WISENAME LTD. v. THE ATTORNEY GENERAL

1995, No.MP 1791

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This case has been well argued by counsel and I find the presentation of the material for the court has been well organised. Often we are given vast amounts of paper to read and consider, a lot of which is irrelevant, but I find the preparation here has been exceptionally good.

Background

2. The case revolves round a grant which was made by the Government in 1957 of a right of way and it arises in this way. There was a portion of land in the New Territories near Shatin and the owner of this piece of land, who appears to me to have been a very sensible and astute businessman, wished to build some houses on this land. He owned other land and what he did was to surrender two of the lots, which were 483 and 484, in exchange for the new grant of a building lot. This case turns really on the grant and the facts and circumstances surrounding that grant in 1957.

3. The development that was to occur was not a typical type of small village house which one has seen scattered around the New Territories. These were two substantial two-storey, which later became three-storey, dwellings with garages. The development could occur within three years, there was a minimum development price and gardens had to be laid out. There were, on any view, at the end of the 1950s, two good dwelling houses.

4. The right of way which was granted was to enable the owner to gain access to what is called "main path" because otherwise he would have been landlocked. The correspondence, which I do not refer to in detail, speaks volumes in this case. It is clear what the intention of the land owner was - to gain access - and in my judgment, it is clear what the intention of the Government was - in giving the right of way was to give access.

5. The access to be provided was very wide, onto a pathway. The houses, as I said, were substantial houses with garages. On any view, even without analysing in any detail the words of the grant, at the end of the 1950s or when these houses were built at the beginning of 1960s or so, the right of way was for the reasonable enjoyment of these dwelling houses which would include, not only the right of way on foot but the right of way for vehicles, visitors to go by vehicles, delivery vans, the sort of normal domestic operation which one would expect. The garages may be for private cars which would be owned by occupants of the buildings. The words of the grant, and when one looks at the general conditions, are abundantly clear. The right of way had to be constructed by the owner (Special Condition 12) which provides that he had to construct the road or path and these words are then found :

"Any alteration of the government road to which the right of way is given absorbing a portion of such piece of ground or affecting the gradient thereof shall not give rise to any claim by the grantee who should carry out all consequent alterations to such road or path constructed by him."

Facts

6. The facts and circumstances in 1957 can be derived from the plans which have been very helpfully provided in an appendix and I have construed the grant in the light of the prevailing survey plan ("a dimension plan") which is set out in the exhibit prepared by the witness Lanbase Surveyors Ltd. early this year. Next to the subject property was a school and the access way which is coloured yellow gave access to the main path. I have heard evidence about these paths which I accept, that these were paths which were found in the New Territories - sometimes 6 feet wide - it may be vehicles drove on them. They tend to be unmetalled, and were the typical sort of paths that had grown up over the years and by the end of the 50s, I have no doubt at all that these paths were used on occasions not only by people on bicycles, but probably carts, may be horses and vans and even private motor-cars. They are clearly more than foot paths, because these were linking paths that link portions in the New Territories with other portions.

7. The geographical facts and circumstances in 1957, which are shown on the larger plan, which I have been given, show the area coloured pink, a school and the pathway. What is of importance is to notice that in this part of Shatin, development was proposed (in my experience I noted as in other parts of the New Territories at that time), which was well known to the Government and indeed it may well have been known to the land owner. He appears to be a well informed person who knew precisely what was going on. He was an Indian, travelled to India and saw potential in the development of this site. But there was a new road and it was just called "The New Road" which ran from the West towards the northeast and if one projected the road on the 1957 plan, it would go virtually through the site, or at least alongside the site.

8. Indeed the 1963 plan shows the road slightly changing and ultimately after that date, by the 1979 plan, it has become the Nullah Road and goes further in a North-Easterly direction and runs close to the North-Eastern sector of the land where the school and the subject site is. A path is provided off the Nullah Road, it comes down to a foot bridge which appears very wide. It is not clear whether there is a track by the Temple, but there is clearly a track from the Temple around some boulders and a contour line which leads to the school and ultimately to the right of way.

9. It is clear therefore that the right of way which was granted was a right of way that both parties recognised would be utilised in the future. The words of the grant indicate this - the potential alteration of the government road also indicates this - the government road was probably going to be the New road running by the side of the nullah (later the Nullah Road) and both parties recognised that to enable these two substantial dwelling houses to be used in a manner commensurate with the beginning of the 1960s was that vehicular access had to be given to a road.

10. I have heard evidence with regard to the construction of these houses and the work carried out to the school from Mr Lo Leun. I found him an impressive witness. I think he is a perfectly honest man, the typical sort of builder who recollects his jobs well and he said that he rode a bicycle along the pathway past the Temple to the school, but a lorry was used to take building materials to the school and a lorry was used for the construction of the houses which had large portions of stone. I have seen photographs of these. They are clearly large and heavy and in the early 1960s in this part of Hong Kong, I am sure that lorries were used, as Mr Lo told me, to carry building materials for the houses. I have had some evidence about the pathway between the boulders and the contour line. The surveyor said nowadays it is difficult to get through, but I am sure that Mr Lo or any builder driving small lorries as he describes would be able to utilise that pathway.

11. The position, however is only made unusual in this case by virtue of the fact that the main track to which the right of way gave access may not have been used for vehicular traffic, at any rate to any degree. I accept the evidence given by the Government, which was set out and marked on the map by virtue of a footbridge going over the Shing Mun River and some of the pathways that as far as the area to the North, it was difficult for vehicles, particularly large vehicles, to utilise those pathways. The odd feature therefore is that the access way which was given onto the main path was, in my judgment, an access way that was going to be improved in the future. This is recognised by the wording of the grant and any reasonable use of these two dwelling houses in the beginning of 1960s would have the normal use for vehicles.

Events in 1988

12. I do not set out all the correspondence, but by 1988 the road network in this area was altered, instead of the Nullah Road, new roads in the area were constructed which ran along to the North of the subject property, one called Che Kung Miu Road and another running North-South on the Eastern side called Shatin Tau Road. These are all substantial new roads corresponding to substantial development that was occurring in the 1980s in Shatin and its surrounding areas. The position is, as a matter of fact today, that the main track has ceased to exist. The Nullah Road has gone and there is now a dual-carriageway major road, with a bicycle track, running on northern-south carriageways and at the moment to gain access to the site, there is a footway coming off the road. This is shown on photographs. It is impossible to drive a motor vehicle or anything of substance like an ambulance or delivery vehicle to the subject property. One can drive off the Shatin Tau Road, apparently park the car and walk past all the houses that are now built there, past the Temple and into the subject site.

13. In November 1987, correspondence occurred between the owner who was now an elderly gentleman and the Government. Insofar as evidence is concerned here (as I said I accept the evidence of the builder, I thought he was a perfectly honest person) witnesses' recollection may fade but documents are there to be read forever. There is a letter of 30 November 1987 from this gentleman, Silent Yensenti, who started by saying :

" Re Application for a vehicle access from Tse Kung Road

leading to Residential house at D.D.179, Lot 753

......

From the very beginning on building this residential house in 1958, prosperous suburban town, and was expecting facilities for vehicles to ingress and egress of the lot. It was therefore The Additional Special Conditions, (copy of which is enclosed herewith) prepared with clauses #2 and #12. Since the completion of the Tse Kung Road, I have bought a private car exclusively for use by me, an old man with an advanced age of 94! The car is usually driven from my house to the piece of vacant waste land in front of Tse Kung Temple leading to an access at the junction of the Tse Kung car park and the Chui Tin Street. Recently, the access is closed by erecting one more pole there, and my car cannot pass through.

I should be grateful if you could kindly consider to give a vehicle access to my lot somewhere at the south side of the Tse Kung Road opposite to lamp posts #AN0913-2 and N0911-1 as marked in the following sketch.

........"

That letter took 11 months to answer. Given may be there was intermediate correspondence, but it was considered over a substantial time, not only by the District Lands Office but I am sure by the Highways Department, the Engineering Department, all the various Government departments which have to be consulted for works to be carried out in or alongside any major new road. The opening words of the reply are :

" I refer to our previous correspondence and am pleased to advise you that Government would consider re-granting you a vehicular right-of-way ...... "

Those words, in my judgment, reinforce (I do not use them as a means of construction) that everybody knew that what was being granted in 1957 was indeed a vehicular right of way. An attached plan shows the right of way linking with a new short piece of road going across the bicycle track into Che Kung Miu Road. Obviously, as there was an obligation on the owner to pay for connecting works on any alteration to the government road, he would have to pay for that connection and maintain it; it had to be kept open to pedestrians and a number of other matters which were set out in the letter.

14. That, unfortunately, did not bear any fruit at all. There was a problem with regard to the land over which the extra portion would be built.

15. The position today is that this elderly person has died and there are now new owners of the land. The substantial houses are presumably out of date and as is common in Hong Kong, buildings are often pulled down to make way for new buildings. That is what is wanted here - to remove the old buildings and new houses would be built, but unfortunately, they cannot get vehicular access so that people cannot have a motor car; they cannot get anything delivered there. It is in one sense completely landlocked. Their right of way exists but it does not go anywhere. Before it was linked into the main path, it linked into something whereby vehicular access was to be possible in the future.

16. The issue therefore I have to decide is whether or not the new owners are entitled to relief in the form of a declaration with regard to the fact that the main path has now disappeared and their access has been severed. With the consent of the parties, I have decided to make a finding on the liability of the Government, if any, over the severance of the access road. If I hold in favour of the plaintiff, I will adjourn the matter for further argument as to what should then happen, because if a declaration is not possible by virtue of any engineering or highway problems and there is no alternative solution to an access way being provided, then the only remedy the plaintiff could have would be one of damages. Therefore, what I propose to do is to make my decision on what I call the liability aspect.

The Grant

17. In my judgment, what was granted in 1957, which is consistent with the facts and circumstances at that time, was a vehicular right of way onto a path. It was contemplated by the parties that the path would be altered in the future and that the access way would give access onto a government road. The government road, on a fair reading of any of the plans and the correspondence, would have been the Nullah Road which came eventually alongside the property. Highway matters, of course, progress because other parts of Shatin had to be serviced by substantial road developments - with tunnels being built - and consequently Che Kung Miu Road, the major road, is now the main east-west road in this area. That has completely severed any opportunity the plaintiff has of obtaining access to a government road.

Law

18. This is concisely set out in Halsbury (4th Edn) Vol 14, paras.144-167.

19. The land was described as "Building and Garden" lot. This, in my judgment, was a statement and term under which the lot was to be held, for what purpose, how it was to be used and enjoyed. (See e.g. Hofei Estates Ltd. v. Attorney General [1981] HKLR 664.)

20. It is important to recognise that the right of way was granted for unbuilt land, so that accessibility by vehicular traffic at the time of the grant may have been impossible. As, however, there were to be built two dwelling houses with garages, the parties were looking to vehicular access in the future.

21. In Newcomens v. Coulson (1877) 5 Ch.D.133 CA Maliens V.-C. said at p.140 : "... on the principle of Dand v. Kingscote the right of way is one including the right of improving from time to time according to the improvements of the age ..."

22. As far as the construction of the document is concerned, I find no difficulty in saying that it is for vehicular access to be connected in the future to the government road. The action of the Government in 1988 clearly indicates that that was their view as well. They take a different view today. They are entitled, of course, to make submissions today, but their view in 1988 which was after considerable time of no doubt consulting all the various Government departments, it may be the Legal Department as well, that there was an obligation on the Government to provide access as indeed I find there was. This obligation has never been abandoned by the owner of the land. There has been certain delay.

Limitation

23. A point is taken by Mr Ho with regard to the period of limitation. He says that when the road was constructed in 1981 or 1982, that was the time when the opportunity to connect was severed and therefore the Government were in breach. He submits that :

"The doctrine of non-derogation from grant gives rise to implied obligations on the grantor which are analogous to those arising from restrictive covenants. See Browne v. Flower [1911] 1 Ch.219 at 224-226, per Parker J.; Lam Kwok-leung v. Attorney General [1978] HKLR 147 at 154."

He accepts that as the obligations are contractual in nature and governed by s.4, a period of 12 years is applicable, and that this period would have expired by 1994.

24. I, with respect, do not agree with that approach. In my judgment, there was always a right here. There is no evidence of abandonment at all. The evidence indeed is to the contrary, that in 1988 when pressed with this fait accompli of the new road being built, the then owner was seeking and indeed demanding to have a right of way. Although it was offered, it was never given. If time begins to run, it would run from the time when the Government did not provide the right of way when asked. To put a precise date on that is unnecessary. On any view, it would be sometime in 1988. It may be even at a portion of time after 1988, but that is immaterial because the limitation period if it bites would take one over the year 2000. It may be, as is being submitted by Mr Chong, that it is indeed the later date when formal demand is made to the Government and it is not provided. On any view, it is unnecessary to make a precise decision on this because in my judgment the limitation point does not arise. Mr Ho submits : "Was there an obligation on the Government as it were to maintain the main track so that it could always be used for motor vehicles?". I have some sympathy for that submission because the wording on the grant is rather loose. It was done in fact by a gentleman who achieved great eminence in the Hong Kong Government, but the wording is somewhat loose and it is clearly looking to the future. I have come to the clear conclusion that both parties contemplated that the Nullah Road would eventually come by the site and it was to that government road that these two houses would find their vehicular access, but probably caused by the development of Shatin and adjoining areas, that changed so that there are now these new roads.

25. In my judgment, there has been a clear infringement of the grant which was given. The Government has not provided the access way and therefore is in breach. They have derogated from their grant, as they are unable at the moment or they have not offered to provide an access road. As injunctions cannot be granted, it gives rise either to a declaration or to damages. If it were damages, the principle would be the difference in value between the property with and without an access way to the adjoining road less, of course, the construction costs which the plaintiff would have to bear. Whatever that position is, I think all I need do at the present moment is to give my judgment in principle and to adjourn other matters with liberty to restore.

(R.A.W. Sears)

Judge of the High Court