On 22 November 2012, Mr. Justice of Appeal Johnson Lam handed down his judgment in the case Building Authority and Appeal Tribunal (Buildings) and Long Winner Development Limited (HCAL 45/2012), where he dismissed the Building Authority's (BA) application for judicial review of the decision of the Appeal Tribunal (Buildings) to reverse the BA's decision to reject the Superstructure Plans submitted by the developer, Long Winner Development Limited (Long Winner).
Long Winner proposed to redevelop a site in Central (located at the junction of Pottinger Street and Ezra's Lane) for a commercial/residential building.
The development took advantage of the Government's original plan to provide the Central West Station for MTRC's Shatin-Central Link in Central:
However, in late 2008, after Long Winner had completed the foundation and piling works, the Government decided to relocate the Central West Station:
Long Winner lodged a building appeal to challenge the BA's decision and the Appeal Tribunal allowed the appeal and directed the BA to approve the Superstructure Plans. The BA applied for judicial review of the Tribunal's decision.
The Court of First Instance dismissed the BA's judicial review application because:
The BA was therefore legally bound to approve the Superstructure Plans subject to the same modifications and exemptions as previously granted by the BA in the Permit.
Can the BA rely on the change in Government's position?
The BA argued that, because of the change in Government's own position to relocate the Central West Station, Government would no longer accept the surrender and dedication, and thus the conditions imposed under the Permit would not be satisfied. The BA was therefore correct to reject the Superstructure Plans which were submitted on the basis that the surrender/dedication under the Permit would be implemented.
The Court rejected this argument and held that, when the BA was faced with the Government's change in position regarding the Central West Station, the BA could have either:
The BA was therefore wrong to ignore the effect of the Permit on the modification of the plot ratio and site coverage in respect of the approved 2007 GBP without any revocation.
Can the BA revoke the modification/exemption granted in the Permit?
The Court indicated several times in the judgment that, if the Permit had been revoked before the BA made its decision to reject the Superstructure Plan, the present dispute would not have arisen. However, since both parties accepted that the Permit was still valid at the time of rejection of the Superstructure Plans, the Court was not required to make a decision as to whether the BA had the power to revoke the Permit.
The Court only mentioned that if the BA sought to revoke the Permit, the following issues could arise:
This issue remains outstanding and it remains to be seen whether the BA, after losing this case, will attempt to revoke the Permit as an alternative way to stopping the proposed development in accordance with the approved 2007 GBP and the Superstructure Plans.
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