Building Authority v. Appeal Tribunal (Buildings)
Read the full judgment text of HCAL 45/2012 on BabelCite. This High Court CFI judgment was delivered on 22 November 2012.
1. This case is about a development project at 45-47 Pottinger Street, 1-5 Tung Lo Lane and 4-7 Erza’s Lane [“the Site”]. The owner of the Site is Long Winner Development Limited. The project involved the construction of a 31-storey composite commercial/ residential building at the Site. Of the 31 storeys, there would be a tower of 25-storey domestic units above a 1-storey club house and 5 storeys for restaurant use.
Cited by 2 cases · Cites 1 case
|
HCAL 45/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 45 OF 2012 ________________________ BETWEEN
________________________
________________________ J U D G M E N T ________________________ Background 1.This case is about a development project at 45-47 Pottinger Street, 1-5 Tung Lo Lane and 4-7 Erza’s Lane [“the Site”]. The owner of the Site is Long Winner Development Limited. The project involved the construction of a 31-storey composite commercial/ residential building at the Site. Of the 31 storeys, there would be a tower of 25-storey domestic units above a 1-storey club house and 5 storeys for restaurant use. 2.The Site was described as follows at para 5 of the Form 86, which is not disputed,
3.As the matter stood in 2003, the available site coverage and plot ratio calculated in accordance with the Building (Planning) Regulations was not enough to provide for such a development. But the Building Authority [“BA”] may grant a modification under section 42 of the Building Ordinance. 4.In support of an application for modification under s42, in 2003 the developer commissioned a consultant to prepare a proposed pedestrian enhancement scheme with regard to the use of the Site. The study, based on the then available information, referred to the linkage with the planned Central West Station of the Shatin-Central Link [“the Station”]. The proposal involved the surrender of 158.769 sq m of the site area for footpath widening and the dedication of 58.608 sq m of site area for public passage. Such surrender and dedication would be made in exchange for bonus site coverage and plot ratio to allow the proposed project to be approved. 5.That proposal was considered by various government departments. In 2004, the Transport Department advised the Building Department that the proposed surrendered and dedicated areas and the associated upgrading works would provide a 4.5m wide comfortable and convenient walkway which would be essential for improvement of local pedestrian network having regard to the envisaged pedestrian increase arising from the Station. 6.There were events between 2004 and 2007 concerning the project which this court was not given any information. From the papers, apparently there had been submissions of some plans to the BA which were not approved[1]. For present purposes, it suffices to refer to the submission of plans in September 2007. Before that submission, the developer had already executed the following documents in furtherance of the proposed surrender and dedication,
7.On 19 September 2007, an authorized person submitted a set of General Building Plans [“the GBP”] in respect of the proposed development to the BA for approval. The GBP included floor plans for all the floors in the project and contained all the calculations regarding plot ratio and site coverage. 8.In a document called Justification for the Surrender/Dedication dated 19 September 2007 written on behalf of the developer submitted to the Building Department, it was said,
9.That document was submitted in support of two applications dated 19 September 2007 for modification/exemption under Section 42 of the BO, one in respect of the surrender and one in respect of the dedication[4]. 10.On 17 October 2007, the BA granted a permit under Section 42 [“the Permit”] and approved the GBP. The Permit was a modification of and/or exemption from various provisions in the BPR in respect of the proposed development in the GBP. For our purposes, the relevant provisions identified in the schedule to the Permit for which modification and/or exemption was granted were,
11.The Permit was granted subject to conditions. The relevant ones for our purposes are as follows,
12.The effect of the Permit was described at para 13 of the Form 86 as follows,
13.Construction works under the project had proceeded. On 8 October 2008, the BA gave consent to the commencement of “Foundation (Mini-Piles with Structural Case) works” for the project. On 24 September 2009, the BA gave approval for the proposals in respect of “Excavation and Lateral Support (including Channel Planking, Pipe Pile, Shear Pile and Soldier Pile)”. The developer carried out foundation works in accordance with these proposals. Such works commenced on 10 September 2009 and progressed steadily since then. By Feb 2011, piling work had been completed. According to the evidence of Alexis Wong, the Deputy Managing Director of the Authorized Person acting for the developer, 10% of the piles would be over-used if the bonus GFA is withheld[5]. 14.In 2008, the Government decided to defer the construction of the Station and it would be located elsewhere. With such change in circumstances, the Transport Department took the view that there might be change in pedestrian demand and there was no justification from traffic point of view for the increased width of Ezra’s Lane as set out in the proposed development. That advice was given by the Transport Department to the BA in January 2009. 15.In a letter dated 16 February 2009, the BA communicated such view to the Authorized Person of the developer in disapproving a set of building plans with major revision. 16.The traffic consultant of the developer submitted further reports to the Transport Department and further study was conducted by the latter[6]. The conclusion of the Transport Department was, as stated at para 11 of a statement of Sunny Fu,
17.Such view was communicated to the Authorized Person when another set of amendment plans submitted on 9 October 2009 were disapproved by the BA in a letter of 5 November 2009. 18.Paragraphs 7 and 8 of the letter of 5 November 2009 set out the reasons why the BA took the view that the Superstructure Plans were fundamentally unacceptable.
19.On 30 Nov 2009, the Registered Structural Engineer of the developer submitted a set of Superstructure Plans (corresponding to the approved GBP) [“the Superstructure Plans”] to the BA for approval. By a letter dated 27 January 2010, the BA disapproved the Superstructure Plans [“the Disapproval”]. The reasons for the disapproval were set out at paras 7 and 8 of the letter,
20.The developer and the engineer appealed against the Disapproval. The appeal was heard by the Appeal Tribunal (Buildings) [“BAT”] in March, June and July 2011. By a decision of 18 January 2012 [“the Decision”], the BAT reversed the Disapproval and directed the BA to approve the Superstructure Plans. 21.In these proceedings, the BA sought to challenge the Decision by way of judicial review on the grounds that the BAT erred in law in failing to find that the Superstructure Plans are fundamentally unacceptable and that the Decision is Wednesbury unreasonable. Errors of law 22.The submission of Mr Chow SC on behalf of the BA on this ground is that the BAT mistakenly failed to regard that the carrying out of the works as shown on the Superstructure Plan did not contravene Regulations 20 and 21 of the BPR and as such fundamentally unacceptable. That submission proceeds on the premise that the BA was entitled to disregard the effect of the Permit. Mr Chow submitted that the BA was entitled to do so because by the time when he considered the Superstructure Plans, the BA was aware of the change in policy regarding the Station and the Government’s decision not to accept the surrender and dedication. Ergo, the conditions for the modification/exemption under the Permit could not be fulfilled and the BA should revert back to the original position under the BPR. 23.Another way of presenting the same argument is set out at paras 51 to 55 of the Form 86. It is contended there that by directing the BA to approve the Superstructure Plans, the BAT in effect pre-empt the Government from not accepting the surrender and dedication. However, the decision with regards to the acceptance or non-acceptance does not vest in the BA, but some other authority. In the course of his oral submissions, Mr Chow identified that usually the Director of Lands is the authority for making decision of this nature. 24.Section 42 of the BO is in the following terms,
25.In the present context, this section should be considered together with BPR 22(1) and (2) which reads as follows,
26.I have already referred to the terms and conditions of the Permit granted in October 2007. It is common ground that the Permit was (and still is) extant when the Superstructure Plans were disapproved in Jan 2010. 27.Thus, without any revocation of the Permit, the modification to/exemption from the usual limits for site coverage and plot ratio under BPR 20 and 21 is still in place. As contended by Mr Yu SC (who appears together with Mr Ismail for the Interested Party), it is not necessary for this court to consider in these proceedings what would have been the position if the BA sought to revoke the Permit. I would only observe that in case the BA does so, there could be issues as to whether the BA has such power of revocation as a matter of law and whether it is proper for the BA to exercise such power in the circumstances of the present case as a matter of discretion. Also Mr Chow did not dispute that the developer would have a right to be heard before the BA exercises such power. 28.Mr Chow submitted that in the processing of the application in respect of the Superstructure Plans the BA was not constrained by the Permit even though it had not been revoked. As mentioned, his submission is that the BA was entitled to take into account the fact that the Government would not accept the Dedication and the Surrender due to the change of plans regarding the Station, as such the conditions for the modification/exemption could not be fulfilled. 29.With respect, I cannot accept this submission. In my judgment, unless and until the BA revokes the Permit (which may or may not be possible), the BA is legally bound to exercise the power under s16(1)(d) of the BO on the basis that there are modifications/exemptions in place in respect of that particular development project (in the present case in respect of the project as set out in the GBP approved in Oct 2007). Though there were conditions set out in the Permit, the modifications/exemptions were not withheld until the conditions have been satisfied. The modifications/exemptions were effective upon the issue of the Permit. This is reflected in the BA’s approval of the GBP. Without the modifications/exemptions taking effect, the BA could not approve the GBP in 2007. Insofar as Mr Chow contended otherwise, I reject his submission. 30.As for the conditions, they should be regarded as condition subsequent rather than condition precedent. I agree with the submission of Mr Yu that the only time limit prescribed for the execution of the Deed of Dedication and the Agreement to Surrender is that these should be done before the application for occupation permit or temporary occupation permit. The BAT found (and there is no challenge to such finding) that the general practice was that execution of these documents could be done after the completion of the project[7]. Thus, it is not open to the BA to hold the non-execution of these documents at this stage as a breach of conditions on the part of the developer. Mr Chow did not contend otherwise. 31.What Mr Chow relied upon is the Government’s own unwillingness to facilitate the compliance with these conditions due to the change in plans for the Station. Mr Chow’s contention is based on the premise that the non-acceptance of the surrender and dedication is merely a matter of fact, which the BA must take cognizance in processing the Superstructure Plans. But is the non-acceptance a mere matter of fact? 32.In my judgment, it is not simply a question of whether the Government now wishes to continue with the surrender and dedication. It involves the consideration of whether the Government has already bound itself and if so, whether the Government can renege on the acceptance of the surrender and dedication as long as the Deed of Dedication and the Agreement to Surrender have not been executed. With regard to the former, it involves the consideration of whether the BA had ostensible authority to bind the Government. These questions involved complicated issues of fact and law which the BA was not (and could not be) in a position to decide. They can only be decided by a court of law. Mr Chow accepted in the course of the hearing that these issues could not be resolved in the context of these proceedings. 33.If the true legal position were that the Government is not free to renege from accepting the surrender and dedication, the mere fact that it had changed its mind is neither here nor there. 34.Just as it is outside the BA’s role in an application under s.16(1) to adjudicate private right disputes between a third party and the developer (see Re Ho Mei Ling [2011] 6 HKC 1), the BA should not decide unilaterally in favour of the Government that the latter was free to renege on accepting the surrender and dedication in dealing with the Superstructure Plans. 35.Faced with the change of position on the part of the Government regarding the Station, the BA could either,
36.In view of the time constraint under s.15 of the BO and without any information as to how long the process of revocation would take, I do not know whether there was sufficient time to complete that process before the BA was obliged to give reasons for disapproving the Superstructure Plans. However, assuming he has the power of revocation, there was nothing to prevent the BA from taking the initiative to revoke the Permit even without any submissions of plans by the developer. In effect, a revocation of the Permit would also involve the revocation of the approval given to the GBP. 37.What the BA could not lawfully do was to ignore the effect of the Permit on the modification of the plot ratio and site coverage in respect of a development in accordance with the GBP without any revocation. 38.Therefore, the BA erred in law in the Disapproval on the basis that the Superstructure Plans were in contravention of BPR when the Permit was still extant. It follows that the BAT did not commit an error of law when it held that the Superstructure Plans were not fundamentally unacceptable. 39.Mr Chow relied on my decision in Building Authority v Dobrowen Investment Ltd HCAL 20 of 2011, 20 Dec 2011 para 50 to support his contention that the BA should examine each submission of plans by reference to prevailing circumstances. The facts of that case are clearly distinguishable from our case. That case did not concern about the effect of a s.42 permit which had not been revoked. On the crucial issue that we have to deal with, I do not think that case assists Mr Chow. 40.Mr Chow submitted that the BAT did not find that the Government was not entitled to refuse to accept the surrender and dedication. But neither did it find that the Government was entitled to do so. It is not surprising because it was not an issue raised before the BAT. In the Opening Submissions dated 11 March 2011 placed before the BAT, the BA took the stance that the Government’s decision not to accept the dedication and surrender could not be an issue before the BAT as it was outside its jurisdiction[8]. The same stance was maintained in BA’s Final Submissions[9] before the BAT. 41.Without any consideration of the legality of that Government’s decision, for reasons canvassed above, it would not be correct for the BAT (and likewise the BA) to act on the basis that the conditions under the Permit would not be fulfilled[10]. 42.Mr Chow further submitted that in directing the BA to approve the Superstructure Plans, the BAT effectively took over the position of the Government to accept the surrender and dedication. Counsel said this was beyond the jurisdiction of the BAT. 43.With respect, I do not think the approval of the Superstructure Plans has such effect. If anything done by the BA would have the effect of binding the Government, it would be the granting of the Permit. If the granting of the Permit does not have such effect as a matter of law, I cannot see how the approval of the Superstructure Plans could have such effect in view of s14(2) of the BO. 44.In this respect, there is inherent inconsistency in Mr Chow’s position. On the one hand, he contended that the BA could not bind the Government in accepting the surrender and dedication by granting the Permit. On the other hand, he contended that the approval of the Superstructure Plans would bind the Government. As Mr Yu submitted, the BA cannot blow hot and cold. 45.For these reasons, I am of the clear view that the BA was wrong in law in rejecting the Superstructure Plans on the grounds as stated in the letter of 27 January 2010. The BAT was correct in reversing that decision. 46.Once I reach this conclusion, it is not necessary for me to consider the challenge of the BAT decision on the ground of Wednesbury unreasonableness. Mr Chow agreed that the court should dismiss the application for judicial review if I held against him on the non-revocation of permit point. The inevitable result is the reversal of BA’s Disapproval. Disposition 47.The application for judicial review is dismissed. I also make an order nisi that the BA shall pay the costs of the Interested Parties, with certificate for two counsels. Such costs are to be taxed if not agreed.
Mr Anderson Chow, SC, instructed by Department of Justice, for the Applicant Mr Benjamin Yu, SC and Mr Anthony Ismail, instructed by Lo & Lo, for the Interested Parties [1] See the letter of 19 September 2007 at p.529 of the hearing bundle of exhibits, referring to a disapproval of plans on 25 June 2007. [2] Bundle of exhibits p.380 [3] Bundle of exhibits p.384 [4] Bundle of exhibits p.378 and 382 [5] Bundle of Exhibits p.810-1 [6] See paras 8 to14 of the Statement of Mr Sunny Fu at Exhibit Bundle p.892 to 893-1. [7] Para 31 of the BAT decision. [8] Para 33 of BA’s Opening Submissions at Bundle of Exhibit p.1234 [9] Para 9(1) of BA’s Final Submissions at Bundle of Exhibit p.1242 [10] See para 17 of the Final Submissions of the BA placed before the BAT, Bundle of Exhibit p.1245 |
Cases cited in this judgment
Other judgments that cite this case