BERWELL TRADING LTD. v. SECRETARY FOR TRANSPORT

LDMR 6/2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDMR 6 OF 2001

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J U D G M E N T

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Background

1. By this application, the Applicant claimed compensation under the Roads, (Works, Use and Compensation) Ordinance, Cap.370 ["the Ordinance"]. Compensation was sought in association with the construction of a footbridge at Siu Sai Wan Road in 1997.

2. The construction works under the scheme involved the construction of staircases, ramps, columns and abutments for two footbridges. For the purpose of this claim, we are only concerned with works associated with one the footbridge, viz. the one connecting Fullview Garden with Cheerful Garden. Actual construction works took place between October 1997 and April 1999. I should mention that since I am only asked to determine two preliminary issues, it is not necessary for me to make any findings on the precise dates of commencement and completion of the construction works. If I rule that the claim is sustainable, the parties will have another hearing before the Tribunal for assessment of the quantum. At that hearing, it will be relevant to find out the precise period of construction and the disturbance caused during different stages of construction. My aforesaid general observations about the construction period is therefore only a general description and should not be interpreted as pre-empting the Tribunal from finding otherwise at the later hearing.

3. The Applicant is and was at the material time the owner of Shop No.1, Ground Floor, Commercial Centre, Full View Garden, No.18 Siu Sai Wai Road. From the photos taken during the course of construction produced by the parties (i.e. "KKS-2" to the Affirmation of Koh Keng Shing filed on 17th August 2001 and those in Part B of the Respondent's Bundle of Documents), it is fair to say that there were construction works right outside the shop of the Applicant and in the close vicinity thereof.

4. Further, it is averred by the Applicant that there is permanent disturbance caused to his shop by reason of the fact that a column, the staircase and planter associated with the footbridge are positioned very near to his shop front. His case is that these structures adversely affected the access to the shop permanently. The situation is adequately shown in photos taken after completion of the construction works. I also had a site inspection at the joint invitation of both parties on 30th August 2001. The relevant photos can be found in "KKS-2" (photo No.56), and exhibits R7 and A1.

The closure order and related notices

5. By Gazette Notice No.1600 of 1996 dated 29th March 1996, the Secretary for Transport gave notice of the proposal to build the footbridges. The road works were said to be shown on Plan No. HH9092A and described in the scheme annexed thereto. That was the notice for these road works issued pursuant to Section 8(2) of the Ordinance. The purpose of that was to see if there was any objection from any members of the public regarding the proposed works.

6. Apparently, there was no objection. After the expiry of time for lodging objection, another Gazette Notice was issued on 4th July 1996, viz. G.N. 3038 of 1996. That was issued pursuant to Section 11(9)(a) of the Ordinance. Since there was no objection, the works became authorized under the Ordinance (see Section 11(1) of the Ordinance). The notice was to inform the public that the Secretary for Transport proposed to execute the works.

7. On 21st August 1997, the Secretary for Transport made an order ["the Closure Order"] under Section 17(1) of the Ordinance. The order was in the following terms,

"In exercise of powers delegated by the Chief Executive, I hereby direct under section 17(1)(a) of the Roads (Works, Use and Compensation) Ordinance (Chapter 370) that sections of the existing footpaths as shown on Plan No. H9092A and described in the scheme annexed thereto, which plan and scheme were referred to in G.N. 1600 published on 12 April 1996 and 19 April 1996, be permanently closed. I further declare under section 17(1)(c) of the Ordinance that as from 29 August 1997, all public or private rights in, upon, under or over the affected footpaths shall be extinguished."

8. As required by Section 18 of the Ordinance, a notice of the Closure Order was issued on 21st August 1997. A copy of the said notice was produced as "CYW-2" in the Affirmation of Chan Yau Wing filed on 17th August 2001. In the Notice, it was said that a copy of the order and a plan showing the affected footpaths may be inspected by members of the public at specified District Offices. That notice also informed persons entitled to compensation to serve written claim before the expiration of one year from the date of closure.

9. I infer that the plan showing the affected footpaths was the same as HH9092A. That plan identified, inter alia, the limit of works area and also the parts of the existing footpath to be closed and occupied permanently.

10. As mentioned, there was a Scheme annexed to Plan HH9092A. That was a document dated 29th March 1996. In that document, under the heading "footpaths to be closed", the Secretary for Transport said the following:

"For the purposes of or incidental to the works or the use, the Secretary for Transport proposes that powers of the Governor under section 17 of the Ordinance may be exercised to close the sections of the existing footpaths as shown on the Plan. Further notice, describing the area affected and the manner in which it will be affected, will be issued under section 18 of the Ordinance as and when required."

 

The claim by the Applicant

11. On 6th May 1998, Landscope Surveyors Limited submitted a claim on behalf of the Applicant. In the covering letter, it said that the claim was for loss of rental / disturbance due to the works. A sum of $253,160 was claimed as "interim compensation" whilst it further said that a final compensation claim would be submitted after the completion of the works.

12. According to the Applicant's case, the shop was leased to a tenant for 2 years from 1st September 1996 with an option to terminate after one year. With the issue of the notice of the proposed works in mid 1997, the tenant exercised the option to terminate the lease on 31st August 1997. The Applicant said it was due to the prospect of the construction works. Since then, the Applicant was unable to procure another tenant. The shop has been left vacant since then. Due to the nature of the hearing before me, I do not need to make any finding of facts as to these. Since this is a trial of preliminary issues, I should ask whether the claim of the Applicant is sustainable assuming that these factual assertions were accepted by the Tribunal.

13. On 13th November 1999, Landscope Surveyors Limited served an amended claim in the sum of $684,604.43 on behalf of the Applicant. That amended claim was confined to disturbance loss suffered by the Applicant during the construction period and the amendments were to bring the figures up to date. That was clearly necessary because the construction was not yet completed when the "interim claim" was submitted.

14. On 10th December 1999, Landscope Surveyors Limited served a revised claim in the sum of $3,045,501.81 on behalf of the Applicant. A new head of loss, viz. permanent loss of rental, was added. At the hearing before me, in the course of the evidence of Mr.Koh Keng Shing, the surveyor for the Applicant, he admitted that there was a mistake in the calculation and the total claim should be $2,578,275.40.

15. There were correspondence between the parties. The upshot of that was the Respondent rejected the Applicant's claim for reasons which I shall return to. On 6th April 2001, this Application was filed by the Applicant.

The stance of the Respondent

16. In the Amended Notice of Opposition filed on 17th May 2001, the Respondent took three separate points,

(a) the Applicant is not entitled to claim statutory compensation in respect of the Closure Order;

(b) the claim is time barred;

(c) the claim is excessive.

17. To understand the first point, it is necessary to refer to the correspondence. After the receipt of the "interim claim" of the Applicant, in a letter dated 21st July 1998 from the Lands Department to the Applicant, the Respondent said as follows,

"After thorough investigation, we find that the erection of 'hoardings and other obstructions encroaching on the footpath' fronting the premises, based upon which your claim for damages is formed is not covered by the section 17 road closure order referred to in G..N. 920 dated 21 August 1997. According to the said notice and Plan No. HH9092A to which the said notice refers, only permanent closure is made and it is only in respect of those parts of the road used for housing the columns and abutments of the two footbridges for the purpose of the captioned project. In this relation and since no corresponding section 17 order has been issued for the works claimed by you, I regret to inform you that this office is not in a position to consider your claim made under Item 4 of Part II of the Schedule to the Ordinance."

18. The Applicant disagreed and its understanding of the scope of the Closure Order was set out in a letter dated 5th July 1999 from Landscope Surveyors Limited to the Lands Department. The Lands Department responded in a letter dated 5th August 1999 which elaborated on their arguments as to the construction of the Closure Order.

19. On the time bar, both parties took the position that time began to run from 29th August 1997. As prescribed by Section 28(1) and Item 4 of Part II of the Schedule to the Ordinance, the period within which a claim must be served on the Secretary was one year from the closure, extinction, modification or restriction.

20. Although it is only a minor point and has no practical significance in the present case (because the Applicant conceded that it was out of time in respect of the Amended Claim and the Revised Claim), I wish to point out that if on proper construction, the Closure Order has two aspects (a point which I shall have to dealt with later, see Paragraph 34 below), the time limit for serving claims arising from different aspects of the order could be different for each. The closure of a road might happen on a different date from that of the extinction, modification or restriction of a private right in respect of a road.

21. As I said, Mr Lui (counsel for the Applicant) conceded that the Applicant was out of time in respect of the Amended Claim and the Revised Claim. He invited the Tribunal to exercise its discretion under Section 28(4) of the Ordinance to extend the time for the Applicant to serve those claims.

Order for trial of preliminary issues

22. On 29th June 2001, Judge Chow ordered that the following preliminary issues be determined by a Presiding Officer:

(a) whether the Applicant is entitled to claim statutory compensation in respect of the closure as more specifically referred to in the Notice of an order made by the Respondent under Section 17(1)(a) of the Roads (Works, Use and Compensation) Ordinance, Cap.370 which notice was gazetted as G..N. 920 on 21st August 1997;

(b) the Applicant's right to claim statutory compensation is barred under Section 28(1) of the Ordinance and whether the Tribunal should exercise its discretion to extend time pursuant to Section 28(2) of the Ordinance.

23. Pursuant to that direction, parties came before me for determination of the aforesaid issues. After two days' hearing, I adjourned the matter for consideration. Thereafter, I found certain authorities which might have a bearing on the issues. I therefore invited parties to come back to the Tribunal for a further hearing, which took place on 26th October 2001.

The statutory compensation

24. I have already mentioned that the Applicant's claim was made under Item 4 of Part II of the Schedule to the Ordinance. Before I come to that item, I should refer to certain sections of the Ordinance as the basis for the statutory compensation thereunder.

25. As mentioned in Paragraph 6 above, the works were authorized under the Ordinance upon expiry of the time for lodging objections and no objection was lodged. Section 26(b) of the Ordinance provided that no person shall have any right against the Government or any other person to recover any money in respect of any works or anything else authorized under the Ordinance except to the extent of the rights to compensation provided for in Section 27. Hence, a person affected by an authorized work loses all rights to claim damages under the general law. If the statutory compensation is inadequate in the sense that it would not compensate him as fully as he would be under the general law, he does not have any redress in law.

26. Section 27(1) provided for a statutory right to recover from the Government "for matters set out in the first column of Part II of the Schedule a sum assessed on the basis specified opposite thereto in the second column thereof and with regard to the provisions of Part I of the Schedule".

27. Section 27(3) of the Ordinance stipulated that the rights to statutory compensation shall exist in addition to any benefit accruing to a claimant as a result of the implementation of any subsisting conditions imposed by the Chief Executive in Council under Section 11(2). Those conditions could be imposed if objections were raised to a proposed plan and scheme. If a person affected by a proposed plan and scheme felt that he would not be adequately compensated by the statutory compensation, he could raise objections on that basis and the Chief Executive in Council would be obliged to consider his case. If the Chief Executive in Council deems fit, they could impose conditions for authorizing the works as to the amelioration or avoidance of the effects of the works.

28. Although the evidence shows that no objection has been raised in this case and hence no condition has been imposed by the Chief Executive in Council, this analysis of the statutory scheme demonstrates the importance of having a proposed plan and scheme clear in every respect. Otherwise, a person affected would not be able to properly assess the extent of compensation recoverable by him under the statute and whether there is any need for him to raise an objection on the ground that he would not be fairly and adequately compensated. Under the statutory scheme, he has a right to urge the Chief Executive in Council to impose certain ameliorative conditions before authorizing the works. Such a right would only meaningful if he could derive the necessary information from the relevant plan and scheme. The requirements in Section 11 of the Ordinance as to plan and scheme should be considered in the light of these. This point has a bearing on the construction of the plan and scheme and the scope of the Closure Order in the present case. I shall come back to it later.

29. At this juncture, I need to refer to item 4 of Part II of the Schedule to the Ordinance. Under that item, the matters for which compensation may be claimed are as follows:

"the closure of, or extinction, modification or restriction of a private right in respect of, a road or part of a road under section 17, so that access to any land is adversely affected."

30. To come within the item, the following have to be established by an applicant:

(a) the closure of a road or part of a road; or

(b) the extinction, modification or restriction of a private right in respect of a road or part of a road; and

(c) those matters were caused by Section 17 of the Ordinance, viz. by an order made under Section 17(1) which has the legal effects specified under Section 17(2); and

(d) because of these matters, access to any land is adversely affected.

31. In essence, the Respondent's arguments as to the entitlement of the Applicant are as follow:

(a) in respect of temporary disturbance, the same were not caused by Section 17 of the Ordinance because they were not within the scope of the Closure Order;

(b) in respect of the permanent loss, it should be rejected because access to the Applicant's shop was not adversely affected by the permanent closure of the parts of the road which were confined to those parts of the road used for housing the columns and abutments of the footbridge.

32. Mr Lui submitted that access to the shop of the Applicant was adversely affected by the permanent closure. He also argued on behalf of the Applicant that the disturbance in this case, whether temporary or permanent, fell within the scope of the Closure Order.

33. In the alternative, he submitted that so long as element (d) identified by me in Paragraph 30 above can be shown, it is not necessary for him to establish element (c). That was plainly wrong. Both the English and Chinese wordings of item 4 are clear. Element (c) is an essential part of item 4. I hold that the Applicant must establish that the adverse effect on the access was caused by Section 17.

The scope of the Closure Order

34. I have recited the Closure Order in Paragraph 7 above. I agree with the submission of Mr Lui that the order can be divided into two parts,

(a) permanent closure of sections of the footpaths under Section 17(1)(a);

(b) extinguishment of all public or private rights in, upon, under or over the affected footpaths under Section
17(1)(c).

This is again plain from a reading of the Closure Order and I do not understand Mr Houghton (who appeared for the Respondent) to have suggested otherwise.

35. With regard to the permanent closure, it took place on 21st August 1997. It is limited to those sections of the footpaths as shown on Plan No. HH9092A and described in the Scheme. As mentioned in Paragraph 9 above, Plan No. HH9092A identified those parts of the existing footpath to be closed and occupied permanently. The Lands Department was correct in their letter of 21st August 1998 in saying that the permanent closure was only in respect of those parts of the road used for housing the columns and abutments of the two footbridges. Mr Lui did not suggest otherwise.

36. The dispute between the parties focused on the second part of the order. In terms of the Closure Order, the extinguishment of all public or private rights in, upon, under or over the affected footpaths under Section 17(1)(c) was to take effect as from 29th August 1997. Mr Lui's contention was that the expression "affected footpaths" should be construed widely and should not be confined to the sections of the footpaths which were closed permanently. He submitted that if it were otherwise, the Applicant would suffer infringement of his private right in respect of access to the shop without any compensation by reason of Section 26 of the Ordinance. This, he said, would be most unfair to the Applicant.

37. Mr Houghton submitted at the hearing of 31st August 2001 that if there were infringements of any private rights which were not covered by the Closure Order, it could be the subject matter of a private claim. If I understand him correctly, his submission on 26th October 2001 went further. He said that since the works were authorized by statute, there was a statutory defence to such private claim under Section 26 of the Ordinance. In any event, the claim could not fall within the scope of the statutory compensation. Hence, even assuming there was any obstruction to the access to the shop of the Applicant (as to which he did not make any concession), it should not be taken into account if it did not come within the Closure Order. He emphasized the word "extinguished" in the second part of the Closure Order. The rights were not restricted or modified. They were extinguished. Mr Houghton said that this could only refer to the public and private rights over the sections of the footpaths which were permanently closed.

38. In my judgment, there is an ambiguity in the second part of the Closure Order. It referred to the "affected footpaths" instead of the "sections of the footpaths which were closed". Hence, prima facie, it was referring to a wider ambit than those sections which were closed permanently. How do one determine the areas which were affected? The answer lies in the Plan No. HH9092A. It shows the limits of works area. Those defined the areas affected. One may ask rhetorically what was the purpose of identifying such limit if it were not to show the affected areas. I cannot think of any. In fact, if one refers back to Section 5(a) of the Ordinance (which set out the requirements for the plan), the correlation between the rights affected and the limits of works area is abundantly clear. That section reads as follow:

"Where the Secretary proposes to execute works ... he shall cause to be prepared a plan delineating the works area, being that area within which land may be resumed, easements or other rights in, under or over land may be created or rights affected for the purposes of or incidental to the works or the use." (my own emphasis)

39. I do not think it was mere coincidence that the expression "affected footpaths" were used in the Closure Order. The wordings in Section 5(a) correspond with the wordings in Section 17(2) by reference to the rights affected. Those rights are affected by being extinguished, modified or restricted.

40. Further, a Section 17(1) order is to provide for extinguishment, modification or restriction of public and private rights for the purposes of or incidental to the works or the use in relation to any road. Works include the construction works and any operations ancillary thereto (see definition of "works" under Section 2 of the Ordinance). As evidenced by the Plan, the Secretary knew at the time when he made the Closure Order that the works areas would be much wider than the sections of footpath permanently closed. How could it be sensible for him to make an order confining to those sections when he had the power as well as the need to make a wider order under Section 17(1)(c)? Indeed, it is difficult to see how an order in the limited scope as contended for by the Respondent could be sufficient to facilitate the construction works of the footbridges in question.

41. Mr Houghton said the Tribunal should only look at the wordings of the order in this exercise of construction. I agree that in construing the order, the wordings are of prime importance. However, I am of the view that the Tribunal can properly take into account the legislative framework under which the order was made in resolving any ambiguity in the wordings. As I have indicated, there is an ambiguity in the expression "affected footpaths" in the second part of the Closure Order. It is therefore quite legitimate for me to resolve such ambiguity by reference to the relevant legislative background for the order.

42. With regard to the use of the word "extinguished", although it seems to support the contention of the Respondent at first blush, I am of the view that it is by no means conclusive. Extinguishment could be a reference to the extinguishment of a chose in action instead of a proprietary interest. In fact, when one examines the matter more closely, in the present context, it must be referring to a chose in action. It is not suggested that the right of the Applicant was derived from any easement or other grant from the Government. The parties argued on the basis that even in the absence of any grant of a proprietary nature, the Applicant enjoyed a private right of access to the footpath, akin to the right of access to the highway enjoyed by owner of property adjoining the same.

43. The private right of access to the shop was therefore not a proprietary right. Rather it is a right protected by the law of tort, in particular the law of nuisance. If the access was obstructed by the works, the Applicant would have a cause of action in nuisance but for Section 26 of the Ordinance. That cause of action arose from a factual situation which could be a temporary one. For example, in the present case, the Tribunal may find that obstruction only existed during the course of construction but not thereafter. By the order, the right of action in respect of obstruction caused by the works was extinguished once and for all. However, that does not mean that the Applicant lost his right to sue for any obstruction caused by something else. That will be a new chose in action which the Closure Order could not have extinguished since it would not be necessary 'for the purpose of or incidental to the works or the use' (see Section 17(1)).

44. Likewise, the public right enjoyed by members of public in terms of passage over the footpath cannot be proprietary in nature. Such public right was similarly extinguished insofar as obstruction caused by the works is concerned.

45. I am therefore of the view that the use of the word "extinguished" in the Closure Order is not conclusive. Given the matters set out in Paragraphs 38 to 41 above, I hold that as a matter of construction, the second part of the Closure Order covered all parts of the footpaths which were within the limit of works area as shown in the Plan. In other words, the order extinguished all private and public rights accrued to any person caused by the obstruction within the works area occasioned by the works.

46. I am happy to come to this conclusion because otherwise the Applicant would not have any remedy for such obstruction. I do not think the Applicant could still advance a claim under the general law. Since the works were authorized, he would be barred by Section 26 of the Ordinance from having any claim other than those provided for under the statute.

47. Further, if it were otherwise, the Applicant might justifiably feel aggrieved by the lack of clear indication in the Plan and Scheme that there would not be any compensation for the disturbance caused by the construction works. The Scheme referred to the construction works and I have already quoted Paragraph 3 thereof in Paragraph 10 above. Since the powers under Section 17 was to be exercised for the purposes of or incidental to the works, by parity of reasoning set out in Paragraph 40 above, it is legitimate for a person reading the Plan and the Scheme to expect that the eventual order and notice would also cover disturbance other than that caused by the permanent closure of the footpaths which were used for housing the columns and abutments of the two footbridges. This was particularly so when the reader saw in the Plan that the limit of work areas delineated an area much larger than those parts of the footpaths which would be closed permanently. On such a reading, statutory compensation is available and there was no need to raise any objection to the proposed works. Certainly, the position would be quite different if the Applicant were told clearly in the Plan and the Scheme that there would not be any compensation for temporary disturbance.

Was access to the shop temporarily or permanently affected adversely?

48. The word "access" was not defined under the Ordinance. Mr Houghton submitted that it is a question fact. He accepted that access might be affected even though the obstruction created by the works did not occur immediately at the shop front. This must be correct and there are indeed English authorities to that effect (see Fritz v. Hobson [1880] 14 Ch D 542; Caledonian Railway v. Walker's Trustees [1882] 7 App Cas 259; Ching Garage v. Chingford Corporation [1961] 1 WLR 470, although they have to be read with a caveat that we are dealing with the matter in a different context).

49. Mr Lui agreed that this is a question of fact. He invited me to take into account of the planter in considering the adverse effects on access. Mr Houghton said the Closure Order did not cover the planter. The scheme annexed to the Plan described the works as including landscaping works. The planter was part of the landscaping works as shown in Drawing No. HH9737A. In view of my above decision on the scope of the Closure Order, I hold that Mr Lui is entitled to rely on the planter as part of the affected footpaths in the second part of the Closure Order.

50. Having visited the site and examined the photos with such knowledge, I must say I do not find the access to the Applicant's shop being interfered with whether by the columns supporting the footbridge, the staircase or the planter. There is ample space to enable visitors to go in and come out of the shop. I do not think it can properly be said that access to the Applicant's shop has become more difficult than before. In this connection, it is necessary to distinguish between access to the shop and pedestrian flow along the shop front. According to the New Shorter Oxford English Dictionary, the relevant meaning of the word "access" in the context of access to a place is "coming into the presence of or into contact with; approach, entrance". The fact that the columns at some distance away from the shop front and the planter would cause inconvenience to the pedestrians walking along the pavement does not necessarily mean that access to the shop is affected. In the present case, I find as a fact that the access to the shop of the Applicant was not adversely affected after the construction works have been completed.

51. In coming to such conclusion, I consider that question purely from the access at the shop front. I do not accept the submission of the Respondent that I should decide that there was no adverse effect because of the existence of an alternative access. In my judgment, even if there were another access, this does not mean that the access to the shop at the main entrance was not affected. It is a question of fact and it may depend on how people usually approach the shop. In the present case, the shop front being the one facing the main road, I have no doubt that we are dealing with the main access to the shop there. The so-called alternative access had been blocked up and in any event, it was adjacent to a refuse collection point.

52. My conclusion in Paragraph 50 above is fortified by the requirement that under item 4 of Part II of the Schedule, compensation is only payable in respect of the extinction, modification or restriction of a private right in respect of, a road or part of a road. In other words, there is no compensation for the extinction, modification or restriction of a public right in respect of, a road or part of a road even if that exercise affects the access to the premises adversely. The distinction between private rights and public rights regarding access to highway was summarized in Winfield & Jolowicz on Tort, 15th Edn. p.530:

"It is clear that the right of passage along the highway is a public right and that interference with it is remediable by an action for public, not private, nuisance. ... However, the owner of property adjoining the highway has a common law right of access to the highway which is a private right remediable by an action of private nuisance, so that anything which prevents his access (as opposed to making it less convenient for his purposes) enables the recovery of at least nominal damages."

53. In AG v. Conservators of Thames [1862] 1 H&M 1, Page Wood VC said,

"Independently of the authorities, it appears to me quite clear that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway. ...[On the facts of the case] But, in truth, the access is not blocked up. The wharf will not be as readily and easily approached, and perhaps not at all by the same route; but that is a mere interruption to the navigation of the river which they enjoy in common with the public, and not as part of their special right of access."

54. This dicta has since been cited by Lord Cairns in Lyon v. Fishmongers' Co. [1876] 1 App Cas 662, Fry J in Fritz v. Hobson [1880] 14 Ch D 542, Buckley J in W.H. Chaplin v. Westminster Corporation [1901] 2 Ch 329 and Lord Templeman in Tate & Lyle v. GLC [1983] 2 AC 509. I would also quote from Buckley J in the Chaplin case, at p.334 of the judgment:

"A person who owns premises abutting on a highway enjoys as a private right the right of stepping from his own premises on to the highway, and if any obstruction be placed in his doorway, or gateway, or, if it be a river, at the edge of his wharf, so as to prevent him from obtaining access from his own premises to the highway, that obstruction would be an interference with a private right. But immediately that he has stepped on to the highway, and is using the highway, what he is using is not a private right, but a public right."

55. Applying these principles to our case, whatever effect the planter, the staircase and the columns might have in respect of the use of the pavement, that could not have any effect as to the private right of access enjoyed by the Applicant. On this ground alone, the Applicant's claim regarding permanent disturbance must fail.

56. However, I cannot say the same in respect of temporary disturbance during the course of construction works. From the photographs taken when construction works were carried on, access to the shop was adversely affected and I find that the private right of the Applicant was infringed. In the light of my decision as to the scope of the Closure Order, I hold that the Applicant's claim in respect of temporary disturbance is sustainable. The length of period for which a claim could be supported depends on the evidence. This has to be determined in the light of the principles set out in Paragraphs 52 to 54 above. That would have a bearing on the quantum and shall be decided by the Tribunal in assessing the same.

57. I therefore answer the first preliminary point in the affirmative, but only in respect of temporary disturbance in the course of construction.

Extension of time

58. The application for extension of time was made pursuant to Section 28 (4) of the Ordinance. It was agreed by counsel that time expired on 28th August 1998. The claim originally submitted (as an interim claim) was within the one year time limit. In the light of my aforesaid decision on permanent disturbance, I only need to deal with the extension of time in respect of the revised claim served on 13th November 1999. The further revision on 10th December 1999 was in respect of permanent disturbance which I have held to be not viable.

59. It is important to bear in mind that construction works were only completed in April 1999. Against that background, it is factually impossible for a finalized claim to be served with regard to temporary disturbance before the expiration of the time bar. I consider it reasonable to give the Applicant one year to finalize its claim after completion of the works. The revised claim was submitted within 7 months after works were completed.

60. The original claim has alerted the Respondent as to the Applicant's interest and claim and it was clearly stated to be an interim one. A revised claim after completion of the works must have been expected by the Respondent. I am not sure whether an extension is required. An applicant can amend his claim (see Section 29(3) of the Ordinance) and there is no suggestion in the Ordinance that a claim cannot be amended after the time bar for filing an original claim.

61. However, since the case was presented to me as an application for extension of time, I will deal with it on that basis. The power to extend time under Section 28(4) is a very wide power. The power can be exercised on any one of the following grounds,

(a) delay occasioned by mistake of fact or mistake of any matter of law; or

(b) delay occasioned by other reasonable cause; or

(c) the Government is not materially prejudiced in the conduct of its case or otherwise by the delay.

62. For the reasons given in Paragraph 59 above, I consider that the delay was occasioned by reasonable cause. Further, I am not satisfied that the Government suffered any material prejudice in the conduct of its case or otherwise by reason of the delay. The correspondence shows that the parties were well aware of the claim of the Applicant and good records have been kept by the Government regarding progress of the works which could be used for resisting and challenging the claim. I therefore grant the necessary extension for the revised claim of 13th November 1999.

63. I will also make an order nisi that the costs of the hearings before me be costs in the cause.