Building Authority v. Mr. Harding Russell John Challoner and Another

DCMP 2662/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2662 OF 2010

__________

Coram : H.H. Judge Chow

Dates of Hearing : 25^th January and 29^th April 2011

Date of handing down Judgment : 9^th May 2010

Judgment

1.The outstanding matter I have to rule on in these proceedings is on the award of costs. On 30.9.2010, the Applicant applied to the District Court for an appointment to hear an application for a closure order in respect of the unauthorized structures on the roof of Flat C and the access leading from the main entrance of Flat C at 2/F to the roof, No. 35 Caperidge Drive, Peninsula Village, Discovery Bay City, Lantau Island, New Territories (“the Premises”).

2.The application was made pursuant to section 27(1)(a)(ii) of the Building Ordinance, and is supported by the affirmation (dated 5 October 2010) of Mr. Ho Kwok Chu, a building surveyor of the Building Department.  The contents of his affirmation are set out as follows:-

“1. I am authorized by the Director of Buildings under section 2(2) of the Buildings Ordinance to carry out and exercise the duties imposed upon and the powers granted to the Building Authority under section 27 of the Building Ordinance.

2. In my opinion the building known as the unauthorized structures on the Roof of Flat C and the access leading from the main entrance of Flat C at 2/F to the roof, No. 35 Caperidge Drive, Peninsula Village, Discovery Bay City, Lantau island, New Territories shall be closed in order that the demolition work can be carried out without danger to the occupiers or to the public.”

There is also the affirmation (dated 5^th October) of Tang Wai-ming, a senior survey officer of the Buildings Department, in respect of the posting of a copy of the notice of intention on a conspicuous part of the Premises on 12 August 2010 to apply for a closure order.

The Demolition Order

3.There is an affirmation of Tang Wai-ming dated 5 October 2010 in respect of the posting of an order on a conspicuous part of the Premises made under section 24 of the Buildings Ordinance.  It reads:-

“ I did on the 17^th day of the September 2009, post upon a conspicuous part of the building known as the Roof of Flat C No. 35 Caperidge Drive, Peninsula Village, Discovery Bay City, Lantau Island, New Territories 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) & (C1) annexed hereto are true copies;”

4.The document marked (C) under section 24 reads: -

“To: Fung Sui Ping (馮少冰) Date: 17 September 2009

Harding Russell John Challoner (夏定國)

Owner(s) of the premises at: Flat C on 2/F and 3/F (including the Flat Roof), No. 35 Caperidge Drive, Peninsula Village, Discovery Bay City, Lantau Island, New Territories on ……D.D. 352 Lot 385 R.P. & Ext.

It has been brought to my attention that the following building works have been carried out in or at the above premises:

(i) Two structures erected on and over the roof. (The location of the building works described above is shown hatched-black on the plan annexed hereto ……)

2. For the said building works:

(a)  The building works at item (i) above 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 parts of the building so affected by the building works under item (i) above in accordance with the plans approved by the Building Authority. 

Adequate precautionary measures to ensure public safety should be provided prior to and during the course of works.

5. You are required to commence the works ordered by me in paragraph 3 above within 30 days and complete such works within 60 days of the date of this order, all to the satisfaction of the Build Authority.”

(Underlines provided)

Reasons for opposition the application for the closure order

6.On 25.1.2010, the Applicant’s application was heard by this Court.  It was opposed by the Respondents.  They Respondents stated that the modifications to the roofs of 35C were that some of the walls were added in order to even up their heights, and that a glass roof and glass door were added at the front.  The “buildings” on the roof were largely pre-existing but had been enclosed by adding a roof and a door.  On 23.1.2011, the roof and the door were removed.  The buildings therefore ceased to exist. The issuance of a closure order would therefore be an empty order. 

7.After the hearing on 25.1.2011, the Respondents submitted a supplemental defence submission in which they revealed that no parts of the buildings had remained.  There is therefore nothing for a closure order to be applied to.

8.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)

9.If the Respondents had intended to oppose the Demolition Order, which was made on 17.9.2009, they should have appealed against it in accordance with the appeal procedures set out under section VI of the Buildings Ordinance.  No such appeal has been made.  Hence the Demolition Order remains valid.  When section 27(1) and section 27(2) of the Buildings Ordinance 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.  When a notice has been duly served under section 27(2), this Court was enjoined to make a closure order.  The grounds of objection may be used to oppose the Demolition Order.  They cannot be applied to oppose the application for a closure order.    Those grounds are not and cannot be valid grounds to oppose the Applicant’s application.

10.The application for the hearing of a closure order was made on 30.9.2010.  The hearing was fixed to be heard on 25.1.2011. It was only on 23.1.2011 that the Respondents caused the unauthorized structures on the Premises to be demolished, but still leaving odds and ends.  The unauthorized structures ought to have been demolished by 17.11.2009, according to the Demolition Order.  But the Respondents failed to comply with it.  Hence, when the application for a closure order in respect of the Premises was made, it was a proper application, because, at that time, the unauthorized structures that were required to be demolished remained in existence.

11.The Applicant confirmed that the unauthorized structures have been removed.  So I would not issue any closure order.

Costs

12.Had the Respondents removed the unauthorized structures by 17.11.2009, the Applicant would not have required to institute the present proceedings.  Therefore the Respondents have to bear the costs of these proceedings.  Mr. Harding argued that some time had been spent on the definition of “exempted works”, and that the Applicant had not prepared for an updated version of the Buildings Ordinance, and so time had been wasted.  But that did not involve a substantial amount of time.  The important thing is that it is totally unnecessary to go into that issue.  The Respondents did not appeal against the Demolition Order; hence they cannot argue that the structures referred to in that Order are authorized structures.  The issue of exempted works simply did not arise.  It is the Respondents who unnecessarily brought up that issue in their opposition to the Applicant’s application.  The Applicant is entitled to instruct a Counsel to represent itself, and these proceedings are fit for the instruction of a counsel, because some legal issues are involved. I therefore order that the Respondents do pay costs of these proceedings to the Applicant, to be taxed, if not agreed, with certificate for Counsel.

The Applicant: represents by Mr. Anthony Chan, instructed by Department of justice.

The 1^st Respondent: present, unrepresented.

The 2^nd Respondent: represented by the 1^st Respondent.