SANTAL LTD v. SECRETARY FOR TRANSPORT

LDMR 7 OF 2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS REFERENCE APPLICATION NO. 7 OF 2001

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J U D G M E N T

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1. The Applicant is the owner of a series of ground floor shop premises, except for two, all fronting Siu Sai Wan Road. In the vicinity of these shop premises, a footbridge was built and certain ancillary landscape work undertaken by the Government. The planning and building work started about 1966 and the said project was completed around 1999. Certain parts of the footpaths were closed temporarily during construction work and other parts permanently after completion as the result of the newly built footbridge and the ancillary landscape work. By these proceedings the Applicant is claiming for statutory compensation under section 27 of the Roads (Works, Use and Compensation) Ordinance. However when the Applicant lodged its claim for compensation the time within which it should do so had expired.

2. H H Judge Chow gave directions that the preliminary issue of liability be determined. At the hearing of this preliminary issue I was assured by the parties what in effect had in fact been directed by H H Judge Chow and therefore what should be determined at this preliminary hearing could be broken into the following issues:

(1) whether or not the necessary extension of time should be granted to the Applicant;

(2) whether or not the access to the Premises is adversely affected, temporarily or permanently or both, by the closure of, or extinction, modification or restriction of a private right in respect of the affected footpaths.

(3) Whether or not the Applicant is entitled to compensation under paragraph 4 of the Part II of the Schedules of the Ordinance.

3. No witnesses were called at the hearing. The evidence before me for the purpose of the preliminary hearing comprises mainly of the affirmation of a Mr. Yeung, photographs, sketches, plans etc. From the evidence and the submissions I understand that it is common ground that when the closure of the footpath was at its worst it only left a passage of two metres which would allow pedestrians to pass freely.

4. Both parties cited Berwell Trading Limited V The Secretary for Transport LDMR No.6 of 2001 and it is common ground that H H Judge Lam correctly set out in that case matters the Applicant has to establish. There are only two of these matters in dispute. One is the extent of the private right of the Applicant and the other is whether or not the access is adversely affected.

5. A owner of land abutting the highway has a private right of assess to the highway but once he was on the highway his right of passage along the highway is a public right. This general statement of law and principle the parties had no dispute. The literal application of this statement would mean that there is and there has never been infringement (extinction, restriction, or modification ) on the private right of the Applicant, and this is the first limb of the argument of Mr. Houghton, counsel for the Respondent. To counter this argument Mr. Lui cited the hypothetical example of leaving a passage of a few inches wide. Mr. Houghton had no answer to this. He merely submitted that we are not dealing with such hypothetical example here. The second limb, as an alternative to the first, of the argument of Mr. Houghton, as I understand, involves a more realistic and practical application of the statement of principle. He stressed that it was access to the footpath and not passage along it should be looked at in determining whether the private right of the Applicant has been infringed.

6. Mr. Lui, counsel for the Applicant, submitted that private rights and public rights are not separate but inter-dependant. He also urged me to look at the private right of the Applicant in the light of all circumstances and in the perspective of pedestrian flow, loading and unloading rights of the Applicant.

7. Mr. Lui cited a number of authorities but none can be said to be in support of his proposition in law. As pointed out by Mr. Houghton those authorities are dealing with public nuisance. As both parties did, I agree with the view of H H Judge Lam in Berwell Trading Limited V The Secretary for Transport (para. 30 of the judgment) that a landowner had to establish that the infringement of private right had caused the access to his land to be adversely affected. Therefore it was access to the land from the highway and vice versa to be looked at. Mr. Lui argued in effect that a even more liberal view should be taken, in particular the loss, be it due to loss of custom or otherwise, suffered by the Applicant. I cannot agree with this approach of Mr. Lui. What loss suffered by the Applicant would be a question of quantum and not liability.

8. Whether the private right of the Applicant was infringed is a mixed question of fact and law. The nature and extent of the private right of access from the Applicant's land to the footpath should be looked at in the light of public right of freedom of passage along the highway. This principle is implicit in the second limb of the argument of Mr. Houghton. Perhaps I should also add that, to this extent, Mr. Lui might not be entirely wrong in saying that the private right and public right are inter-dependant.

9. In the instant case, those parts of the highway that were closed permanently or temporarily at different stages, formed part of the footpaths. I need only to consider the worst scenario. That is when the hoarding only left a passage of two metres. Freedom of passage of members of public along the footpaths was affected. They would have enjoyed the freedom of passage over a much wider footpath had there been no obstructions. However these obstructions did not prevent or in any way inconvenience persons coming and going into the shops of the Applicant. Further, once these persons were outside the shops they could move on along the footpaths in the same way as other members of the public. Therefore the access from the shops to the footpaths was not affected in any way by the hoarding. The true effect of the hoarding and the other obstructions at the time was that it reduced the capacity of the footpaths in terms of the pedestrian flow which has nothing to do with access to and from the lands of the Applicant. I conclude that there was no infringement of private right in the worst scenario and a fortiori, none at other times. Therefore I rule that the Applicant is not entitled to claim compensation.

10. As to the question of extension of time for filing the claim, it would be convenient to assume that the Respondent is liable. The Applicant relied on the affirmation by its Mr. Yeung. However it contained no explanation as to the delay. Therefore the Applicant cannot rely on the ground of mistakes. The second ground relied on is that there is no prejudice on the part of the Respondent. There is no evidence of prejudice or no prejudice. The Applicant is at fault in not making the claim within time. I am of the view that the burden of proof is on the Applicant to show that there is no prejudice to the Respondent. Looking at the materials before me, I cannot infer that there is no prejudice to the Respondent. I find that the Applicant also failed on this ground. The last ground relied on is a catch-all ground which gives the Tribunal the widest discretion. On the other hand there must be materials before the Tribunal so that the discretion can be exercised judiciously. Unfortunately for the Applicant, there was no such materials before me and this ground must also fail. For these reasons I refuse to grant the extension of time.

11. I now also make a order nisi for costs in favour of the Respondent with certificate for counsel.