RICH RESOURCES ENTERPRISES LTD v. ATTORNEY GENERAL

1991, No. MP 3896

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The Applicant is seeking the Judicial Review of the Decision of the Building Authority contained in a letter dated 28th November 1991 when permission to redevelop land at 15 & 17 Sands Street, Kennedy Town was refused.

Dear Sir,

15 & 17 Sands Street, Hong Kong

I refer to your application dated 2nd October 1991 for approval of proposal in respect of a 26-storey domestic building.

I hereby REFUSE to give my approval to your building plans under Buildings Ordinance section 16(1)(g) on the ground that the carrying out of the works shown thereon would result in a building differing in height from the building previously existing on the same site.

In view of para. 2 above, your plans have not been checked further for compliance with Buildings Ordinance and Regulations. Your attention is drawn to the provisions of Buildings Ordinance section 15(2).

    Chief Engineer/H.K. & Islands advises you to exercise extreme care when working in the vicinity of the existing drains in order not to disturb, interfere with or cause damage to the. drains. Any damage shall be made good to his Division's satisfaction at the developer's cost.

The Mass Transit Railway Corporation has no objection to your proposal.

Comments from District Lands Officer/H.K. West will be forwarded to you in due course.

    Please be informed that site formation/foundation submissions should contain the following information, failing which approval may be refused under the Buildings Ordinance section 16(1) :-

(A)    Site formation/foundation plans and appropriate supporting geotechnical documentation taking into consideration the requirements of Building (Administration) Regulation 8(1)(bb) with particular emphasis on

(i) the provision of support and strengthening of existing retaining walls and slopes both during construction and in the long term, and a report of an investigation of the effects of intended construction works on existing walls and slopes, including demonstration of compliance with Building (Construction) Regulation 20.

(B)    Excavation and lateral support plans and appropriate supporting geotechnical documentation taking into consideration the requirements of Building (Administration) Regulation 8(l)(bc), with particular emphasis on :-

(i) the sequence of and procedures for works required to support ' existing buildings, structures, streets, land and services during excavation and sub-surface structural works and a report of an investigation of the effects of the intended construction works on existing buildings, structures, streets, land and services including demonstration.of compliance with Building (Construction) Regulation 23.

	Yours faithfully,
	(D. Kwok Yui-chung)
	for Building Authority

c.c. Rich Resources Enterprises Ltd., 9/F., 'Asia Standard Tower, 59-65 Queen's Road C., Hong Kong.

WI/mk

BOO Ref. BLD(B) 2/2067/91"

2. The Applicant asks for an Order of Certiorari quashing the Decision and an Order of mandamus requiring the Authority to approve or reconsider the plans which were submitted.

3. At the hearing before me Mr. Andrew Li who was representing the Applicant applied for the relief to be amended so as to include declaratory relief to the effect that in the circumstances existing the plans should be deemed to be approved. Having regard to the provisions in s.15(2) of the Buildings Ordinance C.123, I indicated my reluctance to accede to this request.

4. The grounds upon which the Relief is sought are

    "The said decisions was illegal and/or irrational in that :-

(a)    The Building Authority exceeded its powers and took into account irrelevant matters for the purpose of Section 16(1)(g) of the Buildings Ordinance, namely it purported to consider fire and other safety requirements which were not matters for consideration under Section 16(1)(g).

(b)     The Building Authority exceeded its powers and usurped the functions or powers of the Director of Fire Services in refusing approval of the said plans under Section 16(1)(g) of the Ordinance when the Director of Fire Services has not refused to issue a certificate under Section 16(1)(b) of the Ordinance.

(c)     The Building Authority exceeded its powers in treating the second limb of Section 16(1)(g) of the Ordinance as a residual power in order to refuse approval of the said plans for reasons not mentioned elsewhere in the Buildings ordinance or Regulations.

(d)    The Building Authority failed to take account of a relevant factor namely that there are a number of multi-storey buildings in the immediate neighbourhood which have been redeveloped to a height higher than the buildings previously existing on those sites.

(e)    The.said decision results in gross unfairness to the Applicant and unequal treatment of the developers of similar sites in the immediate neighbourhood.

(f)    The said decision will create uncertainty and irrationality for property development in Hong Kong.

(g)    The said decision will stutify property development in Hong Kong. Dated this 19th day of December, 1991."

5. Mr. Li submitted that it was clear from the evidence adduced by the Authority that the main objection which was being made to the plans was that the density of development contemplated was excessive. This could be seen from paragraph 9 of the affidavit of Mr. Clive Viney, the Government Building Surveyor who was in charge of the matter.

"9. It is alleged that the decision to refuse to approve the plans was illegal and/or irrational for a number of reasons. It is said in ground (a) that the Building Authority took into account fire and other safety requirements which are not matters for consideration under section 16(l)(g). In fact the Building Authority refused to approve the plans under section 16(1)(g) because the object was to restrict the size of the building on that site and thereby limit the number of people who can be housed on the site because there is no vehicular access to the site. Fire and other safety requirements are only one part (although an important part) of the requirement that sites have vehicular access."

Mr. Li argued that it was not open to the authority to use section 16(1)(g) to restrict development on this ground.

6. The relevant parts of s.16 for the purposes of the present application are as follows :-

" 16.    (1) The Building Authority may refuse to give his approval of any plans of building works where :-

(a) the plans are not such as are prescribed by regulations or are not such as he may have required under this section;

(b) the plans are not endorsed with or accompanied by a certificate from the Director of Fire Services certifying either -

(i)    that, having regard to the purpose to which the building is intended to be put (which purpose shall be stated in the certificate), no fire service installation or equipment is necessary in connection with the building that will result from the carrying out of the building works shown on the plans; or

(ii)    that the plans have been examined and are approved by him as showing all such fire service installations and equipment as in his opinion, having regard to the purpose to which the building is intended to be put (which purpose shall be stated in the certificate), comprise the minimum fire service installations and equipment necessary for such building in accordance with a Code of Practice published from time to time by.the Director of Fire Services; (Added, 3 of 1964, s.2)

(c)    he has not received application for their approval in the prescribed form or any such application does not contain the particulars required therein;

(d)    the carrying out of the building works shown thereon would contravene the provisions of this Ordinance or of any other enactment, or would contravene any approved or draft plan prepared under the Town Planning Ordinance;

(da) the building works are within a comprehensive development area of an approv or draft plan prepared under the Town Planning Ordinance and the works contravene a master lay-out plan approved by the Town Planning Board under section 4A(2) of the Town Planning Ordinance; (Added, 2 of 1988, s.8)

(e)     he has not received such other documents as are prescribed by reulations;

                                (f)     such fees as are prescribed by regulations have not been paid;

(g) the carrying out of the building works shown thereon would result in a building differing in height, design, type or intended use from buildings in the immediate neighbourhood or previously existing on the same site;"

7. According to Mr. Li the specific grounds for determining whether an application could be refused were prescribed by s.16. The 17 grounds referred to in the section were exhaustive and formed a scheme.

8. It was no part of the function of the Authority to reject plans on the ground that if the development was proceeded with it would lead to excessive density on the site. This was a matter which squarely came within the ambit of the Town Planning Board. The Board had not seen fit to impose any particular restriction on plot ratios in respect of the land in question and accordingly the Authority would be usurping the functions of the Planning Board if it was able to determine this matter itself.

9. Mr. Li mounted a similar argument in respect of compliance with fire safety requirements which was one of the main objections referred to by Mr. Viney.

10. The Applicant had obtained convincing evidence that a 26 floor block would not create any particular fire problems at the site. This evidence supplemented the certificate which had been obtained from the Fire Services Department which certified that subject to the provision of the air pressures in the stairways as had been provided for in the plans, the Fire Services Department accepted the plans. The additional evidence which had been obtained indicated that the investigations which had been undertaken by the Department had extended well beyond the scope of simply satisfying themselves of technical requirements within the building. Contrary to assertions made by the Building Authority the Fire Services Department had also considered the surrounding circumstances and had taken cognisance of the fact that there was no vehicular access immediately abutting the site.

11. Mr. Li argued that the Fire Services Department was much better equipped to form a view on this subject than the Building Authority. This being the case the role of the Authority was basically to satisfy itself that all of the outstanding requirements had been complied with.

12. As might be expected this view of the matter was entirely contrary to the submissions made on behalf of the Authority by Miss Harstein. It was her contention that wide powers and discretions were reposed in the authority by s.16.

13. The principal matter that the Authority was concerned with was the safety of people in and around a building.

14. S.16(i)(g) related to the height of buildings and adjoining buildings in its vicinity.. It was unrealistic to attempt to argue as Mr. Li had that 16(i)(g) was primarily concerned with aesthetic factors such as the overall profile of the buildings. The height of buildings primarily dictated the number of occupants who would be using them and the Authority was undoubtedly under a duty to take into account such factors as the density of the development.

15. I have no doubt that Miss Harstein's view of the matter is the correct one. It is evident from a perusal of the section that wide discretions are given to the Authority. I can see no difficulty if these powers and discretions are exercisable side by side with powers exercisable by such bodies as the Planning Board and the Fire Services Department. Each Body views the overall situation from a different perspective but it is the Building Authority's responsibility to ensure that all requirements are adhered to. The height of a building is very much the concern of the Building Authority and there is a definite duty imposed on it to ensure that such matters as access to the Building are sufficient. This would certainly impinge on the safety of the Building. I have no doubt that the Authority was not acting illegally when it made the determination it did in the present case.

16. As I have indicated earlier one of the contentions being advanced by the Applicant is that the decision was irrational in the Wednesbury sense.

17. In this connection it is pertinent to observe that following a policy decision which was promulgated in a circular in 1974, no buildings higher than existing buildings have been approved since that time where access has been limited as in the present case. 24 applications have been received during the relevant time and all have been refused. It would certainly appear that the Authority has been consistent in its approach.

18. There have been appeals from determinations which have been made and the Appeal Tribunal has upheld the decisions of the Authority. Mr. Li argued that policies and decisions made by civil servants on an administrative basis did not alter the position if the discretion of the Authority was circumscribed and had been wrongly exercised. As I have already indicated I do not accept that the Authority has exceeded the proper exercise of its powers. It is perhaps worth noting that this is hardly surprising as one of the factors which has to be borne in mind is the safety of persons using the Building.

19. Mr. Li also argued that if there was uncertainty in the interpretation of s.16 this could lead to inconsistency which would militate to the disadvantage of everyone concerned. I do not accept that this is the case. It is evident that the Authority has in the past acted consistently and there could be no doubt in the mind of landowners that plans were unlikely to be approved if it was proposed to build higher buildings than those existing where vehicular access was limited.

20. The only matter which remains outstanding is to consider the appropriateness of the present application. Miss Hartein submitted that as the Applicant had not exhausted all the remedies available to it, I should decline to consider the application on this ground. I do not think that this is correct.

21. There is a helpful passage on p.714 of the 6th Edition of Wade - Clarendon Press - Oxford on this subject.

    "Exhaustion of remedies - (b) conflicting dicta

Recently the case-law has produced a crop of judicial statements which conflict with the rule just explained. It has been said that, where there is some right of appeal, judicial review will not be granted 'save in the most exceptional circumstance'; and that the normal rule is that the applicant 'should first exhaust whatever other rights he has by way of appeal'. This novel attitude, which does not appear to be based on authority, may be due to the increasing pressure of applications for judicial review, which are now so numerous. It has not, as yet, resulted in judicial review being denied merely because a right of appeal has not been exercised. But that may occur before long if these formidable dicta are taken at face value.

In a tax case, where the complainant had failed to show abuse of power by the commissioners, Lord Scarman said that it was "a proposition of great importance' that 'a remedy by way of judicial review is not to be made available where an alternative remedy exists', and that 'it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision'. But he at once went on to say that judicial review would be available had the commissioners done something equivalent to an abuse of power. Lord Templeman said that 'judicial review should not be granted where an alternative remedy is available', but almost in the same breath he neatly epitomised the familiar grounds which in such a case would allow review, and he added, significantly, that the case in hand was exceptional in that the appeal procedure could not operate if the conduct of the commissioners was unlawful. In another tax case Sir John Donaldson MR said that 'it is a cardinal principle that, save in the most exceptional circumstances, [the judicial review] jurisdiction will not be exercised where' other remedies were available and have not been used. He repeated these words when in fact granting judicial review to police officers who had been unfairly dismissed in a typical natural justice case which had nothing exceptional about it at all. The police officers had already lodged notice of appeal to the Home Secretary but had then sought judicial review. The established rule is therefore still working, but behind a camouflage of discouraging language. It has also been said that the choice of remedy should depend upon whether the statuary remedy would resolve the question fully, whether it would be quicker or slower, or whether it demands special knowledge. Applicants would then be presented with yet further dilemmas and uncertainties.

    None of these dicta appear to recognise that appeal and review have radically different purposes; that appeal is concerned with merits, while review is concerned with legality; that review is the primary mechanism for enforcing the rule of law under the inherent jurisdiction of the court, while appeal is a statutory adjunct with no such fundamental role. If an applicant can show illegality, it is wrong in principle to require him to exercise a right of appeal. Illegal action should be stopped in its tracks as soon as it is shown. It has to be recognised,, however, that review and appeal may overlap, particularly in the area of errors of fact and law, and that within this area there may be certain classes of cases, such as tax cases and employment cases, for which specialized tribunals exist, where the court may reasonably hold that recourse to the tribunal is the normal remedy, subject always to the grant of review in case of excess or abuse of power, breach of natural justice, and so forth. What does not seem right is to insist that there is something exceptional about judicial review, that remedies given for other purposes must be exhausted first, and that the choice of remedies depends upon convenience, speed, and other factors which, as well as being imponderable, are in principle irrelevant. If the fundamental difference between review and appeal is borne in mind, the correct choice will in most cases be obvious, and the court will have clear grounds for refusing unsuitable applications for review.

    In reality the courts are better than their word. When genuine grounds for judicial review are alleged, it is the refusal rather than the grant of review which is the exceptional course."

22. With respect I would accept the correctness of this view. I would also add that I myself accepted this in HO King-kwan 1986 HKLR 931 and this was upheld by the Court of Appeal 1986 HKLR 1148. 1 am satisfied that the issues being ventilated by the Applicant before me now are more suitably the subject of Judicial Review and that little purpose would have been achieved as a result of an appeal being prosecuted before the Appeal Tribunal.

23. However for the reasons I have given, I dismiss this motion. I would make an order nisi that the Authority is to have its costs.