THE BUILDING AUTHORITY v. APPEAL TRIBUNAL (BUILDINGS)

1997,No. AL 85

IN THE HIGH COURT OF THE HONG KONG

SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

THE ADMINISTRATIVE LAW LIST

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J U D G M E N T

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1. The land (K.I.L. 2341) was sub-divided into K.I.L. 2341 s.E., K.I.L. 2341 R.P., and K.I.L. 2341 s.B.s. Manly Court occupies K.I.L 2341 s.E. and is known as 195 Prince Edward Road West. Harita Court at 197-199A Prince Edward Road West and Wale's Court at 201-203 Prince Edward Road West occupy K.I.L. 2341 R.P. and K.I.L. s.B.s. respectively.

2. At the side of the land right next to Manly Court there is a slope with a retaining wall. The retaining wall is dangerous and remedial works are required.

3. On 27th of February 1995, the Building Authority served an order No. DH 1/K/95/C (the 1st Order) under section 27A of the Building Ordinance on The Incorporated Owners of Manly Court, 195 Prince Edward Road West Kowloon as owner of the land K.I.L 2341 s.E. The order required the owners of Manly Court to carry out remedial works in connection with the retaining wall on the land.

4. On 1st of April 19996, the Building Authority issued another order No. DH 2/K/96/C (the 2nd Order) which superseded the 1st Order in connection with the remedial works to the said retaining wall. The Order stipulated that the remedial works were to be completed between 13th May 1996 and 8th July 1996.

5. The 2nd Order was served on The Incorporated Owners of Manly Court, The Incorporated Owners of Harita Court as well as all the co-owners of Wale's Court, as persons who under the terms of a Crown lease are under an obligation to maintain the land.

6. Six of the co-owners of Wale's Court appealed to the Appeal Tribunal (Buildings), (the Tribunal) under s. 47 of the Buildings Ordinance against the 2nd Order.

7. The suggestion by the six co-owners of Wale's Court was that the owners of Manly Court alone should be responsible for the remedial works and not the Crown lessees of the land as the said retaining wall was built for Manly Court and hence only the owner of Manly Court gets the benefit of the wall and only they are at risks when the said retaining wall is dangerous.

8. After a full hearing, the Tribunal allowed the appeal by the six co-owners of Wale's Court and directed the Building Authority to serve the 2nd Order on The Incorporated Owners of the Manly Court as owner of the said retaining wall and that the remedial works in question could be completed between 15th of September 1997 and 1st of November 1997.

9. The Tribunal, in its written decision made the following observation;

"After listening to the Appellants and the Respondent and having perused all the relevant documents and written submissions submitted to the Tribunal, the Tribunal was of the view that in exercising its discretion under Section 27A(1) of the Buildings Ordinance, the Building Authority was perfectly entitled to serve the said Order on the owners of the said Structure, i.e. the Incorporated Owners of Manly Court, No. 195 Prince Edward Road West, Kowloon. It was agreed between the parties that the said Structure falls within the boundary of K.I.L. 2341 Section E only. It was also clear from the manner in which the Structure was formed that it was to make way for the construction of Manly Court and hence only the owners of Manly Court would benefit from the formation of the said Structure. The remarks made by the Geotechnical office in its "Case Sheet" also stated that the risk imposed by the dangerous slope mainly affect the owners of Manly Court. In addition, and perhaps most important of all the Building Authority in its own internal Manuals has clearly stated that in a case such as the present one, the order should be directed towards the owner of the structure even if the structure was formed for the development of the whole lot. (In this case, of course, the structure was not even formed for the development of the whole lot but merely for the benefit of Section E, i.e. the Incorporated Owners of Manly Court.) For the above reasons, the Tribunal came to the unanimous decision that the said Appeals should be allowed and in order to produce an equitable result so that not only the Appellants who appealed against the said Order should benefit, the Tribunal under Section 50(2) of the Buildings Amendments Ordinance 1994 varied the said Order and directed that the Building Authority should forthwith serve the Order with appropriate consequential amendments on the Incorporated Owners of Manly Court Only........."

10. The Tribunal had in effect invalidated the 2nd Order as it required the Building Authority to serve an order with appropriate consequential amendments. If the Building Authority was to serve an amended order in line with the order of the Tribunal, the timetable in which the remedial works required to be done by The Incorporated Owners of Manly Court would change and they would be liable for such remedial works as owners of the retaining wall in question and not as the Crown lessees nor owner of the land.

11. The Building Authority considers the decision of the Tribunal ultra vires and hence the present application for a judicial review. The Building Authority seeks to quash the decision of the Tribunal ordering that the 2nd Order be varied in such a way that it should be served on the owner of the retaining wall and that the owner is under an obligation to carry out the required remedial works between 15th of September 1997 and 1st November 1997, leave having been granted on 16th of September 1997.

12. Section 44 of the Building Ordinance entitles a person aggrieved by any decision of the Building Authority to appeal to the Appeal Tribunal and section 50(2) of the Ordinance provides:-

"In determining an appeal, the Appeal Tribunal may make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such other order as it thinks fit."

13. Section 50(2) of the Building Ordinance empowers the Tribunal to make such other order as it thinks fit. But such power can only be exercised in the determination of an appeal brought under Section 44.

14. The Tribunal was at all material times dealing only with the appeals brought by the six co-owners of Wale's Court. There was no appeal by The Incorporated Owners of Manly Court or Harita Court or the other individual owners of Wale's Court.

15. The issue is whether the Tribunal can, in exercising the power under Section 50(2) of the Building Ordinance, make orders with respect of persons who have not exercised their right of appeal under Section 44 of the Building Ordinance.

16. Under Section 43 of the Building Ordinance, "Appeal Tribunal" in relation to an appeal means the tribunal constituted under section 48 to hear and determine that appeal and under Section 48, "the Governor shall appoint .......... a tribunal..........for the purpose of hearing and determining the appeal to which the notice (a notice given under section 47) relates."

17. The wording of the Building Ordinance is clear. The Tribunal can only hear and determine an appeal to which a notice of appeal given under section 47 relates.

18. The only notices of appeal given under section 47 related to the appeals by the six co-owners of Wale's Court. The other parties to whom the 2nd Order was served had not given any notice of appeal and the Tribunal therefore had no power under the Building Ordinance to make any order affecting them.

19. It is also fundamental to fair procedure that both sides should be heard before a decision is made against them. The other owners were not parties to the appeal. They had not been heard before the order affecting them was made. The approach of the Tribunal in so far as it seek to make order relating to the other owners who had not appealed was against natural justice. The order thus made was void. (Ridge v. Baldwin [1964] A.C. 40)

20. I do not wish to speculate if the other owners would find the order made by the Tribunal acceptable. The importance of upholding the principle of natural justice-the right to be heard far transcends the significance of any particular case.

21. Unfortunately, the principle of natural justice had not been adhered to by the Tribunal. By making the order as it did, the Tribunal had also deprived the other owners of their right of an appeal.

22. I agree with the submission by Mr. Cooney, on behalf of the Building Authority that the Tribunal should have stopped after allowing the appeals by the six co-owners. By continuing to make order affecting the other owners who had not appealed, the Tribunal was ultra vires. The order was made in contravention of the principle of natural justice and was void.

23. In the circumstances, the application by the Building Authority must be granted. The order of the Tribunal that the 2nd Order issued by the Building Authority be varied as suggested is hereby quashed.

24. For the avoidance of doubt and to reflect the concession by Mr. Cooney, the decision of this court does not affect the position of the six co-owners whose appeals had been allowed by the Tribunal.

25. Mr. Cooney does not seek costs of the hearing against the Tribunal and I therefore make no order as to costs.