Profit Success Development Ltd v. Appeal Tribunal (Buildings) and Another

HCAL94/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 94 OF 2011

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J U D G M E N T

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A. INTRODUCTION

1.This is the applicant’s application for judicial review against the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 3 August 2011.  By the Decision, the Tribunal dismissed the applicant’s appeal against a demolition and re-instatement order dated 21 August 2009 (“the Order”) issued by the Building Authority (“the BA”) in respect of two building works located at an industrial building (“the Building”) in Kwun Tong.

2.The Order relates to the following two alleged building works at the Building:

(1)  A structure erected at the 1/F carpark, and used as a control room (“Structure 1”).

(2)  Metal platforms and staircases erected above the ramped driveway from G/F to 1/F and near Kerry Godown (Chai Wan) (“Structure 2”).

3.The applicant now seeks to quash the Decision and for an order to require a differently constituted Tribunal to re‑consider the Decision in accordance with the law and allow the appeal.

4.The Tribunal as the respondent takes a neutral stance in this application and has not taken any parts in it.  The BA is joined as the interested party and opposes the application.

B.   THE FACTS

B1.1   The Building and the Structures

5.The applicant is the owner of the Building. Anderson Concrete Ltd (“ACL”) is the lessee.

6.The Building is situated near the sea and has been used by ACL for its concrete mixing operations. 

7.Structure 1 is a container and fully enclosed. It is made of metal sheets and transparent panels that rest on metal frames. It is of approximately 9m x 4m and 3.5m and erected on 1/F carpark area of the Building.  It weighs about 12,000kg.

8.Structure 2 is approximately 35m x 8m x 7m and consists of metal platforms of 6 levels together with linking staircases to all levels.  It is erected above the ramped driveway from G/F to 1/F of the Building.

9.The Tribunal describes in the Decision the operations of ACL as follows: cements and aggregates of various sizes are delivered to the Building by sea and then loaded onto the “cement and aggregate storage bins” by bucket elevators.  The cement and aggregates are then unloaded in precise quantities from “cement and aggregate bins”.  Through the hopper, the metal weight scale and various other plant and equipment installed at the hopper room mix with water and admixture (supplied by the water tank and the 12 number of admixture tank sit on the metal platform of Structure 2), unto the ready-mix concrete trucks for delivery to construction sites.

B1.2   The Buildings Ordinance

10.Under s 14(1) of the Buildings Ordinance (Cap 123) (“BO”), save some exceptions provided under the BO, no person shall commence or carry out, inter alia, any building works without having first obtained from the BA[1] (a) his approval in writing of building plans submitted to him in accordance with the regulations, and (b) his consent in writing for the commencement of the building works.

11.Under s 2 of the BO, “building works” is defined as follows:

“building works (建築工程) includes any kind of building construction, site formation works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alteration, addition and every kind of building operation, and includes drainage works.” (emphasis added)

12.S 24(1) of the BO provides effectively that, where any building works have been carried out in contravention of any of the provisions in the BO, the BA may issue an order in writing requiring the demolition of that building works and reinstatement. 

B1.3   The Order and the appeal before the Tribunal

13.On 21 August 2009, the BA issued the Order to the applicant under s 24(1) of the BO in respect of Structures 1 and 2 (collectively, “the Structures”).  It is the BA’s position that the Structures were building works carried out in contravention of s 14 of the BO, as no approval of any building plans relating to these building works and consent for their commencement had been first obtained from the BA.

14.The Order requires the applicant to (amongst others):

(1)  Demolish the Structures and reinstate parts of the Building so affected by the buildings works under the Structures in accordance with the plans previously approved by the BA.

(2)  Commence the works so ordered within 90 days and complete such works within 120 days of the order, to the satisfaction of the BA.

(3)  Appoint a registered General Building Contractor or Registered Specialist Contractor in the demolition category to carry out the above ordered works, and an Authorised Person or a Registered Structure Engineer to advise on the details of the works.  Prior to the commencement of the demolition works, the appointed Authorised Person is required to submit plans of the works and protective measures to the BA for agreement before the commencement of these works.

15.On 9 September 2009, the applicant filed the Notice of Appeal against the BA’s decision to issue the Order.

16.After filing various documents and written representations, the appeal was heard before the Tribunal in March and May of 2011 for a total of 7 days.  A site inspection was also carried out on 16 March 2011. 

17.The Tribunal delivered the Decision in writing on 3 August 2011, dismissing the appeal.

B1.4   The Decision

18.The applicant raised a number of grounds to challenge the Order before the Tribunal.

19.For the present purposes, two of these appeal grounds are more relevant to this judicial review.  They can be summarised as follows:

(1)  Both Structures 1 and 2 are not “building works” as defined under the BO, but are plant, machinery or equipment (under regulation 17(2)(e)(i) of the Building Regulations (“the Regulations”)). They therefore do not fall within the purview of the BA.  I would call this the “building works ground”.

(2)  The Order is invalid, void and unenforceable as (a) the approved plans of the Building do not contain the necessary architectural details of the SGF (Steel Grill Floor) which renders the SGF uncertain, it is therefore impossible to reinstate the SGF and the Order is unenforceable, and (b) the Order is invalid because it requires the applicant to commence demolition works (which are building works under the BO) without having first obtained the BA’s approval of the plans for such demolition works and the necessary consent.  This itself is in breach of order 24(1) of the BO, which renders the Order unlawful and thus invalid.  I will call this the “invalidity ground”.

20.The Tribunal in the Decision rejected all the grounds (including the above two grounds) raised by the applicant and dismissed the appeal. 

21.On 1 November 2011, the applicant applied for leave for judicial review against the Decision, where leave was granted on 11 November.

C.   GROUNDS OF JUDICIAL REVIEW

C1.   Failure to give any or any adequate reasons

22.The first ground of the judicial review relates to the Decision in rejecting the building works ground.

23.There is no dispute between the parties that fairness requires the Tribunal as the body hearing the appeal to give adequate and intelligible reasons for its decision, and the failure to do so could amount to a valid ground in judicial review to quash the decision.  See: Lo Yin Ming v Appeal Tribunal v Appeal Tribunal (Buildings) [2011] 3 HKLRD 586, paragraph 11 per Lam J (as he then was); Smart Gain Investment Ltd v Town Planning Board (unrep, HCAL 12/2007, 6 November 2007), at paragraphs 29-30, 82-85 per A Cheung J (as he then was); Oriental Daily Publishing Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279, at 288J‑292G per Li CJ.

24.It is the applicant’s contentions that in rejecting the building works ground, the Tribunal has failed to give any or any adequate reasons. The arguments run as follows.

25.In the appeal, it was the applicant’s submissions that whether certain works fell within the meaning of “building works” under the BO should be determined by reference to what was called the “functional test” as laid down in a number of English authorities relied on by the applicant.  By applying the functional test (as further contended by the applicant before the Tribunal), Structures 1 and 2 should be regarded as “plant, machinery or equipment”.  Once they are so properly regarded as plant, machinery or equipment under the Regulations, they are not building works.

26.The BA on the other hand submitted to the Tribunal that in determining whether the Structures fell within the meaning of building works, it should apply the test laid down in Leung Lai-so[2] by taking into account of all the circumstances of the case, which included the relevant factors (“the Relevant Factors”) such as[3]:

(1)  The degree of fixation of the subject structure;

(2)  The degree of performance of the structure;

(3)  The size of the structure;

(4)  The intended use of the structure;

(5)  Whether the structure is provided with facilities such as power and water;

(6)  The ease with which the structure may be removed or dismantled; and

(7)  The ease with which the structure was constructed and ensembled.

27.After setting out the contentions of the applicant and the BA at paragraphs 19 to 40 of the Decision, the Tribunal decided that (a) it should adopt the test in Leung Lai-so in determining whether the Structures amounted to building works or not, and (b) after taking into account of the Relevant Factors in the present case, it came to the finding that the Structures were building works.  The Tribunal explained these at paragraphs 64 to 66 of the Decision as follows:

“64. This Tribunal is of the view that the Appellant’s submitted tax cases on the definition of plant, machinery and equipment focus on the aspects of ‘operation’ and ‘carrying on the business’. They are used in a restricted sense. This Tribunal accepts the submission made by the Respondent that the interpretation of the word ‘building’ in the Morrison’s case is also very restrictive and is entirely different from our Buildings Ordinance. This Tribunal agrees that to decide whether something amounts to building or building works, this Tribunal not only has to look at the fact and circumstances of the case, but also has to consider all the relevant factors as set out in Leung Wai Ho’s [sic] case.

65. The Appellant says the closest decision to the facts of the present case is Schofield. The small structure called the workhouse can be compared to Structure 1. Gantries can be compared to the Structure 2, which is the platforms and staircases. Yet, the workhouse in Morrison’s case was in effect the lift shaft for the silo. Jones LJ in his judgment on p 368 made it abundantly clear that ‘I have confirmed the statement of the question to “plant” as insofar as any machinery is involved, eg the lift in what is termed in the case stated “the workhouse”. It is therefore “the workhouse” in fact lift shaft is always treated as “plant”. No dispute arises’. Furthermore, at the end of this consideration of all referred cases to him, Judge Jones said, ‘ … those authorities provide guidelines, but each individual case must depend on its particular circumstances.’

66.  This Tribunal has taken into consideration all the circumstances of his case and the relevant factors in Leung Lai So’s case and finds unanimously that Structure 1 and Structure 2 are building works and fall within the definition of ‘building’ under the Ordinance and also fall within the purview of the BA.”

28.The applicant now submits that what the Tribunal had effectively said is simply that it had taken into account of the Relevant Factors in considering whether the Structures were building works, but the Tribunal had singularly failed to explain with any or any adequate reasons as to why and how after taking the Relevant Factors into account would have made the Structures building works.

29.In particular, the applicant complains that it is simply left in the dark to understand how and why, after taking into account of the Relevant Factors, the Tribunal had come to that finding.   

30.I agree with the applicant.

31.In my view, by reading the Decision, and in particular paragraphs 64 to 66 thereof, one would not be objectively able to understand how, after taking into account of the Relevant Factors in the circumstances of the present case, it would have made the Structures building works but not plant or machinery:

(1)  In taking into account of the Relevant Factors to conclude that the Structures were building works, the Tribunal was making a factual finding based on the evidence (that it had accepted) regarding these factors.  The applicant is entitled to (and the Tribunal is obliged to give) explanations and reasons as to what evidence regarding the Relevant Factors had been accepted by the Tribunal, why it had been so accepted, and why such accepted evidence rendered the Structures more of building works than say machinery or plant[4].

(2)  This is particularly so since Leung Lai-so itself does not provide how the Relevant Factors would make a particular structure more of a building work but not others.

(3)  However, in the Decision there are simply no explanations, for examples, as to:

(a)  what evidence in relation to each of the Relevant Factors that had been accepted by the Tribunal for the purpose of determining whether the Structures were building works.

(b)  what benchmark or reference was the Tribunal making to measure and compare within each of these factors.  For example, what and how comparison had been made say in relation to the degree of the fixation of the Structures 1 and 2 so as to render them more in the nature of building works instead of a plant or equipment,

(c)   why in making such a comparison a particular factor had made the Structures more (or less) of building works,

(d)  whether all of the Relevant Factors had made the Structures more of building works or not; and if not,

(e)   how do these factors interact with each other, say whether and when one factor (such as the intended use of the Structures) made the Structures more of a plant and machinery, and the other factors made them more of the nature of building works.

32.For these reasons, in my view, the Tribunal has failed to give any or any adequate reasons as required by fairness to explain its bases in rejecting the building work ground.

33.Thus, I would allow the judicial review and quash the Decision on this ground.  I would further remit the Decision back to the same Tribunal to reconsider the building works ground.

C2.   Error of law – the Tribunal misread or misunderstood Morrison    v CIR

34.As mentioned above, under the building works ground, the applicant submitted that the test to be applied was the functional test.  It relied on, inter alia, the authority of Morrison v Commissioner of Inland Revenue [1915] 1 KB 716.

35.In this ground of judicial review, Mr Ismail for the applicant submits that, in considering the intended use factor under the Relevant Factors, the Tribunal had misread Morrison and thus had taken into account of an irrelevant matter in its decision.  This amounts to an error of law. 

36.Mr Ismail develops his arguments as follows:

(1)  In Morrison v CIR, Rowlatt J said at page 722, that:

“The character of the erection and the nature of the property on which it is and its function on that property must all be looked at”

(2)  The passage from the judgment of Rowlatt J in Morrison v CIR is in line with Leung Lai-so because the “character of the erection and the nature of the property on which it is and its function” are part of the circumstances of the case.  The “function” of the erected structure is akin to its “intended use”.  It is therefore irrelevant that Morrison v CIR is based on a definition of “building” that is different from that in BO s 2(1) or that it is less restrictive as observed by the Tribunal at paragraph 64 of the Decision.

(3)  Structure 1 and Structure 2 are and were used in carrying out the applicant’s “business” and fulfilled the function of plant or machinery in the applicant’s “operation” in the Building.  They played an important and vital part in the efficient operation of the process of storing, loading and unloading cement and aggregates in the Building.  They are integral parts of the loading and unloading facilities.  Such use and function point against them being “buildings” or their construction or erection “building works” applying Leung Lai-so and point towards them being plant, machinery or equipment.  The Tribunal failed to take such use and function into account but instead took into account an irrelevant consideration, ie, that Morrison v CIR is based on a definition of “building” that is different from that in s 2(1) of the BO.

37.I reject these submissions:

(1)  Reading paragraphs 64 and 65 of the Decision, the Tribunal’s comments on Morrison were made in the context and for purpose of distinguishing it to reject the applicant’s submissions that the Tribunal should adopt the functional test alone. 

(2)  In my view, this was a comment fully and reasonably open to the Tribunal to make to explain why it adopted the test in Leung Lai-so instead of the functional test alone. 

(3)  There is thus no question that the Tribunal had taken into account of an irrelevant consideration (as submitted by the applicant) in later applying the test under Leung Lai-so. 

38.I therefore reject this ground of judicial review.

C3.    Error of law – the Order is defective and reinstatement impossible

39.Under this ground, Mr Ismail contends that the Tribunal also misread or misunderstood the relevant approved building plans in its findings at paragraphs 69 and 70, 77 and 78 of the Decision. 

40.Counsel then sets out in some details at paragraphs 57 to 61 of his skeleton submissions as to why he says the Tribunal had misread these building plans, and submits that the BA was “under a duty to ensure that relevant material was fairly and adequately presented to the Tribunal”.

41.The applicant then further submits that, as such, the Tribunal should have found that:

(1)  The Order, in the manner it was worded, was grossly inadequate, ambiguous and devoid of particularity, in that it failed to identify the offending structures (ie, Structures 1 and 2) with any degree of certainty; and

(2)  In the absence of evidence of the existence, exact spot level, fixing details, member size, materials and thickness of the SGF, the Order (even if valid) was “hopelessly ambiguous and uncertain” from the recipient’s point of view, and that re-instatement in accordance with the approved building plans was impossible.

42.I have difficulty in understanding these submissions insofar as they are made to support that the Decision was made with an error of law:

(1)  The Tribunal dealt with this issue at paragraphs 69 to 78 of the Decision on the evidence and arguments submitted.  Insofar as the applicant’s present submissions are made to suggest that no reasonable Tribunal could have found on the evidence of those building plans what the Tribunal has concluded in the Decision, this is simply not made out.  In my view, from what I have seen from the reasoning of the Tribunal and the evidence laid before it, this is a conclusion that is reasonably open to the Tribunal to make.

(2)  There are also no submissions to (and there is also nothing before me that could so) suggest that, in making the findings on the evidence of the building plans, the Tribunal had taken into account of any irrelevant materials.

43.I will therefore also reject these submissions. This ground of judicial review must similarly fail.

C4.   The Tribunal made mistakes of fact

44.The applicant says under this ground that the Tribunal made the following two errors of fact:

(1)  It wrongly stated at paragraph 3 of the Decision that cement and aggregates mixed with water and admixture, before they were loaded onto the concrete trucks.  The applicant now says the cement and aggregates are mixed with water and admixture inside the rotating drums of the concrete trucks after they are separately (although simultaneously) loaded in them.

(2)  The Tribunal stated at paragraph 55 of the Decision that, from what it saw at the site inspection, one side of Structure 1 was “firmly affixed to the wall”. The applicant now says this was not the case.

45.I find this ground in support of the judicial review wholly without merits:

(1)  The so-called first error (even if made) is entirely irrelevant to the Decision.  This was a general description of ACL’s operation in concrete mixing made by the Tribunal by way of background and introduction.  As far as I can see, this is entirely irrelevant and immaterial to any of the Tribunal’s reasoning in rejecting all the appeal grounds.

(2)  The alleged second error of fact was not made out by the applicant at all.  This is a factual finding made by the Tribunal after a site inspection.  There is simply nothing before this court that could show that the Tribunal was clearly wrong on this. 

46.I will therefore dismiss this ground with no hesitation.  I must also say that I have serious reservation as to why counsel is prepared to advance such a ground which is clearly without merits.

C5.   The Tribunal erred in law in holding that the Order was not   invalid, void or unenforceable

47.Under the invalidity ground, the applicant submitted before the Tribunal that the Order was invalid as itself was in breach of s 14(1) of the BO, because it required the applicant to commence demolition and reinstatement works (which were all building works under the BO) without first requiring it to obtain from the BA (a) his approval of the plans of the proposed works, and (b) his consent before commencement of these building works.

48.The Tribunal dismissed this ground and explained its reasons at paragraphs 67 to 68 of the Decision:

“67. This Tribunal heard lengthy evidence on the spot level of the SGF, Counsel for the appellant’s analysis and dissection of the Order. The Tribunal is of the view that the Order is properly issued under s 24(1) of the Order. That Order under s 24(1) is not subject to s 14 of the Order. It is not proper to dissect the Order in such a manner as suggested by Counsel for the appellant. The requirement of the appellant to appoint an Authorized Person to submit plan in respect of the demolition works and protective measures to the BA for agreement before the commencement of the works shows nothing but the willingness of the BA to assist, as far as possible, the appellant to comply with the Order under s 24(1), without recourse to the rigid requirement under s 14 of the Ordinance. Further, this Tribunal fails to find the Order under s 24(1) is made subject to s 14 of the Ordinance.

68.  In particular, the demolition works of the present complaint is not like the demolition of a building which requires submission of detailed plans and obtaining the consent.  If no agreement is reached, the BA would have the power to require the appellant to proceed with the demolition works in accordance with s 14.  That is, in the view of this Tribunal, what the BA hopes or intends to avoid.”

49.The applicant submits that the Tribunal erred in law under this part of its Decision in:

(1)  Deciding that it was not proper to “dissect” the Order.  Such dissection (says Mr Ismail) was not only proper but also necessary to see if the BA acted lawfully within his powers;

(2)  Stating that “the demolition works of the present complaint is not like the demolition of a building which requires submission of detailed plans and obtaining the consent”, because s 2(1) of the BO states that “building works” includes any kind of demolition and every kind of building operation.  The word “includes” indicates that the definition is not exhaustive: see B v The Commissioner of the Independent Commission Against Corruption (2010) 13 HFCFAR 1 at paragraph 5; and

(3)  Deciding that the Order was properly issued under s 24(1) of the BO and was not subject to s 14(1) thereof, because the demolition and reinstatement works referred to in the Order fell within the definition of “building works” in s 2(1) and the BA has no power to exempt itself from s 14 under s 42(1) of the BO, as s 42(5) provides expressly that s 42 does not apply to s 14 of the BO.

50.Mr Ng for the BA in this application does not appear to advance any arguments in support of this part of the reasoning of the Tribunal’s decision.  I think rightly so.  In my view the Tribunal’s above reasons are incorrect in law as submitted by the applicant.

51.However, Mr Ng submits that whether the Order is invalid is a matter of law and the court could decide it in this application. Counsel further contends that the Order is clearly in compliance with s 14(1) of the BO because:

(1)  Under paragraph 3(b) of the Order, the applicant was required to reinstate in accordance with the “approved” plans. There was therefore no need for the BA to ask the applicant to submit further plans for approval, as the plans which the applicant were asked to follow had already been previously “approved”.

(2)  Under paragraph 4 of the Order, the applicant was required to commence, inter alia, the reinstatement works within 90 days and complete such works within 120 days of the date of the Order, this obviously was BA’s consent in writing of the reinstatement works.

52.In gist, the BA’s submissions are that the approval of the plans and the consent (as required under s 14(1) of the BO) in relation to the demolition and reinstatement works were already given by the BA at the time of the Order. 

53.S 14(1) of the BO provides as follows:

“(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 writing of documents submitted to him in accordance with the regulations; and

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

54.As a matter of proper construction, I agree and hold that the wording of s 14(1) of the BO permits a situation where the BA can his approval and consent at the same time of issuing an order under s 24 of the BO. 

55.However, as to whether (as a matter of fact) the demolition and reinstatement works specifically required to be carried out under the present Order need no further submission of any plans other than the previously “approved” plans, I do not know, as this relates to evidence.  This is particularly so as demolition works themselves are “building works” under the BO, while at the same time the previously “approved plans” may be relevant only to the reinstatement works required under the Order.  I have not been shown evidence which shows whether the previously “approved plans” can be properly regarded to cover and be relevant to the “demolition works” as well. This court is therefore not in a position to come a conclusion one way or the other as to whether (as a matter of fact) the necessary and relevant “approval” and “consent” under s 14(1) can be regarded as having already been given by the BA at the time of the Order.

56.For this reason, I would also quash the Decision on this basis, and remit this question back to the Tribunal to determine whether on the evidence and facts of the present case, the necessary approval and consent required under s 14(1) of the BO can been regarded as having already been given by the BA at the time of the Order.

C6.   The Tribunal failed to exercise its own independent discretion

57.S 50(2) of the BO provides the Tribunal with a discretion that, in determining an appeal, it may make an order confirming, varying or reversing the appealed decision, and make any such other order as it thinks fit. 

58.The applicant now says the Tribunal simply failed to exercise this discretion independently, as the Tribunal said the following at paragraph 79 of the Decision:

“79. This Tribunal is not prepared to invoke s 50(2). It is because the Order is not defective as alleged. This Tribunal is also not prepared to exercise the discretion either. For Structure 2 is a large scale building works and has to hold the weight of 400,000 lb, even though this Tribunal accepts the calculation put forward by Mr Cheung Wing for the appellant that the loading of Structures 1 and 2 ‘remains to be within the approved loading limit of the building despite the increased in loading’. ”

59.These reasons (says the applicant) show that the Tribunal failed to exercise its discretion independently, as they are not proper reasons because:

(1)  The first reason for not invoking the discretion conferred by s 50(2), ie that the Order is not defective, is not a reason at all because such discretion will not be engaged if the Order was defective.

(2)  The Tribunal therefore gave no reason for not exercising its discretion relation to Structure 1.

(3)  The scale and weight of Structure 2 are not, and cannot be, adequate or rational reasons for not exercising the discretion especially given that Structure 2 is in a purpose-built industrial building, and within its approved loading limits and given the Tribunal’s finding in paragraph 3 of the Decision that the water tank and the 12 number of admixture tanks which supplied water and admixture to the cement and aggregates “sit on the metal platform of structure 2”.  It is also irrelevant that Structure 2 is “building works” because the Tribunal would have no discretion if it was not “building works”.

(4)  The Tribunal thus attached manifestly:

(a)  excessive weight to the scale and weight of Structure 2; and

(b)  inadequate weight to, among other things, the opinion of the applicant’s expert that the loading of Structure 1 and Structure 2 “remains to be within the approved loading limit of the building despite the increased in loading”; the evidence that Structure 1 and Structure 2 are clearly part and parcel of the applicant’s operations that are carried out in the Industrial Building (see paragraph 58 of the Decision) and are safe, and pose no danger (see paragraph 60 of the Decision),

60.With respect, there is nothing in this ground.

61.First, the matter must be looked at in the proper context and as a whole of the Decision.  The Tribunal dismissed with its own reasons (rightly or wrongly) all the grounds advanced by the applicant in the appeal.  As such, it had exercised its discretion under s 50 of the BO to confirm the Order.  It clearly cannot be said that the Tribunal failed to exercise the discretion independently.

62.Second, the applicant’s above submissions amount to basically saying that the Tribunal’s reasons not to exercise its discretion in applicant’s favour are wrong.  This is very different from saying that the Tribunal failed to exercise its discretion independently. 

63.Thirdly, insofar as the applicant is challenging the Tribunal’s reasoning under Structure 2 as set out above, this again is in effect a challenge on a finding of fact based on the assessment of evidence, which is generally not permissible or available in judicial review (save if it amounts to an error of law, Wednesbury unreasonableness or irrationality).

64.I have no hesitation in dismissing this ground as well.

C7.   The Decision was irrational

65.As a cover-all ground, the applicant says for all the grounds it has advanced above, the Decision is also irrational in the public law sense.

66.As I said above, none of the grounds submitted above (including the grounds that I have allowed) supports a challenge that the Decision was irrational.  I will also dismiss this ground.

D.   CONCLUSION

67.For the above reasons, I would allow this application and quash the Decision.  I would further remit the appeal back to the same Tribunal for reconsideration of the following two questions:

(1)  The building works ground.

(2)  Whether on the evidence of the present case (and the Tribunal is at liberty to call for further evidence if it thinks fit), the necessary approval and consent required under s 14(1) of the BO for the demolition and reinstatement works stated under the Order can be regarded as having already been given by the BA at the time of the Order.

68.As to costs, since the applicant is successful in this application, costs should generally follow the event.  However, as indicated above, I am of the view that the grounds raised in support of this application and discussed at sections C3, C4, C6 and C7 above clearly have no merits and the applicant has thus unreasonably pursued them at the substantive hearing, which have incurred further costs and time.  The applicant should not be entitled to recover these costs[5].  In the circumstances, in the exercise of my discretion, I think it is only just to make an order nisi that two-thirds of the costs of the present application be to the applicant, to be taxed if not agreed.  The order shall be made absolute 14 days from today unless any of the parties applies by summons to vary it.

Mr Anthony Ismail, instructed by Mayer Brown JSM, for the applicant

Attendance of the respondent was excused

Mr Stanley Ng, instructed by the Department of Justice, for the interested party