Re WIDEARN INVESTMENTS LTD.

M.P. No. 600 of 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDING

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J U D G M E N T

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1. This is an application for Judicial Review. The Decision in question is the judgment of the Building Ordinance Appeals Tribunal dated the 18th January 1994 when they held that the area marked in pink on the plan produced to me which adjoined the East and South sides of the Applicants land at Fort Street was a street. This meant that Building Planning Regulation 23(2) provided that the calculation for site coverage and plot ratio excluded the area.

2. The basis of the application is that the Appeal Tribunal were wrong in law in making this determination and that this being the case I should order the relief sought namely certiorari to quash the Decision and make an appropriate Declaration.

3. Prior to the commencement of the hearing there was some agreement between Mr. John Swaine Q.C. representing the Applicant and Mr. Cooney representing the Respondent. They agreed to accept the validity of the judgment of Deputy Judge Jerome Chan, as be then was in Tang Tim Fat v. Chan Fok Kei and Other [1993] 2 HKLR 373. The deputy judge held that it was not open to a leaseholder in Hong Kong to acquire prescriptive rights over another leaseholder. As the area in pink had only been used as a passage or right of way comparatively recently - in any event long after the creation of the Crown lease under which the Applicant holds the land, there could be no question of anyone obtaining any prescriptive rights over the land. In other words at law the Applicant still maintained full control over all of the land.

4. There was, however, an exception to this. The parties agreed that the land marked in yellow on the said plan, which immediately adjoined the land marked in pink and which was further away from the rest of the land could not be included in the land calculated under regulation 23(2). This was because an easement by way of a mutual grant of rights of way with adjoining owners had been granted and reserved in respect of this land and consequently it could not be argued that the Applicant had retained control over this land.

5. The result of these agreements between the parties was to substantially circumscribe the outstanding issues between the parties.

6. In simple terms the issue which remained outstanding was whether it had been open to the Appeals Tribunal to simply consider the physical characteristics of the land in question or whether it was necessary to go on to consider the nature of any rights which may or may not have been acquired in relation to the land.

7. Mr. Swaine submitted that it was necessary to go beyond the question of the said physical characteristics. He placed considerable reliance upon the Privy Council case of Hinge Well Co. Ltd. v. The Attorney General of Hong Kong [1988] 1 HKLR 32. In particular he referred to a passage from the speech of Lord Oliver at 43 :-

" That, however, does not provide a complete answer to the respondent's contentions because there remains the question whether the area of the former scavenging lane is a "street". The fallacy in the appellant's argument, in their Lordships' view is that it leaves out of account that there are, both as a matter of law and of fact, subsisting rights of passage in adjoining or neighbouring occupiers. It is true that these may at some time in the future be disposed of by arrangement with those entitled to them, but that has not in fact been done. Although, as indicated, the mere existence of these rights is no ground for holding that the site falls to be treated as two separate sites, their impact on the question of the area to be taken into account for density purposes still has to be considered. The philosophy which underlines regulation 23 is effectively concealed by the delphic obscurity with which the regulation is expressed, but in so far as it is possible to discern the purpose of paragraph (2) it appears to be to exclude from computation for building density purposes such part of the land as cannot be built on in fact, whilst at the same time ensuring that the developer does not suffer a disadvantage by voluntarily precluding future building on such part of the land as he is prepared to dedicate to public use.

It does not, however, follow from the "On Hing Terrace case" or from the framework of the regulation that the differentiation in regulation 23(2)(a) of a street from a service lane necessarily involves reading "street" solely in the sense of "street dedicated to the public". In their Lordships' view an area of land (not being a service lane) over which there are private rights of passage in an adjoining occupier may nevertheless remain a street within regulation 23(2)(a). The statutory definition includes, for instance, a private footpath or private way and their Lordships can see no reason for treating the area of such a way as not comprehended in the word "street" where it is used in the regulation. Unless and until the rights of adjoining occupiers are surrendered or extinguished such an area remains as unavailable for building purposes as an area dedicated for passage by the general public. There is no doubt that, prior to demolition of the houses on the site, the scavenging lane was a street within the statutory definition. Equally the existing passages to the east and west were and still are streets or parts of streets.

Their Lordships can see no reason for saying that simply because the physical landmarks which delineated the previously existing street where it passed over the appellant's land have now disappeared that which was plainly a street before has ceased to be such. No doubt if the position were that there was neither any physical delineation of a way on the ground nor any right of any person but the landowner himself to use it the area could no longer be said to be a street in the statutory sense or indeed in any sense. But so long as the rights of passage of the adjoining occupiers subsists the area is apt to serve exactly the same purpose as it was serving before, that is to say, that of providing a communicating link between the passage on the west and that on the east. It continues to be unavailable to be built on and in their Lordships' view it remains a "street" within the meaning of regulation 23(2)(a) and so has to be left out of account in computing the area of the site for purposes of regulations 20 and 21. It follows therefore that inasmuch as the appellant's plans have been based upon a site coverage and plot ratio calculated on the basis of the inclusion in the area of the site of that part of the former scavenging lane which forms part of the proposed forecourt, the Building Authority was and is entitled to refuse approval and was correct in its assertion that a modification of the Building Regulations was required under s. 42 and that it was entitled to impose conditions upon the grant of permission to build in accordance with the present plans."

8. He contended that it was clear from this passage that there were 2 elements which had to be considered. The 1st related to the physical characteristics of the land and the 2nd to the essential question of what was in the control of the landowner.

9. Mr. Cooney who also placed reliance upon the same passage argued that it meant just the opposite. The circumstances of that case were readily distinguishable from the present case as the physical characteristics of the scavenging lane had been obliterated by virtue of the development taking place. He did however place reliance on the statement made by Lord Oliver to the effect that "simply because the physical landmarks which delineated the previously existing street . . . have now disappeared that which was plainly a street before has ceased to be such".

10. He also placed reliance on the judgment of Liu J. in Cho Hsun Co. Ltd. v. The Attorney General unreported being Miscellaneous Proceeding 1910 of 1982 where he was considering inter alia a similar issue in respect of the same area of land coloured pink in the context of the development of the site to the South of Fort Street. Liu J. after disposing of the question as to whether the presence of temporary structures on the land could be taken into account said at 4 : -

" But for these temporary structures, the disputed space forms part of a street as statutorily defined. The definition of a street is given in section 2 of the Buildings Ordinance, which reads as follows :-

"'Street' includes the whole or any part of any square, court or alley, highway, lane, road, road-bridge, footpath, or passage whether a thoroughfare or not".

A private street is earlier defined in the same section as meaning: -

"a street on land held under lease, licence or otherwise from the Crown or on land over which the Crown has granted a right of way".

From there, I turn to regulation 16 of the Building (Planning) Regulations for yet a further definition of "street" which means under regulation 16(4) "a street or service lane at least 4.5 meters wide". Regulation 23(2)(a) stipulates that in determining for the purposes of regulation 20, 21 or 22 the area of the site on which a building is erected, no account shall be taken of any part of any street or service lane. Lastly, I need refer to regulation 23(1)(c) which imposes a similar limitation on the definition of a street, confining it to "a street that is less than 4.5 meters" which then "shall be deemed not to be a street".

We have been advised by the Judicial Committee in the Mightystream Limited case to pay no regard to the definition of "street" in the Interpretation and General Clauses Ordinance, Chapter 1."

11. Clearly he had proceeded on the basis of the physical characteristics of the land and had not concerned himself with the further question as to whether the owner of the land had maintained control over all of the land.

12. I consider that it is relevant to observe that Hsu Chun Co. Ltd. v. The Attorney General was decided before either Hinge Well Co. Ltd. v. The Attorney General or The Attorney General v. Cheng Yick Chi Privy Council Appeal No. 32 of 1982 which was considered at some length by Lord Oliver in Hinge Well. This being the case Liu J. did not have the advantage of the speeches of the law lords in these cases.

13. More important than this I am of the opinion that Mr. Cooney's argument must fail as it must be the case that the control which is exercisable by a land owner is a relevant factor.

14. I say this because if the owner is able to exercise control over the area of land in question it would always be open to him to prepare his plan on the basis that the building proposed would in fact be erected on part or all of the said land.

15. I also believe that if the passage from Lord Oliver's speech which I have earlier referred to is read as a whole it becomes clear that the question of the exercise of control is an integral part of the rationale of the conclusions which were reached in that case.

16. For the reasons I have given I am satisfied that the Appeals Tribunal was in error in law in determining that the physical characteristics of the land would be sufficient to enable them to treat the area in pink as a street. I realise that this may be rather an over simplification as the judgment of the Tribunal extended beyond a consideration of only this. However, having regard to the narrowing of the issues I have earlier referred to and the concession made by both sides, I consider that I am able to make an order of certiorari and to make a Declaration to the effect that area marked in pink is not a street within the meaning of the Regulation. I will hear the parties on the form of the order to be made and on costs.