SKY ACE ENTERPRISES LTD v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 157/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 157 OF 2014

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JUDGMENT
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BACKGROUND

1.  This is an application for judicial review of a decision of the Appeal Tribunal (Buildings) (“the Tribunal”) dismissing an appeal by the applicant herein from the decision of the Building Authority disapproving certain general building plans. 

2.  The building plans were for a proposed 28-storey residential development at Nos 1, 3, 5 and 7 Hei Wo Street, North Point (“the Site”).  The Site occupied part of 4 lots of land, namely, Inland Lot Nos 7527, 7528, 7529 and 7530 (“the 4 Lots”).  The 4 Lots and their neighbouring lots (ie Inland Lot Nos 7531 – 7539) lie in a cul-de-sac accessible to vehicles via only one access road from King’s Road.  That area was originally the subject of a single Government grant in 1921 and a single development based on building plans approved in 1955 consisting of 13 residential buildings (Nos 1 – 17 Hei Wo Street) each comprising of 5 residential floors over a basement floor used as stores.  The main staircases of each of these buildings discharged on to the courtyard area which was a 40-feet wide strip of land running east-west called the “40’ New Road” in the Block Plan of  1955.  This new road has since been named Hei Wo Street.  The access road running north-south from King’s Road is also part of Hei Wo Street, but for clarity I shall refer to it as the access road, and use Hei Wo Street to refer to the 40-feet wide road running east-west.

3.  As the Conditions of Grant were gradually complied with in the 1960s in relation to individual subsections, separate Government leases were executed for each of them.  In the Government leases relating to the 4 Lots, granted between 1964 and 1966, there were express reservations of a right of way over a portion of the southern part of each of the 4 Lots that formed part of Hei Wo Street, and, in the case of Lot No 7527, over the entire access road which forms part of that lot, in favour of the Government[1] and “Lessees of neighbouring Lots”.

4.  Lot Nos 7536 – 7539 (Nos 2, 4, 6 and 8 Hei Wo Street) were redeveloped in around 1988 into the building now standing there called Hollywood Court.  Lot Nos 7527 – 7535 (corresponding to the 4 Lots and Nos 9, 11, 11A, 15 and 17 Hei Wo Street) have not yet been redeveloped.

5.  Since the 4 Lots have come under the unitary ownership of the applicant, they may for present purposes be treated as a single servient tenement, over which the right of way exists in favour of the Government and the lessees of “neighbouring Lots”.  It is common ground that, for present purposes, the “neighbouring Lots” are Inland Lot Nos 7531 – 7539, ie Hollywood Court and Nos 9 – 17 Hei Wo Street.

6.  The subject of dispute is a 20-feet wide strip of land — the northern half of Hei Wo Street — immediately in front of the buildings at Nos 1, 3, 5 and 7 Hei Wo Street.  It has been coloured yellow in the relevant plans and referred to in the Tribunal as “the Yellow Portion”.  I adopt the same shorthand below.

7.  The Yellow Portion, albeit land in private ownership, forms part of Hei Wo Street, and consists of two parts: a pavement abutting the buildings erected on the Site, and, immediately beyond the pavement, an area that has for many years been used for private road side car parking, with the parking spaces positioned perpendicularly to the direction of the street. 

8.  The building plans in dispute were submitted on behalf of the applicant to the Building Authority on 25 March 2011.  They included the Yellow Portion in the site area for the purpose of calculation of site coverage and plot ratio under reg 20-22 of the Buildings (Planning) Regulation (Cap 123F) (“B(P)R”), although the Yellow Portion itself was not proposed to be built over.  Because it would not be built over there would not be any infringement of the right of way arising from the erection of the proposed building.  There was a problem, however, because B(P)R reg 23(2)(a) provides:

“In determining for the purposes of regulation 20, 21 or 22 the area of the site on which a building is erected-

(a) no account shall be taken of any part of any street or service lane ...”

The impact of reg 23(2)(a) was substantial: the development potential would be reduced by over 30% if the Yellow Portion was not permitted to be included in the site area calculation.

9.  It was not in dispute that, for the purposes of B(P)R reg 23(2)(a), to be a street, the land in question should (i) have the physical characteristics of a street, and (ii) be subject to a subsisting third party right of way or passage: Building Authority v Appeal Tribunal (Buildings) & Estoree Limited (unrep, HCAL 147/2002, 25 July 2003).

10.  A Form BA16 was submitted together with the building plans by which the applicant sought a modification of or exemption from B(P)R reg 23(2)(a) under s 42(1) of the Buildings Ordinance (Cap 123) (“the Ordinance”), which provides as follows:

“Where in the opinion of the Building Authority special circumstances render it desirable he may, on receipt of an application therefor and upon payment of the prescribed fee, permit by notice in writing modifications of the provisions of this Ordinance.”

The application was specifically for permission for the Yellow Portion to be included in the site area calculation.

11.  On 24 May 2011 the Building Authority disapproved the building plans under, inter alia, s 16(1)(d) of the Ordinance on the ground that the Yellow Portion should be excluded from site area calculation and that, on this basis, the proposed building exceeded the maximum permissible plot ratio and site coverage under B(P)R reg 20 and 21.  The Building Authority implicitly refused to grant the modification or exemption sought under s 42(1).

12.  The applicant appealed to the Tribunal.  The appeal was heard over several days in October and December 2013 and January 2014.  The applicant contended, inter alia, that the right of way over the Yellow Portion had been released by abandonment by the Government and by the owners of  Hollywood Court.[2] In its determination dated 29 August 2014 (“the Determination”), the Tribunal dismissed the appeal, holding that (i) the Yellow Portion had the physical appearance of being part of a street, namely, Hei Wo Street; (ii) a right of way existed over it in favour of the Government and Hollywood Court which had not been abandoned; and (iii) there were no special circumstances within the meaning of s 42 of the Ordinance rendering departure from B(P)R reg 23(2)(a) desirable.

13.  By a notice of application for leave to apply for judicial review filed on 24 November 2014, the applicant sought leave to apply for judicial review of the Determination. 

14.  Leave was refused by Au J at first instance after an oral hearing but in August 2015 the Court of Appeal, allowing the appeal, granted leave in respect of the following grounds[3], which I shall refer to as Grounds 1, 2 and 3 respectively:

(1) The finding that the Government had not abandoned its right of way over the Yellow Portion was erroneous in law.

(2) The finding that the owners of Hollywood Court had not abandoned their right of way over the Yellow Portion was irrational or vitiated by the failure to take a relevant matter into account.

(3) It was irrational for the Tribunal not to grant exemption or modification under s 42.

15.  The Tribunal has taken a neutral stance and not appeared in these proceedings.  The Building Authority, as an interested party served with the application, opposes it.  Mr Jin Pao who appeared for the Building Authority in these proceedings (but not before the Tribunal) submitted as a preliminary point that the Tribunal should not have entertained the applicant’s argument that the right of way had been abandoned.

16.  I shall first deal with Mr Pao’s preliminary point and then the three grounds for judicial review.

PRELIMINARY OBJECTION

17.  Mr Pao submitted that where the approval process under s 16 of the Ordinance would entail adjudication of private law issues that are likely to be in dispute between two private parties, and there are credible arguments to be made on both sides, neither the Building Authority nor the Tribunal should entertain the arguments or seek to determine the issues.  Instead, they should simply rely on the formal documentation such as the title documents relating to the land concerned in deciding whether or not to approve the building plans.

18.  For that proposition Mr Pao relied on three decisions, namely, Re Ho Mei Ling [2011] 6 HKC 1, §§40-46 and 65-69; Building Authority v Appeal Tribunal (Buildings) & Dobrowen Investment Ltd (unrep, HCAL 20/2011, 20 December 2011) at §20; and Building Authority v Appeal Tribunal (Buildings) & Long Winner Development Ltd (unrep, HCAL 45/2012, 22 November 2012) at §32, all of which were decisions of Lam VP when he was sitting in the Court of First Instance.  These authorities show that there are limitations in the manner in which the Building Authority can be expected to perform his statutory function in the approval of building plans.  The situations in those cases are, however, by no means the same as the present case.

19.  Ultimately, interesting though the argument is, I do not think it should be entertained in this application.  The authorities cited by Mr Pao do not directly deal with the scope of the function of the Tribunal.  The point was not run in the Tribunal.  If it had been raised there, it may be that the applicant would have conducted its appeal differently.  A decision on the point can have significant consequences on the practice and powers of the Tribunal, but since the point was only raised in Mr Pao’s skeleton, the Tribunal was not aware of it and did not have the opportunity of considering making a response to it.

GROUND 1 – ERROR OF LAW IN HOLDING THE GOVERNMENT HAD NOT ABANDONED THE RIGHT OF WAY

Failure to take account of use of Yellow Portion as car park

20.  There are two separate points raised under Ground 1.  First, the applicant alleges that the Tribunal has completely failed to take into account the fact that the applicant had been making use of the Yellow Portion as a car park since 1963.  It is said that this is the clearest possible course of conduct which was wholly inconsistent with the continued existence of the Government’s right of way, and that the Tribunal wrongly concluded (in §49 of the Determination) that “there [was] absolutely no evidence to show that [the Government] has expressed any intention never to make use of the easement”.

21.  The Tribunal was in my view plainly aware of the evidence.  It recorded in its Determination:

“36. ... part of the yellow portion (the pavement apart) has since 1963, if not earlier, been used for parking cars. It is also, we think, clear that there came a time when rectangular markings were drawn, and at places, holes for inserting bollards and padlocks made, for delineation and controlled use of the parking spaces there.

37. In addition, some rental receipts were produced by the Appellant showing that the management company engaged by them has been collecting rents for the parking spaces in the yellow portion at least since 2005. And presumably because of that the government has been receiving rates for these parking spaces.

38. And we were told at the hearing, and which we accept, that there has apparently been no objection or complaint from owners of the adjoining lots or the government to the use of part of the yellow portion for car parking.”

22.  The Tribunal referred to these matters again in §47 as matters relied upon by the applicant for inferring abandonment of the right of way.  It then went on (in §48) to consider the legal principles governing the abandonment of an easement by conduct.  In particular it cited the following statement of the law by the English Court of Appeal in Gotobed v Pridmore as reported in (1970) 115 SJ 78:

“To establish abandonment the conduct of the dominant owner must have been such as to make clear that he had at the relevant time a firm intention that neither he nor any successor in title should thereafter make use of the easement.”[4]

23.  It seems to me what the Tribunal did in §49 was to state its views on the effect of the evidence of abandonment relied upon by the applicant.  In saying that there was absolutely no evidence to show that the Government had expressed any intention never to make use of the right of way, the Tribunal was saying, as I read the passage, that none of the matters relied upon by the applicant made clear that the Government had an intention not to use the right of way again.

24.  It is wholly improbable that having set out the matters relied upon by the applicant earlier and summarised them (in §47), the Tribunal would have forgotten or ignored them when it came to consider the evidence.  A fair reading of the Determination shows that their conclusion was as I have explained, and that they did not fail to take into account the matters relied upon.  The point as formulated must therefore fail.

25.  Once it is accepted that the Tribunal has not misdirected itself in law and has not failed to consider the matters relied upon by the applicant, that should be the end of the matter as far as this court is concerned, for the decision whether or not abandonment of the right of way was intended is a question of fact: Gale on Easements (19^th ed), §12‑104, approved in Westminster City Council v Dwyer [2014] 2 EGLR 5 at §10.  The court upon judicial review does not substitute its own findings of fact, and will not disturb factual decisions except on limited admissible grounds. 

26.  Though it is not how the case is put in the Form 86, I detect a further argument by Mr Ismail on behalf of the applicant that the Tribunal had misapplied the law.  He argued that given the continuous extensive obstruction for a period of over 50 years, there was clearly abandonment.  He relied on the following passage in Crossley v Lightowler (1866-67) LR 2 Ch App 478, 482 to suggest that, given the prolonged obstruction, it was for the Government as holder of the right of way to show that it did not intend a release:

“... a long continued suspension may render it necessary for the person claiming the right to shew that some indication was given during the period that he ceased to use the right of his intention to preserve it.”

Reliance was also placed on a similar passage in the judgment of Walsh J in Treweeke v Wolseley Road Pty Ltd (1973) 128 CLR 274, 288, which however was a dissenting judgment. 

27.  These are anyhow general statements the effect of which depends on the facts of each case.  As Mason J pointed out in Treweeke v Wolseley Road Pty Ltd at p 302, the question whether there was abandonment is essentially one of fact.  His Lordship continued:

“It has been said, for instance, that mere non-user of a right of way the subject of a grant, even for a long period of time, does not necessarily indicate an intention to abandon (Ward v Ward). Non-user may be referable to the absence of a need to use the right of way and the use of an alternative and more attractive means of access; then it may be thought that the non-user indicates, not so much an intention to abandon the right of way, as a preference for the alternative means of access so long as it remains available.”

28.  In the present case, it is to be recalled that the right of way runs over the entire width of Hei Wo Street which is 40-feet wide.  The Yellow Portion occupies only half of the width of that road.  Within the Yellow Portion about 5 feet of its width was the pavement which had never been used for car parking even on the applicant’s own case. People could clearly pass and repass without hindrance in the pavement and in the remaining half of Hei Wo Street.

29.  Even the car parking area itself within the Yellow Portion was merely blocked by bollards and cars.  There was no total, permanent obstruction.  As the Tribunal said, “people would have simply walked over or through the parking spaces in the yellow portion to go into or out of any of the buildings ...  And if there were cars parked there, one could and would have simply walked round them to get to the other side.”[5]

30.  Given the facts I am unable to see any error of law in the Tribunal’s conclusion in this respect.

Collection of rates

31.  The second point under Ground 1 is that the Tribunal was in error in holding that the collection of rates by the Government for the Yellow Portion was not evidence of the Government’s abandonment of the right of way.

32.  In my view, there is no merit in this point. Although the case was not cited to the Tribunal, its decision was supported and justified by the decision of the Full Court in Re a Compensation Board [1971] HKLR 338.  In that case buildings were erected on agricultural land in breach of the terms of the Government lease.  It was argued, inter alia, that the charging of rates and property tax against the lessee amounted to a waiver of the breach of lease conditions by the Government.  Blair-Kerr Ag CJ held:

“The Commissioner of Rating and Valuation and the Commissioner of Inland Revenue would have been failing in their public duty if they had not charged rates and property tax in accordance with the provisions of Cap 116 and Cap 112 respectively. By so doing, these public officers were not saying: ‘Government now grants you a licence in writing retrospectively to build a house on your agricultural land and you are released from your covenant not to build without first obtaining a licence so to do, with the result that your use of the land is now deemed always to have been in accordance with the terms of the lease.’ They were simply saying, in effect: ‘Whatever breach of covenant may have been committed, it is a fact that those buildings exist and fall to be dealt with under the statute law which it is our public duty to administer.’ ”

33.  In the present case the assessment of rates on the Yellow Portion was no doubt based on the view taken by the Commissioner for Rating and Valuation that it was in the applicant’s actual occupation or possession, which was exclusive for the applicant’s purposes, for a benefit to the applicant, and not for too transient a period: Commissioner of Rating & Valuation v Agrila Ltd (2001) 4 HKCFAR 83.  In assessing the Yellow Portion to rates, the Commissioner for Rating and Valuation could not be interpreted as saying: the Government intends never again to use the right of way over the Yellow Portion.  The considerations for assessment to rates and determining whether there was an implied abandonment of the right of way seem to me to be wholly different.  This was essentially the view of the Tribunal when it said: “Clearly rates are charged by a different department of the government which obviously have a very different thing in mind”.[6]  There is nothing erroneous in law in that approach.

GROUND 2 – IRRATIONALITY IN HOLDING OWNERS OF HOLLYWOOD COURT HAD NOT ABANDONED RIGHT OF WAY

34.  It emerged during the hearing in the Tribunal that there was an arrangement among the owners of Nos 1 – 17 Hei Wo Street, including the owners of Hollywood Court, that every owner (via the Incorporated Owners) would receive a share of the rentals from letting out the car parking spaces in front of Nos 1, 3, 5, 7, 9, 11, 11A, 15 and 17.  This means, inter alia, that the owners of Hollywood Court received a share of the rentals from the letting of the Yellow Portion for car parking.  The precise arrangement was not fully investigated.  No written contract was produced in evidence.  All that were produced were some invoices, receipts and covering letters.  No witness with personal knowledge of the arrangement was called.  No representations were made or evidence given by the owners of Hollywood Court.  On the materials available, the Tribunal considered that what the owners of Hollywood Court had done was “to enter into an arrangement by which they agree to let the yellow portion be used for car parking in return for a share of the rentals collected”.[7]

35.  The owners of Hollywood Court were also entitled to receive a share of the rentals from the car parking spaces in front of Nos 9, 11, 11A, 15 and 17.  But apparently they had not received them for the past 5 years as at the hearing in the Tribunal.  Demands had been issued by the Incorporated Owners of Hollywood Court though no legal proceedings had been commenced to recover the arrears.

36.  The Tribunal concluded that there was no basis whatsoever to say that the owners of Hollywood Court had abandoned their right of way over the Yellow Portion.[8] In my view that decision cannot be faulted.  The burden of proof of abandonment was on the applicant.  It is not something to be lightly inferred.  It has been said that it is “exceedingly difficult to prove” that a person having such a legal right as an easement has abandoned it: In re Yateley Common [1977] 1 WLR 840, 845E.  The Tribunal did the best they could in analysing the arrangement on the basis of the very limited materials provided.  I am unable to see how it could possibly conclude, as Mr Ismail said it should, that the owners of Hollywood Court “permanently surrendered” their right of way over the Yellow Portion in return for a right to a fixed monthly payment.  It may be that the owners of Hollywood Court welcomed the source of income and were content to let the Yellow Portion be used for car parking, but there is no evidence, and no basis to infer, that they intend never to exercise their right of way over the Yellow Portion even if it is not to be used as car parking spaces.  I cannot see how any estoppel could have arisen against them. 

37.  Mr Ismail argues that for as long as the arrangement continues, there is no subsisting right of way over the Yellow Portion in the sense referred to in the Estoree case.  It seems to me, with respect, that this submission confuses the existence of the right with the exercise of it.  By entering into the arrangement, the owners of Hollywood Court seem to me to have agreed, in return for payment, to restrict the exercise of their right of way so as to allow cars to be parked in the Yellow Portion.  When there are cars parked there, they may have to walk between the parked cars or round them or on the pavement, and they cannot drive their cars over that portion.  But that is a far cry from their no longer having a subsisting right of way over the Yellow Portion altogether.

GROUND 3 – IRRATIONALITY IN NOT GRANTING EXEMPTION OR MODIFICATION UNDER S. 42

38.  S 42(1) has been set out in paragraph 10 above.  Determination of an application for exemption or modification under this section requires the Building Authority, or on appeal the Tribunal, first, to form an opinion whether there are special circumstances rendering it desirable to permit modifications of the relevant provisions, and, secondly, to exercise a discretion whether or not to permit such modifications. 

39.  Mr Ismail emphasised that the Tribunal decided in the present case that there was no special circumstance, a question which (he submitted) did not involve any discretion.  I accept that there appear to be two stages in determining an application under s 42.  The first stage, however, is not merely an exercise in identifying special circumstances simpliciter, but special circumstances that render it desirable to permit the modification in question.  Irrespective of whether this amounts to an exercise of “discretion” strictly so called, it seems to me plainly to involve a qualitative assessment and value judgment which admits of a range of tenable opinion.  As is evident from the language of s 42(1), it is the opinion of the Building Authority or, on appeal, the Tribunal, that matters.  It is not for the court in an application for judicial review to substitute its opinion.

40.  Exemption was sought in this case from B(P)R reg 23(2)(a), in order to include the Yellow Portion in the site area calculation despite it is a street within the meaning of that regulation.  In this context it should be noted that the rationale of reg 23(2)(a), as explained by Lord Oliver in Hinge Well Co Ltd v Attorney General [1988] 1 HKLR 32, 43D, is as follows:

“The philosophy which underlies regulation 23 is effectively concealed by the Delphic obscurity with which the regulation is expressed, but in so far as it is possible to discern the purpose of paragraph (2) it appears to exclude from computation for building density purposes such part of the land as cannot be built on in fact ...”

It was a question for the Tribunal whether departure from reg 23(2)(a) in this case, notwithstanding the underlying philosophy, was rendered desirable by some special circumstances.

41.  In R v Hillingdon London Borough Council ex p Puhlhofer [1986] 1 AC 484, 518E, Lord Brightman said:

“Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

In my view this approach is equally applicable here in the context of the Tribunal’s decision under s 42.

42.  A number of matters were advanced by the applicant in the Tribunal as special circumstances and the more relevant ones may be set out follows:

(1) The Yellow Portion would be turned into much wider, upgraded and improved pedestrian passageway and vehicular access road.

(2) Owners of adjoining buildings would benefit from such improved pedestrian passageway and vehicular access road.

(3) The removal of the car parking spaces is a special circumstance because it is desirable to allow more room for vehicles (especially emergency vehicles) to manoeuvre given that the Yellow Portion is at the corner or junction of the two sections of Hei Wo Street which all vehicles must use to get to the area.  It would be an improvement, and the witness from the Building Authority admitted it was “good” and an “improvement”, to have the full width of the Yellow Portion regardless of whether an emergency vehicular access (“EVA”) is required.  This would not only benefit the Site but also Nos 9-17 Hei Wo Street, Hollywood Court, Empire Apartments and State Theatre Building (since a fire engine would be able to park on the Yellow Portion to fight a fire at the State Theatre Building).

(4) The new EVA is a special circumstance because it is not mandatorily required under B(P)R reg 41D.  The applicant could apply for modification of or exemption from reg 41D by providing for enhanced internal fire fighting installations instead.  If such modification or exemption was granted, there would be no such EVA in the Yellow Portion which could continue to be used by the applicant as car parking spaces for income, leaving less room for all vehicles especially emergency vehicles.  That would be less safe generally.

43.  The Tribunal, having considered the arguments, stated that they were not persuaded the circumstances were “special enough to render a departure from reg 23(2)(a) of the B(P)R desirable” and that the objections raised by the Building Authority had substance.  The Tribunal continued to state:

“63. Whilst there would no doubt be some improvement for the neighborhood with the provision of the EVA and the clearing up of the car-parking spaces in the yellow portion, we do not regard them to be of sufficient value to justify an exemption or modification. This is particularly so when one bears in mind that, with the unauthorized building works left on both sides of the 20 feet part of Hei Wo Street, it is doubtful whether a fire engine would be able to go up to where the yellow portion is in the first place. Also, with a new development, we believe that it is highly likely that the developer would want to clear up the parking spaces in front of the building in any event to make the development more attractive. That would have no doubt improved the appearance of the whole thing.

64. Also, we think it is right to say that developers in Hong Kong typically incorporate all sorts of desirable features into their plans so as to attract buyers. But commercial attraction does not necessarily make any given feature either in itself or collectively special.

65. Taking a global view of what is put before us, we are not convinced that the Appellant has made out their case under s 42 of the BO. The BA in our judgment has acted properly when it refused to permit the modification or exemption sought under s 42 of the BO.

66. In arriving at the above conclusion, we are not unmindful of the decision of this Tribunal, differently constituted, in the case of Smart Forture & Ors v Building Authority Appeal Case No 128-96 where the facts bear some resemblance to the present case.  But of course that case can be distinguished on its own facts and, in any event, each case is to be decided on it owns merits and we are not required to take account of exemptions granted in the past.”

44.  On this judicial review, Mr Ismail attacked the Tribunal’s decision in several respects, in particular its decision that the provision of an enhanced EVA was not a sufficient special circumstance.  Before dealing with those arguments, it would be convenient to set out what the relevant regulations were and what the building plans proposed in relation to EVA.

45.  B(P)R reg 41D, under the heading “Emergency vehicular access”, provides:

“(1) Every building shall be provided with an emergency vehicular access which is so designed and constructed as-

(a) to allow safe and unobstructed access of a vehicle of the Fire Services Department to the building; and

(b) to provide for the safe operation of such a vehicle, in the event of a fire or other emergency.

(2) The design and construction of an emergency vehicular access shall be in accordance with such requirements as may be specified by the Building Authority from time to time having regard to the intended use of the building.

(3) The Building Authority may exempt a building from any or all of such requirements on design and construction if the Building Authority is satisfied that compliance with the requirement or requirements is-

(a) impracticable having regard to the topographical features of the area on which the building is situated; or

(b) unwarranted on the ground that the purpose for which the building is to be used constitutes a low fire risk.

(4) A building in respect of which an exemption under paragraph (3) is in force shall comply with such other fire safety measures as may be specified by the Building Authority for the purpose of ensuring that the safety of the building would not be prejudiced by the exemption.”

46.  So far as relevant here, the requirements that may be specified by the Building Authority from time to time, as referred to in reg 41D(2), are those contained in the “Code of Practice for the Provision of Means of Access and Firefighting and Rescue Purposes” issued by the Building Authority in 2004 (“the 2004 Code”).[9]

47.  The requirements in the 2004 Code that are relevant are: (i) an EVA should have a minimum width of 6m; (ii) it should allow access with a turning circle of 26m in diameter; and (iii) there should be turning space for fire appliances at all dead-end EVA.

48.  In the building plans submitted by the applicant, there was an access road leading up from King’s Road with a width of 6.1m.  The Yellow Portion was cleared of parked cars.  As the access road joins Hei Wo Street, there was a turning radius of 13m.  Part of the current location of No 1 Hei Wo Street (Lot 7527) was not to be built upon, providing a “hammerhead driveway” and manoeuvring space for fire engines to reverse into and come out.  The annotation under that driveway stated: “Essential for Fire Appliance Vehicle for Satisfying EVA Requirements (B(P)R41D”.

49.  Mr Ismail argued, first, the Tribunal was irrational in saying it was doubtful whether a fire engine could get to the Yellow Portion from King’s Road.  He relied on the certificate obtained by the applicant from the Fire Services Department (“FSD”).  The FSD’s response, however, is simply a response based on an examination of the plans.  The letter from the FSD stated the “amended plans [had] been examined and found satisfactory” and that a Fire Services Certificate would be issued.  That certificate was a basic requirement for the approval of building plans, without which the Building Authority may refuse approval under s 16(1)(b) of the Ordinance.  The Tribunal’s concern, in contrast, arose from the actual ground conditions, in particular, the UBWs (especially shop front extensions) on both sides of the access road, which were not shown on the building plans.  There is therefore in my view no inconsistency between the Fire Services Certificate and  the  Tribunal’s reasoning.  I do not think that the certificate renders the Tribunal’s decision irrational, or that Tribunal ignored the certificate.

50.  Mr Ismail also submitted the Tribunal wrongly assumed all fire engines are of the same length, width and height.  With respect, this is not a fair criticism.  What the Tribunal said has to be put in context.  The building plans showed the access road to be 6.1m wide and the fire appliance to be 5m wide.  It was assumed in the building plans that the hammerhead driveway was “essential” for providing turning space for fire engines.  The applicant’s contention that the building plans would bring about an improvement was based on the fact that, but for using the Yellow Portion to widen the EVA and using part of Lot 7527 to provide a hammerhead driveway, there would not be sufficient turning radius for fire engines to go from the access road into Hei Wo Street, and there would not be enough space for fire engines to turn around.  It was clear therefore that the advantage advertised was, in essence, improved access for large fire engines.  This was also the basis on which the witnesses were examined in the Tribunal (see transcript, pp 408-410, 413-414, 428, 436-437).

51.  Mr Ismail submitted that there are fire engines in Hong Kong no bigger than an ordinary saloon car.  It appears that no such evidence was put before the Tribunal but I am prepared to assume that to be the case.  He submitted that these small fire engines could no doubt go through the access road into Hei Wo Street and therefore the Tribunal was wrong in doubting if a fire engine could reach the Yellow Portion. This submission seems to me to miss the point because, on Mr Ismail’s submission, such small fire engines would be able to gain access to the area, negotiate the bend and turn around, like private cars, even without the redevelopment and with the Yellow Portion clogged up by parked cars.  Read in context, the Tribunal was dealing with the supposed advantage that would be brought about by the enhanced EVA, and that plainly related to large fire engines.

52.  Given the UBWs existing on both sides of the access road, could the Tribunal rationally doubt whether a (large) fire engine could get through?  The applicant’s authorised person Mr Kwan appears to have accepted in cross-examination that there would not be the minimum width to enable a fire engine to pass.[10]  The Building Authority’s witness Ms Yu said that with the UBWs along the access road, emergency vehicles could not gain access to the proposed building, and she thought that eventually the Building Authority would not even be able to issue an occupation permit.[11]  Photographs of the UBWs were put before the Tribunal.  Further, the Tribunal, so set up by statute as generally to be a specialist professional body and in this case with a surveyor and an architect as members, had itself made a site visit in the course of the appeal.  I do not think it can be said that their conclusion in this respect was irrational or reached with no evidence.

53.  Mr Ismail also submitted the Tribunal wrongly assumed that the UBWs cannot be removed at all by the FSD or other authorities.  This is not a valid argument.  There was no clear indication to the Tribunal as to whether and, if so, by whom, when and how the UBWs would be removed.  The relevant Form BA16 submitted by the applicant stated that “all the unauthorised structures within the captioned lots [ie the 4 Lots]” would be removed.  On its face this would include the UBWs along the access road so far as they encroach upon Lot 7527 since the access road is part of Lot 7527.  But the applicant’s authorised person said in his evidence that what was meant by the applicant was simply that the unauthorised structures in the existing buildings at Nos 1, 3, 5 and 7 Hei Wo Street would be removed as a consequence of the demolition of those buildings.  The applicant would not itself remove the UBWs along the access road and would rely on the Building Authority to take enforcement action.  Since it was the applicant who wished to obtain modification under s 42, and it was the applicant who was advancing the proposed EVA as a special circumstance, it seems to me it was incumbent the applicant to show that the EVA could actually be used.  On this basis, the Tribunal seems to me simply to have recognised the existing state of affairs as a fact.  The Tribunal did not assume that the UBWs could not, or would never, be removed by the Building Authority or other authorities, but the Government has its own enforcement policies and priorities. There was simply nothing to demonstrate to the Tribunal that the UBWs would be removed.

54.  Mr Ismail submitted that the Tribunal acted irrationally in manifestly undervaluing the benefit of the proposed EVA simply on the basis of a perceived doubt that fire engines may not be able to get access.  This seems to be to me a matter for the Tribunal.  It can be argued that attaching manifestly excessive or manifestly inadequate weight to relevant matters can be irrational, but in the circumstances of this case I do not think it could be said to be irrational for the Tribunal to reach the conclusion it did.

55.  The applicant also attacked the next reason given by the Tribunal in §63 of its Determination, namely, that with a new development, it is highly likely that the developer would clear the Yellow Portion of parking spaces in any event to improve appearances and make the development more attractive.

56.  It was not in dispute that in order to provide an EVA that is compliant with the 2004 Code (ie 6m wide, with turning circle 26m in diameter), the Yellow Portion needs to be cleared of obstruction. However it was also common ground that to comply with the law, the applicant could have tried to obtain a modification of or exemption from the requirement of such an EVA.[12]  This would require the proposed building to have enhanced internal fire safety measures such as enhanced means of escape, fire resisting construction, fire service installations (eg sprinkler systems and water tanks) or a combination of these measures.[13]  According to the evidence, this kind of modification was not uncommon.

57.  What the Tribunal thought was, therefore, that it was highly likely that the applicant would in any event clear the Yellow Portion, rather than continue to rent it out for car parking and apply for exemption from B(P)R reg 41D with enhanced internal fire safety measures.

58.  Mr Ismail criticised this reasoning.  He submitted that the basis of the Tribunal’s belief is flawed, and that it is more likely the converse is true.  A developer who is unable to include the Yellow Portion in the site area calculation is, he submitted, much more likely to retain the car parking spaces on the Yellow Portion, because a development with car parking spaces is more commercially attractive than one without and the spaces would also generate regular income.

59.  For his part, Mr Pao retorted that it is fanciful to suggest that the car parking spaces would remain at the front of a new modern high‑rise residential development.  The Tribunal’s observation was completely logical, common sense, and at least not irrational.

60.  The Ordinance provides for the decision under s 42 to be taken by the Building Authority, subject to an appellate procedure through the Tribunal, which “may make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such other order as it thinks fit”: s 50.  In contrast, this court only supervises the legality of the Tribunal’s decision.  I remind myself that the ground put forward for judicial review here is Wednesbury unreasonableness or irrationality.[14]  The issue for me is not whether I agree with the Tribunal’s decision or accept it as correct, but whether its determination lies outside the wide spectrum of rational decision and has thereby become unlawful.  As Hartmann J stated in the Estoree case at §58:

“This Court is not an appellate court. It does not evaluate the strengths and weaknesses of the evidence. The assessment of relevant facts and the weighing of relevant considerations are a matter for the Appeal Tribunal, more especially as the Tribunal is a specialist professional body, chaired in this case by a legally qualified chairman with an engineer and an architect as members. Only on the basis of Wednesbury unreasonableness may the Tribunal’s determination be set aside if it is found otherwise to be correct in law.”

61.  Unreasonableness in this sense is a strong word.  It denotes decisions so devoid of any plausible justification that no reasonable body of persons could have reached them (London Borough Council v Greater London Council [1983] 1 AC 768, 821B) or unreasonableness verging on an absurdity (ex p Puhlhofer, supra, at 518D).  I ask myself whether the Tribunal’s observation can be thus characterised, and the answer, in my judgment, is that it cannot.  It is a specialist tribunal that has acquired through the appeal an intimate knowledge of the Site and its environs, and of the design, features and character of the proposed building.  Its reasoning is not perverse, nor can it be said to be an “unsupported belief”. 

62.  Mr Ismail asserts that a development with car parking spaces would be more attractive to buyers but it has to be noted that the parking spaces here are, ex hypothesi, precarious because the land is subject to subsisting third parties’ rights of way.  They can only be used so long as the holders of the right of way permit it.[15]  They are not parking spaces that can be assigned separately or as appurtenances to flats; nor can potential flat-buyers in the proposed building be assured of their continued availability. As for the submission that the spaces would be a source of regular income, a complete calculus would need to take account of the installation and maintenance cost of the enhanced internal fire safety systems that need to be put in place as a substitute for a compliant EVA, even assuming modification of reg. 41D would be granted.  With respect, Mr Ismail’s submission has not come near to providing a valid basis for finding the Tribunal’s decision to be irrational.

63.  Finally, Mr Ismail attacked paragraph 64 of the Determination.  He submitted the Tribunal irrationally undervalued the various desirable features in the building plans on the basis that they may benefit the developer in making the development more commercially attractive.  In my view the attack is misconceived.  On a fair reading, the Tribunal was simply saying that the features enhancing commercial attraction of the development do not necessarily constitute circumstances special enough for the purposes of s 42.  It did not say that they are precluded from being special circumstances because they also benefit the developer.  There is nothing to show that the Tribunal had ignored the public benefit of any features for that reason.

64.  I do not think that it is useful for the applicant to refer, as it did, to other decisions of the Tribunal in relation to other developments and argue that the Tribunal was not being consistent.  Inconsistency is not a ground mentioned in the Form 86 in this case.  In any event every site has its own features and each development is different.  The fact that the provision of an enhanced EVA in one set of building plans relating to some other site was deemed a special circumstance justifying modification of reg 23(2)(a) does not mean that the Building Authority or Tribunal should grant modification in this case.  Still less does it mean that its refusal to grant it here is irrational.  As s 42(2) of the Ordinance makes clear:

“Every application for an exemption under this section ... shall be considered on its own merits by the Building Authority who shall not be required to take account of exemptions granted in the past.”

DISPOSITION

65.  For the above reasons the application for judicial review is dismissed.

66.  There will be an order nisi that the applicant do pay the costs of the Building Authority (as interested party).

67.  Finally, I should not leave this case without commenting on the exhibits and hearing bundles.  Regrettably a great deal of obviously unnecessary documents have been put by the applicant’s team into the exhibits to the supporting affirmation and – worse still – into the hearing bundles.  What Reyes J said in Lindenford v Town Planning Board (unrep, HCAL 59/2011; 5 September 2012) at §§73-75 about bundles has been completely ignored in this case.  Had the applicant been successful I would for that reason have deprived it of at least part of the costs.  As it is, there may still be much to answer for when it comes to costs even as between solicitor and own client.