THE FILIPINO CLUB v. THE APPEAL TRIBUNAL and Another

1995, No.MP977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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REASONS FOR JUDGMENT

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1. This is an application for judicial review of a decision of the Building Authority made on 20 July 1994 refusing to process the plans and calculations submitted by the applicant for the alteration of an existing carparking platform at No.10 Wylie Road, King's Park, Kowloon pursuant to s.24(1)(c) of the Buildings Ordinance, Cap.123. The applicant further sought a declaration that the Practice Note for Authorised Person and Registered Structural Engineer No.125 (the said Practice Note) has wrongly stated the law in respect of the provisions of s.14 and/or s.24(1) of the Ordinance. The applicant also sought to judicial review the dismissal of its appeal by the Appeal Tribunal dated 7 January 1995.

2. The applicant had added a steel carparking platform in its club premises without first obtaining approval of the Building Authority prior to its construction. The illegal structure was subsequently discovered by the Building Authority which then issued an order (No. C0013/94/K) dated 4 March 1994 pursuant to s.24(1) of the Ordinance against the applicant. The order required the applicant to demolish and remove the illegal structure and to undertake remedial works to the slope on which the illegal structure was constructed under the supervision of an authorised person and a registered structural engineer. On 6 May 1994, the applicant appointed Mr. Choy Bing Wing as its authorised person and registered structural engineer. However, instead of supervising the demolition of the illegal structure and any remedial work necessary to the slope, Choy purportedly submitted plans on 23 May 1994 for altering and normalising the said illegal structure under s.24(1)(c) of the Ordinance. On 20 July 1994 the Building Authority refused to process the said plans on the ground that it had no power to give retrospective approval or consent in respect of building works that have already been completed, as stipulated in the said Practice Note. The applicant, via Choy, appealed against the decision to the Appeal Tribunal pursuant to s.44 of the Ordinance on 21 July 1994.

3. Before the Appeal Tribunal were placed two relevant decisions on the issue : a decision of the Appeal Tribunal dated 22 May 1987 in respect of Pak On Building, and a decision of the High Court in MP No. 930 of 1988. At a full hearing held on 7 January 1995, the Appeal Tribunal dismissed the applicant's appeal.

4. It is submitted by the applicant that the decisions of the Building Authority and the Appeal Tribunal were wrong in that under s.24(1)(c) of the Ordinance the Building Authority has power to process and approve plans submitted for the purpose of obtaining retrospectively the approval and consent that ought to have been obtained prior to the construction of the illegal structure. It is the applicant's contention that the Building Authority can only refuse to approve submitted plans on the grounds set out in s.16 of the Ordinance and no others. It alleges that the Building Authority had erroneously taken into consideration a matter that is not within the ambit of s.16; namely, that the plans related to existing illegal structures. By so doing, it is submitted, the Building Authority had acted ultra vires the provisions of s.16.

5. The Building Authority has set out its reason in its letter of 20 July 1994. It stated that the plans were submitted for approval and "consent to the commencement and carrying out of the erection" of the structure. But the truth is that the structure in question had "in fact been erected on site, and also it is the subject matter of an Order by the Building Authority served under section 24(1) of the Buildings Ordinance". Under s.42(5) of the Ordinance, the necessary approval of plans and consent to commencement of work under the Ordinance cannot be exempted by the Building Authority. In the premises, "it is therefore clear that no powers are available to the Building Authority to give retrospective approval or consent in respect of building works which have already been completed"(emphasis added). The applicant's attention was also drawn to the said Practice Note.

SECTION 16

6. It is accepted that the Building Authority can only refuse to give its approval to plans upon grounds set out in s.16 of the Ordinance and no others. However, it is inaccurate for the applicant to phrase the reason given by the Building Authority in the way it did. It has never been the case of the Building Authority that it refused to process the plans because they related to illegal structures, though it did make a casual reference to the existence of an order under s.24(1). The basis for the decision was that the works, the subject matters of the plans submitted, had already been completed. It was insignificant for the decision whether the completed structures were legal or illegal. The logic of the decision is that one cannot seek approval to construct structures that had already been constructed. The application for approval should and must be made prior to the construction of the structure in question. It would be wholly illogical and superfluous for one to seek consent to the doing of such act after it had been done.

7. Pursuant to s.16(1)(c), the Building Authority is entitled to refuse approval to plans if it "has not received application for their approval in the specified form or any such application does not contain the particulars required therein". In the premises, an applicant is required to submit his plans with a Form BA 17. In this application form, an applicant makes an application for permission "to erect" the structure as shown in the plans appended; and for consent to "the commencement and carrying out" of the erection of the structure. It is not an application for approval and consent to structures already erected. Thus, any Form BA17 used for the purpose of seeking approval to existing structures or completed works would be a misrepresentation of the facts and the nature of the application. Furthermore, pursuant to s.16(1)(a), the Building Authority is entitled to refuse to approve plans that "are not such as are prescribed by regulation or are not such as he may have required under this section". There is no requirement anywhere in the Ordinance for the first plans (not amendments) relating to completed buildings or structures to be submitted for approval after construction works had commenced or completed. As the statutory scheme is for approval and consent to be obtained prior to the commencement of building works (making it an offence for a failure to obtain such consent prior to the commencement of works); there is no provision for applying for retrospective consent. In the premises, the Building Authority is entitled under s.16(1)(a) and (c) to reject an application for approval to works already commenced or structures completed prior to the making of the application.

8. Furthermore, the Building Authority is entitled to refuse to give consent to works the carrying out of which would contravene the provisions of the Ordinance or other enactment. If it is alleged that the plans submitted in respect of the illegal structure were for the approval to commence works to render them in compliance with the requirements of the Ordinance so that the Building Authority could be persuaded to withdraw the demolition order, such an application would come within s.16(1)(d). Until the demolition order is withdrawn, the applicant is still obliged to demolish the illegal structure. An application for approval to commence work for the alteration, and not demolition, of a structure ordered to be demolished under a demolition order is an application for carrying out work that would contravene the said order, and thus a contravention of the provisions of the Ordinance. Any application for approval for works to remedy a structure that is the subject matter of an effective demolition order can be validly rejected by the Building Authority under s.16(1)(d).

9. It is perhaps regrettable that the Building Authority had not seen fit to set out in its letter in clear terms the specific statutory provisions under s.16 in which it was relying to reject the application. However, the basis of the decision is abundantly clear from the tenor of the said letter. In any event, it is provided in s.15(2) that the grounds set out by the Building Authority shall not be treated as exhaustive. I am satisfied that there is no substance in the applicant's complaint and the application was rightly rejected under s.16 of the Ordinance.

10. The applicant had not pursued its complaint relating to the alleged unlawfulness of the said Practice Note at the hearing. I am nevertheless satisfied that there could be no merits in such complaint. The decision of Godfrey J., as he then was, in Yeung Pui Yee v. The Building Authority, HCMP No.930 of 1988, has determined this issue.

SECTION 24(1)(C)

11. In the written submission, though not in the oral presentation during the hearing, counsel for the applicant appeared to suggest that the Building Authority was wrong not to have considered its "discretion" under s.24 properly. It was suggested the Building Authority should have exercised its power under s.24(1)(c) rather than under s.24(1)(a) in respect of the contravening structure in question. Section 24(1)(a) empowers the Building Authority to require the demolition of the contravening structure, whereas s.24(1)(c) empowers it to require alteration of the same to comply with the provisions of the Ordinance or put an end to the contravention.

12. It is a misconception to suggest that the Building Authority could or should exercise its discretion under s.24(1)(c) in respect of a structure that contravened the Ordinance because of a lack of prior consent to the erection of the same. The contravention in question cannot be redressed or remedied by any subsequent order for "alteration" of the structure. The contravention in question was not one that involved the physical framework of the structure; it was one of lack of consent for its erection. It would have been otherwise if the contravention referred to by the Building Authority was directed towards the safety or design of the structure in question, whether the same was erected with or without consent. I am clearly of the view that s.24(1)(c) could not have been available to the Building Authority to remedy a lack of prior consent even if it wished so to do.

13. By reason of matters aforesaid, it is wholly within the power of the Building Authority to reject any application for retrospective approval for building works or structures submitted after the works have commenced or the structure completed. The application for judicial review thus failed and was dismissed with costs.