WONG TIN CHOR v. THE APPEAL TRIBUNAL (BUILDINGS ORDINANCE) AND ANOTHER

HCAL 1662/2019

[2020] HKCFI 1562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1662 OF 2019

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D E C I S I O N

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INTRODUCTION

1.  Before the court are the Applicant’s applications for (i) an extension of time to apply for leave to apply for judicial review of the Appeal Tribunal (Buildings Ordinance) (“the Tribunal”)’s determination (“the Determination”) dated 11 May 2018, and (ii) leave to apply for judicial review of the Determination in the event that time for making the application is extended.

2.  By the Determination, the Tribunal held that that no good cause had been shown for holding a full hearing of the Applicant’s appeal (“the Appeal”) against a building order (“the Building Order”) made by the Building Authority (“the BA”) dated 3 March 2014, and dismissed the Appeal.

BASIC FACTS

3.  The Applicant and one Wong Lai Yan are the registered owner of the property (“the Property”) known as Flat C including the Roof thereof (“the Roof”) on 12/F, Block 1, Moonway Mansion, 48 Yuet Wah Street, Kowloon, having purchased it in 1983.  On top of the Roof is a substantial enclosed structure, with a door and windows (“the Roof-Top Structure”), which is, and at all material times has been, used by the Applicant as his dwelling place.

4.  The occupation permit (“the OP”) of Moonway Mansion was issued on 18 November 1970.  It is the Applicant’s case that the Roof-Top Structure has been in existence since no later than 3 November 1972, and was already in existence at the time when he purchased the Property in 1983.

5.  In 2011, the BA received a complaint or complaints about the existence of unauthorized building works on the roof of Moonway Mansion.  On 27 August 2012, the BA’s appointed consultant carried out an inspection of (inter alia) the Roof and found that the Roof-Top Structure constituted unauthorized building works (“the Unauthorized Works”).

6.  On 3 March 2014, the BA issued the Building Order requiring the Applicant and Wong Lai Yan to demolish the Roof-Top Structure and reinstate the affected area in accordance with the approved plans.  Apparently, similar building orders were issued to other owners of Flats B, F, G, H, J, K, L and M (including the respective portions of the roof) on 12/F, Block 1, Moonway Mansion, on 3 March 2014.

7.  On 22 March 2014, the Applicant lodged a notice of appeal against the Building Order pursuant to s 47 of the Buildings Ordinance, Cap 123 (“the Ordinance”).

8.  On 29 August 2017, the BAT held a preliminary hearing to determine whether good cause had been shown for holding a full hearing of the Appeal pursuant to s 49(1) of the Ordinance.

9.  On 11 May 2018, the BAT issued the Determination.  As can be seen from §7 of the Determination, the Applicant raised the following arguments in support of the Appeal:

(1)  According to the aerial photographs produced by the Applicant, the Unauthorized Works had been in existence since 3 November 1972.

(2)  Legal Notices (No 65 of 1973 and No 121 of 1973) were evidence that all structures existing before 1 July 1973 should be legal.

(3)  According to the OP of Moonway Mansion, the use of the land was for “domestic purpose”, and therefore the building, including the Roof-Top Structure, could be used for that purpose.

(4)  Government rates had been duly paid since the occupation of the Property and therefore there was “no problem” in respect of the Unauthorized Works.

(5)  The Applicant’s private property rights should be protected by Articles 6 and 105 of the Basic Law.

10.  In the Determination, the BAT made the following findings:

(1)  The Unauthorized Works fell within the definition of “building works” under s 2 of the Ordinance.

(2)  The Unauthorized Works were not exempted under s 41(3), (3B) and (3C) of the Ordinance, and therefore required the approval and consent of the BA under s 14(1) of the Ordinance.

(3)  The BA never gave any approval or consent under s 14(1) of the Ordinance for the Unauthorized Works.

(4)  The Legal Notices and the OP relied upon by the Applicant did not render the Unauthorized Works legal.  Neither did the payment (and acceptance) of Government rates make an illegal structure legal.

(5)  It was unnecessary for the BAT to determine the constitutional challenge to the Building Order based on Articles 6 and 105 of the Basic Law, which did not give rise to any absolute rights, and it was for the Court to determine the permissible extent of any restrictions or limitations of those rights.

11.  On the basis of the aforesaid findings, the BAT held that good cause had not been shown for holding a full hearing of the Appeal, and dismissed the Appeal pursuant to s 49(2) of the Ordinance.  The BAT also ordered the Applicant to pay the costs of the BA, to be taxed if not agreed.  On 1 November 2018, the BAT assessed the costs payable by the Applicant to the BA at HK$4,605.

APPLICATION FOR JUDICIAL REVIEW

12.  On 17 June 2019, the Applicant made the present application for leave to apply for judicial review of the Determination.

13.  On 19 March 2020, the Applicant amended the Form 86 pursuant to the leave granted by this court on 17 March 2020.  In the Amended Form 86, the following grounds of judicial review are raised:

(1)  Ground 1 - failure to give any or any adequate reason for (i) the Determination, and (ii) accepting the BA’s evidence;

(2)  Ground 2(a) - failure to understand the Applicant’s ground of appeal;

(3)  Ground 2(b) - infringement of the Applicant’s rights under Articles 6 and 105 of the Basic Law;

(4)  Ground 4 - irrationality;

(5)  Ground 5 - Wednesbury unreasonableness;

(6)  Ground 6 - procedural unfairness.

GROUND (1): FAILURE TO GIVE ADEQUATE REASON FOR THE DETERMINATION

14.  Under Ground 1, Mr Mak raises two arguments:

(1)  The BAT had incorrectly held that the length of time of the existence of an unauthorized structure was irrelevant.  This was because the BA had not disclosed the relevant policy documents, including the exemption of roof-top structures and the statutory scheme of minor works program authorizing such structures.  As a result, the BAT failed to give any or any adequate reasons for its determination and incorrectly accepted the BA’s evidence[1].

(2)  The BA’s reliance on “Instruction No 7” was incorrect as it does not equate the status of a new unauthorized structure with other structures which had been tolerated.  The BAT did not consider or explain how and why the “TMB” policy would be exercised so that when enforcement action is taken against a new unauthorized structure found in a building, action would also be taken against other unauthorized structures in that building at the same time or with equal priority[2].

15.  These arguments are made in the context of a complaint that the BAT failed to give adequate reason(s) for the Determination.  However, it can be seen from §7 of the Determination (§9 above) that they were not raised before the BAT.  In particular, it was not argued by the Applicant that the Building Order could not stand because the BA had failed to disclose relevant policy documents, or the BA failed to correctly understand and/or apply his relevant policy.  It was also not argued that the statutory scheme of minor works program was in any way applicable, that under his relevant policy the BA would only take enforcement action against an unauthorized structure if it gives rise to public safety concerns or nuisance, or that the BA would only consider the risk level of an unauthorized structure on the exterior of a building when deciding whether to take enforcement action.  I do not see how these complaints can be relied upon in support of an argument that the BAT failed to give any or any adequate reason(s) for the Determination.  In any event, as I shall explain below, the arguments advanced by Mr Mak on behalf of the Applicant have no merits.

16.  In respect of Mr Mak’s 1^st argument referred to in §14(1) above, the following elaboration is given in §24 of his Skeleton Submissions (omitting bundle references):

“(1) Firstly, the BAT has incorrectly held that the length of the existence of the structure was irrelevant: §6 of Determination. This was because the BAT was not disclosed to it the relevant policy documents, including the exemption of roof-top structures and the statutory scheme of the minor works program authorising such structures.

(2) The long existence of a policy of roof top structures being tolerated, with the knowledge of the BA, under the prevailing policy as read from the various policy documents, in the absence of public safety or any complaint of nuisance, are clearly relevant.

(3) The policy statement relied upon by the BA was one in 2011 (‘2011 Enforcement Policy’). The 2011 Enforcement Policy did not suggest the BA has changed it previous policy that the BA would only enforce post-1975 roof top structures in situations where there has been danger of public safety or nuisance.

(4) Further, the 2011 Enforcement Policy was part and [parcel] of the minor works scheme under the Buildings (Minor Works) Regulations Cap 123N which was intended to allow the roof top structures to continue to be exempted.

(5) The BA under the policy would only consider the risk level of UBW at the ‘exterior’ of the relevant building. The BAT did not give reasons why these two criteria were met for enforcement.

(6) In this context, the BAT had apparently failed to understand and [apply] the relevant policy because the 2011 Enforcement Policy did not actually suggest the BA has changed its previous policy that the BA would only enforce post-1975 roof top structures in situations where there has been danger of public safety or nuisance.

(7) Secondly, the BA has incorrectly referred to Instruction No. 7 under its EB Division Manual Part II Section 3 (‘Instruction No. 7’) on the policy for priority for enforcement because Instruction No. 7 did not refer to a policy of new structures found in a building would be [enforced], such that any other authorised structures of the same building would be enforced.

(8) Some criteria for priority for enforcement were stated in Instruction No. 8 but those criteria did not make other structures in the same building equal in status to the new [un]authorised structure. The BA had not relied upon it. Similarly the BAT did not consider or give any reasons on this aspect either.

(9) Thirdly, the BA had not disclosed whether it had considered and applied the applicable policy in issuing the demolition order, i.e. 2011 Enforcement Policy and Instruction Nos. 7-8.  It would follow that it is crucial for the BAT, as a decision-maker exercising an independent discretion, to give reason why the failure of the BA and the lack of information before the BAT resulting from it would not make a difference in the hearing before it, insofar as the risk level of the UBW is concerned.”

17.  The BA’s current enforcement policy (“the 2011 Enforcement Policy”) in respect of unauthorized structures on roof-tops and flat roofs as well as in yards and back-lanes of buildings can be found in Instruction No 7 (first issued in April 2011, and revised in February 2013 and March 2013) entitled “Handling of Reports on and Issue of Removal Orders Against Unauthorized Structures on Roof-tops and Flat Roofs as well as in Yards and Back-lanes of Buildings” contained in Section 3 of EB Division Manual Part II.  The following parts of Instruction No 7 are relevant for the purpose of the present discussion:

“Background

With the completion of the ten-year program of removal of unauthorized building works (UBWs), most of the UBWs constituting a higher risk to public safety or of an obvious or imminent danger to life or property have been actioned.

2. The UBW enforcement policy has been revised with effect from 1.4.2011 whereby the scope of actionable UBW was extended to include all UBWs on roof-tops and flat roofs as well as those in yards and back-lanes of buildings, commonly known as (‘Top, Middle, Bottom’ or ‘TMB’ in short), irrespective of their risk to public safety or whether they are newly constructed. However, projecting structures covered by the Household Minor Works Validation Scheme and the proposed Signboard Control System and other minor amenity features are specifically excluded from this actionable item of UBWs. This extension of scope will be described as ‘New Commitment’ hereafter.

3. BD is committed to actively respond to reports and issue statutory orders requiring owners to conduct rectification works immediately if there are confirmed actionable UBWs after inspection.

Criteria for Prioritization

7. Priority enforcement action should be taken on new TMB (including TMB works in progress) or those with obvious and imminent danger to life and property together with those TMB at the same level. For other TMB cases, they would be prioritized for enforcement action in the following manner.

8. While the receipt of a report on TMB could be a triggering point for BD’s enforcement action, BD should set up objective criteria for prioritizing its handling of the New Commitment. Relevant considerations include -

• The earliest date the reported TMB was known to BD. The earlier ones should be prioritized ahead of others.

• Does the TMB involve any overloading effect on the buildings? RTS & FRS should be prioritized ahead of yard/lane structures.

• TMB erected in houses or high-rise buildings? Based on the higher risk in high-rise buildings than low-rise single family houses, priority should be given to high-rise buildings in the densely populated urban areas.

Mode of Operations

10. BD has ceased issuing warning notices (WN) on TMB with effect from 1.4.2011, as they will be subject to issue of removal orders under the revised enforcement policy.

11. The TMB (including those requiring priority enforcement action) in a building will be grouped into the following classes in accordance with the criteria given in para. 8 for parallel enforcement action for the sake of fairness[3].

Class 1 -- RTS/FRS within the same building;

Class 2 -- Yard/lane structures within the same building; and

Class 3 -- TMB in low-rise single family houses.

18.  The following points can be seen or derived from the BA’s current enforcement policy as stated in Instruction No 7:

(1)  Prior to 1 April 2011, the BA took enforcement action, as a matter of priority, against UBWs which constituted a high risk to public safety or an obvious or imminent danger to life or property.

(2)  As from 1 April 2011, the BA has extended its policy to take prioritized enforcement action against TMB structures irrespective of their risk to public safety or whether they are newly constructed.

(3)  In so far as enforcement action against TMB structures are concerned, priority would be given to (i) new works or structures (including works in progress), and (ii) TMB structures with obvious and imminent danger to life and property.

(4)  The BA would also take prioritized enforcement action when the BD receives a report of a TMB structure.  Prioritization amongst the reported cases wound be determined according to the considerations referred to in §8 of Instruction No 7.

(5)  For the sake of fairness, where the BA has decided to take enforcement action against any TMB structure in a building, the BA would also take parallel action against all TMB structures in a building at the same level in the same Class.

(6)  Furthermore, where the BA has selected a building for prioritized action in respect of a Class of TMB structures, parallel action against TMB structures in other Classes in the same building would also be taken if a report had previously been lodged against those structures.

19.  In the present case, the BD received a report or reports of roof-top structures in Moonway Mansion in 2011, and appointed a consultant to carry out an inspection in 2012 which confirmed the existence of unauthorized roof-top structures in Moonway Mansion.  Enforcement action was taken against the Applicant, and parallel actions were taken against other owners of the top floor units (including the corresponding portions of the roof) of Moonway Mansion.  I do not see that the BA misunderstood or misapplied its 2011 Enforcement Policy in taking action against the Applicant.  In any event, even if there were any contravention of policy, it does not follow that the Building Order was null or void.  The works for the Roof-Top Structure were unauthorized, and the Applicant had no right or legitimate expectation to retain it (see Sky Wide Development Ltd v Building Authority, HCAL 116/2008 (24 October 2008), at §18).

20.  In respect of the specific points raised by Mr Mak (referred to in §16 above), my views are as follows:

(1)  In respect of sub-paragraph (1), it is factually incorrect to suggest that the BA failed to disclose the relevant policy to the BAT.  The BA’s representation dated 3 May 2016 (“the BA Representation”) before the BAT had annexed to it, inter alia, a copy of Instruction No 7, as well as copies of (i) the BD’s press release dated April 2011, (ii) the BD’s booklet, and (iii) the BD’s Interim Guidelines (rev.4) - Enforcement Action against Unauthorized Structures on Roof-tops and Flat Roofs as well as in Yards and Lanes of Buildings dated February 2013, explaining the BA’s 2011 Enforcement Policy.  The BAT is also correct in its view that, as a matter of law, the length of time that the unauthorized building works have been in place is not relevant to the validity of a building order issued to address such unauthorized works.  As repeatedly held by the court, the BA’s policy is an “enforcement” policy, not a “tolerance” policy (see Sky Wide Development Ltd, ante, at §10; Technic Investment Co Ltd v Appeal Tribunal (Buildings) [2012] 3 HKLRD 245, at §27).  The fact that the BA has not taken action against an unauthorized structure for a long period of time (due to the limitation of resources available to the BD) does not mean that no action can, or will, be taken against it.

(2)  In respect of sub-paragraphs (2), (3) and (6), whatever might have been the BA’s policy prior to 1 April 2011, it is clear that as from that date, the BA has extended its policy to take prioritized action against TMB structures, and such action is not confined to cases which raise public safety concerns or arise from complaints of nuisance.  That this is so can be seen from §§2, 7 and 8 of Instruction No 7.

(3)  In respect of sub-paragraph (4), there is no basis for the contention that the 2011 Enforcement Policy was part and parcel of the minor works scheme under the Buildings (Minor Works) Regulations.  The 2011 Enforcement Policy targets TMB structures generally, although works falling within the “Household Minor Works Validation Scheme” are expressly excluded from the policy (see §2 of Instruction No 7). In any event, it has not been argued by Mr Mak, and it has not been shown, that the Unauthorized Works in this case could fall within the scope of the Buildings (Minor Works) Regulations, or the Household Minor Works Validation Scheme.

(4)  In respect of sub-paragraph (5), there is also no basis for the contention that under the 2011 Enforcement Policy, the BA would “only consider the risk level of UBW at the ‘exterior’ of the relevant building”. The “risk level” of a TMB structure is one of the grounds, but not the sole ground, for prioritized action being taken by the BA (see §§2 and 3 of Instruction No 7).  At the hearing on 8 July 2020, Mr Mak referred to and relied on a “Report on the examination of the Estimates of Expenditure 2012-2013” of the Finance Committee of the Legislative Council dated July 2012, in which, at §11.6 thereof, the Secretary for Development was reported to have said:

“In according priority to enforcement actions, the only factor of consideration was the risk level of the UBWs.”

However, immediately following that statement, the Secretary for Development said:

“…under the new enforcement policy effective from 1 April 2011, the scope of ‘actionable’ UBWs had been extended to include all UBWs on the rooftop, podium and back yards/lanes of buildings, irrespective of their risk to public safety or whether they were newly erected. BD would issue statutory orders requiring owners to conduct removal or rectification works immediately if there were confirmed actionable UBWs after inspection.”

The latter statement clearly shows that under the 2011 Enforcement Policy, enforcement action would be taken against TMB structures irrespective of their risk to public safety.  In my view, §11.6 of the said report should be read as a whole, and means that while UBWs with a high risk level would be accorded priority of enforcement action, they are not the only prioritized cases.  In any event, I do not consider that a statement made by the Secretary for Development to the Finance Committee can change the plain meaning of the 2011 Enforcement Policy.

(5)  In respect of the matters raised in sub-paragraphs (7) and (8), see §21 below.

(6)  Lastly, in respect of the sub-paragraph (9), it is clear from the BA Representation that it took action against the Roof-Top Structure in this case pursuant to the 2011 Enforcement Policy as set out in Instruction No 7 (see §2(e) and (f) of the BA Representation).

21.  I also do not accept Mr Mak’s 2^nd argument referred to in §14(2) above.  It can be seen from §2(f) of the BA Representation that prior to the BA’s decision to take enforcement action against some “new” TMB structures on the G/F of Moonway Mansion, the BD had already received a report about the roof-top structures in Moonway Mansion.  In accordance with the 2011 Enforcement Policy, the BA took parallel enforcement action against the new TMB structures on the G/F and the Roof-Top Structure as well as other unauthorized roof-top structures in Moonway Mansion on 3 March 2014.  The BA’s action in this case seems to me to be consistent with the 2011 Enforcement Policy.  In any event, as earlier mentioned, even if the BA’s action were contrary to its enforcement policy, that fact would not affect the legality of the BA’s action taken against the Applicant’s Roof-Top Structure, or the validity of the Building Order issued on 3 March 2014.

22.  In short, Ground 1 is rejected.

OTHER GROUNDS

23.  As confirmed by Mr Mak at the hearing 8 July 2020, the other grounds of judicial review raised in the Amended Form 86 are not independent grounds, in that they are based upon the validity of Ground 1.  I shall therefore deal with them briefly.

24.  Ground 2(a) contends that the BAT did not understand the Applicant’s argument based on the permissible user of Moonway Mansion as stated in the OP.  This argument is obviously misconceived.  The permissible user as stated in the OP cannot be regarded as any consent or approval by the BA of unauthorized building works.  The contention that the Roof-Top Structure was already in existence at the time of the building inspection by the BD for the purpose of issuing the OP was not, in any event, supported by evidence.

25.  Ground 2(b), which concerns the Basic Law rights under Articles 6 and 105, is unsustainable.  It cannot sensibly be argued that an owner has any right to retain or use unauthorized building structures under those provisions of the Basic Law.

26.  Grounds 4, 5 and 6, relating to “irrationality”, “Wednesbury unreasonableness” and “procedural unfairness”, add nothing to the Applicant’s complaint under Ground 1 which I have already dealt with.

27.  In my view, the Appeal has plainly no merits, and the BAT was correct to come to the view that no good cause had been shown for holding a full hearing of the Appeal.  The intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.  Having reached this conclusion, there would be no good reason to grant the Applicant any extension of time to apply for leave to apply for judicial review.

DISPOSITION

28.  The applications for (i) an extension of time to apply for leave to apply for judicial review of the Determination, and (ii) leave to apply for judicial review of the Determination are dismissed.  Mr Mak accepts that in such circumstances, costs should follow the event. Accordingly, I make an order that the Applicant shall pay the BA’s costs, to be taxed if not agreed.