On 19 November 2012, Mr. Justice of Appeal Johnson Lam handed down his judgment in the case Building Authority v. Appeal Tribunal (Buildings) HCAL60/2011, where he allowed the Building Authority’s (BA) judicial review application to quash a decision of the Appeal Tribunal, which allowed a building appeal lodged by the developer in relation to the building plans for redevelopment of Wang Fung Terrace.
Section 16(1) of the Buildings Ordinance (Cap 123) (BO) provides a long list of discrete grounds on which the BA may reject building plans submitted by developers.
Central to this case were BO s.16(1)(g) and s.16(1)(h). S.16(1)(g) allows the BA to reject plans if the building differs "in height, design, type, or intended use from buildings in the immediate neighbourhood or previously existing on the same site". S.16(1)(h), on the other hand, regulates the means of accessing building works, where any opening onto a street may cause danger.
The background to this case has a long history. In previous proceedings, the BA rejected the building plans under both BO s.16(1)(g) and (h).
- The developer lodged a building appeal to challenge the BA’s decision. In 2006, the Appeal Tribunal allowed the developer’s appeal on the grounds of (g), but upheld the BA’s decision on the grounds of (h).
- The developer applied for judicial review on the grounds of (h). However, the BA did not apply for judicial review on the grounds of (g) throughout the proceedings, but tried to request the Court to determine the issue only at a very late stage.
- Eventually, in October 2009, the Court of Final Appeal (in the case China Field Ltd v. BAT  5 HKC 231) decided that the BA’s objection under the grounds of (h) was unfounded and remitted the case back to the Tribunal for fresh determination. Crucially, the Court of Final Appeal expressly declined to give any opinion on (g), for the reason that it had not been challenged in the developer’s judicial review proceedings.
The Appeal Tribunal considered the remitted case in 2011. It accepted the developer’s case on the grounds of (h) and maintained its original view on the grounds of (g) because, among other things, (g) grounds were never an issue in the judicial review proceedings. The BA applied for judicial review of the Tribunal’s decision.
Could the BA re-open the issue?
Mr. Justice of Appeal Lam, sitting in the Court of First Instance, allowed the BA’s judicial review application on the grounds of (g), even though, as the learned judge noted, the Court of Final Appeal had technically not remitted that issue back to the Tribunal as it was not contested in the original judicial review.
The judge relied on the following to support his decision that (g) grounds can be relied on as grounds on which to reject the plans:
- When the Appeal Tribunal allowed submissions from the BA on (g) grounds, and then “maintained” its original views on (g) in 2011, it had effectively re-opened the issue. In effect, the BAT’s actions in 2011 took precedence over what the BAT had decided in 2006. Even though the BA had chosen not to challenge that ruling in 2006, it was still permissible for the BA to reject the same building plans in 2011.
- The Court of Final Appeal expressly acknowledged in its judgment that (g) grounds are one of the outstanding issues in the remitted hearing.
- In any event, s.15(2) of the BO provides that the grounds for disapproval in the BA’s disapproval letter are not exhaustive, and thus the BA is entitled to add new grounds in the remitted hearing.
What is the test for s.16(1)(g)?
The judge’s analysis was divided into four parts:
- Permissible heights under the Outline Zoning Plan (OZP) do not bind the BA
- Contravention of the OZP is by itself discrete grounds for the BA to reject building plans: Section 16(1)(d) of the BO.
- Therefore, when rejecting a set of building plans on any other grounds, compliance with the OZP is already a given, since if those plans were in contravention of the OZP, Section 16(1)(d) would have sufficed.
- Permissible heights under the OZP are nonetheless a relevant consideration in the balancing exercise
- The judge referred to previous authority, citing precedents where it was held that the same subject, such as plot ratio, could be subject to two separate regimes.
- This was because the Town Planning Board was concerned with an entire area, while the BA is concerned with a single site. Different authorities examine a given metric from different perspectives. To the Town Planning Board, building heights are closely related to the density of an area. To the BA, building height can impact on fire safety.
- Therefore, the simple fact that the OZP provided for building heights does not mean the BA was therefore barred from taking height into consideration.
- S.16(1)(g) is not limited only to aesthetic considerations, and the BA may take into account safety and access issues
- The judge made reference to the legislative process behind the enactment of the BO and held that the concern behind s.16(1)(g) was about the difference in mass and height, and not only confined to adverse impact from the aesthetic point of view.
- The BA may still reject building plans under s.16(1)(g) on account of safety and access implications even though the height of the proposed development is permitted by the relevant OZP.
- In exercising its discretion, the BA should balance positive and negative factors relating to redevelopment
- The judge approved earlier authorities and noted that there must be "significantly greater weight" in the negative factors as compared to the positive, since a refusal meant that the developer could not develop the site to the full extent granted by the Government Lease and the relevant laws.
This case served to clarify the legal principles on the application of s.16(1)(g) of the BO.
However, this case also shows that even a Court of Final Appeal ruling in building law judicial review cases may not be "final": the government authority may still re-open the matter on new grounds, even though such grounds had already been dismissed years earlier. Developers may become hesitant to enter into long-term projects since the lack of finality makes it difficult to plan ahead and to make provision for market cycles and commodity prices.
It remains to be seen whether the developer will appeal the Court of First Instance’s decision to the Court of Appeal.