CHUI MARJORIE CHE YING AND ANOTHER v. APPEAL TRIBUNAL (BUILDINGS) AND ANOTHER

HCAL 1655/2021

[2022] HKCFI 1467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1655 OF 2021

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J U D G M E N T

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A.  Introduction

1.  This application concerns a soil and waste pipe running from one unit to or through another unit in a multi-storey residential building.  The question arises as to who should be made to repair the pipe when it becomes defective, and to whom the relevant notice should be given, under section 28(3)  of the Buildings Ordinance Cap 123 (“BO”).

2.  The relevant building is a more than 20-storey tall building known as The Lamma Palace (“Building”).  By the design of the Building, the soil and waste pipe taking discharge from the bathroom of a unit at an upper floor will pass through the floor slab and then the bathroom of the corresponding unit at the floor below, before it joins the main pipe of the Building.  Upon leaving the floor slab between the two floors, the pipe is affixed to the ceiling of the lower unit.  As is common in modern building design, a false ceiling is put in place to hide the pipe in the lower unit.  It could be said the pipe taking discharge from the upper unit (perhaps except the segment inside the floor slab)  is physically located within the lower unit.

3.  The subject pipe in this case takes discharge from Flat B on the 11^th Floor (“11B”)  and the relevant segment (“Pipe”)  is physically located in the bathroom of Flat B on the 10^th Floor (“10B”).

4.  The Building Authority (“BA”)  inspected the Pipe on two occasions and was of the opinion that the Pipe was defective.  Section 28(3)  provides that the BA could serve a repairing order on the owner of such building the drains or sewers of which are found to be defective.

5.  The BA’s internal policy document, known as the “EB Division Manual” (“EBD Manual”)  further provides that if such a pipe is for the exclusive use and benefit of an owner of an individual unit, the order may be served on the owner of that unit rather than all the co-owners of the building.  Therefore, on 3 October 2019, the BA served a repairing order (“Order”)  on the 11B owners, requiring them to repair or renew the Pipe located at 10B.  The 11B owners are the two applicants in the current judicial review application.

6.  The 11B owners believe that the Order was wrongly served on them.  The Deed of Mutual Covenant (“DMC”)  of the Building provides that the owner of each unit has the duty properly to maintain the interior of his unit and the sanitary apparatus in that unit.  The 11B owners believe that the responsibility to repair the Pipe falls on the 10B owners.

7.  On 21 October 2019, one of the 11B owners (i.e. the 1^st applicant here)  appealed against the Order to the Appeal Tribunal (Buildings)  (“BAT”).  The BAT held a preliminary hearing on 27 July 2021, which led to a decision dated 6 October 2021 (“Decision”)  that no good cause had been shown for holding a full hearing.

8.  On 6 December 2021, the 11B owners filed a Form 86 dated 6 December 2021 seeking leave to challenge the Decision.  I ordered a rolled-up hearing which was heard on 24 May 2022.  The 11B owners were represented by Mr Anthony Chan of Counsel. The BA was represented by Mr Ernest Ng of Counsel. The BAT took a neutral stance and was excused, as usual.

9.  I reserved my decision at the conclusion of the hearing. This is my Judgment.

B.  The BAT’s Decision

B.1  The Applicable Provisions

10.  Section 28(3)  is the empowering statute relied upon by the BA to issue the Order.  Section 28(3)  provides:

Where in the opinion of the Building Authority the drains or sewers of any building are inadequate or in a defective or insanitary condition he may by an order in writing served on the owner of such building require—

(a)  such drainage works as may be specified in the order to be carried out;

(b)  an authorized person to be appointed to carry out such investigation in relation to the drains or sewers of such building as may be so specified; and

(c)  the submission for approval by the Building Authority of proposals for drainage works to be carried out to remedy the inadequacy or the defective or insanitary condition, being proposals based on the findings of the investigation,

within such time or times as may be specified in the order.

11.  It is also convenient to set out here the relevant parts of the EBD Manual and the DMC.

12.  Section 6 of Part III of the EBD Manual provides for the person on whom should the BA serve the repairing order under section 28(3). The relevant part is §12(b):

(b)  Defective soil/waste/rain water pipes above ground

(i)  Subject to (ii)  below, the order should be served on all the co-owners of a building and the cost of repair/replacement of the defective pipes should in general be apportioned amongst them according to the number of undivided shares held by each co-owner, irrespective of the type, use or location of the defective pipes.

(ii)  For defective pipes for the exclusive use and benefit of the owner of an individual unit, the order may be served on that owner rather than on all the co-owners. According to legal advice, the BA has the unfettered discretion on whether a section 28 order is to be served on all the co-owners of the land on which the building is situated or on one or more of the owner(s)  of the unit(s)  of the building.  However, the discretion shall be exercised reasonably, having regard to the facts of the case.

13.  The relevant clauses in the DMC are Clauses 5.1.12, 5.1.22(iv)  and 5.1.32, which state:

5.1.12  Each Owner shall maintain in good repair and condition that part of the Estate owned by him in such manner as to avoid any loss, damage, nuisance or annoyance to the Owners or Occupiers of any other part of parts of the Estate.

5.1.22  No owners shall …

(iv)  make any alteration to installation or fixtures so as to affect or be likely to affect the supply of water, electricity or gas or other services to or in the Land and the Estate …

5.1.32  Each Owner shall keep the interior of his Unit and all electrical and sanitary appliances and other services therein in good repair and condition and to maintain the same in such manner so as to avoid any loss, damage, nuisance or annoyance to the other Owners or Occupiers and not to interfere or affect adversely the proper functioning of the service systems of any other Unit.

14.  Clause 5.1.19 of the DMC also mandates all owners to observe the “Estate Rules” which the 11B owners say is a document titled “The Lamma Palace House Rules and Residents Handbook”.  It is there provided that:

Owners are responsible for the repair and maintenance of the interior of their unit including all fixtures and fittings.

15.  Before the BAT, the 11B owners argued that the Order was not validly served, on two broad grounds: (1) there was in fact no leakage of the Pipe, which was the basis for the BA to conclude that the Pipe was inadequate, or in a defective or insanitary condition; and (2) the Order should have been served on the 10B owners, or other persons rather than the 11B owners.  The second ground was supported by different strands of argument.  I shall only set out the relevant arguments and the reasoning which give rise to the grounds of review in the current application.

B.2  Whether the Pipe was Defective

16.  The BAT accepted the evidence of the BA, including photos showing the condition of the Pipe and the evidence given by a Building Surveyor from the Building Department, a Mr Lo, who inspected the Pipe on 15 November 2018 and 26 September 2019.  Mr Lo said he found leakage of the Pipe during the two inspections.  One of the 11B owners (i.e. the 1^st Applicant here)  said that she visited 10B to inspect the Pipe on 15 March 2019 with the caretaker of the Building and the caretaker did not find leakage on that occasion.  The BAT was of the view that there was no reason to doubt the evidence of Mr Lo, and concluded that there was leakage of the Pipe.

B.3  Whether the Order was Wrongly Served on 11B Owners

17.  Section 28(3)  empowers the BA to serve the Order on the “owner of such building” the drains or sewers of which are defective.  In the BAT, the 11B owners’ arguments on why they were not the proper recipient of the Order did not focus on that they were not the “owner of such building” on a proper construction of section 28(3).  Rather, they relied on the DMC of the Building.  Nor were the BA’s arguments heavily focused on statutory construction.  The BA mainly relied on the EBD Manual, which was said to provide a proper basis to guide their exercise of discretion.  It appears that at the BAT stage, both parties proceeded on the basis that the 11B owners could be “the owner of such building” under section 28(3)  and, perhaps, that the BA did have a discretion on whether to serve the Order on them.  The 11B owners argued that the BA had fettered its discretion and acted unfairly by disregarding the DMC and solely relying on the EBD Manual.

18.  The Government’s Building Surveyor, Mr Lo, gave evidence that according to the approved drainage plan, the Pipe connects to the sanitary fitments and the floor drains at the guest bathroom of 11B and thus is for the exclusive use and benefit for 11B. Obviously Mr Lo’s view on exclusive use and benefit was a “physical” one.  It turned on the actual physical design and connection of the Pipe, as opposed to, for example, that the DMC has assigned the exclusive use of that Pipe to 11B owners as a matter of the legal entitlements amongst the co-owners of the Building.  Based on Mr Lo’s evidence, the BA applied §12(b)(ii)  of the EBD Manual and exercised its discretion to serve the Order on the 11B owners only.

19.  As will be seen below, when the case came before me, the 11B owners’ arguments, advanced by Mr Chan, have changed to a certain extent.  Mr Chan’s main argument now focuses on the proper construction of section 28(3).  He argues that the 11B owners are not “the owner of such building” within the meaning of section 28(3), because the relevant “building” is 10B rather than 11B.

20.  However, in the BAT, the 11B owners argued that by the design of the DMC, every unit is to look after the soil and waste pipe physically located within their own unit but taking discharge from the unit above.  The 11B owners said the Pipe is physically within the interior of 10B.  It is also a sanitary appliance and a fixture or fitting of 10B.  Therefore, under the DMC, it falls on the 10B owners to maintain the Pipe.

21.  The BAT rejected this argument.  It was of the view that the DMC was a private contract in nature entered into by the various co-owners of the Building, and it did not bind the BA.  There was no provision in the BO which requires the BA to consult a building’s DMC.  If the BA has to ascertain the existence of any DMC and to determine who is made liable to make the necessary repair, the technicality and complexity of the DMC may mean that the BA may take years to resolve the DMC before it can serve the order.  The DMC is irrelevant in resolving who should be served with a repairing order. The BA was right to disregard the DMC.  The BAT further held that it was correct for the BA to apply the EBD Manual and to serve the Order on the 11B owners.  It did not amount to a fettering of the BA’s discretion, nor had the BA acted unfairly.

C.  The Applicants’ grounds of review

22.  Mr Chan advanced 4 grounds on behalf of the 11B owners:

(1)  Ground 1: The BAT erred in law in applying what Mr Chan called the “exclusive use and benefit test” in §12(b)(ii)  of the EBD Manual in deciding who should be served with the Order. Section 28(3)  empowers the BA to serve the Order on the “owner of the building”.  It makes no reference to the exclusive use and benefit, possessory right or easement over the Pipe.  The relevant building in the context is 10B, in which the Pipe is physically located and to which it is affixed.  Thus, the “owner of the building” are the 10B owners rather than 11B owners.

(2)  Ground 2: The Order was unlawfully served on the 11B owners because the BA’s decision was based on the EBD Manual.  The manual is an internal policy document which is undisclosed, unpublished and contrary to publicly available information as to how the BA would exercise its statutory power under section 28(3).  It transpired that, by publicly available information, Mr Chan meant section 28(3)  on its proper construction. The BAT failed to correct the unlawfulness of the Order, thus rendering the Decision itself also unlawful.

(3)  Ground 3: In the circumstances, it was irrational for the BA not to take into account the DMC in deciding who should be served with the Order.  The 11B owners had drawn the BA’s attention to the relevant provisions of the DMC as early as December 2018, by way of correspondence.  The BAT’s Decision failed to correct the irrationality of the Order and was thus also irrational in itself. Further, the BAT’s various references to the DMC in the Decision are also irrational.

(4)  Ground 4: There was insufficient evidence before the BAT to support the conclusion that the Pipe was “inadequate or in a defective or insanitary condition”, which was a necessary precondition to trigger the BA’s power under section 28(3).  The Order and thus the Decision are both unlawful and irrational.

D.  Ground 1: Proper construction of section 28(3)

D.1  Relevant Law on Statutory Construction

23.  Mr Chan, rightly, saw Ground 1 as his strongest ground.  Whether the 11B owners are the owners to be served with the Order turns on the proper construction of section 28(3).

24.  Before delving into the construction exercise, it is worthwhile briefly to restate the following law on statutory construction, which is well-settled:

(1)  A public body may only exercise powers authorized by law.

(2)  The construction of the empowering provision is a question of law for the Court, and not for the public body or any specialist tribunal set up to hear appeals from the public body’s decision: see, for example, E’s Application [1983] RPC 231 at 253.

(3)  The statutory language must be construed objectively in light of its context and purpose to give effect to the legislative intent.  The purpose of a statutory provision may be gleaned from the provision itself or from a relevant report of the Law Reform Commission or the Explanatory Memorandum to the bill or from a statement of a responsible official to the Legislative Council in respect of the bill: see T v Commissioner of Police (2014)  17 HKCFAR 593 at §§48, 194-195, 222, 278-279; Yung Chi Keung v Protection of Wages on Insolvency Board (2016)  19 HKCFAR 469 at §22;

(4)  The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute.  It is necessary to read all relevant provisions together and in the context of the whole statue as “a purposive unity in its appropriate legal and social setting”: see HKSAR v Cheung Kwun Yin (2009)  12 HKCFAR 568 at §13; Town Planning Board v Town Planning Appeal Board (2017)  20 HKCFAR 196 at §29; Medical Council of Hong Kong v Chow Siu Chek (2003)  3 HKCFAR 144 at 154 B-C.

25.  In addition, Mr Ng also cited Yemshaw v Hounslow London Borough Council [2011] 1 WLR 433 at §56 and Chief Constable of Cumbria v Wright [2007] 1 WLR 1407 at §17 to make the point that the Court may have regard to guidance issued by public authorities as persuasive authority to the meaning of a statute.  Mr Ng seeks to deploy these two cases to argue that the Court could give regard to the EBD Manual in construing section 28(3).

26.  Mr Chan submitted that Yemshaw and Wright could lend no assistance to Mr Ng.  I agree.

27.  Yemshaw concerned the construction of the phrase “domestic violence” in section 177I of the Housing Act 1996, as amended by the Homelessness Act 2002.  The relevant authority, being the Secretary of State, issued a Code of Guidance on how “violence” in the term “domestic violence” in section 177I should be interpreted.  The Code of Guidance changed over time and in the 2006 version “violence” was for the first time more widely interpreted to cover non-physical violence.  But it is clear that the Code of Guidance was only deployed by the claimants to demonstrate changing societal understanding and how the legislative instrument should be interpreted as a “living instrument” or in line with the “always speaking approach”.  But, in this case, Mr Ng was not proposing a changing meaning of “owner” over time.  The Court in Yemshaw also clearly stated that the change in the Code could not directly affect the true construction of section 177I and the interpretation of statutes is ultimately for the Court and not for the executive government: see §§55-56.

28.  Wright concerned the construction of section 2 of the Anti-Social Behaviour Act 2003, which provides for the issuance of a closure order in respect of premises, made by the magistrates’ court when it is satisfied that the premises were employed for the unlawful use, production or supply of Class A drugs and that social disorder occurred in the premises.  The question arose as to whether the social disorder has to be connected with the unlawful use, production or supply of the drugs.  The Home Office issued guidance which expressed the view that it was unnecessary to show the former is associated with or is a result of the latter.  The view in the guidance was rejected by the Court.  It was held that whilst official statements issued by the authorities administering the statute could be taken into account as persuasive authority on the meaning of the statutory provision, there was no presumption that the views contained in the statements were correct: see the Headnote of the reported judgment.

29.  Yemshaw and Wright say no more than that the Court is entitled to consider the views of the authorities in construing the meaning of a statutory provision.  But they do not suggest that the Court should defer to the authorities when their views contradict the apparent meaning as found by the Court.  If the Court’s construction of section 28(3)  turns out to be inconsistent with §12(b)  of the EDB Manual, I do not think that the existence of the manual is any obstacle to the Court’s construction, or even of any real relevance.

D.2  Construing Section 28(3)  – Starting Point and Context

30.  It is convenient first to recap the relevant part of section 28(3)  falling to be construed:

When in the opinion of the Building Authority the drains or sewers of any building are inadequate or in a defective or insanitary condition he may by an order in writing served on the owner of such building require –

31.  I shall adopt “defective” as a shorthand reference to “inadequate or in a defective or insanitary condition”.  Therefore, the order is to be served on the owner of the building the drains or sewers of which are found to be defective.  Logically, one must identify first (a) that there is a defective drain or sewer, then (b) the building which could be said to be the “building” in the phrase “the drains or sewers of any building”, and lastly (c) the person who is the “owner of such building”.

32.  Whilst attention might be initially drawn to “owner”, it is actually the identification of the relevant “building” which draws the battle line between the parties.  Obviously, the “building” has to have some connection with “drains or sewers” as denoted by the preposition “of”, but the language in section 28(3)  itself reveals very little about what sort of connection is required.

33.  It can first be noted that “building” and “owner” are defined in section 2 of the BO as follows:

building (建築物)  includes the whole, or any part, of any domestic or public building or building which is constructed or adapted for use for public entertainment, arch, bridge, cavern adapted or constructed to be used for the storage of petroleum products, chimney, cook-house, cowshed, dock, factory, garage, hangar, hoarding, latrine, matshed, office, oil storage installation, out-house, pier, shelter, shop, stable, stairs, wall, warehouse, wharf, workshop or tower, sea-wall, breakwater, jetty, mole, quay, cavern or any underground space adapted or constructed for occupation or use for any purpose including its associated access tunnels and access shafts, pylon or other similar structure supporting an aerial ropeway and such other structures as the Building Authority may by notice in the Gazette declare to be a building

owner (擁有人)  includes any person holding premises direct from the Government whether under lease, licence or otherwise, any mortgagee in possession and any person receiving the rent of any premises, solely or with another, on his own behalf or that of any person, or who would receive the same if such premises were let to a tenant, and where such owner as above defined cannot be found or ascertained or is absent from Hong Kong or is under disability, the agent of such owner

34.  But the reference to “building” in section 28(3)  is a reference to the building of which the drains or sewers are found to be defective, and the purpose of the order is to require the carrying out of drainage works and the like.  The meanings of “drains”, “sewers” and “drainage works” may illuminate the meaning of “building” (and the entire phrase)  in the context.  Section 2 of the BO provides:

drain (排水渠)  means a drain used for the drainage of one building and any buildings and yards appurtenant thereto;

sewer (污水渠)  does not include a drain as defined in this section, but includes all sewers and drains used for the drainage of more than one building and any buildings and yards appurtenant thereto;

drainage work (排水工程)  means any work connected with the construction, repair, alteration, disconnexion, trapping and ventilation of drains or sewers;

35.  Section 28(3)  is also to be read and construed in context, where sections 28(1)  and 28(2)  are as follows:

(1)  All drainage works for any building shall, save as provided by regulations, be carried out by the owner of such building to the satisfaction of the Building Authority and in compliance with regulations.

(2)  Where in the opinion of the Building Authority any group of buildings may be drained more advantageously in combination than separately he may—

(a)  by an order in writing served on the owners of such buildings require to be carried out the necessary drainage works under a combined plan approved by him; or

(b)  carry out or cause to be carried out such works, and recover the cost thereof from such owners.

36.  It is helpful next to consider the competing arguments.

D.3  11B Owners’ Interpretation of “owner of such building”

37.  I have set out above Mr Chan’s offered interpretation: he submitted that “owner of the building” means “owner of 10B to which the Pipe is affixed”.  A few preliminary observations can be made about this interpretation.

38.  First, it sees “building” not as the entire Building but only the individual unit in which the Pipe is located.  This is a reference to “any part of” the building in the section 2 definition.

39.  Second, as a corollary of the first observation, this understanding of “ownership” must be the layman’s one.  Strictly in law, there is no such thing as ownership of 10B as a unit in itself.  All co-owners of the Building co-own the entire Building together.  The 10B owners have exclusive possession of 10B as against all the other co-owners by the operation of DMC and the allocation of undivided shares to which such exclusive possession rights are attached.  Mr Chan’s reading of “owner of such building” means the owner who has exclusive possession of the relevant unit as against the other co-owners of the Building.

40.  Third, Mr Chan reads the “of” in “drains or sewers of any building” as meaning that the pipe has to be “part of” 10B in the sense of being a fixture or fitting.  In other words, the Pipe is a pipe “of” 10B in the sense that it is “part of” 10B because it runs within and is affixed to the ceiling within the unit of 10B. Obviously, this point is only helpful to Mr Chan when deployed together with the point that “building” means 10B rather than the entire Building.  Otherwise, one could also say that the Pipe is also a pipe “of” the Building because it is affixed to the Building.

41.  Fourth, as a corollary of how Mr Chan reads the word “of”, the owner of 10B must also be the owner of the Pipe.  Similarly, this reading is only meaningful to the 11B owners when “building” means 10B.  Otherwise, one could say that the all the co-owners of the Building are also the owners of the Pipe.

42.  It will be appreciated that Mr Chan’s interpretation hinges on both (a) the meaning of “building” and (b) the connection between the building and the Pipe as denoted by the word “of”.

43.  It is not clear to me why the relevant “building” in this context has to be confined to an individual unit rather than the entire Building.  Nor is it clear why the relevant unit has to be the unit of which the Pipe forms a part (i.e. 10B) rather than the unit the discharge from which is taken by the Pipe (i.e. 11B).  I accept that in terms of language, a pipe located inside and affixed to the ceiling of 10B could be said to be “a pipe of 10B”.  However, in ordinary language, if a pipe is located outside a house but takes discharge from that house, that pipe may also be described as “a pipe of that house” in appropriate circumstances.  Indeed, whilst not advanced as an argument by Mr Ng, some parts of the BO seem to be consistent with the latter usage (see below).

44.  A property or conveyancing lawyer may be instinctively attracted to Mr Chan’s submissions.  The concept that a fixture to the land is part of the land is well-imprinted in the legal mind. He who owns the land ordinarily also owns the fixtures to the land.  So it might be thought that he who owns 10B (again, in the layman’s sense) also owns the Pipe which is affixed within 10B.  But section 28(3) does not require the BA to serve the order on the owner of the pipe, let alone the legal or proprietary owner of the pipe.  Section 28(3)  requires the order to be served on the “owner of such building” when the particular drains or sewers of that building are found to be defective.  What the recipient of the order has to “own” (within the meaning of section 2)  is the relevant “building”, not the pipe.

45.  As said, the phrase “drains or sewers of the building” means that the pipe has to be connected to the building in some way. The language of section 28(3) is wide enough to support the type of connection submitted by Mr Chan, but without more, I am unpersuaded that it is the type of connection intended by the legislature.

46.  Mr Chan said the BA’s reliance on the exclusive and benefit test in the EBD Manual is wrong in law.  He suggests that the exclusive use and benefit test is apparently taken from the common law test on whether a person has possessory rights (as opposed to proprietary or ownership rights)  over the drains and sewers.  He pointed to Vauxhall Motors Ltd v Manchester Ship Canal Co [2019] Ch 331 and Incorporated Owners of Summit Court v Full Surplus Investment Ltd [2007] 3 HKLRD 352 to make the point that a person who has exclusive use of water pipes does not necessarily own them.

47.  In the Vauxhall case, Vauxhall constructed a drainage system on Manchester Ship’s canal, for the purpose of discharging the former’s surface water and trade effluent.  Manchester Ship terminated the licence enabling Vauxhall to discharge through the former’s canal.  Vauxhall sought equitable relief from forfeiture of the licence.  At §§57-71, Lewison LJ held that as a matter of law where A (Vauxhall) installs pipes and sewers affixed to B’s land (Manchester Ship’s canal), the pipes and sewers belong to B notwithstanding A uses those pipes and sewers.  But Vauxhall, whilst not the owner, has sufficient interest to engage the Court’s equitable jurisdiction because it had a sufficient degree of physical custody and control and clearly intended that it would have exclusive use of the drainage system.

48.  In the Incorporated Owners of Summit Court case, the Court had to decide if the water pipes branching out to and exclusively used for supplying water to individual flats were common parts of the building.  The Court held that the branch pipes were still common parts even though they were exclusively used by individual flats.  Water pipes are specified as common parts in Schedule 1 of the BMO and were not otherwise specified for the exclusive use, occupation or enjoyment of an owner by the DMC.  This made them “common parts” as defined by section 2 of the BMO, see §§29-33 (Tang VP).

49.  In my view, Mr Chan’s reliance on Vauxhall and Incorporated Owners of Summit Court is misplaced.  Both cases do not assist in identifying who is the “owner of such building” in section 28(3).  These two cases may have made a distinction between proprietary ownership of the pipes and the exclusive use/possessory right over the pipes in their relevant context.  But, as said, section 28(3)  requires the order to be serve on the “owner of the building” rather than “owner of the pipe”.

50.  With respect, Mr Chan’s reliance on Vauxhall and Incorporated Owners of Summit Court is an attack on the straw man.  It assumes that the BA takes the required ownership as “exclusive use and benefit of the Pipe”, and then seeks to refute that argument by distinguishing “proprietary ownership” from “possessory right or exclusive use and benefit”.  But that is not Mr Ng’s argument.

D.4  BA’s interpretation of “owner of such building”

51.  Mr Ng submits that the Order was rightly served on the 11B owners under section 28(3).  His argument involves a two-stage analysis.

(1)  First, he says that “building” in section 28(3)  means the entire Building of Lamma Palace.  All co-owners of the Building are “owner of the building” under section 28(3).  He relies on the points that (a) the co-owners are “owner” under section 2; and (b) the singular “owner” also includes its plural form “owners” under section 7(1) of the Interpretation and General Clauses Ordinance Cap 1.  Thus, as a matter of law, all co-owners of the Building could have been served with the Order.

(2)  Second, since all co-owners of the Buildings could be served lawfully under section 28(3), it is up to the BA to exercise its discretion under the empowering provision to decide which one of the co-owners should be served.

52.  As will be seen, I agree with the first point, but not the second.

53.  The part of the section 2 definition of “owner” relied upon by Mr Ng is “person holding premises direct from the Government… under lease”.  This is but the most common form of legal ownership over land in the leasehold system of Hong Kong.  This is indeed consistent with Mr Chan’s approach.  The owners of individual units must also be the co-owners of the entire Building.  The concept of “10B owners” only exists among co-owners of the Building by the operation of the DMC.  But Mr Chan does not rely on the DMC to reach a narrower reading of “owner of such building”, rather he relies on a narrower reading of “building”.

54.  One may have already appreciated that the dispute between Mr Ng and Mr Chan does not stem from different understandings of “ownership” or “owner”.  Rather the difference turns on the proper subject which has to be owned by the recipient of the order.

55.  Mr Ng relies on King Glare Ltd v Secretary for Justice [2008] 6 HKC 450 and The IO of Tak Fan Lau v The Building Authority [2021] HKCFI 902, apparently for the purpose of showing that Mr Chan has adopted too narrow an interpretation of “owner” in section 28(3).  But, as said, the quarrel between the BA and the 11B owners does not turn on the meaning of “owner”.  The King Glare and The IO of Tak Fan Lau cases are not on point.

56.  King Glare involved the issuance and service of a demolition order in respect of what would generally be called an unauthorized structure under the then section 24 of the BO before the 2004 amendment (the text of which is set out in §7 of the Judgment).  The unauthorized structure was a metal frame attaching to the external wall of a building.  Section 24(1)  provided for the issuance of an order requiring the demolition of the “building, building works, or street works”.  The metal frame was considered “building works”.  Section 24(2)(b)  provided for the service of the demolition order on the owner of the building works.

57.  The metal frame was used for supporting an advertising signage.  The demolition order was served on the agent of the metal frame owner.  The owner of the metal frame later challenged the legality of the order on the basis that it was served not on the owner but on its agent, thus falling foul of section 24(2).  The Court relied on the very wide definition of owner under section 2, which included “the agent of such owner”, and rejected the applicant owner’s judicial review leave application.  It was also said that the legislature could not have intended the BA to resolve the potential difficulties over the ownership of an unauthorized structure before it could issue a building order.

58.  As pointed out by Mr Chan, the Court in King Glare did no more than recognizing the wide definition of owner under section 2 and affirming its applicability to section 24.  In the present case, Mr Ng does not dispute the applicability of the section 2 definition of owner to section 28(3).  Nor does he seek to apply an unconventional meaning of legal ownership.  King Glare could not assist him.

59.  The IO of Tak Fan Lau also concerned a demolition order under section 24 of the BO.  The unauthorized structure was built on a lane adjacent to a building known as Tak Fan Lau.  The lane was a common part of Tak Fan Lau but the lane had apparently been adversely possessed by a company since 1966 and that structure was built by that company.  By 2018, section 24 has already been amended to the current version which provides that the order shall be served on the owner of the land or premises on which the building or the building works were erected (except when the building works are a signboard).  Thus, the order was served on the IO of Tak Fan Lau, being the owner of the lane.  The IO later informed the BA that the IO was minded to admit the possessory title of the adverse possessor in a District Court action and requested the BA to withdraw the order already served on the IO.  The BA refused and the IO applied for judicial review.

60.  The Court refused the leave application on the bases that the IO had failed to exhaust alternative remedies and on the ground of delay.  But in forming a preliminary view about the merits of the case in assessing delay, the Court confirmed that the order was rightly served on the IO because the co-owners are “owner” under section 2 and that the BA had no knowledge about the adverse possession of the lane at the time when the order was served.  It was also said that the BA could not be expected to resolve the issue of adverse possession before serving a demolition order: see §37 of the Judgment.

61.  In King Glare, the then section 24(2)  required the demolition order to be served on the owner of the metal frame (as opposed to the building to which the metal frame was attached).  In The IO of Tak Fan Lau, the current section 24 required the order to be served on the owner of the lane.  In those two cases, the subject matter to be owned were clear, and it was the required form of ownership over those subject matters that was disputed.  It is the opposite in the present case.

62.  Mr Ng submitted that section 28(3)  does not require all the co-owners of the Building to be served, but only “the owner” to be served.  The 11B owners are “the owner” of the Building.  As to why the BA did not serve on the 10B owners or all the other co-owners of the Building, Mr Ng’s submissions would suggest that it is a matter of discretion for the BA to pick and choose among the co-owners on whom to serve the Order, which is only subject to the challenge of Wednesbury unreasonableness.  Mr Ng pointed out that Mr Chan had raise no unreasonableness challenge to the BA’s exercise of discretion.  This is hardly surprising since Mr Chan’s argument is that the 10B owners are the owner to be served and there was no room for the BA to pick and choose.

63.  In the oral hearing, I questioned why it might be thought that section 28(3)  has created such a discretion to allow the BA to pick and choose among the co-owners of the Building.  This is not apparent from the language of the section.  Mr Ng said that once one has accepted that the relevant “building” is the entire Building, then there is a necessity of the reality that BA should have such a discretion.  A block of a multi-storey building may have up to hundreds or even thousands of co-owners.  He seemed to suggest that the BA could not be expected to serve the order on all the co-owners when a pipe in one of the units is found to be defective.

64.  Mr Chan said that Mr Ng’s two stage approach would lead to absurdity, for it suggests that the Order could have been served on the owner of any unit in the Building which could have no connection with the Pipe whatsoever and would still be lawful.  To this, of course Mr Ng would reply that the BA’s discretion would be guided by the EBD Manual and would be subject to the irrationality challenge.

65.  But, in the absence of clearer language, I am unpersuaded that section 28(3) has granted the BA the discretion to pick and choose which co-owners to be served with the repairing order.

66.  Failing to comply with such an order potentially attracts both civil and criminal liabilities.  On the civil front, the BA may take it on itself to carry out the necessary works and recover the costs from the person being served with the order: see sections 28(7)  to 28(9).  On the criminal front, failing to comply without reasonable excuse is a criminal offence which carries with it a fine up to level 5 and imprisonment up to one year: see section 40(1B).  Being served with a repairing order is a serious matter. It is the first step potentially triggering both civil liability and criminal liability against the recipient of the order.  Criminal liability in particular requires a high degree of certainty.  I do not think that the legislature would leave the trigger of criminal liability to the discretion of the BA.  Had this been the intention, I would expect the legislature to have used much clearer language.

67.  I also asked Mr Ng how would the 11B owners be expected to comply with the Order given that the Pipe is located in a unit exclusively possessed by others.  Whilst on the current facts the 10B owners might be happy to allow the 11B owners to access 10B for the purpose of repairing the Pipe, this is not necessarily true in every factual scenario.  The legislature would not likely have contemplated the ability to comply with an order to be left to chance, especially when the order could lead to criminal liability.  Mr Ng had no good answer, except to say that this argument was not raised in the BAT.  But I think this is a further reason why it is unlikely that the legislature has intended such discretion for the BA.

D.5  Construing section 28(3)  – Further Matters

68.  In the oral hearing, and in view of the definition of drains and sewers under section 2 of the BO, I explored with Counsel whether the Pipe is the type of drain or sewer actually targeted by the BO (and section 28(3)  in particular).  The language of “a drain used for the drainage of one building” or “sewers and drains used for the drainage of more than one building” seems to sit more comfortably with the idea of “building” being a reference to the entire block of building rather than, say, a unit within a building.  This is even more so if one looks at the Chinese version.  The corresponding Chinese of “one building” means one block of building (一幢建築物).

69.  Section 28(2)  – set out above – enables the BA to require drainage work to be done in a combined plan when it is of the opinion that “any group of buildings may be drained more advantageously in combination than separately”.  The reference to “buildings” there also seems to sit more comfortably with blocks of buildings rather than individual units within a block of building.  One would expect units within the same block of building to be drained together at some point by design even in the absence of an order from the BA.

70.  By way of further context, it can be noted that section 27C(1) refers to “water pipe, drain or sewer of any building” which is laid in a slope and the defective condition of which may result in a landslip.  Section 27C(2)  enables the BA to serve an order on the “owner of the building”.  Here, apparently drains and sewers refer to pipes/channels taking discharge from the entire block of building and which are located outside the building (such that they could be said to be laid in slopes).

71.  If one looks at the subsidiary legislation governing “all drainage works of any building” referred to in section 28(1), it further reinforces the impression that drains and sewers are the pipes or channels serving the entire block of building.

72.  The relevant regulations are, it seems, to be found in the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines)  Regulations Cap 123I (“Cap123I”), which is subsidiary legislation enacted under section 38 of the BO.  Part IV of Cap 123I is titled “Drainage Works”.  It provides for the construction, design, specification and materials for drains and private sewers.  Regulation 40(1)  refers to the connection of drains and private sewers to a public sewer (owned by the Government)  nearby the lot of land on which the building is erected.  Regulation 41(1)  refers to the disposal of surface water from a building by means of drains connecting to a public sewer or a stream or a nullah.  Drains and sewers take discharge from a block of building to an outlet outside the building, e.g. public sewers, streams or nullahs.  In the context, they are the part of the piping or drainage system outside the building.  Drainage works could be understood accordingly.

73.  The question arises whether drains, sewers and drainage works could be references to the internal piping or drainage system inside a block of building.  If no, then the Pipe may not even be covered by section 28 at all.

74.  The BA has described the Pipe as a soil and waste pipe.  “Soil pipe” and “waste pipe” are not defined or mentioned in the BO, but they are in Cap 123I.  Regulation 2 of Cap 123I provides the following definitions:

soil pipe (便溺污水管)  means a pipe used or constructed to be used for carrying off soil

waste pipe (廢水管)  means a pipe used or constructed to be used for carrying off waste

75.  The relevant regulations are to be found in Part III of Cap 123I, which is titled “Plumbing - Soil fitments and waste fitments”.  This part provides for the construction, design, specifications, construction materials, etc for soil fitments and waste fitments, including waste pipes and soil pipes.  Regulation 12(2)  refers to waste pipes connecting from lavatory basins. Regulation 26(1)  refers to a soil pipe “from a watercloset”, “from a urinal” or “from a bidet”.  Soil pipes and waste pipes are the collecting ends of the drainage system located inside a block of building.  The Pipe is an example.

76.  But the soil/waste pipes collecting soil/foul water from a bathroom inside a flat of a building will eventually be connected to the drains and sewers locating outside the building: see Regulation 11.  Soil pipes, waste pipes, drains and sewers form one connected system to drain foul water from the inside of a building to the outside: see Regulation 39.  It might be asked at what point along the drainage system does a soil/waste pipe end and a drain/sewer begin, or whether the meaning of a drain (or even sewer)  is wide enough to include a soil/waste pipe of the type in question.

77.  It seems that sometimes a segment of the pipe in a building’s drainage system could be both a soil/waste pipe and a drain.  The diameter of a drain can be as small as 100mm (Regulation 46)  which is only slightly bigger than the minimum internal diameter of a soil pipe which is 80mm (Regulation 26), although a waste pipe could be much smaller at 32mm (Regulation 27).  Regulation 51 further confirms that drains or sewers, soil pipes and drains are not mutually exclusive:

(1)  Subject to paragraph (2), every inlet to a drain or sewer shall be properly trapped by an efficient trap, which shall be so formed and fixed as to maintain a water seal of not less than 75 mm.

(2)  Paragraph (1)  shall not apply—

(a)  to an inlet for a soil pipe or a ventilating pipe;

78.  Overall and on balance, I am satisfied that, although under the BO and Cap 123I, drains and sewers often refer to the part of the drainage system outside a block of building rather than inside a building, drains (or even sewers)  are wide enough to include the soil/waste pipes at the collecting end inside a unit of a building, including the Pipe.

79.  But the above exercise perhaps helps to shed some further light on what is the relevant “building” the drains or sewers of which are found to be defective.  The legislature is likely to have envisaged “building” as the entire block of building rather than the individual units when it comes to regulations of drains and sewers:

(1)  The legislature sees pipes, drains and sewers as different parts of the drainage system for the entire building.  Some segments are located inside the building, some outside.  But they are all connected in a network of pipes/channels to drain foul water out of a building.

(2)  Although inevitably some segments along the drainage system will take discharge only from an individual unit inside a building (like the Pipe in question), it is unlikely that the legislature would consider that they only serve that unit, rather than the whole building.  All pipes, drains and sewers operate as one connected system.  This is in contrast to other items in a building which could be easily seen as a discrete item rather than part of a connected whole (examples of which include the window the subject of section 30C mentioned below).

(3)  Most of the regulations on drainage works concern segments serving the entire building, e.g. how to connect drains from a building to public sewers.

(4)  Most of the regulations covering drains, sewers and drainage works in the BO and Cap 123I are meant to operate when a new building is first constructed, together with its drainage system.  At that time, the DMC is yet to be drawn up and the exclusive possession of the building is yet to be divided up among the or any subsequent purchasers of individual units.  One would see a block of building under construction in its entirety.

80.  It also follows that “owner of the building” is likely to mean all co-owners of the building:

(1)  Since the regulations over drains, sewers and drainage works are meant to operate when the drainage system is constructed as a new building is built, the “owner of the building” the drafter had in mind is the developer of the building.

(2)  Naturally, the developer will be responsible for constructing all the pipes, drains and sewers in the entire drainage system for the building, and to make sure that they are built in compliance with the BO. By that time, the future purchasers of individual units have not yet come into the play.

(3)  The developer of the building is then succeeded by all the co-owners of the building after the building has been completed and individual units sold to the co-owners.

81.  But the language of section 28 is wide enough to cover the post-construction phase, and the question is whether the legislature intended “building” and “owner of such building” to have different meanings from the construction phase to the post-construction phase.  A brief review of the legislative history of section 28 would suggest the answer is negative.  The legislature was well alive to that the drainage regulations have to continue to operate into the post-construction phase at least as early as 1935, yet the legislature had seen fit to use the same set of language in assigning repairing responsibility of the building’s drainage system in different phrases.

D.6  Legislative history of section 28(3)  and the BO

82.  The current BO can be traced to the Buildings Ordinance enacted in 1935 (“1935 Ordinance”).  The preamble says “An Ordinance to amend and consolidate the law relating to the construction of Buildings.”

83.  The predecessor of the current sections 28(1), 28(2)  and 28(3)  are to be found in sections 103 to 105 of the 1935 Ordinance, which provided as follows:

103.  All works connected with the construction, repair, amendment, disconnexion, trapping, and ventilation of drains shall be carried out at the cost of the owner of the building by persons approved by the Building Authority under the supervision of his officers and in all respects to his satisfaction.

104.  (1)  The Building Authority may, by a written notice, require the owners of existing buildings the drains of which are, in his opinion, in a defective or insanitary condition to construct within a reasonable time, new drains in accordance with the provisions of this Ordinance, or to make such other improvements in the existing defective drainage of such buildings as may be necessary to meet the requirements of this Ordinance.

(2)  Drainage regulations may be made by the Governor in Council.  The regulations in Schedule J shall be deemed to have been made under this sub-section.

105.  If the Building Authority considers that a group of contiguous buildings may be drained more advantageously in combination than separately, he may order that such group be drained upon some combined plan to be approved by him, and the cost thereof shall be apportioned by the Building Authority between the different owners of such group of contiguous buildings.

84.  It is of note that whilst most provisions concern the construction of a new building, section 104(1)  – the predecessor of the current section 28(3)  – explicitly refers to “existing buildings” and “existing defective drainage”.  One of the purposes of section 104(1)  might have been to bring drains of buildings which had already been constructed before 1935 (thus not caught by section 103)  to the requirements of the newly enacted ordinance.  The reference to “contiguous buildings” in section 105 also again suggests that “buildings” is a reference to a whole block of building.

85.  In the subsequent years, further amendments were made to the 1935 Ordinance, which resulted in the re-numbering of sections 103 to 105 as sections 88 to 89.  Then, there came another major re-enactment in 1955 by way of the Buildings Bill 1955, which brought the ordinance much closer to the current version.  The bill was passed and eventually gazetted on 23 December 1955 by Ordinance No. 68 of 1955.  The purpose of the re-enactment was explained in the “Objects and Reasons” of the Explanatory Memorandum of the 1955:

[1.] The object of this Bill is to re-enact the Buildings Ordinance of 1935 (Cap 123). Table 1 list the sections of the Ordinance which have been replaced by clauses in the Bill, while Table 2 shows the fate of the other sections with some explanatory comments. It will be seen from this table 2 that some 64 sections of the Ordinance are to be replaced by regulations to be enacted under the Bill. A further 35 sections are retained for the present in the Bill pending the preparation of regulations or other legislation to replace them.

2.  The majority of the changes effected are the outcome of the progress in the science of building in the 20 years since the enactment of the Ordinance.  For example, the provisions with regard to lath and plaster walls (section 17)  and cocklofts (section 32)  find no place in the Bill as they are not in accord with the modern building practice.

3.  Some sections have not been re-enacted since it is considered that their subject matter is outside the province of the Building Authority.  Thus some of the matters formerly listed under the rubric “building nuisances” cease to be the concern of the Building Authority.  This represents one of the changes of policy: with the development of the Urban Council it is thought that the responsibility of the Building Authority should cease once building works are completed to his satisfaction, except where buildings become dangerous (clause 17)  or where drainage is unsatisfactory (clause 19).

86.  As shown in Table 1 of the Explanatory Memorandum, Clause 19 (i.e. section 19 when enacted)  corresponds to sections 88-90 of the 1935 Ordinance. Clause 19 provides:

(1)  All drainage works for any building shall be carried out by the owner of such building to the satisfaction of the Building Authority and in compliance with regulations.

(2)  Where in the opinion of the Building Authority any group of buildings may be drained more advantageously in combination than separately he may –

(a)  by an order in writing served on the owners of such buildings require to be carried out the necessary drainage works under a combined plan approved by him; or

(b)  carry out or cause to be carried out such works and recover the cost thereof from such owners.

(3)  Where in the opinion of the Building Authority the drains of any building are inadequate or in a defective or insanitary condition he may -

(a)  by an order in writing served on the owner of such building require him to carry out such drainage works as the Building Authority may deem necessary within such reasonable time as may be specified in the order; or

(b)  carry out or cause to be carried out such works, and recover the cost thereof from the owner.

(4)  For the purposes of this section drainage works mean all works connected with the construction, repair, alteration, disconnexion, trapping and ventilation of the drains on the land held under lease, licence or otherwise from the Crown by the owner of the building, and the connexion of such drains to the public drainage system in the manner prescribed by regulations.

87.  From paragraph 3 of the “Objects and Reasons”, it can be seen that even though the reference to “existing” buildings or “existing” drainage was no longer used, the then section 19 (which eventually became section 28) was meant to continue its operation into the post construction phase, which was thought to be a rarity in the BO.

88.  But we can see from the current BO, the province of the BO has later broadened to cover aspects of the post-construction life of a building.  The current preamble says

To provide for the planning, design and construction of buildings and associated works; to make provision for the rendering safe of dangerous buildings and land; to make provision for regular inspections of buildings and the associated repairs to prevent the buildings from becoming unsafe; and to make provision for matters connected therewith.

89.  The reference to “inspections of buildings and the associated repairs to prevent the buildings from becoming unsafe” was added in 2011, together with Part 2A, titled “Inspection and Repair of Building”.  That part applies to domestic buildings at least three storeys tall.  The sections providing for serving orders requiring inspection and repairing of windows and external walls for buildings more than 10 or 30 years old are to be found in that part too.

90.  As can be seen below, had the legislature intended to assign the repairing responsibility for drains or sewers in the way they did with windows or external walls in old buildings, they could have done so.  But no similar enactment or amendments have ever been made.

91.  It is not inconceivable for the legislature to consider that the repairing responsibility for some items should fall on individual owners in appropriate circumstances but the repairing responsibility of other items must be borne by all the co-owners as a whole.  Pipes, drains and sewers in the drainage system of a building are ordinarily connected together, whilst windows (as an example)  could easily be seen as items pertaining to individual units.

D.7  Conclusion on Construction of section 28(3)

92.  My conclusion from all of the above is that the “owner of such building” is/are the co-owners of the Building.

93.  If the drain is within the common parts of the building, by operation of section 16 of the BMO, the repairing order under section 28(3)  should be served on the IO.  If the drain is not within the common parts, the order should be served on all the co-owners of the building.

94.  I do not think it would lead to absurdity if, using the Pipe as an example, the owner of unit 7A (together with the owners of 10B, 11B and all the other co-owners of Lamma Palace), were to receive the Order, when the Pipe is seen as part of the drainage system of the entire building.  Serving the Order on all co-owners is analogous to serving the Order on the IO, where there is one.  This is but an incidence of co-ownership in multi-storey building.

95.  Serving a repairing order on either the IO or all the co-owners is also conducive to ensuring compliance with the order. Either the IO or at least one of the co-owners will be able to access the premises to carry out required works.

96.  Mr Ng’s approach may actually result on the order being served only on the co-owner who has no access to the premises in which the repairing works have to be carried out.  There is no mechanism under the BO to enable the recipient of a section 28(3)  order to enter into premises to which otherwise he has no access.  There are such mechanisms for groundwater drainage works in a scheduled area specifically, but these mechanisms are not available for drainage works generally, see sections 28A to 28D.  This further shows that the approach currently taken by the BA could not have been intended by the legislature.

97.  If necessary, the liability among the co-owners could then be sorted out among themselves by reference to the DMC or other mechanisms.

D.8  Additional Matters

98.  The language of section 28(3) only requires the service of the order on the owner of the building the Pipe of which is defective.  Mr Chan’s approach equates building as the unit to which the Pipe is affixed and imposes responsibility on the co-owner who exclusively possesses that unit.  Mr Ng’s approach imposes responsibility on the co-owner of the Building who has exclusive use and benefit of the Pipe.

99.  As seen above, I do not think that either approach is borne out by the language of section 28(3). But it can be seen that their approaches in assigning repairing responsibility are indeed to be found elsewhere in the BO regarding other structures in/on a building with the use of express language.

100.  For signboards constructed not in compliance with the BO, it is provided that the repairing order should be served in the following order: the person for whom the signboard is erected, the person who would receive rent if the signboard is hired out, and eventually the owner of the land/premises on which the signboard has been erected if none of the persons aforementioned could be found: see section 24(2)(c). The first two types of persons are similar to owners of the signboard or persons who will benefit from the signboard.

101.  For windows in any building aged 10 years or more, it is provided that if the window is “exclusively used” by an owner of the building or any occupier of that owner’s premises, the order for prescribed inspection or repairing of the window should first be served on that owner, then to “any owner” of that building: see sections 30C(3)  and 30C(4).  The concept of the owner with exclusive use of the window is remarkably similar to concept of exclusive use and benefit of the soil/waste pipe in the EBD Manual, except that the former is expressly provided in the BO and the latter is not.

102.  For external walls of any building aged 30 years or more, it is provided an order for prescribed inspection and repairing could be served on “any owner of the building” if the external wall is in the common parts.  If the external wall is not in the common parts, the order could be served on “the owner of the external wall”: see sections 30B(3)  and 30B(4).

103.  The example of windows and external walls show that the legislature is alive to the fact that there are numerous co-owners in a multi-storey building and that the relevant window or external wall could sometimes be exclusively used or possessed by one of the co-owners, but sometimes be used or possessed for all the co-owners as a whole.  Provisions are made to assign the repairing responsibilities to different owners in different circumstances.

104.  If the legislature was minded to do the same with drains and sewers, they could have done so.  But they did not.  I cannot read into section 28(3) words which the legislature had only chosen to deploy in other sections of the BO but not in section 28(3).

105.  One may also note that sections 30B and 30C expressly provide that the order could be served on “any owner of a building” when the window or external is not exclusively used or possessed by any of the co-owners.  This is, in my view, language indicative of the type of discretion which Mr Ng seeks to argue as created by section 28(3).  But section 28(3)  only provides for “the owner of such building”, rather than “any owner of a building”.

D.9  Conclusion on Ground 1

106.  In conclusion, the BAT has erred in law in construing section 28(3).  Ground 1 succeeds both at the leave stage and on the substantive hearing.

107.  The other three grounds could be dealt with quickly.

E.  Ground 2: Unlawfulness in relying on the EBD Manual

108.  It soon transpired in the hearing that this ground would stand and fall together with Ground 1.

109.  In the Form 86 and Mr Chan’s written submissions, it would appear that the basis of unlawfulness was said to have arisen from the fact that the EBD Manual was unpublished and undisclosed.  Mr Chan did not plead any prejudice arising from such non-disclosure.

110.  In Mr Ng’s reply written submissions, he relied on Ghulam Rbani v Secretary for Justice (2014)  17 HKCFAR 138, at §§66 and 77, to submit that the there is no general duty to publish a policy setting out the criteria for exercising statutory powers and the need to publish a policy only arises when it affects the person’s right to make meaningful representations.  Mr Chan did not plead any prejudice and thus this ground must fall.

111.  Mr Chan took me to R (Lupepe)  v Home Secretary [2017] EWHC 2960 (Admin)  at §§46, 62-66, which may, on its face, be thought to support the proposition that the non-disclosure of a policy itself would be a separate reason rendering the decision unlawful, on top of the resulting procedural unfairness arising from the lack of meaningful representation.

112.  But I accept Mr Ng’s submissions that the correct legal proposition is that the non-disclosure of a policy itself, without more, does not give rise to unlawfulness.  In Lupepe, the Court might have discussed the lack of publication of the policy under a separate heading (§§61-66) from the opportunity to make representation (§§67 to 69), but §66 clearly explains that the unlawfulness of the non-disclosure is underpinned by the resulting deprivation of the opportunity to make fair representation or to challenge the decision.  In §66, reliance was also placed on §§34 to 39 of R (Lumba)  v Home Department [2012] 1 AC 245, which focused on the importance of one’s ability to make fair representation.

113.  Lumba concerned the detention of foreign national offenders pending deportation.  There was a published policy indicating a presumption in favour of release.  But the authorities applied an unpublished policy which in effect provided for a presumption of detention.  The Court held that the application of the unpublished policy was unlawful.  There were three strands of unlawfulness: (1) the unpublished policy was a blanket policy which admitted of no exceptions and, (2) the unpublished policy was inconsistent with the published policy, and (3) the authority had a duty to publish the current policy and to follow that published policy so that an affected person could make informed and meaningful representations before a decision was made.

114.  In the hearing, Mr Chan eventually clarified that he does not rely on the non-disclosure of the EBD Manual alone, but also that the manual contradicted the publicly available information, i.e. the second strand of unlawfulness in Lumba.  I agree with Mr Ng that this would mean that Ground 2 would add nothing to Ground 1. The publicly available information which Mr Chan said was contradicted by the EBD Manual is but section 28(3)  on its proper construction.

115.  I have ruled that section 28(3) does not confer the type of discretion on the BA as suggested by Mr Ng.  The EBD Manual is inconsistent with section 28(3)  and the BA’s reliance on the manual was unlawful, so was the BAT’s Decision in this respect.  Though it adds little to Ground 1, Ground 2 succeeds.

F.  Ground 3: Unlawful and irrational in disregarding the DMC

116.  Mr Chan said the 11B owners had drawn the BA’s attention to the relevant provisions in the DMC (incorporating the Estates Rules – set out above)  under which the duty to repair the Pipe should fall on the 10B owners rather than the 11B owners.  In the circumstances, he argued it was Wednesbury unreasonable for the BA to disregard the provisions in the DMC.

117.  Mr Chan said the BA had breached its Tameside duty (which is a facet of Wednesbury unreasonableness), which is duty on a decision-maker to ask himself the right question and to take reasonable steps to acquaint himself with the relevant information in the making of a decision.

118.  Mr Ng said that after stripping off the linguistic niceties in Mr Chan’s submissions, this is no more than a re-run of Ground 1 in that the BA should have made the decision by reference to the DMC of the building.

119.  Mr Chan replied that this ground is not a rehash of Ground 1.  His Ground 1 does not rely on the DMC to argue that the Order was wrongly served, but purely on the construction of section 28(3). In §45.3 of the Form 86, which was also settled by Mr Chan, he said that no reasonable decision maker apprised of the relevant DMC provisions would insist on serving the Order on the 11B owners, even assuming it is legally correct to do so (upon a proper construction of section 28(3)).

120.  I do not accept Mr Chan’s argument.  He has agreed that the construction of section 28(3) does not turn on the DMC. The DMC is irrelevant to the construction exercise.  On this basis, I cannot see on what legal basis Mr Chan could possibly rely on to suggest that the BA must take into account the DMC in answering a question which must be determined by section 28(3).  The BA (and the BAT) could not be accused of being irrational in the public law sense in disregarding the DMC.

121.  Although the BAT considered the DMC as irrelevant on deciding who should be served under section 28(3), it did, nonetheless, go on to consider various provisions in the DMC for completeness’s sake and for answering the 11B owners’ argument that the Pipe falls within the common parts: see §§30 to 54 of the Decision.  Mr Chan criticised the BAT’s analysis on some DMC provisions as being irrational.  I agree with Mr Ng that this strand of argument is a red-herring for the present application. Those DMC provisions were only considered for completeness’ sake or pertained to the common parts argument which is no longer pursued before me.

122.  Ground 3 is not reasonably arguable.

G.  Ground 4: The Pipe is not defective

123.  Mr Chan said the fact that there was leakage of the Pipe is a jurisdictional antecedent, which is a necessary requirement to trigger the BA’s power to issue an order under section 28(3). He said none of the photos of the Pipe before the BAT shows that the Pipe was leaking.  It was irrational for the BAT to have found that there was leakage of the Pipe based on the evidence before it.  I drew to his attention that section 28(3)  does not require the Pipe to be leaking, but only that it was “inadequate or in a defective or insanitary condition” and, despite the rather poor quality of the photos in the bundles, the Pipe appeared to be rusty.  Mr Chan replied that the BA had particularized and relied on seepage or leaking as the underlying facts to meet the jurisdictional antecedent in section 28(3).

124.  In my view, Ground 4 is clearly unarguable:

(1)  The photos of the Pipe are not the only evidence before the BAT.  As said, Mr Lo, the Building Survey who conducted two inspections of the Pipe had given evidence that the Pipe was leaking and his evidence was accepted by the BAT.  It could not be argued that the BAT was irrational in accepting Mr Lo’s evidence.

(2)  As pointed out by Mr Ng, the required jurisdictional antecedent in section 28(3)  is that the BA should have formed the opinion that the Pipe was inadequate or in a defective or insanitary condition.  The jurisdictional antecedent is the BA’s opinion about the condition of the Pipe, rather than the actual conditions of the Pipe.  It was not argued that the BA had not have formed such an opinion before serving the Order on the 11B owners.

125.  Ground 4 is also not reasonably arguable and leave is refused.

H.  Result

126.  The applicants succeed in establishing grounds for review on Ground 1 and Ground 2, but fail to obtain leave on Ground 3 and Ground 4.

127.  As to relief, I order (1) the Decision and the Order to be brought up and quashed and (2) the matters to be remitted to the BAT for its reconsideration in light of my ruling.

128.  I am mindful that should the BAT consider that the Pipe does not fall within the common parts of the Building, then according to section 28(3)  as construed by this Court, an order would have to be served on all the co-owners of the Building, including the applicants.  Whilst the BAT has indeed considered the question of common parts in the hearing before it, this argument was not raised before me.  It may also have other consequences if a section 28(3)  order is served on the 11B owners much earlier than all the other co-owners of the Building.  In that case, the proper way forward is also to quash the Order and let the BAT deal with the matters afresh and for the BA to re-issue an order to all co-owners at the same time if appropriate.

129.  As to costs, I see no reason why the costs should not follow the event, so that the BA should pay the applicants’ costs, to be taxed if not agreed.  But I shall make that order a nisi order in the first instance, to become absolute if no party makes a variation application within 14 days.  Any variation application will be dealt with on paper.