BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 147/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.147 OF 2002

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J U D G M E N T

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Introduction

1. What is sought in this application for judicial review is the determination of the meaning and extent of the word 'street' as that word is used in different contexts in the Buildings Ordinance, Cap.123 ('the Ordinance') and certain regulations made under that statute; namely, the Building (Planning) Regulations ('the Regulations').

2. Definitions of the word 'street' do appear in the legislation. S.2(1) of the Ordinance defines 'street' in the following way :

"In this Ordinance, unless the context otherwise requires ... '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; ..."

Reg.2(1) of the Regulations says that :

"In these regulations, unless the context otherwise requires, words and expression [sic] have the meaning attributed to them by the Buildings Ordinance, and ... 'street' includes any footpath and private and public street; ..."

The Privy Council, in Attorney General of Hong Kong v. Mightystream Ltd [1983] 1 WLR 980 (at 983), held that the two definitions must be considered together.

3. The matters disputed in this application arise in the following way. In October 2000, a company named Estoree Limited ('the developer') submitted plans for approval to the applicant, the Building Authority ('the Authority'). The plans were for a residential building on a piece of land situated in what is known as Stage 8 of the Mei Foo Sun Chuen Development. The piece of land is described as the Remaining Portion and Section B of New Kowloon Marine Lot No.25 ('the site').

4. A brief description of the site is necessary :

(a) It is essentially square in shape.

(b) Its southern boundary runs adjacent to the Lai Chi Kok Park, an area set aside as a public pleasure ground in terms of s.106 of the Public Health and Municipal Services Ordinance, Cap.132.

(c) Its other three boundaries are adjacent to the residential blocks of Stage 8 of the Mei Foo Sun Chuen Development.

(d) At one time the major part of the site was occupied by a liquid petroleum gas plant ('the LPG plant') which has now been demolished. The LPG plant, being essentially square-shaped itself, lay at the centre of the site, reaching up to and abutting its northern boundary. It was surrounded by a protective wall.

(e) That part of the site not taken up by the LPG plant and its protective wall was left open with no boundary demarcation, being paved in a manner indistinguishable from the paving used to cover the public areas and walkways around the neighbouring residential blocks. Physically therefore the 'paved areas' of the site, as I will call them, appear to be part and parcel of the surrounding public areas.

(f) Since the demolition of the LPG plant and its protective wall the ground on which it stood has been left bare, demarcated by what is called either a chain-link or wire-mesh fence. The paved areas outside of the fence have remain untouched.

(g) On the western side of the site there is a private street called Broadway. It runs along the western boundary from north to south. It is open to vehicular traffic although it is a 'dead end' street, coming to an end when, adjacent to the site's southern boundary, it too meets the Lai Chi Kok Park.

(h) The paved area on the western side of the site extends out to meet the street and has been described as 'overlapping' it. The 'overlapping portion' is contained in Section B of the site. It consists of a thin strip of paved land (some 1.85m in width) running from north to south along the length of the site's western boundary.

5. The plans submitted by the developer to the authority were, for the purposes of this judgment, distinguished by two features, these two features defining the issues in contention in this judicial review. The first distinguishing feature concerned the method of calculating site area. The second distinguishing feature concerned the manner of classifying the site in terms of the Regulations, whether as a Class A, B or C site.

6. As to calculation of the site area, this was determined to be some 1,354m2. This calculation was arrived at by including Section B of the site, the narrow strip of paved area on the western boundary of the site 'overlapping' the private street.

7. As to classification of the site in terms of the Regulations, the developer classified it as a Class C site. A Class C site enjoys a higher percentage site coverage than a Class A or Class B site.

8. In respect of site classification, in terms of Reg.2(1) of the Regulations, a Class C site is defined as a 'corner site that abuts on 3 streets none of which is less than 4.5m wide'. This is further qualified by Reg.2(2) which states that :

"a corner site shall not be regarded as abutting on 3 streets unless at least 60 per centum of the boundary of the site abuts on the streets."

9. In the plans, the developer asserted that one of the three 'streets' required by Reg.2(2) abutted the southern boundary of the site. This 'street' was constituted by a paved route within Lai Chi Kok Park, a route built and maintained for the purpose of 'emergency vehicular access'. This 'emergency vehicular access' route has been described in accordance with its acronym of EVA.

10. By letter dated 12 December 2000, the Authority disapproved the developer's plans. In respect of the two distinguishing features of the plans to which I have referred, its reasons for disapproval were as follows :

(a) In respect of calculation of the site area, the Authority was of the view that the developer had failed to take into account the restriction contained in Reg.23(2)(a) of the Regulations to the effect that, in calculating site area, no account is to be taken of any 'street' that lies within the site. The Authority asserted that the paved area on the western side of the site that overlapped the private street called Broadway the narrow strip that I have described as Section B - was a 'street' in terms of the Regulations and should therefore have been excluded form the area calculation.

(b) In respect of the classification of the site as a Class C site, the authority was of the view that no account should have been taken of the EVA on the site's southern boundary as this did not constitute a 'street' within the meaning of the legislation or, if that was not correct, it did not abut the southern boundary of the site.

11. Pursuant to s.44(1) of the Buildings Ordinance, Cap.123, the developer appealed the decision of the Authority to disapprove the plans.

12. On 9 May 2002, the respondent, the Appeal Tribunal, delivered its determination. The determination was unanimous. The Appeal Tribunal found :

(a) That, for the purposes of Reg.23(2)(a) of the Regulations, Section B of the site (the narrow strip on the western side 'overlapping' Broadway) did not constitute any part of a 'street' and accordingly the calculation of the site area had been accurate.

(b) That on the southern boundary of the site the 'emergency vehicular access' route the EVA which lay inside the Lai Chi Kok Park was a 'street' for the purposes of Reg.2(1) and (2) of the Regulations and did abut the site. Accordingly, the site met the requirements for classification as a Class C site.

13. It is these determinations of the Appeal Tribunal that the Authority now seeks to set aside. By way of general relief, the Authority seeks an order of certiorari to quash the full determination of the Appeal Tribunal. In addition, it seeks two declarations as to law :

(a) That Section B of the site, 'overlapping' Broadway, is a 'street' or 'part of a street' for the purposes of the Buildings Ordinance and the Regulations.

(b) That the EVA on the southern boundary of the site does not constitute a street because it is not 4.5m in width and/or, even if found to be a 'street' for the purposes of the Buildings Ordinance and the Regulations, does not abut the southern boundary of the site.

14. Although not a cited party in these proceedings, the developer (pursuant to O.53, r.5(3) of the Rules of the High Court) is a directly affected party. As such, it was served with the relevant papers in these proceedings and chose to be represented at the hearing. In accordance with practice, the Appeal Tribunal itself chose not to be represented.

Third party rights over the paved areas of the site

15. During the course of the hearing before the Appeal Tribunal it was common ground that Section B of the site the narrow strip on the western boundary has the physical appearance of a 'street' for the purposes of the broad statutory definition. It was further common ground that the public have been free to come and go over Section B without restriction. However, it was conceded by the Authority that no legally enforceable right of way or right of passage over that area of the site (or indeed any of the paved area of the site) was vested in the public or any third parties. During the course of the hearing, counsel for the Authority stated the concession in plain terms :

" I hope I have made that clear both this morning and in my submissions. Certainly we do not purpose to demonstrate that there is any right of way, legal right of way, over the thoroughfares which are those parts of the thoroughfares which are on the appellants [the developer's] land."

16. In its determination, the Appeal Tribunal recorded the concession. It did so on page 2 in the following terms :

" Between the chain link fence ... and the boundaries ... are paving stones which, in pattern and design, are indistinguishable from the paving stones surrounding the residential blocks. The entire paved area (including that which falls within the area of the Site) is used as pedestrian walkways albeit that it is common ground that there are no third party rights of way in respect of the paved area falling within the Site." [my emphasis]

At page 11, the following is recorded :

"It is the Appellant's case that the area of land in questions is within its 'control' because there are no third party rights of way over it. On the other hand, whilst the Building Authority concedes that there are no third party rights of way over the land ..."

17. Mr Robert Tang SC, leading counsel for the developer, contended that this absence of third party rights is critical in determining whether Section B of the site does or does not constitute a 'street' for the purposes of Reg.23(2)(a) of the Regulations. Mr Tang submitted that the fact that an area within a site has the physical appearance of a 'street' and that the public uses it as such is not sufficient. There must in addition be some third party right of way over that area. If the owner of the site may at any time block off the area to the public or build upon it, in short if he has exclusive control over it, then it cannot constitute a 'street' for the purposes of Reg.23(2)(a).

Calculation of site area : what does or does not constitute a 'street'

18. Reg.23(2)(a) of the Regulations directs that in calculating the area of a site for the purpose of building upon it

"no account shall be taken of any part of any street or service lane."

Calculation of the site area must therefore be net of the area of any 'street' (or part of it) that lies within the site boundary.

19. The definition of a 'street' in the Ordinance includes the whole or any part of any alley, lane, footpath or passage, all of which, it was contended by Ms Li SC, leading counsel for the Authority, would describe the paved area contained within Section B of the site. In addition, a 'street', as defined in the Regulations, includes any footpath or private street. Broadway, it was contended, is manifestly a private street and the paved area contained within Section B has become and remains part of that street. This, it was submitted by Ms Li, must be sufficient to meet the statutory definition of a 'street' for the purposes of Reg.23(2)(a). It was Ms Li's submission that there is nothing in the statutory definition from which it may be implied that what is physically a 'street' and what is used by the public as a 'street' is nevertheless not a 'street' unless there exists some third party right of way over it imposed by legislation, dedicated, vested or registered in some manner and thereby enforceable at law.

20. It is clear from the determination of the Appeal Tribunal that, if it held itself able to decide the issue free of the restraints of binding precedent, it would have accepted the submissions made by Ms Li during the hearing before this Court and ruled that Section B was a 'street' for the purposes of Reg.23(2)(a). In this regard, the following is said on page 10 of the determination :

" ... had we taken the view that we were not bound, we would have decided that the fact that the paved area of the Site (i.e the area between the boundaries of the Site and the chain link fence) had all the physical characteristics of a street (and it is common ground that it does) is conclusive in favour of the area in fact being a street within the meaning of the statutory definitions."

The Appeal Tribunal continued by saying :

" ... it is to be noted that the statutory definitions do not make any reference to the question of third party rights. It seems to us therefore that if an area of land has all the physical characteristics of a street then it should, without more, be treated as a street. In such circumstances we cannot, with respect, see the justification for going on to consider the nature of any rights which might or might not have been acquired in relation to the land ..."

21. The Appeal Tribunal, however, finding itself bound by precedent, concluded by saying :

"However, notwithstanding the views which we have expressed in the immediate preceding paragraph, we have, as we have stated, concluded that we are bound by the decision in Widearn [Ex parte Widearn Investments Ltd, unreported, MP 600/1994] and the reasoning behind it. Accordingly, although the paved areas within the Site have all the physical characteristics of a street, the question which we must address in determining whether or not those areas should be excluded from the calculations of site area for the purposes of Regulation 23(2)(a) is whether or not they are within the 'control' of the Appellant [the developer]."

22. Widearn, which the Appeal Tribunal questioned but nevertheless found to be decisive, is a judgment of Mayo J (as he then was). It is a judgment given at first instance and is not therefore binding upon this Court. It is nevertheless persuasive authority, one from which I will only reluctantly dissent if I am satisfied it was clearly wrong. Burrell J has summarised the applicable principles in Building Authority v. Business Rights Ltd [1999] 3 HKC 247 (at 251) :

"It is trite to observe at the outset that this court is not bound by Gall J's decision. However it would be wrong to give an opposing judgment merely because this court held a different opinion. I refer to two short statements which amply clarify the position. Firstly from Denning J, as he then was, in Minister of Pensions v Higham [1948] 2 KB 153, where he says (at 155):

... They [previous decisions] are not absolutely binding on the Superior Court itself or on the courts of co-ordinate jurisdiction but will be followed in the absence of strong reason to the contrary ...

and Lloyd LJ in R v Central Criminal Court, ex p Francis & Francis (a firm) [1988] 2 WLR 627 at 633:

This court is always reluctant not to follow its previous decisions. But if we are persuaded that a previous decision is clearly wrong, we are bound to say so ..."

23. In light of this, the question I must ask myself is whether I am persuaded (as the Appeal Tribunal appears to have been) that Mayo J's decision in Widearn was clearly wrong in law.

24. In submitting on behalf of the developer that Widearn was correctly decided, Mr Tang said that two earlier authorities must first be considered before turning to Widearn. Both are decisions of the Privy Council and both, said Mr Tang, reduce; that is, limit, the broad and literal definition of the word 'street' under Reg.23(2)(a).

25. The first decision to which Mr Tang referred is that of Attorney General v. Cheng Yick Chi and Others [1983] 1 HKC 14. The relevant part of the headnote reads :

" The respondents were owners of several houses on On Hing Terrace and of a piece of land (the unbuilt on land) in front of them. The unbuilt on land formed part of a raised terrace, which was open to the public and was used for passage by pedestrians, but not by vehicles because there were flights of steps at both ends, which led to ordinary public streets, Zetland Street and Wyndham Street. The respondents wished to develop the properties, which included the unbuilt on land, by erecting a single new building on the land on which the several houses now stood, leaving the unbuilt on land as it was. The development plans were not approved by the Building Authority on the grounds, inter alia, that they did not comply with the Building (Planning) Regulations (the Regulations). The respondents took out originating summonses in which they sought four declarations. All four declarations were granted at the first instance and were confirmed by the Court of Appeal with minor amendments. The issues were whether the unbuilt on land formed part of the site which was to be redeveloped, in the sense the word 'site' was used in the Regulations. The second issue was whether the unbuilt on land fell to be regarded as a 'street', for the purposes of the relevant regulations."

[my emphasis]

26. In respect of Reg.23(2), one issue before the Privy Council was how to reconcile paragraphs (a) and (b). Reg.23(2) reads in full :

" 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."

27. Giving the judgment of the court, Lord Fraser said :

" In their Lordships' view, the proper reconciliation of paras (a) and (b) is to be found, as submitted by Mr Morritt for the appellant, by treating para (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.

...

The effect of the construction which in their Lordships' view is correct, is that in determining for the purposes of regs 20, 21 and 22 the area of a site, 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."

28. On the basis of this construction, a 'street', as defined in Reg.23(2)(a), would be an area within a site that has already been dedicated to the public for passage and it would follow that if an area within the site has not yet been dedicated to the public for passage then it cannot within the terms of Reg.23(2)(a) be defined as a 'street'.

29. That some form of third party right of passage must exist was confirmed earlier in the judgment when Lord Fraser said :

" Applying these considerations to the unbuilt on land here, their Lordships are of the opinion that it does not form part of the site in the present development scheme. It has been dedicated to the public for purposes of passage, and it is therefore not available for inclusion by the respondents in the present development." [my emphasis]

30. The second decision to which Mr Tang made reference expands upon the matter of third party rights of passage, citing Lord Fraser's judgment. The decision is that of Hinge Well Co. Ltd v. Attorney General [1988] 1 HKLR 32. The relevant part of the headnote reads :

" Two vacant plots of land which were originally divided by a no longer discernable scavenging lane were owned by the appellant which submitted plans for their development. In such plans the two plots were treated as one and included the whole of the area of the former scavenging lane for the purpose of plot ratio. The Building Authority refused to approve the proposed development on the grounds that ... the proposal infringed the restrictions in the relevant regulations as to site coverage and plot ration.

... The main points before their Lordships were, first, whether the trial judge had been correct in treating the sites as one site; and, secondly, whether the Building Authority had erred in regarding the scavenging lane as a 'street' within regulation 23(2) and so was to be left out of account in computing the area of the site." [my emphasis]

31. In giving the judgment of the court, Lord Oliver said that the service or scavenging lane did not cease to be a 'street' within the statutory definition simply because its physical characteristics had been removed. What determined the matter were subsisting rights of passage invested in third parties, in this instance in adjoining or neighbouring occupiers. While those rights continued to exist the area which had once been the lane was apt to serve exactly the same purpose it had been serving before demolition. A 'street', as defined in Reg.23(2)(a), said Lord Oliver, encompassed areas within a site dedicated to the public for passage and areas over which there were existing private rights of passage in adjoining occupiers.

32. In a long passage (relied upon by Mayo J in Widearn) Lord Oliver set out the reasoning of the Privy Council. The passage (at page 43) reads :

"... there remains the questions whether the area of the former scavenging lane is a 'street'. The fallacy in the appellant's argument, in their Lordships' view, is that it leaves out of account that there are, both as a matter of law and of fact, subsisting rights of passage in adjoining or neighbouring occupiers. It is true that these may at some time in the future be disposed of by arrangement with those entitled to them, but that has not in fact been done. Although, as indicated, the mere existence of these rights is no ground for holding that the site falls to be treated as two separate sites, their impact on the question of the area to be taken into account for density purposes still has to be considered. The philosophy which underlines regulation 23 is effectively concealed by the Delphic obscurity with which the regulation is expressed, but in so far as it is possible to discern the purpose of paragraph (2) it appears to be to exclude from computation for building density purposes such part of the land as cannot be built on in fact, whilst at the same time ensuring that the developer does not suffer a disadvantage by voluntarily precluding future building on such part of the land as he is prepared to dedicate to public use.

It does not, however, follow from the 'On Hing Terrace case' or from the framework of the regulation that the differentiation in regulation 23(2)(a) of a street from a service lane necessarily involves reading 'street' solely in the sense of 'street dedicated to the public'. In their Lordships' view an area of land (not being a service lane) over which there are private rights of passage in an adjoining occupier may nevertheless remain a street within regulation 23(2)(a). The statutory definition includes, for instance, a private footpath or private way and their Lordships can see no reason for treating the area of such a way as not comprehended in the word 'street' where it is used in the regulation. Unless and until the rights of adjoining occupiers are surrendered or extinguished such an area remains as unavailable for building purposes as an area dedicated for passage by the general public. There is no doubt that, prior to demolition of the houses on the site, the scavenging lane was a street within the statutory definition. Equally the existing passages to the east and west were and still are streets or parts of streets.

Their Lordships can see no reason for saying that simply because the physical landmarks which delineated the previously existing street where it passed over the appellant's land have now disappeared that which was plainly a street before has ceased to be such. No doubt if the position were that there was neither any physical delineation of a way on the ground nor any right of any person but the landowner himself to use it the area could no longer be said to be a street in the statutory sense or indeed in any sense. But so long as the rights of passage of the adjoining occupiers subsists the area is apt to serve exactly the same purpose as it was serving before, that is to say, that of providing a communicating link between the passage on the west and that on the east. It continues to be unavailable to be built on and in their Lordships' view it remains a 'street' within the meaning of regulation 23(2)(a) and so has to be left out of account in computing the area of the site of purposes of regulations 20 and 21."

33. Neither judgment of the Privy Council to which I have referred was required to determine whether an area within a site possessing the physical attributes of a 'street' and being used as such was, absent dedication or third party rights of way, still a 'street' for the purposes of Reg.23(2)(a). In respect of this matter, therefore, what may be drawn from the two judgments is, in my view, a question of looking to the correct extension of legal principle and logic.

34. The Appeal Tribunal was of the view that Hinge Well did not detract from a straightforward interpretation of the meaning of 'street' when that 'street' was shown to be physically in existence :

" In Hinge Well, the Privy Council determined that the absence of any physical landmarks delineating the previously existing street was not conclusive and that in these circumstances it was necessary to go on to consider whether or not there were subsisting rights of passage over the area in question. It does not seem to use that it follows from this proposition that, conversely, the presence of landmarks which physically identify an area of land as a street is similarly inconclusive. Had the physical landmarks of the scavenging lane in Hinge Well been discernable i.e had the area of land in question had all the physical characteristics of a street (as in the present case), we see no reason why the Privy Council would have considered it necessary to go on to consider the existence or otherwise of third party rights."

35. However, on behalf of the developer, Mr Tang argued that the decision of the Privy Council in Hinge Well can only be read as meaning that if third party rights of passage exist then the 'street' exists, whether physically intact or not. From this it must follow that if third party rights of passage are extinguished then the 'street', whether physically intact or not, must also cease to be a 'street'. From this it must further follow that if third party rights of passage have never existed then there has never been a 'street' for the purposes of Reg.23(2)(a).

36. In summary, said Mr Tang, the core issue must be the ability of the owner of a site to use the area within the site alleged to be a 'street' as he wishes; that is, without being restricted by any form of third party rights of way. If an area of the site has been dedicated to the public for passage or if third party rights of way exist over that area then the owner is unable to use that part of the site as he wishes. But if he is not so restricted why should he nevertheless be deemed to be unable to use that area of the site as he determines best?

37. In my judgment, there is force in these submissions. What must be remembered is that Reg.23(2) refers to areas within a site. That being so, absent dedication to the public or the existence of third party rights of way, I believe the courts should be slow to interpret the Regulations in such a manner as to nevertheless restrict the owner of a site from utilising his own land when the Regulations are open to an interpretation that is more benign. Courts do not construe statutes (or subsidiary legislation) as depriving a person of his normal rights unless clear language is used. See, for example, Billings v. Reed (1945) K.B.11 per Lord Greene MR at page 15.

38. More importantly, what must be recognised is that the Privy Council in its two decisions imported into the definition of a 'street' under Reg.23(2)(a) the concept of the existence or non-existence of third party rights of way. The concept was imported, so it seems to me, to rationally interpret what Lord Oliver referred to as the 'delphic obscurity' of Reg.23 and also for reasons of equity : why, for example, should a right of passage be extinguished simply because the owner of the land demolishes the physical means of that passage? But whatever the reasons for limiting the broad, literal statutory definition of 'street', the fact remains that, as Mayo J expressed it, 'the question of the exercise of control' was made integral to the matter of interpretation and was made so without any proviso that what was physically quite evidently a street and was being used as such would on that basis alone remain a 'street' for the purposes of Reg.23(2)(a).

39. In Widearn, Mayo J concluded that, for the purposes of Reg.23(2)(a), whether the owner of the site has control over the area said to be 'street', must be a determining factor. In this regard, he said (at page 7) :

" ... it must be the case that the control which is exercisable by a land owner is a relevant factor.

I say this because if the owner is able to exercise control over the area of land in question it would always be open to him to prepare his plan on the basis that the building proposed would in fact be erected on part or all of the said land.

I also believe that if the passage from Lord Oliver's speech (in Hinge Well) which I have earlier referred to is read as a whole it becomes clear that the question of the exercise of control is an integral part of the rationale of the conclusions which were reached in that case."

40. I agree with these conclusions. Certainly, I am unable to find them plainly wrong. I am concerned, however, as Ms Li submitted, that the test of 'control' is potentially imprecise. In my view the test is one that flows directly from the decisions of the Privy Council; namely, that, for the purposes of Reg.23(2)(a), whether there has been dedication of the land to the public or whether third party rights of passage exist over that land must be determinative.

41. In the circumstances, I am satisfied that there are no grounds for setting aside the finding of the Appeal Tribunal that Section B of the site is not a 'street' or 'part of a street' for the purposes of Reg.23(2)(a).

Classification of the site : does the EVA constitute a 'street'?

42. In classifying the site as a Class C site, the developer had to satisfy the requirements of Reg.2(1) of the Regulations which provides :

" In these regulations, unless the context otherwise requires, words and expression have the meaning attributed to them by the Buildings Ordinance (Cap. 123), and -

'Class C site' means a corner site that abuts on 3 streets none of which is less than 4.5m wide."

In order to meet these requirements it was contended by the developer that the EVA on the southern boundary of the site lying within Lai Chi Kok Park :

(a) constituted a 'street' for the purposes of Reg.2(1);

(b) was 4.5m wide; and

(c) abutted the southern boundary of the site.

43. As to the physical lay-out of the southern boundary and the EVA, the Appeal Tribunal described it as follows :

"Within the Site and running along its southern boundary is a masonry wall. Immediately beyond the masonry wall there is a grass verge [about half a metre wide]; immediately beyond the grass verge is a covered drainage channel [also about half a metre wide]; immediately beyond the covered drainage channel is a strip of land [just over half a metre wide] on which there are planted azalea bushes, tress and other plants or vegetation; immediately beyond this strip of land is a paved strip which is described in the various plans which were put before the Tribunal and in signposts in the vicinity as an 'emergency vehicular access' ('the EVA') and immediately beyond the EVA is parkland - part of the Lai Chi Kok Park. The southern boundary of the Site extends to at least the southern edge of the grass verge and perhaps even over part of the covered drainage channel [that is, into the park]."

44. The width of the EVA itself; that is, the paved route, is 3.5m. By itself, it does not attain the minimum width of 4.5m. The developer asserted, however, that the thin strip of land between the northern edge of the EVA and the southern boundary of the site, consisting of what a layman would call a flowerbed, and perhaps a small portion of the drainage channel beyond it, constituted a verge and was therefore part of the 'street', expanding its width to over 4.5m.

45. As to the first of two critical issues; that is, whether the strip that separated the southern boundary of the site from the EVA constituted a verge to the EVA for measuring its width, the Appeal Tribunal took guidance from the findings of Mantell J (as he then was) in Multi-Strategic Investments Ltd v. Attorney General [1984] HKL 178. Mantell J found that it was a matter of fact and degree whether land running alongside a street constituted part of that street, the issues of fact and degree to be determined by observation (visual impression) and knowledge of relevant matters such as present or potential usage.

46. As to the width of the EVA, the Appeal Tribunal concluded :

" The immediate visual impression which we gained of the strip of land to the north of the EVA was that it formed a decorative border to the EVA and indeed serviced the EVA in that erected along the length of the strip of land to the north of the EVA is street lighting the sole purpose of which is to illuminate the EVA. Although it would be possible for pedestrians to use the strip of land as a walkway, clearly this is not its intended use and, indeed use of it as a walkway would inevitably cause damage to the shrubs and plants which would contravene the Pleasure Ground Regulations. All of these factors are relevant and must be weighed in the balance in determining whether or not the strip of land (together with the EVA) should properly be regarded as a 'street'. We have concluded that on balance (and largely as a result of our overall visual impression) that it should. On this basis we are satisfied that the width of the street exceeds 4.5 metres."

47. As to whether the EVA abutted the southern boundary of the site, the Appeal Tribunal came to the following determination :

" We are satisfied that this requirement is satisfied. In our view (again largely based on the visual impression which we gained on our site visit) the covered drainage channel should also be regarded as part of the street comprised by the EVA and the strip of land (albeit that, for measurement purposes, it is not necessary to go so far). However, even if the covered drainage channel was not to be regarded as part of the street, we would take the view that nevertheless there would be abuttal between the Site and the street to the south of its southern boundary on the grounds that the width of the drainage channel is comparatively insignificant (being less than 0.5 metres in width). In this respect we would observe that at first instance in Mightystream [Attorney General v. Mightystream Ltd [1983] 1 WLR 980], Fuad J suggested that if the feature which stood between one of the streets and the site in question had been a 'mere gulley' instead of a 'nullah' which the learned judge described as a 'very substantial natural feature' it might have been properly disregarded which suggests that the learned judge did not consider that precise contiguity was required."

48. In respect of the fundamental issue of whether the EVA was a 'street', Ms Li, for the Authority, submitted that the Appeal Tribunal had been inconsistent in its interpretation of the word. Her submission was to this effect. If, for the purposes of Reg.23(2)(a), a 'street' was required to be defined by the existence or non-existence of third party rights of way then, for the purposes of Reg.2(1), it must be defined in the same manner. But the Appeal Tribunal, she said, failed to consider what, if any, third party rights exist over the EVA. It looked solely to physical characteristics and use. As it is, said Ms Li, the Director of Leisure and Cultural Services controls the park, including the EVA, and can at any time move the EVA to another location in the park. The EVA has not been formally vested in the public nor do third party rights of way exist in respect of the EVA. On that basis, said Ms Li, the EVA could not be defined as a 'street' for the purposes of the Regulations.

49. On the matter of the EVA, I disagree. Lai Chi Kok Park is a public not a private park. In terms of s.106 of the Public Health and Municipal Services Ordinance, Cap.132, it has been set aside for use as a 'public pleasure ground'. The designated authority under the Ordinance, the Director of Leisure and Cultural Services, has control of the park but he exercises that control for the public and in the public interest. What must be remembered, as Mr Tang emphasised, is that the EVA, as its name suggests, is more than just a scenic pathway through the park. It was built to serve certain of the residential blocks in Mei Foo Sun Chuen by providing emergency vehicular access. It speaks for itself that the EVA must therefore, in the interests of the residents of those blocks, run as close to the boundary of the park as possible. The Director may not arbitrarily move the EVA; that would constitute a public law wrong. He may, of course, in the exercise of his powers move or divert the EVA if it is in the public interest to do so. But that power cannot be equated with the power of the owner of private land in respect of a route being used for passage within the boundary of his land that attracts no third party right of way. The owner of the private land is not answerable to the public in respect of that route; the Director, however, is answerable to the public as to how the manages the EVA. To that extent, third party rights most certainly exist over the EVA.

50. But what of the broader question? Should a 'street' for all purposes under the Regulations be determined by the existence or non-existence of third party rights?

51. It seems to me that where possible the manner of determination of a 'street' should remain consistent within the same set of regulations. I accept, however, that context may often be determinative and may result in different considerations being applied in different contexts within the same regulations. Certainly that is what Mr Tang, for the developer, contended. A 'street' for the purposes of Reg.2(1) lay outside of a site while a 'street' for the purposes of Reg.23(2)(a) fell within a site. From that important distinction, he said, different means of determination were logical and were in accordance with the observation of Mayo J (as he then was) in Beaux Estates Ltd v. Attorney General [1983] 1 HKL 317; namely, that the intention of the legislature was not restrictive in relation to the development of property.

52. Mr Tang used Beaux Estates to support his contention that, under s.2 of the Regulations, a 'street' is to be determined without consideration of dedication or third party rights; that is, solely by physical manifestation and use. In that case, Mayo J (at p.322) said the following :

" Mr Kaplan also drew attention to the fact that the road was simply an access road to the Royal Observatory and had not in any way been dedicated to the public. Again, I do not think that this takes us much further. I am satisfied that the road is not an 'access road' within the definition contained in the Buildings Ordinance as the land is still vested in the Crown. Nothing turns upon whether the road has been dedicated."

[my emphasis]

53. Having regard to the authorities cited in this judgment, it seems to me that Mr Tang must be correct in his submissions and that two methods of determination of what is or is not a 'street' have arisen within the Regulations. In my judgment, the two Privy Council decisions, focused as they were on a rational and equitable interpretation of Reg.23(2), have led to the following result :

(a) That in determining a 'street' for the purposes of Reg.23(2), third party rights must be determinative;

(b) However, in determining a 'street' for other purposes under the Regulations, third party rights are not determinative, although they may perhaps be relevant, and the standard method of determination applies; that is, by looking to physical characteristics, use and any other factor that may, in the circumstances of the case, be appropriate.

54. As to whether the EVA as a 'street' abutted the southern boundary of the site, Ms Li submitted that the Appeal Tribunal made a fundamental conceptual error - as she put it, by looking through the wrong end of the telescope by failing to consider whether in reality the southern boundary of the site abutted the Lai Chi Kok Park rather than the EVA. I am unable to agree. In my view, the lesser (the EVA) is enclosed within the greater (the park) and to that end therefore, if the Appeal Tribunal was correct, the southern boundary, in abutting the EVA also abutted the park.

55. In my judgment, nothing turns on the fact that the EVA falls within a public park. I was referred to no statutory or regulatory term of exclusion in that regard. If the EVA was a 'street' of the necessary minimum width for the purpose of the Reg.2(1) and if it abutted the southern boundary of the site that, in my view, determined the matter. No statutory obligation was placed on the Appeal Tribunal to look to broader geographical issues.

56. In determining that the EVA abutted the southern boundary of the site, the Appeal Tribunal found as a fact that not only should the 'decorative border' be counted as part of the 'street' but that the drainage channel immediately beyond it should also be counted. However, the Appeal Tribunal went on to say that if it was wrong in respect of the drainage channel forming part of the street nevertheless there would still be abuttal. The Tribunal gave its reasons for coming to this conclusion, founding those reasons very much on the judgment of Fuad J in Attorney General v. Mightystream Ltd (supra, para.47). Ms Li submitted that the Appeal Tribunal was wrong in law in this regard and that the word 'abut' should be given its legal meaning; namely : of being contiguous, adjoining, touching.

57. I see no purpose in the present case in having to determine that issue, more especially as it was not fully argued. I pause only to say that 'abut' does not always import actual contiguity. For my part, however, I can find no good ground for setting aside the factual finding of the Appeal Tribunal that the drainage channel does form part of the 'street'. That being the case, the question of whether contiguity means actual contact or not is redundant.

58. Was the Appeal Tribunal in looking to fact and degree, so obviously wrong in determining the width of the EVA as a 'street' and its abutment with the site that no reasonable tribunal could have come to the same determination? In my view, the answer must be no. Indeed, the determination by looking at photographs and the like, appears entirely reasonable. This Court is not an appellate court. It does not evaluate the strengths and weaknesses of the evidence. The assessment of relevant facts and the weighing of relevant considerations are a matter for the Appeal Tribunal, more especially as the Tribunal is a specialist professional body, chaired in this case by a legally qualified chairman with an engineer and an architect as members. Only on the basis of Wednesbury unreasonableness may the Tribunal's determination be set aside if it is found otherwise to be correct in law. But, as I have said, there are no grounds for suggesting that the factual findings were unreasonable in the public law sense.

59. In the circumstances, I am satisfied that there are no grounds for setting aside the finding of the Appeal Tribunal that (1) the EVA constituted a 'street' and that (2) it was of the required width and (3) that it abutted the southern boundary of the site.

Conclusion

60. For the reasons given in the body of this judgment, the applications made by the Authority must all be dismissed.

61. I see no reason why the developer should not be entitled to its costs and there will be an order nisi to that effect, the order to be made final 30 days after the date of handing down this judgment unless application is made earlier to argue the matter.