WONG KWOK GEE v. THE BUILDING AUTHORITY

HEADNOTE

[On an application for approval of plans for building works under section 14(1)(a) of the Buildings Ordinance (Cap. 123), the law to be applied is the law in force when the plans are considered (Attorney-General v. Firebird Ltd. (PCA 17/82)), unless that would cause unfairness or injustice in a particular case (Head Step Ltd. v. Building Authority (CA 131/95)). Where plans have been approved on the basis of the Outline Zoning Plan then in force, but despite that approval new plans are submitted for approval, no unfairness or injustice is caused if the application for approval of the new plans is considered in the light of the Outline Zoning Plan in force when the new plans are considered.]

1995 M.P. No. 963

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

____________

_______________

J U D G M E N T

_______________

INTRODUCTION

1. This is an application for judicial review. The decision challenged is a decision of the Building Authority ("the Authority") to refuse approval for plans for the development of a site in Waterloo Road, Kowloon. The decision was notified to the Applicant on 10th January 1995. Leave to apply for judicial review of the decision was given by Jerome Chan J. on 10th July 1995.

THE FACTS

2. It was on 7th December 1992 that plans for the development of the site were first submitted by the Applicant's architect to the Authority for approval. These plans were not approved, and the Applicant's architect was notified of the refusal of approval on 5th February 1993. A second set of plans for the development of the site were then submitted by the Applicant's architect to the Authority. These plans were intended to rectify the objections raised by the Authority to the first set of plans, and were received by the Authority on 11th March 1993. The Authority's response to the second set of plans was contained in a certificate of approval sent to the Applicant's architect dated 14th April 1993. However, the letter enclosing the certificate said that the plans were acceptable "subject to no adverse comment from [the] District Planning Officer".

3. After the certificate had been issued, the District Planning Officer advised that the second set of plans contravened the relevant Outline Zoning Plan ("the OZP") then in force. That stipulated that where plans proposed commercial use above the three lower floors in a residential zone, planning permission was required from the Town Planning Board. The second set of plans submitted by the Applicants (as had the first set of plans which had been submitted) had proposed that the four lower floors should be for shop and office use, and planning permission had not been obtained from the Town Planning Board.

4. The upshot was that on 12th May 1993 the Authority informed the Applicant's architect of the advice which it had received from the District Planning Officer. Two comments need to be made about this letter :

(i) The letter did not expressly purport to withdraw the certificate of approval which had been issued on 14th April 1993.

(ii) The letter concluded with the following words :

"Should you wish to pursue the matter [further], an application to the Town Planning Board should be made."

Acting upon the advice contained in that letter, the Applicant's architect applied on 26th May 1993 to the Town Planning Board for planning permission. That permission was refused. I have not been told when that permission was refused, but what happened next was that over 18 months after the application to the Town Planning Board, the Applicant's architect submitted a third set of plans to the Authority for its approval. Those plans proposed office use only for the lower three floors of the development. Those plans were submitted on 12th December 1994.

5. The final twist in the story is that the Authority refused to approve the third set of plans. The Applicant's architect was notified of this refusal on 10th January 1995. That is the decision challenged in these proceedings. The ground of the refusal was that the plot ratios in the plans exceeded the plot ratios in the relevant draft OZP then in force. The irony was that the plot ratios in the plans had not exceeded the plot ratios in the relevant OZP which had been in force when the certificate of approval for the second set of plans had been issued.

THE STATUTORY FRAMEWORK FOR APPROVAL

6. The statutory scheme for the approval of plans submitted to the Authority is laid down in the Buildings Ordinance (Cap. 123) ("the Ordinance") and the Building (Administration) Regulations ("the Regulations") made under the Ordinance. Section 14(1) of the Ordinance provides :

"... no person shall commence or carry out any building works ... without having first obtained from the ... Authority -

(a) [its] approval in writing of documents submitted to [it] in accordance with the regulations ..."

Where an application is made for the approval of plans for building works, the Authority is deemed to have given its approval unless, within the period prescribed by the Regulations, it has notified its refusal to give its approval in writing: section 15(1) of the Ordinance.

7. Regs. 30(3) and 30(4) identify the period after which the Authority is deemed to have given its approval of plans for building works for the purpose of section 15(1) of the Ordinance. Thus,

(a) in relation to plans which are re-submitted for approval, so extensively revised as to constitute, in the opinion of the Authority, a major revision of plans which have previously been submitted, the period is 60 days from the date on which the plans were last submitted: reg. 30(3)(b); and

(b) in relation to any other plans which are re-submitted for approval (i.e. plans which do not amount to a major revision), the period is 30 days from the date on which the plans were last submitted: reg. 30(3)(c).

In addition, if the Authority is of the opinion that re-submitted plans constitute a major revision, it must notify the Applicant of that not later than 30 days from the date on which the plans were last submitted: reg. 30(4).

8. The effect of the statutory scheme is clear. Re-submitted plans are deemed to have been approved once 30 days have elapsed since their re-submission unless either

(a) the Authority has already notified the Applicant of its refusal to approve the plans, or

(b) the Authority has already notified the Applicant that in its opinion the re-submitted plans amount to a major revision.

In the latter event, the re-submitted plans will only be deemed to have been approved once 60 days have elapsed since their re-submission.

THE APPLICATION OF THE STATUTORY SCHEME TO THE PLANS SUBMITTED BY THE APPLICANT'S ARCHITECT

9. The Authority refused approval for the first set of plans within 60 days of the date when these plans were first submitted. Accordingly, no question of the deemed approval of these plans arises. However, that cannot be said of the second set of plans. The Authority does not assert that in its opinion those plans constituted a major revision of the first set of plans. In any event, it could hardly assert that now, since it did not notify the Applicant's architect of that within 30 days of the submission of the second set of plans. Accordingly, the second set of plans were deemed to have been approved if the Authority had not, within 30 days of the submission of the second set of plans on 11th March 1993, i.e. by 10th April 1993, notified the Applicant's architect that approval for the plans had been refused. It had not done so by 10th April 1993. Accordingly, the second set of plans were deemed to have been approved.

10. Four consequences flow from this analysis :

(i) There was no need for the Authority to issue a certificate of approval for the second set of plans on 14th April 1993. That was because by then the plans were deemed to have been approved.

(ii) The Authority's letter of 12th May 1993 was of no effect, even if it could have been construed as purporting to revoke the certificate of approval, or rendering the approval subject to conditions. That was because the second set of plans were deemed to have already been approved.

(iii) There was no need for the Applicant's architect to submit the third set of plans. The Applicant could have relied on the deemed approval of the second set of plans.

(iv) The Authority's refusal to approve the third set of plans had no bearing on the second set of plans because the second set of plans were deemed to have already been approved.

11. However, the Applicant can no longer proceed with the building works on the basis of the second set of plans. If the Applicant had wished to proceed with the building works on the basis of the deemed approval of the second set of plans, the course which he ought to have taken was to ask the Authority to confirm that (a) by 10th April 1993 the second set of plans were deemed to have been approved, and (b) the Authority's letter of 12th May 1993 was of no effect. In the event of the Authority refusing to do so, the Applicant could then have sought declaratory relief to that effect. However, he never sought to do that. It is now far too late for him to do so. That does not mean that he cannot proceed with the building works on the basis of the second set of plans. However, if he chooses to do so, he has to get over another hurdle. In order to proceed with the building works in accordance with the second set of plans, the Applicant has to obtain the consent of the Authority to commence the works under section 14(1)(b) of the Ordinance. The Authority would now be empowered to refuse to give its consent, because over two years have elapsed since the deemed approval of the second set of plans: see section 17(3)(d) of the Ordinance. It may well refuse to do so in view of the OZP now in force.

12. These, then, are the reasons why the Applicant is so anxious, despite the deemed approval of the second set of plans, to persuade the Authority to approve the third set of plans, though before I turn to the legality of the Authority's refusal to approve the third set of plans, there is one other matter I must dispose of. At one stage, the Applicant wished to argue that the third set of plans had also been deemed to have been approved. If that had been correct, the legality of the refusal of approval for them would not have had to be considered: the refusal would have had no legal effect if the plans were already deemed to have been approved. This argument was based on the fact that the letter seeking the approval of the third set of plans was dated 5th December 1994, i.e. more than 30 days before the notification of the refusal. However, Mr. Johnny Mok for the Applicant accepts that this argument is no longer open to the Applicant: he told me from the Bar Table that although the letter was dated 5th December 1994, it had not been despatched until 12th December 1994. No question of the deemed approval of the third set of plans therefore arises.

THE CHALLENGE TO THE DECISION OF 10TH JANUARY 1995

13. The decision of 10th January 1995 is challenged on the ground that when the Authority refused to approve the third set of plans, it did so because it believed that it was obliged in law to do so. It believed that if the plans contravened the OZP then in force, it had no option but to refuse to approve the plans. However, although the Authority undoubtedly had the power to refuse to approve the plans on that ground, it was not obliged to do so. That is because section 16(1)(d) of the Ordinance which conferred that power on the Authority gave the Authority a discretion as to whether to exercise that power.

14. All of that is accepted by the Authority. It therefore accepts that the decision of 10th January 1995 should be quashed, and that it should re-consider the application for approval of the third set of plans in the light of the discretion which it accepts it has. In these circumstances, I grant the Applicant the relief which he seeks in paras. 1, 2 and 3 of the amended Notice of Application dated 28th June 1995.

THE RELEVANT OUTLINE ZONING PLAN

15. However, that is not the end of the matter, because there is one issue which still divides the Applicant and the Authority, namely what are the maximum plot ratios which the Authority should take into account in determining whether to approve the plans. Three possibilities arise :

(i) the maximum plot ratios permitted by the OZP in force when the second set of plans were deemed to have been approved (which is what the Applicant contends for),

(ii) the maximum plot ratios permitted by the draft OZP in force when the third set of plans were originally refused (which is what the Authority contends for), or

(iii) the maximum plot ratios permitted by the OZP in force when the Authority next considers whether to approve the third set of plans.

At one stage, I thought that it might be premature for me to decide that issue now. Let it be decided by the Authority itself when it considers whether to approve the third set of plans. If the Applicant is aggrieved by the decision of the Authority on that issue, it can then challenge that decision. On reflection, though, I think that the issue is one which should be decided now, because it relates directly to the nature of the relief which the Applicant seeks in paras. 4 and 5 of the amended Notice of Application. Whether the Applicant is entitled to that relief depends entirely on the resolution of this issue.

16. On this issue, the starting point is the decision of the Privy Council in Attorney-General v. Firebird Ltd. (PCA 17/82). The Privy Council decided that on an application for approval of plans for building works under section 14(1)(a) of the Ordinance, the law which the Authority is obliged to apply is the law applicable on the date when the Authority considers the plans. That applies even if the law has been changed since the date on which the plans were submitted to the Authority for approval.

17. However, Mr. Mok argues that the present case is not one to which the principle in Firebird applies. He relies on

(a) two decisions at first instance: the decision of Mayo J. (as he then was) in R. v. The Director of Buildings and Lands ex p. Super Mate Ltd. (HCMP 200/94), and the decision of Sears J. in Heland Investment Ltd. v. Attorney-General [1994] 2 HKC 550; and

(b) the analysis of those decisions by the Court of Appeal in the recent case of Head Step Ltd. v. Building Authority (CA 131/95).

In both Super Mate and Heland Investment, the Authority had refused to approve plans for building works submitted to it under section 14(1)(a) of the Ordinance. These refusals were either accepted or found to be erroneous. However, by the time new plans were submitted to the Authority for approval, the relevant OZP had been amended. It was held that the relevant OZP in each case should have been the one in force when the Authority had considered the earlier set of plans.

18. In Head Step, Liu J.A. did not find it necessary to analyse Super Mate or Heland Investment in order to decide the appeal. However, both Ching J.A. and Seagroatt J. considered Super Mate and Heland Investment in some detail. They rejected the proposition which had been accepted by Mayo and Sears JJ., namely that the submission of plans which were "very similar" or "virtually identical" to the plans for which approval had been refused amounted to the re-submission of the same plans, rather than a fresh application for approval of a new set of plans. However, Ching J.A. and Seagroatt J. both held that the two cases had been correctly decided. Seagroatt J. said, in relation to Super Mate, that

"... fairness required the application to be considered on the basis of the law applicable at the time that the application ought to have been approved ... [and] but for the Authority's error, the Applicant would have been entitled to approval ... several months before the OZP changed." (My emphasis).

He went on to say, in relation to both Super Mate and Heland Investment, that

"... there had been clear errors on the part of the Authority which had deprived the Applicant of decisions which would not have been affected by changes in the law adverse to the Applicants, and therefore, in the face of such errors, it would be wholly unjust to deprive the Applicants of the benefit of the proper decisions." (My emphasis).

Ching J.A. did not give any reasons for concluding that the decision in Heland Investment was "clearly right", though he said that Super Mate had been rightly decided because "the refusal ought never to have occurred at all". However, by the time he wrote his judgment, he had read a draft of the judgment of Seagroatt J., and I think that he must be taken as agreeing with the reasons Seagroatt J. gave for deciding that the decisions in Super Mate and Heland Investment had been correct.

19. I am a little surprised that Ching J.A. and Seagroatt J. felt able to identify circumstances in which the principle in Firebird would not apply. It is arguable that only the Privy Council should be able to identify the circumstances in which a principle which it established could be departed from. However, I must not presume to know better than the Court of Appeal, and I must loyally follow what the Court of Appeal has decided. I must treat Head Step as authority binding on me for the proposition that the principle in Firebird can be departed from if it would result in unfairness or injustice in a particular case. The majority of the Court of Appeal in Head Step took the view that an erroneous refusal of approval by the Authority which prevents an Applicant from having his plans considered on the basis of the OZP then in force is such a case. In such a case, the Applicant should be put back to the position in which he would have been if the error had not been made. That requires any subsequent application for approval of another set of plans (rendered necessary by the erroneous refusal of an earlier set of plans) to be considered in the light of the OZP in force when the earlier set of plans had been considered.

20. At first blush, the application of that principle to the facts of the present case merely means that when the third set of plans are considered again by the Authority, the OZP which will not then be able to be taken into account will be that in force when they are being re-considered, i.e. possibility (iii). The Authority's error in refusing approval for the third set of plans has only the effect of requiring the Authority to take into account the OZP in force when it first considered the third set of plans, i.e. possibility (ii).

21. However, Mr. Mok maintains that the application of the Head Step principle to the facts of the present case requires the Authority to go one step further, and to take into account the OZP in force when it considered the second set of plans, i.e. possibility (i). The argument is as follows. The deemed approval of the second set of plans meant that the second set of plans were deemed to have conformed to the OZP then in force. The third set of plans were only submitted to comply with the limitation on the number of floors designated for commercial use. It was therefore unfair and unjust for the Authority to consider the third set of plans in the light of the OZP then in force, when the plot ratios in the third set of plans had not exceeded the plot ratios in the OZP in force when the second set of plans had been deemed to have been approved. If Head Step requires the Authority to consider subsequent plans on the basis of the OZP in force at the time when the original plans ought to have been approved, all the more so should the Authority consider subsequent plans on the basis of the OZP in force at the time when the original plans were deemed to have been approved.

22. Beguiling though this argument is, I cannot accept it. I simply do not see what unfairness or injustice is caused to the Applicant by having the third set of plans re-considered in the light of the OZP in force when the third set of plans were first considered. After all, it was not as if the third set of plans had been lodged because the Applicant had been deprived of the opportunity of having the second set of plans considered according to law. The deemed approval of the second set of plans meant that the Applicant could then have applied for the necessary consent to commence the building works under section 14(1)(b). None of the circumstances set out in sections 17(3) and 17(4) would have been present so as to justify a refusal of such consent. If the Authority had purported to refuse such consent under section 17(3)(ba) on the footing that

(a) its letter of 12th May 1993 purported to impose a condition for approval, namely a successful application to the Town Planning Board for planning permission, and

(b) such a condition had not been complied with,

that refusal would have been of no effect, because the purported condition itself would have been of no effect, since unconditional approval had already been deemed to have been given. Once the Applicant had obtained such consent under section 14(1)(b), he could then, if he had wished to reduce the number of floors designated for commercial use, simply have submitted plans showing the necessary alterations for the Authority to approve under reg. 33(1). There is absolutely no reason why the Authority should have withheld its approval.

23. In short, the Applicant suffers no unfairness or injustice in not having the third set of plans re-considered by reference to the OZP in force when the second set of plans were considered, because it had been open to the Applicant to proceed with the building works on the basis of the second set of plans. Having decided not to take that course, but to submit a third set of plans for approval under section 14(1)(a), the Applicant cannot complain if the Firebird principle is applied to the third set of plans. Where is the unfairness or injustice to the Applicant if the Firebird principle is invoked as a result of a course of action which he (or his architect) chose to adopt, when another course of action which would not have attracted the Firebird principle was available to them?

24. For these reasons, I rule that the OZP which the Authority is required to take into account when it re-considers the third set of plans is the OZP in force on 10th January 1995 when it first considered the third set of plans. I therefore refuse to give the Applicant the relief sought in paras. 4 and 5 of the amended Notice of Application.

COSTS

25. It may be helpful if I indicate my provisional view as to costs. Although the Applicant has lost on the issue which has been argued before me, these proceedings had to be brought in order to obtain the quashing of the Authority's refusal to approve the third set of plans. The Authority's concession that the Applicant was entitled to the relief sought in paras. 1, 2 and 3 of the amended Notice of Application came only on the day before the hearing - far too late to avoid the costs of the hearing. In these circumstances, my provisional view is that the Respondent should pay the Applicant's costs of the proceedings, to be taxed if not agreed. However, these costs should not include the costs of the preparation of the original Notice of Application, nor the first application before Jerome Chan J. on 20th April 1995. In relation to those costs, my provisional view is that there should be no order as to costs.