HONNEX DEVELOPMENT LTD v. SECRETARY FOR THE ENVIRONMENT, TRANSPORT AND WORKS

LDMR 3/2004

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LDMR No: 3 of 2004

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Judgment

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1.  By these proceedings, the Applicant is seeking compensation from the Government under the Roads (Works, use and Compensation) Ordinance, Cap.370 (‘the Ordinance’). There are two preliminary points to be decided.  The Applicant is late in submitting his claim. The first point is whether time should be extended.  The second point is whether as a matter of fact and law the Applicant is entitled to compensation.

2  Mr. Houghton, counsel for the Government, is right to certain extent in pointing out that there is no convincing explanation for the delay.  The Applicant could have easily guarded its interests in submitting its claim well before the deadline. Apparently, the Applicant has owned substantial property and could have obtained proper advice.  No one higher up in the management of the Applicant cared to give full reasons for the delay.   We do not think that the Applicant has adduced direct evidence of the decision process in not presenting the claim within time.   That being the case, the Applicant has failed to establish that there had been a mistake of law or fact as committed by the Applicant.  Likewise, the Applicant has failed to establish that the delay was in fact occasioned by any reasonable cause. 

3.  To rely on the first ground of section 28(4) of the Ordinance, the Applicant has to prove subjectively it has made a mistake and that the delay was in fact occasioned by the mistake.  To rely on the second ground of section 28, the Applicant has to prove subjectively that the delay was caused by some cause and that objectively this cause constituted a reasonable one.   Therefore we do not think that the Applicant has discharged the burden of proof in these matters. 

4.  The Applicant also seeks to rely on the third ground of section 28(4) of the Ordinance. Nothing before us shows that the Applicant deliberately delayed the filing of claim in order to gain certain advantage over the Government. The facts as established show that it is not likely that the Government would or could do any remedial measure to reduce or to eliminate the risk of potential claim. We are satisfied that the Government has suffered no material prejudice in the conduct of this case or otherwise. In all circumstances of the case, this is an appropriate case for us to grant the extension of time. 

5.  The Applicant is claiming disturbance payment under paragraph 4 of PartII of the Schedule of the Ordinance.  There is no dispute about the underlying principles for this type of compensation.  The dispute revolves around their correct application in this case to determine two things, the extent and nature of private right and the existence of adverse effect on access to the Applicant’s property.

6.  The expert witness called by the Applicant sought to argue fervently that there was adverse effect.  We do not doubt his expertise in rental valuation. Adverse effect is a question of fact to be determined by the Tribunal.   Looking at the approach of the expert, we have come to the view that he is more or less arguing the case as if he was counsel for the Applicant.  He has gone outside the sphere of duty of an independent expert. We accept the criticism made of him by Mr. Houghton.  The evidence of this expert serves no useful purpose of this hearing apart from introducing his approach and various guidelines for our consideration.

7.  The width of pedestrian pavement was reduced during the roadwork. Apart from the conspicuous error which can be clearly supported by the photographs, we accept the various measurements adduced in evidence by the Government. In any event, the dispute over these measurements has no bearing on our decision. Mr. Lui contends that the pedestrian pavement outside the subject entrance was reduced to unreasonable widths.

8.  The width of pedestrian pavement was reduced during the roadwork. Apart from the conspicuous error which can be clearly supported by the photographs, we accept the various measurements adduced in evidence by the Government. In any event, the dispute over these measurements has no bearing on our decision. Mr. Lui contends that the pedestrian pavement outside the subject entrance was reduced to unreasonable widths. He cited certain guidelines introduced by the Applicant’s expert. He rejected the guidelines adopted by the Government on the ground that they are not applicable to the instant case.

9.  To link the reduced width to adverse effect on access, Mr. Lui resort to pedestrian flow in the entrance. He argues that the reduction in width of the pavement must have adverse effect on access because of the high pedestrian flow. Mr. Houghton throws doubt on the head counts at the subject entrance. 

10.  Mr. Houghton also submits that the pedestrian flow along Fife Street is irrelevant. To pass along Fife Street freely is a public right.  In this regard Mr. Lui contends that this matter should be looked at in a broad way. Further he argues that the reduction in width is unreasonable. 

11.  First of all whether the shops are fronting pavement is besides the point.  Owners of shops on the upper floors have the similar private right to use the subject entrance in Fife Street for access.  These shop owners are co-owners of the land on which the building stands. We therefore reject the argument that the shops not fronting Fife Street, especially those on upper floors, are definitely not entitled to claim. If the access to Fife Street through the subject entrance is adversely effected, it would be a question of degree for individual shops depending on their location within the building. 

12.  There is no reason advanced why the pavement has to be reduced to such widths at different times. The Government merely contends that the guidelines for construction site had been complied with.  I accept Mr. Lui’s contention that these guidelines are not relevant in so far as infringement of private rights are concerned.  

13.  Mr. Houghton comments rightly on the statistical data relating to pedestrian flow. We are not prepared to adopt the conclusion advanced by the Applicant or the use of the fragmented and selectively disclosed statistics.

14.  The only evidence before us is the local characteristics of the area in which the building situates. It is in the most congested area in Hong Kong. The building has another entrance in Sai Yeung Choi Street.  No one can dispute that the pedestrian flow in Sai Yeung Choi Street  is higher than in Fife Street.  At the relevant time, there were persons who were deterred from using the Fife Street entrance. Some of these would use Sai Yeung Street entrance and the rest might not enter the building altogether.  This we do not need an expert in psychology or an expert planner to tell us.  Nor do we  need in every case direct proof in terms of head count.

15.  It is also a well-known phenomenon in Hong Kong that a shop  at the intersection of two busy roads would fetch higher rent than one of similar size fronting only one busy road.  One reason is that the former has better access. By the same token a building at the intersection of two busy roads as the subject building would have better access than one which has only one entrance. To stretch this reasoning a bit further, if access from one road is impeded the access to the building as whole would be impeded. The extent of effect would depend on the particular location. In the present case, we do not need to have exact figure of the pedestrian flow in Sai Yeung Choi Street.

16.  Taking into account the local character of the location in the area, and the actual reduced widths of the pavements at different times, and the fact that it was in the intersection of two busy roads, the access to the building must have been adversely affected. The access from the building to Fife Street is a private right which has been restricted. What loss has been caused is a matter of evidence. We are not prepared to brush aside the claim for compensation in respect of the shops on upper floors, even though it might be difficult for the Applicant to prove damage.

17.  We therefore extend the time for the Applicant and rule that the Applicant is entitled to compensation to be assessed. We will also make an order nisi for costs in the cause.