VERY SOUND INVESTMENTS LTD. v. THE BUILDING APPEAL TRIBUNAL

1997 A.L. No. 63

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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The demolition order

1. The Applicant, Very Sound Investments Ltd. ("the Company"), is the registered owner of a number of floors in a building in Hennessy Road. These floors include the 29th floor, which is the top floor of the building. The Company caused a conference room and an office to be built on the roof of the building on top of the 29th floor. However, approval for the works had not been sought, and the Building Authority ("the Authority") therefore regarded the works as a contravention of section 14(1) of the Buildings Ordinance (Cap.123)("the Ordinance"). A contravention of the provisions of the Ordinance empowers the Authority to make a demolition order under section 24(1) of the Ordinance. Accordingly, in January 1996, the Authority required the Company to demolish the works.

The appeals

2. An appeal against the demolition order lay to the Appeal Tribunal established under the Ordinance ("the Tribunal"). In February 1996, the Company appealed to the Tribunal against the demolition order ("the first appeal"). The hearing of the appeal was fixed for 22nd April 1997. However, on the day of the hearing, the Company asked for the hearing to be adjourned. That was because of what had happened in the meantime:

(i) In December 1996, the Company's architects had submitted plans to the Authority for the approval of the construction of a conference room and an office identical to those which had already been constructed. The Authority had refused to approve the plans on planning grounds, and in February 1997 the Company had appealed to the Tribunal against that refusal ("the second appeal").

(ii) In March 1997, the Company's architects had submitted further plans to the Authority for the approval of the construction of a conference room and an office identical to those which had already been constructed, but taking into account, I assume, the Authority's planning objections. The Authority had refused to approve these plans on different planning grounds, and on 14th April 1997 the Company had appealed to the Tribunal against that refusal ("the third appeal").

Neither the second nor the third appeal had been heard by the date when the first appeal was due to be heard. Accordingly, the principal ground on which the Company asked for the hearing of the first appeal to be adjourned until after the second and third appeals had been heard was that if either the second or the third appeals succeeded, it would not be appropriate for the demolition order to stand. The Tribunal refused to adjourn the hearing, and the Company now applies, with the leave of Sears, J., for judicial review of that refusal.

The academic nature of the present application

3. However, the Company has indirectly achieved what it sought, because the Tribunal then proceeded to adjourn the hearing of the first appeal pending the determination of the Company's proposed application for leave to apply for judicial review of its refusal to adjourn the hearing. In fact, the second and third appeals have now been dismissed, the Tribunal having decided on 21st November that good cause had not been shown for holding a full hearing. It follows that the present application for judicial review is entirely academic. Even if it was held that the Tribunal had erred in law in deciding not to adjourn the first appeal pending the determination of the second and third appeals, no relief would be granted because the adjourning of the first appeal as a result of the proposed application for leave to apply for judicial review of that decision had resulted in the Company obtaining precisely what it had set out to achieve.

Adjourning the present application

4. Mr. Anthony Ismail for the Company originally sought to argue that the present application for judicial review should be adjourned sine die with liberty to restore. That is because, within the last few days, applications for leave to apply for judicial review of the dismissal of the second and third appeals have been filed. Those applications have not yet been considered. But as Mr. Ismail realistically accepted, the filing of those applications would not affect the academic nature of the present application for judicial review, because understandably the adjournment which had been sought of the first appeal had only been until the second and third appeals had been determined, not until any application for judicial review of the dismissal of those appeals had been determined.

5. Accordingly, Mr. Ismail did not proceed with his application to adjourn the present application for judicial review. Since that application has become entirely academic, I propose to make a final order on the application. Because the application is being disposed of without a consideration of the merits, the order which I propose to make is simply that there be no order on the application. Neither Mr. Ismail nor Mr. Johnny Mok for the Authority sought to argue against that.

The future course of the proceedings

6. The consequence of that is as follows. If leave to apply for judicial review of the dismissal of the second and third appeals is refused, the only outstanding matter is the first appeal. That can be heard by the Tribunal, unless the appeal is withdrawn. On the other hand, if leave to apply for judicial review of the dismissal of the second and third appeals is granted, the question will then arise whether the hearing of the first appeal should be deferred until after the application for judicial review is determined. That is a decision entirely for the Tribunal. In determining that question, the Tribunal will no doubt take into account the argument that if the application for judicial review succeeds, and the second and third appeals must therefore go forward to a full hearing, it may be appropriate for all three appeals to be heard together since there is argued to be a significant connection between all three appeals. If the second or third appeals succeed, it may be that the Tribunal would then decide that the original demolition order should not stand. Although the Company would have only itself to blame for building the conference room and the office without approval in the first place, it may be that it would be unreasonable to put the Company to the expense of demolishing them only to build identical ones in their place. That would not be granting retrospective approval for the works (which is not permitted: see Filipino Club v. The Building Appeal Tribunal [1995] 3 HKC 356). It would simply be the exercise by the Tribunal of its discretion to make such orders as it thinks fit in relation to the demolition order. On the other hand, the Tribunal may be persuaded that the mere fact that the conference room and the office were originally built without approval is by itself sufficient reason to uphold the demolition order. Having said all that, though, I have, of course, reached no concluded view on the matter myself, because the course which ought to be taken is entirely for the Tribunal itself to decide.

(Brian Keith)

Judge of the Court of First Instance