Technic Investment Co Ltd and Another V.Appeal Tribunal (Buildings)
Read the full judgment text of HCAL 33/2011 on BabelCite. This High Court CFI judgment was delivered on 24 April 2012.
1. The Applicants are the respective registered owners of No 15B and 17 Wilson Road, Jardine’s Lookout. The structures erected on these plots of land can be described as terrace houses. For present purposes, I shall call them House 15B and House 17.
Cited by 13 cases · Cites 2 cases
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HCAL 33/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 33 OF 2011 ________________________
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________________________ J U D G M E N T ________________________ 1.The Applicants are the respective registered owners of No 15B and 17 Wilson Road, Jardine’s Lookout. The structures erected on these plots of land can be described as terrace houses. For present purposes, I shall call them House 15B and House 17. 2.On 31 August 2007, the Building Authority issued two Orders under section 24(1) of the Buildings Ordinance, Cap 123: No. UBZ/U09-035/0001/06 in respect of House 15B and UBZ/U09-036/0001/06 in respect of House 17. I shall refer to them as the Demolition Orders. For House 15B, the Demolition Order required the demolition of a concrete canopy attached to the external wall at the front on Lower Ground Floor and the reinstatement of the relevant parts of the building in accordance with the approved plans. For House 17, the Demolition Order required the demolition of the following structures and similar reinstatement,
3.There is no dispute that the subjects of the Demolition Orders are unauthorized building works [“UBWs”]. 4.On 31 October 2007, the Building Authority [“the BA”] issued two Warning Notices under section 24C(1) of the Buildings Ordinance: No. WNZIU09-035/0001/06 in respect of House 15B and WNZIU09-036/0001/06 in respect of House 17. I shall refer to them as the Warning Notices. For House 15B, the Warning Notice referred to a structure on and over Flat Roof at the front on upper ground. For House 17, the Warning Notice referred to 2 structures on and over the roof. The Warning Notices served to notify that the building works identified in them are unauthorized building works and the Building Authority would register the Notices at the Land Registry against the relevant property if these structures were not demolished by 30 December 2007. 5.Again there is no dispute that these structures are unauthorized building works. 6.Parties have helpfully produced elevation plans of the two Houses identifying the UBWs in question. I will annex them to this judgment for ease of reference. 7.The Applicants appealed against the Demolition Orders and the Warning Notices at the Appeal Tribunal (Buildings) [“the BAT”]. The appeal was dismissed on 18 February 2010. They now seek judicial review in respect of the decision of the BAT. As stated in the Form 86, the grounds for their application can be summarized as follows,
8.The Applicants also contended that the BAT was wrong to rely on the decision of this court in Sky Wide Development Ltd v Building Authority HCAL 116 of 2008, 24 Oct 2008. The relevant policies 9.The Applicants described the relevant policies at para 6(1) to (7) of the Form 86,
10.It should be noted that apart from the 2001 Policy, the other policies (those for the BUC Operations 2006 and 2007 and the 2006-A Operation) were internal guidelines and not published. Members of the public were not informed about the same and the Applicants also did not have any knowledge of the same until they were disclosed in the course of the preparation for the BAT appeal. Therefore, Mr Chan properly accepted on behalf of the Applicants that they could not run a case of legitimate expectation based on representations in terms of those unpublished policies. 11.According to the evidence from Mr Fu of the BA, the Demolition Orders and the Warning Notices were issued under Operation 2006-A. That operation was not part of the BUC Operations 2006 or 2007. Its genesis was explained at paras 14 to 23 of his affidavit. It stemmed from the conduct of a sample building survey by the Building Department. In that survey, there were only two selection criteria, (a) the occupation permits were issued between 1959 and 1986; and (b) the buildings had never come under any large-scale UBWs enforcement operation. 12.In 2006, the Building Department found that there were remaining resources available at the later stage of BUC Operation 2006. It decided to utilize such resources to carry out Operation 2006-A to take enforcement actions against some of the surveyed buildings under the sample building survey. 13.Though the investigation works were carried out by Maunsell in late 2006, it was in 2007 that BA considered whether Demolition Orders and Warning Notices should be issued in respect of House 15B and House 17. It was decided that the 2007 criteria (under the BUC Operation 2007) be adopted for the purpose of the making of such decisions. 14.From the evidence, it is plain to me that the internal guidelines (subject to what I shall say in respect of non-actionable items) were intended to be guidelines directing how various operations were to be carried out in terms of deployment of resources rather than guidelines for exempting buildings from any enforcement action. First, these guidelines were revised from year to year. If they were meant to be a policy of exemption or toleration, I would expect some steadiness in the criteria for exemption and revisions would be less frequent. 15.Second, the guidelines were applied in the selection of buildings for a scheme of operation. They did not rule out additional scheme of operation, as in the case of Operation 2006-A, where resources permitted. It would be absurd to suggest that simply because a building did not fall within a BUC Operation for that particular year, no enforcement action can be taken in that year under another scheme which may have different selection criteria. Enforcement action can also be taken under an ad hoc basis. For example, if there was an accident (say, a fire) which prompted investigation by the BA in a particular building and UBWs were found, it cannot be sensibly suggested that no enforcement action can be taken because that building does not come within the criteria for a BUC operation that year. I do not see any basis to argue that the BUC Operation could be read as delimiting the power of the BA under Sections 24 and 24C. I will come back to the question of discretion when I discuss the relevant authorities. The point I make at this stage is that the Selection Criteria for the BUC Operation should not be regarded as a comprehensive guide as to how the discretion under those sections were to be exercised. 16.Third, the Target Building Selection Criteria also set out the Objective and Target of the Operation before it referred to the selection criteria. The Objective for the 2007 BUC Operation was stated as follows,
If this is construed as a policy of exemption, it would mean that no enforcement action should be taken in respect of UBWs other than those coming within these descriptions. This obviously cannot be right and would be an unjustifiable fetter on the statutory power and duty of the BA. 17.The same point can be made in respect of the Target, which were stated as follows in the 2007 BUC Operation document,
If these targets are construed as delimiting enforcement actions of the BA, that would mean that the BA cannot take enforcement actions after actions had been taken for 36,000 UBWs or for 6,000 UBWs in one District Section unless it was a case of building dilapidation or within 180 buildings with cantilevered slab balcony. 18.The BAT upheld BA’s use of the criteria under the 2007 BUC Operation. Subject to what I shall say in respect of the implication of Sky Wide in view of the nature of these guidelines, bearing in mind the fact that decisions to issue the Demolition Orders and Warning Notices were actually made in 2007, I do not see any error in such conclusion. I reject Mr Chan’s submission that the applicable criteria should be those applicable to the 2006 BUC Operation. Counsel’s argument proceeded on the basis that the enforcement scheme for Operation 2006-A should be the same as that of the 2006 BUC Operation. The evidence of Fu had already explained why this was not so. I do not see any reason why, as a matter of public law, BA should be constrained by the criteria under 2006 BUC Operation in deciding upon how resources should be deployed for Operation 2006-A. Sky Wide, Quebostock and Gransden 19.In Sky Wide Development Ltd v Building Authority HCAL 116 of 2008, 24 Oct 2008, I said at para 22,
20.When the case went on appeal, the Court of Appeal did not find it necessary to consider the correctness of this ground of my decision. Subsequently, in Ko Siu Luen v Appeal Tribunal (Buildings) [2012] HKLRD 149, Au J followed my approach at paras 42 to 43 of the judgment. In the present case, the BAT also adopted my approach in dismissing the Applicants’ appeal. 21.I was concerned with the 2001 Policy in Sky Wide and no reference was made to the Selection Criteria in the BUC Operation or the List of actionable and non-actionable UBWs in that case. 22.Mr Chan submitted that I was wrong in Sky Wide because according to the Court of Appeal in Quebostock Ltd v The Building Authority CACV 354 of 2002, 24 May 2006, BA has a discretion to withhold the issue of a demolition order against a UBW. If I had suggested that there were no discretion on the part of BA, I would be in error. In Quebostock Silke JA said at p 476G,
23.His Lordship did continue to make the following remarks,
24.These remarks, though entitled to respect as coming from an eminent judge in this jurisdiction, were not part of the ratio. The issue before the Court of Appeal in Quebostock was whether the Building Authority had discretion not to order demolition as opposed to how the discretion should be exercised. It would be wrong to read the case as establishing a legal proposition that it would not be a proper exercise of the discretion to order the demolition of a fully erected structure which in all other respects (apart from the failure to build in accordance with approved plans) comply with our building laws and regulations. 25.In Link Harvest Ltd v Wayhang Development [2001] 2 HKC 652, Recorder E Chan said,
26.Coming back to Sky Wide, I can now see sub-para (a) of para 22 might perhaps be read by someone not familiar with the background of the case as suggesting that the BA had no discretion. But that was not what I intended to say. In that sub-para, I was trying to describe the nature of the 2001 Policy on its face value. Thus, when I said “the ultimate goal is to clear all UBWs”, that was an interpretation of the policy as it stated clearly: “All UBWs are liable to be demolished”. My emphasis was that the 2001 Policy was not a policy on toleration of any UBWs. 27.I do not think there is any inconsistency between the existence of a discretion not to order demolition (as laid down by Quebostock) and a finding that the 2001 Policy is not a policy of toleration (as decided in Sky Wide, see in particular paras 5 to 10). The BA can exercise her discretion under Section 24 quite independent from the 2001 Policy. The nature and effect of the 2001 Policy has to be construed in accordance with the terms of the policy itself. Given the clear wordings of the 2001 Policy: urging owners “to take initiatives to organize for the demolition of UBWs in their premises”, the statement that “all UBWs are liable to be demolished”, and the emphasis on priority of enforcement actions, I do not see any ground for changing my view as to the nature of the 2001 Policy. 28.For the reasons canvassed above, I am of the view that the Selection Criteria in the BUC Operation are guidelines for deployment of resources instead of a policy on toleration of UBWs. I shall discuss the list of non-actionable items later. 29.Once it is appreciated that the 2001 Policy and the BUC Operation criteria were not exemption policies, it is not possible to argue that because a building did not come within the scope of these policies the BA erred in the exercise of her discretion under Section 24. These policies, by their very nature, were not policies governing how the discretion was to be exercised. They were only there to guide how the resources of the Building Authority were to be deployed and the priority in taking enforcement action. 30.Mr Chan relied principally on Gransden v Secretary of State for the Environment (1985) 54 P&CR 86 to support his challenge based on these policies. I referred to the relevant part of Woolf J’s judgment at para 19 of Sky Wide. On the facts, Gransden concerned an application for planning permission and the policy in question was a policy published by circular setting out a presumption in favour of planning permission. It was a policy having a direct bearing on the substantive issue. In my judgment, it is wrong to apply what His Lordship said in that context without considering the prior question which we are addressing here. 31.The prior question is whether the 2001 Policy and the BUC Operation criteria were the relevant policies governing the exercise of the discretion under Section 24 (and for that matter, under Section 24C). I have explained why I come to the conclusion that they were not the governing policy in that regard. Further, as I said in Sky Wide the underlying rationale for having these policies was the limitation in the resources available to the BA in taking enforcement action. Thus, if there were additional resource or spare capacity at a particular point in time, there was no reason why the BA could not carry out additional operations in enforcement action. The fact that a building did not come within the selection criteria under a particular BUC Operation did not confer a licence on its owner(s) to maintain the UBWs in that building nor the grant of an exemption from enforcement action. If resources were actually utilized in the investigation and taking of enforcement action, it would go against the underlying spirit of these policies (the efficient use of limited resources) if the court were to set aside the building orders or warning notices even though the structures in question were undoubtedly UBWs and there is no substantive ground for complaint in BA’s exercise of its statutory discretion. 32.Mr Chan referred to some cases where demolition orders were set aside on the ground that the cases did not fall within the scope of the enforcement policy. But it is clear from the judgments of these cases that the courts or the tribunal did not address their minds to the prior question as to the nature of the policy. I do not read those cases as precluding this court from coming to the above conclusion as to the nature of the policies and the legal consequences of the same. 33.As shown in the elevation plans annexed to this judgment, the scale of the UBWs is substantial though it is more serious and extensive in House 17 as compared with House 15B. Leaving the canopies aside for the time being (which I shall consider separately), I do not see any good reasons why the discretion under Sections 24 and 24C should not be exercised as regards the other UBWs. Apart from the alleged non-compliance with the criteria in the 2006 BUC Operation, Mr Chan has not advanced any other grounds for challenging the Demolition Orders and the Warning Notices. 34.I see no reason for departing from my judgment in Sky Wide and the BAT was correct in following the same in the present case. The selection criteria 35.My above conclusion is sufficient to dispose of the matter apart from the canopies. I shall briefly discuss the contentions of the Applicants on the selection criteria. 36.The Applicants said the BA erred in applying the selection criteria in selecting their houses for enforcement actions. I have already held that the BA (and the BAT) was correct in adopting the 2007 criteria for the 2006-A operation. It is perhaps necessary to record that, according to the evidence of Fu, under the 2006-A operation the houses were selected from the sample survey without regard to the selection criteria. The selection criteria were only applied at the second stage when the BA, after having obtained the report from Maunsell, considered whether demolition orders or warning notices should be issued. That occurred in 2007 and the Demolition Orders were issued in August 2007 and the Warning Notices were issued in October 2007. Though it appears to me to be strange that the BA should apply these criteria at the second stage, given that Operation 2006-A was a separate scheme from the 2006 BUC Operation and the 2007 BUC Operation, it was for the BA to decide how her resources were to be deployed and the court will not intervene in this regard. 37.The BA relied on criteria (a) and (i). The Applicants said their cases did not fit into those criteria. 38.Relying on the evidence of a structural engineer, the Applicants said Houses 15B and 17 should be considered as part of one composite building made up of Houses 15 to 21. Mr Chan took this court to a set of structural plans and tried to make good the point by reference to the longitudinal beams. 39.On the other hand, the BA contended that the word “building” in criterion (a) was not to be defined in structural engineering terms because otherwise the Building Department would have to carry out a structural assessment whenever enforcement action was intended. 40.The BAT accepted the contention of the BA. I think it is correct. From an enforcement point of view in the context of the actions to be taken against UBWs, I do not see any justification for adopting the approach of the Applicants. The Houses were under different ownership and they were occupied by different households. I agree with the BAT that criterion (a) was satisfied. 41.The Applicants said criterion (i) was not satisfied because complaints received by the BA came from one complainant directing only against House 17. They also pointed out that the complaints were made in 2007 whilst the houses were selected in 2006. 42.As to latter point, I have explained how the selection criteria came into the picture under Operation 2006-A. The complaints were made before the issue of the Demolition Orders and the Warning Notices. 43.I do not think there is any reason why complaints coming from one complainant would not be good enough for the purpose of criterion (i). These selection criteria should not be construed as if they were statutes. Considering it in context, it is plain that the criterion is to spell out the priority that the BA would give in taking enforcement actions if there have been complaints relating to external UBWs. Further, I agree with the BAT that it is not necessary to have complaints against all the buildings within the group before criterion (i) could be satisfied in conjunction with criterion (a). Thus, the absence of complaints against House 15B does not militate against the decision to take enforcement actions in respect of both Houses 15B and 17. 44.In this connection, it should be mentioned that there is no question of Houses 15B and 17 being singled out for action. The evidence shows that enforcement actions were taken against other houses on the same street, albeit in 2008 instead of 2007. 45.The Applicants also contended that the relevant criterion should be (h) instead of (i). With respect, I fail to see any merit in such contention. Criterion (h) concerns complaints about appendages. The complaint of 9 March 2007 referred to the structure at the roof top. It is not a complaint about appendages. By contrasting (h) with (i), it is plain that (h) is meant for items of smaller scale, as to which persisting complaints were the triggering factor. This interpretation is reinforced by the examples given for appendages in the Objective stated at the beginning of the Target Building Selection Criteria. Those examples are cooling towers, large glass panel walls, large TV-screens and large signboards. Criterion (i) related to external UBWs. I have no doubt that the roof top structure comes within (i) instead of (h). 46.Therefore, the BA had correctly applied the selection criteria and the BAT was right in affirming its decision. The canopies 47.The BA had regard to a List of actionable UBW [“the List”] in deciding what steps to be taken by way of enforcement actions. Part A of the List identified items for which demolition orders would be made under Section 24. Under that head, there was a sub-head in para 5.0 called “Non-actionable UBW”. It is further said,
48.Within that sub-head, para 5.4 listed the following,
49.By way of contrast, “lightweight canopies projecting more than 500 mm” was listed under para 1.5 as UBW on external walls, re-entrants which had to be removed. Further, para 1.1 listed “canopies of solid construction” which were to be removed irrespective of their extent of projection. 50.The Applicants said their canopies fall within para 5.4 and as they were neither in a dilapidated state nor posing danger, they should not be ordered to be removed. On the other hand, the BA said these canopies fell within para 1.1. There is no dispute that the canopies did not project more than 500 mm. 51.Unlike the selection criteria, given the specific wordings of the List as to how decisions were to be made by way of demolition orders, I hold that the List was a policy tolerating those items under sub-head 5.0 insofar as they were not in a dilapidated state or posing danger. Thus, it was a policy governing the exercise of discretion under section 24 and Sky Wide has no application. The principles in Gransden apply. 52.The BAT, after hearing evidence, found that the canopies were not “lightweight” canopies or of lightweight construction. It found that the canopies were solid structures. 53.Mr Chan, adopting the arguments advanced in the Form 86, submitted that given the Applicants’ expert evidence that the canopies in question were made of plastic or fibre-glass and, in the absence of evidence to the contrary, the canopies should be taken as being made of lightweight material and not of solid construction. 54.But the expert also admitted that he had not carried out any detailed structural assessment of the canopies and he did not know their weight or the size of the metal brackets. 55.BA’s expert said the canopies were of solid construction because it had certain thickness and were enclosed in such a way that one cannot see the supporting frames inside. Maunsell’s officer also testified that the canopies were of solid construction. 56.In a judicial review, this court does not sit as an appeal tribunal. The BAT is a specialized tribunal for deciding appeals of this nature. This court would only intervene on public law grounds. The BAT obviously had given regard to the distinction between lightweight canopies and the solid ones. I do not discern any basis for suggesting that they had misinterpreted the policy laid down in the List. As regards whether the canopies in question were lightweight or solid and how the evidence should be assessed, the BAT was in a much better position than this court to come to a professional judgment. I do not see any justifiable grounds for intervention by way of judicial review. 57.Therefore the challenge in respect of the canopies also fails. Disposal 58.The application for judicial review is dismissed. I also make a costs order nisi that the Applicants shall pay the costs of the Respondent, such costs to be taxed if not agreed.
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