THE INCORPORATED OWNERS OF FANLING CENTRE v. WONG YU TING TERENCE AND ANOTHER

LDBM 28/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 28 OF 2013

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D E C I S I O N

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Background

1.  This is the application by the respondent for leave to appeal against the order in the judgment handed down by this court on 9 May 2014 (“the Judgment”) and for a stay of execution of the order pending disposal of the appeal.

2.  The facts and findings of the case have already been set out in the Judgment and I am not minded to repeat the same here.

3.  In a gist, the applicant, being the Incorporated Owners (“IO”) is alleging that the respondent, being owner of the roof top (“R/F”) of Block G Fanling Centre (“the Building”), had installed 3 antennas (“Antennas”) on the R/F which is in breach of the terms of the Deed of Mutual Covenant (“DMC”).  After trial, this Tribunal found that the Antennas are in breach of the following clauses of Section IV of the DMC :

(a) Clause B(2) in the sense that the installation of the Antennas is a nuisance or annoyance to other Owners or occupiers, i.e. the occupants of the unit next to the R/F (§15-22 of the Judgment);

(b) Clause B(7) and B(8) in the sense that the Antennas are installed outside the Building and extending outside the exterior of the Building (§23-38 of the Judgment); and

(c) Clause B(10) in the sense that the installation of the Antennas altered the external appearance of the Building (§39-42 of the Judgment).

4.  Upon finding that the installation of the Antennas amounts to a breach of the DMC, injunction orders are made in the Judgment as follows:

(a) 強制答辯人須在本命令頒令後的1個月內, 拆除裝置在該天台上的該天線及將該天線位置的天台部分還原原貌  (“Order 1”); and

(b) 禁制答辯人其本人、其受僱人、代理人、授權人或任何一位或其他人等在該天台裝置任何天線 (“Order 2”).

5.  Mr. Wong for the respondent confirmed that this application for leave to appeal and stay of execution is only confined to Order 2 on the ground that :

(a) The applicant’s case failed to meet the appropriate standard required to establish nuisance or annoyance; and

(b) The scope of Order 2 is too wide.

Leave to Appeal

6.  Section 11 (2) of the Lands Tribunal Ordinance (“LTO”) provides that :

“Subject to section 11AA and the provisions of any Ordinance relating to appeals from the Tribunal, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law.”

7.  Section 11AA(6) of the LTO provides that :

“(6) Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard.”

8.  The respondent’s appeal belongs to the “reasonable prospect of success” category and is not a matter of public interests.  Le Pichon JA in the Court of Appeal said in her judgment in SMSE v KL CACV111/2009 at paragraph 17 that :

“Reasonable prospect of success involves the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’”.

Ground (a)

9.  It is the submission of Mr. Wong that this court had erred in adopting a subjective test in the findings of nuisance by placing undue weight on the subjective perception of Madam Yu, the occupier next door on the effect of the Antennas to her.  Mr. Wong had quoted Clerk & Lindsell on Torts 20^th Ed and Mary Hanrahan, Josh Hanrahan and Selina Hanrahan v Merck Sharp & Dohme (Ireland) Ltd [1988] ILRM 629 in support of his contention that the test to be adopted should be “what is reasonable according to ordinary usage of mankind living in a particular society” (Clerk & Lindsell at page 1279) and “whether the interference is beyond what an objectively reasonable person should have to put up with in the circumstances of the case” (Mary Hanrahan at page 640).  Mr. Wong had itemized the factors this court should take into consideration in approaching the objective test at §11 of his written submission.

10.  Mr. Tsu for the applicant submitted in reply that the authorities relied upon by the respondent relates to nuisance in tort which should be distinguished from a nuisance caused by a breach of the DMC which is a private contract.  And even if an objective test is required, the court should have no difficulties in finding that it is unreasonable for the respondent to install the Antennas which are for commercial use in a domestic development.

11.  In considering the evidence of Madam Yu, this court has considered the reasonableness of her concern (§20-21 of the Judgment).  I do not accept that undue weight had been placed on her evidence or this court has adopted a subjective test.  And I agree with Mr. Tsu that no objectively reasonable person would consider the installation of the Antenna for commercial use in a domestic development is something other owners should put up with. 

12.  Quoting Clerk & Lindsell on Torts cited by Mr. Wong :

“20-10 Question of degree … In organised society everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours … the courts in deciding whether an interference can amount to an actionable nuisance have to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property. No precise or universal formula is possible, but a useful test is what is reasonable according to ordinary usage of mankind living in a particular society” (my emphasis),

one can see that lawful use of the defendant is emphasised time and again.  Since the installation of the Antennas by the respondent is not lawful in the sense that it is in breach of the DMC and cannot be considered as an ordinary usage in a domestic development, adopting the objective standard of a reasonable person, the respondent’s conduct in this case should not be the kind an objectively reasonable person would have been expected to put up with.

13.  I also agree with Mr. Tsu that the factors named by Mr. Wong are against the respondent in the standard of a reasonable man.  The fact that the general living environment in Hong Kong involved multi-storey buildings connotes a packed environment which should require the occupiers to have more regard to the rights of others than to expect others to put with one’s conduct.  Though antennas are common on roof top of multi-storey buildings, those are for the common use of the owners of the whole building and the Antennas in this case are not ordinary antennas which only received signal but also transmit signals as well.  The size and the shape of the antennas should not be conclusive in deciding whether the Antenna is objectionable or not.  And the fact that the Antenna got a licence from the Telecommunications Authority (“TA”) is neither here nor there since terms of the DMC is not one of the considerations of the TA in the issuance of the licence.

14.  In any event, even if my findings on nuisance is at fault, this would only turn on my findings for breach of Clause B(2) of the DMC.  Mr. Wong had confirmed that the respondent is not raising any challenge against my findings as far as breach of Clause B(7), B(8) and B(10) are concerned.  Even though the findings concerning breach of Clause B(2) are to be overturned, this will not have any bearing on Order (2) which is made on the basis of a breach of the various terms of the DMC and not just confined to Clause B(2).  If the order will in any event be upheld, I cannot see how the respondent can argue that the appeal has reasonable prospects of success.

Ground (b)

15.  Mr. Wong submitted that the wordings of Order 2 is restraining the respondent from installing any antenna, including those that can be installed within the boundary of the Building and not visible from the opposite building, hence not in breach of Clause B(7), B(8) and B(10) of the DMC.  It is suggested that the proper order should be restraining the respondent from installing any antennas on the R/F that would be in breach of the DMC, hence leave to appeal should be granted to enable Order 2 to be set aside and to be replaced with the order suggested.

16.  This is a case brought by the IO against the respondent for a breach of the DMC.  And Order 2 is being made upon satisfying that there was a breach and an injunction is required to ensure compliance with the DMC (§48 of the Judgment).  Order 2 must be read in the context of this case and the findings of this court.  Mr. Wong’s submission that the order should only be read by itself and should not be read in the context of the case cannot be right.  To accept Mr. Wong’s contention in this regard is ignoring the circumstances and the basis leading to the order made.

17.  I found the wordings of Order 2 is not too wide and must be read to mean installation of any antenna in breach of the DMC.  I found the respondent failed to substantiate this ground of appeal and failed to establish a reasonable prospect of success.

18.  The findings above are sufficient to dispose of Ground (b) but there is a point on procedure which is worth mentioning.  The respondent’s challenge on Ground (b) is in fact seeking a variation of the Order by specifying the injunction should confine to any act in breach of the DMC.  If this is the case, the respondent should take out an application for review of the order under Section 11A of the LTO in the first place which empowered this court to vary an order instead of seeking leave to appeal for a variation. 

Stay of Execution

19.  Mr. Wong for the respondent confirmed that the only ground for seeking a stay is the merits of the appeal.

20.  Since the respondent failed to establish the existence of an arguable appeal, the application for stay of execution must also fail.

Conclusion

21.  Having considered all the argument and submissions, I found the grounds raised by the respondent in this application for leave to appeal and stay of execution cannot stand and both applications must be dismissed.

22.  Costs should follow the event.   Costs order nisi that costs of this application be to the applicant, to be taxed if not agreed on party and party basis at District Court scale.  Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.