INTERNATIONAL TRADER LTD v. APPEAL TRIBUNAL (BUILDINGS)

CACV 13/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 13 OF 2008

(ON APPEAL FROM HCAL NO. 38 OF 2007)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Reyes J given on 11 December 2008.  The matter before the judge was an application for judicial review of a determination of the Appeal Tribunal (Buildings) given on 23 February 2007 whereby it rejected appeals from decisions of the Building Authority that had disapproved general building plans which have been referred to as the May 2005 and July 2005 plans, submitted in respect of the same site.

2.  The judge had refused the application for judicial review and at the conclusion of the hearing of this appeal judgment was reserved which we now give.

The issue

3.  The real issue in this case may be summarised quite shortly, it is whether when part of a site is zoned Residential (Group C) 7 (“RC7”) and thus must not have a plot ratio exceeding 5 and the other part of the site is zoned Residential (Group A) (“RA”) in the Outline Zoning Plan (“OZP”) and thus there is no plot ratio restriction other than that imposed by the Building (Planning) Regulations, Cap. 123, hence effectively a plot ratio of 9, a single building may be erected with a plot ratio of 7.56 on the entire site.

4.  Previously it had been considered possible to combine the plot ratios of different sites to achieve what, in effect, was a composite plot ratio for the whole site which would be more than the lower plot ratio but less than the higher.  Although such an approach has a superficial attraction, the judge had decided in an earlier decision that that approach was flawed for the simple reason that the plot of ratio of any site could not be increased.

The history of the proceedings

5.  The applicant has a substantial site in the mid-levels in the area of and bordered by Seymour Road, Castle Road and Castle Steps which it wishes to redevelop.  The greater part of the site is zoned RA.  The relevant OZP, No. S/H11/13, to which this court’s attention was drawn, contains no restriction on the plot ratio for that part of the site.  There was no dispute, however, that the plot ratio was governed by Regulation 21(1) of the First Schedule of the Building (Planning) Regulations and can be taken to be 9.

6.  In contrast, however, there were a number of sections in the areas of Castle Steps, Castle Lane, Prince’s Terrace and other areas where there was no direct vehicular access that were designated RC7.  In respect of those it was provided under the heading Remarks:

“(1)  Except as otherwise provided herein, on land designated “Residential (Group C) 7”, no new development or addition, alterations and/or modification to the existing building(s) shall result in the total plot ratio for the building(s) upon development or redevelopment being in excess of 5.0 or the plot ratio of the existing building(s) whichever is the greater, and a building height being in excess of 12 storeys all the height of the existing building(s) whichever is the greater.”

7.  However it was also provided that:

“(3)  Relaxation of the plot ratio and building height restrictions in paragraph (1), based on the merits of individual development or redevelopment proposals may be considered by the Town Planning Board on application under section 16 of the Town Planning Ordinance.”

8.  The explanation given in the Explanatory Statement under paragraph 7.4.4 was that those areas had no direct vehicular access and:

“Hence, loading and unloading activities, including those related to refuse collection and emergency can only take place at a rather distant location.  As such, more intensive developments on the site would bring about inconvenience to more people.”

9.  Particular reference was made in paragraph 7.4.6 to the problems of accessibility in relation to fire services.  Again, however, reference was also made in paragraph 7.4.7 to the relaxation that was possible:

“Notwithstanding the above restrictions, comprehensive development/redevelopment of the “R(C) 7” sub-area can still be pursued with amalgamation of sites.  Upon submission of comprehensive development/redevelopment proposals, favourable consideration may be given to relaxation of the development restrictions and each proposal will be considered on its own merits.”

10.  Originally the applicant had submitted a proposal for development of the entire site that would have resulted in using a plot ratio of 9.  That had been rejected.  In May and July 2005 the applicant had submitted two proposals both of which would have resulted in the use of a plot ratio of 7.56 taking the site as a whole, that is the RA and the RC7 portions combined.  The Building Authority rejected both these plans on the basis that the plot ratio of 7.56 of the proposed building exceeded the plot ratio restriction of 5 on the RC7 part.  On appeal, the Tribunal upheld the Building Authority's approach.  It is that decision which is sought to be challenged on this application.

11.  The appellant’s argument in this court appears to have been similar to that in the court below.  It was said that the refusal of the plans which would have resulted in an overall plot ratio of 7.56 results in a reduction of the permitted plot ratio on the greater part of the site from 9 to 5.  In that respect it is said that there was, in effect, a blight on the RA portion and the applicant suffered an unnecessary and unwarranted deprivation of its right to develop that part of the site to its full potential.

12.  It was said that the approach of not permitting the full development ran counter to and frustrated the clear planning intention which was simply to impose on every foot of land designated RC7 the development value of not exceeding a plot ratio of 5 and not to affect the development intensity of land designated RA, whether or not land designated RC7 was to be developed on its own or together with the RA land.

13.  It was also said that the restriction on plot ratio in respect of the RC7 land was imposed because if that land were developed on its own it would have no direct vehicular access for services and fire fighting equipment.  It was said that the development proposed by the applicant would not be subject to those problems because the site was being developed as a composite whole and there would be access through the RA part of the site.

14.  In my view, the Building Authority and the Tribunal were correct in their interpretation of the OZP.  If the site is to be developed as a whole, there would only be one development and if there is a plot ratio restriction on part of that site that restriction must apply in respect of that part.

15.  Whereas, it is in concept perfectly rational to argue that if a site is developed as a composite site, vehicular access and access by the fire services and equipment would be effected for the whole of the site and that there would be no reason to suppose that the part of the site which borders upon Castle Steps would be inaccessible, that is a consideration which needs specific consideration by those charged with responsibility for such matters.

16.  Specifically, it appears to me that the planning intention is that represented by what was stated under paragraph (3) of the Remarks and paragraph 7.4.7 of the Explanatory Note.  As the judge pointed out, the applicant’s correct course was to seek a relaxation of the restriction in respect of the RC7 portion from the Town Planning Board.  The Town Planning Board would be in a position to judge the suitability of the development and, specifically, whether the development of the site as a whole would overcome the accessibility problems for part of that site.  It would appear that, following other proceedings, the applicant has succeeded in obtaining such a relaxation although the matter is still subject to an appeal.

17.  The suggestion that the RA part of the site has suffered a detriment is not something that the applicant can lay at the door of the Building Authority or the Tribunal.  It was the Applicant’s choice to seek to develop that portion together with the adjacent RC7 portion.  In order to achieve a plot ratio as low as 7.56 the applicant had to include the area of the RC7 portion into the calculation.  If the RA portion alone were considered the plot ratio would exceed 9 by quite a wide margin.  It is therefore not possible for the applicant to present its case other than that there is one building on one site and it is on that basis that the calculation of plot ratio must be made.  If the resultant figure is higher than permitted on one area of the site the applicant’s only course is to seek an exemption.

18.  In summary, I consider that the judge’s reasons and conclusions were correct and I would dismiss this appeal with an order nisi of costs in favour of the respondent.

Hon Le Pichon JA:

19.  I agree.

Hon Lam J:

20.  I agree.