HEAD STEP LTD. v. BUILDING AUTHORITY

IN THE COURT OF APPEAL

1995, No. 131
(Civil)

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J U D G M E N T

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Liu, J.A.:

1. The respondent company, Head Step Limited, sought approval of building plans in four successive submissions to the appellant, the Building Authority. I shall call the respondent "Head Step" and the appellant "The Building Authority". By the time of the third submission which was made on a set of wrong plans and duly withdrawn, the Outline Zoning Plan No. S/K11/5 had been amended to Outline Zoning Plan No. S/K11/6. The effect of the amendment was to lower the permitted plot ratio from 15 to 12. In the result, the development potential of Head Step's site is reduced. When Head Step made its 4th submission for approval to the Building Authority, the Building Authority queried whether the submitted building plans complied with a plot ratio of 12 and refused to approve those building plans for a number of reasons, including breaches of our fire code and some parking concerns. It is conceded that the Building Authority had wrongly assumed that submitted building plans must be peremptorily rejected for any non-compliance with or breach of statutory requirements. The Building Authority was then unaware of and did not consider exercising its discretionary power. It is, therefore, agreed on all hands that the 4th submission would have to be remitted back to the Building Authority for re-consideration on a proper basis.

2. Head Step obtained leave to apply for judicial review. Pursuant to leave granted, the matter came before Sears, J. Following his own decision in Heland Investment v. The Attorney General and the Building Authority, MP684 of 1994 and the decision of Mayo, JA, as he then was a judge of the High Court, in R. v. the Director of Buildings and Lands ex parte Super Mate Limited, MP200 of 1994, both unreported, on the almost identical plans then submitted again to the Building Authority in Head Step's 4th submission, the judge held the 4th submission to be a "re-submission" in the "ongoing matter" of the original application. The Building Authority had in fact acknowledged that the building plans in the 4th submission were substantially the same as those submitted by Head Step in its first submission. Sears, J further held that the law applicable to Head Step's 4th submission was the law in force at the time when the first submission was considered by the Building Authority. The first submission had been disapproved within the prescribed period of 60 days of its presentation. The judge therefore quashed the disapproval and remitted the case to the Building Authority for a re-hearing on the basis of a plot ratio of 15 as permitted by the then superseded Outline Zoning Plan No. S/K11/5. From the determination of the judge, the Building Authority now appeals. The Building Authority seeks to set aside the order of the judge and restore his disapproval of the general building plans in the 4th submission. The Building Authority also asks for costs of this appeal and below.

3. Under section 14(1)(a) and section 15(1) of the Buildings Ordinance, the statutory duty of the Building Authority is to consider the submitted building plans in accordance with the regulations. Section 14(1)(a) and section 15(1) read:

"14. Approval and consent required for commencement of building works, etc.

(1) Save as otherwise provided, no person shall commence or carry out any building works or street works without having first obtained from the Building Authority-

(a) his approval in writing of documents submitted to him in accordance with the regulations;"

"15. Approval and consent deemed to be given unless refusal notified

(1) Where an application is made in the specified form for the Building Authority to approve plans or to consent to the commencement of building works or street works, he shall be deemed to have given his approval or consent, as the case may be, unless within the period prescribed by the regulations he has notified his refusal to give his approval or consent, as the case may be, in writing setting out the grounds for such refusal, and where one of such grounds is that further particulars and plans are required, he shall specify such plans and particulars."

4. Therefore, unless the submitted building plans are approved or disapproved within the period prescribed by the regulations, these plans shall be deemed to have been given the approval of the Building Authority. See s. 15(1). The relevant regulations 29 and 30 of the Building (Administration) Regulations are set out below:

"29. Application for approval

(1) Save as provided in regulation 33, application for approval of plans of building works or street works shall be made in the specified form and shall be accompanied by such documents as are required under these regulations.

(1A) The Building Authority may charge the applicant the prescribed fee in respect of an application made under paragraph (1).

(2) Subject to regulation 11, any one or more of such plans may be submitted for approval separately.

(3) Without prejudice to regulation 30(3), the submission of further particulars or other plans consequent upon the refusal of the Building Authority to give his approval under section 16(1)(i) or (2)(f ) of the Ordinance shall be deemed to be a fresh application in respect of the plans which the Building Authority had refused to approve."

"30. Approval of plans

(1) The approval of the Building Authority in respect of the plans submitted to him shall be signified by-

(a) notice in writing served on the person making application therefor; and

(b) the stamping, signing and dating of one copy of such plans, other than structural calculations, which shall be returned to the authorized person or registered structural engineer.

(2) The Building Authority may, upon application therefor, give separate approval for any one or more of the plans submitted.

(3) For the purposes of section 15 of the Ordinance, the period after which the Building Authority shall be deemed to have given his approval of plans submitted to him shall be

(a) in relation to plans which are submitted for the first time to the Building Authority for approval, 60 days from the date on which the plans were submitted;

(b) in relation to plans which, having been previously submitted to the Building Authority for approval, are submitted to him again for approval so extensively revised as to constitute, in the opinion of the Building Authority, a major revision of such plans, 60 days from the date on which the plans were last submitted;

(c) in relation to any other plans which, having been previously submitted to the Building Authority for approval, are submitted to him again for approval, 30 days from the date on which the plans were last submitted.

(4) If the Building Authority is of the opinion that plans submitted to him again for approval constitute a major revision of any plans previously submitted to him for approval, he shall notify the appointed authorized person or registered structural engineer accordingly, not later than 30 days from the date on which the plans were last submitted.

(5) - (6) (Repealed)"

5. Section 16 of the Building Ordinance provides numerous grounds upon which the submitted building plans may be disapproved by the Building Authority.

6. The period, at the expiration of which approval of submitted plans, unless otherwise rejected or withdrawn, shall be deemed to have been given by the Building Authority is 60 days from submission in relation to plans submitted for the first time, 30 days in relation to previously submitted plans which are re-submitted or "submitted to him again" and 60 days in relation to previously submitted plans which are re-submitted or "submitted to him again" with a major revision. See regulation 30 (3)(a)(b) & (c).

7. Regulation 29(3) refers to "a fresh application". Regulation 29(3) deals with an application to the Building Authority for approval of plans "submitted to him again" with requested particulars and other plans, but not made by way of a fresh application "in respect of the plans which the Building Authority had refused to approve". It would then be deemed "a fresh application" by regulation 29(3). That situation would arise if, after the Building Authority has refused approval with a request for further particulars or more building plans under s. 16(1)(i), an application for approval of plans is "submitted to him again" with further particulars or other plans as requested. The use of the term "fresh application" in regulation 29(3) indicates that the regulations presuppose the possibility of the making of wholly fresh applications to the Building Authority after an original submission so that certain applications for approval of plans "submitted to him again" after disapproval, though not of themselves fresh applications, could be deemed by law to be also fresh applications "in respect of the plans the Building Authority had refused to approve". It can readily be appreciated that a submission to the Building Authority may be a first submission, a submission of plans "submitted to him again" or perhaps then again until approval or a fresh submission. If every re-submission of previously disapproved plans were or were regarded as a fresh application, there would be no room for the shorter period of 30 days to apply with reference to the deeming s.15(1) and regulation 30(3)(b) and (c) would both be redundant.

8. It is the case of Head Step on appeal that the 4th submission is not a fresh application, but a continuation of the first submission and that the law applicable was crystallised as at the time the Building Authority first considered that submission within the prescribed period of the initial 60 days. On behalf of the Building Authority, Mr Cooney submits that since the approval of building plans is a continuing process concluded only upon an approval is given or when the application is abandoned, the Building Authority would inevitably be required to consider building plans submitted and re-submitted, from time to time, in the course of the approval process. Counsel further submits that in the discharge or performance of this statutory duty by the Building Authority, the relevant law is the law prevailing each time he is being called upon to consider and, if he thinks fit , pass the submitted building plans.

9. Counsel for Head Step, Mr Benjamin Yu, relies heavily on Super Mate and Heland. It was held in these decisions that submission or re-submission of substantially the same building plans at any point of time was or was to be regarded as part of the first submission. Super Mate and Heland involved almost the same original building plans and were decided on their own facts. The opinion of the Board in A.G. v. Firebird Limited, Privy Council Appeal No. 17 of 1982, given on 23 May 1983, is also craved in aid by Mr Yu to fortify his contention that in the case of a first submission or a fresh submission, including what is said to be their respective continuation, the relevant law throughout would remain to be the law in force at the time when the Building Authority first considers the original submitted building plans or (as the case may be) building plans in a fresh application within 60 days of the respective application. In Firebird's judgment of the Judicial Committee (at the bottom of p. 4 and the top of p. 5), their Lordships delivered themselves of the following opinion:

".... the relevant law must be the law applicable at a date when the Building Authority performs its statutory duty of considering the plans within the 60 days, and not some other spent law."

However, that passage must not be read out of context or without regard to the dispute then before the Judicial Committee. As it was well said in another judgment of the Privy Council delivered by Lord Upjohn in Ogden Industry Pty Limited v. Heather Doreen Lucas [1970]AC113 at p. 127C/D - E:

"[Their Lordships] desire to reiterate, however, what has so often been said before that in a common law system of jurisprudence which depends largely upon judicial precedents and the earlier pronouncements of judges, the greatest possible care must be taken to relate the observation of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, to the general compass of the facts before him, unless he makes it clear that he intended his remark to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied, and any attempt at such perfection of expression could only lead to the opposite result of uncertainty or even obscurity as regards the case in hand."

10. In Firebird's case, building plans were submitted on 8 September 1979. Twenty days later on 19 October 1979, the Building Authority refused approval of the plans submitted. Approval was, therefore, refused within the prescribed period of 60 days of a first submission. In between the making of this first submission and the Building Authority's refusal, the site was re-classified from a Class C site to a Class A site to the disadvantage of the developer. Against the background of a claimed "accrued right", the issue before the Privy Council was: "Notwithstanding the amendment to the Building (Planning) Regulations, the approval of the plans had to be determined upon the basis that the site remained a Class C site and had not become a Class A site upon the amendment taking effect." The obverse as put by the Attorney General for the Building Authority was: "Upon the amendment taking effect, the site at once became a Class A site and that the approval or disapproval of the plans had to be considered on that basis". That was the issue for their Lordships' consideration. It was held that the Building Authority had a statutory duty to perform. On the facts of the Firebird's case, this public duty of considering plans submitted in a first submission had to be discharged within the 60 days. By s. 14(1)(a) of the Building Ordinance, his statutory duty had to be performed according to law . What the Judicial Committee had to decide was the relevant law. In the context of a first submission in Firebird, as the Building Authority must approve or disapprove the submitted building plans within a period of 60 days otherwise they would be deemed to have received approval, it was held that the law applicable was that as existing at the date when the Building Authority considered the building plans within that prescribed period. In fact, the Building Authority refused approval on the 20th day after submission which was made on 8 September 1979. But that is not to say that the relevant law for each submission must always be the law applicable at the time when the Building Authority first considers the building plans within the prescribed period of 60 days of the original submission. There was no further or another fresh submission in Firebird. If a further submission had been made "again" to the Building Authority for approval, the prescribed period would have been only 30 days. See Regulation 30(3)(c). In Firebird, their Lordships did not and did not purport to make any determination in relation to a further or fresh submission to the Building Authority; nor was it decided that every submission was a new or fresh application. Indeed, no pronouncement of general principle was made by their Lordships. The submitted building plans of Head Step were not, wholly or in part, approved, and in this appeal it is not sought to be argued that the Building Authority was otherwise barred from re-considering them in the 4th submission. The question under consideration is what the relevant law for the 4th submission was. As to that, good guidance may be derived from what would appear to be the rationale in their Lordships' approach to resolving the issue before the Judicial Committee. To begin with, the Building Authority has a statutory duty of considering building plans according to law. Quoting their Lordships in part, "the relevant law must be the law applicable at the date when the Building Authority performs [his] statutory duty of considering the plans". Then it would be easy for me to take one further step in my mental process to reach the conclusion that the relevant law should be the law prevailing each time the Building Authority is asked to consider the submitted building plans and not the "spent law".

11. For our purpose, their Lordships' rationalization in their basic approach to the issue in Firebird is more instructive than any attempted semantic analysis of the language, in which their Lordships chose to express their opinion on the facts of that case. It matters not, therefore, whether the submission under consideration was the first application or a further step in the first approval seeking process by way of re-submission or a fresh submission. What is central to this appeal is the fact that the Building Authority was called upon to perform its statutory duty of considering the submitted building plans in the 4th submission. The relevant law was the law prevailing at the time when the 4th submission needed to be considered by the Building Authority. In my view, whenever the Building Authority is required to discharge this public duty, the relevant law is the one applicable at the time when the Building Authority performs that duty. In this case, the relevant law then in force provided a plot ratio of 12 under the Outline Zoning Plan No. S/K11/6, not 15 under the earlier Plan No. S/K11/5.

12. I would allow the appeal and set aside the order of the judge save for the ordered re-hearing of the 4th submission by the Building Authority. The Building Authority is to reconsider the 4th submission in accordance with this determination, that is to say, on the basis that the relevant law applicable was as prescribed by Outlining Zoning Plan No. S/K11/6. I would make an order nisi of costs against Head Step here and below.

Ching, J.A. :

13. I have had the advantage of reading in draft the judgments of Liu, J.A., and Seagroatt, J. I agree that this appeal should be allowed and that the matter should be remitted to the Building Authority for the reasons that follow.

14. The facts are simply as follows. Head Step submitted for approval building plans with a plot ratio of 15. At that time that figure or the figure for the existing building, whichever was the greater, was the maximum permissible plot ratio under Outline Zoning Plan No. S/K11/5. Approval was refused by a letter dated 9th November, 1993. One of the reasons given for that refusal was that further information or clarification was required under section 16(1)(i) of the Buildings Ordinance, Cap.123. Another submission was made, again with a plot ratio of 15. Before this was considered by the Building Authority, Outline Zoning Plan No. S/K11/6 supervened reducing the maximum permissible plot ratio to 12 or the figure of the existing building whichever was the greater. Approval was refused by a letter dated 17th January, 1994. Again, one of the reasons given for the refusal was that further information or clarification was required under section 16(1)(i), included in which was a requirement to demonstrate compliance with the plot ratio shown in Outline Zoning Plan No. S/K11/6. Head Step lodged an appeal to the Buildings Appeal Tribunal which was adjourned sine die and which has still not been heard. A third submission was made but was withdrawn. A fourth submission was made, again with a plot ratio of 15. Approval was refused, one of the grounds of refusal being that the proposed building contravened Outline Zoning Plan No. S/K11/6. Another was a requirement for information or clarification under section 16(1)(i).

15. Head Step applied for relief by way of judicial review. In the Court below and before us it was argued that the relevant Outline Zoning Plan was S/K11/5. It was said that that was the plan obtaining at the dates of the first and second submissions and the first refusal. The second and fourth submissions were merely part of and a continuance of the earlier submissions and the amendments in the plans were minor. Sears, J., acceded to these arguments and quashed the decision of the Building Authority refusing to grant approval of the plans in the fourth submission. He ordered the Building Authority to consider those plans on the basis of Outline Zoning Plan No. S/K11/5, that is to say with a maximum permitted plot ratio of 15 rather than 12. The Building Authority now appeals against that decision.

16. Head Step prayed in aid section 15(1) of the Ordinance in support of its argument. For my part, I do not see how that section assists. It provides that approval is deemed to have been given unless refusal is notified within the time limits specified by the regulations. Those time limits are laid down by regulation 30(3) of the Building (Administration) Regulations, Cap.123. The time limit for plans submitted for the first time is 60 days. That for plans previously submitted but which are submitted again and which constitute, in the opinion of the Building Authority, major revisions is 60 days. That for any other plans which are submitted to him again for approval is 30 days. Clearly, plans which are submitted for the first time or which constitute major revisions will require a longer time for consideration than those which show only minor amendments and this is recognised. But all that the section and the regulation do is to lay down the time limits within which a refusal must be notified on pain of a deemed approval. It is not possible to read into them any provision or recognition that plans containing only minor amendments submitted subsequent to a refusal are or are to be considered as part of or a continuance of the earlier submissions. In my view, the section and the regulation are irrelevant to any issue in this appeal.

17. It is not necessary to decide whether the Building Authority may seek clarification or further information without refusing his approval. The fact is that each submission was refused approval within the specified times. Those refusals were not conditional. It is not possible to enlarge upon such a refusal save to say that any further submission must therefore be a fresh submission, however minor the amendments to the plans may be. Indeed, Regulation 29(3) of the same regulations provides that

"Without prejudice to regulation 30(3), the submission of further plans consequent upon the refusal of the Building Authority to give his approval under section 16(1)(i) ..... of the Ordinance shall be deemed to be a fresh application in respect of the plans which the Building Application had refused to approve."

The refusals in the present case were, in part, under section 16(1)(i).

18. The Judge below followed the unreported decision of Mayo, J., as he then was, in R. v. The Director of Buildings and Lands ex. p. Super Mate Limited (M.P. No. 200 of 1994) and his own unreported decision in Heland Investment Limited v. The Attorney General and Building Authority (M.P. No. 684 of 1994). In Super Mate (supra) approval for plans had been refused. An appeal was lodged. The Building Authority admitted that the refusal had been by mistake and on the same day plans very similar to the original ones were submitted. By the time the Building Authority considered them the Outline Zoning Plan had been changed and the Building Authority required that the plans should confirm with it. Mayo, J., held that the relevant Outline Zoning Plan should have been that obtaining in the 60 days from the original submission. On the facts the decision was clearly right, for the refusal ought never to have occurred at all. In these circumstances, it was right to look to that Outline Zoning Plan. Mayo, J., however, went further and he held that it would be artificial to insist that when very similar plans are resubmitted it is necessary to regard the resubmission as a fresh application. In his opinion, it was much more realistic to regard the resubmission as part of an ongoing matter. With the greatest of respect I cannot agree.

19. In Heland (supra) the Outline Zoning Plan provided for a plot ratio of 5.9 but contained no height restriction. Plans were submitted for a building of 12 storeys. Approval was refused under section 16(1)(g) of the Ordinance which has to do with, inter alia, the proposed building conforming in height with those in the immediate neighbourhood or previously existing on the site. An appeal against the refusal was successful. Further plans were then submitted showing a building of 17 storeys with a plot ratio of 5.89. Approval was refused again on the basis of section 16(1)(g). There was another appeal. Before it was heard the Outline Zoning Plan had been amended to provide for buildings of 12 storeys and a plot ratio of 5. It was held that that was not the relevant plan. Upon the successful conclusion of the appeal plans were again submitted which were virtually identical to the immediately preceding ones. Sears, J., followed the decision in Super Mate (supra). Once more, the conclusion was clearly right. The Judge described the Building Authority as being piqued by the result of the first appeal and the letter refusing approval of the first set of plans for the building of 17 storeys as being irrational. However if, it seems to be the case, the ratio decidendi was that the resubmission of virtually identical plans makes that resubmission a part of the previous or original submission, I must respectfully disagree.

20. In the present case, Sears, J., held that

"The second and indeed the fourth applications to be made, in my judgment, were re-submissions of identical plans. It had been conceded by the Government that there is no real difference between the plans apart from certain building details, but to all intents and purposes it is the same building that has been submitted for approval. In my judgment, therefore, I follow my own decision and that of Mayo, J., and I consider that the Building Authority is under a duty when considering the re-submission of identical plans to have regard to the law as at the date of their first consideration, in other words, a plot ratio of 15."

I respectfully disagree.

21. The decision in Attorney General v. Firebird, Ltd., (Unreported, Privy Council Appeal No. 17 of 1982) had been delivered long before Super Mate (supra) and Heland (supra) were decided. In that case, plans were submitted at a time when the site was Class C. The regulations were then amended and the site became one in Class A. Thereafter, the Building Authority refused approval on the basis that the site was Class A at the time when it considered the submission. The Privy Council held that that was correct. This Court is bound by the decision and it lays down the following principles. First, the submission of plans gives no accrued right to have those plans considered on the basis of the law applicable at the time of submission without regard to subsequent amendment. Secondly, the law to be applied is that applicable at the date when the Building Authority considers the submission, within the time limits allowed. I can see no meaningful distinction between the facts in that case and those in the present case. It is said that in the present case as in the two local decisions there was a subsequent submission whereas in Firebird (supra) there was not. That is a distinction without a difference. To say that a subsequent submission after an unconditional refusal of the first is part of or a continuance of the first is simply to say that the first submission gave an accrued right, which the Privy Council has held it does not.

22. For the reasons given I would allow the appeal. It remains to deal with the fact that in refusing approval to the fourth submission the Building Authority did so on the basis that it had no discretion to give approval to plans when the carrying out of the building works would, inter alia, contravene an Outline Zoning Plan. This is admittedly wrong. The Building Authority has produced an affidavit that it would not in any event exercise its discretion in favour of Head Step on the plans in the fourth submission. I do not think that that is sufficient. Head Step should be given the opportunity of persuading the Building Authority to exercise the discretion in its favour.

23. I would therefore allow the appeal and remit the fourth submission to the Building Authority for it to decide whether or not it should exercise its discretion in favour of Head Step on the basis of Outline Zoning Plan No. S/K11/6. I would make an order nisi as to costs in favour of the Building Authority.

Seagroatt, J. :

24. This is an appeal against the decision of Sears, J. whereby on an application for judicial review he ordered that the Building Authority should consider the fourth application of Head Step Limited for approval of a building development on the basis of Outline Zoning Plan SK/11/5 viz. the law as at the time of the Authority's consideration of the first application.

25. The chronology needs to be considered in some detail. On the 22nd September 1993, Head Step submitted building plans to the Authority for approval showing a plot ratio of 15 which was that permitted by OZP SK/11/5 then in force. The Authority had 60 days in which to make their decision to approve or not, failing which approval would then be deemed to have been given.

26. On the 19th November 1993, within the specified period, the Authority refused to approve the plans for, inter alia, non-compliance with the Fire Codes and car parking provision.

27. On the 13th December 1993, Head Step submitted plans again, also based on a plot ratio of 15. The Authority had a maximum of 30 days in which to make a positive decision, one way or the other. These plans were very similar if not identical to those in the first application. It was, nonetheless, in my view, a fresh application.

28. Section 15(2) of the Buildings Ordinance provides that the grounds set out for refusal "shall not be treated as being exhaustive, and no such refusal shall be construed as implying any approval of any part of such plans."

29. This subsection is important in the context of Head Step's argument as to how second and subsequent applications, where there is no fundamental difference in the plans themselves - "no real difference between the plans" as Sears, J. put it -, should be treated.

30. The Authority on the 12th January 1994, refused approval or more or less the same grounds, as well as on a new ground. On the 24th December 1993 the OZP SK/11/5 had been amended and had become SK/11/6. The effect of that amendment was to reduce the permitted plot ratio from 15 to 12.

31. Head Step lodged an appeal under the Ordinance to the Buildings Appeal Tribunal against that refusal. It also made a further application (the third) on the 28th April 1994. The appeal was adjourned sine die. On the 13th May 1994, Head Step withdrew its third application - (the Authority had regarded the plans as a major revision of those submitted on the 13th December 1993) and made its fourth application. The Authority again refused approval because the building would contravene OZP SK/11/6.

32. In deciding that certiorari and mandamus lay to require the Authority to consider the fourth application on the basis of the OZP which existed prior to the second refusal, Sears, J. was influenced by two decisions at first instance, one of Mayo, J. in June 1994 - the Supermate application, and one of his own in October 1994 - the Heland Investment application.

33. In the former case, an application had been refused and the Applicant appealed to the Tribunal. In due course - six months later - the Authority abandoned its opposition to the appeal and the Applicant re-submitted the plans. About one week later, the OZP was amended and the Authority decided that the plans would have to be amended as they did not confirm to the new OZP.

34. In view of the similarity of the plans "re-submitted" in October 1993 to those originally submitted in February 1993, Mayo, J. took the view that it was highly artificial to regard the "re-submission" as a fresh application. They were "in all essential respects" similar to the original ones. The second basis for the learned Judge's findings was his conclusion that "The Applicant's present predicament has been brought about as a result of an error which has been made by the authority". He considered that that was amenable to redress being forthcoming from the Court. I respectfully agree with that conclusion and consider that it is the more probable basis for his order. I respectfully differ from the learned Judge if he was seeking to say that simply because "re-submitted" plans were "in all essential respects" similar to the original ones which had been rejected, then the matter was an ongoing one, rather than an application 'de novo'. I cannot help but feel that he came to that conclusion in the light of the fact that the original application was refused only under section 16(1)(g), that it was acknowledged to be a wrongful refusal, and that fairness required the application to be considered on the basis of the law applicable at the time that the application ought to have been approved viz - April 1993. In my view this case is no authority for saying that where plans are "re-submitted" in support of a subsequent application, and they are in all essential respects the same or very similar, it is not a fresh application. In any event, it is impossible to exclude from one's consideration of the merits of the case, the fact that but for the Authority's error, the Applicant would have been entitled to approval as at April 1993, several months before the OZP changed. This was, of course, at the forefront of the Applicant's case before Mayo, J.

35. The circumstances of the case in which Sears, J. held similarly to Mayo, J. (having considered his judgment), are not in fact very different from the Supermate case. The original refusal was appealed and the Tribunal allowed the appeal, and the plans for a 12 storey building were approved on the 26th August 1992. Within a month plans for a 17-storey building, within the plot ratio of the existing OZP were submitted. These were refused, within the 60 day period under section 16(1)(g). In June 1993, the Tribunal allowed the appeal from that decision. The Authority had sought to rely upon a change in the OZP made one month before the hearing of the appeal. The Tribunal held that it had to consider the matter at the time that the authority considered the plans, and refused to have regard to the amendments.

36. The plans were re-submitted. They were virtually identical. The Authority now refused approval on the grounds that they contravened the draft OZP as amended - the very point on which the Authority had lost before the Tribunal. Sears, J. distinguished the Privy Council decision in Attorney-General of Hong Kong v. Firebird (No. 1 of 1982) on the basis that it was concerned with an initial application considered in the course of the Authority's general course of statutory duty, whereas the cases that he and Mayo, J. were considering were re-submissions of similar plans, and not fresh applications. In the cases considered by Mayo, J. and Sears, J. (Supermate and Heland) there had been clear errors on the part of the Authority which had deprived the Applicants of decisions which would not have been affected by changes in the law adverse to the Applicants, and therefore, in the face of such errors, it would be wholly unjust to deprive the Applicants of the benefit of the proper decisions. In any event, the effect of the Tribunal's decisions was not to be negated. To that extent, I would respectfully agree with the two decisions.

37. However, I am unable to accept the general proposition that applications which re-submit plans which are identical or similar, are not fresh applications. Each application is a fresh application. A refusal is not a conditional or qualified refusal (unless expressed to be so). Section 15(2) of the Ordinance to which I have already referred makes this clear :

"... No such refusal shall be construed as implying any approval of any part of such plans."

Section 15(1) refers to an application. Nowhere is there reference to "re-application" or "re-submission". These terms have been imported, understandably enough in practice, and they may well fit the situation where the Authority's refusal has been shown to be wrong, but they are not the words of the Ordinance which I construe as providing for a self-contained application, de novo, in each instance, regardless of whether, to all appearances, the plans submitted are similar or identical. There is not a piecemeal approval or refusal as such. See also Building (Administration) Regulation 29(3).

38. In my view, the Privy Council decision in Firebird is clear - at the time of consideration of an application, the Authority has to apply the current law. It is true that it was not concerned with what has been described as a "re-submission" or subsequent or second application, but its terminology is exact and reflects the Ordinance - "The public duty of the ... Authority to consider the plans according to law, and the relevant law must be the law applicable at the date when the ... Authority performs its statutory duty of considering the plans within 60 days."

39. Head Step are, in my view, caught squarely within the Firebird decision. In rejecting their first application, the Authority was of course acting not only within the Firebird principle but strictly according to the letter of the Ordinance. This is also the case with the second application, however similar those plans may have been to those originally submitted in the first application.

40. Quite apart from the reason I have set out as to why I consider the second application a fresh application requiring the Authority to act 'de novo', it is noticeable that the Applicant still had not met the Authority's requirements in respect of parking, compliance with Fire Codes etc., when its second application was refused for, inter alia, non-conformity with the amended OZP.

41. The Applicant's appeal to the Tribunal stands adjourned. Its avenues have not therefore been exhausted.

42. There remains the matter of the Authority's discretion. The Authority was in error in thinking that it had no discretion when considering the second and fourth applications. That is common ground. The Authority contends that even though unaware of the existence of the discretion at the time, had it been aware of it, it would still not exercise it so as to approve the application, the OZP being the obstacle. I do not think that that is a proper way of dealing with it. The Applicant had no opportunity to raise any argument on it, or counter any reply and I have no hesitation in saying that those applications - in reality the fourth - should be remitted to the Authority for it to consider exercising its discretion, applying as its basis OZP SK/11/6.

43. As far as costs are concerned, the effective issue here was whether OZP SK/11/5 or 6 applied. The Appellant Authority has succeeded on that. Although remitted on the discretion point, it is against OZP SK/11/6 that it is to be exercised. I make an order for costs here and below in favour of the Appellant. It is an order nisi.

Liu, J.A.:

44. We therefore order that the appeal be allowed, that the order of the judge be set aside save insofar as it commands the Building Authority to re-consider the 4th submission and that the 4th submission be re-considered by the Building Authority with regard to the draft Outline Zoning Plan for Tze Wan Shan, Diamond Hill and San Po Kong No. OZP No. S/K11/6 and without regard to the draft Outline Zoning Plan for Tze Wan Shan, Diamond Hill and San Po Kong No. S/K11/5. We further make an order nisi that costs of the appeal and below be costs to the Building Authority.