BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

CACV 277/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 277 OF 2012

(ON APPEAL FROM HCAL 60/2011)

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J U D G M E N T

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Hon Cheung CJHC:

The facts

1. This is an appeal from the order and judgment dated 19 November 2012 of Lam JA (as Lam VP then was), granting the Building Authority’s application for judicial review in respect of a building appeal.

2. China Field Limited (“China Field”) is the owner of two properties, Nos 11 and 12 Wang Fung Terrace. Wang Fang Terrace is a small private road in Tai Hang which connects to Tai Hang Road, the main road in that part of the city.  The area served by the private road is a narrow platform, in the shape of a finger pointing north, sitting substantially above Tai Hang Road on all three sides.  Below it, Tai Hang Road loops around the long east and west sides of the finger and the short tip of the finger, the north side.  No less than 17 residential buildings in the narrow platform rely on Wang Fung Terrace as their only vehicular access.  That residential area is also generally known as Wang Fung Terrace.  To avoid possible confusion in this judgment, unless the context suggests otherwise, I shall refer to Wang Fung Terrace, the private road, as the access road, and the residential area served by it as Wang Fung Terrace.

3. The junction where the access road joins Tai Hang Road is plagued with problems :

“… First, it affords poor visibility for cars joining Tai Hang Road. This is because of the steep slopes from the upper area of WFT [Wang Fung Terrace] to Tai Hang Road and the fact that a short distance to the north of that intersection Tai Hang Road bends sharply. Secondly, contrary to the BPSAR [Building (Private Streets and Access Roads) Regulations], WF Street [ie the access road] does not run at 90 degrees from Tai Hang Road for at least 7.5 metres. Rather, that junction (or immediately before the junction) is an acute angle. Thirdly, that acute angle means that all but the smallest cars are not able to travel smoothly from Tai Hang Road up WF Street. Most will need to do a three point turn immediately on entering WF Street (at least when having travelled south on Tai Hang Road to WFT). Those that enter WF Street having travelled north on Tai Hang Road need to cross into the oncoming lane of WF Street in order to travel up WF Street.” (para 41(d) of the 2006 decision – defined below)

4. All the buildings in Wang Fung Terrace are no more than 5‑storey high, with the exception of one building at No 6 Wang Fung Terrace, which consists of 16 storeys.  China Field wishes to redevelop its two properties by the construction of two new 39‑storey buildings.

5. In 2001, China Field submitted building plans for its proposed development to the Building Authority for approval under section 14 of the Buildings Ordinance (Cap 123) (“the Ordinance”).  The Building Authority refused to give his approval of the plans pursuant to section 16(1)(g) (incongruity with the immediate neighbourhood) and section 16(1)(h) (means of access that is dangerous or prejudicial to the safety or convenience of traffic).

The 2006 decision

6. The developer appealed to the Appeal Tribunal (Buildings) (“the Tribunal”).  By a decision dated 29 November 2006 (“the 2006 decision”), the Tribunal agreed with China Field on section 16(1)(g). It held that :

“… having in 1998 consented to the construction of a building which destroyed the congruity of [Wang Fung Terrace], No 6 (over three times the number of storeys of the tallest of the other buildings), it is now not open to the [Building Authority] to rely on section 16(1)(g) to refuse the present plans [of China Field]” (para 33).

7. However, the Tribunal rejected China Field’s arguments on section 16(1)(h). The building appeal was accordingly dismissed on the basis of that subsection alone.

The CFA decision

8. China Field then commenced judicial review proceedings to challenge the Tribunal’s decision to dismiss its building appeal on the basis of section 16(1)(h).  It failed before Saunders J and the Court of Appeal, but its appeal to the Court of Final Appeal was successful : China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342. The Court of Final Appeal held that section 16(1)(h) has a narrower meaning than that which had been understood below and therefore the Building Authority was not entitled to rely on it to reject the building plans.

9. As regards section 16(1)(g) (incongruity), Lord Millett NPJ, with whose judgment the other members of the court all agreed, said :

“22. The developers appealed to the Court of Appeal (Le Pichon and Cheung JJA and Hartmann J) which unanimously dismissed the appeals on 16 August 2008. The Authority was a party to the proceedings at first instance and in the Court of Appeal, where it served a Respondent’s Notice, and argued in both Courts that the Tribunal ought to have upheld its decision to reject the developments under s.16(1)(g). The developers objected that this argument was not open to the Authority as it had not brought proceedings for judicial review. Since the dismissal of the developers’ applications for judicial review entailed the rejection of their building plans in any event, neither court found it necessary to consider whether they should also have been rejected under s.16(1)(g) or whether the Authority was entitled to challenge the decision on this ground without first obtaining leave to apply for judicial review.

…

38. In my view, both appellants succeed on the Tai Hang Road Access Issue and are entitled to have the Tribunal’s decision thereon quashed.  As no other issue arises on China Field’s appeal, I would allow its appeal and remit its case to the Tribunal for a re-hearing.  It will be for the Authority to consider whether it wishes to invite the Tribunal to reconsider its decision under s.16(1)(g) and for the Tribunal to consider whether to do so.  Should it become necessary, it will be open to the Authority at an appropriate stage to apply for leave to bring proceedings for judicial review.  I would express no view on the approach the court should take to such an application, save to say that, in the light of the way in which the proceedings have been conducted hitherto, it would be strange if the application were dismissed merely on the ground that it was out of time.”

10. The sealed order of the Court of Final Appeal directed in paragraph 2 that “[China Field’s] case be remitted to the Appeal Tribunal (Buildings) for rehearing”.

The 2010 decision

11. China Field and the Building Authority could not agree on the scope of that remission, that is, whether section 16(1)(g), on which the Tribunal had decided in China Field’s favour in its 2006 decision, would still be a live issue before the Tribunal at the rehearing.  By its decision dated 4 August 2010 (“the 2010 decision”), the Tribunal ruled that the Court of Final Appeal had only remitted the section 16(1)(h) issue to it.  Nevertheless, the Tribunal went on to say :

“11. However, these proceedings were initiated long ago. We accept the respondent’s submission that we ought to try to avoid yet a further remission to us, by stating what our decision would have been, had we taken the view that the Court of Final Appeal had remitted the s16(1)(g) issue to us. However, no observations were made in the Court of Final Appeal as to the ‘immediate neighborhood’ limb of s16(1)(g). We will therefore only hear argument, during the forthcoming rehearing, as to the ‘incongruity’ limb of s16(1)(g).”

The 2011 decision

12. That, therefore, led to a further hearing before the Tribunal in which the parties argued not only on the section 16(1)(h) issue, but also on the section 16(1)(g) issue.  By its decision dated 29 April 2011 (“the 2011 decision”), the Tribunal allowed China Field’s building appeal against the Building Authority’s reliance on section 16(1)(h) to reject its building plans, a result foreshadowed by the Court of Final Appeal’s decision.  Furthermore, as regards section 16(1)(g), the Tribunal observed that “incongruity”, although not a word actually used in section 16(1)(g), is a useful shorthand for the legislature’s intention (para 26); the Building Authority’s rejection of China Field’s building plans was simply based on height difference (para 25); so far as town planning purposes were concerned the relevant outline zoning plan (“OZP”) in force at the time of submission of plans contained no restrictions in respect of building height (paras 27 and 28); and section 16(1)(g) could not be used as a “back door” means of dealing with the anticipated traffic problem created by the erection of the proposed buildings, a problem which could not be dealt with under section 16(1)(h) as narrowly interpreted by the Court of Final Appeal (para 30).  The Tribunal was, therefore, not persuaded to change its 2006 decision (para 31).

The judgment below

13. This led to the current judicial review proceedings, this time by the Building Authority as applicant against the decisions of the Tribunal as respondent, with China Field as interested party.  In the form 86, the Building Authority challenged that portion of the 2006 decision relating to section 16(1)(g); the 2010 decision that the Court of Final Appeal had only remitted to the Tribunal for rehearing the section 16(1)(h) issue; and the 2011 decision which allowed China Field’s building appeal against the Building Authority’s rejection of its building plans on the basis of section 16(1)(h) and which also “indicated” that the Tribunal saw no reason to change the 2006 decision regarding section 16(1)(g).

14. The application for judicial review was heard by Lam J (as the judge then was) in July 2012.  Amongst other things, the judge heard arguments on the scope of the Court of Final Appeal’s remission; the adequacy of the reasons given by the Tribunal in its 2011 decision regarding section 16(1)(g); the construction of section 16(1)(g); and whether there should be another remission to the Tribunal or the court could decide the building appeal by itself.  In his judgment given on 19 November 2012, the judge dealt with all these issues.

15. First, the judge held that the Court of Final Appeal did not remit the section 16(1)(g) issue to the Tribunal as it was not an issue raised in China Field’s judicial review which culminated in the appeal to that court.  But it does not follow that the Tribunal had no jurisdiction to entertain an application by the Building Authority to reopen that issue.  In the judge’s view, the correct approach was to treat the proceedings before the Tribunal to be “at large” once the Court of Final Appeal allowed the appeal, thereby implicitly quashing the decision of the Tribunal based on section 16(1)(h) (para 12).  The judge regarded the Tribunal’s willingness to hear submissions and to indicate its views on section 16(1)(g) in order to avoid a further remission as, “in effect”, equivalent to granting the Building Authority’s request to reopen the section 16(1)(g) issue.  According to the judge, the 2011 decision was, “in substance”, a further decision on section 16(1)(g) after due consideration of the parties’ further submissions (para 15).  The judge noted that the form 86 challenged not only the 2011 decision but also the 2006 decision on section 16(1)(g), and considered that “it does not matter very much whether the [Tribunal] had correctly perceived its power to reopen the decision on section 16(1)(g)” (para 16).  The judge therefore took a pragmatic view of the matter and focused on what he regarded as the crucial issue, that is “whether the Tribunal was correct in the 2011 decision on section 16(1)(g)” (para 16).  He was of the view that the 2006 decision on section 16(1)(g) had been superseded by the 2011 decision (para 17).

16. As regards the adequacy of the Tribunal’s reasons, the judge examined the reasons given in the 2011 decision in the light of what had already been said in the 2006 decision in relation to section 16(1)(g), and concluded that the Tribunal did not fail to consider the Building Authority’s arguments, and the reasons given were adequate (para 22).

17. Thirdly, in relation to the all-important question of the construction of section 16(1)(g), the judge held that the authorities do not support the proposition that once there are buildings of different heights in the immediate neighbourhood, congruity (in terms of height) is destroyed and section 16(1)(g) cannot be relied upon.  According to the judge, that would not be the proper construction of section 16(1)(g), and for that reason, the Tribunal erred in law in its 2006 decision so far as section 16(1)(g) was concerned (para 31).  The judge then examined the relevant authorities and the legislative history and came to four propositions (para 70) :

“(a) The regime under the TPO [Town Planning Ordinance] and s.13 of the TPO would not bar the BA [Building Authority] from exercising the power under s.16(1)(g) in not granting approval for plans on account of safety and access implications even though the height of the proposed development is permitted by the then applicable OZP;

(b) However, the permissible height under OZP, like the permissible scope of development under the Conditions of the Government Lease and the BPR [Building (Planning) Regulations], is a relevant consideration in the balancing exercise by reason of the presumption against imposing a blight on development;

(c) Aesthetic consideration is not the only relevant consideration for the exercise of the discretion under s.16(1)(g), whether under the first or the second limbs;

(d) In the exercise of the discretion, the BA should weigh the positive factors resulting from redevelopment and the negative factors in the balance.”

18. As regards the relationship between section 16(1)(g) and 16(1)(h), the judge said :

“81. On the face of these provisions, there is nothing to suggest that the discretion under (f) (viz the current s.16(1)(g)) is to be cut down in respect of safety aspects not covered by (g) (viz the current s.16(1)(h)). Nor is there anything in the legislative history suggesting this to be the intention of the legislature.

…

83. The more accurate interpretation, as it seems to me, is that s.16(1)(g) and (h) confers two distinct discretion on the BA in deciding whether to approve a set of plans.  For situation falling within the scope of (h), it may be irrational for the BA to disapprove a plan under (g) even though it could not disapprove it under (h).  However, for situation not falling within the scope of (h), it has no relevance on how the discretion is to be exercised under (g).”

19. The judge therefore held that the Tribunal had erred in law in paragraphs 28 to 30 of its 2011 decision in the following respects (para 85) :

“(a) The BAT [the Tribunal] erred in regarding that the absence of height restriction in the applicable OZP was determinative of how the discretion under s.16(1)(g) was to be exercised in the present case;

(b) The BAT erred in regarding that in the exercise of the discretion under s.16(1)(g) the BA could not have regard to traffic problem or other matters relied upon by the BA in the evidence.”

20. The correct approach in law, according to the judge, was that once the triggering condition had been satisfied under the first limb of section 16(1)(g) (see below), the discretion was to be exercised in accordance with the four propositions quoted above (para 86).  The judge therefore concluded that the decision of the Tribunal must be set aside on the ground of errors of law.

21. In relation to remedies, the judge was unable to conclude that the result of the building appeal, if the case were to be remitted to the Tribunal for reconsideration, would be a foregone conclusion.  The judge was unable to tell whether more stringent conditions ensuring immediate action on improvement of the access road could be explored and whether this would weigh one way or another in the balancing exercise.  The judge said that these were matters for the Tribunal instead of the court (para 95).  In those circumstances, the judge acceded to the application for judicial review; quashed the 2011 decision and the portion of the 2006 decision on section 16(1)(g); remitted the building appeal (including the question of whether China Field’s general building plans should be disapproved under section 16(1)(g)) to the Tribunal for reconsideration; and gave the costs of the proceedings to the Building Authority.

The arguments on appeal

22. Aggrieved by the judge’s decision, China Field appealed.

23. In the amended notice of appeal, China Field put forward no less than 18 grounds to challenge the judge’s decision.  At the hearing of the appeal, Mr Edward Chan SC, leading Mr Anthony Ismail, focused on two main points.  First, the judge was right to say that the Court of Final Appeal had not remitted the section 16(1)(g) issue to the Tribunal for reconsideration, but fell into error when he regarded the Tribunal’s entertaining of substantive arguments on section 16(1)(g) and giving its views under that subsection in order to avoid a further remission as equivalent to the Tribunal’s deciding to rehear the Building Authority on section 16(1)(g), thereby reopening that issue.  Instead, the judge ought to have rejected the application for judicial review on the short ground that the section 16(1)(g) issue was not before the Tribunal at the rehearing and the Building Authority was not entitled to rely on it to resist the building appeal.

24. Secondly and more substantively, Mr Chan argued that under section 16(1)(g), all that the Tribunal could take into account were “site specific” matters, rather than general town planning considerations.  By “site specific” matters, Mr Chan excluded all those that did not happen within the four corners of the site to be redeveloped. Senior counsel argued that any traffic safety concern at the junction between the access road and Tai Hang Road was a general town planning consideration, rather than a site specific matter, for the simple reason that it related to a location outside China Field’s site.  It was therefore an irrelevant consideration.

25. Alternatively, Mr Chan contended that site specific considerations must bear a causal connection as well as a spatial connection to the proposed development.  Mr Chan therefore submitted that the traffic safety concern at the junction was an irrelevant consideration because it did not result from the difference in height between the proposed buildings and the neighbouring buildings.  He also contended that the junction lies physically outside the “immediateneighbourhood” of the site and therefore the traffic safety concern failed the spatial connection requirement.

26. Mr Chan accordingly submitted that the judge was wrong in saying that the Tribunal had erred, as a matter of law, in excluding the traffic safety concern at the junction as a relevant consideration for the exercise of its discretion.

27. Resisting the appeal, Mr YC Mok, leading Mr Alexander Stock, argued, on the question of the scope of remission, that what the Court of Final Appeal had remitted to the Tribunal for rehearing was China Field’s building appeal, rather than any specific issue as such.  Therefore the Tribunal was fully entitled to reopen the section 16(1)(g) issue at the rehearing.

28. Mr Mok further argued that “site specific” considerations are not restricted to matters within the four corners of the site.  However, he accepted that there has to be a causal connection between those considerations and the difference in height in question.

29. Mr Mok also argued that the Tribunal had wrongly decided the question of congruity in both the 2006 decision and the 2011 decision.  It had erroneously thought that the erection of the 16‑storey building at No 6 Wang Fung Terrace had destroyed the pre‑existing congruity of Wang Fung Terrace.  As a result, the Tribunal had simply failed to apply the “fact and degree” test to determine whether the proposed development would be so incongruous with the buildings in the immediate neighbourhood that its building plans should be rejected even on that ground.

30. Mr Chan countered that the Tribunal was entitled to its view on incongruity, and in these judicial review proceedings the court should not disturb the Tribunal’s decision.

31. There were other relatively minor and miscellaneous arguments raised by both sides, but the above were the main arguments.  Where appropriate, I will mention these other arguments in this judgment.

The scope of remission

32. I will first deal with the procedural question of the scope of remission.

33. Section 16(1)(g) and (h) read :

“(1) The Building Authority may refuse to give his approval of any plans of building works where –

...

(g) the carrying out of the building works shown thereon would result in a building differing in height, design, type or intended use from buildings in the immediate neighbourhood or previously existing on the same site;

(h) the building works consist of, or any part thereof involves, the construction, formation or laying out of any means of access or other opening, not being a street or access road, to or from any street, and the place at or manner in which such means of access or other opening opens on to the street is, in his opinion, such as to be dangerous or likely to be dangerous or prejudicial to the safety or convenience of traffic using the street, or which may be expected to use the same”.

34. In my view, Mr Mok was right.  The Building Authority refused to approve the building plans on two grounds – section 16(1)(g) and 16(1)(h).  Two grounds were relied on but there was only one refusal under section 16(1).  China Field appealed from that single refusal to the Tribunal.  Both subsections were argued before the Tribunal, but there was just one building appeal.  In the 2006 decision, although the Tribunal spoke of “allow[ing] the appeal” under section 16(1)(g) and “dismiss[ing] the appeal” under section 16(1)(h) (para 66(a) & (b)), it is plain that what it intended to say was that it rejected the Building Authority’s reliance on section 16(1)(g) but agreed with his reliance on section 16(1)(h) to disapprove the plans.  Therefore, the Tribunal dismissed the building appeal (para 67).

35. It was against that decision to dismiss its building appeal that China Field sought and obtained leave to apply for judicial review : see the form 86A which identified the decision to dismiss the building appeal as the decision under challenge.  Saunders J dismissed the application for judicial review, and on appeal his decision was upheld by the Court of Appeal.  Their decisions were reversed by the Court of Final Appeal, and the formal order made by that court was to remit, not the section 16(1)(g) issue, but China Field’s case to the Tribunal for rehearing – in the light of the court’s determination on the section 16(1)(h) issue.  (By necessary implication, as the judge held, the Court of Final Appeal had quashed the Tribunal’s decision to dismiss the building appeal.)

36. Therefore, in my view, when it is said that the Court of Final Appeal had not remitted the section 16(1)(g) issue to the Tribunal (but only the section 16(1)(h) issue), that statement is slightly off‑focus.  What was remitted was not an issue, but China Field’s building appeal to the Tribunal, for rehearing – in the light of the court’s determination on the section 16(1)(h) issue.  That being the case, the question therefore becomes what were the powers of the Tribunal at the rehearing.  Was it open to the Tribunal to reopen the question of section 16(1)(g) which it had previously decided in the 2006 decision, a question which had not been dealt with in the judicial review proceedings?  The answer seems to me to be straightforward.  Given the quashing of the Tribunal’s decision to dismiss the building appeal, the appeal had not been determined. Rather, it was to be reheard.  Absent a final decision to allow or dismiss the building appeal, it was of course open to the Tribunal, like a court in a similar situation, to rehear whatever issues that it had previously heard and even “decided”, particularly when there had not been any trial of preliminary issue and both subsections had throughout been dealt with at the same time before the Tribunal.  This view fully accords with what have been said in the Court of Final Appeal regarding section 16(1)(g).

37. As mentioned, in its 2010 decision, the Tribunal unfortunately focused on the question of whether the section 16(1)(g) issue had been remitted.  It decided that question in the negative, but proceeded to express a willingness to hear further arguments on the issue and indicate its views on it, which it did.  This therefore gave rise to the arguments below and in this court as to whether the section 16(1)(g) issue is still an open one.

38. I think the Tribunal fell into error on this point.  It ought to have held that what was remitted to it was China Field’s building appeal from the Building Authority’s disapproval of its plans.  It ought to have held that it had the jurisdiction and discretion to reopen the section 16(1)(g) issue and it was not bound by its 2006 determination on this issue given that the appeal had not yet been finally disposed of by it.  It ought to have considered whether to exercise its discretion to reopen the issue.  And if it decided to reopen the issue, it ought to have given a determination, not “views”, on it after hearing further arguments.  It ought then to have decided the building appeal in accordance with its determinations on the two subsections.  Depending on the outcome, one party or the other could then have taken out judicial review proceedings to challenge the Tribunal’s decision.

39. But things did not happen that way.  I shall not repeat what has actually taken place.  What has happened has happened.  What is a court sitting in its public law jurisdiction to do with the situation?

40. I note that in these judicial review proceedings, under challenge is not only the 2011 decision or the 2006 decision, but also the 2010 decision on the scope of remission.  On the facts, there can be no doubt that the Tribunal, if it had realised all of the above, would have exercised its discretion to reopen the section 16(1)(g) issue to hear further arguments, and then made a decision on it.  In that scenario, I have also no doubt that the Tribunal would have come up with the same decision on section 16(1)(g) as its “views” in the 2011 decision.

41. In those circumstances, I think the court should, first of all, allow the challenge against the 2010 decision by quashing it.  However, instead of leaving the matter there thereby allowing the Tribunal to decide whether to exercise its discretion to reopen the section 16(1)(g) issue and then deal with the matter accordingly, the court should simply treat (as an inevitability) the Tribunal as having decided to exercise its discretion to reopen the section 16(1)(g) issue and, moreover, as having decided that issue in accordance with its “views” indicated in the 2011 decision.  The court should then deal with the Building Authority’s application for judicial review against the substantive 2006 and 2011 decisions accordingly.

42. For these reasons, the judge was right to entertain the application for judicial review on its substantive merits.  I therefore reject Mr Chan’s argument based on the scope of remission.

Section 16(1)(g)

43. I now turn to the substantive arguments on section 16(1)(g), and they have focused on how the discretion to disapprove building plans under that subsection may be exercised.

44. Section 16(1)(g) gives the Building Authority a discretion to reject building plans where the carrying out of the proposed building works would result in a building differing in height, design, type or intended use from buildings in the immediate neighbourhood or previously existing on the same site.

45. Over the years, it has become convenient to refer to the difference in height (etc) from buildings in the immediate neighbourhood as the first limb of section 16(1)(g), and the difference in height (etc) from buildings previously existing on the same site as the second limb.  But there can be no reason why a case cannot fall within both limbs – that must depend on the facts.

46. There can be no dispute, and in fact the wording is quite clear (“may”), that section 16(1)(g) gives a discretion.  A difference in height (etc) does not necessarily require the Building Authority to disapprove the building plans.  It simply gives the Building Authority a discretion to do so.  The question therefore becomes how should the Building Authority exercise his discretion, what considerations he may, or should, take into account, and what considerations he cannot, as a matter of law, take into account.

The congruity test – first limb of section 16(1)(g)

47. In this regard, again there is no controversy that a difference in height (etc) may, depending on the facts, constitute both the triggering condition for the exercise of the discretion under section 16(1)(g) as well as a material, and sometimes determinative, consideration for the exercise of the discretion, at least so far as the first limb is concerned.  This has been, again over the years, described as the congruity test.  In other words, the question is whether the difference in height (for instance) is so substantial such that the proposed development may be described as incongruous with the pre‑existing buildings in the immediate neighbourhood.  If the answer is in the positive, then depending on the facts, that fact alone may well be sufficient to justify the Building Authority’s exercising his discretion to reject the plans.  Or, it may constitute a material consideration in the weighing scales in deciding whether to disapprove the plans as a matter of discretion.

48. This test of congruity or incongruity is said to be a test of “fact and degree”: Bokhary, Section 16(1)(g) of the Buildings Ordinance (Cap 123) – A Shooter’s Guide (1989) 19 HKLJ 314, 320 – the article was referred to by Bokhary PJ in China Field at paras 4‑7.  In my view, this must be so.  Not only is this a question of judgment and to some extent, impression, it must also be a question of degree and comparison.  It is a factual matter, and in normal circumstances, it is not something that a court, sitting in its public law jurisdiction, should interfere with.  Rather, it is a matter for the Building Authority, and on appeal, the Tribunal, which hears appeals de novo.

49. In its 2006 decision, the Tribunal cited a statement in 12 Bowen Road, 3 July 1985, by the Tribunal that “if there is no congruity to preserve, then an exercise of discretion based on the prevention of incongruity is bad” (para 28).  There is some superficial attraction to this statement.  It is apparently logical to think that, almost by definition, the congruity test is only relevant if there is congruity in the immediate neighbourhood.  If congruity in the immediate neighbourhood has already been “destroyed”, or has never existed, the test cannot apply.  In fact, in that scenario, one wonders whether one can satisfy the triggering condition of difference in height (etc) in the first place at all.

50. However, it must be firmly borne in mind that whether there is pre‑existing congruity or not is a matter of fact and degree, and conceivably, depending on the facts, it may be relative to the proposed development concerned.  It is possible to imagine a situation where the proposed development is so different in height from the pre‑existing buildings in the immediate neighbourhood such that all pre‑existing differences in height amongst those buildings in the neighbourhood would pale into insignificance when compared with the huge difference in height between the proposed development and those buildings, as to make the congruity test relevant and applicable.  A similar point was recently made in Fortune Key Limited v Building Authority, Case Nos 473 & 616 of 2011, 24 December 2012, para 80, where the Tribunal said :

“In so far as the Appellant relies on the BAT [Tribunal] decisions in No. 12 Bowen Road Case and China Field Ltd v Building Authority (2006) [ie the 2006 decision], referred to above, this Tribunal is of the view that the mere existence of buildings in the immediate neighbourhood with some difference in building heights does not mean that there is no congruity in the immediate neighbourhood to preserve or that s 16(1)(g) BO [Buildings Ordinance] can never be invoked: No.2A Mount Davis Road Case. In particular, the proposition by the BAT in China Field Ltd v Building Authority (2006) that once the congruity of an immediate neighbourhood is destroyed, there is no congruity to preserve and so s 16(1)(g) BO can never be invoked is too extreme. Taken to its logical conclusion, the proposition means once the BA [Building Authority] approves a 16‑storey building in an immediate neighbourhood of 4‑5 storey buildings, any one can start erecting a 100‑storey building in the neighbourhood. It is such a counsel of despair that this Tribunal finds itself unable to associate with.”

51. Given, therefore, that the matter is essentially a factual one and it is really a question of degree and comparison, broad statements of principle and general propositions are inherently dangerous, and the Building Authority or the Tribunal, in reaching a decision on congruity in any particular case, must base its conclusion firmly on things on the ground.

The 2006 decision misunderstood the congruity test

52. The present case provides a good illustration of how one may get things wrong.  In the 2006 decision, the Tribunal came to the conclusion that the pre‑existing congruity in Wang Fung Terrace (the immediate neighbourhood) had been destroyed by the erection of the 16‑storey building at No 6 Wang Fung Terrace.  By the time of China Field’s building plans in 2001, there was no congruity in the immediate neighbourhood of the site to preserve.  The Tribunal therefore rejected the Building Authority’s reliance on section 16(1)(g) (para 33).  I agree with the judge that the Tribunal was quite wrong with its reasoning and decision.  I do not agree that the mere existence of a 16‑storey building amongst many low rise buildings of no more than 5‑storey high in Wang Fung Terrace has completely destroyed the congruity of Wang Fung Terrace such that the congruity test under section 16(1)(g) first limb is inapplicable and irrelevant when a developer wishes to erect two new 39‑storey towers in Wang Fung Terrace.  As I said, everything turns on the facts and it is really a question of fact and degree.

53. In 2A Mt Davis Road, 10 December 1980, the Tribunal there had to deal with a proposed redevelopment of a property comprising a 4‑storey car-park, a covered play area at podium level and two 47‑storey blocks of flats. The immediate neighbourhood consisted of buildings of various heights rising in the main to the maximum of about 4‑storeys with one 12‑storey block.  The Tribunal, after a site inspection, described Mt Davis Road as a “charming, quiet and secluded area”.  The Tribunal had no difficulty in concluding that the proposed development would be “incongruous and totally out of place”, and “would completely change the nature of the immediate neighbourhood”.  This decision of the Tribunal did not decide any question of law.  Rather, it illustrates how the congruity test should be applied.  It further illustrates that the mere existence of the 12‑storey building at Mt Davis Road amongst buildings rising in the main to a maximum of four storeys would not necessarily, and did not on the facts, destroy the congruity of the immediate neighbourhood completely, such that the proposed development need not be scrutinized under the congruity test.  It further demonstrates that failing the congruity test could, depending on the facts, by itself be fatal to a proposed development under section 16(1)(g).

54. Unfortunately, the Tribunal in the 2006 decision clearly misread 2A Mt Davis Road and erroneously thought that the earlier Tribunal had ignored some of the existing buildings in the immediate neighbourhood (paras 30 and 31), something which the Tribunal in 2A Mt Davis Road obviously had not done.  The Tribunal there had clearly taken into account the 12‑storey building but nonetheless considered, on the facts, that the proposed development would be incongruous with the buildings in the immediate neighbourhood as a whole.

55. In 12 Bowen Road, the Tribunal concluded that there was no congruity to preserve in relation to a proposed development of a 27‑storey domestic building with 4 storeys of car parking in a podium, when the immediate neighbourhood included a large 21‑storey block over a 3-storey podium, and two Government apartment blocks consisting of 16 storeys each of domestic accommodation over one storey of car-park on a raised platform about 3‑storeys high.  That case, likewise, did not decide any matter of principle.  Like almost all other cases, it was decided on its own facts.

56. Indeed every case necessarily turns on its own facts.  And the congruity test is a test of fact and degree. On the facts of the present case, I do not agree, and I think the judge was right, that after the approval and erection of the 16‑storey building at No 6 Wang Fung Terrace, there was no longer any congruity in Wang Fung Terrace to preserve, or to apply the congruity test.  In my view, the Tribunal erred in this respect as a matter of law in its 2006 decision, as a result of which, it failed to apply the congruity test at all.  I express no view on what the result should be in applying that test.  That would be a matter for the Tribunal.

57. In other words, insofar as the present judicial review application challenges the 2006 decision relating to section 16(1)(g), it must succeed.

The 2011 decision also got the congruity test wrong

58. However, there is still the 2011 decision on section 16(1)(g).  The judge thought that by 2011, the Tribunal had recognised its own error on section 16(1)(g) in the 2006 decision, and had in fact “abandoned its stand in the 2006 decision” (para 33), which must therefore be regarded as having been “superseded” by the 2011 decision (para 27).

59. When pressed in his reply submission, Mr Chan did not support that reading of the 2011 decision.  He argued that what the Tribunal did in 2011, after hearing further arguments on section 16(1)(g), was to maintain its earlier stance on congruity in the 2006 decision.  The Tribunal said so in so many words in paragraph 31 of the 2011 decision : “Nothing has been said to persuade us to change our 2006 decision”.

60. The difficulty with the judge’s more benevolent reading of the Tribunal’s position is that if one turns to the 2011 decision, it is plain that the Tribunal never applied the congruity test, let alone told the reader what its decision was on congruity and its reasons therefor.  Paragraphs 24 to 26 only dealt with general principles and matters.  They did not deal with the facts in the present case. Paragraphs 27 to 30 then dealt with other considerations – town planning and traffic.  Paragraph 31 concluded that nothing had been said to persuade the Tribunal to change its 2006 decision.

61. It seems to me that the only natural way to read the 2011 decision is that the Tribunal maintained its earlier view on congruity, that is, congruity in Wang Fung Terrance had been destroyed by the 16‑storey building, and there was no congruity to preserve.  Therefore, there was no question of applying the congruity test, and the Tribunal did not do so.  In this regard, I would differ from the judge’s reading of the position.

62. On the other hand, assuming that the judge’s view was correct, it would only make things even worse for the Tribunal.  It would mean that notwithstanding its recognition of its earlier error in treating that there was no congruity to preserve, the Tribunal, after hearing substantive submissions, still failed in its 2011 decision to apply the congruity test, to decide the matter accordingly, and/or to give reasons therefor.  Either one or a combination of them would mean that its 2011 decision should be disturbed.

63. In other words, either way, the challenge against the 2011 decision must succeed even on this ground on congruity alone.

64. Mr Chan tried vainly to argue that the Tribunal was entitled to, and did, come to the conclusion, as a matter of fact rather than law, that congruity had been destroyed by the 16‑storey building and there was no longer any congruity to preserve by the time of his client’s building plans.  He submitted that this was a matter for the Tribunal, not the court in its public law jurisdiction.

65. I disagree.  I accept that whether China Field’s proposed new buildings would be incongruous with the buildings in the immediate neighbourhood is a question of fact.  However, on a fair reading of the 2006 and 2011 decisions, it is plain that the Tribunal’s conclusion on congruity was not based on any meaningful assessment by the Tribunal of the pre‑existing situation on the ground or what would happen if the proposed development were to go ahead.  Rather, it was based on the Tribunal’s erroneous reading of the authorities and its belief that a congruous low rise neighbourhood is necessarily destroyed by the erection of a single high rise building such that henceforth there is no congruity to preserve vis-à-vis any future proposed development regardless of its proposed height.  That is a proposition of law which for reasons explained I reject.  In any event, insofar as the Tribunal’s conclusion should be regarded as a finding of fact, it is one which no reasonable Tribunal, when acting judicially and properly instructed as to the relevant law, could have found on the evidence before it, and is therefore an error of law that the court can, and on the facts of the present case, should disturb : Edwards  (Inspector of Taxes) v Bairstow [1956] AC 14, 36.

Considerations other than congruity

66. But there is a further reason why the 2011 decision should be disturbed.  This brings me to the arguments over what other considerations, particularly “town planning considerations”, the Building Authority or the Tribunal may legitimately take into account in the exercise of their discretion under both the first and second limbs of section 16(1)(g). These considerations have sometimes been referred to as “overriding considerations” (2‑11 Hok Sz Terrace, 27 February 1973, para 5) or “underlying factors” (16 Repulse Bay Road, 22 January 1980).

67. To recap the competing arguments, China Field’s original position, as set out in the amended notice of appeal and the written submissions, was that section 16(1)(g) is only concerned with aesthetic considerations.  Nothing else can be taken into account.  Mr Chan, at the hearing, withdrew from that extreme position and accepted that safety and other considerations that are “site specific”, in the sense that they relate to matters within the four corners of the site, may be taken into account.  Anything outside the boundaries of the site must be ignored.  Still less can broad town planning considerations, such as traffic saturation, density limitation, positioning control or infrastructure capacity, be taken into account.  Mr Chan also contended, as a fallback to his “within four corners” argument, that for a consideration to be relevant, there must be established both a causal connection and a spatial connection to the proposed development.

68. For the Building Authority, Mr Mok argued that health and safety, being the primary concerns of the Building Authority under the Ordinance, must always be relevant considerations.  Other “site specific” considerations may also be taken into account, but “site specific” does not mean that the consideration in question must be something within the four corners of the site, so long as a causal connection is established.

Health and safety

69. In my view, subject to what I am about to say on causal connection, health and safety must always be relevant considerations.  The judge has in his careful judgment considered in detail the legislative history of the relevant provisions, which I am not going to repeat.  But it is common ground that section 16(1)(g) originated from the Public Health and Buildings Ordinance 1903, section 203.  As Mr Chan accepted, that Ordinance was plainly about matters affecting public health and safety.  The fact that the relevant provisions were subsequently grafted into the then new Buildings Ordinance 1935 (section 10) does not mean, and I reject Mr Chan’s contrary argument, that public health is no longer a concern under section 16(1)(g).  Nothing in the legislative material presented by the parties remotely hints at that sweeping change in legislative intent.  I believe Mr Chan has drawn too much from the very brief long titles of the various Ordinances involved.

70. Health and safety are matters of public importance.  Any lingering doubt about their relevance under section 16(1)(g) is undesirable.  I wish therefore to state firmly that health and safety are always relevant considerations under section 16(1)(g) – subject to the question of causal connection.  I note that the authorities cited to this court all speak with one voice on this point : 29 and 31 Sands Street, March 1974, p 3; 1‑3 Leung I Fong, 5 June 1979, p 45; 11‑13 Sands Street, Case No 100-90, 31 October 1990, para 8; Rich Resources Enterprises Limited v The Attorney General, HCMP 3896/1991, 10 April 1992, Mayo J, p 9; 11‑13 Sands Street, Case No 113 of 1992, 15 October 1993, para 16(b); In the Matter of 11‑13 Sands Street, Hong Kong [1994] HKDCLR 7, 12 (para 16(b)); In re 15‑17 Sands Street, Hong Kong [1994] HKDCLR 21, 26 (para 6); New Town Project Management Limited v Building Authority, Case Nos 179 and 180 of 2007, and Bestview International Development Limited v Building Authority,Case Nos 571 and 583 of 2007 (heard together), 20 January 2009, para 42.

Other possible considerations

71. Besides public health and safety, other considerations may also be taken into account.  I reject, for the avoidance of doubt, the original position of China Field that only aesthetic considerations may be taken into account under section 16(1)(g).  The subsection refers to a difference in height between the proposed building and the buildings in the immediate neighbourhood or the building previously on the site.  Typically, one is concerned with a proposed building which is substantially taller than the neighbouring buildings or the original one.  As has been pointed out in authorities such as 15‑17 Sands Street (at pp 26-28),the primary concern over a high rise building is obviously density of population, which may give rise to problems of public safety, public health and infrastructure.  Therefore, matters such as population density, fire safety, water supply, ambulance services, refuse collection, delivery of goods, facilities for the elderly and disabled, sewage disposal and traffic problems may all have to be looked at, depending on the facts.

72. On a purposive interpretation of section 16(1)(g), there is therefore no reason or logic to restrict the relevant considerations for the exercise of the discretion given under that subsection to aesthetic considerations.  Indeed, the authorities cited to us have well demonstrated that over the years, many other matters have been taken into account by both the Building Authority and the Tribunal in approving or disapproving plans under section 16(1)(g), and I think they were right to do so.

“Site specific” in the sense of a causal connection

73. However, all this is subject to one important rider.  All these considerations, in order to be relevant for the consideration of the Building Authority and the Tribunal, must bear a causal connection to the difference in height (etc) in question.  In the cases cited to us, such considerations have been described as “site specific” considerations.  So far as I can see from these authorities, “site specific” was first used in 6‑8 U Lam Terrace, 10 November 1992. There, the Tribunal was concerned with a stepped street where vehicular access was restricted.  The Tribunal observed on page 18 that :

“It follows from what we say above that other considerations which do not result from the difference in height (such as the possible effect of other development schemes which may come forward near the site in question) are not relevant and should not be taken into account since they do not result from the difference in height between the buildings previously and proposed on the site but result from differences in heights of quite different buildings. Put simply, the decision of the Building Authority under Section 16(1)(g) has to be on site specific grounds. Furthermore it was not legitimate for the Building Authority to use Section 16(1)(g) to ‘hold the line’ until a general Government policy for stepped streets had emerged as a result of the Stepped Street Study.” (emphasis added)

74. The concept of “site specific” is to exclude from consideration matters that do not result from the difference in height (etc) in question. 

75. The Tribunal then went on to consider the advantages and disadvantages of the proposed development. On page 19, after listing out the advantages, the Tribunal said :

“These advantages are greater than any minimal disadvantages caused to the general traffic and sewage situation in the area by an extra 33 persons.” (emphasis added)

76. It is therefore plain that when the Tribunal in that case used “site specific” to convey the idea of there needing to be a causal connection between the height difference (etc) and the supposed consideration, it did not mean things within the four corners of the site only.

77. This “site specific” restriction was consistently followed in subsequent cases : Nos 4, 4A and 4B Ying Fai Terrace, Case No 28 of 1992, 18 January 1993, page 20; 15-17 Sands Street,para 10.2; 11‑13 Sands Street (15 October 1993), para 16(c).  I think the causal/site specific requirement is well supported both by reason and by authorities.  As the judge pointed out, originally, the Building Authority played a significant town planning role, but that was before the days of the Town Planning Board playing a major role in town planning under the Town Planning Ordinance.  Since the 1970s and 1980s, the role played by the Building Authority in town planning has been “watered down” substantially (para 71).  Broad town planning considerations are for the Town Planning Board under the Town Planning Ordinance.  In deciding to approve or disapprove a set of building plans under section 16(1)(g), the Building Authority or the Tribunal is not there to act as a mini‑town planner. Therefore, as was pointed out by the Tribunal in 11‑13 Sands Street (15 October 1993)– adecision heavily relied on by Mr Chan, broad policy considerations or factors “not appertaining specifically to the site in question” are not to be taken into account, after citing 6‑8 U Lam Terrace (para 16(c)).  In the following subparagraph, the Tribunal elaborated on the point :

“One factor that should not be considered under section 16(1)(g) are broad matters for town planning. There is no reference to town planning in that subsection, not even a hint that such should be considered except for the exercise of comparison with buildings in the same neighbourhood. That is just about the limit as far as what can loosely be termed town planning is concerned.”

78. On the other hand, the mere fact that a consideration is a “town planning” consideration in the sense that, when expressed in a broad and general manner, it is a matter which the Town Planning Board may take into account when performing its function under the Town Planning Ordinance, need not necessarily prevent it from being a matter that the Building Authority or the Tribunal may legitimately bear in mind under section 16(1)(g), if it is otherwise causally connected to the difference in height (etc) under consideration, that is, ifit is a “site specific” matter.  As Mayo J (as he then was) explained in Rich Resources Enterprises Ltd, page 9 :

“ [Section 16(1)(g)] related to the height of buildings and adjoining buildings in its vicinity. It was unrealistic to attempt to argue as Mr. Li had that [section 16(1)(g)] was primarily concerned with aesthetic factors such as the overall profile of the buildings. The height of buildings primarily dictated the number of occupants who would be using them and the Authority was undoubtedly under a duty to take into account such factors as the density of the development.

 I have no doubt that Miss Harstein’s view of the matter is the correct one. It is evident from a perusal of the section that wide discretions are given to the Authority.  I can see no difficulty if these powers and discretions are exercisable side by side with powers exercisable by such bodies as the Planning Board and the Fire Services Department.  Each Body views the overall situation from a different perspective but it is the Building Authority’s responsibility to ensure that all requirements are adhered to.  The height of a building is very much the concern of the Building Authority and there is a definite duty imposed on it to ensure that such matters as access to the Building are sufficient.  This would certainly impinge on the safety of the Building.  I have no doubt that the Authority was not acting illegally when it made the determination it did in the present case.”

79. In other words, the same matter can be both a town planning matter, if expressed in a broad and general way, for the Town Planning Board, and a site specific factor, when looked at in the context of the building plans concerned, for the Building Authority and the Tribunal.  The key question is whether there is a causal connection between the consideration in question and the difference in height (etc) concerned.

80. I therefore reject Mr Chan’s contrary argument that the matter must be within the four corners of the site in order to be a “site specific” one.  I see no reason for so artificially tying the hands of the Building Authority or the Tribunal.  The submission is not supported by the authorities, including 11‑13 Sands Street (15 October 1993), a decision heavily relied on by Mr Chan.

81. What is or is not “site specific”, or put another way, what is or is not “causally connected” to the difference in height (etc) in question is a factual question.  It is very often a question of fact and degree.  There are bound to be borderline cases.  But that inevitable ambiguity does not prevent the criterion from being a useful one to delineate between what may and what may not be legitimate for the Building Authority or the Tribunal to take into account under section 16(1)(g).

Relevance of an approved plan

82. For these reasons also, I reject any suggestion that where there is already in existence an approved plan under the Town Planning Ordinance, such that section 13 of that Ordinance requires the Building Authority or the Tribunal to use the approved plan as “a standard for guidance” in the exercise of the Building Authority’s or the Tribunal’s discretion under section 16(1)(g), what is permitted or prohibited under the approved plan must be “determinative” of how they should exercise their discretion (as the Tribunal in the 2011 decision appears to have thought), or of “vital importance” to that exercise of discretion (as Mr Chan submitted).

83. As Mayo J explained inRich Resources Enterprises Ltd, under section 16(1)(g), the Building Authority or the Tribunal views the overall situation from a different perspective from the Town Planning Board.  The former is concerned with site specific matters; the latter is concerned with broad town planning policies and considerations. Whilst any relevant approved plan must be a relevant consideration to be borne in mind by the Building Authority or the Tribunal, the weight to be accorded to the plan must depend on the facts and circumstances.  I see nothing in this court’s decision in International Trader Limited v Town Planning Appeal Board [2009] 3 HKLRD 339, a case on section 16(1) of the Town Planning Ordinance, which suggests anything to the contrary.

84. The fact that there was no height restriction in the then OZP covering Wang Fung Terrace cannot therefore be conclusive for any purposes under section 16(1)(g).

Relationship with section 16(1)(d)

85. Mr Chan also relied on Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, a case on section 16(1)(d) (contravention with approved or draft plans).  He argued that in that case, the court held that under section 16(1)(d), which specifically gives the Building Authority a discretion to disapprove a building plan if it contravenes an approved or draft plan, the Building Authority cannot reopen a town planning matter already covered by the approved or draft plan even though it may be a site specific one.  Mr Chan submitted that, a fortiori, the same matter cannot be taken into account via the backdoor under section 16(1)(g).

86. The reasons why even a site specific town planning matter may not be reopened save in exceptional circumstances under section 16(1)(d) have been stated by Sears J as follows (p 437A/B – F/G) :

“ It is for the town planners to decide what the appropriate plot ratio is for any particular zone and for them to come to a reasoned decision having regard to a variety of factors such as the capacity for public transport to take additional persons, the constraints upon the road network caused by traffic generation, all those matters which affect an area as a whole. In my judgment, the tribunal was right to say that it was for the town planners to take those considerations into account. Otherwise it would mean that each individual application, which sought to depart from the standard mix of 9 to 3, may be subject to detailed examination of traffic generation by the appellants and would involve the tribunal having to listen to that detailed evidence, and making a judgment on each such application, thereby effectively destroying the concept of a plot ratio for a zone.

In my judgment, what s 16 is contemplating is that developers should recognize that if they do contravene the draft plan, in other words, if their development does exceed the plot ratio of 12, then it is probable that a refusal will be given. It is not absolute, because the word ‘may’ is used. There is a residual discretion to allow matters to be judged on the site’s specific considerations. For example, in a commercial re‑development, there may be brought about substantial environmental benefit which would justify the Building Authority departing from the standard plot ratio; or, it might have within it some public benefit which would similarly justify a departure.

This development which is proposed – and I do not say this in any way offensively of it – is a standard commercial development.  It is what it is.  It will be a department store and offices.  In my judgment, the Building Appeal Tribunal was correct in deciding that the traffic generation from that specific site was an irrelevant consideration. …”

87. Godfrey JA (as he then was) came to the same conclusion for a different reason (p 439C‑G/H) :

“ There are, in my judgment, three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had. Second, those clearly identified by the relevant legislation as considerations to which regard must not be had. Third, those to which the decision maker may have regard if, in its judgment and discretion, it thinks it right to do so. There is, in short, a margin of appreciation within which the decision maker may decide just what considerations should play a part in its reasoning process. (In setting out these categories, I am indebted to the judgment of Simon Brown LJ in R v. Somerset County Council, ex p Fewings [1995] 1 WLR1037; see particularly at 1049 and 1050.)

     The consideration with which we are concerned here, that is to say, the site‑specific traffic considerations relied on by the appellants, falls within the third category. This consideration is not one which the legislation expressly or impliedly requires the tribunal to take into account.  It is a matter, as I see it, entirely for the judgment and discretion of the tribunal whether and if so to what extent to take this consideration into account.  The tribunal is specially qualified to perform this exercise; better qualified to do so than is the court.  In deciding that the site‑specific traffic considerations urged on it by the appellants were not considerations which (for the reasons it gave) it ought to take into account, it acted within the scope of the discretion conferred on it and fell into no error of law.”

88. Rogers J (as he then was) said that he could not, for the time being, “envisage circumstances where, in a commercial development, traffic generation, on its own, being a factor relevant to the specific site, would be a matter which should be taken into account by the Building Authority”.  But he was cautious to emphasize that “this decision relates to this case” (p 438B‑C).

89. Regardless of what one may think Wing On has decided or not decided in relation to section 16(1)(d), in section 16(1)(g), it should be noted that the legislature specifically uses a difference in height, design, type or intended use as the triggering condition for the exercise of the discretion.  A difference in height, design, type or intended use of a proposed building (as compared with the buildings nearby or the previous building) would very often affect the question of population density, and therefore public safety, public health, services, amenities, infrastructure and so on, as explained above.  By looking at these matters (so long as they are causally connected to the difference in question), the Building Authority or the Tribunal is not reopening any town planning issues already determined by the Town Planning Board in the approved or draft plan for the purposes of town planning as such.  Rather, they are looking at these matters for the purposes of deciding whether the particular proposed development should be permitted on the site in question for the protection of all those concerned (as defined by the causal connection test) in terms of health, safety and other relevant interests.  They are performing a different function from the Town Planning Board and the matters that each of them may look at are not mutually exclusive.

Relationship with section 16(1)(h)

90. Then there is this similar argument about section 16(1)(h) – so far as the traffic danger at the junction is concerned, if it is not a matter covered by section 16(1)(h), a provision which specifically deals with traffic danger regarding means of access and other street opening, it cannot be taken into account via the backdoor, that is, under section 16(1)(g).  It may be recalled that this was the Tribunal’s reasoning in its 2011 decision (para 30).

91. I reject this argument.  There is certainly some overlapping between section 16(1)(g) and 16(1)(h).  For section 16(1)(h), there is no need to identify any difference in height (etc).  On the other hand, as the Court of Final Appeal has decided, the scope of application of that subsection is narrow.  In giving the relevant provisions a purposive interpretation (which their language can bear), I see no reason why the mere existence of section 16(1)(h) should exclude from the consideration of the Building Authority or the Tribunal an otherwise justifiable concern about traffic danger, provided that the causal connection test can be satisfied.  Rather, public safety must always remain a primary consideration of the Building Authority and the Tribunal when considering whether building plans should be approved or disapproved under section 16(1)(g).

A spatial connection required?

92. Mr Chan argued that if he is wrong with his “within the four corners” contention regarding what a “site specific” consideration means, the consideration that may be taken into account has still to satisfy not only a causal connection requirement, but also a spatial requirement, in the sense that the matter must be something within the “immediate neighbourhood” of the proposed development. 

93. To see the practical significance of this contention, I should point out that Mr Chan, applying his alternative contention, argued that the immediate neighbourhood in the present case does not include the junction between the access road and Tai Hang Road where an increased traffic danger would result from the proposed development.  He said that the traffic danger is outside the immediate neighbourhood of the proposed development and is simply a general town planning consideration.

94. I reject the argument. It is true that “immediate neighbourhood” is a term used in section 16(1)(g).  And I would expect that on the facts of many cases, the consideration in question would be something within the immediate neighbourhood in order to satisfy the causal connection test.  After all, that test requires the consideration to bear a causal connection to the difference in height (etc) between the proposed development and the previous building or the buildings in the immediate neighbourhood.  By the nature of things, the more remote physically a consideration is from the proposed development, the more difficult it is to establish a causal connection (and the more probable it is that the matter in question is simply a broad town planning matter not open to the Building Authority or Tribunal to consider).  However, the actual circumstances on the ground must vary from site to site.  There is no place for a hard and fast rule.  Everything depends on the facts.  I do not believe “immediate neighbourhood” in section 16(1)(g) is intended to put a straitjacket on the Building Authority and the Tribunal as suggested. 

95. In any event, as has been mentioned, since the appeal before the Tribunal is a de novo hearing, it is really up to the Tribunal to decide where the immediate neighbourhood is and whether it includes the junction of the access road with Tai Hang Road; so in any event, I do not see how Mr Chan’s argument can assist his client.

The estoppel argument

96. For the same reason, I reject the argument of estoppel vaguely pursued by Mr Chan at the hearing.  The argument is that since the Building Authority, in its 2001 refusal letter, did not rely on traffic danger at the junction as a ground for refusal under section 16(1)(g), therefore it is estopped from relying on it on appeal.  I do not accept this point.  As mentioned many times before, the hearing before the Tribunal is a de novo one, and in fact, when the matter was remitted to the Tribunal on the last occasion, traffic danger was relied on by the Building Authority and dealt with by the Tribunal.  There is, in my view, nothing to estop the Building Authority from relying on the traffic danger at the junction before the Tribunal.  There is nothing in the estoppel argument.

No causal connection on the facts?

97. Before I conclude this part of my discussion, I should mention one last argument of Mr Chan, which turns on the facts.  Mr Chan argued that in any event, since the Building Authority relies on the first limb of section 16(1)(g) (immediate neighbourhood), any increased traffic danger at the junction between the access road and Tai Hang Road has no causal connection to the difference in height between the proposed development and the buildings in the neighbourhood.  He contrasted that with a case on the second limb (previous building).  He said that in that latter situation, an increase in height from the previous building might be said to be causally connected to an increase in risk of traffic accident at the junction, because more occupants would be residing at the redeveloped site than before.

98. I am not with Mr Chan.  First, I am not sure if the distinction between the first and second limbs in the present context is a valid one.  Secondly, Mr Chan is in any event wrong to focus only on the safety of those occupying the proposed development.  Traffic accidents may happen in all sorts of ways, and an increased use of the junction by vehicles due to the increase in population at the redeveloped site could affect the safety of those living in the neighbourhood as it might affect the occupants of the new buildings.  Thirdly, given the nature of the appeal before the Tribunal, it is quite open to the Building Authority to rely not only on the first limb, but also on the second limb at the rehearing (see below).  As I mentioned earlier, there is nothing in the Ordinance to prevent a case from falling within both limbs of section 16(1)(g) at the same time.

The 2011 decision erred also on disregarding traffic danger

99. For all these reasons, I take the view that the Tribunal in its 2011 decision also erred in law in refusing to consider the traffic danger at the junction which might be increased by the proposed development as being an irrelevant town planning consideration.  On this ground also, the decision has to be disturbed.

A mandamus?

100. The only remaining question is whether this court should grant a mandamus, as prayed for under the Building Authority’s cross-appeal, directing the Tribunal to dismiss the building appeal of China Field.

101. Mr Mok argued that the Tribunal has long decided in its 2006 decision that the proposed development would substantially increase the traffic danger at the junction, given that traffic flow is estimated to increase by 43% following the proposed construction of 113 additional flats.  Given the traffic danger and the incongruity involved, the only possible conclusion that the Tribunal could legitimately reach, in the exercise of its discretion under section 16(1)(g), would be to reject China Field’s plans, and therefore to dismiss the building appeal. Mr Mok also pointed out that in the 2011 decision, the Tribunal said that it would not be assisted by any further evidence.  Mr Mok further criticized the judge for taking into account possible additional, more stringent conditions that could be imposed to ensure immediate action on improvement of the access road, in deciding to refuse a mandamus.  Mr Mok said that the judge had erroneously taken into account a future possibility, rather than focusing his mind on what was before the Tribunal.

102. I do not agree with Mr Mok.  I agree with Mr Chan that the 2006 decision must be viewed against the backdrop that there, the Tribunal was dealing with two building appeals relating to two proposed developments in Wang Fung Terrace – one of which only concerned China Field.  The two developments together would result in a net increase of 188 flats in Wang Fung Terrace, and there would also be 82 car‑parking spaces.  The increased traffic danger mentioned by the Tribunal (in the context of section 16(1)(h) at the time) must therefore be viewed in that light.  After the decision of the Court of Final Appeal (which also dealt with the other proposed development not connected with China Field), that other proposed development was dropped.  The Tribunal has since been concerned with the proposed development of China Field only.

103. Moreover, since the appeal is a rehearing, there is nothing to stop China Field from seeking to adduce further evidence about traffic safety at the rehearing.

104. I do not believe that the result of the appeal before the Tribunal is a foregone conclusion such that this court should, in effect, take over the role of the Tribunal and decide the building appeal of China Field.  The just and fair course to take is to remit China Field’s building appeal to the Tribunal for rehearing, in the light of the court’s determinations on the various issues in this appeal.

Disposition

105. For all these reasons, I would dismiss China Field’s appeal, save to vary the order made below as follows :

(1) the Tribunal’s determination on section 16(1)(g) contained in the 2006 decision be brought up and quashed;

(2) the Tribunal’s determination on the scope of remission contained in the 2010 decision be brought up and quashed;

(3) the Tribunal’s “views” on section 16(1)(g) contained in the 2011 decision be treated for all relevant purposes as its determination on section 16(1)(g) and be brought up and quashed accordingly;

(4) the Tribunal’s decision to allow China Field’s appeal under Building Appeal Case No 158 of 2001 under the 2011 decision be brought up and quashed;

(5) China Field’s building appeal be remitted to the Tribunal for reconsideration – but only on section 16(1)(g) – in the light of this court’s determinations on issues relevant to that subsection.

106. The judge’s order as to costs should stand.  As for the costs of this appeal, the parties are agreed that costs should follow the event.  I would therefore award the costs of this appeal to the Building Authority, but the costs of the cross‑appeal to China Field, with a certificate for two counsel.  I would apportion the respective costs of the appeal and cross‑appeal at 90:10.

Hon Kwan JA:

107. I agree with the judgment of the Chief Judge.

Hon Barma JA:

108. I agree with the judgment of the Chief Judge and with the orders that he proposes.

Hon Cheung CJHC:

109. Accordingly, the court makes the orders indicated in paragraphs 105 and 106 above.