LEADING WELL LTD v. SECRETARY FOR JUSTICE (on behalf of the Director of Lands)

CACV 456/2022, [2024] HKCA 821

On Appeal From [2022] HKCFI 3246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 456 OF 2022

(ON APPEAL FROM HCA NO 1266 OF 2019)

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BETWEEN

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A. INTRODUCTION

1.  The plaintiff (“P”) is the owner of (i) Section A of Sub-Section 1 of Section A of Lot 1469, (ii) The Remaining Portion of Section A of Lot 1469, and (iii) the Remaining Portion of Lot 1469 (collectively “P’s Lots”), all sub-divided out of Lot No 1469 (“Lot 1469”) in Demarcation District No 189 (“DD 189”). Lot 1469 abuts an approach road known as Shatin Heights Road (“the Road”) which leads to Tai Po Road. The Road also links Lot Nos 1470 and 1471 in DD 189 (respectively, “Lot 1470” and “Lot 1471”) to Tai Po Road.

2.  This appeal turns on the principal question of whether the Road can be regarded as a “specified street” falling within the meaning and scope of Regulation 18A(3)(a)(iv) (“r 18A(3)(a)(iv)” or “the Regulation”) of the Building (Planning) Regulations (Cap 123F) (“Cap 123F”). Under the Regulation, the Road is a “specified street” if it is on land over which P as the owner of P’s Lot is “expressly granted, by or by virtue of an instrument, a right of way exercisable at all times…”.

3.  In its claim herein, P says the Road satisfies the statutory requirements, and seeks various declarations to that effect against the Secretary for Justice (“SJ”) (on behalf of the Director of Lands).

4.  The Government disagrees. Although it is common ground between the parties that there exists a right of way over the Road, the SJ’s case is essentially that the right of way for Lot 1469 was implied by necessity but not granted expressly by or by virtue of an instrument, falling within the meaning of the Regulation.

5.  After trial, by an order (“the Order”) dated 21 October 2022, Deputy High Court Judge Jonathan Chang SC (“the Judge”) dismissed P’s claim with costs. The Judge set out his reasons for dismissing the claim in his written judgment (“the Judgment”) of the same date.

6.  P now appeals against the Order.

B. BACKGROUND

7.  The relevant background facts are largely not disputed, deriving from the agreed statement of facts and documents. They have been succinctly summarized by the Judge in the Judgment. We will adopt them. For the present purpose, we will further highlight and supplement the following which are pertinent to the issues in this appeal.

8.  P’s Lots are connected to Tai Po Road (being the main road nearest the lots) by the Road, coloured yellow in the agreed site plan (“the Agreed Site Plan”) attached to the Judgment. We have for convenience also attached the Agreed Site Plan to this judgment for reference.

9.  Lot 1469 together with Lots 1470 and 1471 (collectively “the 3 Lots”) were first purchased and owned together by Hotel Edinburgh Ltd (“HEL”) by way of public auction in 1953. The relevant history of the sale and purchase of the 3 Lots and the existence of the Road is as follows.

10.  By respective deposit agreements each dated 4 December 1952, HEL applied to buy Lot 1469 and Lot 1470 (respectively “the Lot 1469 Deposit Agreement” and “the Lot 1470 Deposit Agreement”)[1].

11.  In early January 1953, the then District Administration, New Territories (“the NT District Administration”) made recommendations to the Colonial Secretary for the sale of Lot 1469 by public auction[2].

12.  By a notice no 149 dated 22 January 1953 (“Auction Notice”) issued by the then “Acting District Commissioner, New Territories” of the NT District Administration, notice was given for the sale by public auction of, among others, all the 3 Lots for “Building & Garden” purpose on terms and conditions.

13.  The conditions in the Auction Notice included additional Special Conditions (d) and (e) which were applicable only to Lot 1470. They provided respectively that the purchaser of Lot 1470 shall:

(1) within three months of the date of sale apply to the District Commissioner for a permit for an approach road to the lot as shown coloured pink on a plan deposited in the District Office, Tai Po (“SC(d)”); and

(2) submit an authorized architect’s plan of the approach road for approval prior to any work commencing on the approach road (“SC(e)”).

14.  As seen from the Agreed Site Plan, Lot 1469 sits between Lot 1470 and Lot 1471, with Lot 1470 farthest away from Tai Po Road.

15.  Upon the public auction on 24 February 1953:

(1) By New Grant No 8176 of the same date (“Lot 1469 New Grant”), Lot 1469[3] was sold by the Government to HEL, with the amount of premium at HK$16,740.

(2) By New Grant No 8177 of the same date (“Lot 1470 New Grant”), Lot 1470[4] was sold by the Government to HEL, with the amount of premium at HK$10,382.

(3) By New Grant No 8178 of the same date, Lot 1471[5] was sold by the Government to HEL, with the amount of premium at HK$21,720.

16.  Between March and October 1953, correspondences (some with submitted plans) were exchanged between HEL’s authorized architect (“Hazeland”) and the District Commissioner for the purpose of HEL obtaining the approval and permit to construct the approach road as required under SC(d) and SC(e).

17.  Thereafter, in a file note M10 (“M10”) dated 5 October 1953 in the records of the Lands Department, it was stated that a permit was to be issued to HEL for the approach road with the conditions that a “right-of-way from Taipo Main Road near the 7 ½ M.S to lot 1470 in DD189 Shatin on the line approved by Dist. Comm. N.T in enclosure (16) in T.P. 210/1/52 will be given”.

18.  Following M10, it was then stated in the file note M11 (“M11”) dated 21 November 2011 that “Permit no. 96/53-54 for Road issued (reg.no 136)”. This permit can no longer be located and was referred to in the Judgment at [15] as the “Missing Permit”. We would adopt herein this abbreviation too.

19.  The approach road was substantially completed by HEL no later than the end of 1954. This is the Road.

20.  Thereafter, by a memo dated 27 August 1955, District Commissioner (New Territories) stated that an application for a Crown Lease for Lot 1469 was received. A sunprint of Lot 1469 (“Lot 1469 Sunprint”) was attached. The memo recorded the details of Lot 1469 as including “Right of way … As shown from main Taipo-Kowloon road”, which was depicted in the Lot 1469 Sunprint by a grey line extending from Tai Po Road to Lot 1470 on the west side of Lot 1469. In all likelihood this referred to the Road.

21.  In a letter dated 26 October 1957 from the Tai Po District Officer to Johnson, Stokes & Master acting for HEL in the negotiation of the terms of the Crown Leases for the 3 Lots, it was recorded that:

“As previously agreed with your Mr. Nigel, a new clause is to be included in the leases giving a right of way from the main road to the lots which also requires the lessee to pay a reasonable share and proportion towards the costs of building, maintaining and repairing the road over the right of way.”

22.  In a memo dated 28 October 1957 to the Registrar General (“the Oct 1957 Memo”), the Tai Po District Officer recorded how the new clause proposed to be included in the Crown Leases for the 3 Lots came about:

“2. The Crown Lease plan in all three cases indicates a right-of-way from the Main Taipo Road but on checking the conditions of sale I find that no provision for this was made in the original conditions of sale of the lots which were auctioned on the same day.

3. The owner has constructed a road at his own expense along the right-of-way and this is at present authorised by an annual permit, but if he decides to sell the lots he will not renew it. This will leave the Crown in the invidious position of having to force the purchasers to take out road permits under which they will be required to repair and maintain the road.

4. I have discussed this with the owner and his solicitor, Mr. F.G. Nigel of Messrs Johnson, Stokes & Master, who are agreeable to right-of-way clauses being included in the Crown Leases. After consulting your memorandum to the D.C.N.T. ref. L.O.1/961/56 of 2^nd July, 1957, I think the clauses should be worded as follows:-

‘1. A right-of-way from Taipo Road shall be given along the line shown in the plan attached to this lease and the lessee shall construct a road over and along the right-of-way in such manner as the District Commissioner, New Territories may direct and shall uphold, maintain and repair such road and everything forming portion of or appertaining to it to the satisfaction of the District Commissioner and the lessee shall be responsible for the whole as if he were absolute owner thereof. Any alteration of the Government road to which the right-of-way is given absorbing a portion of such piece of ground or affecting the gradient thereof shall not give rise to any claim by the lessee who shall carry out all consequent alterations to such road.

2. The grant of the right-of-way referred to in the previous clause shall not give the lessee the exclusive right to use the road constructed thereon and the Crown reserves the right to grant rights-of-way over such road to the lessee of other lots in the vicinity but in such event the lessee will pay a reasonable share and proportion towards the costs and charges of maintaining the road, such proportion to be fixed and ascertained by the District Commissioner.

3. The Crown reserves the right to take over the whole or any portion of the said road for the purpose of a public road without payment of any compensation to the purchaser or to other lessees to whom rights-of-way over the whole or any portion of the said road shall have been granted.’

5. I should be grateful if you would vet these clauses and if you consider them satisfactory include them in the three Crown Leases and re-submit them to H.E. the Governor.

…” (emphasis added)

23.  However, by a further memo dated 23 November 1957 to the Registrar General, the Tai Po District Officer recorded that the issue of the Crown Leases for the 3 Lots “shall be held up until the owner has sub-divided the lots and that the new owners will be asked to take out the Crown Leases for their respective portions”. Eventually no Crown Lease was ever issued. The reason is unknown. That said, by operation of section 14(1) and (2) of the Conveyancing and Property Ordinance (Cap 219) (“the CPO”), since the New Grants for the 3 Lots were entered into before 1 January 1970, the conditions precedent upon which they had been made were deemed to have been complied with on 1 November 1984 and the Crown (now Government) Leases for the 3 Lots were deemed to have been issued on that date.

24.  On 16 June 1985, the Building Authority approved the building plans for the erection of proposed buildings on Lot 1469.

25.  On 28 February 2011, P became the owner of P’s Lots by an assignment (“the Assignment”) entered with its immediate predecessor-in-title, Ku-Ring-Gai Chase Limited[6].

26.  P plans to re-develop P’s Lots. There is a dispute between P and the Buildings Department whether P’s Lots qualify as a class A site under Regulation 18A of Cap 123F. A class A site normally has a higher maximum permitted site coverage and plot ratio – thus a higher re-development potential and value – than an unclassified site. In order to qualify as a class A site, P’s Lots have to abut on one or more than one “specified street”. In the context of this case, the following definition under r 18A(3)(a)(iv) is relevant:

“(3) A street is to be regarded as a specified street –

(a) if there exists, with respect to the street, any of the following circumstances –

…

(iv) the street is on land over which the owner of the site is expressly granted, by or by virtue of an instrument, a right of way exercisable at all times …”

27.  P contends that the Road satisfies the requirements of the Regulation and is thus a “specified street”. As mentioned above, the Buildings Department however does not accept that P has been expressly granted a right of way over the Road by or by virtue of an instrument. As such, P’s Lots do not qualify as a class A site.

28.  This prompted P to commence this action to seek a declaration that P has been expressly granted, by or by virtue of an instrument, a right of way over the Road exercisable at all times, and such right of way satisfies the requirements under r 18A(3)(a)(iv).

C. THE JUDGMENT

C1. P’s pleaded case

29.  The Judge has summarized P’s pleaded case before him in the Judgment as follows.

30.  P’s primary pleaded case is that, on a proper construction and in light of the background facts and documents, the Lot 1469 New Grant is the instrument by or by virtue of which P has been expressly granted a right of way exercisable at all times over the Road (“the New Grant Case”). See: [23] of the Judgment.

31.  P’s further or alternative pleaded case is that by or by virtue of the instruments, correspondence and documents pleaded in paragraph 11A of the Re-Amended Statement of Claim (“the Paragraph 11A Documents”), P has been expressly granted a right of way exercisable at all times over the Road (“the Collective Documents Case”). The Paragraph 11A Documents are:

(1) HEL’s notice of intention to commence building works for the intended approach road dated 11 March 1953;

(2) Letter from HEL’s architect dated 23 March 1953 submitting building plans for the construction of the intended approach road to the Government;

(3) Letter dated 24 April 1953 from the Government to HEL’s architect requesting for amendments of the building plans for the intended approach road;

(4) Letter dated 6 August 1953 from HEL to the Government whereby HEL agreed and confirmed that it was responsible for constructing the intended approach road as an approach road to the 3 Lots and other lots in the vicinity;

(5) Letters dated 3 September 1953 from HEL to the Government submitting revised building plans for the intended approach road;

(6) Letter dated 14 September 1953 from the Government to HEL’s architect approving the building plans for the intended approach road;

(7) A “Setting Out or Survey Plan” prepared by the Crown Lands & Survey Office of the Government dated 26 July 1956;

(8) Memo from the District Commissioner (New Territories) to the Superintendent, Crown Lease & Surveys dated 27 August 1955 attaching the Lot 1469 Sunprint;

(9) Letter dated 6 February 1957 from HEL to the Government for permission to widen a part of the Road fringing on, inter alia, Lot 1469;

(10) The Government’s granting of permission to HEL on or about 22 February 1957 to widen the part of the Road fringing on, inter alia, Lot 1469; and

(11) Building plans for the proposed buildings on P’s Lots approved by the Building Authority on 16 June 1985.

See: [24] - [26] of the Judgment.

32.  P also relied on clause 2 of Schedule B to GN 364 of 1954 and contended that the deemed issued Government Lease for Lot 1469 expressly included any easement to Lot 1469 including the right of way over the Road. Such right of way was “assimilated” by and included in the express provision of clause 2 and, from that point onwards, clause 2 itself became the source of the express grant. The right of way was then assigned to P by clause 1(c) of the Schedule to the Assignment (“the Schedule B of GN 364 Case”). See: [27] of the Judgment.

33.  P further relied on the doctrine of lost modern grant (“the Lost Modern Grant Case”): P contended that it and its predecessor-in-title have been using the right of way over the Road uninterruptedly for a continuous period of not less than 20 years, and hence an easement over it is deemed to arise by virtue of an express grant of easement which has become lost. See: [28] and [54] of the Judgment.

34.  As noted by the Judge[7], P has also pleaded at paragraph 12C of the Re-Amended Statement of Claim that the express grant of a right of way over the Road as pleaded constituted or included “a modification in writing by the Government of the Government lease” for Lot 1469”.

35.  The Judge also set out P’s contended construction of r 18A(3)(a)(iv) at [29] of the Judgment as follows:

(1) The reference to “an instrument” under r 18A(3)(a)(iv) could in principle be constituted by “a series of correspondence” read in context, citing Building Authority v Appeal Tribunal (Buildings) (re: Methodist Church) [2015] 5 HKLRD 108 at [66].

(2) The phrase “by virtue of” under r 18A(3)(a)(iv) is broader than “by” and allows for the creation of the right of way subsequent to the date of the instrument in question. It allows the right of way to be granted pursuant to the instrument relied upon, with the instrument serving as an originating or ultimate or one of the bases of the grant.

C2. The Judge’s reasons for dismissing P’s claim

36.  The Judge rejected all the bases of P’s claim. His reasons can be summarized as follows.

37.  The Judge first held that P’s proposed construction of r 18A(3)(a)(iv) was irrelevant to his determination of the issues arising in the matter before him:

(1) The Judge was of the view that whether “an instrument” could include more than one document or instrument does not have any material bearing on his judgment, and he would leave that point open[8].

(2) The Judge also found that the conceptual distinction between “by” and “by virtue of” as advanced by P is immaterial, as “however one describes it”, there was still a need to identify the precise instrument and the term based on which a right of way over the Road is claimed to have been expressly granted to P in the context of r 18A(3)(a)(iv).

See: [29] of the Judgment.

38.  He then rejected the New Grant Case and the Schedule B of GN 364 Case for these reasons:

(1) The Lot 1469 New Grant itself made no reference to any right of way over the intended approach road, and it is “inherently implausible for the Government to have omitted to mention it in the Grant”. See [30] of the Judgment.

(2) The Judge also rejected the contention that that there was an express grant when the Lot 1469 New Grant was construed in the context that the approach road to be built by Lot 1470 owner must be intended to serve the owners and users of and Lot 1469 (as otherwise, Lot 1469 would be land-locked). This is so as the exact location and alignment of the intended approach road was “wholly uncertain” even if one looked at the various site plans referred to in the evidence. Further, given that the tracing line of the intended approach road in the relevant plan referred to by P was wholly equivocal and thus did not tell anyone (i) the Government was granting any right to anyone, (ii) the grantee was HEL, or (iii) the subject matter of the grant was a right of way over the intended approach road, the court should lean towards the construction most favourable to the Government. See: [34] - [41] of the Judgment.

(3) The Judge rejected the Schedule B of GN 364 Case as “It remains [the Lot 1469 New Grant] which sets out what such easements were to be granted”. See: [42] of the Judgment.

39.  The Judge then also rejected the Collective Documents Case for the following reasons:

(1) The various correspondence exchanged between HEL and the Government relating to the approval of the construction of the intended approach road[9] had nothing to do with granting a right of way as they were only related to how the intended approach road ought to be constructed. See: [44] of the Judgment.

(2) The Missing Permit did not assist P as it was not pleaded and in any event: (i) it only granted permission to HEL to construct the intended approach road under SC(d), (ii) on a proper construction, the reference in it to the right of way required a separate grant to be made, and (iii) it was the annual permit which granted the right of way, and HEL already indicated that it would not renew it when it decided to sell the lots, and there was no evidence of any such renewal. See [45] of the Judgment.

(3) As to the Government’s permission to widen the approach road[10], even if such a permit was issued, the permission related to the construction of the road rather than any grant of right of way over it. See: [47] of the Judgment.

(4) In relation to the approval of building plans for P’s Lots[11], it was only related to the approval of the proposed drawings of the buildings to be erected on those lots, including the items in the Block Plan, and had nothing to do with granting a right of way. Further, the labelling of the approach road as a “public road” on the Block Plan is equivocal and at most means that no one has the exclusive right to use the Road. See: [48] - [49] of the Judgment.

40.  The Judge further dismissed the Lost Modern Grant Case on the basis that, despite the uninterrupted use of the Road since 1954, it was constructed for use by the public, and no express grant by any instrument was necessary for such public use. Hence, the lost modern grant doctrine would not give rise to any express grant of right of way over the Road by or by virtue of an instrument. See: [56] of the Judgment.

41.  Finally, the Judge held that in any event, there was no modification of Government Lease for Lot 1469 as all of the documents relied on by P to support its case of an expressly granted right of way pre-dated 1 November 1984 which was the date on which the Government Lease was deemed to have been issued. See: [51] of the Judgment.

D. THIS APPEAL

D1. Grounds of appeal and the Respondent’s Notice

42.  P has advanced a total of 11 grounds of appeal in its Notice of Appeal (“NOA”). They can be summarized as follows:

(1) Ground 1 – The Judge erred in fact and in law in concluding at [43] of the Judgment that no right of way over the Road was expressly granted to any one by and by virtue of the Lot 1469 New Grant. The Judge ought to have construed it in the light of all the surrounding and related factual matrix, circumstances and documents (including the Lot 1469 Sunprint) and found that the right of way was granted expressly by or by virtue of the Lot 1469 New Grant: paragraph 1 of the NOA.

(2) Ground 2 – The Judge erred in holding at [34] of the Judgment that it was inherently implausible for the Government to have intended to grant a right of way over the intended approach road the location and alignment of which was uncertain, as he failed to appreciate that it is legally possible for the Government to grant expressly a right of way pursuant to an agreement to grant prior to the construction of the Road: paragraph 2 of the NOA.

(3) Ground 3 – The Judge erred in rejecting the Schedule B of GN364 Case at [42] of the Judgment as “easements” included an implied right of way: paragraph 3 of the NOA.

(4) Ground 4 – the Judge was plainly wrong in finding at [35] - [40] of the Judgment that no site plan was attached to, or formed part of the Lot 1469 New Grant as he ignored the relevant surrounding and factual matrix, and documents and evidence: paragraph 4 of the NOA.

(5) Ground 5 – the Judge speculated without evidence in concluding at [30] of the Judgment that “[h]ad the Government intended to grant any such right of way to HEL, it is inherently implausible for the Government to have omitted to mention it in the Grant”: paragraph 5 of the NOA.

(6) Grounds 6 and 7 – The Judge erred in rejecting the Collective Documents Case in [25], [26] and [44] - [51] of the Judgment as he:

(a) failed to construe and read the Paragraph 11A Documents and the Missing Permit as an integrated whole;

(b) misunderstood and/or failed to appreciate that the Missing Permit as evidenced in M11 not only granted permission to HEL as the owner of Lot 1470 to construct the intended approach road, but also articulated that “[a] right-of-way from Taipo Main Road near the 7 ½ M.S. to lot 1470 in D.D. 189 Shatin on the line approved by the Dist. Comm. N.T. in enclosure (16) in T.P. 210/1/52” “will be given” and “shall be in such form and on such conditions as may be approved by the Dist. Comm. N.T.”. This served to expressly agree to grant or confirm a grant of the right of way over the Road being constructed in accordance with plans approved by the Government.

See: paragraphs 6 and 7 of the NOA.

(7) Ground 8 – the Judge erred in holding at [50] - [51] of the Judgment that no modification of Government Lease arose for consideration in light of his conclusion that there was no express grant of right of way over the Road. The Paragraph 11A Documents (whether singly or in combination) qualified as modification of the Grant pursuant to section 14A of the CPO and the Judge failed to appreciate the relationship between an agreement for a lease and the actual grant of the lease: paragraph 8 of the NOA.

(8) Grounds 9 and 10 – the Judge erred in rejecting the Lost Modern Grant Case as:

(a) having proper regard to the common ground that there was a right of way over the Road (even if implied as contended by the Government) and all the relevant evidence (documentary and otherwise), he ought to have held that the doctrine of lost modern grant applies in the present case: paragraph 9 of the NOA; and

(b) he failed to take on board or give effect to the principle that once the doctrine of lost modern grant applies, there is deemed to be an actual express deed of grant which has been lost: paragraph 10 of the NOA.

(9) Ground 11 – The Judge erred in his interpretation of r 18A(3)(a)(iv) at [29] of the Judgment and ought to have accepted P’s construction.

43.  The SJ has also lodged the Respondent’s Notice, seeking to affirm the Order on additional grounds. These grounds relate to the Lost Modern Grant Case. In gist, the SJ contends that the doctrine of lost modern grant arises from, and is premised on, the absence of an express grant, and as such, could not have satisfied the requirements of the Regulation that the relevant right of way is one which is granted expressly by or by virtue of an instrument.

D2. Discussion

D2.1 Grounds 1, 2, 4, 5, 6, 7 and 11

44.  As it will become clear below, in our view, Grounds 1, 2, 4, 5, 6, 7 and 11 should be conveniently considered together as their merits turn on the fundamental issue of the proper construction of the Regulation.

D2.1.1 The proper construction of r 18A(3)(a)(iv)

45.  As a recap r 18A(3)(a)(iv) provides as follows:

“(3) A street is to be regarded as a specified street –

(a) if there exists, with respect to the street, any of the following circumstances –

…

(iv) the street is on land over which the owner of the site is expressly granted, by or by virtue of an instrument, a right of way exercisable at all times …”

46.  The ultimate question that needs to be decided at trial and in this appeal is whether the right of way over the Road is one which is “expressly granted” by the Government “by virtue of” an “instrument” as provided under r 18A(3)(a)(iv). This is so as it is common ground that (i) there is no one single document or instrument in the present case which bears the written words that “a right of way” was granted to the owner of Lot 1469 over the Road, while (ii) the Government has always accepted that there is a right of way over the Road for the owner of Lot 1469, which is implied by necessity or granted by way of an annual permit (which was however not renewed).

47.  In the premises, as we pointed out at the hearing, the first and prior issue that needs to be addressed in this appeal is what are the respective proper meanings of these words or phrases “instrument”, “by virtue of” and “expressly granted” in the Regulation, as these would inform the question of whether any of the documents relied upon by the plaintiff in the evidence support the conclusion that the relevant right of way meets the statutory requirements.

48.  In our views, the proper construction of these words and phrases should be as follows.

49.  First, Ms Ling, counsel for the SJ, rightly accepts that the words “by virtue of” are intended to carry a different meaning from “by” in the Regulation given the trite statutory construction principle against superfluity. In this respect, as submitted by Mr Denis Chang SC for P[12], which we accept, the phrase “by virtue of” means “in consequence of” or “because of”[13] as, in the absence of a statutory definition, the phrase should be given its plain and ordinary meaning.

50.  Second, Ms Ling also rightly accepts that the words “an instrument” could include more than one document. See section 7 of the Interpretation and General Clauses Ordinance (Cap 1) (“Cap 1”)[14]. Moreover, applying its plain and ordinary meaning, an “instrument” means a formal or legal document[15], and in the context of considering whether a right of way is granted over a land, could include a deed, agreement, plans and formal correspondences. This does not go outside the inclusive definition of “instrument” under section 3 of Cap 1 which defines the word to “include” any publication in the Gazette having legal effect.

51.  Given this wider meaning of “by virtue of”, Ms Ling further rightly and fairly accepts that the phrase “is expressly granted” is not limited to the situation where the words “right of way” are expressly spelt out or stated in the relevant instrument (as this would already fall under the situation where a right of way is granted “by” an instrument). This phrase would also cover the situation where there are other words, drawings and diagrams in the relevant instruments which, when read singly or together properly, show clearly and unambiguously that the owner of the subject site is given a right of way over the relevant road or street.

52.  In the premises, in the present case, we hold that, on a proper construction of the words and phrases of “by virtue of”, “instrument” and “expressly granted”, the right of way over the Road would meet the requirements under r 18A(3)(a)(iv) if there are words, drawings, identifications or diagrams provided in the relevant instruments which, when read singly or together, show clearly and unambiguously that that right of way was granted to the owner of Lot 1469 by the Government.

D2.1.2 The present case

53.  Adopting the above construction of the Regulation, in our view, by reference to and reading the following instruments together in their proper context, the Government had clearly and unambiguously expressed an intention to grant to HEL, as purchaser and owner of the 3 Lots, a right of way over the intended approach road linking those lots to Tai Po Main Road.

54.  These instruments (collectively “the Instruments”) are:

(1) The Lot 1470 Deposit Agreement and the plan (“the Lot 1470 Deposit Agreement Plan”) attached to it[16].

(2) The Lot 1469 Deposit Agreement and the plan (“the Lot 1469 Deposit Agreement Plan”) attached to it[17].

(3) The Auction Notice[18].

(4) The respective New Grants for Lot 1469 and Lot 1470[19].

(5) M10[20].

(6) The Oct 1957 Memo[21].

55.  As a start, it is pertinent to note the following specific aspects of these documents.

56.  First, given that the Lot 1470 and Lot 1469 Deposit Agreements lodged with the NT District Administration are both dated the same date, it is clear that HEL intended to purchase them together at the same time[22].

57.  Second, on the Lot 1470 Deposit Agreement Plan, there is a clear tracing line marked on it showing the position of an intended road linking that lot (and the lot was marked to be coloured red) to Tai Po Road. On the cover note (“the Cover Note”) of the Lot 1470 Deposit Agreement from the Land Bailiff to the District Officer, after indicating HEL’s wish to purchase Lot 1470, the Land Bailiff also expressly referred to this plan identifying the lot as coloured red. The Land Bailiff then further stated in the Cover Note the following:

(1) As note 2: “The successful purchaser of the lot shall, within 3 months of the date of sale, apply to the District Commissioner N.T. for a permit for an approach road to the lot as shown coloured pink on a plan deposited in the District Office, Taipo.” (“Note 2”)

(2) As note 3: “The successful purchaser shall submit an architect plan of the approach road for approval prior to any work commencing on the approach road.” (“Note 3”)

58.  Third, on 22 January 1953, the Acting District Commissioner, New Territories issued the Auction Notice, offering to sell, among others, all the 3 Lots in the auction (“the Auction”) to be held on 24 February 1953. The Auction Notice stated that:

(1) In relation to the sale of crown lands set out in the Auction Notice, “Sale plans” may be “inspected at the District Office, Tai Po.”

(2) The sale of Lot 1470 was further subject to SC(d) and SC(e), which are identical to Notes 2 and 3.

59.  Fourth, HEL purchased all the 3 Lots together at the Auction, and the respective New Grants for each of these lots dated 24 February 1953 were issued to HEL. The Lot 1470 New Grant contained, amongst others, SC(d) and (e).

60.  Fifth, paragraph 2 of the Oct 1957 Memo (see as quoted at [22] above) stated that the respective “crown lease plans” attached to the proposed crown leases for the 3 Lots indicated “a right-of-way from the Main Taipo Road” but, on checking, “no provision for this was made in the original conditions of sale of the lots which were auctioned on the same day”. In this respect, this “right-of-way” must be a reference to the Road as paragraph 3 of the memo then referred to the fact that HEL had constructed a road along the right of way, which at present was authorized by an annual permit. The District Officer then proposed to rectify this situation by inserting clauses to the proposed crown leases of all the 3 Lots providing for the right-of-way over the Road[23], as otherwise, the Government would be put into an “invidious position” of having to force any subsequent purchasers of the lots to take out new permits (see paragraph 4 of the memo).

61.  Bearing these specific particulars of the above documents in mind and reading them objectively in context, it is in our view plain that:

(1) When HEL expressed its intention to purchase Lots 1469 and 1470 together, it also intended to construct an approach road linking both lots to Tai Po Road (as the lots were otherwise landlocked). See: The Deposit Agreements and Plans.

(2) Upon receiving these deposit agreements, it was also the Government’s expressed intention to require the purchaser of Lot 1470 to construct that approach road as intended and indicated by HEL in the Lot 1470 Deposit Agreement and Plan. See the Cover Note and its specific reference to that plan and Notes 2 and 3.

(3) When the Government offered Lots 1469, 1470 and 1471 for sale by auction after receiving HEL’s intention to purchase them (or at least Lots 1469 and 1470), it must again be the Government’s expressed intention to require the purchaser of Lot 1470 to construct that approach road linking the 3 Lots to Tai Po Road. See: Auction Notice and SC(d) and (e).

62.  When the above respective expressed intentions of HEL (as potential purchaser to buy the lots) and the Government (as seller of the lots) are further considered in the context that the Government was offering to sell the 3 Lots together, and that these lots were completely landlocked without the approach road as appearing on the plan, it must be plain and obvious that the Government in requiring the purchaser to construct the approach road had expressed an intention to grant a right of way over it for the use of the owner and occupiers of the 3 Lots.

63.  In other words, by reading together (i) the clear identification of the approach road on the Lot 1470 Deposit Agreement Plan, (ii) the landlocked position of Lots 1469 and 1470 as shown on the respective deposit plans attached to the respective Deposit Agreements, (iii) the reference to the Lot 1470 Deposit Agreement Plan together with Notes 2 and 3 in the Cover Note, (iv) the Auction Notice with SC(d) and (e) offering to sell the 3 Lots at the same time, and (v) the sale of the Lots 1469 and 1470 together at the same time to HEL by the respective Lot 1469 New Grant and Lot 1470 New Grant (with SC(d) and (e)), it is plain to us that the Government had expressed an intention to grant a right of way over the approach road (which became the Road) to the owner of Lots 1469 and 1470.

64.  We have reached the above conclusion by independently reading the Instruments together objectively and in proper context. It is also pertinent to note that this conclusion on the Government’s expressed intention is also supported by the Government’s own evidence. As shown in the Oct 1957 Memo, the District Officer after reading the “crown lease plans” attached to the proposed crown leases was of the view that the Government had granted a right of way over the approach road (ie, the Road) the owner of the 3 Lots. In this respect, in all likelihood, in the absence of contrary evidence, the crown lease plans should be the same as the “Sale plans” referred to in the Auction Notice[24]. In other words, the “Sale plans” in the Auction Notice should also similarly clearly show that there was a right of way granted over the approach road to the purchaser and owner of these lots.

65.  In the premises, for the above reasons, we hold that the Road satisfies the requirements of r 18A(3)(a)(iv) as it is a street on land (ie, Government land) over which the owner of the site (ie, Lot 1469) is expressly granted by virtue of the Instruments a right of way exercisable at all times.

66.  In relation to this, Ms Ling for the Government has advanced a number of contentions against the above conclusion. We will deal with them in turn.

67.  First, it was contended that although the Regulation permits the reading of a series of instruments, it can only be done where there is a cross reference between them.

68.  We are unable to accept this contention as it is simply not borne out by the plain and ordinary meaning of the words “by virtue of”. As we pointed out above, the phrase means “as a result of” or “in consequence of”, and it does not import the reading that there must be cross-references between the documents before they could be read together.

69.  Second, Ms Ling says given that the purchaser was required to apply for a “permit” for the approach road as specified in SC(d) and (e), and the fact that the Missing Permit (as borne out by M10) contained a condition that the permittee “will be given” a right of way over the Road, it is plain that the relevant right of way was expressly granted by way of this annual permit, which related to Lot 1470 only but not Lot 1469. Hence, the owner of Lot 1469 only has a right of way over the Road implied by the doctrine of necessity.

70.  The merit of this contention is premised fundamentally on the proposition that the right of way mentioned in the Missing Permit was intended to be granted in relation to Lot 1470 only. This however is incorrect.

71.  As we have pointed out above, from the relevant instruments read in proper context, it was clear that it was the intention of both the purchaser of the 3 Lots and the Government that the approach road was to be constructed to provide access to Tai Po Road for all the 3 Lots. This is further supported by the evidence that when HEL applied to the District Commission for approval to commence the construction of the approach road, the relevant correspondences between HEL and the District Commissioner which led to the eventual issue of the Missing Permit were all relevantly entitled: “Approach Road to Lots 1469, 1470 & 1471 in D.D. 189, Tin Sam, Shatin”[25]. It shows plainly that both parties intended that the approach road was to provide access between Tai Po Road and each of the 3 Lots. Hence, the permit to be issued must also be intended by the Government to provide the relevant right of way over the approach road in relation to each of the 3 Lots.

72.  The fact that only the purchaser of Lot 1470 (who at that time was also the purchaser of the other two lots) was required by reason of SC(d) and (e) to carry out the responsibility to construct and maintain the approach road is neither here nor there. This by itself is not inconsistent with the above conclusion that the approach road was intended to be enjoyed by, and the associated right of way over it was intended to be granted to, the owners of all the 3 Lots.

73.  Third, Ms Ling further submits that in any event, the terms of the Missing Permit (and read together with M10) show that the right of way over the Road was only granted by virtue of that permit. Given that the permit was not renewed after HEL had sold the 3 Lots, P plainly no longer has a right of way over the Road by virtue of the permit as an instrument.

74.  We are unable to agree. For the reasons we have set out above, it is clear that the Government intended to and did grant the right of way over the approach road to the owners of the 3 Lots by virtue of the Instruments. The fact that subsequently in the process of an application for a permit to construct the approach road, it was referred to a right of way over the approach as a “condition” of the permit in M10 and the Missing Permit is not inconsistent with the reading of the effect of the Instruments.

75.  Fourth, Ms Ling argues that no right of way could be granted by way of the Instruments as at the time of those instruments, the location and alignment of the approach road were still uncertain. In this respect, counsel relies on the Judge’s reasoning and findings at [34] - [41] of the Judgment to support her contentions. The Judge’s said reasoning and findings are as follows:

“34. When the Grant was executed, the Intended Approach Road did not exist. It was also uncertain when, and whether, it would be constructed by the purchaser of Lot 1470, even though it also happened to be HEL. It is inherently implausible for the Government to have intended to grant a right of way over the Intended Approach Road which did not, and may not ever, exist, with its exact location and alignment being wholly uncertain.

35. P’s case is that the location and alignment of the Intended Approach Road was set out in a site plan attached to the Grant. A copy of the site plan was appended to the Re-Amended Statement of Claim. It was in the same format as the Lot 1469 Sunprint, and had the same grey line depicting what appeared to be the Intended Approach Road.

36. P’s evidence is that the site plan was given to P as part of the title documents from Ku-Ring-Gai. The site plan was placed on top of the Grant and the two documents were stapled together. P did not know who placed the site plan on top of the Grant, why or by whom they were stapled together, or how any of its predecessors-in-title obtained the site plan.

37. There is no site plan attached to the original copy of the Grant kept in the Land Registry, or to the certified copy of the Grant obtained from the Land Registry. The Grant did not refer to any site plan.

38. The tracing (which is a site plan in the same format as the Lot 1469 Sunprint) archived in the office file of the District Lands Office with the Deposit Agreement dated 4 December 1952 (under which HEL applied to buy Lot 1469 and paid a deposit to the Government) had no line showing the location of the Intended Approach Road.

39. The Auction Notice referred to a plan deposited in the Tai Po District Office for inspection by the perspective buyers. No such plan can now be located. Additional Special Condition (d) which applied only to the buyer of Lot 1470 made reference to an approach road to ‘the lot as shown coloured pink on the deposited plan’ – in all likelihood Lot 1470. There is nothing to suggest the Intended Approach Road was depicted.

40. In the circumstances, I find on balance of probabilities that no site plan was attached to, or formed part of, the Grant.

41. In any case, the site plan could not amount to, or be interpreted as, an express grant of a right of way over the Intended Approach Road to HEL. There being a line showing the location of the Intended Approach Road is wholly equivocal. It does not tell anyone: (i) the Government was granting any right to anyone; (ii) the grantee was HEL; or (iii) the subject matter of the grant was a right of way over the Intended Approach Road, which did not exist at that time. If the wording of the Grant is obscure or equivocal, the Court must lean towards the construction most favourable to the Government, unless satisfied that another interpretation of the relevant words in their context is the true one: Earl of Lonsdale v Attorney General [1982] 1 WLR 887 at 901F-G, cited with approval by the Court of Appeal in New Mercury Holding Corporation v Secretary for Justice (CACV 73-74/2013, 15 April 2014) at [14].”

76.  With respect, there is nothing in this contention.

77.  The Judge’s material reasoning and findings set out in [34] - [40] are focused on and directed at the following:

(1) There was no site plan attached to the Lot 1469 New Grant;

(2) The Lot 1469 Deposit Agreement Plan had no tracing about the approach road;

(3) Any relevant tracing of the approach road on the plans was in relation to Lot 1470 but not Lot 1469; and

(4) In any event, even in relation to Lot 1470, despite the tracing of the approach road on the Lot 1470 Deposit Agreement Plan, it was uncertain at that time as to whether and when the road would be constructed, and thus it was “inherently implausible for the Government to have intended to grant a right of way” over the approach road.

78.  With respect to the Judge, for the following reasons, he had erred in these reasons and findings.

79.  Given our construction of the meanings of the relevant words and phrases in the Regulation, it is incorrect for him to limit himself to looking at plans relating to Lot 1469 only to see if there was a tracing of the Road. This had further led to his error in failing to consider the Lot 1469 plans together with the other documents relating to Lot 1470 and with regard to their proper context in determining the question of whether a right of way over the Road was granted to the owner of Lot 1469 by the Government “by virtue” of a series or number of instruments.

80.  As to the Judge’s finding that, even if the Lot 1470 Deposit Agreement Plan is to be considered, the uncertainties as to the location and alignment of the approach road would make it “inherently implausible” for the Government to have granted the right of way over it, the Judge had also erred in principle:

(1) He had, as pointed above, failed to consider all the other relevant documents and proper context before coming to this conclusion, when he ought to have.

(2) As a matter of principle, an owner of a land can grant a right of way to a road to be built over his land with its location and alignment yet to be approved. Cf: Dairy Farm v Secretary for Justice for and on behalf of the Director of Lands [2020] HKCFI 306 at [33], [47], [48], [54] - [59] and [67] per Wilson Chan J; and [2022] HKCA 1902 at [35] per G Lam JA.

81.  For these reasons, we also reject this contention.

82.  Finally, Ms Ling also submits that if the Government had indeed intended to grant a right of way over the intended road to the owner of the 3 Lots, it would have stated it expressly as in the case of Lot Nos 1473 and 1474, where in the memorandum of agreement for sale dated 4 January 1955 (with auction notice dated December 1954), there was an express clause for granting a right of way (under Special Conditions 1 and 2)[26].

83.  There is also nothing in this submission. If the contention is that it was the practice of the Government at the material time to grant a right of way by way of express clauses, there is simply no evidence to that effect. The mere fact that express clauses were incorporated in the memorandum of agreements for the sale of other specific lots in 1955 alone and without more cannot be regarded as evidence of any weight or significance as to what the Government would have done as a matter of practice in 1953.

84.  In the premises, for all the above reasons, we hold that the Road meets the requirements of r 18A(3)(a)(iv) as it is on land over which the owner of the site (ie, P and its predecessor in title) is expressly granted by virtue of the Instruments a right of way exercisable at all times.

85.  P is therefore successful to the above extent under Grounds 1, 2, 4, 5, 6, 7 and 11.

86.  Given this conclusion, strictly speaking, it is unnecessary for us to deal with the remaining grounds of appeal relating to P’s alternative cases as they are all premised on the basis that the right of way is not granted by virtue of any of the actual instruments identified in the evidence. However, for completeness, we will address them briefly below.

D2.2 Ground 3

87.  This ground is in relation to P’s alternative Schedule B of GN 364 Case, which runs as follows.

88.  Sections 14(1) and (2) of the CPO provides as follows:

“14. Conversion of equitable interest to legal estate where right to Government lease

(1) Where a person has a right to a Government lease of any land upon compliance with any conditions precedent, then, upon compliance with those conditions—

(a) the equitable interest under that right shall become a legal estate in that land as if held under a Government lease issued in accordance with that right; and

(b) for the purposes of section 42 and any other law, such a Government lease shall be deemed to have been issued upon compliance with those conditions.

(2) Where, under an agreement for a Government lease entered into before 1 January 1970, a person has a right to a Government lease upon compliance with any conditions precedent he shall be deemed, for the purposes of this section, to have complied with those conditions on the commencement of this section.” (emphasis added)

89.  Further, under GN 364 of 1954[27] stated, amongst others:

(1) General Condition 8 provided that where the conditions in the notice have been complied with to the satisfaction of the District Officer, the purchaser of each lot shall be entitled to and shall execute on demand a Lease from the Crown of the ground comprised in each lot for the term of years for which the lot has been sold. There shall be deemed to be incorporated in such Lease, unless otherwise expressly excepted or provided, the terms, exceptions, reservations, covenants, provisions and agreements contained in Schedule B to the notice.

(2) Clause 2 in Schedule B prescribed as follows:

“There shall except where otherwise stated be included in every Grant of ground all messuages, erections and buildings thereon, and all the easements and appurtenances whatsoever to the said premises belonging, or in anywise appertaining thereto.”

90.  P submits that the Government lease for Lot 1469 is deemed to have been issued on 1 November 1984 pursuant to section 14(1) of the CPO, and that deemed lease is also deemed to have included clause 2 of GN364 (“Clause 2”) as a condition of the grant. Clause 2 in the deemed Government lease expressly “included in [the Grant] … all the easements and appurtenances … whatsoever to the said premises …”. Among these “easements and appurtenances” was the right of way over the Road.

91.  In the premises, even if the right of way over the Road was implied by necessity in the beginning as accepted by the Government, it has since the issue of deemed Government lease become provided for expressly by way of Clause 2. The said right of way then was assigned and passed to P by virtue of paragraph 1(c) of the Schedule to the Assignment.

92.  Since both the deemed issued Government lease and the Assignment are each an instrument for the purpose of the Regulation[28], the right of way must therefore satisfy the requirements of the Regulation.

93.  The Judge rejected this case for the reason set out at [42] as follows:

“42. Clause 2 of Schedule B in GN 364 does not assist P. It merely provides that the Grant (and any subsequent Crown Lease) to be issued shall include all easements belonging to the lot. It remains the Grant which sets out what such easements were to be granted.”

94.  In this appeal, the SJ effectively relies on the Judge’s above reason to resist this ground of appeal[29].

95.  The Judge’s reason appears to have proceeded on the premise that, in order to satisfy the requirements under the Regulation, it is still necessary for the deemed issue Government lease to set out expressly the subject right of way.

96.  With respect, in our view, this is incorrect. As explained above at [51], on a proper construction of the Regulation, it is not a must for the relevant instruments to have set out the words “right of way”, and it would be sufficient if there are other words, drawings and diagrams in the relevant instruments which, when read singly or together properly, show clearly and unambiguously that the owner of the subject site is given a right of way over the relevant road or street.

97.  Clause 2 is in the form of a standard catch-all provision, and it amounts to an express grant of all the “easement” and “appurtenances” related to the land[30]. In this respect, there is no dispute that the right of way in the present case (even if it was an implied one when it was created) is an “easement”. In the premises, when considered in its proper context, it is plain and unambiguous that when the Government lease of Lot 1469 was deemed to have been issued on 1 November 1984, this right of way as an easement was included under Clause 2 and has since become a right of way expressly granted thereunder. The right of way over the Road therefore also satisfies the requirements of the Regulation.

98.  We therefore also allow Ground 3.

D2.3 Ground 8

99.  This ground seeks to challenge the Judge’s ruling at [50] - [51] of the Judgment as follows:

“50. This arose from para 12C of the Re-Amended Statement of Claim which pleaded as follows:

‘If and insofar as necessary, the Plaintiff avers that the express grant of a right of way exercisable at all times over Sha Tin Heights Road pleaded in each of paragraphs 12 and 12A hereinabove constituted or included a modification in writing by the Government of the Government lease for Lot 1469.’

51. In light of my conclusion above that there was no express grant of any right of way over the Road by the Government, no modification of Government Lease arises for consideration. In any event, the documents relied upon by P all pre-dated 1 November 1984 which was the date on which the Government Lease was deemed to have been issued. They could not have the effect of modifying the Government Lease.

100.  However, as submitted in his written submissions[31], Mr Chang SC accepts effectively that it is not necessary for P to rely on the arguments on modification of lease since the right of way as granted by virtue of the Instruments has not in substance changed.

101.  We do not think there is any suggestion in this case that the right of way over the Road has in any material way changed since its grant. It is therefore unnecessary for us to deal with Ground 8.

D2.4 Grounds 9 and 10

102.  These grounds relate to P’s alternative Lost Modern Grant Case.

103.  Under this case, P claims that as there is no dispute that P and its predecessors-in-title as owners of Lot 1469 have been using the Road without interruption for more than 20 years, under the doctrine of lost modern grant, it is presumed as a matter of law that the right of way was granted by a grant, which is lost. In premises, the right of way is granted expressly by way of a grant (an instrument).

104.  The Judge rejected this case for the reasons set out at [52] - [56] of the Judgment:

“52. The doctrine of lost modern grant is a legal fiction to presume that where there has been long enjoyment of a right, the right should have a lawful origin. It is a form of acquisition of rights by prescription, separate and distinct from acquisition by express grant. See China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 at [41]-[42].

53. There were no particulars in the Re-Amended Statement of Claim as to how the doctrine was said to be applicable on P’s case. Para 12D pleaded in the following terms:

‘Further or alternatively, without prejudice to paragraphs 12 to 12C hereinabove, by or by virtue of New Grant No. 8176 for Lot 1469, including the Lot 1469 Site Plan and/or the instruments, correspondence and documents pleaded in paragraphs 1 to 11A hereinabove, the Plaintiff has been expressly granted, by operation of the doctrine of lost modern grant and/or necessity, a right of way exercisable at all times over Sha Tin Heights Road.’

54. It was only made clearer in P’s written submissions that P is relying on the fact that P and its predecessors-in-title have been using the right of way over the Road uninterruptedly for a continuous period of not less than 20 years, such that an easement over the Road is deemed to arise by virtue of an express grant of easement which has become lost: Laming v Jennings [2018] VSCA 335 at [184]; Tai Sang Feeds Co Ltd & Ors v Sharply Development Ltd [2021] HKCFI 163 at [26]-[27].

55. Even though P and its predecessors-in-title have been using the Road without interruption since it was built in around 1954, the Road was constructed for use, and was indeed used, by the public: [13] above. No express grant by any instrument was necessary for such public use.

56. The operation of the doctrine of lost modern grant by P’s use of the Road therefore would not give rise to any express grant of a right of way over the Road by or by virtue of an instrument.”

105.  Under the grounds of appeal, Mr Chang SC complains that the Judge was wrong in holding that the Road was a “public road” as this was not supported by evidence[32].

106.  On the other hand, the Government submits that, given that the “grant”, which is presumed to have been lost, is a legal fiction and the doctrine can continue to operate even on the basis that there was in fact no express grant, it plainly cannot be regarded as “an express grant” by “an instrument” for the purpose of the Regulation.[33]

107.  In our view, the doctrine of lost modern grant is simply not available or open to P in the present case. This doctrine is created and developed to enable a claimant to prove his entitlement to an easement by way of prescription by showing uninterrupted enjoyment of that right, which is unexplained in any other way, for over 20 years[34].

108.  However, in the present case, there is no dispute that P and its predecessors indeed have a right of way over the Road by reason of, at the least, necessity. In the premises, it is neither necessary for nor open to P to rely on the doctrine of lost modern grant to prove his entitlement to the right of way.

109.  Thus, we would reject the Lost Modern Grant Case albeit for a reason different from the Judge. We therefore dismiss Grounds 9 and 10.

E. DISPOSITION

110.  P succeeds under Grounds 1, 2, 3, 4, 5, 6, 7 and 11 to the extent as explained above, and we therefore allow the appeal. We further set aside the Order and make the following declarations:

(1) A declaration that by virtue of the Instruments, the plaintiff, as the owner of Lot 1469, has been expressly granted a right of way exercisable at all times over the Road.

(2) A declaration that the Road fulfils the requirements, or is within the meaning and scope of r 18A(3)(a)(i).

111.  There is no reason why costs should not follow the events. P has substantially succeeded in this appeal. We therefore further order on a nisi basis that costs of the appeal and below should be to P, to be taxed if not agreed, with certificate for two counsel.

112.  Lastly, we wish to thank counsel for their assistance in this matter.

Attachment