BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

HCAL3/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.3 OF 2005

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REASONS  FOR  JUDGMENT

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1. In these proceedings, the Building Authority (“the Authority”) applies to judicially review the determination of the Appeal Tribunal (Buildings) (“the Tribunal”) in Buildings Appeal cases nos.325 and 326 of 2003, given in writing on 6 October 2004.  Leave to judicial review was granted on 10 January 2005.

2. The Tribunal by letter dated 21 March 2005 indicates that it does not wish to be represented or heard in these proceedings.

3. The appellants in the appeal cases had been served with the papers of these proceedings.  Lucky Sino Limited, the appellant in case no.325 of 2003 did not appear.  Mr and Mrs Patria (“the Patrias”), the appellants in case no.326 of 2003, were present at the hearing of the judicial review application but indicated that they did not wish to be heard.

4. At the conclusion of counsel’s submission, I allowed the application for judicial review.  My reasons appear below.

Background

5. Lucky Sino Limited is the owner of 4/F and Roof, Antonia House, No.10 Broom Road, Hong Kong.  The Patrias are the owners of 4/F and Roof, Antonia House, No.12 Broom Road, Hong Kong.

6. During site inspections on 2 May and 16 July 2003, the Authority found a number of unauthorized building works on the roofs of Nos.10 and 12 Broom Road and the adjacent roof areas.  As a result, the Authority issued five Orders under section 24(1) of the Buildings Ordinance, Cap.123 on 25 July 2003.

7. Two of the Orders No. CRT/RT/004775/03/HK and CRT/RT/004776/03/HK were in respect of Nos.10 and 12 Broom Road respectively.  They required the removal of the specified unauthorized building works and reinstatement of the affected parts of the building in accordance with the approved plans.  The unauthorized building works involved are :

(1)     Order No. CRT/RT/004775/03/HK

(a)    structures erected on the roof, and

(b)    approved vent duct removed.

(2)     Order No. CRT/RT/004776/03/HK

(a)    structures erected on the roof, and

(b)    an opening formed in the staircase enclosure at roof level.

8. Lucky Sino Limited and the Patrias appealed against the above Orders to the Tribunal.  The Tribunal heard the appeals together on 29 July 2004.  By a written Determination dated 6 October 2004, the Tribunal unanimously allowed the appeals.

9. On 5 January 2005, the Authority commenced these proceedings to judicially review the Tribunal’s determination.

Antonia House

10. Antonia House stands on Nos.4, 6, 8, 10 and 12 Broom Road.  It is four storeys high and comprises 20 flats.  There are two entrances, each leading to one staircase.  One of the two staircases leads to Nos.4 and 6 while the other staircase leads to Nos.8, 10 and 12.  The flats on either one staircase do not have direct access to the other staircase.  However, because both staircases have exits to the roof, it is possible to gain access from one staircase to the other by crossing over the roof.

The Orders

11. Following consultations with the Legislative Council and District Council, Owners Incorporations and professional bodies, the Government committed in 2001 to remove all unauthorized building works on the roof of single staircase buildings within seven years.

12. For the purpose of implementing the Enforcement Policy Against Unauthorized Building Works (“Enforcement Policy”), unauthorized building works (UBW) are divided into two types : imminent danger and potential danger.  The classification is purely for determining priorities.  This is set out in Buildings Department’s Existing Building Division, Section 6, Instructions No.3.  Appendix A of it further gives the definition of “imminent danger” from both the structural stability and the fire safety point of view.  In respect of the latter, Definition (3) states :

“From the fire safety point of view, an imminent danger arising from UBW means a situation where in the event of a fire, an occupant of the building, because of the UBW, may not be able to escape to a place of safety or may face a high risk of being injured in such an escape, or the UBW has increased the risk of fire spread, or the UBW may result in injury / causing difficulties to the firemen in fire fighting and rescue operation.  The priority grading of this type of UBW is ‘Immediate Enforcement’.”

13. The subject Orders were issued pursuant to the large scale clearance operation for illegal roof top structures on single staircase building.  It is the Authority’s view that Nos.8, 10 and 12 Broom Road together form a single staircase building.  The Authority further considers that the unauthorized building works on Nos.10 and 12 amount to “imminent danger” for the purpose of ranking priority.

The appellants’ case on appeal

14. Lucky Sino Limited and the Patrias appealed to the Tribunal on the following main grounds :

(1)	Antonia House that stands on Nos.4, 6, 8, 10 and 12 Broom Road is not a single staircase building.  Instead, it should be regarded as one building with two staircases; and
(2)	There is enough refuge area on the roof under the 1959 Code of Practice for the Provision of Means of Escape in Case of Fire and Allied Requirements (“1959 Code of Practice”).

15. It is not in dispute that the structures specified in the Orders are unauthorized building works.  At the hearing before the Tribunal, there was also no issue as to the correctness or aptness of the Enforcement Policy.  The critical issue before the Tribunal was whether Nos.8, 10 and 12 was a single staircase building and fell within the Enforcement Policy.

The Tribunal’s Determination

16. In summary, the Tribunal accepted the appellants’ arguments that Nos.8, 10 and 12 was not a single staircase building, and was therefore not a building to which the large scale clearance operation applied.

17. The basis on which the Tribunal came to its conclusion was set out in paragraphs 27 and 28 of the Determination.  They read as follows :

“	27.	During his closing address the Building Authority’s representative produced the 1959 code in respect of Means of Escape, being the applicable code at the time of plan approval and of the occupation permit.  Paragraph 6(2) of the code provides: ‘No building will be permitted to have a single staircase unless such building complies with the following conditions : … (d) In the case of a building in which the level of the highest floor is not more than 42 feet above ground level the usable floor area of any storey above the ground floor shall not exceed 2,500 square feet. …’
	28.	The highest floor in Antonia House, as shown of the approved building plans is not more than 42 feet above ground level.  The Appellants’ representative, Mr. Yip, told the Tribunal that the usable floor area of the storeys above ground floor was about 4,500 square feet.  The Building Authority’s representative did not disagree.  Given that the usable floor area is about 4,500 square feet, if Antonia House is a single staircase building, it would not have complied with the code at the time its building plans were approved by the Building Authority.  No evidence was adduced to the effect that the Building Authority had approved a deviation from or a relaxation in respect of the code and, in the circumstances the Tribunal must presume that the Building Authority gave his approval in accordance with the code.  It follows from the presumption that in 1963 the Building Authority considered Antonia House, including Nos.8, 10 and 12, to be a building with two staircases.  Indeed, the building would not pass as a single staircase building under the latest version of the code (1996), which limits the usable floor area of single staircase buildings with a highest floor level of less that 13 metres to no more than 250 square metres.”

18. Having concluded that the subject building was not a single staircase building, the Authority considered it was not necessary to decide whether the Authority was correct in classifying the roof top structures as constituting “imminent danger”. 

The grounds for judicial review

19. The Authority’s judicial review is primarily directed at the Tribunal’s conclusion that Nos.8, 10 and 12 Broom Road do not form a single staircase building.  Specifically, it raises the following grounds :

(1)	There is no proper evidence for the Tribunal’s finding that the usable floor area of the storeys above ground floor was 4,500 sq.ft.
(2)	There is no proper basis for the Tribunal to conclude that the Authority had never treated the subject building as a single staircase building.
(3)	On the facts, it was irrational for the Tribunal not to have accepted that the subject building was a single staircase building.

Usable floor area of the storeys above ground floor

20. Plainly, the Tribunal proceeded on the basis that it was an uncontroverted fact that the usable floor area of the storeys above ground floor was 4,500 sq.ft.  This comes about as a result of the submission of the appellants’ representative, given in answer to the Tribunal, that the usable floor area of the storeys above ground floor was about 4,500 sq.ft.  This, however, is contrary to the evidence presented before the Tribunal.

21. Appendix IV of the appellants’ expert report shows the total usable floor area of the 4^th floor of Nos.8, 10 and 12 Broom Road to be 291.73 m² (70.39 m² + 143.64 m² + 77.70 m²).  Excluding two kitchen areas (as required by the definition in paragraph 2 of the 1959 Code of Practice), the total usable floor area of each storey of Nos.8, 10 and 12 is 270.49 m² (291.73 m² – 5.93 m² – 15.31 m²), equivalent to approximately 2,434 sq.ft.  This is less than the 2,500 sq.ft permitted for a single staircase building under paragraph 6(d) of the 1959 Code of Practice.

22. In E v. Secretary of State for the Home Department [2004] 2 WLR 1351, the English Court of Appeal held that mistake of fact giving rise to unfairness was a separate head of challenge on an appeal to the Immigration Tribunal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the right result.  Carnworth LJ, giving the judgment of the court, stated that the ordinary requirements for a finding of unfairness are that : (1) there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter, (2) the fact or evidence must have been “established” in that it was uncontentious and objectively verifiable, (3) the appellant (or his adviser) must not be responsible for the mistake, and (4) the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.

23. In the present case, the Tribunal was mistaken as to the usable floor area of the storeys above ground floor and the mistake was material to its determination.  The issue as to the usable floor area only came about towards the end of the closing submission for the appellants.  The Tribunal had invited the representative of the Authority to address on the point.  The response of the Authority’s representative was that he did not take the position that the subject building complied with the 1959 Code of Practice.  Instead, he focused on the danger posed by the unauthorized building works.  Unfortunately, this had led the Tribunal to labour under the impression that the Authority’s representative “did not disagree” with the contention of the appellants’ representative on the usable floor area.  Although it can be said that the Authority’s representative could have elucidated the position for the Tribunal, this is not the same as saying that the Authority was responsible for the mistake.  The appellants’ representative was the author of the mistake.

24. Applying the principle in E v. Secretary of State for the Home Department, the Tribunal’s mistake on the usable floor area of the storeys above ground floor per se constitutes a ground for judicially reviewing the Tribunal’s determination.

The Tribunal’s conclusion on single staircase building

25. As a result of the mistake as to the usable floor area, the Tribunal went on to presume that when the Authority gave its approval in 1963 to the subject building, it had acted in compliance with the 1959 Code of Practice.  On this basis, the Tribunal concluded that the Authority must have considered Antonia House, including Nos.8, 10 and 12, to be a building with two staircases.

26. In the Authority’s submissions, there is no proper basis for the Tribunal’s conclusion.  The Authority refers to the approved plan, which is appended to the appellant’s expert report.  In the plan, under the calculations of typical floor area, Antonia House was treated as two separate buildings.  Similarly, under the calculations of staircase, there were separate calculations for the two staircases.  The provisions of staircases for Nos.8, 10 and 12 (referred to as Flats A, B and C on the plan) and for Nos.4 and 6 (referred to as Flats C and D on the plan) were calculated separately.  There was also a cross-reference to Table 4 in the 1959 Code of Practice, which deals with “minimum widths of stair where all storeys are served by a single staircase”.

27. Evidently, the Authority had, in approving the plan in 1961, regarded Nos.8, 10 and 12 as a single staircase building.  There is thus no proper basis for the Tribunal’s conclusion that the Authority had treated the whole of Antonia House and also Nos.8, 10 and 12 as a building with two staircases.  In this connection, it is relevant to note that under the Buildings Ordinance, “building” is defined to include either the whole or part of a building.  Hence, there could have been no objection to regarding Nos.8, 10 and 12 in Antonia House as constituting one building.

28. In any event, as Mr Coleman argues, the relevant time for considering whether the subject building is a single staircase building must be when the Orders were issued and served.  The Authority’s previous assessment or treatment of the building is not determinative of whether the subject building forms a single staircase building within the ambit of the Enforcement Policy.

29. In the context of the Enforcement Policy, two matters are clearly relevant and pertinent.                     Firstly, it is to be noted that “single staircase building” is not statutory defined.   Its meaning therefore falls to be ascertained by reference to the purpose for which it was employed.  In this case, it becomes important to see the context and rationale for the term in the Enforcement Policy.

30. Secondly, an important objective of the Enforcement Policy is to ensure adequate means of escape in case of fire or other hazards.  In this regard, paragraph 2 of the 1959 Code of Practice defines an exit route as a route by which people in any storey of a building may reach a place of safety outside the building.  This was echoed by the witness for the Authority who testified before the Tribunal that in the context of the Enforcement Policy, “we actually consider, in terms of a layman or an occupant, when they encounter a situation of fire, how they would react to find an escape.  In this case, when an occupant is in the typical floor he or she can only find one fire escape in his premises and that is our interpretation of a single staircase building.”

31. As a matter of practical reality, it must be the case that the occupants of any of the flats at Nos.8, 10 and 12 have only one means of escape because there is only one staircase for them to have access to and egress from the building.  The other staircase serving Nos.4 and 6 is not accessible to them.  Also in terms of exit route, they only have one exit route.

32. Under paragraph 6(g) of the 1959 Code of Practice, which applies to buildings with single staircase in which the level of the highest floor is more than 42 feet above ground level, of which the subject building is one, the staircase is required to be continued to the roof, and that access shall be provided across such roof to the staircase of an adjoining property.  Hence, the fact that the staircase serving Nos.8, 10 and 12 can have access to the staircase of Nos.4 and 6 across the roof does not show that Antonia House, including Nos.8, 10 and 12, is a building with two staircases.  On the contrary, it confirms that Nos.4 and 6 and Nos.8, 10 and 12 are two separate buildings.

33. In the circumstances, the Tribunal’s conclusion that the Nos.8, 10 and 12 was not a single staircase building in the context of the Orders and the Enforcement Policy is irrational in the public law sense.

Conclusion

34. For the reasons above, the judicial review application is allowed.  There is an order of certiorari to bring up and quash the determination of the Tribunal.

35. Although the Authority has moved for an order restoring the Orders, I do not consider this appropriate having regard to the fact that the appeals involve other issues and they have not been resolved by the Tribunal.  Accordingly, I also make an order remitting the two appeals to the Tribunal for determination.

36. The Authority does not ask for costs.  There is therefore no order as to the costs of these proceedings.