Bolitho Oliver Robert Morgan v. Appeal Tribunal (Buildings)

On 11 September 2026, Deputy High Court Judge Gary CC Lam handed down judgment in Bolitho Oliver Robert Morgan v Appeal Tribunal (Buildings) HCAL 1227/2026, [2026] HKCFI 5063, dismissing the Applicant's application for leave to apply for judicial review and ordering him to pay costs summarily assessed at HK$260,000. Mr Martin Ho, instructed by the Department of Justice, acted for the Building Authority, the interested party that successfully defended the challenge.

The Applicant is co-owner of a seafront house in The Redhill Peninsula. Following a September 2023 typhoon-triggered landslide that exposed unauthorised building works (UBWs) across the estate, the Buildings Department and Lands Department launched the Special Large-Scale Operation, targeting 89 houses along the slope. The Building Authority issued a Building Order under s.24(1) of the Buildings Ordinance (Cap. 123) on 6 December 2023, requiring demolition of thirteen items of UBW and reinstatement of the affected parts of the house. The Applicant's appeal to the Appeal Tribunal (Buildings) was dismissed on 11 May 2026 (§§2-3, 10-11).

Three grounds were advanced. Ground (1) alleged fettering of discretion, contending the BA wrongly took a blanket position of ordering demolition without considering alteration under s.24(1)(c). Ground (2) argued disproportionate interference with property rights under Articles 6 and 105 of the Basic Law. Ground (3) alleged Wednesbury unreasonableness in issuing the order without applying the risk-based prioritisation under the 2011 Revised Enforcement Policy.

Holding

The court refused leave on all three grounds. The court held that: (1) under the long-understood legal position reaffirmed in Yeung Pui Yee v Building Authority [1989] 1 HKC 356 and Filipino Club v Building Appeal Tribunal [1995] 3 HKC 356, the BA has no power to grant retrospective approval under s.14, so the discretion under s.24 cannot extend to issuing an alteration order that would legalise works already carried out without prior consent (§§28-32, 39); (2) applying the proportionality analysis from Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, the demolition order rationally advances the legitimate aim of protecting the public from risks posed by structures whose construction details are unknown, and rendering UBWs "safe" through alteration does not render them "legal" (§§60-61); (3) the enforcement policy is a priority-of-enforcement policy, not a tolerance policy, so the BA may target UBWs outside the prioritised categories without rendering any resulting order invalid, following Sky Wide Development Ltd v Building Authority and Technic Investment Co Ltd v Appeal Tribunal (Buildings) (§§65-68).

For practitioners advising owners served with s.24 orders: the BA's discretion under s.24(1) does not extend to regularising UBWs by way of alteration. Any plan-based argument must be supported by actual plans, not visual inspections alone, and a fresh s.14 application for approval and consent is the only lawful route to legitimise further works (§54-55).