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Building Authority v Owners Of The Illegal & Structures On The Roof Of 9/F., And Roof Above Flats A1 & A2 On 10/F., 105 Austin Road, Pak On Bldg., Kowloon (K.i.l. 2302)

Judgment Cited in Precedent Map Related
Vincent
Judgment Date30 October 1987
CourtDistrict Court (Hong Kong)
Judgement NumberDCMP512/1987
Subject MatterMiscellaneous Proceedings
DCMP000275/1987 BUILDING AUTHORITY v. OWNERS OF THE ILLEGAL & STRUCTURES ON THE ROOF OF 9/F., AND ROOF ABOVE FLATS A1 & A2 ON 10/F., 105 AUSTIN ROAD, PAK ON BLDG., KOWLOON (K.I.L. 2302)

HEADNOTE

PUBLIC LAW - Buildings Ordinance (Cap. 123) - whether “illegal roof-top structure” a “building” - whether validity of Demolition Order can be challenged at hearing of application for Closure Order -

Held : (1) merely to describe the subject-matter of a Closure Order as an "illegal structure" is insufficient, since not every "structure" is a “building” within the definition in section 2 (1) of Cap. 123.

(2) in order to obtain a Closure Order under section 27(1) (a)(ii) of Cap. 123 to carry out work which the Building Authority is “empowered to carry out” it is sufficient to show that the Demolition Order has not been complied with; the validity of that Order cannot be questioned in the District Court on the grounds of “illegality” or "irrationality”.

(3) on the facts, the roof-top structures were “buildings” since they formed part of the building on which they rested or were erected.

IN THE DISTRICT COURT OF' HONG KONG

CIVIL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 275 & 512 OF 1987

_____________________

BETWEEN

Building Authority

Applicant

and

Owners of the illegal & structures on the roof of 9/F., and roof above Flats A1 & A2 on 10/F., 105 Austin Road, Pak On Bldg., Kowloon (K.I.L. 2302)

Respondents

_____________________

Coram : His Honour Judge Downey

Date : 30th October 1987

_____________________________

REASONS FOR DECISION

_____________________________

1. On the 17th January 1985, the Building Authority (“the Authority”) made a demolition order in respect of structures erected on the roof of the Pak On Building at 105 Austin Road, Kowloon. On the 23rd March 1987, the Authority sought a Closure Order under Section 27(1)(a)(ii) of the Buildings Ordinance (Cap. 123). The hearing of that application was adjourned by His Honour Judge Scriven, because the affirmation in support was defective and because an appeal to the tribunal established under Section 43 of Cap. 123 was still pending. (See MP275/S7).

2. Before the Authority had fully complied with the decision of the appeal tribunal, it made a further application for a Closure Order, which came before His Honour Judge Wilson on the 17th June 1987. should be called in support of the application at the adjourned hearing was wholly disregarded, until I intimated to Mr. Hinchen that both applications might have to be dismissed for insufficiency of evidence. I granted leave for him to call one of the deponents, Mr. Pau Wah Lung, to, give oral evidence in support of the application. I did so, despite Mr. Sceats’ objection, for two reasons. Mr. Hinchen was apparently unaware that I had earlier refused to make Closure Orders because the affirmations in support merely referred to “illegal structures” without indicating that they were "buildings" within the meaning of section 2(1) of Cap. 123. My suggestions that the Authority should seek legal advice appear to have been ignored. Secondly, if I have correctly understood, Mr. Sceats' objection, calling further evidence on this issue would make no difference. The applications for Closure Orders would still have to be refused because the requisite notices had not been given.

3. On the basis of Mr. Pau's evidence I make the following findings. On the roof top above the 10th and 9th floors of Pak On Building there are structures made of bricks, timber and metal sheet-roofing. Some 30 families live in these structures. Mr. Pau was unable to say whether these structures were merely resting on the roof by their own weight, or whether they were permanently fixed to the roof or any parapet wall or other part of Pak On Building. But the structures had plumbing, electrical, and drainage facilities, which were probably connected to those provided for the main building. Under cross-examination, Mr. Pau told me that notices in accordance with section 27(2) of Cap.123 had been posted in four conspicuous places, namely, two at each end of a corridor between the structures on the roof top; one on the groundfloor of block A near the main entrance to Pak On Building in Austin Road; and one in the lift lobby near the entrance to the roof from the 10th floor of Block A. The situation is not exactly clear. But it seems that Block A9, with it's main entrance on Austin Road, consists of 10 floors; whereas Block B, with en entrance on Tak Shing Street, consists of 9 floors. Although each block has two lifts, from the top of which access to the roof can be gained, those in Block A are normally used for gaining access to the roof of Pak On Building. Evidence of the means of access to the two blocks was given by Madam Yeung Pui-yee, the owner of flats A1 and A2 on the 10th floor of Pak On Building.

4. Before I deal with the principal questions, there is one other procedural matter or question of law on which I must indicate my reasons for ruling as I did. Mr. Sceats sought to cross-examine Mr. Pau on an alleged recent change of policy by the Authority, which seemingly had the effect of eliminating one of the options given by the original demolition order. In 1985 Madam Yeung Pui Yee was given the options to "demolish or alter"; whereas in 1987 the change of policy gave her no choice, but obliged her to demolish. Whilst acknowledging that this change of policy could have been the subject-matter of a further appeal to the appeal tribunal, established by section 43 of Cap. 123, Mr. Sceats contended that it was open to me to enquire into the correctness of this change of policy, and its effect on the validity of the demolition order, because whatever restrictions upon judicial discretion are imposed by the provisions of section 27, the District Court still had an unfettered discretion and judicial function to determine whether the Authority "is empowered to carry out" the works which it considers necessary.

5. I would be extremely, reluctant to hold that the usual Powers and jurisdiction of any court to receive evidence on disputed matters, end to come to decisions on questions of fact, mixed fact and law, or pure questions of law, has been taken away or severely curtailed by the legislature. But, regretfully, I feel that I must concede that such is, in large part, the effect of section 27...

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