YEMIE KOOLE LTD v. APPEAL TRIBUNAL (BUILDINGS ORDINANCE)

HCAL 1636/2024

[2025] HKCFI 1763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1636 OF 2024

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REASONS FOR DECISION

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A.  Introduction

1.  By Form 86 originally dated 20 September 2024, and amended on 7 April 2025 (“AF86”), the Applicant seeks leave to apply for judicial review so as to challenge the decision of the Appeal Tribunal (Buildings Ordinance) (“Tribunal”) dated 25 August 2023 (“Decision”), and its subsequent costs decision dated 18 September 2023.

2.  By the Decision, the Tribunal dismissed the Applicant’s appeal against a Dangerous Hillside Order DH0003/NT/13/C (“DHO”) issued by the Building Authority (“BA”) to the Applicant on 22 January 2013, pursuant to section 27A of the Buildings Ordinance Cap 123 (“BO”).

3.  I gave directions for a rolled-up hearing, and fixed 29 April 2025 as the date for that hearing. As would be expected, the Tribunal took a neutral stance in these proceedings, and its attendance was excused. Hence the argument was conducted between the Applicant and the BA. The Applicant was represented by Mr Felix Ng and Ms Abigail Liu of Counsel, and the BA was represented by Ms Tessa Chan of Counsel and Mr Jack Hon, Government Counsel. As is usual, I had the benefit of their written skeleton submissions filed in advance of the hearing.

4.  At the end of the hearing, I dismissed the application, with reasons to be given the next day. These are my Reasons for Decision.

B.  Factual Background

B.1  The Feature

5.  The Applicant is the registered owner of G/F and 1/F of House No. 1, Man King Terrace, Tseng Lan Shue, Sai Kung (“House 1”) located on DD 226 Lot No. 849 (“Lot 849”).

6.  Lot 849 was granted by New Grant No. 6149 dated 19 September 1977 (“New Grant”), which included the following provisions:

Special Condition 9 (“SC 9“)

(a) The area(s) shown coloured pink/and yellow/on the plan annexed hereto shall be formed to the satisfaction of the District Officer by the grantee at his own expenses before any building operations commence on the lot and the said area shown coloured shall be retained by the Government on completion. …

Special Condition 10 (“SC 10”)

(a) The grantee shall not cut away, remove or set back any land adjoining the lot except with the prior written consent of the District Officer.

(b) Where any cutting away, removal or setting back of adjacent or nearby hillside or banks or any building up or filling in is required for the purpose of or in connection with the formation, levelling or development of the lot or any part thereof, the grantee shall construct or bear the cost of the construction of such retaining walls or other support I shall or may then or at any time thereafter be necessary to protect and support such hillside and banks and the lot itself and to obviate and prevent any falling away, landslip or subsidence occurring thereafter, and shall at all times maintain the said retaining walls or other support in good and substantial repair and condition. …

7.  The pink and yellow coloured areas on the plan referred to in SC 9 covered Lot 849 (pink) and the area surrounding Lot 849 to its south, east and west sides (yellow).

8.  The Applicant was not the original grantee, but became the owner of the G/F and 1/F of House 1 on 1 May 1996 and 7 December 2005 respectively.

9.  To the north of Lot 849 is DD 226 Lot No. 829 (“Lot 829”), on which is located House No. 2, Man King Terrace (“House 2”).

10.  To the west and south of the two Lots, there is formed/man-made land, being a slope (“Feature”), consisting of three portions or subdivisions (“SD 1”, “SD 2”, and “SD 3” respectively). SD 1 is the northern portion of the Feature, located to the west of House 2 on Lot 829, and SD 2 is the southern portion of the Feature located to the south-west of House 1 on Lot 849. SD 2 lies on government land, is 42m long, and comprises an 8.4m high soil cut slope at an average 70 degrees to the horizontal. House 1 is located approximately 3m from the toe of the Feature, which essentially wraps around the southern and western sides of House 1.

B.2  The DHO

11.  According to the Stage 2 Study Report dated April 2012, prepared by AECOM Asia Co Ltd (“AECOM”) and commissioned by the Geotechnical Engineering Office (“GEO”), SD 2 possesses Factors of Safety satisfying the requirements for issuing a DHO. This has not itself been a matter of any dispute. According to the Systematic Identification of Maintenance Responsibility of Slopes in the Territory (“SIMAR”) report from the Lands Department (“LD”), the owners of Lot 849 are responsible for its maintenance. This is what has been at the centre of the dispute.

12.  On 4 May 2012, the GEO sent to the BA a recommendation for the service of the DHO in respect of SD 2, setting out the maintenance responsibility based on the SIMAR Report.

13.  The BA subsequently obtained copies of the New Grant and Certificate of Compliance of Lot 849 from the LD, and information from the Land Registrar as to the ownership of Lot 849.

14.  The DHO was issued to the Applicant on 22 January 2013.

B.3  The Appeal and the Corrections

15.  The Applicant lodged a Notice of Appeal with a statement of particulars on 5 February 2013. On 18 July 2013, the BA filed its respondent’s representations, with various materials including the Stage 2 Report.

16.  Shortly thereafter, the BA was informed by way of memoranda dated 17 and 30 October 2013 from the GEO that AECOM had corrected some typographical errors in the Stage 2 Report (“Corrections”), including the annexed Aerial Photographs Interpretation (“API”) Report. The memoranda identify that AECOM considered that it had made typographical errors, and so was correcting them – hence my use of the definition Corrections to describe the changes made.

17.  The material differences between the two versions of the Stage 2 Report and API Report (“1^st Version” and “2^nd Version” respectively) as a result of the Corrections can be seen in the following table (with underlining in the 2^nd Version to show the changes):

	1st Version	2nd Version
Stage 2 Report §2.1.1	Aerial photographs taken between 1963 in 2004 were examined. Based on the API report (Appendix B), the northern portion of the Study Feature (Sub-division No. 1) and House No. 2 was formed between 1977 and 1978. The southern portion of the Study Feature (Sub-division No. 2) and House No. 1 were formed between 1976 and 1977.	Aerial photographs taken between 1963 in 2004 were examined. Based on the API report (Appendix B), the northern portion of the Study Feature (Sub-division No. 1) and House No. 2 was formed between 1976 and 1977. The southern portion of the Study Feature (Sub-division No. 2) and House No. 1 were formed between 1977 and 1978.
API Report as to 1977	The southern part of the Study Feature (Sub-division No. 2) had been formed. The slope surface was protected by some reflective material. Only House 1 located at the toe of the Study Feature had been constructed. The feature crest was covered by well grown trees.	The northern part of the Study Feature (Sub-division No. 1) had been formed. The slope surface was protected by some reflective material. Only House 2 located at the toe of the Study Feature had been constructed. The feature crest was covered by well grown trees.
API Report as to 1978	The northern part of Study Feature (Sub-division No. 1) had also been formed. House No. 2 had been constructed. Large area of bare surface could be observed at the feature crest.	The southern part of Study Feature (Sub-division No. 2) had also been formed. House No. 1 had been constructed. Large area of bare surface could be observed at the feature crest.

18.  In his submissions, Mr Ng sought to define the differing versions as the “1^st Version of Findings” and “2^nd Version of Findings”. But I think the addition of the word “findings” is potentially unhelpful (as perhaps being argumentative rather than neutral), and in any event unnecessary. As can be seen, the changes made by the Corrections were to change the construction year and formation year of House 1 and SD 2 from “1976 to 1977” to “1977 to 1978”, and for House 2 and SD 1 from “1977 to 1978” to “1976 to 1977”. In other words, the description of the order of construction and formation of each of House 1/SD 2 and House 2/SD 1 was reversed or swapped between the 1^st Version and 2^nd Version.

19.  The BA filed supplementary documents in the appeal by way of its letter dated 28 November 2013, making the Corrections for what were described as the errors in the Stage 2 Report and the arrows labelled to mark the locations of Lot 849 in the 1977 aerial photographs. That letter was copied to the Applicant by registered post. It is important to note that the Applicant had been provided with the Corrections and 2^nd Version almost ten years before the appeal hearing in the Tribunal, which only came on much later, on 17 April 2023.

20.  The Applicant’s statement of particulars with its notice of appeal identified three grounds of appeal to the Tribunal: (1) the Feature had already been in existence when the Applicant purchased the first part of House 1 on 1 April 1996, and the hillside had not changed; (2) the Feature is located on Government land which anyone can use, access or pass over; and (3) the Buildings Department (“BD”) had conducted investigations and inspections before, so it was unreasonable suddenly to ask the Applicant to conduct repairs on behalf of the Government.

21.  On the second day of the appeal, the Applicant supplemented those grounds, as follows:

3. In relation to the first round of appeal above, the land grant No 849 for Lot 226 was signed on 19 September 1977, and the lot was granted to Yau Yung-hei by private treaty. However, the relevant slope in the lot was already existing before the date of the land grant (i.e. 19 September 1977). Therefore, the special terms (including but not limited to Clause 10(b)) set out in the land grant for the retaining wall or the maintenance of the safety of the associated slope do not apply.

4. In relation to the second and third grounds of appeal above, the Appellant has reason to believe that only the Government was most likely to have constructed the slope, or carried out levelling or man-made land construction works before granting the relevant Land Grant No. 849 in Section 226. Therefore, the Applicant believes that the location of the slope belongs to the Government and that the Government is also required to maintain safety standards for the construction of the slope or retaining wall in the relevant lot.

22.  At the appeal, the BA called four factual witnesses and one expert witness. The factual witnesses were: (1) a Senior Structural Engineer of the Slope Safety Section of the BD; (2) the Chief Geotechnical Engineer of GEO; (3) a Senior Lands Officer of the Sai Kung Lands Office of the LD; and (4) and an Estate Surveyor of the Estate Management Section of the LD. The expert witness was a Mr Fong Tat Tong, an executive director of AECOM. Each witness was subject to cross-examination by the Applicant (which was not legally represented), and much of the cross-examination of Mr Fong concerned whether he was sufficiently independent given that he was a director of AECOM and where the relevant part of the Stage 2 Report was also prepared by AECOM.

C.  The Tribunal’s Decision

23.  The impugned Decision of the Tribunal was handed down on 25 August 2023, and it subsequently made its consequential costs decision against the Applicant on 18 September 23. (Though the costs decision is also impugned, no separate challenge is made to it, and it stands or falls with the Decision.)

24.  There is no need to go through a full description of the Decision. It suffices to give the following broad summary.

25.  The Tribunal identified the grounds of appeal made by the original statement of particulars and the supplementary statement, before setting out the undisputed facts. The Tribunal then identified the points of contention, including whether the BA’s evidence was admissible, whether Mr Fong was a reliable independent expert witness, and the main issue as to whether the Applicant is responsible for the maintenance of the Feature.

26.  The Tribunal then provided a summary of the evidence given by the four factual witnesses and by Mr Fong. It is relevant to note for present purposes that included in the summary of the first witness’ evidence was his confirmation that, regarding the formation of the Feature mentioned in section 1(g) of the Checklist annexed to the notes, “the contents of the relevant Stage 2 Report had been corrected and the correct year of formation should be 1977 to 1978 as mentioned in paragraph 2.1.1 of the Report”.

27.  The Tribunal assessed all of the witnesses’ evidence as being clear and credible, honest and reliable, and mainly supported by documents. As to Mr Fong, the Tribunal considered that, despite Mr Fong’s being a director of AECOM, he did not lack the necessary independence, and that his clear and pertinent testimony his evidence should be given full weight. The complaint as to hearsay or inadmissibility was rejected as having arisen from a misunderstanding of principle.

28.  The first supplemental ground of appeal – namely whether the Feature was already existing before the New Grant for Lot 849 – was then addressed in detail. The Tribunal stated that after careful consideration of the evidence it was of the view that the Applicant’s assertion was inconsistent with the facts. It relied on the testimony of the factual witnesses (and the documents referred to by them) and of Mr Fong, and his observations made on the relevant aerial photos, in accepting that both the material part SD 2 of the Feature and House 1 were formed between 2 May 1977 and 5 July 1978 (the date of two of the aerial photographs). The Tribunal also specifically stated that the same observation could be made by the Tribunal itself, on the basis of relative likelihood and after its own review of the enlarged versions of the aerial photographs.

29.  The Tribunal also referred to the provisions in the New Grant, and the need for the formation of the yellow area around Lot 849, and the various inspections of the site formation works mentioned in the LD internal memoranda. Those also pointed to House 1 and the site formation works having being completed during the development of Lot 849. From the evidence, the inference was drawn that SD 2 of the Feature was formed during the relevant site formation works after the grant of Lot 849. The Feature was formed “for the purpose of”, or at least “in connection with”, the formation, levelling or development of Lot 849.

30.  The Tribunal then addressed the other grounds of appeal, holding that it was irrelevant that the Applicant became the owner only after the creation of the Feature, and that it was irrelevant that the Feature is on Government land. Further, the prior investigation or monitoring by the Government was considered to be not a valid ground of appeal.

31.  Lastly, the Tribunal addressed the supplement to the second and third original grounds of appeal, namely that the Government had already constructed the Feature before the New Grant for Lot 849. The Tribunal reiterated its findings already made on the evidence which clearly showed that the Feature was formed during the relevant site formation works after the New Grant, and was not constructed by the Government or other unrelated parties before the New Grant. Again, reference was made to the yellow area and cutting away clauses (i.e. SC 9 and SC 10) found in the New Grant, which the Tribunal found to be contrary to the Applicant’s argument that the Government had formed the land and built the Feature before granting the land.

32.  As a result, none of the grounds of appeal were found established, and the Tribunal noted that it could not find any unfair treatment of the Applicant in the BA’s lawful and reasonable issue of the DHO under section 27A of the BO.

D.  Intended Grounds of Review

33.  It may be fair to say, as Ms Chan points out, that the grounds of review put forward in the AF86 have been somewhat reformulated in the arguments advanced by Mr Ng. In any event, I will address the grounds in the form as advanced in argument.

34.  Mr Ng submitted that all grounds of judicial review stem from one central question of natural justice: whether the BA, by “dressing up” the replacement of the 1^st Version with the 2^nd Version as mere corrections of “typographical errors”, deprived the Applicant of a fair chance to present its defence fully before the Tribunal. As Mr Ng put it, the BA “represented” to both the Applicant and the Tribunal that the 1^st Version contained just “typographical errors”, when they are not. Therefore, he said, both the Applicant and the Tribunal omitted to take account of the fact that the 1^st Version supposedly supports the Applicant’s defence, namely that SD 2 of the Feature was created before the New Grant, by people other than the Applicant’s predecessor.

35.  As was I think fairly summarised by Ms Chan, in essence the Applicant says that by reason of the BA’s “dressing up”, the Tribunal failed to make proper enquiries as to the true nature of the Corrections and hence acted irrationally and committed errors of law by failing property to consider the 1^st Version in support of the Applicant’s case, and wrongly accepting the BA’s expert evidence.

36.  Mr Ng also submitted that the “dressing up” occurred because, after the Applicant had lodged the appeal against the DHO, the BA realised the 1^st Version does not provide a basis for the DHO. Therefore, the BA quickly “rowed back” against the 1^st Version and came up with the 2^nd Version.

37.  Against that introduction, Mr Ng relied on three intended grounds of judicial review, being:

(1)  Ground 1: The Tribunal’s decision is irrational in that it failed to take into account that the 1^st Version supports the Applicant’s defence.

(2)  Ground 2: The Tribunal erred in law for its failure to properly determine whether it was the Applicant’s predecessor who created SD 2 of the Feature, which is a jurisdictional fact for issuing the DHO.

(3)  Ground 3: The Tribunal erred in law by placing undue weight on the expert evidence of Mr Fong, whose evidence should not be accepted as independent for he is apparently biased.

38.  I can deal with each of the intended grounds of review in turn, but it is necessary and appropriate first to address a preliminary point.

E.  The Preliminary Point

39.  Ms Chan submits that the present application for leave to apply for judicial review is bound to fail, because the question of the BA’s alleged “dressing up” was never raised before the Tribunal, notwithstanding that the BA had informed the Applicant of the Corrections as early as in 2013, almost 10 years before the appeal hearing in 2023, and when the Applicant never opposed the Corrections or challenged the typographical nature of them, or sought to rely on the difference in the 1^st and 2^nd Versions as any part of its case.

40.  Ms Chan relies on the principle that a decision of the Tribunal should not be quashed on judicial review on the basis that the Tribunal failed to address an argument which not raised by the parties. In short, it is not open to the Applicant to criticise the Tribunal for failing to make inquiries on an argument which the Applicant itself did not raise. I agree. Further, had the point been raised before the Tribunal, the BA might have called other evidence, and so would be prejudiced if the point were allowed to be raised on in an attempted judicial review.

41.  I also agree that it does not assist the Applicant that it was not legally represented before the Tribunal. It remained incumbent on the Applicant, as the appellant litigant in the adversarial appeal proceedings, to meet its duty to present the facts and arguments on the case on which it relied. The Applicant had more than sufficient time – almost 10 years – to have considered and addressed the nature of the Corrections, and to have advanced any argument it thought fit flowing from that.

42.  I also reject the allegation of “dressing up”. Because of what was said by Mr Ng in this regard at the hearing, it is necessary for me to deal with it at greater length than I might have originally intended. Reference can be made to the submissions of Mr Ng in his written skeleton argument, where at §§17-21 he said (use of italics in original):

17.  After the Notice of Appeal was filed, the BA realised the 1^st Version of Finding does not provide a basis for the DHO. The BA rowed back against the 1^st Version of finding quickly, and came up with a new set of findings which says Feature 2 [i.e. SD 2] was instead, form [sic] between 1977 and 1978, i.e. after the New Grant (“the 2^nd Version of Finding”).

18.  All grounds of judicial review stem from one central question of natural justice: whether the BA, by “dressing up” the replacement of the 1^st Version with the 2^nd Version as mere corrections of “typographical errors”, deprived Yemie [i.e. the Applicant] of a fair chance to present Yemie’s Defence fully before the BAT.

19.  The BA represented to both Yemie and the BAT that, the 1^st Version of Finding were just “typographical errors” – when they were not.

20.  The result was, both Yemie and the BAT omitted to take account of the fact that the 1^st Version of Finding substantively supports Yemie’s Defence – that Feature 2 was created before the New Grant, by people other than Yemie’s predecessor. This is also in consonance with the fact that the BA could not produce any application record from Yemie’s predecessor to apply for the creation of Feature 2.

21.  This should have formed a major part of Yemie’s Defence. Yet, Yemie (acting in person) was inhibited from presenting it, because everyone was operating on the BA’s incorrect representation that, the 1^st Version of Finding was a typographical error.

43.  I noted the description of (1) the BA realising that it had no basis for DHO, (2) the BA quickly coming up with a new set of findings, (3) the BA dressing up the replacement version as a mere typographical correction when it was not, and (4) both the Applicant and the Tribunal omitting to take account of the relevant fact because they had apparently been misled by the BA making an incorrect representation (i.e. a misrepresentation).

44.  These submissions seemed to me in terms to make a serious allegation against the BA that it acted dishonestly or in bad faith – to do so to seek to justify after the event a DHO which it knew it could not in fact justify, and to do so in a way which was consciously intending to hide the significance of the change made in a new version it came up with. Indeed, it also seemed to me that the submission was advanced in that way at least in part to seek to explain why the Applicant had not addressed during the appeal the significance of the changes between the 1^st Version and the 2^nd Version. But, with respect, there was and is no material on which such a serious allegation can properly be based.

45.  In effect, the Applicant seemed to place reliance upon the mere fact that the 2^nd Version containing the Corrections came about after it had lodged the appeal and after the BA had originally disclosed the 1^st Version. But that chronology is wholly insufficient to found the allegation of “dressing up”.

46.  When I put to Mr Ng at the oral hearing that I was not impressed by the apparent allegation of dishonesty or bad faith raised by those paragraphs of his skeleton, he quickly disavowed any allegation of bad faith, and said that was not what he had intended to convey. Whilst I accept Mr Ng has now made clear that he does not suggest the BA acted in bad faith, it is at least unfortunate that he used written language which seems to me clearly to suggest the opposite.

47.  In any event, the origin of the Corrections is now abundantly clear, as set out above. If it is now accepted that the Corrections were put forward by the BA in good faith, there is even less basis for criticising the Tribunal for proceeding on the basis of the Corrections, and no basis which would permit the Applicant to explain away the fact that he did not seek to make anything of the Corrections during the appeal.

48.  This preliminary point alone is dispositive of the present application, because the entire application is premised on an impermissible and unsustainable point.

49.  But, as it happens, there is also no merit in the grounds advanced on the basis of what it is said the Corrections might have showed.

F.  Ground 1: Irrationality

50.  Mr Ng submits that the failure by the Tribunal to make proper enquiries as to the true nature of the Corrections was a breach of the Tameside duty, which requires a decision-maker to ask himself the right question and the reasonable steps to acquaint himself with the relevant information to enable him to answer that question correctly. Mr Ng submits that the Tribunal should at least have made enquiries about what was the substance of the 1^st Version, and directed its mind to the possibility that the 1^st Version was consistent with the Applicant’s defence – not least where the Applicant was self-represented.

51.  As it was put by Mr Ng in oral submissions, after the concession that the BA put forward the Corrections in good faith, the importance of the 1^st Version was that it suggested an aspect of the Applicant’s case on appeal was overlooked, which stemmed from the “unfortunate description” of it being a typographical error when it was in reality a change of substance.

52.  There is nothing in the submission. First, the Tribunal was under no duty to hunt for additional arguments which might be raised by the Applicant, but which it had not raised. Secondly, it was obviously not irrational for the Tribunal to have proceeded on the basis that the Corrections were made to correct typographical errors, where no one was suggesting anything different by reference to a document which the parties and the Tribunal had had for nearly a decade. Thirdly, it is not inappropriate to describe the errors corrected as “typographical”, where date periods which had been typed were reversed by the Corrections. Indeed, such typographical corrections routinely change the content of a document in ways which might be thought substantive – the classic example being to add back a missing “not”. Further, though there was the reversal by the Corrections of order of development of House 1 and House 2, the Stage 2 Report consistently made the point in both versions that House 1 and SD 2 were formed during the same period time.

53.  In any event, Mr Ng submits that the Applicant accepted that the error was a typographical one, subsequently corrected, and proceeded on that basis, as did the Tribunal. Obviously, what the Applicant made of the Corrections was up to him. As already indicated above, I do not think it is open to the Applicant now to say, with the benefit of legal advice and forensic analysis, that he thinks he should perhaps have proceeded on a different basis.

54.  As to the Tribunal, it noted and accepted the witness evidence about the basis of the Corrections, and went on to test what was asserted against the other documents and evidence.

55.  More importantly indeed, the key issue as to the timing of the building of House 1 and the creation of SD 2 of the Feature was centrally addressed in detail, by reference to the totality of the evidence given by the factual and expert witnesses and available in the documentation and aerial photographs. The appeal required the Tribunal to deal with the question of the DHO and the facts on which it might be based on a de novo basis. The weight to be given to the different aspect of the materials was a matter for the Tribunal. There was a clear evidential basis for the Tribunal to make its findings, and the Applicant cannot come even close to establishing the high hurdle of irrationality in this regard.

56.  Further, if one wants to look at the underlying merits, I agree with Ms Chan’s submission that the only logical conclusion from the evidence as a whole was that House 1 was built after House 2, as shown in the aerial photographs. Where both the 1^st Version and the 2^nd Version state that House 1 and SD 2 were both formed together in the same period, it would make little sense to suggest that House 1 had already been built when Lot 849 had not even been granted yet. Plus, as the Tribunal found, the sole beneficiary of the formation of SD 2 was the owner of Lot 849.

57.  Lastly, Mr Ng’s submission that there was something improper in the BA’s disclosure only in these judicial review proceedings of the October 2013 memoranda, by which the BA was notified of the typographical errors and the Corrections, is entirely misplaced. First, the differences between the 1^st Version and the 2^nd Version are apparent from the face of the two documents, and both documents were available to the Tribunal as well as the Applicant during the appeal process and at the hearing. Secondly, it was only necessary or appropriate for the memoranda to be disclosed to meet the point raised for the first time in these proceedings.

58.  Ground 1 is not reasonably arguable with any realistic prospect of success.

G.  Ground 2: Error of Law – Jurisdictional Fact

59.  Mr Ng submits that the Tribunal operated under an erroneous construction of SC 10 by holding that the maintenance responsibility rests on the Applicant, once it was satisfied that SD 2 was formed “for the purpose of or in connection with the formation, levelling or development of the lot”. This is because, Mr Ng submits, whether the Applicant is “the person who under the terms of the Government leases under an obligation” to maintain depends additionally on whether the Applicant’s predecessor under the New Grant had created SD 2. But the Tribunal omitted to make any express finding that it was the Applicant’s predecessor who created SD 2.

60.  I confess I find this submission difficult to follow, but that may be because it makes no logical sense. Whether the Applicant is the person under the obligation to maintain turns on whether SD 2 of the Feature was made before or after the date of the New Grant. If, as the Tribunal found, it was created after the date of the New Grant – on the basis, amongst other things, that the New Grant in fact required the formation works in the yellow area to be performed by the grantee (although the yellow area would continue to be owned by the Government) – then it must have been made by the Applicant’s predecessor as grantee. There was no need for the Tribunal to have stated the blindingly obvious (where it had also rejected the only other candidate argued by the Applicant as responsible for the formation of SD 2). But, in fact, the Tribunal held that, not only was SD 2 formed during the site formation work after the New Grant, but also that it was not constructed by the Government or other unrelated parties, where the sole beneficiary of the work was the owner of Lot 849.

61.  There was no error in the Tribunal’s interpretation of SC 10.

62.  I also reject Mr Ng’s submission that, as a result of the DHO being issued when the Stage 2 Report was in its 1^st Version, there was no factual jurisdictional basis for making the DHO, which only came about as a result of the 2^nd Version. First, that submission presupposes that what was stated in the 1^st Version was correct, when the very existence of the 2^nd Version was because the author recognised that the 1^st Version was not correct and so corrected it. Secondly, the factual jurisdictional basis for making the DHO did not rest on what was said in a document, but whether in fact the SD2 had been made for the relevant purpose by the relevant person, namely in connection with the formation, levelling and development of Lot 849 by the grantee of that lot. That question was directly addressed by the Tribunal, and the Tribunal’s findings of fact identified that there was the proper factual jurisdictional basis for making the DHO at the time it was made.

63.  Ground 2 is not reasonably arguable with any realistic prospect of success.

H.  Ground 3: Error of Law – Undue Weight to Expert Evidence

64.  Even the heading to this ground identifies that it is unlikely to have any substantial merit. The weight to be given to the evidence, including the expert opinion evidence, was a matter for the Tribunal. The Court exercising its judicial review jurisdiction is unlikely to interfere unless there can be demonstrated either irrationality or a clear error of law. In this case, there was neither.

65.  The only basis relied upon by the Applicant seeks to attack Mr Fong is his relationship with AECOM. Mr Ng submits that with the benefit of the analysis offered on Ground 1, it is clear that AECOM had an interest to downplay the “drastic nature” of the Corrections. But, first, that point was not raised before the Tribunal (and the Tribunal could see for itself the nature of the Corrections of which it had been informed, and to which a witness spoke in evidence). Secondly, the point falls away once it is seen that there is no merit in Ground 1. Further, I also agree with Ms Chan that the accusation of apparent bias is essentially speculative.

66.  In any event, the Applicant took the bias point in the appeal and cross-examined Mr Fong on his relationship with AECOM at the appeal hearing before the Tribunal. But the Tribunal recorded in the Decision that Mr Fong had explained that he understood his responsibilities as an expert witness and stressed that he was giving evidence based on facts by way of an independent opinion which was not biased. The Stage 2 Report had been conducted by AECOM, but that had no influence on him. It was open to the Tribunal to assess and weigh Mr Fong’s evidence, and to find (as it did) that the connection with AECOM did not render Mr Fong as lacking the necessary independence.

67.  In any event, the Tribunal did not just rely on Mr Fong’s evidence. It specifically took into account various aspects of the other factual witness and documentary evidence, which it considered to be corroborative. Further, it conducted its own assessment by reference to the underlying documents and the aerial photographs, when addressing the key issue as to whether SD 2 of the Feature was created before or after the date of the New Grant.

68.  Ground 3 is not reasonably arguable with any realistic prospect of success.

I.  Delay

69.  A further problem for the Applicant is that the AF86 accepts that the application for leave to apply for judicial review has been brought out of time. But the Applicant seeks a time extension.

70.  In considering the possibility of an extension of time, the Court will take into account numerous factors including (1) the length of the delay, (2) the explanation for the delay, (3) the merits of the substantive application, (4) matters of prejudice, and (5) whether any question of general public importance is raised in the application.

71.  In my view, time ran from the making of the Decision on 25 August 2023 (and not the subsequent costs decision). It is trite that an application for leave to apply for judicial review must be made promptly, and in any event within a ‘long stop’ period of three months. Because the original Form 86 was dated 20 September 2024, the Applicant rightly acknowledges that it was made only after almost 10 months of delay beyond even the longstop period. This is a significant period of delay.

72.  The explanation offered by the Applicant is that it was self-represented before the Tribunal, and did not have knowledge about the time limit of a judicial review. Hence it was only after receipt of the demand to pay the costs that the Applicant approached its present solicitors on 12 July 2024. With respect, this is not a very good explanation for the delay, not least against the timetable and where the crux of the application rests upon the content of documents available to the Applicant more than a decade beforehand.

73.  But, as I have held, there is in any event no merit in the application, and it would be pointless to grant any extension of time to pursue a substantive application which has no merit.

74.  I think that there is clear prejudice in the possible permission to the Applicant to raise in delayed judicial review proceedings a point not taken in the appeal before the Tribunal. The prejudice also exists in the safety risks previously identified as justifying the grant of a DHO.

75.  Further, I do not accept that there is any question of general public importance involved.

76.  In the circumstances, and though this is in effect a moot point, I would not have granted an extension of time.

J.  Result

77.  Therefore, for the above reasons, the Applicant’s application for leave to apply for judicial review was dismissed.

78.  Ms Chan asked for costs, on the basis that because this was a rolled-up hearing, the Applicant’s case had been substantively addressed and rejected. Mr Ng accepted that he could not oppose such an order. Therefore, I ordered the Applicant to pay the BA’s costs. They can be summarily assessed by me, on a timetable for exchange of Statement of Costs and List of Objections as may be agreed between the parties.