Benver Company Ltd v Appeal Tribunal (Buildings Ordinance)

HCAL 217/2023

[2023] HKCFI 842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 217 OF 2023

________________________

________________________

________________________

D E C I S I O N

________________________

A. Introduction

1. By a Form 86 dated 14 February 2023 (since amended: see below), the Applicant seeks leave to apply for judicial review to challenge two decisions (“Two Decisions”) of the Appeal Tribunal (Buildings Ordinance) (“BAT”) made as directions by the Chairman of the BAT on 26 January 2023.

2. The Two Decisions were directives made in relation to two Building Appeal cases being heard together, in which the Applicant is the Appellant. The relevant directions (“Aerial Photos Direction” and “Site Inspection Direction” respectively) were that:

(1) The parties should provide, within 14 days, colour aerial photos (“Aerial Photos”) of the property the subject-matter of the appeals (“Property”).

(2) There should be a joint site inspection (“Site Inspection”) of the Property, the Main Roof and the Upper Roof of the material part of the Property.

3. As may be thought obvious, an attempt to challenge intermediate and procedural directions made within tribunal proceedings does not seem likely to be fertile ground for a judicial review challenge. Nevertheless, bearing in mind the chronology, and awaiting an initial response from the putative interested party (“BA”), I granted the requested urgent temporary stay of the Two Decisions on 16 February 2023. I did so without knowing that the BAT had actually decided not to proceed with the Site Inspection, which it told the parties on 15 February 2023.

4. The Solicitors for the Applicant appeared to have misunderstood my grant of a temporary stay as the grant of leave to apply for judicial review. It was not. I made this point clear by my letter of 20 February 2023, which also stated that I was awaiting the BA’s response before I would take further action.

5. Shortly thereafter, the BAT gave further directions on 23 February 2023, to stay the parties’ closing submissions pending the decision in this application.

6. The BA provided its Initial Response to the Form 86 on 17 March 2023, in accordance with the deadline set by me.

7. In light of the materials, and where the Applicant requested an oral hearing in the Form 86, I fixed a date for that oral hearing of the application for leave to apply for judicial review, and any further interim order.

8. Subsequently, on 3 April 2023, the Applicant’s solicitors wrote to the Court, asking that the letter be treated as an application for leave to amend the Form 86, in the form of the draft Amended Form 86 (“AF 86”) provided with the letter. The hearing proceeded on the basis of the intended challenge identified in the AF 86. The main amendment relates to a proposed Ground 6 of intended review: see below.

9. Following the hearing, this is my Decision.

B. Material Background

10. For the purposes of resolving this application, there is no need for any lengthy recitation of the background facts. The following material matters will suffice.

11. The Applicant is the registered owner of the Property, which comprises Unit D in two semi-connected residential blocks. Unit D is on the 1/F and 2/F with a roof.

12. The BA carried out inspections of that part of the roof belonging to Unit D (“Portion D”) after receiving reports that there were unauthorised building works (“UBWs”) being carried out. Subsequently, the BA issued two building orders, requiring the Applicant to demolish five items of alleged UBWs.

13. On 9 May 2019, the Applicant filed its Notice of Appeal against these two orders. The relevant two building orders the subject of that appeal were subsequently withdrawn, and do not form any part of these intended judicial review proceedings, except as to provide background for one of the grounds of appeal and judicial review. Nevertheless, costs issues remain to be resolved in that appeal.

14. A new building order was issued on 24 June 2019, requiring the Applicant to demolish two items of alleged UBWs. Although the wordings of those two items in the building order are slightly different from items in the previous building order, it is said by the Applicant that they are effectively the same two items.

15. On 12 July 2019, the Applicant filed a Notice of Appeal against the new building order.

16. The two ‘parallel’ appeals are now the subject matter of the proceedings before the BAT.

17. Preliminary hearings have been held in relation to the issue of “good cause”, as provided for in section 49 of the Buildings Ordinance Cap 123 (“BO”). The second preliminary hearing took place on 14 December 2022.

18. In relation to the second appeal, a set of site inspection photographs with plans was adduced by the BA to show the two alleged items of UBWs as set out in the new building order. The Applicant disputed the location of the UBWs, its case being that the UBWs are not on its roof. The Applicant also challenged the photographs and contended that they did not show or sufficiently show that the objects shown were actually located in or at Unit D. The hearing was part heard and adjourned to 15 February 2023.

19. During the adjournment, the BAT made the Two Decisions. It apparently did so without consulting the parties, but it must have done so in light of the submissions and disputes raised before it at the previous hearing. I note that the particular wording adopted by the BAT, relevant to the Site Inspection Direction, is that the BAT said it was “minded to have a joint site inspection”, and directed the parties to provide “written submission in relation to the arrangement of the joint inspection”.

20. Subsequently, the Applicant invited the BAT to withhold/suspend the Two Decisions pending the parties’ written submissions to be made on whether they were legally viable, taking into account matters of jurisdiction, fairness and appropriateness. On 30 January 2023, the BAT directed the parties to provide written submissions in view of the Applicant’s challenge. Written submissions were provided by the BA and the Applicant on 31 January and 3 February 2023 respectively.

21. On 9 February 2023, the BA submitted aerial photos of the Applicant’s premises and provided dates and time for the proposed joint site inspection. On the same day, the Applicant opposed the BA’s submission of aerial photos.

22. On 10 February 2023, the BAT confirmed the Two Decisions, with reasons provided. In its reasons, the BAT noted, amongst other things, that:

(1) the BAT is vested with wide and flexible power to determine the procedure of an appeal, including receiving any relevant evidence;

(2) the parties have no objection that aerial photos are relevant to the issues in dispute, namely whether there is any UBW mentioned in the building order;

(3) the aerial photos acquired from Survey and Mapping Office are public records, and any challenges to the BA’s photographs are irrelevant;

(4) the BAT does not have any stance whether the aerial photos would have any positive or negative impact on any party’s case before parties’ filing of the aerial photos;

(5) evidence taken during a site inspection would be relevant to the issues in dispute, namely whether there is any UBW and the extent of any UBW;

(6) taking evidence in the exercise of its powers, the BAT is not engaging in an arbitrary or unlawful interference with privacy or home, or doing anything contrary to law;

(7) the BAT does not have any stance whether the evidence taken during the site inspection would have any advancing or adverse impact on any party’s case before the joint site inspection;

(8) a joint site inspection by the BAT together with the parties shall have no impact on the fairness, independence, and impartiality of the BAT.

23. Nevertheless, on 15 February 2023, and after further reflection, the BAT said either that it had not decided on a site inspection, or that in any event it did not need to carry out the Site Inspection any more. Therefore, by 15 February 2023, the proposal for a site inspection had gone away.

24. As already stated above, the BAT has stayed the making of closing submissions in the two appeals, pending the outcome of this application for leave to apply for judicial review. As a result, the merits of the two appeals are still to be determined by the BAT. In other words, the BAT is yet to decide – on the merits of the two appeals as it sees them – whether to order confirmation, variation or reversal of the decisions appealed against, or what other orders it might make as it thinks fit.

C. Intended Grounds of Review

25. In the AF 86, the Applicant has set out in some detail its grounds of appeal before the BAT, but I do not think I need to rehearse them for present purposes. Indeed, I am not concerned with the actual merits of the underlying appeals.

26. Instead, I can refer to the Applicant’s intended grounds of judicial review, the headings of which and the broad points made are as follows. The first three grounds relate to the Site Inspection Direction, and the other three grounds relate to the Aerial Photos Direction (where references to section numbers are to the numbered sections of the BO):

(1) Ground 1: Illegality (section 53 inspection power not engaged at a section 49 preliminary hearing).

The broad point made is that a “preliminary hearing” engages a threshold test to screen...