28 December 2011
On 20 December 2011, the Court of First Instance handed down a judgment in the caseBuilding Authority v Appeal Tribunal (Buildings) (HCAL 20/2011), where it held that the Building Authority ("BA") is entitled to require an applicant to demonstrate ownership or realistic prospect of control of the land forming the "site" when processing general building plans application.
The developer owned two adjacent plots of land, 10-12 and 7-9 Ying Wa Terrace, which it intended to re-develop as Phase 1 and Phase 2 respectively of a residential development.
Various plans were submitted in respect of the two Phases. The plans for Phase 1 were approved first and a block of flats was constructed thereon. These flats were sold off by the developer (except for the building's forecourt which the developer reserved for itself).
The developer then submitted plans for Phase 2. These plans treated Phase 1 and Phase 2 as a single site (in terms of calculation of site coverage, plot ratio).
Building appeal and judicial review
The plans were rejected by BA on the basis that the developer failed to demonstrate ownership or realistic prospect of control over the land at Phase 1 ("Ownership Proof Requirement"), as the units in Phase 1 had already been sold off.
The developer lodged a building appeal challenging the BA's decision. The Appeal Tribunal allowed the appeal and held that the BA was wrong to implement the Ownership Proof Requirement.
The BA judicially reviewed the Tribunal's decision. On 20 December 2011, Mr. Justice Johnson Lam of the Court of First Instance handed down his judgment in favour of the BA and quashed the Tribunal's decision. The Court held that, in making building plans applications, an applicant can only include land for his proposed redevelopment which he owns or which he has a realistic prospect of control.
This decision echoes an earlier Court of First Instance's decision in Ashley 121 Ltd. v Appeal Tribunal (Buildings) (that other case concerned the development of a piece of land adjacent to Carson Mansion in North Point). So far there are two cases at the Court of First Instance level which decided that the BA is entitled to implement the Ownership Proof Requirement.
It remains to be seen whether the Ownership Proof Requirement will be further tested by the higher level of court such as the Court of Appeal or Court of Final Appeal.
Important procedural issue
Apart from the Ownership Proof Requirement issue, the Court also held that, in a building appeal challenging the BA's decision made under section 16(1)(i) of the Buildings Ordinance (i.e. building plans rejected due to insufficient particulars supplied to the BA), the Appeal Tribunal's role is restricted to only determining whether the BA should have asked for the particulars so requested and this is to be determined by reference to the necessity of requiring the requested particulars for the proper consideration of the plans.
Even if the appellant supplies those particulars to the Appeal Tribunal for consideration in a building appeal, the Court held that the Tribunal should not usurp the role to the BA to go further to examine those particulars as if it were the primary decision-maker and make a substantive decision on those particulars. The Court held that opportunity should be given to the BA to consider those particulars and exercise the BA's primary discretion and power in assessing whether the plans should be approved or disapproved.
We have some reservations on this approach. According to the Buildings Ordinance and relevant case law, the nature of building appeal is a de novo (i.e. fresh) hearing, which means that the Appeal Tribunal effectively takes into the shoes of the BA to determine the plans afresh. For this purpose, the Tribunal is entitled to take into account new evidence and is obliged to make its own independent decision on the plans. Logically, it must follow that the Tribunal, in making its own assessment, should also be entitled to make its decision on the additional particulars supplied by the appellant in the building appeal. There is no question of "usurping" the BA's role under the Buildings Ordinance.
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