Sky Wide Development Ltd and Others v. Building Authority

CACV 321/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 321 OF 2008

(ON APPEAL FROM HCAL NO. 116 OF 2008)

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Before: Hon Tang VP and Wright J in Court

Date of Hearing: 20 February 2009

Date of Judgment: 2 March 2009

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J U D G M E N T

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Hon Tang VP:

Introduction

1.The 1^st to 6^th, 9^th – 18^th and 20^th applicants (these applicants), are the registered owners of various town houses or flats of Sunderland Estate, No. 1 Hereford Road, Kowloon Tong. 

2.Their application for leave to apply for judicial review concerned:

(1) The Building Orders issued by the Building Authority (“the BA”) under section 24(1) of the Buildings Ordinance, Cap. 123 requiring the applicants to remove the unauthorized rooftop structures and reinstate the affected parts of the subject premises in accordance with the plan approved by the BA; and

(2) The orders of the Appeal Tribunal dismissing the appeals against the BA.

3.Lam J refused leave after hearing at which the putative respondent appeared at the request of the court.  On 16 December 2006, Lam J ordered that the applicants pay the costs of the putative respondent. 

The appeal

4.This is the applicants’ appeal. 

5.The subject premises consist of both town houses and apartments.  According to the approved building plans, all the town houses and apartment buildings are 4-storey buildings, and that the level of the highest floor, namely the level of the roof, is about 11.58m above ground level.

6.It is common ground that there were unauthorised rooftop structures and that under the Building Ordinance, the BA had the power to order their removal. 

7.The BA’s enforcement policy was stated in a document “Buildings Department’s Enforcement Policy against Unauthorized Building Works” published in 2001 (“the Enforcement Policy”):

“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.”

8.On 21 February 2003, the Buildings Department (“the BD”) in a press release (“the press release”) announced that clearance of illegal rooftop structures on single staircase buildings would be accorded top priority for enforcement action.

9.Although only the first 3 paragraphs of the press release are directly relevant, I re-produce the entire press release below.

“The Buildings Department accords top priority to the clearance of illegal rooftop structures on single staircase buildings, and aims 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,’ the Acting Director of Buildings, Mr Cheung Hau-wai, said today (February 21).

‘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,’ he said during a media briefing.

Since 1999, Mr Cheung said, the Buildings Department had stepped up enforcement action against illegal rooftop structures on 4,500 single staircase buildings throughout the territory reaching a rate of 700 buildings a year.

Up till the end of last year, a total of 2,956 illegal rooftop structures on 1,349 single staircase buildings had been demolished to ensure public safety.

‘The remaining illegal rooftop structures will be demolished in stages with the aim of completing the whole exercise by 2007,’ he added.

At the same time, Mr Cheung said, to contain the proliferation of illegal rooftop structures, newly erected illegal rooftop structures on all types of buildings are subject to immediate enforcement action.

Mr Cheung said that building owners had the responsibility to maintain their buildings in a safe and healthy condition and to ensure that their buildings were free from unauthorized building works, including illegal rooftop structures.

‘Building owners encountering financial difficulties in demolishing these illegal structures can apply for low interest or interest free loans under the Building Safety Loan Scheme,’ he added.”

10.The press release is not a formal document.  It is clear that neither the reference to single staircase buildings nor the description of fire hazard which may arise as a result of illegal rooftop structures was intended to be exact or comprehensive. 

11.The applicants’ case is that the enforcement action had been taken by the BA in the mistaken belief that the subject premises were single-staircase buildings within the meaning of the press release. 

12.The applicants referred to Regulation 39(2) of the Building (Planning) Regulations (“the B(P)R”) which provides that:

“(2) The main staircase of every building which exceeds 4 storeys in height shall be continued to the roof of the building unless a secondary staircase of fire escape is provided.”

Regulation 41 of the B(P)R also provides that:

“(1) Every building shall be provided with such means of escape in case of emergency as may be required by the intended use of the building.

(2) Without prejudice to paragraph (1), every building which exceeds 6 storeys in height or in which the level of the floor of the uppermost storey is more than 17 m above the level of the ground at the point of discharge of the main staircase shall, in addition to the main staircase, be provided with a second staircase as means of escape in case of emergency.”

13.Paragraph 9 of the Code of Practice for the Provision of Means of Escape in Case of Fire (“the Code”) further explains when single staircase may be permitted in buildings and when the staircase shall be continued to the roof:

“9. Buildings with a Single Staircase

9.1    Single staircases may be permitted in buildings not exceeding 6 storeys in height and the level of the floor of the uppermost storey is not more than 17 m above the level of the ground at the point of discharge of the staircase.

9.2    No building will be permitted to have a single staircase unless such building complies with the following conditions: -

(a) no room or storey of the building may be used for any occupancy other than domestic or offices, except that the ground storey may be used for the purposes of a shop or carparking space provided that the requirements for staircase enclosures in the Code of Practice for Fire Resisting Construction are complied with;

(b) adequate access should be provided at ground level to enable a rescue ladder/appliance to reach at least one window of every separate occupancy on each floor above the ground storey. Such access shall be at least:-

(i)  3 m wide in the case of a building in which the level of the highest floor is not more than 10m above ground level; and

(ii)  4.5 m wide in the case of a building in which the level of the highest floor is more than 10m above ground level.

(c) in the case of a building in which the level of the highest floor is not more than 13m above ground level the usable floor area of any storey above the ground floor should not exceed 250m²;

(d) in the case of a building in which the level of the highest floor is more than 13 m above ground level the usable floor area of any storey above the ground floor should not exceed 150 m²; and

(e) in the case of a building in which the level of the highest floor is more than 13 m above ground level:-

(i)  access to the staircase at each storey should be through a protected lobby. Such lobby should be designed as a common area and an integral part of the staircase so that it could not be readily incorporated as part of any adjacent unit(s) of accommodation;

(ii)  the staircase should be continued to the roof;

(iii) there should be available on the roof an area of flat surface for refuge of not less than 0.5m² per person based on the total population of the building above ground storey determined according to Table 1. Such flat roof should be accessible directly from the staircase, clear of any obstruction, and is so positioned that it is readily accessible for rescue purpose; and

(iv) the roof should comply with the requirements in the Code of Practice for Fire Resisting Construction.”

14.It is pertinent to note that in terms of means of escape in case of fire, the Code distinguishes between two categories of single staircase buildings.  It appears from paragraph 9.2(e) of the Code that it is those buildings in which the level of the highest floor is more than 13m (or 4 storeys) above the ground level that the roof is required to be used for rescue purpose and has to comply with certain requirements.  In other cases, the rescue method is by rescue ladder/appliance as stated in paragraph 9.2(b) of the Code.

15.The applicants submitted that since the applicants’ properties did not exceed 4 storeys or 13m in height and they were not required to have a main staircase which was continued to the roof of the building, they were not covered by the press release.

16.But it is self-evident that illegal rooftop structures are fire hazards.  They may be a danger not only to the occupants or users of the illegal rooftop structures, the extra risk of fire can also pose dangers to the occupants of the rest of the building.  Lack or blockage of a fire escape is not the only form in which a fire hazard can take.

17.I do not agree it is arguable that the press announcement and Regulation 39(2) must be read together such that single-staircase buildings must refer to single-staircase buildings not exceeding 4 storeys in height.  Indeed, para. 9.1 of the Code provides that single staircases may be permitted in buildings not exceeding 6 storeys in height, this would include single staircases for buildings under 4 storeys (hence not required to be continued to the roof) as well as buildings over 4 storeys but under 6 storeys and 17m in height.

18.The applicants relied on Building Authority v. Appeal Tribunal (Buildings), unreported, HCAL 3/2005, dated 7 November 2005.  There, the court was concerned with Antonia House on Broom Road.  Antonia House stood on Nos. 4, 6, 8, 10 and 12 Broom Road.  It was 4 storeys high, and has 2 entrances, each leading to one staircase.  One of the two staircases served Nos. 4 and 6, the other, Nos. 8, 10 and 12.  The flats on either staircase did not have direct access to the other staircase.  However, because both staircases were continued to the roof, it was possible to gain access from one staircase to the other by crossing over the roof.  The BA took enforcement action against illegal staircases on the roof of Nos. 4 and 12 Broom Road on the basis that Nos. 4, 6 and 8, and Nos. 10 and 12 were separate buildings each with one single staircase.  The Building Appeal Tribunal allowed the appeal on the basis that they were not single staircase buildings.  Chu J allowed the Buildings Authority’s appeal. She said:

“29.   In the context of the Enforcement Policy, two matters are clearly relevant and pertinent.  Firstly, it is to be noted that ‘single staircase building’ is not (statutorily) defined.   Its meaning therefore falls to be ascertained by reference to the purpose for which it was employed.  In this case, it becomes important to see the context and rationale for the term in the Enforcement Policy.

30.    Secondly, an important objective of the Enforcement Policy is to ensure adequate means of escape in case of fire or other hazards.  In this regard, paragraph 2 of the 1959 Code of Practice defines an exit route as a route by which people in any storey of a building may reach a place of safety outside the building.  This was echoed by the witness for the Authority who testified before the Tribunal that in the context of the Enforcement Policy, ‘we actually consider, in terms of a layman or an occupant, when they encounter a situation of fire, how they would react to find an escape.  In this case, when an occupant is in the typical floor he or she can only find one fire escape in his premises and that is our interpretation of a single staircase building.’”

19.The applicants pointed to the fact that in deciding whether the buildings had one staircase Chu J had taken into account both the B(P)R and the 1959 Code of Practice.  It is legitimate to look at both B(P)R and the Code in order to ascertain whether a building is a single-staircase building.  But HCAL 3/2005 is not authority that the expression “a single staircase building” in the press release referred solely to a building in which the main staircase was required to be continued to the roof.

20.Although the press release referred to the roof as a fire refuge, I do not believe it is seriously arguable that the press release was a comprehensive statement of the danger of fire hazard in the case of illegal rooftop structures.  The inhabitants of the 4-storey building might not have to use the roof as fire refuge, but it must be a matter of serious concern in the case of a single staircase building, especially one where the main stair case was not required to be continued to the roof, that the occupiers or users of the illegal roof structures should have no ready means of escape.  As Chu J said:

“30.   … an important objective of the Enforcement Policy is to ensure adequate means of escape in case of fire or other hazards.”

21.I see nothing in the press release which even remotely supports the applicants’ submission that a 4-storey building with illegal roof structures should not be accorded priority under the Enforcement Policy.  Nor can I possibly agree with the submission that, even if a 3-storey illegal rooftop structures had been built on top of a 3-storey building and there was only one staircase, it would fall outside the Press Enforcement, because the press release only applied to buildings with 4 lawful storeys only.  I have set out the press release in full to show that it is not a document designed for nice semantic analysis.

22.The learned judge said in para. 15 of his judgment:

“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.’”

With respect, I agree.

23.It is unnecessary for me to go on to deal with the other arguments advanced by Mr Denis Chang SC on behalf of the applicants.  It is unnecessary to decide, for example, whether if the BA was wrong, relief should nevertheless be refused.  I am of the clear view that the applicants’ case is wholly unarguable and will stop at that.

Costs

24.The learned judge after hearing further submissions awarded costs against the respondent.  Mr Chang submitted that the learned judge had proceeded on the basis that the normal rule under Order 62 Rule 3, namely that costs should follow the event, applied to a case where on an ex parte application for leave, the putative respondent was invited by the court to attend.  With respect, it is clear to me that that was not the learned judge’s approach. 

25.The discretion of the court in relation to costs on such applications is broad. 

26.Brooke J (as he then was) said in R v Honourable Society of the Middle Temple ex p Bullock [1996] ELR 349 at 359C:

“In the normal course of events it takes unusual circumstances for this court to award costs to a respondent successfully opposing a grant of leave.”

27.In R (on the application of Mount Cook Land Ltd) v Westminster CC [2004] 2 P & CR 22 405 at 425, Auld LJ said:

“… the court had power to award (the putative respondent) costs against the applicant, but it was sparing in its exercise of it. … Applicants, on the whole, were able to seek relief without fear, if permission was refused, of being saddled with the respondent's costs at that stage.”

28.I agree that it takes unusual circumstances for an award of costs to be made against an applicant for leave and that the court should be sparing in the exercise of such discretion.  That has been the courts approach.

29.Hartmann J (as he then was) in Cheung Wai Mei v Michael Pik-Kiu Chan, Esq, Coroner, unreported, HCAL 24/2007, dated 9 March 2007 said:

“… Although there may be occasions when the court, in the exercise of its discretion, considers that an application for leave is so frivolous, so vexatious or motivated for a tactical purpose that indicates bad faith that it should award costs, nothing of that kind can be asserted in the present case.”

30.In Lo Siu Lan and another v Hong Kong Housing Authority, unreported, CACV 378/2004, dated 1 March 2005, Ma CJHC said (at para. 3):

“3. In the judgment, in relation to costs, [Hartmann J] merely said that he had already earlier dealt with this.  I have read the parties’ note of what the Judge said about costs at the conclusion of the hearing on 14 December 2004.  He arrived at his order that there should be no order as to costs (even though he had held against the Applicants) essentially, I think, for the following reasons : -

(1) So far as that part of the hearing relating to the leave application was concerned, it was strictly speaking an ex parte one and the Respondent was therefore only present by way of an indulgence granted to it by the Court.

(2) As far as the substantive application was concerned, this was, as the Respondent correctly submitted in its written submissions, an inter partes one.  However, given the immense public interest involved in the judicial review application, the Judge was of the view that it would not be right to impose an order for costs against the Applicants.”

4.  For my part, I see nowhere that the Judge has erred in the exercise of his discretion. …”

31.It is obvious that the learned judge proceeded on the basis that costs should not be ordered against the applicants unless these are good reasons to do so.  In para. 26, he stated the reasons:

“26.   For present purposes, it suffices for me to say in the light of the following factors, notwithstanding that the application for leave has to be made ex parte under Order 53 Rule 3(2), the Applicants (apart from the 7^th and 8^th Applicants) should pay the costs of the putative Respondent.

(a) The court invited the putative respondent to attend to argue a specific point;

(b) The Applicants tried to delay the enforcement of Building Orders made more than two years ago notwithstanding they accepted that their structures were unauthorized works;

(c) The Building Authority had made it clear that enforcement action would be taken against unauthorized works and the Applicants were not able to advance any argument based on legitimate expectation;

(d) Some Applicants did not even appeal to the Buildings Appeal Tribunal;

(e) The Applicants had all the information necessary to enable them to properly assess whether the application is meritorious at the time when the application was filed;

(f)  On grounds that this court held to be fatal to the Applicants, parties had actually deployed full argument and documentary evidence at the hearing for leave application.  To that extent, the Applicants has had in effect the advantage of an early substantive hearing and failed;

(g) The attendance of the putative Respondent at the leave hearing had assisted the court in understanding the enforcement policy of the Building Authority;

(h) The putative Respondent did not conduct himself in such a manner that lead to any increase in costs in the proceedings;

(i)  In the circumstances, it is fair and just that costs should follow the event.”

32.The learned judge having exercised his discretion, I do not believe I am entitled to interfere.  I should add, however, that had the discretion been for me to exercise, with respect, I would have exercised it in exactly the same way.

33.I turn to the costs of the appeal.

34.Mr Chang submitted that costs should not follow the event.  I am not going to decide whether the correct rule should be that costs should follow the event unless there are good reasons to do otherwise or that there should be no order as to costs unless there are good reasons otherwise.  I recognize that in judicial review proceedings, even in respect of inter partes hearings, often it is inappropriate to order the unsuccessful applicant to pay costs.  But this is not such a case.  This is not a case where the applicants could say that they have made the application in the public interest (except in the limited sense that good administration is in the public interest).  Despite the eloquence of counsel, I am firmly of the view that the appeal has no merit.  I dismiss the appeal with costs, such costs be taxed if not agreed.

Hon Wright J:

35.I agree.

Mr. Denis Chang, SC, Mr. Hectar Pun & Mr. Newman Lam, instructed by Messrs Chan, Lau & Wai, for the 1^st – 6^th, 9^th – 18^th & 20^th Applicants.

Mr. Joseph Fok, SC and Ms. Teresa Wu, instructed by Department of Justice, for the Respondent.