BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

CACV 19/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 19 OF 2012

(ON APPEAL FROM HCAL NO. 20 OF 2011)

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J U D G M E N T

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Hon Cheung JA:

1.  I agree with the judgment of Fok JA and the orders he proposes to make.  Accordingly, the appeal is dismissed with no order as to costs of the appeal and below but that Lam J’s order in respect of the Appeal Tribunal (Buildings) stands.

Hon Fok JA:

Introduction

2.  The Interested Parties are property developers (the Developers).  Building plans and drainage plans submitted by them were disapproved by the Building Authority (BA).  The Developers’ appeal to the Appeal Tribunal (Buildings) (BAT) was successful and the BA then applied for judicial review of that appeal decision.  By his judgment dated 20 December 2011, Lam J (as he then was) quashed the BAT’s decision and granted consequential relief to the BA.  The Developers now appeal against Lam J’s judgment.

3.  This appeal was heard by the same Court that heard the appeal by way of case stated in CACV 113/2012 (the Case Stated Appeal).  Although this appeal was first heard in April 2013, it was originally intended that judgment in this appeal would be postponed until the delivery of judgment in the Case Stated Appeal to avoid the risk of inconsistent decisions.[1]  However, for reasons that I shall explain, the appeal was not concluded in April but was adjourned part-heard until a date in June immediately before the hearing of the Case Stated Appeal.  In the event, therefore, the judgments in this appeal and the Case Stated Appeal have been prepared at the same time and, although the judgments are separate, they are intended to be read together.

The facts

4.  The proposed development is at Ying Wa Terrace in Sai Ying Pun, Hong Kong.  Ying Wa Terrace is divided into three buildings at Nos. 1-6, Nos. 7-9 and Nos. 10-12.  Access to the buildings is from Centre Street with Nos. 1-6 being next to the street and adjacent to Nos. 7-9 and Nos. 10-12.  Access to Nos. 7-9 and Nos. 10-12 is by means of a right of way over a lane from Centre Street running along the front of Nos. 1-6 and Nos. 7-9 respectively.

5.  The Developers originally proposed to build two blocks of flats on the lots comprising Nos. 7-9 (I.L. 6501, 6502 and 6503) and Nos. 10-12 (I.L. 6504, 6505 and 6506) with the first block of flats, Phase I, on the lots at Nos. 10-12 and the second block, Phase II, on the lots at Nos. 7-9.

6.  In July 1997, the Developers submitted plans with the project title “Proposed residential building at Nos. 7-9 (Phase II) and Nos. 10-12 (Phase I) Ying Wa Terrace, Hong Kong” for a 32-storey building at Nos. 7-9 and, or combined with, a 31-storey building at Nos. 10-12. In August 1997, the BA approved those plans for the combined site of Nos. 7-12 with a site area of 923.077 m².

7.  In December 1997, the Developers submitted “Building (Phase I) (Amendment E)” plans for Nos. 10-12.  The BA approved those plans in January 1998.  Further “Building (Phase I) (Amendment F)” plans for Nos. 10-12 were submitted in April 1998 and approved in May 1998.

8.  In April 1998, the BA granted consent for the commencement of building works for the building plans in respect of Nos. 10-12.  The Developers completed the development at Nos. 10-12 in 1999 and in October 1999 the occupation permit was issued for the development, which was called Ying Wa Court.

9.  In 1999, the Developers sold off the units in Ying Wa Court to individual owners but retained an open area in front of Nos. 10-12 as a reserved portion consisting of 50/41750 shares of the lots.  The DMC in respect of Nos. 10-12 gives the Developers exclusive possession of the reserved portion.

10.  In August 2006, the BA approved building plans with the project title “Proposed Residential Building on I.L. 6501, 6502, 6503, 6504, 6505 & 6506 at Nos. 7-9 (Phase II) and Nos. 10-12 (Phase I) Ying Wa Terrace, Hong Kong”. Revised plans were submitted in March 2007 and approved by the BA in April 2007.  Various amendment plans were submitted and approved in the course of 2007 and 2008.

11.  In December 2009, the Developers first submitted the building plans that were the subject of the appeal to the BAT.  On 26 March 2010, the Developers submitted the drainage plans and, on 30 March 2010, the Developers submitted amendments to the building plans.

12.  By letter dated 29 April 2010, the BA disapproved the amended building plans and, by letter dated 20 May 2010, the BA disapproved the drainage plans.  Those disapprovals were the subject of the Developers’ appeal to the BAT which was heard in December 2010.  The BAT gave its decision allowing the appeal in January 2011 (the BAT Decision) leading to the judicial review before Lam J below.

The grounds of disapproval of the amended building plans

13.  In its letter dated 29 April 2010 disapproving the amended building plans, the BA stated:

“7. Your plans are disapproved under section 16(1)(i) of the Buildings Ordinance in which the following further particulars/information/clarifications should be provided:

(a) Demonstrate that the owner of I.L. 6501 R.P., I.L. 6502 R.P. and I.L. 6503 R.P. has control of the land at No. 10-12 Ying Wa Terrace for its inclusion into site area. I reserve my position under Building (Planning) Regulations 20, 21 and 23(2)(a). In this connection, your attention is drawn to paragraph 7(B) of my disapproval letter dated 4 February 2010 under reference BD 2/2058/09.

(b) The status of the lanes at rear and side of the site.

(c) Demonstrate that the owner of I.L. 6501 R.P., I.L. 6502 R.P. and I.L. 6503 R.P. has the right to carry out the proposed works and designate the means of escape route at No. 10-12 Ying Wa Terrace.”

14.  The main controversy between the BA and the Developers before the BAT and in the judicial review proceedings giving rise to this appeal arises from paragraph 7(a) of that disapproval letter.  The substance of that issue is whether the area in front of Nos. 7-9, over which the owners of units in Nos. 10-12 have a right of way, can be included as part of the site area of Nos. 7-9.

15.  The impetus for that request for particulars in paragraph 7(a) appears to have been a decision of the Building Committee held on 9 March 2010.  In respect of the proposed development of Nos. 7-9, the Building Committee considered the issue “Inclusion of existing ROW into site area” and reached the following decision:

“The committee noted that the adjoining building relied on the ROW which was a street for access and site classification. The committee also noted that the site in question and the adjoining site were two different sites for the purpose of development. Having considered all relevant factors, the committee did not agree to the inclusion of the existing ROW into site area.”

16.  In its letter dated 20 May 2010 disapproving the drainage plans, the BA stated:

“7. Your plans are disapproved under section 16(l)((i) of the Buildings Ordinance in that the following further particulars/information/clarifications should be provided for my consideration:

(a) You should clarify whether there are valid corresponding approved building plans to the submitted drainage plans. In this connection, I reserve my position under section 16(1)(a) of the Buildings Ordinance. Your attention is drawn to the comments at paragraph 13 below.

(b) It is noted that this submission covers 7-12 Ying Wa Terrace. As such, you should clarify whether the developer of 7-9 Ying Wa Terrace has full control of the land at 10-12 Ying Wa Terrace. Your attention is also drawn to the comments at paragraph 13 below.

(c)  You should address to items (a) to (e) of the comments from the Drainage Services Department in paragraph 9 below.”

The issues on appeal

17.  The notice of appeal raised the following issues on this appeal:

(1)   Was the BA entitled to particulars or information demonstrating a realistic prospect of control by the Developers of the land at Nos. 10-12 adjacent to the proposed development site at Nos. 7-9?  Alternatively, had the Developers shown a sufficient degree of control over that land?

(2)   Whether the BA’s disapproval letter dated 29 April 2010 defeated any legitimate expectation on the part of the Developers?

(3)   Were there other errors in the BAT’s decision justifying the Judge’s order of certiorari?

18.  For reasons that will be explained in greater detail below, the ambit and nature of the issues for this court changed in the course of the hearing of the appeal.

19.  First, and most significantly, as a result of the late discovery of certain documents which led to the adjournment of this appeal in April, the legitimate expectation argument advanced by the Developers changed substantially.  In short, by reason of the lately disclosed documents, it became clear that the nature of the legitimate expectation originally contended for before the BAT (which it upheld) and Lam J below (which he rejected) could no longer be sustained.  Instead, a different legitimate expectation argument emerged, which I shall describe below.

20.  Further, in his reply submissions, Mr Anthony Neoh SC, leading counsel for the Developers,[2] withdrew the grounds of appeal in respect of the other errors.  It therefore became unnecessary for this court to deal with those matters.

Entitlement of BA to particulars of realistic prospect of control

21.  This issue was said to be an issue of law common both to this appeal and also the Case Stated Appeal.  For that reason, although it was disputed by the BA that the issue was common to both appeals, as a matter of case management, this appeal and the Case Stated Appeal were, as I have already mentioned, listed to be heard by the same court and the judgments in the two appeals have been handed down together.

22.  So far as this appeal is concerned, the issue turns on the proper construction of s. 16(1)(i) of the Buildings Ordinance (Cap. 123) (BO) and so it is necessary to look at that provision in its proper context.

23.  As its Long Title explains, the purpose of the BO is:

“To provide for the planning, design and construction of buildings and associated works; to make provision for the rendering safe of dangerous buildings and land; and to make provision for matters connected therewith.”

24.  The approval of building works involves a two-stage process: first, approval of plans for building works must be obtained from the BA and, secondly, the BA’s consent for the commencement of the building works shown in the plans must be obtained (see s. 14(1)).  The approval of building plans or consent for building works does not confer any title to land (s. 14(2)).

25.  Under s. 15(1), unless the BA notifies his refusal to building plans or the commencement of works, he is deemed to approve or consent as the case may be.  The BA must set out the grounds of refusal in writing and, where one of the grounds is that further particulars and plans are required, he must specify such plans and particulars.

26.  The grounds on which the BA may refuse to give his approval to building plans are listed in s. 16(1)(a) to (q).

27.  BO s. 16(1)(i) provides:

“The Building Authority may refuse to give his approval of any plans of building works where –

…

(i) in his opinion, it is necessary for him to have further particulars of such plans or of the building works shown thereon or, where all the plans prescribed by regulations have not been submitted, to have one or more of the other plans prescribed by regulations, to enable him fully to consider such plans.”

28.  As will be apparent, s. 16(1)(i) gives the BA a discretion to refuse approval for building plans where he forms the opinion that it is necessary for him to have further particulars of the plans or the proposed works.  It is, however, self-evident that the BA must have a reasonable basis for forming such an opinion and cannot do so unreasonably or arbitrarily.  As already noted, s. 15(1) stipulates that where one of the grounds of refusal to approve building plans is that further particulars and plans are required, he must specify such plans and particulars.

29.  There is no statutory definition of the phrase “further particulars” and so the natural and ordinary meaning of that phrase should be used.  In this regard, I agree with the observations of Reyes J in Fortune Key Limited v Appeal Tribunal (Buildings) & Anor., unrep., HCAL 82/09, 7.5.10 (at §§23-25) that: (i) the ordinary meaning of “particulars” denotes “items or details of information”; (ii) under s. 16(1)(i), the BA is entitled to ask for such items or details of information of plans or works as the BA may reasonably consider to be necessary to his decision whether to disapprove the plans or works under one or more of the grounds under s. 16(1); and (iii) the information may relate to the consequences of the plans or works.

30.  Was there a reasonable basis for the BA to consider it necessary to his decision whether to approve the building plans for Nos. 7-9 to ask for information demonstrating that the owner of Nos. 7-9 had control of the land at Nos. 10-12?

31.  Under the Building (Planning) Regulations (Cap. 123F) (BPR), regulations govern the classification of sites (reg. 18A), the maximum permitted site coverage dependent on the class of site (reg. 20) and the maximum permitted plot ratio dependent on the class of site (reg. 21).

32.  Site classification depends broadly on the number of specified streets that abut on the site in question.  A street is regarded (under BPR reg. 18A(3)(a)) as a specified street if there exists, with respect to the street, certain circumstances which include the fact that:

“(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”.

33.  It is common ground that the owners of Nos. 7-9 have been granted, by virtue of the relevant Crown Leases, a right of way over the lane running from Centre Street along the front of Nos. 1-6.  Hence, the site of the proposed development of Nos. 7-9 is a class A site.  Similarly, it is common ground that the owners of Nos. 10-12 have been granted, by virtue of the relevant Crown Leases, a right of way over the lane running from Centre Street along the front of Nos. 1-6 and Nos. 7-9.  Hence, the development of Nos. 10-12 was a class A site.

34.  BPR reg. 23(2) provides:

“In determining for the purposes of regulation 20, 21 or 22 the area of the site on which a building is erected –

(a) no account shall be taken of any part of any street or service lane; and

(b) there shall be included any area dedicated to the public for the purposes of passage.”

35.  Although there is no express definition of street in reg. 23, it is clear from the use of the term “specified street” in reg. 23(1), introduced by way of consequential amendment in 2005 when reg. 18A was introduced to the BPR, that the word “street” in reg. 23(2)(a) should be read and understood as bearing the same meaning. Thus, where a street is on land over which the owner of the site is granted a right of way, no account of that street should be taken in determining the area of the site on which a building is erected.

36.  Since it is common ground that, as a matter of fact and law, the owners of units in Nos. 10-12 have a right of way over the lane running in front of Nos. 7-9, that lane is a street for the purposes of BPR reg. 23(2)(a) and, by reason of that regulation, no account of that street should be taken for the purposes of calculating the maximum permitted site coverage and plot ratio for the site of the proposed development of Nos. 7-9.  However, when the Developers submitted building plans for Nos. 7-9, they included the right of way in the site area.

37.  As the Judge noted (Judgment §6), whether the right of way in front of Nos. 7-9 could be included as part of the site area involves two questions, namely:

“(a) Whether that area should be regarded as a street (by reason of the right of way) and as such excluded from the calculation of site area pursuant to Regulation 23(2)(a) of the Building (Planning) Regulations;

(b) Whether an exemption should be granted under Section 42 of the Building Ordinance in respect of such exclusion.”

38.  Mr Nicholas Cooney SC, leading counsel for the BA,[3] submitted that it was necessary for the BA to ascertain the status of the right of way in front of Nos. 7-9 to know whether or not to apply BPR reg. 23(2)(a) in calculating the permitted site area and plot ratio for the proposed development of Nos. 7-9.  In order to ascertain the status of that right of way, it was necessary to ask for particulars of the Developers’ control of Nos. 10-12.  If that site was in the common ownership of the Developers then the right of way would be extinguished and it could be ignored for the purposes of reg. 23(2)(a).

39.  I accept Mr Cooney’s submissions in this regard and would hold that, subject to any legitimate expectation to the contrary, the BA was entitled to seek information from the Developers regarding ownership and control of Nos. 10-12 for the purpose of determining whether or not the right of way should be excluded from the calculation of site area and plot ratio for Nos. 7-9.

40.  The BAT held to the contrary on the basis that, in its view, there was no obligation for a person submitting building plans to demonstrate ownership or control of the site in question.  It reached that view by analysing the BO and the judgment of the Privy Council in AG v Cheng Yick Chi [1983] 1 HKC 14 delivered by Lord Fraser.  The Judge, as he was bound to do, carefully considered the BAT Decision in this regard and explained why, in his opinion, the BAT was wrong.

41.  In this appeal, the Developers contend that there was no reasonable basis for the BA to ask for the information in question because s. 16 is a comprehensive code for the refusal of building plans: see Filipino Club v Building Appeal Tribunal & Anor. [1995] 3 HKC 356.  They contend that the requirement for a developer to have ownership or a realistic prospect of control of the land forming the development site is not contained in the BO or the regulations made thereunder but has arisen solely because of part of Lord Fraser’s judgment in AG v Cheng Yick Chi [1983] 1 HKC 14 at pp. 19C-20B. It was submitted that the relevant part of that judgment (underlined below) is merely an obiter dictum and formed no part of the binding precedent of the case.

42.  The relevant part of the judgment, which was delivered by Lord Fraser, is as follows:

“Neither the Regulations nor the Buildings Ordinance contains a definition of ‘site’. The respondents contend that the site is the whole of the properties, including the unbuilt on land. The appellant contends that, in this case, it is only the land on which the houses at present stand. It was common ground between them that the site, in the sense of the Regulations, is not necessarily limited to the ground on which buildings actually stand. That it cannot always bear such a limited meaning appears from several provisions in the Regulations. For example, reg 5(2) refers to the provision of an access lane ‘within the site’ of a new building, and reg 25(1)(a) requires that every domestic building shall have ‘within the site’ an open space at the rear. Clearly, neither an access lane nor an open space can be on ground on which a building stands.

Mr Widdicombe for the respondents said that the site for purposes of development is normally a whole ‘lot’, using ‘lot’ to mean the leased area held directly or indirectly under a lease from the Crown. That may well be so. But (rightly), he did not contend that the ‘site’ was necessarily coextensive with the ‘lot’, because the word site must be flexible enough to apply to a case in which the person holding several adjacent lots under Crown leases proposes to develop them together as a single site. It must also apply where the owner develops only part of his lot, or develops it bit by bit at different times. For example, if a development scheme applies to a substantial area of perhaps an acre or more, to be developed by building a detached house on part of it, with the rest of the land being laid out as a garden and tennis court, the whole area would be the site. If some years later the tennis court is sold off in order to build a separate house on it, the site for that later development would be limited to the tennis court.

 Their Lordships are of the opinion that the land which forms a ‘site’ for the purposes of the Regulations must be ascertained as a question of fact in the case of each development.  It means, in addition to the land on which it is proposed to erect buildings, any land which the developer bona fide proposes to include in the development.  It can only include land which he owns or which he has a realistic prospect of controlling.  The additional land must be at least sufficient to enable the proposed building to comply with the Regulations and it must, of course, not have been taken into account and, so to speak, used up in enabling some other existing building to comply with the Regulations.”

(Underlining added)

43.  In the Case Stated Appeal, this court has concluded that the above passage in the judgment in Cheng Yick Chi is not a mere obiter dictum but instead forms part of the ratio decidendi of the case.  Accordingly, applying Cheng Yick Chi, which is binding on this court, the BA was entitled to ask for the particulars of the Developer’s ownership or control of Nos. 10-12: see the answers to Questions 1 and 2 posed in the Case Stated Appeal.

44.  In any event, however, it would have been possible, for the purposes of deciding this appeal in isolation, to proceed without subjecting Lord Fraser’s opinion in Cheng Yick Chi to close analysis given the reasoning set out above as to the necessity for the BA to seek information regarding ownership and control of Nos. 10-12 by reference to the question of the applicability of BPR reg. 23(2)(a).  As a matter of construction of s. 16(1)(i), addressed above, this was information that was necessary to the BA’s decision whether to disapprove the plans or works under one or more of the grounds under s. 16(1).  Furthermore, I did not understand the Developers to contend that the decision in Cheng Yick Chi was not binding at least to the extent of entitling the BA to request particulars of ownership or control of land included within a development site where that land has previously been dedicated to the public for the purposes of passage or where a right of way exists on such land.

45.  Before leaving this issue, however, I would add that I do not agree with Mr Cooney’s submission that the information requested was relevant to site classification in this particular case.  He submitted that it was necessary for the BA to know whether the developers did not control Nos. 10-12 in order to know whether the right of way in front of Nos. 7-9 was preserved so that the site of Nos. 10-12 would have class A classification for the purposes of the application of BRR regs. 20 and 21.  I do not see how the site classification of Nos. 10-12 is relevant or gives rise to a necessity for information when the BA is considering building plans for the site for Nos. 7-9.  So far as site classification of Nos. 7-9 was concerned, it was never in doubt that it was a class A site by virtue of the right of way enjoyed over the lane running in front of Nos. 1-6.

46.  For the above reasons, I would hold that the BA was entitled, pursuant to BO s. 16(1)(i), to require the Developers to provide particulars of ownership or control of Nos. 10-12.  The appeal against the request for such particulars should therefore have been dismissed by the BAT and the appeal against the Judge’s order of certiorari to quash the decision of the BAT in this regard fails.

Whether sufficient actual evidence of control shown

47.  The Developers advanced a further argument that, even if the particulars of ownership or control of Nos. 10-12 were properly requested, the Developers had shown a sufficient degree of control of the land by reason of clause 9(f) of the DMC for Nos. 10-12 and also the fact that they retained the reserved portion in front of Nos. 10-12.  This argument can be disposed of briefly.

48.  Clause 9(f) reserved to the Developers, their successors and assigns the following rights:

“The right to change, amend, vary, add to or alter the Approved Plans and/or to change or alter the user and/or the areas of the Units in the Building and any other part of the Building or any amenities, facilities or parts of the Building whatsoever without the concurrence or approval of any Owner Provided that such change, amendments, variation, addition or alteration shall not interfere with the Owners’ right to the exclusive use occupation and enjoyment of their Units …”.

49.  The Judge held that the BAT had erred in concluding that the Developers had, in any event, shown sufficient control of the land.  He held that it was a matter for the BA to determine if the relevant clause in the DMC gave sufficient control to the Developers.[4]  I have held, in the Case Stated Appeal (in respect of Question 4), that on an appeal against an exercise of discretion pursuant to BO s. 16(1)(i), the question for the BAT is whether the particulars sought by the BA have been properly requested.  It is not for the BAT to go on to decide, when those particulars have been provided, whether the plans should be approved or disapproved since that is a matter for the BA.

50.  Accordingly, there is no basis for disturbing the Judge’s conclusion that it was not for the BAT to consider the adequacy of the Developers’ control of Nos. 10-12.

51.  In any event, I do not think that the Developers have shown there to be any error in the Judge’s further conclusion that the relevant clause of the DMC does not, in any event, demonstrate a sufficient degree of control of Nos. 10-12 to meet the point with which the BA was concerned.  That concern related to the question of whether the right of way in front of Nos. 7-9 fell to be excluded from the site area.  For the right of way not to be excluded, it would be necessary to demonstrate that the right of way was extinguished so that the right of way was not a street for the purposes of BPR reg. 23(2)(a).  Like the Judge, I do not see how the relevant clause in the DMC in respect of Nos. 10-12 demonstrates this.[5]

Whether BA’s disapproval defeated Developers’ legitimate expectation

52.  I now turn to the issue of legitimate expectation.

53.  Initially before the BAT, the Developers argued that they had a legitimate expectation that the site would be treated as one single site.  As such, by virtue of the common ownership of that single site, the right of way in front of Nos. 7-9 would be extinguished and there would not be a street in front of that part of the site falling to be excluded from the site area pursuant to BPR reg. 23(2)(a).

54.  The BAT found that a legitimate expectation to this effect did arise from the conduct of the BA for the following reasons:

“(i) aside from the one set of plans which were produced in 1996, as amended in February 1997 and January/April 1998, ever since, the BA was only presented with plans which showed a one site development in two phases. The plans of August 1997, 2006, 2007, 2008, 2009, 2010 were all for a one site development in two phases;

(ii) the BA approved plans for a one site development in two phases in August 1997, 2006, 2007 and 2008;

(iii) the approved plans of 2006, incorporated the August 1997 two phase/one site design, which in turn contained the February 1997 approval, and which in turn was the basis upon which 10-12 Ying Wa Terrace was actually constructed (the ‘link issue’);

(iv) up to 4 February 2010 and the rejection letter of that date, the BA never suggested that the sites should be divided into two sites, nor did they seek justification for including both sites in the development;

(v) the BA encouraged the developer to provide up to date plot ratio calculations for Phase I and Phase II, in its letters of 6^th August 1997, 8^th January 1998, and 2^nd May 1998;

(vi) in approving Phase I in August 1997, the site was considered as a one site development, and the plot ratios were calculated on the basis of a combined site;

(vii) at the time of the approval in August 1997 of Phase II, Phase II was still being purchased by the developer. Gary Chung testified that Phase II was purchased over time from 1999-2006. The BA did not require proof of ownership of Phase II at the time of its approval in 1997;

(viii) at all times, until 11^th March 2010 and the rejection letter, the BA included the right of way at 7-9 Ying Wa, in the gross floor area of the site;

(ix) the plot ratio was never over 8, and always based on a one site development, save for the 1996 approval;

(x) the developer always treated the gross area of the site as some 9,088 square feet, as in the August 1997, 2006, 2007, 2008 approvals, including both 7-9 and 10-12 Ying Wa Terrace in the area, with the right of way in front of 7-9, and there is no evidence of it trying to engage in some ‘sharp practice’ by inflating the area of the site.” [6]

55.  The BAT concluded that the combined development of the 1997-1998 approvals was premised on a one site development and that the BA had defeated the legitimate expectation of the Developers that the site would be treated as a one site development.

56.  Before the Judge below, the same legitimate expectation was relied upon by the Developers, namely that the site would be treated as a one site development.  After setting out the extract of §163 of the BAT’s Decision (see above), Lam J observed that it was not enough for the  BAT to conclude that that BA had made such a representation in respect of a specific application, e.g. the approval in 1997 in respect of the plans submitted on 8 July 1997, and that:

“In order to establish a legitimate expectation relevant for present purposes, there has to be a representation that Nos.7 to 12 would be regarded as one site irrespective of any changes in circumstances (including changes in ownership or control in the meantime)”.[7]

57.  Since each submission of building plans is a fresh application and it was accepted on behalf of the Developers that the BA has a statutory duty to process each submission of plans for approval by reference to the prevailing circumstances at the time of submission, the Judge found it difficult to understand how the BAT could have come to the conclusion that by reason of earlier approvals (when the ownership or control of the relevant plots of land was different) the BA implicitly represented to the Developers that it had committed to accepting Nos. 7-12 as one single site.  He did not therefore think one could infer from such approvals that the BA had made the relevant representation, i.e. that the site would be treated as a single site irrespective of any changes in circumstances since earlier approvals, including changes in ownership or control in the meantime.  He therefore concluded that the BAT had misdirected itself in coming to the conclusion that the request for particulars by the BA defeated the legitimate expectation of the Developers.[8]

58.  When the appeal first came on for hearing in April, the parties made detailed submissions as to whether there was a legitimate expectation on the part of the Developers that the site would be treated as one single site: Mr Neoh arguing by reference to the building plans that it did; Mr Cooney seeking to show that the building plans were different at various stages in the history of the matter so that it did not.

59.  On the second day of the hearing of the appeal, when Mr Cooney was addressing the court, questions were put to him by the court on a hypothetical basis regarding the effect of a legitimate expectation that the BA would disapply BPR reg. 23(2)(a) and whether, in that event, it would no longer be necessary for the BA to ask for particulars of ownership or control notwithstanding that there was a right of way in existence.  In the course of a short adjournment during which Mr Cooney sought instructions from the BA on those questions, certain documents were disclosed by the BA to him, which he then properly drew to the attention of the court, indicating that neither he nor Mr Abraham Chan had previously seen them.  Those documents were significant.  They consisted of applications for and grants of exemption pursuant to BO s. 42 in 1997 and 2006 in respect of BPR reg. 23(2)(a) so that the right of way would not be excluded from the site area of Nos. 7-9.

60.  The court took the view that these documents comprised evidence relevant to the matter under appeal but not previously disclosed to the BAT, the Developers or the Judge below.  Accordingly, the appeal was adjourned until June; the BA was ordered to file evidence to explain the delay in disclosing the material and to produce the documents and all other related material, including the documents regarding the right of way in front of Nos. 7-9; and the Developers were ordered to file evidence to indicate their position in relation to that material.

61.  An affirmation was duly filed on behalf of the BA exhibiting documents relating to the modification in respect of the right of way in front of Nos. 7-9 so as to exempt that area from the operation of BPR reg. 23(2)(a).  In addition, the Department sought to provide an explanation for the reasons for non-disclosure.  The crux of that explanation is contained in the following paragraph:

“Since the outset of the building appeal proceedings, the [BA] has prepared his case and formulated his Representations by reference to the [Developers’] case as set out in their Statement of Particulars (‘SOP’) and their submissions made during the hearing of the building appeals. At no stage in the building appeal proceedings did the [Developers] raise any issue by reference to any Modifications granted in their previous building plan submissions, with which they were presumably familiar. In particular, the [Developers’] case on legitimate expectation was entirely based on facts and materials that did not include the Modification. It was and remains the understanding of the [BA] that it is exclusively for the party claiming a legitimate expectation to identify the alleged basis of that expectation. In the circumstances, the [BA] did not understand documents relating to the Modification to be within the scope of the issues for determination by the [BAT].” [9]

62.  For their part, the Developers filed evidence to explain that, due to the archiving of old documents and a change of Authorised Person, they had ceased to be aware of those documents.  Mr Neoh informed the court that the legal team now advising the Developers was unaware of the earlier exemptions granted.

63.  I shall come back later to the question of responsibility for the failure to disclose the material in question.

64.  In any event, disclosure of the documents concerning the earlier modifications that had been granted had a dramatic effect on the Developers’ case in this appeal.  Those documents undermined any argument that there was a legitimate expectation that the site would be treated as a single site.  Instead, it was plain from the fact that a modification had been granted in respect of the right of way in front of Nos. 7-9 that precisely the opposite was the case, namely that the site was being treated as being made up of separate sites which were not in common ownership or control.  Only then would it be necessary to grant an exemption in respect of BPR reg. 23(2)(a) so that the right of way exercised by the occupants of Nos. 10-12 over the area in front of Nos. 7-9 would not be excluded from the site area of Nos. 7-9.  In short, in light of the modifications granted, there could be no representation from the earlier approvals of building plans that the site would be treated as a single site development.

65.  Instead, there might be an argument that there was a legitimate expectation of an entirely different nature, namely whether, if building plans were submitted in respect of Nos. 7-9 which included the right of way in front of Nos. 7-9 enjoyed by the occupants of Nos. 10-12, exemption from the application of BPR reg. 23(2)(a) would be granted pursuant to BO s. 42.

66.  In this regard, Mr Neoh submitted that the BA’s approach in the disapproval letter was artificial in that, in early 2010, the BA must have known of the earlier s. 42 exemptions that had been granted.  However, despite the fact that there was no change in the gross floor area or plot ratio or site coverage shown in the plans submitted in early 2010, which were essentially the same as the plans submitted in 2006, there was no basis for the BA to proceed on the footing that circumstances might have changed so as to justify the request for particulars of ownership or control of Nos. 10-12.  Mr Neoh submitted that the BA was under a duty to act fairly and in a principled way.  It must have been obvious to the BA when the amended building plans were submitted in early 2010 that the authorised person was not aware of the position relating to the earlier exemptions.

67.  Mr Neoh therefore invited us, on this appeal, to remit the question of whether there was such a legitimate expectation to a judge of the Court of First Instance so that, if necessary, the matter could come back before this court when the necessary findings of fact had been made at first instance.

68.  Even assuming there is substance in that new legitimate expectation argument, I would not be disposed to accede to that invitation for a number of reasons.  In the first place, it is plain that this argument is an entirely new point, not previously taken by the Developers or met by the BA in the BAT or before Lam J below.  The Developers’ Form 86A did not address it, nor has any draft amendment to that form been put before the court to set out the precise ambit of the new point now sought to be taken.[10]  It is a point which is plainly sensitive to evidence and, as will be apparent, that evidence has not previously been filed.  Nor has the recent round of evidence directed to be filed by this court on the question of disclosure addressed the new legitimate expectation argument fully.

69.  Furthermore, the BAT is the tribunal which is responsible for hearing appeals from decisions of the BA, pursuant to Part 6 of the BO.  Such appeals are de novo hearings and the BAT is empowered to hear evidence and, where necessary, resolve disputes of fact.  By contrast, the matter comes before the High Court by way of a judicial review of the BAT.  On such a judicial review, the High Court has only a limited supervisory jurisdiction in respect of the BAT’s exercise of jurisdiction.  The Court of First Instance would not be the appropriate tribunal to make the necessary findings of fact necessary to determine the legitimate expectation argument.

Whether there were other errors in the BAT’s decision

70.  There were other matters of a technical nature that were argued before the BAT.  These concerned the BA’s request for further particulars pursuant to BO s. 16(1)(i) regarding the means of escape and the drainage plans for the site at Nos. 7-9.

71.  Lam J held that the BAT fell into error in the approach adopted by it in respect of these minor technical issues.  He held that, since the decision under appeal was an exercise of discretion on the part of the BA to require further particulars of the submitted plans, the only issue for the BAT was whether the BA was justified in seeking those particulars.  It was not appropriate for the BAT to go on to determine if the building plans should be approved in the light of the further information provided.  Here, since the Developers accepted that the further particulars were properly requested, that should have been the end of the matter so far as the BAT were concerned on an appeal in respect of BO s. 16(1)(i).

72.  In the Developers’ skeleton submissions in support of the appeal, it was contended that the BAT was right in dealing with these minor technical issues in the way it had, since this was within the powers given to the BAT by BO s. 50(2).

73.  For his part, Mr Cooney argued to the contrary, contending that the BAT’s powers under BO s. 50(2) did not extend beyond the relevant decision of the BA, which here was a decision to request further particulars of the plans.

74.  In the result, it is not necessary to resolve the challenge to Lam J’s judgment and in support of the BAT’s approach because Mr Neoh acknowledged that these minor technical matters could be dealt with by a re-submission of the relevant building plans. He indicated that the Developers’ position was that Lam J’s judgment on those matters should stand and that the Developers would proceed as invited in §78 of the judgment below, namely by “setting out [their] responses to the queries of the BA in the light of the requests in the letters of disapproval and what is said in [Lam J’s] judgment”.  This court does not therefore need to deal with them.

Conclusion and costs

75.  In the circumstances and for the reasons set out above, I would dismiss the Developers’ appeal.

76.  However, on the question of costs, it is necessary to consider the impact of the failure to disclose the documents relating to the s. 42 exemptions.  The short question is whether those exemptions ought to have been disclosed by the BA in response to the Developers’ judicial review application. In my view, the answer to that question is, plainly, yes.  Those documents were relevant to the Developers’ legitimate expectation argument and might have led it to refine its argument on that ground of challenge.  At the very least, it might have led the Developers to abandon the argument seeking to defend the BAT’s decision on legitimate expectation.  The following passage in Michael Fordham QC’s Judicial Review Handbook (5^th Ed.) is relevant:

“10.4 Defendant/interested party’s duty of candour. A defendant public authority and its lawyers owe a vital duty to make full and fair disclosure of relevant material. That should include: (1) due diligence in investigating what material is available; (2) disclosure which is relevant or assists the claimant, including on some as yet unpleaded ground; and (3) disclosure at the permission stage if permission is resisted. An interested party is also under a duty of candour. A main reason why disclosure is not ordered in judicial review is because Courts trust public authorities to discharge this self-policing duty, which is why such anxious concern is expressed where it transpires that they have not done so.”

77.  It therefore follows that, in my view, some criticism is to attach to the BA for the failure of his deponents in the judicial review to disclose the documents in question in the evidence filed for the hearing before Lam J below.  On the other hand, since the applications for modification in 1997 and 2006 were made by the Developers’ then authorised person and the exemptions granted were sent to the authorised person, it follows that the documents were within the possession, custody or power of the Developers and that they should have known of them and the consequent fact that they rendered the original legitimate expectation argument unviable.

78.  In the circumstances, I would make an order nisi in respect of costs that there be no order as to the costs of this appeal or before Lam J below but that Lam J’s order in respect of the costs before the BAT stand.

Hon McWalters J:

79.  I agree with the judgment of Fok JA.