LEE KAM LEUNG PATRICK AND ANOTHER v. THE APPEAL TRIBUNAL (BUIDLINGS)

HCAL 456/2025

[2026] HKCFI 1529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 456 OF 2025

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J U D G M E N T

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A.  Introduction

1.  Against a long and somewhat torturous history, the Applicants challenge the 20 November 2024 Determination (“2024 Determination”) made by the Appeal Tribunal (Buildings) (“BAT”), determining the Applicants’ appeal (“2021 Appeal”) against the BA’s building order dated 20 July 2021 (“2021 Order”) requiring demolition of unauthorised building work (“UBW2”) at ground floor and open yard premises (“Premises”) owned by the Applicants.

2.  By the 2024 Determination, the BAT (1) dismissed the 2021 Appeal (“Dismissal Order”), and (2) ordered the costs of the 2021 Appeal to the BA, to be taxed if not agreed (“Costs Order”). Subsequently, on 3 March 2025, the BAT assessed the costs of the 2021 Appeal at HK$294,071, payable to the BA forthwith (“Assessed Costs Order”).

3.  By Form 86 dated 18 February 2025, the Applicants sought leave to apply for judicial review to challenge the Dismissal Order and the Costs Order. Leave to apply for judicial review was granted on the papers on 25 February 2025. Subsequently, on 4 June 2025, leave was granted by consent to the Applicants to amend the Form 86 (“AF86”) to include the ground of review against the Assessed Costs Order.

4.  The matter came to substantive hearing on 12 March 2026. At that hearing, the Applicants were represented by Mr Packo PF Chan of Counsel, and the BA was represented by Mr Harrison Miao of Counsel and Mr Mike Yau, Government Counsel.

5.  At the end of the hearing, I reserved my decision. This is my Judgment.

B.  Background

B.1  2011 Order

6.  On 19 September 2011, the BA issued an order (“2011 Order”) against the Applicants pursuant to section 24(1) of the Buildings Ordinance Cap 123 (“BO”), requiring the removal of two unauthorised building works (respectively “UBW1” and “UBW2”) and to reinstate the property pursuant to the approved plans.

7.  On 10 October 2011, the Applicants lodged a notice of appeal (“2011 Appeal”) against the 2011 Order.

B.2  2013 Order

8.  On 13 May 2013, and prior to the determination of the appeal against the 2011 Order, the BA issued another building order (“2013 Order”) in substitution of the 2011 Order, pursuant to section 24(1) of the BO and section 46 of the Interpretation and General Clauses Ordinance Cap 1 (“IGCO”). The 2013 Order concerned the same unauthorised building works as the 2011 Order, namely UBW1 and UBW2.

9.  On 31 May 2013, the Applicants lodged a notice of appeal (“2013 Appeal”) against the 2013 Order.

B.3  First BAT Appeals

10.  On 5 December 2016, a full hearing was held to deal with the 2011 Appeal and 2013 Appeal cases together.

11.  On 13 April 2017, the BAT allowed the appeal against UBW1, but dismissed the appeal in relation to UBW2 (“2017 Determination”).

12.  On 14 July 2017, the Applicants commenced the 2017 Judicial Review (“2017 JR”) to challenge the decision of the then tribunal on the basis that it had no jurisdiction to make a costs order in relation to the 2011 Appeal. Relevantly for present purposes, no challenge was made to the BAT’s decision on UBW2.

13.  Despite obtaining leave to commence judicial review and filing a Form 86A, the Applicants did not proceed further with the 2017 JR.

14.  By letter dated 4 December 2017, the BA requested the Applicants to comply with the 2013 Order to remove UBW2 and to complete reinstatement works. The Applicants did not respond and failed to comply with the BA’s request.

B.4  2021 Order

15.  On 20 July 2021, the BA issued a third order (“2021 Order”), this time in substitution of the 2013 Order. This was made express on the face of the 2021 Order. The 2021 Order also expressly restated the time within which the necessary works were to be commenced and completed.

16.  The 2021 Order was only in relation to the removal of UBW2 and reinstatement of the affected parts. It was apparently issued on the basis that the BA thought it would be preferable, and that it would avoid any unnecessary confusion or argument upon steps of enforcement or criminal prosecution, for the building order to refer only to UBW2 (and not UBW1).

B.5  2021 Appeal

17.  In response, on 3 August 2021 the Applicants lodged a notice of appeal (“2021 Appeal”) against the 2021 Order.

18.  On 23 December 2022, the Applicants served upon the BA an Appellants’ Request for Further and Better Particulars of the Outline of the Respondent’s Representation (“FBP Request”).

19.  By letter dated 19 April 2023, the (differently constituted) BAT directed of its own volition that a preliminary hearing (“Preliminary Hearing”) be held to determine (1) the FBP Request, (2) whether the BAT was functus officio in light of the 2017 Determination, and (3) whether the issuance of the 2021 Order amounted to abuse of court process or constituted res judicata.

20.  For the purposes of the Preliminary Hearing, the BAT directed affirmation evidence from the Applicants and written submissions from the parties. After the Preliminary Hearing was held on 12 September 2023, the BAT directed affirmation evidence from the BA and further written submissions from the parties.

21.  On 28 February 2024, the BAT decided that the 2021 Appeal should proceeded to a full hearing in relation to two issues in particular, being (1) whether the BAT was functus officio, and (2) whether the issuance of the 2021 Order constituted res judicata or amounted to abuse of process. The FBP Request was refused. The BAT also reserved its decision on the costs of the 2021 Appeal, and costs of the Preliminary Hearing itself, until the full hearing.

B.6  2024 Determination

22.  The full hearing for the 2021 Appeal was held on 2 September 2024. At the hearing, it was not disputed that UBW2 was indeed unauthorised building work. Rather, the Applicants only pursued the grounds and arguments that (1) the BAT was functus officio as a result of the 2017 Determination, so that the BAT did not have jurisdiction to rehear the matter in relation to UBW2, and (2) the 2021 Order constituted res judicata or amounts to abuse of process.

23.  By way of the 2024 Determination, the BAT dismissed the 2021 Appeal. In short, the BAT concluded that it was not functus officio, and though it considered the 2021 Order to be unnecessary, the validity of the 2021 Order was upheld.

24.  On the question of functus officio, the BAT accepted at §§11-13 that:

(1)  When an appellant lodges a notice of appeal pursuant to section 47 of the BO the tribunal panel hears that specific notice of appeal.

(2)  Alternatively speaking, a fresh building order may attract a fresh notice of appeal.

(3)  When a fresh notice of appeal is lodged, a fresh tribunal is constituted.

(4)  The BAT had not made any determination on the 2021 Appeal, and so it was not functus officio.

25.  On the questions of res judicata and abuse of process, the BAT held at §§21-30 that:

(1)  There is no dispute that UBW2 existed at the date of issue of the 2021 Order.

(2)  That meant there was a continuing breach of section 14 of the BO.

(3)  Issuing the 2021 Order did not amount to re-litigation of a previous cause of action.

(4)  There was no previous judicial determination on the 2021 Order.

(5)  The BA has undisputed power under section 24 of the BO and section 46 of the IGCO to issue building orders.

(6)  The issue of the 2021 Order by itself does not constitute a legal proceeding, and it is not subject to the doctrine of principles of res judicata, cause of action estoppel, issue or estoppel and Henderson v Henderson type abuse.

(7)  No injustice is caused to the Applicants, who had exercised the right to issue the 2021 Appeal and who had the fair opportunity to argue on the issues raised by it.

(8)  If there were new circumstances in relation to UBW2, the Applicant would be entitled to raise new grounds of appeal based on those new circumstances.

(9)  But the Applicant should not be allowed to raise grounds of appeal (that have been determined or should have been raised in previous legal proceedings, in the absence of any new circumstances).

(10)  Any oppression to the Applicants was in fact attributed to their own continuing breach of section 14 of the BO.

(11)  The Applicant did not challenge the 2017 Determination on its merit, and had not applied for stay of enforcement of the 2013 Order.

(12)  There was no abuse of process, nor prejudice caused to the Applicants, nor contravention of public interest, by the issue of the 2021 Order.

26.  The BAT’s ‘Conclusion and Comments’ were expressed as follows:

36.  The Tribunal is not functus officio.

37.  The existence of the [UBW2] at the Subject Premises constitutes a continuing breach of section 14 BO. The issuance of the 2021 Order does not constitute res judicata or abuse of process. BA is entitled to exercise its statutory powers to issue it.

38.  Having said the above, the Tribunal considers that the issuance of the 2021 Order to supersede the 2013 Order was unnecessary. The Tribunal considers the worry of BA (that the judge in the intended criminal proceedings might be confused by the fact that there were 2 alleged unauthorised building works under the 2013 Order but the 2017 determination dismissed the appeal regarding [UBW2] but allowed the appeal regarding another piece of alleged unauthorised building work) unjustified. Moreover, the Tribunal observed that the 2017 Determination was issued in April 2017. Therefore, the Respondent should have reasonable time to enforce the 2013 Order well before the Covid-19 pandemic.

27.  It seems to me to be obvious that the ‘Conclusion’ was in §§36 and 37, and the ‘Comments’ were in §38.

28.  As to costs, the BAT held at §§39-41 that:

(1)  In view of the appeal been dismissed, costs should follow the event.

(2)  The BA should be entitled to the costs of the appeal, including all costs reserved.

(3)  During the Preliminary Hearing, the FBP Request was decided to be unjustified and unnecessary and was dismissed. Therefore, to avoid any doubt, the BA should be entitled to the intellectual costs of the application relating to the FBP Request.

(4)  The Preliminary Hearing formed part of the appeal.

(5)  Therefore, to avoid any doubt, the BA should be entitled to the costs of the Preliminary Hearing.

29.  The BAT also made a costs order nisi for all costs in the 2021 Appeal in favour of the BA in the following terms:

43.  There will be a cost order nisi that the costs of the appeal including all costs reserved be to the Respondent, to be taxed if not agreed. If any party wishes to have a different order for costs, written submissions should be served on the other party and lodged with the Secretariat of the Appeal Tribunal within 14 days of the handing down of this determination, with liberty on the other party to lodge written submission within 14 days thereafter. In the absence of such written submissions, the order nisi will stand absolute at the expiry of the time limited for these submissions.

30.  Neither party applied to vary the order nisi, which became absolute on 5 December 2024, i.e. the Costs Order.

B.7  Assessed Costs Order

31.  By letter dated 31 December 2024, the Department of Justice (“DOJ”) acting on behalf of the BA provided its statement of costs to the Applicants, by way of S.K Wong & Co (“SKW”), solicitors for the Applicants. The statement sought costs in the sum of HK$294,071.

32.  The DOJ requested a response from the Applicants within 21 days, failing which the BA would submit the statement of costs to the BAT for determination without further notice. The Applicants did not respond.

33.  By letter dated 27 January2025, the DOJ submitted the statement of costs to the BAT, also copied to SKW.

34.  On 3 March 2025, the BAT ordered that the Applicants pay the BA the costs of the 2021 Appeal assessed at HK$294,071, i.e. the Assessed Costs Order.

35.  On the same day, SKW wrote to the BAT to request that the 2024 Determination be stayed pending the outcome of these judicial review proceedings, and the Assessed Costs Order be set aside on the basis that the BAT “without giving directions to the parties for the commencement of a formal taxation proceedings pursuant to Paragraph 43 of the Order [proceeded] to tax the Respondent’s statement of costs (without a full taxation bill) and in the absence of the Appellants’ objection was totally unreasonable”.

36.  By letter dated 4 March 2025, SKW further wrote to the DOJ to request withholding any enforcement of the Assessed Costs.

37.  By letter dated 8 April 2025, the BAT wrote to SKW and provided the following explanation:

The Respondent’s Statement of Costs dated 30 December 2024 was sent to the Appellants’ legal representative on 31 December 2024. The Appellant had been given reasonable time and opportunity to respond on the issue of costs but no reply was received by the Respondent as at 27 January2025. Therefore, upon request of the Respondent, the Tribunal assessed the costs of the Respondent accordingly. In view that the Appellants had a history of not taking any further steps for years even after leave to judicial review was granted under HCAL410/2017, the Tribunal considered it prudent not to order stay of execution of the Costs Order dated 3 March 2025.

38.  As a result of the above chronology of background matters, it may be helpful to keep in mind that:

(1)  The Applicants have been subject to an order to demolish UBW2 since the 2011 Order.

(2)  The Applicants have apparently taken no steps to comply since 2011.

(3)  Following the 2013 Order, which was substituted in place of the 2011 Order, the BAT upheld the order in relation to UBW2.

(4)  The BAT did so in the 2017 Determination.

(5)  The Applicants’ proposed 2017 JR challenge was not pursued.

(6)  The Applicants do not suggest they now wish to challenge the 2013 Order in relation to UBW2, nor could they be permitted to do so in any event.

(7)  The 2021 Order was issued expressly in substitution of the 2013 Order, and focused solely on UBW2.

(8)  Indeed, the Applicants accept that the 2021 Order is the same as the previous order in relation to UBW2.

(9)  Still, the Applicants apparently took no steps to comply with the requirement to remove UBW2.

(10)  Instead, the Applicants launched the 2021 Appeal, but not really so as to challenge the requirement to remove UBW2.

(11)  The 2021 Appeal was pursued solely on the bases that (a) the BAT was functus officio by virtue of the 2017 Determination (which the Applicants had simply ignored), and (b) the 2021 Order was an abuse of process (essentially because it materially replicated the 2013 Order, the continuing operative effects of which the Applicants had also simply ignored).

39.  On the question of costs, the Applicants did not challenge the order nisi, and they failed to respond to or engage at all in the process of the quantification of costs.

40.  Against that background, it does not take too much of a cynic to think that the Applicants have brought these judicial review proceedings as part of a continuing attempt simply to delay the necessary removal of UBW2.

C.  Relevant Statutory Provisions

41.  Insofar as is material for present purposes, the relevant parts of the provisions of the BO are as follows:

24.  Order for demolition, removal, or alteration of building, building works (other than minor works commenced under simplified requirements) or street works

(1)  Where any building has been erected, or where any building works or street works have been or are being carried out in contravention of any of the provisions of this Ordinance the Building Authority may by order in writing require—

(a)  the demolition of the building, building works, or street works; or

(b)  [Repealed]

(c)  such alteration of the building, building works or street works as may be necessary to cause the same to comply with the provisions of this Ordinance, or otherwise to put an end to the contraventions thereof,

and in every case specify the time within which the demolition, alteration or work required by such order shall be commenced and the time within which the same shall be completed.

(2C)  The building Authority may, upon the service of an order under subsection (2)(a), (b) or (c)(iii) or (2A), cause the order to be registered in the Land Registry against—

(a)  if the order has been served on the owner of any land or premises in accordance with subsection (2)(a) or (c)(iii), the land or premises;

(b)  if the order has been served on the frontagers in accordance with subsection (2)(b), the premises of the frontagers to which the street works relate; or

(c)  if the order has been served on the owner of other land or premises in accordance with subsection (2A), that other land or premises.

(3)  If an order made under subsection (1) is not complied with, the Building Authority may demolish or alter or caused to be demolished or altered such building, building works or street works.

40.  Offences

(1BA)  Any person who, without reasonable excuse, fails to comply with an order served on him under section 24(1) shall be guilty of an offence and shall be liable on conviction—

(a)  to a fine of $200,000 and to imprisonment for 1 year; and

(b)  to a fine of $20,000 for each day during which it is proved to the satisfaction of the court that the offence has continued.

44.  Appeals from decisions of Building Authority

(1)  A person aggrieved by any decision made by the Building Authority in the exercise of a discretion conferred on him under this Ordinance may, except where this Ordinance provides otherwise, appeal from that decision in accordance with this Part and regulations made under section 38(1B).

(2)  If—

(a)  a decision appealed from under subsection (1) requires the carrying out of works; and

(b)  a notice of appeal as regards that decision is given under section 47,

subject to subsection (3), with effect from the day the notice is so given, the Building Authority shall neither enforce nor permit the enforcement of such decision, until the appeal is disposed of or unless it is withdrawn or abandoned.

(3)  The Building Authority may enforce a decision referred to in subsection (2) or permit its enforcement where he is of the opinion that an emergency exists and that having regard to that emergency such enforcement is necessary and serves a notice on the appellant stating that due to an emergency the enforcement of the decision and the carrying out of works or other action is necessary.

(4)  The decision of the Building Authority that an emergency exists for the purposes of subsection (3) shall not be subject to an appeal under section 44.

47.  Notice of appeal

A person exercising the right of appeal conferred by section 44 shall give notice of appeal in the prescribed manner, appealing from the relevant decision, to the Secretary to the Appeal Tribunal, to be received by him not later than 21 days after the date notification of the decision is sent to him.

49.  Preliminary Hearing

(1)  The Appeal Tribunal may, in any case where it considers it appropriate to do so, hold a Preliminary Hearing to determine whether good cause has been shown for holding a full hearing.

(2)  If the Appeal Tribunal determines that good cause has not been shown for holding a full hearing it shall make an order dismissing the appeal but shall otherwise hold a full hearing.

50.  Determination of appeal

(1)  The following shall apply in relation to the hearing and determination of an appeal or a Preliminary Hearing held under section 49—

(a)  every question shall be determined by the opinion of the majority of the members of the Appeal Tribunal;

(b)  where there is an equality of votes, the Chairman shall have a casting vote;

(c)  the Appeal Tribunal may—

(i)  receive and consider any oral, documentary or other evidence, (including any written statement), whether on oath, affirmation or otherwise, and whether or not it would be admissible in evidence in proceedings in a court;

(ii)  by summons issued in the prescribed manner, require any person to attend before it at any hearing to give evidence or to produce any document;

(iii)  administer oaths or affirmations;

(iv)  examine on oath, affirmation or otherwise any person attending before it and require such person to answer any question put by or with the consent of the Tribunal.

(2)  In determining an appeal, the Appeal Tribunal may make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such other order as it thinks fit.

51.  Power to award costs

(1)  Upon making an order under section 49(2) or 50(2) the Appeal Tribunal may make such order as to costs as it thinks fit.

(2)  Where there is more than one appellant, the Appeal Tribunal may apportion among them, the costs (if any) ordered against them.

(3)  The Appeal Tribunal shall not award any compensation or make an order for any other payment, other than an order for costs referred to in subsection (1).

(4)  Where an order for costs is made against the appellant the amount of the costs may be recovered by the Building Authority and the Building Authority shall cause a copy of the order to be served on the appellant.

(5)  Section 33 (except subsections (1), (2), (3), (5) and (8) thereof) shall apply as regards any such order for costs as if the references therein to a certificate of the Building Authority and costs certified by the Building Authority were references to an order for costs referred to in subsection (1) and the amount of the costs payable under such order, respectively.

(6)  Any costs awarded against the Building Authority under this section shall be paid out of the general revenue.

53D.  Chairman’s power to determine procedure

The Chairman may, as regards a particular hearing, determine the procedure in relation to a matter if provision has not been made in this Part or regulations under section 38(1B) for the procedure in respect thereof.

42.  Section 46 of IGCO provides as follows:

46.  Power to make public instruments and perform acts

Where any Ordinance confers power upon any person to make, grant, issue or approve any proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list, such power shall include power—

(b)  to substitute another proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list for one already made, granted, issued or approved;

43.  As is material for present purposes, these provisions identify the following matters:

(1)  Where building works have been carried out in contravention of the provisions of the BO (including section 14), the BA may by order require the demolition of the unauthorised building works.

(2)  The building order shall specify the time within which the work required by such order shall be commenced and be completed.

(3)  The building order may be registered at the Land Registry against the relevant land or premises.

(4)  If the building order is not complied with, the BA may carry out the necessary works.

(5)  A person who, without reasonable excuse, fails to comply with the building order will be guilty of an offence and upon conviction be liable to (a) a fine of $200,000 and to imprisonment for one year, and (b) a fine of $20,000 each day during which it is proved to the satisfaction of the court that the offence has continued.

(6)  A building order already made may be substituted by another building order.

(7)  A person served with a building order may appeal to the BAT.

(8)  One effect of making an appeal is to prevent the BA (absent an emergency) from enforcing the building order until the appeal is disposed of or withdrawn or abandoned.

(9)  Upon an appeal, the BAT may (amongst other things) make an order confirming the building order.

(10)  The BAT may make such costs orders on the appeal as it thinks fit.

(11)  The Chairman of the BAT may determine the procedure at an appeal, if no express provision is made in the BO or the regulations enacted under it.

44.  In this context, it can also be noted that the BAT is a specialist tribunal. It is trite that the role of the Court exercising its judicial review jurisdiction is supervisory, and the Court does not take over the role of the BAT in the exercise of administrative power conferred on the BAT by statute. The Court will only intervene on public law grounds if it can be shown that the BAT’s decision is unlawful, unfair or irrational.

D.  Grounds of Review

45.  The Applicant put forward four grounds of review, being:

(1)  Ground 1: The BAT erred in law in finding that the BA was entitled to issue the 2021 Order.

(2)  Ground 2: The BAT erred in not finding that the issue of the 2021 Order was Wednesbury unreasonable.

(3)  Ground 3: The BAT erred in law and/or acted Wednesbury unreasonably in ordering that the BA should have the costs of the Preliminary Hearing.

(4)  Ground 4: The BAT erred in law and/or acted Wednesbury unreasonably in making the Assessed Costs Order, without hearing from the Applicants and without any taxation.

46.  Grounds 1 and 2 concern the 2021 Order, namely whether the BA was entitled to issue the 2021 Order and, if so, whether the issue of the 2021 Order was Wednesbury unreasonable.

47.  Grounds 3 and 4 relate to the Costs Order and the Assessed Costs Order.

E.  Ground 1

48.  This ground must be considered against the context that:

(1)  It is not disputed that the BA is empowered under section 24 of the BO to issue a demolition order in respect of UBW2.

(2)  In light of the 2017 Determination, the Applicants are constrained to and do accept that the 2013 Order was rightly issued as regards UBW2.

(3)  It is not disputed that the BA was empowered by section 46 of the IGCO to issue a building order in substitution of the 2013 Order.

49.  The argument advanced for the Applicants, however, is that the statutory power of substitution should not be exercised irrationally and unreasonably, but the outcome of the issue of the 2021 Order identifies the improper exercise of the power.

50.  As originally framed in the AF86, Ground 1 advanced the argument that the BAT erred in applying res judicata from raising any grounds of appeal without any change of circumstances. However, in the submissions made, the Applicants advanced a different argument that, because they would be barred by res judicata, the BA should not have issued the 2021 Order which deprived them of an effective right of appeal.

51.  There is force in Mr Miao’s submission that this substantial shift should preclude the attempt to introduce the new and different argument. However, I can address both arguments. Both require a proper understanding of the background and the 2024 Determination, which I have set out above.

52.  Ground 1 as advanced in the AF86 is premised upon a wrong understanding of the 2024 Determination, because the (1) BAT did not hold that the Applicants were barred by res judicata or Henderson v Henderson abuse of process from raising grounds of appeal without change of circumstances, (2) the BAT did not bar the Applicants from raising grounds of appeal on the basis of res judicata or abuse of process, (3) rather, it was the Applicants who decided not to mount any substantive challenge on the 2017 Determination, and the BAT relied on that fact to conclude the 2017 Determination was final and conclusive.

53.  I also agree with Mr Miao that the 2021 Order itself was not a legal proceeding, and that it is incapable of attracting the doctrines of res judicata or Henderson v Henderson abuse. The 2021 Order only required the recipient to remove the UBW2 and to reinstate according to approved plans, and it was not submitted to any adjudicating body or give rise to adversarial proceedings. There was obviously no attempted “re-litigation” by the issue of the 2021 Order in substitution of the 2013 Order.

54.  Nor were there any contradictory findings made by the BAT leading to the suggested “absurd conclusion” that, even though the Applicants were entitled to appeal against the 2021 Order, they were barred from raising any grounds of appeal unless there was any change of circumstances.

55.  As to the argument advanced in submissions, Mr Chan submitted that the Applicants’ statutory right to appeal under section 44 of the BO would be unreasonably deprived of or significantly restricted due to the operation of res judicata. It was suggested that the “problem” was that since the substantive merit of UBW2 had been finally and conclusively determined in the 2017 Determination, the Applicants were barred by the operation of res judicata and issue estoppel or Henderson v Henderson abuse from raising any grounds of appeal. The ability to have raised new grounds of appeal in any new circumstance was irrelevant because there were no such new circumstances, and it was not the BA’s case before the BAT that the 2021 Order was issued because of any new circumstances.

56.  Mr Chan further argued that the wording of section 40(1BA) of the BO concerns an order served in respect of any UBW, rather than the subject matter of the order (i.e. the UBW) itself. Therefore, the possibility arises where the BA may issue more than one building order in relation to a continuing breach, the result being (1) potentially multiple demolition orders registered under the Land Registry, and (2) that the owner may be prosecuted multiple times, potentially leading to multiple fines and/or periods of imprisonment. Mr Chan submitted that such an analysis entitling the BA to issue more than one building order in respect of the same unauthorised building works is irrational or unreasonable.

57.  With respect there is absolutely nothing in this argument on the facts. Indeed, with respect, the whole argument is artificial and contrived. There was no “problem” as suggested. The very idea that the Applicants are somehow prejudiced in dealing with the merits of the requirement to demolish UBW2 because those merits were conclusively determined by the 2017 Determination needs only to be stated to be seen to be nonsensical.

58.  Further, the BA never tried to issue multiple orders in respect of the same UBW. Rather, the 2021 Order was always intended to replace and substitute – and on its face stated that it was issued in substitution for – the 2013 Order. Rather than manufacturing an appeal with a wholly artificial construct, the Applicants should simply have complied with the 2021 Order.

59.  Indeed, in the particular circumstances, the Applicants could only have benefited from the issue of the 2021 Order, in the circumstances where they had failed to comply with the 2013 Order and had failed to comply with the upholding of the 2013 Order by the 2017 Determination. The issue of the 2021 Order ‘restarted the clock’ as to the time for compliance with the requirement to demolish UBW2. Upon any conviction for failing, without reasonable excuse, to have demolished UBW2, no daily fine could be imposed for a period of non-compliance going back beyond 20 July 2021 – whereas previously, the daily fine might have been imposed for a period of non-compliance going back as far as 2013 or 2017.

60.  Indeed, there is room for thinking that the Applicants ought to have been pleased that the 2021 Order had been issued expressly in substitution for the 2013 Order. Instead, the reaction to it seems to have identified their complete intransigence.

61.  In any event, the Applicants were not deprived of the right to appeal, though those rights were properly limited by res judicata and abuse of process principles and raising challenges in relation to UBW2 in the absence of new circumstances – and where the Applicants do not assert any change in circumstances. That a person served with the building order may have the right to appeal obviously does not mean of itself that the person necessarily has any valid ground of appeal, or has any likely successful appeal. Here, for example, the Applicants themselves do not suggest that they could have raised successful challenges in relation to UBW2.

62.  Lastly, it seems to me that Mr Chan likely elided his submissions on Grounds 1 and 2 in implicit recognition of the fact that it was actually accepted that the BA was entitled – i.e. was empowered – to issue the 2021 Order under section 24 of the BO and section 46 of the IGCO, though it was argued that the power had been exercised Wednesbury unreasonably or irrationally in the circumstances. That is essentially the point also raised under Ground 2, to which I can turn.

63.  However, Ground 1 has no substantive merit.

F.  Ground 2

64.  Ground 2 is based upon what the BAT said in §38 of the 2024 Determination (see above), and in particular the BAT’s comment that the issue of the 2021 Order was “unnecessary” because the BA’s worry was “unjustified”.

65.  Mr Chan submitted that, although the BAT did not expressly state that the BA exercised its discretion in a “weird manner”, in the absence of any reasonable explanation or justification, and in light of the “indisputable fact” that the issue of the 2021 Order would significantly restrict the Applicants’ rights to appeal, there was “no difference” from finding that the BA exercised the discretion in a weird manner which was Wednesbury unreasonable.

66.  With respect, this submission is based upon a misunderstanding:

(1)  First, the starting point is that the BAT held that the BA was entitled to issue the 2021 Order. Plainly, as a matter of statutory powers, that is correct.

(2)  Secondly, the argument is based upon the BAT’s additional comment, rather than any part of its actual reasoning.

(3)  Thirdly, whilst the BAT might have thought that the issue of the 2021 Order was strictly unnecessary, that does not affect its finding that the issue of the 2021 Order was nevertheless an order which the BA was entitled to make.

(4)  Fourthly, there was no finding impugning the 2021 Order for lack of necessity. Indeed, the BAT referred to the continuing existence of UBW2 as a matter entitling or justifying the BA to issue the 2021 Order.

(5)  Fifthly, that was also held by the BAT not to constitute any abuse of process, or be contrary to the public interest or upon balancing the competing interests of the parties.

(6)  Sixthly, there was no actual restriction of the Applicants’ right to appeal – though the exercise of that right required the artificiality that I have mentioned.

(7)  Finally, it seems to me that the BAT’s comment essentially amounted to gentle chiding that the BA could perhaps have enforced the 2013 Order/2017 Determination some time beforehand, instead of waiting and then later issuing the 2021 Order.

67.  Also, the BAT was entirely transparent that it had only issued the 2021 Order for the purpose of the intended prosecution action and to err on the safe side. With the undoubted power available to it, the BA was plainly not acting irrationally when acting out of an abundance of caution with no possible prejudice to the Applicants. As I have pointed out above, the issue of the 2021 Order could only have inured to the benefit of the Applicants, as it restarted the clock for the period of the potential daily fine for non-compliance. That is far from a matter which would give the Applicants the ability to clear the high hurdle of establishing irrationality.

68.  Ground 2 has no substantive merit.

G.  Ground 3

69.  Ground 3 challenges the Costs Order awarding the BA all of the costs, including those of the Preliminary Hearing.

70.  Mr Chan submitted that the Applicants should be entitled to the costs of the Preliminary Hearing as they had successfully showed good cause at the Preliminary Hearing. He submitted that the Tribunal erred in law in finding that the Applicants were liable to pay the costs of the Preliminary Hearing. He further pointed to the fact that the BAT of its own motion asked for the Preliminary Hearing, and required the filing of two rounds of evidence and submissions. Hence, Mr Chan submitted, when good cause for a full hearing had been shown, there was no proper basis or justification to find the Applicants liable for the costs of the BA in the Preliminary Hearing.

71.  However, this ground has significant problems for the Applicants:

(1)  First, it was the Applicants’ own position before the BAT – expressed through Counsel, indeed Mr Chan himself – that the costs of the Primary Hearing should follow the outcome of the full hearing.

(2)  Secondly, it is trite that the power to award costs triggers the exercise of a wide discretion.

(3)  Thirdly, the Primary Hearing included dealing with the Applicants’ FBP Request, which was dismissed as being “wholly unjustified and unnecessary”.

(4)  Fourthly, where the BAT itself sought assistance on the functus officio and abuse of process points at a preliminary hearing, which it later thought should be dealt with at a full hearing, it is at least difficult to say that either party “won” at the Preliminary Hearing on those issues. I reject the suggestion that the Applicants successfully “showed good cause” in the Preliminary Hearing.

(5)  Fifthly, logically the costs of dealing with those two issues at both the Primary Hearing and the full hearing were all part of the costs of the appeal on those matters and relevant to the ultimate event.

(6)  Sixthly, on that ultimate event, the Applicants clearly lost. The BAT rejected the Applicants’ case on both of its arguments that the BAT was functus officio and that the 2021 Order was an abuse of process.

72.  There is no proper basis upon which this Court exercising its judicial review jurisdiction could interfere with the BAT’s Costs Order.

73.  Ground 3 has no substantive merit.

H.  Ground 4

74.  Ground 4 is directed at the Assessed Costs Order.

75.  The Applicants’ complaints are essentially threefold, in that: (1) the taxation of costs did not follow any specified procedure; (2) no reasons or explanation were given for the BAT’s assessment of costs, and (3) the Applicants were not afforded the opportunity to make representations as to taxation of costs.

76.  Mr Chan submitted that, even though the BO did not provide how taxation of costs should be carried out, both parties were legally represented and ought to have been familiar with the taxation process provided under Rules of the High Court Order 62 rule 21. Therefore, the Applicants “rightly expected” that the BA would provide a proper taxation bill, rather than the statement of costs sent to SKW and the BAT.

77.  However, first it can be noted that section 51 of the BA provides for a broad discretion as to costs, where the BAT can make such order as to costs as it thinks fit. There are no provisions, whether within that section or any other section of the BO or the underlying appeals rules, which required the BAT to adopt any specific procedure for taxation of costs. The Court taxation procedure under Order 62 is simply not incorporated, whether expressly or implicitly or as a matter of practice. In each case, the discretion is given to the BAT as to how to approach questions of costs. It is open to the Chairman to devise the appropriate procedure in dealing with costs, and the quantum of costs.

78.  Further, I note the timeline which ultimately led to the Assessed Costs Order:

(1)  The DOJ’s letter containing the BA’s statement of costs was issued to the Applicants on 31 December 2024.

(2)  The letter specifically asked the Applicants “please revert to us whether the sum is agreeable within the next 21 days, failing which we shall submit the statement of costs to Tribunal for determination without further notice”.

(3)  The Applicants did not respond within those 21 days.

(4)  Nor did the Applicants put forward any other preferred taxation procedure.

(5)  In fact, despite now saying they did not agree to the statement of costs, the Applicants completely failed to respond.

(6)  The Applicants were copied in to the BA’s letter to the BAT seeking costs in the sum specified in the statement of costs.

(7)  The Applicants could only have understood the BA was asking the BAT to assess the costs by reference to the statement of costs attached.

(8)  Again, the Applicants failed to give any response at all.

79.  In these circumstances, I do not think the BAT erred in law or acted unreasonably in making the Assessed Costs Order in the terms of the BA’s statement of costs, particularly where the Applicants had neither suggested an alternative method of taxation or assessment, nor made any formal objection to the statement of costs put forward by the BA. Nor is there any submission even now that the costs assessed were obviously unreasonable or outside the wide discretion which the BAT had.

80.  It is correct that section 52 of the BO provides for the parties to an appeal having rights to make representations, and the Applicants complain that they were deprived of those rights prior to the making of the Assessed Costs Order. However, the BA’s letter to the Applicants was plainly seeking their representations, and the BA’s letter to the BAT (copied to the Applicants) was also for all practical purposes the extension of a similar invitation, or provided the Applicants the opportunity to make representations. That first letter was dated 31 December 2024, and the second letter was dated 27 January 2025. The Assessed Costs Order was made approximately five weeks later on 3 March 2025. At all relevant times, the Applicants were provided with opportunities to voice their objections, within clear timeframes. They failed to do so.

81.  Mr Chan’s further reliance on the fact that the Applicants were granted leave to apply for judicial review in respect of the 2024 Costs Order is, with respect, neither here nor there. The Applicants did not inform the BAT that they were not replying because they had begun an application for judicial review, nor had they informed the BAT of their (alleged) position that the statement of costs would be meaningless if the judicial review proceedings are successful.

82.  As to the Applicants’ objections to the statement of costs on the basis that it was not a full taxation bill, the Applicant nevertheless failed to raise any objections to the BA’s costs. In other words, that is an objection to form rather than substance.

83.  As Mr Miao pointed out, it was not until the BAT made the Assessed Costs Order that the Applicants finally responded in any way and then sought a stay. Indeed, the comments made by the BAT in the letter to SKW dated 8 April 2025 (see above) seem to me to be entirely apposite.

84.  Ground 4 has no substantive merit.

I.  Result

85.  In the circumstances, the Applicants’ application for judicial review is dismissed.

86.  I see no reason why costs should not follow the event, and I order the Applicants to pay the BA’s costs, forthwith after the following summary assessment procedure set out.

87.  I will deal with the quantum of costs payable on written submissions both as to the standard of costs payable (i.e. party and party or higher basis) and as to be summarily assessed. Therefore I direct the BA to provide a Statement of Costs (including any application for costs to be payable on a higher basis than the party and party basis) within 14 days. Thereafter, the Applicant shall have 14 days within which to provide any List of Objections (and any response to any application for costs to be payable on a higher basis than the party and party basis). In addition to the Statement of Costs and the List of Objections, any written submissions shall be limited to 5 pages per party. After receipt of those documents, I will proceed to the assessment.