LIANG TING SEN THOMAS v. DIRECTOR OF EDUCATION

HCAL 2241/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2241 OF 2000

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J U D G M E N T

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1. The Applicant in this matter, by way of judicial review, seeks to quash three decisions of the Respondent. Each decision concerns the Respondent's refusal to register, or in one instance to fully register, certain buildings as being suitable for use as schools.

Introduction.

2. The Applicant is the supervisor of two schools. Both are situated in the Kowloon Tong area. The one school, presently operating from 121 Boundary Street, is called St. Johannes College. The other school, presently operating from premises in Waterloo Road, is called the American International School. Pupils have been educated at both schools for many years.

3. In late 1999, in order to accommodate more pupils, it was decided that St. Johannes College would move to two newly leased premises, both being close to the existing premises. It was resolved that the kindergarten section would move to premises at 3 Flint Road while the primary section would move to premises at 101 Waterloo Road.

4. At about the same time, it was decided to move the American International School, which caters for secondary students, to newly leased premises a little further down Waterloo Road at number 127.

5. Although both schools were registered in terms of Part II of the Education Ordinance, Chapter 279 ('the Ordinance'), it was necessary to amend the certificates of registration to cater for the change in premises. Accordingly, applications were made to the Director of Education ('the Director') in terms of section 20 of the Ordinance.

6. None of the three premises in respect of which the applications were made had been purpose-built as schools. They were buildings of some maturity which had been designed and constructed for other purposes. However, because of an expanding school population and a shortage of purpose-built educational establishments, the legislature has long recognised that premises designed and constructed for purposes other than schooling may nevertheless be used as schools. This recognition is reflected in the Ordinance.

7. On 30 September, under cover of separate letters, the Director informed the Applicant of his decision in respect of the three premises. The Director refused absolutely to grant the application for an amending certificate of registration in respect of two of the proposed premises. In respect of the third, the application was granted but only in respect of a portion of the building. For all practical purposes that restricted approval meant that the building could not be used by the Applicant as a school in the manner anticipated.

8. The Director's reasons for refusal, while sharing a common theme, were nevertheless a little different factually in each instance.

St. Johannes College: 101 Waterloo Road.

9. In his letter of refusal, the Director noted that a small portion of the proposed building contained unauthorised building works ('unauthorised works') which had recently been made the subject of a demolition order by the Building Authority in terms of section 24(1) of the Buildings Ordinance, Chapter 123. He accepted that the offending structures would be removed within a matter of days. But of central concern to him was the apparent presence of more extensive unauthorised works which were not (as yet) the subject of any demolition order. More particularly, the Director's letter read as follows:

"I understand that you deny that there are any UBW [unauthorised works] other than the structure that will be demolished. Nevertheless, the Buildings Department has classified them as such and that is how this Department will treat them unless you can somehow prove to us that the Buildings Department has made an error. The Director will refuse to grant or amend any certificate of registration, in whole or in part, for any premises which include UBW. The reasons for this are:

(a) because of the risk of disruption to the operation of the school in the event the UBW become the subject matter of a demolition order, regardless of the likehood of such an order being made; and

(b) the Director is of the view that it is inappropriate for the Department of Education to certify premises as suitable for the purpose of a school when they are made up, in whole or in part, of UBW."

St. Johannes College: 3 Flint Road.

10. In respect of this premises, the Director gave restricted approval. He refused to give his approval, however, to those portions of the building which contained unauthorised works. He noted that some of the unauthorised works were the subject of a demolition order. In this regard he wrote:

"The Order requires Golden Fook Company Limited, which is, we presume, the owner of the premises, to commence the demolition of the UBW within two months and have such demolition work completed within four months. Golden Fook Company Limited will have to start the demolition work on the UBW by no later than 6th November 2000, subject to an appeal pursuant to section 44 of the Buildings Ordinance. It appears to us that such demolition work will cause a large and unacceptable disruption on the operation of the school, which will adversely affect the learning of its pupils and make the premises unsuitable for the purposes of a school. I have no knowledge of whether Golden Fook Company Limited intends to appeal this Order, but even it does, the filing of such an appeal, in itself, will not change my decision."

11. The Director continued:

"It is appropriate that I also inform you that the Director will refuse to grant or amend any certificate of registration, in whole or in part, for any premises which include UBW for two reasons. The first is the risk of disruption to the operation of the school in the event that UBW become the subject of a demolition order, regardless of the likelihood of such an order being made. The second reason is because the Director is of the view that it is inappropriate for the Department of Education to certify premises as suitable for the purposes of a school when they are made up, in whole or in part, of UBW."

The American International School: 127 Waterloo Road.

12. In respect of these premises, the Director wrote that he was aware that portions of the premises consisted of unauthorised works and that some were the subject of a demolition order. In this regard, he wrote:

"It appears to us to be very likely that this demolition work will cause a large and unacceptable disruption on the operation of the school, which will adversely affect the learning of its pupils and make the premises unsuitable for the purposes of a school.

I have no knowledge of whether Flanders Enterprises Limited intends to appeal this Order, but even it does, the filing of such appeal, in itself, will not change my decision."

13. The Director continued:

"It is appropriate that I also inform you that the Director will refuse to grant or amend any certificate of registration, in whole or in part, for any premises which includes UBW for two reasons. The first is the risk of disruption to the operation of the school in the event it becomes the subject of a demolition order, regardless of the likelihood of such an order being made. The second reason is because the Director is of the view that it is inappropriate for the Department of Education to certify premises as suitable for the purposes of a school when they are made up in whole or in part of UBW."

14. From this it will be seen that the Director's reasons for refusing to grant (in full) the three applications centred on the existence in each proposed school premises of unauthorised works, some of those works being the subject of demolition orders. In two instances the Director also raised the matter of a lack of sanitary facilities. But it is accepted that this lack only arose because a substantial portion of the facilities were located in those parts of the buildings identified as unauthorised works and, as such, were not taken into account by the Director.

15. As to the extent of these unauthorised works, accompanying all the letters from the Director were plans of the proposed premises. These plans identified the extent of the unauthorised works, the Director having received this information from the Building Authority. The plans showed which works were the subject of demolition orders and which were not. At face value at least the unauthorised works - to the extent that they founded the Director's decisions - appear to be more than merely incidental parts of or appendages to the buildings. Indeed, in each instance they appear to be quite extensive and to involve major structures such as rooms and roofing.

16. The Applicant has sought to quash the decisions of the Director on a number of different grounds. However, before moving to consider those grounds, something should first be said of the statutory scheme in terms of which the Director is required to exercise his discretionary power to consider the registration of school premises. Something should also be said of the special problem presented by unauthorised works in Hong Kong and the manner in which both the Building Authority and the Director of Education have chosen to deal with them.

17. The Ordinance has as its central aim the promotion of education in Hong Kong. Section 10 of the Ordinance directs that all schools must be registered. The process of registration is by way of application to the Director using the prescribed forms supported by specified plans, certificates and the like. New applications fall under sections 10 and 11 of the Ordinance. In addition to such matters as management and staffing, these sections contemplate the approval of new school premises. If a school which is already registered seeks additional or alternative premises, the application is made in terms of section 20. But essentially the procedure is the same.

18. More particularly, whenever the premises is not purpose - built, certain extra certificates must accompany the application. These additional documents are specified in section 12(1). First, there must be a certificate from the Director of Fire Services that the premises will not expose people to undue risk of fire. Second, certificates must be supplied by the Building Authority attesting to three specific matters; namely, that the premises does not have 'structural timber floors', that in the event of fire there are adequate means of escape and that, having regard to 'the loading' for which the premises was designed and constructed, it is nevertheless suitable for use as a school.

19. The matters set out in section 12(1) are, in my view, manifestly all matters of safety. They do not give to the Director of Fire Services or the Building Authority the power to refuse to issue a certificate on other more general grounds of suitability.

20. However, that being said, section 12(4) provides that the issue of certificates does not in any way affect the powers of the Building Authority to take action in terms of the Buildings Ordinance, Chapter 123. By way of example, therefore, if upon inspection of the premises the Authority discovers unauthorised building works requiring immediate demolition it is not prohibited from issuing the necessary demolition order. Indeed, the history of the present case reveals that the Building Authority did, in each instance, issue such orders.

21. It is to be emphasised that the various certificates required by section 12 are not in any way determinative of the application. They are given in support of it. It remains for the Director to then exercise his discretion whether or not grant the application. In this regard, concerning an application for additional or alternative premises, section 20(5) of the Ordinance states:

"On receiving an application in accordance with this section, the Director shall make such inquiry as he considers necessary and shall determine the application -

(a) by granting the application wholly or partly, in either of which cases he shall amend the certificate of registration or provisional registration and the copies thereof accordingly; or

(b) by refusing to grant the application."

22. Section 20 does not in any way limit the exercise of the Director's discretion. No specific guidelines are given nor any restrictions stated.

23. However, the Director does receive assistance in the exercise of his discretion when determining applications generally for the registration of schools. In this regard, section 13 of the Ordinance states that, on receiving an application for registration of a school -

"the Director shall make such inquiry as he considers necessary and shall determine the application -

(a) by registering the school in respect of which the application is made; or

(b) by refusing under section 14 to register the school."

24. Section 14 itself sets out the grounds upon which the Director may refuse to register a school. In respect of the proposed premises of a school (as opposed to the proposed staffing, management or equipping of a school) section 14(b) provides inter alia that the Director may refuse to register a school if it appears to him -

"that the proposed school premises are or are likely to be for any reason unsuitable for use for the purposes of a school;"

25. But does that definition have any relevance to the exercise of the Director's discretion under section 20(5)? I believe it does. Part II of the Ordinance obliges the Director, in the general advancement of education in Hong Kong, to consider registering buildings of essentially the same nature even though they may be the subject of either a new application or an application to amend an existing registration. In such circumstances, in my view, the legislature must have intended the Director to be guided in the exercise of his discretion by essentially the same considerations. He will after all on many occasions be considering buildings of similar age and structure intended to be used for the exact same purpose. Accordingly, if the Director, in exercising his discretion under section 20(5) is not bound by the provisions of section 14, I am firmly of the view that, in having regard to the objects and scope of Part II of the Ordinance, he is nevertheless obliged to obtain guidance from the matters listed in that section. But even if I am wrong in that regard, in my judgment the Director cannot be criticised for refusing to register an additional or alternative premises if, in the exercise of his discretion, he determines that the proposed premises are or are likely to be for any reason unsuitable for use as a school.

26. That still leaves the Director, of course, with a very broad discretion. Mr Coleman, for the Director, described that discretion, in part, as being 'unfettered'. His meaning was clear. The adjective 'unfettered' I took to be descriptive of a very broad discretion but not one that could be exercised without limits. A public servant, such as the Director, must exercise discretionary powers vested in his office lawfully; that is, with accurate regard to the scope and object of the legislation bestowing that discretion. Lord UpJohn in his speech in Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1060 expressed it thus:

"But the use of that adjective [unfettered], even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive, namely that in exercising their powers the latter must act lawfully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjectives."

Unauthorised building works - their nature and management.

27. Section 14 of the Building Ordinance, Chapter 123, provides that no building works shall be carried out without the prior consent of the Building Authority. Before that consent is given, the Authority must be provided with adequate plans. The Authority has broad powers to refuse approval or require changes before any approval is given. All building works which are carried out without this approval are unauthorised. The Ordinance provides no mechanism for the retroactive approval of unauthorised works. As a consequence, once discovered by the Buildings Authority, they must be marked for demolition at some time in the future. In practice, because of the great number of unauthorised works, large and small, it may well mean that a material number of unauthorised works will be tolerated, perhaps almost indefinitely. The Buildings Authority, it seems, does not have the manpower to require immediate demolition of all identified works and then to properly police such demolition orders. No doubt also the impact on Hong Kong's social fabric if a blitz was to take place is also a consideration. In recognition of these factors, the Buildings Authority from time to time has published a list of priorities. The list does not condone unauthorised works, it does no more than set out a timetable for their proposed destruction. In or about 1988 a new 'system of priorities' was published by the Authority and read, in part, as follows:

"Under the system, UBW [unauthorised works] are to be classified into a high priority group for which enforcement action shall be taken as a matter of priority and a low priority group for which enforcement action may be deferred. The criteria for distinguishing the two groups are:

(i) High Priority

(a) UBW constituting an imminently dangerous situation where there is an obvious danger to life or property.

(b) Significant new UBM irrespective of the date of completion of the building in which the UBW have been carried out.

(c) Such 'UBW' or particular types of UBW in buildings, lanes, streets, areas, etc. as may be recommended for demolition or other remedial action by public bodies or government agencies.

(d) Major UBW which contravene the Buildings Ordinance and lease conditions at the same time.

(ii) Low Priority

UBW not covered by the High Priority group will fall into the Low Priority group for which no enforcement action will be taken for the time being. Cases in this group will, however, be upgraded when it is considered appropriate to do so."

28. A decision of the Buildings Authority in respect of unauthorised works is not one which can be made without challenge other than on the restricted bases of judicial review. Part VI of the Buildings Ordinance provides for an appeal process. Section 49 states that a person aggrieved by any decision of the Building Authority made in terms of a discretion conferred on the Authority under the statute may appeal to an Appeal Tribunal Panel. That panel has broad powers. In terms of section 50(2), in determining an appeal, the panel may make an order 'confirming, varying or reversing' any decision being appealed or may substitute that decision with any other it thinks fit.

29. Mr Dykes, who appeared for the Applicant, referred to a number of decisions of the panel in order to emphasise the breadth of its discretion, a discretion which extended to action taken by the Building Authority in respect of unauthorised works and which has resulted in a reversal of such orders. An extract from one decision will suffice to illustrate the point. The decision appears in the work, Planning Buildings For A High-Rise Environment in Hong Kong, A Review of Building Appeal Decisions by Lawrence Wai-Chung Lai and Daniel Chi-Wing Ho (Hong Kong University Press). The decision in question is titled 'Marina Cove' and reads, in part, as follows:

"The Tribunal agreed with the submission of the Building Authority that the crux of the appeal in this case was whether the Building Authority exercised its discretion fairly in accordance with the policy on priorities. The Tribunal concluded that it was not satisfied on balance of probability that the subject building works which the appellant was ordered to demolish or remove were, at the material times, new within the meaning of the Building Authority's policy on priorities.

Accordingly, the Tribunal allowed the appeal and set aside the Building Authority's order. However, the Tribunal also added that this determination did not preclude the Building Authority from issuing an order in future as it considered fit in relation to the subject building works on other grounds in accordance with its policy. The grounds of the Tribunal's decision were as follows: The Building Authority did not justify the priority for the demolition of the subject building works"

30. Mr Dykes emphasised that an appeal process was an integral part of the statutory scheme created by the Buildings Ordinance. There was, however, no such appeal process in respect of a decision made by the Director (of Education) when he refused to register premises as being suitable for school use on the basis - that the premises contained unauthorised works.

31. In his affirmation of 10 November 2000, Peter Pak Yan Leung, the Assistant Director in the Education Department, the person who made the various decisions under challenge on behalf of the Director, said that he was aware of the policy of the Building Department concerning unauthorised works. He said that the Director had a long-standing policy of not certifying premises suitable for school use if they contained unauthorised works. This was because of the potential disruption to the education of students if the works became the subject of demolition orders. All efforts had been made, he said, to inform potential applicants of this policy through the medium of public briefing sessions which had been given since 1998.

32. In the old guidelines issued by the Director to assist persons wishing to register new schools this policy was alluded to in the following extract appearing in what I may call the general section:

"What are the points to take note of for schools situated in non-purpose-built premises not designed and constructed as a school?

* ... ...

* ... ...

* School premises shall not have any unauthorized building works."

33. More detailed mention of unauthorised works was made in the section related to the involvement of the Buildings Department in the registration process, that mention being restricted essentially to matters of safety.

34. In the new guidelines, however, issued in August 2000, no mention is made of unauthorised works in the general section. Mention is restricted to the section explaining the involvement of the Buildings Department and, as before, the degree to which unauthorised works may be hazardous to safety.

35. During the hearing, Mr Leung gave brief oral testimony. During the course of that testimony he said that the policy of not accepting unauthorised works was not absolute. Because of the broad nature of unauthorised works he said that the Director would, in the exercise of his discretion, accept some unauthorised works provided they were restricted in nature and presented no potential safety hazard. Consent would never be given, he said, to unauthorised works of substance such as classrooms.

The challenge of relevance.

36. A failure on the part of an administrative tribunal to take relevant factors into account or the taking into account of irrelevant factors will render the decision of that tribunal susceptible to judicial review. Essentially, as I understand it, it amounts to a transgression of the doctrine of reasonableness. Lord Esher MR stated the principle in R. v. St. Pancras Vestry (1890) 24 QBD 371 at 375 when he said:

"But they must fairly consider the application and not take into account any reason for their decision which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the courts consider not to be proper for the exercise of their discretion, then in the eye of the law they have not exercised their discretion."

37. Mr Dykes made the submission that it was not proper for the Director, in the exercise of his discretion whether or not to approve the various proposed premises, to take into account the existence of unauthorised works in those premises. It was simply not relevant to his function.

38. Mr Dykes submitted that the management and control of unauthorised works is the responsibility of the Building Authority and falls squarely under the statutory scheme created by the Buildings Ordinance, a scheme which encompasses an equitable process of appeal. Accordingly, said Mr Dykes, any enforcement action, direct or indirect, occasioned by the existence of unauthorised works was a matter for the Building Authority and was not a matter for the Director (of Education). The legislature, said Mr Dykes, had relieved the Director of the responsibility of making decisions concerning the structural safety of premises. The legislature had further relieved him of the responsibility of considering matters of fire safety. As he put it, once these technical issues were adequately dealt with by way of the necessary safety certificates, the issue for the Director was simply whether the premises were or were likely to be unsuitable for use as a school. The fact that premises contained unauthorised works - now certified to be safe - was therefore irrelevant to the proper exercise of his function.

39. But that, I believe, is far too restrictive a proposition and relies on the assumption that, in respect of bricks and mortar, once the safety issue has been resolved, the Director has no legitimate interest in that subject when considering the general issue of suitability. But the physical environment in which children are taught seems to me to be a legitimate concern for any parent and thereby for the Director too. A building may be structurally safe but nevertheless it may be dark, congested or poorly designed, so much so that it could rationally be rejected as an appropriate physical environment for a school. As a general principle, therefore, I am satisfied that the Director may legitimately consider what I have termed the subject of bricks and mortar and, if unauthorised works impact on that subject, they too can be taken into account.

40. But the Director, argued Mr Dykes, was not qualified to decide whether a structure was or was not an unauthorised work. In the present case, he said, the Applicant had appealed to the Appeal Tribunal Panel in respect of certain of the demolition orders and so it was very much a live issue whether the structures should properly be classified as unauthorised.

41. It is, of course, true that the Director is not qualified to decide whether a structure is or is not unauthorised. That may only be determined by using the mechanism created by the Buildings Ordinance. But I do not see that such a lack of qualification must act as the kind of absolute bar suggested by Mr Dykes. The Ordinance specifically empowers the Director in the exercise of his discretion to make such inquires as he deems fit. It seems clear to me, therefore, that he is entitled to seek the advice of those persons whose advice he believes may be relevant. Mr Dykes countered by saying that, if he accepts the advice of the Building Authority, the Director is effectively 'reviewing' technical decisions made by that Authority, a function which he is not qualified to discharge and which could not in any event be part of his responsibilities under the Ordinance. I disagree. I believe it is untenable to suggest that persons tasked with making administrative decisions cannot rely on advice. The proper making of such administrative decisions must often involve, initially at least, some seeking out of information, whether that information is received in a neutral or advisory form. If it is relevant, it is a matter for him what weight he wishes to accord it. I can find no prohibition, either in general principle or in terms of the Ordinance, to prevent the Director from obtaining the advice of the Buildings Department and, if he believes it proper to do so, from giving weight to that advice.

42. Mr Dykes has pointed to the fact that the Director may (and does) approve premises as being suitable for school use even though he is notified that such premises contain unauthorised works. Approving such premises clearly does not run contrary to the intention of the legislature made plain in the wording of the Ordinance. Indeed, Mr Dykes argued that section 12(4) of the Ordinance constitutes a 'strong pointer' that the legislature wishes the Director to decide issues of suitability without reference to the policies of the Building Authority. But that, with respect, I do not consider to be a proper reading of the meaning and intent of the sub-section. Section 12 bears the heading: 'Additional documents required where premises not designed and constructed as a school'. It then proceeds to set out the various certificates that are to be obtained from the Director of Fire Services and the Director of Buildings, all of those certificates - as I have said earlier - relating to matters of safety. In short, section 12 requires a restrictive response from those two Directors, a response concerning matters of safety only. Sub-section (4) then goes on to read:

"Nothing in this section shall affect the powers of the Building Authority under the Buildings Ordinance (Cap. 123)."

43. But I take that to mean that the restricted role of the Director of Buildings in terms of section 12 is not to be construed as somehow limiting the full breadth of his powers under his own Ordinance; that is the Buildings Ordinance. I do not read the sub-section as constituting any kind of indication made to the Director that he must decide issues of suitability of new school premises divorced from any consideration of the laws contained in the Buildings Ordinance and the policies made under it.

44. As to the question of relevance in general, I believe the court is entitled to take note of the fact that education and its management by the agencies of government is today an area of considerable speciality. The degree to which unauthorised works may or may not impact on that area of speciality is, it seems to me, heavily - laden with issues of policy. That being the case, in my judgment the court should be cautious before holding that the Director took into account irrelevant considerations when he included within the ambit of his discretion the impact of unauthorised works. The principle was clearly stated by Bingham MR in the English Court of Appeal in R. v. Ministry of Defence, ex parte Smith [1996] 1 All ER 257. It was in these terms:

"The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations."

45. The test referred to is the classic test of the susceptibility of administrative bodies to judicial review laid down in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223.

46. In my judgment, what must be understood is that unauthorised works are by their very nature problematical. They offend the Buildings Ordinance; they have not been approved according to law. That applies not only to the physical extent of the structures but to the materials used, the manner of their construction and the degree to which they harmonise with the planned environment. They are illegal structures and as a result are all condemned at some time in the future to be demolished. There is no provision for retroactive approval. It is true that there is a policy published by the Buildings Department concerning the priorities given to the demolition of offending works but the Director has no control over that policy which can (quite lawfully) evolve and change. Indeed, it may be argued that a threat placed well into the future is that much more insidious. The new premises will become entrenched as an educational establishment; people will order their lives accordingly. It is not too far fetched, I believe, to suggest that some parents may even rent or buy property in the area so that their children become 'zoned' for the school or, if it is a private establishment, are conveniently situated for travelling to and from it. A status quo will develop. In the result, when a demolition order is served - a matter totally within the discretion of the Buildings Department - the disruption will be that much greater. The demolition and rebuilding may not take that long (assuming the school management can then afford to rebuild) but that will not remove the disruption. Children will have to be taught elsewhere, perhaps placed in other schools. The Department of Education itself may have to shoulder extra burdens. I believe that a reasonable parent, caught in such a predicament, would be able to complain to the Director: "if you knew of the existence of these unauthorised works at the outset, why did you condone them? Why didn't you have them removed and save us from this disruption?"

47. What then of the secondary issue taken into account by the Director in refusing to register the three premises; the issue that may for convenience be called the moral issue: does that constitute a relevant consideration? As earlier noted, the Director is required by the Ordinance to use his best endeavours to promote education in Hong Kong. But education is not, I believe, restricted to wrote learning. It includes today the teaching of civic responsibility, environmental issues and those other aspects of what is often called a 'well-rounded education', one aimed at producing good citizens. In light of that ambition, I can understand the Director being of the view that he cannot condone the existence of illegal structures in buildings which are 'licensed' by him for the very purpose of providing that well-rounded education. In his affirmation, Mr Leung expressed this in the following terms:

"A secondary, but less important, reason for the Director's refusal to grant amendments to Certificates of Registration of Schools for premises with UBW is because the Director does not believe that such premises should be operated as schools. This is not because they are necessarily unsafe. One of the goals of all schools is, or should be, to teach the students an understanding and respect that Hong Kong is land governed by the rule of law that applies equally to all persons. To allow schools to operate in premises with UBW would be contrary to this principle."

48. I accept that the Director, in his discretion, condones some unauthorised works; those essentially which he considers to be of minimal impact. But that, it seems to me, is all part of the balancing exercise which he must carry out: occasionally the ideal must yield to the practical to ensure that the scheme of the Ordinance is not undermined.

49. I further accept that there may be rational objections to the extent to which the matters taken into account by the Director will, in fact, have an adverse impact. But that is a long way from saying that they have no relevance at all. Policies invariably are born of competing interests. As such they must inevitably be open to bona fide criticism.

50. Mr Dykes has argued that the policy of the Building Authority cannot govern the exercise of the Director's discretion. As he expressed it in his heads of argument: 'It is bad administrative practice to formulate departmental polices that depend on the policies of other departments.' The Director, he said, should therefore have disregarded that policy. I do not agree. In bearing in mind the possible disruption that unauthorised works may cause at some time in the future, it seems to me that the Director was very much taking into account matters relevant to his own bailiwick; namely the advancement and managed well-being of education in Hong Kong. I do not believe that the Director was simply depending upon the policy of the Building Authority. It is more accurate to say that he was (quite properly) aware of the Building Authority policy and took into account the degree to which that independent policy may impact on matters which were relevant to the exercise of his jurisdiction. In short, he was not simply enforcing the policy of another department, he was assessing the affect such a policy would have on matters under his control.

51. A further irrelevant matter which the Director took into account, said Mr Dykes, was the enforcement action taken by the Building Authority to order the demolition of certain structures in 2 of the proposed premises. Once it was known that this action was being appealed by the Applicant and was not therefore decided, he should have ignored it. It should not have played any part in his considerations.

52. But that begs the question: 'well, what should he have done?' Mr Dykes said that the Director had an obligation to make a decision and if, ignoring the demolition orders issue, he was satisfied the proposed premises were fit he should then have given his approval. But what if, on appeal, the Applicant was not successful and the demolition orders came into force? Mr Dykes submitted that section 22 of the Ordinance gave the power to the Director to cancel any registration earlier given on any ground on which he would have been entitled to refuse registration in the first place. Accordingly, if the Applicant was not successful, the Director had available to him the power to cancel his approval. With respect, I do not find that an appealing submission. It seems to me that, being aware of the Applicant's appeal, the Director had a number of options open to him, all of which were legitimate. He could make the decision to give no final ruling on the matter until after the appeal was decided; he could decide to follow the course suggested by Mr Dykes or he could decide to rely on the information he had received from the Building Authority and act upon it in the knowledge that, if the Applicant's appeals were successful, new applications could then be made. He chose to act on the latter.

53. I cannot accept as a principle of law that an administrative tribunal, if faced with matters still not finally resolved in other proceedings, must remove such matters from its consideration. Subject to other dictates, such as fairness, I am satisfied that a tribunal may legitimately take a view on the prevailing facts as it finds them.

54. Consider the possible practical ramifications if the approach advocated by Mr Dykes was taken. Once approval was given children would move into the school and teaching would commence. The germ of a status quo would appear, the kind I have earlier referred to. If the appeals were then unsuccessful, the children would have to be removed. The potential for disruption is self-evident. Such potential, I believe, is a relevant consideration which may be taken into account by the Director.

The 'Wednesbury unreasonable' challenge.

55. It was contended by the Applicant (perhaps as an aspect of the relevance challenge) that the sheer remoteness of the 'disruption' dangers made the decision irrational. Mr Dykes expressed it thus: it was unreasonable for the Director to refuse registration simply because perhaps one day the Building Authority might taken action which action might be resisted by the Applicant and which, if unsuccessful, might lead to demolition of some structures ad which might thus cause disruption to the school. This, he said, was especially so in light of the evidence from a chartered surveyor that it would only take about 10 days to complete the demolition of the unauthorised works that had been ordered by the Building Authority at 3 Flint Road and 127 Waterloo Road.

56. The opinion of the surveyor, of course, concerned only the unauthorised structures which the Authority had ordered to be demolished. On its face, it does not appear to provide an estimate for how long it would take to demolish the remaining unauthorised works not yet the subject of any demolition order.

57. I do agree with Mr Dykes that one of the matters the Director should consider is whether or not a real problem exists or simply a theoretical one; in short, one that in practical terms can be worked around. I would therefore have considerable sympathy for the Applicant's position if the only concern of the Director had been the structures subject to immediate demolition orders. If that was the case, I believe the Director would have had an obligation to consider the real effects of the disruption to be caused. But the Director was not solely concerned with those structures subject to demolition orders. A fair reading of his reasons for refusing registration reveal that he was concerned with the disruption to be caused by all of the unauthorised works. He was concerned with the totality of the problem.

58. But was he reasonably entitled to be concerned in that manner or did the 'remoteness issue' raised by the Applicant make it an irrational exercise of the Director's discretion? I do not believe the exercise of his discretion can be stigmatised in the manner suggested. The Director has a responsibility to consider not just present unsuitability but the likelihood of the premises becoming unsuitable in the future. I have already described why, in my judgment, disruption even well into the future may be a legitimate concern. As I have said, the Director has no control over the policy of the Building Authority concerning demolition priorities. What may seem remote today may well be different in a year's time. In summary, I am satisfied that the Director was legitimately entitled to find that there was a real danger of disruption in the future even if it was not certain and could not be tied to any moment in time.

Acting on the dictation of the Building Authority.

59. The Applicant contends that, in practice, the Director, when he made his decisions under challenge, had inhibited the exercise of his discretion under section 20(5) of the Ordinance, and had delegated that duty to the Building Authority which was, statutorily, a stranger to those decisions.

60. The principle underlying the challenge may be simply stated. The Director is entrusted by the legislature with the exercise of a discretion. It is a discretion which he must exercise and it would be a wrongful delegation of his statutory duty if he delegated that decision to another arm of government; for example, the Building Authority.

61. In H. Lavender and Son Ltd v. Minister of Housing and Local Government [1970] 1 WLR 1231, the respondent (the Minister) had refused an application to permit land to be used for extracting gravel because the Minister of Agriculture had decided the land should be reserved for farming. In his decision, the respondent said that it was his present policy that land so reserved should not be released for quarry working 'unless the Minister of Agriculture is not opposed to working' and that since the agricultural objection had not been waived the application would not be granted. In his judgment, Willis J said (at page 1240 and 1241):

"It seems to me that by adopting and applying his stated policy he has in effect inhibited himself from exercising a proper discretion (which would of course be guided by policy considerations) in any case where the Minister of Agriculture has made and maintained an objection to mineral working in an agricultural reservation. Everything else might point to the desirability of granting permission, but by applying and acting on his stated policy I think the Minister has fettered himself in such a way that in this case it was not he who made the decision for which Parliament made him responsible. It was the decision of the Minister of Agriculture not to waive his objection which was decisive in this case, and while that might properly prove to be the decisive factor for the Minister when taking into account all material considerations, it seems to me quite wrong for a policy to be applied which in reality eliminates all the material considerations save only the consideration, when that is the case, that the Minister of Agriculture objects. That means, as I think, that the Minister has by his stated policy delegated to the Minister of Agriculture the effective decision on any appeal within the agriculture reservations where the latter objects to the working."

62. In respect of the matter now before me, I have had sight of correspondence between the Director and the Building Authority. I do not believe that correspondence (or any other evidence revealed to me) indicates that the Director fettered his own discretion by finding himself bound only to apply the policy of the Building Authority. The Director, as I have said, was entitled to make inquiries. On 11 August 2000, he sent a memorandum to the Building Authority asking if the Authority had any objection to the registration of the proposed premises. A reply was received on 15 August saying that there was an objection because 'substantial portions of the premises' consisted of unauthorised works. This was seemingly followed by a telephone conversation and, on 17 August, a further memorandum from the Building Authority to the Director which read, in part, as follows:

"... I would like to clarify that, from the point view of the Buildings Department, unauthorised structures should not be used for school. As the Education Ordinance is under your purview, I leave you to check if there are provisions under your Ordinance to reject an application for registration as a school on the ground that the premises are unauthorised structures, and to decide whether the related unauthorized structures should be registered under the Education Ordinance."

63. The direction there appears to be plain: it is for the Director to consider the position in light of his own statutory duties.

64. Further, and of importance, the reasons provided by the Director to the Applicant for his refusals show that the reasons concern educational matters; that is, the possible disruption to schooling and what I have earlier described as the moral objection to premises containing illegal structures being used to provide a modern education. I can find no evidence of the Director simply enforcing the policy of the Building Authority at the cost of his own discretion. As I have said earlier, it is clear that the Director considered the impact of the Building Authority policy on his own area of expertise; namely, education.

Frustrating the legislative purpose of the Ordinance and/or departing from policy.

65. It is not disputed that decision makers in administrative matters must not ignore, misconstrue or lose sight of the scope and objects of the statute under which they act. Lord Reid, in his speech in Padfield v. Minister of Agriculture Fisheries and Food [1968] AC 997 (at page 1030) defined the principle:

"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. in a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act."

66. It is contended by the Applicant that, in exercising his discretion for the reasons stated by him, the Director did lose sight of the scope and purpose of the Ordinance, that scope and purpose being to make 'independent decisions' on the limited issue of 'suitability' of premises for use as schools. The legislative history of the Ordinance shows that the need for schools being set up in non purpose-built structures was acknowledged and all that the Director was entitled to do was to consider suitability for the present and future purposes of education. The Director had no role to play, statutorily, as an enforcer of policy for the Building Authority.

67. But, as I have said earlier, the Director did not reject the applications simply because the buildings contained unauthorised works. He did so because of the impact those works would have, in his opinion, on the present and future suitability of the premises as educational institutions. I am satisfied that, in so doing, he was not thwarting or running counter to the policy and objects of the Ordinance. The various reasons given elsewhere in this judgment explain why I am so satisfied.

68. As for any departure from policy, the evidence indicates that the Director has long published the fact that buildings containing unauthorised works are not considered suitable for use as schools and may be rejected for that reason. Of course, each application must be considered individually and the reasons given in respect of each application may differ although falling still under the parameters of the broad policy. That, on all the evidence, was what took place in respect of the various decisions under challenge by the Applicant.

The challenge of legitimate expectation.

69. The Applicant points to the fact that guidelines for applicants were published at the time the various applications were made. Accordingly, whether he was aware of those guidelines or not, he had a legitimate expectation that the applications would be considered in accordance with those guidelines.

70. As to the doctrine (or principle) of legitimate expectation, Simon Brown LJ in R. v. Devon County Council, ex parte Baker and another [1995] 1 All ER 73 at page 88 considered earlier authorities and came to the following conclusion:

"These various authorities show that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it." [my emphasis]

71. I accept that the guidelines issued in or about August 2000 do not, in the general section, speak of unauthorised works. But I am unable to find in that silence any clear and unambiguous statement of policy.

72. The guidelines to which reference is made do not, in my judgment constitute a policy document. Rather they are a guide to procedure; put plainly, how to go about getting an application into proper order in the required time. The guidelines may point to pitfalls but essentially they are filled with such information as where forms may be collected and how data can be downloaded on computers. More particularly, the section dealing with the 'requirements of the Education Department (Appendix 6) does no more, in essence, than set out a checklist of required forms.

73. The policy of the Director concerning applications is therefore not to be found in the August 2000 guidelines but by attending information briefings or making inquiries direct of authorised persons in the Education Department. In both those regards the evidence indicates that concern with unauthorised works has long been a stated policy of the Director, a concern that may well result in rejection of applications.

Conclusion.

74. In the circumstances, I am satisfied that, neither taken individually nor in totality, have the various matters argued before me shown that the Director was wrong in law in coming to the findings he did. The applications are therefore dismissed.

75. As for costs, there will be an order nisi that the Applicant do pay the Respondent's costs, those costs to be taxed if not agreed. The order nisi will be confirmed at the end of 30 days if no prior application is made to argue the matter.