THE INCORPORATED OWNERS OF GARDEN VISTA v. APPEAL TRIBUNAL (BUILDINGS ORDINANCE)

HCAL 229/2021

[2021] HKCFI 2179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 229 OF 2021

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JUDGMENT

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1.  This is the rolled-up hearing of an application for leave to apply for judicial review by the Incorporated Owners of Garden Vista (“Applicant”) against the determination dated 25 November 2020 of the Appeal Tribunal (Buildings Ordinance) (“Determination”) where the Tribunal dismissed the Applicant’s appeal against Building Orders dated 3 August 2018 (“Orders”) issued by the Building Authority (“BA”). The Orders required the Applicant to demolish various false ceilings (“False Ceilings”) and reinstate the parts of the building affected by the same in accordance with the Approved Plans.

2.  Mr Wong, who appeared for the Applicant, advanced two main grounds for this application as follows :

(1)  The Tribunal failed to give adequate reasons on why the False Ceilings are building works under the Buildings Ordinance, Cap 123 (“Ordinance”).  Alternatively, the Tribunal erred in law in failing to apply a common sense test in determining whether the False Ceilings are building works or decorations;

(2)  The Tribunal misinterpreted s 41(3) of the Ordinance in finding that (i) so long as the False Ceilings impose any load on the concrete slabs above them, they must “involve the structure of the building” and (ii) so long as they are blown by any wind, they are not “in” the building.

Background

3.  The background facts can be briefly stated.  The False Ceilings were described by the Tribunal as follows[1] :

“The issue in dispute is about the false ceiling built at the entrance to lift halls on the podium floor. These false ceilings are within the covered area at the podium outside the lift halls of Blocks A to F. The area concerned are covered by the ceiling concrete slab of the building blocks but are otherwise exposed to the outside from 3 sides, sheltering to some extent by pillars and fixtures. The areas of the false ceilings coverage in the blocks are from about 12.5 sq.m. to about 44 sq.m. (the areas vary from block to block).”[2]

4.  The False Ceilings were of the “fixed panel” type, and wind action (both compression and suction) would directly apply to them[3].  They were made of different materials, compared to those used for false ceiling situated indoor, for wind-resistance.

5.  There is no dispute that the False Ceilings were erected without the prior approval of the BA.  If they were “building works” under the Ordinance, the BA was entitled to invoke its power under s 24 of the Ordinance to demand demolition and reinstatement.  Hence, the Orders were issued pursuant to such power.  However, the False Ceilings might be exempted under s 41(3) of the Ordinance if they were (i) “in” a building and (ii) not “involving the structure of the building”.

Principles of judicial review

6.  The Tribunal was a specialist professional body comprising of a legally qualified chairman and professional members.  It was tasked with the assessment of facts and weighing of relevant considerations.  It is only on the basis of Wednesbury unreasonableness which would allow the court to intervene on the Tribunal’s findings of fact (see Building Authority v Appeal Tribunal (Buildings), unrep, HCAL 147/2002, 25 July 2003, at [58]).

7.  In Ronald Wilson v Appeal Tribunal (Buildings) [2013] 5 HKLRD 158, at [42], it was held that :

“The Court has a limited role in judicial review proceedings concerning appeals from the Buildings Appeal Tribunal. The Ordinance has entrusted the decision-making process to a particular tribunal, which comprises experienced persons. The Court does not sit as an appeal tribunal. It exercises a supervisory function and should only intervene on public law grounds when it can be shown that the decision of the tribunal is unlawful, unfair or irrational — Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, pp. 2-3 of the transcript, per Sears J; Re Ho Mei Ling [2011] 6 HKC 1, 20D, per Lam J (as he then was); Technic Investment Co Ltd v Appeal Tribunal (Buildings) [2012] 3 HKLRD 245, [56], per Lam J (as he then was).”

8.  In Chu Hoi Dick v Secretary for Home Affairs [2007] 4 HKC, at 270D, the following dicta of Lord Hoffmann in Tesco Stores Ltd v Secretary of Sate for the Environment [1995] 1 WLR 759 at 780 was cited with agreement :

“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all.”

9.  In respect of a tribunal’s duty to give reasons for its decision, it is based on the notion of natural justice.  The requirement is to give “outline reasons” and not exhaustive reasons (see Li Fu Shan v Director of Immigration [2002] 4 HKC 284 at [49] to [51]). 

10.  In Royal Billion Investment Ltd v Town Planning Board [2021] HKCFI 1093, [79], Chow J (as he then was) described the duty as follows :

“… Where reasons are given for a decision rejecting an application (as in this case), what is required of the Board is to explain, briefly and succinctly, why it decided to reject the application so that the applicant would know the essential reasons for the Board’s decision. The reasons given by the Board in the Decision Letter in the present case were clear and intelligible, and would enable the Applicant to understand why the Application was rejected.”

Ground (1)

11.  The focus of this Ground was on the adequacy of the Tribunal’s reasons for finding that the False Ceilings were “building works” under the Ordinance.  Three preliminary points should be made. 

12.  Firstly, it should be borne in mind that the Applicant did not contend that the False Ceilings could not reasonably be found to be building works.  Indeed, the issue was initially admitted by the Applicant.  The admission was later withdrawn before the Tribunal.

13.  Secondly, whilst it was contended by the Applicant before the Tribunal that the False Ceilings were decorations and not building works, neither “decorations” nor “decoration works” was a term of art under the Ordinance.  I agree with Mr Chan, who appeared for the BA, that “decoration works” could also fall within “building works” under the Ordinance.  Thus, the reference to decorations by the Applicant might be seen as a distraction.

14.  Thirdly, the Determination was a 31-page document (exclusive of the Appendices) written in single-line spacing.  In that document, the Tribunal tirelessly set out in considerable details the evidence and submissions advanced by the Applicant.  The evidence included 5 expert reports and 3 witness statements.  There were no fewer than 6 sets of representations and submissions from the Applicant.  Each of them had received the attention of the Tribunal.  The Tribunal dealt with each of the 6 grounds of appeal of the Applicant with extensive analysis.  In the circumstances, it was surprising for the Applicant to complain about inadequacy in the Tribunal’s reasons. 

15.  Ground (1) relied heavily upon the Leung Lai-So Factors(see Leung Lai-so v Building Authority, unrep, Appeal Tribunal (Buildings) Case No 44-2005, 31 October 2008, [17]-[18]).  There were 7 factors identified by the tribunal in that case as relevant in determining whether a structure was a “building” and whether its construction involved “building works” as those terms were defined under the Ordinance.  The factorswere :

“(a) The degree of fixation of the structure;

(b) The degree of permanence of the structure;

(c) The size of the structure;

(d) The intended use of the structure;

(e) Whether the structure is provided with facilities such as power and water;

(f) The ease with which the structure may be removed or dismantled;

(g) The ease with which the structure was constructed or ensembled.”

16.  Fundamentally, the determination of whether the False Ceilings were building works was a matter of statutory interpretation and application of the definition of “building works” under s 2 of the Ordinance. The Tribunal had considered the definition[4], which was (and is) as follows :

“building works … includes any kind of building construction, site formation works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alteration, addition and every kind of building operation, and includes drainage works;”

17.  Plainly, the Leung Lai-So Factors were tools which might assist a tribunal in deciding whether certain works did or did not fall within the statutory definition of “building works”.  In para 18 of Leung Lai-So, it was stated that the list of factors was not exhaustive. 

18.  As a matter of legal principle, I see no duty on the part of the Tribunal to apply the Leung Lai-So Factors as if they constituted a statutory test.  However, the Tribunal did consider such Factors (see below).     

19.  In Sham v Building Authority (Case No. 280-2005, 16 July 2010), which was a case concerned with whether a metal cabinet measuring 1.8m x 1.2m x 2.1m used as storage and kept on the roof fell within the meaning of “building works”, the tribunal referred to its past decisions where it was held that each case turned on its own facts but some relevant factors were identified ([16]).  At [17], the tribunal had this to say :

“We should add that none of the above factors is conclusive by itself.  One has always to adopt a common sense approach to these matters and balance all the above factors.  Litigants and building owners should therefore not attempt to read too much into any one of the above factors; or take the facts or dimensions of structures in particular cases as a absolute yardstick against which to judge whether the structures in their cases count as “building works” or not.”

20.  I respectfully agree with the above observations of the tribunal. 

21.  Turning to the Determination, Leung Lai-So was referred to in some detail in para 64 thereof.  The Applicant sought to compare its appeal with that case before the Tribunal.  However, it was noted by the Tribunal at [65] that: “[the Applicant’s counsel] has not considered and submitted on the other relevant factors considered in that case, namely, the degree of fixation and permanence of the structure, the size, the ease with which the structure may be constructed or dismantled.”

22.  It should not be overlooked that Leung Lai-So was concerned with a rectangular metal frame, measuring about 4.2m by 2.3m in length and width, and 2.2m in height, which was built on a roof.  It was supported on 4 wheels and was movable.  The roof of the metal frame was constructed with steel members and covered with wire mesh.  It was plainly a very different case compared with the present.  Assuming that all the Factors might assist the Tribunal in its determination in the present case, the weighing of the Factors must be a different exercise to that applied in Leung Lai-So.

23.  The Tribunal’s reasons for the finding that the False Ceilings were building works were contained in [66] and [67] of the Determination :

“66. The Tribunal does not agree that the false ceiling works in the instant Appeal should be treated as simply a piece of decoration. We have seen the photos and various explanation of the structure of the false ceiling panels in the various reports produced by PKP and understand the ceiling panels are not just decorative items placing or requiring the least of installation effort fixing to the concrete slab of the building. Indeed both the construction and dismantling of the false ceiling would involve skill and elaborate tools and such works are not able to be carried out by ordinary person. The false ceilings were built there to last for years and there would be a degree of permanence. The cover area of the false ceilings for the 6 blocks are from 12.5 sq.m. to 44 sq. m. (see A.P.’s Report). The coverage could not be said to be slight or minimal. This case would not help the Appellant.

67. The Tribunal determines that the false ceilings on the podiums at the entrance of the lift halls of all the 6 blocks are ‘building(s)’ within the meaning of section 2 of the Buildings Ordinance and that the construction of the false ceilings are ‘building works’ under section 2.  Having made a ruling on that, the Tribunal proceeds to consider whether these building works are exempted works under the Buildings Ordinance.”

24.  It is evident from those paragraphs of the Determination that the Tribunal had considered all the Factors with the exception of (e)[5], which was inapplicable.  Mr Wong submitted that the intended use of the structure was not considered at all by the Tribunal.  I am unable to agree.  Para 66 started off with the rejection by the Tribunal of the Applicant’s case that the False Ceilings were decorations.  That covered the intended use of the structure. 

25.  I agree with Mr Chan that the reasons given by the Tribunal were clear and intelligible.  The Applicant should have no difficulty knowing the bases of the adverse findings against it.

26.  The alternative proposition that the Tribunal had failed to exercise common sense in determining whether the False Ceilings were decorations as opposed to building works is devoid of merit.

Ground (2)

27.  Section 41(3) of the Ordinance provided as follows :

“Building works (other than drainage works, ground investigation in the scheduled areas, site formation works or minor works) in any building are exempt from sections 4, 9, 9AA, 14(1) and 21 if the works do not involve the structure of the building.”

28.  In Mariner International Hotels Ltd v Atlas Ltd (2007) 10 HKCFAR 1, the CFA gave clear guidance that the exemption under s 41(3) of the Ordinance has to be construed narrowly in a manner consistent with the statutory scheme.  One purpose of the scheme, if not the purpose, is to protect the public by subjecting the matter of structural acceptability to the scrutiny of BA.

29.  At para 51E-G of Mariner, the court had this to say in respect of the first requirement of s 41(3), namely, “involving the structure” :

“… building works added to a building involves its structure if they serve a structural function or are capable for some reason of affecting the integrity of the structure. That is to be derived from purpose. And it is also to be derived from linguistic consideration, … the word ‘involving’ as one of the broadest words of association known to the English language. Perhaps only phrases like ‘in relation to’, ‘relating to’ and ‘with respect to’ are wider.”

30.  I am unable to see from the Determination that the Tribunal had made the blanket findings suggested in Ground (2) (see para 2 above).  The Tribunal had assessed the evidence and arguments of the appeal before refusing to apply the exemption provision.

31.  Mariner was referred to and the guiding principles were set out in [77] of the Determination.  The Tribunal’s ruling on the first requirement (“involving the structure”) could be found in the paragraph which followed.  The Tribunal explained that the False Ceilings were constructed with wind-resistant panels, which were different to those used indoor.  The False Ceilings were suspended from a framework of horizontal and vertical grids anchored to the building structure.  The Tribunal highlighted the size of the Ceilings (12.5 sq.m. to 44 sq.m.) and took the view that they must have constituted loading to the concrete slab of the building.  

32.  Finally, the Tribunal was of the view that whether the False Ceilings were in fact safe and secure as suggested by the Applicant’s structural engineer was not relevant to the question whether they affected the integrity of the structure of the building.  Accordingly, the Tribunal ruled against the Applicant on the first requirement. 

33.  It was obviously open to the Tribunal to hold that the False Ceilings involved the structure of the buildings.  I see no legitimate complaint by the Applicant on such ruling.

34.  For completeness, the Applicant argued that the Tribunal had in fact made a ruling of law that so long as the False Ceilings imposed any load on the concrete slabs above them, they must “involve the structure of the building”.  I do not believe that such reading of the Determination was warranted.

35.  Further, the Applicant disagreed with the fact that the Tribunal had disregarded its expert evidence on wind load.  At the hearing, Mr Wong stopped short of suggesting that the Tribunal must have expert evidence to assist it, or that it must rely on the expert evidence adduced before it.

36.  There are two answers to this grievance of the Applicant.  Firstly, after referring to the technical evidence of the Applicant on the load imposed on the False Ceilings, the Tribunal found that the structural adequacy or stability of the False Ceilings system itself had not been addressed (Determination, [44]-[45]). 

37.  Secondly, the Tribunal stated in [79] of the Determination that :

“… Insofar as it requires an expert to carry out a number of tests to show the security and safety of the panels and to justify the expert’s conclusion by reference to the false ceiling having withstood against the severe typhoon, it shows the importance of having the false ceiling works be approved by the Building Authority before their construction. The false ceiling, as it involves the structure of the building, should be inspected, monitored and approved by the Building Authority and not merely by an expert engaged by the Appellant. …”

38.  In respect of the first answer, it was a matter entirely within the province of the Tribunal, subject to any challenge based on Wednesbury unreasonableness (there is none).  I agree with the Tribunal on the second answer.

39.  As regards the second requirement of s 41(3) – “in” any building – the Applicant’s case before the Tribunal was that (a) the location of the False Ceilings did not fall within the meaning of “open air” under regulation 2 of the Buildings (Planning) Regulations; and (b) where there was a cover over a building work, it should be treated as being “in” the building in accordance with the general practice of the BA.  The Tribunal found no merit in the arguments and rejected both of them (Determination, [80]).

40.  The Tribunal’s reasons for finding that the second requirement was not satisfied could be found in [81] of the Determination.  The Tribunal took a purposive approach to the exemption provision. 

41.  In Mariner, at 26H, the CFA held (in respect of the second requirement) that :

“… building work on the roof of a building are not “in” the building. There is a purposive difference relevant to safety between building works protected from the elements by being “in” a building and building works exposed to the elements. …”

42.  The Tribunal took into consideration the fact that the False Ceilings were located outside the lift hall entrance and were exposed to the elements.  Both the Applicant and its contractor were concerned over such exposure, and hence the use of wind-resistant material for the False Ceilings.  Further, the Tribunal took the view that “for the protection of the public, the [BA] should have a function to monitor and approve building works under such exposed condition”. 

43.  I fail to see any valid complaint in respect of the Tribunal’s reasons.

44.  It is incorrect to suggest that the Tribunal had made a finding that as long as the False Ceilings were exposed to wind, they were not “in” a building.  To the contrary, the Tribunal had made clear that “outdoor does not necessarily mean not in the building” (Determination, [71] and [81]).

45.  This court was urged by Mr Wong to clarify to what extent exposure to the elements will take building works outside the requirement of being “in” the building.  It was submitted that Mariner provided no clear guidance on the issue. 

46.  With respect, the issue is not capable of resolution by well-defined threshold.  Common sense dictates that much will depend on the facts of the individual case.

Disposition

47.  In the premises, I find no merit in this application.  Leave is accordingly refused with costs to the BA.  

48.  I am grateful for the assistance of both Mr Wong and Mr Chan.