NG, Wilson Ching Hung and Another v. WONG Yuk kuen Florence and Others

LDBM 392/1999

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 392 of 1999

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J U D G M E N T

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1. This is the Applicants' application for review of the judgment dated 27th February 2001.

2. The Lands Tribunal decision was that the Applicants were not entitled to any order that the water meters located on the roof of Belle House 31 Whitfield Road Hong Kong (the building) should be removed or relocated by the Respondents or their agent; that the Respondents should pay an agreed monthly rent to the Applicants for the use of the roof, or that damages be paid.

3. The Tribunal's finding of fact was that the siting of the water meter was with the consent and approval of the developer, also the First Owner. The Applicants took their title subject to that consent and approval.

4. It was the Applicants' submission that the licence granted by the developer/First Owner was just a bare licence not supported by a contract. It was revocable at any time, and was also determined automatically by the assignment of the land. Furthermore, because there was no consideration given, the burden of the licence was not transmitted. The Applicants contended that constructive notice of such revocation had been given to the Respondents by the Applicants in October 1999. The Respondents were therefore trespassers on the Applicants' roof top, by the placing of water meters.

5. The Applicants supplemental grounds for review were that while the water pipes are common parts of the building, the water meters do not form part of the common parts. The Deed of Mutual Covenant did not refer to the water meters specifically, and so has no effect on the water meters. It was further submitted that while authorization from the Water Authority is required for the re-location of the water meters, such authorization would be given if applied for, were the water meters to be installed in the common parts of the building, at a safe and accessible place. The Applicants relied on this to say that water meters should be installed in common parts.

6. The Respondents' submission was that the licence granted by the developer, who was also the First Owner, was not a bare licence, but rather a covenant relating to the land, and runs with the land.

7. It was the Respondents' submission that, since the developer/First Owner submitted the plans to the Water Authority for approval of the site of the water meters, it could not be the intention of the First Owner to grant a bare licence to use that part of the land. The Water Authority would not approve the site if it were to be subjected to revocation at will, or would incur the payment of a licence fee.

Decision

8. There is no dispute that the siting of water meters was determined by the Water Authority, and that according to the records of the Water Authority, there had been no alternative siting since the building plans were approved.

9. The Water Authority owns the water meters, the Respondents are just the consumers.

10. The water pipes are attached to the water meter. The pipes form part of the common parts or facilities of the building.

11. The Deed of Mutual Covenant provided for the preservation of such common parts and facilities.

12. The Applicants took ownership of their property, with full knowledge of the presence of the water pipes and water meters over their part of the roof.

13. They took their title subject to the licence granted by the developer/First Owner.

14. The First Owner had granted a licence to the siting of the water meters. The licence was granted without consideration, but in the circumstances, could not be a bare licence, revocable at will. For the developer/First Owner to submit the plans for siting of the water meters for the approval of the Water Authority, an intention to grant more than a bare licence must be inferred. Water pipes are fixtures, not to be moved at the will of any single owner alone, under the Deed of Mutual Covenant. The meters are attached to the pipes and could not be relocated without involving the relocation of the attached pipes.

15. The tribunal has no jurisdiction to compel the payment of a monthly fee under a licence, or the duration of a licence.

16. Having considered all the evidence and submission, the Tribunal could see no grounds for reviewing the judgment dated 27th February 2001.

17. The Applicants' application for review is dismissed, with costs to the Respondents to be taxed if not agreed.