Lo Yin Ming v. Appeal Tribunal (Buildings) and Another

[English translation– 英譯本]
HCAL 39/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 39 OF 2010

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BETWEEN

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HCAL 48/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 48 OF 2010

____________

BETWEEN

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(CONSOLIDATED)

Before: Hon Lam J in Court

Dates of Hearing: 30 August 2010

Date of Judgment: 20 September 2010

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J U D G M E N T

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1.The two Applicants are the owners of the property situated respectively at 2^nd Floor of No. 107 and 4^th Floor of No. 109 of Shau Kei Wan Main Street East. The Building Authority issued demolition orders against the various illegal structures in that building on 20 February 2008. In respect of the property at 2^nd Floor of No. 107 of the Main Street East, the demolition order was against the following construction works:

(a)   A projecting structure attached to the external wall at the side;

(b)   An opening formed and door erected in the external wall at the side giving access onto the projecting structure; and

(c)   A metal frame attached to the external wall at the side.

In respect of the property on 4^th Floor of No. 109 of the Main Street East, the Building Authority’s demolition order was against the following construction works:

(a)   A projecting structure attached to the external wall at the re-entrant;

(b)   An opening formed and door erected in the external wall at the re-entrant giving access onto the projecting structure; and

(c)   A flowerpot rack attached to the external wall at the front.

2.In respect of the demolition orders, the owners of the property in question appealed to the Appeal Tribunal (Buildings). When the demolition orders were issued, the owner of the property at 2^nd Floor of No. 107 of the Main Street East was Mr. Kam Cheung Kuo, and therefore the appeal against the demolition order in respect of that property was lodged by him. The Appeal Tribunal consolidated the two appeals and conducted a preliminary hearing. After the hearing, the tribunal made a “determination” on 13 January 2010 and held that the two appeals did not have merits that justified a full hearing, thereby dismissing the two appeals.

3.As a matter of fact, Mr. Kam Cheung Kuo assigned the property at 2^nd Floor, No. 107 of the Main Street East on 10 March 2008 to Miss Kam Yui, the Applicant in HCAL 48/2010.

4.The two Applicants made an application for judicial review against the determination by the Tribunal and were granted leave by the court for judicial review on 28 April and 10 May 2010 respectively.

5.The Building Authority made the demolition order pursuant to section 24 of the Buildings Ordinance which stipulates that: -

“Where any building has been erected, or where any building works or street works have been or are being carried out in contravention of any of the provisions of this Ordinance the Building Authority may by order in writing require- (a) the demolition of the building, building works, or street works; or (c) such alteration of the building, building works or street works as may be necessary to cause the same to comply with the provisions of this Ordinance, or otherwise to put an end to the contraventions thereof, and in every case specify the time within which the demolition, alteration or work required by such order shall be commenced and the time within which the same shall be completed.”

6.As far as a building is concerned, it is provided in the Ordinance that the Building Authority has the power to issue a demolition order against any building that has been constructed in contravention of any provisions in the Buildings Ordinance. If there is any factual dispute in this regard, the Building Authority and (in case of an appeal) the Appeal Tribunal should make a determination in respect of the disputed facts before establishing the legality of the demolition order. On the other hand, if the Building Authority or the Appeal Tribunal is satisfied that even if the facts put forward by the owner or the appellant are accepted, the allegation that the building is constructed in contravention of the provisions in the Buildings Ordinance cannot be refuted, then the factual disputes are not material issues. The Building Authority and the Appeal Tribunal do not have to wait for the determination on the factual issues before they can affirm the legality of the demolition order.

7.Regarding the structures against which the demolition orders were made, the Applicants and the Building Authority held substantially different views in respect of the factual circumstances under which they were constructed. The Applicants claimed that the structures were constructed at the same time as the whole building was erected and adduced evidence to support their arguments. Such evidence included the technical evidence on the analysis of the structures, given by someone whom one applicant treated as a construction engineering expert. It also included evidence, given by the occupants who moved in shortly after the issuance of the occupation permit, that the structures were already in existence when they moved in. 

8.On the other hand, the Building Authority relied on the approval plans of the building where such structures were not shown, and argued that those were constructed subsequently.

9.I have read the Determination of the Appeal Tribunal and the reasons stated therein. I am of the view that the Appeal Tribunal has not made any determination on the factual issues as to whether the relevant structures were constructed at the same time the whole building was constructed.

10.In paragraph 20 of the Determination, the Appeal Tribunal said the following:

“According to the Approved Plans of the building of which the Premises form part, the subject unauthorized building works do not exist. The subject unauthorized building works were not erected/constructed with the approval and consent of the Building Authority as required, and are therefore unauthorized. ”

But when I read this paragraph in the context of the Determination, I think that the Appeal Tribunal meant to say that the relevant construction works were not shown in the approved plans, and it did not make the factual determination that the construction works were not built at the time the building was erected.

11.I have mentioned that in respect of this factual issue, the Applicants submitted the relevant evidence to the Appeal Tribunal to prove their cases. The Appeal Tribunal not only failed to hear the relevant evidence, Counsel for the Building Authority did not even cross-examine the evidence. Nor did the Appeal Tribunal explain in the Determination as to why such evidence was not accepted. Although the Appeal Tribunal is not a judicial body, I am of the view that given the substantial discrepancies on the evidence concerning this factual issue and in accordance with the principle of fairness laid down in the case of Doody v Secretary of State for the Home Department [1994] 1 AC 531, the Appeal Tribunal should have given an account as to why the Applicants’ evidence was rejected, if that was the basis for its refusal to accept the evidence put forth by the Applicants.

12.I consider that the Appeal Tribunal’s failure to give an account shows that its determination was not based on its refusal to accept the Applicants’ case in respect of the factual issues, but was based on its acceptance of the legal argument put forth by Mr. Chan, Counsel for the Building Authority. Mr. Chan submitted that the approval plans were the documents relied upon by the Building Authority ultimately. If the relevant structures were not included in the approval plans, they were illegal structures against which the Appeal Authority could issue a demolition order pursuant to the powers under section 24 of the Ordinance. Therefore, whether those structures were constructed at the time of the construction of the whole building was unimportant.

13.The building was constructed between year 1958 and 1959. The Building Authority issued an occupation permit on 6 April 1959 after it conducted examination on the building. Therefore to decide whether the construction works in question were commenced with the prior approval of the Building Authority, the legal provisions prevailing between year 1958 and 1959 and their actual operation at that time should be considered. See section 23(b) of the Interpretation and General Clauses Ordinance.

14.The then prevailing Buildings Ordinance was the Buildings Ordinance 1955 and section 9 provided that:

Part II

Control of Building

9.(1)   Except as otherwise provided by this Ordinance, no person shall commence or carry out building works without the consent of the Building Authority in the prescribed form.  Such consent shall not be deemed–

(a)   to confer any title to land; nor

(b)   to act as a waiver of any term in any lease or licence; nor

(c)   to grant any exemption from the provisions of this Ordinance; nor

(d)   to permit any contravention of the Landlord and Tenant Ordinance.

(2)   The Building Authority may refuse his consent to the carrying out of any building works where–

(a)   he has not received–

(i)   notice in writing in the prescribed form;

(ii)   such plans as may be prescribed by regulations; and

(iii)   such other documents and information as may be so prescribed; or

(b)   the prescribed fees in respect of such plans have not been paid:

Provided that where plans are received within twelve months of the coming into operation of this Ordinance the Building Authority may give his consent to the carrying out of building works which conform to the provisions of the Buildings Ordinance.

(3)   In giving his consent to the carrying out of any building works involving the structural use of steel, concrete or timber the Building Authority may, notwithstanding the provisions of any regulations, by order in writing require the building owner, authorized architect and registered contractor to comply with such conditions as he may prescribe concerning–

(a)   maximum loads and stresses;

(b)   tests of materials;

(c)   the use of materials;

(d)   standards of workmanship; and

(e)   qualified supervision.

(4)   The Building Authority may refuse his consent to the carrying out of any building works which would result in a new building until he has received plans in respect of the whole building for such building works as in his opinion are necessary to make such building comply with the standard of structural stability and public health established from time to time by regulations.

15.The above provisions are contrasted with the more stringent provisions in section 9(1) of the Buildings (Amendment) Ordinance 1959:

9. (1) Save as otherwise provided, no person shall commence or carry out any building works or street works without having first obtained from the Building Authority –

(a) his approval in the prescribed form of documents submitted to him in accordance with the regulations; and

(b) his consent in the prescribed form for the commencement of the building works or street works shown in the approved plan.

(2) Neither the approval of any plans nor the consent to the commencement of any building works or street works shall be deemed-

(a) to confer any title to land;

(b) to act as a waiver of any term in any lease or licence; or

(c) to grant any exemption from or to permit any contravention of any of the provisions of this Ordinance or any other enactment.

16.It is provided in the 1955 Ordinance that no person shall commence building works without the prior consent of the Building Authority and that the Building Authority may refuse his consent to the carrying out of any building works where he has not received such plans prescribed by the regulations. But according to the wordings in section 9(1), the Building Authority’s consent for the commencement of the building works is not restricted to the works shown in the approved plan. In this regard, the Ordinance was amended in 1959 and such restriction was added by section 9(1)(b).

17.At the hearing before the Appeal Tribunal, Counsel for the Building Authority submitted that section 9 of the Buildings Ordinance 1955 and section 9 of the Buildings (Amendment) Ordinance 1959 had the same intent that the Building Authority’s consent for the construction plans had to be obtained prior to the commencement of the construction works. The Appeal Tribunal accepted his argument.

18.Despite the opposite view held by the Applicants, I do not consider that the above conclusion is erroneous in any regard. Apart from the primary legislation of the Buildings Ordinance 1955, there were regulations enacted under the primary legislation which were applicable at the time of the construction of this building, such as the Building (Administration) Regulations 1956. Part IV of the Regulations stipulated the detailed requirements of the plans that were to be submitted to the Building Authority prior to the commencement of the works. The provisions in Regulations 16 and Regulations 22 to 25 read as follows:

16.(1) Except as otherwise provided or exempted by the Building Authority, plans shall be submitted in triplicate in respect of every proposed building work to show clearly–

(a) a plan of every floor and roof of the building, on which shall be indicated full dimensions, thickness of walls, the positions of all windows, water-closets, urinals, water­-storage tanks, baths. wash-basins, sinks and other sani­tary fittings and the intended uses of the several parts of the building;

(b) all elevations of the building;

(c) one or more sections to indicate the foundations, the levels of the site and the lowest floor of the building, the height of the building, the clear height of every storey, the positions of windows and the floor and roof levels of any adjoining or adjacent building.

(d) the levels of adjacent streets in relation to a known datum and to the levels of the site and the building;

(e) the width of any streets adjacent to the site;

(f) a foundation plan, showing sizes and positions of foundations;

(g) a drainage plan to indicate sizes and depths of drains, connexions to a Government sewer, stormwater drain, or nullah or other method of the disposal of drainage, the positions of disconnecting traps and the means of ventilation;

(h) a block plan, indicating the size and position of the building, other buildings and premises in the immediate vicinity and neighbouring streets;

(i) a key plan showing the position of the site when such site is not sufficiently identifiable from the block plan;

(j) the position, depth and construction of any well;

(k) by means of a diagrammatic plan with full dimensions and calculations –

(i) the height, volume and disposition of such building in accordance with the provisions of regulations 17, 18, 19 and 20 of the Building (Planning) Regulations;

(ii) any open space required for such building in accordance with the provisions of regulations 22, 23, and 24 of the Building (Planning) Regulations.

(2)(a) Plans showing structural details shall be submitted in duplicate together with one set of full calculations including stress diagrams where necessary for any –

(i) building works involving the structural use of steel or the structural use of reinforced concrete,

(ii) retaining wall constructed of masonry or brick-work, and

(iii) other structure designed by calculation under any Code of Practice or London County Council By-laws permitted under these regulations.

(b)   A certificate in the prescribed form completed and signed by the authorized architect shall also be submitted for any building works involving the structural use of steel or the structural use of reinforced concrete.

(3)   In the case of any balcony, canopy, bridge or other similar projection over a street or unleased Crown land, one set of plans shall be submitted indicating clearly the nature and dimension of such projection.

(4)   The Building Authority may also require additional plans, enlarged details, documents, information regarding water supply, specifications and use of any special materials and any other particulars which he may deem relevant to the proposed building work.

22.(1)   When he is satisfied that any plans, which are submitted to him, comply with the provisions of the Ordinance and of any regulations, the Building Authority shall issue a permit in the prescribed form authorizing the commencement and execution of any building works shown on such plans.  Such a permit shall not be taken as an acknowledgment that such plans comply with lease conditions or with the requirements of any other authority.

(2)   When issuing such a permit the Building Authority shall officially stamp, sign, date and return to the authorized architect–

(a) two sets of plans where such plans have been submitted in triplicate,

(b) one set of plans where such plans have been submitted in duplicate.

23.(1) An officially stamped, signed and dated copy of every plan approved by the Building Authority shall be supplied by the authorized architect who has been engaged to supervise any building works, to the registered contractor employed on such works as provided in paragraph (2) of regulation 7.

(2) It shall be the duty of such contractor to keep every such plan available on such works as provided in paragraph (2) of regulation 12 for inspection by the Building Authority or any officer deputed by him.

24. Subsequent to the approval of any plans, the Building Authority shall be notified in writing –

(a) by a building owner before the commencement of any building works as required by paragraph (I) of regulation 3 and paragraph (I) of regulation 9;

(b) by an authorized architect –

(i) within seven days of the commencement of any building works shown on such plans as required by sub-paragraph (a) of paragraph (4) of regulation 7;

(ii) within fourteen days of the completion of any building works shown on such plans as required by sub-paragraph (a) of paragraph (7) of regulation 7;

(iii) on completion of any drainage works in accordance with the provisions of regulations 31 and 32 of the Drainage (General, Water Closets and Urinals etc.) Regulations;

(c) by a registered contractor before the commencement of any building works as required by paragraph (I) of regulation 12.

25. In any case in which several alterations are made in the original design of a building, for which amended plans have been submitted, the Building Authority may require a complete set of new plans showing the building as it has been completed.

19.Regarding the construction of the building, the developer and the architect-in-charge submitted building plans to the Building Authority, and the Building Authority approved those plans on 3 August 1957, 25 September 1957 and 11 November 1958 respectively. The construction works against which the demolition orders were made are not shown in the plans.

20.The Applicants claimed that the balcony works were alteration works approved by the Building Authority during the construction period, and according to the then prevailing practice, no plans had to be submitted in respect of alteration works. Before the Ordinance 1955 came into effect, the governing legislation was the Buildings Ordinance 1935. The following are the provisions in section 6 of the Ordinance which dealt with the approval of plans and construction works by the Building Authority.

6.(1) It shall not be lawful to commence any building works without the consent of the Building Authority and the following procedure shall be adopted:-

(a) Notice in writing in or according to the form contained in Schedule A of the intention to commence any building works shall be given to the Building Authority by leaving the same at his office.  Every such notice shall clearly state the locality of the intended building works and the number and section or sub-section of the lot on which it is intended to build and shall state any special or material particulars in connection with the same which it is not possible to denote on the plans.  Such notice shall also state the name and address of the owner and occupier of the building or lot and shall be signed by such owner or occupier or by the duly authorised agent of such owner or occupier.

(b) Proper plans of such building works signed by an authorised architect showing the position, form, description and dimensions of all portions thereof shall be submitted to the Building Authority with the aforesaid notice for its approval.  If repairs, alterations or additions are intended to be made to any existing building they shall be clearly differentiated on the plan from the existing work intended to be left intact or utilised in carrying out such repairs, alterations or additions; and if the Building Authority shall consider it necessary so to do he may require further plans to be submitted of other portions of the existing building and of any adjoining buildings.  Unless dispensed with by the Building Authority the details of any drainage to be constructed shall be shown on the plan.  Every plan shall be drawn on tracing linen or other material approved by the Building Authority, to a scale of not less than one-tenth of an inch to the foot, and shall contain enlarged details with figured dimensions of the principal features of construction and shall also show the position and levels of the surrounding ground and buildings.  In cases where several alterations are made in the original design during the carrying on of work involving the submission of amended plans, the Building Authority may require the submission of a complete set of new plans showing the building as completed.  In the case of minor alterations or repairs the Building Authority may dispense with the submission of plans by an authorised architect.

21.The last sentence in section 6(1)(b) of the Ordinance seems to suggest that under the 1935 Ordinance, the requirement to submit plans to the Building Authority could be exempted in respect of “minor alterations or repairs”.

22.But after the 1955 amendment, there was no such provision in the new legislation. As mentioned above, section 25 of the Building (Administration) Regulations concerns the amendments to plans for alteration works. As to whether the Building Authority could exempt the submission of plans for minor alterations, there was no clear stipulation in either the 1955 Ordinance or the 1956 Regulations.

23.Evidence shows that during the construction of the building, the Building Authority’s staff went to the site on many occasions to check the progress of the construction works. If the balconies were actually built at the same time as the whole building was erected, then according to the index card of the Building Authority, the Building Authority’s staff would have noticed the construction of the balconies during their inspections on 25 November and 4 December 1958, and on 6 January, 4 February and 12 March 1959. Upon completion of the construction works of the whole building, the Building Authority’s staff went to inspect the building again on 3April 1959. The relevant occupation permit was subsequently issued upon satisfactory inspection of the building.

24.The Building Authority submitted the building inspection report to the Court. According to the report, one of the things that the Building Authority’s staff would inspect was whether the building was constructed in accordance with the approval plans. The staff of the Building Authority recorded in that report that the building was built in accordance with the approval plans.

25.Regarding the regulations on the occupation permit, section 12 of the Buildings Ordinance 1955 provides that:

12.(1) No new building shall be occupied in any way, except by not more than two caretakers, until the Building Authority issues a permit in the prescribed form.

(2) Upon the expiration of fourteen days from the date of the receipt by the Building Authority of the certificate of completion given by an authorized architect under subsection (3) of section 4, such permit shall be deemed to have been granted, unless by registered post or in other sufficient manner the Building Authority has notified the building owner that the building works have not been carried out in accordance with the provisions of this Ordinance.

26.It can be seen from the above provisions that upon the completion of the construction works, if the Building Authority discovered during their inspection that any part of the works were not done in compliance with the legislation, the Building Authority would certainly have refused to issue the occupation permit and would have informed the property owners in writing.

27.As mentioned above, the Building Authority issued the occupation permit on 6 April 1959.  If the balconies in question were built at the same time as the building was erected, the occupation permit issued by the Building Authority subsequent to the inspection could be deemed as evidence to show that the Building Authority recognized the balconies as lawful structures. Although no written approval or relevant plans of the balconies are found in the existing files, I am of the view that the Building Authority issued the relevant occupation permit after conducting the inspections, and given the meaning of an occupation permit under the legislation, the Building Authority could therefore be deemed to have approved the construction of the balconies by conduct.

28.In paragraph 17 of the Determination, it is held by the Appeal Tribunal that the final version of the approved plans shall be the ultimate reference to be used by the Building Authority for the enforcement of the provisions. Although I agree that both the Buildings Ordinance 1955 and the Buildings (Amendment) Ordinance 1959 indicate that the building plans should be approved by the Building Authority before the commencement of the building works, it does not mean that the Building Authority’s actual steps of granting approval for the commencement of the building works were the same under the 1955 Ordinance and the 1959 Ordinance. As I have already mentioned that under the 1959 Ordinance, the Building Authority’s powers to approve the commencement of building works were subject to more stringent restrictions and it had no powers to approve the commencement of works in the absence of any approved plans. However under the 1955 Ordinance, the powers of the Building Authority were not subject to this restriction.

29.Therefore generally speaking, although I agree that the approved plans are the major reference to be used by the Building Authority for the enforcement of the provisions, where the construction works of the building was approved under the 1955 Ordinance, provided that there is evidence to show that the relevant construction works were carried out at the same time as the building was erected, and that when the Building Authority inspected the building, it should have noticed the occupation permit which was already in existence, the Appeal Tribunal should take into account whether the issuance of the occupation permit by the Building Authority amounted to approving the construction works by conduct, and accordingly consider whether the construction works cannot be deemed to have been erected in contravention of the provisions of the Buildings Ordinance. 

30.The Applicants relied upon the legal principle of legitimate expectation in his application to set aside the demolition orders. The Appeal Tribunal held that the said principle was inapplicable because section 24 of the currently prevailing Buildings Ordinance does not exclude the buildings erected in or before 1959 from its scope of application, and therefore the Applicants had no legitimate expectation that the section 24 would not be enforced by the Building Authority. The Appeal Tribunal also held that the Applicants’ expectation was neither legitimate nor lawful.

31.The Appeal Tribunal did not analyze in detail the Appellants’ argument of legitimate expectation. As far as I understand, the Appellants’ argument of legitimate expectation was based on the following facts:

(a)   The balconies in question were constructed at the same time as the building was erected;

(b)   At the time of construction, the Building Authority had inspected the building at various stages and noticed the construction of the balconies;

(c)   Upon completion of the building, the Building Authority inspected the building again and the balconies were already in existence by then;

(d)   In the course of construction and prior to the issuance of the occupation permit, the Building Authority was under a duty to stop any unauthorized construction works and to refuse the issuance of occupation permits on the basis that the balconies were unauthorized construction works;

(e)   Although the construction works were not shown in the approved plans, the Building Authority issued an occupation permit pursuant to section 12 of the Buildings Ordinance 1955.

32.Under the above circumstances, I agree that the Applicants have strong reasons to rely on the occupation permits as the declaration or representation by the Building Authority that the commencement of the building works of the balconies in question was commenced with the approval of the Building Authority and therefore should not be deemed as unlawfully-constructed structures. It follows from the above analysis that the realization of this legitimate expectation is not contrary to section 24 of the Ordinance.

33.For reasons stated above, I think that the Appeal Tribunal should not have dismissed the Applicants’ appeal without first determining whether the balconies in question were constructed at the same time as the building was erected. Therefore, the Appeal Tribunal has erred in law in its determination.

34.Accordingly, I order that the determination of the Appeal Tribunal be quashed, and that the matter be returned to the Appeal Tribunal (Buildings) for a full hearing before another Tribunal of different composition.

35.I also make an order nisi for the 2^nd Respondent to pay costs to the Applicants, to be taxed if not agreed.

Applicant, in person, Miss Kam Yui appeared on her behalf (HCAL 39/2010)

Applicant, in person, present (HCAL 48/2010)

Mr Brian Leu, Government Counsel of the Department of Justice, for the Respondents

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.