Read the full judgment text of HCAL 20/2011 on BabelCite. This Court of First Instance judgment was delivered on 20 December 2011 before Lam J.
Civil law – judicial review – Buildings Ordinance – approval of building plans – Building (Planning) Regulations – requirement of ownership or realistic prospect of control of site – 'site' under Building (Planning) Regulations – legitimate expectation – whether prior approvals of combined-site plans create expectation that BA must continue to treat lots as one site irrespective of changes in ownership – Regulation 23(2)(a) – right of way – diversity of ownership – section 16(1)(i) – further information requests – scope of BAT's power on appeal – conditional approval by BAT – scope of BA's role as primary decision maker – The Building Authority applied for judicial review to quash the decision of the Buildings Appeal Tribunal allowing the developer's appeal against disapproval of general building plans and drainage plans for the proposed development at Nos. 7-9 Ying Wa Terrace, Sai Ying Pun – The Tribunal found the developer was not required to demonstrate ownership or control of the proposed site, and held that a legitimate expectation arose from prior approvals of combined-site plans, defeating the Authority's queries – The court granted the application and quashed the Tribunal's decision – On the issue of ownership and control, the court held that the word 'site' in the Building (Planning) Regulations should be construed purposively in accordance with Lord Fraser's judgment in AG v Cheng Yick Chi [1983] 1 HKC 14, such that a site can only include land which the developer owns or has a realistic prospect of controlling – The Tribunal erred in treating Lord Fraser's dictum as a common law supplement rather than a proper construction of the statutory term, and in characterising the concept of site as a 'statutory fiction' – On legitimate expectation, the court held that the developer's argument failed because no representation had been made that the lots would be treated as one site irrespective of changes in ownership or control – The developer's reliance on prior approvals in 1997, 2006, 2007 and 2008 was insufficient, particularly given that the Phase I development at Nos. 10-12 was actually built under a single-site plan for Nos. 10-12 alone, and the developer had not acquired Nos. 7-9 in full until 2006/2009 – Each application for approval must be considered by reference to the prevailing circumstances at the time of submission, as established in Building Authority v Head Step Ltd (1996) 6 HKPLR 87 – On Regulation 23(2)(a) and the right of way, the court held that the regulation applied to exclude the right of way at the forecourt of Nos. 7-9 from the site area because the right of way existed as a matter of law due to diversity of ownership between Nos. 7-9 and Nos. 10-12, and would only be extinguished upon common ownership – The Tribunal's 'one site or two sites' analysis was based on a fundamental misconception of the law – On the rear lane and means of escape, the court held that the Tribunal erred in taking upon itself to determine the substantive status of the rear lane and the 2-foot strip, applying principles of estoppel and Walsh v Lonsdale which were between the Government and the owner of the strip, not between the developer and the owner – In an appeal against a Section 16(1)(i) disapproval, the Tribunal should only consider whether the Authority was entitled to the information requested; it should not usurp the role of the Authority as primary decision maker – On the drainage plans, the court held that the Tribunal erred in giving a conditional approval to plans that had not yet been submitted, as the developer had not yet addressed the comments of the Drainage Services Department – An appeal under Section 16(1)(i) is not a platform for sidestepping the BA as primary decision maker – Orders: Certiorari to quash the Tribunal's decision; the subsequent approval of drainage plans by the Authority pursuant to the conditional approval was set aside; the Interested Parties were to pay the costs of the Building Authority in the judicial review and in the appeal before the Tribunal.
Legal issues: Requirement to demonstrate ownership or realistic prospect of control of the site under the Buildings Ordinance · Legitimate expectation arising from prior approvals of one-site development · Application of Building (Planning) Regulation 23(2)(a) to the right of way at the forecourt · Scope of BAT's power to determine status of rear lane and means of escape under s.16(1)(i) appeal · Whether the BAT erred in giving conditional approval to the drainage plans
Outcome: Application for judicial review granted; the decision of the Buildings Appeal Tribunal dated 6 January 2011 in Building Appeal Case Nos. 492-2010 & 553-2010 was quashed by certiorari; the subsequent approval of the drainage plans by the BA pursuant to the conditional approval of the BAT was set aside; the matter to proceed by the developer responding to the BA's queries in the light of the judgment.
Cited by 7 cases · Cites 1 case