SHING FUNG FILM STUDIO LTD. v. THE BUILDINGS APPEAL TRIBUNAL

1997 A.L. No. 48

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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The facts

1. The Applicant, Shing Fung Film Studio Ltd. ("the Company"), is the tenant of various lots of land in Sai Kung. There are three large sheds on the land, which are used as film studios. In December 1995, the Town Planning Board granted the owners of the land permission to erect various temporary structures on the land to be used as film studios, but approval for the erection of these three sheds had never been sought. The Building Authority ("the Authority") regarded their erection as a contravention of section 14(1) of the Buildings Ordinance (Cap. 123) ("the Ordinance"). A contravention of the provisions of the Ordinance empowers the Authority to make a demolition order under section 24(1) of the Ordinance. Accordingly, in July 1996, the Authority required the owners of the land to demolish the three sheds within 60 days.

2. The Company decided to appeal against the demolition order. An appeal lay to the Appeal Tribunal established under the Ordinance ("the Tribunal"). The Tribunal decided to hold a preliminary hearing of the Company's appeal. Following that hearing, the Tribunal decided that good cause had not been shown for holding a full hearing. Accordingly, the Tribunal notified the Company that it had decided to dismiss the appeal. The Company now applies, with the leave of Sears J., for judicial review of the dismissal of the appeal. It contends that good cause had been shown for holding a full hearing.

The temporary nature of the sheds

3. The Company has asserted that the sheds were temporary structures only. Their erection was therefore permitted under reg. 51(1) of the Building (Planning) Regulations, which provides:

"On receipt of an application, in the specified form, from a building owner together with such plans as the Building Authority may require, [the Building Authority] may permit in writing the erection of a temporary building."

It is said that a temporary building to which reg. 51(1) relates does not amount to building works for which approval under section 14(1) is required. For that reason, it is said that the Authority did not have the power under section 24(1) to order the demolition of the sheds, and that at a full hearing the Tribunal would accordingly have allowed the appeal on this ground.

4. This argument is untenable. The simple fact is that neither approval for the erection of the sheds under section 14(1) nor a permit for the erection of the sheds under reg. 51(1) had been sought before the demolition order was made. It may be that it is arguable that section 14(1) does not apply to temporary buildings for which a permit under reg. 51(1) has been issued. But that question does not arise for decision in this case because such a permit had not been sought. Since a permit for the erection of the sheds had not been sought under reg. 51(1), there is no basis whatever for saying that section 14(1) did not apply to the sheds. It is simply not open to the Company to say that because the sheds were claimed to be temporary, because it could therefore have applied for a permit under reg. 51(1), and because the Company might have been granted such a permit, therefore approval under section 14(1) was not required. It follows that the Authority had the power to order the demolition of the sheds, and the Tribunal was right to conclude that good cause for holding a full hearing of the appeal to explore this ground of appeal had not been shown.

The subsequent application for a permit

5. In January 1997, after the Company had lodged its appeal against the demolition order, but before the preliminary hearing before the Tribunal had taken place, the Company applied to the Authority under reg. 51(1) for a permit to erect the sheds as temporary buildings. That application had not been determined by the date of the preliminary hearing. These facts were brought to the attention of the Tribunal.

6. The criticism of the Tribunal is that it did not take these facts into account when they were clearly relevant. Alternatively, it is said that if the Tribunal did take these facts into account, the Tribunal should have deferred making a final determination on the appeal until the application for a permit under reg. 51(1) had been determined, because if the Authority decided to issue a permit under reg. 51(1), the demolition order would have had to be set aside.

7. These arguments are also untenable. The Tribunal's reasons addressed only the formal grounds of appeal which had been lodged prior to the Company's application for a permit under reg. 51(1). They did not purport to address the argument based on the pending application for a permit under reg. 51(1), which had been made after the formal grounds of appeal had been lodged. But that pending application had been mentioned in the course of the preliminary hearing, and the Chairman of the Tribunal had actually discussed its effect with the Company's counsel. In these circumstances, it cannot be said that the Tribunal failed to take these facts into account.

8. Moreover, in the course of that discussion, the Chairman put to the Company's counsel that even if the permit under reg. 51(1) were to be issued, that would not justify the setting aside of the demolition order, which had been made because the sheds had been erected without the approval required by section 14(1) and without a permit under reg. 51(1). That was a view which it was reasonably open to the Tribunal to take. In the light of that view, there would have been no point in deferring the determination of the appeal, because it was reasonably open to the Tribunal to conclude that the subsequent issue of a permit under reg. 51(1) should not have any effect on a demolition order made at a time when no approval or permit had been sought. Accordingly, the Tribunal was right to conclude that good cause for holding a full hearing of the appeal to explore this ground of appeal had not been shown.

9. Finally, it is said that the Tribunal's decision to dismiss the appeal without waiting for the outcome of the pending application for a permit under reg. 51(1) thwarted the Company's legitimate expectation that the appeal would not be determined until the outcome of that application was known. There is no basis for that argument. There is no evidence that that is what officers of the Company expected, nor is there any evidence that either the Authority or the Tribunal had done anything to give rise to that expectation.

Conclusion

10. For these reasons, this application for judicial review must be dismissed. However, now that the Authority's stance in making the demolition order has been vindicated, it may be that the Authority might wish to reconsider whether to insist on the demolition of the sheds prior to the determination of the pending application for a permit to erect identical sheds as temporary buildings under reg. 51(1). That application has not yet been determined because the Company has not complied with the requirements laid down by the Authority for applications for permits under reg. 51(1). If the Company has to demolish the sheds, it has only itself to blame for erecting them in the first place without a permit under reg. 51(1) or approval under section 14(1). But if permission to erect identical sheds is subsequently granted, it would be regrettable if the Company was put to the expense of demolishing the existing sheds and then erecting identical ones in their place.

(Brian Keith)

Judge of the Court of First Instance