BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 92/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 92 OF 2006

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J U D G M E N T

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I.  INTRODUCTION

1.  The issue is whether Asean can maintain a residential unit (the premises) at a basement garage floor of 5G and 5H Bowen Road (the Building).  The premises have existed in some form or other since at least 1958.  But, due to the layout of the garage floor, the premises contravene (and can never be made to meet) various requirements of the Building Planning Regulations (BPR) and the Code of Practice for Means of Escape in Case of Fire (the Code).

II.  BACKGROUND

2.  At some time after December 1956 unauthorised building works were carried out in a garage floor of the Building.  Those works resulted in the conversion of the garage floor into the premises.

3.  In February 1958 the Building Authority (BA) ordered the owners of the Building to demolish the premises.  But the owners did not comply.

4.  On 22 December 1958 the BA issued a letter (the toleration letter) as follows:-

“5G and H, Bowen Road, Basements -

I.L. 1388 s.A, ss.6.

I acknowledge your letter dated 4th November 1958 enclosing plans showing unauthorised works carried out at the above address.

Since the Urban Council have no objections to the domestic accommodation provided and since the premises are entirely mechanically ventilated, I have no objection to the retention of the unauthorized work.

No formal approval will be issued in this instance but your plans will be retained for record purposes.”

5.  The plans mentioned in the letter are plans of the premises which Messrs. Hsin-Yieh Architects & Associates drew up in 1958.  Hsin-Yieh was then acting for the owners of the Building.  They had been asked by the BA to indicate the unauthorised works on a plan.  The notes to Hsin-Yieh’s plan observe that the premises contravene the BPR.

6.  The toleration letter is unique.  The evidence is that such letters were rarely issued in the past.  They have not been issued recently.  They are unlikely ever to be issued in the future.

7.  The premises were used as a residence until around December 2001 or January 2002 when they were vacated for renovation work.  By then the premises were owned by Asean.

8.  By letter dated 16 January 2002 the Buildings Department demanded that the ongoing renovation works to the premises should cease and be demolished.

9.  In response, in early 2004, Asean submitted plans to the BA seeking approval for the renovation works.  Asean further gave notice of an intended change of use pursuant to Buildings Ordinance (Cap.123) (BO) s.25.  It also applied for a modification of the requirements in the BPR relating to the premises’ windows, lighting, ventilation, and floor-to-ceiling height. 

10.  Subsequently, Asean withdrew its notice of intended change.

11.  By letter dated 19 March 2004 the BA disapproved Asean’s plans because they contravened the Code and the BPR.  The BA also issued a prohibition order forbidding domestic use of the garage floor.

12.  Asean appealed against the prohibition order and the BA’s rejection of Asean’s plans.

13.  The Tribunal heard Asean’s appeals in February 2006.  It allowed Asean’s appeal on 18 May 2006.

14.  The Tribunal stated:-

“At all material times, the Building Authority has made it plain that despite the disapproval of the plans which were submitted on behalf of [Asean], and despite the issue of the Prohibition Order, it is not intended to withdraw the Toleration Letter or resile from its terms.  This position was maintained during the course of the hearing of these appeals.  The consequence of this is that, whilst the [BA] would have no objection to continued user of the Premises in accordance with the 1958 plans.  In other words, consistent with the Toleration Letter, the Building Authority is prepared to acquiesce in the use of the Premises for domestic use if the Premises are reinstated to accord with the 1958 plans but not otherwise.  That is despite the fact that building works which accord with the 1958 plans would contravene both the [BPR] and the [Code].

It is [Asean’s] case that the building works which are contemplated would result in a substantial improvement to the Premises from a building planning point of view.  For example, whereas the 1958 plans provided for mechanical means of ventilation, supplying fresh air at a rate of not less than 3 air changes per hour, the plans which are the subject matter of these appeals would provide for not less than 5 air changes per hour.  [Asean] therefore argues that it is illogical to disapprove the plans providing for improvements such as these whilst acquiescing in building works which would restore the Premises to the ‘inferior’ state contemplated by the 1958 plans.  We agree.  We consider the adoption of such a position to be illogical and perverse and that it would be similarly perverse for this Tribunal to sanction it.

We would add that it seems to us that the issue and continued existence of the Prohibition Order is inconsistent and incompatible with the insistence on the part of the [BA] to the effect that the terms of the Toleration Letter will continue to be honoured.

Lastly, it seems to us that the fact that the Toleration Letter has been in effect for over 40 years must have given rise to a reasonable expectation on the part of the owners of the Premises that the [BA] would continue to acquiesce in the use of the Premises for residential accommodation despite the fact that such use will continue to contravene the [BPR].

In all the circumstances, we consider that the proper exercise of the discretion to approve building plans notwithstanding that they might contravene the Buildings Ordinance or any enactment would be to approve the plans in question and to grant the necessary modification or exemption from the [BPR] and to set aside the Prohibition Order.  We so order.”

15.  The BA now seeks judicial review of the Tribunal’s determination.

III.     DISCUSSION

16.  Mr Godfrey Lam (appearing for the BA) submits that the Tribunal’s decision should be quashed on the following grounds:-

(1)     The Tribunal erred in believing that non-withdrawal of the toleration letter was inconsistent with the disapproval of Asean’s plans and imposition of the prohibition order.

(2)     The Tribunal failed to take account of the standards of public health prescribed by the BPR.

(3)     The Tribunal had no power to grant a modification or exemption from the BPR.

(4)     The Tribunal acted inconsistently in granting a modification and exemption on the one hand and exercising its discretion to approve Asean’s plans on the other.

(5)     The Tribunal erred in believing that the toleration letter gave rise to a “reasonable expectation” of acquiescence in use of the premises as a residence.

A.      Argument that toleration letter spent

17.  Mr. Lam argues that, as a result of the renovation works, the forbearance signified by the toleration letter ceased to be operative. 

18.  Mr. Lam says that the renovation works were tantamount to Asean itself removing the very unauthorised structures which were being tolerated by the BA.  The offending structures having been removed, there would be nothing more to tolerate.  The effect of the toleration letter would (to use Mr. Lam’s word) be “spent”.

19.  The toleration letter having ceased to be relevant as a result of Asean’s removal of unauthorised structures, nothing (Mr. Lam concludes) constrained the BA from rejecting Asean’s plans for what was in effect a new garage floor residential unit.

20.  Mr. Lam submits that the Tribunal’s reasoning turns the toleration letter on its head.  If the Tribunal were right, once unapproved building works are tolerated by the BA, any later improvement plans for the existing works would have to be approved.  If the Tribunal were right, an automatic entitlement to approval should be the outcome even if the improved works still failed to comply with relevant building regulations.  That (Mr. Lam contends) would be an absurd conclusion.

21.  I am unable to agree with Mr. Lam.

22.  As Mr. Ismail (appearing for Asean) points out, the BA has disavowed any withdrawal of the toleration letter.  Given that circumstance, I do not see how in practical terms it can be said that the toleration letter has been “spent”.

23.  The BA made it clear to the Tribunal that, in accordance with its 1958 letter, it would continue to tolerate premises which adhered to Hsin-Yieh’s 1958 plans. 

24.  Thus, if Asean’s renovation works were undone and the premises were returned to their pre-renovation state, the BA would forebear from enforcing the BPR and the Code against the resulting structure.

25.  That being the case, the Tribunal must have been right to conclude that the BA cannot logically object to premises which have been renovated to a standard superior (including in terms of safety and comfort) to that previously existing since 1958. 

26.  I do not accept that the Tribunal’s logic was flawed or absurd as Mr. Lam suggests.

27.  At heart, Mr. Lam’s argument amounts to little more than a semantics.  “Non-withdrawal” of the toleration letter does not (he says) preclude it from having been “spent”.  But the letter and its continuing effect is not really at the heart of the issue. 

28.  Mr. Lam’s difficulty is not the toleration letter and its continuance, but the BA’s stance on toleration.  Whether or not the letter has been “spent”, the BA is still prepared to tolerate premises along the lines of Hsin-Yieh’s 1958 plans.  The toleration letter’s status (whether spent or not) is thus strictly irrelevant. 

29.  The real question is: Given that the BA is prepared to accept premises built to an imperfect standard, how can it refuse to accept premises built to an obviously higher (but not perfect) standard?  To that question, it seems to me the Tribunal gave the right answer.

30.  I note that, in support of his argument that the toleration letter should not translate into an approval of Asean’s 2004 plans, Mr. Lam distinguished between mere “toleration” and formal “approval” by the BA.  It was suggested that the BA was less responsible in the carriage of its public duty where it knowingly tolerated (as opposed to formally approved) a contravening structure. 

31.  I do not think that the distinction is valid here.  As Mr. Ismail submits, it is important to look at the substance of the relevant conduct in all the material circumstances. The extent of a person’s duty or responsibility cannot depend on mere semantics. 

32.  For the purposes of this matter, I see little substantive difference between the BA knowingly tolerating or approving the premises’ use as a residence despite contravention of various regulations. If, in the special circumstances of this case, the BA is prepared in the exercise of its public duty to continue tolerating premises restored to the 1958 plans, it is difficult to understand how it can withhold approval to the 2004 plans.

B.      Argument that standards of public health ignored

33.  Under BO s.16(1)(d) the BA has a discretion to approve building plans even where they contravene provisions of the BO or any other enactment.

34.  Under BO s.42, if in its opinion “special circumstances render it desirable”, the BA may permit modifications of the provisions of the BPR.  However BO s. 42(4) provides that “[n]o such permit ... shall be granted to the prejudice of the standard of structural stability and public health established from time to time by regulations”.

35.  BO s.50(2) empowers the Tribunal, when determining an appeal from the BA, to make “an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such order as it thinks fit”.

36.  Mr. Lam submits that, on an appeal, the Tribunal is only able to make an order or come to a decision which the BA can.  The Tribunal (Mr. Lam says) faces the same constraints on its discretion and decision-making as the BA does. 

37.  Thus, insofar as BO s.42(4) precludes the BA from granting an exemption to the provisions of the BPR which will prejudice public health, the Tribunal (Mr. Lam suggests) is likewise barred from granting such exemption. 

38.  Here (Mr. Lam contends) the Tribunal does not seem to have taken public health considerations into account when granting exemptions or modifications to the provisions of the BPR.  The Tribunal’s decision (Mr. Lam concludes) must accordingly be vitiated by a failure to consider relevant matters (namely, public health standards).

39.  I am not persuaded by Mr. Lam’s submission.

40.  As Mr. Ismail points out, on the material before me, the Tribunal plainly considered public health matters. 

41.  Public health considerations were certainly canvassed in the evidence and submissions before the Tribunal.  For example, standards of public health under the BPR and in the context of the premises were referred to by Mr. Robin Howes and Mr. Perry Lam in various written opinions adduced before the Tribunal.  Mr. Howes and Mr. Lam were cross-examined on that material and their views were mentioned by counsel for the BA and Asean in closing submissions.

42.  The obvious inference to be drawn from the passage of the Tribunal’s determination quoted above is that the Tribunal believed that, in the special circumstances of this case, public health standards under the BPR would not be compromised.

43.  The Tribunal itself noted that the 1958 and 2004 building plans contravened the BPR and the Code.  Indeed, it was not seriously argued otherwise by Asean before the Tribunal.  The crucial issue (as identified by the Tribunal) was whether, despite contraventions, the 2004 plans should be approved as a matter of discretion.

44.  But, if the BA were prepared to countenance premises along the lines of the 1958 plans, the BA could not have regarded such premises as prejudicing the public health standards in the BPR.  It should follow, a fortiori, that superior premises built to the 2004 plans could not in the BA’s view constitute a real threat to the standard of public health established by the BPR.

45.  Whether or not exemptions or modifications to a structure prejudice the public health standards in the BPR, is ultimately a question of fact.  It was for the Tribunal to assess the potential threat to public health standards on the basis of the evidence (including any expert evidence) adduced before it. 

46.  I believe that the Tribunal did precisely that and I am unable to fault either its assessment of the evidence or its logic.  The Court should be extremely reluctant to interfere (if at all) with that assessment in a judicial review. 

47.  In particular, I agree with Mr. Ismail that the BA’s submissions here appear to be an attempt to open up the merits of the Tribunal’s determination. 

48.  The BA is essentially saying that the Tribunal should have attached more weight than it actually did to the contraventions of the BPR and the Code when evaluating whether public health standards would be prejudiced.  I do not think that it is appropriate for me to carry out a re-evaluation of the relevant building contraventions and their potential effect on public health standards in these collateral proceedings.

49.  I note that I do not accept Mr. Lam’s contention that any deviation from a BPR regulation touching upon public health necessarily means that the standard of public health is prejudiced.  The relevant regulation needs to be identified to a particular health standard and the extent to which a modification prejudices (if at all) such standard needs to be empirically established by evidence.

C.      Argument that power to grant exemption exceeded

50.  Mr. Lam submits that the Tribunal acted beyond its jurisdiction under BO s.50(2).  This is because (according to Mr. Lam) the permit granted for the premises by the Tribunal breached BO s.42(4).

51.  This is effectively the same argument as that canvassed in Section III.B above.

52.  The argument presupposes that the modifications and permissions ordered by the Tribunal transgress standards of public health.  But it is apparent that the Tribunal (as it was entitled to do) disagreed with that submission by the BA.

53.  In this judicial review, the burden must be on the BA to establish that the Tribunal’s conclusion on public health standards is one that no reasonable Tribunal could reach.  I do not think that the evidence before me shows that.

D.      Argument that relief inconsistent

54.  Mr. Lam says that the Tribunal could not have exercised a discretion to approve contravening plans under BO s.16(1)(d) as well as a power to modify the provisions of the BPR. 

55.  If plans are approved as a matter of discretion even though they contravene the BO, there is no need (Mr. Lam explains) to exempt from the BPR.  Conversely, if an exemption from the BPR is granted, there is no need to exercise a discretion since (the BPR having been modified) there ceases to be any contravention.

56.  I do not see a practical inconsistency.  Mr. Lam’s argument strikes me as pedantic. 

57.  Here again I agree with Mr. Ismail.  The Tribunal approved the 2004 plans, despite possible contravention of the BO or any other enactment (including the BPR). Out of an abundance of caution, insofar as the BPR (as opposed to any other enactment) was concerned, the Tribunal explicitly granted the necessary modifications or exemptions.

E.      Argument that no reasonable expectation

58.  Mr. Lam criticises the Tribunal for suggesting that the toleration letter gave rise to a legitimate expectation. 

59.  The toleration letter (Mr. Lam says) does not constitute a statement which is “clear unambiguous and devoid of relevant qualification”.  The letter does not (Mr. Lam submits) suggest that the owner of the premises will be able to use them for domestic purposes.

60.  In my view, conduct can constitute an unambiguous representation which gives rise to a legitimate expectation.  Thus, the toleration letter read in the context of the BA’s having refrained for over 40 years from taking action against domestic use of the premises, could conceivably give rise to a legitimate expectation on the part of an owner.

61.  But it is unnecessary for me to determine this point finally.  In light of what I have already decided, whether or not the letter taken with the BA’s subsequent conduct generates a legitimate expectation, can only be a moot question.  That issue, however decided, will not affect the outcome of this judicial review.

IV.     CONCLUSION

62.  The grounds raised by the BA have failed to persuade me that the Tribunal erred.  The judicial review application is accordingly dismissed.