803 Funds Ltd v Director Of Buildings

CourtHigh Court (Hong Kong)
Judgment Date27 May 2021
Neutral Citation[2021] HKCFI 1471
Citation[2021] 2 HKLRD 1274
Judgement NumberHCAL2215/2020
HCAL2215/2020 803 FUNDS LTD v. DIRECTOR OF BUILDINGS

HCAL 2215/2020

[2021] HKCFI 1471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2215 OF 2020

________________________

BETWEEN
803 FUNDS LIMITED Applicant
and
DIRECTOR OF BUILDINGS Putative
Respondent

________________________

Before: Hon Chow J in Court

Date of Hearing: 31 March 2021

Date of Decision: 27 May 2021

___________________

D E C I S I O N

___________________

INTRODUCTION

1. This is an application for leave to apply for judicial review of the decision (“the Decision”) of the Director of Buildings (“the Director”), in his capacity as the Building Authority (“BA”), contained in the Building Department (“BD”)’s letter dated 4 August 2020 not to take any enforcement action in respect of certain “unauthorized building works” (“UBWs”) and/or “unauthorized change in use” (“UCU”) in or at Spaces C1 & C2 on Basement, No 98 Repulse Bay Road, Hong Kong (“the Building”).

2. For reasons which I shall endeavour to explain in this decision, I am of the view that the Applicant does not have a sufficient interest in the matter to which the present application relates. Accordingly, the application for leave to apply for judicial review is dismissed.

3. In what follows, unless the context indicates otherwise, references to “Section” or “s” shall be to the Buildings Ordinance, Cap 123 (“the Ordinance”).

BASIC FACTS

4. By an assignment dated 10 June 1985 (“the Assignment”), the property known as Flat C on 1/F, Car Parking Space No C on the Basement, Spaces C1 and C2 on the Basement, and Space C3 on the Roof, of the Building was assigned to Mr Philip Bowring.

5. Currently, Flat C on 1/F, together with Spaces C1 and C2 on the Basement (“Space C1” and “Space C2” respectively, and “the Spaces” collectively), of the Building are registered in the Lands Registry as a composite whole, with 89/540 undivided parts or shares of and in Sections A and B of Rural Building Lot No 415 being allocated to it.

6. There are no areas marked as Space C1 and Space C2 in the relevant approved building plan dated 25 August 1954 (“the Approved Building Plan”). As shown on the Approved Building Plan and a Basement Plan attached to the Assignment (“the Assignment Plan”), the area corresponding to Space C1 was designated for “laundry” and “caretaker”, while the area corresponding to Space C2 was part of a covered area designated for “car port”. Site inspections conducted by BD’s building surveyors revealed that the laundry, caretaker room and car port shown on the Approved Building Plan corresponding to the areas marked Space C1 and Space C2 on the Assignment Plan had been enclosed by wall construction with door openings and windows, and there had been a conversion of a part of the car port into domestic use (collectively “the Conversion”).

7. According to Mr Lam Siu Kay Junkers, Chief Building Surveyor, the Conversion was carried out without fulfilling the notice requirement under s 25(1). BA took the view that under the relevant enforcement policies (which I shall further describe below), no immediate enforcement action should be taken under s 25(2)(b) to issue an order to discontinue the present use of the Spaces, mainly because the unauthorised conversion and the building works involved did not constitute any obvious structural hazard or imminent danger to life or property, or cause any serious health hazards or environmental nuisance, or give rise to imminent fire hazard.

8. Nevertheless, BA did issue advisory letters on 24 September 2010 and 22 May 2020 respectively to Mr Bowring calling on him to take steps immediately to revert the Spaces to their original use in accordance with the Approved Building Plan. Mr Bowring failed, however, to heed the Building Authority’s advice.

9. On 26 May 2020, Sit, Fung, Kwong & Shum (“SFKS”) on behalf of the Applicant wrote to the Director to lodge a complaint about the unauthorized conversion of the Spaces into domestic use by the installation of walls, windows and doors which, it was said, constituted a blatant breach of s 25(1). The letter requested BD to take appropriate enforcement action against the Conversion, failing which the Applicant would “take the matter further”.

10. On 4 August 2020, BA gave a substantive reply to SFKS’s letter dated 26 May 2020, stating as follows:

“The Buildings Department (BD) has adopted a ‘risk-based’ approach in determining the priority of enforcement action under the Buildings Ordinance (BO) against building safety issues. Regarding the conversion of car parking spaces into other use, in general, there may be two types of situations that need to be handled. One involves unauthorized building works (UBWs); and the other is change in use of buildings. Upon receipt of a public report, the Buildings Department (BD) will conduct inspection and take follow-up or enforcement actions based on the inspection findings. For UBWs, according to the existing enforcement policy, the BD will issue removal orders to owners under section 24 of the BO, requiring the removal of UBWs that constitute obvious hazard or imminent danger to life or property, or constitute serious health hazards or serious environmental nuisances. For cases involving unauthorized change in use of buildings, the BD will accord priority to deal with those which pose obvious hazard or imminent danger to life or property, or cause serious health hazards or serious environment nuisances. For these cases, depending on the circumstances, the BD will issue statutory order in accordance with section 25 of the BO to require the owner or occupier to discontinue such unauthorized use of a building.

Recent inspections by BD revealed that the current use does not pose obvious hazard or imminent danger to life or property, or cause serious health hazards or serious environmental nuisances and no actionable UBWs requiring issue of removal are noted.”

The above reply of BA constitutes the Decision complained of in the present application.

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

11. On 4 November 2020, the Applicant made the present application for leave to apply for judicial review of the Decision. Three grounds of intended judicial review are raised in the Form 86:

(1) failure to apply and/or departure from BA’s policy on “change of use”;

(2) failure to apply and/or departure from BA’s policy on UBWs; and

(3) manifest unreasonable delay.

12. On 5 November 2020, the court gave directions for an inter partes oral hearing of the application for leave to apply for judicial review. The court also invited that parties to deal with the question of the Applicant’s standing to make the application.

13. On 10 March 2021, the Applicant issued a summons seeking to amend the Form 86 in order to raise an additional ground of judicial review, namely, “unlawful fetter of discretion”.

14. The application for leave to apply for judicial review was heard on 31 March 2021. This is the court’s decision on the application.

BA’S PREVAILING ENFORCEMENT POLICY ON UBWS

15. The existence of UBWs has been a long-standing problem in Hong Kong. As at 2001, it was estimated that there were around 750,000 UBWs in Hong Kong. In view of the long standing problem, the large number of UBWs, and BD’s tight resources, BA has issued, and revised from time to time, enforcement policies for the taking of enforcement actions against UBWs posing serious environmental nuisance or hazards.

16. Under s 2(1), the expression “building works” is widely defined to include “any kind of building construction, site formation works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alteration, addition and every kind of building operation, and includes drainage works”.

17. Generally speaking, BA would regard building works as UBWs in cases where:

(1) the works are carried out without the prior approval and consent of BA under s 14(1) and do not fall within the exemptions under s 41; or

(2) small-scale building works that are designated as minor works under the Building (Minor Works) Regulation, Cap 123N, are carried out without complying with the simplified requirements of the Minor Works Control System.

18. Under s 24(1), where any building works have been or are being carried out in contravention of any of the provisions of the Ordinance, BA may by order in writing require the demolition of the relevant building or building works, or alteration of the relevant building or building works as may be necessary to cause the same to comply with the provisions of the Ordinance, within a specified time (“Section 24 Order”).

19. As earlier mentioned, BA has issued, and revised from time to time, enforcement policies for tackling UBWs. One such policy was issued in 2001. In March 2011, upon a review of BD’s 10-year programme of removal of UBWs, it was estimated that some 400,000 UBWs which constituted a higher risk to public safety or an obvious or imminent danger to life or property (such as metal cages and flower racks on external walls and illegal rooftop structures on...

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    ...Respondent [1] See §11 of the Affirmation of Lee Wai Ping filed on 29 January 2021. [2] See 803 Funds Ltd v Director of Buildings [2021] HKCFI 1471, at §§34-35. [3] For the purpose of this paragraph, “appropriate person”, in relation to a living individual, means a “relevant person” as defi......

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