Building Authority v. Appeal Tribunal (Buildings)

HCAL 47/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 47 OF 2009

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BETWEEN

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Before: Hon Andrew Cheung J in Court

Date of Hearing: 25 February 2010

Date of Judgment: 12 March 2010

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J U D G M E N T

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Issue

1.This application for judicial review, brought by the Building Authority, raises a question of construction about the scope of application of regulation 41 of the Building (Planning) Regulations (Cap 123F) concerning means of escape.

Facts

2.For reasons that will become apparent, I can be brief with the facts. The matter arose out of a building order issued by the Building Authority in 2006 pursuant to section 24(1) of the Buildings Ordinance (Cap 123). It replaced an earlier order issued in 2002, which had not been complied with. The building orders were directed at a structure constructed underneath a staircase on the ground floor of a building known as No 10, Shek Kit Mei Street, Kowloon. The staircase discharged through a metal exit gate into the street. The hollow underneath the staircase was enclosed with two metal sliding doors at the front facing the street and a metal panel at the side to form the enclosure. The metal sliding doors of the enclosure were linked with the metal exit gate of the building, and were opened by sliding them towards the metal exit gate and across the passageway through the metal exit gate. The enclosure opened into the landing of the ground floor of the building facing Shek Kit Mei Street. Until 2007, the enclosure had been used by a relative of the owner of the relevant premises to store newspapers and magazines. Thereafter, the enclosure was not used for storage and was simply left vacant.

3.It is common ground that the enclosure did not involve the structure of the building and was therefore, prima facie, within the exemption in section 41(3) of the Buildings Ordinance:

“Building works other than drainage works, ground investigation in the scheduled areas or site formation works not involving the structure of any building may be carried out in any building without application to or approval from the Building Authority:

Provided that nothing in this subsection shall permit any building works to be carried out in contravention of any regulation.”

4.However, the Building Authority took the view that the enclosure was objectionable for contravention of regulation 41(1) of the Regulations:

“41.  Means of escape

(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.”

5.The Building Authority therefore issued the section 24 order, requiring the owner of the relevant premises to remove the enclosure. The building order, issued in 2006, replaced the earlier building order, which had proceeded on the (erroneous) basis that the enclosure involved the structure of the building.

6.Like the previous building order, the new building order was not complied with by the owner. Moreover, on 20 July 2006, the owner filed a notice of appeal against the building order on various grounds.

7.The Appeal Tribunal constituted under section 48 of the Buildings Ordinanceto hear the appeal heard it on 9 December 2008. By its reasons dated 29 January 2009, the Appeal Tribunal allowed the owner’s appeal, both on a point of law and on the facts, and set aside the building order. As regards the point of law, this is what the Appeal Tribunal said:

“13.  As a matter of pure and literal construction/interpretation of that section [ie regulation 41(1)], it is difficult to see how it can possibly be contravened by the erection and the existence of the said enclosure after the construction of the said building had been completed.  The building plans and design of the said building (which provided for ‘a means of escape in case of emergency’, i.e. the staircase) were submitted for the approval of the Building Authority.  Presumably, the Building Authority, being satisfied with the said plans and design, must have granted such approval and the said building must have been constructed in accordance with these approved plans.  At that stage, it seems to us that section 41(1) of the Building (Planning) Regulations had already been fully complied with because the means of escape as required by that section had been provided for.  Even if we were then to proceed upon the assumption that this ‘means of escape’ was subsequently blocked/obstructed or its use somehow ‘compromised’ by the said enclosure, the fact of compliance with the said section remains unchanged.  Under such circumstances, the worst that could be said of the said enclosure is that it may well be, depending on the circumstances of the case, in breach of some other law or regulation or the provisions of a relevant Deed of Mutual Covenant, but it would not be in breach of section 41(1) of the Building (Planning) Regulations.  This would be enough to dispose of the present appeal because since the said enclosure does not, as a matter of law, contravene section 41 (1) of the Building (Planning) Regulations, this appeal must be allowed.”  (original emphasis)

8.A moment’s reflection would reveal that the Appeal Tribunal’s construction of regulation 41(1) has ramifications. In those circumstances, the Building Authority commenced the present proceedings, seeking an order of certiorari to remove into the High Court and quash the decision of the Appeal Tribunal and to restore the relevant building order, as well as declarations about the correct interpretation of regulation 41(1).

9.The Appeal Tribunal has, quite properly, adopted a neutral stance in the application. The owner has throughout acted in person and has taken no active part in contesting the present application for judicial review as an interested party. In those circumstances, the Court has appointed Mr Alexander Stock of counsel, to act as amicus curiae, in the light of the significance of the construction point involved.

Challenge has become partly academic

10.Originally, the Building Authority challenged the decision of the Appeal Tribunal on both fronts, that is to say, on the construction point about regulation 41(1), and on the facts and merits of the case (based on Wednesbury unreasonableness). However, shortly before the substantive hearing, it became apparent that the owner had substantially removed the enclosure, and according to the Building Authority, in those circumstances, even if the building order had not been set aside by the Appeal Tribunal, the Building Authority would no longer be minded to take further enforcement action on the same.

11.In other words, in a sense, the present application for judicial review has become academic. However, both Ms Eva Sit for the Building Authority and Mr Stock submit, and the Court accepts, that the proper construction of regulation 41(1) of the Regulations is a matter of some general importance. The issue has been properly raised by the present application for judicial review, which should be dealt with notwithstanding the latest development. This is consistent with the general approach of the court in this type of situation: see Leung v Secretary for Justice [2006] 4 HKLRD 211, 224-231, paras 24-32; Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, 472 to 476, paras 20 to 21 (however, paragraph 20(1) in Chit Fai has to be modified in the light of the observations in paragraph 28(8) in Leung).

12.On the other hand, I do not find sufficient exceptional circumstances to justify the Court dealing with the second ground on which the present challenge against the decision of the Appeal Tribunal is based, namely Wednesbury unreasonableness. This ground turns on the facts and substantive merits of the building order in question. The arguments are fact-sensitive and peculiar to the facts of the present case. In view of the latest development, the dispute in this regard has become academic, and there is simply insufficient justification for the Court to go into the matter, sitting in its supervisory jurisdiction.

13.In those circumstances, like what happened at the substantive hearing, this judgment will only deal with the question of construction about regulation 41(1).

Proper construction

14.Regulation 41(1) is found amongst the Building (Planning) Regulations. The Regulations are made pursuant to section 38 of the Ordinance. Section 38 authorises the Secretary for Development to make regulations to provide for various matters. Amongst other things, section 38(1)(c) provides:

“(1)  The Secretary may by regulation provide for –

…

(c)  planning and design of buildings including –

(i)  streets;

(ii)  projections;

(iii)  heights, site coverage, plot ratio and open spaces including service lanes;

(iv)  lighting and ventilation;

(v)  sanitation;

(vi)  staircases and fire-escapes;

(vii)  domestics buildings;

(viii)  buildings for special uses including industrial buildings, places of public entertainment and schools;

(ix)  any sea-wall, breakwater, jetty, mole, quay, wharf or pier;

(x)  exceptional structures;

(xi)  timber yards and hoardings;

(xii)  fire fighting equipment;

(xiii)  matters relating to the installation of lifts and escalators;

(xiv)  matters relating to the provision of access facilities for telecommunications and broadcasting services; and

(xv)  matters relating to the provision of emergency vehicular access”.

15.The Regulations, first made in 1956, therefore deal with, under different parts, various matters. Part II, for instance, concerns projections, corresponding to section 38(1)(c)(ii); whereas Part III, corresponding to section 38(1)(c)(iii), deals with “heights, site coverage, plot ratio, open spaces and lanes”. Likewise, Part IV concerns “lighting and ventilation”, corresponding to section 38(1)(c)(iv). Part V in the Regulations deals with “staircases, fire escapes and access for firefighting and rescue purposes”. It is obviously based on section 38(1)(c)(vi).

16.Regulations 39 to 44 under Part V in the Regulations deal with various matters, ranging from staircases, staircases in buildings intended for separate occupation, escalators, means of escape, access staircases for firemen, fireman’s lifts, firefighting and rescue stairway, emergency vehicular access, landings, lobbies and passages, distance from staircase, to revolving doors and turnstiles. Regulation 41, which this case is about, deals specifically with means of escape. The requirement under regulation 41 is very general; however, the Building Authority has published a Code of Practice for the Provision of Means of Escape in case of Fire, which “provides guidance on compliance with [requirements for means of escape for buildings]” (Forward of the Code of Practice, 1996 revised version).

17.As Ms Sit for the Building Authority has pointed out, both “building” and “new building” are defined in section 2(1) of the Ordinance:

“building”(建築物) includes the whole, or any part, of any domestic or public building or building which is constructed or adapted for use for public entertainment, arch, bridge, cavern adapted or constructed to be used for the storage of petroleum products, chimney, cook-house, cowshed, dock, factory, garage, hangar, hoarding, latrine, matshed, office, oil storage installation, out-house, pier, shelter, shop, stable, stairs, wall, warehouse, wharf, workshop or tower, sea-wall, breakwater, jetty, mole, quay, cavern or any underground space adapted or constructed for occupation or use for any purpose including its associated access tunnels and access shafts, pylon or other similar structure supporting an aerial ropeway and such other structures as the Building Authority may by notice in the Gazette declare to be a building;

…

“new building” (新建築物) means any building hereafter erected and also any existing building of which not less than one half measured by volume is rebuilt or which is altered to such an extent as to necessitate the reconstruction of not less than one half of the superficial area of the main walls”.

There is no doubt that the same definitions apply to the Regulations: regulation 2(1).

18.Given the above definitions, it is plain that a “building” includes an “existing building” and a “new building”; or put it the other way round, there is a distinction between an existing building[1] and a “new building”. Significantly, there are provisions in the Ordinance which apply to “buildings” generally, and there are others which only apply to “new buildings”. For instance, section 21 of the Ordinance deals only with occupation of a “new building”. On the other hand, general provisions like sections 14 and 16, concerning approval and consent required for commencement of building works and grounds on which approval or consent may be refused respectively, cover all proposed building works to be done, regardless of whether what is involved is an existing building or a new building.

19.Importantly, for our present purposes, the same distinction can be seen in the Building (Planning) Regulations. While many regulations make general references to “buildings” without differentiating between existing buildings and new buildings, some regulations apply specifically to new buildings only. For instance, regulation 5(1) provides that every “building” shall be provided with means of obtaining access thereto from a street. Regulation 5(2) stipulates that the Building Authority may require “the provision of an access lane or access road within the site of any new building”. Likewise, regulation 26, concerning the minimum distance between a building and the centre line of an “existing street” in front of the building, where the width of that street is less than 4.5 metres, applies only to new buildings.

20.In those circumstances, it is of great significance that neither section 38(1)(c), which authorises the Secretary for Development to make regulations on the relevant subject matters, nor regulation 41(1), which has been made accordingly, restricts itself to “new buildings”. Instead, both provisions refer to “building(s)”, without differentiating between existing buildings and new buildings.

21.Nor is there much internal indication in the provisions themselves to suggest that they are only applicable to new buildings. It is true that regulation 41(1) refers to the provision of means of escape in case of emergency as may be required by the “intended use of the building”. Yet the word “intended” is, in my view, quite equivocal on the question of whether one is concerned with an existing building or a new building. Any ambiguity created by the use of the word “intended” is, in my view, immediately removed by the use of “building” at the end of the same sentence in regulation 41(1) which covers both an existing building and a new building.

22.From a wider perspective, the suggestion that regulation 41(1), or for that matter, the other regulations in the Building (Planning) Regulations, are only intended to apply to the construction of a new building, is problematic. The Appeal Tribunal’s conclusion that once the building plans for the new building have been approved by the Building Authority and the new building has been completed in accordance with those plans, the requirements in the Regulations are spent, would, it seems to me, make a mockery of those requirements. If a means of escape may be blocked after construction of the new building has been completed, regulation 41 does not provide any real comfort to either the Building Authority or to the occupants of the new building. The Appeal Tribunal seems to think that anything done subsequently after the completion of construction would be a matter of concern for others, rather than the Building Authority. It is true that in relation to a means of escape, the Director of Fire Services obviously has a statutory responsibility. However, it does not follow that the Building Authority need not concern itself with the same subject matter after completion of construction. That would represent too restrictive a view about the statutory role and responsibility of the Building Authority, which is concerned not only with new buildings but also with existing buildings, old buildings and dangerous buildings.

23.Moreover, the Building (Planning) Regulations are not only concerned with fire hazards. It covers many other subject matters, going outside the province of the Director of Fire Services, and the Building Authority is the natural authority in terms of supervision over those matters. I have already mentioned that the Regulations concern many subject matters including, for instance, projections, heights, site coverage, plot ratio, open spaces and lanes, lighting and ventilation. They are subject matters that fall naturally within the province of the Building Authority. The suggestion that the Regulations have no application and are indeed spent once a new building has been completed in accordance with the approved plans is, as a matter of purposive construction of the relevant provisions, unpersuasive.

24.This case does not involve any structural building work, and therefore sections 14 and 16 do not come into play. However, the difficulties created by the Appeal Tribunal’s construction would spill over to structural building works engaging sections 14 and 16. The ramifications are acutely felt when one considers the hypothetical situation of carrying out structural building works to an existing building which will effectively compromise a requirement under the Regulations. Since structural building works are involved, sections 14 and 16 of the Ordinance are engaged. However, since the structural building works are to be carried out in an existing building (instead of a new building), according to the interpretation of the Appeal Tribunal, the Building (Planning) Regulations have no application to the proposed structural building works and they cannot be disapproved under section 16(1)(a) for non-compliance with the Regulations. That cannot possibly be right, if one approaches the role of the Building Authority under the statutory scheme from a purposive perspective.

25.This difficulty can be overcome by reading regulation 41(1) as applying also to proposed building works in existing buildings if they are structural in nature. This interpretation, however, lacks textual support; nor is the distinction so drawn between structural and non-structural building works easily justifiable or understandable from the perspective of the role and responsibility of the Building Authority, on a purposive reading of the relevant provisions in the Ordinance and Regulations.

26.In my view, the interpretation of the Appeal Tribunal is not attractive. Rather, the competing construction put forward by the Building Authority accords much better with the apparent purpose of the provisions as well as the textual indications, that is to say, that regulation 41(1) applies to both structural and non-structural building works to be carried out in buildings, irrespective of whether they are new buildings or existing buildings. The same may be said about the other regulations in the Building (Planning) Regulations.

27.The Court takes comfort in the fact that the amicus has also found it impossible to make reasonable submission in support of the interpretation of the Appeal Tribunal.

Obiter observations in Mexon

28.However, it must be recognised that there are obiter observations made by the Court of Final Appeal in Mexon Holdings Ltd v Silver Bay International Ltd (2000) 3 HKCFAR 109 which suggest a contrary interpretation. Mexon was a conveyancing dispute involving an office unit in Lippo Centre. It concerned an unwilling purchaser who was desperate to extricate itself from a transaction entered into in May 1997, when the property market was at its height. Completion was due to take place in January 1998. Five months after the time limit for raising requisitions stipulated in the agreement for sale and purchase had expired, and shortly after the onset of the Asian economic crisis in October of that year, the solicitors for the purchaser raised a requisition suggesting a contravention of regulation 41(1) of the Building (Planning) Regulations by reason of some internal partitioning. Some provisions in the Code of Practice issued by the Building Authority were relied on in support of the suggestion. On the strength of this belated requisition, the purchaser eventually refused to complete the sale and purchase of the office unit. The purchaser succeeded before Findlay J, but, not surprisingly, failed before both the Court of Appeal and the Court of Final Appeal. In the courts below, arguments centred on whether the purchaser was caught by the time limitation contained in the agreement for sale and purchase, which in turn depended on whether the requisition went to the root of title and whether the purchaser had exercised due diligence in examining the title offered by the vendor. On appeal to the Court of Final Appeal, the question of whether the Code of Practice was engaged in the first place became an issue.

29.On this issue, Litton PJ, who delivered the leading judgment, said, at pp 115H/I to 116G/H:

“[The Code of Practice on Provisions of Means of Escape] is a code published by the Building Authority for the guidance of authorised persons and others responsible for the design of new buildings.  It provides guidance to the exercise of discretion by the Building Authority under s.16 of the Buildings Ordinance (Cap.123) in dealing with the approval of plans for new buildings.  The Code defines “travel distance” as the distance required to be traversed from any point in a storey of a building to the nearest fire-resisting door in the staircase enclosure.  Clause 12(b)(ii) of the Code – which Mr Leung claimed had been breached – says in effect that for a building with two or more staircases the maximum travel distance is 36 m, but when the exit route is in one direction only the maximum travel distance is 18 m.  The Code, as mentioned earlier, relates to new buildings; it would seem to have no application to internal partitioning works which do not involve the structure of the building.  Whether, by such works, a fire hazard might have been created, that is an entirely different matter: that would involve the consideration of circumstances by the Director of Fire Services, not the Building Authority. …

The Planning Regulations, as the name implies, govern the planning of buildings, before they are built.  The intended use of Lippo Tower was commercial.  There is no suggestion that the tower block, as built, had not been provided with adequate means of escape in case of fire.  The subdivision of the 33rd floor into six units in 1992, according to the architect’s certificate of 10 November 1992, did not involve the structure of the building.  It required no submission of plans for approval under s.16.  Such work was exempted from the provisions of the Ordinance: s.41(3).  Hence it is highly questionable whether the Code of Practice was engaged at all, in the context of this case.”  (original emphasis)

30.Mortimer NPJ echoed the views of Litton PJ (at pp 119J to 120C):

“As can be seen from the facts detailed by Mr Justice Litton PJ, Mr Kotewall SC can only establish a breach of reg.41(1) by reference to the Code of Practice.  His difficulty is that on its face the Code of Practice applies only to new buildings.  It sets out the Building Authority’s policy towards the approval of plans for new buildings.  This is consistent with reg.41(1) as a planning regulation providing for the means of escape required by the intended use of a building.

I am far from satisfied that the purchaser has demonstrated that reg.41(1) applies to Room 3301 in the circumstances of the case.  Indeed I would have been prepared to dismiss the appeal on this basis but for the fact that Counsel had not previously engaged this issue either at first instance or in the Court of Appeal.

As it is, I entirely agree with the judgments of Mr Justice Litton PJ and Mr Justice Bokhary PJ.  For the reasons they give I would dismiss the appeal.”  (original emphasis)

Further discussion

31.Two preliminary observations should be made. First, all the other members of the Court of Final Appeal agreed with the judgment of Litton PJ. Secondly, the observations made by Litton PJ and Mortimer NPJ were obiter ones because the appeal was eventually decided on the footing that even if the Code applied and there was a technical contravention, the resulting so-called “defect”, “went nowhere near to the root of the vendor’s title” (p 118C/D), and therefore the time limitation imposed by the agreement for sale and purchase was not overridden. In other words, the purchaser raised his requisition far too late, and it could not be entertained.

32.That being the case, the observations made by their Lordships on the scope of application of the Building (Planning) Regulations and the Code of Practice were obiter dicta. Nonetheless, they are entitled to the most careful consideration.

33.For my part, I am not at all sure that the Code of Practice has been published by the Building Authority to facilitate the preparation and submission of plans for approval under section 16 for the construction of new buildings only. Certainly, the Code does not say so in terms. Moreover, the Code contains numerous references to “building(s)” without differentiating between existing buildings and new buildings, notwithstanding the clear distinction in terms of definitions drawn by the Ordinance. Furthermore, paragraph 5.1 of the Code specifically says that the provisions in the Code apply to “all buildings” with the exception of certain domestic buildings.

34.However, I recognise that to a significant extent, this is a factual, rather that a legal, question, the answer to which may well depend on what the Building Authority, which published the Code in the first place, may wish to say. Unfortunately, there is no such evidence before the Court in these proceedings.

35.More importantly, the present case does not turn on the Code of Practice, unlike Mexon. The issue raised in the present case concerns the proper construction about the scope of application of regulation 41(1), and incidentally, about the scope of application of the other regulations, in the Building (Planning) Regulations. This is, unlike the question about the intended scope of operation of the Code of Practice, a legal, rather than a factual, question. It turns on the proper construction of the relevant provisions in the Ordinance as well as the Regulations. A purposive construction should be adopted.

36.Nonetheless, on a careful reading of Litton PJ’s judgment, his Lordship clearly tended towards the view that both the Code of Practice and the Planning Regulations are only applicable to new buildings (pp 115I and 116E/F). Importantly, the Judge said at p 116E/F that “The Planning Regulations, as the name implies, govern the planning of buildings, before they are built” (original emphasis). Mortimer NPJ made the same point in the passage quoted above.

37.It is with diffidence that I venture to suggest otherwise. It seems to me that the word “planning”, or for that matter, “design” appearing in section 38(1)(c) of the Ordinance, should be given a wide meaning. In my view, “planning”, which is undefined in the Ordinance and the Regulations, is capable of connoting both the intelligent and conscientious design of a state of affairs as well as the conscious maintenance of the same after it has been brought into being. Depending on the usage, it is not only concerned with the initial creation of a state of things, but is also concerned with its continuation and upkeep. In the present context, planning is not restricted to the submission and approval of plans for the construction of new buildings. Rather, in my view, there is here a distinction between planning on the one hand, and plans (for submission and approval purposes) on the other.

38.As mentioned, in my view, the role and responsibility of the Building Authority under the Buildings Ordinance and its subsidiary legislation are certainly not limited to approval of plans for the construction of new buildings, or to new buildings only. Nor is the Building Authority only concerned with structural building works, as opposed to non-structural ones. After all, the Building Authority’s power and responsibility cover both new buildings and existing buildings, and in particular dangerous buildings.

39.Litton PJ has, in his judgment, twice referred to the fact that the internal partitioning in Mexon involved no structural alteration and did not require any submission of plans for approval under section 16 (p 116A/B and G). His Lordship would appear to be suggesting, at least implicitly, that if submission of plans had been involved, the Planning Regulations and/or theCode of Practice might have been engaged. This, however, would only be so if on a proper construction of regulation 41(1), it applies to proposed building works to be carried out in an existing building, so long as the works are structuralin nature and require the submission of plans for approval pursuant to sections 14 and 16.

40.I have already mentioned my difficulties with this possible construction in the earlier part of this judgment. In my view, neither the wording nor the apparent purpose of the provisions in question would seem to support such a construction or distinction.

41.It was also said that any post-completion fire hazard caused by any subsequent building works “would involve the consideration of circumstances by the Director of Fire Services, not the Building Authority” (p 116A/B to B). I have already dealt with this point. It appears to overlook the fact that regulation 41(1), which indeed concerns means of escape and fire hazards, is just one amongst many regulations and requirements in the Building (Planning) Regulations. The logic of the construction under consideration will spill over to these other provisions and requirements, and render the Building (Planning) Regulations only applicable to either new buildings, or, depending on how one should read the obiter observations by their Lordships, structural building works requiring submission of plans for approval under section 16. Yet in relation to many of these other requirements and provisions, the Director of Fire Services would have no role to pay. Rather, the Building Authority would be the natural authority to oversee these matters. Nonetheless, according to the construction under consideration, the role of the Building Authority would be a restricted one, depending on whether the building in question is a new building, or (for reasons explained), whether the proposed building works are structural in nature that require the submission of plans for approval.

42.For these reasons, I do not find the distinction or restriction attractive. From a purposive construction point of view, as I say, I prefer the wider interpretation.

Conclusion

43.For all these reasons, I conclude, with respect, that regulation 41(1) of the Regulations applies to building works carried out or to be carried out in existing buildings just as it applies to those to be carried out in new buildings. No distinction is to be drawn between existing buildings and new buildings. Nor is there any relevant distinction between non-structural building works and structural building works that require the submission of plans for approval under sections 14 and 16.

44.In other words, I have come to the conclusion that the Appeal Tribunal has erred in its construction about the scope of application of regulation 41(1).

45.By way of relief, I am satisfied that the following declarations, prayed for by the Building Authority in the Form 86, are appropriate relief to be granted in the circumstances of the present case:

“2.  A declaration that the Tribunal misdirected itself in law in holding that Regulation 41(1) of the Building (Planning) Regulations does not apply to building works carried out after completion of construction of a building;

3.  A declaration that Regulation 41(1) of the Building (Planning) Regulations applies to buildings works carried out or to be carried out in existing buildings”.

The Court so declares.

46.Ms Sit does not seek costs in the circumstances of the present case. I make no order as to costs.

47.I thank counsel for their assistance.

Ms Eva Sit, instructed by the Department of Justice, for the applicant

The respondent, absent

Mr Alexander Stock, amicus curiae