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DCMP 2903/2008
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 2903 OF 2008
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Between
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Building Authority |
Applicant |
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and |
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Cyber Trade Trading Limited
(Owner of 2nd Upper Floor and Roof, No. 27 Fuk Lo Tsun Road, Kowloon on Lot No. N.K.1. L2753) |
Respondent |
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Coram: H.H. Judge Chow
Hearing date : 20th February, 13th, 18th, 26th March and 6th May, 2009
Date of handing down Decision : 25th May 2009
Decision
1.This is the application by the Defendant to suspend and terminate the closure order (made on 13 March 2009) relating to the structures on the roof, flat roof of the 2nd upper floor and roof of the staircase of No. 27, Fuk Lo Tsun Road, Kowloon (“the Premises”).
2.On 20 February 2009, the Applicant applied to this Court for a closure order of the Premises. On that day, the Respondent was represented by a Madam Siu Fung Kuen. The hearing was adjourned to 13 March, 2009 for argument. On 13 March, 2009, Madam Siu Fung Kuen did not appear in Court. In her absence, this Court made a closure order of the Premises. On 16 March 2009, the Respondent took out a summons to make the present application.
The application for closure order
3.The application to this Court for a closure order of the Premises commenced on 30 October 2008, pursuant to section 27(1)(a)(ii) of the Building Ordinance (“The Ordinance”). This is supported by the affirmation of Mr. Ho Kwok-chu, a building surveyor. The contents of the affirmation to support the application are set out as follows:-
“1. I am authorized by the Director of Buildings under section 2(2) of the Building’s Ordinance to carry out and exercise the duties imposed upon and the powers granted to the Building Authority under section 27 of the Building’s Ordinance.
2. In my opinion the building known as the unauthorized structures on the Roof, Flat Roof of 2nd Floor and Roof of Staircase of No. 27 Fuk Lo Tsun Road, Kowloon should be closed in order that the demolition work can be carried out without damages to the occupiers or to the public.”
4.There is also the following affirmation of the posting of order under section 27(2) and inspection required under section 24(3) of the Ordinance:-
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I, |
LAU Ka-lee, Carrie
(Name) |
Survey Officer
(Rank) |
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of the Buildings Department do solemnly, sincerely and truly affirm and say as follows:-
(i) I did on the 20th day of August 2008 , post upon a conspicuous part of the building known as the unauthorized structures on the Roof, Flat Roof of 2nd Upper Floor and Roof of Staircase of No. 27 Fuk Lo Tsun Road, Kowloon
a copy of the notice of intention to apply for a Closure Order, of which notice the documents marked (A) and (B) annexed hereto are true copies.
(ii) I did on the 13th day of November 2008 , carry out an inspection to the above mentioned premises and note that the order under section 24 served on the 21st day of May 2008 , has not been complied with.”
5.Section 27 of the Ordinance provides:-
“(1) Upon the application of –
(a) the Building Authority, where he is of the opinion that-
(i) …….
(ii) any building should be closed in order to enable any works, which he is empowered to carry out or cause to be carried out under this Part, to be carried out without danger to the occupiers or to the public…..
the District court shall on being satisfied that notice has been given in accordance with the provision of subsection (2) make a closure order;
(2) (a) Not less than 7 days’ notice of intention to apply for a Closure Order shall be given by the person making such application by posting a copy of such notice upon a conspicuous part of the building to be affected, and upon being so posted such notice shall be deemed to be notice to all persons of such intention.”
(Underlines added)
Section 27(1) enjoins this Court to make a closure order when a notice has been given under section 27(2): see the Director of Buildings v Yiu Chuen Wai (HCMP 1312/2008). When section 27(1) and (ii) and section 27(2) have been complied with, this Court has no discretion but to make a closure order. The Respondent did not make any dispute that the notice required under section 27(2) had been duly given.
The Demolition Order
6.There is an affirmation in the court file in respect of the posting of an order (“the Demolition Order”) made under section24 of the Ordinance. It reads:-
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I, |
LAU Ka-lee, Carrie
(Name) |
Survey Officer
(Rank) |
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of the Buildings Department do solemnly, sincerely and truly affirm and say as follows:-
I did on the 21st day of May 2008 , post upon a conspicuous part of the building known as the unauthorized structures on the Roof, Flat Roof of 2nd Upper Floor and Roof of Staircase of No. 27 Fuk Lo Tsun Road, Kowloon
a copy of Order under section 24 to require the demolition and removal of the unauthorized building works at the above mentioned premises and reinstatement of the affected areas, of which order the document marked (C) annexed hereto is a true copy;”
7.The document marked (C) under section 24 reads:-
“Owner(s) of 2nd Upper Floor & Roof, No. 27 Fuk Lo Tsun Road, Kowloon on (Lot Number) N.K.I.L. 2753
It has been brought to my attention that the following building works have been carried out in or at the above premises:
(i) structures erected at the roof, flat roof and staircase.
2. For the said building works:
(a) The building works at item (i) has been carried out without having first obtained from me the approval of building plans and consent for the commencement of such building works required by section 14 of the Buildings Ordinance.
3. In exercise of the powers vested in me under section 24(1) of the Buildings Ordinance, I hereby order you to:-
(a) demolish the said building works described under item (i) above; and
(b) reinstate the affected part(s) to the satisfaction of the Building Authority.
Adequate precautionary measures to ensure public safety should be provided prior to and during the course of works.
4. You are required under the Buildings Ordinance to appoint a Registered General Building Contractor or Registered Specialist Contractor in the demolition category to carry out the works in paragraph 3 above, and an Authorized Person or a Registered Structural Engineer to advise on and ensure that the necessary safety measures are provided.
5. You are required to commence the works ordered by me in paragraph 3 above within 90 days and complete such works within 120 days of the date of this order, all to the satisfaction of the Building Authority.”
Reasons for opposing the application for a closure order
8.According to the letter dated 10 November 2008 the reasons for opposing the application for a closure order in respect of the Premises are:-
(a) the building in question was constructed before the War, and has a building age of 55 years or more. When being demolished, it may adversely affected the main structure of 1/F and 2/F; and
(b) the owners of 1/F and 2/F object to partially demolish the building.
9.The Demolition Order was made in May 2008. The grounds of objection can only be used to oppose the Demolition Order. They cannot be used to oppose the Closure Order. If the Respondent had intended to oppose the Demolition Order, it should have appealed against that Order in accordance with the appeal procedures set out under section VI of the Ordinance. No such appeal has been made. As a result the Demolition Order remains valid.
10.The Respondent set out in the statement of Choy Bing Wing (the Respondent’s director) various reasons to object to the Demolition Order on the ground that it is void and has no legal effect. Unless the Demolition Order is declared void in accordance with the proper legal procedures, it stands as a valid order. Up to the time the Closure Order was made, no steps had been taken to cause the Demolition Order to be declared a nullity. When a notice had been duly served under section 27 (2), this Court was enjoined to make and did make the Closure Order.
11.The arguments of the Respondent are wholly without merit. I therefore dismiss its application.
Costs
12.I make an order nisi for costs, to be made absolute in 14 days’ time, that the Respondent do pay costs of these proceedings (from the time it joined in these proceedings, and including this application), to be taxed, if not agreed.
The Applicant: represented by Mr. Brian Leu of Department of Justice.
The Respondent: represented by Mr. Choy Bing Wing, Director of Respondent.
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