Mightystream Ltd v. Attorney General

CACV000122/1981

Building (Planning) Regulations. Regulations 16, 19, 20, 21 and 22. Interpretation. Site abutting a road - not a street at Common Law - whether controlled by Regulation 19.

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Coram: Leonard; V-P, Cons & Zimmern, JJ. A.

Date: 21 January 1982

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JUDGMENT

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Leonard, V-P:

1. The sole issue in this appeal is whether for the purposes of the Building (Planning) Regulations Inland Lot 2232, 12 Bowen Road ("the site") abuts a street not less than 4.5m. wide. If it does not, the Building Authority has power under Regulation 19 to determine the height of, the site coverage and the plot ratio for any building to be erected on it. If the site does abut such a street height is catered for by Regulation 16, the site is a class A site and its site coverage and plot ratio are governed by Regulations 20, 21 and 22.

2. I am satisfied from the plans, the photographs and the trial judge's description that the site cannot be said to abut such a street unless the bridge by which one approaches the site can be said to be such a street and unless the site abuts it.

3. It has been suggested by Mr. Ogden that, notwithstanding that the site is separated from Borrett Road by a nullah, it abuts Borrett Road. However the trial judge visited the site and found "a very substantial natural feature in the form of the nullah". "Far from being something in the nature of a mere gulley" separated the site from Borrett Road. I consider that the trial judge was right in his conclusion that whether or not a given site "abuts" a street is a question of, fact and degree. I could not say he was wrong in holding that the site does not, abut Barrett Road.

4. Mr. Ogden also suggested that the trial judge was wrong in holding that the definition of "street" in the Regulations was relevant to this consideration to the exclusion of the definition of "Street" in the Ordinance.

5. The trial judge, noting that "street" was the only word defined in both the Ordinance and the Regulations and the presence of the word "footpath" in both came to the conclusion that he should not have regard to the definition in the Ordinance. I cannot agree. To my mind the use of the opening words in Regulation 2 and the use of the word "includes" in both definitions in preference to the word "means" indicate that the definitions Should be read together. This view is strengthened by section 31 of the Interpretation Ordinance, and by the consideration that if one was to have regard only to the definition in the Regulations the Regulations could have said so instead of using the conjunctive in Regulation 2(1) Mr. Kaplan did not contend that the bridge was not a "road bridge" but contended that even if the definition in the Ordinance applied the bridge was not a street for the purposes of Regulations 16 and 20 and 21 and 22 because it had none of the characterics of a street. This argument was countered by Mr. Ogden's argument that the bridge was a road bridge and therefore a "Street" by reason of the definition. If Mr. Kaplan is right many Sites which abut on roads more than 4.5m. wide will fall under Regulation 19 rather than Regulations 20, 21 and 22 unless the roads on which they abut have the characteristics of streets and his argument is therefore one which may affect the interests of many developers in the Colony. The argument is based on R. v. Fullford⁽¹⁾ and R. v. Laird⁽²⁾ in the first of which a highway and in the second of which a road were held not to be Streets; in the one for the purposes of the Local Government Amendment Act 1861 Section 28 and in the other for the purposes of the Public Health (Buildings in Streets) Act 1888 Section 3 although by an interpretation clause applicable to the 1861 Act the word 'street' was to "apply to and include any highway not being a turn pike road" and by an interpretation clause applicable in the 1888 Act 'Street' included a 'road'. The clause in the latter act bore a marked resemblance to the clause I have quoted from our Building Ordinance. In R. v. Fullford it was Shown in a trial on indictment that the Fullfords had built an addition to their house covering a space intervening between the house and West Street beyond a line demarcated by the Surveyor of the Local Road of Health and within 4 feet 4 inches of the footway adjoining the highway which was a turn pike road. On the fact Erle C. J. directed I the jury to find the Fullfords guilty and stated a case. It was held that there was a question of fact I for the jury to decide, the question being whether the houses on West Street had the necessary degree of continuity and proximity, the tern "street "referring "to a row of house p some gill continuous and in some degree proximate to one another".

6. In A. G. v. Laird⁽³⁾ a mandatory injunction had, been granted ordering the pulling down of a house erected by the appellants within 2 feet of Holylake Road a main road 60 feet wide. The only other building in the immediate vicinity was some 700 feet away but the area was rapidly developing. For the purposes of the act in question "street" was defined as "including any highway and any public bridge and any road, lane, footway, square, court alley or passage whether a thoroughfare or not".

7. Pollock M.R. observed -

"The word 'street' which is u used in that section is defined by section 2 of the Act by reference to section 4 of the Public Health Act, 1875, which defines 'street' as including 'any highway and any public bridge (not being a county bridge) and any road, lane, footway, square, court, alley or passage whether a thoroughfare or not'. It is plain, therefore, that we are to read 'street' in section as including a highway, and Hoylake Road is a highway. But the section does not easy that all highways are streets; and the meaning of 'street' has still M be sought from a consideration of the circumstances of the case and of a number of authorities."

8. The first of Me authorities of which he refers is R. v. Fullford where notwithstanding the presence in the Act of 1861 there was by reference a definition of "street" as including a highway (not being a turn pike road) it was held that the term "street" refers to a  row of houses in some degree continuous, aid in some degree proximate to one another.

9. After consideration of R. v. Fullford he went on -

"One has to find a succession of houses and buildings, at least on one side, with some degree of continuity and proximity. If this is so, it becomes a question of fact " whether a street, has been built and that what mere, highway has become a street".

10. He found support for his view in Robinson v. Barton-Eccles Local v. Board⁽⁴⁾ in which the Earl of Selborne said -

"I agree with at observation which was made in Baker v. Mayor of Portmouth by Huddleson B in which he said, after reading the words of the interpretation clause of the Public Health Act 1848 which was in similar terms 'what is the meaning of 'shall apply and include' unless 'street' means something more than the road way, that is to say, the street with houses? That really seems the reasonable and proper interpretation of the word 'street". As I understand those words they mean this: The inter-pretation clause has said that (when there is nothing in the context to exclude it) the words shall be applicable to a mere highway on neither side of which there are houses. That is very true. But, he says, what is the use of saying it 'shall apply to and include,' unless in its natural scale (which there is nothing here to limit or restrain) it might be held not to apply to and not to include a more highway without houses on each side. An interpretation clause of this kind is not meant to prevent the word receiving its ordinary, popular, and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject-matter to the contrary, to be applied to some things to which it would not ordinarily be applicable I look upon this portion of the interpretation clause as meaning neither more nor less than this, that the provisions contained in the Act as to streets, whether new streets, or old streets, shall, unless there be something in the subject-matter and the context to the contrary, be read as applicable to these different things. It is perfectly consistent with that that they should be read as applicable, and should be applied, to those things to which they in their natural sense apply, and which do not require any interpretation clause to bring them in; and in the natural and popular sense of the word 'street' or the words 'new street', I should certainly understand a roadway with buildings on each side (it is not necessary to say how far they must, or may be continuous or discontinuous); and by 'new street', a place which before had not that character, but which, by the construction of buildings on each side, or possibly on one side, has acquired it."

11. Pollock M.R. however quotes only that passage beginning "and in the natural and popular sense of the word". He does not deal with the proceeding part which I have quoted. In Robinson v. Barton-Eccles Local Board, the question for decision was whether a public authority could successfully object to the building by a developer of a row of houses fronting upon a highway on which there had already been built a considerable number of houses. If the highway was not a new street their case would fail. The highway was held to be a new street but the authority failed on other grounds. In Laird the highway was found not to be a street. It must have been found not to be a street either on the basis that all highways were not streets notwithstanding the interpretation clause or that there was something in the context to indicate the contrary. I must confess I, find the judgment of Pollock M.R. impossible to reconcile with the earlier part of the passage I have quoted from Robinson v. Barton-Eccles Local Board.

12. Sargent L. J. proceeded on a somewhat different route. The legislation in question there seemed to him to deal with cases where there was already an existing street. The original section, he notes, was held to deal only with cases where there was an existing building in an existing street being replaced by a new building. "The requirement that the new building must be within an existing street was in no way relaxed". Counsel, he pointed out, agreed that street had to be construed in its ordinary meaning. He appeared to regard the existence of the interpretation clause ad of no account for he does not allude to it. Astbury J. felt some doubt and did not discuss the first question preferring to base his judgment on whether a laundry some 700 feet away from the new building could be said to be "on one side of the, house in question".

13. I have spent considerable time examining Laird's case not only because it is crucial to the issues before us but also because if the ratio decidendi of Pollock M. R. be followed it would result in the development of all sites abutting only on a road (as distinct from a common law street) being controlled under Regulation 19 in the discretion of the Building Authority. A developer interested in the purchase of a site would have no means of knowing the extent to which it might be developed. I cannot believe the legislation intended this result.

14. It was not argued that the bridge was an access road nor was it suggested that the site did not abut upon it. The argument before us proceeded on the basis that the relevant definition was that in the Regulations to the exclusion of that in the Ordinance but that if this was not correct the bridge was not a street because it had none of this characteristics of a street and is in any event not more than 4.5m. wide. It is correct that the carriage way of the bridge is less than 4.5m. wide but the whole of the bridge is more than 4.5m, wide and the definition of "Street" in the Ordinance refers, to "the whole or any part of a road bridge". I cannot find merit in these arguments and would allow the appeal.

Cons, J. A. :

15. The plaintiff company is the registered owner of Inland Lot No. 2232, otherwise known as No. 12 Bowen Road, a detached house standing in its own grounds on the steep hill side some distance above the road itself. One may assume that originally the only access was by way of the steep path that leads up from Bowen Road. Now it is possible to get there by car from Borrett Road, by means of a small bridge which connects that road to the house. The bridge spans a nullah which runs downhill and separates the house from Borrett Road itself. There is at that point also a footbridge, but it is the road bridge which is at the core of these proceedings. I hope the accompanying diagram will make the situation more easy to understand

16. The "building" on the west side of Bowen Road is the foundation for garages belonging to two blocks of flats standing on the hillside well above that part of Borrett Road and approached from a road that turns off from it earlier. Close to the flats is the large complex of Island School, its swimming pool and the Island Squash Courts. Further back down Borrett Road are the buildings that used to house the Military Hospital. The feature marked "roadway" is a continuation of Borrett Road to the south and appears to lead only to No. 13 Bowen Road, another house standing on land adjoining that of No. 12 but higher up. To the east the hillside is undeveloped for a long, long way.

17. Two questions were argued at the trial. First "whether the bridge from Borrett Road to the site is a 'street' "; secondly "does the site abut Borrett Road or its continuation to the south".

18. The questions are crucial, for if either is answered "yes", the maximum height; site coverage and plot ratio of the redevelopment will be automatically governed by Regulations 16,20 and 21 of the Building (Planting) Regulations, (its having been conceded that the site abuts the bridge). It is, on this, basis that the plaintiff's plans have been drawn and they provide for a high quality residential complex with a swimming pool in the grounds. In all it would be 28 stories high.

19. On the other hand, if the answer to both questions is "No", then it is a Regulation 19 situation, i.e. the height, site coverage and plot ratio are left entirely to the discretion of the Building Authority. The Authority has already indicated that these requirements would cut the plaintiff's plans to about half their present size.

20. Let me deal with the second question first, does the site abut Borrett Road or its continuation. Mr. Ogden for the plaintiff company contends that actual contiguity is not necessary He refers us to Wake field Local Board v. Lee⁽¹⁾ where premises were separated from a street by a small stream crossed by two bridges, one suitable for a horse and cart or carriages, the other limited to foot passengers. It was a case heard in the Exchequer Division, of the Court of Appeal. Two of three judges held that the premises did "front and abut" upon the street.

21. With respect I do not find any assistance in that case. It turned upon legislation which required owners of premises "fronting, adjoining or abutting" the street to meet the cost of making it up. The influence of that object is even more apparent in Lightbound v. Higher Be Bebington Local Board ⁽²⁾ a case to which Mr. Ogden also draws our attention.

22. Fuad J. in the Court below found :

"that in any given case it must be a question of fact, depending on the facts and the application of any rules which may have been laid down in the cases (slightly to paraphrase the words of Lord Esher M. R. in Lightbound at p. 580) whether a site abuts a street in the ordinary meaning of the word abut, in the absence of a definition. I think, too, that the court must approach the problem in a practical and common sense way, bearing in mind that it is for the authority seeking to restrict the owner's user of the land to satisfy the court that his contention cannot be right. Clearly every slight obstruction or intervention between a site and a street could not be said to prevent the former from abutting the latter. It will be a question of degree."

23. I would respectfully agree with that as a correct assessment of the position. Applying that approach the learned Judge found that the site did not abut the road. He actually went to look at the site and found the nullah to be "a very substantial natural feature". The photographs and survey plans support his view. I see no reason to interfere in this respect.

24. I turn then to the first question, is the bridge a street.

25. Street is defined in the Ordinance as including "the whole or any part of any square, court or alley, highway, lane, road, roadbridge, footpath or passage whether a thoroughfare or not".

26. The bridge in this instance is some 22 m long and of R. C. C. construction The photographs show a simple carriageway flanked on either side by what might be described as castellated kerbs. No one would ever think to walk along those kerbs, except perhaps a young child who might be tempted incautiously to jump from one raised portion to another. There is no pavement.

27. To avoid the clutches of Regulation 19 a site must abut a street that is not less than 4.5 m wide. The carriageway of the bridge is an average of only 4.3 m, although by adding the width of the two kerbs the necessary size is reached. Mr. Kaplan, who appears for the Attorney General, argues that we should look only to the carriageway, for a street is for people either to drive or walk along and if there is something adjacent which allows them to do neither it can hardly be counted as part of the street. I must confess to a great sympathy with that argument, but I have eventually come to the conclusion that the express words of the legislature - "the whole of" - must be given meaning and that the bridge in this instance must be taken as not less than 4.5 m wide.

28. The Judge below did not make a decision in this respect. He did not need to, for he applied not the definition in the Ordinance that I have just set out but a further definition contained in Regulation 2 :

" 'street' includes any footpath and private and public street".

He concluded that the two definitions were not to be read together, but that the situation was governed by the definition in the Regulations. In that case there was no extension of the natural meaning of the word to include a bridge.

29. The learned Judge was influenced to his conclusion by two considerations, that "street" is the only word that is defined in both the Ordinance and the Regulations, and that the word "footpath" appeared in both definitions. With respect to him, it does not seem to me that these considerations are sufficient to displace the general presumption that a word has the same meaning throughout different parts of the same legislation, the express provision of Section 31 of the Interpretation and General Clauses Ordinance, that "...... where any ordinance confers power to make any subsidiary legislation, expressions used in the subsidiary legislation shall have the same meaning as in the Ordinance confering the power .....................", and the introductory words to Regulation 2, "that words and expression (sic) have the meaning attributed to them by the Building Ordinance". In my view, the definition in Regulation 2 is additional to and not exclusive of the definition in Section 2 of the Ordinance.

30. Lord Selborne when dealing with the word "street" in Robinson v. Local Board of Barton Eccless⁽³⁾ said at page 801 :

"In the natural and popular sense of the word 'street', or the words 'new street' ,I should certainly understand a roadway with buildings on each side."

31. There can be no doubt that the bridge across the nullah does not fall within that description and therefore, unless it can be brought within the statutory definition, this appeal must fail.

32. Mr. Kaplan argues that it cannot be brought within the statutory definition unless it first exhibit the natural characteristics of a street, that is in other words, unless it is already a street in the natural and popular sense of the word. The words of the definition, he suggests, do no more than provide that what is naturally a street shall not cease to be so merely because it also acquires the characteristics of any of the other features mentioned therein. He relies on two authorities.

33. The Queen v. Fullford⁽⁴⁾ was a conviction under the Local Government Amendment Act. 1861, reserved to the Court of Crown Cases Reserved. The relevant definition was "the word 'street' shall apply go and include any highway not being a turnpike road". Nevertheless, Pollock, C. B. said:

"If I had to direct the jury in this case, I should tell them that a set of detached houses, not being in a continuous line, and some facing one way and some another, and having no appearance of uniformity at all, was not a street within the meaning of this Act of Parliament."

34. The other four Judges of the Court gave judgments to a similar effect.

35. In the Attorney General v. Laird ⁽⁵⁾ the definition in question was remarkably like that which we have to deal with. It defined street as including "any highway and any public bridge (not being a county-bridge) and any road, lane, footway, square, court, alley or passage whether a thoroughfare or not". Commenting thereon Pollock, M.R. said :

"It is plain therefore that we are go read 'street' in Section 3 as including a highway, and Hoylake Road is a highway. Bug the section does not say that all highways are streets; and the meaning of 'street' has still go be sought from a consideration of the circumstances of the case and of a number of authorities."

He went on go quote the passage I have already set out from Fullford⁽⁴⁾ and Barton Eccles⁽³⁾ and added :

"Now reading those passages it appears go me that what one has go find before one can determine that the highway in question is a street, is that the highway has become a street in the ordinary acceptation of that word because by reason of a the number of the houses, their continuity and their proximity to one another, what would be a road or a highway has been converted into a street. That is a question of degree."

36. Further support for Mr. Kaplan's proposition may perhaps be found within the Buildings Ordinance itself. Section 2 has this :

" 'Access road' means a road on land held under lease, licence or otherwise from the Crown or on land over which the Crown has granted a right of way, providing access only to buildings used or intended to be used wholly or mainly for purposes of habitation, and which is not a street."

37. A "road" is, included in the definition of street, and if a road not having the natural characteristics of a street is, nevertheless, by virtue of that definition, a street for the purposes of the Ordinance, the definition of access road is self-defeating.

38. On the other hand there is Regulation 5(1) : "Every building shall be provided with means of obtaining access thereto from a street". This would create difficulties if "street" were given only its natural meaning.

39. Mr. Ogden argues that natural characteristics cannot in any event be a pre-requisite, for many of the features mentioned in the definition could never possibly exhibit them. He instances a court and a footpath. With respect I do not think that is so. It is not difficult to envisage a court or a footpath with houses along one side.

40. At first glance the authorities put forward by Mr. Kaplan seem to lead to the general principle that a provision "X shall include Y" must be taken to mean "X shall include Y, but only if Y already has the characteristics of X". That would not be easy to reconcile with an earlier passage from the same judgment of Lord Selborne :

"An interpretation cause of this kind is not meant to prevent the word receiving its ordinary, popular, and natural sense whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject-matter to the contrary, to be applied to some things to which it would not ordinarily be applicable. I look upon this portion of the interpretation clause as meaning neither more nor less than this, that the provisions contained in the Act as to streets, whether new streets or old streets, shall, unless there be something in the subject-matter or the context to the contrary, be read as applicable to these different things. It is perfectly consistent with that, that they should be read as applicable, and should be applied, to those things to which they in their natural sense apply, and which do not require any interpretation clause to bring them in."(6)

41. However it is to be observed that both Fullford⁽⁴⁾ and Laird⁽⁵⁾ were concerned with particular legislation that could only apply to a street where there were already at least one or perhaps two houses and where the object of the legislation may well be thought to have been particularly relevant to a street in the natural sense of the word. The influence of these factors is I think clearly indicated in the judgment of Sargant L. J. in Laird⁽⁷⁾. And the judges in Fullrod⁽⁴⁾ were careful to relate their comments to that particular legislation.

42. For these reasons I take those two authorities to lay down no general principle, which in my view is to be found instead in the words of Lord Selborne that I have just quoted. Thus the bridge in question is to be treated as a street unless there is something in the subject-matter or context of the relevant regulations to the contrary. I do not find either. It follows that the Appellant is entitled to succeed. It has been agreed between Counsel that in that case the appropriate declarations are those numbered 1 and 4 in the Originating Summons.

Zimmern, J. A. :

43. This is yet another controversy on appeal over interpretation of the Building and Planning Regulations made under the Buildings Ordinance between the Building Authority and an intending developer of property.

44. The appellant plaintiff developer submitted its plans to the Building Authority for the redevelopment of No. 12 Bowen Road on the basis that it is a Class A site defined in the regulations as follows :

" "class A site" means a site, not being a Class B site or Class C site, that abuts on one street not less than 4.5 m wide or on more than one such street."

45. The Building Authority refused the application on the ground that it is not a Class A and that Regulation 19 applied. The consequence of that is extremely serious to the appellant.

46. The appellant applied by way of Originating Summons against the Attorney General for the usual declarations and the matter was heard before Fuad J. who dismissed the Summons and it now appeals.

47. The site is fully described in the judgment and all I need say is that the western boundary abuts on to a nullah. An "approach road" (I use the term for the purpose of description only) runs off Borrett Road on Crown land and over the nullah on to the site and that is its only entry by carriage.

48. Mr. Ogden contended before the learned judge :-

a) the nullah should be ignored and the site in fact abuts on to Borrett Road and

b) in any event the site abuts on to the road-bridge over the nullah and it is 4.5 m wide and as defined in the Ordinance it is a street.

49. As to the first contention the judge having visited the locus found as a fact that the nullah which lies between Borrett Road and the site was a very substantial natural feature and that the plaintiff could not successfully maintain that the site abutted on to Borrett Road.

50. As to the second point he found that the definition of "street" in the regulations was relevant to the determination of matter and accordingly decided the road-bridge was not a street.

51. On appeal the same contentions were advanced to us and as to the first Mr. Ogden had to admit that the learned judge had applied the right pr principles in his determination. The conclusion he came to was based on a finding of fact and in my view cannot be successfully challenged.

52. It is the second which has caused some concern and I only wish to deal with one matter on the issue and may I firstly express my respectful agreement with my brothers that the foot bridge is not less than 4.5 m wide and that the learned judge was wrong in holding that the definition of "street" in the regulations applied to the exclusion of the definition in the Ordinance

53. The Ordinance defines 'street' "includes the whole or any part of any square, court or alley, highway, lane, road, road-bridge, footpath or passage whether a thoroughfare or not" under the familiar "unless the context otherwise required" clause in the section.

54. Neither Counsel mentioned the definition of "street and road" in the Interpretation and General Clauses Ordinance.

55. Mr. Kaplan for the Attorney General advanced a new argument that the word "street" in the Ordinance means a "common law street" i.e. a highway bounded by houses on one or both sides and hence the road-bridge was not a street. This was an argument which if right could have far reaching effect on the application of the regulations.

56. He relied on Attorney General v. Laird⁽¹⁾ a Court of Appeal case concerning the interpretation of the word "street" under the Public Health (Buildings in Streets) Act 1888 with a similar definition to ours and the "unless the context otherwise requires" clause.

57. Pollock M. P. said at pages 326 to 329 :-

"The word 'street' which is used in that section is defined by s.2 of the Act by reference to s.4 of the Public Health Act, 1875, which defines 'street' as including 'any highway and any public bridge (not being a country bridge) and any road, lane, foot-way, square, court, alley or passage whether a thoroughfare or not.' It is plain, therefore, that we are to read 'street' in s.3 as including a highway, and Hoylake Road is a highway. But the section does not say that all highways are streets; and the meaning of 'street' has still to be sought from a consideration of the circumstances of the case and of a number of authorities.

What this Court has to decide is the question of law, whether or not MacKinnon J. s judgment was correct. I turn, therefore, to a more careful scrutiny of the words of s.3 and find that what is forbidden without the consent of the urban authority is to erect or bring forward any house or building in any street beyond the front main wall of the house or building on either side therefor in the same street. Now first of all, what is a street? By the section it includes a highway but turning back to Reg. v. Fullford,⁽²⁾ decided by the Court of Crown Cases Reserved, upon the consideration of s.28 of the Act of 1861 one finds some guidance g given by the learned judges who took part in that, decision. Sir William Erle C. J. there says ⁽³⁾ : 'I was very desirous that the parties who have to carry this Act into effect should have, from those whose duty it is to interpret it, a definition of what is a street within the meaning of the Act. I think the term street in this statute, refers to a row of houses, in some degree continuous and in some degree proximate to one another. The whole question is, whether these houses have attained that degree of continuity and proximity?' Blackburn J. says⁽³⁾ : 'The question is, whether the house and building of the defendants formed part of a street, and whether the adjoining houses formed part of it. It is a question of more or less, and therefore a question for the jury. Within the meaning of the Act, houses form part of a street when the houses and buildings on one side are so contiguous as substantially to form a continuous row.' He goes on : 'Had I to express an opinion respecting one part of this so-called street, I should say that it was a street; but with regard to the particular part where the defendants' house is situate. I think the jury might have well found either way. Had I been a juryman, I am not certain what way I should have found.' Pollock C. B. says⁽³⁾ : 'If I had to direct the jury in this case, I should tell them that a set of detached houses, not being in a continuous line, and some facing one way and some another, and having no appearance of uniformity at all, was not a street within the meaning of this Act of Parliament.'

Now I read those passages, because it appears to me that upon the predecessor of s.3 it was determined by a Court of great authority that in order to come within the term 'street' one has to find a succession of houses and buildings, at least on one side, with some degree of continuity and proximity. If this is so, it becomes a question of fact whether a street has been built, and that what was a mere highway has become a street.

In Robinson v. Barton-Eccles Local Board ⁽⁴⁾ the question of by-laws made under s.157 of the Public Health Act, 1875, relating to a new street and to its width and construction was considered. Lord Selborne, dealing with the word 'street', says⁽⁵⁾ : 'In the natural and popular sense of the word 'street,' or the words 'new street,' I should certainly understand a roadway with buildings on each side (it is not necessary to say how far they must, or may be, continuous or discontinuous); and by 'new street,' a place which before had hot that character, but which, by the construction of buildings on each side, or possibly on one side, has acquired it.'

Now reading those passages it appears to me that what one has to find before one can determine that the highway in question is a street, is that the highway has become a street in the ordinary acceptation of that word, because by reason of the number of the houses, their continuity and their proximity to one another, what would be a road or a highway has been converted into a street. That is a question of degree. More than that, it appears from Reg. v. Fullford⁽²⁾ and, indeed it is accepted by the respondent, that there may be a road which is a street in one part and not in another. It is all, therefore, a question of fact."

He found as a matter of fact Hoylake Road was not a street.

58. It seems to me there are two possible explanations for his judgment. First, having said that "it is plain therefore, that we are to read 'street' in s.3 as including a highway", he was of the opinion that that the context required otherwise by reason of his conclusion expressed and contained in the first sentence of the last paragraph set out above. Secondly, he might have decided that the context otherwise required a strict construction though it was Astbury J. who said at 338 "This section is one depriving an owner of land of what apart from it would be one of his rights of dominion and I think it must be strictly construed."

59. I am quite unable to accept that case as an authority for the proposition that where an Ordinance defines "street" as including "road" then a "road" does not mean a "street" until and unless the requisite number of houses have been built on either or both sides to satisfy a finding of fact that it has become a street. The definition prevails unless the context otherwise requires. This is brought out succintly in the House of Lords Case mentioned by Pollock M.R. namely Robinson v. The Local Board For The District of Barton-Eccles Winton and Monton.⁽⁴⁾

60. That case concerned the interpretation of s.157 of The Public Health Act 1875 which enabled an urban authority to make bye-laws with respect to the level, width and construction of new streets. The facts were simple. An old highway formerly a country lane had long been a "street" within the interpretation clause of the Act and the question was whether by the building of houses on each side of it had recently become a new street.

61. My Lord the Vice-President has dealt with the leading speech of the Lord Chancellor and I only wish to quote a short passage from the speech of Lord Blackburn at p.809. He said :-

"On that question we have the facts stated in the special case, and I gather from them that New Lane (which is rather a misnomer, for it is an old lane), was an ancient highway which came within the definition of "street" in the interpretation clause, I think, originally of the Act of 1848, because it was a highway (not being a turnpike road). There have grown up within the last ten years a quantity of houses, of which I will only say that there is enough congruity to say that part has become a street in the popular and ordinary sense of the word, namely, a highway with houses on each side, and consequently that this part has become a new street."

It seems to me clear the law Lords in that case were agreed that even though the old highway came within the definition of street long ago nevertheless the houses when built turned it into new street in the popular sense of the word.

62. In my view the road-bridge in instant case comes within the definition of street under the Ordinance and the sole question left is whether the site abuts on to it. If it does then the site is a Class A site and the appeal succeeds. It is a matter on which I have my doubts in respect of an approach road which runs into the site. However Mr. Ogden had throughout argued that the site for the purpose of the regulations does so abut and we have had no argument to contrary on behalf of the Attorney General. So be it. I would allow the appeal. In so saying and speaking for myself, I want to make it clear that this is not an authority for the proposition that a site necessarily abuts on to an approach road which runs into it.

(1) (1864) 33 L. J. (M. C.) 122

(2) (1925) 1 Ch. 318

(3) (1925) 1 Ch. 319

(4) 8 App. Cas. 798

(1) (1876) 1 Ex. 336

(2) (1895) 16 Q. B. D. 577

(3) (1883) 8 App. Cas. 798, 801

(4) 33 L. J. M. C. 122

(5) (1925) 1 Ch. 318

(7) at page 333/4

(1) [1925] 1 Ch. 318.

(2) 33 L.J. (M.C.) 122.

(3) Ibid. 125.

(4) 8 App. Cas. 798.

(5) Ibid. 801.

(2) 33 L. J. (M. C.) 122.

(4) (1883) 8 App. Cas. 798

Representation:

Michael Ogden, Q. C., K. Bokhary (Woo, Kwan, Lee & Lo) for Appellant.

Kaplan, S. Y. Chan (Legal Department) for Respondent.