BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 25/2014

[2018] HKCFI 2761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 25 OF 2014

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J U D G M E N T

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A.   INTRODUCTION

1.  This is the Building Authority’s judicial review application seeking to challenge the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 4 December 2013.

2.  By way of the Decision, the Tribunal allowed the appeal (“the Appeal”) of the two interested parties (“the IPs”) in this application and set aside the Dangerous Hillside Order (“the DH Order”) issued by the Building Authority (“the BA”) on 27 June 2006 to the IPs.

3.  In this application, the BA is represented by Mr Y C Mok (together with Mr Mike Lui), and the IPs are represented by Mr Anthony Ismail (together with Mr Justin Ismail).  In line with normal practice, the Tribunal has remained neutral and is excused from attending this hearing.

4.  The background leading to the DH Order and this judicial review is not in dispute.  They can be summarized as follows.[1]

B.   BACKGROUND

B1.    The facts

5.  The IPs were at all material times registered owners of Houses 61A, 61B and 61C built on Lot No 1116 in DD253 (“the Lot”).[2] The Lot was held under the terms and conditions of New Grant No 4796 and the IPs were at all material times obliged to observe such terms and conditions qua government lessee.

6.  There was, adjoining the Lot, the “Feature” comprising a formed or manmade land and an earth-retaining structure.

7.  Atop the Feature was a platform where Houses 61D and 61E were located.[3]

8.  The Feature included a cut-slope of about 2m in height (“the Cut-Slope”).  The Cut-Slope sat at 60 degree occupying about 1/3 of the Feature’s area, with a 1m high concrete wall at its toe and a 1.8m high random rubble wall at crest.[4]

9.  Situated to the west of the Feature was a small uphill path or road, through which one could access Houses 61D and 61E and their surrounding area.[5]

10.  In June 2001, Maunsell Geotechnical Services Ltd (“Maunsell”)[6] prepared a report on the Feature advising that there were damage and cracks found.[7]

11.  In January 2005, Maunsell prepared a Stage 2 report concluding, based on its further investigation results, that the Feature had become dangerous.[8]

12.  The Tribunal’s determination concerns its view taken in connection to two portions of the Feature:[9] (a) the Cut-Slope (formed as a result of cutting at the original hillside or slope); and (b) the “Other Part”.

13.  The Cut-Slope was formed in 1970 to 1973 as a result of cutting activities at the original hillside or slope.[10]

14.  It is common ground that what made the Cut-Slope dangerous by the current geotechnical standards was its profile or design for this type of ground condition, ie, the 60 degree angle at which it sat on the ground or had been cut.[11]

15.  The Decision at paragraphs 33 - 34 recorded the evidence that when the Cut-Slope was formed, there was no geotechnical standards applicable to slopes cut from rock and the Cut-Slope was designed and formed according to what was acceptable according to the then industry practice and understanding.[12]  It had, however, been found to be dangerous by the geotechnical standards at the time of issuance of the DH Order.

16.  In this respect, the IPs did not dispute that the Feature had become “dangerous”.[13]

17.  On 27 June 2006, having considered Maunsell’s Stage 2 report, the BA issued the DH Order to the IPs, as owners of the Lot, in respect of the Feature requiring them to (a) appoint an Authorised Person and a registered geotechnical engineer to investigate, analyse, and report on the Feature within two months; and (b) submit remedial or preventive works proposals for approval by the BA based on the findings of the above investigation within seven months.  The DH Order did not require the IPs to repair or maintain the Feature but only required investigation and report.

18.  The BA issued the DH Order to the IPs as it was of the view that the IPs had an obligation under Special Condition 8 (“SC8”) of the Government lease to maintain and repair the Feature.  In the premises, under section 27A(1) of the Buildings Ordinance (Cap 123) (“the BO”),[14] the BA can serve an order on the IPs to require them to investigate and report on the Feature, and to submit remedial or preventive works proposals for the BA’s approval.

19.  The IPs appealed against the DH Order.  The Appeal was heard in June and September 2012.  The Decision was delivered on 4 December 2013.

B2.    Reasons of the Decision

20.  The IPs raised seven grounds of appeal;[15] six of them (grounds 1, 2, 4, 5, 6 and 7) were rejected.[16]  The Tribunal allowed the appeal on ground 3, and also an additional ground raised by the Tribunal itself.

21.  In raising ground 3, the IPs contended that the Feature in its entirety was not formed at the same time when the then owners of Houses 61A, 61B and 61C developed the Lot.  The Tribunal dealt with this point in two parts by looking at the Cut-Slope and at the Other Part separately, and held:

(1)   The burden was on the BA to prove that the Cut-Slope and the Other Part were formed at the same time.

(2)   It was satisfied on the evidence that the Cut-Slope had been formed in 1970 to 1973 by cutting at the original slope in developing the Lot.[17]

(3)   It was not satisfied by sufficient evidence that the Other Part had been formed at the same time when the then owners developed the Lot.[18]

22.  It was in ruling that the Other Part was not shown to have been formed when developing the Lot that the Tribunal addressed the meaning of SC8.  It held that SC8 only obliged the IPs to maintain or repair “retaining wall” or “other support” built to protect the Cut-Slope; and since the Other Part was not such support, the IPs had no duty to maintain or repair the Other Part; and the DH Order was unlawful or invalid because it covered the entire Feature.[19] For convenience, I will refer this as the “First Reason”.

23.  Further, the Tribunal also held that in any event SC8 only imposed a duty on a grantee to maintain or repair, but not improve, a slope or structure.  Since the Feature had become dangerous only by current standards, requiring the IPs to repair it meant they were asked to “improve” it, but they had no duty to do that.  In this respect, the Tribunal said section 27A did not assist the BA as it did not impose any duty on top of what SC8 obliged.[20] I will refer to this reason as the “Second Reason”.  It is common ground that this ground was not raised by the IPs themselves in the Appeal.

24.  The BA applied for leave to judicially review the Decision on 28 February 2014, seeking to quash the Decision and for an order remitting the Appeal to a differently constituted Tribunal for reconsideration.

25.  On 13 May 2014, the court granted leave on the grounds as set out under the Amended Form 86.  The filing of evidence by the parties was completed on 12 March 2015.  The parties only applied to fix the date of the hearing of the judicial review in January 2017, which date was fixed to be on 27 October 2017.

26.  By a summons dated 23 March 2017, the BA seeks leave to further re-amend the Amended Form 86.  I will consider the proposed amendments de bene esse and determine the amendment application at the end of this judgment.

C.   THIS JUDICIAL REVIEW

27.  Mr Mok raises the following grounds of challenge in this application, which I would consider in turn.

C1.   Ground 1 – Erroneous construction of SC8[21]

28.  This ground relates to the challenge against the Tribunal’s construction of SC8.  I should first set out SC8 in full as follows:

“Where any cutting away, removal or setting back of adjacent or nearby hillside or banks or any building up or filling in is required for the purpose of or in connection with the formation, levelling or development of the lot or any part thereof, the grantee shall construct or bear the cost of the construction of such retaining walls or other support as shall or may then or at any time thereafter be necessary to protect and support such hillside and banks and the lot itself and to obviate and prevent any falling away, landslips or subsidence occurring thereafter, and shall at all times maintain the said retaining walls or other support in good and substantial repair and condition. In the event of any landslip, subsidence or falling away occurring at any time whether in or from the adjacent hillside or banks or in or from the lot itself, the grantee shall at his own expense reinstate and make good the same and shall identify the Government from and against all costs, charges, damages, demands, and claims whatsoever which shall or may be made, suffered or incurred through or by reason thereof. In addition to any other rights or remedies herein provided for breach of any of the conditions hereof the District Commissioner, New Territories shall be entitled by a notice in writing to call upon the grantee to carry out such construction and or maintenance or to reinstate and make good any falling away, landslip or subsidence, and if the grantee shall neglect or fail to comply with such notice within the period specified therein the said District Commissioner may forthwith execute and carry out the work and the grantee shall on demand repay to the Government the costs thereof.” (emphasis added)

29.  As mentioned above, under the First Reason, the Tribunal construed SC8 to mean that it only applied to the Cut-Slope in the present case, and did not apply to the Other Part.  As a result, the IPs under SC8 only had an obligation to maintain and repair the Cut-Slope but not the Other Part.  Hence, the IPs did not have an obligation to repair and maintain the entire Feature, the DH Order (which related to the entire Feature) was invalidly issued by the BA.

30.  The Tribunal explained this part of the reasons at paragraphs 15 - 25 of the Decision as follows (footnotes omitted):

“15. 至於該地物除該斜坡以外的部分，答辯人主要把兩幅航空照片，予以比較，嘗試證明該部分亦是由該地段的前業主，於1970至1972年間形成。答辯人的證人盧耀宗先生亦准備了一份地點歷史報告，嘗試解讀該兩幅照片。第一幅照片攝於1967年，另一幅攝於1972年。根據盧先生的解讀，該地物並不在1967年的照片出現，卻在1972年的照片出現，故該地物「可能是該地物之下的一幢樓高二層的建築物 [即第61A，B及C號屋] 的土地平整工程的一部分」。

16. 在聆訊期間，審裁小組各委員使用由答辯人提供的儀器，仔細地審察及比較了該兩幅航空照片；小組的成員中，也有對審視航空照片有經驗的專業人士。審裁小組一致認為，該兩幅照片所拍攝的範圍廣大，就算經儀器放大，所顯示的該地物影象也模糊不清，實在很難作出如盧先生一樣的解讀和結論。再者，根據盧先的解讀，1967年和1972年的航空照片的另一分別，是「另一通往房子61D及61E的道路 [即該小路的前身] 已建成並位於該地物的北面」。故此，正如上訴人所言，該地物（除該斜坡外）也有可能是在建築該小路的前身時形成，與該地段的發展無關。

17. 此外，正如上文第13段提及，該地段的前業主於約1970至1973年間進行發展時，曾就削去該斜坡而向地政總署提出申請；假如山坡的其他部份，也受同一發展影響，而形成該地物，則影響山坡其他部份的工程，沒有理由不被包括在申請內；地政總署也不會在沒有申請或申請未獲批准的情況下，容許或容忍該地段的前業主在山坡的其他部份進行任何工程。

18. 證明該地物的其他部分乃該地段的前業主所形成，其舉證責任在答辯人一方。在詳細考慮了有關證據後，審裁小組認為答辯人並不能完成該責任，故裁定該地物的形成，除該斜坡外，與該地段的業主或前業主無關。

19. 雖然如此，答辯人卻提出了另一論點，認為就算該地段的前業主在1972年進行的削坡工程，只涉及該斜坡而非整個該地物，根據該特別條件的規定，該地段的業主仍須負責整個該地物的維修保養。

20. 該特別條件可被再次節錄如下：

‘Where any cutting away, removal or setting back of adjacent or nearby hillside … is required for the purpose of … development of the lot …, the grantee shall construct … such retaining walls or other support as shall or may then or at any time thereafter be necessary to protect and support such hillside … and to obviate and prevent any falling away, landslips or subsidence occurring thereafter, and shall at all times maintain the said retaining walls or other support in good and substantial repair and condition. In the event of any landslip, subsidence or falling away occurring at any time whether in or from the adjacent hillside …, the grantee shall at his own expense reinstate and make good the same ….’

21. 答辯人對該特別條件的解讀是：承批人（grantee）除了要承擔「被削去、移除或後移的山坡」的保養責任外，還要負責那些「毗鄰而受其承托」，及「在安全程度上」受其「一定影響」的山坡（答辯人的結案陳詞第27段）。

22. 本審裁小組認為答辯人錯誤理解了該特別條件。該特別條件的真正意思是：假如在發展（develop）有關地段（the lot）時，需削去、移除或後移（cut away, remove or set back）有關地段附近的山坡（adjacent or nearby hillside），即承批人須建造（construct）適當的護土牆（retaining wall）或其他承托物（other support），以保護（protect）和承托（support）該山坡（hillside），及排除（obviate）和防止（prevent）日後發生任何泥土傾瀉（landslip）、沉降（subsidence）或滑坡（falling away）。承批人並須把那些護土牆（retaining wall）或其他承托物（other support），即刻進行保養維修，使其保持良好（good）及穩固（substantial）的修葺（repair）和狀態（condition）。而假如真的發生了任何泥土傾瀉（landslip）、沉降（subsidence）或滑坡（falling away）事件，無論該事件是在該附近山坡（adjacent hillside）內（in），或是從（from）該附近山坡發生，承批人必須自資（at his own expense）把該附近山坡恢復（reinstate）和還原（make good）。

23. 故此，該特別條件提及的「附近的山坡」(‘adjacent or nearby hillside’），是指在有關地段附近被削去、移除或後移（cut away, remove or set back）的山坡，即本案的該斜坡，而不是指該斜坡附近的山坡（即該地物的其他部分）。而該地段前業主所須建造的，乃用以保護該斜坡的護土牆（retaining wall）或其他承托物（other support）。該地段的業主所須要承擔的保養維修責任，亦只限於該些護土牆或其他承托物。該地物的其他部分，並非該斜坡的承托物，答辯人亦沒有作如是建議，故該特別條件並沒有把維修該地物其他部分（即該斜坡以外的部分）的責任，加諸該地段的業主或前業主身上。

24. 總而言之，由於沒有足夠證據證明該地物除了該斜坡的部分外，其他部分是由該地段的前業主於發展該地段時形成，故上訴人無須負責整個該地段的維修保養。而由於該命令所針對的，是整個該地物，故一定不能成立。

25. 以上的結論，已足以為本上訴定案，但為了完整起見，本審小組仍繼續討論其他上訴理由。” (emphasis added)

31.  Hence:

(1)   The Tribunal was of the view that, on a proper construction, under SC8, the grantee was only liable to maintain and repair that part of the adjacent hillside where there was the “cutting away, removal or setting back” required for “the formation, levelling or development of the lot” and the retaining wall and other support constructed by the grantee.

(2)   In the premises, given that the Tribunal found as a matter of fact that the Other Part was not formed or created at by the IPs’ predecessor (as owner of the Lot), it meant that the Other Part was not formed and created at the same time of the Cut-Slope.  It was therefore also not part of the adjacent bank or hillside where there the cutting away, removal or setting back was carried out for the formation, leveling or development of the Lot.

(3)   Further, the Tribunal also took into account that the BA in any event did not suggest that the Other Part was part of the support for the Cut-Slope.[22]

(4)   The IPs were therefore not obliged under SC8 to maintain or repair the Other Part.

(5)   It was unlawful for the BA to issue the DH Order (which covered both the Cut-Slope and the Other Part) requiring the IPs to investigate and report.

32.  Under this ground, Mr Mok submits that the Tribunal’s construction of SC8 is wrong.  Mr Mok contends that on a proper construction, SC8 applies to both the Cut-Slope and the Other Part in the present case.

33.  Mr Mok’s contentions run as follows.

34.  SC8 should be construed in the proper context of its purpose, which is as follows:

(1)   First, it is important to note that SC8 is triggered by “any cutting away, removal or setting back of adjacent or nearby hillside or banks or any building up or filling in” that has been “required for the purpose of or in connection with the formation, levelling or development of the lot or any part thereof”.  The need for imposing the SC8 obligations is clear: adjacent hillside or banks have been affected by the development of a lot, and they have to be protected together with the lot itself.

(2)   This ties in with the purpose of SC8, which in fact is expressly set out in the condition itself: “to protect and support such hillside and banks and the lot itself and to obviate and prevent any falling away, landslips or subsidence occurring thereafter” (“SC8 Purpose”).

35.  SC8 then provides how to protect those affected adjacent hillside or banks and the lot itself, and what the grantee is liable for or should do if landslip, subsidence or falling away occurs at the adjacent hillside or banks or the lot, by imposing three separate and continuing duties:

(1)   “construct or bear the cost of the construction of such retaining walls or other support as shall or may then or at any time thereafter be necessary” for the SC8 Purpose (“First Duty”);

(2)   “at all times maintain the said retaining walls or other support in good and substantial repair and condition” (“Second Duty”);

(3)   in the event that any landslip, subsidence or falling away occurs at any time at the adjacent hillside or banks or the lot, “reinstate and make good the same and ... indemnify the Government from and against all costs, charges, damages, demands, and claims whatsoever which shall or may be made, suffered or incurred through or by reason thereof (“Third Duty”).

36.  The First Duty and the Second Duty have no temporal restriction:

(1)   First Duty: retaining walls or other support to be built as “shall or may then” (requiring assessment at the time of developing the lot) or “at any time thereafter” (requiring continuous assessment to be made after development) necessary for the SC Purpose.

(2)   Second Duty: the maintenance duty continues “at all times”.

37.  The Third Duty echoes the SC8 Purpose and reinforces the importance of protecting and maintaining the safety and adequacy of the adjacent hillside or banks in that if landslip, subsidence or falling away occurs, the grantee would have to reinstate and make good not only the part cut etc, in forming the lot, but the adjacent hillside or banks.

38.  Mr Mok says the Tribunal erred in law in relying on the First Reason (ie, SC8 obliged the IPs only to maintain or repair retaining wall or other support built to protect the Cut-Slope, not the Other Part since it was not such support)[23] in that:

(1)   It erroneously construed SC8 to impose only the Second Duty; and

(2)   It also erroneously took “adjacent or nearby hillside” to mean the Cut-Slope[24] – this must be wrong as “such hillside” in SC8 must mean the original “adjacent or nearby hillside” at which there had been cutting for the development of the Lot, and it was as a result of cutting that the Cut-Slope was created; if the Tribunal were correct, it means there had been cutting “into” the Cut-Slope, which had never taken place.

39.  On the facts and evidence of the case, the IPs were clearly caught by SC8:

(1)   There had been cutting done at the original hillside for developing the Lot.  There was no dispute about this, which was also the basis for the finding that the Cut-Slope had been formed when developing the Lot.[25]

(2)   The Other Part was part of the original hillside, into which cutting had been done for the purpose of developing the Lot, though the Other Part was not “formed” by the cutting that had created the Cut-Slope, and all along the Other Part actually was a part of the adjacent hillside.[26]

(3)   The Feature (consisting of the Cut-Slope and the Other Part) was or had become dangerous (which was undisputed) so it was necessary for actions covered by the First Duty and Second Duty to be taken for the SC8 Purpose.

(4)   In respect of the Cut-Slope, for which protective measures had been taken by building a “retaining wall” at toe and a “dry packed random rubble wall at crest”,[27] the IPs had to discharge the Second Duty.

(5)   In respect of the Other Part, for which the evidence did not show any “retaining walls or other support” had been constructed to protect it, the IPs had to discharge the First Duty by constructing the same.[28]

40.  Mr Mok therefore concludes that, by reason of its erroneous construction of SC8, which is an error of law, the Tribunal failed to hold the IPs were caught by SC8 on the facts set out in paragraph 39 above.  The Tribunal should have held that the IPs were liable to maintain the Feature under SC8, and the DH Order validly issued under section 27A.

41.  With respect to Mr Mok, I am not persuaded by the above submissions.  In my view, the Tribunal was correct in its construction of SC8.  I will explain why.

42.  The relevant principles on construction for the present purpose are not in dispute, they can be summarized as follows:

(1)   Construction is a question of law.  It is an objective exercise whereby the court seeks to find the intention of the parties, by identifying the meaning of the relevant words (in their documentary, factual and commercial context) in the light of (a) their natural meaning, (b) overall purpose of the document, (c) other relevant provisions of the document, (d) facts assumed or known to the parties at the time of the execution of the document, and (e) common sense.  In the exercise, the court should ignore the evidence of any party’s subjective intention.  See: Building Authority v Appeal Tribunal (Buildings) [2017] 4 HKLRD 510 at paragraph 27 per Kwan JA.

(2)   In this respect, in the construction exercise, having identified the rival interpretations, the first stage is to decide what seems to be the natural meaning of the relevant words, and, the next stage is to consider whether there was anything in the document (such as the grant), or in the surrounding circumstances when it was made, which called that interpretation into question.  As observed by Lord Neuberger, the first stage is almost a matter of impression and the second stage involves identifying a negative, so there is also a limited amount that can be said by way of justification for this conclusion.  See: Penny’s Bay Investment Co Ltd v Director of Lands (2017) 20 HKCFAR 465 at paragraph 64 per Lord Neuberger.

43.  Bearing these principles in mind, I now turn to look at SC8.

44.  For the present purpose, the focus is, on a proper construction, what are the words “such adjacent hillside” in SC8 intended to mean objectively.  For the following reasons, I agree with Mr Ismail that they are intended to refer to the particular part of the hillside nearby the subject lot where “cutting or removing” has been carried out for the purpose of the formation or levelling of the lot itself.

45.  First, one looks at the ordinary meaning conveyed by those words in the context of the sentences as follows: “Where any cutting away, removal or setting back of adjacent or nearby hillside or banks … is required for the purpose of or in connection with the formation, levelling or development of the lot or any part thereof, the grantee shall construct … such retaining walls or other support as shall or may then or at any time thereafter be necessary to protect and support such hillside and banks … and to obviate and prevent any falling away, landslips or subsidence occurring thereafter, and shall at all times maintain the said retaining walls or other support in good and substantial repair and condition.  In the event of any landslip, subsidence or falling away occurring at any time whether in or from the adjacent hillside or banks … the grantee shall at his own expense reinstate and make good the same” (emphasis added).

46.  As submitted by Mr Ismail:

(1)   The “cutting away, removal or setting back” is “of adjacent or nearby hillside” (emphasis added).  It is not the “adjacent or nearby hillside” at which there had been cutting but the “adjacent or nearby hillside” required to be cut, removed or set back.  This is the natural and ordinary meaning of “of adjacent or nearby hillside”, which is not displaced by the Grant and common sense and the assumption as stated above.

(2)   The word “such” in “support such hillside” refers to the adjacent or nearby hillside that is required to be cut away, removed or set back. This is the natural and ordinary meaning of the word “such”, which is not displaced by the Grant, common sense and the assumption as stated above. It is also supported by Government Teacher’s Co-operative Building Society Ltd v Attorney General [1987] 3 HKC 530 where Penlington J (as he then was) said at p 534B and H:

“The relevant part of these lease conditions reads as follows:

And where any cutting away, removal or setting back of adjoining, adjacent or nearby hillside or banks or any building-up or filling-in is or has been required for the purpose or in connection with the formation, levelling and development of the demised premises or any part thereof, the said lessee will construct or bear the cost of the construction of such retaining walls or other support, as shall or may at any time become necessary to protect and support such hillside and banks and the demised premises and to obviate and prevent any falling away, landslips or subsidence occurring thereafter and will at all times maintain the said retaining walls or other support in good and substantial repair and condition…

There can be no doubt that the applicants have ‘cut away, removed and set back adjoining, adjacent or nearby hillside for the purpose of forming their site’. There is therefore no doubt that they are liable for the cost of the construction of such retaining walls or other support as was or may at any time become necessary to protect and support that adjacent hillside and banks.” (emphasis added)

(3) The word “thereafter” in “any falling away, landslips or subsidence occurring thereafter” means after the cutting away, removal or setting back of the adjacent or nearby hillside. This is the natural and ordinary meaning of the word which is not displaced by the Grant and common sense and the assumption as stated above.

(4) The word “said” in “at all times maintain the said retaining walls or other support” refers to “such retaining walls or other support as shall or may then or at any time thereafter be necessary to protect and support” the adjacent hillside that is required to be cut away, removed or set back. This is the natural and ordinary meaning of the word which is not displaced by the Grant and common sense and the assumption as stated above.

(5) The word “the” in “whether in or from the adjacent hillside” refers to the “adjacent or nearby hillside “that has been cut away, removed or set back. This is the natural and ordinary meaning of the word which is not displaced by the Grant and common sense and the assumption as stated above.

47.  The ordinary meaning of those words therefore supports the construction that the words “the adjacent hillside” used in SC8 refer to only those parts of the adjacent hillside where the “cutting away, removal or setting back of” had been carried out.

48.  Second, I also find that this ordinary meaning of the words not inconsistent with the SC8 Purpose as submitted by Mr Mok.  As counsel points out, the purpose of SC8 is to protect and support “such hillside” and to obviate and prevent any falling away, landslips or subsidence occurring thereafter.  It begs the question of what is the meaning of “such” hillside.

49.  In relation to that, in my view, it would only be consistent with a reasonable objective intention of the parties to the grant that the grantee’s obligation to maintain and repair “the adjacent hillside” of the lot is to the extent that it is affected by works carried out by the grantee himself for the purpose of the lot.  As I asked Mr Mok at the hearing, it would be beyond an objective and reasonable contemplation of the grantee that he will be liable to maintain and repair the entire hillside adjacent to the lot he is granted, no matter how large and extensive that hillside is and no matter whether that hillside is or is not affected by any works carried out by the grantee himself.  If that was the case, the grantee would be subject to an unduly extensive and unforeseeable exposure to obligation of maintenance and repair, which cannot be within the reasonable contemplation of the parties in entering into the lease.

50.  Mr Mok seeks to say that “such adjacent hillside” is a reference to those parts of the adjacent that are “affected” by the cutting away works.  However, in my view such a meaning is simply not borne out expressly in the context nor has it to be implicated in order to give any useful meaning to SC8 or to render it workable.  I therefore do not accept such a construction.

51.  For these reasons, I reject Mr Mok’s contentions on the construction of SC8, and conclude that, on proper construction, SC8 imposes an obligation on the grantee of the lease to “repair and maintain” (a) those parts of the adjacent hillside where the grantee has carried out “cutting away, removal or setting back” for the purpose of or in connection with the formation, levelling and development of the lot or any part thereof, and (b) the retaining wall or other support constructed by the grantee.

52.  In other words, the Tribunal construction of SC8 is correct as a matter of law.

53.  I therefore reject this ground of challenge.

54.  This conveniently takes me to look at the BA’s challenge on the Tribunal’s finding that the Other Part was not formed at the same time with the Cut-Slope.

C2.   Ground 3 – Erroneous ruling on when the Other Part was formed[29]

55.  As mentioned above, the Tribunal found on the evidence that the Other Part was not formed at the same time as the Cut-Slope and not by the IPs’ predecessor owners of the Lot.

56.  The Tribunal explained this finding in the Decision as follows (footnotes omitted):

“該地物的形成者的問題（上述第三個上訴理由）

12. 這個問題可以分為兩部分處理：

(a) 該斜坡是否由該地物的前業主所形成？

(b) 該地物的其他部分（即該斜坡以外的部分）是否由該地物的前業主形成？

13. 審裁小組認為有足夠的可信證據，證明該斜坡乃由該地段的前業主，於發展該地段時形成。在地政總署有關該地段於1970至1973年間申請發展的檔案內，有一分建築圖，顯示了把該地段東邊的斜坡削去的計畫，而代表該地段前業主的建築師，亦繪畫了一幅平面圖（section plan），顯示被削前和被削後的山坡的形狀。此外，答辯人亦從有關檔案內，找到一分建築物完成報告（Building Completion Report），內裏有一段手寫文字，清楚提及該地段的東面有一個削坡；該報告亦夾附了一封由代表該地段前業主的建築師所發出的信件，證明該地段毗鄰的削坡安全。

14. 上訴人對上述的檔案文件，提出了若干質疑。本審裁小組不打算把這些質疑一一列出。由於年代久遠，對有關檔案文件提出質疑，一點不難。但在相對可能性的衡量（balance of probabilities）下，本審裁小組接納該斜坡乃該地段的前業主，於1970至1973年間發展該地段時所形成。

15. 至於該地物除該斜坡以外的部分，答辯人主要把兩幅航空照片，予以比較，嘗試證明該部分亦是由該地段的前業主，於1970至1972年間形成。答辯人的證人盧耀宗先生亦准備了一份地點歷史報告，嘗試解讀該兩幅照片。第一幅照片攝於1967年，另一幅攝於1972年。根據盧先生的解讀，該地物並不在1967年的照片出現，卻在1972年的照片出現，故該地物「可能是該地物之下的一幢樓高二層的建築物 [即第61A，B及C號屋] 的土地平整工程的一部分」。

16. 在聆訊期間，審裁小組各委員使用由答辯人提供的儀器，仔細地審察及比較了該兩幅航空照片；小組的成員中，也有對審視航空照片有經驗的專業人士。審裁小組一致認為，該兩幅照片所拍攝的範圍廣大，就算經儀器放大，所顯示的該地物影象也模糊不清，實在很難作出如盧先生一樣的解讀和結論。再者，根據盧先的解讀，1967年和1972年的航空照片的另一分別，是「另一通往房子61D及61E的道路 [即該小路的前身] 已建成並位於該地物的北面」。故此，正如上訴人所言，該地物（除該斜坡外）也有可能是在建築該小路的前身時形成，與該地段的發展無關。

17. 此外，正如上文第13段提及，該地段的前業主於約1970至1973年間進行發展時，曾就削去該斜坡而向地政總署提出申請；假如山坡的其他部份，也受同一發展影響，而形成該地物，則影響山坡其他部份的工程，沒有理由不被包括在申請內；地政總署也不會在沒有申請或申請未獲批准的情況下，容許或容忍該地段的前業主在山坡的其他部份進行任何工程。

18.   證明該地物的其他部分乃該地段的前業主所形成，其舉證責任在答辯人一方。在詳細考慮了有關證據後，審裁小組認為答辯人並不能完成該責任，故裁定該地物的形成，除該斜坡外，與該地段的業主或前業主無關。”

57.  Mr Mok submits that the said factual finding is Wednesbury unreasonable.

58.  With respect to Mr Mok, I am unable to agree.

59.  As submitted by Mr Ismail, it is trite that the court in judicial review does not sit as an appeal court.  It is not for the court to evaluate the evidence or make disputed findings of fact.  The court generally cannot and should not substitute its own findings of fact for those of the decision maker if there is evidence to support the finding.  Questions as to weight to be given to a particular piece of evidence are for the decision maker and not the court.  The court only reviews its legality and not the merits.[30]

60.  In this respect, finding of fact involving a broad spectrum ranging from the obvious to the debatable to the just conceivable are best left to the public body to whom statute has entrusted the decision making power, save in a case where it is obvious that the public body, consciously or unconsciously, is acting perversely, such as making a finding without any evidential basis.[31]

61.  Applying the above approach, the Tribunal’s finding that the Other Part was not formed at the same time as the Cut-Slope obviously cannot be said to be Wednesbury unreasonable.  As shown above, the conclusion was based on the Tribunal’s careful assessment of the evidence laid before it, and the evidence was capable of supporting such a finding, although the BA may disagree with it.

62.  In particular, as pointed out by Mr Ismail:

(1)   The Tribunal was fully aware that the Cut-Slope and the Other Part were connected because it stated that the Cut-Slope was included in the formed, man-made or earth-retaining structure (paragraph 2 of the Decision).

(2)   However, the Tribunal was not satisfied that the Other Part would be affected by cutting away the Cut-Slope because:

(a)   an application made by the previous registered owner to cut away the Slope (see the Decision at paragraph 13 and 17) did not include information about the Other Part when there was no reason not to so include it (if the Other Part were to be developed): see the Decision at paragraph 17; and

(b)   the Lands Department would not have tolerated or allowed the previous registered owner to develop the Other Part without its permission.  The Tribunal also took into account that a Letter of Compliance was issued after the work in respect of the Cut-Slope had been completed.[32]  See also the “Building Completion Report” dated 18 May 1972 and the letter dated 2 January 1973 that “Special Conditions” (which would include SC8) were considered to be fulfilled to the Government’s satisfaction.

(c)   As pointed out above, the BA did not suggest that the Other Part is part of the “other support” for the Cut-Slope (see paragraph 23 of the Decision).

63.  The BA says there was evidence from its expert, Mr Lo, which supported the view that the Cut-Slope and the Other Part were formed at the same time as they belonged to one large hillside, and the cutting (creating the Cut-Slope) must have had an adverse effect on the stability of the Other Part for they both sat at 60 degree with the ground and there was also no “transition” constructed between them.[33]  However, it complains under this ground that the Tribunal overlooked or ignored this part of the evidence.[34]

64.  I am not convinced.

65.  Insofar as the complaint is that the Tribunal had simply ignored and did not consider at all this part of the evidence, I do not agree.

66.  First, it was clear that at the hearing, the Tribunal’s chairman and members actually engaged with Mr Lo in this part of his evidence.[35]  They were therefore fully aware of Mr Lo’s evidence in this respect.  Further, the Tribunal at paragraphs 15 ‑ 17 of the Decision obviously rejected the theme advanced by Mr Lo in his evidence that the Other Part was formed at the same time with the Cut-Slope and that the cutting of the Cut-Slope had an adverse impact on the Other Part. This is so as the Tribunal was of the view that if the Other Part indeed was formed at the same time with the Cut-Slope and that the formation of the Cut-Slope would have an adverse or dangerous effect on the Other Part, this would have been included in the application for approval for the work of the Cut-Slope.  However, that was not included and hence, the Other Part could not have been formed at the same time as the Cut-Slope.

67.  The BA has also said if the Tribunal had somehow rejected Mr Lo’s evidence, this conclusion is also tainted with procedural unfairness as it had failed to give adequate reasons to explain why the evidence is rejected.[36]

68.  I also do not accept this complaint.  As I have explained at paragraph 66 above, properly read, the Tribunal had adequately explained the reasons why it did not accept the BA’s case (as supported by Mr Lo’s evidence) that the Other Part was formed at the same time as the Cut-Slope and that the cutting away adversely affected the Other Part.

69.  Insofar as if this complaint is to challenge the weight that the Tribunal put on this part of the evidence against the other evidence it had considered, this is not within the purview of judicial review as explained above.

70.  In the premises, I will also reject this ground of challenge.

C3.   Ground 2 – Erroneous ruling about no “improvement” obligation[37]

71.  As said by Mr Mok, this ground concerns the Second Reason, which basically was that neither SC8 nor section 27A imposed on obligation on the IPs to “improve” the Feature.

72.  Given my above rejection of Grounds 1 and 3, strictly speaking it is not necessary for this court to deal with this ground of challenge as the judicial review has to be dismissed.

73.  However, for completeness sake, I would deal with this ground shortly.

74.  The Tribunal explained the Second Reason at paragraphs 33 to 39 of the Decision as follows (footnotes omitted):

“是維修保養（repair and maintenance）還是改善工程（improvement）？

33. 答辯人的專家證人盧先生在接受委員會提問時澄清，其顧問公司對該地物作出可變得危險的此一判斷，其唯一的依據，是就一個在顧問報告中被稱為「A-A’」的橫切面（section），進行研究和分析的結果。該橫切面從該斜坡的表面切入，顯示了該斜坡的結構，包括它的輪廓（profile）和斜度（gradient）。研究和分析顯示，該斜坡的灰泥面（chunam surface）跟水平線成60度，屬於太斜，致使該斜坡的安全系數不足。但盧先生亦同時表示，該斜坡是由已經風化的花崗岩（weathered granite）所組成，結構相當穩定；相信該斜坡現時的狀況，跟它在約1972年最初形成時的狀況，沒有多大分別。

34. 答辯人立人之一的林建忠先生亦向審裁小組解釋，在土力工程處於1978年成立以前，業界對斜坡的建築及安全，並沒有一套公認的岩土工程標準，可供參考或遵循。當年，一般斜坡只是跟隨業界內的慣常做法，而並無特別的岩土工程管制。林先生確認，該地物無論在設計或形成方面，根據業界當時的認知，都是可以接受的。林先生的證供，解決了為何地政總署當年批准該斜坡的形成，並對該地段的發展工程發出滿意紙。

35. 由是觀之，答辯人透過發出該命令而要求上訴人做的，並不是把該地物保養維修，把它維持在最初形成時的狀態，而是將它予以改良，使之乎合現今的安全標準。答辯人是否有責任對該地物進行這樣的改善工程?

36. 正如上文第22段所言，在該特別條件底下，承批人須把護土牆或其他承托物，時刻進行保養維修，使其保持良好及穩固的修葺（repair）和狀態。假如真的發生了任何泥土傾瀉、沉降或滑坡事件，承批人必須自資把該附近山坡恢復（reinstate）和還原（make good）。故此，該條款只令承批人負上保養維修的責任，而非進行改善工程的責任。

37. 審裁小組亦認為，該條例的第27A(1)條，只是提供一個法定途徑（statutory remedy），讓答辯人可以更方便有效地向根據政府租契有義務保養土地或構築物的人，強制執行該義務，而不是把在政府租契內沒有要求的額外責任，加諸該人身上。

38. 故此，答辯人無權向上訴人發出該命令，要求它們對該地物進行改善工程。答辯人發出該命令的決定，亦因此應被推翻。

39.   雖然這項推翻該命令的理由，並不在上訴人的上訴理由之列，但上訴人並無律師代表，太多技術性的關於，會對它們造成不公；況且，審裁小組秘書於2012年8月29日致函雙方，要求他們在2012年9月5日的聆訊中，就這個議題作出陳述；答辯人亦有足夠機會考慮該議題，及就該議題向審裁小組作出陳述。故此，審裁小組以該理由作為推翻該命令的其中一項理據，對答辯人並無不公。”

75.  In the premises, the Tribunal was of the view that:

(1)   The IPs’ obligations under SC8 were only to “repair” the relevant retaining wall or other support, and, in the case of any landslip, subsidence or falling away in or from the adjacent hillside, to “reinstate” and “make good” the same.

(2)   These contractual obligations (which were agreed to by the IPs) in effect were only to protect and maintain or restore the cut away adjacent hillside and its retaining wall and supports to the conditions as they were at the time of the approved creation.

(3)   In the premises, the IPs were not under any obligations to do any works at the adjacent hillside the effect of which was to “improve” their conditions.

(4)   In the present case, the BA’s own evidence was that the Feature (consisting the Cut-Slope and the Other Part) had only become dangerous by reason of the current geotechnical standard and knowledge adopted by Maunsell.  However, the Feature was regarded as safe (and hence approved by the BA) at the time its creation by the then standards.  In the premises, if the IPs were required to carry out works on it to make it compliant with the current standards, they were in effect required to “improve” the Feature.  This went beyond the IPs’ obligations under SC8.

(5)   Section 27A, on proper construction, also could not have the statutory effect to impose on the IPs obligations which were beyond what had been agreed to under the relevant government lease.

76.  Mr Mok contends that the Tribunal erred in this reasoning in that SC8 and section 27A do not impose obligation to “improve” the Feature.

77.  I agree with Mr Mok.

78.  I think it is unfortunate that the Tribunal labelled the works required to be done under the DH Order as “improvement” in determining whether the IPs were under a SC8 obligation to do the same.

79.  The proper way is again to look at the wording of SC8 to determine the scope of the relevant obligation.  In this respect, it is important to read that, under SC8, the grantee “shall construct … such retaining walls or other support as shall or may then or at any time thereafter be necessary to protect and support such hillside”.

80.  In other words, under this part of SC8, the IPs as lessees shall construct such “other support” to protect and support such adjacent hillside if at any time thereafter is necessary to do so.  The words “any time thereafter” by its ordinary and natural meaning objectively refers to any time after the original cutting away or removal or setting back of the adjacent hillside.  There is therefore no temporal limit to this requirement. This meaning is further reinforced by the preceding words “shall or may then”, as these words already refer to the very time when the work of the cutting away or removal is carried out.

81.  In this respect, I also agree with Mr Mok’s submission that, properly read, the need to construct retaining walls or other support contemplated by this part of SC8 could have arisen “at any time” after development of the Lot.  So long as there was such need, the IPs had to discharge this duty irrespective of what caused such need.  Further, the duty is to construct those walls or support “necessary” to protect and support the subject hillside, and common sense dictates that what is necessary “at any time thereafter” should be judged by reference to applicable current standards. Otherwise, the words “at any time thereafter be necessary” would become superfluous and meaningless.

82.  In the present case, as Mr Mok points out, no one has disputed that the Feature has become dangerous, even though it is because, under the present date knowledge of hillside and slope safety, the said original 60 degree cutting has rendered the said hillside dangerous and liable to fall.  In other words, it has now become necessary to construct such other support or retaining wall to protect and support the said adjacent hillside.

83.  In the premises, under SC8, the IPs has an obligation to construct those walls or support “necessary” to protect and support the subject hillside irrespective of why the Feature was or had become dangerous.

84.  Once the SC8’s obligation is so properly understood, it is not a case that section 27A(1) imposes a higher or wider obligation than as imposed by the Government lease on the IPs to “improve” the Feature as found by the Tribunal.

85.  I therefore accept Mr Mok’s submissions that the Tribunal had erred in law in its Second Reason.

86.  This part of the Decision should therefore be quashed.

D.   CONCLUSION

87.  For the above reasons, although the BA succeeds in its challenge against the Second Reason, the BA fails in its challenge against the First Reason.  On that basis alone, the judicial review against the Decision should still be dismissed as the Appeal was correctly allowed under the First Reason.

88.  Further, although I have dismissed the grounds challenging the First Reason, I would not say that the proposed further amendments made in the draft Re-Amended Form 86 in support of those grounds are not reasonably arguable with a realistic prospect of success if they are considered at the leave stage.  I would therefore formally grant leave to the BA to amend the Amended Form 86 in the form of the draft Re-Amended Form 86. Costs of the application to re-amend be in the costs of the judicial review.

89.  In light of the above outcome, I believe a fair and just costs order should be that the BA should bear half of the IPs’ costs in this judicial review.  I therefore make an order nisi that half of the costs of this application be to the IPs to be taxed if not agreed.

90.  I thank counsel for their helpful assistance in this matter.