CHAO WEI TING RONNA v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 2646/2018

[2019] HKCFI 2950

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2646 OF 2018

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J U D G M E N T

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INTRODUCTION

1.  This is the rolled-up hearing of the Applicant’s application for (i) leave to apply for judicial review of the Appeal Tribunal (Buildings) (“the Tribunal”)’s decision dated 3 September 2018 (“the Appeal Decision”), and (ii) the substantive application for judicial review if leave to apply for judicial review is granted.

2.  In what follows, references to (i) “Section” shall be to the Buildings Ordinance, Cap 123, and (ii) “Regulation” shall be to the Building (Planning) Regulations, Cap 123F.

BASIC FACTS

3.  The Applicant is the registered owner of the site known as New Kowloon Inland Lot No 5271 located at No 2 Beacon Hill Road, Kowloon (“the Site”).

4.  Prior to the acquisition of the Site by the Applicant, the Building Authority (“the BA”) had approved a set of building plans submitted by the Applicant’s predecessor-in-title for a proposed residential building on the Site on 17 September 2010 (“the 2010 Plans”). It would appear that the BA accepted and approved the 2010 Plans on the basis that the Site was a class A site based on certain information provided by an authorized person acting for the Applicant’s predecessor-in-title, the details of which it is not necessary to set out in this judgment.

5.  Pausing here, it may be noted that:

(1) A “class A site” is defined in Regulation 18A(1) to mean “a site … that abuts on one specified street not less than 4.5 m wide or on more than one such street.”

(2) Regulation 19(1) provides that the maximum site coverage permitted in respect of a building or buildings on a class A site, class B site or class C site shall be determined in accordance with Regulation 20.

(3) Regulation 19(2) provides that the maximum plot ratio permitted in respect of a building or buildings on a class A site, class B site or class C site shall be determined in accordance with Regulation 21.

(4) Regulation 19(3) provides that the height of a building or buildings on a site that is not a class A site, class B site or class C site, and the maximum site coverage and maximum plot ratio permitted in respect of such a building or buildings, shall be determined by the BA.

6.  On 7 April 2014, the Applicant, through an authorized person, submitted[1] another set of building plans (“the Appeal Plans”) for a proposed 2-storey residential building on the Site to the BA for approval.  According to the Applicant, the Appeal Plans were prepared on the basis that the Site was a class A site.  However, this premise was not stated or indicated on the Appeal Plans.  The development calculation on the Appeal Plans showed (i) site area of 1,322.93 m² (excluding 379.97 m² in view of certain lease restriction), (ii) total gross floor area of 1687,8 m², (iii) plot ratio of 1.2758, and (iv) “coverage area for domestic” of 882.1 m².

7.  By a letter dated 6 June 2014 (“the Disapproval Letter”), the BA disapproved the submission of the Appeal Plans (“the Refusal Decision”).

(1) §2 of the Disapproval Letter stated that the submission of the Appeal Plans had been checked under the “curtailed check system” under Practice Note for Authorized Persons, Registered Structural Engineers and Registered Geotechnical Engineers (PNAP) ADM-19 (“ADM-19”), and the submission had been found to be “fundamentally unacceptable” and was disapproved for the reasons detailed in §7 thereof.

(2) §7 of the Disapproval Letter stated that the Appeal Plans were disapproved under the Buildings Ordinance on the grounds as detailed in Appendix A attached thereto (“Appendix A”).

(3) §8 of the Disapproval Letter stated that the Appeal Plans were not approvable under the Buildings Ordinance as fundamental issues had not been resolved, and the procedures under PNAP ADM-14 (“ADM-14”) for making minor amendments to the plans were not applicable.

8.  Appendix A itemized a number of “fundamental” issues which the BA considered should be resolved by the Applicant’s authorized person, which for convenience have been referred to as the “Fundamental Non-Technical Grounds” and “Fundamental Technical Grounds” in these proceedings.

9.  The Fundamental Non-Technical Grounds concerned the classification of the Site and the permissible intensity of development upon the Site.  In particular, the following was stated under Item (A)(1)(b) in Appendix A:

(A) Density	B.O. Section	Yes	No	Remarks
(1) Site Parameters	BO s16(1)(d)		X
(b) Site classification correct? Need for B(P)R 19(3) determination?				“The proposed site coverage and plot ratio of the development are not acceptable under B(P)R 19(3).  In this connection, it is noted from the Lands Department that your proposal had been rejected under the lease for the breach of, inter alia, the ‘single private dwelling house’ (which extended beyond the coloured pink area) restriction[2] and there was no application for lease modification.”

10.  The Fundamental Technical Grounds related to the following matters:

(1) accountability of the water heater room at the roof level for the purpose of calculation of the gross floor area under Regulation 23(3)(a);

(2) clarification of the headroom of the skylight at the roof level;

(3) justification of the size of the pump room on the roof;

(4) clarification of the site coverage of the proposed development;

(5) acceptability of the overall plot ratio of the proposed development;

(6) provision of an emergency vehicular access to serve at least one major façade of the building; and

(7) compliance with Regulations 30 and 31 in respect of the provision of natural lighting and ventilation for the habitable rooms and kitchens.

11.  On 26 June 2014, the Applicant filed a Notice of Appeal against the Refusal Decision with the Secretary to the Tribunal pursuant to Section 47 (“the Appeal”).  On 15 May 2017, the Applicant filed her Amended Statement of Particulars in support of the Appeal.  The grounds of appeal were set out in Section E of the Amended Statement of Particulars.

(1) In respect of the Fundamental Technical Grounds[3], the Applicant contended that the BA acted unfairly and unreasonably in refusing to approve the Appeal Plans because the relevant issues could and should have been dealt with through negotiations using the practice or scheme referred to in ADM-14[4].  Pausing here, it should be noted that the Applicant did not raise any specific arguments in the Amended Statement of Particulars that the BA’s views in respect of the Fundamental Technical Grounds were wrong or incorrect.

(2) In respect of the Fundamental Non-Technical Grounds, the Applicant contended that:

(a) The Site was a class A site as defined in Regulation 18A(1) because it abutted on Beacon Hill Road which was a specified street not less than 4.5 m wide[5].

(b) Further or alternatively, in determining that the Site was not a class A site, the BA failed to take into account the previous determination or acceptance that the Site was a class A site, and/or the Site abutted on Beacon Hill Road, and/or failed to act consistently, and/or defeated the Applicant’s reasonable or legitimate expectation that the Site was a class A site.  These contentions were grounded in the BA’s previous approval of the 2010 Plans and the fact that the Applicant, allegedly, purchased the Site on the basis that it was a class A site in reliance on the 2010 Plans[6].

(c) The BA was wrong in law to take into account the Government lease, in particular the alleged breach of the “single private dwelling house” restriction therein, and the absence of any application for lease modification, because the contravention of a lease was not a ground for disapproval under Section 16[7].

(d) If the Site was not a class A site, the BA was, under Regulation 19(3), duty bound to make a determination of the maximum site coverage and maximum plot ratio permitted for a building on a site that was not a class A, Class B or Class C site, but the BA failed to make such determination[8].

12.  The Applicant sought, inter alia, the following relief from the Tribunal:

(1) an order quashing the BA’s “Decisions”[9] contained in the Disapproval Letter;

(2) an order allowing the Appeal;

(3) a declaration that the Site is a class A site as defined in Regulation 18A(1); and

(4) as an alternative to (3) above, in the event that the Tribunal determined that the Site was not a class A site, a declaration of the maximum site coverage and maximum plot ratio permitted under Regulation 19(3)[10].

13.  On 7 September 2017, the BA filed the Respondent’s Amended Representations.

(1) In respect of the Fundamental Technical Grounds, the BA argued that –

(a) The various items of disapproval were fundamental issues covered by ADM-19, the rectification of which would necessitate substantial amendments to the building design, reassessment of the overall gross floor area, plot ratio and site coverage calculations, and re-checking of the proposed design for compliance with the Buildings Ordinance and its subsidiary regulations regarding prescribed windows.

(b) According to ADM-14, the practice of making minor amendments to building plans by authorized persons was allowed to facilitate the processing of building plans which were considered by the Buildings Department as approvable under the Buildings Ordinance subject to minor amendments.

(c) Since substantial amendments would be required to rectify the contraventions identified in the Disapproval Letter, the practice of allowing authorized persons to make minor amendments to building plans under ADM-14 did not apply to the Appeal Plans[11].

(2) In respect of the Fundamental Non-Technical Grounds, the BA also gave detailed responses which it is not necessary to set out in this judgment[12], save to point out the following:

(a) The BA did not accept that the Site was a class A site, because there was a strip of government land of approximately 1.4 m to 2 m wide between the Site and the pavement of Beacon Hill Road which was currently used as a flower bed, and thus the Site did not abut on a specified street of not less than 4.5 m wide.

(b) The BA considered that the previous acceptance or approval of the Site as a class A site under the 2010 Plans could not operate to grant any exemption from or permit any contravention of any of the provisions of the Buildings Ordinance or of any other enactment by virtue of Section 14(2)(c).

(c) The BA further considered that the Appeal Plans were not “approvable” because, amongst other things, the proposed development shown on the Appeal Plans would be in breach of the “single private dwelling house” restriction in the relevant Government lease.  Without a viable building proposal, the BA could not assess factors such as means of access/escape, emergency vehicular access, traffic impact, servicing strategy, drainage capacity, development restrictions under OZP and the Government lease, etc referred to in Practice Note 28 required for the determination of the maximum site coverage and maximum plot ratio permitted in respect of a building or buildings on the Site under Regulation 19(3), and thus the site coverage and plat ratio for the proposed building as shown on the Appeal Plans should not be accepted.

14.  The substantive hearing of the Appeal was set down to be heard before the Tribunal commencing on 6 February 2018 (with 5 hearing days reserved).  However, in the Applicant’s Opening Submissions filed on 30 January 2018, at §5, the Applicant gave notice that she would no longer challenge the BA’s decision to refuse to approve the Appeal Plans on “other grounds”, and would not be seeking any order to quash the Refusal Decision or allow the Appeal (“the Concession”).  At §6 of the Applicant’s Opening Submissions, the Applicant stated that she would seek the following from the Tribunal:

(1) a determination or declaration that the Site was a class A site; and

(2) as an alternative, in the event that the Tribunal determined that the Site was not a class A site, a determination or declaration of the maximum site coverage and maximum plot ratio permitted under Regulation 19(3)[13].

15.  The reference to “other grounds” in §5 of the Applicant’s Opening Submissions is a reference to the Fundamental Technical Grounds[14].

16.  In response, the BA contended that by reason of the Applicant’s decision not to seek any order from the Tribunal to (i) quash the Refusal Decision, or (ii) allow the Appeal, the Applicant was no longer a person “aggrieved” by any decision of the BA for the purpose of Section 44(1), and the Tribunal no longer had jurisdiction to entertain the Appeal (“the Jurisdiction Issue”)[15]. On 6 February 2018, the BA filed written submissions on the Jurisdiction Issue (“the BA’s Submissions (Jurisdiction)”).

17.  On 8 February 2018, Woo Kwan Lee & Lo (“WKLL”) on behalf of the Applicant sent a letter to the Tribunal seeking to withdraw the Concession.  The following was stated in WKLL’s letter of 8 February 2018 –

“It is respectfully submitted that the BA’s submission (viz. because of the position stated in paragraph 5 of the Appellant’s Opening Submissions, the Tribunal has no jurisdiction to hear and determine the Appeal) is misconceived and wrong in law for the reasons set out in the Appellant’s Submission on jurisdiction.

Nonetheless, in order to avoid the probable delay which will inevitably be caused by litigating the issue before the Tribunal and potential judicial review of the Tribunal’s determination on the issue, and given that the Appeal has dragged on since 2014 due to various procedural challenges taken by the BA, we have been instructed to continue with the challenge of the BA’s decision to refuse to approve the Appeal Plans on the fundamental technical grounds set out in paragraph 11 of the Amended Statement of Particulars (‘ASOP’) and to seek full relief set out in paragraph 15 of ASOP.

In order to be fair to the parties and to dispose of the Appeal expeditiously without any further delay, we respectfully seek the following directions:

1 leave to file a supplemental statement from Mr Yung Chi Kin, the Authorized Person to specially address the fundamental technical grounds as stated in paragraph 11 of the ASOP;

…..

2 leave to the BA to file evidence on the fundamental technical grounds;

3 the hearing be adjourned; and

4 new hearing dates (with 5 days) be fixed in consultation with Counsel’s diaries.”

On the same date (ie 8 February 2018), the Applicant also filed written submissions on the Jurisdiction Issue.

18.  The Applicant’s attempt to resile from the Concession was objected to by the BA (“the Concession Issue”).  The BA filed written submissions on the Concession Issue dated 8 February 2018 (“the BA’s Submissions (Concession)”), and the Applicant filed written submissions on that issue dated 9 February 2018.

19.  Between 6 and 9 February 2018, the Tribunal heard the parties’ oral submissions on both the Jurisdiction and Concession Issues.  On 9 September 2018, the Tribunal handed down its decision (“the Written Decision”), holding that:

(1) the Tribunal would not allow the Applicant to resile from the Concession and continue to challenge the Refusal Decision on the Fundamental Technical Grounds; and

(2) the Tribunal did not have jurisdiction to hear and entertain the Appeal since the Applicant had confirmed that she no longer sought an order allowing the Appeal or an order quashing the Refusal Decision[16].

20.  The Tribunal’s reasons for refusing to allow the Applicant to resile from the Concession were set out in §§33-37 of the Written Decision, the material parts of which stated as follows (omitting references to hearing bundles):

“33. The Appeal Tribunal is of the view that any attempt to open for the Appellant to resile from the Concession is misconceived, unfair and wrong in law. It would amount to an abuse of process because the only reason to ‘resurrect’ the abandoned argument is to circumvent the dispute on the Appeal Tribunal’s jurisdiction. Reasons for that are as follows:

(1) the Concession is made in clear and unambiguous terms on behalf of the Appellant with the benefit of legal representation, and made at a very mature stage in the appeal proceedings.

(2) there is no suggestion that the Concession was made by reason of mistake or inadvertence. The Appellant, who is legally advised and with the benefit of input from her AP and experts, had clearly considered that there was simply no merit in the challenge. At §20 of Yung’s witness statement, he stated that ‘only the fundamental non-technical grounds are relevant in this Appeal’ which confirms that he did not consider that there was any merit in the challenge on those grounds stated in §11 of the ASOP.

(3) there is no good explanation for the purported withdrawal of the concession. The only ostensible reason is that the Appellant wishes to ‘short circuit’ the jurisdiction argument. But this is not a valid reason because the Appellant cannot and does not suggest that there is any independent merit in the underlying challenge. The revival of the challenge is clearly made for an ulterior motive which is not related to the merits of the challenge. This is a classic case of an abuse of process, which the Appeal Tribunal should not permit.

(4) even at this late stage in the appeal proceedings, the Appellant has simply filed no evidence to substantiate its purported challenge against the BA’s grounds stated in §11 of the ASOP. Therefore, it cannot be suggested that the Appellant will suffer any meaningful prejudice by requiring her to adhere to her concession.

(5) allowing the withdrawal of the Concession will cause prejudice to the BA in that (i) it will be deprived of a proper determination on the jurisdiction question; and (ii) cause further delay in the appeal proceedings in view of the Appellant’s request to file further evidence.

…..

35. The Appeal Tribunal does not agree with the Appellant that ‘the basis of the challenge is that the BA should not have disapproved the Appeal Plans on the fundamental technical grounds but to use the minor amendments procedure’ stated in §2 of the Appellant’s Submissions on Reviving her Challenge of the BA’s Decision. Obviously, Site Classification issue and BPR 19(3) issue are not the only fundamental issues of disapproval relied upon by the BA, but all others as stated in Appendix A to the Disapproval Letter dated 6 June 2014 (Appendix A) are also the fundamental issues of disapproval relied upon by the BA.

36. If the Appellant is allowed to resile from the Concession, it would obviously prejudice to the BA since this appeal was commenced from 26 June 2014 and the full hearing for this appeal has been fixed as scheduled on 6, 8, 9, 27 and 28 February 2018 for almost a year ago. In this respect, a new direction need to be given by the Appeal Tribunal to all parties concerned and a new hearing for this appeal need to be re-fixed again and therefore, delay should be expected. In fact, the Concession issue should not be raised out by DoJ if no AOS §5 was included into the Appellant’s Opening Submissions filed on 30 January 2018.

37. For all above reasons, the Appeal Tribunal determines not to allow to the Appellant to resile from the Concession and continue to challenge the BA’s decision on the grounds stated in §11 of the ASOP.”

21.  The Tribunal’s reasons for holding that it had no jurisdiction to entertain the Appeal were set out in §§44-59 of the Written Decision, the material parts of which stated as follows (omitting references to hearing bundles):

“45. The Appeal Tribunal opines that the decision subject to challenge is a single refusal by the BA under section 16(1) of the Buildings Ordinance to approve the Appeal Plans under the Disapproval Letter dated 6 June 2014.

46. So, if the Appellant no longer seeks an order allowing this appeal or an order quashing the decision of the BA to refuse to approve the Appeal Plans, the Appellant must be taken to accept the validity of the decision of the BA to refuse to approve the Appeal Plans. It is axiomatic that the Appellant cannot dispute that the Appeal Plans were validly disapproved by the BA under section 16(1).

47. Section 44(1) of the Buildings Ordinance provides that:

‘A person aggrieved by any decision made by the Building Authority in the exercise of a discretion conferred on him under this Ordinance may, except where this Ordinance provides otherwise, appeal from that decision in accordance with this Part and regulations made under section 38(1B)’.

48. Section 50(2) of the Buildings Ordinance provides for the powers of the Appeal Tribunal in the determination of an appeal. These powers can only be exercised where … the Appeal Tribunal is entitled to entertain the appeal. The powers include making an order ‘confirming, varying or reversing’ the decision that is appealed against, or substituting therefore such other decision or making such other order as it thinks fit. Section 50(2) of the Buildings Ordinance does not provide for the powers of the Appeal Tribunal to give advisory judgments: see §11of the Appellant’s Submissions on Jurisdiction.

49. By reason of the Appellant’s unequivocal acceptance that the Appeals Plans were validly disapproved by the BA, the Appellant is no longer a person aggrieved by any decision of the BA under section 44 (1).

50. Under section 44(1), an appeal only lies against a decision made by the BA. The Appeal Tribunal does not agree with the Appellant’s view that the decision under BO s.16(1)(d) and the 2 decisions which the Appellant is aggrieved by, is ‘any decision’: see §9(3) of the Appellant’s Submissions on Jurisdiction. The Appeal Tribunal is of the view that those are the reasons or grounds relied upon by the BA in support of a decision and not ‘any decision’.

51. Further, the Appeal Tribunal does not agree with the Appellant that although the BA’s decision to refuse to approve the Appeal Plans is a single refusal, it involved different decisions made by the BA in the exercise of his discretion under BO s.16(1)(d), BO s.16(1)(i) and BO s.16(1)(j): see §7 of the Appellant’s Submissions on Jurisdiction. The Appeal Tribunal does maintain the view that those are the reasons or grounds relied upon by the BA in support of a decision and not ‘different decisions’.

52. The statutory language speaks of ‘an appeal from that decision’ in specific, clear and express terms. In the present case, the relevant decision was the BA’s decision dated 6 June 2014 to refuse to approve the Appeal Plans as being fundamentally unacceptable. The Ordinance does not provide for an avenue of appeal against the reasons or grounds relied upon by the BA in support of a decision.

…..

55. By parity of reasoning, the word ‘decision’ under section 44(1), understood in the context of a section 16(1) case, must refer to the actual result of the BA decision whether to approve the submitted buildings plans, and not the underlying reasons or grounds for such decision.

56. The Appeal Tribunal would not grant a declaration or determination to Appellant that the Site is a Class A site. This was simply one of the underlying reasons or grounds on which the BA disapproval, the validity of which is no longer challenged, was based. The function of the Appeal Tribunal is not to provide advisory judgments to the parties. The role of the Appeal Tribunal is to deal with substantive appeals based on a real set of plans submitted to, and considered by, the BA.

…..

58. With respect to the challenge relating to BPR 19(3), the Appellant has never applied for a determination by the BA to be made under BPR 19(3). The Appellant has all along, during the approval process and in these proceedings, maintained that the Site is a Class A site. Indeed, that remains its primary position in this appeal. The Appellant cannot use these appeal proceedings as a platform for sidestepping the BA as the primary decision maker as regards BPR 19(3).

59. For all above reasons, since the Appellant confirmed that she no longer seeks an order allowing this appeal or an order quashing the decision to refuse to approve the Appeal Plans, the Appeal Tribunal determines that the Appeal Tribunal has no jurisdiction to hear and entertain this appeal.”

22.  In passing, I should mention that on 3 October 2014, the Applicant submitted, on a without prejudice basis, another set of building plans (“the October 2014 Plans”) for a proposed residential building on the Site to the BA for approval.  The October 2014 Plans were prepared on the basis that the Site was not a class A site.  On 20 November 2014, the BA approved the October 2014 Plans.

23.  Subsequently, certain amendments to the October 2014 Plans were submitted to the BA for approval, and the BA approved the amendments on 21 May 2018 (“the 2018 Plans”).  The building works for the residential development on the Site in accordance with the 2018 Plans have been, or are currently being, carried out.

APPLICATION FOR JUDICIAL REVIEW

24.  On 22 November 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Appeal Decision.  A total of nine grounds of judicial review are raised in the Form 86:

(1) Grounds 1 to 4 relate to the Tribunal’s determination regarding its jurisdiction, or lack of jurisdiction, to entertain the Appeal;

(2) Grounds 5 to 8 relate to the Tribunal’s refusal to allow the Applicant to resile from the Concession; and

(3) Ground 9 concerns a complaint that substantial parts of the Written Decision were copied verbatim from the BA’s Submissions (Jurisdiction) and the BA’s Submissions (Concession), which the Applicant argues constitutes an abdication of responsibility on the part of the Tribunal, breach of the rules of natural justice, infringement of Article 10 of the Hong Kong Bill of Rights, and a failure to ensure that justice is seen to be done.

25.  As stated in §3 of the Applicant’s Submissions dated 23 July 2019, three issues arise for determination in this application for judicial review, namely –

(1) Does the Tribunal have jurisdiction to hear and determine an appeal against the BA’s decision refusing to approve buildings plans (submitted to him for approval under Section 14) made in the exercise of his discretion under Section 16(1) where not all of the grounds in Section 16(1) relied on by the BA are challenged and the appellant is not seeking an order to quash the decision to refuse to approve the plans and an order allowing the appeal but is seeking some other order such as a determination or declaration (Question 1)?

(2) If the answer to Question 1 is “no”, ie the Tribunal does not have jurisdiction, was the Tribunal wrong in refusing to allow the Applicant to challenge the BA’s decision refusing to approve the Appeal Plans on all of the grounds in the Disapproval Letter on the facts of the present case (Question 2)?

(3) Did the Tribunal abdicate its statutory function to hear and determine the Jurisdiction Issue and the Concession Issue (Question 3)?

QUESTION 1: JURISDICTION

26.  On behalf of the Applicant, Mr Ismail argues that the answer to Question 1 is “yes” because –

(1) Section 44(1) gives a statutory right of appeal to any person aggrieved by “any decision made by the Building Authority in the exercise of a discretion conferred on him under the Ordinance” [emphasis added], and Section 50(2) refers to the Tribunal’s power in respect of “the decision appealed against”.  The BA’s decision to rely on any of the grounds for disapproval in Section 16(1)(a) to (j) in coming to the decision to refuse to approve plans submitted to him for approval is such a decision;

(2) the Tribunal misinterpreted Section 44(1); and

(3) the Tribunal misinterpreted Section 50(2)[17].

27.  The principal argument underlying the Applicant’s case in respect of Question 1 is a distinction drawn between:

(1) a decision to refuse to approve plans, ie the refusal itself; and

(2) a decision to rely on a particular ground for disapproval in Section 16(1)[18].

According to Mr Ismail, the BA made a series of decisions to rely on different grounds for disapproval in Section 16(1) in coming to the decision to refuse to approve the Appeal Plans, and each such decision is a “separate and freestanding” decision[19] for the purpose of Section 44(1) which can constitute, on its own, a proper subject matter of an appeal under that section.

28.  In order to determine Question 1, it is necessary to have a closer look at the statutory regime governing appeals to the Tribunal contained in Part 6, entitled “Appeals”, of the Buildings Ordinance.  The following provisions are relevant for the purpose of the present discussion.

29.  Section 44(1) states as follows –

“A person aggrieved by any decision made by the Building Authority in the exercise of a discretion conferred on him under this Ordinance may, except where this Ordinance provides otherwise, appeal from that decision in accordance with this Part and regulations made under section 38(1B).”

30.  Section 47 provides that a person exercising the right of appeal conferred by Section 44 –

“shall give notice of appeal in the prescribed manner, appealing from the relevant decision, to the Secretary to the Appeal Tribunal …”

31.  Section 50 makes provisions regarding the determination of appeal by the Tribunal.  In particular, Section 50(2) states as follows:

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

32.  It can be seen that the statutory right of appeal under Section 44(1) is given to any person who is “aggrieved” by “any decision” made by the BA in the exercise of a “discretion” conferred on him under the Buildings Ordinance.

33.  In relation to the BA’s decision to refuse to give his approval of buildings plans submitted to him for approval under Section 14(1)(a) on one or more of the statutory grounds under Section 16(1), it is well established that such decision involves an exercise of “discretion” (see Building Authority v Head Step Ltd (1996) 6 HKPLR 87, at 88).  The central questions to be determined in the present case are:

(1) what do the words “any decision” in Section 44(1) refer to; in particular do they refer to (i) the decision to refuse to approve building plans (ie the refusal itself), or (ii) as Mr Ismail argues, the BA’s decisions to rely on different grounds for disapproval in Section 16(1); and

(2) whether, in a case where a person whose building plans have been refused approval by the BA on a number of grounds no longer challenges the refusal itself but wishes nevertheless to continue to challenge some, but not all, of the specific grounds for refusal, that person can still be regarded as a person “aggrieved” by a decision of the BA.

34.  In respect of the meaning of the words “any decision” in Section 44(1), it seems to me to be clear that, in relation to a decision by the BA to refuse to approve building plans, those words refer to the refusal itself, not the individual ground(s) for the refusal.

35.  Where the BA exercises his discretion to refuse to approve buildings plans submitted to him for approval under Section 14(1)(a) on more than one grounds under Section 16(1), there is a single decision to refuse to approve the building plans, not a series of decisions to refuse to approve them based on different grounds.  In other words, the BA makes only one decision, although he may have based his decision on more than one grounds. That this is so is clear from a consideration of the provisions of Section 15 and 16, which distinguish between “refusal” and “grounds for refusal”.  The relevant provisions state as follows:

“15 Approval and consent deemed to be given unless refusal notified

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

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

16 Grounds on which approval or consent may be refused

(1) The Building Authority may refuse to give his approval of any plans of building works where – [(a) to (q)].”

36.  The distinction between “refusal” and “grounds for refusal” was explained by Cheung CJHC (as he then was) in his judgment in Re China Field [2014] 1 HKLRD 716, at §34:

“The Building Authority refused to approve the building plans on two grounds – section 16(1)(g) and 16(1)(h). Two grounds were relied on but there was only one refusal under section 16(1). China Field appealed from that single refusal to the Tribunal. Both subsections were argued before the Tribunal, but there was just one building appeal. In the 2006 decision, although the Tribunal spoke of ‘allow[ing] the appeal’ under section 16(1)(g) and ‘dismiss[ing] the appeal’ under section 16(1)(h) (para 66(a) & (b)), it is plain that what it intended to say was that it rejected the Building Authority’s reliance on section 16(1)(g) but agreed with his reliance on section 16(1)(h) to disapprove the plans. Therefore, the Tribunal dismissed the building appeal (para 67).”

37.  It follows logically from the fact that there is only a single decision by the BA to refuse to give his approval of building plans under Section 16(1) that what is appealable under Section 44(1) is the decision to refusal, not the individual ground(s) for refusal.  In other words, the “decision” which should form the proper subject matter of an appeal under Section 44(1) is the BA’s refusal to approve the building plans, not the grounds relied on by him to refuse to give his approval, or (as put by Mr Ismail) the BA’s decisions to rely on different grounds for disapproval in Section 16(1).  That this is the correct view is again supported by the judgment of Cheung CJHC in Re China Field, supra, at §§35-38:

“35 It was against that decision to dismiss its building appeal that China Field sought and obtained leave to apply for judicial review: see the form 86A which identified the decision to dismiss the building appeal as the decision under challenge. Saunders J dismissed the application for judicial review, and on appeal his decision was upheld by the Court of Appeal. Their decisions were reversed by the Court of Final Appeal, and the formal order made by that court was to remit, not the section 16(1)(g) issue, but China Field’s case to the Tribunal for rehearing – in the light of the court’s determination on the section 16(1)(h) issue. (By necessary implication, as the judge held, the Court of Final Appeal had quashed the Tribunal’s decision to dismiss the building appeal.)

36 Therefore, in my view, when it is said that the Court of Final Appeal had not remitted the section 16(1)(g) issue to the Tribunal (but only the section 16(1)(h) issue), that statement is slightly off‑focus. What was remitted was not an issue, but China Field’s building appeal to the Tribunal, for rehearing – in the light of the court’s determination on the section 16(1)(h) issue. That being the case, the question therefore becomes what were the powers of the Tribunal at the rehearing. Was it open to the Tribunal to reopen the question of section 16(1)(g) which it had previously decided in the 2006 decision, a question which had not been dealt with in the judicial review proceedings? The answer seems to me to be straightforward. Given the quashing of the Tribunal’s decision to dismiss the building appeal, the appeal had not been determined. Rather, it was to be reheard. Absent a final decision to allow or dismiss the building appeal, it was of course open to the Tribunal, like a court in a similar situation, to rehear whatever issues that it had previously heard and even ‘decided’, particularly when there had not been any trial of preliminary issue and both subsections had throughout been dealt with at the same time before the Tribunal. This view fully accords with what have been said in the Court of Final Appeal regarding section 16(1)(g).

37 As mentioned, in its 2010 decision, the Tribunal unfortunately focused on the question of whether the section 16(1)(g) issue had been remitted. It decided that question in the negative, but proceeded to express a willingness to hear further arguments on the issue and indicate its views on it, which it did. This therefore gave rise to the arguments below and in this court as to whether the section 16(1)(g) issue is still an open one.

38 I think the Tribunal fell into error on this point.  It ought to have held that what was remitted to it was China Field’s building appeal from the Building Authority’s disapproval of its plans.  It ought to have held that it had the jurisdiction and discretion to reopen the section 16(1)(g) issue and it was not bound by its 2006 determination on this issue given that the appeal had not yet been finally disposed of by it.  It ought to have considered whether to exercise its discretion to reopen the issue.  And if it decided to reopen the issue, it ought to have given a determination, not ‘views’, on it after hearing further arguments.  It ought then to have decided the building appeal in accordance with its determinations on the two subsections.  Depending on the outcome, one party or the other could then have taken out judicial review proceedings to challenge the Tribunal’s decision.”

38.  The above passages demonstrate that in an appeal under Section 44 against the BA’s refusal to give his approval of building plans, the appeal is concerned with the decision to refuse, even though the BA may have relied on a number of different grounds under Section 16(1) for his decision to refuse to approve the building plans and those different grounds are individually under challenge.

39.  Hence, when a person exercises the right of appeal conferred by Section 44, he is required to give notice of appeal in the prescribed manner, appealing from the “relevant decision” (not the “grounds for the decision”) of the BA, to the Secretary to the Tribunal under Section 47.

40.  In a similar vein, Godfrey Lam J held in Building Authority v Appeal Tribunal (Buildings) [2017] 3 HKLRD 818 that an appeal to the Tribunal under Section 44(1) is an appeal against the BA’s decision, not his reasons for the decision.  In that case, the BA disapproved two sets of building plans submitted by the owner of the land for its redevelopment on the ground stipulated in Section 16(1)(j), which allows the BA to refuse to give his approval of building plans where “any further particulars or other plans delivered to him, upon his refusal, under paragraph (i), to give his approval to any plans, are not to his satisfaction”.  At §29, the learned judge stated as follows:

“As can be seen from §25 of its Decision, the Tribunal found the BA’s reasons unsatisfactory. But the appeal to the Tribunal was an appeal against the BA’s decision, not the reasons or any ‘advice’ in the disapproval letter: see ss 44(1) and 50(2) of the Ordinance. In this case it was for the Tribunal to say, under s 16(1)(j), whether in its own view the further particulars provided were to its satisfaction, that is to say, sufficient to enable the primary decision‑maker on the substantive ground (ie s 16(1)(d)) to come to a decision. The Tribunal should exercise the power under s 16(1)(j), and not treat the appeal as if it were an application for judicial review by focusing on the quality of the reasons expressed by the BA in the disapproval letter: see Ko Siu Luen v Appeal Tribunal (Buildings) [2012] 1 HKLRD 149, §§53–54 per Au J. If the Tribunal found the further particulars not to its satisfaction (albeit for reasons different from the BA’s), it should dismiss the appeal.”

41.  For the above reasons, in the context of an appeal against the BA’s decision to refuse to give his approval of building plans under Section 16(1), the Tribunal’s dispositive powers under Section 50(2) are, inter alia, to confirm, vary or reverse the decision (not the grounds or reasons relied on by the BA for the decision), or substitute therefor such other decision or make such other order (not other grounds or reasons for the decision or order), as its thinks fit.

42.  In the present case, the Applicant had decided that she would no longer seek any order to quash the Refusal Decision or allow the Appeal.  That being the position, she could no longer properly be described as a person “aggrieved” by the Refusal Decision.  It does not follow, however, that the Tribunal thereby lost its jurisdiction over the Appeal, or its jurisdiction over the Appeal ceased, as from the time when the Applicant gave notice of her decision not to seek any order to quash the Refusal Decision or allow the Appeal.  The Appeal was properly constituted when the Applicant filed her Notice of Appeal with the Secretary to the Tribunal on 26 June 2014.  At that time, the Applicant was, indisputably, an “aggrieved” person for the purpose of Section 44(1).  The Tribunal as constituted was properly seized of the Appeal.  It did not lose its jurisdiction over the Appeal even though the Applicant had decided not to seek any order to quash the Refusal Decision or allow the Appeal.  In such circumstances, it was open to the Tribunal, subject to the issue of whether the Applicant should be permitted to resile from the Concession, to dismiss the Appeal.  In my view, the Tribunal was wrong to find that it did not have jurisdiction to hear and entertain the Appeal.

43.  In passing, I should mention that Question 1 as posed by the Applicant is a general one, which is not framed specifically to the present situation where a person originally sought to challenge all the grounds relied upon by the BA to refusal to approve buildings plans and sought an order to quash the BA’s decision and allow the appeal, but subsequently decided that he would not challenge some of the grounds relied upon by the BA or seek any order to quash the BA’s decision or allow the appeal.  Question 1 postulates a general situation where “not all of the grounds relied on by the BA in Section 16(1) are challenged and the appellant is not seeking an order to quash the decision to refuse to approve the plans and an order allowing the appeal but is seeking some other order such as a determination or declaration”, including the situation where this was the position adopted by the appellant throughout since the time when he/she gave notice of appeal to the Secretary to the Tribunal.  The question of whether the Tribunal would have jurisdiction to entertain such an appeal does not arise for determination in this case, and I shall leave it for further consideration should such a case arise in the future.

QUESTION 2: CONCESSION

44.  The question of whether the Applicant should be allowed to resile from the Concession involved an exercise of discretion by the Tribunal.  It is well established that in an application for judicial review, the court should not disturb an exercise of discretion by the Tribunal merely because it does not agree with the Tribunal on the result of the decision, but may do so if the Tribunal makes an error of law or its decision is Wednesbury unreasonable.

45.  In this case, the Tribunal refused to allow the Applicant to resile from the Concession for the following reasons:

(1) The Concession was made in clear and unambiguous terms on behalf of the Applicant, who had the benefit of legal advice, and was made at a late stage of the proceedings.  There was no suggestion that it was made as a result of any mistake or inadvertence.

(2) There was no merit in the Applicant’s challenge to the Refusal Decision based on the Fundamental Technical Grounds, as recognized by the Applicant’s authorized person.

(3) The reason, or only reason, why the Applicant wished to withdraw the Concession was so that she could “short circuit” the jurisdiction argument, which the Tribunal considered to be an “ulterior motive” unrelated to the merits of the challenge to the Refusal Decision.

(4) The Applicant had filed no evidence in support of her challenge to the Refusal Decision based on the Fundamental Technical Grounds.  The Applicant would not suffer any meaningful prejudice if she was required to adhere to the Concession.

(5) Allowing the Applicant to withdraw the Concession would cause prejudice to the BA, in that (i) the BA would be deprived of a proper determination of the jurisdiction issue, and (ii) further delay would be caused to the appeal process in view of the Applicant’s request to file further evidence on the Fundamental Technical Grounds.

46.  In respect of these reasons given by the Tribunal, my views are as follows:

(1) The matters mentioned in §45(1) above could properly be taken into account by the Tribunal in deciding whether to allow the Applicant to resile from the Concession.

(2) In respect of §45(2), if the Applicant’s challenge to the Refusal Decision based on the Fundamental Technical Grounds has no merits, that would be a relevant consideration to the question of whether the Applicant ought to be permitted to withdraw from her concession that she would no longer seek to challenge the Refusal Decision based on those grounds.  It does not appear, however, that the Applicant had accepted that her challenge to the Refusal Decision based on the Fundamental Technical Grounds had no merits.  In particular, I do not understand the Applicant, or her authorized person, to have accepted that the Fundamental Technical Grounds could not or should not have been dealt with by the BA pursuant to the practice referred to in ADM-14.  This having been said, the Tribunal seemed to have agreed with the BA that ADM-14 had no application on the facts of the present case[20].

(3) In respect of §45(3), as earlier mentioned, I am of the view that the BA’s argument that, given the Concession, the Tribunal no longer had jurisdiction to hear or entertain the Appeal is wrong as a matter of law.  Had the Tribunal correctly appreciated that the BA’s jurisdiction argument had no merits, it is questionable whether the Tribunal would have given weight to the fact that the Applicant’s attempt to withdraw the Concession was motivated by her desire to “short circuit” the jurisdiction argument.

(4) In respect of §45(4), it was the Applicant’s decision not to file evidence, or further evidence, in relation to the Fundamental Technical Grounds up 8 February 2018 (when she sought leave from the Tribunal to file a supplemental statement from the authorized person to address those grounds).  There was, however, no suggestion that without further evidence, it was not open to the Applicant to argue that the Fundamental Technical Grounds could and should have been dealt with by the BA pursuant to the practice referred to in ADM-14.  As a result of the Tribunal’s decision refusing to allow the Applicant to withdraw the Concession, she suffered the prejudice of not being able to argue, based on the existing evidence, that the Refusal Decision based on the Fundamental Technical Grounds was wrong.  On the other hand, even if the Applicant had been permitted to withdraw the Concession, the Tribunal would still have a discretion whether to grant leave to the Applicant to file further evidence.

(5) In respect of §45(5), I have already commented on the fact that the BA’s jurisdiction argument has no merits.  In respect of possible delay to the appeal proceedings due to the Applicant’s request to file further evidence, the Tribunal appears to have thought that if it permitted the Applicant to resile from the Concession, it must also permit the Applicant to file further evidence to address the Fundamental Technical Grounds.  It would seem that the Tribunal had overlooked the fact it had a discretion whether to allow the Applicant to file evidence.  It is not for this court to decide how the Tribunal ought to have exercised such discretion, but the apparent failure of the Tribunal to recognize that it had a discretion constitutes, in my view, an error of law.

47.  Overall, I consider that the Tribunal’s decision, or exercise of discretion, to refuse to allow the Applicant to resile from the Concession was affected by errors of law and/or failure to take into account relevant consideration and/or irrelevant consideration being taken into account, and should be quashed, and the matter ought to be remitted to the Tribunal for fresh consideration.

48.  There is one other matter that I ought to mention briefly before I move on to Question 3.  At §§57-58 of the Written Decision, the Tribunal stated as follows:

“57 … It is clear that the regime of the Buildings Ordinance is that the BA is intended to be primary decision maker: Re Dobrowen Investment Limited, HCAL 20/2011, 20 December 2011 at §§11-12.

58 With respect to the challenge relating to BPR 19(3), the Appellant has never applied for a determination by the BA to be made under BPR 19(3).  The Appellant has all along, during the approval process and in these proceedings, maintained that the Site is a Class A site.  Indeed, that remains its primary position in this appeal.  The Appellant cannot use these appeal proceedings as a platform for sidestepping the BA as the primary decision maker as regards BPR 19(3).”

49.  That under the statutory scheme relating to appeals to the Tribunal, the BA should occupy the role of the “primary decision maker” (not in the sense that on an appeal the Tribunal can only act as a court of review of the BA’s decision, but in the sense that the BA ought generally to have been given an opportunity to exercise its primary discretion and power to make a decision on a substantive ground before the matter is considered by the Tribunal) is, I consider, correct in principle.  In Building Authority v Appeal Tribunal (Buildings) (Dobrowen Investment Limited as 1^st Interested Party), HCAL 20/2011, 20 December 2011, which concerned an appeal against the BA’s refusal to approve building plans on the ground stipulated in Section 16(1)(i) (under which the BA may refuse to give his approval of building plans where “in his opinion, it is necessary for him to have further particulars of such plans or of the building works shown thereon or, where all the plans prescribed by regulations have not been submitted, to have one or more of the other plans prescribed by regulations, to enable him fully to consider such plans”), Lam J (as he then was) considered the proper approach that should be adopted by the Tribunal in such an appeal:

“[11] Thus, instead of disapproving the plans on substantive grounds, when plans were disapproved under Section 16(1)(i) the BA actually asked for more information which he considered to be necessary for the purpose of processing the applications for approval. In an appeal against such a decision, the BAT should allow an appeal if it is satisfied that the BA did not have any proper reason to seek the required information. If the BAT were not so satisfied, generally it is neither here nor there that the required information was supplied by the time of the hearing. The appeal should be dismissed by the BAT. The BAT should not usurp the role to the BA to go further to examine such information as if it were the primary decision maker and make a substantive decision on the approval or disapproval of the plans. Opportunity should be given to the BA to consider the information and exercise its primary discretion and power in assessing whether the plans should be approved or disapproved.

[12] This flows from the nature of an appeal to the BAT. It is important to bear in mind that under Section 44(1) of the Ordinance there can only be an appeal when a person is aggrieved by a decision made by the BA. Thus, the BA is the primary decision maker and until a decision had been made by the BA on a substantive ground, a party who submitted plans for approval cannot be said to be aggrieved by a relevant decision on such ground.

[13] In other words, in the context of an appeal based on an exercise of discretion under Section 16(1)(i), the BAT should not embark upon the consideration of any substantive ground unless the BA had exercised its primary discretion in respect of such ground.  An appeal under Section 16(1)(i) should not be used as a platform for sidestepping the BA as the primary decision maker.”

50.  This having been said, it does not mean that the Tribunal is necessarily debarred from considering the position as at the date of the hearing of the appeal, or taking into account new evidence adduced in the appeal, or changes of circumstances arising between the date of the BA’s decision and the date of the hearing of the appeal.  Whether the Tribunal may properly take into account any updated position or additional materials in determining an appeal would depend on the nature of the power exercised, and the decision made, by the BA (see Lai Siu Kin Rembert v Building Authority [2013] 4 HKLRD 74, at §§101 and 102, per Fok JA, as he then was).

51.  In the present case, it should not be assumed, even if the Tribunal should eventually decide to permit Applicant to resile from the Concession and challenge all the grounds relied upon by the BA for the Refusal Decision, that the Tribunal is necessarily bound to make (i) a determination on the issue of whether the Site is a class A site, or (ii) if it should be determined that the Site is not a class A site, a declaration of the maximum site coverage and maximum plot ratio permitted in respect of a building or buildings on the Site under Regulation 19(3).  As earlier mentioned, the Appeal is concerned with the Refusal Decision.  The question for determination by the Tribunal is whether that decision is correct.  It is, in theory, possible for the Tribunal to find that the Refusal Decision is correct on any of the grounds relied upon by the BA, and determine the Appeal on such limited basis.  It may be desirable for the Tribunal to go further and consider and deal with all the other grounds (or some of them) argued in the Appeal, and it may even be that the Tribunal ought to do so.  However, that is a matter for the Tribunal to decide in the first instance, and it would not be appropriate for this court to preempt the Tribunal’s decision at this stage.

QUESTION 3: ABDICATION OF STATUTORY FUNCTION

52.  Having reached the above conclusions, I can deal with Question 3 briefly.  There has, undoubtedly, been substantial reproductions of various parts of the BA’s Submissions (Jurisdiction) and the BA’s Submissions (Concession) in the Written Decision.  It is, however, well established that the mere reproduction or copying of substantial parts of a party’s submissions in a written decision of an administrative tribunal or a court does not by itself invalidate the decision (see the recent decision of the Court of Appeal in Choi Yuk Ying v Ng Ngok Chuen [2019] HKCA 171, at §39.1-39.2).  Much would depend on the nature of the issues arising for determination in the case, the issues under discussion in the parts of the submissions which have been reproduced in the written decision, the extent of the reproduction, the lapse of time between the submissions and the date of the decision, and all other relevant circumstances of the case.

53.  In the present case, the issues arising for determination by the Tribunal related primarily to issues of law which were technical in nature.  There was no substantial determination of disputed facts in the Written Decision.  The various parts of the Tribunal’s submissions reproduced in the Written Decision mainly concerned either background facts, or legal analysis of the relevant provisions of the Buildings Ordinance or judicial authorities.  I bear in mind the lapse of time between the date of the submissions and the date of the decision, which was some 6 to 7 months, and also the fact that there were substantial reproductions of the BA’s submissions in the Written Decision.  Nevertheless, having read and re-read the Written Decision and given this matter my anxious consideration, I am not satisfied the Tribunal abdicated its responsibility, breached the rules of natural justice, infringed Article 10 of the Hong Kong Bill of Rights, or failed to ensure that justice was seen to be done.  Accordingly, my answer to Question 3 is “no”.

CONCLUSION

54.  Leave to apply for judicial review is granted, and the application for judicial review is allowed.  An order of certiorari is granted to bring up and quash the Appeal Decision.  The Appeal is remitted to a differently constituted Tribunal for fresh determination in accordance with this judgment.  The BA shall pay the Applicant’s costs of these proceedings, to be taxed if not agreed.  There shall be no order as to costs as between the Applicant and the Tribunal.