Building Authority v. Appeal Tribunal (Buildings)

CACV 277/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 277 OF 2012

(ON APPEAL FROM HCAL 60/2011)

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BETWEEN

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REASONS FOR JUDGMENT
(ON LEAVE TO APPEAL)

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Hon Cheung CJHC (giving the reasons for judgment of the court):

1.By our judgment dated 3 January 2014, we dismissed the appeal of the interested party – China Field – with costs. On 14 April 2014, we also dismissed China Field’s application for leave to appeal to the Court of Final Appeal. We now give our reasons.

2.We do not propose to repeat what has been said in our judgment.  China Field argued that arising from our judgment, there are four questions or sets of questions which, by reason of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision, pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

3.The first question (as revised at the hearing) is:

“whether it is a wrongful exercise of the discretion to refuse to approve plans for building works in section 16(1)(g) of the [Buildings] Ordinance where the immediate neighbourhood is already incongruous in that it consists of buildings differing in height, design, type or intended use …”

4.This question is essentially based on the statement in 12 Bowen Road, 3 July 1985, that “if there is no congruity to preserve, then an exercise of discretion based on the prevention of incongruity is bad” (para 28).  For the reasons given in paragraphs 49 to 51 of our judgment, we take the view that the statement is an over simplification of the possible situations that one may encounter.  Rather, the matter is essentially a factual one, and it is really a question of degree and comparison.  In other words, the answer to the question posed is plain and obvious, that is, everything depends on the facts.

5.We do not think any other view is reasonably arguable.

6.The second set of questions read:

“whether in the exercise of the discretion in section 16(1)(g) of the Ordinance, the Building Authority:-

(a) should, as a matter of law, only take into account site specific considerations i.e. those restricted to the four corners of the site; and

(b) can only take into account matters which were directly related to the ground of refusal set out [in] the sub‑paragraph under section 16(1) and

(c)          cannot, as a matter of law, take into account other matters which were covered by other grounds of disapproval covered by another sub‑paragraph under section 16(1) or the general or broad town planning considerations such as traffic saturation, density limitation, positioning control or infrastructure capacity.”

7.Question 2(a) is, with respect, potentially confusing in that it continues to employ a meaning of “site specific” which we have demonstrated by reference to a number of authorities in paragraphs 73 to 81 of our judgment to be incorrect.  In other words, “site specific” is not restricted to “the four corners of the site”.  Rather, it connotes a requirement of causal connection.

8.In so far as question 2(a) is concerned with site specific considerations as properly understood, the answer must be “yes”, for the reasons we give in paragraphs 73 to 81 of our judgment.

9.In so far as question 2(a) is about a consideration restricted to the “four corners of the site”, the answer must be “no”, for the same reasons.

10.We think any contrary suggestion is not reasonably arguable.

11.As for question 2(b), “directly related” was not a concept argued before us or used by us in our judgment.  It does not therefore arise from our judgment.  The concept we use is “causal connection”.  So far as causal connection is concerned, what one looks for is a causal connection between the suggested relevant consideration and the difference in height (etc) involved.

12.We do not think anything reasonably arguable arises from question 2(b).

13.As for question 2(c), “matters which were covered by other grounds of disapproval covered by another sub‑paragraph under section 16(1)” is inapt as a description of what we have decided. In our judgment, we have only dealt with the possible overlapping between section 16(1)(g) on the one hand, and section 16(1)(d) or (h) on the other.  For the reasons we gave in paragraphs 85 to 89 in respect of section 16(1)(d) and those given in paragraphs 90 and 91 for section 16(1)(h), we do not think the mere fact of possible overlapping is by itself sufficient to render the consideration in question irrelevant.  We do not think the contrary suggestion is reasonably arguable.

14.As for “the general or broad town planning considerations …” in question 2(c), we have never decided that broad town planning considerations as such are relevant considerations under section 16(1)(g).  As framed, this part of question 2(c) simply does not arise from our judgment.

15.The third set of questions read:

“(a) whether the site specific considerations must, as a matter of law, bear any connection with the differences in height, design, type or intended use of the proposed development;

(b) if so, the nature of such connection e.g. causal and spatial; and

(c) whether such connections are present on the facts of the case.”

16.Question 3(a) is never controversial.  We have said clearly in our judgment that a causal connection is required.

17.That also answers question 3(b).  Moreover, we have, for reasons given in paragraphs 92 to 95 of our judgment, rejected “spatial connection” as a separate and independent requirement from the requirement for a causal connection.  We believe the contrary argument is not reasonably arguable.

18.Question 3(c) is clearly a fact‑sensitive question.

19.The fourth and last question reads:

“whether in the exercise of the discretion in section 16(1)(g) of the Ordinance, the Building Authority can, as a matter of law, take into account that the danger to traffic using or expected to use Wang Fung Road at the junction with Tai Hang Road would be exacerbated by the significant increase in the volume of traffic using the junction if the proposed development of China Field’s and that at No. 4 and 4A Wang Fung Terrace (which will not go ahead in view of the CFA’s decision dismissing its appeal reported at (2009) 12 HKCFAR 342) were permitted.”

20.This is plainly a fact‑sensitive question.

21.For these reasons, we have not been persuaded that leave to appeal should be granted on any of these questions.  Nor have we been able to find any other reasons for giving leave to appeal.

22.At the hearing, Mr Edward Chan SC for China Field appeared to complain about our references in the judgment to the Tribunal having the power to hear the Building Authority on grounds of objection to the building plans other than section 16(1)(g) first limb.  On its own, this cannot form any basis for granting leave to appeal as there can be no controversy that the hearing before the Tribunal is a de novo one, and it has the discretion to allow the Building Authority to object to the building plans on grounds not relied on before.  How it would exercise its discretion is a matter for the Tribunal.  It cannot possibly give rise to any question of great general or public importance.  But in so far as this complaint is a roundabout way of arguing question 2(b) and (c), we have given our view that they are not reasonably arguable.

23.Accordingly, the application for leave to appeal was dismissed with costs to the Building Authority.  We also gave a certificate for two counsel.

Mr Mok Yeuk Chi and Mr Alexander Stock, instructed by the Department of Justice, for the applicant

Mr Edward Chan SC and Mr Anthony Ismail, instructed by Kao, Lee & Yip, for the interested party