HELAND INVESTMENT LTD. v. ATTORNEY GENERAL and Another

1994, No. MP 684

HEADNOTE

Administrative Law - decision of Building Authority reversed by Building Appeal Tribunal - re-submission of virtually identical plans - Building Authority considering change in law after the earlier decision and still refusing building details.

Building Authority's Notice of Decision irrational.

Building Ordinance, Sections 14, 15 and 16.

Certiorari and mandamus granted.

1994, No. MP 684

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. Pursuant to the leave of Mayo J. on March 18th this year, Mr. Thomas Q.C. moves on behalf of Heland Investment Ltd. for an order of judicial review in relation to a decision of the Building Authority made on 21st December 1993 for the development of 11-13 Sands Street.

STATUTORY FRAMEWORK

2. Sections 14 requires approval before building works can commence. Section 15 is a deeming provision where approval is deemed to be given unless the Building Authority notified its refusal within a prescribed period. Section 16 provides a variety of grounds on which approval may be refused. Section 43 establishes an appeal tribunal whose decision is final - S. 46(1). Building (Administration) Regulations have been made and of relevance are Regulations 29 and 30.

3. As far as the facts are concerned, Sands Street falls within the Kennedy Town and Mount Davis District, and is included in that Outline Zoning Plan (OZP). It is a stepped street. In the OZP there was no height restriction and there was a plot ratio of 5.9 : 1. A short chronlogy has been set out in para. 46 of Mr. Wong's first affidavit. The Building Authority refused the development on the site for a 12-storey building on the grounds of section 16(1)(g). The Appeal Tribunal allowed the appeal and the plans were approved on 26th August 1992. On September 16th, plans for 17-storey building with a plot ratio of 5.89 : 1 were submitted. These were again refused by the Building Authority on November 14th on the grounds set out in para. 16(1)(g). It is clear from the minutes exhibited that the Building Authority was piqued by the result of this successful appeal. The original building on the site was 3 storeys and permission had already been given for a 12-storey building. The letter containing the decision therefore was, in my judgment, irrational. Not surprisingly, the Building Appeal Tribunal when they heard the appeal in June 1993 were of the same view and they allowed the appeal. At the hearing, the Building Authority sought to rely on the gazetting on May 21st of amendments to the OZP, which affected this site. There was a height restriction of 12 storeys and a plot ratio of 5 : 1. The tribunal held that it had to consider the matter at the time the Building Authority considered the plans and refused to have regard to those amendments.

4. The plans for the 17-storey building were re-submitted to the Building Authority on November 22nd and as was said by Mr. Wong in para. 40 :-

"Heland's AP re-submitted the 17-storey plans to the BA (with minor amendments) for approval on 22nd November 1993 (see pages 3 of "WCM-11") which show the plans submitted). The amendments were very minor, and consisted of the addition of a fan duct for the purpose of pressurization."

The plans submitted were virtually identical.

5. On December 21st, the Building Authority rejected the plans on the grounds that they now infringed section 16(1)(d) in that they contravened the draft OZP as amended. Not unnaturally, the developers feel aggrieved at the Building Authority's continuous opposition to the development of this site. Mr. Cooney for the Building Authority submits that each time an application for approval of plans is made, it is a separate matter, and following the decision of the Privy Council in Attorney General of Hong Kong v. Firebird Ltd. (No. 1 of 1982) the plans must be considered according to the relevant law at the time of their decision. He then says that it follows that as at November 22nd, when the amendments to the OZP had been made, the Building Authority were entitled and indeed had to refuse the application. This submission may be correct on applications which are considered afresh by the Building Authority in the general course of their statutory duty. Mayo J. has in R. v. Director of Buildings & Lands. ex parte Super Mate Limited (MP 200/1994) on facts very similar to this, held that the re-submission of similar plans was not a fresh application, and therefore the Building Authority was under a duty to consider the plans as at the date of the earlier application.

6. The facts of this case show that this was also a re-submission of virtually identical plans. I can see no reason for departing from the decision of Mayo J. Further, the grant of judicial review could also have been based on the principle that a citizen should not be deprived of his rights, for which he has a legitimate expectation, by a public authority, when the public authority has through its own failure to apply lawful principles in its decision-making process prevented the citizen from obtaining those rights. I underline, as is well-known, that it is the decision-making process which must be examined. In this case, as the Building Authority unlawfully held that section 16(1)(d) applied, this deprived the Applicant of an approval which they are otherwise would have received, and they should not now be denied that approval because the Building Authority wishes to rely on a later change in the law. I, therefore, for that reason would have granted judicial review.

7. Yet further, the submission of Mr. Cooney does, in my judgment, fail to recognize the effect of a decision of the Building Appeal Tribunal. The Ordinance is silent as to what happens after a successful appeal. The Building Appeal Tribunal determines the appeal, but what happens then? It is clear that only an approval under section 15 can give the developer the necessary consent to start building and it is the Building Authority who grants that. In my judgment, from the statutory scheme of appeal, the Building Appeal Tribunal determines whether the matters set out in the Notice of Refusal justified that refusal. If they determine that they do not, then the matter is remitted to the Building Authority, albeit by a new application, who must then decide whether, as at the date of the earlier decision, they could have relied on any other grounds. Although it is correct that the Notice of Refusal does not have to be exhaustive, see section 15(2), it is in my judgment the duty of the Building Authority to let the developer know the main reasons why the plans have been rejected. Otherwise, development in Hong Kong could become unworkable as the Building Authority could keep finding grounds of refusal after successful appeals. In my judgment, therefore, the only matters which the Building Authority were entitled to consider were those prevailing at the time of their earlier decision.

8. I would, if necessary, have also struck down the decision on the basis that the decision-making process was irrational in that section 16(1)(d) was relied on despite the earlier approval for a 12-storey building, and that this was used as a subterfuge, because the Building Authority could not have relied on the amendments to the OZP. Although the study on stepped streets indicated that the height restrictions would be brought about, the wording in section 15(1) of "notification of a refusal" means, in my judgment, a lawful refusal. This refusal was based on matters extraneous to a proper decision-making process. As no lawful refusal was given, then a deemed consent would follow. Mr. Thomas does not vigorously pursue this argument, as he submits it might deprive the Building Authority from raising other objections, but in my judgment, the court could tailor a mandamus, or declaration that would allow the Building Authority to review any matters of detail. As this matter has not been pursued by Mr. Thomas, I would not base the grant of judicial review on it although, in my judgment, it could have been given.

9. Mr. Thomas also submits that if he is wrong, the Building Authority did not exercise any discretion under section 16(1)(d). He wishes to reserve this point for argument, if necessary, at a later time. I confess I have had some difficulty following his reasoning. The word "may" in section 16(1) can never mean "must", but it gives a power, and then it may be a question in what cases where the person who has been given the power it becomes his duty to exercise it (see e.g. Re Baker Nichols and Baker 44 Ch. D. 262). The Town Planning Board decide the town planning policies and principles. The Building Authority decide whether the physical building accords with certain criteria. In my judgment, insofar as section 16(1)(d) is concerned, there is a duty cast upon the Building Authority to refuse if the development does not accord with the OZP. I therefore do not agree, with respect, with Mayo J.'s observations on this aspect and the criticism of Leonard J.'s approach in Singway Co. Ltd. v. The Attorney General [1974] HKLR 275 as to this sub-paragraph.

CONCLUSION

10. For the reasons given by Mayo J. and for the other reasons I have sought to explain, judicial review should go. The appropriate remedy to give relief to the applicants is by way of certiorari to quash the decision and mandamus for the Building Authority to reconsider the matter as at the appropriate time. There is no doubt from the authorities cited to me that mandamus is a strong weapon which can be used to correct errors of law, or irrational decisions, or unreasonable decisions, whatever they may be, of a public authority. It can compel a public servant to perform a public duty even though the time for so doing has passed - (R. v. Revising Barrister for the Borough of Hanley [1912] 3 KB 518). I therefore would grant judicial review. I have given leave to Mr. Thomas to put in an amended notice of motion. I would like to hear further argument as to the precise order I should make.