FACV No 7 of 2014

IpsofactoJ.com: International Cases [2015] Part 3 Case 9 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Building Authority

- vs -

Appeal Tribunal

(Buildings)

JUSTICE R.A.V. RIBEIRO Acting CJ

JUSTICE ROBERT TANG PJ

JUSTICE KEMAL BOKHARY NPJ

JUSTICE PATRICK CHAN NPJ

JUSTICE MURRAY GLEESON NPJ

13 MARCH 2015


Judgment

Justice Ribeiro Acting CJ

  1. I agree with the judgments of Mr Justice Tang PJ, Mr Justice Bokhary NPJ and Mr Justice Chan NPJ.

    Justice Tang PJ

  2. Inland Lot No 3289 is an elevated finger shaped piece of land which sits substantially above Tai Hang Road which loops around the long east and west sides of the finger and the short tip at the north side. On the south side is a steep bank of undeveloped government land. Inland Lot No 3289 has long been subdivided and there are 17 residential buildings, known as No 1 to No 16 Wang Fung Terrace, erected on it. All of these buildings with the exception of No 6 are either 4 or 5 storeys in height. In 1998, The Building Authority approved plans which resulted in the erection of a 16 storey building at No 6 Wang Fung Terrace.  Inland Lot No 3289 is now known as the Wang Fung Terrace.

  3. Wang Fung Road[1] provides the only vehicular access to Wang Fung Terrace which is from the Tai Hang Road on its western side. To reach it when travelling south along Tai Hang Road, a very sharp turn into the Wang Fung Road has to be made. Wang Fung Road is steep and narrow and runs in a northerly direction, virtually doubling back (on a hair pin bend) along the same stretch of Tai Hang Road but at a higher elevation.

  4. At 11 and 12 Wang Fung Terrace, there are two 5 storey buildings. The appellant, China Field Ltd, wished to replace them with two 39 storey buildings. The building plans for the purpose were rejected by the Building Authority in 2001 under, inter alia, s 16(1)(g)[2] and s 16(1)(h)[3] of the Buildings Ordinance. They provide:

    (1)

    The Building Authority may refuse to give his approval of any plans of building works where—

    ....

    (g)

    the carrying out of the building works shown thereon would result in a building differing in height, design, type or intended use from buildings in the immediate neighbourhood or previously existing on the same site;

    (h)

    the building works consist of, or any part thereof involves, the construction, formation or laying out of any means of access or other opening, not being a street or access road, to or from any street, and the place at or manner in which such means of access or other opening opens on to the street is, in his opinion, such as to be dangerous or likely to be dangerous or prejudicial to the safety or convenience of traffic using the street, or which may be expected to use the same;

  5. At the relevant[4] time the Outline Zoning Plan (“OZP”)[5], in force in this area contained no relevant restrictions in respect of building height. The OZP has since been amended[6] such that if new plans were submitted they are liable to be rejected under s16(1)(d).[7]

  6. China Field appealed against the rejection of their building plans to the Appeal Tribunal (Buildings) (“the Tribunal”).[8] By its decision dated 29 November 2006, the Tribunal by a majority allowed the appeal against the rejection under s 16(1)(g), and dismissed the appeal against the refusal on the basis of s 16(1)(h).

  7. The Tribunal held that although read literally s 16(1)(g) would allow the Building Authority to refuse to approve plans simply because a new building would differ in height either from the building it replaced or the buildings in the immediate neighbourhood, the Building Authority’s consent to the construction of a 16 storey building in 1998, at No 6 Wang Fung Terrace, destroyed the congruity of Wang Fung Terrace, and it was not open to the Building Authority to rely on s 16(1)(g) to refuse the plans. Although, the Building Authority sought to rely on the danger and/or inconvenience which the proposed development would pose to traffic to support their decision on s16(1)(g), the Tribunal, consistently with their view that congruity was the only relevant consideration under s16(1)(g), did not see fit to consider this aspect of the Building Authority’s case. As for s 16(1)(h), although the proposed buildings would open directly onto Wang Fung Road and pose no danger there, the additional traffic as a result of the re-development would cause or be likely to cause danger sufficiently proximate to the buildings such that they may be taken into consideration under s 16(1)(h).

  8. China Field challenged the Tribunal’s decision under s 16(1)(h) by judicial review. After failing at First Instance and in the Court of Appeal, the appeal to this court succeeded[9].  Lord Millett NPJ[10] said that whilst he agreed:

    30.

    .... with the Judge and the Court of Appeal in the present case that the test of ‘proximity’ which is to be applied is not spatial but causal. .... the relevant test is ‘direct causal connection’.

    and that the Tribunal and the lower courts:

    31.

    .... correctly attributed the danger at the junction of Wang Fung Road with Tai Hang Road to the increase in the volume of traffic using the junction which would result from the increased density of occupation of the sites if the developments were permitted.

    however:

    37.

    [They] erred in law by taking into account the impact of the increase volume of traffic at the junction between Wang Fung Road and Tai Hang Road when this is not attributable to the place at which or the manner in which the means of access to either site is gained from Wang Fung Road. ....

    which requires the Authority to consider where it opens and how it opens onto the street, and it was not sufficient that the danger is caused by the development generally or by the increased density of occupation of the site, it must be attributable to “the place at or manner in which”[11] the proposed means of access or other opening involved in the building works opens onto the street.[12]

  9. After saying he would remit China Field’s case to the Tribunal for rehearing,  Lord Millett added:

    38.

    .... It will be for the Authority to consider whether it wishes to invite the Tribunal to reconsider its decision under s 16(1)(g) and for the Tribunal to consider whether to do so. Should it become necessary, it will be open to the Authority at an appropriate stage to apply for leave to bring proceedings for judicial review. I would express no view on the approach the court should take to such an application, save to say that, in the light of the way in which the proceedings have been conducted hitherto, it would be strange if the application were dismissed merely on the ground that it was out of time.

  10. On 4 August 2010, the Tribunal decided as a preliminary issue that only the s 16(1)(h) issue had been remitted to them but that to avoid a further remission, they would state what their decision would have been if the s 16(1)(g) issue had been remitted to them. They also decided that they would not be assisted by any further evidence on either issue.

  11. After the substantive hearing, by their decision dated 29 April 2011, the Tribunal allowed China Field’s appeal against the Building Authority’s decision on s 16(1)(h)[13]. They refused to change their 2006 decision on s 16(1)(g). They remained of the view that, congruity[14] had been destroyed because the Building Authority had permitted a 16 storey building at No 6 Wang Fung Terrace. They rejected the Building Authority’s argument about the traffic problem and regarded it, given the Court of Final Appeal’s decision on to s 16(1)(h), as using s16(1)(h) by the “back door”.

  12. The Building Authority applied for judicial review in relation to the Tribunal’s decision on s 16(1)(g). They sought, inter alia, an order of Certiorari to bring up and quash the 2011 decision, and an order of Mandamus to direct the Tribunal to dismiss China Field’s appeal.

  13. The Building Authority succeeded both at first instance and in the Court of Appeal.[15]  Both Lam J and the Court of Appeal disagreed with the tribunal’s decision that as a result of the erection of a 16 storey building at No 6 there was no longer any congruity to preserve. The Court of Appeal regarded the Tribunal’s expressed views on s 16(1)(g) as its determination and quashed it. They remitted the matter to the Tribunal for reconsideration but only on s 16(1)(g) in the light of their determination.[16] On 14  July 2014, leave to appeal to this court was granted on the following question[17]:

    whether in the application of s 16(1)(g) of the Buildings Ordnance Cap 123, consideration can be given to health and safety issues, or town planning aspects; and the extent to which such considerations have any spatial or causal limitations.

  14. The question turns on the proper interpretation of s 16(1)(g). Section 16(1)(g) contains 2 limbs. The first limb covers a proposed building “differing in height, design, type or intended use from buildings in the immediate neighbourhood”. In a typical case, the objection would be that the proposed building is incongruous with its neighbours. Hence, the shorthand, congruity.  The second covers a proposed building which differs in height, design, type or intended use from the existing building. It does not require any consideration of buildings in the immediate neighbourhood and one is not concerned with congruity. Here, the plans were rejected under the first limb, both because the proposed building would be incongruous and because of traffic concerns. The principal argument of Mr Edward Chan SC, for the appellant, is that congruity is the only relevant consideration under s 16(1)(g). Whether that is correct turns on the construction of s 16(1)(g), which as I have said has 2 limbs. I believe the second limb can provide a valuable insight[18] into the proper interpretation of s 16(1)(g) and, I will turn to it first. 

  15. The conditions which trigger the exercise of the Building Authority’s discretion under the second limb are that the proposed building is different, in height, design, type or intended use from the existing building. But what are the factors which may be taken into account on the exercise of discretion?  Decisions based on the Building Authority’s reliance on the second limb mostly concerned stepped streets[19] without vehicular access. It appears that the Building Authority followed a consistent policy, since the PWD Land Conference on 16 December 1971, to disapprove building in excess of 4 storeys in such areas under s16(1)(g).[20]

  16. Nos 2-11 Hok Sz Terrace, unreported, 27 February 1973, is one of the earliest decisions of the Tribunal referred to us. It was concerned with the proposed plans to build two adjacent blocks of 21 and 25 storeys which were disapproved because they differed from the existing building(s) in height. The Tribunal said:

    2.

    .... This single circumstance brings the present case within the possible exercise of discretion under Section 16(1)(g) ....

  17. The Building Authority’s main concern was that fire engines could not approach the site, a concern which the Tribunal shared. The tribunal was of the view that “In the final analysis however, the Building Authority is responsible for the due and proper administration of the Ordinance.” and upheld the Building Authority’s rejection of the plans because of fire safety concerns. 

  18. An important authority on the second limb is Rich Resources Enterprises Ltd v The Attorney General, unreported, HCMP 3896/1991, 10 April 1992, which concerned 15-17 Sands Street[21], a decision of Mayo J (as he then was) on an application for judicial review from the refusal of the Building Authority to approve plans to build a 26 storey domestic building in place of an existing 3 storey building under the second limb.[22] There were a number of multi-storey buildings in the immediate neighbourhood which had been developed to a height higher than the buildings previously existing on those sites[23] but the decision was not concerned with them. The Building Authority main objection was that the density of the development was excessive with attendant fire safety issues. The applicant argued that density came within the ambit of the Town Planning Board which had not seen fit to impose any particular restriction on plot ratio[24] and the Building Authority would be usurping the functions of the Town Planning Board if it was able to determine this matter itself. Mayo J was of the view that the Building Authority was concerned with the safety of people in and around the building, since the height of buildings primarily dictated the number of occupants who will be using them and the Authority was entitled to taking account such factors as the density of the development.[25]  The learned judge held that s 16(1)(g) gave the Building Authority wide discretion which could be exercised:

    .... side by side with powers exercisable by such bodies as the Planning Board and the Fire Services Department. Each Body views the overall situation from a different perspective but it is the Building Authority’s responsibility to ensure that all requirements are adhered to. The height of a building is very much the concern of the Building Authority and there is a definite duty imposed on it to ensure that such matters as access to the Building are sufficient. This would certainly impinge on the safety of the Building. ....

  19. Mr Chan relied on the decision of the Tribunal in Re 11-13 Sands Street, unreported, Appeal Case No. 113 of 1992, 15 October 1993, where a distinction was drawn between questions of public safety and health which are site specific and relevant under s 16(1)(g) and broad matters of infrastructure which are not. However, that decision is at one with Rich Resources that in considering an exercise of discretion under s 16(1)(g), the Building Authority has to consider aspects of public safety and health. Mr Chan relied on the expression “site specific”. To overcome decisions which upheld the right of the Building Authority to consider aspects of public safety and health, Mr Chan submitted that to be site specific required that they be confined within the four corners of the building sites. A related argument is that there is a spatial requirement in the sense that it must be something within the “immediate neighbourhood” of the proposed development. With respect, I cannot agree. The second limb is not concerned with the immediate neighbourhood. As for the first limb, the condition for its exercise required a comparison with buildings in the immediate neighbourhood but the factors relevant for the exercise of the discretion are not so limited. There is nothing in the language of the provision to support such limitation. With respect, I agree with the Chief Judge that the test is one of causal connection.[26]  I believe, the requirement that the concern must be site specific is another way of saying what the Chief Judge said is required, namely, that there must be “a causal connection between the consideration in question and the difference in height (etc) concerned.”[27]  As the Chief Judge pointed out there is no hard and fast rule. The more remote physically a consideration is from the proposed development, the more difficult it is to establish a causal connection. 

  20. The decisions under the second limb which went back many years are unanimous that health and safety concerns are relevant factors to be considered.[28] I can see no reason why they should be impermissible considerations under the first limb. Surely, health and safety concerns directly attributable to height should be relevant to a proposed building whether it differs from the existing building or other buildings in the neighbourhood. There is nothing in the language of s 16(1)(g) which requires a different conclusion. Mr Chan’s principal contention is that congruity is the only relevant concern.[29]  He submitted, first, density is not covered by s 16(1)(g), it uses the word “height” instead, so any safety or health concerns, even if the direct consequence of the increased density, are not relevant. With respect, this is a futile semantic exercise. What does it matter whether one says there are health or safety concerns as a direct result of the additional floors and the people accommodated in them, or as a direct result of greater density. Then, Mr Chan submitted that density as a result of greater height is a town planning concern. More importantly, it is the sole concern of the Town Planning Board. But “height, design, type or intended use”  are also town planning considerations and they are matters which trigger the Building Authority’s discretion under s 16(1)(g). Why must health or safety concerns which spring directly, say, from the increased height be ignored by the Building Authority?  Mr Chan relied on s 13 of the Town Planning Ordinance Cap 131 which provides “Approved plans shall be used by all public officers and bodies as standards for guidance in the exercise of any powers vested in them.”  But the building density guidelines[30]show that whilst the ultimate maximum domestic plot ratios permissible in Hong Kong are set by First Schedule of the Buildings (Planning) Regulations, restrictions below this level can only be enforced through, inter alia, statutory controls incorporated in Outline Zoning Plans or rural Outline Zoning Plans. Moreover, not only does plot ratio which governs the maximum density of developments come under the purview of the Buildings Ordinance, s16(1)(d) and (d)(a) of the Buildings Ordinance empower the Building Authority to approve plans notwithstanding that they contravene plans made under the Town Planning Ordinance[31]. Section 13 of the Town Planning Ordinance does not support the argument that density is the sole concern of the Town Planning Board, or that the Building Authority must approve building plans which do not exceed the density permitted under a relevant zoning plan whatever the health or safety concern. With respect, the argument that density was the concern solely of the Town Planning Board must be rejected.

  21. Mr Chan also argued by analogy that fire safety was the concern solely of the Fire Services Department such that if s 16(1)(b) was satisfied, the Building Authority could not reject the plans under s 16(1)(b). This argument was rejected as long ago as 1973 in Nos 2-11 Hok Sz Terrace referred to in para 17 above. There, the Tribunal rejected the argument on behalf of the appellant that:

    4.

    .... if the Director of Fire Services was willing to provide a certificate under section 16 (1)(b)(ii)[32], as he did in the present case, then the Building Authority ought not to place emphasis upon the lack of vehicular access, and difficulty in protecting the premises in the event of fire.

  22. It is said that to permit the Authority to take traffic safety into account is tantamount to allowing reliance on s 16(1)(h) by the backdoor. Mr Chan made the further point that the power to disapprove on account of danger to traffic is restricted to situations covered by s16(1)(h). With respect, I cannot agree. In China Field (No 2) this court decided that on the true construction of s 16(1)(h), the Authority’s traffic concern did not fall within s 16(1)(h), not that it was irrelevant under s 16(1)(g).

  23. So here, although s 16(1)(h) has no application, other traffic concerns may be taken into consideration by the Building Authority. In the present case, if it is established[33], for example[34], as this court in China Field (No 2) put it, there would be danger at the junction of Wang Fung Road and Tai Hang Road  due “to the increase in the volume of traffic using the junction which would result from the increased density of occupation of the sites if the development were permitted.”[35], the Building Authority would be entitled to disapprove the plans under s 16(1)(g).

  24. We have had the benefit of substantial submissions on the legislative history of s 16(1)(g). But I have not found it necessary to resort to them for the purpose of this judgment.

  25. For these reasons, I would dismiss the appeal and make an order nisi that the appellant pays the costs of the appeal. Should either party wish to contend for a different order for costs, written submissions should be lodged with the Registrar and exchanged within 14 days of the handing down of this judgment, with liberty on the other party to lodge and exchange written submissions within 14 days thereafter. In the absence of an application to vary, this order as to costs will become absolute at the expiry of the time limited for the lodging of submissions.

    Justice Bokhary NPJ

  26. Subject to narrow exceptions, none of which apply in the present case, no building works may be commenced or carried out without first obtaining the Building Authority’s approval of the plans for such works. The grounds on which the Building Authority may refuse to give his approval of plans for building works are many, varied and to some extent overlapping. They are set out in subsection (1) of section 16 of the Buildings Ordinance, Cap 123. This subsection is a lengthy one consisting of 18 paragraphs which are designated as paragraphs (a) to (d) and (da) to (q). The present appeal concerns the scope of the grounds of refusal contained in paragraph (g). By s.16(1)(g), the Building Authority may refuse to give his approval of any plans of building works where “the carrying out of the building works shown thereon would result in a building differing in height, design, type or intended use from buildings in the immediate neighbourhood or previously existing on the same site.”  In granting China Field Ltd (“China Field”) leave to bring the present appeal, the Appeal Committee did so on the basis that it involved a question which, by reason of its great general or public importance, ought to be submitted to this Court for decision.

  27. Question on which leave to appeal was given

  28. As formulated by the Appeal Committee, that question is whether in the application of s.16(1)(g) “consideration can be given to health and safety issues, or town planning aspects; and the extent to which such consideration have any spatial or causal limitations”. On this question, China Field contends that in the application of s.16(1)(g) no consideration can be given to health and safety issues or town planning aspects but that if consideration can be given to them, then such consideration is to be confined to their effect within the building site or at most its immediate neighbourhood. The Court of Appeal (Chief Judge Cheung and Justices of Appeal Kwan and Barma) took the opposite view. Its view, which China Field attacks and the Building Authority defends, can be summarised thus.

    1. Consideration can be give to health and safety issues and town planning aspects provided that there is a causal connection between the difference on the basis of s.16(1)(g) is invoked and such issues or aspects.

    2. There can exist, depending on the particular circumstances of any given case, such a causal connection even where the health and safety or town planning effect is felt beyond the building site and indeed its immediate neighbourhood.

  29. Questions of law, however broad, are at least in general far more clearly understood and better answered in the context of the facts in which they arise. Shortly stated, the relevant facts are as follows.

  30. Relevant facts

  31. China Field proposes to redevelop the site (which I will call “the subject site”) constituted by Nos 11 and 12 Wang Fung Terrace. With the exception of the 16-storey building at No. 6, the buildings in Wang Fung Terrace range from 4 to 5 storeys. Two 5-storey buildings housing between them a total of 39 flats stand on the subject site. China Field proposes to redevelop the subject site by demolishing those two 5-storey buildings and erecting in their stead two 39-storey buildings housing between them a total of 152 flats and 46 car-parking spaces. The evidence is that China Field’s proposed redevelopment would increase the potential traffic flow from Wang Fung Terrace by approximately 43%.  Such an increase of traffic flow would render Wang Fung Road’s junction with Tai Hang Road even more dangerous than it already is. And such increase of danger is the health and safety issue or town planning aspect which the Building Authority took into account in deciding to refuse to give his approval of the building plans for China Field’s proposed redevelopment.

  32. There have been two sets of judicial review proceedings pertaining to that refusal (which was communicated by a refusal letter dated 2 November 2001). The first set culminated in this Court’s decision handed down on 30 October 2009 and reported as China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342. (To avoid confusion, it should be mentioned that China Field Ltd v Appeal Tribunal (Buildings) (No 1) is the report of the Appeal Committee’s determination granting the leave pursuant to which that appeal was brought.)  The present appeal is the culmination of the second set of judicial review proceedings pertaining to the refusal communicated as long ago as 2 November 2001. This litigation as a whole is, it can be seen, in the nature of a saga. And, as will be seen, the present appeal will not be the end of the saga since the matter has to be remitted to the Buildings Appeal Tribunal yet again.

  33. For the details of the danger which already exists at the junction of Wang Fung Road and Tai Hang Road and which the Building Authority does not wish to increase, it is convenient to look at paragraphs 22 to 26 of the judgment which Lord Millett NPJ gave in China Field (No 2) which read:-

    23.

    Wang Fung Terrace is situate on an elevated, elongated finger of land running from north to south, which is surrounded on the West and North sides by Tai Hang Road, on the South side by a steep bank of undeveloped Government land, and on the south side abutting but without access to other residential land. The only access to Wang Fung Terrace is from Tai Hang Road which runs along its western side. To reach it when travelling south along Tai Hang Road, it is necessary to make a very sharp left turn into Wang Fung Road. Wang Fung Road itself is steep and narrow and runs in a northerly direction, virtually doubling back along the same stretch of Tai Hang Road but at a higher elevation. The comparatively short section of the road from the junction with Tai Hang Road uphill to the midpoint of the 180º hairpin bend is on Government land but is subject to a right of way in favour of the owners of Wang Fung Terrace. From that point, the road doubles back and runs in a southerly direction along the western side of the promontory pas Nos 4 and 4A-D until it eventually reaches the northwestern corner of No 11 where it terminates.

    24.

    The building plan for the development of Nos 11 and 12 shows that the property will have direct access to Wang Fung Road. The building plan for the development of Nos 4 and 4A-D shows that the property will not have direct access to Wang Fung Road, but to a pre-existing paved lane (the lane) which feeds into Wang Fung Road. The lane lies between the site and an adjacent property and at right angles to Wang Fung Road, which continues past the property for a considerable distance. It is 18 feet wide, half its width lying within the development site and half belonging to the adjacent property.

    25.

    Wang Fung Road is an unsatisfactory road in many respects. It is very narrow. It has no footpath for pedestrians. It has a hairpin bend that is too narrow for cars travelling in opposite directions to navigate simultaneously. The fall in Wang Fung Terrace towards Tai Hang Road also means that there is poor visibility at the hairpin bend. The junction with Tai Hang Road also has numerous problems. It affords poor visibility for vehicles joining Tai Hang Road. This is because of the steep gradient from the upper area of Wang Fung Terrace to Tai Hang Road and the fact that a short distance to the north of the junction Tai Hang Road bends sharply. Most seriously, Wang Fung Road joins Tai Hang Road at an acute angle, which means that southbound traffic on Tai Hang Road would usually have to execute a three point turn in order to enter Wang Fung Road.

    26.

    Despite these shortcomings, the evidence which the Tribunal accepted was that Wang Fung Road itself is not dangerous or likely to be made dangerous by the increased volume of traffic due to the developments except at the junction with Tai Hang Road, where it would aggravate an already dangerous situation.

  34. In this the second set of judicial review proceedings pertaining to the Building Authority’s refusal to give his approval of the building plans for China Field’s proposed redevelopment, the Buildings Appeal Tribunal, by the decision which it gave on 29 April 2011, allowed China Field’s appeal to it against such refusal.  On 19 November 2012 Justice of Appeal Lam (sitting as an additional judge of the High Court) allowed the Building Authority’s application for judicial review of the Buildings Appeal Tribunal’s decision of 29 April 2011 so as to remit the matter to the Buildings Appeal Tribunal. China Field then appealed from the High Court to the Court of Appeal. On 3 January 2014 the Court of Appeal, whose view on the point of law involved I have already summarised, varied the High Court’s order but otherwise dismissed that appeal of China Field’s. The present appeal is China Field’s appeal against that dismissal.

  35. What is the scope of s.16(1)(g) and of the Building Authority’s role?

  36. What is the scope of s.16(1)(g) and of the Building Authority’s role?

  37. In putting forward its answer to this question, each side has in its own way placed reliance on the history of Hong Kong’s legislation in regard to building and town planning matters. Recourse to legislative history is sometimes illuminating. Suffice it to say that I do not find it so in the present case.  The answer has to be found via some other route.

  38. There can be, as the facts of the present case show, circumstances in which matters such as vehicular traffic have a site specific dimension with which the Building Authority is rightly concerned as well as being part of the wider picture which is the province of town planners. Building height is one of the differences to which s.16(1)(g) is directed, and experience shows that it is the difference on the basis of which s.16(1)(g) is most often invoked. As to the site specific dimension of vehicular traffic, it is worth noting that an increase in building height usually means an increase of occupants some of whom are likely to be motorists and all of whom are liable to be visited by persons travelling in private cars or taxis. That is a reality which Mr Edward Chan SC for China Field rightly felt unable to deny when it was put to him by Mr Justice Gleeson NPJ in the course of the argument.

  39. There have been instances in which s.16(1)(g) has operated to  preserve strict uniformity as a “rate and range” clause would have done. But that does not turn s.16(1)(g) into no more or no less than such a clause. Whatever room there may be for using s.16(1)(g) to achieve an aesthetic objective, the Buildings Appeal Tribunal and the courts alike have consistently refused to confine s.16(1)(g)’s operation to aesthetics. Ably as always but more boldly than usual, Mr Chan nevertheless invites us to hold that s.16(1)(g)’s operation is indeed so confined. I respectfully decline the invitation, seeing nothing in the language or the context of the legislation to warrant accepting it.

  40. As Mr Justice Gleeson NPJ so pertinently observed in the course of the argument, building development or redevelopment by its very nature involves change. It is not any and every change that would warrant invoking s.16(1)(g). Standing against change simply for the sake of preventing change is not its purpose. It has a more practical purpose than that.

  41. There have been numerous instances in which the Buildings Appeal Tribunal have treated health and safety as within the purview of s.16(1)(g). True it is that those appear to have been instances involving the “previously existing” buildings limb of s.16(1)(g) and the proposed building itself. But there is no basis for drawing a distinction for present purposes between that limb (which is sometimes called the “second limb”) and the “buildings in the immediate neighbourhood” limb (which is sometimes called the “first limb”). Nor is there any reason for taking so limited a view of health and safety as to treat them as incapable of ever being relevant other than in regard to the proposed building itself.

  42. Mr Chan submits that since there are other officials with responsibility for health and safety issues and town planning matters, no such issue or matter can ever be taken into consideration by the Building Authority when deciding whether or not to give his approval of building plans. That submission goes too far. Of course the Building Authority is not to usurp the functions of such other officials. But he would not necessarily be doing anything of the kind when, in an instance within the objective limits of s.16(1)(g), he refuses to give his approval of plans of building works which if carried out would create or exacerbate something seriously detrimental to health and safety or town planning.

  43. Answer

  44. In my judgment, the position in law, on a purposive, contextual and therefore true construction of the legislation in question, is as follows. (1) Matters of health and safety and matters of town planning can be taken into consideration by the Building Authority when he decides whether or not to give his approval of plans of building works provided that there is a causal connection between such matters and the difference on the basis of which s.16(1)(g) is invoked. (2) The distance between the proposed development or redevelopment and the place or places where its effect on health and safety or town planning is felt will at least in general be relevant to the question, which is one of fact and degree, of whether there is such a causal connection. But (3) such a causal connection can, depending on the particular circumstances of the case, exist whether such effect is felt within the building site, in its immediate neighbourhood or beyond its immediate neighbourhood.

  45. Traffic lights

  46. I mention only promptly to dismiss Mr Chan’s contention that the danger at the junction of Wang Fung Road and Tai Hang Road can be removed by the installation of traffic lights. There is no evidence to that effect. Nor is there any evidence as to what knock-on effect such traffic lights may or may not have. It is open to China Field to raise this question of traffic lights before the Buildings Appeal Tribunal upon the remitter to it. My saying that is not to be taken to suggest that I see any promise in an argument that the exercise of the Building Authority’s discretion should somehow depend on what somebody else may or may not see fit to do in regard to the installation of traffic lights.

  47. Result

  48. In the result, I would, for the foregoing reasons and with an expression of my thanks to counsel on both sides, dismiss this appeal with costs nisi to the Building Authority.

    Justice Chan NPJ

  49. I agree with the judgments of Mr Justice Tang PJ and the judgment of Mr Justice Bokhary NPJ. I wish to add only a few observations on 3 of the points made by the parties.

  50. Legislative history

  51. I do not think the legislative history of the Buildings Ordinance, Cap 123 and other statutes is particularly helpful in the present case.

  52. The social conditions at the time when these statutes were enacted were very different: the demand for new buildings especially domestic buildings and the need for redevelopment of old buildings were not the same; the problems with regard to public health and safety arising from developments or redevelopments are more varied and complex; and the structure of government policy making departments and law enforcement departments and the role each of these departments is required to play are also quite different.

  53. It is therefore not easy to discern any clear legislative intention regarding the Building Authority’s powers under the current s.16(1). It is significant to note that there is no reference in any of the statutes, either expressly or impliedly, suggesting that the Building Authority in exercising its powers under s.16(1)(g) is not to be concerned with issues of public health and safety.

  54. On the contrary, the grounds upon which the Building Authority can refuse approval of proposed building plans under s.16(1) have increased to 18 grounds, many of which are indeed concerned with various aspects of public health and safety. Mr Chan SC has not submitted that these grounds are mutually exclusive. As a matter of statutory construction, I do not think this is open to him. Some of the considerations relevant to one ground are clearly also relevant to some other grounds.

  55. Ultimately, what are the matters which the Building Authority can or cannot take into consideration in the exercise of his discretion under a particular provision, in this case s.16(1)(g), is a matter of construction of that provision, adopting a purposive approach bearing in mind the Building Authority’s role and duty under the Buildings Ordinance.

  56. The role of the Building Authority

  57. The Town Planning Board and the Building Authority obviously have different roles to play under their respective empowering statutes.

  58. The Board is entrusted with the power, among other things, to draft plans for the lay-out of the urban areas in Hong Kong according to certain town planning policies (s.3(1)(a) of the Town Planning Ordinance, Cap 131). In drafting such lay-out plans, the Board may make provisions for the delineation of zones and districts and the provision of facilities for communal purposes as mentioned in s.4(1)(a) to (i) of that Ordinance. Needless to say, it must take into account broad town planning considerations including the general concern over public health and safety of the residents within the zones and districts shown on the draft plans.

  59. However, it cannot be seriously suggested that when drafting these lay-out plans, the Board has any particular building or site, or the future potential redevelopment of such building or site within its contemplation. Nor would it have in mind problems, particularly those concerning public health and safety, which may specifically arise from the redevelopment of any particular building or site.  These problems (which are unlikely to have been anticipated by the Board when preparing the draft plans) would only be noticeable from any proposed building plans which are submitted to the relevant departments or authorities for approval. Hence, it cannot be argued that the departments and authorities entrusted with the power and duty to approve building plans are not to be concerned with aspects of public health and safety which may specifically arise from a particular proposed redevelopment on the ground that these are broad town planning considerations which have nothing to do with the relevant departments or authorities.

  60. They of course have to be guided by the draft plans prepared by the Board (s. 13 of the Town Planning Ordinance, Cap 131). But they play a different role from that played by the Board. The Building Authority is entrusted with the duty to properly and fairly administer the provisions of the Buildings Ordinance. As pointed out by Godfrey JA approving what the Buildings Appeal Tribunal said in Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, 438:

    .... whereas the Town Planning Board is concerned with planning considerations for a particular zone or area, the Building Authority and this Tribunal are of course concerned with a particular site or specific building development.

  61. I would also respectfully agree with the comments made by Mayo J in Rich Resources Enterprises Ltd v Attorney General, HCMP 3896 of 1991 (10 April 1992) at p 9:

    I can see no difficulty if these powers and discretions [under s.16(1)] are exercisable side by side with powers exercisable by such bodies as the Planning Board and the Fire Services Department. Each body views the overall situation from a different perspective but it is the Building Authority’s responsibility to ensure that all requirements are adhered to. The height of a building is very much the concern of the Building Authority and there is a definite duty imposed on it to ensure that such matters as access to the Building are sufficient. This would certainly impinge on the safety of the Building. ....

  62. The differences in “height, design, type and intended use” of any proposed new building are in one sense also town planning considerations. But they are specific to the proposed development and are not to be regarded as “general town planning considerations” which pertain to the zone or district covered by the draft plans. Yet, the Building Authority is empowered to exercise its discretion to disapprove proposed building plans if there are such differences.

    What does “difference in height” entail? 

  63. It can hardly be disputed that the possible consequences of a difference in height must be a relevant consideration in the exercise of discretion under s.16(1)(g). The real issue in the present case is whether problems of public safety (i.e. the potential increased traffic danger at the junction at Tai Hang Road) which may result from the difference in height in the proposed buildings can be taken into consideration by the Building Authority in exercising its discretion under that subsection.

  64. Mr Chan submits that to be a relevant consideration, it must be shown that the concern in question is directly caused by the difference in height between the proposed new buildings and their immediate neighbourhood. However, he argues that such a concern cannot be a relevant consideration because one cannot translate the difference (here, the substantial increase) in height into an increase in density or traffic danger; “density” or “traffic danger”, it is said, simply does not appear in the provision.

  65. With respect, I do not think this submission can be sustained. It is putting too narrow a construction on s.16(1)(g). In considering this subsection, the Building Authority does not merely focus on any difference in height in terms of metres and feet, but has also to consider the natural consequences, if any, arising from such a difference, including its possible impact on the occupants and users of the new building.

  66. We are concerned with a proposal to construct two high rise domestic buildings (not a radio tower as Mr Justice Gleeson NPJ put it during argument). In the Hong Kong context, a new domestic building taller than the buildings in the immediate neighbourhood (or the building it is proposed to replace) would in most cases almost inevitably result in an increase in the number of flats and the number of occupants living in the new building and this would no doubt in turn lead to an increased burden on the traffic in the vicinity. It defies commonsense to argue that the result of a difference in height should not and could not be translated in terms of density and traffic danger. This is what a difference in height would entail in practical terms.

  67. In the present case, there are in the whole of Wang Fung Terrace 214 flats. The proposed development involves an additional 113 flats (an increase of almost 53%) and 46 new car parking spaces. It would be quite wrong to say that the possible effect of such an increase (which is the natural consequence of the difference in height) is, as a matter of construction of s.16(1)(g), an irrelevant consideration. In my view, the Building Authority would be failing in its duty if it were to ignore any effect on public safety of such a project.

    Justice Gleeson NPJ

  68. I agree with the judgments of Mr Justice Tang PJ, Mr Justice Bokhary NPJ and Mr Justice Chan NPJ.

    Justice Ribeiro Acting CJ

  69. The Court unanimously dismisses this appeal and makes the order as to costs set out in the last paragraph of Mr Justice Tang PJ’s judgment.


[1] Sometimes referred to as Wang Fung Street.

[2] In that, the proposed buildings differ in height from the buildings in the immediate neighbourhood.

[3] In that, the proposed building works involving the construction, formation or laying out of a means of access to or from Tai Hang Road is likely to be dangerous or prejudicial to the safety or convenience of traffic using the street or which may be expected to use the same.

[4] The time during which the plans were required to be considered. AG v Fire Building Authority v Head Step Ltd [1996] 6 HKPLR 87 at 98. 

[5] Causeway Bay Outline Zoning Plan No. S/H6/9. We have not been supplied with a copy of the plan.

[6] The current plan appears to be OZP No. S/H6/15, under which Wang Fung Terrace is zoned R(C) such that “No new development, or .... redevelopment of an existing building shall result in a total development and/or redevelopment in excess of a maximum of plot ratio and a maximum building height of six stories including carports, or the plot ratio and height of the existing building, whichever is the greater.”

[7] However, in the case of an erroneous rejection of plans, the applicant should be put back to the position in which he would have been if the error had not been made. Wong Kwok Gee v The Building Authority 1995 M.P. No. 963 unreported, 3 November 1995 per Keith J at 13. So, it appears, the new zoning does not apply to the plans under consideration.

[8] Co-incidentally, in 2001, the owner, Sun Honest Development Ltd, of No 4 and No 4 A-D also wished to redevelop the existing 4 storey and 5 storey buildings erected on them respectively with a 40 storey building. Sun Honest’s appeal to the Tribunal was heard together with China Field’s appeal, as well as in some of the subsequent judicial review proceedings. But we are not concerned with Sun Honest in the present proceedings. Sun Honest’s case involved an additional and important point of law concerning whether and if so how a prescriptive right of way might be acquired in Hong Kong as between leaseholders holding under a common landlord.

[9] China Field Ltd v Appeal Tribunal (Buildings)(No 2)(2009) 12 HKCFAR 342. I will refer to it as China Field No 2.

[10] With the concurrence of the other members of the court.

[11] Para 34.

[12] Thus, for example: “32. .... the Authority would not be entitled to reject building plans which involved the addition of further floors above an existing building but no alteration to the existing access to the street, because the building works would not involve the construction, formation or laying out of any means of access but only the use of an existing one. The fact that the massive increase in the volume of traffic using the street would cause danger or inconvenience to traffic even in the immediate vicinity of the site will not be sufficient.”

[13] We are not concerned with this part of the decision.

[14] Which they regarded as a useful shorthand for the legislative intention.

[15] Before Lam J (as he then was) and in the Court of Appeal (Cheung CJHC, Kwan JA and Barma JA).

[16] Namely that the Tribunal erred in its understanding and application of the congruity test, and that their view that, inter alia, health and safety issues were not relevant considerations under s 16(1)(g) was wrong.

[17] Leave to appeal to this court was granted on 14 July 2014, limited to this question only. It is agreed that at least the question of congruity has to be remitted to the Tribunal.

[18] Typically decisions under the rejection under the first limb would be on the sole ground of incongruity, hence decisions on the first limb would not provide any assistance on what other factors might be relevant because no other ground was relied on. In para 70 of the judgment of Cheung CJHC, he said: “health and safety are matters of public importance. Any lingering doubts about their relevance under s 16(1)(g) is undesirable. I wish therefore to state firmly that health and safety are always relevant considerations under s 16(1)(g) -- subject to the question of causal connection. I note that the authorities cited to this court all speak with one voice on this point....”, the authorities referred to by the Chief Judge were decided under the second limb.

[19] New Town Project Management Limited v Building Authority, Case Nos 179 and 180 of 2007, and Bestview International Development Limited v Building Authority, Case Nos 571 and 583 of 2007 (heard together), 20 January 2009 was not concerned with a stepped street. And it was not concerned with public health and safety issues. The decision was dealt with by Lam J at para 69.

[20] Nos 2-11 Hok Sze Terrace, unreported, 27 February 1973. It also appeared that in 1974, the Building Authority issued a practice note which stated in effect that any new building within stepped streets or similar areas would be restricted to 4 storeys. That was later raised to 6 storeys and then 7 storeys. In Nos 15-17 Sands Street (1994) HKDCLR 21, 24.

[21] A stepped street.

[22] There was a subsequent appeal to the Buildings Appeal Tribunal concerning a plan for a 12 storey building which was successful . In Nos 15-17 Sands Street [1994] HKDCLR 21.

[23] Presumably built on plans approved before the Land Conference held on 16 December 1971.

[24] In the present case, it is not clear whether the relevant OZP imposed any height restrictions on Wang Fung terrace, if not, control would be found in the Building (Planning) Regulations made under the Buildings Ordinance.

[25] In the Matter of Nos 6-8 U Lam Terrace, unreported, Appeal Case No. 60 of 1991, 10 November 1992, another stepped street application rejected under the second limb, the Tribunal said at p 17 “The height of buildings primarily dictated the number of occupants who would be using them and the authority was undoubtedly under a duty to take into account such factors as the density of the development.”  In para 31 of Lord Millett’s judgment quoted in para 8 above, it appears that his Lordship did not find it necessarydistinguish between height and density.

[26] Para 94.

[27] At para 79. Lord Millett expressed similar views at para 30 in China Field No 2, quoted in para 8 above.

[28] Mr Chan relied on 11-13 Sands Street (15 October 1993) as a contrary decision. Like the Chief Judge at para 80, I am of the view that the decision gives Mr Chan no support.

[29] Mr Chan accepts as a fall back position that health may be a relevant concern. He gave the example of the building of a hospital for infectious disease which is a different intended use. He contended, however, that this is a site specific consideration. I have dealt with his argument on “site specific” in para 19 above.

[30] The Hong Kong Planning Standards and Guidelines, at 3.1.1.

[31] As well as contravention of the Buildings Ordinance so the Building Authority could allow maximum plot ratios to be exceeded. I cannot agree with Mr Chan that these provisions merely gave the Building authority limited power to enforce plans made under the Town Planning Ordinance.

[32] Section 16(1)(b)(i) applied to buildings where no fire safety installations etc was required.

[33] At the remitted hearing.

[34] I do not exclude other serious traffic concern at the junction or elsewhere on Wang Fung Road. In a suitable case, as Cheung CJHC said other infra-structure issues may be relevant. Para 71.

[35] See per Lord Millett at para 31 cited above at para 8.


Representations

Edward Chan SC and Anthony Ismail, instructed by Kao, Lee & Yip, for the appellant.

Mok Yeuk Chi and Alexander Stock, instructed by the Department of Justice, for the respondent.


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