HINGE WELL CO LTD v. ATTORNEY GENERAL

Headnote

                Whether land to be developed is on one site or two sites - a question of fact - status of a service lane - public character of - interpretation of Reg. 23(2)(a) of Building (Planning) Regulations.

------------

___________

JUDGMENT

___________

Yang, J. A.:

1. This is the Building Authority's appeal against the judgment given in favour of Hinge Well Co. Ltd. ("Hinge Well") in an application for judicial review. The judicial review related to a decision by the Building Authority refusing to process the redevelopment plan of Hinge Well for their land as a hotel.

THE LAND

2. The land in question is in a reverse L-shape. The vertical bar of the reverse L-shape comprises two lots, viz., Section G of I. L. 2818 and Section D of I. L. 2817 R. P. These two lots are also known as Nos. 84-88, Jaffe Road, with their northern boundaries abutting on that road. The south side of these two lots abut on a service lane. The service lane extends beyond the two lots to the west and reaches a dead-end at the back of an office building. It also goes eastward and passes some other buildings into Luard Road. On the south side of the service lane directly opposite the vertical bar of the reverse L-shape, and forming the horizontal bar of the reverse L-shape, are two other lots running westward. These are lots Section F of I. L. 2818 and I. L. 2817 R. P. These two lots are also known as Nos. 61-73 Lockhart Road, and their southern boundaries abut on that road. The reverse L-shape is now surrounded by predominently commercial buildings.

THE SERVICE LANE

3. In December 1933, the then owners of Lots 2817 and 2826 partitioned them and conveyed them to different owners. A mutual right of way and scavenging lane was created over the now existing service lane by the Deed of Partition. It is not disputed that for the purpose of the present case there is hardly any difference between a scavenging lane and a service lane.

4. The whole width of the service lane running along the south side of Nos. 84-88 Jaffe Road is owned by Hinge Well. As to the stretch of the service lane which goes west and dead-ends at the office building, the width of the northern half is publicly owned and the southern half is owned by Hinge Well. By the 1933 Deed, owners of the lots on the opposite side of Hinge Well's Lockhart Road lots have a right of way over that part of the service lane belonging to Hinge Well. The redevelopment plan offers to surrender and widen that stretch of Hinge Well's service lane to the west of the Jaffe Road lots.

5. With the demolition of buildings on the Jaffe Road site and Lockhart Road site, the whole service lane is now physically gone and no longer visible.

6. The part of the service lane we are most concerned with is the short stretch on the south side of the Jaffe Road lots.

THE REDEVELOPMENT PLAN

7. The redevelopment plan is for a hotel. The vertical bar of the reverse L-shape including the service lane running on the south side of Nos. 84-88 Jaffe Road will be a forecourt. It will not be built on. On either side of the forecourt will be a pavement 3.05 m. in width. Nos. 61-73 Lockhart Road will be built on as the hotel proper. As already indicated the service lane running westwards from the west side of the vertical bar of the reverse L-shape will not only be retained and surrendered but widened slightly on the south side.

THE BUILDING AUTHORITY'S DECISION

8. In refusing to process Hinge Well's redevelopment plan, the Building Authority wrote on 22nd June, 1984 in the following terms:

9. On 14th September 1984, the Building Authority wrote again to Hinge Well:

" Dear Sirs,

Re : 61-73 Lockhart Road and

84-88 Jaffe Road, Hon Kong

                I am in receipt of your letter of 8th September 1984 asking for review of the decision contained in my letter of 17th August 1984. There appears to be some misconception of the position and I therefore take this opportunity to clarify.

 

                Your client's properties comprise Nos. 61-73 Lockhart Road and Nos. 84-88 Jaffe Road, which currently are 'de facto' two independent sites separated by an existing service lane. While there is no objection in principle to the amalgamation of the two sites for joint redevelopment, permission to incorporate the existing lane as part of the site, (whether to build over it or not), would only be given (by granting a modification of Building (Planning) Regulation 23(2)(a), and or exemption from section 31(1) of the Buildings Ordinance, as appropriate, on condition that suitable diversion lanes (not less in width than the existing lane) are provided, and these must be physically defined and excised from the site area in accordance with the said regulation.

 

                Your clients would then be at liberty to develop the net amalgamated sites in accordance with the Buildings Ordinance and Regulations. Incidentally, it is confirmed that no new service lane would be required is be provided by virtue of the proviso to Building (Planning) Regulation 28; the diversion lanes would be required as a condition under section 42(3) of the Buildings Ordinance.

 

                Since the plans submitted by your clients' Authorized Person were prepared on manifestly incorrect premises, they could not be usefully processed. However, I can assure you that any resubmitted plans, correctly prepares, would receive close examination under the Buildings Ordinance."

 

10. It is this decision that forms the subject matter of the judicial review.

THE DISPUTE

11. Whilst the Building Authority maintains that Hinge Well occupies two sites separated by a street, he is prepared to apply Section 42 of the Building Ordinance (infra) and permit modification so as to allow an amalgamation of the two sites as one, at the same time permitting Hinge Well to include the short stretch of service lane south of the Jaffe Road lots to be included for plot ratio calculations. This much the Building Authority is prepared to permit, but with the condition that the pavements on either side of the forecourt be provided and be excluded from plot ratio calculations.

12. Hinge Well maintains that they are developing one site. The service lane is a private lane and not a street. By virtue of Regulation 23(2)(a) of the Building (Planning) Regulations, the existing service lane could be taken into account for plot ratio calculations (infra). Furthermore, the forecourt opening directly on to Jaffe Road comes within proviso (a) of Regulation 28 of the Building (Planning) Regulations apply (infra). Hinge Well argues that in all the circumstances they are not obliged to apply for modification under Section 42, nor has the Building Authority the power to impose the conditions as he does.

13. Another area of dispute is that the Building Authority views the service lane as a street coming within the realm of public law, whilst Hinge Well treats the service lane as private property subject to a private agreement as to mutual right of way.

THE RELEVANT STATUTORY PROVISIONS

14. It is necessary to note the following statutory provisions.

15. Section 42 of the Buildings Ordinance provides that the provisions of the Ordinance may be modified by the Building Authority:

 

    (4) .................................

 

    (5) .................................

Regulation 23(2) of the Building (Planning) Regulations deals with the calculation of the plot ratio of a site:

Regulation 28(1) stipulates the need of a service lane for domestic buildings:

 

Provided that a service lane shall not be required -

(a)	where a public lane not less than 3 m wide or a street already exists;
(b)	for detached and semi-detached buildings."

16. If Hinge Well's land is regarded as two sites, then the plot ratio of one cannot be transferred to the other without modification under Section 42 of the Ordinance. In permitting modification, the Building Authority is empowered by Section 42 to lay down such conditions as he sees fit, e.g., the provisions of pavements (or diversion lanes) on the forecourt.

17. By the Building Authority's decision (supra), the Applicant was therefore faced with a choice of either developing the lots on two separate sites on either side of the existing service lane, or as one amalgamated site including the existing service lane, in which event it must comply with the Building Authority's conditions by providing the two pavements on the forecourt, which are to be physically defined and not taken into account in determining the area of the site.

WHETHER THE SERVICE LANE IS A STREET

18. By Section 2 of the Building Ordinance,

19. Section 2 of the Building (Planning) Regulations provides that "street includes any footpath and private and public street".

20. The Building Authority therefore argues that a service lane, being a lane, is a street and as such it is subject to all the provisions in the Buildings Ordinance and its Regulations, notwithstanding that the lane is on land wholly owned by Hinge Well.

21. I do not think this is a correct interpretation. The areas referred to in Section 2 of the Ordinance are all for the purpose of passage. On the other hand the primary purpose of a service lane is "service", namely, such essential public services as are related to public hygience, fire safety, water supply, etc. It does not matter whether one calls it a service lane or a service yard, it is the nature of the area that must be looked at. Indeed, Regulation 23(2)(a) regards a street and a service lane as two different things.

22. The discussion above is sufficient to dispose of the issue as to whether the service lane is a street. It was however argued in the court below on behalf of Hinge Well that the service lane being less than 4.5 m shall be deemed not to be a street under Regulation 23(1)(c). This point is not argued before us, but neither has it been abandoned we therefore have to deal with it.

23. Regulation 23(1)(a) and (c) of the Building (Planning) Regulations provides:

24. It is clear that Regulation 23(1)(c) only applies to Regulation 23(1)(a).

25. Regulation 23(2) deals solely with the question of determining the area of the site on which a building is to be erected. The regulation is not qualified by Regulation 23(1), which is concerned with measurement, not with classification. Regulation 23(2) is not concerned with measurement: see Cheong Ming Investment Co. Ltd. v. Attorney General, H. C. A. No. 250 of 1979 (unreported), at p. 9; Firebird Ltd. v. Attorney-General; H. C. M. P. No. 517 of 1980 (unreported) at p. 6; Firebird Ltd. v. Attorney-General, Civil Appeal No. 98 of 1981 (unreported) at pp. 8-10, 14-15,25-28.

THE PUBLIC OR PRIVATE CHARACTER OF THE LANE

26. Hinge Well argues that the lane is a private lane. By the Deed of Partition 1933, a mutual right of way was created for the benefit of owners of the land adjoining the lane. It is privately owned, and its use is regulated by a private agreement. It is not a public lane over which the general public has a right of way, and there is no evidence that the public at large has a right of passage over it. On this argument the lane comes within the realm of private law.

27. The Building Authority however seeks to bring the service lane within the realm of public law. Their argument does not deal with the issue of right of way but rather with the public character of a service lane.

28. The Building Authority's case is that in order (i) to maintain orderly development, (ii) to preserve integrity of the service lanes in the area, and (iii) 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, it is not enough for Hinge Well to guarantee a private right of way for occupants of adjoining buildings, for a private right is subject to the vagaries of private negotiations. The service lane in question qua service lane is public in character because Government has an interest to see that it is preserved as a "service" lane for the benefit of the general public. Though privately owned, the Government is concerned with the use to which the service lane is put. The general public has a legitimate interest in such use.

29. Even if the public at large may not wish, and may not be generally permitted, to use the service lane as a passageway, the Government, representing the public, wishes to ensure that it preserves the character of a service lane for such services as fire, water, public hygiene, etc. That the Government insists on a service lane being provided is illustrated by Regulation 28(1). The Government is also concerned that in case of emergency, the occupants of all the buildings adjoining the service lane may use it as a means of escape.

30. In my judgment the Building Authority is right. The service lane by its very nature takes on a public character and may not be eliminated or have its character altered by the owner unilaterally. It still exists in law even though it has physically and visually disappeared.

31. Much of the Crown Counsel's submission to us concentrated on the theme that the service lane had been dedicated to the public at least since 1933. As dedication is not a point that was raised in the court below, it will not be right for us to deal with it as a new issue.

WHETHER THE REVERSE L-SHAPE COMPRISES ONE SITE OR TWO SITES

32. Hinge Well says it is on one site; the Building Authority says two.

33. On the authority of Attorney-General v. Cheng Yick-chi (1982) Privy Council Appeal No. 32 (unreported), at pp. 4-5,

34. The question now under consideration is therefore one of fact.

35. The Government has an interest in ensuring that the service lane should remain as such, and may only be removed or replaced by the Building Authority's permission under Section 4(1) and (3) of the Buildings Ordinance.

36. Whilst the service lane is privately owned, its use is controlled by Government. In short, the owner does not have "a realistic prospect of controlling" the service lane. In the circumstances the service lane in fact divides the land into two sites.

ORDER OF THE COURT BELOW

37. Having heard the application the judge made an order in favour of Hinge Well. The following is the order appealed from:

                (a)    A declaration that the lots may be redeveloped as one site.

(b)    A further declaration that the Applicant is under no obligation to exclude under Building (Planning) Regulation 23(2)(a) the service lane on the south side of 84-88 Jaffe Road and the planned pavements on either side of the forecourt from site area and plot ratio calculations.

(c)    A further declaration that the Building Authority was wrong in law in his disapproval of Hinge Well's redevelopment plan.

(d)    An order of Mandamus directed to the Building Authority to consider the said plans on their merits and in accordance with law.

(e)    That the Applicant does have its costs for this application and the application for leave.

 

THE JUDGMENT THUS FAR

38. The judgment thus far is sufficient to dispose of the issues in the appeal. I have already found the following:

But two other issues remain.

THE STATUS OF THE FORECOURT PAVEMENTS

39. There has been some argument as to the status of the two pavements or diversion lanes on either side of the forecourt in the context of Reg. 28(1) and proviso (b) (supra). In the light of what I have held, it will serve little purpose in pursuing this issue. Clearly, in permitting the amalgamation of two sites and in permitting the inclusion of the short stretch of the service lane south of the Jaffe Road lots to be included for plot ratio purposes, the Building Authority was acting within Section 42. It was within his rights to impose conditions as he deemed necessary. He is of the view that the pavement on the left side of the forecourt is necessary as a service lane to owners of adjoining building, and that the pavement on the right side is unnecessary but desirable to achieve "good planning", whatever that phrase means. It also seems harsh to require the developer to lose the pavement on the right, but I cannot say he was wrong in making these administrative decisions, behind which we are not permitted to investigate.

INTERPRETATION OF REGULATION 23(2)(A) OF THE BUILDING (PLANNING) REGULATIONS

40. In the course of submissions, a question arises as to whether, assuming that the Jaffe Road site and the Lockhart Road site are to be taken as one site, the service lane to the south of the Jaffe Road site may nevertheless be excluded for plot ratio calculations by virtue of Regulation 23(2)(a).

41. On the face of it, that regulation quite clearly applies to a service lane as being one which must be excluded for plot ratio calculations. Counsel for Hinge Well, however argues that the words "service lane" in that regulation should be interpreted prospectively, in which case the Court must by necessary implication add the following words after "service lane": "which Regulation 28 requires to be provided". If that interpretation be right, Regulation 23(2)(a) will not apply to an existing service lane. It would then be in order for Hinge Well to include the existing service lane for plot ratio calculations.

42. Counsel acting on behalf of Hinge Well argues that it is sensible to give a prospective interpretation to "service lane" in Regulation 23(2)(a). A service lane created on a previous occasion may no longer be necessary by virtue of the proviso to Regulation 28(1) (supra).If, for example, all the lots (with Jaffe Road as a boundary to the north, Luard Road as a boundary to the east, Lockhart Road as a boundary to the south and Fenwick Street as a boundary to the west) are developed as one single site and with one single domestic building erected thereon, then by virtue of the proviso, no service lane is required. Can it be said that the old service lane running from east to west must continue to exist in law? With the suggested new building, the original raison detre for the old service lane is gone. There is therefore no reason why the old service lane should not be included for plot ratio calculations, bearing in mind that it is privately owned. A prospective interpretation makes good sense; for if a new service lane is demanded by Regulation 28(1), the owner is expected to sacrifice a small portion of his land for the public good.

43. Counsel's argument, whilst attractive, does not represent the correct interpretation. The example given above falls within Section 42(1) of the Buildings Ordinance (supra) as a special circumstance which may lead the Building Authority to consider it desirable to permit a modification. In the case before us, of course, there are still adjoining owners to the east and west of Hinge Well's lots for whom there is a need to preserve the lane as a service lane. The integrity of the whole length of the service lane may only be preserved by retaining the short stretch on the south side of Nos, 84-88 Jaffe Road,

44. The authority cited in support of a prospective interpretation is again Attorney-General v. Cheng Yick-chi (supra), where Lord Fraser said (at p. 6):

 

'(2)    In determining for the purposes of regulation 20, 21 or 22 the area of the site on which a building is erected -

 

(a)	no account shall be taken of any part of any street or service lane; and
(b)	there shall be included any area dedicated to the public for the purposes of passage.'

 

The question raised by declaration (a) is whether in determining for the purposes of regulations 20 and 21 the area of the site the unbuilt on land should be excluded by reason of paragraph (a) of regulation 23(2), as the appellant submits, or included by reason of paragraph (b) of the regulation, as the respondents contend. The problem is whether or how the two paragraphs can be reconciled."

 

45. Later on the same page, he said:

"Alternatively the conclusion might be reached by reading paragraph (a) as if it said no account shall be taken of any part of any street, not being an area dedicated to the public ...'.Apart from the semantic objections to either of these readings there is the further objection that almost every piece of land dedicated to the public for passage would be a street within the definitions already quoted, so that paragraph (b) might have a very wide application. In their Lordships' view, the proper reconciliation of paragraphs (a) and (b) is to be found, as submitted by Mr. Morritt for the appellant by treating paragraph (b) as applying only to areas which in accordance with the relevant scheme for development, are proposed for dedication in the future, as if the words 'to be' occurred between 'area' and 'dedicated'. That would be consistent with many other provisions in the regulations, which use the present tense in a context where it evidently refers to the future."

46. Specifically referring to Regulation 23(2)(a) and (b), Lord Fraser continued (at p.7):

"no account is to be taken of any part of any existing street, but account is to be taken of any area which, in the proposed development, is to be dedicated to the public for passage. Areas dedicated in the past are excluded. In that way a developer who gives up some of his land by dedicating it to the public has his reward on the occasion of the dedication, but not again - a result which is intelligible and seems consistent with the scheme of the regulations."

47. On this authority, quite clearly the street referred to in Regulation 23(2)(a) is an existing street and Regulation 23(2)(b) is to be read prospectively. This is the extent to which the authority binds this Court.

48. However a number of questions appear to arise. Firstly, purely as a matter of construction, if "street" means an existing street in Regulation 23(2)(a), then it would seem that unless there are clear words to the contrary, "service lane" would, in usual drafting technique, also mean an existing service lane. There is nothing from the words and terminology used which compel us to add the words "which Regulation 28 requires to be provided" after "service lane" If "service lane" refers to a lane to be provided, it seems that it should more logically be included under Regulation 23(2)(b) which is to be read prospectively.

49. Secondly, Regulation 23(2)(b) refers to an area to be dedicated "for the purpose of passage", it would therefore seem that the dedication of a service lane does not come within Regulation 23(2)(b). While a lane is a street and is for passage too, not so a service lane. A service lane is primarily for "service", not passage.

50. Thirdly, applying the concept of a "reward on the occasion of the dedication", it follows that by sacrificing the area dedicated, the developer gains something in plot ratio calculations. But, according to the case, the reward applies not to an area previously dedicated for passage, so a later developer will not have the enhanced plot ratio that his predecessor enjoyed, but will have to be content with the plot ratio of the existing site without the area dedicated. At first view, an anomaly seems to result.

51. Could it be that the difference between Regulation 23(2)(a) and (b) lies not in present streets and future dedications, but in the word "dedicated". Perhaps (a) refers to streets and service lanes not dedicated (e.g. Reg. 28), and (b) refers to areas for passage dedicated, whether the dedication be past, present or future. If that be so, it will get around the apparent anomaly referred to above, and the later developer will also enjoy the enhanced plot ratio in the same way as his predecessor. But it will still not solve the problem that an area dedicated not for the purpose of a passage but for the purpose of a service lane, is outside Regulation 23(2)(b).

52. We do not think it necessary to answer the questions posed, as the appeal could be dealt with without resolving these difficult arguments. Not having had the benefit of Counsel's submissions on these questions, we refrain from expressing any definitive view on them and leave it to the Legislature to consider whether the difficulties are more apparent than real, and whether amendments to Regulation 23(2) are required.

CONCLUSION

53. For the reasons given, the appeal is allowed and the order made in the court below set aside.

McMullin, V. -P.:

54. I agree that this appeal must be allowed. As I read it, the whole ratio of the decision in the court below is to be found in what was said by Penlington, J. at page 12 of the transcript before us:

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

 

(a)	a 'site' means, in addition to the land on which it is proposed to erect buildings, any land which the developer bona fide proposes to include in the development.
(b)	Regulations 23(2)(a) and (b) should be read as if the words 'to be' occurred between 'area' and 'dedicated'

 

        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."

 

That, I think, must be understood as a finding that the prospective interpretation given in A.G. v. Cheng Yick Chi and Ors.⁽¹⁾ to paragraph (b) of sub-section 2 by their Lordships in the Privy Council in relation to the term "street" must apply also to "service lane", the only other entity covered by paragraph (a) of sub-section 2.

55. For the reasons given by Yang, J.A. with which I am in respectful agreement, I believe that it was the intention of the legislature to distinguish between a "service lane" and any other kind of lane which would normally be included within the definition of the term "street". It is the right of passage over land, whether in public or in private ownership, which is the unifying functional characteristic which serves to draw within the single term "street" the many different entities which we find to be included within that term in the several definitions to which counsel have resorted and which are to be found in the Building Ordinance Cap. 123, the Building Regulations and elsewhere. It is the character of control for public purposes which sets the service lane apart. Small though the area in dispute is this means that the whole area which Hinge Well propose to develop is in fact bisected by a strip of territory over which the developing company is unable to insist upon an absolute right of control.

56. Indeed, Mr. Swaine, as I understood him, would concede that if this point of public control was valid, then the lack of effective control over the whole area would mean that there are two sites and not one site only within the proposed development. His complaint about this argument was that it was one which had not been advanced in the court below.

57. If that be so, and nothing said upon the other side has led me to believe that the argument was advanced before Penlington J., then that was a most unfortunate omission since it meant inevitably that the learned trial judge's attention was never drawn to a fundamental weakness in the respondent's position.

58. Nevertheless, whether or not the argument from public control was put before the judge below we are concerned, as he was, with the true interpretation of Regulation 23 in the light of what was said by the Privy Council in Cheng Yick Chi. If the point about public control is a valid one we cannot disregard it because this makes a vital difference to the way in which Section 23 ought to be interpreted.

59. In the course of argument Mr. Swaine contended that the maxim "once a street always a street" should not apply to a "service lane", the nature of which should not be regarded as immutable. I think that must be correct. If it were the case that the whole of this service lane had fallen into desuetude as a matter of fact, and that the needs of all the adjoining owners, and their obligations under Regulation 28, had been met in some other way so that the public interest no longer required the maintenance of it, I can see no reason why there should be attributed to it the kind of notional persistence in being for which Mr. Whaley has argued. In that event the amalgamation of the two sites by Hinge Well in its plans, for its own practical purposes, could not have been made the subject of a valid objection by the Authority.

60. Under the circumstances which have been adumbrated above the amalgamated site would then have attracted the benefit of the proviso to Regulation 28. That, I think, must have been how Penlington, J. viewed the situation. If paragraph (b) of regulation 23 is read prospectively in relation to a service lane as well as to a street then the physical amalgamation of the two sites of Hinge Well rendered the provision of a service lane unnecessary by virtue of the proviso. He thus took the eminently practical view that Hinge Well's plans projected a development which would protect the right of passage of adjoining owners as fully as that right had formerly been secured to them by the original service lane.

61. But the fact is that there is in existence a service lane although, for practical purposes, the section of it which formerly divided Hinge Well's two sites has been temporarily obliterated by the new works. That lane extends westward until it comes to a dead end at No. 53 Lockhart Road and on the way it passes to the rear of several properties held by owners other than Hinge Well.

62. In his affidavit of the 23rd of January 1985 Mr. CHEUNG Hau-wai, the Chief Building Surveyor, gives a comprehensive account of these properties, their identity and the nature of their user etc. It is clear from this account that the lane continues to discharge a public services function for these properties (e. g. escape route in emergencies, access for fire service etc.).

63. If one regards the Hinge Well property which now abuts on Jaffe Road to the north and Lockhart Road to the south as a single site totally controlled by the private developer who could, if he desired, bar all access thereto by persons other than his licencees, then, from the stand point of purely public control, that stretch of the existing lane which travels west to the rear of the adjoining properties must be regarded as land-locked and without publicly enforceable outlet to Luard Road or Jaffe Road.

64. I am at one with Yang, J. A. in holding that the legislature in Regulation 23(2)(a) did not intend-that a service lane should be regarded as a street and that it is the aspect of control exerted by public authority for the public benefit which places it in a wholly different-category. Indeed, I entertain some doubt as to whether a service lane, properly so called, could be dedicated to the public for the purposes of passage and thus fall within (b) of paragraph 2 of Regulation 23.

65. However that may be, I am satisfied that the Authority was within his 'rights in insisting that there is an existing service lane which must be preserved.

66. Under Section 42(3) of the Ordinance, in agreeing to the amalgamation of the sites in the manner required by the developer the Authority proposes to impose-the condition that the integrity of the lane be preserved by -its being diverted so as to afford access from Jaffe Road to the properties of adjoining owners. In return the Authority is prepared to allow the presently disputed portion of the service lane to be included for purposes of plot ratio and site coverage.

67. The new "diversion" lane running along the western border of the upright of the reversed "L" constituting the amalgamated site would have to be excluded for purposes of plot ratio and site coverage. That seems fair, but of course the Authority is only entitled to insist upon a strip of land for that purpose equivalent in width to the existing service lane - a point which is conceded by the Authority in his letter of the 14th of September 1984. What follows is more dubious.

68. In offering to grant the modification of Building (Planning) Regulation 23(2)(a) under the powers conferred upon him by Section 42 of the Ordinance the Authority demands the provision of two such "diversion lanes" one of which would be the one I have already described and the other a "diversion lane" running along the eastern border of the reversed "L" which comprises the former numbers 84 to 88 Jaffe Road. The only reason given for this requirement appears to be that it will favour "orderly development". The existing service lane which runs eastward from the Hinge Well site provides access to and from Luard Road to all the adjoining owners whose properties at present abut upon it. That access will in no way be impaired or diminished by the proposed road development on the Hinge Well site. The physical integrity of the lane is, of course, disrupted, but its functional integrity is preserved.

69. The provision which the Authority is proposing to "modify" pursuant to his powers under Section 42 of the Ordinance is, of course, regulation 28(1) of the Planning Regulations which, without this ''modification", would have obliged Hinge Well to maintain the service lane as it formerly ran between the two sites in their unamalgamated form.

70. In permitting the development, in amalgamation, of the two sites and hence the obliteration of that segment of the existing service lane the Authority is entitled under Sub-section 3 of Section 42 to include in the permit issued to Hinge Well "such conditions as the Building Authority shall deem necessary. How wide is the discretion thereby conferred? Since it was only the preservation of the integrity of the service lane which obliged the "modification" exempting Hinge Well from the application of Regulation 28 it would seem to be reasonable that the conditions imposable by the Authority should, in fairness, be restricted to such conditions as would preserve the function of the service lane.

71. This point was, of course, not argued at the hearing of the appeal but it may well be that Hinge Well would be on good ground in arguing that this was unreasonable use of the discretion and therefore that to insist upon the provision of this additional "diversion lane" was ultra vires within the principles of such cases as Hall & Co. Ltd. v. Shoreham-by-sea Urban District Council and another⁽²⁾.

72. In any event, whether or not an issue should be made of that at some later stage, it is clear for present purposes that, if entitled to impose this condition the area to be excluded for site coverage and plot ratio purposes would once again be a strip of land of` the same width as the existing lane.

Li, V. -P. :

73. I have the benefit of' reading the judgment of my brother Yang in draft. The background giving rise to the dispute and the issue, subject matter of this appeal, are so succinctly put that any attempt to set them out in full would be repetitious and redundant.

74. The whole question is indeed whether the area comprising lot Section G of I. L. 2818 and Section D I. L. 2817 R. P. and Section F of I. L. 2818 and R. P. of I. L. 2817 may be developed as 1 site without the applicant having to apply to the Building Authority for modification despite the fact that the Applicant's predecessors in title saw fit to sever Section D of I. L. 2817 and R. P. of I. L. 2817 by a portion of a scavenging lane or service lane subject to the other adjoining owners' right of way. I. L. Lots 2817 and I. L. 2818 were originally granted as two single lots of land situated between Gloucester Road in the North and Lockhard Road in the South to the Chung Shun Land Investment Co. Ltd. by Crown leases in the year 1930. In 1933 I. L. Lot 2817 was partitioned into various sections by a deed of partition assigning to individual tenants in common such portions of the land and buildings together with a right of way over and upon and along the scavenging lanes and the private road known as Jaffe Road and subject to rights of way over and upon of the same scavenging lanes and also a right of way for the owners and occupiers of the adjoining messuages over the stair-cases erected on the assigned section of the lot.

75. Subsequently Jaffe Road to the North of I. L. Section 2817 was dedicated to public use; but the scavenging lane, cutting through I. L. 2817 and running from Luard Road in the East to a dead end in the West remained private. Nonetheless it did separate, at one time, Section D and the Remaining Portion of Section 2817 into two lots. Thus in his letter to the Applicant the Building Authority considered the two lots "as comprising two separate sites on the two sides of the existing service land and each side should be developed in such manner that there is no transfer of plot ratio and site coverage between the sites". By a subsequent letter dated 14/9/84 the Building Authority indicated that "there is no objection in principle to the amalgamation of the two sites for joint development" provided that the Applicant applied for modification of the Building (Planning) Regulation 23(2)(a) and or exemption from section 31(1) of the Building Ordinance. In the same letter the Building Authority contended that Section D and the Remaining Portion of Section 2817 "are 'de facto' two independant sites separated by an existing service lane".

76. On the other hand the Applicant contended that the service lane was a private lane albeit subject to a right of way for the owners and occupiers of the adjoining buildings. With both Section D and the Remaining Portion of I. L. 2817 being acquired by the Applicant, and the buildings thereon having been demolished, that portion of the lane between the two areas has merged into one site albeit still subject to a right of way for the adjoining owners and occupiers. The development is such that that portion of the service lane will be widened after development and will remain available for use by occupants of the adjoining buildings. Further, the area in Section D of I. L. 2817 will be used as a forecourt contiguous to the former service lane in the South and Jaffe Road in the North to form one open space.

77. Counsel for the Building Authority contends that it wanted 1) to have orderly development; 2) was anxious to preserve the integrity of the service lanes in the area and 3) 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. He contends that 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.

78. In the event the trial judge ordered:- a declaration that the said lots may be redeveloped as one site and that there was no obligation for the Applicant to apply to the Building Authority for modification to exclude under Building Planning Regulation 23(2)(a) any portion of the old service lane. On that basis he issued an Order of Mandamus directed to the Building Authority to consider the plans on their merit and in accordance with law.

79. In support of his appeal the Building Authority relies on the following grounds that the trial judge:

80. Before us, learned counsel for the Building Authority repeats his arguments in the Court below which had been rejected by the trial judge. However he laid particular emphasis on the contention that the service lane is public in character because the Government has an interest to see that it is preserved as a service lane for the benefit of the general public which has an interest in its use.

81. I fail to see the validity of this argument. When I. L. 2817 was first granted by the Crown it started off as one single lot including the subsequently partitioned Section D and the Remaining Portion extending from Gloucester Road in the North to Lockhart Road in the South. It became private land. How it was carved up into different lots to be separated by service lanes was a matter between the then joint owners the Applicant's predecessors in title. The sole reason for the service lane being there cutting across the lot was because the then owners wanted to develop the one site in that fashion. Once the different lots are vested in a single owner the justification for the existence of the service lane depends on how the present owner, the Applicant, wants to develop its property. In this connection it is pertinent to observe that the service lane, quite unlike Jaffe Road which had been dedicated to public use, is on private land albeit subject to a right of way for the adjoining owners. That is a right between owners.

82. An example may illustrate the point. In the deed of partition the staircase erected in each building on a lot is subject to a right of way for the adjoining owners. However, the owner of the staircase did not lose possession or control of it. Now that the Applicant has acquired all the buildings with staircases built on I. L. 2818 known as 61 - 73 Lockhart Road can it be argued that the Government and the public have an interest to preserve the staircases of such buildings and regard each building as a separate site? Yet one or more of such staircases in those buildings may be said to be essential for the adjoining owners to escape from the roof top of the building to the street in case of fire or emergency. The service lane is in the same position as a staircase in the building.

83. I agree with my brother Yang that the former service lane was not a street. It had a 'de facto existence' as alleged by the Building Authority. Such 'de facto existence' ceases when the buildings of lots on Section D and the Remaining Portion of I. L. 2817 have been demolished though a right of way for the adjoining owners remain. If the right of way is satisfied the Building Authority has no right to insist on the retention of the service lane.

84. The right of way is a matter between the adjoining owners. Any infringement should be subject matter of an injunction. Intervention by the Government is an interference with private right and ownership. If all the adjoining owners agree to put an end to the right of way they should be at liberty to do so and develop their respective properties provided   they can satisfy the requirements of Regulation 28(1). Orderly development and integrity of the service lane have nothing to do with it. Using these to justify the argument that Section D and the Remaining Portion of I. L. 2817 are two separate sites is not only gratuitous but also arbitrary.

85. Thus the only argument left for the Building Authority is whether the two aforesaid lots must be regarded as two separate sites because of the provisions in Regulation 23(2)(a). This Regulation provides that "in determining for the purposes of regulation 20, 21 or 22 the area of the site on which a building is erected no account shall be taken of any part of any street or service lane". But this regulation does not provide that a service lane passing through a single site and subject to a right of way converts it into 2 separate sites. When the buildings on either side of the service lane are demolished this lane's de facto existence is gone albeit the land is subject to a right of way. So does its de jure existence when the two lots vest in the Applicant.

86. In the case of Attorney General v. Cheng Yick Chi & Others ⁽¹⁾ the Privy Council found that: -

"         Neither the regulations nor the Buildings Ordinance contains a definition of 'site'. The respondents contend that the site is the whole of the properties, including the unbuilt on land. The appellant contends that, in this case, it is only the land on which the houses at present stand. It was common ground between them that the site, in the sense of the regulations, is not necessarily limited to the ground on which buildings actually stand. That it cannot always bear such a limited meaning appears from several provisions in the regulations. For example, regulation 5(2) refers to the provision of an access lane 'within the site' of a new building, and regulation 25(1)(a) requires that every domestic building shall have 'within the site' an open space at the rear. Clearly neither an access lane nor an open space can be on ground on which a building stands.

 

            Mr. Widdicombe for the respondents said that the site for purposes of development is normally a whole 'lot', using 'lot' to mean the leased area held directly or indirectly under a lease from the Crown. That may well be so. But (rightly) he did not contend that the 'site' was necessarily co-extensive with the 'lot', because the word site must be flexible enough to apply to a case in which the person holding several adjacent lots under Crown leases proposes to develop them together as a single site. It must also apply where the owner develops only part of his lot, or develops it bit by bit at different times. For example, if a development scheme applies to a substantial area of perhaps an acre or more, to be developed by building a detached house on part of it, with the rest of the land being laid out as a garden and tennis court, the whole area would be the site. If some years later the tennis court is sold off in order to build a separate house on it, the site for that later development would be limited to the tennis court."

87. Pausing here, I would observe that if the provisions of the regulations applicable to a previous development plan of a single site do not restrict a subsequent development plan of a single site into separate sites the converse is equally true. I cannot see how it can be argued that the previous existence of a service lane can affect the Applicant's development plan on two adjoining lots. The most that can be said, as contended by Mr. Swaine, is that such area of the former service lane will not be taken into account for the purpose of determining the site area.

88. Their Lordships held that:

"...... the land which forms a 'site' for the purpose of the regulations must be ascertained as a question of fact in the case of each development. It means, in addition to the land on which it is proposed to erect buildings, any land which the developer bona fide proposes to include in the development. It can only include land which he owns or which he has a realistic prospect of controlling. The additional land must be at least sufficient to enable the proposed building to comply with the regulations and it must, of course, not have been taken into account and, so to speak, used up in enabling some other existing building to comply with the regulations."

I understand from this dictum that the terms 'lot' and 'site' have different meanings. The area of a 'lot' is determined by the grant. The area of a 'site' is determined by the development plan in accordance with Regulation 23(2). The former service lane has not been dedicated to public use. It remains in private ownership and control subject to a right of way for the adjoining owners but not for members of the public or the Government. The right of way for the adjoining owners has not been affected because it is going to be incorporated as part of the forecourt.

89. In my opinion the trial judge is correct in holding that the lots may be redeveloped as one site. He also correct that the Applicant is under no obligation to exclude any portion of the planned pavements (known as the diversion lanes) from site area and plot ratio calculation. I have already indicated that at the most it may be argued that the area of the former service lane be excluded from the determination area. That in no way separates the site into two sites. I am further of the opinion in these days of shortage in building land a robust view should be taken. Even if I am wrong in holding that the service lane disappears with merging of the two lots vested in the Applicant I would adopt the prospective view. Accordingly I am of the opinion that the former service lane may be incorporated into the one site for the purpose of determining the site area. The validity of the rest of the Judge's Order follows.

90. I would dismiss the appeal.

(1)    P. C. Appeal 32 of 1982 (unreported)

(2)    (1964) 1 All E. R. 1