THE INCORPORATED OWNERS OF SUN HO HOUSE v. SO WING LEUNG

LDBM 224/2017

[2019] HKLdT 12

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 224 OF 2017

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J U D G M E N T

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1.  This is the applicant’s application for the following relief:

1)   A mandatory injunction that the respondent, whether by himself, his servants, agents, tenants, occupiers of the roof of Flat 2 on 11/F, Sun Ho House, No 275 Sai Yeung Choi Street, North, Kowloon, Hong Kong (“the Roof”) or of the cemented rooftop house on the Roof (“the Unauthorized Structure”) do forthwith demolish and/or remove the Unauthorized Structure and reinstate the Roof to its original state or otherwise in compliance with the approved building plans of the said building, to the satisfaction of the applicant;

2)   A mandatory injunction that order the respondent, whether by himself, his servants, agents, tenants, occupiers of the Roof or of the Unauthorized Structure do forthwith remove the plants, flower pots, flower stands, flower scaffolding, soil and fallen leaves inside and outside the flower pots on the Roof and reinstate the Roof to its original state or otherwise in compliance with the approved building plans of the said building, to the satisfaction of the applicant;

3)   An order that in the event the respondent fails to demolish and/or remove the Unauthorized Structure and/or the plants and reinstate the Roof to its original state or otherwise comply with the approved building plans of the said building to the satisfaction of the applicant, the applicant is entitled to demolish and/or remove the Unauthorized Structure  and/or the plants and reinstate the Roof to its original state or otherwise comply with the approved building plans of the said building and such costs (including legal costs) shall be borne by the respondent; and

4)   An injunction prohibiting the respondent whether by himself, his servants, agents, tenants, occupiers of the Roof or of the Unauthorized Structure or whosoever from installing or permitting or suffering to be installed any structures on the Roof.

2.  At the trial hearing, the applicant withdrew its application for a declaration that the respondent was and is not entitled to install the Unauthorized Structure on the Roof.

BACKGROUND

3.  The respondent is the registered owner of Flat 2 on 11/F and Roof, Sun Ho House, No 275 Sai Yeung Choi Street North, Kowloon, Hong Kong (collectively known as “Flat 2”).

4.  The applicant is the incorporated owners of Sun Ho House, situated at Nos 271 – 281, Sai Yeung Choi Street North, Kowloon, Hong Kong (“the Building”).

5.  On 11 July 2005, the Building Authority issued a notice to the respondent against Flat 2. It was discovered a structure (“the Unauthorized Structure”) was erected on the roof of Flat 2 (“the Roof”) in contravention of section 14(1) of the Buildings Ordinance. The said notice is registered against Flat 2 in the Lands Registry and to date remains undischarged.

6.  By a letter dated 4 August 2017, the district councillor wrote to the Buildings Department on behalf of the applicant to enquire about the status of the Unauthorized Structure and whether there is a demolition order made against the said structure.

7.  On 15 August 2017, the Buildings Department replied that a demolition order has been made against the Unauthorized Structure on 27 February 2017 and the deadline for demolition was 25 August 2017. However, the respondent lodged an appeal against the demolition order and therefore the execution of the demolition order has been stayed pending the result of the appeal.

8.  On 13 September 2017, the management committee of the applicant resolved to file an application in the Lands Tribunal against the respondent in respect of the Unauthorized Structure.

9.  On 12 October 2017, the applicant’s legal representatives sent a letter to the respondent demanding, inter alia, the Unauthorized Structure be demolished.

10.  On 16 October 2017, the respondent replied to the applicant’s legal representatives refusing the demolition request.

11.  On 8 November 2017 the applicant filed the Notice of Application in the Lands Tribunal. The applicant claims the respondent is in breach of the provisions of the deed of mutual covenant (“DMC”) by erecting the Unauthorized Structure, and by maintaining trees and other plants on the Roof. The salient provisions of the DMC are as follows:

1)   Clause 2.02:

“The owner and his surveyors or agents with or without workmen and persons by him authorised shall at all reasonable times have a free and uninterrupted right of access to and to enter into and upon any one of the units upon notice (except in case of emergency) to the owner thereof for the purpose of maintaining repairing reinstating and testing the pipes drains sewers pumps water tanks conduits cables and wires or any other apparatus equipments and facilities used or installed for the benefit of the said Building as part of the amenities thereof . . .”

2)   Clause 4.01:

“The owner shall not make any structural alteration to his unit and shall not make any alteration to any water or gas pipe, sewers, drains, electrical wiring, plumbing or any installation or fixture so as to affect or likely to affect the supply of water, electricity, gas light or air or to interfere or likely to interfere with the passage and running of water sewage gas and electricity to other units and shall not cut or damage the said premises or the cement concrete flooring columns, main walls, beams or girders of the said Building or do anything whereby the structural strength thereof may be affected.”

3)   Clause 4.06:

“Unless otherwise provided in these presents the owner shall not alter the appearance of the said Building and shall not affix, install, paint, project or display or permit or suffer to be affixed, installed, painted, projected or displayed any advertising materials, poles, flags, banners, posters, illuminated or similar signs, notices, or signboards or other projections or structures whatsoever to, on, or beyond any part of the exterior of the said Building or to, on or over any part of the said premises or of the common parts of the said Building.”

12.  On 28 November 2017 the respondent filed a Notice of Opposition. In summary, the respondent denies having breached any provisions of the DMC and denies the Unauthorized Structure is an illegal structure.

APPLICATION TO CALL FURTHER WITNESSES

13.  During the cross-examination of the applicant’s expert witness, the respondent made an impromptu application to call the respective owners of units 4, 6, 8 and 10 on the 11^th floor of the Building (collectively referred to as “the 4 Owners”) as witnesses. The application to call the 4 Owners is based on the questionnaires attached to the applicant’s expert report in which the applicant relied on to conclude the water proofing membrane on the Roof needed repair.

14.  After hearing the submissions of both parties on the application, I refused the application with costs reserved. I now give my reasons for refusing the application as follows:

1)   The expert reports were exchanged on 2 November 2018. Directions for setting down were given at the last call-over hearing on 21 December 2018. At no time prior to the trial or even during the last call-over hearing did the respondent make any application to call / subpoena the 4 Owners. There has not been any satisfactory explanation why such an impromptu application was made at such a late stage. The only explanation provided by the respondent was that he was not familiar with the court procedure. However, there had been a number of call-over hearings before the trial was set down. At the last call-over hearing before the trial, it was made clear by the applicant they only intended to call Ms Siu and their expert. Yet the respondent never raised any concerns or queries on the matter. I therefore do not accept the respondent had all along intended for or expected the 4 Owners to be witnesses at trial.

2)   I have considered the contents of the questionnaires of the 4 Owners in the context of the expert report. I note there are no specific allegations made against the respondent by the 4 Owners, and no allegations on what caused the water leakage into their respective units. Though the applicant’s expert made a general statement about nuisance being caused to the 4 Owners, he stops short of saying the respondent caused the purported water leakage. I was of the view that since there were no allegations from the 4 Owners against the respondent, the questionnaires were not relevant to the issues in dispute and therefore there was no need for the respondent to “disprove” any allegations made therein.

15.  Since I had refused the respondent’s application, I am of the view that costs should be to the applicant in any event.

THE JOINT STATEMENT FROM PARTIES’ EXPERTS

16.  On 6 July 2018, I gave directions for the parties to file and serve expert evidence. Parties appointed their own expert and the experts produced a joint statement.

17.  The joint statement states as follows:

“在2018年12月12日下午4時，劉志良建築師(下稱甲方) 和許健邦測量師(下稱乙方) 在新豪大廈天台舉行專家會面，並取得共識如下：

1. 甲乙雙方均不反對對方提交法庭之專家報告內容；

2. 甲乙雙方均同意園圃內植物及盆栽等，對大廈環境及結構有一定影響及對結構有一定負重量。如能移除整個園圃後，就能確保不影響大廈樓宇結構完整性；

3. 甲乙雙方均同意現時園圃內情況，對公共設施的維修及保養做成阻礙；

4. 甲乙雙方均同意移除園圃內植物、盆栽等物件後，能有效改善去水系統，在惡劣天氣下不會因積水而加重樓宇負荷；

5. 甲乙雙方均同意移除園圃，考慮到大廈將進行更換防水層工程，移除園圃後不會對工程做成防礙；

6. 甲乙雙方均同意在單位天台上之搭建物(屋仔及園圃上蓋) ，與批準圖則不符，建議移除。”

18.  The respondent disagreed to the joint statement saying that the statement contains many “leading answers” and that his expert had not discussed matters with him before compiling the joint statement. Hence the respondent elected to cross-examine the applicant’s expert during the trial hearing.

DISCUSSION

19.  I have considered the evidence and the submissions of the parties. I do not propose to deal with each and every single submission but shall only deal with the salient ones.

20.  I note at the outset that although the respondent tried to argue he did not erect the Unauthorized Structure, he conceded he is ultimately responsible for the Unauthorized Structure and, should it be found to be an illegal structure, he would have the responsibility of demolishing the same.

21.  I find the Unauthorized Structure is an illegal structure. This is confirmed by both experts in their joint statement where both agree that there are no approved building plans for the Unauthorized Structure. Furthermore, a building order has been registered against Flat 2 in respect of the Unauthorized Structure. The respondent does not dispute his appeal against the demolition order of the Unauthorized Structure has been dismissed by the Buildings Department. Hence for the respondent to argue the Unauthorized Structure is not an illegal structure is plainly preposterous.

22.  I also find the Unauthorized Structure has encroached onto common parts of the Building. From the photos appended to the respondent’s expert report at Appendix D, the annotated plan at Appendix E of the respondent’s expert report, and the photos appended to the applicant’s expert report, it is clear the Unauthorized Structure has been partly built on top of the external wall and partly above the staircase leading up the Roof. The Unauthorized Structure clearly, even on the evidence of the respondent’s own expert, extends beyond the area owned by the respondent.

23.  In respect of whether there have been any structural alterations, I find the respondent has made substantial structural alterations to the Roof by extending and adding to the fabric of the Building: see Pearlman v Keepers and Governors of Harrow School [1979] QB 56 at 72G and Incorporated Owners of Elite Garden v Profit More Co Ltd [2002] 2 HKLRD 518 at 521 to 523.

24.  Furthermore, it is plain the Unauthorized Structure has altered the appearance of the Building. The photos from the experts show the Unauthorized Structure gives the appearance of extending the external wall of the Roof upwards. See Taikoo Shing (Management) Ltd v Trillion (HK) Ltd, (unrep), LDBM 35/1995, where HH Judge Li stated at paragraph 11 of the judgment as follows:

“11. Counsel for the respondent also says that in order to be in breach, the structure or enclosure complained of has to be protruding beyond the external wall of the building. With respect, I cannot see the basis for such interpretation. A building is three dimensional with opennings [sic] as per design. I should think the preservation of the appearance of buildings viewed from the top or any elevation is the object of Paragraphs 2 and 21 in the DMC. The roof structure of the subject premises clearly rises above the roof level. The window and glazing enclosure seals off an openning [sic] and turns the balcony of the subject premises into some sort of living space. If such additions and renditions do not alter the exterior appearance of a multi-storey building, I do not know what will. It does not assist the respondent by drawing an analogy with balcony metal grilles that may be approved. Such grilles are for improved security without converting the exterior appearance of the building. Window and glazing enclosing the balcony gives the appearance that the flat unit so endowed has living space extending to the frame of the external wall whereas metal grilles still preserve a balcony in appearance. It has also been suggested that window and glazing is more expensive and beautiful, hence acceptable. In my view, as a matter of literal interpretation, anything that alters the exterior appearance of the building, whatever asthetic [sic] enhancement such thing may bring to a building, is strictly prohibited.”

25.  By reason of the matters set out above, I find that the respondent is plainly in breach of Clauses 4.01 and 4.06 of the DMC.

26.  As for the other arguments raised by the applicant on nuisance and adverse effects to the fire insurance of the Building, I am of the view there has been insufficient evidence provided by the applicant in this case to substantiate the said allegations.

27.  As for the allegation there has been obstruction to the access to the water pipes and water meters, I accept that the plants and trees planted by the respondent on the Roof constitute an obstruction. Thought the respondent attempts to argue he has already provided “uninterrupted right of access” to the water pipes and meters as mandated by Clause 2.02 of the DMC, I reject the respondent’s assertion in its entirety. It can be seen from the photos produced by the experts that some water meters are behind and underneath the potted plants. Furthermore, the respondent’s assertion on this matter is clearly contrary to the joint statement of the experts where the experts state, “甲乙雙方均同意現時園圃內情況，對公共設施的維修及保養做成阻礙.” I am therefore satisfied the respondent is in breach of Clause 2.02 of the DMC.

28.  By reason of the matters set out above, I allow the applicant’s application and make the following orders:

1)   I grant the mandatory and prohibitory injunctions set out at paragraphs 1(1) – (4) hereinabove, together with the penal notice; and

2)   I make a costs order nisi that the respondent shall pay the applicant’s costs of this action (including the costs reserved on 13 February 2018 on the respondent’s application to call further witnesses) to be taxed if not agreed on the District Court scale. Unless any party applies to vary the costs order within 14 days hereof, the costs order shall become an order absolute.