Read the full judgment text of FAMV 000078/2008 on BabelCite. This FAMV judgment was delivered on 20 January 2009 before Bokhary PJ, Chan PJ, Ribeiro PJ.
Court of Final Appeal – leave to appeal – whether leave as of right under section 22(1)(a) of the Court of Final Appeal Ordinance (Cap 484) – applicants are property developers seeking to redevelop properties they do not own in Wang Fung Terrace – two 39-storey and one 40-storey residential blocks proposed – Building Authority refused approval – Buildings Appeal Tribunal upheld refusal principally on ground of traffic danger at junction of Wang Fung Road and Tai Hang Road under s.16(1)(h) of the Buildings Ordinance – judicial review dismissed by Saunders J and Court of Appeal – whether the second limb of s.22(1)(a) (claim or question to or respecting property of the value of $1,000,000 or more) is satisfied – proper construction of the 'as of right' provision – whether the value of the property or the value of the claim is the relevant criterion – Commonwealth authorities diverge – Meghji Lakhamshi & Brothers v Furniture Workshop (value of property) contrasted with Oertel v Crocker, Re Bateman Television, Beard v Perpetual Trustee (value of claim or interest) – Privy Council context of uniform legal development does not apply to Hong Kong's Court of Final Appeal – narrow construction adopted consistently with established approach to first limb of s.22(1)(a) per Zuliani v Veira and Cheng Lai Kwan v Nan Fung Textiles – applicants' reliance on Meghji rejected – section focuses on value of the subject-matter of the appeal, requiring a close, immediate or proximate connection – whether section 15(1) of the Buildings Ordinance deems approval where refusal is unlawful (per Heland Investment Ltd v A-G) – deemed-approval argument rejected as a dictum contrary to principle and to s.15(2) – judicial review quashing order results in remittal, not deemed approval – leave as of right not available – leave under s.22(1)(b) on the Tai Hang Road access point – proper construction of s.16(1)(h) – whether BA restricted to traffic danger on the street the access opens onto – whether Mayo J's decision in Circumwealth Co Ltd v A-G is correct – 88% increase in flats and significantly increased traffic at admittedly dangerous junction – point of great general or public importance and reasonably arguable – leave granted – leave under s.22(1)(b) on the right of way point – whether a leaseholder can acquire a right of way by prescription under the doctrine of lost modern grant against another leaseholder before and after 1 July 1997 – relevant to site-area calculation under Building (Planning) Regulations – Interested Party accepts importance – leave granted – Appeal Committee: Bokhary PJ, Chan PJ and Ribeiro PJ – application for leave as of right dismissed – leave to appeal granted on two grounds under s.22(1)(b).
Legal issues: Proper construction of section 22(1)(a) – whether leave to appeal as of right is determined by the value of the property involved or the value of the claim · Whether the deemed-approval argument under section 15 of the Buildings Ordinance converts the judicial review claim into one of requisite value · Whether the Tai Hang Road access point is a point of great general or public importance under section 22(1)(b) · Whether the right of way point is a point of great general or public importance under section 22(1)(b)
Outcome: Application for leave to appeal as of right under s.22(1)(a) dismissed; leave to appeal granted on two grounds under s.22(1)(b) (the Tai Hang Road access point and the right of way point), each as a point of law of great general or public importance.
Cited by 3 cases · Cites 5 cases