HINGE WELL COMPANY LIMITED v. THE ATTORNEY GENERAL

___________

JUDGMENT

___________

BACKGROUND

1. This is an application for judicial review of a decision of the Building Authority ("the Authority") made on the 14th September 1984 whereby he refused approval of redevelopment plans for the applicant's building site in Wanchai.

2. The land in question is an reverse L shape and comprises:-

3. The site is now vacant, 2 rows of 10 pre-war buildings known as 61-73 Lockhart Road and 84-88 Jaffe Road which were on the site having been demolished. They were, however, separated by a scavenging lane and right of way which continues to the west, where it ends at the back of an office building, and to the east where it joins Luard Road.

4. In December 1933 the then owners of lots 2817 and 2826 partitioned them and they were conveyed to different owners and the mutual right of way was created by the Deed of Partition. Lot 2818 was also partitioned off and, in particular, by a Deed Poll of April 1980.

5. There seems to be no doubt therefore that about half the right of way is now owned on both sides by the applicant (i.e. between Lot 2817 (R. P.) and Lot 2818 (F) to the south and Lot 2817 (D) and 2818 (G) to the north). There is, however, still a part between 2818 (F) and 2818 (A), (B) and (C) R. P. which is not so owned and the owner or owners of 2818 (A), (B), (C) R. P. have right of way over part of 2818 (F) and 2817 R. P.

6. The combined lots are now surrounded by predominantly commercial buildings and the applicant wishes to erect a hotel on them. Plans were prepared by the applicant's architect and submitted to the Authority in April 1984 but approval was refused on 22nd June by a somewhat cryptic letter as follows:-

7. On the 19th of July the applicant's architect replied to the Authority and submitted that the lane was an integral part of the whole site and had never been dedicated. He sought exemption under Section 31(1) of the Buildings Ordinance but it is now the applicant's case that such exemption is not in fact required as there is no intention to build either on or over the lane. What would happen was that the lane going to the west would not only remain but would be widened (its area has been excluded from plot ratio calculations) and the balance of the lane will become part of the hotel fore-court over which the public, including adjoining owners, will have access. On the plan submitted (203) 2 areas are marked "pavement 3.05 m. wide" on each side of the fore-court, which is itself marked "area dedicated for building passage". Leading counsel for the applicant said however that was a mistake as in fact no area would be "dedicated" but would be "designated" for public passage.

8. The Authority replied to this letter saying that there was in fact no objection to the erection of the proposed building on the combined sites, "subject to the diverted lanes being the same width as the existing and being physically defined". They are in fact wider, 3.05 meters as against 1.8 meters.

9. The matter was then placed in the hands of the applicant's solicitor who wrote to the Authority on the 8th September 1984. The reply dated the 14th September was as follows:-

The applicant seeks judicial review of that decision.

JURISDICTION

10. Counsel for the Authority submitted that the court could and should not substitute its own decision on the facts in place of that made by the Authority. It can only interfere if the Authority has made a decision which it was not legally entitled to do or has acted unfairly. He relies on the dicta of Lord Denning M. R. in G. E. C. v. Price Commission 1975 Industrial Cases Reports, 12:-

"The courts will not themselves make the original findings of fact. They will not themselves embark on a rehearing of the matter.".

He goes on, however, to also say:-

"The courts will ensure that the body acts in accordance with the law."

The applicant relies on that later statement and says the Authority has got the law wrong and must be told to correct its mistake.

11. I accept both submissions and I am therefore not entitled to reach fresh conclusion on the facts but only to see if there has been an error in law.

THE APPLICANT'S CASE

12. The applicant is now the owner of the whole site which used to be divided by a right of way. With the demolition of the buildings that right of way has now physically gone and in respect of the area which is disputed the applicant owns both sides of where it once was.

13. The applicant's plans call for a hotel building on the site which will have the usual shops and reception areas on the ground floor, which is in fact a podium, plus 22 stories of restaurants and accommodation. The building will only cover the building lots facing onto Lockhart Road, and the areas on Jaffe Road will be used only for access. The existing lane and right of way will not be built on or over, but will remain and indeed will be widened from the present 1.8 meters to 3 meters. This service lane, it is emphasised, is a private lane, and has not been dedicated as such. It is the applicant's land. It will moreover remain available for use by occupants of the surrounding buildings for purposes of egress in case of emergency. The lane is not shown as such on the upper right hand side of the building because that is an open access area over which members of the public will have right of passage. The existing lane which runs from there to Luard Road again will remain and will not be in any way closed off. The rights of way existing over it will remain.

14. The applicant says that the area comprising the two "pavements" leading to Jaffe Road are not "diverted lanes" as suggested by the Authority. There is no legal requirement for a service lane pursuant to Regulation 28(1) as the site has frontage to both Lockhart Road and Jaffe Road and therefore comes within the proviso to that Regulation. The Authority acknowledges that fact in its letter of 14th September. If the applicant is not legally obliged to retain the whole service lane, which it says it is not, it is entitled to include its area for plot ratio purposes.

15. Further, it was argued, even if that argument fails, the service lane and also the new "pavements" are less than 4.5 meters wide and by Regulation 23(l)(c) are deemed not to be streets. Regulation 23(2)(a) says that a street shall not be included in an area for plot ratio calculations and therefore the reverse must be correct and an area, if it is deemed not to be a street, must be included. Nor can the Authority say that even if the right of way is not a street it is a service lane and still therefore falls within Regulation 23(2)(a). The definition of "street" in the Ordinance 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 service lane clearly falls within that definition and it was held in A. G. v. Mightystream Ltd. (1983) 1 W. L. R. 980 that the definition in the Ordinance also governed the Regulations. The lane is firstly a street by definition but is covered by Regulation 23(1)(c) and is then, for the purposes of Regulations 19, 20, 21 and 22 which govern plot ratio calculations, deemed not to be a street.

THE AUTHORITY'S CASE

16. Mr. Whaley, counsel for the Authority, said that it wanted to have orderly development and was anxious to preserve the integrity of the service lanes in the area and to ensure that the occupants of other buildings in the area continue to enjoy the use of the right of way, particularly in case of emergency. Regulation 23(2)(a) says a service lane shall not be included in site area calculations and the Authority will only so allow if suitable diversion lanes are provided and excluded from the site area. There must be a guarantee of access to Jaffe Road and that can only happen if the pavements are so designated and set aside. Mr. Whaley, however, conceded that if the strips leading to Jaffe Road were shown as "footpath" not "pavement" they would come within the definition of a street and being less than 4.5 meters wide would be included in site area calculations. If a modification under the Regulations is required it comes within the Authority's discretion and the court can't interfere with that. It can only state what the law is and how it should be interpreted in any particular case. Here a modification is required and the Authority can allow it or not as it sees fit, pursuant to Section 42 of the Buildings Ordinance which gives the Authority total discretion to waive any provision. It will do so if the "pavements" leading to Jaffe Road are dedicated as public areas.

DECISION

17. In A. G. v. Cheng Yick Chi and Ors. Privy Council Appeal 32/1982 it was held that:-

18. On that basis I am satisfied that the whole of the land owned by the applicant, including the right of way, forms the site and the regulations should be construed in the light of what is proposed to be done if the development goes ahead. Indeed I do not think that is in dispute.

19. The applicants own all the land on which the hotel is to be built, plus the fore-court. There is a right of way over part of the land, some of which is widened in the plans and its area is not claimed for site area purposes. That land includes that which is on both sides of the balance of the lane and no buildings will be erected on or over it. The public will be able to pass over it as it forms part of the hotel fore-court. Access to Luard Road along the balance of the right of way will also not be interfered with. The adjoining owners' right of way is not extinguished by the applicants' purchases or by the proposed development. The plans do not provide for any restriction on the right of access by those adjoining owners over the fore-court and if there was any such attempt they could enforce their rights. As the rights of way are within the definition of a street in the Buildings Ordinance the applicants, or any subsequent owner, would also be in breach of Section 30 of that Ordinance which prohibits the alteration of access to a street without the Authority's consent.

20. The Authority's case is that the integrity of the existing lanes must be preserved but it seeks to do so by saying that the access to Jaffe Road which is provided in the scheme must be "physically defined" and excised from the site area. I am unable to see how excising them from site area for plot ratio purposes helps to preserve their integrity. Surely a developer will be more willing to preserve lanes if in so doing he retains them for site area purposes than if he does not. The plans clearly define the new access lanes to Jaffe Road, and I do not think it matters if you call them footpaths, pavements or right of ways. They will not be built on and the public may use them. The "pavements" are in any event within the definition of a "street" and are less than 4.5 meters wide. Regulation 23(2)(a) says a street shall not be included in the site area but paragraph 1(c) says a street less than 4.5 meters wide shall be deemed not to be a street.

21. A land owner who is seeking approval of development plans is entitled to include all the area of his land for plot ratio/site coverage purposes unless the Ordinance or Regulations exclude some part of it. The Authority says that the area in dispute is a service lane and, pursuant to Regulation 23(2)(a) it should not be included without modification and even then the two pavements which replace it should be excluded. In my view that is not legally correct. On the new plans there is no such service lane, though the existing rights of way enjoyed by adjoining owners remain. What will be in place of the service lane is a hotel fore-court with pavements leading to Jaffe Road. The pavements come within the definition of a street and would fall within Regulation 23(2)(a) but for Regulation 23(1)(c) which says that any street less than 4.5 meters wide shall be deemed not to be a street. The pavements, or "diverted lanes" as the Authority calls them, are less than 4.5 meters wide and are therefore not streets so as to be excluded from the site for the purposes of plot ratio and site coverage calculations.

22. I am satisfied that the applicant is entitled to include the whole area of the proposed fore-court in its site area, including the area now previously forming the service lane and the new pavements.

23. There will be:-