Aik San Realty Ltd and Others v. Attorney General
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CACV000014/1981 Building (Planning) Regulations - "street shadow area" - sale of narrow strip of land along most of boundary of site abutting on street - building as a whole nevertheless "fronting" street - (quaere whether it "fronted" street across strip). Dates of hearing: 15th, 16th and 30th June, 1981 D. Widdicombe, Q.C. and A. Neoh (M.K. Lam & Co.) for Appellants. N. Strawbridge (Legal Department) for Respondent.
----------------- Coram: Sir Alan Huggins, V.-P., Leonard and Li, JJ.A. Dates of hearing: 15th, 16th and 30th June, 1981 Date of Judgment: 30th June, 1981 ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P. : 1. We are called upon to interpret regulation 16 of the Building (Planning) Regulations, which relates to the Permitted height of buildings. 2. The Appellants planned to develop a piece of land by the erection thereon of a building. They desired to build to the maximum height permitted by law and were advised that if they could avoid making one side of the building contiguous throughout its length with Jardine's Crescent they could go higher than would otherwise be allowed. Accordingly they hit upon the plan of selling to a third party a strip of land 140' long and 1'3" wide along the boundary with that street. Upon it the purchaser plans to erect an advertising sign board. The result of the sale was that any building erected upon the remainder of the site could be contiguous to Jardine's Crescent for no more than 1/6 of its length. The question we have to decide is whether this device succeeds. We are not concerned with the merits of it, for either the Appellants have been correctly advised, in which event the Building Authority has no right to object, or they are not within the regulation and the Building Authority is entitled to disapprove the plans, as it has in fact done. 3. There are only two regulations which govern the heights of buildings, regulations 16 and 19. It is common ground that regulation 19 has no application to the proposed building, but it is relevant to see what it says :
Like others of these regulations that could have been better expressed: it is by no means clear to what structure the words "that building" can possibly refer. It is accepted that the site upon which the Appellants proposed to build does "abut on a street", albeit not at all points. 4. The material parts of regulation 16 are:
5. Both parties agree that the proposed building falls within paragraph (1). Although they are not entirely ad idem as to the reason or reasons for that, it is unnecessary to say more on the subject. 6. I turn, therefore, to a consideration of the definition of "street shadow area". The Appellants' contention as to sub-paragraph (a) is, in effect, that (i) the first line of the area is to be formed by projection from every part (sc. every part of the side of the building) abutting or fronting the street and (ii) "fronting" must have a similar meaning to its grammatical variation "frontage" which is defined in paragraph (4), with the result that such part of the side of the building as abuts the alienated strip of land neither abuts nor fronts the street. The Respondent's submission is (i) that this line is to be formed by projection from every part of the side (sc. the side of the building) abutting or fronting the street, and (ii) that in any event, whilst only part of the relevant side of this building abuts the street, the whole of that side is a side fronting the street. As to sub-paragraphs (b) and (c) the main issue between the parties again relates to the meaning of "frontage of the building" in the light of the definition of frontage in paragraph (4). The issue arises under paragraph (2). 7. In sub-paragraph (a) I read the present participles as limiting the word "side" and not the word "part". That is not only the more natural reading but it appears to me to produce a result more in keeping with the obvious intention of the Governor in Council. In the present case the setting back of the building from the street so that it does not trepass upon the alienated land would make a very small difference to the size of the actual shadow which would be cast by the building when it is completed. I can conceive of no reason why it should have been thought appropriate to ignore the shadow from that part of the building which abuts the alienated land when the street shadow area is calculated. It was not suggested that this proposed building had more than four "sides" and that one should regard that portion which abutted Jardine's Crescent as one side and that portion which abutted the alienated strip as another side. 8. The second argument for the Appellants has more substance. Section 5 of the Interpretation and General Clauses Ordinance provides :
We therefore have to consider the definition of "frontage". 9. Why the definition speaks of a frontage "in relation to" a building rather than a frontage "of" a building I am not sure : no one has been able to suggest that there is any significance in the distinction. I take them to mean the same. Where the parties do not agree about the definition is principally as to the meaning of the words "that boundary ... which abuts or fronts a street". Again, no point has been taken that there is some significance in the fact that the reference is to "a site" rather than "the site". 10. The contention for the Appellants is that by defining the frontage of a building in terms of a boundary of the site the Governor in Council has reduced "frontage" to a single dimension : whereas the frontage of a building, as normally understood, would have height and breadth, a boundary of a site can have only length. Therefore, it is said, the existence of the alienated strip of land, upon which it is planned to erect the advertising sign board, prevents 5/6 of the "building" from fronting the street. Mr. Widdicombe submits that, were it otherwise, there might be a case where both regulation 16 and regulation 19 applied - a situation which could not have been intended. Thus, if one had a site which on one side abutted a street less than 4.5 m wide, on two sides was nowhere near a street and on the fourth side was separated from a street of 4.5 m by a narrow strip of land for its whole length, it would be within regulation 19 but would, on the Respondent's contention, nevertheless "front" the widest street and be also within regulation 16 because the building had an aspect towards the street and was capable of casting a shadow on the street. How would the permitted height of the building be determined? It is a very real difficulty and although I would like to adopt the pragmatic interpretation of the trial judge I do not find myself able to do so. In fairness to him it must be said that this particular difficulty was not pointed out to him. He thought that the existence of intervening land was immaterial, provided that the building would cast a shadow on the street if the intervening land were vacant. But for regulation 19 that is an attractive view. I would agree with the learned Judge that the cases based upon unrelated legislation are of little assistance. He rightly emphasized that in construing words one must look to the subject matter of the legislation to see what is its scope and object, and I would have thought that his interpretation of regulation 16, taken on its own, best achieved the intention of the Governor in Council. The difficulty in construing these simple words is demonstrated by the difference of opinion in Wakefield Local Board of Health v Lee (1876) 1 Ex. 336, where the respondent's premises were divided from a street by a small stream but were connected to it by two bridges. The majority of the Court thought that the premises "fronted and abutted" the street for the purposes of section 69 of the Public Health Act 1848, whilst Cleasby, B. thought that they did not but, with some hesitation, decided that they "adjoined" the street. 11. Under sub-paragraph (b) the second line is formed by "the frontage of the building". Again we are taken to the definition of "frontage" and have to ask what is "the boundary .. which abuts or fronts"? The definition does not refer to "such part of the boundary" but to "the boundary". Accordingly, it is immaterial that only part of the boundary abuts or fronts the street. The definition appears to contemplate that some sites will have more than one boundary, just as most buildings have more than one "side". In the present case the relevant boundary of the site almost, but not quite, coincides with the side of the building : we are told that along two sides of the alienated land the building is set back about 50 mm. It is the boundary of the site which is to form the line. As with the "sides" of the building, I do not think one can treat the part of the boundary which abuts the street and the part which abuts the inner side of the alienated land as different boundaries : together they form the north-eastern boundary : see the block plan at p.87 of the record. 12. Having regard to what I have already said, I do not think the line referred to in sub-paragraph (c) presents any difficulty. There does not appear to be any dispute that sub-paragraph (c) should be read so that the words "the centre line of the street" indicate the base for the drawing of the right angles and not the limits of the two lines to be drawn. If it were otherwise there might be cases where the four lines described in the definition did not "contain" an area. 13. It will be seen that the whole of the area contained by these three lines will not be "on the surface of a street", but the definition does not require that it shall be. It was for this very reason that the words "on the surface of a street" were included : any part of the area which is not on the surface of the street, in this case the alienated land, is not to be measured. 14. Although for different reasons I have come to the same conclusion as the learned Judge and would dismiss the appeal. Leonard, J.A. : 15. The facts on which this appeal turns have been set out in detail in the judgment in the court below and I do not propose to set them out again. They establish that the site in question is a Class A site abutting on 2 parallel streets. When planning the development of such a site to its greatest commercial advantage a developer will be primarily concerned with three aspects of the proposed building namely its permitted height, the permitted site coverage and the permitted plot ratio but permitted site coverage and permitted plot ratio are fixed with reference to the height so that height is of paramount importance. 16. The essential question for decision here is whether a developer in planning the development of a site can increase the permitted potential height of the building to be erected on it by alienating a narrow strip of land along part of one side of the site so as to separate part of the new site thus created from the road over which the building is to tower. Mr. Widdicombe, Q.C., submits that Regulation 16 of the Building (Planning) Regulations permits the use of such a device and it is therefore necessary to examine the terms of that Regulation with some care with reference to the plans which have been rejected by the Building Authority. It is not necessary for me to describe all the plans but I must describe three of them. 17. Firstly the Block Plan at p.87 of the agreed bundle. This shows a squat T shaped building with the top of the T bordering on Jardine's Crescent the street with which we are concerned and the bottom bordering on Yun Ping Road. Secondly the Rear Elevation facing Jardine's Crescent at p.93 of the agreed bundle; this shows the back of a 27 storey building unbroken by windows throughout its height. It is shaped like an extremely thick capital letter I but without "serifs" at the top. Thick "serifs" at the bottom represent 3 storeys and into that to the left are set doorways opening on to Jardine's Cresent as described by Liu, J. The "serif" to the right and the entire width of the upright representing 27 storeys would, if the plans were approved, ultimately face, intimately, to the back of the 18 foot high advertising sign to be erected on the 13 inch strip alienated from the original site. I will be pardoned, I trust, for an expression of gratitude that this rear elevation plan does not indicate what, if any, advertising signs it would ultimately bear and for a sigh of relief that I am not asked to adjudicate on any question of aesthetics. 18. The third plan to which I must refer is that at p.90 of the agreed bundle which shows that the "shadow area diagram" and "shadow area calculations" are based on the left "serif" (three storeys in height) to which I have referred when describing the rear elevation plan. It was because the shadow area calculations were based on this portion only that the plans were rejected. This left "serif" provides the sole outlet to Jardine's Crescent and is the only portion of the building which touches that street. It is this fact that gives rise to the appellants' claim that it alone should be considered when calculating the street shadow area of the building. 19. The Building (Planning) Regulations are enacted under Section 38 of the Ordinance which empowers the governor in council to make regulations providing for (c)
and it was pursuant to this section that these regulations were enacted. These regulations deal not with existing buildings but with contemplated buildings for which plans have been submitted, since no building works may be commenced until plans have been approved (Section 14). 20. Therefore when Regulation 16 provides that the height of a building which abuts, fronts or projects over a street shall be determined by reference to its street shadow area, it must be taken to refer to the contemplated height of a contemplated building which if completed would so abut etc and to the calculated street shadow area of that contemplated building. This is self-evident but it must be borne in mind in construing this regulation for the wording of Regulation 16 and in particular of the definitions of "frontage" and "street shadow area" is so complicated that one must constantly remember that one is dealing with abstractions. 21. Under Regulation 16(1) the planned height of a proposed building is to be determined by reference to the street shadow area of that proposed building if that proposed building abuts fronts or projects over a street. [It is to be noted that the Regulation does not use the qualification "insofar as a street shadow would be thrown by the abutting fronting or projecting portion of the building."] There is no question of any part of this proposed building projecting over Jardine's Crescent, but, as I understood him, Mr. Widdicombe concedes that the "serif" at the North Eastern and of the site both abuts and fronts Jardine's Crescent. He argues that the remaining 5/6 of the boundary of the site neither abuts nor fronts any street. Clearly that remainder does not "abut" but whether it "fronts" is arguable. I will consider the effect of the remainder not fronting or abutting later. 22. Regulation 16(2) requires the application of the formula
for the determination of the maximum permitted street shadow area of a building where F = the "length of the frontage" of the proposed building (not be it noted "the length of the frontage of that portion of the proposed building which abuts or fronts on the street") and W = the width of the street upon or over the building abuts fronts or projects. There is nothing in the affidavits to indicate that Jardine's Crescent is not of uniform width throughout its length. So that in our case W is a constant and it is not necessary to consider what considerations would arise if Jardine's Crescent varied in width. 23. The matters giving rise to difficulty in the application of these two paragraphs are therefore the interpretation of the phrases "frontage of the building" and "street shadow area" and of the word "fronts". 24. The phrase "frontage of a building" is not defined. The word "frontage" is defined "in relation to a building" as meaning "that boundary of a site upon which the building is erected which abuts or fronts a street ...." which must, of course, mean for planning purposes "that boundary of a site upon which the building is to be erected". "Street shadow area" is defined again "in relation to a building" as meaning an area on the surface of a street contained by certain lines one of which is "(b) a line formed by the frontage of the building" (i.e. a line formed by that boundary of the site which abuts or fronts the street upon which the building is to be erected others of which are "(c) lines drawn from each extremity of the frontage of the building at right angles to the centre line of the street". I think that (c) clearly recognizes that the "frontage" shall have two and only two extremities, one at each end of the boundary which abuts or fronts the street. The fourth line is described in (a) which is set out in Liu, J.'s judgment. It is not a line with which I need concern myself save to note that it is formed by the projection of planes "from every part of the side of the building abutting fronting or projecting over such street" and to say that I regard the words "abutting fronting or projecting over such street" as qualifying the word "building" rather than the word "side". 25. Mr. Widdicombe makes out a very strong case for his contention that that portion of the proposed building which is to lie behind the severed strip will not abut or front Jardine's Crescent and I am prepared to accept for the purposes of this judgment that it will not (however absurd such acceptance may be when one contemplates the vastness of the blank wall intended to tower over that street). I am equally prepared to accept that that portion of the boundary (of the site upon which the building is to be erected) which borders the severed strip does not abut or front Jardine's Crescent. But that does not end the matter for the proposed building is an entity. If completed that entity will abut Jardine's Crescent, it will also abut the severed strip and it will abut Yun Ping Road. The site will have four boundaries forming a rectangle as shown on the block plan at p.87 of the agreed bundle. One of these four boundaries will abut and front Jardine's Crescent. It will also abut and front the severed strip. Where it does it may not abut and front Jardine's Crescent. But that does not make it two boundaries in relation to the site it contains. It is a single boundary - the boundary to the North East of the site. It abuts and fronts on Jardine's Crescent. Reference to the shadow area diagram at p.90 shows that the planner has not computed the street shadow area with reference to the boundary's extremities but has computed that area with reference to one extremity and a point which is not at the other extremity. 26. Therefore even if one accepts that there has been misconstruction of the word "fronts" as is maintained in grounds 1, 2 and 3 of the Grounds of Appeal there was no error in the refusal of the declarations sought. 27. I would dismiss this appeal. Li, J.A.: 28. For the purpose of this appeal the facts may be stated shortly as follows. Between 1978 and 1979 the appellants purchased a now of six houses of equal size facing Jardine's Crescent known as Nos. 16-26 Yun Ping Road. In November 1979 they sold a strip of land immediately adjoining the pavement of Jardine's Crescent, extending to the length of five of the six houses. This was sold to a third party known as Mentor Estate Limited. Then Mentor Estate Limited applied to the Building Authority for permission to erect a signboard along the whole length of that strip of land. Permission was given in principle to that application. The appellants then submitted, through their architects, plans for a proposed building of 27 floors totalling 255 feet in height which stretched from one end of the site to the other less that strip of land. The Building Authority rejected the plans for non-compliance with the provisions of the Building (Planning) Regulations. The appellants applied by Originating Summons for a declaration that:
The application was refused by Mr. Justice Liu for reasons given in the court below. Hence this appeal. The grounds of appeal are that:
29. Mr. Widdicombe for the appellants, with candid propriety, admits that there is no merit in his case. He relies entirely on questions of law. If I understand him correctly the whole appeal depends on the interpretation of the provisions of Regulation 16 of the Building (Planning) Regulations. The relevant points of Regulation 16 provides as follows:
30. Mr. Widdicombe centents that, vis-a-vis the portion of that buildings which abuts or fronts the Jardine's Crescent it does not infringe the requirements of Regulations 16. As to the other portion of the building, its frontage adjoins that strip of land which is private ownership of the Mentor Estate Limited. To be exact, the larger portion of the building is approximately 5 cm from the back of the signboard to be erected by Mentor Estate Ltd. at the height of 18 feet on the strip of land. As such there is no frontage of that larger portion of the building which is contiguous to Jardine's Crescent. I hope I am not unfair to Mr. Widdicombe by saying that it is implicit in his argument that the provisions of Regulation 16(1) have no application to that portion of the building the frontage of which does not abut or front Jardine's Crescent. 31. A fair number of authorities have been cited in explanation of the words "abut" or "front" in relation to assignments for pavement and road repairing expenses. I do not find them of great assistance. 32. The result of his appeal depends entirely on the interpretation of the provisions of the Regulation 16. If the appellants' proposed building does not come within the spirit and the letter of such statutory requirements of Reg. 16(1) lack of merit in this case is irrelevant. They are entitled to succeed. 33. The meaning of the words "abut" and "front" are clearcut enough. It is also abundantly clear that at least 1/6th of the proposed building abuts and fronts Jardine Crescent. That is so because 1/6th of the building constitutes an integral part of the building. If it abuts, then the whole building (in one unit) can be said to be a building which abuts the street. For example, if a person puts one of his feet on to the street it is futile to argue that he has not entered the street simply because his whole body has not gone on the street. For this reason I am of the opinion that the building is one which abuts on Jardine's Crescent. As such it is a building to which paragraph 1 of Regulation 16 applies. The height of the whole building is to be determined by reference to the street shadow area. 34. Paragraph 2 of Regulation 16 merely provides a formula to work out the permitted maximum street shadow area. It is true that the frontage as defined in paragraph 4 of Regulation 16 might have the effect of rendering factor F in paragraph 2, merely the length of about 1/6th of the full length of the boundary line on the side of Jardine's Crescent. But that is not a point in issue here. I do not imagine that the Building Authority can be so unreasonable as to assign to factor F in paragraph 2 only 1/6th of the full length of the boundary thereby grossly reducing the permissible height of the building out of proportion. 35. Having regard to the definition of the word "frontage", I am of the opinion that a line can be drawn from the abutting part of the site or the two extremities of that abutting boundary at right angle to the centre line of the Jardine's Crescent for the purposes of sub. paragraphs (b) and (c) in the definition of "street shadow area" in paragraph 4 of Regulation 16. After all a line is only a imaginary concept. It has neither width or height. 36. Which then is the highest point of the building abutting Jardine's Crescent for the purpose of sub. paragraph (a) in paragraph 4 of Regulation 16? I have no doubt that it is not only the highest point of that part of the building which abuts on Jardine's Crescent. The provisions in the definition in sub (4)(a) of "street shadow area" requires "a line formed by the projection from every part of the building abutting from the horizontal from the highest point on such buildings". For this reason the highest point is from the roof top of the whole building - not just from one part of the building. I am of the opinion that the learned trial judge is correct in finding the proposed building front the Jardines Crescent and that he is not wrong in holding that the whole length of the rear side of the appellants' proposed building will front Jardine's Crescent. If he erred he is erred on the side of generosity - having regard to what I said about factor F in paragraph 2 of Regulation 16. Accordingly the appeal must be dismissed. 30th June, 1981 Representation: D. Widdicombe, Q.C. and A. Neoh (M.K. Lam & Co.) for Appellants. N. Strawbridge (Legal Department) for Respondent. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||