高英姿 v. 何東道貳、肆、陸、捌號業主立案法團

LDBM 264/2015

[2018] HKLdT 32

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 264 OF 2015

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J U D G M E N T

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1.  No. 2, 4, 6 and 8 of Ho Tung Road (“the Building”) lies at the junction of Ho Tung Road and Boundary Street.  The Building is a row of 4 adjoining blocks of 9-storeys (G/F to 8/F) with 1 unit for each house number on each storey.  There are 7 garages at the Lower Ground Floor (“Garage Floor”) of the Building which are privately owned properties.

2.  The Garage Floor is facing the street level of Ho Tung Road whilst the G/F of the Building is higher than the street level with an open common area at the back of the Building (“Open Yard”).  All rear windows of G/F units open to this Open Yard which is being used for car parking purpose ever since the occupation of the Building.

3.  There are 2 main entrances of the Building at Ho Tung Road, one serving No. 2 & 4 and the other serving No. 6 & 8.  Each of the front entrances leads to a lift lobby attended by a security guard.  There are 2 rear entrances at the Open Yard, one serving No. 2 & 4 and the other serving No. 6 & 8.  The Open Yard is accessible from a driveway through a right of way which lies at the adjoining boundary of Kent Court and the Building.

4.  Occupation Permit of the Building was issued on 18 January 1960 (B/37) and a Deed of Mutual Covenant was executed on 13 April 1960 (B/38-49). 

5.  The respondent, being the IO of the Building, was incorporated on 27 July 1977 (B/68).  The applicant became the registered owner of the ground floor unit of No. 6 Ho Tung Road, Kowloon (“the Premises”) on 27 July 2015 (B/1-4).

6.  A mesh fence of about 10 feet high was erected along the back of the Building at the Open Yard (“the Mesh Fence”) and the distance of the Mesh Fence from the external wall of the Premises ranges from 49.5cm to 61cm (Exhibit A2).  Along the Mesh Fence, a total of 16 car parking spaces (“CP No. 1 to 16” respectively) are being created at the Open Yard (A/47) and these are open to the owners for use on a first come first serve basis on payment of monthly parking fees. 

7.  CP No. 1-8 are closest to the Premises.  CP No. 1 and 2 are to the right of the back entrance to No. 6-8 of the Building (which is right next to the Premises).  CP No. 3 and 4 are outside the window of the sitting/dining room of the Premises.  CP No. 5 is outside the window of the kitchen and maid’s room of the Premises.  CP No. 6 is outside the window of the guest toilet of the Premises and CP No. 7 is right outside the window of the master bedroom of the Premises and CP No. 8 is next to it (layout plan at A/132 and photo at B/78 and Exhibit R5(3)).

8.  2 spotlights are installed to provide lighting to the Open Yard on 2 spots, one on the external wall of No. 2-4 (Exhibit R5(2)) and another on top of a small canopy outside the rear entrance of No. 6-8 (photographs at B/130-133).  The one at No. 2-4 had once been demolished when the G/F unit of No. 2 was undergoing renovation few years ago.  Even though the owner promised to re-install the same upon completion of the renovation work, such was eventually done by the IO instead.  Only the spotlight at No. 6-8 (“the Spotlight”) is the subject of dispute in this trial.

9.  The applicant filed the Notice of Application in this case on 11 September 2015, which was amended on 3 subsequent occasions, asking for various injunctions against the nuisance, annoyance and inconvenience caused by the Mesh Fence, CP No. 1-8 and the Spotlight and the removal of the same.  At trial, Ms Wong for the applicant confirmed that the claim by the applicant is one founded on section 34I of the Building Management Ordinance (“BMO”) only and had nothing to do with the Deed of Mutual Covenant (“DMC”) of the Building.  Counsels had prepared a Statement of Issues of Agreement and Disagreement (A/53C-53H).

10.  Madam Ko (“Ko”) the applicant, Madam Woo (“Woo”) the former secretary of the IO, and an owner Madam Chan (“Chan”) testified at trial.

The Law

11.  The relevant part of s.34I of the BMO is copied herein:

“34I. Common parts

(1) No person may –

(a) …

(b) use or permit to be used the common parts of a building in such a manner as –

(i) …

(ii) to cause a nuisance or hazard to any person lawfully in the building.

(2)   Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

12.  It is not in dispute that a claim under s.34I is analogous to a claim in private nuisance.  Parties had no argument on the following applicable principles from Clerk & Lindsell on Torts, 22^nd ed:

a.   The very essence of private nuisance … is the unreasonable user of a man of his land to the detriment of his neighbour (§20-35);

b.   It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance (§20-10);

c.   To be actionable, it must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man (§20-11);

d.   In considering the standard of comfort or convenience of living of the average man, the character of the neighbourhood must be taken into account (§20-13);

e.   No actual financial or physical damage need be proved (§20-27); and

f.   The person in possession or occupation of the land affected can sue in private nuisance, and such a person can also sue for a continuance of a nuisance which began before he became occupier (§20-63).

13.  Bearing these principles in mind, I shall turn to the issues in dispute in seriatim.

Issue 1 – whether there are objects hung on the Mesh Fence and whether such objects amount to nuisance

14.  Ko testified that articles, including bicycle, baby chair, washing clothes, car tarpaulin and tyres, are being hung on the Mesh Fence by the users of CP No.1-8 which amounts to nuisance.  In her oral testimony, Ko referred to the different objects on the Mesh Fence by reference to the photographs produced as follows:

a.   for CP No. 3, a tyre and shopping bag on the Mesh Fence and plastic gloves on the tyre (B/96 & 219);

b.   for CP No. 4, a tyre on the Mesh Fence and some plants on the floor (B/94);

c.   for CP No. 5, some plants and miscellaneous items on the floor (B/94 & 97);

d.   for CP No. 6, some plants on the floor (B/94);

e.   on the Mesh Fence between CP No. 7-8, a car tarpaulin (B/86-87 & 93);

f.   for CP No. 7, a red bucket with items in it on the floor (B/99); and

g.   for CP No. 8, a number plate on the Mesh Fence and a plastic bottle and plants on the floor (B/95 & 98).

15.  Ko said that the tyres also obstructed the ventilation of the air-conditioner of the Premises (photos at B/114 and 143) since it is being hung right next to the cooling unit. 

16.  It is not in dispute that the IO had put a canvas (“the Canvas”) covering the part of the Mesh Fence outside the Premises during the period from 9 September 2015 to February 2016 (photos at B/78 and 81-83).  At trial, it is agreed that since the Canvas had already been removed, this is no longer an issue.  So what remains to be determined in Issue 1 is: whether any objects or articles were and/or are hung on the Mesh Fence; and if so, whether such hanging amounts to nuisance under s.34I of the BMO.  Ko is asking for an injunction requiring the IO to dismantle the Mesh Fence.

17.  Woo testified that the Mesh Fence was being installed for tens of years with the approval of the IO for crime prevention and denied any object being hung on the Mesh Fence, except the tyres which are there to avoid the cars hitting onto the Mesh Fence. However, upon seeing the photograph (B/95), Woo confirmed that the plastic bottle and the cloth are used by the cleaning worker (“Ah Mei”) for cleaning in the morning and will be taken away after she finished her work.  Woo also confirmed that upon receiving the complaint of Ko, the stuff depicted in the photograph (B/99) had been removed right away. 

18.  Chan confirmed that the Mesh Fence was there since she moved in in the 1960s for anti-burglar purpose but she did not know who suggested the same.  Chan also confirmed seeing nothing being hung on the Mesh Fence and the tyres are there to prevent reversing cars from bumping into the Mesh Fence.  Chan also said that she knew the predecessor-in-title of the Premises, Mr Woo and Madam Helena Wu (“Mr and Mrs Woo” respectively), who lived at the Premises when Chan moved in and they had never complained of the Mesh Fence, nor had any other owners done so.

19.  As can be seen from the evidence of Ko cited above (at §14), all that she can prove, from the photographs produced, is the hanging of the number plate, the car tarpaulin, the tyres and the shopping bag on the Mesh Fence.  For the other items like bicycle is not depicted in any of the photographs produced by Ko and the baby chair is only left on the floor instead of hanging on the Mesh Fence (B/97). Had there been such items hung on the Mesh Fence, one would wonder why no photographs can be produced in support.  Apart from those items depicted and supported by the photographs, I do not accept that other items are being hung on the Mesh Fence.

20.  For the number plate, the shopping bag and the car tarpaulin, I find Ko had failed to establish that the existence of such item amounts to a real interference with the comfort or convenience of living and is sufficiently serious to constitute a nuisance.  There is no evidence from Ko as to the duration of these items being hung on the Mesh Fence and how these items had interfered with her comfort or convenience of living.  Given the nature of these items, I am not convinced that they are serious enough to constitute a nuisance.  In particular for the car tarpaulin, the photographs show that it was hung on the Mesh Fence when the Canvas was still there.  Under such circumstances, the view from the Premises was blocked by the Canvas and the existence of the car tarpaulin can only be seen if one was at the Open Yard.  How can Ko be affected by the car tarpaulin and how can that be serious enough to constitute a nuisance?  Given the size and the location of the number plate and the shopping bag, I fail to see how the existence of the same can possibly cause any concern to those inside the Premises, least to say caused any interference or discomfort.

21.  As far as the tyres are concerned, it is not in dispute that they are there to avoid the car from bumping into the Mesh Fence.  Ko testified that due to the existence of the Mesh Fence, the space between the external wall and the Mesh Fence is so narrow that 3 out of 4 air-conditioners of the Premises cannot be installed on the upper part of the external wall but have to be put on the external wall below the windows outside the sitting/dining room (B/112 & 117).  Since the tyres are hung at a level right next to the air-conditioners, time and again, users of CP No. 3 and 4 will bump their car into the tyres and as a result, the Mesh Fence is being pushed and hit against the air-conditioners causing loud bump.  Ko had produced 3 video clips (B/223) to support this allegation. 

22.  The mere presence of the tyres, which are being hung on the Mesh Fence at a level below the windows of the Premises, is not the cause of nuisance complained by Ko. Rather, her complaint is the bumping of the cars onto the tyres and as a result hit against the air-conditioner causing loud noise which startled Ko.  This is in fact a complaint of the driving manner of the carpark user which caused the nuisance instead of the hanging of the tyres. For the video clip (file name VTS_02_1.VOB of B/223), Ko said that she heard the loud bump and then retrieved the video clip of the CCTV and saw the car reversing into CP No. 3 and hit against the tyres but since the microphone of the CCTV broke down, the loud bump was not recorded in the video.  This is not true.  When the car hit against the tyres, no sound was recorded but towards the end of the same video clip, the sound of re-starting the engine of the car was heard.  The microphone of the CCTV was apparently in working condition and recorded the sound of the starting of the engine.  It would be absurd to suggest that the microphone was not working only seconds before when the car hit onto the tyre.  From what depicted in this video clip, even though the car did hit against the tyre on reversing, no sound emitted so the driving manner of the driver is in fact the determinative factor as to whether there will be loud bump and has nothing to do with the hanging of the tyre on the Mesh Fence.  I find Ko failed to show that the nuisance of loud bump was caused by the hanging of the tyres.

23.  There is no evidence from Ko as to show how the tyres obstructed the ventilation of the air-conditioner and how this caused any nuisance to Ko and her family.  As can be seen from the photograph in Exhibit R5(1), the tyre at CP No. 4 is no longer there leaving only 1 tyre at CP No. 3 which is right next to one of the 3 air-conditioners of the Premises.  Even if the tyre at CP No. 3 is still there, the tyre is like a big “O” (B/219) and one wonders how can it obstruct the ventilation of the air-conditioner.  This allegation is not substantiated either.

24.  Even though there may be items hung on the Mesh Fence, no nuisance is established.

Issue 2 – Obstruction of view and hygienic issues caused by the Mesh Fence and whether partly or wholly self-generated by Ko

25.  The Mesh Fence is at a distance of 49.5cm from the external wall outside the master bedroom of the Premises and widened to 52cm at the sitting room of the Premises (points marked as 1, 2, 3 and 5 on Exhibit A2 shows the distance of the Mesh Fence from the external wall).  Ko said that the existence of the Mesh Fence had blurred the view of the Premises, made her feels that she was in a prison when she looked out from the windows and also caused obstruction to air and sunlight. 

26.  Most importantly, lots of garbage and leaves are being trapped between the floor outside the sitting/dining room of the Premises and the Mesh Fence (“the Space”) (B/100-104).  Since the IO failed to clean up the Space regularly and declined Ko’s request to allow her to enter the Space for cleaning up, creating problems of mosquitoes, rats and insects and the son of Ko had suffered from severe mosquito bites (B/105-106).  And the existence of the garbage and leaves had caused blocking of the drainage at the Space with odour.  Ko had to keep all the windows of the Premises closed at all times to fend off the odour and have to climb out from the Premises to clean up the Space.  Ko also confirmed that the IO had sent someone to clean up the Space after the removal of the Canvas in late February 2016 and not as stated in her witness statement that the situation only improved after Ko complained to the Food and Environmental Hygiene Department on 22 March 2016 and then the IO cleaned up the Space (A/74 §15). Ko said in her witness statement as well as under cross-examination that the situation is acceptable now and is no longer an issue (A/74 §15).

27.  Woo maintained that the Mesh Fence is required for anti-burglar purpose and apart from the tyres, nothing else is being hung on it.  The complaint of blocking of views is the result of Ko putting a large piece of white panel on the Mesh Fence (B/79-80).  As for the cleanliness of the Space, Woo said that the IO had assigned Ah Mei to do the cleaning and it was the air-conditioner of the Premises which obstructed the cleaning inside the Space.  The IO also contended that Ko should be aware of the existence of the Mesh Fence outside the window before she decided to purchase the Premises and there is no basis for her complaint.

28.  As can be seen from the photographs produced by Ko, garbage, leaves and paddle of water are found at the Space at a time when the Canvas was still there.  Ko also confirmed that water was trapped by the Canvas.  It is not in dispute that the hanging of the Canvas was for the purpose of preventing dust to be emitted from the Premises onto the cars at the Open Yard during renovation of the Premises. The complaint of uncleanliness and odour must be due to the existence of the Canvas and with the Canvas being removed, the problem should be gone.  In any event, it is accepted by Ko that this is no longer an issue so even if there was nuisance caused, this is no longer in existence and Ko cannot rely on this to support her claim in this case.

29.  The view from the Premises towards the Open Yard cannot be blocked by the Mesh Fence (without the Canvas) since the Mesh Fence is hollow.  The same applies to the obstruction of air and sunlight.  Ko found it unease to see the Mesh Fence outside her window making her feel like inside a prison.  Judging from the fact that the predecessor-in-title and the occupiers of other ground floor units along the Mesh Fence had been occupying their units for years with the Mesh Fence there, yet without any complaint of the same, the only inference to be drawn is that the interference is not serious enough to be a nuisance or is not a real interference according to standards of the average man.

30.  I find Ko had failed to establish that there was any obstruction of view and hygienic issues caused by the Mesh Fence or even if there are such problem, is sufficiently serious to constitute a nuisance according to the standards of the average man.

Issue 3 – whether the Mesh Fence is an unauthorised structure

31.  Ko had lodged a complaint with the Buildings Department (“BD”) about the Mesh Fence being an unauthorised structure (“UBW”).   BD had replied by letter dated 3 February 2016 to Ko stating that the IO had been alerted by letter for the demolition of the UBW (“BD Letter to Ko”) (B/71).  On the same day, the BD had also sent a letter to the IO, referring to the Mesh Fence with the Canvas, asking the IO to arrange for the UBW to be demolished (“BD Letter to IO”) (B/201).  And in the letter dated 18 May 2017 to Ko, the BD maintained that the Mesh Fence was not on the approved building plan but no immediate action will be taken against the Mesh Fence in line with the existing policy of the department (“BD Letter 18 May”) (B/218).

32.  The contents of these letters are highly relevant so contents of the same are copied herein:

BD Letter to Ko (B/71)

『有關:…加建圍欄及以帆布圍封事宜

…就有關上述加建圍欄及以帆布圍封的搭建物，本署已按現行對僭建物的執法政策，發信予大廈業主立案法團，敦促其盡早自行安排清拆有關僭建物…』

BD Letter to IO (B/201)

『本署得悉有若干建築工程曾在上址進行，包括：

i)   在地下6號單位對出位置（面向根德閣）加建圍欄及以帆布圍封。

...

我現建議你立即安排把違建工程拆除，並把樓宇修復原狀，使之與批准建築圖則所示一致…』

BD Letter 18 May (B/218)

『有關九龍何東道6號地下（面向根德閣）對出鐵絲圍欄

… 經翻查紀錄，有關的鐵絲圍欄並沒有記載於批準圖則上。本署人員於本年4月13日到場視察，發現該圍欄沒有明顯危險，根據本署現行對僭建物的執法政策，該圍欄不屬須優先取締類別。』

33.  The IO contended that from the wordings of the BD Letter to IO, the so-called UBW was referring to the part of the Mesh Fence with the Canvas enclosure only and not the Mesh Fence itself.  Once the Canvas was removed, the UBW is no longer applicable.

34.  Having read the 3 letters from the BD, in particular the BD Letter 18 May, one cannot deny that it was the Mesh Fence which is referred to in the letter and the BD confirmed that the Mesh Fence was not on the approved building plan.  And according to the policy of the department for UBW, the Mesh Fence is not one that required priority disposal.  The conclusion must be that the Mesh Fence is being tolerated for the time being but cannot be an exempted work which doesn’t require any approval as alleged by the IO.  If this is the case, the BD should have stated the same in the letters.

35.  It is beyond argument that the BD had confirmed the Mesh Fence is the UBW and not just the part covered by the Canvas since by the time the BD conducted the inspection on 13 April 2017 (as stated in the BD Letter 18 May), the Canvas had already been removed from the Mesh Fence.  If what the IO said is true, the BD, having discovered that the Canvas had already been removed on inspection, should never have issued the BD Letter 18 May in the form it stands.

36.  Issue 3 must be answered in the affirmative in that the Mesh Fence must be an UBW as confirmed by the BD.  Be that as it may, the applicant agreed that by the mere fact that the Mesh Fence is an UBW is not the basis for the injunction sought. This finding will only turn on the reasonableness of maintaining the Mesh Fence in Issue 4.

Issue 4 – whether it is reasonable to maintain the Mesh Fence for the common good of the residents

37.  It is the contention of Ko that reasonableness is not a defence to s.34I which is also binding on the IO who had the duty to enforce the DMC.  Anything done by the IO, however reasonable and well-intentioned they are, cannot contravene the DMC and the statutory requirements under the BMO.  Even if reasonableness is a valid defence, the IO failed to establish the same since the maintenance of the Mesh Fence may be reasonable many years ago, it is no longer the situation now when there are CCTVs at the Open Yard and access to the Buildings required smartcard and key in of password.  The IO can consider other crime prevention measures like engaging one more night shift caretaker.

38.  The IO contended that this litigation is not about what is the best way to prevent crime.  The Mesh Fence had worked well for years and that the residents are not prepared to spend unnecessary money in managing the Building should be respected.  Since Ko failed to establish any nuisance caused by the Mesh Fence, it is not necessary to go into the reasonableness in keeping of the fence.

39.  I agree with the applicant that reasonableness is not a defence to any breach under s.34I.  In any event, if the Mesh Fence is an UBW, this cannot be considered a reasonable use of the common area.  But given my findings above that the existence of the Mesh Fence had caused no nuisance to Ko, this is not an issue that required further determination.

Issue 5 – whether the parking of cars in front of the Premises caused any nuisance

40.  Ko testified that nuisance was caused by the cars parked in front of the Premises and in the course of using the carparks, which includes:

a.    excessive noise by cars bumping into the Mesh Fence whilst parking, by leaving engine on for some time before driving off causing smell of exhaust fumes and petroleum odour inside the Premises and singing or leaving the radio on by those cleaning the cars at CP No. 1 to 3 and 5;

b.   user of CP No. 1 washing his car after midnight and other users washing their cars after 9pm, disturbing the sleep of Ko and her kids;

c.   bright light generated from the cars shinning into the Premises; and

d.   users of the carparks changing the engine oil at the carpark causing dirt on the floor.

41.  Ko had produced video clips to show the nuisance caused by the parking of the cars at the Open Yard:

a.   video clips showing cars started off from CP No. 3 and 4 after leaving engine on for some time (B/166);

b.   3 video clips showing users of CP No. 3 bumped the car into the tyres causing it to hit against the air-conditioners whilst reversing (B/223 file name VTS_02_1.VOB to VTS_04_1.VOB) ;

c.   2 video clips showing car washing activity (B/222 and B/223 file name VTS_01_1.VOB); and

d.   2 video clips showing the rear light of the car reversing at CP No. 3, seen from the Premises before and after the Canvas was being removed (B/223 file name VTS_05_1.VOB to VTS_06_1.VOB).

42.  Chan testified that there are carparking spaces at the Open Yard when she moved into the Building back in the 1960s and she is occupying CP No. 8 now.  The marking of 16 carparking spaces at the Open Yard was being done some 20 years ago by a number of resolutions at owners’ meetings to deal with the increasing demand for carparking spaces in the Open Yard.  Mr Woo, the predecessor-in-title of the Premises had always been actively involved in the management of the Building and had been the chairman of the IO for many years.  Mr Woo was the original driving force in formulating, resolving and implementing the carparking measures at the Open Yard.  As far as CP No. 1-8, Chan testified as to the use of the same as follows:

a.   CP No. 1 used by Mr Ho of 5/F (No. 8) who only used his car about once every few days and used to clean his car by himself.  Mr Ho had surrendered CP No. 1 in around October 2017 and it’s vacant now;

b.   CP No. 2 used by a tenant of 2/F (No. 6) who drived the car out in the morning and returned in the evening almost daily;

c.   CP No. 3 used by Mr Lai of 6/F (No. 6) who used his car at around noon time almost daily and engaged Ah Mei to clean his car;

d.   CP. No. 4 used by Mr Leung of 2/F (No. 8) who seldom used his car after his retirement some years ago and engaged Ah Mei to clean his car;

e.   CP No. 5 used by Woo and her husband will drive her to work in the morning and then returned since Woo usually takes public transport back after work in the evening and arranged Ah Mei to clean their car.  Woo surrendered CP No. 5 in June 2017 when she moved out and it’s vacant now;

f.   CP No. 6 used by Mr Shum of 1/F (No. 6) till about a year ago who used his car infrequently, thereafter Miss Chan of 6/F (No. 6) took up the carparking space but only used the same when she came back to visit her family at the Building once or twice a week.  Miss Chan surrendered CP No. 6 in October 2017 and it’s vacant now;

g.   CP No.7 used by Mr Law of 4/F (No. 8) who seldom used his car; and

h.   CP No. 8 used by herself and her husband, using the car few times per week to go swimming in Fanling and shopping for daily necessities, but never very early in the morning or late at night and will drive the car out for car wash except when bird droppings are found, Chan had to clean the same by herself occasionally.

43.  Woo said that since the vast majority of the residents in the Building are elderly retired persons who only used their cars very occasionally, the level and/or frequency of any noise, exhaust pollution or petrol smell in the course of using these carparking spaces is of minimal extent and this should be well known to Ko who saw these carparking spaces before she purchased the Premises. As for the cleaning of cars, most of the car owners assigned this job to Ah Mei who usually washes the cars between 8:30am to noon.

44.  Ko agreed under cross examination that the users of CP No. 3 to 7 are aged people and they need some time after boarded the car to drive off.  So the crux of the matter should be whether the time taken is reasonable.  Mrs Chan for the IO had prepared an Annexure A in her final submissions listing the time taken from starting of engine to driving off in the video clips (B/166) (Ms Wong for Ko had no dispute on the content of Annexure A).  Out of the 11 video clips that actual time can be displayed, the time taken ranges from 3 seconds to 70 seconds (1 at 3 seconds, 4 within 20 seconds, 4 within 30 seconds, 1 at 44 seconds and 1 at 70 seconds).  So the average time taken is about 20-30 seconds and I find this is reasonable time taken especially for aged people.  The extreme case of 44 seconds and 70 seconds are just isolated event and even if there is any exhaust fumes or petroleum odour or noise causing interference with comfort or convenience, it must not be serious enough to constitute a nuisance.   

45.  For the bumping of reversing cars into the tyre hung on the Mesh Fence causing it to hit against the air-conditioners of the Premises, I adopt my findings above at §22.  The 3 video clips produced by Ko are captured by the CCTV installed by her and according to the date shown on the videos, they are taken on 10 May 2017, 9 October 2016 and 5 April 2017.  In a matter of 7 months, Ko only experienced the bumping of cars against the tyre on 3 occasions and bump sound only heard on 2 occasions, I fail to see how can this be considered sufficiently serious enough to constitute a nuisance.

46.  Ko admitted under cross-examination that the video clips of car washing only depicted birds’ chime, water dripping sound without anyone speaking or any radio sound and also agreed this is normal sound from car washing.  But she insisted there is another maid of the user of the carpark who used to play music from her mobile phone or talking over the phone whilst washing the car.  But this situation ends after a change of a new maid.  There is no evidence in support for this allegation and on the contrary, the video clips produced tend to rebut Ko’s evidence.  If Ko had been disturbed by the sound of radio or singing when someone washed the car, why would Ko not been able to produce any video in support?  I find this allegation is not substantiated.

47.  The same can be said for the allegation of someone cleaning the car in midnight or after 9pm.  In any event, Ko failed to adduce evidence as to the frequency of car washing activity after 9pm and there was only 1 incident for car washing at midnight.  There is no basis to find that such car washing activity is serious enough to constitute a nuisance. 

48.  Ko also confirmed she had never seen anyone changing the engine oil at the carpark but just saw some engine oil on the floor and it is just her inference drawn that someone must have changed the engine oil at the Open Yard.  This allegation is apparently without basis.

49.  For the light generated from reversing car, the 2 video clips produced (B/223) are taken on 17 February 2324hrs and 1 November 2219hrs, without naming the year (as shown on the television depicted in the video).  One can see that a car is reversing to park into the carparking space with rear light and brake light on intermittently for about 1 minute in each video clip.  Even though the one taking the video described in the video that the light is very bright, I beg to differ.  The light is being blocked by the Canvas in the first video and by the plastic shade on the window pane and is not really bright.  And even if that is bright, the part affected is the sitting/dining room of the Premises and those inside the Premises is still watching television at the material time and I can’t see how the light can cause any interference with their comfort or convenience.  And even if it did, given the fact that there were only 2 occasions in a time span of 4 months (taking Ko’s case to the highest), I do not agree that such interference is sufficiently serious to constitute a nuisance.

Issue 6-7 – whether the Spotlight generates excessive brightness and glaringness which constitutes nuisance and whether the keeping of the Spotlight is reasonable for the common good of the residents

50.  Ko had produced video clip (B/224) and photographs (B/130-133, 261-263) to show the brightness of the Spotlight.  Ko described the Spotlight makes the inside of the Premises looks like daytime (B/144-146 photographs taken at dining room and B/147-149 photographs taken at master bedroom) and she had to install 2 light blocking blinds and 1 window sheet at the master bedroom to block the strong light (B/89 & 148).  The Spotlight is turned on even before sunset and it is pointing towards the windows of the Premises (B/130-131, 135, 140-149).  Ko maintained that the video clip (B/224) shows that when one comes up from the slip road from Kent Court, once turned into the Open Yard, will find the Spotlight too bright and glaring. 

51.  Chan said that even though there was florescent light on the external wall of the Building (Exhibit R5(3)), it was too dim and not bright enough.  About 20 years ago, burglary occurred in the upper floors of the Building and on the advice of the police, the Spotlight was being installed.  Ever since then, burglary incident had been reduced.  Both Chan and Woo confirmed there are CCTVs at the Open Yard and 1 security guard in the night time.  Woo also agreed that street lamps can be installed but this will incur expenses which is something burdensome for the owners who are mostly of old aged and retired.

52.  Under cross-examination, Ko confirmed that the Spotlight is pointing towards the driveway from Kent Court, including the passageway in front of the carparks (B/262).  But she still felt disturbed by the Spotlight at the master bedroom even though it is further away from it since the light peeps into the master bedroom from the side of the blinds (B/149).  When pointed out to her that the photographs she produced (B/144-146) did not show the inside of the Premises bright as daytime, Ko explained that seeing with bare eyes is different from that captured by camera and there is also the 2 layers of blinds including 1 layer of sun blocking blind being installed.  She admitted that the Spotlight can serve an anti-burglar purpose but this is not a must and there are other options to achieve the same purpose with least interference to the occupiers of the ground floor units.

53.  This Tribunal is not required to make a finding as to what should be the reasonable option for crime prevention so there may be other possible options is neither here nor there.  Nor is this Tribunal required to find whether the Spotlight is too bright and glaring to those coming up from the driveway from Kent Court.  The real issue is whether the Spotlight constitutes nuisance to Ko and her family so the crux of the matter is whether the Spotlight is so bright that it affects the comfort of those staying inside the Premises.

54.  On this issue, Ko’s complaint is that the Spotlight makes it looks like daytime inside the Premises, so much so that she had to install 2 layers of blinds at the master bedroom.  As can be seen from the video clips depicting the rear light of reversing car into CP No. 3 (B/223), that is taken in late evening and as can be seen from the video, the inside of the Premises is all dark even though the Spotlight was on.  Whilst photographs may be misleading (B/144-146) and didn’t show what bare eyes can see (adopting Ko’s word), videos should be able to capture the exact situation.  Again, Ko’s evidence is not supported by the video clips and this shows the exaggeration by Ko about the inside of the Premises bright as daytime when the Spotlight is on. 

55.  As for the master bedroom which is further away from the Spotlight, one can see from the video clips depicting the Spotlight (B/224) and the photograph (B/263) that the radiant light of the Spotlight at CP No. 6 to 8 are dimmer compared to those at CP No. 3 and 4.  So, the only inference to be drawn must be that the situation at the master bedroom must be less serious than the sitting/dining room.  And even if the light of the Spotlight did shine into the master bedroom, as can be seen in the photographs (B/147 & 149), with or without the 2 layers of blinds installed by Ko, the bedroom doesn’t look as bright as daylight but the brightness inside the master bedroom is apparently at an acceptable level and should not affect the comfort of those inside the room.

56.  In any event, even if I am wrong on the findings on the level of the brightness of the Spotlight, there is no evidence from Ko as to how the Spotlight had interfered with her comfort or convenience.  Ko, in her evidence, only stated the condition of the brightness of the Spotlight without telling how it affects her.  I do not accept that the level of brightness of the Spotlight do amount to a nuisance or a nuisance of sufficiently serious nature.

Issue 8 – whether the predecessor had waived or acquiesced in the carparks, Spotlights and Mesh Fence and whether Ko is bound by the same

57.  The IO contended that the predecessor-in-title of the Premises had waived or acquiesced in the existence of the carparks at the Open Yard, the Spotlight and the Mesh Fence and the applicant was bound by this.

58.  Ko had fairly admitted that she had no knowledge of what her predecessor had agreed with the IO and in no position to agree or dispute whether the predecessor-in-title had waived or acquiesced the same.  However, Ms Wong for Ko argued that such acquiescence or waiver is not binding on Ko since only covenants expressed or intended to run with the land are enforceable against successors-in-title according to section 41(2) and (3) of the Conveyancing and Property Ordinance, Cap. 219.  In the present case, the land in question is common area and not the land an owner had exclusive possession so whatever the predecessor-in-title had acquiesced or waived is not any interest in the land assigned.  Even though Ko may have noticed the existence of the carparks, the Spotlight and the Mesh Fence on inspection of the Premises before purchase, this is different from discovering the nuisance caused by them.

59.  There is no dispute that the carparks at the Open Yard, the Mesh Fence and the Spotlight had been in existence for many years.  The predecessor-in-title of the Premises had been occupying the Premises for years with all these facilities well in place.  The fact that the Open Yard and the external wall are common areas of the Building and the IO had used these common areas to set up the carparks, installed the Mesh Fence and the Spotlight must be clear to the predecessor-in-title.  Yet, the predecessor-in-title had not raised any complaint and was in fact one of the users of the carparking space as well. All these point to the conclusion that the predecessor-in-title must be aware of the use by the IO but had acquiesced in it.

60.  S.41 of the Conveyancing and Property Ordinance (“Cap. 219”) deals with enforcement of covenants, including “a covenant implied by or under … any law” (s.41(1) Cap. 219 refers).  S.34I BMO must be the kind of covenant implied and binding on all owners as well as the IO.  S.41(2) Cap. 219 further qualified that the section is only applicable to “the land of the covenantor” and “the land of the covenantee”.  Land, as defined at s.2 of Cap. 219, includes “any estate, right, interest or easement in or over any land” and not confined only to land one had exclusive possession.  So the right and interest of an owner over the common area must be a right or interest in or over the land.  To argue that the effect of s.41(2) and (3) of Cap. 219 is only applicable to exclusive possessed land and not for common areas is inconsistent with the definition in Cap. 219.

61.  Acquiescence and waiver is an equitable defence to the enforcement of breach of covenant, including s.34I.  Waiver and acquiescence binds successors-in-title.  If the predecessor-in-title was being estopped from enforcing the covenant against the IO, the successor-in-title, who derived the interest and title on the property from the predecessor-in-title waiving the breach, cannot be in a better position than the predecessor-in-title.  Ko must be bound by the inaction of her predecessor-in-title which constitute a waiver or acquiescence and be estopped from enforcing s.34I(1)(b) against the IO.

Issue 9 – whether the applicant has, by her own acts, acknowledged, approved and/or acted inconsistent with her claims against the parking of cars in front of the Premises

62.  The IO contended that Ko had requested the use of one of the carparks at the Open Yard and this is inconsistent with her contention that the carparks shall be removed, hence Ko should be estopped from complaining about the same.  The applicant should not be entitled to the injunctive relief sought since this would cause hardship to other residents of the Building who are in advanced age like Chan. 

63.  Ko contended that since the complaint is the nuisance generated by the vehicles parked at CP No. 1-8, the fact that she had once applied for one carparking space is not tantamount to conniving the nuisance caused by the abnormal usage.  In any event, after discovery of the nuisance, Ko had turned down the offer of a parking space at the Open Yard.  The IO failed to show that it would be unjust to grant the injunctive relief.  Owners like Chan can find another carparking space at the garage of the Building and damages will not be an adequate remedy for a nuisance which will continue unless restrained by an injunction.

64.  It is not in dispute that when Ko asked for the use of one of the carparking space at the Open Yard, she and her family had not yet moved into the Premises and had not suffered any effect of the nuisance (if any).  Under such circumstances, her act cannot be said to have acknowledged or approved or acted inconsistent with her claim against the parking of cars in front of the Premises.

65.  As for the hardship likely to be caused to the other residents, there is only evidence from Chan that it would be inconvenient to her if there is no carparking space at the Open Yard since her physical condition cannot afford to walk the steep driveway from Kent Court to the Building.  I find this to be insufficient to show that hardship will be caused to other residents to support the contention that it would be unjust to grant the injunctive relief.  But given my findings that Ko had failed to establish nuisance, this issue becomes academic.

Issue 10 – whether the applicant should be entitled to any damages

66.  Ms Wong relied on the case of Ng Yuen Han v Lam Fei Fui [2013] 3 HKLRD 608 in support of the quantum of damages to be awarded.

67.  Mrs Chan submitted that the applicant failed to prove her case and should not be entitled to any damages.

68.  Given the findings above that Ko had failed to establish any nuisance in all the allegations, her claim for damages must fail as well.  Even if I am wrong in the findings on nuisance, the nuisance complained of by Ko are of the least serious in nature and should only justify a nominal damages of $100 in recognition of her legal rights having been infringed.

Issue 11 – whether the cause of action had accrued at the commencement of these proceedings

69.  The IO contended that since the applicant commenced these proceedings on 11 September 2015, a time shortly after the purchase of the Premises but well before Ko moved into the Premises in late November 2015, the cause of action had not accrued before Ko was affected by the nuisance or suffered the effect of the nuisance.

70.  Ms Wong for the applicant submitted that the fact that Ko and her family have not yet moved in is no bar to the applicant taking out an action.  There is clearly prospective and even actual damage caused by the Mesh Fence and the carparking spaces.

71.  I agree with the IO that the taking out of these proceedings by Ko in September 2015 is pre-mature when Ko had not yet moved in and had suffered no nuisance yet, if there is any.  The cause of action had not accrued at the time of the commencement of these proceedings and there will be prospective damage or actual damage after the lodging of the claim cannot salvage this deficiency.  Even though Ko may sue for a continuance of a nuisance which began before she became occupier, there is no evidence to show that the complaint of Ko was a nuisance to her predecessor-in-title since there was never any complaint before Ko did.

Issue 12 – whether the IO had acquired the right to install the Mesh Fence, the Spotlight and the car parks at the Open Yard by prescription

72.  Mrs Chan for the IO had confirmed in her final submissions that the IO will no longer pursue with this issue.

Conclusion

73.  Judging from the findings above, Ko failed to establish any nuisance arising from the use of the Open Yard as carparks, erection of the Mesh Fence and the Spotlight.  Even if Ko’s complaints are substantiated, they are of such trivial, infrequent and temporary nature that cannot be sufficiently serious to constitute nuisance.  Ko’s claim must be dismissed.

Costs

74.  Costs should follow the event.  In view of the fact that the IO had failed in a number of issues, I grant an order nisi that 65% costs of these proceedings be to the respondent, to be taxed if not agreed on party-and-party basis, with certificate for counsel.  This is a costs order nisi.  Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.