BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 60/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 60 OF 2011

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BETWEEN

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JUDGMENT

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1.  This matter has a chequered history. China Field [“CF”] submitted a set of building plans on 5 September 2001 to the Building Authority [“BA”]. The plans were for the construction of two 39-storey buildings at Nos 11-12 Wang Fung Terrace [“the Site”]. The BA disapproved the plans on 2 November 2001 under sections 16(1)(d), (g) and (h) of the Buildings Ordinance [“the BO”].

2.  The relevant background relating to the matter have been fully set out in the judgments in the previous round of judicial review which culminated in a decision by the Court of Final Appeal: see China Field v Appeal Tribunal (Buildings) [2008] 5 HKC 163; (2009) 12 HKCFAR 342.

3.  I shall not repeat what had been said in these judgments.  It suffices for me to explain briefly how the matter comes back to the court again by way of a second application for judicial review.  In the judgment of the Court of Final Appeal, there was some references to the disapproval of the plans under s.16(1)(g).  However, as that ground was not argued at the courts below (and CF took an objection that the BA had not sought leave to apply for judicial review in respect of the BAT’s reversal in 2006 of the BA’s decision on s.16(1)(g) in the first judicial review), the Court of Final Appeal did not express any conclusion on that ground. Having reached the conclusion that the BA was not entitled to disapprove the plans under s.16(1)(h), the Court of Final Appeal remitted the matter back to the BAT.

4.  After the decision of the Court of Final Appeal, the matter was remitted back to the Appeal Tribunal (Buildings) [“the BAT”].  There were disagreements between the parties as to the scope of such remission.  After hearing submissions, the BAT ruled on 4 August 2010 that the Court of Final Appeal had only remitted the s.16(1)(h) issue to it. However, in view of the history of the matter, the BAT would also hear submissions and “indicate” its conclusions on s.16(1)(g) had the issue been remitted.

5.  In September 2010, the BAT heard substantive arguments from the parties.  On 29 April 2011, the BAT allowed the appeal of CF against the BA’s reliance on s.16(1)(h).  As regards s.16(1)(g), the BAT maintained its view as expressed in its 2006 decision, viz. that the BAT was not entitled to rely on s.16(1)(g) to disapprove the plans.

6.  It is in respect of the 2010 and 2011 decisions of the BAT that the BA applied for judicial review in these proceedings.  No doubt out of abundance of caution, the BA also seeks to challenge BAT 2006 decision on s.16(1)(g).

The scope of the remission by the Court of Final Appeal

7.  The first ground of the BA’s challenge is that the BAT erred in law in 2010 in holding that the question of s.16(1)(g) had not been remitted to it.  The order of the Court of Final Appeal only stated that the case be remitted to the BAT without setting any limits.  Mr Mok (appearing on behalf of the BA together with Mr Stock) further referred to paras 2 to 7 of the judgment of Bokhary PJ and para 38 of the judgment of Lord Millett NPJ to support his contention.

8.  As shown in these paragraphs, the Court of Final Appeal did envisage that the issue of s.16(1)(g) would be canvassed before the BAT. Lord Millett said,

“… As no other issue arises on China Field’s appeal, I would allow its appeal and remit its case to the Tribunal for a re-hearing. It will be for the Authority to consider whether it wishes to invite the Tribunal to reconsider its decision under s.16(1)(g) and for the Tribunal to consider whether to do so. Should it become necessary, it will be open to the Authority at an appropriate stage to apply for leave to bring proceedings for judicial review. I would express no view on the approach the court should take to such an application, save to say that, in the light of the way in which the proceedings have been conducted hitherto, it would be strange if the application were dismissed merely on the ground that it was out of time.”

9.  As Mr Mok pointed out, these observations were made against the background that the BA had, in the evidence filed in the first judicial review and the Respondent’s Notice filed in the appeal and the Written Case placed before the Court of Final Appeal, raised the issue with regard to s.16(1)(g).  On the other hand, CF had contended that it would be impermissible for the BA to re-open the question of s.16(1)(g) should the matter be remitted to the BAT.

10.  Before this court, Mr Chan SC (who appeared on behalf of CF together with Mr Ismail) basically repeated the contention that since the BA did not apply for judicial review in respect of the BAT’s 2006 decision on s.16(1)(g), it was not an issue before the courts in the first judicial review.  As such, the Court of Final Appeal could not have remitted the issue of s.16(1)(g) to the BAT.

11.  Mr Chan further submitted the tenor of the judgment of Lord Millett did not suggest that s.16(1)(g) was an issue remitted by the Court of Final Appeal.  Rather, in the paragraph quoted above, His Lordship only referred to the possibility of the issue being raised by the BA.

12.  In my judgment, Mr Chan is correct in his analysis that the Court of Final Appeal did not remit the issue of s.16(1)(g) to the BAT as it was not an issue raised in CF’s judicial review which culminated in the appeal to that court.  But that does not mean that the BAT had no jurisdiction to entertain an application by the BA to re-open that issue. Lord Millett was clearly of the view that once the case was remitted to the BAT, the BA (if it deems fit) could apply to re-open that issue. Instead of treating it as an issue remitted by the Court of Final Appeal, the correct approach is to treat that the proceedings before the BAT were at large once the Court of Final Appeal allowed the appeal, thereby implicitly quashing the decision of the BAT based on s.16(1)(h).

13.  It is apparent that the Court of Final Appeal did not deem it appropriate to direct (as opposed to leave it open for BAT’s consideration) the BAT to consider the s.16(1)(g) issue as it was not properly within the scope of the appeal before it.  To say that the Court of Final Appeal had remitted that issue to the BAT would have tied the hands of the BAT, which the Court of Final Appeal manifestly did not do. At the same time, it is also apparent that the Court of Final Appeal did not pre-empt the BAT from considering this issue if the BA were to make an application for re-opening this issue and the BAT were minded to entertain the application.  Thus, though it is correct that the issue of s.16(1)(g) was not specifically remitted to the BAT, insofar as the BAT ruled in its 2010 decision that the Court of Final Appeal had only remitted the s.16(1)(h) issue to them, it is not correct as a matter of legal analysis.

14.  Lord Millett also referred to the possibility of the BA applying for judicial review in respect of BAT’s decision on s.16(1)(g). That could be in respect of the 2006 BAT’s decision or alternatively, if the BAT were minded to re-open the issue at the remitted hearing, the decision of the BAT at that hearing.

15.  Apart from ruling that the only issue remitted was s.16(1)(h), the BAT in their 2010 decision also accepted the BA’s invitation to hear further submissions and state their views under s.16(1)(g) in order to avoid a further remission.  In effect, the BAT acceded to the request to the re-opening of s.16(1)(g) and entertained further submissions on that issue.  The 2011 decision of the BAT is, in substance, a further decision on s.16(1)(g) after due consideration of the parties’ further submissions.

16.  Given that the 2011 decision of the BAT was to maintain the result under the 2006 decision on s.16(1)(g) and the Form 86 in the present case referred to both decisions as the subject decisions in respect of which the BA seeks to challenge by way of judicial review, and bearing in mind Lord Millett’s observations, it does not matter very much whether the BAT had correctly perceived its power to re-open the decision on s.16(1)(g).  Whatever further submissions the parties wished to advance, they had been advanced and taken into account in the 2011 decision.  In my view, the crucial issue is whether the BAT was correct in the 2011 decision on s.16(1)(g).

17.  In these circumstances, the 2006 decision has been superseded by the 2011 decision.  As analysed above, the BAT did have jurisdiction to re-open the s.16(1)(g) issue and it had, in effect, re-opened the same when it gave the 2011 decision.  Thus, in line with the principle set out by Litton NPJ in Financial Secretary v Wong (2003) 6 HKCFAR 476 at para 93, the 2006 decision is no longer relevant and it is not necessary for the BA to seek to have the 2006 decision set aside. We should concentrate on the 2011 decision.  

Procedural challenges: adequacy of reasons

18.  Before I turn to the substantive issue as to the correctness of the BAT’s construction of s.16(1)(g), I shall first deal with Mr Mok’s grounds 3 and 4. Under ground 3, Mr Mok challenges the decision of BAT on the basis that the arguments of the BA on s.16(1)(g) were ignored by the BAT.  Under ground 4, it is contended that the BAT failed to give adequate and rational reasons for its decision.  These two grounds are two sides of the same coin.  The basis for BA’s suggestion that his submissions were ignored was that there was no reference to the detail arguments advanced by the BA in the 2011 decision.

19.  Mr Mok referred to several authorities on the duty to give reasons and the adequacy of reasons.  I do not intend to cite each and every one of them. The judgment of Chief Justice Li in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279 at p.291 and the judgment of Lord Brown in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 at para 36 summarized the law succinctly.

20.  The BAT gave reasons for the conclusion on s.16(1)(g) at paras 24 to 31 of the 2011 decision.  They should be read together with the parts of 2006 decision dealing with the same sub-section.  Though the relevant parts of the 2011 decision were brief, and they did not deal with the arguments advanced by the parties at great length, one can distill the following  as the reasoning process of the BAT,

(a)   Though s.16(1)(g) refers to difference in height, design, type or intended use, in the present case the BA rejected the plans under this sub-section based on height difference;

(b)   It is not the legislative intent of s.16(1)(g) to allow the BA to refuse permission unless the proposed building was exactly the same height as other buildings in the immediate neighbourhood.  Refusal has to be based on incongruity;

(c)   The BAT noted the dicta of Bokhary PJ in China Field v Appeal Tribunal (Buildings) (2009) 12 HKCFAR 342 commenting on his article published in the Hong Kong Law Journal in 1989 in terms of permissible reference to the town planning purposes in the context of s.16(1)(g);

(d)   The relevant town planning context in the present case was that there was no height restriction under the applicable OZP at the time of the submission of the plans to the BA though this had been changed subsequently; and

(e)   s.16(1)(g) cannot be used as a back-door to deal with traffic problem arising from the increase in traffic due to the height of the new development.

21.  In the 2006 decision, the BAT held against the BA on s.16(1)(g) principally on the ground that with the approval given for the construction of a 16 storey building at No.6 Wang Fung Terrace in 1998, the immediate neighbourhood was no longer congruent.  Based on the earlier decision in No 12 Bowen Road, and rejecting the approach in No 2A Mt Davis Road, the BAT held that the congruity of Wang Fung Terrace had been destroyed and BA could no longer rely on this sub-section.

22.  Putting aside the merit of these reasons (which I shall consider below), I am of the view that they could serve the function of informing the BA why the BAT came to these conclusions in 2006 and 2011 respectively.  The BA should be able to tell whether the BAT had made any errors of law and indeed challenge was advanced before this court in that respect. The principal issues were addressed.  I reject BA’s challenges based on inadequacy of reasons and failure to consider his arguments. 

23.  The real issues are whether the BAT erred in law in coming to these conclusions and whether the conclusion is Wednesbury unreasonable, as contended by Mr Mok.

The construction of s 16(1)(g)

24.  Having regard to the arguments of counsel, the heart of their differences in respect of the construction of s.16(1)(g) can be summarized as follows,

(a) Mr Mok contended that once the jurisdiction to disapprove plans is engaged (by virtue of the proposed building would be ‘differing in height, design, type or intended use from buildings in the immediate neighbourhood or previously existing on the same site’), the BA has a discretion and such discretion can be exercised by reference to underlying factors including safety issues arising from traffic implications due to increase in traffic occasioned by the proposed building; and

(b) On the other hand, Mr Chan contended that the disapproval of plans under s.16(1)(g) should be confined to aesthetic consideration. Town planning considerations, in particular traffic safety considerations stemming from the proposed building, are exclusively dealt with under s.16(1)(h) and (2)(d) of the BO.  Apart from these specific sub-sections and the Building (Private Streets and Access Roads) Regulations, traffic considerations are matters for the Town Planning Board and s.16(1)(d).  Traffic implications are not relevant considerations under s.16(1)(g).  

25.  In the 2011 decision, the BAT accepted that there are cases where planning purposes could be referred to when the BA exercises his discretion under s.16(1)(g).  In the present case, the BAT took the relevant planning context from the applicable OZP at the time of the submission of the plans to the BA.  By implication, the BAT regarded the absence of height restriction in that OZP as determinative in respect of traffic implications stemming from the proposed building. 

26.  The approach of the BAT is a middle ground between that advocated by Mr Mok and the one advocated by Mr Chan. On the one hand, the BAT did not completely rule out town planning consideration in the exercise of discretion under s.16(1)(g).  In that respect, the BAT differed from Mr Chan’s submission that s.16(1)(g) should be confined to aesthetic consideration.  On the other hand, the BAT confined the planning consideration to height restriction in the present case and held that the absence of height restriction under the OZP was determinative.  In that regard, the BAT was in agreement with Mr Chan.

27.  As I said earlier, we should concentrate on the 2011 decision and the 2006 decision should be regarded as having been superseded.  In the 2011 decision, the BAT did not explicitly reiterate its previous stance (in the 2006 decision) that s.16(1)(g) was not engaged because of the approval given to the construction of a 16-storey building at No 6.  Had that stance been maintained, there was no need for the BAT to give consideration to the submission of BA on how the discretion should be exercised.

28.  Notwithstanding so, I will also consider briefly the correctness of that stance.  Of the three authorities cited by the BAT, the case of No 2A Mt Davis Road is closest to the mark. In that case, the Tribunal held that s.16(1)(g) could be relied upon to reject a plan for a development of two 37-storey blocks of flats plus 4-storey car-park at a immediate neighbourhood which comprised buildings of various heights rising to a maximum of about 4 storeys with one 12-storey block.  The argument that as there were many different heights of buildings, one more different height would not make any difference was rejected.

29.  That decision was consistent with an earlier decision by the Tribunal in No 1 Robinson Road where it was held that s.16(1)(g) was engaged in respect of an immediate neighbourhood with buildings ranging in height from two to six storeys and one of exceptional height of nine storeys.  The Tribunal held that a proposed 26-storey building would be different in height from buildings in the immediate neighbourhood.  However, the Tribunal held against the BA on whether the discretion should be exercised by rejecting the plans.

30.  No 1 Robinson Road was cited and applied by the Tribunal in No 12 Bowen Road.  In that case, the immediate neighbourhood included a 21-storey block over a 3- storey podium and two 16-storey blocks over 1-storey of car-park on a raised platform of 3-storey high.   The proposed development was a 27-storey building with 4-storey car-park.  Having regard the way in which the Tribunal expressed its decision, with explicit references to the exercise of discretion and the principles set out in No 1 Robinson Road, it would appear that the decision was based on the exercise of discretion.  In any event, on the facts, it is not difficult to understand why the Tribunal expressed the view that there was no congruity to preserve.

31.  But the facts in No 12 Bowen Road are very different from the present case.  I do not think No 12 Bowen Road can be regarded as an authority for the proposition that once there are buildings of different height in the immediate neighbourhood, the congruity (in terms of height) is destroyed and s.16(1)(g) cannot be relied upon. That would not be the proper construction of s.16(1)(g).  The correct approach was the one applied by the Tribunal in No 1 Robinson Road and No 2AMount Davis Road. In the 2006 decision, the BAT failed to adopt this approach and in this respect, it had erred in law.

32.  The third case cited by the BAT in the 2006 decision, Rich Resources Enterprises v AG HCMP 3896 of 1991, 10 April 1992, does not take matter further in this respect.

33.  The above conclusion on the proper construction of s.16(1)(g) is consistent with the observations of Bokhary PJ in China Field v Appeal Tribunal (Buildings) (2009) 12 HKCFAR 342 by reference to his 1989 article in Hong Kong Law Journal. Plainly, the BAT had misunderstood the article in the 2006 decision.  This was brought to the attention of the BAT by the BA’s submissions of 15 March 2010 and 3 September 2010 which were considered by the BAT before the 2011 decision.  In fact, in the submissions of CF advanced in response, the emphasis was placed on the exercise of discretion in light of the OZP instead of affirming the stance of the BAT in the 2006 decision, see the submissions of CF of 3 and 9 September 2010.  BAT’s reference to the judgment of Bokhary PJ at para 27 of the 2011 decision had to be understood in that light. It is therefore clear to me that the BAT had abandoned its stance in the 2006 decision.

34.  I can now turn to the scope of the discretion under s.16(1)(g). The subsection is in the following terms,

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

35.  Before I examine the authorities and submissions, I shall make some general observations. Section 16(1) as a whole confers a discretionary power on the BA to refuse to approve plans.  The power is triggered upon the satisfaction of any one of the conditions set out in the sub-sections.  If the BA is satisfied that the case comes within any one of conditions, the discretion can be exercised.  The discretion can be exercised by refusing to give approval.  It can also be exercised by approving the plans.  The satisfaction of one of the conditions does not necessarily lead to the refusal to give approval.

36.  Thus, the exercise of the discretion must refer to criterion (or criteria) beyond the mere satisfaction of the triggering condition.  In the context of s.16(1)(g), as observed in the 1989 article[1], “The mere fact that a proposed building would differ in height from buildings in the immediate neighbourhood has never been regarded by the tribunal as a proper basis for rejection.” 

37.  The crucial issue is: what is the permissible scope of the criterion (or criteria) for the exercise of the discretion.  Mr Mok submitted that it encompass consideration concerning access and safety whilst Mr Chan would have it confined to aesthetic consideration.

38.  Under s.16(1)(g), the condition can be satisfied by two alternative limbs: (a) the immediate neighbourhood limb; and (b) the previously existing building limb. Whilst the present case is concerned with the first limb, the proper construction of the second limb may throw some light on the interpretation of the sub-section as a whole.  In the 1989 article, the learned author pointed out[2], quoting the decision of the Tribunal in Sheung Shui Inland Lot No 5 case that congruity could not be a factor in the second limb.  The Tribunal further came to the following conclusion,

“With some reluctance we have come to the conclusion that the Building Authority’s discretion under the second limb should be for the general purposes of the Ordinance, i.e. safety and public health, and not for the preservation of particular areas so as to maintain the character of these areas, which would amount to the assumption by the Building Authority of powers in the nature of town planning powers.”

39.  It is interesting to note the comment in the 1989 article in respect of this conclusion,

“Without querying the correctness of the actual decision reached, it could be asked whether or not this statement might be too widely expressed if it is to be read so as to exclude all exceptions. Whether or not, in all the circumstances of Hong Kong, it is really all that difficult to believe that the legislature intended that the Building Authority have some residual planning powers under section 16(1)(g) may be open to question.”

40.  With respect, the observation about the possibility of vesting of residual planning powers under s.16(1)(g) on the BA is clearly borne out when one considers this sub-section against the history of town planning control in Hong Kong.  At the request of the court, parties have prepared a joint note on the relevant legislative history.  I am grateful for counsel’s assistance in that regard.  As stated in that joint note, the history of s.16(1)(g) can be traced back to s.203 of the Public Health and Buildings Ordinance 1903.  That section was in these terms,

“Nothing contained in the foregoing sections shall be held to affect the right, which has hitherto been exercised by the Government, of forbidding the erection in any part of the Colony … of buildings of a different character from those previously existing on the same site. The Building Authority shall have the power to refuse his approval of the plans of any building which differs in design or character from those in the immediate neighbourhood. …”

41.  Again there were two limbs in that section. The first limb, with regard to comparison with previously existing building, was a power that had hitherto been exercised.  The second limb appeared to vest an additional power on the BA.  Counsel referred to the commentary of Butterworths Hong Kong Building Law Handbook (Third Edition) p.1-5 for the historical development of our building legislations since 1844.  Counsel also referred to The Annotated Ordinances of Hong Kong, Town Planning Ordinance (2007) p.1-10 with regard to the background to our town planning regime under that ordinance.  Another helpful source of information as regards the earlier developments in Hong Kong with regard to planning control is Roger Bristow, Land-use Planning in Hong Kong.  Historically, it cannot be disputed that the Building Authority did play a role in the planning regime.

42.  The first Town Planning Officer was appointed in 1935 by the Public Works Department which was also responsible for the administration of the Buildings Ordinance through its Buildings Ordinance Office.  The Town Planning Ordinance [“TPO”] first appeared in our statute books in 1939.  Roger Bristow pointed out[3] that there was a division of responsibility between town planning and development control within the department.  Roger Nissim noted in Land Administration and Practice in Hong Kong, 2^nd Edn, p.87, until 1973 planning restrictions under the TPO were confined to controlling land use whilst the density of development was controlled by lease conditions and the Building (Planning) Regulations [“BPR”] which was administered by the BA.  Lease conditions, statutory powers under the BO and the planning regime by way of OZP under the TPO had historically been fulfilling their respective roles in planning control in Hong Kong.

43.  The role of the BA and the BO in density control in the 1950’s was discussed by Roger Bristow.  He referred to the introduction of the BPR in 1956 and its impact on intensifying development by reason of the liberalization in terms of plot ratio and height restrictions[4]. The revision of the BO in the 1950’s was a major exercise in the modernization of our building law. When moving for the first reading of the 1955 bill, the then Director of Public Works referred to density control being one of the function of the BO,

“Site utilization must be regulated in respect of open space, heights and volumes of building … the new limitation is based not on the width of the adjoining street so much as on the volume of the building while at the same time ensuring that each room has adequate light and air. …”

44.  The practice in terms of the processing of an application for approval of plans under the BO also reflects the role of BA and the BO in the control of development.  As illustrated by the case notes and minutes of meetings of BA Conference[5], views from other departments, including the Planning Department, were considered before a corporate decision was made under s 16(1)(g) in the present case.  This is also confirmed by the statement of the District Planning Officer[6].  CF was informed about these views in the letter of 2 November 2001 from the Building Authority to its architect.

45.  As evidenced by the discussions recorded in these documents, the opinion about incongruity came mainly from officers in the Planning Department.  There was no suggestion that the adverse impact from the aesthetic point of view was the concern.  Rather, the concern was about the difference in mass and height.

46.  This echoes the observations made by the learned author of the 1989 article[7],

“… in a real world, it may be naïve to believe that, where there is a plainly defensible (albeit not necessarily compelling) basis for applying section 16(1)(g), those considerations [viz. avoid traffic saturation, limit density or control positioning] could never operate on the Building Authority’s mind, subconsciously perhaps, to persuade him that he ought not to deny himself the use of so formidable a weapon in what he sees as a righteous cause. …”

47.  The defensible basis under the first limb was identified as incongruity.  On the facts of this case, the BA found there was incongruity.  In its 2006 decision, the BAT held there was no congruity to be preserved due to the erection of the 16 storey building at No 6.  As explained above, that was incorrect as a matter of law.  In the 2011 decision, the BAT did not rely on this proposition. Instead, after referring to Bokhary PJ’s dicta about the permissible reference to planning purposes, it turned to the reference to the OZP which contained no restrictions in respect of building height.

48.  In the circumstances, the BAT did not put forward any reason for departing from BA’s conclusion on incongruity.  Rather, in its 2011 decision it reversed the decision of BA on s16(1)(g) solely based on the notion that insofar as the triggering feature is height, s16(1)(g) cannot be a ground for not giving approval due to height if it is permitted by the applicable OZP.

49.  In this respect, I cannot accept Mr Chan’s submission that the BAT had applied the incongruity test properly and this court cannot interfere.  The reasons given by the BAT in the 2006 and 2011 decisions show that it had misunderstood the incongruity test in its 2006 decision and set a constraint on the test by reference to the OZP in the 2011 decision.

50.  Mr Chan further submitted that traffic danger is an irrelevant consideration under s16(1)(g) because it is properly a matter for the Town Planning Board in the exercise of its power under s3 of the TPO.  In this connection, counsel referred to two authorities: AG v C C Tse (Estates) Ltd [1982] HKLR 7 and Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432. With respect, these cases do not assist him. Even though traffic danger may be relevant under the TPO, it does not necessarily mean that it cannot be relevant under s16(1)(g).

51.  These two cases did not concern the proper interpretation of s16(1)(g). AG v C C Tse (Estates) Ltd [1982] HKLR 7 was about whether the Town Planning Board can provide for plot ratio in a draft plan prepared by it.  The court held that it can. One of the submissions was that matters relating to plot ratio were fully and specifically dealt with under the BO, see p.15F.  That submission was rejected though the court was aware that plot ratio was a concept stemmed from the BPR.  In other words, the court held that there was nothing wrong for the same subject matter to be subject to two regimes, one under the BO and another under the TPO.

52.  Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432 was a case where a developer challenged the BA’s refusal to give approval despite its plot ratio exceeds that permitted by the OZP on the ground that it should exercise its discretion to relax the limit set by the OZP with reference to the traffic generation from the specific site. It was a case under s.16(1)(d).  The developer failed. Whilst the court did recognize that the BA had a residual discretion to depart from the OZP, it held that the facts of the case did not support such a challenge by way of judicial review.  This is apparent from the judgment of Sears J at p.437 D to H and the judgment of Rogers J.

53.  At p.438, Godfrey JA endorsed the following parts of the judgment of the BAT with regard to the different roles played by the Town Planning Board and the BA,

“… whereas the Town Planning Board is concerned with planning considerations for a particular zone or area, the Building Authority and this Tribunal are of course concerned with a particular site or specific building development. It is therefore perhaps not surprising that in the objection hearing the Town Planning Board was not willing to revise the draft OZP for the sake of the Appellants’ building plans in respect of their specific site and were not therefore prepared to treat the Appellants’ site as a special case.

The Building Authority on the other hand is and can only be concerned with a specific site. Leading Counsel for the Appellants and Counsel for the Building Authority were agreed that relevant considerations for the exercise of the discretion were (a) whether the planning intention in the OZP is contravened and (b) whether there are special considerations which warrant approval. Leading Counsel for the Appellants also contended that the question as to whether or not there were special considerations relating to the Applicant or the application was a relevant consideration for the purpose of the exercise of the discretion. … we are satisfied that in principle this factor is a relevant consideration for the exercise of the discretion.”

54.  The special considerations with regard to the site included planning considerations. That must be right in the context of the exercise of discretion under s.16(1)(d).  How about the exercise of discretion under s.16(1)(g)?

55.  Mr Chan also cited International Trader Ltd v Town Planning Appeal Board [2009] 3 HKLRD 339.  Though that was a case in relation to the exercise of discretion by the Town Planning Board under s.16 of the TPO, the Court of Appeal highlighted the significance of the OZP.  Hartmann JA referred to s13 of TPO and said at para 31,

“The effect of the section, therefore, is to impose on all public officers and all public bodies the statutory duty to have reference to approved plans as the recognized measure by which they are to be guided; that is, directed, in the exercise of their powers.”

56.  His Lordship accepted the analysis of the Town Planning Board in Re Henderson Real Estate Agency Ltd which said,

“…we live in a world in which every citizen is entitled to regulate his affairs according to law. Just as the Town Planning Ordinance protects the Community, it protects property owners as well. An owner is just entitled to rely on a DPA plan as the Government …”

And at para 50 Hartmann JA said this approach is consistent with the principle that the courts will not construe a statute as taking away the rights of a property owner unless there is clear wordings to that effect.

57.  At para 51, Hartmann JA came to the following conclusion with regard to the exercise of power under s.16 of the TPO,

“In summary, therefore, I am satisfied that, on a true construction of the Ordinance, when determining an application for planning permission under s 16, the Board does not have the power to have regard to any and all planning considerations which it believes will assist it to reach the right decision in the public interest. The Board’s discretion is one that must be exercised within the parameters of the approved plan in question. Accordingly, if it takes into account material considerations which fall outside the ambit of an approved plan, considerations which are therefore not relevant to it, it acts ultra vires.”

58.  That was said with respect to s.16 of the TPO. Mr Chan urged this court to subject the power of the BA under s.16(1)(g) to the same constraints.  The judgment of the Court of Appeal in International Trader was handed down in February 2009.  The appeal of CF before the Court of Final Appeal was argued in October 2009.  Though the first instance judgment of International Trader was cited by parties, there was no reference to it in the judgment of the Court of Final Appeal. The judgment of the Court of Appeal was not cited.

59.  In the judgment of the Court of Final Appeal, Bokhary PJ reiterated his comment about the possibility of having planning purposes at the back of its mind when the BA exercised its power under s.16(1)(g)[8].  Lord Millett NPJ expressly refrained from expressing any view on the approach the court should take in a judicial review in respect of the decision under that sub-section[9].

60.  There are other authorities on s.16(1)(g) over the years which I must now turn to.  There were a series of decisions by the Tribunal upholding the use of s.16(1)(g) to refuse approval due to safety and public health considerations: see the Hok Sz Terrace Determination; Nos 29 and 31 Sands Street; Nos 1-3 Leung I Fong.  The last case was decided on the first limb of s.16(1)(g) though the two earlier cases were decided under the second limb. The Tribunal in Leung I Fong appeared to apply the same principle and approach in the context of the first limb in respect of the exercise of discretion as expounded in the two cases decided under the second limb.  In the Hok Sz Terrace Determination, the Tribunal held,

“Having determined that the Building Authority was vested with a discretion, it is now necessary for us to whether that discretion has been properly exercised. … If we felt that the Building Authority had acted capriciously or had been influenced by extraneous considerations which ought not to have influenced him, or conversely had failed to take into account considerations which ought to have influenced him, then this would have a considerable bearing upon our decision in this Appeal. We accept that the discretion must be exercised fairly.”

61.  The Tribunal reminded itself of the following proposition derived from its earlier determination in the Hung Lee Estates case[10],

“… it would clearly be inappropriate for section 16(1)(g) to be used as a stick to limit building volume below the scales laid down in the BPR.”

62.  The Tribunal pin-pointed the rationale why the BA should be concerned about access,

“In the final analysis however, the Building Authority is responsible for the due and proper administration of the Ordinance. [Apart from fire engines, the] problem of access extends also to ambulances, and to a lesser extent to garbage collection, and a high-rise building of the sort indicated in the plans that have been submitted to this Tribunal is in our view, undesirable in this locality.”

“When considering an appeal of this kind it is our duty to weigh very carefully the considerations which underly (sic) the decision appealed against. On the one hand, developers should not be at the mercy of Government as to whether or not they will be able to develop sites to the maximum extent permitted by the Schedules to the BPR. … On the other hand, there are exceptional cases where there is some overriding consideration relating to the particular proposals for development in which the Building Authority would be failing in his duty to ensure reasonable standards of safety if he passed plans which otherwise conformed, and in these few cases falling within the precise language of section 16(1)(g) plans can be disapproved even though all other requirements of the Building Ordinance have been observed.”

63.  In 1992, Mayo J heard a judicial review in respect of the exercise of the power under s.16(1)(g) in Rich Resources Enterprises Ltd v Attorney General HCMP 3896 of 1991, 10 April 1992.  That was another stepped street case, the site was Nos 15 and 17 Sands Street.  The developer’s proposal to build a 26-storey building was rejected under the second limb.  The submission that fire and other safety requirements were not relevant considerations under this subsection was rejected.  His Lordship accepted the following submissions made on behalf of the BA,

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

S16(1)(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(1)(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.”    

64.  Another submission advanced by counsel for the developer was that permissible density of a development was a matter for the Town Planning Board and the BA should not usurp the Board in this regard. Mayo J held,

“I can see no difficulty if these powers and discretions [under s. 16(1)] 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. …”

65.  After that decision, the developer submitted another set of plans in respect of this site.  This time it proposed a 12-storey development.  It was initially rejected by the BA. On appeal, the BAT allowed the appeal[11].  The BAT acknowledged that density implications flowing from the height of the proposed building were relevant considerations.  Under para 6, the BAT considered one-by-one  the following factors: (1) density; (2) fire safety; (3) water supply and pressure; (4) ambulance services; (5) refuse collection; (6) delivery of goods; (7) disabled and elderly; (8) sewage; (9) traffic.  It adopted the following approach laid down in the U Lam Terrace case,

“It seems to us that what the Building Authority has to do when considering the exercise of his discretion under this limb of s. 16(1)(g) is to ask himself what negative factors will result from the difference in height between the buildings previously on the site and the proposed building. After doing this, the Building Authority has to weigh both the positive factors resulting from redevelopment and such negative factors in the balance and decide whether or not there is such a weight of negative factors resulting from the difference in height as to justify a refusal. We believe there must be some significantly greater weight in the resulting negative factors if a refusal is to be justified because the use of the section limits a developer’s right to develop his site to the full extent otherwise granted to him by the Crown Lease and the Buildings Ordinance and Regulations.”

66.  The BAT made it clear that it agreed with Mayo J that safety issues arising from the increase in density of population owing to the height of the development were matters which the BA and the BAT should take into account: see paras 10.1 to 10.3 of the decision.  And that was the position notwithstanding the OZP restricting height was in the course of preparation.  The BAT said,

“Until such plan is in force, the Building Authority has only s.16(1)(g) to rely on to control the height of developments in stepped streets. The Appeal Tribunal is duty bound to ensure that such developments would not endanger the safety of people in and around a building and/or impose constraint on the infrastructure.”

67.  Mr Chan submitted that these were exceptional cases with regard to the unique problems caused by stepped street topography of the sites in question.  With respect, I do not agree. In principle, if safety and access implications are relevant they would be relevant even though they do not stem from stepped street topography.  The same approach was adopted by Chung J in Sun Honest Development v Appeal Tribunal (Buildings) [2004] 3 HKC 652 in respect of No 4 and 4A-D of Wang Fung Terrace.  Though the decision has been reversed on appeal on other grounds, His Lordship’s decision on s.16(1)(g) was not affected.  At paras 17 to 23, Chung J discussed the submission based on s.13 of the TPO and held in favour of the BA on that issue.  In the more recent decision of the Tribunal in New Town Project Management Ltd v Building Authority Cases Nos 571 and 583 of 2007[12], s.16(1)(g) was applied in respect of another site at Lower Kai Yuen Lane which was not a stepped street.

68.  If safety and public health are legitimate considerations for the exercise of the discretion under the second limb of s.16(1)(g), it must also be relevant under the first limb though different triggering condition must be satisfied through the consideration of incongruity.  That explains why in cases where the character of the neighbourhood was not uniform, the Tribunal had allowed appeal against the use of s.16(1)(g), see No 12 Bowen Road Case, Nos 101, 103 and 105 Boundary Street Case (No 2).  But it does not follow that if there is a proper basis for forming the view that the proposed building is incongruent with the immediate neighbourhood, the BA cannot take into account factors similar to those it could take account under the second limb in the exercise of discretion.

69.  In New Town Project Management Ltd v Building Authority Cases Nos 571 and 583 of 2007[13], in the context of the first limb of s.16(1)(g), the Tribunal went as far as holding that even in the absence of site-specific public health and safety issues, a tall building may give rise to objection in terms of visual impact and shading.  What the Tribunal said at para 46 goes a long way in answering the often raised submission that the exercise of discretion under s.16(1)(g) created difficulties on the part of developer to assess the permissible extent of development,

“Developers and authorized persons should be able to recognize without undue difficulty whether building proposals are realistic or wholly unrealistic in terms of height, for a particular site and its immediate neighbourhood. The Buildings (Planning) Regulation allows developers and authorized persons considerable flexibility, as to the manner in which the maximum permissible development potential for a particular site under that Regulation may be achieved. Building proposals should nevertheless be realistic given the constraints affecting a particular site. The Building Authority (and the Appeal Tribunal) will obviously allow a fairly wide margin. On the other hand, the proposals in terms of height should be realistic. The precise line at which section 16(1)(g) should be invoked to disapprove building proposals may sometime be difficult to define. It is unnecessary to do so here. Many cases will answer that question on their own facts. This may be analogous to the well known elephant test: it is difficult to describe, but you know it when you see it.”

70.  The authorities, in my view, support these propositions:

(a) The regime under the TPO and s.13 of the TPO would not bar the BA from exercising the power under s.16(1)(g) in not granting approval for plans on account of safety and access implications even though the height of the proposed development is permitted by the then applicable OZP;

(b) However, the permissible height under OZP, like the permissible scope of development under the Conditions of the Government Lease and the BPR, is a relevant consideration in the balancing exercise by reason of the presumption against imposing a blight on development;

(c) Aesthetic consideration is not the only relevant consideration for the exercise of the discretion under s.16(1)(g), whether under the first or the second limbs;

(d) In the exercise of the discretion, the BA should weigh the positive factors resulting from redevelopment and the negative factors in the balance.

Since International Trader was not a case on s.16(1)(g), and there was no disapproval of these authorities in the judgment of the Court of Appeal, I do not think it undermines these propositions.

71.  In principle, proposition (a) must be correct as s.16(1)(g) is a distinct ground from s.16(1)(d).  If a proposed development is beyond the permissible height of an OZP, the plans can be rejected under s.16(1)(d) and there is no need to resort to s.16(1)(g).  It has to be borne in mind that before any density control was imposed in the draft plans approved under the TPO and even before control was exercised in terms of plot ratio set by the BPR, the precursor of s.16(1)(g) had existed and played a role in the regulation of development in conjunction with the rudimentary regime imposed by conditions of Government Leases.  Over the years, the wordings of s.16(1)(g) have been changed from those in s.203 of the Public Health and Buildings Ordinance 1903.  With the modernization of the planning control regimes in Hong Kong, the role of s.16(1)(g) has been watered down.  Yet, as pointed out by the learned author of the 1989 article, and as borne out by the case law, it still retains a residual role.  Though one must have regard to the landowner’s right to develop his land to the extent permitted by law, such law must include the potential limitation set under s.16(1)(g) and there are still cases where plans can be disapproved by the BA under s.16(1)(g) on safety and access related grounds.

72.  It has often been said that s.16(1)(g) is a blunt instrument. But as observed in the 1989 article, a decision of the BA is subject to appeal to the BAT.  Further, errors of law and other public law challenges can be brought against these decisions by way of judicial review.  Given the duty to weigh the positive factors against the negative factors, I do not see any inherent problems in the use of s.16(1)(g) to fulfill some residual control in respect of safety and access issues.

73.  One can also test the matter by asking whether there is any rationale for holding that the discretion under the first limb of s.16(1)(g) is to be confined to aesthetic consideration. Aesthetic consideration can be very subjective.  In the exercise of discretion on account of public interest it is difficult to set some objective criteria for determining whether a case of incongruity with the immediate neighbourhood should be acceptable or not acceptable from the aesthetic point of view.  Once the argument based on s.13 of TPO is rejected, it is also difficult to see why the BA should be confined to such consideration once the discretion is triggered.      

74.  Actually Mr Chan accepted that safety and access issues can be relevant under s.16(1) but he submitted that the legislative intention is for s.16(1)(h) and (2)(d) to be the only sections in the BO to deal with danger or likely danger or prejudice to the safety or convenience of traffic or expected to use a street.  Counsel said the specific requirements in s.16(1)(h) and (2)(d) override the general discretion of the BA in other sub-sections and relied on the maxim generalibus specialia derogant to support his contention.

75.  Whilst it is correct that s.16(1)(h) (and its equivalent in s.16(2)(d) in the context of street works) deals specifically with danger or inconvenience arising from the place at and the manner in which the relevant means of access of the site opens on to the street, the Court of Final Appeal held that its scope is limited.  As held by Lord Millett, this subsection has no application if the building works do not involve the construction, formation or laying out of any means of access but only the use of an existing one[14].  Also it is not sufficient that the danger is caused by the development generally or by the increased density of occupation of the site.  The danger must be attributable to “the place at or manner in which” the proposed means of access.  His Lordship gave the examples of a blind corner and the use of car lift[15].  Thus in a case like the present one where the danger or inconvenience occurred not by reason of “the place at or manner in which” the proposed means of access opens on to the street, that subsection cannot be relied upon.

76.  But there is still a public need for such danger to be taken into account.  Mr Chan’s submission, in effect, is that by operation of the maxim generalibus specialia derogant, such public concern should not be a matter for the BA in the exercise of its power under s.16(1)(g) even though it could not be taken into account under s.16(1)(h).  The maxim, in plain language, means a special provision override general ones.  Bennion stated the principle as follows,

“Where the literal meaning of a general enactment covers a situation for which specific provision is made by some other enactment within the Act or instrument, it is presumed that the situation was intended to be dealt with by the specific provision.”[16]

77.  But Bennion also said,

“A specific provision within an Act is not usually of much relevance in construing one of the Act’s general provisions on other aspects. This is because specific provisions may be inserted ex abundant cautela, or otherwise without regard for the wider application of the general provision.”[17]

78.  As mentioned above, s.16(1)(g) can be traced back to s.203 of the Public Health and Buildings Ordinance 1903.  Though the wordings had been revised in the 1955 Buildings Ordinance, I do not think the legislature intended to cut down the discretion by such changes. It took the following form in s.9(6)(c) of the 1955 Buildings Ordinance,

“The Building Authority may refuse his consent to the carrying out of any building works which 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.”

79.  There was no equivalent provision of s.16(1)(h) in the 1955 BO.  And in those days, the approved plans prepared under the TPO did not deal with building density or height.  Thus, the only provision by which control could be exercised over matters relating to safety and access issues was s.9(6)(c).

80.  In the 1959 version of the BO, these provisions appear in s.9B(1),

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

…

(f) 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;

(g)  the building works consist of, or any part thereof involves, the construction, formation or laying out of any means of access or other opening, not being a street or access road, to or from any street, and the place at or manner in which such means of access or other opening opens on to the street is, in his opinion, such as to be dangerous or likely to be dangerous or prejudicial to the safety or convenience of traffic using the street, or which may be expected to use the same; …”

81.  On the face of these provisions, there is nothing to suggest that the discretion under (f) (viz the current s.16(1)(g)) is to be cut down in respect of safety aspects not covered by (g) (viz the current s.16(1)(h)). Nor is there anything in the legislative history suggesting this to be the intention of the legislature.

82.  As held by the Court of Final Appeal, the specific aspect dealt with by (h) is very limited in scope.  It simply did not cover safety issues beyond those occasioned by the place at or manner in which such means of access or other opening opens on to the street.  Thus, it is not a case where the specific issue which the BA is concerned about in the present case had been dealt with under s.16(1)(h).

83.  The more accurate interpretation, as it seems to me, is that s.16(1)(g) and (h) confers two distinct discretion on the BA in deciding whether to approve a set of plans.  For situation falling within the scope of (h), it may be irrational for the BA to disapprove a plan under (g) even though it could not disapprove it under (h).  However, for situation not falling within the scope of (h), it has no relevance on how the discretion is to be exercised under (g).

84.  Therefore, I cannot accept the submission of Mr Chan in this regard.

85.  I hold that the BAT had erred in law in paragraphs 28 to 30 of its 2011 decision in the following respects,

(a) The BAT erred in regarding that the absence of height restriction in the applicable OZP was determinative of how the discretion under s.16(1)(g) was to be exercised in the present case;

(b) The BAT erred in regarding that in the exercise of the discretion under s.16(1)(g) the BA could not have regard to traffic problem or other matters relied upon by the BA in the evidence.

86.  The correct approach in law is that once the triggering condition has been satisfied under the first limb of s.16(1)(g), the discretion is to be exercised in accordance with the four propositions set out at para 70 above.

87.  The 2011 decision of the BAT, and insofar as necessary, contrary to what I held above the 2006 decision, on s.16(1)(g) should be set aside on the ground of errors of law.

88.  That being the case, it is not necessary for me to consider separately Ground 3 of the BA’s challenge (and I have already dealt with the submissions on destruction of congruity).  It is also not necessary for me to consider the challenge based on irrationality under Ground 5.  My analysis on the true effect of the 2011 decision also disposes of Mr Chan’s submissions on the delay to challenge the 2006 and 2010 decisions.  In any event, as observed by Lord Millett, in view of the history of the first round of judicial review, it would not be right to let the 2006 decision on s.16(1)(g) stand irrespective of its merits.  Given the history of the matter and my analysis of the substantive merits of the matter, there is also no merit in Mr Chan’s submission on delay regarding the challenge to the 2011 decision.

Remedies

89.  The outstanding question is whether I should direct the BAT to rehear the matter in the light of my above conclusions or whether, as requested by the BA, I should direct the BAT to dismiss the appeal.

90.  When the court set aside a decision of an administrative tribunal in a judicial review on errors of law, the usual course is to send the case back to the tribunal for a decision in accordance with the law. This is because in a judicial review the court would not assume the role of the primary decision maker.

91.  However, there are cases where the court can come to the conclusion that there could only be one result that is legally open to the administrative body.  In those cases, the court can grant a mandamus directing the administrative body to act accordingly.  In R v Ealing London Borough Council ex p Parkinson (1996) 8 Admin LR 281 at p.287F , Laws J (as he then was) said,

“There are … rare cases where the public law court is able to conclude that only one result was legally open to the body in question, and in that case an order of mandamus may issue to require that result to be arrived at. Even there, however, the court does not undertake the role of primary fact-finder, substituting its judgment on the merits for that of the body reviewed. It merely recognizes the existence of a situation in which a public authority, properly directing itself on the facts according to the law, has only one choice legally open to it.”

See also R (Luminar Leisure Ltd) v Crown Court at Norwich [2004] 1 WLR 2512 at para 20; International Trader v Town Planning Appeal Board HCAL 13 of 2007, 15 Nov 2007, para 139.

92.  Mr Mok submitted that the present case comes within this category of rare cases.  In view of the conclusions reached by the BAT in the 2006 decision with regard to the danger associated with the junction between Wang Fung Street and Tai Hang Road, counsel submitted it would be irrational or Wednesbury unreasonable for the BAT not to exercise the discretion under s.16(1)(g) to reject the plans.

93.  The relevant discussion can be found at paras 40 to 52 of the 2006 decision. That discussion was made in the context of s.16(1)(h). Since the Court of Final Appeal held that it is wrong to rely on s.16(1)(h), Mr Mok submitted that the same factual matrix and assessment would apply to the exercise of discretion under s.16(1)(g).

94.  On the other hand, Mr Chan submitted that if (as I held above) the BA is required under s.16(1)(g) to conduct a balancing exercise between the positive and negative factors, the case should be sent back to the BAT for that exercise which hitherto has not been performed.

95.  I do not find it easy. At the end of the day, with some reluctance in view of the history of the case, I have to agree with Mr Chan.  In the 2006 decision, the BAT had not directed itself with regard to the balancing exercise.  This court cannot say on the materials available that the only possible option permitted by law is to reject the plans.  Though the option of imposition of condition in terms of improvement of Wang Fung Street had been considered in the 2006 decision and it was ruled out due to the failure to generate any positive result with reference to the case of No. 6, this court does not know whether more stringent conditions ensuring immediate action on improvement of Wang Fung Street can be explored and whether this would weigh one way or another in the balancing exercise.  These must be matters for the BAT instead of this court.

96.  In the circumstances, I will grant an order in terms of para 2 of the relief sought in the Form 86 except that for reasons given above, it would not be necessary to formally quash the 2010 Decision.  I will also grant an order in terms of para 4.

97.  I will make a costs order nisi that the Interested Party shall pay the costs of the BA with certificate for two counsel, such costs to be taxed if not agreed. 

98.  Lastly, I thank counsel for their valuable assistance.