CINAT CO. LTD. v. THE ATTORNEY GENERAL

IN THE COURT OF APPEAL

1993, No. 131
(Civil)

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J U D G M E N T

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Macdougall, V.-P.:

1. The appellant appeals against an order made by Liu J on 9 July this year dismissing with costs the appellant's consolidated applications for declaratory relief and judicial review.

2. The subject matter of the appeal is a triangular piece of vacant land situated at 121 King's Road, North Point and consisting of subsection 1 of Section A of Inland Lot No. 2273 and the Remaining Portion of Inland Lot No. 2273 and the Extension thereto. According to the appellant the area of the land is approximately 9644 square feet. The head of the Development Division of the Buildings Ordinance Office asserts that the area is 9336 square feet. However, nothing hinges on that for the purpose of this appeal. The lots formed part of Inland Lot No. 2273, Remaining Portion and the Extension thereto and were held by Mai Lee Enterprises Ltd. ("Mai Lee") under a lease from the Crown.

3. In 1970 the Government reserved the lots comprising the triangular portion of land for use as an Mass Transit Railway station and exit. In 1976 Mai Lee conducted negotiations with the Government with a view to developing its land by erecting a twin tower block of domestic flats over a podium of commercial floors and a basement. It proposed to the Building Authority that it would surrender the lots forming the triangular portion of land reserved for use as a Mass Transit Railway station provided that the area surrendered should be included in the site area calculations used to determine the site coverage and plot ratio for the proposed new building pursuant to the Buildings Ordinance (Cap. 123) and the Building (Planning) Regulations. By a letter dated 13 December 1976 the Building Authority informed Mai Lee that the "site area including the area forming the Mass Transit Railway reserve may be used for the purposes of calculating the maximum permitted site coverage and plot ratio for this Class 'A' site". Consequent upon this approval, the proposed building, which is known as Carson Mansion, was erected by Mai Lee and an occupation permit was issued on 28 June 1979. It seems that it was in about August 1979 that Mai Lee executed an undated Deed of Dedication dedicating the lots forming the triangular portion of land to the public for the purpose of passage.

4. Government decided, however, not to sign the annexure to the Deed which stated that the Deed was made with the consent of the Government and that the dedication was accepted by the Government subject to the conditions and provisions in the Deed and Mai Lee's acceptance of them. The reasons given for making this decision were that it was not then known whether the Island Line would be constructed; that if the site was later required for the construction of a Mass Transit Railway station, it would then be acquired; and that in any event there was no provision for statutory dedication of areas reserved for Mass Transit Railway station entrances.

5. Subsequently, owing to the realignment of the Island Line, the site was no longer required for use as a Mass Transit Railway station. It has been used in recent years, and is still being used, as a car park.

6. By an assignment dated 1 July 1988 Good Genius. Company Limited, the successor in title to Mai Lee, assigned the lots forming the triangular portion of land to the appellant for the residue of the Crown lease for a purchase price of $12m.

7. On 13 July 1988 the appellant's solicitors wrote to the Buildings and Lands Department advising that, because of the relocation of the Mass Transit Railway station, the appellant proposed to erect a petrol filling station on the site. Later, on 29 July 1988, the Shell Company of Hong Kong Ltd. applied to the Town Planning Board for permission to erect the petrol filling station. Notification of refusal to approve the application was given on 1 November 1988. On 28 September 1989 the appellant's architect submitted to the Building Authority for its approval an application to develop the site by erecting a 36 storey commercial building on it. This application was disapproved on 23 November 1989 on the ground that the proposed development exceeded the permitted site coverage and plot ratio under s16(1)(d) of the Buildings Ordinance and regulations 20 and 21 of the Building (Planning) Regulations. In giving its notification of disapproval, the Building Authority stated:

"In this connection, your attention is drawn to the fact that the captioned site was developed together with the adjoining property (i.e. Carson Mansion at 117-121 King's Road and 170-174 Electric Road, IL 1367 S.B. 2273 S.A.R.P. and Extn) as one site and the permissible plot ratio and site coverage under relevant regulations have been almost fully utilised".

8. A subsequent application by the appellant's architect on 15 August 1992 for approval to develop the site by erecting a 36 storey building for commercial and domestic use was disapproved by the Building Authority on 13 October 1992 for the same reason.

9. On 4 April 1992 the appellant instituted proceedings by way of originating summons seeking declarations that for the purpose of calculating the plot ratio and site coverage under the Building (Planning) Regulations, the triangular plot was a "site" and that in so far as the rejection of the building plans submitted by the appellant on 28 September 1989 to the Building Authority was based on a refusal on the part of the Building Authority to treat the triangular plot as a "site", the rejection was contrary to the Regulations.

10. On 1 December 1992 the appellant filed a notice of application for leave to apply for judicial review of the decision by the Building Authority contained in or evidenced by its letter of 13 October 1992 disapproving the building plans submitted on behalf of the applicant. The relief sought was a declaration that the decision of the Building Authority was void and of no legal effect, an order for certiorari to quash the decision, and an order for mandamus to compel the Building Authority to re-consider according to law the building plans submitted on behalf of the appellant.

11. By consent, the proceedings were consolidated and came on for hearing before Liu J. The submission made to the judge by Mr. Griffiths for the appellant was that the word "site" in the regulations applied only to the land which Mai Lee had intended to incorporate in the Carson Mansion development, and that, since Mai Lee had no intention of including in that development the triangular piece of land which had already been reserved for use as a Mass Transit Railway station, that land did not form part of the "site". Accordingly, granting the Carson Mansion site any part of the "site coverage" and "plot ratio" attributable to the triangular piece of land was ultra vires the Buildings Ordinance Office and therefore void and of no legal effect. The relevant parts of section 16 of the Ordinance and regulation 20 are as follows:

"16(1) 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)"

"20(1) Subject to regulation 22 and depending on the height of the building -

(a) the site coverage for a domestic building, or for the domestic part of a composite building, on a class A site shall not exceed that percentage of the area of the site specified in the second column of the First Schedule;

(b) the site coverage for a domestic building, or for the domestic part of a composite building, on a class B site shall not exceed that percentage of the area of the site specified in the third column of the First Schedule; and

(c) the site coverage for a domestic building, or for the domestic part of a composite building, on a class C site shall not exceed that percentage of the area of the site specified in the fourth column of the First Schedule."

12. It is not necessary to set out the provisions of regulation 21.

13. The following passage from the judgment of the Judicial Committee of the Privy Council delivered by Lord Fraser in Attorney General v. Cheng Yick Chi and others Privy Council Appeal No. 32 of 1982 (unreported) was quoted to Liu J and relied upon by counsel for both parties:

"Neither the regulations nor the Buildings Ordinance contains a definition of 'site'. The respondents contend that the site is the whole of the properties, including the unbuilt on land. The appellant contends that, in this case, it is only the land on which the houses at present stand. was common ground between them that the site, in the sense of the regulations, is not necessarily limited to the ground on which buildings actually stand. That it cannot always bear such a limited meaning appears from several provisions in the regulations. For example, regulation 5(2) refers to the provision of an access lane 'within the site' of a new building, and regulation 25(1)(a) requires that every domestic building shall have 'within the site' an open space at the rear. Clearly neither an access lane nor an open space can be on ground on which a building stands.

Mr. Widdicombe for the respondents said that the site for purposes of development is normally a whole 'lot', using 'lot' to mean the leased area held directly or indirectly under a lease from the Crown. That may well be so. But (rightly) he did not contend that the 'site' was necessarily co-extensive with the 'lot', because the word site must be flexible enough to apply to a case in which the person holding several adjacent lots under Crown leases proposes to develop them together as a single site. It must also apply where the owner develops only part of his lot, or develops it bit by bit at different times. For example, if a development scheme applies to a substantial area of perhaps an acre or more, to be developed by building a detached house on part of it, with the rest of land being laid out as a garden and tennis court, the whole area would be the site. If some years later the tennis court is sold off in order to build a separate house on it, the site for that later development would be limited to the tennis court.

Their Lordships are of the opinion that the land which forms a 'site' for the purposes of the regulations must be ascertained as a question of fact in the case of each development. It means, in addition to the land on which it is proposed to erect buildings, any land which the developer bona fide proposes to include in the development. It can only include land which he owns or which he has a realistic prospect of controlling. The additional land must be at least sufficient to enable the proposed building to comply with the regulations and it must, of course, not have been taken into account and, so to speak, used up in enabling some other existing building to comply with the regulations.

The learned judges of the majority in the Court of Appeal took the view that there was no distinction between the lot (or leased area) and the area of the site. The Vice-President relied largely on the wording of regulation 22(2)(a) which refers to 'a building erected on that lot, being a Class A, B or C site', and which in his view equiparated a lot with a site. For the reasons already explained their Lordships are unable to agree with that view. They consider that the words quoted from regulation 22(2)(a) are only a shorthand way of saying 'a building erected on that lot, being a building the site of which is a Class A, B or C site'.

Applying these considerations to the unbuilt on land here, their Lordships are of the opinion that it does not form part of the site in the present development scheme. It has been dedicated to the public for purposes of passage, and it is therefore not available for inclusion by the respondents in the present development."

14. In rejecting the submissions made on behalf of the appellant, Liu J said:

"The regulations Lord Fraser examined were the Building (Planning) Regulations which cater for planning and design in building construction. In their Lordship's House, the meaning of a 'site' for the purposes of these regulations was considered. The Law Lords were called upon to deal with 'site' in the planning and design phase of our building construction. In that passage of Lord Fraser's speech, the reference to 'land which the developer bona fide proposes to include in the development' must not be cut adrift from its moorings i.e. the planning and design phase of a proposed development. At that interim stage, as Lord Fraser explained, 'any land which the developer bona fide proposes to include in the development' would form part of the site. Such land need not be included in the permanent sense. It is not the case that such land must necessarily be retained after the period of negotiation with government on planning and design. Lord Fraser did not require such land to be continually held in the scheme to qualify as part of the site in its earlier planning and design phase."

15. At the hearing of this appeal Mr. Griffiths placed particular reliance on the following words in the above passage from their Lordships judgment:

"[Site] means, in addition to the land on which it is proposed to erect buildings, any land which the developer bona fide proposes to include in the development."

16. Mr. Griffiths submitted that this passage constituted the ratio decidendi and that it makes it plain that "site" can only mean the land comprising the lot or lots on which the development is physically to take place, that is to say the actual ground on which the proposed building is to be erected together with the statutory open space surrounding it and any other area of land which is to belong to and fall within its outer boundaries, such as a garden, a courtyard, a fountain or other facility.

17. Mr. Kwok for the respondent submitted that this was too narrow an interpretation of the word "development" in the sense in which it was used by their Lordships, and that regard must also be had to the words immediately following it:

"It can only include land which he owns or which he has a realistic prospect of controlling. The additional land must be at least sufficient to enable the proposed building to comply with the regulations and it must, of course, not have been taken into account and, so to speak, used up in enabling some other existing building to comply with the regulations."

18. Mr. Kwok contended that on a fair reading of these passages the words "land which the developer bona fide proposes to include in the development" are wide enough to include land which is adjacent to that on which the building is to be erected and which is used for the purpose of calculating the "site coverage" and "plot ratio", provided that it has not already been used up in enabling some other building to comply with the regulations.

19. I find it significant that in applying the considerations outlined earlier in their judgment, their Lordships said this:

"Applying these considerations to the unbuilt on land here, their Lordships are of the opinion that it does not form part of the site in the present development scheme. It has been dedicated to the public for purposes of passage, and it is therefore not available for inclusion by the respondents in the present development."

20. By using the words "development" and "development scheme" interchangeably, it seems to me reasonable to conclude that their Lordships were not confining themselves to the development in the physical sense, but had in mind the scheme of development as a whole, and that this embraces land which is used for the purpose of calculating the "site coverage" and "plot ratio" for the building that the developer proposes to erect.

21. This view is reinforced by the use of the word 'development' in the context of a passage commencing at page 6 of their Lordship's judgment:

"The effect of the construction which in their Lordships' view is correct, is that in determining for the purposes of regulations 20, 21 and 22 the area of a site, no account is to be taken of any part of any existing street, but account is to be taken of any area which, in the proposed development, is to be dedicated to the public for passage. Areas dedicated in the past are excluded. In that way a developer who gives up some of his land by dedicating it to the public has his reward on the occasion of the dedication, but not again - a result which is intelligible and seems consistent with the scheme of the regulations."

22. Moreover, it is important to emphasise, as their Lordships were at pains to do, that the land which forms a "site" for the purposes of the regulations must be ascertained as a question of fact in the case of each development.

23. It is plain that the reason that the area of land which formed the subject of the dispute before their Lordships was unavailable for inclusion in the development was that it had been dedicated to the public for purposes of passage.

24. While it is true to say that the triangular piece of land in the present case had been reserved for future use as a site for a Mass Transit Railway station, it had not been dedicated by Mai Lee to the public or otherwise. Although, for the purpose of the application for approval of the development scheme, both Mai Lee and the Buildings Ordinance Office had to assume that the triangular piece of land would eventually be used as a site for a station, there was no certainty that it would be so used. It hardly needs saying that in projects such as the construction of a mass transit railway alterations to the original plans are commonplace. Indeed, this is precisely what happened in the instant case when it was decided not to use the site as a station. In the case before their Lordships, however, the disputed strip of land had already been dedicated to the public and so was unavailable for inclusion in the development for the purpose of the "site coverage" and "plot ratio" calculations.

25. It is accepted that the appellant was a bona fide purchaser of the residue of the term under the crown lease and that, although it may apply for approval to use the site for some purpose other than the erection of a building such as that with which this appeal is concerned, it will be unable to exploit the site to its maximum potential. That may be so, but, as has already been seen, the appellant originally sought to develop the land by erecting a petrol filling station on it. In my view it would have been prudent for the appellant, before purchasing the land, to have enquired from the Buildings Ordinance Office whether it had been used for the purpose of calculating the site coverage and plot ratio of any of the adjacent high rise buildings. That, however, is not a matter with which this court is concerned. For the reasons which I have given I would dismiss this appeal.

Bokhary, J.A.:

26. I agree that this appeal must be dismissed.

27. The immediate question is whether the plans for the appellant's proposed development were rightly rejected.

28. Those plans were rejected on the ground that the appellant's land to which they related does not carry as much site coverage or plot ratio as the proposed development requires. I will refer to such land as "the subject land".

29. Is the subject land thus deficient in site coverage and plot ratio? That turns on whether it had in the past formed a part of the site for Mai Lee's Carson Mansion development scheme. If it had, then that scheme would have used up so much of the subject land's site coverage and plot ratio as to leave it with too little for the scheme now proposed. The rejection of the appellant's plans would have been right. And this appeal would have to be dismissed.

30. But if the subject land had not formed a part of the Carson Mansion development scheme site, then none of the subject land's site coverage or plot ratio would have been used up. The subject land would have enough site coverage and plot ratio for the proposed development scheme. The rejection of the appellant's plans would have been wrong. And this appeal would have to be allowed.

31. Delivering the advice of the Privy Council in AG v. Cheng Yick Chi, Privy Council Appeal No.32 of 1982, June 21, 1983, (unreported), an appeal from Hong Kong, Lord Fraser said (at pp.4-5) that:-

" Their Lordships are of the opinion that the land which forms a 'site' for the purposes of the regulations must be ascertained as a question of fact in the case of each development. It means, in addition to the land on which it is proposed to erect buildings, any land which the developer bona fide proposes to include in the development. It can only include land which he owns or which he has a realistic prospect of controlling. The additional land must be at least sufficient to enable the proposed building to comply with the regulations and it must, of course, not have been taken into account and, so to speak, used up in enabling some other existing building to comply with the regulations."

32. In the present case, Mai Lee used to own the subject land. It formed a part of Mai Lee's lot on another part of which Carson Mansion was eventually built. As owner, Mai Lee (by its authorized person's letter of May 29, 1976) offered to surrender the subject land for Mass Transit Railway purposes. It offered such surrender free of monetary compensation, but on the basis that it would remain a part of the lot for the purposes of the site coverage and plot ratio available for Carson Mansion.

33. The Public Works Department Conference of November 9, 1976, noted the fact that funds were not then available for the resumption of the subject land. It also noted the argument that the cost of resuming the subject land in future would be lower if its site coverage and plot ratio had been largely used up by the time of eventual resumption. And it decided that the subject land should be treated as part of the lot for the purposes of the site coverage and plot ratio available for Carson Mansion. That decision was conveyed to Mai Lee by the Building Authority's letter of December 13, 1976. The letter said that, provided that no buildings were erected over or under it, the subject land would be treated as part of the Carson Mansion development scheme site for the purposes of the site coverage and plot ratio available for Carson Mansion.

34. It was such treatment of the subject land which enabled Carson Mansion to comply with the regulations. And it was on the basis of such treatment that the plans for the Carson Mansion development scheme were in due course approved by the Building Authority. Those plans contain a sketch of the subject land. And the subject land is included in the site coverage and plot ratio calculations shown on those plans.

35. The subject land, it should be added for the sake of completeness, had of course not previously been taken into account to enable any then existing building to comply with the regulations.

36. In the circumstances, I am of the view that the whole of Mai Lee's lot was the site for the Carson Mansion development scheme: with the subject land genuinely included in such scheme as "additional land" in the sense in which Lord Fraser used that expression.

37. How does Mr Griffiths for the appellant argue to the contrary?

38. His argument is that it was not open to the Building Authority to treat the subject land as he did. If Mr Griffiths's argument is right, the subject land retains all the site coverage and plot ratio it ever had. And, as a side-effect, Carson Mansions far exceeds its permitted site coverage and plot ratio.

39. Mr Griffiths seeks to rely on the paragraph immediately preceding the one quoted above. In that earlier paragraph (at p.4) Lord Fraser said this:-

" [Counsel] for the respondents said that the site for purposes of development is normally a whole 'lot', using 'lot' to mean the leased area held directly or indirectly under a lease from the Crown. That may well be so. But (rightly) he did not contend that the 'site' was necessarily co-extensive with the 'lot', because the word site must be flexible enough to apply to a case in which the person holding several adjacent lots under Crown leases proposes to develop them together as a single site. It must also apply where the owner develops only part of his lot, or develops it bit by bit at different times. For example, if a development scheme applies to a substantial area of perhaps an acre or more, to be developed by building a detached house on part of it, with the rest of the land being laid out as a garden and tennis court, the whole area would be the site. If some years later the tennis court is sold off in order to build a separate house on it, the site for that later development would be limited to the tennis court."

40. It is Mr Griffiths submission that when he spoke of "additional land", Lord Fraser meant things like the garden and tennis court in the example which he gave (which things would of course include swimming pools, walks, jogging tracks and so on).

41. I do not accept that submission. To begin with, there is no suggestion that the garden or tennis court in Lord Fraser's example enabled the detached house in that example to comply with any regulation.

42. It seems to me clear that when Lord Fraser spoke of "additional land [which enabled] the proposed building to comply with the regulations", he had in mind land being put to the sort of use to which the subject land was put in the present case. That use was - nothing more and nothing less - to enable a building to comply with the regulations when it would not otherwise have done so.

43. Lord Fraser's meaning becomes clearer when we find him making a point of saying that ownership or control of the additional land is necessary. That shows that when he spoke of "additional land" he was not referring to the land on which things like gardens, tennis courts, swimming pools, walks, jogging tracks and so on are laid out. Such things would constitute amenities of the development. It would go without saying that the land on which they are laid out would be in the ownership of the developer.

44. Next, Lord Fraser's meaning becomes clearer still when we find him laying down the condition that the "additional land" to be included in a development scheme "must, of course, not have been taken into account and, so to speak, used up in enabling some existing building to comply with the regulations." The words which I have emphasised demonstrate that he was thinking beyond purely physical inclusion.

45. Before parting with this case, I would add this. Mr Kwok for the Building Authority accepts that, as Mr Griffiths says, no ordinary land search would throw up the fact that any given piece of land had been put to use as "additional land". However, Mr Kwok received instructions from the Building Authority to inform this Court that if any interested person were to enquire of the Building Authority whether any given piece of land had been put to such use, he would be told. Mr Griffiths received no instructions to accept the accuracy of Mr Kwok's instructions.

46. I say nothing as to whether anybody should have been alerted to the need for such an enquiry in the present case. This appeal does not turn on that question. And in case the question is (or becomes) otherwise relevant to anybody's position in regard to the subject land, I avoid saying anything on it which could prejudice any such person's position.

47. As to the future and other pieces of land however, I would like to say that I am happy to hear what the Building Authority instructed his counsel to tell us. It is only right that if any person genuinely contemplating the acquisition of a piece of land, or any such person's adviser, had reasonable cause to wonder if the land had been put to use as "additional land" and were therefore to ask the Building Authority whether, and if so to what extent, the land had been put to such use, he should be told.

Mortimer, J.A.:

I also agree.

48. The plaintiff is the owner of land known as 121 King's Road, Hong Kong. It made two applications to develop. Permission was refused on 28th September 1989 and on 13th October 1992. The same reasons were given on each occasion. It then brought proceedings to strike down these decisions; one for judicial review and the other for the declaratory relief. The proceedings were heard together and dismissed by Liu J. on 9th July 1993. The plaintiff now appeals.

The Facts

49. The land at 121 King's Road (the triangular plot) the subject of the Appeal was part of a larger parcel of land owned in 1976 by Mai Lee Enterprises Ltd ("May Lee"). As can be seen from a hatched and coloured plan (CAV-2) from the outset the triangular plot was earmarked for the Mass Transit Railway. Although this was an informal designation, it was recognised by all concerned that the Building Authority would not permit May Lee to make any use of the triangular plot inconsistent with the building of an MTR station. It was understood therefore that in due course May Lee or a successor in title would lose this plot to the MTR by sale, resumption or dedication.

50. May Lee wanted to develop its parcel of land by building what became Carson Mansion. With the knowledge that the Building Authority would not permit any building on the triangular plot and if necessary would use its powers to prevent it under s.15 of the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance Cap. 276, it proposed by letter on 29th May 1976 that the triangular plot should be "counted as site area for the purposes of site coverage and plot ratio calculation of the proposed composite building" on the basis that it was prepared inter alia to "surrender" that plot.

51. After negotiations in which the Building Authority made it clear that nothing incompatible with the triangular site being developed as an MTR station would be allowed; that dedication of that part for public use would not give May Lee the benefit of Reg.23(2)(b); and that for the time being the Government did not intend to resume the plot, the Building Authority accepted May Lee's proposals.

52. Undoubtedly part of the motivation for accepting the proposals was to avoid the possible payment of $17m in compensation on resumption.

53. In consequence May Lee built Carson Mansion. For practical purposes this used up the whole of the plot ratio and site coverage for the whole parcel of its land including the triangular plot.

54. In May 1978 a deed poll was drafted for May Lee to dedicate the triangular plot for public use but this was not proceeded with and in due course the MTR Island Line was rerouted. Consequently the original proposals for the triangular plot lapsed and May Lee sold it.

55. On 1st July 1988 the appellant bought it from a third party. It is common ground that it was a bona fide purchaser without notice of any restriction.

The Applications to Develop

56. The plaintiffs made two applications to develop a 36-storey building. The first was for a commercial building. It was refused on 23rd November 1989. The second was for a commercial/domestic building which was refused on 13th October 1992. On each occasion the refusal was on the same ground:

"... The site was developed together with the adjoining property ... as one site and the permissible plot ratio and site coverage under relevant regulations have been almost fully utilised."

The Issue

57. The issue in this Court and in the court below is whether as a matter of law the triangular plot could have been "developed as one site" with the land on which Carson Mansion was built and whether in law on the admitted facts the triangular site was capable of being developed as part of the Carson Mansion site.

58. This involves a consideration of the meaning of "site" in regulations 20 and 21 of the Building (Planning) Regulations made under s.38 of the Building Ordinance Cap. 123 which was decided in AG v Cheng Yick Chi Privy Council Appeal 32/1982 (unreported). (The On Hing case)

The Law

59. It was decided in the On Hing case that in each development scheme the land which forms "the site" for the purposes of the regulations is ascertained as a question of fact. It is not limited to the land upon which buildings will be physically erected but includes additional land which the developer "bona fide proposes to include in the development".

60. There are limitations upon this additional land. The Privy Council put it in this way at p.5:

"It can only include land which he (the developer) owns or which he has a realistic prospect of controlling. The additional land must be at least sufficient to enable the proposed building to comply with the regulations and it must, of course, not have been taken into account and, so to speak, used up in enabling some other existing building to comply with the regulations".

61. It further held that land which had previously been dedicated to the public for the purposes of public passage was not available for inclusion by the owner in a development scheme.

The Appellant's Case

62. Mr Griffiths, Q.C. for the appellant submits that the facts in the On Hing case are exactly analogous to the instant case. He submits:

(a) that as the triangular plot was "earmarked" for the MTR there was no prospect whatsoever of the developer building on it and it is to be equated with the land previously dedicated for public use in the On Hing case;

(b) that additional land included in the development scheme must be used with the proposed building or used as part of its curtilage (see the example of the tennis court given by the Privy Council in the On Hing case);

(c) that the facts demonstrate that the developer never had any intention - bona fide or otherwise - to include the triangular plot in the development because as a question of fact it was never available for inclusion. Throughout the intention was to exclude it and to reserve it for development as an MTR station; and

(d) that in the circumstances the limitations upon additional land concerning ownership, control, and sufficiency to enable compliance with the Regulations are irrelevant because the land was never included in fact or available for inclusion in the development scheme in law.

63. Alternatively, he submits that the triangular plot was not available as additional land because Lord Fraser's words in the On Hing case "it can only include land which he owns or which he has a realistic prospect of controlling" do not mean that considerations of ownership and control are exclusive. Here, therefore, although the developer owned the triangular plot it did not have any "realistic prospect of controlling" it because of the reservation.

Was the triangular plot available for inclusion in the development scheme in law and was it bona fide included by the developer in fact?

64. In spite of having entertained doubt during Mr Griffiths' closely reasoned and attractive submissions, for my part, I am not able to accept them.

65. The parcel of land owned by the developer included the triangular plot. It also controlled the plot save for the Building Authority's proposed reservation. The application to develop shows that it intended to include the plot in its development scheme so as to use such of its plot ratio and site coverage potential as was not inconsistent with the proposed reservation. This was a valuable incident of ownership and at the time it had not dedicated or sold the plot nor had it been resumed by the Government. It remained available to the developer.

66. The Building Authority - with its proposed reservation in mind - permitted the plot ratio and site coverage potential of the whole parcel of land to be used in the development on the basis that no building took place on the triangular plot and that the developer would dedicate the land for public use as an MTR station - a dedication which was later thought inappropriate.

67. In my view the Building Authority was entitled to allow the developer - as owner - to make this valuable use of the triangular plot. It was not inconsistent with the proposed reservation.

68. At least for the limited purposes proposed by the developer the plot was available in law for inclusion in the development scheme. This is neither inconsistent with the legislation nor contrary to the decision in the On Hing case which is distinguishable. There the land proposed as additional land for plot ratio and site coverage although owned by the developer had been previously dedicated to the public for the purposes of passage. It was not available for inclusion and a developer may only have the benefit of such a dedication once. (See Reg.23(2)(h) and Reg.28) In the instant case there never was a proposal for dedication of the triangular site for public passage and the "using up" of its plot ratio and site coverage was not inconsistent with the future dedication, sale or resumption, nor with the reservation proposed.

Conclusion

69. For these reasons I think the judge's decision was correct. I have had the advantage of reading the judgments already delivered in draft. I agree with them. I also would dismiss this appeal.