EMPEROR HOTEL (HK) LTD v. BUILDING AUTHORITY

CACV 175/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 175 OF 2008

(ON APPEAL FROM HCAL NO. 36 OF 2008)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Reyes J given on 24 June 2008 whereby the judge refused leave to apply for judicial review of a decision of the Building Authority (“the Authority”), that had been communicated by letter dated 22 January 2008 and received on 24 January 2008, disapproving general building plans which had been submitted for approval.  At the conclusion of the hearing of this appeal judgment was reserved which we now give.

Background

2.  On 16 October 2007 architects, acting on behalf of the applicant, wrote to the Authority submitting forms BA 4 and 5 together with what were said to have been “SEVEN (7) sets of General Building Plans (GP 01-07)”

3.  On 29 October 2007 the architects submitted 2 sets of additional copies of the general building plans to the Authority, but there is no indication in the covering letter as to the specific reference numbers of those plans.

4.  On 12 December 2007 the Authority refused the requested approval.  That refusal was based, first of all, on the provisions of section 16(1)(d) of the Buildings Ordinance Cap. 123 (the “Ordinance”).  It was said in this respect that the air conditioning plant rooms for the domestic flats and the areas on the seventh floor under the balconies and utility platforms of domestic flats on the eighth floor should be included in the gross floor area.

5.  In the second place, by that letter, the Authority required the applicant to provide further information and particulars under its powers under section 16(1)(i) of the Ordinance.  There were a number of points raised in this respect.  The first was the question as to whether the part of I.L. 2840 that had been surrendered to the Government had been included as part of the lot.  As it transpired, there had been such an illegitimate inclusion.  Secondly, the query was raised as to why the clubhouse and covered swimming pool and the sky garden had been excluded from the gross floor area calculation.  Then there was a question raised by the Assistant Commissioner for Transport/Urban, Transport Department in respect of the number of car parking spaces and the run-in/out.  There were also separate issues raised as to the use and size of various areas shown on the plans.  There were a number of other matters referred to in the letter.  There is no dispute that under section 16(1)(i) the authority has power to make such requests.

6.  On 24 December 2007, the architects wrote to the Authority in the following terms;

“With reference to the captioned & further to your disapproval letter dated December 12, 2007, I resubmit herewith for your kind approval:

1. SEVEN (7) sets of General Building Plans (GP 01-10 All Rev. A) with TWO (2) sets duly signed and coloured;

…....”

7.  Together with that was enclosed, amongst other things, a page headed “Development Schedule” in which it is said that the date of the last submission was on October 17, 2007.  Two further sets of additional copies of the “GBP (Rev. A)” were submitted on 28 December.

8.  On 22 January 2008 the Authority wrote, again, to the architects referring to the application which had been received on 24 December 2007 and, again, disapproved the plans under section 16(1)(d).  This was, first of all, because the proposed building height of 125.49 metres above Principal Datum was in excess of the maximum building height in the Outline Zoning Plan for the site, namely 100 metres above Principal Datum.  There were objections raised because some areas had, wrongly, not been included within the gross floor area.  There was a further objection in relation to fire service access.

9.  The letter also required further information and particulars in accordance with section 16(1)(i) in respect of a number of matters.  That letter was apparently only sent by fax at 10:18 a.m. on 24 January 2008.

The application for judicial review

10.  Despite the fact that the Applicant pursued an alternative remedy by appealing to the Buildings Appeal Tribunal, the application for judicial review was also pursued.  What is said on this application is that the Authority’s rejection of the application was out of time.  In this respect reliance is placed on the provisions of regulations 29 and 30 of the Building (Administration) Regulations made under the Ordinance.  Those regulations read:

“29.  (1) Save as provided in regulation 33, application for approval of plans of building works or street works shall be made in the specified form and shall be accompanied by such documents as are required under these regulations.

(1A) The Building Authority may charge the applicant the prescribed fee in respect of an application made under paragraph (1).

(2)    Subject to regulation 11A, any one or more of such plans may be submitted for approval separately.

(3)    Without prejudice to regulation 30(3), the submission of further particulars or other plans consequent upon the refusal of the Building Authority to give his approval under section 16(1)(i) or (2)(f) of the Ordinance shall be deemed to be a fresh application in respect of the plans which the Building Authority had refused to approve.

30.   (1) The approval of the Building Authority in respect of the plans submitted to him shall be signified by-

(a) notice in writing served on the person making application therefor; and

(b) the stamping, signing and dating of one copy of such plans, other than structural calculations and geotechnical calculations, which shall be returned to the authorized person, registered structural engineer or registered geotechnical engineer.

(2)    The Building Authority may, upon application therefor, give separate approval for any one or more of the plans submitted.

(3)    For the purposes of section 15 of the Ordinance, the period after which the Building Authority shall be deemed to have given his approval of plans submitted to him shall be-

(a) in relation to plans which are submitted for the first time to the Building Authority for approval, 60 days from the date on which the plans were submitted;

(b) in relation to plans which, having been previously submitted to the Building Authority for approval, are submitted to him again for approval so extensively revised as to constitute, in the opinion of the Building Authority, a major revision of such plans, 60 days from the date on which the plans were last submitted;

(c) in relation to any other plans which, having been previously submitted to the Building Authority for approval, are submitted to him again for approval, 30 days from the date on which the plans were last submitted.

(4)    If the Building Authority is of the opinion that plans submitted to him again for approval constitute a major revision of any plans previously submitted to him for approval, he shall notify the appointed authorized person, registered structural engineer or registered geotechnical engineer accordingly, not later than 30 days from the date on which the plans were last submitted.”

The decision below

11.  A number of arguments were put when the application below was heard that were not repeated in this court.  In short, the judge came to the conclusion, that the effect of regulation 29(3) was that, in cases where there was a refusal by the Authority to give approval under section 16(1)(i) or (2)(f), any further submission whether of particulars or other plans, constituted a fresh application and that regulation 30(3)(c) did not apply.  He said at paragraphs 26-27:

“26.  BAR r.29(3) clarifies at least some of the lack of definition in r.30(3)(c) over what constitutes a plan previously submitted.  Regulation 29(3) stipulates that, where a plan has been refused because of lack of particulars, the Authority may proceed as if a fresh application has been made whether or not the more fully articulated plan subsequently submitted is substantially similar to the one previously put forward.

27.   Consequently, I do not think that BAR r.30(3)(c) is contradicted (“prejudiced”) by a conclusion that, when a plan is disapproved under s.16(1)(i) among several reasons, a 60-day limit will apply because a re-submission is deemed to be a fresh application.”

12.  The judge also adopted what had been said by Mayo J, as he then was, in his judgment In re Peninsula Knitters Ltd. (28/04/1993, HCMP 3788/1992)

“Mr. Ismail submitted that Regulation 30(3)(c) governed the position on the August 1990 plans. It was important to note that Regulation 29(3) only referred to a “fresh application” and not to a first application.  The two were not synonymous.  It could well be the case that a second or subsequent application could be regarded as being a “fresh application”.

The way he put it in his very helpful skeleton argument was :-

“(d)  Regulation 30(3)(c) applies because the plans are plans submitted to the Building Authority “again for approval” having been “previously submitted to the Building Authority for approval”.

They are not “plans ... submitted to the Building Authority for approval for the first time,” and “plans which are resubmitted for approval so extensively revised as to constitute, in the opinion of the Authority, a major revision of the plans last submitted to him”.

These resubmissions can never be “plans ... submitted for the first time to the Building Authority for approval" because there can only be one "first time” submission.”

He also argued that the reference to “other plans” in both Regulation 29(3) and Regulation 30(3)(c) supported his contention that there was a close nexus between these Regulations and that what the legislature had contemplated was that if plans did not come within the criteria of Regulation 30(3)(a) or (b) approval had to be forthcoming within 30 days if the deeming provision was not to become operative.

This, I accept is an attractive argument. I do not though consider that it is correct. I accept the validity of the submission made by Mr. Bradley that if this argument was correct, Regulation 29(3) would be rendered redundant.  Mr. Ismail’s answer to this was that even on his interpretation of the legislation Regulation 29(3) would at least have the effect of stopping time running and it would serve some purpose.  I do not think that this is right.  The fact that reference is made in Regulation 29(3) to section 16(1)(i) and (2)(f) would suggest to me that the legislature definitely intended that the operation of Regulation 30(3)(c) was subject to Regulation 29(3).

Mr. Bradley submitted if Regulation 30(3)(c) was subject to Regulation 29(3) there was no necessity for the Building Authority to give any notice to the Applicant under Regulation 30(4) and the failure of the Authority to give any such Notice was therefore not a relevant consideration.  I accept that this is correct.”

This appeal

13.  On this appeal, Mr Yu SC, who appeared on behalf of the applicant, sought to argue, quite simply, that the matter was governed by regulation 30(3) and that regulation 29(3) did not override it.  He said that the matter was important because applications to the Authority and further submissions had for a long time been governed by the Peninsula Knitters decision, which he submitted misconstrued the provisions.  His argument, in effect, was that the distinction had to be drawn between a fresh application and a first, or new, application.  It was submitted that the effect of regulation 29(3) was to provide that if further particulars or other plans were submitted after the Authority had refused approval under section 16(1)(i) or (2)(f) of the Ordinance, then time would start running again from that date but the length of that period would be governed by regulations 30(3) and (4).

14.  That argument is clearly attractive and, had the matter rested there, it would have appeared that this might have been an application which should be allowed to proceed to a full hearing.  However, before a point of law can arise the factual situation must be such that it raises that point of law.  In this case, the applicant has to establish on the facts that the plans that were submitted on 24 December had previously been submitted to the Authority for approval in order to be able to argue that the matter was governed by regulation 30(3)(c) and not 30(3)(a).  In this respect I consider that the applicant has failed to make out a case that the application was governed by regulation 30(3)(c).

15.  Quite apart from the fact that the covering letter of 16 October to the original application states that only 7 general building plans were submitted whereas it is clear that on 24 December there were 10 general building plans submitted, even if 11 general building plans were submitted in October, the question arises as to whether the 10 plans submitted on 24 December were previously submitted to the Authority.  That is because regulation 30(3)(c) only applies where:

“…plans which, having been previously submitted to the Building Authority for approval, are submitted to him again for approval,..”

16.  This matter was raised with counsel during the hearing.  It was pointed out that there were substantial differences between the 11 plans labelled 07053/GP-01 to 07053/GP-11 which were exhibited as part of exhibit MFL-1 to the affirmation of Mok Fung Lin Ivy affirmed on 21 April 2008, and the 10 plans numbered 07053/GP-01 (A) to 07053/GP-10 (A), which were also so exhibited.

17.  The Form 86A states, in paragraph 2(b) of the Factual Background and Chronology, that there was enclosed the letter of 16 October 2007 “7 sets of the GBP (described as GP-01 to GP-011).   It is said in the affirmation that the documents referred to in the Form 86A and that the documents exhibited were those referred to in the Form 86A.  But, the letter of 16 October only refers to 7 plans (GP 01-07).   Hence, there is an unexplained discrepancy between what is claimed in the Form 86A and what was said in the letter.

18.  Be that as it may, when the two sets of plans are compared, it is quite clear that the later plans were not the earlier plans, even with amendments, but they were new plans.  Although the 10 plans that were submitted in December are labelled 07053/GP-01 (A) to 07053/GP-10 (A) and show a notation of a first issue date of October 2007 and revision A in December 2007, none of those plans would appear to show what the revisions were.  A draughtsman who amends a plan or drawing invariably dates the amendments and shows, quite clearly on the plan or drawing, what those amendments were.  None of these plans have any indication of any amendment, that is even on the basis that “general revision” means amendment.

19.  More importantly when the plans are considered it is quite clear that new plans have been drawn.  For example, plan number 07053/GP-04 relates to the “4/F & 5/F plans” and 07053/GP-04 (A) also relates to the “4/F & 5/F plans” and the second plan is clearly very different from the first.  Even though it might be said in general terms that what in the first plan was shown on the right hand side as 5/F plan (E & M) is similar to the plan which is shown on the left hand side of 07053/GP-04 (A) it is clearly not the same plan at all.  Quite simply 07053/GP-04 (A) had never previously been submitted to the Authority.  The same can be said on a comparison of 07053/GP-05 and 07053/GP-05 (A).

20.  In my view it is unnecessary to set out here details of each and every plan but, having compared them all, it is clear that what has happened is that new plans have been made; they are not the same plans with amendments.  In those circumstances, and given that the proposed building is clearly a different building from that which was originally put forward in the October proposal, I do not consider that it can be said that the original plans, even if there were 11 of them, as opposed to 7, were resubmitted.  There was clearly a redesign of the building, the number of floors from 33 to 32 (in the process reducing the height of the building from 133.04 meters above Principal Datum to 125.49 metres above Principal Datum), new plans were prepared, albeit given the same numbers as before and called revisions, and those were submitted to the Authority.

21.  In my view this is no mere technicality.  As is quite clear where a submission is made and a request for approval made, the Authority has important public duties to perform.  Whereas, as can be seen from a consideration of the regulations in force in 1959, it may have then been appropriate for the Authority to have a mere 7 days in which to consider a proposal, proposals now should be given adequate consideration by the Authority.  It is for that reason that a period of 60 days is now laid down as the appropriate time for the Authority to have to consider a proposal.  Given the fact that the proposal was put forward to construct a building 108 metres tall (i.e. more than 350 feet), with more than 30 floors, in a busy and populated area, the public interest demands that the Authority should be in a position to ensure that all necessary matters, in particular safety, are adequately considered.

22.  To take one matter as an example, as is already evident, the Authority has to consult other departments in the course of making an assessment.  Those include the District Planning Officer and the Commissioner for Transport.  In the letter of 12 December 2007 the Authority relayed the following comments from the Asst Commissioner for Transport and the Chief Highway Engineer

“12.  The Assistant Commissioner for Transport/Urban, Transport Dept …. has the following comments: --

(a)   Given consideration of local traffic characteristics of surrounding developments, the adoption of the high end of the HKPSG range of 1 in 6 flats figure is not supported.  Please revise to the mid-range of 1 in 7 or 8 flats.

(b)   One combined run-in/out is generally considered.  The AP is to justify the need for separate run-in and run-out.

13.   The Chief Highway Engineer/Hong Kong, Highways Department …..has the following comments:-

(a)   Comments on the RDO should be sought as the site is located within the South Island Line (East) Administrative Route Protection Boundary.

(b)   DLO and TD’s agreement shall be sought for the ingress/egress locations.

(c)   The run-in/out including the drop kerb type shall be provided to current Highways Standard.

(d)   The AP shall confirm the exact setting out of the boundary with Lands Department.”

23.  Whereas the plans submitted in October showed a run-in in Po Shin Street and a run-out in Wang Tak Street, the plans submitted on 24 December show only one run-in/out provided and that was in Po Shin Street.  In the letter from the Authority dated 22 January 2008 it was recorded in paragraph 13(a) that the Assistant Commissioner/Urban, Transport Department considered that the proposed location of the loading/unloading bay for goods vehicles at the vehicle ingress/egress of the building would cause potential traffic obstruction which was considered not desirable.

24.  One derives from that, first of all, that even if it were said that plan 07053/GP-02 (A) was a revision of that submitted on 16 October under the reference 07053/GP-02, which it was clearly not, the new plan constituted a new proposal and the Authority in carrying out its duty had to consult and consider the matter afresh.

25.  Mr Yu argued that the plans submitted on 24 December should, at worst, be regarded as a major revision of the plans submitted on 16 October and, in those circumstances, it was also too late for the Authority to say that they came within the provisions of regulation 30(3)(b) because notice had not been given in accordance with regulation 30(4).  The short answer to that point is that the plans submitted were clearly new plans and not simply the original plans with amendments, no matter what name was given to them.

26.  No doubt the Authority’s task is very different if the same plans are resubmitted that have already been considered, even with amendments, provided those amendments are clearly marked in a conventional way, than if new plans, albeit somewhat reminiscent of earlier plans, are submitted for approval.

27.  Mr Yu urged this court to give a purposive construction to the regulations; in doing so I consider these are factors that must be taken into account in considering the purpose.  In the present case any resort to a purposive construction of the regulations does not lead to the conclusion that this court should approach this case on the basis that the applicant has established that it is entitled to regard as what happened on 24 December as being a resubmission of general building plans previously submitted in contrast to a submission of new plans.

28.  I would therefore dismiss this appeal.  In doing so I have regard to what was said in the case of Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319.  In paragraph 15, Li CJ said that a claim for relief to be allowed to proceed must be reasonably arguable.  He emphasised that a reasonably arguable case was one that enjoyed realistic prospects of success.  On the evidence put forward by the applicant no such reasonable prospect exists because, on the evidence that is put forward, new plans were submitted on 24 December.  There was no resubmission of the plans that had been submitted on 16 October.

29.  It may also be said that it is difficult to see any underlying merit in the applicant’s case.  Instead of dealing with what would appear to have been substantial grounds for objection to its plans, because the proposed building would have reached some 25 metres higher than was permitted for the area and, amongst other things, there were concerns about fire safety in a building that was to be 32 stories high as well as concerns about traffic congestion in an area where it can hardly be suggested that traffic congestion is not a problem already, the applicant has chosen to try to take advantage of a delay in sending a fax of the letter of 22 January, after the architects had rushed in a submission just prior to the Christmas and New Year holiday periods.  As already mentioned, the applicant had also appealed to the Buildings Appeal Tribunal.  In other circumstances, the fact that there was an alternative remedy open to an applicant for judicial review might itself have been be a bar.  In this case, like the judge below, I would not have held that to be a bar to the application, primarily because I find it difficult to perceive that there could have been any merit in any such appeal.  The point of construction of the regulations, which Mr Yu had put forward as requiring clarification, can await deliberation on another occasion.

Hon Le Pichon JA:

30.  I agree.