FORTUNE KEY LTD v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 82/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 82 OF 2009

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BETWEEN

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J U D G M E N T

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I. INTRODUCTION

1.  Fortune Key wishes to develop a Site on Blue Pool Road. Prior to 8 December 2006, the Site had a Residential (Group B) (that is, R(B)) zoning. This meant that there was no height or plot ratio restriction for residential flat developments built at the Site. On 8 December 2006 part of the Site was re-zoned R(B)7 and the remaining part was re-zoned R(C)2. The R(B)7 re-zoning meant that any new building on that part of the Site became subject to a height restriction of 14 storeys (including car park). The R(C)2 re-zoning meant that any new building on that part of the Site became subject to specific site coverages and to a height restriction of 6 storeys plus 1 storey of car ports.

2.  Fortune Key submitted Building Plans for the Site on 1 September 2006. The Building Plans were disapproved by the Authority on 27 October 2006. On 22 April 2009, in an appeal by Fortune Key against the disapproval, the Tribunal upheld the Authority. Fortune Key now seeks judicial review of the Tribunal’s decision.

3.  The Authority disapproved Fortune Key’s Building Plans on the basis of Buildings Ordinance (Cap. 123) (BO) ss. 16(1)(d) and (i). At the appeal before the Tribunal, Fortune Key and the Authority agreed that it was unnecessary to determine the validity of the Authority’s disapproval of the Building Plans under BO s. 16(1)(d). That issue could be dealt with using the procedure in Practice Note for Authorised Persons (PNAP) No. 190. The sole issue before the Tribunal (and in effect this Court) was therefore whether the Authority had been right to invoke BO s. 16(1)(i) as a basis for disapproval of the Building Plans.

II. BACKGROUND

4.  The BO provides as follows:-

Section 2(1):-

“In this Ordinance unless the context otherwise requires:-

...

‘building works’ includes any kind of building construction, site formation works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alteration, addition and every kind of building operation, and includes drainage works;

...

‘plan’ includes drawings, details, diagrams, calculations, structural details, structural calculations, geotechnical details and geotechnical calculations;

.…”

Section 14(1):-

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

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

(b)  his consent in writing for the commencement of the building works or street works shown in the approved plan.”

Section 16(1):-

“The Building Authority may refuse to give his approval of any plans of building works where:-

...

(d)  the carrying out of the building works shown thereon would contravene the provisions of this Ordinance or of any other enactment, or would contravene any approved or draft plan prepared under the Town Planning Ordinance (Cap. 131);

...

(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 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;

...

(i)  in his opinion, it is necessary for him to have further particulars of such plans or of the building works shown thereon or, where all the plans prescribed by regulations have not been submitted, to have one or more of the other plans prescribed by regulations to enable him fully to consider such plans;

(j)  any further particulars or other plans delivered to him, upon his refusal, under paragraph (i), to give his approval to any plans are not to his satisfaction;

....”

5.  Over the years Fortune Key has made 5 submissions in relation to the Site.

6.  The first submission in October 2005 proposed a single building of 35 storeys with a plot ratio of almost 10. It was disapproved by the Authority in December 2005.

7.  The second submission in December 2005 was for a single building of 31 storeys and a plot ratio of 9.955. It was approved by the Authority in January 2006.

8.  The third submission in May 2006 consisted of a low block of some 6 storeys and a high block of 47 storeys. The former was to have a height of 28.489 m, while the latter was to have a height of 178.194 m. The submission was disapproved by the Authority in July 2006.

9.  The fourth submission is the subject matter of the present judicial review. It also consists of a low block of some 6 storeys and a high block of 47 storeys. The former is to have a height of 27.689 m, while the latter is to have a height of 170.934 m.

10.  The Authority’s letter of 27 October 2006 rejecting the fourth submission stated in relation to s.16(1)(i):-

“Under Building Ordinance section 16(1)(i), you are required to provide the following information/particulars for my full consideration of your proposal:-

(a)  Further information/explanation is required particularly under section 16(1)(g) of Buildings Ordinance in view of the comments from District Planning Officer/ Hong Kong at paragraph 9 below.

In view of the above, I hereby reserve my position under section 16(1)(g).”

11.  The comments from the District Planning Officer (to which the Authority’s 27 October 2006 letter referred) were as follows:-

“The District Planning Officer/Hong Kong (Contact Officer: Mrs Alice MAK at Tel. No. 2231 4935) has the following comments:-

(i)  The current submission involves a residential development with a low block at the site abutting Blue Pool Road, Sing Wo Road and Holly Road and a high block abutting Hawthorn Road and Holly Road.  The high block has a total height of 46 storeys, which differs substantially from the buildings in the immediate neighbourhood.  The carrying out of the building works as shown on the set of building plans would result in a development differing in building height in the immediate neighbourhood.  The boundary of the immediate neighbourhood is shown on Appendix I.

(ii)  I have reservation on the proposed development from district planning point of view.  The proposal has a plot ratio of almost 10 and the visual impact on the surrounding residential developments, which are mainly medium-rise and medium density developments, i.e. developments at a plot ratio of 5 or maximum building height of 6 storeys in addition to 1 storey of carports, is considered unacceptable.  The site falls within Density Zone II.  According to the Hong Kong Planning Standards and Guidelines (HKPSG), the maximum plot ratio should be 5.  In this respect, the AP [that is, the Authorised Person engaged by Fortune Key] is advised to revise the proposed scheme taking account of the maximum plot ratio for Density Zone II as set down in HKPSG and the building height of the developments in the surrounding.”

12.  The fifth submission in November 2006 involved a low block of 6 storeys and a high block of 43 storeys. The former had a height of 27.689 m, the latter 170.934 m. The submission was disapproved by the Authority in December 2006 under ss. 16(1)(b), (d) and (i). This decision was made after a Building Authority Conference had decided not to invoke BO s. 16(1)(g) as a basis for rejecting the submission.

III. DISCUSSION

13.  Mr Edward Chan SC (appearing for Fortune Key) makes 2 submissions as to why s. 16(1)(i) was wrongly invoked by the Authority.

14.  First, Mr Chan submits that the scope of s.16(1)(i) is narrow.

15.  According to Mr Chan, s. 16(1)(i) only permits the Authority to ask for further and better particulars of building plans or building works which form part of an application. The particulars must in the opinion of the Authority be necessary for considering the relevant building plans and deciding whether or not to reject the same under any of the other sub-sections of s. 16(1). The Authority is not entitled under s. 16(1)(i) to ask for details of matters which would not conventionally find their way into plans or which would not form part of the building works associated with such plans.

16.  This narrow reading (Mr Chan says) makes sense because by BO s. 14(1) it is the building plans (among other documents) which the Authority must approve. The Authority cannot under s. 16(1)(i) seek particulars which are extraneous to that which the Authority is tasked with approving.

17.  Mr Chan complains that the Authority used s. 16(1)(i) to reject the Building Plans for failing to identify the immediate neighbourhood of the Site and for failing to explain why the height of the proposed development was not incongruous with that immediate neighbourhood. None of the absent details are matters conventionally included in building plans. Nor are the details sought particulars of building works which Fortune Key was proposing by the fourth submission to undertake on the Site. The particulars sought instead relate to matters which are extraneous to building plans and building works. Consequently, the omission to provide the details identified by the Authority cannot be a basis for rejecting Fortune Key’s application under s. 16(1)(i). There was no way that Fortune Key could have known in advance that details about immediate neighbourhood and potential incongruity would be considered necessary by the Authority.

18.  Second, Mr Chan says that the decision to reject the Building Plans on the basis of s. 16(1)(i) was unreasonable. Under the provision, the Authority can ask for particulars of matters which in the Authority’s opinion are necessary for the consideration of a plan.

19.  Mr Chan says that, here, the Authority must have been perfectly aware of the heights of surrounding buildings in the immediate neighbourhood of the Site. The Authority could not have required further particulars from Fortune Key in order to consider whether the Building Plans proposed to put up a congruous or incongruous structure. In relation to the fifth submission, for instance, relying on its knowledge of the immediate neighbourhood, the Building Authority Conference decided without reference to Fortune Key that s. 16(1)(g) should not be invoked. Indeed, at the appeal hearing before the Tribunal, the Authority's evidence acknowledged that the Authority was in a position to evaluate on its own whether Fortune Key’s proposed development was congruous with the immediate neighbourhood.

20.  Mr Chan submits that no reasonable Authority could have regarded the details sought from Fortune Key about immediate neighbourhood and building height congruity as necessary for the approval or disapproval of the Building Plans. It may have been laudable for the Authority to consult and obtain Fortune Key’s views on what the immediate neighbourhood of the Site was and whether the development was incongruous with that neighbourhood. But Fortune Key’s views on those matters could hardly have been regarded as essential to the Authority's deliberation. It was for the Authority alone to form an opinion as to the immediate neighbourhood and the congruity of Fortune Key’s development.

21.  I am not persuaded by Mr Chan’s first submission. But in my judgment there is substance in his second submission.

22.  On Mr Chan’s first submission, I disagree that BO s. 16(1)(i) has the narrow confine for which Mr Chan contends. I see nothing in the wording of s. 16(1)(i) that restricts the particulars which the Authority might request to details which are conventionally shown in building plans. There is no reason for such a restrictive gloss on s. 16(1)(i).

23.  I agree with Mr Godfrey Lam SC (appearing for the Authority) that the expression “particulars” in its ordinary meaning denotes “items or details of information”. See New Shorter Oxford English Dictionary, p. 2110.

24.  Under s. 16(1)(i) the Authority would be entitled to request such “items or details of information” of plans or works as the Authority may reasonably consider necessary to a decision whether to disapprove those plans or works under one or more limbs of s. 16(1). That information may relate to the consequences of plans or building works.

25.  For example, the Authority may require particulars as to the implications of proposed works on traffic along streets to which a development will have immediate access. Such information would then allow the Authority to assess whether or not to invoke s. 16(1)(h). See the similar view of s. 16(1)(i) expressed by Lam J in Building Authority v. Appeal Tribunal (Buildings) HCAL 158 of 2005 (16 August 2006) (at para. 13).

26.  Mr Chan complains that there is no way that at the time of submission Fortune Key could have known that information about the Site’s immediate neighbourhood and the proposed development’s congruity would be required.

27.  That may be the case. But assume some piece of information is reasonably thought by the Authority to be necessary for the consideration of a plan. Then presumably the Authority should be provided with that key information. That should be regardless of whether an applicant could have foreseen that the requested information was vital. What an applicant may or may not have appreciated in advance as necessary in the circumstances of a particular application for approval cannot be a sound basis for construing the ambit of s. 16(1)(i).

28.  Mr Chan suggested that, because s. 16(1)(i) leads to an outright rejection of an application, that sub-section should be read as confined to requests for particulars which an applicant ought to have anticipated as necessary at the outset of submission.

29.  I do not agree. The invocation of s. 16(1)(i) will normally result in the provision of further particulars. The provision of the new particulars may be characterised as a re-submission or a fresh application depending on how Building (Administration) Regulation (BAR) r. 29(3) operates in a specific case. On this, see Lam J's analysis of BAR r. 29(3) in Building Authority at paras. 16-29. The consequences of the Authority invoking s. 16(1)(i) could not then constitute a basis for construing the ambit of s. 16(1)(i). The consequences of invoking s. 16(1)(i) is rather the outcome of the construction of BAR r. 29(3).

30.  In contrast, with Mr Chan’s second submission, I have considerable sympathy. I do not see how the particulars of intermediate neighbourhood and congruity could have been reasonably regarded as “necessary” by the Authority for the purposes of considering the Building Plans.

31.  Test the matter in this way: Would the failure to provide the requested particulars amount to a “show-stopper” (in the sense that without those details the Authority could not process Fortune Key’s application)? The answer is plainly “no”. On the Authority’s own admission, the Authority was in a position to examine what it regarded as the relevant immediate neighbourhood and come to a view on whether the proposed development was incongruous.

32.  The Authority was in effect inviting Fortune Key to make submissions as to why (contrary to the District Planning Officer’s belief) the proposed development was congruous with the surrounding vicinity. However, if Fortune Key declined the invitation and (say) simply told the Authority to come to whatever decision it saw fit on the applicability of s. 16(1)(g), the Authority would not be in any real difficulty or impossibility in forming a view. Indeed, under s. 16(1)(g), the Authority is under a duty to form a view on whether or not to invoke incongruity as a ground for rejecting a submission. The Authority takes that view based on its assessment of the relevant immediate neighbourhood and the congruities or incongruities already in existence there. The opinions of an applicant on the matter, while welcome, cannot be characterised as necessary to that process. The Authority wished to give Fortune Key an opportunity to make representations. That was laudable. But Fortune Key’s failure to make representations could not be a proper reason for the Authority saying that it could not form a view.

33.  Mr Lam argues that the Authority must be afforded a “margin of appreciation” in what the Authority believes to be necessary for the proper consideration of a plan. No one would quarrel with that proposition. But the Authority must still be able to justify why, in the Authority’s view, it cannot fully proceed finally to evaluate an application without the requested information. Under s. 16(1)(i) the information requested must be “necessary” in some meaningful sense. It is not enough for the Authority simply to assert that the Authority considered it necessary and that is all. Unfortunately, here, although pressed by the Court to explain in just what sense the information requested was “necessary”, Mr Lam could do little more than reply that the matter was within the Authority’s margin of appreciation.

IV. CONCLUSION

34.  The judicial review application succeeds. It was unreasonable for the Authority to invoke BO s. 16(1)(i) in the circumstances of the present case. The requested information could not have been “necessary” to the consideration of Fortune Key’s submission.

35.  There remain the matter of the Authority’s rejection of Fortune Key’ application under BO s. 16(1)(d). The Authority also expressly reserved its position in relation to the application of BO s. 16(1)(g) to Fortune Key’s fourth submission. There are in addition outstanding issues in respect of applications for exemption or modification in connection with the proposed development.

36.  In the circumstances, as Mr Chan and Mr Lam have both suggested to the Court, the proper course is to quash the Tribunal’s decision. This matter will then be remitted to the Tribunal for reconsideration in accordance with this Judgment.

37.  There will be an Order Nisi that the Authority pay Fortune Key’s costs of the judicial review, such costs are to be taxed if not agreed.