CIRCUMWEALTH CO. LTD. v. THE ATTORNEY GENERAL

1992, No. MP 3209

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The Applicant is the owner of land at 33-35 Kennedy Road. They submitted plans to the Building Authority to erect a 32 story residential building with 48 car parking spaces. It was provided in the plans that there should be a "run in/run out" from the proposed building on to a right of way over the northern part of the Applicant's land. Thereafter the right of way continued down to join Kennedy Road to the South. Almost immediately after leaving the Applicant's land to the East the right of way narrowed from just over 5 metres to its narrowest part which is 3.8 metres wide. Shortly beyond the boundary of the Applicant's land the right of way is joined by another right of way which serves as the exit ramp of a large complex of flats known as Phoenix Court.

2. It is common ground between the parties that the said right of way is a "street" within Section 16(1)(h) of the Building Ordinance Cap. 123. It is also I think agreed that the distance from the place where vehicles leave the proposed building to the boundary of the Applicant's land is approximately 11 metres. It is only after the boundary is crossed that one comes to the intersection where the Phoenix Court ramp joins the right of way. Almost immediately after this the right of way narrows to such an extent as not to comply with the normal requirements of the Highways and Transport Departments.

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3. The Applicant's plans were rejected by the Building Authority. The grounds given for the rejection were :

"10. The Chief Highways Engineer commented that :-

The proposed vehicular access arrangement is not acceptable - the existing right of way, which has a relatively steep gradient, is already too narrow for two-way traffic and is difficult for turn-around movement of vehicles. The present 31-storey development proposal with 48 car parking spaces will certainly attract more traffic and hence aggravate the present situation and might cause tail-back of vehicles which in turn will affect the access at Kennedy Road. In view of the above, the standard of the existing right of way, without any improvement in accordance with Building (Private Street & Access Road) Regulations, is considered inadequate.

11. The Assistant Commissioner for Transport has the following comments :-

a) The proposed vehicular access is considered unacceptable as the right of way is too narrow for two way traffic. The right of way should be increased to not less than 5m carriageway with 1.6m footpath on at least one side.

b) The vehicular access arrangement within the site is unacceptable as vehicular movements are restricted and the access is too narrow for two way traffic. Also no waiting spaces are provided to serve the car lift. Any tailback would cause obstruction to the run in/out of the adjacent lot.

c) The proposed provision of 48 car parking spaces for 48 flats is agreed."

4. The Applicant appealed against this decision to the Appeal Tribunal. It is common ground that the issue between the parties relates to the interpretation of Section 16(1)(h).

5. The subsection reads :

"(h) the building works consist of, or any part thereof involves, the construction, formation or laying out of any means of access or other opening, not being a street or access road, to or from any street, and the place at or manner in which such means of access or other opening opens on to the street is, in his opinion, such as to be dangerous or likely to be dangerous or prejudicial to the safety or convenience of traffic using the street, or which may be expected to use the same."

6. In its Determination the Appeal Tribunal stated :

"5.1 We have some sympathy for the Appellant in that if they had redeveloped before Phoenix Court or Wing Way Court, they might have had their building plans approved. The fact remains, however, that having visited the site ourselves, we are left in no doubt that the existing traffic conditions both at the junction of Kennedy Road and the right of way and on the right of way itself are unsatisfactory, unsafe and dangerous, and that an additional 48 vehicles would certainly exacerbate the situation.

5.2 Phoenix Court was the first development in the locality which was completed some 12 years ago. There was then less traffic using the right of way and there was no question of outgoing traffic from Phoenix Court being unable to see outgoing traffic from Wing Way Court which was then non-existent. The Building Authority, or anyone else for that matter, could not be expected to foresee the manner in which the site of 29-31, Kennedy Road (or which Wing Way Court now stands) would be redeveloped in 1989 and the traffic condition when Wing Way Court was completed. With the benefit of hindsight, perhaps the Building Authority should have invoked section 16(1)(h) and rejected the building plans of Wing Way Court in the first place but two wrongs do not make a right.

5.3 We agree with Mr. Kwok that section 16(1)(h) should not be limited to a potential traffic hazard or inconvenience in the immediate vicinity of an access opening to or from a street. In this particular case, it would be unrealistic if one looks at only the western part of the right of way and shut one's eyes to what would happen to the eastern part or to the junction of Kennedy Road and the right of way. Whatever happens to those areas would certainly affect traffic conditions in the western part of the right of way. We also agree with Mr. Kwok that a pedestrian would be forced to walk on and share the carriageway with vehicles in the eastern part of the right of way where no footpath would be provided, thereby endangering his safety. We respectfully agree with and adopt the approach taken by the Tribunal in the 101 Pokfulam Road case where the Tribunal held that section 16(1)(h) applied to a potential traffic hazard which might occur some distance away from the subject site."

They went on to dismiss the Appeal. This is the decision which is the subject of this Judicial Review.

7. The Relief sought by the Applicant is :

"1. A declaration that the decision of the Appeal Tribunal made on or about 17th September 1992 in relation to the building plans of a proposed 32-storey residential building with 48 car parking spaces at 33 and 35 Kennedy Road, Hong Kong, was based on an erroneous interpretation of the provisions of section 16(1)(h) the Building Ordinance, and was, in the circumstances, ultra vires.

2. An order for Certiorari to quash the said decision.

3. An order for Mandamus requiring the Appeal Tribunal to reconsider the case according to the law."

8. The ground on which relief is sought is that the said Decision was made on an erroneous interpretation of Section 16(1)(h) and was in the circumstances ultra vires.

9. Mr. Warren Chan for the Applicant submitted that it was clear from the scheme of the Ordinance that what Section 16(1)(h) was attempting to deal with was the control of the Building. What the Authority had to satisfy itself on was the physical situation where traffic joined the street and not upon traffic problems which may arise elsewhere. What was important was to consider the place where traffic comes from the building and not what the situation may be some distance away.

10. Mr. Chan gave several examples of the sort of situation which he submitted came within the subsection. It would be relevant for the Authority to consider the use being made of any adjoining road or street at the place where vehicles would seek to enter it. The actual place of entry and the manner of entry would be relevant matters for consideration. Mr. Chan also accepted that the anticipated flow of traffic at the said place would also be a matter coming within the ambit of the subsection.

11. However, what was not legitimately within the scope of the subsection was a consideration of "general traffic problems in the street". Had the legislature intended the scope of the section to be thus enlarged additional words such as "and as a result thereof" would have been added.

12. It appeared from the Determination of the Appeal Tribunal that the main problems which arose related to physical circumstances which were some distance from the place where vehicles came out of the proposed building.

13. Mr. Cheung for the Attorney General argued that Section 19 of the Interpretation Ordinance Cap. 1 should be called in aid and that I should have regard to the general safety and convenience of traffic. The subsection referred to the safety and convenience of traffic "using the street" not simply to the place where vehicles entered the street.

14. Over and above this it was clearly incumbent upon the Building Authority to consider how "traffic using the street so expected to use the street" is to be affected by the "place" or "manner" of the proposed "means of access or other opening" to the street.

15. I have given this matter careful thought. I have come to the conclusion that Mr. Cheung's analysis of the situation is to be preferred to Mr. Chan's. I do not see how it would be possible to sensibly consider proposed plans in accordance with the subsection unless consideration is given to traffic conditions at the point of access to the street. "Traffic conditions" can not simply be considered in a vacuum. Clearly it is essential to bear in mind the sort of use which is likely to be made of the street or right of way.

16. I accept that it would be excessive for the Highways or Traffic Departments to consider traffic problems in an overall context but I do not think that the Appeal Tribunal have done this. Their concern has been to an area which in my view is sufficiently proximate to the "place" of "access" to be within the scope of matters properly canvassed by the subsection. I do not consider that their Determination was ultra vires. I would accordingly dismiss this application. I would make an order nisi that the Attorney General is to have his costs.