BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS) AND ANOTHER

HCAL 11/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 11 OF 2014

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J U D G M E N T

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A.  INTRODUCTION

1. This is the Building Authority (“the BA”)’s application to judicially review the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 7 November 2013.

2. The Decision allows with certain conditions the Methodist Church (“the Church”)’s appeal against the BA’s disapproval of the Church’s general building plan (“the General Plan”) submitted on 4 December 2009 for the redevelopment of its site (“the Site”) located at around the junction of Kennedy Road and Queen’s Road East.  The disapproval is contained in a letter dated 28 December 2009 (“the Disapproval Letter”).

3. The BA seeks in this judicial review an order to quash the Decision on the bases that it is tainted by a number of errors of law and that the various conclusions therein are irrational.  I will elaborate on these grounds later.  The BA is represented by Mr Ambrose Ho SC, leading Mr Abraham Chan.

4. The Tribunal (as the respondent) has remained neutral and not taken any steps in this application.  The Church (as the interested party) opposes the application and is represented by Mr Ismail.

5. To put the Decision in proper context, I need to first set out the relevant background leading to the appeal before the Tribunal.

B.  BACKGROUND

B1.  The relevant statutory provisions

6. The following statutory provisions are relevant for the present purposes.

7. Under section 14 of the Buildings Ordinance (Cap 123) (“the BO”), plans for building works must be submitted for approval by the BA before any building works could commence.

8. Section 16(1) of the BO provides for the grounds upon which the BA may refuse to approve any plans for building works.  Relevantly, the BA may refuse to approve a building works plan on, among others, the following grounds:

(1)  Where the carrying out of the building works shown thereon would contravene the provisions of the BO or any other enactments (section 16(1)(d)).

(2)  Where the BA in its opinion consider it necessary to have further particulars of such plans or of the building works shown thereon (section 16(1)(i)).

(3)  Where it is not satisfied with the further particulars related to the plan provided to it upon its earlier refusal under section 16(1)(i) (section 16(1)(j)).

9. At the same time:

(1)  Regulation 18A of the Building (Planning) Regulations (Cap 123F) (“the Planning Regulations”) provides for the classification of a site into a Class A, B or C site.  In essence, to classify as a Class B site, the site has to be a corner site that has at least 40% of its boundary abutting on two “specified streets”.

(2)  Regulation 18A(3) provides for when a street can be regarded as a “specified street”.

(3)  Regulations 19, 20 and 21 of the Planning Regulations provide the maximum site coverage and plot-ratio of permissible under each of these site classes, with the largest permissible under Class C and the least under Class A.

10. Further, Regulation 41 of the Planning Regulations provides that every building which exceeds six storeys in height shall be provided with a second staircase (in addition to the main staircase) as means of escape (“MOE”) in case of emergency.  In this respect, the MOE Code of Practice (“the MOE Code”) published by the BA provides at paragraph 8.2 that every exit route of the MOE should lead directly to a street or an open area at ground level having unobstructed access.

11. Finally, Regulation 90 of the Building (Construction) Regulations (Cap 123B) (“the Construction Regulations”) provides that every building shall be constructed to have the necessary fire resistance construction.

B2.  The Site and the General Plan

12. The Site is on the Remaining Portion of Inland Lot No 1316 at 271 Queen’s Road East.  It is a corner site located at the South-West corner of Queen’s Road East and Kennedy Road.

13. To facilitate an easier understanding of the issues raised in the appeal and also this judicial review, I have attached to this judgment as Annex I a plan (“the Site Plan”) of the Site.  This is the same plan that is included in the Decision under paragraph 12.

14. It can be seen from the Site Plan that Queen’s Road East lies on the northern boundary of the Site, while the adjoining Kennedy Road lies on its eastern boundary.

15. On the Site, the Church erected the existing church building in the 1960s.  It consisted of a 2-storey building and a 3-storey extension. The respective layout plans of the church building and the proposed extension for the church building were respectively approved by the BA on 21 March 1964 and 21 March 1978.

16. The Church intends to redevelop the Site.  The proposed church is a 25-storey building with a basement.  It is proposed to be used for church, religious and charitable users as well as the minister’s residence.

17. The Church initially submitted to the BA a general building plan (“the November Plan”) of proposed redevelopment for approval in October 2009.  This was rejected by the BA in a letter dated 4 November 2009 (“the November Disapproval Letter”). On 9 December 2009, the Church through its authorised person (“AP”) re-submitted the General Plan as the latest plan to the BA seeking its approval.

18. In the General Plan and the AP’s application, the Site was submitted as a “Class B site”.  It is the Church’s position that the Site has at least 40% of its boundary abutting Queen’s Road East and Kennedy Road.  The proposed site coverage was therefore also prepared on the basis of the plot-ratio permissible under a Class B site.

19. As can be seen from the Site Plan, there is no question that the Site abuts Queen’s Road East.  However, the south eastern corner of the Site is separated from the existing Kennedy Road by a triangular shaped area (“the Triangular Area”).  The Triangular Area is created over the years by the step-by-step straightening and widening of Kennedy Road.  Thus, historically, before the creation of the Triangular Area as a result of those straightening and widening works, Kennedy Road wound around and along the south east side of the Site.

20. The Triangular Area is a government land, which was allocated to the Department of Health for the Wan Chai Polyclinic.  It was part of the site of the Polyclinic in 1979, and is now occupied as part of the open car park of the Polyclinic.  The Triangular Area almost touches the existing Kennedy Road at its northern tip and is more than 4.5m wide at the southern portion.

21. By the Disapproval Letter, the BA disapproved the General Plan on the following bases:

(1)  Under section 16(1)(d) of the BO, in that the building works proposed:

(a)  Contravened Regulations 19, 20 and 12 of the Planning Regulations, as the AP’s Class B classification for the Site was incorrect.  As such, the proposed site coverage also exceeded the permissible plot-ratio (“the Classification Ground”).

(b)  Contravened Regulation 41 of the Planning Regulations as the MOE relating to the exit stairs discharging from upper ground floor into the adjoining site (which is in the Triangular Area) was not acceptable in light of paragraph 8.2 of the MOE Code (“the MOE Ground”).

(c)  Contravened Regulation 90 of the Construction Regulations, as external wall with adequate fire resisting construction at the common boundary with the Polyclinic had not been provided in the General Plan as required under paragraph 7.4 of the Fire Resisting Construction Code (“the Firewall Ground”).

(2)  The BA required the Church to provide further information to address comments and queries from the Assistant Commissioner for Transport (“the ACT”) as set out in Appendix I of the Disapproval Letter.  (“the Traffic Information Ground”)

B3.  The appeal

22. The Church lodged an appeal with the Tribunal against the BA’s said disapproval of the General Plan.

23. The appeal was heard before the Tribunal for three days in October 2011.  At that time, the Tribunal members made a visit to the Site with the parties.  As recorded in the Decision, the Tribunal members also later paid their own visits to the Site after the hearing in the absence of the parties.  In the appeal, the Church was represented by Mr Ismail, and the BA by Mr Abraham Chan.

24. Some two years after the hearing, on 7 November 2013, the Tribunal gave its Decision.

B4.  The Decision

25. In the Decision:

(1)  In relation to the Classification Ground, the Tribunal concludes that the Site satisfies the requirements to be classified as a Class B site.  It therefore finds that the BA’s disapproval of the Plan on this ground is incorrect (see paragraphs 18 ‑ 78 of the Decision) (“the Classification Conclusion”).

(2)  In relation to the MOE and Firewall Grounds, the Tribunal is of the view that its Classification Conclusion would affect the consideration of these two grounds.  As such, it decides that these two issues should be reconsidered by the BA upon the Church re-submitting a revised buildings plan to the BA with revisions made concerning only these two issues (see paragraphs 79 ‑ 92 of the Decision) (“the MOE and Firewall Conclusions”).

(3)  In relation to the Traffic Information Ground, the Tribunal finds that there was in fact no traffic issue arising and observes that this may be an after-thought on the BA as an additional blanket ground to disapprove the General Plan.  It therefore concludes that the BA’s disapproval on this ground is incorrect (see paragraphs 93 ‑ 97 of the Decision) (“the Traffic Information Conclusion”).

26. The Tribunal therefore allows the appeal but with the further conditions that (a) the Church should re-submit within 90 days a revised building plan to the BA for approval but only with revisions relating to the MOE and Firewall issues; and (b) the BA shall within 45 days thereafter decide whether to approve the revised building plan only in relation to the MOE and Firewall issues and the BA cannot adopt their prior grounds (ie, the MOE and Firewall Grounds) in that consideration.  It has also ordered costs against the BA (see paragraphs 98 ‑ 109 of the Decision).

C.  THIS JUDICIAL REVIEW

27. In this judicial review, the BA challenges each of the Tribunal’s above conclusions, including the way in which its final order is made.  I will deal with each of these challenges below.

C1.  The Classification Conclusion

28. There is no dispute that the crucial question in the appeal in relation to the Classification Ground is whether the Site can be regarded as having at least 40% of its boundary abutting two “specified streets” for the purpose of Regulation 18A.

29. Before the Tribunal, the Church’s case on how the Site abuts Kennedy Road was run on the following submissions:

(1)  Primarily, given its historical development, and in light of the “once a highway, always a highway” principle,[1] the Triangular Area should continue to be regarded as part of Kennedy Road.  As such, the Site in abutting the Triangular Area, which should continue to be regarded as part of Kennedy Road, is abutting a specified street (as part of Kennedy Road).  In this respect, the Church also says that the Underground Area[2] including the retaining wall supported its case that the Triangular Area is part of Kennedy Road (“the Once a highway, Always a highway Submissions”[3]).

(2)  Secondly, even if the Triangular Area cannot continue to be regarded as part of Kennedy Road, the Triangular Area on its own is a specified street under Regulation 18A(3)(a)(iv) as the Church has been given a right of way by the Department of Medical and Health over it sometime in late 1970s.  This is evidenced by a series of relevant correspondence made in 1977 and later (“the Right of Way Submissions”[4]).

(3)  Alternatively, even if the Triangular Area cannot continue to be regarded as part of Kennedy Road, the Site can be regarded as abutting Kennedy Road notwithstanding the intervention of space created by the Triangular Area by applying the fact and degree test as recognised in AG v Mightystream Ltd [1983] 1 WLR 980 and Building Authority v Appeal Tribunal (Buildings) and Estoree Ltd (unreported, HCAL 147/2002, 25 July 2003, per Hartmann J).  The Church also relied on the evidence that certain parts of the Underground Area including the retaining wall are included in the Site and have been used and occupied by the Church to support this abutment on the basis of the fact and degree test (“the Fact and Degree Submissions”[5]).

30. Moreover:

(1)  It was the unchallenged evidence in the appeal that, given the abutment on Queen’s Road East, the Church needed only to show that there was another 4.4m length of abutment from the tip of the Site along its eastern boundary on the existing Kennedy Road to satisfy the 40% abutment requirement to be classified as a Class B site.[6]

(2)  There was also no dispute between the parties in the appeal that the fact and degree test is as laid down in Estoree and Mightystream Ltd.  The fact and degree test is in essence that the word “abut” does not always import actual contiguity or adjoining or touching, and whether a site can be regarded as abutting on a “specified street” notwithstanding the existence of a gap in between is to be determined as a matter of fact and degree by reference to the width and function of the intervening gap.  Thus, in Mightystream, the Privy Council rules that the presence of a “nullah” between the site and the street prevented there being any abutment of the two, while in Estoree, the court (in distinguishing Mightystream)refused to disturb the Tribunal’s finding that an “insignificant drainage channel” did not prevent the abutment in question.

31. The Tribunal in considering the Classification Ground in the Decision has on its own motion divided the Triangular Area into four portions, namely, the Tip Section, the Sidewalk Section, the Right-of-Way Section and the Remaining Section (see paragraphs 40 ‑ 41 of the Decision).

32. For convenience, I have also attached to this judgment as Annex II the diagram whereby the Tribunal has divided the Triangular Area into those four sections. This is the same diagram included at paragraph 40 of the Decision.  As mentioned by the Tribunal, these sections are:

(1)  The northern portion/tip extending from 1 to 2 in front of the Church entrances and steps (the “Tip Section”);

(2)  The adjacent triangular section from 2 to 3 to the south of the Tip Section (the “Sidewalk Section”);

(3)  The right-of-way section including from 3 to 5 to the south of the Sidewalk Section (the “Right-of-Way Section”); and

(4)  The remainder of the Triangular Area from its most southerly “border” to the crossed hatch Right-of-Way Section (the “Remaining Section”), located to the south of 5.

33. It must be noted that in dividing these four sections, the Tribunal has not provided any basis or measurements as to how the Triangular Area is divided into these sections.  In other words, one reading the diagram and the Decision would not be able to identify with any precision or certainty as to the position and actual dimensions of each of these sections.

34. After setting out these four sections, the Tribunal then went on at length to decide section by section as to whether each of these sections can be regarded as a “specified street” under the various criteria provided at Regulation 18A(3)(a) of the Planning Regulations.  For example:

(1)  Paragraph 46 of the Decision states that the Tribunal “determines that the Tip Section also falls within the definition of a ‘specified street’” under Regulation 18A(3)(a)(i).

(2)  Paragraph 50 of the Decision states that the Tribunal “must now consider whether the Right of Way Section is a ‘specified street’” and it then goes on at paragraphs 51 ‑ 59 of the Decision to decide effectively that it is a “specified street”.

(3)  Paragraph 64 also states that the Sidewalk Section (given its conclusions on the Tip Section and the Right of Way Section) is also a “specified street”.

(4)  In relation to the Remaining Portion, the Tribunal did not find it necessary to determine whether it is a “specified street” as it is already satisfied that the abutment requirement has already been satisfied by the other necessary portion of the Triangular Area (see paragraph 67 of the Decision).

35. The Tribunal’s above approach in determining whether the Triangular Area is a “specified street” has led to the BA’s primary challenge in this judicial review.  It is submitted by Mr Ho that the Tribunals’ above decision under the Classification Ground is premised solely on its finding that the relevant portions of the Triangular Area can on their own right be regarded as a “specified street”, but those conclusions are wrong in law as the basis upon which those conclusions are made are either without any evidential basis or by wrongly applying the legal principles.  Mr Ho has made elaborate and persuading submissions in support of these contentions.

36. Mr Ismail accepts in this application that it is true that the Tribunal did make certain conclusions on whether the various portions of the Triangular Area are “specified street” on their own right.  However, counsel also submits that the Tribunal has in any event also made factual findings based on the fact and degree test that, at the least, the Tip Section and the northern part of the Sidewalk Section do not prevent the Site from abutting Kennedy Road.  This finding is sufficient to enable the Site to have the necessary abutment to satisfy the 40% requirement to make it classified as a Class B site.  Given that this is a factual finding based on evidence, which the court in judicial review should not normally interfere, there is simply no basis for the court to quash the Decision based on a challenge of the Tribunal’s alternative and further conclusions on “specified street”, as this finding has nothing to do with those conclusions even if they were all wrong in law as submitted by the BA.

37. These contentions require me to examine the Tribunal various conclusions made under the Classification Conclusion to see:

(1)  Whether, independently of its conclusion that these two sections themselves are a specified street, the Tribunal has made a separate conclusion applying the fact and degree test based on evidence.

(2)  Whether the Tribunal is correct as a matter of law in its conclusion that various sections of the Triangular Area is a specified street under Regulation 18A(3)(a)(iv) given that there is right of way created over it by virtue of an instrument.

C1.1 Has the Tribunal made a proper fact and degree finding

38. It is clear that the Tribunal is fully aware of the fact and degree test, as set out at paragraphs 33 ‑ 37 of the Decision.

39. The question is whether it has applied this test based on the evidence to the Tip Section and at the least the northern part of the Sidewalk Section to find the necessary abutment.

40. As to the Tip Section and the northern part of the Sidewalk Section, the Tribunal explains why there is the necessary abutment through these sections at paragraphs 44 ‑ 49 and 76 ‑ 77 of the Decision as follows:

“1. The Tip Section

44. In the case of the Tip Section of the Triangular Area (reference the Diagram 1 – 2), it is the Tribunal’s finding that the Tip Section clearly falls within the definition of a ‘street’ under Section 2 of BO, as it is a footpath.

45. The Tribunal further finds as a fact that Kennedy Road has on its western edge in front of the Site a standard pedestrian sidewalk. Between the Site and the pedestrian sidewalk lies the Tip Section of the Triangular Area. The Site visit by Members on the first day of the hearing revealed that the Tip Section is a mere few inches to a few feet in width between the existing pedestrian sidewalk and the Site without any obstruction whatsoever. It was also revealed that the paving stones for the pedestrian sidewalk have been continued across the Tip Section of the Triangular Area up to the site boundary of the Site.

46. The Tribunal therefore determines that the Tip Section also falls within the definition of a ‘specified street’ under [Regulation] 18A(3)(a)(i).

2. The Sidewalk Section 2-3

47. From the South of the Tip Section of the Triangle Area, the pedestrian sidewalk continues up to a point where it branches off in two directions, the pedestrian sidewalk towards the south abutting the existing carriageway of Kennedy Road and the other pedestrian sidewalk which winds towards the entrance way of the neighboring property to the south-west boundary of the Site, an area currently occupied by the Wan Chai Polyclinic. As the Tribunal’s designation of the phrase ‘Sidewalk Section’ implies, this is a standard sidewalk allowing pedestrians to use without exclusion this pathway to enter further into the Triangular Area.

48. As above, the Tribunal must first determine whether this Sidewalk Section is a street. Having viewed the Sidewalk Section, the Tribunal concludes that based on the definition of street under Section 2 of the BO, the Sidewalk Section is a street being a footpath. One part of the footpath runs towards the south abutting the existing carriageway of Kennedy Road, and the other towards the south west abutting the site boundary of the Site; the ‘Sidewalk Section’ refers to the area commencing at 2 and ending at 3, per the Diagram.

49. As with the Tip Section the Tribunal had no difficulty in determining that the north section of the Sidewalk Section allows the Site to continue to abut Kennedy Road, as stated in the case of Estoree, Hartmann J: ‘In determining that the EVA abutted the southern boundary of the site, the Appeal Tribunal found as a fact that not only should the “decorative border” be counted as part of the “street” but that the drainage channel immediately beyond it should also be counted.’ (paragraph 56) and ‘… that “abut” does not always import actual contiguity. …’ (paragraph 57). This abutment is found as a fact to extend only 4.4 metres along the sidewalk/Site boundary therefore allowing the Site to continue to abut Kennedy Road thereby achieving an additional perimeter (the ‘Necessary Additional Boundary’) and enabling the Site to achieve Class B boundary status. 2 ‑ 3 abuts a specified street and that specified street is in effect more than 4.5M wide since the footpath in question continues and abuts the footpath of Kennedy Road. Therefore the length of boundary 2 ‑ 3 should be included in calculating the length of abutment in determining the ‘Class’ of the site.

…

76. The Tribunal has concluded at Paragraphs 44-46 that the Tip Section does abut Kennedy Road; the fact that the [Underground] Area exists, supports the contention that the Site abuts Kennedy Road since the [Underground] Area of the Tip Section is under the entrance way of the Site and even runs under the current public sidewalk to the very edge of the old Kennedy Road retaining wall.

77.  The Tribunal therefore concludes that through the Tip Section and the Sidewalk Section, the Site abuts Kennedy Road. This abutment occurs notwithstanding the ‘intervening’ Tip Section; this is so because of the lack of interference of this minor intervening ‘third-party’ land (i.e. the Tip Section).  The Tribunal has reviewed the authorities and concludes that the current facts are clearly distinguishable from the nullah example in Mightystream and rather fall within the continuity of the Site concept as is discussed in Estoree.”

41. I must agree with Mr Ho that these paragraphs depict a rather confusing analyses by the Tribunal as to on what basis it says the Site abuts Kennedy Road through the Tip Section and the Sidewalk Section.  For example, it seems to first say that the Tip Section itself is a specified street in meeting the criterion under Regulation 18A(3)(a)(i) (ie, the section was maintained by the Highways Department) (see paragraphs 44 ‑ 46 of the Decision).  However, this cannot be correct, as firstly the Church did not advance any argument in the appeal that any part of the Triangular Area can be regarded as a specified street by reason of Regulation 18A(3)(a)(i), and secondly, it is accepted by the Tribunal itself that there are submissions that the Tip Section is not maintained by the Highways Department (see paragraph 69 of the Decision).  The Tribunal also then appears to suggest that the Tip Section and the Sidewalk Section are also specified street themselves as they are the continuation of the footpath of the existing Kennedy Road (which is in essence part of the Church’s contentions made under the Once a highway, Always a highway Submissions).  However, at the same time, the Tribunal refers here and there to the Estoree and Mightystream cases in making or referring to the above observations, which seems to suggest that it has in its mind the fact and degree test (see in particular paragraphs 49 and 77 of the Decision).

42. I therefore agree with Mr Ho’s submissions that it simply cannot be worked out with any degree of confidence and certainty that the Tribunal does make an independent finding of fact based on the fact and degree test (which is backed by clear reasons and evidence) that the Site abuts the existing Kennedy Road notwithstanding the separation created by the Tip Section and northern section of the Sidewalk Section.

43. Seeking to reconcile these paragraphs, Mr Ismail however submits that reading the above paragraphs objectively, in particular, the underlined parts, it is clear that the Tribunal has separately and independently made a finding based on the fact and degree test that the Site abuts Kennedy Road by reason of its finding that these sections should continue to be regarded as part of the Kennedy Road, but not on the basis that the Tip and northern part of the Sidewalk Sections are on their own a specified street.

44. To illustrate his above contentions, Mr Ismail submits at this hearing that paragraph 46 of the Decision should be read and understood as with the following underlined words: “The Tribunal therefore determines that the Tip Section also falls within the definition of a ‘specified street’ under [Regulation] 18A(3)(a)(i) as part of Kennedy Road”.  This is so as (says Mr Ismail) it was his primary submissions[7] made before the Tribunal that the Triangular Section should be regarded as being maintained by the Highways Department because it was part of Kennedy Road.  Since it was not his case that there is evidence in the appeal to show that any parts of the Triangular Area are in fact maintained by the Highways Department, Mr Ismail therefore emphasises that the Tribunal’s reference to Regulation 18A(3)(a)(i)[8] in this paragraph must therefore be based on this part of his submissions and should be understood as such.

45. Thus, Mr Ismail confirms that it is the Church’s case in this judicial review that Tribunal has ruled on the fact and degree test in relation to the Tip Section and at least the northern part of the Sidewalk Section by finding that these sections should continue to be regarded as part of Kennedy Road.  Counsel then submits that this is a fact finding conclusion, which cannot be said to Wednesbury unreasonable, in particular given that the Tribunal members had personally visited the Site. The court in judicial review has no basis to interfere it.

46. With respect to Mr Ismail, even taking his case to the highest, I have come to the view that this conclusion on the part of the Tribunal is not supported by any rational basis and is thus unlawful.  My reasons are as follows.

47. It must be noted, as I have summarised above, that the Church’s primary case before the Tribunal is that the Triangular Area should continue to be regarded as part of Kennedy Road given its historical development considered under the once a highway, always a highway principle. In other words, the case of the Triangular Area continuing to be part of Kennedy Road is part and parcel of the Church’s case run on the Once a highway, Always a highway Submissions.  There were no separate submissions made by the Church that Triangular Area could still be regarded as part of Kennedy Road by applying the fact and degree test.

48. However, the Tribunal has concluded at paragraph 69 of the Decision that it does not need to decide on the Church’s case on the Once a highway, Always a highway Submissions.  It explains this as follows:

“69. According to the submissions at the hearing, the Triangular Area was not maintained by the Highways Department and that the Triangular Area had not been ‘lawfully closed’ by the Highways Department or the Government. However, the Tribunal finds there are simply not enough facts to support or dispute whether this portion of Kennedy Road continues to be a highway: (for example, whether there were notices to the members of the public, including the Appellant, including whether the normally required publishing in the Gazette). As the Tribunal has found that the Necessary Additional Boundary has been proven there is no immediate need to advance this argument. Given the above, the Tribunal has not found it necessary to determine the Appellant’s contention that the Triangular Area remains a ‘highway’. Such a determination would require further evidence and submissions that were not called for nor presented, though there were submissions that such closure (if any) was never properly gazette.”

49. Thus, the Tribunal is unable to decide on whether the Triangular Area can in fact be considered as part of a highway (being part of Kennedy Road) because of the lack of evidence and submissions.

50. As such, once it has decided not to determine the Once a highway, Always a highway case for lack of relevant evidence and submissions, there is no more rational basis for the Tribunal to then conclude that these relevant sections of the Triangular Area can continue to be regarded as part of Kennedy Road.  This is so since, as I have noted above, the Church’s case in continuing to regard the Triangular Area as part of Kennedy Road is part and parcel of its case on the Once a highway, Always a highway Submissions.

51. In my view, the Tribunal’s above irrational conclusion on finding those sections of the Triangular Area as part of Kennedy Road notwithstanding its refusal to deal with the Once a Highway, Always a highway submissions is a result of having confused the Church’s submissions based on the Fact and Degree Submissions and the Once a highway, Always a highway Submissions.  This confusion is probably further contributed by the fact that (a) the Church had relied on the Underground Area to support both its primary Once a highway, Always a highway Submissions as well as the alternative Fact and Degree Submissions (see paragraphs 29(1) and (3) above); and (b) the two years lapse of time between the hearing and the Decision.  This finding of the Decision is thus unlawful for lack of a rational underlying basis.

52. Further, and in any event, this conclusion is in my view also tainted with procedural unfairness as the BA had not been given an opportunity to make any submissions to deal with the case that, by way of a fact and degree test but not otherwise, these sections can continue to be regarded as part of Kennedy Road.  As I observed above, that there were no separate submissions in the appeal made by the Church that Triangular Area could still be regarded as part of Kennedy Road by applying the fact and degree test.

53. I therefore agree with Mr Ho that this part of the conclusion is unlawful and should be quashed.

C1.2  The Right of Way finding

54. Regulation 18A(3)(a)(iv) provides that a street is a “specified street” if it is on “land over which the owner of the site is expressly granted, by or by virtue of an instrument, a right of way exercisable at all times”.

55. The Tribunal at paragraphs 50 ‑ 59 of the Decision finds that the Tip Section, the Sidewalk Section and the Right of Way Section satisfy Regulation 18A(3)(a)(iv) and thus are a specified street.  It explains its conclusion relevantly as follows:

“3. The Right-of-Way Section 3 - 5

50. The Tribunal, having determined that the Tip Section and the northern portion of the Sidewalk Section allow the Site to abut a specified street as above, the Tribunal must now consider whether the Right of Way Section is a ‘specified street’:

50.1. Whether any of the circumstances set out in [Regulation] 18A(3)(a) exist; or

50.2. Whether failing the above, one or more of such circumstances exist with respect to different parts of the street and those parts together constitute the street.

51. In determining this question, the Tribunal must consider the Appellant’s submission on the Right of Way Section. The Appellant’s position is that the Appellant enjoys a right of way across the Triangular Area and that a series of discussions and correspondence/letters both to and from the Appellant (together as a valid instrument) has granted to the Appellant a right of way over said Triangular Area.

52. The Appellant submits that in a letter from the then Director of Medical and Health Services of 20 Sept 1977 (the ‘1977 Letter’), a right of access was expressively given to the existing Church to facilitate access for the disabled members of the congregation through the small area of the Triangular Area currently used as the Wan Chai Polyclinic car-park and the Triangular Area is effectively a ‘specified street’ under [Regulation]18A(3).

53. Thus, it is for the Tribunal to determine: Is the street on land over which the owner of the site is expressly granted, by or by virtue of an instrument, a right of way exercisable at all times?

54. Given that:-

54.1. a letter can be a valid instrument;

54.2. the then-Director of Medical and Health had apparent authority to issue such letter for and on behalf of the Medical and Health Services Department and that the said Department had the legal right over the relevant land at the material time;

54.3. the intention of the parties; and

54.4. the relevant correspondence/letters between the parties; then the Tribunal determines that the 1977 Letter (together with the series of communication) is a valid instrument within the meaning of [Regulation] 18A(3)(a)(iv) for the purpose of expressly granting a right of way.

55. In granting the right of way, the 1977 Letter does not stipulate any expiration date or time limit on such grant. In addition, there is also the continued conduct of the parties over many years and continuing to date in support of the Appellant’s position of there being a grant of the right of way. As one example, the Appellant was given the keys to the gate entering the Polyclinic parking lot on which a portion of the Triangular Area covers. There is no doubt that the Appellant has a right of way and access through the Triangular Area exercisable at all times.

Can the Right-of-Way Section be regarded as a Specific Street?

56. The Tribunal acknowledges its indebtedness to Mr. Chan of the BA in referring to the February 2004 paper prepared for discussion on 24 February 2004 by the Legislative Council Panel on Planning, Lands and Works which sets out the background for the concept of ‘specified street’ against the back drop of the ‘uncertainties about the definition of street in relation to site classification’ created by the Siu Sai Wan site development case. In that paper it was stated that the site ‘would abut a street for the purpose of site classification’ (i.e. a ‘specified street’), if ‘the owner of the site has been expressly granted a right of way over the street exercisable at all times’. This paper was the precursor of the current [Regulation] 18A(3).

57. Although the final regulation has adopted slightly different working, the Tribunal can now better determine the solution that the regulations were drafted to achieve. The Appellant has therefore rightly contended that the right of way that has been granted as a result of various conversations and specifically letters to and from the owner of the Site would be an exception to the ‘standard’ determination of abutment. The Tribunal also has concluded that this series of letters can be and should be regarded as a set of documents that constitutes an instrument under the requirements of [Regulation] 18A(3).

58. The Tribunal finds as a fact that the Appellant has been allowed both pedestrian (e.g. the Church’s disabled members) and vehicular access and a right of way through the Triangular Area (across the Right of Way, the Tip Section and the Sidewalk Sections) from Kennedy Road to the Site. As such, the Right of Way Section further enables the Tribunal to concludes that the Site abuts Kennedy Road through the Tip Section, the Sidewalk Section and the Right of Way Sections of the Triangular Area by operation of the Right-of-Way and as above and as such complies with the [Regulation]18(A)3.

59.  Hence, the Tribunal further determines that, in practice, pedestrian access (the ‘Pedestrian Access’) and vehicles (the ‘Vehicular Access’) take two different paths/accesses to the existing car-parking space as evidenced by the evidence given at this hearing and observations by the Tribunal members during their Site Visits.  As the Tribunal has found that the Right-of-Way Section contains a right of way, that fact allows that entire area to be considered a ‘street’ as set out at Paragraph 41. above, whether such right-of-way is all or a combination of a ‘square’, ‘court’, ‘land’, ‘road’, ‘footpath’ or ‘passage’.  This is so because the Pedestrian Access and Vehicular Access pass over the Right-of-Way Section notwithstanding some portion of this is as well, the footpath (and/or the southward extension of the footpath mentioned above commencing from Paragraph 44.  With the finding of a right-of-way and with distinction of these two different paths in mind, we will turn to the consideration of boundary ratio.”

56. In gist, the Tribunal concludes that the Tip Section, the Sidewalk Section and the Right of Way Section by themselves are such a specified street under Regulation 18A(3)(a)(iv).  This is so because it has found as a fact that the Church “has been allowed both pedestrian (eg the Church’s disabled members) and vehicular access and a right of way through the Triangular Area (across the Right of Way, the Tip Section and the Sidewalk Section) from Kennedy Road to the Site…” (see paragraph 58 of the Decision).

57. The Tribunal finds that there is such a right of way created by reference to a letter to the then Director of Medical and Health Services (“the Director”) dated 20 September 1977 (“the 1977 Letter”) and a series of letters exchanged between the relevant parties around that time (see paragraphs 52 and 57 of the Decision).  It also holds that these series of letters, including the 1977 Letter, can be treated as “instrument” under Regulation 18A(3)(a)(iv).

58. The 1977 Letter was written by the Director to the Church in response to the Church’s letter dated 29 August 1977.  At that time, the Church was planning to build an extension at the Site.  The Church in the August letter indicated that they wished to provide access for “disabled and wheelchair members of the congregation” going to the Church to enter on one level without having to negotiate stairs.  They also wished to provide a “car space” for the minister who would have his office in the new extension building.  They therefore wanted to explore the possibility of asking for a surrender to the Church of a small area of the Triangular Area to create the said access and car space.  In that letter, it was stated expressly that the Church understood that “no approach can be made to the appropriate authority without first having” the goodwill and agreement of the Medical and Health Department (“the Department”).

59. In the 1977 Letter and in response to the Church’s August letter, the Director stated relevantly as follows:

“This department would certainly wish to do everything possible to facilitate access for disabled members of your congregation but from an initial reading of your letter it would seem that this could be simply arranged by giving you a right of access through the small area of the existing car-park referred to and, in this case, it would not be necessary for the department to surrender any portion of the land to the English Methodist Church on a formal basis. I should be grateful to receive your confirmation that this is all that will be required.”

60. Other than these two letters, included in the evidence for the appeal are also a number of other correspondences exchanged between the Department (and the Chief Physician of the Polyclinic) and the Church between September 1977 and May 1980,[9] which effectively show that the Department or the Polyclinic was agreeable to allow the Church’s disabled and wheelchair members and the minister’s car to have access through a small area of the Polyclinic carpark (which is in the Triangular Area) to go to the Church building.

61. Mr Ho for the BA challenges the Tribunal’s conclusion that a right of way has been created over these sections of the Triangular Area.  He submits that the conclusion is tainted by a number of errors of law or Wednesbuary unreasonable.  Mr Ho has made elaborate submissions on these errors, and I hope I can be forgiven for summarising them briefly as follows:

(1)  First, it is contended that as matter of proper construction, the word “instrument” under Regulation 18A(3)(a)(iv) mean “formal legal document”[10] and letters as those seen in this case cannot fall within that definition.  As such, the Tribunal is wrong in law to treat the 1977 Letter and the other correspondences as instrument for the purpose of this regulation.

(2)  Second, and in any event, the Tribunal’s construction that a right of way exercisable at all time over the Triangular Area has been granted by “the owner” to the Church under the 1977 Letter and the other correspondences is wrong in law or irrational given that:

(a)  It has not taken into account the fact that these correspondences written by the Department or its representative were not representing the owner of the land, who is the Government.  The land was only allocated to the Department for use.  In this respect, it is pertinent to note that the Church itself accepted in the 1977 Letter that it would need to look to the “relevant authority” but not the Department to formally ask for a surrender of a small part of the Triangular Area once it had got the “goodwill and agreement” of the Department.[11]  This shows that (Mr Ho submits) the Church itself recognised that the Department was not the owner of the Triangular Area and cannot by itself give or deal with any interest in that piece of land.

(b)  The Tribunal is wrong in law in taking into account irrelevant factors by looking at subsequent conducts (such as the giving of keys etc, see paragraph 55 of the Decision) to construe the intention of the parties at the time when the right was created.

(c)  Alternatively, if subsequent conduct is relevant, the Tribunal is wrong in failing to take into account the letter dated 13 May 1980 from the then Assistant Director of the Department to Reverend Hopkins of the Church, which made clear that even by that point the Church did not consider itself to have any general permission to access through the Triangular Area.[12]

(d)  The nature of the “right” granted to the Church under these correspondences is at most a revocable licence and cannot be an interest in land in the form of a right of way over.  In particular, it is clear that the Church was only given a right to access through a small part of the Triangular Area only to enableits disabled members and the minister to go to the Church.  This cannot amount to an interest in land, in particular in light of the Church’s initial request to have a surrender which was apparently not given. In this respect, the Tribunal also has not explained at all why it rejects the BA’s case in the appeal that the right only amounted to a licence.

(e)  Further, taking it to the highest, the “right” granted cannot be regarded as to cover the entire Triangular Area.  There is no indication in these correspondences as to the area upon which the right is granted.  Alternatively, from the context of the access as expressly requested, it is clear that the “right” covers only a small portion of the Triangular Area.

62. I think there is much force in Mr Ho’s above submissions.

63. However, I do not think it is right and appropriate for me to give a final conclusion on these submissions at this stage.  Instead, I think it is only right for me to quash this part of the conclusion and remit it back to the Tribunal for reconsideration for the following reasons.

64. It is important to first note that the Tribunal in arriving at this right of way conclusion has relied on and referred to the 1977 Letter and a series of correspondences.  However, the Tribunal has singularly failed to identify what these series of correspondences are.  Related to this, it has also not identified the latest time as to when (and why at that time) it says the right of way was created.  Without identifying these in this part of the Decision, one can only be speculative as to the bases and reasons why the Tribunal has come to the view that the totality of these correspondences gives rise to the relevant right of way over the Triangular Area.  For example, one simply is unable to know which parts of what other correspondences that the Tribunal has taken into account to support its finding of the right of way.  Without these, one is also unable to form an intelligible understanding as to the reason why the Tribunal find those parts of the unidentified correspondences support a right of way.  As such, in my view, the Tribunal has failed to give adequate reasons to allow a legitimate and intelligible understanding of its conclusion.  This part of the finding should thus be quashed for lack of adequate reasons.

65. The Tribunal’s failure to give adequate reasons on the other hand makes it inappropriate for this court to come to a firm conclusion in relation to Mr Ho’s above complaints as, in my view, the merits of these contentions are highly contextual based.

66. For example, I think there is substance in the contention, as a matter of purposive construction that the word “instrument” should be given a narrow meaning as “formal legal document” given the legislative history of this provision and the context that this provision deals with important matters relating to site classification and thus plot ratio by reference to an interest in land exercisable at all time.  However, as Mr Ho fairly emphasises and accepts, the word “instrument” does not only mean “deed” and it is also not necessary for the court to give an exhausting meaning of the word “instrument”.  He also accepts that it is not his case that a letter or a series of letters can never constitute formal legal documents.  What he however asks this court to conclude is that the types of letters shown in the present case cannot fall within the meaning of “formal legal document”.  With respect, I do not think the court can come to that conclusion at this stage without knowing which of these correspondences the Tribunal has relied on to reach its conclusion and the reasons for doing so.[13]  I should therefore refrain from forming a conclusion now, in particular when the matter is to be remitted for reconsideration by the Tribunal.

67. Similarly, for the validity of the other complaints made by Mr Ho, they are also dependent on looking at say (a) what are the correspondences that the Tribunal has relied on and the reasons for coming to that conclusion; and (b) when the Tribunal say at the latest the right was created (for example, the complaint relating to the Tribunal’s taking into account subsequent conducts).  The court at this stage should not pre-empt any conclusions which are evidence linked.

68. For these reasons, I would also quash the Tribunal’s conclusion based on the finding of the right of way for lack of adequate reasons, and remit the same to the Tribunal for reconsideration.

C2.  The Traffic Information Conclusion

69. Relevant to this are sections 16(1)(h) to (j) of the BO, which are as follows:

“(1) The Building Authority may refuse to give his approval of any plans of building works where –

(a) …

…

(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;

(i) in his opinion, it is necessary for him to have further particulars of such plans or of the building works shown thereon or, where all the plans prescribed by regulations have not been submitted, to have one or more of the other plans prescribed by regulations, to enable him fully to consider such plans;

(j) any further particulars or other plans delivered to him, upon his refusal, under paragraph (i), to give his approval to any plans, are not to his satisfaction;

…”

70. Thus:

(1)  Under section 16(1)(h), the BA can disapprove a buildings plan on the ground that any means of access provided in the plan is dangerous or likely to be dangerous.

(2)  Under section 16(1)(i), the BA can disapprove a plan on the basis that it is necessary to have further particulars of the plan or the building works to enable him to consider further of the plan.

(3)  Under section 16(1)(j), the BA can disapprove a plan on the basis that it is not satisfied with the further particulars provided after the BA has previously disapproved the plan under section 16(1)(i).

71. As mentioned above, in the Disapproval Letter, the BA also referred to the Church’s failure to deal with certain traffic related issues as follows:

“7B. Under Buildings Ordinance section 16(1)(j), you are required to provide further information to address the comments from Assistant Commissioner for Transport/Urban, Transport Department in paragraph 11 below and to demonstrate the right of way through the adjoining lot. I hereby reserve my position under Buildings Ordinance section 16(1)(b).

…

11.  The Assistant Commissioner for Transport/Urban, Transport Department (Contact Officer: Ms. Chiny LEUNG at tel. no. 2294 2600) has comments at Appendix I.”

72. Annex I set out the ACT’s comments as follows:

“(a) The AP should demonstrate if the provision of internal transport facilities is in accordance with the HKPSG.

(b) The AP should demonstrate if the proposed vehicular access is in line with relevant lease conditions.

(c) Information on the capacity of church and other uses should be provided. Traffic generation and attraction should be assessed according.

(d) The AP should demonstrate the adjoining road(s) and junction(s) can accommodate the additional traffic generated by significant increase of development intensity.

In absence of the above details, we reserve to provide further comment on the proposal.”

73. In relation to this disapproval ground, the agreed issue in the appeal is whether the Church has provided sufficient particulars in answering the ACT concerns.  See the “Traffic Issue” identified under paragraph 13 of the Decision as follows:

“13. At the hearing, the parties agreed the Disapproval Letter raised the following issues for determination by the Tribunal:-

13.1. Whether the Triangular Area constitutes a ‘specified street’ for the purposes of [Regulation] 18A(3)(iv) and whether the Site falls within the definition of a Class B site (the ‘Triangular Area Issue’);

13.2. Whether the GBP provides for an adequate means of escape (‘MOE’) for the Site (the ‘MOE Issue’);

13.3. Whether the GBP provides for an adequate fire wall near the common boundary with the Wan Chai Polyclinic (the ‘Fire Wall Issue’); and

13.4. Whether the Appellant has provided sufficient particulars in answering the Assistant Commissioner for Transport’s (the ‘ACT’) concerns (the ‘Traffic Issue’).

74. Thus, the issue is whether it is correct for the BA to disapprove the plan on the ground that the Church needed to provide further particulars relating to the ACT’s concerns on traffic related matters.  In gist, the ground under section 16(1)(i).

75. However, the Tribunal in the Decision decides in substance that the ACT’s concerns raised are not proper traffic matters that the BA is entitled to look into.  The Tribunal arrives at that view by reference to the CFA judgment in China Field Ltd v Appeal Tribunal (Buildings) (2009) 12 HKCFAR 342.  It therefore concludes that there is no valid traffic issue and there is therefore also no question for asking for further particulars.  It even goes further to suggest that this is an afterthought of the BA.  The Tribunal explains this at paragraphs 93 ‑ 97 of the Decision as follows:

“The Traffic Issue

93. Under paragraph 7B of the Disapproval Letter, the BA required the [Church] to provide further information to address the comments from the Assistant Commissioner for Transport (Urban), Transport Department and to demonstrate the right of way through the adjoining lot (the ‘Traffic Issues’). In the Disapproval Letter, the BA stated: ‘In reliance on the comments given by the Assistant Commissioner for Transport (Urban) of the Transport Department (the “ACT”) at paragraph 11 of the Disapproval Letter, the Authorised Person was required to provide further information to address the ACT’s comments given in Appendix I to the Disapproval Letter (“Appendix I”)’. Hence, the AP was required to address the following issues for the Tribunal’s consideration:-

Hong Kong Planning Standards and Guidelines (‘HKPSG’)

93.1. ‘The AP should demonstrate if the provision of internal transport facilities is in accordance with the HKPSG.’

Lease Conditions (re. Proposed Vehicular Access)

93.2. ‘The AP should demonstrate if the proposed vehicular access is in line with relevant lease conditions.’

Traffic Generation and Attraction

93.3. ‘Information on the capacity of church and other uses should be provided. Traffic generation and attraction should be assessed according(ly).’

Right of Way

93.4. The BA also requested the [Church], via its AP, to demonstrate the right of way through the adjoining lot: ‘The AP should demonstrate the adjoining road(s) and junction(s) can accommodate the additional traffic generated by significant increase of development intensity.’

94. In response to this Traffic Issue the Tribunal is mindful of the fact that this ‘issue’ was not raised in response to the [Church’s] earlier building plans: this fact of late consideration was not a surprise to the Tribunal since the ‘traffic’ in question concerns only entrance and exit of vehicles accessing the Site’s two parking spaces. The Disapproval Letter states: ‘the AP should demonstrate the adjoining road(s) and junction(s) can accommodate the additional traffic generated by significant increase of development intensity.’

95. This particular request from the BA in the Disapproval Letter to the [Church], with respect, appears to be an afterthought put in for good measure. In the recent case (October 2009) of China Field Ltd and Appeal Tribunal (Buildings) (No 2) FACV No. 2 of 2009, the Traffic Issue consideration was placed in its proper context and the Tribunal would rely on that case to determine that IN THIS CASE there is no Traffic Issue:-

‘… the Authority would not be entitled to reject, building plans which involved the addition of further floors above an existing building but no alteration to the existing access to the street, because the building works would not involve the construction, formation or laying out of any means of access but only the use of an existing one. The fact that the massive increase in the volume of traffic using the street would cause danger or inconvenience to traffic even in the immediate vicinity of the site would not be sufficient.’

96. As the Appellant rightly indicates in his submission, and the Tribunal is of the view that in any event one or two parking spaces would be insignificant (i.e. no ‘massive increase in the volume of traffic’) in term of generating additional traffic in the area especially considering the Site is adjacent to a parking lot of the Wan Chai Polyclinic whose parking lot already has an unspecific number of vehicles coming in and out of it accessing Kennedy Road.

97. Furthermore, the Tribunal is of the view that the BA’s invoking of BO sections 16(1)(d) and (j) may appear to be an effort for the sole purpose of creating a ‘blanket rejection’:-

‘The Building Authority may refuse to give his approval of any plans of building works where-

(d) the carrying out of the building works shown thereon would contravene the provisions of this Ordinance or of any other enactment, or would contravene any approved or draft plan prepared under the Town Planning Ordinance (Cap 131);

…

(j) any further particulars or other plans delivered to him, upon his refusal, under paragraph (i), to give his approval to any plans, are not to his satisfaction;’ (emphasis added)

76. I agree with Mr Ho that this conclusion of the Tribunal is faulted with errors of law for the following reasons.

77. First, the Tribunal has erred in law and exceeded its jurisdiction in the appeal by assessing the Traffic Information Ground on a substantive footing.

78. As the Court of Appeal noted in Lau Siu Kin Rembert v Building Authority [2013] 4 HKLRD 74 at paragraph 102, the extent of the Tribunal’s powers vary according to the subject matter of the appeal. Insofar as the subject matter concerns a request for particulars or further particulars (ie, under section 16(1)(i) or (j)), then the Tribunal can do more than confirm, vary or reverse the BA’s decision or substitute its own decision on whether particulars are required.

79. What the Tribunal cannot do is to determine the existence (or otherwise) of substantive grounds of refusal under section 16(1) (for example under section 16(1)(d) or (h)) by reference to the subject matter of the BA’s request for particulars.  That is a matter for the BA. Since the BA itself had not made a decision either way on whether substantive grounds for refusal existed in respect of traffic, it was not for the Tribunal to take that decision for itself.  See also Building Authority v Appeal Tribunal (Buildings) and Dobrowen Investment Ltd (unreported, HCAL 20/2011, 20 December 2011) at paragraphs 69 ‑ 76 (per Lam J as he then was).

80. Mr Ismail however submits that under this ground in the appeal, it must be open to the Tribunal to consider whether the BA was justified in the first place to ask for those particulars.[14]  The Tribunal is therefore entitled to rely on China Field to effectively conclude that there was no justification for the BA to ask for further particulars.

81. In this respect, I accept Mr Ho’s further submissions that the Tribunal’s reliance upon the CFA’s judgment in China Field (see paragraph 59 of the Decision) is also an error of law.

82. The issue in that case was whether the BA was entitled to invoke section 16(1)(h) as a ground for substantively rejecting the plans before it on traffic grounds:

(1)  It was not a holding in China Field that traffic concerns are generally irrelevant as grounds for substantive disapproval under section 16(1).  On its facts the case was confined to an issue of the scope of section 16(1)(h), which requires on its terms building works themselves involving “means of access”.  The quoted words from China Field at paragraph 95 of the Decision were stated in and restricted to the immediate context of section 16(1)(h).

(2)  Further, even if section 16(1)(h) were a relevant consideration at this stage, the vehicular access to the proposed carpark for the Site falls within the meaning of “means of access” as stipulated in that provision.  As the proposed access involves construction of new vehicular access to Kennedy Road from the subject site via the Triangular Area which is within the adjoining lot, the BA would be entitled to reject the General Plan if concerns as to the traffic impact of the proposal were inadequately addressed by the Church.

83. That is not the situation in the present appeal before the Tribunal.  China Field therefore has no application to the appeal before it.

84. It follows that, in deciding that there was no traffic issue in the sense addressed in China Field (being a substantive reason for rejecting the plans), the Tribunal has misdirected itself by asking and answering the wrong legal question and acted inconsistently with the formulation of the Traffic Issue (being an agreed one) at paragraph 13.4 of the Decision. Its decision is tainted by an error of law.

85. In further response, Mr Ismail seeks also to argue at this hearing that the BA relied expressly on section 16(1)(j) instead of section 16(1)(i) in the Disapproval Letter to support this ground.  Thus, this is a disapproval based on substantive ground in being dissatisfied with the earlier particulars provided by the Church after the BA had disapproved an earlier plan submitted in October 2009 on the basis of section 16(1)(i).  This is a disapproval based on section 16(1)(j) on substantive ground but not on section 16(1)(i) in seeking further particulars. As such, the Tribunal is fully entitled and right to consider whether there is any substance in the traffic concern.

86. In relation to the plan submitted on 8 October 2009, the BA’s disapproval is contained in a letter dated 4 November 2009 (ie, the November Disapproval Letter).  The relevant parts of that letter are paragraphs 7B and 11, which state as follows:

“7B. Under Buildings Ordinance section 16(1)(i), you are required to indicate the means of access for the 2 carparking spaces on upper ground floor for my consideration. Your attention is drawn to the comments from the Assistant Commissioner for Transport/Urban at paragraph 11 below and I hereby reserve my position under Building Ordinance section 16(1)(h).

…

11. The Assistant Commissioner for Transport/Urban, Transport Department (Contact Officer: Ms. Chiny LEUNG at tel. no. 2294 2600) has the following comments:-

It is noted that there are two parking spaces proposed at the upper ground floor, the AP should demonstrate if the number of such car parking provision is in accordance to the HKPSG.  Also the vehicular access to such parking spaces is not shown on plan, and we may offer further comment on the vehicular access when it is indicated.”

87. One can immediately see that the concerns raised by the ACT as recorded in the November Disapproval Letter are different from the ones set out in Appendix I of the Disapproval Letter.

88. It is also obvious that the BA in paragraph 7B of the Disapproval Letter was asking the Church to provide particulars in answer to the ACT’s second batch of concerns set out in Appendix I.  These have nothing to do with the particulars provided under and after the November Disapproval Letter.  This is also recognised by the Tribunal at paragraph 94 of the Decision (see above).

89. As such, although the BA only referred to section 16(1)(j) in the Disapproval Letter, properly understood objectively in context, it clearly also disapproved the General Plan on this occasion on the basis that further particulars were required to be provided in relation to the other concerns raised by the ACT, ie, on the basis of section 16(1)(i).  This must have been so similarly understood by the parties as reflected by the Traffic Issue in the appeal as recorded by the Tribunal at paragraph 13.4 of the Decision.

90. In the premises, I reject Mr Ismail’s submissions that the BA did not disapprove the General Plan also on a section 16(1)(i) ground.

91. I therefore accept Mr Ho’s submissions that the Tribunal has erred in law in determining the Traffic Information Ground on a substantive basis.

92. Second, even assuming that it was proper for the Tribunal to make its own substantive assessment of the traffic situation, in doing so, the Tribunal has failed to take into account relevant considerations in only referring to the number of parking spaces at the Site as a reason for concluding there was no legitimate traffic concern as regards the General Plan.

93. From the comments raised by the ACT as recorded in Appendix I of the Disapproval Letter, the real concern as to traffic was not just that additional traffic would be caused by increased parking spaces at the Site but that additional traffic would inevitably be caused by:

(1)  The formation of vehicular run-in/out to Kennedy Road.

(2)  The greatly increased capacity of the Church, by reason of its increased size and expanded facilities, to accommodate people and activities on Sundays and throughout the week.

94. This is turn could potentially give rise to grounds for disapproval based on, among others, possible dangers posed to users of the Site and the general public.

95. In failing to address the above concerns, the Tribunal overlooked material and relevant considerations as to traffic impact. This amounts to an error of law.

96. In the premises, the Tribunal’s conclusion is also unlawful in failing to take into account relevant consideration.

97. Finally, Mr Ho also challenges this part of the Decision by saying that there is procedural unfairness or irrationality in the Tribunal’s observation that the BA’s disapproval of the General Plan based on the Traffic Information Ground is an “afterthought” and “for the sole purpose of creating a blanket rejection”.

98. As far as I can see, reading objectively this part of the Decision, the Tribunal’s above observation does not form part of the reasons for or basis of the Traffic Information Conclusion.  Therefore, I do not think it is necessary for the BA to challenge that in order to succeed in seeking to quash that part of the Decision.

99. However, in case I am wrong on this, I agree with Mr Ho that this part of the observation is obviously tainted with procedural unfairness or is unlawful since:

(1)  This observation is a serious allegation, but one which was not raised against the BA at any point in the proceedings either by the Church or the Tribunal.  Thus, the BA had been given no opportunity of addressing it.

(2)  The observation in effectively saying that the BA was acting in bad faith or otherwise improperly is not supported by any evidence (given that this allegation was ever raised against the BA).

100. In the premises, if this observation forms part of the basis of the Traffic Information Conclusion, it is tainted by unfairness and is otherwise irrational, and should also be quashed on this basis.

101. For all these reasons, the BA also succeeds in this ground of judicial review.  The Traffic Information Conclusion of the Decision should be quashed and remitted back to the Tribunal for reconsideration.

C3.  The MOE and Firewall Conclusions and the final order

102. The challenges of the MOE and Firewall Conclusions and the final order made in the Decision can and should be considered together, as they are interlinked.

103. The MOE Ground arose in the following way.

104. Paragraph 8.2 of the MOE Code provides as follows:

“Every exit route should lead directly to a street or to an open area at ground level having unobstructed access, not less in width than the total required width of exit routes discharging into such an area, to a street. Such access to a street should not be closed with doors or gates unless such doors or gates are capable of being readily opened from inside without the use of key(s) and in the direction of exit.”

105. In the General Plan, as a proposed MOE, there is a staircase leading from the upper floors of the proposed building discharging people to the Triangular Area in front of the Polyclinic.

106. It is the BA’s view that this proposed MOE is not in compliance of paragraph 8.2 of the MOE Code, since the proposed exit does not lead directly to a “street” or “an open area” having unobstructed access.  In particular, it is the BA’s view that the Triangular Area being part of the space of the Polyclinic is under the control of the Department.

107. The Church however argued that the BA was wrong in treating the Triangular Area as if it was not part of Kennedy Road.  It is the Church’s contention that the Triangular Area came within the definition of a street and the MOE satisfied the MOE Code.

108. Whether the BA is correct in this view is a mixed question of law and fact, including what is the nature and use of the Triangular Area.

109. In the MOE Conclusion, the Tribunal however decides that this issue should be reconsidered by the BA in light of its earlier conclusion that at least a major part of the Triangular Area can continue to be regarded as part of Kennedy Road or that it is a specified street by reason of the right of way.

110. The Firewall Ground arose the following way.

111. Paragraph 7.4 of the Fire Resisting Construction Code (“the FRC Code”) provides as follows:

“Any part of any building within a distance of not more than 900 mm of a common boundary with an adjoining site should be enclosed by imperforate external walls and roof having the same FRP as that of the internal elements of the construction. Openings protected by fixed lights having and FRP of not less than 1/2 hour, 1 hour in the case of a required staircase or its lobby, may however be made in such external walls and roof provided they are not less than 450 mm from such boundary.”

112. The BA in disapproving the General Plan on the Firewall Ground was of the view that, contrary to paragraph 7.4 of the FRC Code, the proposed building does not provide the requisite fire resistant wall with the adjoining site, being the Triangular Area.

113. After looking at various other paragraphs of the FRC Code and taking note of the Church’s contentions that the “site” referred to in paragraph 7.4 should be interpreted to mean a building instead of an existing open site, the Tribunal agrees with the BA that the “site” could mean an open site as the FRC Code should be “forward looking” (see paragraphs 88 ‑ 90 of the Decision).

114. However, the Tribunal further forms the view that the issue arising under the Firewall Ground is whether the majority part of the Triangular Area can be regarded as a “specified street”, since if it is so, then “the BA’s contention that the boundary of the site ends at the edge of the sidewalk abutting the ‘public’ Kennedy Road sidewalk” cannot be correct (see paragraphs 91 and 92 of the Decision).

115. For this, the Tribunal then says given its earlier conclusion that at least some parts of the Triangular Area is a “specified street”, this Firewall issue should also be remitted back to the BA together with the MOE issue for further consideration in light of the Tribunal’s finding vis-à-vis the Triangular Area.

116. The Tribunal says these at paragraphs 84, 85, 91, 92, and 101 ‑ 108 of the Decision on the MOE and Firewall issues and as to how they should be dealt with:

“84. If the [Church’s] abutment-to-Kennedy-Road-argument succeeds in whole or part it may affect:-

84.1 Site classification as a lengthening of the boundary could result in classification as a Class B site;

84.2 The MOE Issue and the Fire Wall Issue would have to be reconsidered as to where the discharge onto the Triangle Area takes place.

85. The Tribunal determines that their findings regarding the MOE Issue should be considered together with the Fire Wall Issue below.

…

91. The Tribunal must determine where the [Church’s] Site ceases to border a specified street. The tribunal has found that the Necessary Additional Boundary requirement extends past the existing car park. As such the 40% hurdle has been met by considering the Right-of-Way and the Remaining Sections, which boundary ends at the west edge of the existing car park of the Site. As above, the Tribunal has found that the Tip Section, the Sidewalk Section and the Right-of-Way Section are all not only streets as defined but also specified streets. As such, the boundary of the Church’s land that borders specified streets continues along with Tip Section, along the Sidewalk Section until the edge of the [Church’s] car park (as this is the far boundary edge of the Right-of-Way Section of the Triangular Area) (see Tribunal’s Diagram at Paragraph 40).

92. As such, the [Church’s] contention that the boundary area compasses the entire Southern Boundary of the site is incorrect but, so is the BA’s contention that the boundary of the site ends at the edge of the sidewalk abutting the ‘public’ Kennedy Road sidewalk: the Tribunal has determined that the boundary of the Site to a specified street ends at the edge of the [Church’s] current car park area (referenced near 4 in the attached Diagram). This is so because the boundary (from 1 to 4 on the Tribunal Diagram at paragraph 40 as well as the Brown hatched area on the Tribunal Diagram are subject to a Right of Way and/or abutment as above detailed. As such, the Church and BA must collectively reconsider both the MOE Issue and the Fire Wall Issue as it relates to the [general building plans (‘the GBP’)] in this new context. The Tribunal encourages the parties to make the appropriate determination on the basis of the Tribunal’s finding of the extent of the boundary as above and the resultant finding that the Site is a Class B Site. The parties should refer to the Final Decision and Costs section below.

…

The Conditions

101. The [Church] is required to comply with the following criteria and conditions (the ‘Conditions’) before a final order can be issued by this Tribunal:-

101.1. The [Church] is to submit a revised GBP with only modifications aiming to address the MOE Issue and the Fire Wall Issue to the BA; and

101.2. The BA must reconsider the revised GBP by the [Church] and must only approve or disapprove the revised GBP based solely on the MOE Issue and the Fire Wall Issue.

102. The Members of the Tribunal noted the suggestion by Rev. Cyril Clarke in his letter in 1977 to the then-Director of Medical and Health Services:-

‘… The only effective solution, as we see it, is a request to you to consider surrendering this small triangle to the English Methodist Church.’.

103. The Tribunal humbly agrees with Rev. Clarke that this certainly would have been an ‘effective solution’ to the future problems that this rather ‘restricted-use’ piece of land has caused. Had Rev. Clarke’s suggestion been followed up at that time, this Case may not have been necessary.

Conclusion

104. Having considered all relevant issues, facts and legal principles, the Tribunal has determined that the BA erred in not exercising its discretion to approve the [Church’s] GBP. The BA should have looked at entire re-development project as a whole and should also have considered each issue in relation to other aspects and issues in order to exercise its statutory powers and discretion.

105. Furthermore, without criticizing the BA, the BA could have assisted the [Church] more fully in discussing fully the necessary amendments to the GBP and taking positive actions in order to comply with the relevant regulations, industrial standards and preferred guidelines (i.e. HKPSG).

106. Under s.50(2) of the BO: ‘In determining an appeal, the Appeal Tribunal may make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such other order as it thinks fit.’, the Tribunal is hereby empowered to give this decision in favor of the [Church].

Final Decision and Costs

107. The Appeal is therefore unanimously allowed. The grounds set out in the Disapproval Letter from the Building Authority in its disapproval be set aside.

108.  The [Church] within 90 days from the date of this judgment should resubmit a new set of building plans by making and only making the necessary adjustments (in order to fulfill the grounds from the [Church’s] last submitted building plans, for the BA’s consideration (the ‘Revised Building Plans’).  Upon the receipt of the Revised Building Plans from the Appellant, the BA shall consider these new plans without adopting their prior grounds within 45 days.”

117. In substance, the Tribunal decides not to determine the MOE and Firewall Grounds in the appeal as the validity of these grounds would be affected by the Tribunal’s conclusion that the Triangular Area is either a specified street as part of Kennedy Road or by reason of the right of way.  It further directs that the BA shall reconsider these and only these two issues upon the Church submitting a revised building plan for approval, where the revision shall also only be made in relation to these two matters.

118. Mr Ho submits that these parts of the decision as well as the final order made should be quashed for being wrong in law.  This is so as the Tribunal has either abdicated its statutory duty under section 50 of the BO in not determining the MOE and Firewall Grounds (in particular in light of the Tribunal’s power to call for and hear additional evidence if necessary), or is acting unlawfully in making the final order which limits what the BA may do in deciding whether to approve or disapprove the revised plan.

119. Section 50 of the BO provides as follows:

“(1) The following shall apply in relation to the hearing and determination of an appeal or a preliminary hearing held under section 49—

(a) every question shall be determined by the opinion of the majority of the members of the Appeal Tribunal;

(b) where there is an equality of votes, the Chairman shall have a casting vote;

(c) the Appeal Tribunal may—

(i) receive and consider any oral, documentary or other evidence, (including any written statement), whether on oath, affirmation or otherwise, and whether or not it would be admissible in evidence in proceedings in a court;

(ii) by summons issued in the prescribed manner, require any person to attend before it at any hearing to give evidence or to produce any document;

(iii) administer oaths or affirmations;

(iv) examine on oath, affirmation or otherwise any person attending before it and require such person to answer any question put by or with the consent of the Tribunal.

(2)  In determining an appeal, the Appeal Tribunal may make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such other order as it thinks fit.”

120. I think there is some force in Mr Ho’s contention that the Tribunal has abdicated its duty.  However, I also note that section 50(1)(c) (by the use of the word “may”) does not compel the Tribunal to receive and hear new evidence in determining any issues before it, while section 50(2) is drafted in wide terms in giving the power to the Tribunal to make “any such other orders as it thinks fit”.  It is unlikely to be the intention of the legislature to limit the form of order that the Tribunal can make which it thinks is justified in all the circumstances of each case.

121. At the same time, in light of section 15 of the BO, I also think there are merits in Mr Ho’s contention that the conditional order made by the Tribunal is unlawful in limiting the bases upon which the BA may disapprove the revised plan submitted.

122. Section 15 of the BO provides as follows:

“(1) Where an application is made in the specified form for the Building Authority to approve plans or to consent to the commencement of building works or street works, he shall be deemed to have given his approval or consent, as the case may be, unless within the period prescribed by the regulations he has notified his refusal to give his approval or consent, as the case may be, in writing setting out the grounds for such refusal, and where one of such grounds is that further particulars and plans are required, he shall specify such plans and particulars. (Amended 68 of 1993 s. 7)

(2) The grounds set out for any refusal to approve plans shall not be treated as being exhaustive, and no such refusal shall be construed as implying any approval of any part of such plans.” (emphasis added)

123. Thus, by statue, the BA is not to be prohibited from relying on other grounds of disapproval even if it has set out expressly certain grounds of disapproval in a letter.

124. As such, I cannot see how the Tribunal can by its order in requiring the BA to reconsider a revised plan limit the grounds upon which the BA can reject the plan.  For example, even if the BA after looking at the revised plan (and even if the revisions only relate to the MOE and Firewall issues) finds that there are other good grounds to reject the plan although they have not been considered or set out previously in the Disapproval Letter, by reason of the order, it can no longer rely on those to disapprove the plan.  That in my view would arguably be contrary to section 15(2) of the BO.  Moreover, in revising the General Plan even only in relation to the MOE and Firewall issues as directed by the Tribunal, one cannot rule out the possibilities that that may result in making corresponding or necessary changes in relation to other parts of the plan.  These changes may give rise to new grounds or legitimate concerns for the BA to disapprove the revised plan.  I cannot see why and how the Tribunal can by way of its order dealing with the appeal lawfully and legitimately restrict the BA’s authority under section 16 to disapprove that revised plan on other grounds.

125. This also perhaps underlines the proposition as to why it is not a preferred or satisfactory way to deal with the MOE and Firewall issues in the way as the Tribunal has done.  This would only result in further uncertainty.

126. However, I do not find it necessary to come to a firm conclusion on these contentions raised by Mr Ho, as the Tribunal’s MOE and Firewall Conclusions should be quashed on the basis that I have also quashed its conclusion that the Triangular Area is part of Kennedy Road or is a specified street by reason of a right of way.  As such, there is no more rational and lawful basis to support the Tribunal MOE and Firewall Conclusion, and they must therefore be quashed.

127. Moreover, given that I have in the above quashed the Classification Conclusion, the MOE and Firewall Conclusions as well as the Traffic Information Conclusion, the final order must also be quashed.

D.  CONCLUSION

128. For the above reasons, the BA succeeds in this judicial review.

129. I will quash the Decision and remit the appeal back to a differently constituted Tribunal for reconsideration.  I do not find it necessary or desirable to remit the matter to the same Tribunal.  Leaving aside the practical question as to whether all the same members could still be reconstituted, these members heard the appeal almost four years ago and it would be unrealistic to expect that they could still usefully remember the evidence heard in the original appeal in October 2011.  Coupled with my conclusion that the Tribunal had likely to have already confused the Church’s submissions in reaching the Classification Conclusions in the Decision, I do not think there is any advantage to be gained by remitting the appeal back to the same tribunal for determination.

130. In relation to costs, since the BA is successful in this judicial review, there are no reasons why costs should not follow the event.  I would make an order nisi that the BA’s costs of this application to be borne by the Church, to be taxed if not agreed, with certificate for two counsel.  This order shall become absolute 14 days from today unless any of the parties applies by summons to vary it.

131. Finally, I would like to thank counsel’s assistance in this matter.