TOMORROW FINANCES LTD v. DIRECTOR OF FIRE SERVICES

CACV 15/2020

[2022] HKCA 531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 15 OF 2020

(ON APPEAL FROM HCAL NO 1467 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  The appellant, Tomorrow Finances Ltd (“TFL”), is a company that runs a mini-storage business.  It was served with two Fire Hazards Abatement Notices (“Subject FHANs”) by the Director of Fire Services (“Director”) in April 2018 requiring it to re-arrange or modify the mini-storage cubicles and to provide sufficient windows in its premises in specified ways.  TFL applied to the Court of First Instance for leave to apply for judicial review of the Subject FHANs and the requirements imposed.  In his judgment dated 19 December 2019 (“Judgment”) after an inter partes hearing, Wilson Chan J (“Judge”) dismissed the application for leave. TFL appeals against this decision.

Background

2.  The mini-storage business has grown to meet the recognised demand for self-storage facilities due no doubt to the lack of space felt by many households and small businesses in Hong Kong.  Many operators have chosen to set up mini-storage facilities in old industrial buildings.  Since 2010, mini-storage has been recognised by town planning authorities as a permitted use for industrial zones.

3.  TFL is a company wholly owned by Store Friendly Management Co Ltd, which is an associated company of Store Friendly Self Storage Group Ltd (“SFSSG”).  SFSSG is engaged in the business of providing mini-storage services in a number of jurisdictions in the region including Hong Kong under the trade name “Storefriendly”.  TFL runs a mini-storage business in that name on franchise from SFSSG in Units F, G & H, 5/F Hong Kong Industrial Building, 444-452 Des Voeux Road West (“Premises”), in addition to other locations in Hong Kong.  TFL had a lease of the Premises for 3 years from 21 March 2016 (renewed for another 3 years from 21 March 2019).  The mini-storage business there started operation on 12 May 2016.

4.  The Premises are rectangular in shape with an area of 399.48 m².  The floor height is 3.055 m.  There are 14 sets of windows with a total area of 20.41 m².  There are 161 storage cubicles, with sizes ranging from 4 ft x 2 ft, to 4 ft x 8 ft.  The cubicle height is 2.33 m.  The cubicles are arranged in 5 clusters and also along each side of the Premises.  The separation between each row/cluster is about 1.1 m.  All 161 cubicles have been licensed to customers.

5.  On 21 June 2016, a No. 4 alarm fire broke out at a mini-storage facility in Amoycan Industrial Centre, 7 Ngau Tau Kok Road, Kowloon Bay (“Amoycan fire”).  The firefighters encountered tremendous operational difficulties in putting out the fire due to the layout and setting of the site, including that there were more than 300 cubicles with complex and criss-cross layout; most of the aisles were narrow and dead-ended; the cubicles were locked and had to be broken open before water jets could be directed to the base of each seat of fire; the opened cubicle doors in turn blocked the passageways; much of the space between the ceiling and the cubicle partitions were sealed by wire mesh; and all the windows were rigidly sealed up and/or encased by cubicles.  Tragically, after 108 hours of fire-fighting, two firemen died and 10 other fire-fighting crew were injured.  Two floors of the building were severely damaged by the fire.

6.  Such a fire not only poses risks to visitors to the premises and firefighters, but also endangers the occupants of other parts of the building and its structural stability with risks caused to neighbouring buildings as well.  A week later, the Fire Services Department (“FSD”) commenced a territory-wide inspection of all mini-storage facilities in Hong Kong with a view to identifying the fire safety risks associated with mini-storage premises and improving their safety.

7.  Starting with a meeting on 8 July 2016, FSD and other Government Departments, including the Buildings Department (“BD”) and the Lands Department, communicated with the Self Storage Association Asia (“SSAA”) and the Hong Kong Mini-Storages Association (“HKMSA”) which together comprise the majority of the operators of the mini-storage trade in Hong Kong (“Trade”).  At the meeting on 8 July, the Government Departments, inter alia, informed the participants of the problems identified in the inspections.

8.  Another meeting was held on 21 September 2016. FSD stated that by then it had inspected 756 mini-storages and issued Fire Hazards Abatement Notices (“FHANs”) to 58 with irregularities found. The participants were briefed on the problems identified in the inspections.  In particular, FSD explained the fire hazards identified, including excessive fire load due to undesirable arrangement of storage cubicles, insufficient windows, inadequate clearance (less than 1 m) between the ceiling and the top of the cubicles or stored articles, and the top of the cubicles or stored articles exceeding 2.35 m in height.  FSD stated that there would be legal enforcement action, with the prime concern being for public safety.  The time allowed for abatement action required by FHANs would be 60 days, a relatively long period compared to the ordinary case.  The Trade sought clarification on the standards or guidelines adopted by the Government.  In response, FSD explained that both local and international standards or codes had been taken as reference, e.g. Code of Practice for Minimum Fire Service Installations and Equipment of FSD, Fire Code 2013 of Singapore Civil Defence Force, LPC [Loss Prevention Council] Rules for Automatic Sprinkler Installations incorporating BS EN 12845:2003, and NFPA 13: Standard for the Installation of Sprinkler Systems (2016), though FSD would have to formulate requirements according to fire-fighting operational viewpoints and local situations.

9.  In January 2017, Ove Arup, consultants engaged by SSAA, gave a presentation to FSD on “Solutions for Improving Fire Safety in Mini-Storages”, in an attempt to deal with the fire hazard abatement measures being required by FSD, which were also later found in the Subject FHANs as referred to in §22 below.  It was noted that the 50 m² Cubicle Area Requirement and the 2.4 m Separation Requirement (both defined in §22 below) came from BS EN 12845:2003.  Ove Arup reported that a separation of 2.4 m could delay the spread of fire by around 6 minutes.  Other solutions such as installing fixed sprayers above each cubicle and separation by fire-rated materials were also discussed.

10.  In February 2017, FSD held two technical meetings with Ove Arup and representatives of the Trade to discuss the interior layout of mini-storage premises.  Alternative solutions were explored.  After the meetings, two feasibility studies were submitted by Ove Arup in April 2017 on behalf of HKMSA and SSAA respectively. 

11.  On 25 May 2017, FSD responded that the proposed layout plans were generally acceptable.  As regards the 2.4 m Separation Requirement between each cluster of cubicles, FSD indicated that enclosure of the clusters by material with fire resistance rating of not less than half an hour, together with installation of heat detectors, may be accepted as an alternative in principle.  However, FSD stated that the 1 m clearance between the top of the cubicles and the ceiling was a basic requirement for facilitating ventilation of smoke and hot gases, and it could not accede to the alternative smoke perforation proposal (by punching holes in the metal partitions of the cubicles to allow smoke to dissipate).  FSD stated it would consider alternative proposals from the Trade provided that the same level of safety standard could be achieved.

12.  On 6 July 2017, FSD issued a letter to all mini‑storage operators stating that it had met with representatives of the Trade to advise on the potential fire hazards, related abatement measures and legal liabilities, and that it was now issuing FHANs to the persons responsible for mini-storages with fire hazards, requiring that the hazards be abated within the specified period.  A “fact sheet” was enclosed setting out specific features identified in the inspections, the potential fire hazards involved and the prescribed fire hazard abatement measures.  In relation to the 2.4 m Separation Requirement, it was stated that individual operators may submit alternative proposals which may be accepted in principle provided certain conditions are satisfied, including that each cluster of cubicles should not occupy an area over 50 m² and is covered by materials with fire resistance rating of not less than 30 minutes.

13.  In January 2018, Ove Arup produced a computational fluid dynamics simulation report, seeking to demonstrate that a proposed arrangement (with a headroom of 0.86 m) could achieve similar smoke and heat dispersing performance compared to FSD’s requirements.

14.  Between March and May 2018, SSAA wrote to various senior officials of the Government including the Chief Executive and the Secretary for Security outlining their concerns and proposals regarding, inter alia, the requirements imposed by FSD.  On 17 May 2018, the Government gave a consolidated reply.  In relation to enforcement actions, it was said that FSD would consider granting extension for compliance with FHANs depending on the circumstances of each case.

Statutory framework for FHANs

15.  The principal legislation that makes provisions for the prevention of fire hazards is the Fire Services Ordinance (Cap 95).  Section 9 confers powers on the Director to issue notices requiring the abatement of fire hazards in these terms:

“ For the purpose of abating a fire hazard or preventing it from recurring, the Director—

(a)  if satisfied of the existence in or on any premises of any fire hazard, may serve a prescribed notice on a person requiring the person to do such things as may be specified by the Director to abate the fire hazard within the period specified in the notice”

16.  “Fire hazard” is defined in section 2 to mean, among other things:

“ (f) any other matter or circumstance which materially increases the likelihood of fire or other calamity or the danger to life or property that would result from the outbreak of fire or the occurrence of any other calamity, or which would materially hamper the Fire Services Department in the discharge of its duties in the event of fire or other calamity”

17.  Section 3(2) of the subsidiary legislation, Fire Services (Fire Hazard Abatement) Regulation (Cap 95F), provides:

“ (2) A fire hazard abatement notice may—

(a) require the person on whom the notice is served to abate the fire hazard within the period specified in the notice;

(b) require the person on whom the notice is served to carry out such works as may be necessary for the purpose in paragraph (a); and

(c) if the Director thinks fit, specify any works to be carried out for the purpose in paragraph (a).”

18.  Under section 9(1) of the Regulation, a person who fails to comply with a requirement of a FHAN within the period specified commits an offence and is liable on conviction to a fine at level 6 and to a further daily fine of $10,000.

FSD’s inspection of the Premises and the issue of FHANs to TFL

19.  Meanwhile, on 17 August 2016, FSD conducted a preliminary inspection on TFL’s Premises as part of the territory wide inspection programme of mini-storage premises.  On 24 February 2017, FSD conducted a risk assessment of the Premises with detailed measurements.  It was found that the arrangement of the storage cubicles was such that: (i) there was one cluster that occupied an area of over 50 m² with sides over 20 m in length; (ii) the aisle width was about 1.1 m; and (iii) the distance between the ceiling and the top of the storage cubicles or stored articles was 0.74 m.  In addition, it was found that all the windows at the Premises were obstructed or encased by storage cubicles.

20.  On 3 March 2017, two FHANs – the predecessors of the Subject FHANs – were issued to TFL requiring abatement of the fire hazards identified within 60 days.  On 7 August 2017, another two FHANs, replacing those issued in March 2017, were issued to TFL, effectively granting an extension of time for compliance.  From this date until 25 April 2018, FSD maintained close communication with TFL.  An inspection at the Premises on 6 April 2018 revealed that certain storage cubicles had been vacated to facilitate the conversion of an existing window into an access window.  On 13 April 2018, TFL wrote to FSD stating that it had started compliance works on the layout of the cubicles, that 2 Authorised Persons had been appointed to handle the fire hazard abatement measures, and that rectification proposals (some of which were described in the letter) would be submitted.  TFL asked for a time extension of 6 months.

21.  On 25 April 2018, the Director replied, stating that he had adopted a flexible approach to TFL’s request, and enclosed the Subject FHANs, replacing those issued in August 2017, requiring TFL to abate the specified fire hazards within 60 days, effectively extending time for compliance again, albeit for a shorter period than requested.

22.  The fire hazards and the corresponding requirements to abate them, as specified in the Subject FHANs and their predecessors issued in March and August 2017, are as follows (adopting the abbreviations used in the court below):

(1)  As regards layout hazards, the mini-storage cubicles are arranged in a row/cluster:

(a)  occupying an area over 50 m²(“50 m² Cubicle Area Requirement”);

(b)  with separation distance less than 2.4 m (“2.4 m Separation Requirement”);

(c)  having any side measuring more than 20 m in length (“20 m Side Measure Requirement”); and

(d)  with distance between the ceiling and the top of storage cubicles and/or stored articles less than 1 m (“1 m Headroom Requirement”).

(2)  As regards window hazards:

(a)  The total area of unobstructed and breakable window(s) (including “access window(s)”) is less than 1/16 (i.e. 6.25%) of the total floor area of the mini-storage (“Total Window Percentage Requirement”).

(b)  The provision of “access window(s)” is inadequate in that-

(i)  the total area of “access window(s)” is less than 1/50 (i.e. 2%) of the total floor area of the mini‑storage (“Access Window Percentage Requirement”);

(ii)  it does not meet the requirement that at least one “access window” should be provided at an interval of 20 m on each external wall with windows (“Access Window Interval Requirement”);

(iii)  the dimensions of the “access window(s)” are less than 1 m (height) x 0.85 m (width);

(iv)  the sill(s) of the “access window(s)” is/are higher than 1,100 mm above the finished floor level; and

(v)  the “access window(s)” is/are not directly connected to the internal means of escape of the mini-storage.

23.  On 6 June 2018, TFL’s solicitors wrote a 9-page letter to the Director.  It was stated that TFL’s fundamental property rights were engaged and that there were technical difficulties for TFL to comply with the requirements immediately.  The solicitors asked the Director to inform TFL of: (1) the aims or objectives of the requirements in the Subject FHANs; (2) under the heading of “Connection between the Conditions and Aim/Objective”, whether the requirements may be modified if the premises are equipped with heat detectors and sprinkler/sprayer systems or if an external wall is not accessible by fire engines or if the premises are located at a height not reachable by FSD’s ladders; and (3) the rationale of the 2.4 m Separation Requirement and the source/genesis of the other requirements in the Subject FHANs.  The solicitors concluded by inviting the Director to stay any prosecution against non-compliance with the Subject FHANs or to extend the deadline or issue new FHANs, and reserving all TFL’s rights.

24.  On 29 June 2018, the Director replied as follows:

“ I refer to your letter dated 6.6.2018 …

The fire at the Amoycan Industrial Centre in 2016 exposed the fire hazards brought about by the layout and mode of operation of traditional mini-storages. After the fire, this department stepped up our enforcement efforts and requested the operators to take measures to abate the fire hazards from fire safety point of view.

In this case, this department had initially issued two Fire Hazard Abatement Notices (FHANs) to the operator on 3.3.2017 for abatement of the fire hazards identified in the storage at the captioned address according to section 3 of the Fire Services (Fire Hazard Abatement) Regulation, Cap 95F, Laws of Hong Kong. Our inspection made on 6.4.2018 revealed that the fire hazards in respect of (i) undesirable layout and (ii) insufficient windows still existed. In this regard, please advise the operator of the mini-storage to abate the fire hazards as soon as possible for the sake of public safety.

   Should you have further enquiries, please feel free to contact the undersigned during office hours.”

Application for leave to apply for judicial review and its procedural history

25.  On 25 July 2018, TFL filed its Form 86, together with an affirmation of Mr Siu King Him David (“Mr Siu”), Head of Operations of TFL and also of SFSSG, seeking leave to apply for judicial review.  In terms of infringement of fundamental right and irrationality, the application seeks to challenge not all the requirements in the Subject FHANs, but the following (collectively, the “Challenged Requirements”):

(1)  the 2.4 m Separation Requirement;

(2)  the 1 m Headroom Requirement;

(3)  the Access Window Interval Requirement;

(4)  the 50 m² Cubicle Area Requirement and the 20 m Side Measure Requirement applied at the same time;

(5)  the Total and Access Window Percentage Requirements as a percentage of total floor area which includes the aisles and cubicles even if fully covered by fire-rated boards and which is also subject to (1) and (4) above.

26.  The proposed respondent was the Director.  TFL sought a declaration that each of the Challenged Requirements is contrary to Arts. 6 and 105 of the Basic Law and an order to quash the Challenged Requirements and the Subject FHANs.  TFL also sought an interim stay of the Subject FHANs pending the application for judicial review.

27.  There are 3 main grounds of judicial review advanced, as follows:

(1)  The Challenged Requirements constitute an infringement of TFL’s right to the use of property as protected by Arts. 6 and 105 of the Basic Law.

(2)  The second main ground, which complains of illegality or irrationality, may be divided into 3 sub-grounds:

(a)  the Director fettered his own discretion and applied overly rigid FHANs;

(b)  the FHANs were illogical and gave undue weight to certain considerations; and

(c)  the Director failed to take into account relevant considerations.

(3)  The third main ground is directed to the procedure under which the Subject FHANs were issued, and alleges that there was:

(a)  a failure to consult properly; and

(b)  a failure to provide adequate reasons.

28.  In relation to the ground of review based on Arts. 6 and 105 of the Basic Law, under the 4-stage proportionality test set out in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, TFL accepts that the Challenged Requirements pursue the legitimate aims of abating any matter or circumstance that materially increases the likelihood of fire or the danger from the outbreak of fire or which would materially hamper FSD in the discharge of its duties in the event of fire.  As to stage 2, TFL only contends that the 2.4 m Separation Requirement and that the Access Window Interval Requirement are not rationally connected to the legitimate aims.  At stage 3, TFL complains that the Challenged Requirements are disproportionate for reasons specified in the Form 86 and that the Director has no reasonable foundation in not adopting less intrusive alternatives and in applying the Challenged Requirements globally without regard to the actual circumstances of individual mini‑storage operators and premises.  TFL also contends that the Challenged Requirements fail the final “fair balance” test.

29.  On 4 December 2018, the Judge directed that there be a hearing of the applications for leave and for interim relief and that the Director, as the putative respondent, do attend the hearing.  Leave was given to the Director to file evidence in opposition.

30.  On 8 February 2019, the Director duly filed an affirmation of Mr Hoi Wai Ming, Senior Divisional Officer of FSD, which covered the background and events leading to the issuance of FHANs in relation to mini-storage premises; the issue of the Subject FHANs to TFL; and the communications with SSAA and HKMSA on the implementation of fire hazard abatement measures.  The Director also filed an affidavit of Mr Wong Yuk Ping, Divisional Officer of FSD, who had attended the Amoycan fire on 24 June 2016 and been actively involved in the formulation of measures to enhance fire safety of mini-storage premises.  That affidavit dealt with the background events revealing the fire hazards in mini-storage premises, in particular, the Amoycan fire; the territory-wide inspection and the fire hazard abatement measures for mini-storage premises, together with their aims and rationales; and discussions with the Trade and their consultants.

31.  On 20 February 2019, TFL’s solicitors wrote to the Department of Justice, saying that a number of matters in the Director’s evidence called for reply evidence.  TFL proposed, inter alia, that there be a rolled-up hearing of the application for leave and the substantive application for judicial review if leave was granted, with 3 days reserved, and that it be given leave to file reply evidence within 56 days.  The Department of Justice immediately rejected TFL’s proposals which, it said, would further delay the proceedings, resulting in waste of time and costs.

32.  TFL’s solicitors wrote again the next day, stating that in the absence of agreement from the Director, TFL would take appropriate steps to adduce reply evidence, if so advised, under the rules. The parties obtained from the listing officer the date of 2 September 2019 for the hearing.  TFL reserved the right to seek its proposed directions from the court.

33.  On 1 March 2019, the Department of Justice wrote to the court asking to expedite the hearing, on the ground that numerous prosecutions in the Magistrates’ Court arising out of FHANs relating to mini-storage premises had been adjourned pending the judicial review proceedings.  For their part, TFL’s solicitors wrote to the court on 4 March 2019, seeking a short directions hearing so that TFL could apply for a rolled-up hearing and for leave to file reply evidence.

34.  A directions hearing took place on 29 May 2019. The Judge declined to order a rolled-up hearing or an earlier hearing.  The hearing date of 2 September 2019 was kept. The judge gave TFL leave to file evidence in reply.

35.  On 17 July 2019, TFL filed the 2^nd affirmation of Mr Siu as evidence in reply.  On the same date, it served notice of intention to re‑amend its Form 86 to introduce two new grounds of challenge alleging that the Director acted ultra vires in imposing the Subject FHANs and that the Subject FHANs infringed TFL’s right to equality under Art. 25 of the Basic Law.

36.  In the Judgment, the Judge refused to permit the proposed re-amendments, and refused to grant leave to apply for judicial review for the reason that none of the grounds advanced was reasonably arguable or enjoyed realistic prospects of success.

37.  The Judge’s reasons may be summarised in broad terms as follows.  There is no dispute that Arts. 6 and 105 of the Basic Law are engaged and that the 4-stage proportionality test applies.  As to stage 2, the Judge concluded that the 2.4 m Separation Requirement and the Access Window Interval Requirement are rationally connected to the undisputed legitimate aims.[1] At Stage 3, the Judge noted it was common ground that the “manifestly without reasonable foundation” standard should be adopted and considered that a wide margin of discretion and deference should be afforded to the Director who is clearly better placed than the court to assess what is needed in the public interest to combat fire hazards arising from mini-storage facilities.[2]  The Judge considered that TFL’s complaints of disproportionality as set out in its Form 86 amount to nothing more than a contention that there exist alternatives to the Challenged Requirements, and fall far short of demonstrating that the Director has acted manifestly without reasonable foundation in formulating them.  He then elaborated upon why he rejected each of those complaints.[3]  In relation to Stage 4, the Judge held that the Subject FHANs strike a fair balance between the public interest of safety to life and property and the private business interests of TFL.[4]

38.  In relation to the second main ground for judicial review, the Judge held, first, that there was no fettering of discretion as the Director had not blindly or overly rigidly applied the abatement requirements, which were tailored to address the fire hazards in the Premises.  The Director had also indicated it was open to consider alternative proposals on a case-by-case basis.[5] Secondly, the Judge rejected the complaint of Wednesbury unreasonableness, which raised the same point in substance as the complaint of lack of rational connection under the proportionality analysis.[6]  Thirdly, the Judge held that the Director had taken into account the local circumstances of each case including the Premises, the practical effectiveness and practicality of the 2.4 m Separation Requirement and Access Window Interval Requirement, and the alternative proposals for compliance, and consequently rejected TFL’s complaint of a failure to take into account those considerations.[7]

39.  As to the third main ground for judicial review, the Judge held that there is no general common law duty to consult and that what steps should be taken to collect relevant information is generally a matter for the public authority to decide.  He found that the Director had not voluntarily assumed any duty to consult before issuing the Subject FHANs, and that his communications with the Trade were not consultations but occasions where he collected relevant information.  The Judge declined to imply a duty on the part of the Director to consult.[8] Finally, the Judge held that the case does not fall within the exceptional circumstances where reasons have to be given for administrative decisions, and that accordingly the Director was not subject to a duty to give reasons for issuing the Subject FHANs.  In any event, the Director had, during the various communications with the Trade and in particular by the letter to mini-storage operators of 6 July 2017, given clear and sufficient reasons for issuing FHANs.[9]

The appeal

40.  In its notice of appeal TFL advanced 6 grounds of appeal.  The first ground, which challenges the refusal of leave to re-amend the Form 86, has been abandoned.  Grounds 2 to 6 will be addressed in turn below.

Ground 2 – alleged premature factual findings on proportionality at leave application

41.  TFL complains that in rejecting the ground of review based on Arts. 6 and 105 of the Basic Law, the Judge failed to appreciate that the proceeding was still at the leave stage and that expert evidence might be adduced if leave was given, and made premature findings on the proportionality test.  It contends that the Judge ought not to have conducted a detailed analysis of the proportionality test and refused leave to apply for judicial review, but should either grant leave on the basis of the available evidence including the gist of expert opinions referred to in Mr Siu’s reply affirmation, or at least direct proper expert evidence to be adduced for further consideration.

42.  In our view, TFL has failed to show any error in the Judge’s approach.  By section 21K(3) of the High Court Ordinance (Cap 4) and Order 53 rule 3(1) of the Rules of the High Court (Cap 4A), leave of the court is required for an application for judicial review to be made.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §15, the Court of Final Appeal held that the granting of leave is a matter for the court’s discretion to be exercised judicially, and that the test to be applied is the arguability test rather than the potential arguability test. This means that the claim must be reasonably arguable, i.e. one that enjoys realistic prospects of success.  Further, while the test remains the same in different cases, its application, in the sense of the strength and quality of the evidence required, has to be approached flexibly with reference to the nature and gravity of the issue at hand: Po Fun Chan, at §8.  “The more serious the allegation or more serious the consequences, the stronger must be the evidence …”: Re Leung Kwok Hung (HCAL 83 & 84/2012, 28 September 2012), §37(c).  In the present case, the mere granting of leave may have significant implications for the enforcement of FHANs against mini-storage premises generally across the territory and for the abatement of fire risks in order to prevent another mini-storage fire.

43.  The four steps of the proportionality test are not hermetically sealed from one another: Hysan Development Co Ltd, §60.  In approaching the analysis, whilst recognising the importance of TFL’s property rights, it needs to be borne in mind that we are concerned with public safety from fire hazards, an undoubted societal interest of a very high order.  The Subject FHANs, of course, impose restrictions on the configuration of the Premises, which is TFL’s property under a lease, but on the evidence they do not prevent the Premises from being used as a mini-storage facility altogether.  It is also significant to note that, as is common ground, the appropriate intensity of review under the proportionality test is a relatively light one, reflected by the use of the “manifestly without reasonable foundation” standard.  While the burden lies on the Director to satisfy the proportionality test, under this standard the court will not put itself in the decision-maker’s place to choose the best option where a number of different solutions to a problem exist.  It will only interfere where the chosen option is clearly beyond the spectrum of reasonable options: Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, §75(3); Hysan Development Co Ltd, §120.  The choice of fire hazard abatement measures is clearly an area where the Director is entitled to a considerable margin of judgment, particularly when seen against the background of his unique experience from the Amoycan fire.  Although the threshold for leave only requires realistic prospects of success, one is here concerned with the prospects of a challenge that faces a high hurdle.

44.  TFL submits that at the leave stage, the court should adopt the approach of only “weeding out obviously hopeless and meddlesome cases”, citing Kwok Cheuk Kin v Chief Executive in Council (HCAL 169/2103 & 7/2014, 19 June 2014) at §6(1).  In that passage, Au J was actually dealing with the question whether an applicant has shown a prima facie case of sufficient interest in the matter, rather than proposing a different test from reasonable arguability.  In any event, he recognised that, as Li CJ said in Po Fun Chan at §17, depending on the case in question, a “quick perusal” of the material may not be sufficient in reaching a decision whether the test is satisfied, and in appropriate cases an oral hearing with notice to the respondent may be warranted.  If the court, after such a hearing, is able to come to the conclusion that the claim is not reasonably arguable, then it is the right course for it to refuse leave, even though the lack of merits might not have been obvious at first sight of the matter.

45.  The procedural directions for disposing of a leave application and, in particular, whether and to what extent the respondent is invited to take part at this stage, are matters of case management for the judge: Re Leung Kwok Hung & another (HCAL 83 & 84 of 2012, 28 September 2012), §§35, 40, 41.  Since the grant of leave in this case could have had serious ramifications for the enforcement actions being taken by FSD in relation to mini-storage premises generally, and TFL had applied for interim relief which in any event had to be dealt with on an inter partes basis, it is not surprising that the Judge gave directions that allowed the putative respondent to file evidence and appear in opposition at an oral hearing.

46.  Where, as in this case, the putative respondent has pursuant to the court’s direction filed evidence in opposition to the leave application, there is no rule requiring or encouraging the applicant not to file such expert evidence in reply as he considers necessary until after leave has been granted.  The repeated utterances in Mr Siu’s 2^nd affirmation that TFL did not wish to “jump the gun” by adducing expert evidence in reply are in our view misconceived.  On the contrary, it has been said that an applicant in judicial review who wishes to rely on expert evidence in support or defence of the claim should seek leave to do so “at the earliest opportunity”: R (Law Society) v Lord Chancellor [2019] 1 WLR 1649, §44.  It is for an applicant to ensure that all the materials and arguments he wishes to rely on are put forward to enable the court to perform its function at the leave stage: Wong Ho Tong v Director of Lands [2018] 6 HKC 501, §§79-81.

47.  In the present case, shortly after receipt of the Director’s evidence, TFL actually proposed a rolled-up hearing, with 56 days for it to file evidence in reply.[10] Yet it took no step between then and the directions hearing of 29 May 2019 to adduce evidence to deal with the expert issues.  At the directions hearing, TFL proposed directions for the filing of evidence in reply including an affirmation from Prof K T Leung (“Prof Leung”), an expert in fire engineering and fire‑fighting practice, and an Authorised Person to be identified, but only on the basis that a rolled-up hearing was directed.  No draft expert issues or directions, let alone any draft expert opinion, was provided.  After the Judge refused a rolled-up hearing, TFL’s counsel indicated that it would only seek leave to file a factual affirmation in reply, which the Judge granted.  In the 3 months between that hearing and the substantive leave hearing of 2 September 2019, TFL still took no steps to adduce any expert evidence, even as it served notice in July of its proposed re-amendments of the Form 86 to raise further grounds of judicial review.  Nor, if further time was needed to adduce such expert evidence, did it seek any adjournment for the purpose.

48.  Even though TFL had identified the principal expert and apparently had sufficient time for the preparation of such evidence, it chose not to seek to adduce expert evidence.  In these circumstances, the Judge cannot, in our view, be faulted for not directing expert evidence to be adduced for further consideration.  Nor do we accept that TFL could ask the Judge to grant leave on the basis that its case might be arguable in light of what its experts might be prepared to say in some future evidence to be filed – that would be to revert to the potential arguability test which was rejected in Po Fun Chan.  The Judge was entitled to decide on the evidence available whether there are realistic prospects of success to justify leave being given.

Grounds 2 & 3 – alleged errors in the proportionality analysis

49.  TFL contends that the Judge erred in holding that there was no reasonably arguable case in relation to the proportionality test as applied to three specific sets of the Challenged Requirements: (1) the 2.4 m Separation Requirement in combination with the 50 m² Cubicle Area Requirement; (2) the 1 m Headroom Requirement; and (3) the Total/Access Window Percentage Requirement and the Access Window Interval Requirement.  In addition, TFL contends that the Judge erred in applying Stage 4 of the proportionality test.  We deal with these contentions in turn below.

The 2.4 m Separation Requirement in combination with the 50 m² Cubicle Area Requirement

50.  TFL challenges the 2.4 m Separation Requirement in itself.  In contrast, the 50 m² Cubicle Area Requirement is not challenged on its own but only in its application in conjunction with the 2.4 m Separation Requirement.

51.  The Director’s evidence explains that during the Amoycan fire, most of the passageways between mini-storage cubicles were found to be narrow, posing heavy constraints to the movement of firefighters in full personal protective clothing and equipment who had to carry out breaking-open, fire‑fighting and rescue operations.  After the cubicle doors were broken open, they intercepted and blocked the retreat routes.  The 2.4 m Separation Requirement is aimed at facilitating operations by allowing sufficient width in the passageways for fire-fighting crews to access, egress and manoeuvre under extremely high temperatures, and to transport and use heavy duty break-in tools including, for example, a bulky hydraulic pressure machine as well as fully charged fire hoses.  The requirement is also aimed at slowing down fire spread by ensuring sufficient distancing.  It was formulated with reference to the operational experience in the Amoycan fire and the standard set out in section 6.2.2 of LPC[11] Rules for Automatic Sprinkler Installations incorporating BS EN 12845:2003.

52.  Mr Siu states in his 2^nd affirmation that he has been advised by Prof Leung that having a 2.4 m separation width could only be for ensuring sufficient isolation and controlling fire spread, and not for firefighters’ access.  The basis for saying this appears to be certain provisions in BD’s Code of Practice for Fire Safety in Buildings 2011 (Third Revision: October 2015)[12] (“BD Code”) which prescribe minimum widths for a firefighting and rescue stairway (1.05 m), a fireman’s lift (1.1 m), and a lobby or access to such stairway or lift (1.5 m).  It is said that BD or FSD must have already taken into account the operational needs of fire-fighting when setting these standards, which are significantly lower than 2.4 m.

53.  On this appeal TFL complains that the Judge failed to take account of the evidence that the lower requirements in the BD Code were also related to the two legitimate aims relied upon and must have already taken account of FSD’s operational needs.  TFL also relies on BD’s letter to SSAA dated 28 March 2017 in which BD referred to the requirement under the BD Code that the aisle width between cubicles should not be less than 1.05 m excluding the swing path of any doors, and stated that under certain conditions, the clear width could be relaxed to 0.75 m and that under some further conditions, the door swing could be disregarded.

54.  We do not think that the Judge overlooked the fact that the BD Code was related to fire safety and was prepared in consultation with FSD.  As the Judge noted, however, the 2.4 m Separation Requirement was formulated with reference to FSD’s operational experience in the Amoycan fire, which occurred in June 2016.  Plainly FSD considered the existing requirements in the BD Code inadequate from an operational perspective.

55.  Moreover, the requirements in the BD Code relate to access, whether to a fireman’s lift or a firefighting and rescue stairway, for buildings generally.  They are not directly related to the requirements of space for manoeuvre in fire-fighting within a mini-storage facility.  The fact that in general, buildings have to be so constructed as to provide the prescribed access widths for stairways and lifts does not mean that the 2.4 m Separation Requirement cannot be intended for access, egress and manoeuvre.  Even if fire-fighters may be constrained by the relatively narrow route through the stairways or lifts to gain access to mini-storage premises on fire, it is not irrational to say that access, egress and manoeuvre within the fire scene would be facilitated by a wider berth between clusters of cubicles. The fact that the BD Code, last revised in October 2015 before the Amoycan fire, did not specifically set out that requirement with reference to mini-storage or other premises, does not mean that the 2.4 m Separation Requirement lacks a rational connection to the legitimate aims or falls outside the range of reasonable options.

56.  TFL also argues that the Judge’s reference to section 6.2.2 of the LPC Rules is “problematic”, and that the Judge failed to consider the evidence in Mr Siu’s 2^nd affirmation on the misunderstanding of that standard.  Mr Siu says that Prof Leung told him “that the 2.4 m separation distance stems from an incorrect understanding of the relevant British standard generally referred to as the ‘sprinkler rules’ in fire engineering terms”.  But this is simply Mr Siu’s paraphrase of the opinion; none of the instructions to expert, the scope, reasoning and basis of the opinion, or the assumptions made, have been disclosed.  We are unable to regard as evidence a statement that is so vague as to be valueless.

57.  Under that particular LPC standard, areas to be protected by sprinkler installations are classified into various hazard classes.  For combustible materials with a medium fire load and medium combustibility, an area is classified as Ordinary Hazard (as contrasted with Light Hazard or High Hazard) if “the maximum storage areas shall be 50 m² for any single block, with no less than 2.4 m clearance around the block”.  The Judge noted that FSD had formulated the 2.4 m Separation Requirement with reference to this standard.[13]  It does not appear to us that there is any misunderstanding of the nature of that provision.  Obviously it is not a standard designed specifically for mini-storages.  But it does not follow that in devising requirements on mini-storages, FSD could not take into account a standard on what would be classified as Ordinary Hazard as opposed to High Hazard for sprinkler installation purposes.  Ove Arup, in its feasibility study of April 2017, also referred to that standard as a requirement regarding the layout for storage: “For storage in Ordinary Hazard (OH) Area (i.e. OH Class 1, 2 & 3), the minimum width of aisle is 2.4 m between storage clusters and the maximum storage area is 50 m² …”[14]

58.  The Judge also referred to the LPC Rules in the context of TFL’s argument that the Director had irrationally imposed the Challenged Requirements on the Premises without regard to their characteristics, particularly the presence of a sprinkler system.[15]  The Judge set out the standard and made the point, which is not challenged on this appeal, that the installation of a sprinkler system does not render the dimensional requirements in section 6.2.2 redundant.

59.  TFL says that as regards the Director’s reliance on operational experience, the Amoycan fire investigation report has never been disclosed to it or the Trade generally, and that the Director’s strategy adopted in that fire is still the subject of inquiry in the ongoing death inquest.  However, FSD’s operational experience from that fire was explained in its evidence.  There is no basis to gainsay it.  If the investigation report was in its view essential for the fair disposal of the application for leave, TFL should have applied for its disclosure.  To seek leave on the basis that something may turn up in that report or in the inquest that may help TFL is to revert impermissibly to the threshold of potential arguability.

60.  Further, it is notable that among the jurisdictions surveyed in Ove Arup’s feasibility study, the Ontario Fire Code also stipulates that every mini-storage must be separated from the adjacent storage by aisles of not less than 2.4 m in width.  As mentioned above, that study also referred to the British standard in the LPC Rules prescribing a 2.4 m aisle width for Ordinary Hazard for general storage.  In its evidence, TFL also cited Ove Arup’s study in January 2017 which found that the separation width of 2.4 m can delay the spread of fire by around six minutes.  In conclusion, we agree with the Judge that the challenge against the 2.4 m Separation Requirement is not reasonably arguable.

61.  In the course of his oral argument, Mr Stewart Wong SC, who appeared for TFL in this court but not below, raised the complaint that although the Director had stated in May 2017 that a different arrangement (namely, enclosing the clusters by material with fire resistance rating of not less than half an hour and installing heat detectors) was acceptable in principle as an alternative to an aisle width of 2.4 m (see §11 above), this was not permitted in the Subject FHANs, which simply imposed the 2.4 m Separation Requirement.  This is not a point raised in the notice of appeal or the appellant’s skeleton argument, and as such it should not be entertained.  In any event, this argument does not in our view assist TFL.  The Director had publicly announced what was in principle acceptable as an alternative.  Whether to avail itself of that alternative route was a matter for TFL.  There is no reason to assume that mini-storage operators will necessarily find the alternative solution less onerous.  Not knowing what proposals TFL would put forward, the Director could not be expected to specify in the Subject FHANs the alternative requirements in place of the 2.4 m Separation Requirement.  The fact that the Subject FHANs did not mention what might be acceptable as an alternative does not mean the Director had departed from his announced policy.  As a matter of fact, it is not TFL’s case that it had offered to adopt the alternative solution but that the Director refused to accept it.

The 1 m Headroom Requirement

62.  The Director’s evidence is that the 1 m Headroom Requirement was based on the operational experience gained from the Amoycan fire, and devised with the object of facilitating fire-fighting and ventilation.  First, water jets may be applied towards the ceiling so as to be rebounded to specific areas inside the storage cubicles.  Compared with sprinklers whose flow rate and direction are fixed, water jets are considered more effective as they can be directed at particular areas and allow fire-fighting in various modes depending on the development of the fire and are particularly important for addressing deep-seated fire in the lower parts of the cubicles.  Secondly, the headroom facilitates ventilation to avoid accumulation of toxic and combustible gases which can trigger spontaneous combustion, known as a “flashover”, which is one of the most dangerous situations in a fire-fighting operation.  Thirdly, 1 m is considered the minimum headroom that can enable firefighters with full protective gear, air cylinder and other equipment to access and climb inside the cubicles for fire-fighting and rescue where breaking-in is unsuccessful or the opening is blocked.

63.  In his 2^nd affirmation, Mr Siu says that he has been advised by Prof Leung that climbing inside a cubicle from the top is impractical and would put the firefighter in jeopardy as the radiant heat at the top of the cubicle would be double that in the corridors at the side of the cubicles, and that such heat would be unbearable to firefighters even in protective gear.  Mr Wong submits that in rejecting its challenge in respect of this requirement, the Judge had failed to take this potential evidence into account.  While the Judge should have explained the view he took towards that material, we do not consider it to be of any assistance to TFL. As counsel have frankly admitted by describing it as “potential evidence”, it is not actual expert evidence.  No explanation of its basis or reasons has been given, nor is the court informed of the instructions and assumptions the expert has received and made.  In our opinion, no weight can be placed on such hearsay opinion adduced by way of purported paraphrase in Mr Siu’s 2^nd affirmation.

64.  TFL also submits that the Judge failed to take into account that there was no explanation from the Director why a headroom of 1 m was needed for rebounding water jets.  But this argument is inconsequential.  TFL does not dispute that the greater the headroom, the more scope there is for manoeuvring the water jets in terms of their direction and the location of impact on the ceiling.  In relation to ventilation, in January 2018 the Trade had tried to show, with a computational fluid dynamics report, that a headroom of 0.86 m would be sufficient.  However, the study was based on a fire engineering approach using computer model simulations which, as the Director stated, might be apt for mega-projects due to their extensive footprint or complicated design which could not be addressed by prescriptive fire safety requirements.  More importantly, the study was based on a “localised fire incident due to small ignition source”; “a major arson incident or extreme events (e.g. use of accelerants or multiple ignitions, etc.)” were outside its scope.  As such, the Director considered it fundamentally unacceptable. This was duly noted by the Judge.[16]

65.  As the Judge accepted, the formulation of fire abatement measures involves a cautious assessment of myriad different scenarios that may emerge in an emergency involving life-and-death situations.  The risks with any given fire-fighting strategy constantly evolve and require a multi-faceted dynamic assessment.  There is nothing raised that is sufficient to undermine the Director’s explanation that the headroom is reasonably necessary for the purposes stated or to fault the Judge’s conclusion that TFL’s challenge has no realistic prospects of success.

The Total/Access Window Percentage Requirement and the Access Window Interval Requirement

66.  The object of the Total Window Percentage Requirement (i.e. that the total area of unobstructed and breakable windows should not be less than 6.25% of the total floor area) is to provide access for fire-fighting and rescue as well as to facilitate effective ventilation for the dispersion of smoke and toxic and combustible gases.  It was formulated with reference to clause 4.30 of the Code of Practice for Minimum Fire Service Installations and Equipment issued by FSD (“FSD Code”).

67.  TFL complains on this appeal that the Judge did not take account of “potential expert evidence” that the Director had misinterpreted the purpose of clause 4.30 of the FSD Code.  Mr Siu in his 2^nd affirmation states that he has been advised by Prof Leung that the 6.25% requirement in clause 4.30 is imposed for a different purpose; it means that if the building does not have that proportion of breakable windows, certain fire service installations will be required; the lack of such proportion of breakable windows is not by itself a fire hazard.  We do not see any substance in this point.  Through the affidavit of Wong Yuk Ping, the Director has clearly explained that clause 4.30 of the FSD Code requires (among other things) a smoke extraction system to be installed in a high-rise industrial/godown building where the aggregate area of openable windows does not exceed 6.25%.  It is further stated that based on this, as well as the operational experience gained from the Amoycan fire, the 6.25% requirement is considered an effective level for ventilation.  Even if one takes into account the relevant part of Mr Siu’s 2^nd affirmation, which is a highly unsatisfactory purported paraphrase of certain advice of Prof Leung, it does not seem to us that there is any misunderstanding by the Director as alleged.  There is no suggestion from the Director that the FSD Code provisions are being applied, as opposed to being used as a reference in combination with the actual practical lessons learnt from the Amoycan fire.

68.  The Access Window Interval Requirement is formulated with reference to the Fire Code 2013 of Singapore Civil Defence Force.  Clause 4.2.3 of that Code provides:

“ (e) Access openings shall be not less than 850mm wide by 1000mm high with sill height of not more than 1100mm and head height not less than 1800mm above the inside floor level. …

(f) Number and position of access openings for buildings other than residential:

…

(iii)  Access openings shall be remote from each other and located along the side of the building.  Such access openings shall be spaced at not more than 20m apart measured along the external wall from centre to centre of the access openings.”

69.  Access windows are intended to provide access for fire‑fighting and rescue, but they obviously also facilitate ventilation for the dispersion of smoke and toxic and combustible gases.  The interval requirement ensures access windows are evenly distributed along the external walls.

70.  TFL argues that the requirements of rational connection and proportionality are not satisfied in relation to the Access Window Interval Requirement.  It submits that the southern external wall of the Premises faces a back lane too narrow for fire engines to enter.  However, as the Judge pointed out, the evidence is that access windows enable the access and egress of fire-fighting crews not only with the use of extendable ladders from fire engines but also through abseiling from other floors or climbing from adjacent buildings.

71.  The Access Window Percentage Requirement (i.e. the total area of access windows should be no less than 2% of the total floor area) is formulated on the basis that FSD considers that approximately one-third of the total windows should be access windows in order to facilitate fire‑fighting operations (6.25% ÷ 3 ≈ 2%).  TFL criticises the standard as being arbitrary, but the fact that it is not based on any existing local or international code does not mean that FSD cannot, based on its own operational experience of FSD including that gained from the Amoycan fire, formulate a standard.  It is plain that the inability to gain access into an affected unit through window openings would severely hamper fire-fighting and rescue operations.  There is nothing in Mr Siu’s 2^nd affirmation to counter this assessment based on experience.  The Judge’s conclusion that this clearly fell within the spectrum of reasonable options cannot in our view be faulted.

Fair balance

72.  As regards the fourth stage of the proportionality analysis, TFL complains that the Judge failed to have regard to the societal function and benefits served and produced by the mini-storage industry.  It submits that posing excessive burdens on traders may erode such benefits because of the difficulties in complying with the requirements.

73.  As Ms Lam, appearing for the Director, points out, the fourth step is concerned with the balance “between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual”: Hysan Development Co Ltd, §135.  This explanation does not prima facie require the Judge to consider the benefits brought by the mini-storage trade to society as a whole.

74.  Even if this is to be taken into account so as to measure the net societal benefits of the encroachment, there is nothing to suggest there is any significant prospect that the Challenged Requirements will lead to a substantial reduction in the supply of mini-storage services or render them insufficient to meet the demands in the market so that the societal function hitherto performed by the Trade will be left unfulfilled.

75.  Secondly, TFL submits that the Judge was wrong to refer to the fact that 5 other mini-storage facilities in the same building as the Premises had fully complied with the FHANs issued to them.[17] It is said that there are differences with the Premises and that the Judge had made no finding that they were truly similar comparators.  We do not accept this argument.  The context is that the Judge was dealing with the burdens placed on TFL.  TFL had made a general assertion (in §51 of Mr Siu’s 1^st affirmation) that “huge capital investment” would be needed to comply in full with the Subject FHANs, even though it had not actually asserted any specific hardship or burden in the Form 86.  The Judge pointed out that there was no evidential support for TFL’s assertion and that, on the contrary, 5 mini-storage facilities in the same building had fully complied with the respective FHANs issued to them without any complaints of excessive burden.  The Judge was entitled to take that into account to assess the credibility of and the weight that should be given to TFL’s assertion.

76.  The same applies to the advertisements by Storefriendly, which TFL says the Judge also wrongly took into account.[18]  The Judge was dealing with TFL’s assertion (which was, again, unspecified in the Form 86 and simply made in §52 of Mr Siu’s 1^st affirmation) that complying with the Subject FHANs would be detrimental to its business reputation and goodwill.  In that context, the Judge pointed out that Storefriendly – the trade name under which TFL had been operating its mini-storages – had advertised on its Facebook webpage since August 2018 that it had complied with the fire hazard abatement measures required by FSD, which shows that compliance with the requirements was a selling point attractive to customers, not the reverse as alleged by TFL.  The fact that the advertisement was made not by TFL but by SFSSG, TFL’s franchisor and associated company (with the same apparent principal director), does not preclude the Judge from referring to the advertisement in gauging the credibility of and the weight that should be given to TFL’s assertion about damage to reputation and goodwill, without taking it as an admission.

Ground 4 – alleged fettering of discretion

77.  TFL submits that the Director has subjected mini-storage premises generally to a single set of standards without regard to the circumstances and conditions of individual premises and has consequently failed to take into account relevant considerations and acted irrationally, and that the Judge erred in finding to the contrary.

78.  The evidence is that FSD had conducted a preliminary inspection of the Premises in August 2016 and a holistic risk assessment with detailed measurement of the Premises, windows and cubicles in February 2017, before issuing the Subject FHANs.  To describe the requirements imposed as “specifically tailored” for the Premises (see §61 of the Judgment) is perhaps an exaggeration, when the same set of requirements are apparently being applied to all mini-storages, with only one deleted in the case of the Premises because it was already met.[19] It is not disputed, however, that the Director is entitled, following the Amoycan fire and the territory-wide inspections which identified a range of potential fire hazards in mini-storage premises, to devise minimum fire safety safeguards to abate these hazards, in the interests of consistency and efficiency.  A measure of uniformity in the standards and configuration of mini-storage premises will naturally be of assistance in providing emergency response which is often required in fire-fighting.

79.  The fact that the Subject FHANs included many of the requirements set out generally in the fact sheet provided to the Trade in July 2017 simply reflects the fact, as confirmed by the evidence, that the layout and setting of the Premises were found to present the “typical” fire hazards identified in mini-storage premises.  The Subject FHANs (and their predecessors) were issued after considering the findings in the detailed assessment of February 2017.[20] Furthermore, the undisputed fact that the Director is prepared to consider alternative solutions proposed by the operators on a case-by-case basis also shows that he does not wholly rigidly adhere to a single set of standards.

80.  The only special circumstance of the Premises which the Director has allegedly ignored, as mentioned in TFL’s notice of appeal, is that they are fitted with a sprinkler system.  But the clear evidence, as noted by the Judge, is that the Director did take into account the existence of a sprinkler system at the Premises though he did not consider it was sufficient to displace the hazards identified in the Subject FHANs.[21]  There is no basis to suggest that the Director has fettered his discretion, or failed to take into account relevant considerations, or acted irrationally in this respect.  We see no error in the Judge’s conclusion.

Grounds 5 and 6 – alleged unfair consultation and failure to give reasons

81.  As to consultation, TFL submits that the Judge was wrong to find that the communications between the Director and the Trade did not amount to consultations but were occasions where the Director collected relevant information for the purpose of exercising his statutory powers.[22]  TFL contends that the Director had in fact embarked upon consultation with the Trade but failed to conduct it properly and fairly.  Reliance is placed on the 8 July 2016 meeting, the 21 September 2016 meeting, and the communications pursuant to the technical meetings in February 2017 (see §§7-13 above).

82.  It is common ground that there is no legal duty for the Director to consult the Trade.  There is no complaint that the absence of consultation has led to a breach of the duty to act fairly.  The question is whether there was in fact consultation because, as is common ground, if consultation had been embarked upon, it should be carried out properly.  On that question, the Judge had all the materials before him, and it is not suggested that any further evidence would be relevant.  His factual finding that there was no consultation is not plainly wrong and ought not to be interfered with.

83.  Consultation is generally conducted when proposals, still at a formative stage, are communicated to stakeholders for consideration and comment, so that their response can be taken into account in finalising the proposals.  It can be seen from the available materials that FSD and other Government Departments took the first 3 months after the Amoycan fire to carry out a territory-wide inspection of mini‑storage premises.  At the first meeting of 8 July 2016, the Government Departments informed the Trade what actions they intended to take and advised the Trade to implement fire safety measures.  The representatives from the Trade no doubt voiced certain views there and then, but we do not think this amounted to consultation, nor was there any promise of consultation, even though the Trade requested it.  By the time of the second meeting on 21 September 2016, FSD had, it seems, already developed the general safety standards in respect of layout and windows, and had already issued 242 FHANs.  Three local and international standards used as references were disclosed at the meeting (see §8 above).  As shown by R (FDA, PCSU and PROSPECT) v Minister for the Cabinet Office [2018] EWHC 2746 (Admin) at §102, not every positive engagement or meeting held for information exchange or to maintain relationship with the Trade or to “keep them in the loop” amounts in substance to consultation.  As TFL itself said, the Government regarded the meetings “as occasions to advise or inform the Trade of the new requirements, rather than an opportunity to consult”.[23] There were subsequent communications in which the Trade, with the assistance of technical consultants, sought to persuade the Director to accept specific alternative standards or solutions but, again, they do not in our view constitute consultation. 

84.  As to giving reasons for the FHANs, likewise it is not suggested there is any legal duty for the Director to give reasons.  TFL submits that once a decision-maker embarks on giving reasons, he must do so properly; and that the Director has by his letter of 29 June 2018 purported to give reasons, albeit inadequately.  The content of that letter has been set out in §24 above.  We do not think it was an attempt to give reasons.  Rather, it was a terse response to what was tantamount to a pre-action letter from TFL’s solicitors, asking TFL to take abatement action as soon as possible.  As the Judge said, the Director had instead given reasons earlier for the issuance of FHANs generally, particularly in the fact sheet distributed to the Trade in July 2017.  We share the Judge’s view that those are adequate reasons in that context.  There is no basis for TFL’s contention in effect that the Director was obliged to disclose details of his case for justifying each abatement measure required in accordance with each step of the proportionality analysis.

Conclusion

85.  For the above reasons, we are of the view that the Judge was correct in refusing leave to apply for judicial review. Accordingly, the appeal is dismissed, with costs to the Director, with a certificate for two counsel.