CHINA FIELD LTD v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 2/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2 OF 2007

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AND

HCAL 3/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3 OF 2007

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(Heard together)

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J U D G M E N T

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Introduction:

1.  These two applications for Judicial Review concern a residential area commonly known as Wang Fung Terrace, in Tai Hang, Hong Kong.  There are a total of 17 residential buildings in Wang Fung terrace.

2.  Wang Fung Terrace is situated on elevated, elongated, finger of land, surrounded on the west and north sides by Tai Hang Road, on the east side by a steep bank of undeveloped Government land, and on the south side, abutting, but not having access to, other residential land.

3.  The applications concern two properties, 11 & 12 Wang Fung Terrace, in respect of which China Field has made an application to the Building Authority for redevelopment, and 4 & 4A-D Wang Fung Terrace, in respect of which Sun Honest has made an application to the Building Authority for redevelopment.

Access to Wang Fung Terrace:

4.  Access to Wang Fung Terrace is gained by way of a narrow road, on the west side, joining Tai Hang Road.  This road turns immediately left, through 90°, at its junction with Tai Hang Road, rises in a northerly direction quickly to a 180° hairpin turn, then passing in a southerly direction along the west side of the finger of land.  From this roadway access is gained to the residential properties.  Although universally known as Wang Fung Terrace, this road is described on the plans as Wang Fung Road.

5.  With the exception of the property at 1 Wang Fung Terrace, at the north end of the finger of land, the remaining properties are essentially in two rows, lying roughly north and south.  The plans show Wang Fung Terrace as a lane, also running north-south, between the two rows.  Those rows primarily consist of first, Nos. 2, 4 and 5, a row of buildings on the west side of Wang Fung Terrace, which abut Wang Fung Road, and second, Nos. 3-3E and 4A-D, a row of buildings on the east side of Wang Fung Terrace, adjoining the steep undeveloped bank on their eastern side. 

6.  In this judgment I shall refer to the access road to Tai Hang Road as Wang Fung Road, and the lane between the two rows of buildings as Wang Fung Terrace.

7.  Access to the properties in the west row can be gained directly from Wang Fung Road.  Access to the properties in the east row is gained by way of various access ways at right angles to Wang Fung Road, between the properties fronting Wang Fung Road, through to Wang Fung Terrace.  From Wang Fung Terrace, direct access is gained to the properties in the east row.

8.  With the exception of one building, all of the properties in Wang Fung Terrace are relatively low rise, none being more than 5 storeys high.  The one exception is a block, 6 Wang Fung Terrace, directly adjacent to Wang Fung Road, in the west row of buildings, that is 16 storeys high.  At the time the applications for redevelopment were made to the Building Authority by the applicants, 6 Wang Fung Terrace was a 3 storey building.  The site has been subsequently redeveloped.

The proposed developments:

9.  Sun Honest wishes to redevelop 4 and 4 A-D Wang Fung Terrace by constructing a new 40 storey building.  These two lots form an “L” shaped block, with access directly on to Wang Fung Road. 

10.  Sun Honest submitted building plans to the Building Authority on 27 August 2001. 

11.  China Field wishes to redevelop 11 & 12 Wang Fung Terrace by constructing two new 39 storey buildings.  At its north-western corner, 11 Wang Fung Terrace abuts the end of Wang Fung Road, and has direct access thereby to Wang Fung Road. No 12 Wang Fung Terrace lies directly east of No. 11, and has access to Wang Fung Road along the northern boundary of No. 12.

12.  China Field submitted building plans to the Building Authority on 5 September 2001.

13.  At the time both applications were made the Outline Zoning Plan, (OZP), in force in this area contained no restrictions in respect of building height.  The proposed developments, respectively 40 and 39 stories, were in accordance with the OZP.  Subsequently however the OZP has been changed, and buildings of the size proposed by the applicants would not now be permitted in Wang Fung Terrace.

The progress of the applications:

14.  On 26 October 2001, the Building Authority informed Sun Honest that its application had been disapproved.  The Building Authority disapproved the application on four grounds which may be summarised as follows:

(i)	disapproval under s 16(1)(g) Buildings Ordinance; the carrying out of the proposed works shown in the plans would result in a building differing in height from the buildings in the immediate neighbourhood; (the immediate neighbourhood issue);
(ii)	disapproval under s 16(1)(h) Buildings Ordinance; the proposed building works involved the construction, formation or laying out of a means of access to or from Tai Hang Road which was likely to be dangerous/prejudicial to the safety and convenience to traffic using the street or which might be expected to use the same; (the Tai Hang Road access issue);
(iii)	disapproval under s 16(1)(d) Buildings Ordinance; the building plans submitted contravened Building (Planning) Regulation 23(2)(a) by exceeding the plot ratio, after deducting the area of land known as “gridline 1” from the available land; (the right-of-way issue);
(iv)	disapproval under s 16(1)(d) and (i) Buildings Ordinance; the building plans contravened certain building regulations; (the minor amendments issue).

15.  By way of explanation of ground (iii), it is necessary to understand that the Building Authority took the view that gridline 1, a strip of land on the north side of four Wang Fung Terrace, together with an adjacent strip of land forming part of lot 2 Wang Fung Terrace, known as gridline 2, comprised a right of way, acquired by prescription, which gave access to the buildings at 3-3E and 4A-D Wang Fung Terrace.  Consequently, in the view of the Building Authority, the area of land comprised in gridline 1, being subject to a right-of-way, was not available for inclusion in the calculation of the height of the building when applying the plot ratio.

16.  On 2 November 2001, the Building Authority informed China Field that its application had been disapproved.  The Building Authority disapproved the application on three grounds:

(i)	disapproval under s 16(1)(g) Buildings Ordinance; the carrying out of the proposed works shown in the plans would result in a building differing in height from the buildings in the immediate neighbourhood; (the immediate neighbourhood issue);
(ii)	disapproval under s 16(1)(h) Buildings Ordinance; the proposed building works involved the construction, formation or laying out of a means of access to or from Tai Hang Road which was likely to be dangerous/prejudicial to the safety and convenience to traffic using the street or which might be expected to use the same; (the Tai Hang Road access issue);
(iii)	disapproval under s 16(1)(d) and (i) Buildings Ordinance; the building plans contravened certain building regulations; (the minor amendments issue).

17.  It will be seen that the three grounds for refusing Sun Honest’s application are identical to the first three grounds for refusing China Field’s application.

The Appeals to the Tribunal:

18.  Both Sun Honest and China Field appealed to the Appeal Tribunal (Buildings), (the Tribunal). 

19.  Sun Honest’s appeal was heard, and dismissed on 26 February 2003.  Sun Honest brought judicial review proceedings in respect of that decision, which were dismissed by the Court of First Instance, but allowed by the Court of Appeal, resulting in the matter being remitted to a differently constituted Tribunal to be heard and determined de novo.

20.  On 18 June 2003, China Field’s appeal hearing was aborted, following an application that the chairman of the Tribunal should recuse himself on the ground of apparent bias.

21.  Both appeals were heard together by a newly constituted Tribunal.  The decision of the Tribunal was delivered on 29 November 2006.

22.  In the appeal by Sun Honest, the developer succeeded on the immediate neighbourhood issue and the minor amendments issue, but failed on the right-of-way issue, and on the Tai Hang Road access issue.  Consequently the appeal failed, and the proposed redevelopment is unable to proceed.

23.  In the appeal by China Field, the developer succeeded on the immediate neighbourhood issue and the minor amendments issue, but failed on the Tai Hang Road access issue.  Again, the appeal consequently failed, and the proposed redevelopment is unable to proceed.  The right-of-way issue did not form part of the China Field appeal.

The judicial review:

24.  Both developers now seek judicial review of the decision of the Tribunal, both asserting that the Tribunal was wrong in law in relying upon s 16(1)(h), in holding that the place at which the means of access opens onto the street was dangerous all likely to be dangerous; (the Tai Hang Road access issue).

25.  In addition, Sun Honest seek judicial review of the decision, asserting that the tribunal was wrong in law in holding that gridline 1 constituted a right-of-way, which ought to be deducted from the area of land available in the application of the plot ratio; (the right-of-way issue).

26.  The applicants rely upon two further grounds to challenge the decision of the Tribunal. 

27.  First, it is argued that rather than decline the application on any basis relating to the standard of the Junction of Wang Fung Street with Tai Hang Road, both the Building Authority and the Tribunal should have acted consistently with a decision of the Building Authority Conference in relation to 6 Wang Fung Terrace 1998.  The effect of this decision was to impose an obligation on the developer of 6 Wang Fung Terrace, and progressively on all future developments in the Wang Fung Terrace area, to contribute to the reconstruction of Wang Fung Street and the junction at Tai Hang Road.  It was intended that the work would be done at some time in the future when all of Tai Hang Road had been redeveloped.  I shall call this issue the “duty to act consistently issue”.

28.  Next, it is contended that the Building Authority Conference did not in fact rely upon the junction of Tai Hang Road and Wang Fung Street as a basis for rejecting the application, and accordingly it was not open to the Tribunal to place reliance upon the situation at the Junction.  The submission made was that in fact the Building Authority conference relied upon the condition of the hairpin bend.  I shall call this issue the “Junction reliance issue”.

The Tai Hang Road access issue:

29.  This issue turns upon an interpretation of the provisions of s16(1)(h) Buildings Ordinance, which provides:

“	The Building Authority may refuse to give its approval of any plans of building works where-
	(h)	the building works consist of, or any part thereof involves, the construction, formation or laying out of any means of access or other opening, not being a street or access road, to or from any Street, and the place at or manner in which such means of access or other opening opens onto the street is, in his opinion, such as to be dangerous or likely to be dangerous or prejudicial to the safety or convenience of traffic using the street, or which may be expected to use the same.;”

30.  Both the Building Authority and the Tribunal determined that the junction where Wang Fung Street joins Tai Hang Road was likely to be dangerous. The traffic engineers for both the applicants and the Building Authority were in agreement on this issue.  That is a factual decision which is not at issue in these proceedings. 

31.  The issue between the parties is the precise place which, in the present factual circumstances, constitutes the “means of access or other opening” from the subject sites.  The Applicants contend that that place is the point on Wang Fung Street where immediate vehicular access will be gained to Wang Fung Street from either of the subject lots.  There was no evidence before the Tribunal that that point was in any way dangerous.  It was however, the view of the Building Authority, supported by the Tribunal, that the relevant place was the junction where Wang Fung Street joins Tai Hang Road.

32.  If the Applicants are correct, then the Tribunal was wrong to have regard to safety issues surrounding the junction where Wang Fung Street joins Tai Hang Road.  In that circumstance there will be nothing in the evidence to substantiate the Tribunal’s finding that the “means of access or other opening ” was in any way dangerous, or likely to be dangerous, or prejudicial to the safety or convenience of traffic, and the disapproval of the plans on this basis could not stand.

33.  In Circumwealth Co Ltd v AG [1993] 2 HKLR 193, Mayo J, (as he then was), had cause to consider this issue.  The headnote to the report accurately sets out the basis of the decision:

“

When considering the proposed plan in accordance with s 16(1)(h), the traffic condition at the point of access to the street must be dealt with.  While it would be excessive to consider traffic problems in an overall context, the Appeal Tribunal’s concern had been to an area which was sufficiently proximate to the places of access to be within the scope of s 16(1)(h).”

34.  Mr Chan took me carefully through the judgment in Circumwealth to demonstrate that the distance between the place where vehicles left the proposed building to the boundary of the land was approximately 11 m, and the distance from there to the entrance to the road was a further 10 m.  It was, Mr Chan argued, on the basis of a total distance of not more than 21 m that Mayo J. was able to find that the area of concern was sufficiently proximate to the “place” of “access” to be within the scope of the matters properly canvassed by the subsection: see p 197.

35.  Mr Chan then said that the evidence in the present case established that the distance from the opening to Wang Fung Street at No. 4, to the junction of Wang Fung Street and Tai Hang Road was approximately 205 m, and from the opening at No. 11 approximately 300 m.  He submitted that no reasonable person could say, having regard to those distances, that the openings were sufficiently proximate to the junction.

36.  The old subdivisional plans contained in the evidence demonstrate clearly that from the southernmost end of Wang Fung Street, to approximately halfway through the hairpin bend, it was intended that there should be a legal right-of-way, with the various owners of land in the Wang Fung Terrace area also owning these strips of land comprising the right of way. 

37.  It may reasonably be expected that the legal documents creating such a right-of-way would impose the expense of maintenance of the right of way on the various landholders in the Wang Fung Terrace area generally.  Although marked on the plans it appears that no formal legal steps have been taken to create the right-of-way.  The remainder of Wang Fung Street from the hairpin bend to the junction of Wang Fung Street and Tai Hang Road is on Government land.

38.  The parties have not been able to discover whether the fact that no formal legal steps have been taken to create the right-of-way is a matter of a deliberate decision, or a failure by solicitors in the past, which failure has simply gone unnoticed until examination has been given to the matter of the depth required in this case.

39.  On the basis that the argument for the Tribunal might be based upon the “place” of “access” being at the point on the hairpin bend where private land joins Government land, Mr Chan submitted that the distance to the junction, being some 75 m, was equally remote that it could not be argued to be “sufficiently proximate”, as that expression was used by Mayo J.  Mr Mok however did not rely upon that point.

40.  The practical effect of Mr Chan’s submission is that neither the Building Authority nor the Appeal Tribunal have any statutory power to act against a clear danger to the safety or convenience of traffic using Tai Hang Road, at its Junction with Wang Fung Street.  Such a principle would apply to all locations where a similar situation occurs, that is one where a substandard access road links with a public street.  The interpretation sought by Mr Chan is restrictive and would prevent both the Building Authority and the Tribunal from restricting development where extensive development would lead to an unsafe traffic impact at a junction where an access road to the development joins a public street.

41.  Plainly, neither the Building Authority nor the Tribunal is empowered to have regard to traffic consequences beyond the point where traffic joins the road system: see Circumwealth, 196, at 20-25.  It would not be open to the Building Authority, or the Tribunal, for example, to take into account the impact of the additional traffic generated by the proposed developments on Wang Fung Street, at the point on the Tai Hang Road where the substantial new development known as “The Legend”, which will contribute a very substantial amount of traffic to Tai Hang Road, gains its access to Tai Hang Road.  Nor would it be open to either authority to take into account the traffic impact of a development at Wang Fung Street at the round-a-bout at the intersection of Tai Hang Road and Tai Tak Tseung Road.

42.  But the very restrictive interpretation sought by Mr Chan virtually strips both the Building Authority and Tribunal of the power given by s 16(1)(h), which plainly enables them to examine off-site traffic impact created by a proposed development.  I am satisfied that when he used the expression “sufficiently proximate” Mayo J. did not intend to refer to a precise distances measured in metres, but to whether or not the point at which there was an off-site traffic impact, had a direct causal link with the proposed building.  Irrespective of the physical distance between the proposed development and the relevant junction, if there is a direct causal link to the proposed building, the off-site traffic impact is “sufficiently proximate”.

43.  Mr Mok argued, and he must be right, that the geographical layout of sites, and their links to the public street system are infinitely variable.  Consequently, that infinite variation that means that it is simply impossible to lay down a proximity rule that is based upon the distance alone.

44.  Further, a distance argument simply cannot be properly quantified.  It would be impossible for a court to say that while 21 m was sufficiently proximate, 25 m or 35 m was not sufficiently proximate.  I accept Mr Mok’s proposition that to test the point, if one assumes that, for a particular development, No. 1 Wang Fung Terrace satisfied the proximity test for adverse traffic impact at the junction, there could be no policy reason why, for the same development at Nos. 11 & 12, which would create the same traffic impact at the junction, should fail the proximity test simply because they were further away in distance. 

45.  In every case it will be a matter of overall impression having regard to the whole of the circumstances whether the area of concern is sufficiently proximate to the “place” of “access” to be within the scope of the matters properly canvassed by the subsection.  In particular the appropriate authority will have regard to whether there is a direct causal connection resulting in an unsafe increase in traffic volume at the appropriate junction.  Where traffic from some other source is added to the traffic from a particular development then it is less likely that a direct causal connection can be found.

46.  I note that the restrictive view sought by Mr Chan was rejected by Chung J. in Sun Honest Development Ltd v Appeal Tribunal (Building) [2004] 3 HKC 652.

47.  For the foregoing reasons I am satisfied that the Tribunal was lawfully entitled to have regard to the factual circumstances it found as to the traffic circumstance at the junction of Wang Fung Street and Tai Hang Road and to find that that junction was sufficiently proximate to the proposed developments to be taken into account. 

48.  This ground upon which the judicial review is sought must fail.

The right of way issue:

49.  The right of way issue relates to the question as to whether anyone enjoyed a right of way over gridline 1, on Sun Honest’s land, thereby reducing the amount of available land to which the plot ratio could be applied.

50.  The submission for the applicant is twofold. 

51.  First, it is argued that neither the Building Authority nor the Tribunal had jurisdiction to make a determination whether or not there was a right-of-way. 

52.  Second it is argued that in holding that there was a right-of-way by prescription, the Tribunal was wrong in law.  In order to properly understand these arguments it is necessary to first examine the precise factual situation.

Access to 4A-D Wang Fung Terrace:

53.  I have described as the layout of No. 2, 3, 4, & 4A-D Wang Fung Street in paragraphs 4-5 above.  In simple terms the four properties may be described as each forming one quarter of a square, divided equally, side to side and top to bottom.  Nos. 2 & 4 form the top and bottom respectively, of the left hand, side of the square, and 3 & 4A-D, the top and bottom, respectively of the right hand side.

54.  On the common boundary, laying west to east, between 2 & 3 Wang Fung Terrace to the north, and 4 & 4A-D Wang Fung Terrace to the south, are 2 narrow strips of land.  These two strips run east and west for the full width of the common boundary between 2 & 4 Wang Fung Terrace, and for about one third of the width of the common boundary between 3 & 4A-D Wang Fung Terrace.

55.  Throughout these proceedings these strips of land have been designated as “gridline 1”, being the strip on 2 & 3 Wang Fung Terrace, and “gridline 2”, being the strip on 4 and 4A-D Wang Fung Terrace.  Together, the two gridlines form a lane by which physical access for vehicles and pedestrians to 3 & 4A-D Wang Fung Terrace may be gained.

56.  A great deal of research into the title documents has been undertaken by the surveyors in this matter.  No reference at all is to be found in any of the title documents to the establishment of a formal, legal grant of a right-of-way over the gridlines.  Just as with the lack of a formal establishment of the right of way comprising Wang Fung Street, it is not known whether the lack of formal establishment of a right-of-way over the gridlines is deliberate, or by neglect or default.

57.  However on the plans dating back to May 1958, (plans relating to a building permit for the building now on 4A-D Wang Fung Terrace), the area comprising the two gridlines can be seen designated as a right-of-way.  While there may be other physical means of access to either 3 or 4A-D Wang Fung Terrace, there are numerous plans on which the gridlines are described as a right-of-way giving access to those properties.  That said, it is clear that there has been no legal creation of a right of way upon the gridlines.

58.  At the present time, and for a long time past, at least back to 1958, the gridlines have, for practical purposes, being used to gain access to 3 and 4A-D Wang Fung Terrace.  In short the gridlines have been used as a right-of-way, whether legally established or not, for over 45 years, at the time the development plans now under litigation were put before the Building Authority. 

59.  Mr Chan accepted that was the case, however that acceptance was made with the caveat that there is an independent means of access by vehicles to 4A-D Wang Fung Terrace, to the south of 4 Wang Fung Terrace.

Jurisdiction to find a right-of-way:

60.  Mr Chan’s primary submission is that neither the Building Authority nor the Tribunal were vested with the jurisdiction to determine that the gridlines form a legal right-of-way.  Neither, Mr Chan said, could this court find that there was a legal right-of-way. 

61.  The submission arises from the fact that no person or entity had come forward to claim that they had a right-of-way over the gridline.  Mr Chan based his argument upon a passage from the judgement of Riberio JA (as he then was), in Charter View Development Ltd v Golden Rich Enterprise Ltd [2000] 2 HKC 77 at 82-3 to the effect that the court will not entertain applications for declarations in relations to issues which are in a material sense merely hypothetical or academic.  That is undoubtedly right, but with respect to Mr Chan, it is not a principle that is applicable in the present situation.

62.  The Building Authority is required by law to determine whether or not the plans submitted comply with appropriate legislation.  This role includes a determination as to whether or not a plot ratio fixed by an OZP is appropriately met.  As part of that exercise of the Building Authority must determine the appropriate size of the relevant land in question when applying the plot ratio.  If the Building Authority comes to the conclusion that part of the land is subject to a right-of-way, then it must deduct that portion of the land in its calculations.  But to do so is not in any way declaratory of the rights of any person who might seek to take advantage of the right-of-way.  It is merely a decision of the Building Authority as to the available land held by an applicant.

63.  Mr Chan suggested that as the Building Authority had not corresponded with the owners of either 2 or 3 Wang Fung Street in respect of its intention to find that there was a right-of-way, it could not be said that either of them made any claim for a right-of-way. 

64.  With respect to Mr Chan the flaw in his argument is that neither the Building Authority or the Appeal Tribunal have declared that the owners of 2 & 3 Wang Fung Street have a legal and proprietary rights over part of 4 Wang Fung Street by way of a right-of-way.  All the Building Authority, and the Tribunal have done is to say that part of 4 Wang Fung Street is used as a right-of-way and is accordingly not available when calculating the plot ratio.

65.  It would not be open to the owners of 2 & 3 Wang Fung Street to rely upon the decisions of either the Building Authority, or the Tribunal, and nothing else, to assert a right-of-way against 4 Wang Fung Street.  No declaration has been made by either the Building Authority or the Tribunal, to which they are a party, and which would be binding upon them.  It would however be open to them, in the course of proceedings in this Court against the owner of 4 Wang Fung Street, in which appropriate orders were sought to confirm the existence of a right-of-way, to put before the court the same evidence that was put before the Building Authority and the Tribunal.

66.  I reject the proposition that the Tribunal acted wrongly in law in holding that part of 4 Wang Fung Street was subject to a right-of-way.  In the circumstances of the application made, I am satisfied that it was proper for the Tribunal, in order to be able to apply the plot ratio to the correct area of land, to determine whether or not part of 4 Wang Fung Street was subject to a right-of-way.

67.  This ground of challenge, that neither the Building Authority, nor the Tribunal, had jurisdiction to find the existence of a right of way, fails.

Can a right-of-way arise by prescription in Hong Kong:

68.  The next argument mounted by Mr Chan was it could not be said that there was a right-of-way, because a right-of-way by prescription cannot exist in law in Hong Kong.

69.  The basis upon which the Tribunal found there to be a right-of-way was a finding that a right-of-way had arisen by prescription.  Whether there may be a right-of-way of by prescription in Hong Kong is a question that was described by Ma CJHC in Re Anthony Ralph Porten QC, (unreported HCMP 466/2005, 8 April 2005), a decision on an application for the admission of overseas counsel, as:

“	… this interesting and important point might be one that involve the determination of a legal point that would make a significant impact on Hong Kong jurisprudence.”

70.  A review of the relevant law begins with a decision of the Full Court in Foo Kam Shing & Ors v Local Printing Press Ltd (1953) 37 HKLR 201, where that court found that there could not be an easement by prescription in Hong Kong.  Without specifically referring to that decision, in Tang Tim Fat & Anor v Chan Fok Kei & Ors [1992] 2 HKLR 373, Deputy Judge Jerome Chan, (as he was), held that there could not be an easement by prescription based upon a lost modern grant in Hong Kong because the presumption of a lost modern grant could only be claimed by an owner of fee simple.  In Hong Kong, to all intents and purposes, all land is leasehold, accordingly, the judge held, the doctrine of lost modern grant cannot apply.

71.  Subsequent to the decision in Foo Kam Shing the Application of English Law Ordinance Cap 88, was enacted in 1966.  Sections 3 & 4 of that Ordinance made the common law and, inter alia specifically, the Prescription Act 1932, applicable to Hong Kong, but subject to such modifications as the circumstances in Hong Kong might require.

72.  Both Foo Kam Shing and Tang Tim Fat were considered in the Court of Appeal in Chung Yeung Hung v Law Man Nga & Anor [1997] HKLRD 1022.  The appeal arose in circumstances where a High Court judge had refused an interlocutory injunction because he was not satisfied the plaintiffs had made out an arguable case of a right-of-way by prescription.  In allowing the appeal Godfrey JA had this to say:

“

The concept of prescription in Hong Kong, if limited to prescription by and against owners in fee simple, would be, to all intents and purposes, completely meaningless.  Yet the Application of English Law Ordinance, Cap 88, enacted in 1966, provides that the law of England as set out in (inter alia) the Prescription Act 1832, shall be enforced in Hong Kong “subject to such modification hereto as the circumstances of Hong Kong may require”: see s 4(1)(a) of the Ordinance and item 60 in the Schedule thereto.  In these circumstances, say the plaintiffs, the proposition that in Hong Kong there may be prescription by one tenant against another tenant of the same landlord must be at least arguable.  For my part, I agree.  I know that in Foo Kam Shing & Ors v Local Printing Press Ltd (1953) 37 HKLR 201, the Full Court was of a different opinion.  But the Application of English Law Ordinance was not then in force.  I know too that in Tang Tim Fat & Anor v Chan Fok Kei & Ors [1992] 2 HKLR 373, HH Judge Jerome Chan (as he then was), sitting as a deputy judge of High Court, was also of a different opinion.  But that case is of course not binding on this court.  I would, accordingly, hold that the plaintiffs’ case here is arguable, contrary to the view expressed by the judge below.”

73.  Keith JA, at p 1026, said that he could not improve upon the words of Godfrey JA.  Mortimer J. A. examined the matter in more detail, including that he doubted whether Tang Tim Fat was rightly decided, and that Foo Kam Shing was distinguishable as the Application of English Law Ordinance was not then in force.

74.  In Kong Sau Ching v Kong Pak Yan & Ors, [2004] 1 HKC 119 Reyes J held, (obiter) that the common-law doctrine of prescription by lost modern grant formed part of the common-law received into Hong Kong in 1843.  The judge held that the doctrine had been preserved post 1 July 1997, by Article 8 of the Basic Law.  In a comprehensive discussion at pp 143-152 of the judgment, the judge considered the state of the law on the acquisition of an easement by prescription in Hong Kong.  At para 111, p151, the judge faced what he described as “the stark question” whether the English restriction, that is the rule that a leaseholder cannot obtain an easement by prescription over land occupied by another leaseholder, constrained the acquisition of prescriptive rights in Hong Kong.

75.  I can do no better than to adopt in terms the reasoning of the learned judge in coming to the conclusion he did, that a limited owner, (a leaseholder), can obtain a right-of-way by prescription against another limited owner in Hong Kong.

76.  In Kong Sau Chin, Reyes J at first thought that counsel had been wise not to take him through the Irish cases, in which the English restriction had been held not to apply in Ireland; see para 111.  However in para 114, the judge said he would have preferred to have heard argument on the Irish cases in order to understand the rationale for rejecting the English restriction in Ireland.  Mr Mok has helpfully supplied me with copies of Timmons v Hewitt (1888) 12 Ir CLR 627, Hanna v Pollock [1900] 2 IR 664, Dawson v McGroggan [1903] 1 IR 98, MacNaughten v Baird [1903] 2 IR 734, Flynn v Harte [1913] 2 IR 322 and Tallon v Ennis [1937] IR 549, but did not address argument to me on those decisions.  I have reviewed those decisions, and while of historical interest in an Irish context, I take the view that they are primarily concerned with the Irish situation, and do not assist in the determination of the issue in Hong Kong.  Other than to say that, it is unnecessary to burden this judgement with a detailed discussion of those cases.

77.  The most telling argument in favour of prescriptive rights being available in respect of leasehold land in Hong Kong is that set out in para 115 of the judgement in Kong Sau Chin. 

78.  It is clear that from the very inception of British government in Hong Kong, a decision was taken that the majority of Hong Kong land would be held on a government lease.  It is well known that the only piece of fee simple land in Hong Kong is that occupied by St John's Cathedral in Garden Road.  The Application of English Laws Ordinance, enacted in 1966, specifically refers to the Prescription Act 1832, as one of the pieces of English legislation that is to apply in Hong Kong.  The Ordinance further specifically provides that English legislation applicable to Hong Kong would be subject to such modifications as the circumstances in Hong Kong might require.

79.  I entirely agree with Reyes J. that it would be odd to apply the Prescription Act 1832, to Hong Kong, but with the restriction that it did not apply in respect of leasehold land, in circumstances where virtually all land in Hong Kong is leasehold.  Only by adapting the Act to Hong Kong circumstances, as required by the Application of English Laws Ordinance, that is disregarding the English restriction, can the Act apply.  It is simply unimaginable that the Act would apply to Hong Kong only for the purpose of issues of prescription that might arise in relation to land upon which St John’s Cathedral stands.

The effect of Foo Kam Shing:

80.  Mr Chan contended that I could not reach this decision, as I was bound by the decision of the Full Court in Foo Kam Shing.  While it is right that a decision of the Full Court is binding on me, the simple answer the proposition is that the ratio of Foo Kam Shing is dependent upon the provisions of s 5 Supreme Court Ordinance, which provided that English Law was in force “except so far as the said laws are inapplicable to the local circumstances of (Hong Kong)”.  That Ordinance was subsequently replaced by the Application of English Law Ordinance, in quite different terms.  Instead of an exception for law which was inapplicable to local circumstances, that Ordinance specifically applied the Prescription Act 1832 to Hong Kong, and required “such modification thereto as the circumstances of Hong Kong may require”.   

81.  In simple terms there has been a complete reversal of the position time of Foo Kam Shing.  In those circumstances I am satisfied that Foo Kam Shing no longer states the law in Hong Kong, and is accordingly not binding on me.

82.  Mr Chan did not seek to argue that, if there could be a right-of-way by prescription in Hong Kong, the factual circumstances existing in this case were not such as to enable the application of the doctrine.  It is quite clear that for over 45 years gridlines 1 and 2 have been used as a right-of-way, and all the circumstances required to find a right-of-way by prescription exist.  That there may be an independent means of access in another place does not, however, derogate from the fact that the gridlines have been used as a right-of-way.  The fact of an independent means of access in another place is relevant only if there cannot be an easement by prescription at law in Hong Kong, for then it may be necessary to consider issues of easements of necessity.

83.  In those circumstances, being satisfied that a right-of-way by prescription existed on the land at 4 Wang Fung St, it is not necessary for me to consider the other methods whereby a right-of-way might arise, upon which argument was advanced, such as a right-of-way of necessity.

84.  I am accordingly satisfied that neither the Building Authority, nor the Tribunal were wrong in law in determining that a right-of-way existed on the land at 4 Wang Fung Street, thereby reducing the available area of land against which the plot ratio might be determined.

85.  This ground of challenge, that a right-of-way by prescription cannot exist in Hong Kong, fails.

The duty to act consistently issue:

86.  In 1998, approval was given for the development of a 16 storey domestic building at 6 Wang Fung Terrace.  As part of the approval the developer agreed to undertake to participate in the implementation of a future comprehensive improvement scheme to upgrade Wang Fung Street, and to make a contribution to his allotted share of the cost of the improvement works.  The improvement works involved a redesigned and reconstruction of the junction of Wang Fung Street and Tai Hang Road.

87.  It is clear that the Building Authority anticipated there would be considerable future redevelopment in Wang Fung Street thereby enabling the same condition to be imposed on all owners.  The clear intention was that there would be an obligation placed upon each owner of property in Wang Fung Street, as they redeveloped their property, to contribute to the reconstruction work, with the work being done at some stage in the future.

88.  Mr Chan referred me to a decision of the Building Appeal Tribunal known as Ngau Tau Kok Road, 1972, in which the Tribunal said:

“	It is most important that there should be uniform enforcement of Buildings Ordinance and Regulations.  Lord Eldon in the case of Gee v Prichard 1818, had this to say in his judgement:
	‘	Doctrines ought to be uniform, taking care that they are applied to the circumstances of each case.  Nothing would inflict on the greater pain than the recollection that I had done anything to justify the reproach that the equity of this Court varies like the Chancellor’s foot.’
	Nor in our view should the exercise of discretion by the Building Authority vary with the length of the arm of the Director of Public Works.”

89.  Mr Chan referred also to the decision of Findlay J. in Teng Fuh Company Ltd v Keen Lloyd Holdings Ltd (unreported, HCMP 2438/98), where the judge said:

“	… one must assume that the public servant making this decision would act sensibly, with proper regard to all the circumstances, and not capriciously or vindictively.
	… the public servant must be assumed to be aware that he must act consistently…”

90.  These propositions of law undoubtedly correct.  But neither of these propositions should require an authority to act consistently and thereby repeat a mistake or continue a situation that has been seen to have failed.

91.  It may well have been that in 1998, having regard to the plot ratio then applicable to the Wang Fung Terrace area, the Building Authority foresaw an early time at which virtually all of the land in Wang Fung Terrace would be redeveloped, and all owners brought in to the incremental scheme that was proposed which would ultimately have resulted in the reconstruction of the junction.  But with the variation of the plot ratio, and the considerable absence of any redevelopment over the passage of time since 1998, it can be seen that there is little hope, if any, that there will be any reconstruction of the junction in the foreseeable future.  Quite simply the future reconstruction proposal has proved to be unworkable.

92.  It would be quite wrong in my view to sacrifice road safety to consistency.  I note that there was no doubt on the evidence before the Tribunal that the junction was dangerous.  I accept Mr Mok’s submission that any principle of consistency could not require the indefinite repetition of an approach which has proved to be unworkable, nor where the circumstances are significantly different to those under which the approach was originally applied.  In this respect I note that the decision in 1998, was for a 15 storey building, a redevelopment considerably less than the buildings now under consideration at 39 and 40 storeys.

93.  While it is right that the Building Authority must act consistently, that does not mean that neither it nor the Tribunal is hidebound by all previous decisions, irrespective of any change of circumstances.  Just when there will be any future improvement to the junction is now completely unknown.  It would be quite wrong to demand slavish compliance to a decision that has proved unworkable, simply for the sake of consistency.

94.  The decision was rational and correct, and there is no basis upon which I should interfere.

The junction reliance issue:

95.  The basis for the argument that the Building Authority did not rely on the junction is that the Building Authority in invoking s 16(1)(h) to disapproved the plans, did so referring only to the situation at the hairpin bend.  Consequently, before the Tribunal, in final submission, and not having cross-examined an available witness on the issue, the applicants made the submission that the junction was not in issue.  The applicants say therefore that it was not open to the Tribunal to place any reliance upon the junction as a basis for disapproving the plans, or upholding the decision of the Building Authority.

96.  An appeal from a decision of the Building Authority to the Tribunal is an appeal by way of re-hearing.  There was sufficient evidence as to the junction: the traffic condition at the junction was accepted by both traffic experts called to be dangerous.

97.  I am satisfied that the Tribunal was fully entitled to take account of the situation at the junction and that there is no error of law in this respect.

Challenging the issues on which the applicants succeeded before the Tribunal:

98.  I have found in all respects in favour of the Tribunal.  Mr Mok, in case he should fail on the primary issues, sought to challenge the decision of the Tribunal on the immediate neighbourhood issue and the minor amendments issue, on both of which issues the applicants had succeeded.  If he was successful in that challenge, Mr Mok would succeed in resisting the development.

99.  Mr Chan argued that as there had been no application for judicial review against the decisions in which the applicants succeeded it was not open to Mr Mok to challenge those decisions.  It is not necessary for me to consider this question as the applicants have failed to successfully challenge the decision of the Tribunal whereby their applications fail.

Costs:

100.  There will be an order nisi that the applicants must pay the costs of the proceedings to be taxed on a party and party basis.