INTERNATIONAL TRADER LTD v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 161/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 161 OF 2005

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J U D G M E N T

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I. Introduction

1.  The Applicant (ITL), a subsidiary of Swire Properties Ltd., proposes to build a residential development at a Mid-Levels site.  It submitted plans (the 1^st Submission) for the Building Authority’s approval on 26 April 2004.  The Authority rejected the 1^st Submission on 25 May 2004.

2.  ITL submitted revised plans (the 2^nd Submission) on 14 June 2004.  The Authority rejected the 2^nd Submission on 11 August 2004.

3.  ITL appealed to the Building Appeal Tribunal against both rejections by the Authority.  The Tribunal dismissed both appeals in September 2005.

4.  ITL now seeks judicial review of the Tribunal’s decision. ITL says that the Tribunal’s determination was unreasonable and wrong in law.

II. Background

5.  A plan of the site is appended to this Judgment. 

6.  The site is bounded by Castle Road and Seymour Road on the north; Castle Steps (a stepped street) on the east; and a pedestrian way on the south.  The pedestrian way stretches from Castle Steps (at the site’s southeast corner) to Castle Road (at the site’s northwest edge).

7.  The site occupies an area of 2,132.8 sq m.

8.  Part of the site (764.4 sq m) is on land zoned Residential (Group C) 7 (R(C)7) in the Approved Mid-Levels West Outline Zone Planning No.S/H11/13 (the OZP). 

9.  The R(C)7 classification means that, upon redevelopment, a building on land so zoned must not have a plot ratio in excess of 5 or the building’s existing plot ratio, whichever is the greater.  Nor can the redeveloped building exceed 12 storeys or its previous height, whichever is the greater.

10.  The rest of the site is on land zoned Residential (Group A) (R(A)) in the OZP.  The OZP imposes no plot ratio or height restriction on buildings within such zone. 

11.  This has the result that a building on the R(A) portion may have the maximum plot ratio allowed by the Building (Planning) Regulations (Cap.123 sub leg) (BPR).  For a domestic building such as ITL’s intended development, that would be 10 (if the building is on a Class C site) or 9 (if the building is on a Class B site). 

12.  The BPR defines Class C and B sites.  A Class C site is a corner site that abuts on 3 streets none of which is less than 4.5 m wide.  A Class B site is a corner site that abuts on 2 streets neither of which is less than 4.5 m wide.

13.  ITL’s development constitutes a residential tower resting on a podium.  Under the 1^st and 2^nd Submissions, the footprint of ITL’s proposed tower will fall wholly within the R(A) part of the site.  But, under both Submissions, the footprint of the proposed podium will straddle the site’s R(A) and R(C)7 portions.

14.  ITL contends that its Submissions comply with the OZP.

15.  ITL points out that in both Submissions the podium would be only about 6 storeys high.  The podium will not (ITL stresses) exceed the R(C)7 height restriction.

16.  Further, since the podium will only comprise car parking spaces and recreational facilities, it will not (ITL says) have any residential Gross Floor Area (GFA).  On that basis, the podium (according to ITL) would have a plot ratio of 0, which is obviously below the R(C)7 plot ratio maximum of 5.

17.  On the other hand, subject to the BPR, the R(A) zone imposes no height restriction on the residential tower of the intended development.  Accordingly, there can be (ITL argues) no objection to the 54 storey tower of the 1^st Submission or the 49 storey tower of the 2^nd Submission.

18.  The 1^st Submission assumes that the site is a Class C site because it abuts Castle Road, Seymour Road and either the pedestrian way or Castle Steps (taking account of 2 setback areas).  If this is right, the tower under the 1^st Submission (ITL contends) should be acceptable in plot ratio terms. 

19.  ITL’s plot ratio calculation for its 1^st Submission may be summarised as follows:-

(1) Site Area: Original site area (2,132.8 sq m) less setback area (23.004 sq. m.) = 2,109.796 sq. m.

(2) Permitted area: Site area (2,109.796 sq. m.) times maximum permissible plot ratio (10) = 21,097.960 sq. m.

(3) Total GFA: Ground floor area (132.642 sq. m.) plus residential area (20,962.314 sq. m) = 21,097.956 sq. m.

(4) Comparison of GFA and permitted area: 21,097.956 sq. m. is less than 21,097.960 sq. m.

20.  The 2^nd Submission assumes that the site is a Class B site, which abuts Castle Road and Seymour Road.  If this is right, the tower in the 2^nd Submission (ITL contends) should be acceptable in plot ratio terms. 

21.  The 2^nd Submission calculates the plot ratio for its tower along the following lines:-

(1) Site Area: Original site area (2,132.8 sq m) less setback area (0 sq. m.) = 2,132.8 sq. m.

(2) Permitted area: Site area (2,132.8 sq. m.) times maximum permissible plot ratio (9) = 19,195.20 sq. m.

(3) Total GFA: Ground floor area (173.767 sq. m.) plus residential area (19,021.359 sq. m) = 19,195.128 sq. m.

(4) Comparison of GFA and permitted area: 19,195.128 sq. m. is less than 19,195.20 sq. m.

22.  The Tribunal rejected ITL’s case in the 1^st and 2^nd Submissions. 

23.  The Tribunal treated the development as a single building, part of which stood on R(C)7 land.  Since a plot ratio of 10 or 9 and heights of 54 or 49 would exceed the plot ratio and height restrictions of the R(C)7 zoning, it followed (the Tribunal reasoned) that both Submissions were contrary to the OZP.  The Tribunal thus concluded that the Submissions were rightly disapproved by the Authority.

24.  The main issue before me is whether the Tribunal was right in this reasoning.  Depending on the extent to which I find that the Tribunal was right, 2 subsidiary issues arise for my consideration. 

25.  The 1^st subsidiary issue is whether the Tribunal was correct to hold that, in any event, the site was Class B. 

26.  The Tribunal thought that there was a Class B site for 2 reasons:

(1) The site did not abut on the pedestrian way.

(2) Even if the site could be said to abut on Castle Steps, parts of Castle Steps were less than 4.5 m wide and could not qualify as a “street” within the terms of the BPR.

27.  The 2^nd subsidiary issue is whether the Tribunal was right when it said that, if it had found in ITL’s favour on the main issue, it would have allowed the appeal subject to a stay.

28.  The purpose of the stay would have been to enable the Authority to assess further information concerning the filtration plant room, surge tank and the GFA calculations of the proposed development.  ITL provided such information in the course of the hearing before the Tribunal.

III. Discussion

A. Main Issue: Whether proposals contravene the OZP

29.  The Tribunal held that ITL’s calculations of permissible GFA in the 1^st and 2^nd Submissions was wrong.

30.  The development could not be treated as if there were 2 buildings: a podium and a residential tower.  As far as the Tribunal was concerned, there was only:-

“a single building, a single site and a single plot ratio, which is 10 or 9, depending on whether the Site is a class ‘C’ site or a class ‘B’ site” (Determination p.11).

31.  Since part of ITL’s development would be built on R(C)7 land, it was immaterial whether one took the plot ratio for ITL’s building as 10 or 9.  On either basis, the OZP would be contravened.

32.  In my judgment, the Tribunal was right in its conclusion.

33.  Mr. Ismail (appearing for ITL) objects that the Tribunal erred in law on a number of grounds.

34.  First, Mr. Ismail argues that plot ratio and height restrictions of OZP zones only apply to those designated areas.  The restrictions are zone-specific and should not be applied to other zones. 

35.  Contrary to this principle, the Tribunal’s decision had the effect (Mr. Ismail complains) of applying the restrictions of the site’s R(C)7 portion onto its R(A) part.

36.  Second, Mr. Ismail suggests that the Tribunal erred in treating the podium and tower as a single building. 

37.  The OZP (Mr. Ismail reasons) is an approved statutory plan for the purposes of the TPO.  Under the TPO and the Buildings Ordinance (Cap.123) (BO), a “building” can refer to a building as a whole or only to part of a building.  The Tribunal should (Mr. Ismail contends) have considered whether that part of the structure on R(C)7 land (the podium) violated the R(C)7 zoning and whether that part of the structure on the R(A) land (the tower and podium) violated the R(A) zoning.

38.  Third, the Tribunal’s decision (Mr. Ismail says) was inconsistent with the 2003 approval by the Authority of a similar plan for the site. 

39.  That 2003 approval concerned a building with an overall plot ratio of 7.56.  Given “minimal” difference between an overall plot ratio of 7.56 on the one hand and 9 or 10 on the other, the rejection of the 1^st and 2^nd Submissions (Mr. Ismail claims) “elevated form over substance”.

40.  Fourth, there is an ambiguity (Mr Ismail says) in BO s.16(1) (which empowers the Authority to reject plans which would contravene an OZP) and BPR reg.21 (which specifies maximum permissible plot ratios for buildings and states how plot ratio is to be calculated). 

41.  It is unclear (according to Mr. Ismail) from those provisions how maximum plot ratio or height should be calculated where a site straddles 2 OZP zones, one of which is more restrictive than the other.  In such case, should the maximum permissible plot ratio or height for the straddling site be that of the more restrictive or less restrictive zone?

42.  Given an ambiguity, Mr. Ismail suggests that the provisions should be construed so as not to deprive ITL of property rights.  In other words, the Tribunal should have opted for the statutory construction which gave ITL the greater extent of property right.

43.  Fifth, the Tribunal’s approach was wrong (Mr. Ismail says) as a matter of policy.

44.  According to the OZP, an R(C)7 zoning was given to part of the site, because of “inadequate access for servicing and fire fighting”. That reason was inapposite to the site’s R(A) portion, which as far as the OZP was concerned had sufficient vehicular access.  There was no reason to restrict the building of the tower on R(A) land.

45.  I am not persuaded by Mr. Ismail’s grounds.  I set out my reasoning below.

A.1    1^st objection: Zone-specific designation

46.  Mr. Ismail’s first argument is self-contradictory. 

47.  Mr. Ismail is himself purporting by his method to extend the benefits afforded by the R(A) part of the site to the site’s R(C)7 portion.  This is because to justify the total GFA of the proposed developments (including the tower on R(A) land), ITL has to include the 764.4 sq m of the site’s R(C)7 part into its calculations. 

48.  If the 764.4 sq m were excluded from the 1^st Submission calculation, the permitted area for the development would only be 13,453.960 (that is, [2,109.796 sq. m. - 764.4 sq. m.] x 10).  If the 764.4 sq m were excluded from the 2^nd Submission calculation, the permitted area would only be 12,315.600 (that is, [3,132.800 sq m - 764.4 sq m] x 9).

49.  In both Submissions, the permitted area would be significantly less than the total GFA being contemplated.  But for the extra area gained from incorporation of the 764.4 sq m into the calculations of both Submissions, ITL’s plans would exceed the maximum plot ratios stipulated by the BPR.

50.  The methodology espoused by Mr. Ismail thus depends on treating R(C)7 land as contributing to the available site area for that part of the development on R(A) land.  But this (according to Mr. Ismail) is precisely what cannot be done.  The benefits of the R(A) designation are specific (and must be rigorously confined) to the R(A) part of the site.

51.  Mr. Ismail counters that it is up to the developer to locate his proposed development anywhere on land which he owns so as to maximise site potential.  Mr. Ismail cites well-known authorities such as AG v. Cheng Yick Chi [1983] 1 HKC 14 and CINAT Company Ltd. v. AG [1995] 1 HKLR 128 in support of this principle.

52.  Mr. Ismail may be correct in the latter proposition.  But it is no answer to the inconsistency within his argument.

53.  By all means, the landowner may position his intended building anywhere on his land, including straddling 2 OZP zones.  However, when assessing whether the development so positioned is permissible, one cannot ignore zoning and building regulations applicable to the individual parts of the chosen site.

54.  I add that I do not accept Mr. Ismail’s premise that by its decision the Tribunal was applying the R(C)7 restriction to R(A) land.  I do not think that such a description of the effect of the Tribunal’s decision is a fair one.

55.  The Tribunal disapproved the developments proposed by the 1^st and 2^nd Submissions for the simple reason that part of each proposed building stood within an R(C)7 zone.  That does not amount to applying the R(C)7 restriction beyond its proper zone.  It is only a consequence of applying the rigour of the R(C)7 designation to its own zone.

56.  Thus, as far as Mr. Ismail’s first argument is concerned, it is contrary to ITL’s own case.  An OZP designation being zone specific, ITL cannot do what it proposes to do.  ITL cannot take advantage of the entire site area (combining the R(A) and R(C)7 portions) to support the plot ratio of its tower on the R(A) part of the site.

A.2    2^nd objection: Part of a building

57.  On Mr. Ismail’s second argument, I do not think that drawing a distinction between “part of a structure” and an “entire structure” assists ITL.  On this I agree with the argument of Mr. Mok (appearing for the Authority).

58.  BPR reg.21 and its 1^st Schedule stipulate the maximum permissible plot ratios for Class A, B and C domestic buildings.

59.  BPR reg.21(3) provides:-

“For the purposes of this regulation and of regulation 19, 20 and 22, the plot ratio of a building shall be obtained by dividing the gross floor area of the building by the area of the site on which the building is erected.”

60.  Assume (as Mr. Ismail suggests) that “building” in BPR reg.21(3) bears the meaning assigned to that word by BO s.2.  Thus, among other things, a “building” includes “the whole, or any part, of any domestic ... building”.

61.  If we treat BPR reg.21(3) as capable of referring to a “part of a building,” the regulation would in effect be providing for such part as follows:-

“...  the plot ratio of a part of a building shall be obtained by dividing the gross floor area of the part of the building by the area of the site on which that part of the building is erected.”

62.  In other words, BPR reg.21(3) would require the GFA of the tower part of the building to be divided by the area of the site’s R(A) portion (that is, the portion on which that tower part is to be erected).  But such exercise would result in the GFA of the tower part being in excess of the maximum plot ratios of 10 or 9 permitted by the BPR.  Mr. Mok has calculated that, for the 1^st and 2^nd Submissions, plot ratios of 15.4 or 14 respectively would be obtained.

63.  Accordingly, even if one focuses on only “part” of ITL’s building or development as Mr. Ismail invites the Court to do, ITL’s proposals would still contravene the wording of the BPR.

64.  In support of his submission, Mr. Ismail referred to the definition of “building” in TPO s.1A.

65.  But the Court does not read statutory definitions in a vacuum.  Asked what statutory provision I was supposed to construe with the aid of the TPO definition highlighted, Mr. Ismail suggested that the word “building” in OZPs prepared under the TPO should be so construed. 

66.  Even if I were to accept that proposition (despite lack of any statute or regulation providing that definitions in the TPO apply to OZPs), ITL’s argument is not advanced.  I have not been pointed to any particular sentence in the OZP which, read in the light of the TPO definition, explicitly supports ITL’s case.

67.  Further, whatever the position under the TPO, construing the word “building” as incorporating a reference to “part of a building” does not affect Mr. Mok’s analysis of BPR reg.21(3) discussed above.

A.3    3rd objection: 2003 approval 

68.  The development which ITL proposed in 2003 was similar to that in the 1^st and 2^nd Submissions.  But the 2003 development (ITL stresses) was allowed by the Authority despite having an overall plot ratio of 7.56.

69.  The Tribunal found that there was no inconsistency between its rejection of the 1^st and 2^nd Submissions and the 2003 development plan’s approval by the Authority. 

70.  The Tribunal explained why as follows:-

“Unlike the plans which are the subject matter of these appeals, the 2003 plans were drawn up on the basis of there being 2 sites (Sites ‘A’ & ‘B’), corresponding with the R(C)7 and R(A) zones respectively.  The permitted site coverage for Site ‘A’, corresponding to the R(A) zone was then calculated by applying to the area of that site multiplier of 9 (being the maximum plot ratio permitted for a class ‘B’ site) and the permitted site coverage for Site ‘B’ corresponding the R(C)7 zone was calculated by applying to the area of that site a multiplier of 5 (being the maximum plot ratio permitted by the OZP).  The resulting figures were then aggregated to produce an overall maximum permissible site coverage in terms of gross floor area.  Under these proposals, the gross floor area of the domestic tower block (to be built over Site ‘A’), approximated to the aggregate maximum permitted gross floor area for Sites ‘A’ & ‘B’, calculated on the assumption that the maximum permissible plot ratios were 9 & 5 respectively.”

71.  That the 7.56 overall plot ratio of the 2003 development exceeded the limit of the R(C)7 zone was (the Tribunal noted) fortuitous.  Even if the 7.56 ultimate figure were relevant, it could not justify plot ratios of 10 or 9 (which are respectively 32% and 19% greater than 7.56).

72.  I do not think that the Tribunal’s logic can be faulted.

73.  I do not think that, by its reasoning, the Tribunal was “elevating form over substance”.  I do not accept that the differences between plot ratios of 7.56 on the one hand and 10 or 9 on the other can be dismissed as “de minimis”. 

74.  Further, the Authority was either right or wrong in law to approve the 2003 submission. 

75.  If the Authority was wrong in law, the solitary 2003 approval cannot have the consequence that all later submissions for the site with overall plot ratio of 7.56 or greater should be acceptable.  Indeed, before this Court on a judicial review, a wrong decision in law by the Authority cannot be binding.  I doubt that one wrong decision by the Authority can amount to some sort of representation that similar proposals will necessarily be accepted in the future.

76.  On the other hand, if the Authority was right in law, the 2003 episode would still not be pertinent to the present case for the reason explained by the Tribunal.

77.  The method used for calculating plot ratio in 2003 was different from that now being employed.  In 2003, the permissible GFA of the tower was calculated solely by reference to the area of the R(A) portion. 

78.  In contrast to the present situation, it was unnecessary in 2003 to bring in any of the 764.4 sq. m. of the R(C)7 portion as support for the plot ratio calculation of the residential tower being proposed in 2003.  ITL was not then trying to spill over the benefits of the R(A) part of the site into the R(C)7 portion.

79.  For avoidance of doubt, I stress that I should not be taken to have determined one way or the other whether the Authority was right in law to grant the 2003 approval.  This judicial review has not squarely raised the issue.  My point is merely that, whether the 2003 approval was right or wrong, the Tribunal was correct to dismiss it as irrelevant on the facts of the present case.

A.4    4th objection: Alleged ambiguity

80.  Mr. Ismail relies on the Court of Final Appeal’s decision in Wah Yick Enterprises Co. Ltd. v. Building Authority (1998) 2 HKCFAR 170.

81.  There Litton PJ said (at 181B-D):-

“The Building Authority, in considering whether to reject plans under s.16(1)(d), must obviously have regard to the broad planning aims of the OZP before it.  A ‘townhouse’ development permissible in one ‘V’ zone does not necessarily mean that it would be appropriate in another  ‘V’ zone.  But when there is a reasonable doubt, the developer must be given he benefit of the doubt.  This is consistent with the principle that ‘a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms....”

82.  Bokhary PJ said (at 183D):-

“In my judgment, the principle holds good in respect of approved or draft zoning plans prepared under he Town Planning Ordinance.  Where there is any reasonable doubt as to whether any approved or draft zoning plan restricts a property owner’s rights, such doubt is to be resolved in the property owner’s favour.”

83.  In Wah Yick the OZP zoned an area for “village type development”.  Under that zoning, the building of a “house” was a permitted use.  The developer argued that a 33 storey block of flats constituted a “house” and that the expression “village type development” was so vague that it could not amount to any restriction on the proposed development.  The developer lost at 1^st instance and all levels of appeal.  There was nothing ambiguous about “house” or “village type development”.

84.  Mr. Ismail’s argument hinges on finding some ambiguity in the OZP or some relevant statutory provision.  Mr. Ismail suggests that there is “ambiguity” because it is unclear whether one should apply the restrictive plot ratio and height restrictions of the R(C)7 designation or the more liberal one of the R(A) zoning.

85.  But I can find no ambiguity.  There is no vagueness in the OZP or in BO s.16(1) and BPR reg.21.

86.  By BPR reg.21(3) to determine plot ratio one divides the building’s GFA by the area of the site. 

87.  Having done that, one finds that the resulting plot ratios of both Submissions exceed that stipulated by the R(C)7 zoning of part of the site.  One also notices that in both submissions the proposed number of storeys for the building exceeds the height restriction of the site’s R(C)7 portion.

88.  The inevitable conclusion from all this is that there is a contravention of the OZP.  The Authority was thus entitled to reject both submissions under BO s.16(1).

A.5    5th objection: Policy considerations

89.  The Tribunal held that it had a discretion to relax restrictions in the OZP.  For the purposes of this Judgment, I shall assume (without deciding) that the Tribunal had such a discretion.

90.  But the Tribunal pointed out that ITL had applied to the Town Planning Board (TPB) pursuant to the Notes to the OZP and PO s.13 for a waiver of the R(C)7 restriction on the site. 

91.  In those circumstances, the Tribunal concluded that:-

“[I]t would not be a proper exercise of our discretion to determine what, in substance and effect, are the very same questions as those which are pending before the Town Planning Board, particularly bearing in mind that, as we understand it, very much more extensive evidence has been and/or will be presented to the Town Planning Board on the subject, inter alia, of vehicular access (including expert evidence) than has been presented to us.”

92.  In considering whether or not the R(C)7 restriction on part of the site should be relaxed, the TPB will undoubtedly look into traffic and other policy considerations.

93.  In that light, I do not think it is right or appropriate in a judicial review for me to express any view on whether the Tribunal’s decision upholding the Authority was correct as a matter of policy. 

94.  To form a view on whether the Tribunal has “unreasonably” ignored the policy behind the R(C)7 zoning, would require hearing and weighing evidence on (among other things) the likely traffic around the site both before and after ITL’s proposed developments.

95.  The Tribunal declined to rule on any such evidence presented to it, because of the pending proceedings before the TPB.  The Tribunal cannot have been wrong in taking such a course.

A.6    Supplementary argument: Reference to extraneous materials

96.  In support of ITL’s case, Mr. Ismail referred to proposed amendments to the TPO broached in 1996 and afterwards.  He also drew my attention to a speech by the Secretary for Planning and Lands to the Hong Kong Institute of Architects on 18 December 2001.

97.  The thrust of Mr. Ismail’s argument was that in his speech the Secretary conceded that at present under the BO and TPO “transfer of development rights” was possible where (as here) development sites straddled different zones. 

98.  Attempts to remove that possibility of transfer through legislation (Mr. Ismail submits) came to nought.  Various Town Planning Bills to regulate rights’ transfers and make them subject to the permission of the TPB were never passed for one reason or another.

99.  It follows (Mr. Ismail suggests) that the TPO and BO should not be construed as prohibiting ITL from taking advantage of the R(A) zoning of one part of the site.  ITL should be allowed to transfer the rights and benefits given by the R(A) zoning to the R(C)7 portion of the site area.

100.  I am unable to accept Mr. Ismail’s contention.  The material which he has sought to introduce is inadmissible.

101.  The situations when the Court can consult Hansard to discern the purpose behind promulgated laws are highly circumscribed.  Even then, when one refers to Hansard, one does so only to look at what was said about a particular bill just before it became law.  One uses the material as an aid to construction of a bill that has become law.

102.  Here Mr. Ismail is inviting me to look at material and events (not just Hansard) which arose after the relevant provisions of the BO and TPO were enacted.  He asks me to construe those enacted provisions by reference to post-enactment materials and events.

103.  But I have been shown no authority to the effect that I am entitled to infer anything about the meaning of statutes from post-enactment materials or events. 

104.  I am asked to look at bills.  But the purpose is not to construe the ordinances which these bills eventually became.  The bills or their relevant clauses were (on Mr. Ismail’s own premises) never enacted.  I am being asked to construe what had been enacted into law before these bills were proposed, by reference to the non-enactment of these very bills. 

105.  The whole process strikes me as a wrong and illogical approach to reading a statute.

106.  Let me take an example. 

107.  According to Mr. Ismail a 2000 Bill was introduced to reform the TPO.  But the 2000 Bill:-

“lapsed because the Bills Committee formed to study it decided to curtail its work as it was unrealistic to complete scrutiny of the 2000 Bill within the LegCo session”.

108.  I can deduce nothing from this.  For all I know, the bill was never resurrected after lapsing because LegCo had second thoughts.  It may (for instance) have decided that (contrary to what the Secretary said during his December 2001 speech) the law was clear that one could not do what ITL contends.

109.  I add that I derive no help whatsoever from the Secretary’s speech.  His view as to what enacted laws say or do not say are not binding on the Court.  The true construction of a statute cannot hinge on what a government official says from one day to another after the statute has been enacted.

110.  Mr. Ismail advances no argument of legitimate expectation or estoppel in this judicial review.  It is not part of Mr. Ismail’s case that, as a result of what the Secretary said, Government is estopped from advocating a particular reading of the TPO.  Mr. Ismail does not say that ITL had a legitimate expectation of some sort as a result of the Secretary’s December 2000 speech. In those circumstances, however interesting the Secretary’s speech might have been, it is irrelevant to this judicial review.

A.7    Conclusion on contravention of OZP

111.  ITL fails on the main issue.  The Tribunal rightly rejected both ITL’s Submissions as being in contravention of the OZP.

B.      Subsidiary issues: How the site should be classed and other matters

112.  Given my decision on the main issue, the subsidiary issues do not arise.  Both the 1^st and 2^nd Submissions contravene the OZP.  It therefore does not matter whether the site is Class C or B.  Nor is any question of a stay material.  The Authority’s disapproval being upheld, there is nothing to stay.

113.  But, in deference to counsel’s argument, I briefly set out my views on the subsidiary issues.

B.1    Subsidiary issue 1: Whether the site is Class C or B

B.1.1 The pedestrian way

114.  The Tribunal held that, although the pedestrian way was a “street” for the purposes of the BPR, the site did not “abut” on it. 

115.  The way is separated from the site by a 225 mm thick fence wall.  The Tribunal did not think that the wall formed part of the pedestrian way insofar as the latter constituted a street.  This was because, visually, the fence stood as “a physical barrier between the Site and the Pedestrian Way”.  In addition, the wall was “not capable of being used for any purpose normally associated with a street, e.g. it cannot be used for pedestrian or any other traffic”.

116.  In adopting a “visual” and “use” test, the Tribunal followed (among others) the approaches of Mayo J in Beaux Estates Ltd. v. AG [1983] 1 HKC 317 and Mantell J in Multi-Strategic Investments Ltd. v. AG [1984] HKC 178.

117.  Could the site nonetheless be said to “abut” on the way despite the presence of the fence? 

118.  The Tribunal did not think so, because the wall was “a substantial feature” separating the way from the site.  The Tribunal did not believe that the existence of a gate in the fence wall giving access to the way from the site affected its analysis.

119.  In reaching its conclusion on abuttal, the Tribunal applied tests for “abuttal” articulated by the Privy Council in Aik San Realty v. AG [1982] HKC 320 and by Fuad J in AG v. Mightystream Ltd. MP No. 586 of 1981 (8 October 1981).  The Tribunal believed that, for there to be “abuttal,” ITL had to show there was “contiguity” as a matter of “fact and degree”.

120.  In my judgment, the Tribunal applied the correct tests for determining whether or not the wall formed part of the way and (if not) whether the site nonetheless abutted on the way.  I do not think that in coming to its conclusion the Tribunal acted irrationally or unreasonably.  Nor do I believe (contrary to Mr. Ismail’s suggestion) that there was anything contrary to commonsense or practicality in the Tribunal’s holding.

121.  I am fortified in my view by the fact that the wall is part of the site area of Robinson Place, a neighbouring development by ITL’s parent company. 

122.  It was a condition of treating Robinson Place as a Class C site that the way should be excluded from that development’s site area.  Otherwise, under the BPR, the way could not be a “street” onto which Robinson Place abutted. 

123.  Another condition which the Building Authority imposed on Robinson Place was that the way be demarcated by the present wall.

124.  But, at the request of the developers of Robinson Place, the wall was allowed to form (and did form) part of the Robinson Place site for the purposes of calculating the permissible GFA of that development. 

125.  The present site might therefore reasonably be regarded as abutting not on the way, but on a significant part of Robinson Place (namely, the wall).  It would then only be that part of Robinson Place constituted by the wall which abuts on or is contiguous to the way.

126.  It seems to me that ITL and its parent cannot have it both ways.  For the purposes of Robinson Place, ITL’s parent treated the wall as part of the site area of Robinson Place and not part of a street (the pedestrian way).  Years later, the parent’s subsidiary now seeks to treat the wall, inconsistently, as part of the pedestrian way (with the result that the present development is contiguous to a “street”), rather than as part of Robinson Place.

B.1.2 The narrow setback

127.  The Tribunal decided that Castle Steps could not qualify as a “street” under the BPR because it was narrower than 4.5 m in parts.

128.  ITL had sought to deal with this by proposing to create a “narrow setback area” parallel to Castle Steps.  This area would have the effect (ITL contends) of widening parts of Castle Steps to 4.5 m.

129.  The Tribunal described the narrow setback as follows:-

“The boundary of the Site which is the subject of these appeals is similarly indicated by a rail running down castle Steps, outside of which (i.e. outside the boundary of the Site) is a drainage channel.  However, unlike Goldwyn Heights development [which is on the opposite side of Castle Steps and which also employed a setback area to widen Castle Steps], in the plans which are the subject of the 1^st Appeal [the 1^st Submission], it is proposed to leave the drainage channel where it is, the proposal being to fill the narrow set back area with a concrete slab.”

130.  The Tribunal focused on the concrete slab.  It felt that this “would serve no useful purpose” and “could not be regarded as part of a street (i.e. Castle Steps)”.  The Tribunal thought that pedestrians could not pass to and fro over the concrete slab.  The slab could not be “used” as a street.

131.  In arriving at this conclusion, the Tribunal especially relied on Beaux Estates Ltd..  There Mayo J held that a verge could form part of a street.  He said (at 323D):-

“While I accept that pedestrians would not normally use the verge in preference to the metal part of the road, I do not think that it would be a completely unforeseeable eventuality that they would walk on the verge if there was traffic using the metal park of the road.  Also, the existence of the vegetation on the south side of the road would not unduly impede the passage of pedestrians.”

132.  This dictum (the tribunal thought) suggested that, in evaluating whether an area formed part of a street, one should apply a dual test of visual aspect and use.  A “visual test” alone was not conclusive.  Here, the Tribunal observed that counsel for the Authority had conceded that the narrow setback area passed the visual test.

133.  Mr. Ismail complains that a “use” test is nowhere mentioned in the definitions of street in BO s.2(1) or BPR 2(1). He submits that the Tribunal went wrong in law, because a “street” can include parts which serve no useful purpose.

134.  I am unable to fault the Tribunal.  I cannot say that a reasonable tribunal would never have concluded as was done here in relation to the narrow setback.

135.  In practical terms, I think that it is reasonable to have some regard (as Mayo J did in Beaux Estates Ltd.) to the “use” to which a particular area might be put in assessing whether it forms a “street” or part of one.  The weight to be given to any “use” potential or its absence is a matter of “fact and degree” for a tribunal to determine.

136.  I am not helped, one way or the other on this question, by the definitions of “street” in the BO and BPR.  Those definitions merely state what a “street” includes.  The definitions are neither exhaustive of what might constitute a “street” nor indicative of every attribute which might help to determine whether an area is a “street” or “part of a street”.

137.  Mr. Ismail criticises the Tribunal for failing to follow the approach in the case of the Goldwyn Heights setback area.  But (as seen from the passage on the narrow setback cited above) the Tribunal is careful to point out that the layout on the Goldwyn Heights side of Castle Steps differed from that proposed here by ITL. 

138.  In my view, the Tribunal was accordingly entitled to come to its conclusion in relation to the narrow setback.

B.1.3 The rectangular setback

139.  The Tribunal found that a rectangular setback at the southeast corner of the site constituted a “street”.  This rectangular setback served to widen another part of Castle Steps.  Note, however, that to succeed in its case of an abuttal on Castle Steps, ITL had to persuade the Tribunal that both the rectangular and narrow setbacks were streets or part of one.

140.  The Building Authority appeals against the Tribunal’s finding on the rectangular setback.

141.  Here I agree with Mr. Ismail.  The point not having been raised by any cross-application for judicial review, I do not believe that Mr. Mok is now entitled to raise it before me.

142.  In any event, I do not think that the Tribunal’s decision can be said to be wrong in law or unreasonable.

143.  I note further that, the Tribunal’s assessment being a matter of fact and degree in all the circumstances, I do not accept that it concerns a pure point of law (as Mr. Mok contends).

B.1.4 Conclusion on classification of the site

144.  The Tribunal’s findings being undisturbed, it follows that the site is a Class B area. 

145.  The site does not abut the pedestrian way. 

146.  The site may abut Castle Steps.  But even if one takes account of the rectangular setback, Castle Steps without the narrow setback cannot be treated as a “street” within the BPR.  Thus, the site only abuts 2 streets, Castle Road and Seymour Road.

C.      Subsidiary issue 2: Whether the proposed stay was wrong

147.  This is a purely hypothetical issue.

148.  The Tribunal said that, if ITL had prevailed, the Tribunal would have allowed the appeal subject to a stay for the Authority to take account of new information provided by ITL.

149.  Mr. Mok says that the Tribunal could not allow the appeal provisionally.

150.  Here, I agree with Mr. Ismail. 

151.  There is no cross-application for judicial review in relation to this point.  It is thus not open to Mr. Mok.

152.  Moreover, under BO s.50(2), the Tribunal could (if so minded) have reversed the decision of the Authority being appealed against or substituted “such other order as it thinks fit”.  The order proposed by the Tribunal is consequently one which it could make.

153.  The proposed order may not have been stated in the most elegant fashion.  It seems that the Tribunal might have envisaged some sort of order nisi.  But this lack of precision was because the Tribunal upheld the Authority.  The question of a stay was thereby rendered academic.  The Tribunal did not have to spell out everything envisaged in the circumstances.

IV. Conclusion

154.  ITL’s judicial review application is dismissed.  The Authority has prevailed, but not on all issues argued.  I will make an order nisi that ITL pay 90% of the Authority’s costs.  Those costs are to be taxed on a party-and-party basis, if not agreed.