lands Tribunal on 3 May 2003 under Application No. LDMR3/2003 in respect of the Construction Works, but for determination of compensation under the Roads (Works, Use and Compensation) Ordinance, Cap. 370 (“the Roads Ordinance”) and claimed that the disturbance was caused by the construction of an underpass in Salisbury Road across Chatham Road South authorized under a Government Gazette Notice No. 3011 published in 2001.

11.By an affidavit of Ho Ka Ling Clara (who was an Estate Surveyor of the Lands Department) filed by the Department of Justice dated 22 July 2003, it was denied that the road works and road closure were associated with or related to the works under the Gazette Notice 3011 published pursuant to the Roads Ordinance.  In view of the denial, the Applicant withdrew its application under the Roads Ordinance on 3 December 2003 and then submitted the present application to the Lands Tribunal on 23 April 2004 to seek for determination of compensation under the Ordinance.

12.However, the Respondent’s expert, Mr. Robert Pendleton, in his report dated 11 December 2004, suggests that the works carried out in Salisbury Road were not part of the works gazetted under the Ordinance, but under the Roads Ordinance.  The Applicant contends that it would be unreasonable, unfair, evasive and irresponsible to argue by the Respondent in this hearing that these works were in fact Road Works and not Railway Works.

13.The Applicant submits that the “closure” (in particular the closure along Salisbury Road outside the Premises) was authorized by the G.N. Notices.  It was never suggested that there were other gazette notices published in relation to the closure of roads around the Premises under the Ordinance during the relevant period.  It would be unreasonable to draw any inference that no gazette notice was published to that effect when the actual works being carried out were Railway Works and roads were actually closed for that purpose.  It would be even more absurd that, for the closure of roads for Railway construction, the Government would have published a gazette notice to close the road under the Roads Ordinance, instead of the Ordinance.  It was therefore reasonable for this Tribunal in deciding the true meaning of the G.N. Notices to look at the entire circumstances including :-

(a)     “The position” taken by the Government that the work was not Road Works; and

(b)    the construction work actually being carried out in this area was Railway Works (or at least included Railway Works);

14.It is not disputed that the closure of the roads should be ordered under section 22 of the Ordinance, and the notice of the order should be gazetted under section 23 of the Ordinance.  There is also no dispute that the G.N. Notices covered the closure of sections of Middle Road and sections of Nathan Road.  However, it is the Respondent’s case that, although it is not disputed that there were some construction works being carried out outside the Premises along Salisbury Road during the relevant period, the closure in respect of that part of the work was not authorized under the Ordinance as they were not described in the Schedule of the G.N. Notices.

15.The issue is therefore whether the closure of a part of Salisbury Road outside the Premises was authorized by the G.N. Notices.

16.The Applicant submits that it is essential to determine the scope of the affected areas by construing the closure order referred to in the Gazette Notices against the context of section 22 of the Railway Ordinance.  Further, in relation to the question of construction of the closure order, HH Judge Lam (as he then was) stated in Berwell Trading Limited v. Secretary for Transport, LDMR 6 of 2001, the following:-

“38.     ... How do one determine the areas which were affected?  The answer lies in the Plan No. HH9092A.  It shows the limits of works area.  Those defined the areas affected.  One may ask rhetorically what was the purpose of identifying such limit if it were not to show the affected areas.  I cannot think of any.  If fact, if one refers back to Section 5(a) of the Ordinance (which set out the requirements for the plan), the correlation between the rights affected and the limits of works area is abundantly clear.  That section reads as follow:

“Where the Secretary proposed to execute works ... he shall cause to be prepared a plan delineating the works area, being that area within which land many be resumed, easements or other rights in, under or over land may be created or rights affected for the purposes of or incidental to the works or the use.”

17.Thus, the Applicant contends that in defining the closure areas under the section 22 order, it would be quite wrong to construe the G.N. Notices in isolation without having regard to the Scheme and the Plans referred to in both the Scheme and the G.N. Notices.

18.The Applicant further contends that, on true construction of the Scheme, the drainage works and waterworks were works ancillary to the Railway Work, and that if roads were closed for these ancillary works within the boundary of the scheme, they were also authorized closure under the G.N. Notices.  Relying on the similar analysis of Berwell Trading Limited v. Secretary for Transport, supra., and the Plan TSTE-03/2 as annexed to the Scheme, the Applicant submits that the closure of part of a road outside the Premises on Salisbury Road were closed for purpose of the Railway Works and was authorized under the G.N. Notices published pursuant to section 22 of the Ordinance.

19.Although we accept the Applicant’s argument that the plans referred to in the G.N. Notices should be considered in determining the scope of the authorized works, we do not accept the Applicant’s other contentions in respect of the scheme.  As submitted by the Respondent, the mechanism provided by the Ordinance for dealing with works such as the KCRC extension works, which provides the background to the Applicant’s claim, is broadly as follows.  Firstly a “scheme” is devised by which a proposal to build, extend or modify a railway is formulated in a form that sets out its general nature.  A plan is prepared to show the boundaries of the scheme within which land may be resumed or other rights may be created (section 4 of the Ordinance).

20.The scheme is gazetted and is open for objection from persons interested (section 10 of the Ordinance).  Following that process, the scheme may be authorized (section 11 of the Ordinance).  Once the scheme has been authorized then it will be necessary from time to time for specific parcels of land within the scheme boundary to be closed for the physical execution of the works.  This is the process described at sections 16 to 19 of the Ordinance in the case of resumptions of land and sections 20 to 25 of the Ordinance for easements, closures of roads and the like.  Section 22 of the Ordinance is an empowering provision which provides for the Secretary to authorize, among other things, the closure of roads, or to declare the extent to which, and when, public or private rights might be extinguished modified or restricted.  Orders made under section 22 are to be notified in certain specified ways as described in section 23.  These include publication in the gazette.

21.We therefore agree with the Respondent that the ambit and extent of a road closure are not defined by the extent of work described in a scheme, and is not defined by the places where work physically occurs.  The closure is to the extent described in the gazette notification.  Since the G.N. Notices and the plans therein do not cover Salisbury Road, the works carried out there are not within the scope of work authorized by the G.N. Notices.

22.There is no dispute that parts of Nathan Road and Middle Road were closed under section 22 of the Railways Ordinance which locations are identified in the G.N. Notices.

23.Thus, our decision on Issue (a) is that only part of Nathan Road and Middle Road, but not Salisbury Road or other roads, were closed under section 22 of the Ordinance.

Issue (b)

24.The Applicant relies on the same analysis as in Issue (a) to suggest that the private right of access was extinguished, modified or restricted.  Issue (b) is in fact used as an alternative ground to Issue (a).  Since we rule against the Applicant on Issue (a), the same arguments raised by the Applicant for Issue (b) will also fail.

25.We agree with the Respondent that the only private right that exists in relation to a highway is that of access to the highway from the Applicant’s premises and vice versa.  That right is to be distinguished from the right of passage along the highway (a public right), or even the right to load goods across the footpath (a public right also): see Berwell Trading Limited v. Secretary for Transport, supra.  That private right exists only at the interface between the premises and the highway – this is an area which has not been affected.  The factual evidence is overwhelmingly to the effect that there was clear access to the shopping mall at all times.  No relevant private right has therefore been extinguished.

26.Thus, our decision on Issue (b) is that there was no extinction, modification or restriction of any private right of access to the Premises by reason of the road closures.

Issue (c)

27.It is the Applicant’s case that the closure caused access to the Premises adversely affected.  Referring to Stroud’s Judicial Dictionary of Words and Phrases, 4^th Ed. Vol. 1, the Applicant submits that access means “freedom of passage over” the pavement abutting the Premises.  The Applicant also relies on Berwell Trading Limited v. Secretary for Transport, supra. to suggest that “Access might be affected even though the obstruction created by the works did not occur immediately at the shop front”, and that alternative access to the Premises is not necessary a relevant consideration for the entitlement of compensation (see also Honnex Development Limited and others v. Secretary for the Environment, Transport and Works LDMR No. 3 of 2004).

28.However, we do not find the definition of “access” in Stroud’s Judicial Dictionary of any use, as the main reference there is concerning access for light under the Prescription Act, which is considered in a wholly different context. Section 3 of the Prescription Act reads as follows:

“Claim to the use of light enjoyed for 20 years

When the access and use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.”

29.We agree with H.H. Judge Lam (as he then was) in his approach in the interpretation of “access” in Berwell as follows:-

“48. The word ‘access’ was not defined under the Ordinance.  Mr. Houghton submitted that it is a question fact.  He accepted that access might be affected even though the obstruction created by the works did not occur immediately at the shop front.  This must be correct and there are indeed English authorities to that effect (see Fritz v. Hobson [1880] 14 Ch D 542; Caledonian Railway v. Walker’s Trustees [1882] 7 App Cas 259; Ching Garage v. Chingford Corporation [1961] 1 WLR 470, although they have to be read with a caveat that we are dealing with the matter in a different context).

49.     Mr. Lui agreed that this is a question of fact.  He invited me to take into account of the planter in considering the adverse effects on access.  Mr. Houghton said the Closure Order did not cover the planter.  The scheme annexed to the Plan described the works as including landscaping works.  The planter was part of the landscaping works as shown in Drawing No. HH9737A.  In view of my above decision on the scope of the Closure Order, I hold that Mr. Lui is entitled to rely on the planter as part of the affected footpaths in the second part of the Closure Order.

50.     Having visited the site and examined the photos with such knowledge, I must say I do not find the access to the Applicant’s shop being interfered with whether by the columns supporting the footbridge, the staircase or the planter.  There is ample space to enable visitors to go in and come out of the shop.  I do not think it can properly be said that access to the Applicant’s shop has become more difficult than before.  In this connection, it is necessary to distinguish between access to the shop and pedestrian flow along the shop front.  According to the New Shorter Oxford English Dictionary, the relevant meaning of the word ‘access’ in the context of access to a place is ‘coming into the presence of or into contact with; approach, entrance’.  The fact that the columns at some distance away from the shop front and the planter would cause inconvenience to the pedestrians walking along the pavement does to necessarily mean that access to the shop is affected.  In the present case, I find as a fact that the access to the shop of the Applicant was not adversely affected after the construction works have been completed.

51.     In coming to such conclusion, I consider that question purely from the access at the shop front.  I do not accept the submission of the Respondent that I should decide that there was no adverse effect because of the existence of an alternative access.  I my judgment, even if there were another access, this does not mean that the access to the shop at the main entrance was not affected.  It is a question of fact and it may depend on how people usually approach the shop.  In the present case, the shop front being the one facing the main road, I have no doubt that we are dealing with the main access to the shop there.  The so-called alternative access had been blocked up and in any event, it was adjacent to a refuse collection point.

52.     My conclusion in Paragraph 50 above is fortified by the requirement that under Item 4 of Pt II of the Schedule, compensation is only payable in respect of the extinction, modification or restriction of a private right in respect of, a road or part of a road.  In other works, there is no compensation for the extinction, modification or restriction of a public right in respect of, a road or part of a road even if that exercise affects the access to the premises adversely.  The distinction between private rights and public rights regarding access to highway was summarized in Winfield & Jolowicz on Tort , 15^th Edn. p 530:

“It is clear that the right of passage along the highway is a public right and that interference with it is remediable by an action for public, not private, nuisance. …  However, the owner of property adjoining the highway has a common law right of access to the highway which is a private right remediable by an action of private nuisance, so that anything which prevents his access (as opposed to making it less convenient for his purposes) enables the recovery of at least nominal damages.”

53.     In AG v. Conservators of Thames [1862] 1 H&M 1, Page Wood VC said,

“Independently of the authorities, it appears to me quite clear that the right of a man step from his own land on to a highway is something quite different from the public right of using the highway. …[On the facts of the case] But, in truth, the access is not blocked up.  The wharf will not be as readily and easily approached, and perhaps not at all by the same route; but that is a mere interruption to the navigation of the river which they enjoy in common with the public, and not as part of their special right of access.

54.     This dicta has since been cited by Lord Caims in Lyon v. Fishmongers’ Co. [1876] 1 App Cas 662, Fry J in Fritz v Hobson [1880] 14 Ch D 542, Buckley J in W.H. Chaplin v. Westminster Corporation [1901] 2 Ch 329 and Lord Templeman in Tate & Lyle v. GLC [1983] 2 AC 509.  I would also quote from Buckley J in the Chaplin case, at p.334 of the judgment:

“A person who owns premises abutting on a highway enjoys as a private right the right of stepping from his own premises on to the highway, and if any obstruction be placed in his doorway, or gateway, or, if it be a river, at the edge of his wharf, so as to prevent him from obtaining access from his own premises to the highway, that obstruction would be an interference with a private right.  But immediately that he has stepped on to the highway, and is using the highway, what he is using is not a private right, but a public right.””

30.Thus, whether an access is adversely or is not adverselyaffected is a matter of fact for the determination of this Tribunal.  The Applicant contends that an access to the Premises was adversely affectedwhen

(a)     it was reduced to an unreasonable width; or

(b)    the obstruction  hindered customers from resorting to the Premises for business purposes.

31.The Applicant alleges that in the course of the Construction Works, the direct access to the Premises was diverted and severely curtailed.  As a consequence, the entire network of accessibility to the Premises was derailed so that the access to the Premises was adversely affected and the business of the Applicant was thus seriously jeopardized.  Although part of the passage left for access to the Premises was as wide as 2 m, some other parts of the passage left for access to the Premises was less than 1 m.  The pavement serving the Premises were, therefore, not spacious enough to accommodate the desirable flow of pedestrian along the roads during the affected period.

32.The Applicant also submits that in determining to what extent an access is or is not adversely affected, the Tribunal should not apply an arbitrary judgment, but should rely on the standard of minimum width of pavement based on:

(a)     standard in Hong Kong Planning Standards and Guidelines (“HKPSG”); and

(b)    standard requirement stated in Code of Practice for Lighting Signing and Guarding of Road Works (“Code of Practice”).

33.The Respondent disagrees with the Applicant’s contentions and alleges that a reasonable width was left for access to the Premises.  The Respondent is of the view that the HKPSG and the Code of Practice are of no relevance.

34.Having considered all the evidence relied upon by the parties and their submissions, we are of the view that the evidence does not support the Applicant’s contention that the access to the Premises was adversely affected.

35.First of all, we agree with the Respondent that the Applicant’s factual witness, Mr. Fok, who has repeated almost verbatim the statement given by Ms. Lo, gave evidence mainly on the general disruption in the Tsim Sha Tsui district, and perhaps in particular in regard to traffic disruption.  This is of no relevance at all to the question before us, namely whether there was a diminution in the pedestrian access to the Premises itself.  The production of photographs and diagrams by the Applicant’s expert, Mr. Koh, does not help, as he has no personal knowledge of any of the details contained in those photographs, and could not identify by whom they were taken or, for the most part, when they were taken.  The fact that he has been given photographs by somebody with dates allocated to them does little to improve the quality of this evidence.

36.The Respondent, on the other hand, called 3 factual witnesses, all of whom were responsible for inspecting and recording the work in the context of maintenance of pedestrian traffic flow as it was carried out from time to time.  The contemporaneous records are exhibited to their statements and speak for themselves in large part.  As was clear from their oral evidence, inspections took place weekly in the earlier part of the work and bi-weekly in the later part.   The Applicant only challenges that these were “snapshots” taken at those intervals and that the witnesses were not able to say what may have happened on-site in between the particular dates on which inspections took place.

37.However, the Applicant’s photographs are also “snapshots”.  Even though they can be viewed together with the Respondent’s photographs as submitted by the Applicant, they are still spaced out in time.  Paragraph 4(2) of Part I of the Schedule to the Ordinance provides that “No disturbance payment is payable for any interference with a trade or business if the interference does not last for more than 14 days.”  The Applicant simply fails to adduce such evidence that can prove disturbance lasting for more than 14 days.  The main disturbance relied on by the Applicant is that some parts of the passage left for access to the Premises had a width of less than 1 m.  However, from the photographs, it seems that such disturbance, if any, could just be temporary, as they were caused by some temporary structures.  There is no proof that they lasted for more than 14 days.

38.Moreover, the Applicant relies on the aforesaid guidelines to provide for the context within which the requirement of a reasonable width for access can be considered.  However, it is difficult to understand how these guidelines may be relevant when the standard provision of a passageway under the guidelines is 4.5 m width, which is probably greater than the width of the pavement even when no road works are being undertaken.  We accept the evidence as stated in the reports of the Respondent’s expert witness, Mr. Lam, who did not give oral evidence, that those guidelines are related to forward planning; development control; plan implementation; and improving quality of life.  None of those are applicable to the circumstances of these road works.

39.Mr. Lam also states in his reports that KCRC was requested generally to maintain a minimum footway width of 2 m, or 1.5 m in some critical locations for a short period of time where maintaining a 2 m wide footway was physically impossible.  Thus, there should not be any assumption that a footway of less than 1 m would be maintained for longer than 14 days.

40.As to the 2^nd limb of the Applicant’s contention that an access to the Premises was adversely affected, i.e. where obstruction hindered customers from resorting to the Premises for business purposes, there is simply no evidence to support that contention at all.

41.Thus, we are not satisfied that the Applicant has discharged the burden of proving any disturbance that can be compensated under the Ordinance.  Our decision on Issue (c) is that access to the Premises was not adversely affected because of the matters referred to in Issue (a) or (b).

Issue (d)

42.The business of the Applicant is in real estate investment, and its major source of income is rental.  The Applicant submits that it was bound to suffer loss from the interference with its trade and business if the access to the Premises was insufficient and affecting the business of the retailers and their ability to pay rent.  However, as we have decided that access to the Premises was not adversely affected as a result of the closure of roads, there would not be such loss suffered by the Applicant.

43.Thus, our decision on Issue (d) is that there was no disturbance resulting from the road closure.

Issue (e)

44.It is common ground between the parties that the Ordinance provides an exclusive source of the right to compensation for works of this nature.  Compensation is available to property owners in circumstances in which public works such as those involved in this case are undertaken and which cause a specified degree of disturbance to such property owners.  To come within the Ordinance, the following have to be established by the Applicant:-

(a) the closure of a road or part of a road; or

(b) the extinction, modification or restriction of a private right in respect of a road or part of a road; and

(c) those matters were caused by Section 22 of the Ordinance; and

(d) because of these matters, access to any land is adversely affected.

45.Issues (a) to (d) are in fact formulated to establish whether the Applicant is entitled to compensation by considering the above factors.  In view of our decisions on Issues (a) to (d) above, it is clear that the Applicant fails to establish that it is entitled to compensation under the Ordinance.

46.Thus, our decision on Issue (e) is that the Applicant is not entitled to statutory compensation under section 32 and Item 4(a) and (b) of Part II of the Schedule of the Ordinance.

Conclusion

47.Since the Applicant fails on all the above issues, we dismiss the application herein and make an order nisi that the Applicant do pay the costs of the application to the Respondent with certificate for counsel to be taxed on High Court Scale if not agreed.  If there is no further application on costs within the next 14 days, the costs order nisi shall become absolute.

Mr. Simon K.M. LUI, instructed by M/S Woo, Kwan, Lee & Lo, for the Applicant

Mr. Anthony HOUGHTON, SC, instructed by the Department of Justice, for the Respondent