BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 180/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 180 OF 2013

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J U D G M E N T

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A.  INTRODUCTION

1. Under a New Grant (“the New Grant”) dated 12 November 1976, the interested party (“ENM”)[1] became the registered owner of Lot No 360 in DD 454 and the Extension to Lot No 360 in DD 454 and the Extension thereto (collectively “the Lot”).[2]  The New Grant is a condition of exchange made between ENM and the Government and was granted to ENM for the purpose of building a country club on the Lot.

2. ENM later built the Hilltop Country Club on the Lot. The Lot is located at the end of Hilltop Road, which is the only road access to the Lot.

3. Hilltop Road is not within the Lot and the original Hilltop Road represents the coloured “brown” area (“the Brown Area”) in the plan annexed to the New Grant.  When building the Country Club on the Lot, ENM under the conditions of the New Grant was required to properly pave the Brown Area.  I will look into this more later.

4. Under section 27A of the Buildings Ordinance (Cap 123) (“the BO”),[3] the Building Authority (“the BA”) may (a) declare any nature, formed or man-made land or structure as dangerous or has become dangerous; and (b) serve a dangerous hillside order on, among others, the person who under the terms of a Government lease is under an obligation to maintain such declared dangerous (or potentially dangerous) land or structure.

5. Respectively on 27 December 2006 and 25 January 2008, the BA served on ENM two Dangerous Hillside Orders.  The first one (“the 1^st DH Order”)[4] relates to the part of a man-made slope on the southern side embankment of Hilltop Road and has been identified by the BA as “Feature 156(1)”.  The second one (“the 2^nd DH Order”)[5] relates to a part of another man-made slope on the west side of the end of Hilltop Road near to the Lot.  It has been identified as “Feature 33(1)”.  The 1^st and 2^nd DH Orders require ENM to investigate the two slopes and submit remedial or preventive work proposals for the BA’s approval.

6. Features 156(1) and 33(1) are situated on Government land.  At the same time, it is the BA’s view that they are formed as a result of ENM’s works for constructing the “paved way”.  The orders were served on ENM as the BA was further of the view that ENM was (a) obliged under Special Condition (31) (“SC31”) of the New Grant to maintain both Features 156(1) and 33(1); and (b) in any event, under Special Condition (13) (“SC13”) to maintain Feature 33(1).

7. ENM respectively in January 2007 and February 2008 appealed the 1^st and 2^nd DH Orders to the Appeal Tribunal (Buildings) (“the Tribunal”).  The appeals (collectively “the Appeals”) were heard together over eight days between September and December 2012, with evidence being called on both sides.

8. By its determination (“the Determination”) dated 17 September 2013, the Tribunal effectively allowed the Appeals and held that, on a proper construction, (a) ENM has no obligation to maintain Features 156(1) and 33(1) under SC31; and (b) ENM has an obligation under SC13 to maintain only the “Northern End” of Feature 33(1).

9. This is the BA’s judicial review seeking to challenge the Determination in relation to those holdings.  The BA is represented by Mr Y C Mok together with Mr Anthony Chan[6]. It is the BA’s case that the Tribunal erred in law in construing SC31 in the way as it did.  Further, the Tribunal also erred in misunderstanding the BA’s case under SC13 or in any event failed to give adequate reasons in explaining its conclusion under SC13.  The BA asks for the quashing of the Determination and declarations on the proper meaning of SC31 and that ENM is under an obligation under SC13 and SC31 to maintain Features 156(1) and 33(1).

10. As usual, the Tribunal remains neutral in this application and is excused by the court from attending the hearing.

11. ENM as the interested party opposes the judicial review and is represented by Mr Ambrose Ho SC, leading Mr Allan Lam.[7]

B.  THE FACTS

12. Insofar as relevant, the facts are these.

13. The Hilltop Country Club, which is a private members’ club operated by ENM, stands on the Lot.  The only access road leading to the Lot is Hilltop Road.  It was common ground before the Tribunal that the Brown Area on the plan annexed to the New Grant indicates the original Hilltop Road.[8]

14. The original Hilltop Road was formed around 1963 (ie, before the New Grant) by cutting into the natural terrain and end tipping the loose soil fill (extracted from the cutting) onto the natural hillside, with the road being constructed on top of the cutting and end tipping.[9]  The end tipping created man-made soil fill slopes and embankments on the downhill side of Hilltop Road, giving support to the relevant portions of Hilltop Road.  It is the BA’s position that two such slopes are Features 156(1) and 33(1).

15. Feature 156(1) lies on Government land to the south of the Lot.  It forms the southern side embankment of Hilltop Road.  Hilltop Road is located immediately at the crest of the slope.

16. Feature 33(1) is also on Government land.  It lies further uphill than Feature 156(1) and is to the west of the Lot, near the entrance to the Hilltop Country Club.  Hilltop Road is located immediately at the crest of the slope.

17. The Geotechnical Engineering Office (“GEO”) of the Civil Engineering and Development Department retained consultants to conduct safety screening studies on Features 156(1) and 33(1).  Both reports (known as Stage 2 Reports) recommended that dangerous hillside orders be served under section 27A of the BO.

18. The GEO, having studied the Stage 2 Reports, recommended to the BA that dangerous hillside orders be served under section 27A in respect of Features 156(1) and 33(1).

19. The Lands Department, which is responsible for advising the BA on the person or entity liable to maintain a particular slope, took the view that ENM has the responsibility to maintain Features 156(1) and 33(1). According to that department, the maintenance responsibility in respect of Feature 156(1) is imposed under SC31 whereas the responsibility to maintain Feature 33(1) flows from SC31 and additionally, SC13.[10]

20. SC31 provides:

“The grantee shall construct a paved way to the standards laid down in the Building (Private Streets and Access Roads) Regulations over the area shown coloured brown on the plan annexed hereto and shall uphold, maintainand repair such paved way and everything forming portion of or pertaining to itto the satisfaction of the said Director, and the grantee shall be responsible for the whole as if he were absolute owner thereof. Any alteration to the public street from which the paved way is to be constructed, absorbing a portion of such paved way or affecting the gradient thereof, shall not give rise to any claim by the grantee, who shall carry out all consequent alterations to such paved way constructed by him. The Government reserves the right to grant rights-of-way over such paved way to the owners of any other lots in the vicinity now or in the future, or take over the whole or any portions of the said paved way for the purposes of a public street without payment of any compensation to the grantee or to other owners to whom rights-of-way over the whole or any portion of the said paved way may have been granted.” (emphasis added)

21. SC13 provides:

“Where any cutting away, removal or setting back of adjacent or nearby hillside or banks or any building up or filling in is required for the purpose of or in connection with the formation, leveling or development of the lot or any part thereof, the grantee shall construct or bear the cost of the construction of such retaining walls or other support as shall or may then or at any time thereafter be necessary to protect and support such hillside and banks and the lot itself and to obviate and prevent any falling away, landslip or subsidence occurring thereafter, and shall at all times maintain the said retaining walls or other support in good and substantial repair and condition. In the event than as a result or arising out of any such formation, leveling or development any landslip, subsidence or falling away occurs at any time, whether in or from the adjacent hillside or banks and whether the same be Crown or leased land, or in or from the lot itself, the grantee shall at his own expense reinstate and make good the same and shall indemnify the Government from and against all costs, charges, damages, demands and claims whatsoever which shall or may be made, suffered or incurred through or by reason of such landslip, subsidence or falling away. In addition to any other rights or remedies herein provided for breach of any of the conditions hereof the Director of Public Works shall be entitled by a notice in writing to call upon the grantee to carry out such construction and/or maintenance or to reinstate and make good any falling away, landslip or subsidence, and if the grantee shall neglect or fail to comply with such notice within the period specified therein the said Director may forthwith execute and carry out the work and the grantee shall on demand repay to the Government the cost thereof.” (emphasis added)

22. The BA accepted the aforesaid recommendations and served on ENM (a) the 1^st DH Order dated 27 December 2006 in respect of Feature 156(1) and the 2^nd DH Order dated 25 January 2008 concerning Feature 33(1).  Under the two orders, ENM is required to investigate the two slopes and submit remedial preventive work proposals for BA’s approval.

23. ENM filed a notice of appeal against the 1^st DH Order and the 2^nd DH Order on 8 January 2007 and 13 February 2008 respectively.

24. As mentioned above, the Appeals were heard together over eight days between September and December 2012.  The Determination was made on 17 September 2013.  In gist, the Tribunal rejected the BA’s argument that ENM is responsible for maintaining Features 156(1) and 33(1) by virtue of SC31 but held that ENM has, by reason of SC13, the responsibility to maintain only the Northern end (“the Northern End”) of Feature 33(1).

25. On 13 December 2013, the BA applied for leave to apply for judicial review to challenge the Determination and this court gave leave on 9 January 2014.  ENM has been joined as the interested party.

C.   THE DETERMINATION

26. The BA’s case before the Tribunal under SC31 is that both Features fell within the properly construed meaning of “everything… pertaining to” the paved way (ie, Hilltop Road) as (a) they were constructed together with the road; (b) they adjoin the road; and (c) they are part of and essential, vital support to the road.

27. The Tribunal rejected the BA’s argument that ENM is responsible for maintaining Features 156(1) and 33(1) under SC31.  Its reasons (see: pages 14 - 16 of the Determination) are helpfully summarised by Mr Mok in his skeleton (which I adopt) as follows:

(1) While it did not understand why did the Government stipulate in SC31 that the grantee (ie, ENM) shall construct a paved way when Hilltop Road had already existed prior to the execution of the New Grant, the Tribunal’s “belief” was that at that time both the Government and ENM “must have discovered that firstly the road was substandard and secondly the road had not been properly sited”.  Therefore, what the Government really required ENM to do under SC31 was not to construct a road afresh but to upgrade the road to the standards of a public street and to position it properly within the area designated by the Government (ie, the Brown Area).

(2) Based on this “belief”, the Tribunal concluded that SC31 is a special clause put in by the Government to define the rights and liabilities of ENM within the Brown Area and that since SC31 only applies to things and matters that happen or occur inside the Brown Area, it follows that for things and matters that happen or occur outside the Brown Area, SC31 has no application and ENM shall assume no liabilities whatsoever.

(3) The Tribunal was further of the view that this conclusion was consistent with commercial sense because no land owner would in the ordinary course of business and under normal circumstances envisaged having an obligation over lands falling outside his property.

(4) Therefore, the expression “everything… pertaining to” in SC31 should mean everything within the Brown Area that pertains to the paved way.

(5) The Tribunal made two further observations in support of its conclusion.  First, Special Condition 18 (“SC18”) and Special Condition 22 (“SC22”) made express reference to maintenance obligations outside the Lot.  If the Government and ENM intended ENM to maintain anything outside the Brown Area, they would have drafted SC31 in terms like SC18 and SC22.  Second, SC31 requires ENM to construct the paved way to the standards laid down in the Building (Private Streets and Access Road) Regulations such as the carriage way, footpath, kerbstones, manholes, gratings, channel etc. so it appears that the maintenance obligation under SC31 should only be applied to these kinds of pertaining structures of the paved way.

(6) It criticized the BA’s argument saying that (a) the argument had lost sight of the fact that although the paved way lies outside the Lot, it nevertheless for the purpose of SC31 must be sited within the Brown Area; (b) the subject matter of determination in the case was not the Lot itself but the Brown Area; and (c) if the argument were correct, ENM must maintain all the lands that fall outside of the Lot.

(7) SC31 is a “follow up” of General Condition 4 (“GC4”) of the New Grant and since both clauses mention maintenance obligation in respect of the surface of the right of way, therefore the common intention of the Government and ENM in respect of ENM’s maintenance obligation under SC31 was to be limited to Hilltop Road and everything that was constructed on its surface.

28. In respect of the BA’s argument on SC13, the Tribunal accepted the BA’s evidence and submissions and rejected ENM’s.  However, the Tribunal went on to hold that ENM’s maintenance obligation under SC13 is only limited to the Northern End of Feature 33(1).  See: pages 21 - 29 of the Determination.

D.  THIS JUDICIAL REVIEW

29. The BA in this judicial review challenges the Determination on two grounds:

(1) The Tribunal erred in law in its construction of SC31.  On a proper construction, ENM has an obligation under SC31 to maintain Features 156(1) and 33(1).

(2) Further, in determining ENM’s obligations under SC13 to maintain Feature 33(1), the Tribunal also erred in law in misunderstanding the BA’s case before it or in failing to give adequate reasons in its conclusion.

30. I will look at each of these grounds in turn.

D1.  The proper construction of SC31

31. Construction of an agreement is a question of law for the court.  There is no dispute as to the general principles applicable to construction.  The exercise of construction is an objective one, seeking to find the common intention of the parties.  In doing so, the court may as a starting point look at the ordinary meaning of the words used, but should construe them in the proper context with regard to the purpose of the contractual term, and the background that is objectively known (or reasonably known) to the parties at the time of the agreement.[11]

32. The relevant part of SC31 that gives rise to the question of construction is this: “The grantee [ie, ENM] shall construct a paved way to the standards laid down in Building (Private Streets and Access Roads) Regulations over [the Brown Area] and shall uphold, maintain and repair such paved way and everything forming portion of or pertaining to it to the satisfaction of the Director, and the grantee shall be responsible for the whole as if he were absolute owner thereof” (emphasis added).

33. In the present case, as observed by the Tribunal in the Determination at page 13, the principal contentions are in relation to the proper meaning of the words “everything… pertaining to” the paved way used in SC31.

34. The BA submits that properly construed, the words “everything… pertaining to” the paved way used in SC31 are intended to mean everything that is (a) constructed in association with the paved way (ie, the Hilltop Road); (b) adjoining the paved way; and (c) essential to the support of the paved way.

35. I agree.

36. As submitted by Mr Mok, the ordinary and dictionary meaning of the word “pertain” is “belong or attached to (a) as a part (b) as an appendage or accessory (c) as a possession, legal right or privilege” or “have reference or relation to”.  See: Shorter Oxford English Dictionary (6^thEdn, 2007), Vol 2, p 2127.

37. The similar word “appertain” has also been construed to mean the same as “belong” in a clause of a conveyance agreement: Barlow v Rhodes (SC 3 Tyr 280) (1883) 1 C & M 439 at 475, and in a general maintenance clause of the Government lease: Owners of Savoy Court v Building Authority (BA 368/2005, 16 August 2011) following Barlow.

38. At the same time, the word “belong” also bears an ordinary and natural meaning of “be rightly assigned or appropriate to as an adjunct” or “pertain or relate to” or “be connected as a member, part, inhabitant, dependency etc”.  See: The New Shorter Oxford English Dictionary. Thus, something would be regarded as belonging to a principal matter if it is part and parcel of the principal matter by being, say, substantially connected to or dependent on the principal matter.

39. Bearing these ordinary meaning in mind, when the words “pertaining to” in SC31 are read together with the other words of the clause and in its proper context, I am of the view that they bear the objective meaning to refer to something which was formed as a result of the construction works of the paved way and is substantially connected to or in support of the “pave way”.  I will explain why.

40. The overall objective meaning and intention of this clause is in plain:

(1) the grantee of the Lot has an obligation to construct a paved way on the Brown Area (ie, on the original Hilltop Road) to a quality that satisfied the requirements of the Building (Private Streets and Access Roads) Regulations (“the Regulations”); and

(2) after having constructed the “paved way”, the grantee then thereafter has the obligations to uphold and maintain (i) the paved way (ie, the Hilltop Road after “paved” to the requisite quality); “and” also (ii) “everything” that is portion (“forming”) of Hilltop Road as paved or belonging (“pertaining”) to Hilltop Road as paved as an owner of “the whole” (ie, Hilltop Road as paved and “everything” that is portion of or that is belonging to Hilltop Road as paved).

41. Given the linking word “and”, it is clear that the reference to “everything” that has become portion of or belonging to the “paved way” was intended to be something other than and in addition to the “paved way” itself, since SC31 already provides that the grantee shall have the duty to maintain and repair the “paved way” itself.

42. At the same time, the objective context at that time was that the grantee had to construct the paved way over the original Hilltop Road, which was laid between hill slopes and banks.  In the premises, it must be objectively within the parties’ reasonable contemplation at the time of the New Grant that, in constructing the paved way on the original Hilltop Road to a standard and quality required under the Regulations, necessary corresponding constructing works might have to be carried out at those hillside slopes along the original Hilltop Road.

43. With this context in mind, it is clear to me that the objective intention of the parties is that it was the grantee who would have an obligation to maintain and repair not only the paved way constructed by it, but also other structures formed as a result of the construction works, and which are necessary for the construction and support of the paved way.  Indeed, with this background, it would in my view be odd and beyond common sense if it were the common intention of the parties that the grantee would only be responsible for the maintenance of the paved way it has constructed but not all the other structures that were formed as a result of and necessary for the construction of that very paved way.

44. Once read against this context, objectively construed, the words “everything… pertaining to” the paved way are intended to refer to everything that is formed as a result of the paving construction works, and which has become substantially connected to or in support of the “paved” Hilltop Road.  This is also consistent with the ordinary meaning of the word “pertain”, which (as mentioned above) means something that is substantially connected to or dependent on the principal matter.  This phrase is therefore intended to cover something that is formed as a result of the paving construction works and are substantially connected to or in support of the paved Hilltop Road, whether it is within or outside the Brown Area (ie, the Hilltop Road).

45. In the premises, I am unable to agree with the Tribunal’s construction that the words “everything… pertaining to” the paved way in SC31 were objectively intended by both the grantor and grantee to refer only to something which is within Hilltop Road.

46. As I mentioned above, the Tribunal relied on four observations to support its conclusion that, properly construed, the words “pertaining to” in SC31 were intended by both the Government and the grantee to refer only to those things that were within the Brown Area.

47. I will first deal with the first two observations which are stated at pages 14 - 15 of the Determination as follows:

“Common Intention

When New Grant No.5399 was entered into in 1976, the common intention of the parties at that time was that the Appellant should use the Lot as a country club as provided under SC (6) and not for any other purposes. It was also the common intention of the parties at that time that the Appellant was to be granted a right of way to the Hilltop Club. This right of way did not come cheap because according to SC (31), the Appellant had to build it and maintain it at the Appellant’s own costs. The only thing which we do not readily understand about SC (31) is that at that time, both the Government and the Appellant knew very well that there was already in existence a paved way, then why did the Government in the circumstances still stipulate under SC (31) that ‘the grantee shall construct a paved way....’. Our belief is that at that time, both the Government and the Appellant must have discovered that firstly the paved way was substandard and secondly the paved way had not been properly sited. So in substance, what the Government really required of the Appellant under SC (31) was not to construct a paved way afresh but to upgrade the paved way to the standards of a public street and to position it properly within the area designated by the Government. In this connection, the Government had decided to map out the location of the right of way and had it properly marked and coloured brown on the plan annexed to New Grant No.5399 (‘the Brown Area’) for the identification of both parties. A copy of the said plan is attached herewith and marked ‘Brown Area’. In the circumstances, SC (31) is a special clause put in by the Government to define the rights and liabilities of the Appellant within the Brown Area. Since SC (31) applies only to things and matters that happen or occur inside the Brown Area, it follows that for things and matters that happen or occur outside the Brown Area, SC (31) shall have no application and the Appellant shall assume no liabilities whatsoever. This makes commercial sense because no land owner would in the ordinary course of business and under normal circumstances envisage having any obligation over lands falling outside his property. That being the case, we arc of the view that the true construction of the meaning of the expression ‘everything pertaining to’ in SC (31) should mean ‘everything within the Brown Area that pertains to the paved way’. For the purpose of this Appeal, it is not necessary for us to identify the things that pertains to the paved way under SC (31). What we understand of the meaning of SC (31) is that, in order to trigger a maintenance obligation on the part of the Appellant under New Grant No.5399, all these pertaining things must be located within the Brown Area.” (emphasis added)

48. The first observation is thus this: it is the Tribunal’s “belief” that at the time of the New Grant, “both the Government and [ENM] must have discovered that firstly the paved way was substandard and secondly the paved way had not been properly sited”.  “So in substance”, the Tribunal then went on to say, “what the Government really required of [ENM] under SC31 was not to construct a paved way afresh but to upgrade the paved way to the standards of a public street and to position it properly within the area designated by the Government”.  Given that the Government had specifically identified and mapped out the Brown Area for the grantee to construct (and hence site) the paved way, it must thus be the intention of the parties that the obligation of the grantee was to construct the paved way on the Brown Area only and hence the maintenance responsibilities that followed thereby must also only be restricted to the Brown Area.

49. With respect, I am unable to agree with the Tribunal.

50. As rightly submitted by Mr Mok, the Tribunal came to this view based on what it believed to be what the parties “must have discovered” at the time of the New Grant.  This “belief” is not supported by any evidence before it.  The Tribunal also did not set out in the Determination what is the evidence or basis that it relied on to support such “belief”.  Such “belief” is also not something which in my view could be reasonably and objectively inferred.

51. Further and in any event, even if the parties did intend to require the grantee to construct the paved “Hilltop Road” by upgrading it and by repositioning it only along the Brown Area, it does not then follow that it must then be objectively their common intention for the grantee to have the responsibilities to maintain only anything that is within that area.  This is so as this would not obviate the above-mentioned objective and reasonable anticipation of the parties of the potential need to carry out construction works on the hillside slopes to upgrade and (in particular) re-site the original Hillside Road.  With that in mind, it is difficult to see why it would then be the objective intention of the Government (as concluded by the Tribunal) not to require the grantee to also maintain and repair those hillside slopes where construction works had been carried out by the grantee for the purpose of constructing and re-positioning the paved way.

52. For these reasons, the Tribunal’s above first observation is an invalid one to support its construction.

53. The Tribunal’s second observation is that it would not make any commercial sense for the grantee to have agreed to bear effectively an unlimited liability to maintain something which is on the Government land but not even on the Brown Area.

54. I am also unable to agree with the Tribunal’s view.  As I have explained above, the mere fact that the grantee was required to construct the paved way on the Brown Area does not then mean logically and objectively that it did not have to carry out construction works on the hillside slopes alongside the Brown Area in constructing the paved way.  In the same vein, it therefore does not follow that it would not make commercial sense for the parties to have intended the grantee to be responsible also for maintaining those hillside slopes where construction works had been carried out by the grantee in constructing the paved road and which provide substantial support to that road.  Quite to contrary, in my view it is of common and commercial sense that the grantee would be responsible to maintain and repair them, as they are formed as result of the construction works and are substantially connected to or supporting the road as paved.

55. I therefore also reject the second observation as a valid one to aid the construction of SC31 in the way the Tribunal has concluded.

56. The Tribunal then went on to refer to two additional observations to support its construction on the meaning of the words “pertaining to” in SC31.  I would for convenience refer them as the third and fourth observations, and they are stated at pages 15 - 16 of the Determination as follows:

“Besides the analysis above, we have two more observations. Firstly, there are two special conditions in New Grant No.5399 which have made express reference to maintenance obligations outside the Lot. We cannot find similar provisions in SC (31). Since New Grant No.5399 is a carefully drafted legal document, we believe that should the Government wish the Appellant to maintain anything outside the Brown Area, they would have chosen words along the line of these two special conditions. Under these two special conditions, the Government has clearly set it out that the Appellant has an obligation to maintain lands outside the Lot. SC (18) provides that ‘the grantee shall maintain at his own expense and to the satisfaction of the Director of Public Works such drains and channels, whether within the boundaries of the lot or on Crown Land.’ [Emphasis added], and SC (22) provides that ‘the grantee shall make all arrangements at his own expenses and to the satisfaction of the said Director for the treatment and disposal of foul or contaminated water by the construction, operation and maintenance of suitable works either within the lot or on Crown Land or otherwise.’ [Emphasis added]. It is evident that had the Government under SC (31) intended to require the Appellant to maintain anything outside the Brown Area, they would have drafted SC (31) in terms like these two special conditions. We have reviewed all the other special conditions in New Grant No.5399 and find them well-thought-out and consistent with each other.

Secondly, since the Appellant was required under SC (31) to construct the pave way up to the standards laid down in the Building (Private Streets and Access Road) Regulations such as the carriage way, footpath, kerbstones, manholes, gratings, channel etc. specifically set out in the aforesaid Regulations, so it appears to us that the maintenance obligation under SC (31) should only be applicable to these kinds of pertaining structures of the paved way. An analogy can be made with GC (4) because GC (4) is a comprehensive clause dealing with the maintenance responsibility of a grantee generally in respect of streets, road and lanes which are required to be formed and sited under Government leases by the grantees. Under this general condition, it only states that the grantee is required to maintain ‘the surfing, kerbing, drainage (both foul and storm-water sewers) and channeling’, namely all matters relating to the surface of the streets, roads, and lanes required to be formed and sited under a Government lease. Nowhere has there been any mention of maintenance obligation regarding ‘essential support’ or ‘foundation’ of the streets, roads or lanes under this condition.”

57. Again, I agree with Mr Mok that these observations are invalid.

58. There is no valid comparison between SC18 and SC22 of the New Grant on the one hand and SC31 on the other for the purpose of properly construing SC31:

(1) SC18 is concerned with the maintenance of drains and channels whether within the Lot or on Government land.  SC22 provides ENM has the obligation to operate and maintain suitable works, either on the Lot or on Government land, for treatment and disposal of foul or contaminated water.  Thus both conditions relate to ENM’s obligation within the Lot and outside the Lot.

(2) SC31 on the other hand is exclusively concerned with matters occurring on Government land (ie, outside the Lot).  It would therefore be pointless for the drafter of SC31 to make a distinction between the Lot and Government land as was done in SC18 and SC21.  What the drafter of SC31 in fact did was to make a distinction between on the one hand, the paved way, which is the Brown Area, and on the other, everything forming portion of or pertaining to the paved way.

59. The fourth observation (which placed reliance on the first part of SC31 having specifically referred to in the Regulations) is similarly invalid because the Tribunal had failed to appreciate that SC31 imposes two sets of obligations on ENM which are not co-extensive.  As I mentioned above, the first is to construct a paved way (including its surface) to the requisite standards of the Regulations and second to uphold, maintain and repair the paved way (including its surface) and everything forming portion of or pertaining to it to the satisfaction of the designated Government official.  If it was the intention of the parties that ENM’s obligation to uphold, maintain and repair would only be limited to the paved way (including its surface) and only that, then there would not have been any need to include the expression “and everything forming portion of or pertaining to it”, “it” being the paved way, in SC31.  I repeat what I said at paragraphs 40 - 41 above.

60. Accordingly, the Tribunal’s fourth observation that ENM’s obligation to maintain should only be applicable to the things referred to in the Regulations and GC4 cannot be supported and is contrary to the plain language of SC31.  Further, GC4 does not help as it offers no clue as to what falls within the expression “everything forming portion of or pertaining to” Hilltop Road.

61. Finally, the Tribunal’s other points stated in the Determination to reject the BA’s construction as summarised at paragraph 26 above are with respect also untenable.

62. As I explained earlier, the fact that Hilltop Road must be sited within the Brown Area was beside the point.  It did not by itself answer the question of what apart from Hilltop Road is ENM obliged under SC31 to uphold, maintain and repair (ie, what else apart from Hilltop Road is included in the expression everything forming portion of or pertaining to Hilltop Road).  I repeat my reasons at paragraphs 40 - 44 above.

63. The Tribunal’s criticism that the subject matter it was concerned with was the Brown Area but not the Lot presupposed, incorrectly, that the maintenance obligation under SC31 is only limited to the Brown Area.  This is a self-serving presupposition which cannot in any way materially override or negate the court’s above analysis in arriving at the objective construction.

64. The Tribunal’s criticism that if the BA were right then ENM must maintain all the lands that fall outside the Lot is also misplaced.  This is part and parcel of the Tribunal’s observation that it would make no commercial sense for ENM to have agreed to maintain and repair anything beyond the Brown Area.  As I concluded above, under a proper construction, SC31 only requires ENM as the grantee to also maintain those parts not on the Brown Area but (a) are formed or resulted from ENM’s own works in constructing the paved way, and (b) which are attached to Hilltop Road and shown to be substantially connected to and supporting the road.  The liability is thus a limited one, and whether a particular slope or structure outside the Brown Area would fall within that meaning would depend on the evidence, of which any grantee in ENM’s position could obtain with the help of the relevant experts.

65. The Tribunal’s further point (see paragraph 26(7) above) that as both SC31 and GC4 mentioned maintenance obligation in respect of the surface of Hilltop Road and therefore ENM’s obligation to maintain under SC31 is limited to the surface of the road is, as submitted by Mr Mok, similarly erroneous:

(1) In the first place, there is nothing in SC31 that restricts ENM’s maintenance responsibility to the surface of Hilltop Road.

(2) Second, it is difficult to see why GC4 is necessarily concerned only with the surface of the road.  It speaks about maintenance of drainage and foul and storm water sewers which are likely to involve work both on and beneath the surface of the road.

(3) Third, even supposing that GC4 is only concerned with the maintenance of the surface of the right of way, there is no conflict between GC4 and SC31 if the latter were to impose an obligation on ENM to maintain the support of the road.  All that SC31 does in this case is to enlarge and supplement the obligations under GC4, which is permissible.

(4) Fourth, even assuming there is a conflict between GC4 and SC31, GC4 cannot be relied upon to construe SC31 on the basis that SC31 has to be consistent with the General Conditions.  This so because General Condition 10 has provided expressly that the General Conditions “shall be read and construed as varied or modified by the Special Conditions”, and the Special Conditions prevail over General conditions if they are in conflict.[12]

66. Finally, I need to consider the additional submissions advanced by Mr Ho seeking to support the Tribunal’s construction, which have not been dealt with in the above.

67. Mr Ho emphasises that the court should construe SC31 not in isolation but in the context and nature of the New Grant as a whole, in particular the New Grant’s purpose.  In this respect, Mr Ho highlights the following:

(1) First, leading counsel stresses that the New Grant is a surrender and re-grant of land,[13] which was a common practice at that time and as of now.  The exchange was for the specific purpose and primary object of constructing buildings (the clubhouse) on the new Lot.[14]

(2) Second, as in many similar such leases and in light of the specific purpose and object (says Mr Ho), the New Grant also contains many provisions prohibiting certain acts and conduct of ENM in the use of the land.[15]

(3) All these clauses have been drafted carefully and in detail and many of the provisions impose a duty and obligation upon ENM to take up responsibility for things and matters that might happen or occur on the adjoining land to the Lot in question.

(4) SC31 also imposes a duty upon ENM to construct a paved way over the Brown Area on the plan annexed to the New Grant, and that ENM shall uphold, maintain and repair the paved way.  Hence, there is no doubt or dispute about the boundary of the paved way, which is the Brown Area.

(5) There is no difficulty for the parties then to draft SC31 in such way that it includes an express reference to the paved way that is shown coloured brown on the annexed plan and “any other part of it that may fall outside and beyond the boundary of the paved way” and to mark on the annexed plan all the hillside slopes that ENM is under the duty to uphold, maintain and repair, in colour brown or any other colour.

(6) The absence of using such expressed words and marking on the annexed plan to include these other hillside slopes that require ENM also to maintain and repair, when viewed against the way all the other provisions were drafted when it was intended that ENM had a wider responsibility than that on the Lot, supports the construction that it was not the common intention of the parties that ENM should be responsible to maintain and repair all the hillside slopes that are not within the Brown Area.

68. With respect to Mr Ho, I am not persuaded by these submissions.

69. Mr Ho’s above submissions are premised on the fundamental suggestion that a construction of SC31 contrary to the Tribunal’s one is to require ENM to maintain and repair all the hillside slopes along the Brown Area, and thus one which could be described with exactness and marked on the plan.

70. As I said above, it is not the BA’s case, nor is it the court’s construction, that SC31 is intended to mean that.  All that it intends to require, as consistent with the words used, is that ENM (as the grantee) would be responsible to also maintain and repair all those hillside slopes that (a) were formed as a result of the works in constructing the paved way; and (b) are attached to the road and provide substantial support to it.  At the time of the New Grant, before any works had been carried out, it is obviously impossible and in any event impracticable to describe these structures with any precision and to mark them on the plan.

71. Mr Ho also submits that, even in the Tribunal’s constructed meaning, it is not “otiose” (as submitted by the BA) to add the phrase “everything forming portion of or pertaining to” after “such paved way” in SC31.  This is so because it is not unusual, and indeed it is common, that more than one single word using similar or identical meaning are used to describe the same thing in a legal document, for prudence sake.

72. I am also unable to accept this submission.

73. First, the ordinary meaning of the word “pertaining” refers to attaching to a subject matter, and does not sit consistently the word being a different way of referring to that very subject matter itself.  Second, as I said above, the use of the linking word “and” in the present case is more consistent with referring to something in the phrase which is additional to the “paved way” itself.  Finally and in any event, the recognition by the courts of a traditional “torrential” drafting style by using a number of phrases expressing more or less the same idea is only, in an appropriate case, to respond to the construction principle of presumption against superfluous language and not to insist on giving each word in a series a distinct meaning.[16]  It itself is not a principle of construction and certainly does not have the effect of overriding in any material way the considerations I have taken into account in the above in arriving at the construction of SC31.

74. Mr Ho further argues that as ENM would be required to enter Government land to maintain and repair these hillside slopes, the lack of any express provisions in SC31 or the New Grant to authorise ENM’s said acts points strongly to the conclusion that the mere words “pertaining to” were clearly not intended to impose on ENM the onerous responsibility of maintaining the slopes outside and beyond the boundary of the paved way.

75. I do not agree.

76. Given the limited scope of the responsibility to maintain the hillside slopes as construed above, there would not be such an onerous difficulty or uncertainty imposed on ENM to carry out the maintenance and repair obligation since either there is (as suggested by Mr Ho) an implied consent given by the Government for ENM to enter the relevant Government land to carry out these repair or maintenance works on those limited types of hillside slopes or, if necessary, ENM could simply seek express permission from the Government before it seeks (on its own initiative) to carry out any necessary repair or maintenance works.  The suggested uncertainty and impracticability is in my view more apparent than real, and again does not override my considerations in support of the court’s above construction of SC31.

77. For all the above reasons, I conclude that on a proper construction, the words “everything… pertaining to” the paved way in SC31 refers to “everything” that is formed or resulted from the paving construction carried out by the grantee in constructing paved way and which are substantially connected to or in support of the “paved” Hilltop Road.  The Tribunal therefore erred in law in construing that to restrict it to refer only to everything that is within the Brown Area.

78. The BA in the Form 86 has asked this court to further conclude and declare that ENM is under an obligation to maintain Features 156(1) and 33(1).

79. However, the question of whether Features 156(1) and 33(1) are such man-made slopes which are resulted from the grantee’s construction works and are substantially connected to or in support of Hilltop Road is a question of evidence which the Tribunal had not adjudicated upon.  This court sitting in its supervisory role in judicial review cannot and should not proceed to usurp the function of the fact finding tribunal.

80. The proper remedy that this court should grant is to remit the Appeals to the Tribunal for reconsideration in light of the construction of SC31 as concluded by this court.

D2.  The determination in respect of SC13 in relation to Feature 33(1)

81. As mentioned above, it is the BA’s position that ENM also has an obligation under SC13 to maintain Feature 33(1).  There was no dispute in the Appeals on the construction of SC13 in relation to ENM’s obligations thereunder.  What was in dispute before the Tribunal under this aspect is only in relation to the facts concerning the status and state of Feature 33(1).  The Tribunal identified the factual disputes in the following opening paragraphs at pages 21 and 22 of the Determination:

“Special Condition 13

Although we have considered the effect of SC (31) but it is not sufficient to dispose of the whole Appeal because the BA also says that the Appellant has incurred a maintenance obligation under SC (13) of New Grant No.5399. We now therefore turn to SC (13) which involves only a factual dispute whether the Northern end of Feature 33(1) (‘Northern End’) was modified during the period from 1979 to 1981 when a car park platform was constructed at the Extension Area. A copy of the Extension Plan showing the location of the Extension Area is attached to this Determination and marked ‘A’. Likewise, a copy of the Slope Boundary Plan showing the location of the Northern End (hatched black) is also attached to this Determination and marked ‘B’. These two plans are attached to this Determination for the purpose of assisting the readers of this Determination to understand the testimonies of the witnesses called by the BA and the Appellant in below.

SC (13) provides that ‘where any cutting away, removal or setting back of adjacent or nearby hillside or banks or any building up or filling in is required for the purpose of or in connection with the formation, leveling or development of the lot or any part thereof, the grantee shall construct or bear the cost of the construction of such retaining walls or other support as shall or may then or at any time thereafter be necessary to protect and support such hillside and banks and the lot itself and to obviate and prevent any falling away, landslip or subsidence occurring thereafter, and shall at all times maintain the said retaining walls or other support in good and substantial repair and condition. In the event than as a result or arising out of any such formation, levelling or development any landslip, subsidence or falling away occurs at any time whether in or from the adjacent hillside or banks or whether the same be Crown or leased land, or in or from the lot itself, the grantee shall at his own expense reinstate and make good the same……’ [Emphasis added]

The BA’s case is that cutting away or setting back of adjacent or nearby hillside or banks or filling in (‘Construction Works’) were done by the Appellant during the period from 1979 to 1981 at the Extension Area for the purpose of or in connection with the formation, leveling or development of the Lot and thereby triggered off an obligation to maintain the Northern End.

The Appellant does not dispute that Construction Works were carried out at the Extension Area between 1979 and 1981 for the purpose of or in connection with the formation, levelling or development of the Lot. The Appellant only denies that they have ever conducted any Construction Works at the Northern End. In essence, it is the Appellant’s case that at all times, they have stayed within the Extension Area and have never intruded into the Northern End. As a result, the Appellant has no obligation whatsoever to maintain the Northern End under SC (13).” (court’s own emphasis)

82. After identifying the disputes as stated above, the Tribunal went on to consider the relevant evidence, including the witness and expert evidence, adduced by both sides.  It accepted all the BA’s evidence and rejected ENM’s evidence in these respects.  It however then went on to conclude that ENM had an obligation under SC13 to maintain “the Northern End” of Feature 33(1) (ie, not the entire Feature 33(1)).  In relation to this conclusion, the Tribunal said these at pages 28 - 29 as follows:

“At the hearing, Mr. Lam, Counsel for the Appellant, argued that although there were construction works on the Extension Area, the Appellant did not carry out any construction works at the Northern End. We take the view that whether construction works have been carried out at the Northern End by the Appellant is irrelevant because SC (13) provides that ‘...In the event than as a result or arising out of any such formation, levelling or development any landslip, subsidence or falling away occurs at any time whether in or from the adjacent hillside or banks or whether the same be Crown or leased land, or in or from the lot itself, the grantee shall at his own expense reinstate and make good the same......’. In our judgment, the cause which rendered the Northern End dangerous or liable to become dangerous does not need to have its origins within the Northern End. What matters is whether the Northern End has been rendered dangerous or liable to become dangerous by a cause which originates from the Extension Area. The fact that the Appellant has not carried out any construction works at the Northern End is neither here nor there. It does not automatically excuse the Appellant from the consequence of the construction works carried out by them at the Extension Area. We therefore reject the Appellant’s ground that since they have not carried out any construction works at the Northern End therefore they are not obliged under SC (13) to maintain the Northern End. We find it as a fact that it was the construction works carried out by the Appellant at the Extension Area from 1979 to 1981 that caused a risk of landslip, subsidence or falling away at the Northern End. Based on the aforesaid analysis, we come to the conclusion that on balance of probabilities the Appellant has incurred an obligation to maintain the Northern End under SC (13) of New Grant 5399.

Although we have found that no maintenance obligation has been incurred by the Appellant under SC (31) in respect of Feature 156(1) and Feature 33(1), we find as a fact that the Appellant has incurred a maintenance obligation under SC (13) in respect of the Northern End. For the avoidance of doubt, we would make it clear that the maintenance obligation of the Appellant under SC (13) is limited to the Northern End and does not extend to other parts of Feature 33(1).”

83. In this judicial review, Mr Mok challenges the Tribunal’s conclusion that ENM is only obliged to maintain the Northern End of Feature 33(1).  Counsel submits that it has always been the BA’s case before the Tribunal that ENM is obliged under SC13 to maintain the entire Feature 33(1).  This is also what is stated in the 2^nd DH Order.

84. In this respect, Mr Mok emphasises that there was (as recognised by the Tribunal) no dispute before the Tribunal as to the meaning of SC13.  SC13 provides that where any cutting away, removal or setting back of adjacent or nearby hillside or banks or any building up or filling in is required for the purpose of or in connection with the formation, levelling or development of the Lot or any part thereof, ENM has three consequential set of obligations:

(1) First, to construct or bear the costs of the construction of such retaining walls or other support (which means any method by which hillside above the slope is prevented from collapse)[17] such hillside and banks and the Lot and to obviate and prevent any falling away, landslip or subsidence occurring thereafter.

(2) Second, to maintain the retaining walls or other support in good and substantial repair and condition.

(3) Third, to reinstate and make good, at its own expense, in case of landslip, subsidence or falling away.

85. Mr Mok therefore highlights two points for SC13. First, the obligations are triggered off where the work done in question (ie, the cutting away, removal or setting back... or any building up or filling in... etc) is required for the purpose of or in connection with the formation, levelling or development of the Lot or any part of it.  It does not matter whether the work is done within or outside the Lot.  Second, the obligation the parties are concerned with at present is the second set of obligation, viz: the obligation to maintain.

86. The BA’s case before the Tribunal was that construction work done in respect of the car park area between 1979 and 1981, which was for the purpose of site formation, levelling or developing part of the Lot (ie, the car park area), triggered ENM’s maintenance obligation under SC13.

87. As demonstrated by Mr Mok, this is also what the BA’s evidence adduced in the Appeals sought to support:

(1) The car park area (ie, the extension to Lot No 360 in DD 454) was granted by way of Extension Letter dated 15 July 1980.

(2) API Report attached to the Stage 2 Report for Feature 33(1) described that the northern end of the slope (ie, the Northern End as defined by the Tribunal) was modified for the construction of the car park area above the slope in 1981.

(3) By a letter dated 8 December 2005 signed by Dr Sun,[18]he confirmed that (a) both the car park area and the Northern End were constructed/modified between 1979 and 1981; and (b) the modification of the Northern End is required (or indispensable) for the car park construction.  The “hatched” area at is in fact the Northern End as defined by the Tribunal.

(4) When Dr Sun gave evidence, he confirmed all the above to be correct.  He further produced two aerial photos (one taken in 1979 and the other taken in 1981) that showed that the car park area, which was covered with vegetation in 1979, was levelled out by 1981 thus suggesting there was indeed construction work there between 1979 and 1981.

(5) Mr Philip Chung[19] also gave evidence to support the BA’s case.

88. Mr Mok therefore says, given that the Tribunal had accepted the BA’s evidence and submissions, it is inexplicable as to why it then restricted ENM’s obligation to maintain under SC13 to only the Northern End.  Mr Mok emphasises that it was never the BA’s case that the obligation only applied to the Northern End or to only part of Feature 33(1), and the Tribunal in any event did not invite any submissions from the parties on whether the obligation only applied to the Northern End.

89. Mr Ho however submits that the BA has changed its case, as its counsel in its opening submissions for the Appeals at paragraphs 33 and 34 stated that ENM only had an obligation under SC13 to maintain the “northern portion” of Feature 33(1).  These paragraphs of the BA’s opening read as follows:

“33. In addition, in relation to the car park area of the Lot that was granted as an extension to [the Lot], the evidence shows that the northern portion of [Feature 33(1)] adjoining the car park area was constructed and modified in connection with the construction of the car park area between 1979 and 1981.

34. As such, the BA respectfully submits that [ENM] has a further obligation under [SC13] to (a) obviate and prevent any falling away, landslip or subsidence and (b) maintain the northern portion of [Feature 33(1)] adjoining the car park area on [ENM’s] land. See also: …” (emphasis added)

90. I agree with Mr Ho that, despite what Mr Mok has now sought to demonstrate the BA’s case before the Tribunal, the above paragraphs of the BA’s opening submissions may well have given the Tribunal the impression that the BA was only seeking ENM to maintain the Northern End of Feature 33(1) under the SC13 obligations.  In this respect, it is pertinent to note that the Tribunal did state in its opening paragraph when it considered the SC13 ground in the Determination (as quoted with emphasis above) that the factual dispute under SC13 was “whether the Northern end of Feature 33(1) (‘Northern End’) was modified during the period…”.

91. On the other hand, it must also be noted that in the BA’s written closing submissions at paragraph 2.2, it was clearly and expressly stated that its case on SC13 was that ENM had to maintain “the entire” Feature 33(1).  The submissions read as follows:

“2. In brief, the BA’s case is this.

2.1. …

2.2. The construction done in the northern portion of [Feature 33(1)] in around 1981 out of necessity for the construction of the platform for car parks at the Hilltop Country Club triggered an obligation on [ENM’s] part to maintain the entire feature under [SC13].” (emphasis added)

92. When all the above submissions are read in the round and together, coupled with the lack of any clear explanations from the Tribunal as to why (despite the BA’s case on closing) it concluded that ENM was only obliged to maintain the Northern End and rejected the BA’s submission that ENM was required to maintain the entire Feature 33(1), I agree with Mr Mok that the Tribunal had either misunderstood the BA’s case or had failed to consider the BA’s case properly and, if it had, it failed to give adequate reasons for its conclusion under this issue.  Either way, it had failed to properly engage with the BA’s case and on this basis, had failed to properly carry out its duty as a tribunal to make sufficient and proper enquiry.  This ground for judicial review should be allowed.  Cf: R (Mackenzie) v Secretary of State for Justice [2009] EWCA Civ 669 at paragraphs 34 - 35, per Arden LJ (with whom the other members of the English Court of Appeal agreed with).

93. In the premises, I would also allow this ground of judicial review and remit this part of the Determination to the Tribunal for reconsideration.

D.   CONCLUSION

94. For all the above reasons, the BA succeeds in both of its grounds of judicial review.  I will therefore quash the Determination and remit the Appeals to the Tribunal (differently constituted if necessary) to reconsider in light of the court’s findings in this judgment.

95. I further order on a nisi basis that ENM shall bear the costs of this application to be taxed if not agreed, with certificate for two counsel.

96. Lastly, I thank counsel’s assistance in this matter.