Re SUPER MATE LTD.

MP No. 200 of 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

____________

____________

____________

_______________

J U D G M E N T

_______________

1. This is an application for Judicial Review. The Applicant is the owner of land in Western District known as 6-8 U-Lam Terrace.

2. It is their wish to redevelop the site. In February 1993 plans for a 27 storey tower block were submitted to the Respondent. These were refused on the 21st April 1993. The basis of the Respondent's refusal was alleged non compliance of the plans with the requirements contained in Section 16(1)(g) of the Buildings Ordinance Cap. 123.

3. An appeal against this refusal was lodged on the 26th April. On the 27th October a representative of the Respondent wrote to the Clerk of the Appeal Tribunal in these terms :-

"Buildings Department

27 October 1993

Clerk to Appeal Tribunal,

Appeal Tribunal (Buildings),

20/F., Murray Building,

Garden Road, Hong Kong.

Dear Sir,

In response to your letter dated 21 October 1993 recording the Tribunal's directions made at its preliminary meeting on 20 October 1993. I would advise that having duly reconsidered my position in this appeal with reference to the recent Tribunal's determination in the 11-13 Sands Street case, I shall not contest the subject appeal in respect of my refusal to approve the plans for a 27-storey building at the subject site under section 16(1)(g) of the Buildings Ordinance.

I would however reserve my right to check the plans further for compliance of other provisions of the Buildings Ordinance and Regulations when the plans are resubmitted for my consideration.

c.c. Crown Counsel (Mr. N. Cooney)

Mr. Richard Cheung,

Prudential Surveyors International Ltd.,

3101-3105 Dah Sing Financial Centre,

108, Gloucester Rd., H.K.

CBS/HK1"

4. On the same day Mr. Cheung, an Authorised Person wrote to the Respondent on behalf of the Applicants.

"PRUDENTIAL, SURVEYORS INTERNATIONAL LTD.

3101-3105 Dah Sing Financial Centre, 108 Gloucester Road,

Hong Kong. Tel: 507 8333 Fax: 598 6576

27 October 1993

Our Ref : BS/079/93/A

Buildings Department

Murray Building

Garden Road

Hong Kong

Dear Sir/Madam,

Re: 6-8 U Lam Terrace. Hong Kong

In view of the fact that your office decides not to invoke Section 16(1)(g) to refuse approval of general building plans for a 27-storey building at the captioned. We take pleasure to re-submit seven sets of the relevant general building plans for your processing.

A copy of the letter dated 27 October 1993 issued by the Building Authority to the Clerk to Appeal Tribunal is enclosed for your reference.

Yours faithfully

For and on behalf of

PRUDENTIAL SURVEYORS INTERNATIONAL LTD

Signed

Richard K H Cheung

RC/cf

c.c.	Client
	CP Lee
	AP/HCT

Encl"

5. On the 5th November the Outline Zoning Plan was amended. This amendment had the effect of dramatically limiting the scope for the development of the site. The consequence was to reduce the number of floors to be erected from 27 to 12. On the 25th November the Respondent wrote to the said Authorised Person informing him that plans would have to be resubmitted so that they would comply with the amended Outline Zoning Plan.

6. It is the Applicants' contention that as the original refusal of the Respondent was now accepted as having been made in error it was incumbent upon the Respondent to consider the plans which had been submitted originally on the basis of the circumstances pertaining at that time namely the period between February and April 1993. This would mean that the Respondent should not take cognisance of the amended Outline Zoning Plan.

7. At the hearing before me Mr. Michael Thomas, Q.C. who was representing the Applicant applied for leave to amend the Relief sought in the motion to add relief by way of an order of mandamus and a further Declaration. I granted leave for this and as a result the Relief Sought is now :-

"3. Relief sought :-

(1) an order of certiorari to remove into the High Court and quash the said decision;

(2) alternatively a declaration that the said decision was null and void;

(2A) further, an order of mandamus directing that the Building Authority do consider the building plans submitted by the Applicant in relation to Nos. 6-8 U Lam Terrace, Hong Kong ("the Site") without regard to the amended Sai Ying Pun and Sheung Wan Outline Zoning Plan No. S/H3/9;

(2B) further, a declaration that by reason of itsconcession in its letter dated 27th October 1993, the Building Authority has not properly considered the applicant's plans submitted on 22nd February 1993 according to the law prevailing at the material time, and is precluded from contending otherwise;

(3) costs;

(4) further and other relief and all necessary and consequential directions as the Court as may think."

8. The main facts I have above recited were referred to in detail in the Grounds on which the Relief was sought. A submission is then made in the Notice which outlines the main heads of the complaints being made by the Applicants. I think that it may be useful to incorporate these submissions in this judgment.

"17. The Applicant submits that:-

(1) by reason of the Building Authority's concession that the April decision was wrong, the Building Authority ought to have checked the said building plans in April 1993, and approved or disapproved them accordingly on the criteria then applicable;

(2) but for the Building Authority's wrongful reliance of Section 16(1)(g) of the Buildings Ordinance to disapprove the said building plans on 21st April 1993, the said building plans (with such minor amendments thereto as might be necessary) would and should have been approved by the Building Authority well before 5th November 1993, the date OZP No. S/H3/9 came into force;

(3) the Applicant is entitled to be restored to the position that it would have been in if the Building Authority had not wrongfully relied on Section 16(1)(g) of the Buildings Ordinance on 21st April 1993 to disapprove the said building plans, or alternatively has a legitimate expectation that its application for approval of the building plans would be considered on that basis;

(3A) further or in the alternative, the Building Authority's reliance upon contravention of OZP No. S/H3/9 as a ground of rejecting the applicant's plans is irrational;

(3B) further or in the further alternative, insofar as the Building Authority regarded itself as being bound by section 16(1)(d) to reject any building plans which contravened OZP No. S/H3/9, the Building Authority erred in law in doing so and had thereby failed to exercise its statutory discretion;

(4) accordingly the November decision was a nullity and/or made contrary to law and/or contrary to natural justice."

9. I consider that one of the first questions I must determine is whether the resubmission of the plans on the 28th October 1993 was a fresh submission of plans or whether it formed a continuing process of the original application made in February 1993.

10. Mr. Cooney for the Respondent submitted that the Application made on the 28th October was a fresh application. He placed considerable reliance upon Sections 14 and 15 of the Buildings Ordinance.

"14. Approval and consent required for commencement of building works, etc.

(1) Save as otherwise provided, no person shall commence or carry out any building works or street works without having first obtained from the Building Authority

(a) his approval in writing of documents submitted to him in accordance with the regulations; and

(b) his consent in writing for the commencement of the building works or street works shown in the approved plan.
(Amended 68 of 1993 s.6)

(2) Subject to section 28B(4), neither the approval of any plans nor the consent to the commencement of any building works or street works shall be deemed -
(Amended 41 of 1982 s.3)

(a) to confer any title to land;

(b) to act as a waiver of any term in any lease or licence; or

(c) to grant any exemption from or to permit any contravention of any of the provisions of this Ordinance or of any other enactment.

(Replaced 44 of 1959 s.4)

15. Approval and consent deemed to be given unless refusal notified

(1) Where an application is made in the specified form for the Building Authority to approve plans or to consent to the commencement of building works or street works, he shall be deemed to have given his approval or consent, as the case may be, unless within the period prescribed by the regulations he has notified his refusal to give his approval or consent, as the case may be, in writing setting out the grounds for such refusal, and where one of such grounds is that further particulars and plans are required, he shall specify such plans and particulars. (Amended 68 of 1993 s.7)

(2) The grounds set out for any refusal to approve plans shall not be treated as being exhaustive, and no such refusal shall be construed as implying any approval of any part of such plans.

(Added 44 of 1959 s.4)"

11. He argued that once the Respondent had refused the application that was the end of the matter. This was of importance on account of the deeming provisions in Section 15. If an application was not made in strict conformity with the Sections the Respondent would be placed in an invidious position as either the 60 day or the 30 day periods may run against the Respondent and it may not be clear at any particular point of time what the position would be. Mr. Cooney also submitted that there were no provisions in the Ordinance to provide for continuing applications after a determination had been made by the Respondent.

12. Having given the matter careful thought I have come to the conclusion that this argument cannot be right. It seems to me to be highly artificial to insist, that when further very similar plans are resubmitted for approval it is necessary to regard the resubmission as a fresh application. There is nothing in Sections 14 or 15 to suggest that this must be the case.

13. What I consider is necessary is to have regard to all of the circumstances pertaining when the papers are resubmitted. In the present case it would appear to be common ground in the supporting affidavits that the plans which were resubmitted in October were in all essential respects similar to those submitted in February. It is in my opinion much more realistic to regard the resubmission as part of an on going matter rather than an application being made de novo.

14. This view of the matter appears to be borne out by the contemporaneous correspondence. I have already referred to the Respondent's letter of the 27th October. It is however also helpful to refer to the Applicants solicitor's letter by the 29th October to the Respondent.

"T.S. TONG & CO.

in association with

DREW & NAPIER, SINGAPORE

Solicitors, Notaries &

Agents For Trademarks & Patents

WING. LUNG BANK BUILDING,

8TH FLOOR,

NO. 45, DES VOEUX ROAD, CENTRAL

HONG KONG.

TEL : 522 8147

FAX : 810 0950

TELEX : 61154 HKTST Date : 29th October 1993

Your Ref:

Our Ref : CKY/93

Buildings Ordinance Office DELIVERED BY CLIENTS

Building Department

Murray Building

Garden Road

Hong Kong

Dear Sir

Re:	Appeal Tribunal - Buildings Ordinance, Cap. 123
	6-8 U-Lam Terrace, Hong Kong
		Case No. 31-93

We act for Mr. Richard Cheung of Prudential Surveyors International Ltd. and the appellants and your copy letter dated 27th October, addressed to the Clerk to Appeal Tribunal, has been handed to us for our attention. We are pleased to learn that you are not contesting the appeal from which it follows that you accept that your decision on 21st April 1993 was bad. It follows too that on 21st April last you should have checked all plans then submitted for approval and indicated your approval, with or without amendment pursuant to S.15 of the Buildings Ordinance.

Furthermore, we are instructed that your staff have in fact checked the plans in accordance with the contents of Practice Notes for AP and RSE 99 for compliances with the Buildings Ordinance and Regulations prior to your letter of 21st April 1993. They had indicated to Mr. Cheung that in minor details they would need to be amended, and but for your decision to rely upon S.16(1)(g), they would have been amended the usual way by Mr. Cheung altering the plans in your office. We are instructed that it is common for this to be done where the plans are substantial in compliance with the Buildings Ordinance rather than to re-draw and re-submit.

Accordingly, in the light of your concession that your reliance on S.16(1)(g), was that, our clients are now entitled to be restored to the position they would have been in if you have not relied on S.16(1)(g) on 21st April last.

Accordingly, we have advised our client presently, no obligation to re-submit plans for your consideration. The true position is that you have already have plans that were submitted last April, that your staff had already indicated that they need minor amendments to comply with the Buildings Ordinance. Mr. Cheung had already indicated that he was willing to make those minor amendments and for those reasons our clients have legitimate expectation to receive your approval of the plans with such minor amendments as soon as possible. As of 20th October, seven sets of such plans have been deposited with your office for such purposes.

CKY/fc"

15. I am satisfied that the Application was still subsisting. Mr. Thomas submitted that if this was the case the relevant law to be considered by the Respondent on the application was the law applicable during the 60 day period following the application being lodged. That is the 60 day period following the 22nd February 1993. His authority for this proposition being a passage from the speech of Lord Roskill which reflected the views of the other members of Judicial Committee of the Privy Council in the Attorney General v. Firebird Ltd. Unreported being Privy Council Appeal 17/82 at p.4 :-

" Mr. Ogden put in the forefront of his submissions the contention that the respondents had an accrued right to have their plans approved once they were submitted, unless the Building Authority could show that there was something wrong with them when appraised on the basis that the site was a Class C site. This submission does not seem to have been advanced in the courts below and certainly in their Lordships' view, is not covered by the first declaration sought. But in any event, in their Lordships' opinion the submission is, with respect, untenable. The only right accorded by this legislation is to have the plans considered within 60 days with the safeguard in section 15 of deemed approval. Furthermore their Lordships are of the clear opinion that the Building (Planning) Regulations confer on the Building Authority discretionary powers in relation to a number of matters which makes it impossible to say that the respondents ever had an absolute right to have their plans approved, as contended by Mr. Ogden.

Alternatively, Mr. Ogden contended, in this respect supporting the judgments in the Court of Appeal that the respondents had an accrued right to have their plans considered on the basis of the existing law. In their Lordships' view any right which the respondents did acquire under this legislation was a right correlative with the public duty of the Building Authority to consider the plans according to law, and the relevant law must be the law applicable at the date when the Building Authority performs its statutory duty of considering the plans within the 60 days, and not some other spent law. This right of the respondents is a right in public law which can be enforced when appropriate by judicial review. It is not a private right akin to an accrued cause of action. In their Lordships' view, section 23(c) is not dealing with a "right" of this nature and, with all respect to the Court of Appeal, their Lordships are of the opinion that the learned judges in that court were in error in treating this right to have the plans considered within 60 days as a right falling within section 23(c). The respondents' proposition may be tested by reference to the obverse case. Suppose the amendments had enlarged the respondents' rights and not restricted them. Their Lordships find it impossible to accept that the Building Authority, when considering the plans after the relaxing amendment had taken effect, would have been justified in refusing to accord to the respondents the benefit of those amendments upon the ground that it was the spent law which alone was relevant. In so doing, the Building Authority would not be performing their statutory duty to consider the plans according to law."

16. I do not think that Mr. Cooney dissented from this view of the law. It was however his contention that the relevant time in this case was the 60 day period from the 28th October 1993. For the reasons I have given I prefer the submissions made by Mr. Thomas.

17. The consequence of this is that I consider that the Respondent should not have taken cognisance of the amended Outline Zoning Plan gazetted on the 5th November.

18. Even if I am wrong in this I consider that this application should succeed.

19. While I accept that the Respondent has at all times conducted itself with all due propriety and is guilty of no mala fides it is nonetheless true to state that the Applicants' present predicament has been brought about as a result of an error which has been made by the Respondent. This is a situation which is amenable to redress being forthcoming from the Courts. The scope for the granting of an Order of Mandamus is sufficiently wide to accommodate a situation of this nature.

20. The observations made by Channell J. at p.531 of R. v. The Revising Barrister for the Borough of Hanley 1912 3KB 518 are pertinent in this connection.

" Those being the facts which I assume, a question of some difficulty arises as to whether that mistake can be set right. In my opinion it can, under a doctrine of this Court, which is an extremely useful one, and which was establihed by a majority of the judges in the Court of Exchequer Chamber in Mayor of Rochester v. Reg. E.B. & E. 1024. The principle laid down in that case is well established and has to my knowledge been acted upon frequently. The principle is that a mandamus will lie to compel the performance of a public duty by a public officer although the time prescribed by statute for the performance of it has passed; and if the public officer to whom belongs the performance of that duty has in the meantime quitted his office and been succeeded by another person, the writ may be directed to the successor, and it is his duty to obey it; and where there is no successor, but the person who ought to have performed the duty has become functus officio, the latter may be ordered to perform it, though the time within which he could of his own motion have performed it has passed. It is a most useful jurisdiction which enables this Court to set right mistakes. That principle, it seems to me, is applicable to the present case, and it is applicable not only to the non-performance of duties which the person who ought to have performed them has refused upon demand to perform, but also to cases where the non- performance arises from mere inadvertence, where he cannot have had his attention directed to the matter and cannot have refused upon demand to perform them."

21. A similar approach was adopted in R v. Woodbury Licensing Justices Ex parte Ordham [1960] 1 WLR 461.

22. In my view the circumstances of this case warrant relief in the form of an appropriate Order of Mandamus.

23. Both Counsel made very helpful submissions on the question as to whether Leonard J.'s analysis by the law in Singway Co. Ltd. v. Attorney General [1974] HKLR 275 was correct. Having regard to the findings I have made in this judgment it would not seem to me to be helpful for me to make a detailed analysis on the law as my conclusions I would reach would only be obita dicta. I would however respectfully associate myself with the observations made by Silke JA as he then was in Quebostock Ltd. v. The Building Authority & another [1986] HKLR 467 and express considerable reservations concerning Leonard J.'s approach to the problem.

24. One final matter remains outstanding. I refer to Mr. Cooney's submission that as there is an alternative remedy available to the Applicants' Judicial Review is not an appropriate relief. I consider that the observations I made at p.13 of Rich Resources Ltd. v. The Attorney General Unreported being MP 3896 of 1991 are equally applicable to the present case. I say this because the nature of the relief being sought by the Applicants is more suitably the subject of a Judicial Review that would be the case if the issues were canvassed before the Appeal Tribunal.

25. For the reasons I have given I am prepared to make an Order of Mandamus as requested in the amended para. 2A of the Relief Sought in this motion. As to the actual wording of the order I will seek the assistance of Counsel. I will also hear them on costs.