FACV No 7 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO 7 OF 2014 (CIVIL)
(ON APPEAL FROM CACV NO 277 OF 2012)
____________________
BETWEEN
BUILDING AUTHORITY

Applicant
(Respondent)

- and APPEAL TRIBUNAL (BUILDINGS)

CHINA FIELD LIMITED

Respondent
Interested Party
(Appellant)

____________________
Before:

Mr Justice Ribeiro Acting CJ, Mr Justice Tang PJ,

Mr Justice Bokhary NPJ, Mr Justice Chan NPJ,
Mr Justice Gleeson NPJ

Dates of Hearing:

23 February 2015

Date of Judgment :

13 March 2015

JUDGMENT

-2-

Mr Justice Ribeiro Acting CJ:

1.

I agree with the judgments of Mr Justice Tang PJ, Mr Justice

Bokhary NPJ and Mr Justice Chan NPJ.

Mr Justice Tang PJ:
2.

Inland Lot No 3289 is an elevated finger shaped piece of land

which sits substantially above Tai Hang Road which loops around the long east
and west sides of the finger and the short tip at the north side. On the south side
is a steep bank of undeveloped government land. Inland Lot No 3289 has long
been subdivided and there are 17 residential buildings, known as No 1 to No 16
Wang Fung Terrace, erected on it. All of these buildings with the exception of
No 6 are either 4 or 5 storeys in height. In 1998, The Building Authority
approved plans which resulted in the erection of a 16 storey building at No 6
Wang Fung Terrace. Inland Lot No 3289 is now known as the Wang Fung
Terrace.
3.

Wang Fung Road1 provides the only vehicular access to Wang

Fung Terrace which is from the Tai Hang Road on its western side. To reach it
when travelling south along Tai Hang Road, a very sharp turn into the Wang
Fung Road has to be made. Wang Fung Road is steep and narrow and runs in a
northerly direction, virtually doubling back (on a hair pin bend) along the same
stretch of Tai Hang Road but at a higher elevation.
4.

At 11 and 12 Wang Fung Terrace, there are two 5 storey buildings.

The appellant, China Field Ltd, wished to replace them with two 39 storey
buildings. The building plans for the purpose were rejected by the Building

Sometimes referred to as Wang Fung Street.

-3-

Authority in 2001 under, inter alia, s 16(1)(g)2 and s 16(1)(h)3 of the Buildings
Ordinance. They provide:
(1) The Building Authority may refuse to give his approval of any plans of
building works where
(g)

the carrying out of the building works shown thereon would

result in a building differing in height, design, type or intended
use from buildings in the immediate neighbourhood or
previously existing on the same site;

(h) the building works consist of, or any part thereof involves, the
construction, formation or laying out of any means of access or
other opening, not being a street or access road, to or from any
street, and the place at or manner in which such means of access
or other opening opens on to the street is, in his opinion, such as
to be dangerous or likely to be dangerous or prejudicial to the
safety or convenience of traffic using the street, or which may be
expected to use the same;

5.

At the relevant4 time the Outline Zoning Plan (OZP)5, in force in

this area contained no relevant restrictions in respect of building height. The

OZP has since been amended6 such that if new plans were submitted they are
liable to be rejected under s 16(1)(d).7
6.

China Field appealed against the rejection of their building plans to

the Appeal Tribunal (Buildings) (the Tribunal).8 By its decision dated 29

2
3

In that, the proposed buildings differ in height from the buildings in the immediate neighbourhood.
In that, the proposed building works involving the construction, formation or laying out of a means of
access to or from Tai Hang Road is likely to be dangerous or prejudicial to the safety or convenience of
traffic using the street or which may be expected to use the same.
The time during which the plans were required to be considered. AG v Fire Building Authority v Head
Step Ltd [1996] 6 HKPLR 87 at 98.
Causeway Bay Outline Zoning Plan No. S/H6/9. We have not been supplied with a copy
of the plan.
The current plan appears to be OZP No. S/H6/15, under which Wang Fung Terrace is zoned R(C) such
that No new development, or redevelopment of an existing building shall result in a total development
and/or redevelopment in excess of a maximum of plot ratio and a maximum building height of six stories
including carports, or the plot ratio and height of the existing building, whichever is the greater.
However, in the case of an erroneous rejection of plans, the applicant should be put back to the position
in which he would have been if the error had not been made. Wong Kwok Gee v The Building Authority 1995
M.P. No. 963 unreported, 3 November 1995 per Keith J at 13. So, it appears, the new zoning does not apply
to the plans under consideration.
Co-incidentally, in 2001, the owner, Sun Honest Development Ltd, of No 4 and No 4 A-D also wished
to redevelop the existing 4 storey and 5 storey buildings erected on them respectively with a 40 storey

-4-

November 2006, the Tribunal by a majority allowed the appeal against the
rejection under s 16(1)(g), and dismissed the appeal against the refusal on the
basis of s 16(1)(h).
7.

The Tribunal held that although read literally s 16(1)(g) would

allow the Building Authority to refuse to approve plans simply because a new
building would differ in height either from the building it replaced or the
buildings in the immediate neighbourhood, the Building Authoritys consent to
the construction of a 16 storey building in 1998, at No 6 Wang Fung Terrace,
destroyed the congruity of Wang Fung Terrace, and it was not open to the
Building Authority to rely on s 16(1)(g) to refuse the plans. Although, the
Building Authority sought to rely on the danger and/or inconvenience which the
proposed development would pose to traffic to support their decision on s 16(1)
(g), the Tribunal, consistently with their view that congruity was the only
relevant consideration under s 16(1)(g), did not see fit to consider this aspect of
the Building Authoritys case.

As for s 16(1)(h), although the proposed

buildings would open directly onto Wang Fung Road and pose no danger there,
the additional traffic as a result of the re-development would cause or be likely
to cause danger sufficiently proximate to the buildings such that they may be
taken into consideration under s 16(1)(h).
8.

China Field challenged the Tribunals decision under s 16(1)(h) by

judicial review. After failing at First Instance and in the Court of Appeal, the
appeal to this court succeeded9. Lord Millett NPJ10 said that whilst he agreed:

10

building. Sun Honests appeal to the Tribunal was heard together with China Fields appeal, as well as in
some of the subsequent judicial review proceedings. But we are not concerned with Sun Honest in the
present proceedings. Sun Honests case involved an additional and important point of law concerning
whether and if so how a prescriptive right of way might be acquired in Hong Kong as between leaseholders
holding under a common landlord.
China Field Ltd v Appeal Tribunal (Buildings)(No 2)(2009) 12 HKCFAR 342. I will refer to it as China
Field No 2.
With the concurrence of the other members of the court.

-530. with the Judge and the Court of Appeal in the present case that the test
of proximity which is to be applied is not spatial but causal. the relevant
test is direct causal connection.

and that the Tribunal and the lower courts:

31. correctly attributed the danger at the junction of Wang Fung Road with
Tai Hang Road to the increase in the volume of traffic using the junction which
would result from the increased density of occupation of the sites if the
developments were permitted.

however:
37. [They] erred in law by taking into account the impact of the increase
volume of traffic at the junction between Wang Fung Road and Tai Hang Road
when this is not attributable to the place at which or the manner in which the
means of access to either site is gained from Wang Fung Road.

which requires the Authority to consider where it opens and how it opens onto
the street, and it was not sufficient that the danger is caused by the development
generally or by the increased density of occupation of the site, it must be
attributable to the place at or manner in which 11 the proposed means of access
or other opening involved in the building works opens onto the street.12
9.

After saying he would remit China Fields case to the Tribunal for

rehearing, Lord Millett added:

38. It will be for the Authority to consider whether it wishes to invite the
Tribunal to reconsider its decision under s 16(1)(g) and for the Tribunal to
consider whether to do so. Should it become necessary, it will be open to the
Authority at an appropriate stage to apply for leave to bring proceedings for
judicial review. I would express no view on the approach the court should take
to such an application, save to say that, in the light of the way in which the
proceedings have been conducted hitherto, it would be strange if the
application were dismissed merely on the ground that it was out of time.
11

12

Para 34.
Thus, for example: 32. the Authority would not be entitled to reject building plans which
involved the addition of further floors above an existing building but no alteration to the existing access to
the street, because the building works would not involve the construction, formation or laying out of any
means of access but only the use of an existing one. The fact that the massive increase in the volume of
traffic using the street would cause danger or inconvenience to traffic even in the immediate vicinity of the
site will not be sufficient.

-6-

10.

On 4 August 2010, the Tribunal decided as a preliminary issue that

only the s 16(1)(h) issue had been remitted to them but that to avoid a further
remission, they would state what their decision would have been if the s 16(1)
(g) issue had been remitted to them. They also decided that they would not be
assisted by any further evidence on either issue.
11.

After the substantive hearing, by their decision dated 29 April

2011, the Tribunal allowed China Fields appeal against the Building
Authoritys decision on s 16(1)(h)13. They refused to change their 2006 decision
on s 16(1)(g). They remained of the view that, congruity 14 had been destroyed
because the Building Authority had permitted a 16 storey building at No 6 Wang
Fung Terrace. They rejected the Building Authoritys argument about the traffic
problem and regarded it, given the Court of Final Appeals decision on to s
16(1)(h), as using s 16(1)(h) by the back door.
12.

The Building Authority applied for judicial review in relation to the

Tribunals decision on s 16(1)(g). They sought, inter alia, an order of Certiorari

to bring up and quash the 2011 decision, and an order of Mandamus to direct
the Tribunal to dismiss China Fields appeal.
13.

The Building Authority succeeded both at first instance and in the

Court of Appeal.15 Both Lam J and the Court of Appeal disagreed with the
tribunals decision that as a result of the erection of a 16 storey building at No 6
there was no longer any congruity to preserve. The Court of Appeal regarded
the Tribunals expressed views on s 16(1)(g) as its determination and quashed it.
13
14
15

We are not concerned with this part of the decision.

Which they regarded as a useful shorthand for the legislative intention.
Before Lam J (as he then was) and in the Court of Appeal (Cheung CJHC, Kwan JA and Barma JA).

-7-

They remitted the matter to the Tribunal for reconsideration but only on s 16(1)
(g) in the light of their determination.16 On 14 July 2014, leave to appeal to this
court was granted on the following question:
whether in the application of s 16(1)(g) of the Buildings Ordnance Cap 123,
consideration can be given to health and safety issues, or town planning
aspects; and the extent to which such considerations have any spatial or causal
limitations.17

14.

The question turns on the proper interpretation of s 16(1)(g).

Section 16(1)(g) contains 2 limbs. The first limb covers a proposed building
differing in height, design, type or intended use from buildings in the
immediate neighbourhood. In a typical case, the objection would be that the
proposed building is incongruous with its neighbours. Hence, the shorthand,
congruity. The second covers a proposed building which differs in height,
design, type or intended use from the existing building. It does not require any
consideration of buildings in the immediate neighbourhood and one is not
concerned with congruity. Here, the plans were rejected under the first limb,
both because the proposed building would be incongruous and because of traffic
concerns. The principal argument of Mr Edward Chan SC, for the appellant, is
that congruity is the only relevant consideration under s 16(1)(g). Whether that
is correct turns on the construction of s 16(1)(g), which as I have said has 2
limbs. I believe the second limb can provide a valuable insight 18 into the proper
interpretation of s 16(1)(g) and, I will turn to it first.
16

17

18

Namely that the Tribunal erred in its understanding and application of the congruity test, and that their
view that, inter alia, health and safety issues were not relevant considerations under s 16(1)(g) was wrong.
Leave to appeal to this court was granted on 14 July 2014, limited to this question only. It is agreed
that at least the question of congruity has to be remitted to the Tribunal.
Typically decisions under the rejection under the first limb would be on the sole ground of incongruity,
hence decisions on the first limb would not provide any assistance on what other factors might be relevant
because no other ground was relied on. In para 70 of the judgment of Cheung CJHC, he said: health and
safety are matters of public importance. Any lingering doubts about their relevance under s 16(1)(g) is
undesirable. I wish therefore to state firmly that health and safety are always relevant considerations under s
16(1)(g) -- subject to the question of causal connection. I note that the authorities cited to this court all speak
with one voice on this point, the authorities referred to by the Chief Judge were decided under the second
limb.

-8-

15.

The conditions which trigger the exercise of the Building

Authoritys discretion under the second limb are that the proposed building is
different, in height, design, type or intended use from the existing building. But
what are the factors which may be taken into account on the exercise of
discretion? Decisions based on the Building Authoritys reliance on the second
limb mostly concerned stepped streets19 without vehicular access. It appears
that the Building Authority followed a consistent policy, since the PWD Land
Conference on 16 December 1971, to disapprove building in excess of 4 storeys
in such areas under s 16(1)(g).20
16.

Nos 2-11 Hok Sz Terrace, unreported, 27 February 1973, is one of

the earliest decisions of the Tribunal referred to us. It was concerned with the
proposed plans to build two adjacent blocks of 21 and 25 storeys which were
disapproved because they differed from the existing building(s) in height. The
Tribunal said:
2. This single circumstance brings the present case within the possible
exercise of discretion under Section 16(1)(g)

17.

The Building Authoritys main concern was that fire engines

could not approach the site, a concern which the Tribunal shared. The tribunal
was of the view that In the final analysis however, the Building Authority is
responsible for the due and proper administration of the Ordinance. and upheld
the Building Authoritys rejection of the plans because of fire safety concerns.
19

20

New Town Project Management Limited v Building Authority, Case Nos 179 and 180 of 2007, and
Bestview International Development Limited v Building Authority, Case Nos 571 and 583 of 2007 (heard
together), 20 January 2009 was not concerned with a stepped street. And it was not concerned with public
health and safety issues. The decision was dealt with by Lam J at para 69.
Nos 2-11 Hok Sze Terrace, unreported, 27 February 1973. It also appeared that in 1974, the Building
Authority issued a practice note which stated in effect that any new building within stepped streets or similar
areas would be restricted to 4 storeys. That was later raised to 6 storeys and then 7 storeys. In Nos 15-17
Sands Street (1994) HKDCLR 21, 24.

-9-

18.

An important authority on the second limb is Rich Resources

Enterprises Ltd v The Attorney General, unreported, HCMP 3896/1991, 10

April 1992, which concerned 15-17 Sands Street21, a decision of Mayo J (as he
then was) on an application for judicial review from the refusal of the Building
Authority to approve plans to build a 26 storey domestic building in place of an
existing 3 storey building under the second limb. 22 There were a number of
multi-storey buildings in the immediate neighbourhood which had been
developed to a height higher than the buildings previously existing on those
sites23 but the decision was not concerned with them. The Building Authority
main objection was that the density of the development was excessive with
attendant fire safety issues. The applicant argued that density came within the
ambit of the Town Planning Board which had not seen fit to impose any
particular restriction on plot ratio24 and the Building Authority would be
usurping the functions of the Town Planning Board if it was able to determine
this matter itself. Mayo J was of the view that the Building Authority was
concerned with the safety of people in and around the building, since the height
of buildings primarily dictated the number of occupants who will be using them
and the Authority was entitled to taking account such factors as the density of
the development.25 The learned judge held that s 16(1)(g) gave the Building
Authority wide discretion which could be exercised:
21
22

23
24

25

A stepped street.
There was a subsequent appeal to the Buildings Appeal Tribunal concerning a plan for a 12 storey building
which was successful . In Nos 15-17 Sands Street [1994] HKDCLR 21.
Presumably built on plans approved before the Land Conference held on 16 December 1971.
In the present case, it is not clear whether the relevant OZP imposed any height restrictions on Wang
Fung terrace, if not, control would be found in the Building (Planning) Regulations made under the
Buildings Ordinance.
In the Matter of Nos 6-8 U Lam Terrace, unreported, Appeal Case No. 60 of 1991, 10 November 1992,
another stepped street application rejected under the second limb, the Tribunal said at p 17 The height of
buildings primarily dictated the number of occupants who would be using them and the authority was
undoubtedly under a duty to take into account such factors as the density of the development. In para 31 of
Lord Milletts judgment quoted in para 8 above, it appears that his Lordship did not find it necessary
distinguish between height and density.

- 10 side by side with powers exercisable by such bodies as the Planning Board
and the Fire Services Department. Each Body views the overall situation from
a different perspective but it is the Building Authoritys responsibility to
ensure that all requirements are adhered to. The height of a building is very
much the concern of the Building Authority and there is a definite duty
imposed on it to ensure that such matters as access to the Building are
sufficient. This would certainly impinge on the safety of the Building.

19.

Mr Chan relied on the decision of the Tribunal in Re 11-13 Sands

Street, unreported, Appeal Case No. 113 of 1992, 15 October 1993, where a
distinction was drawn between questions of public safety and health which are
site specific and relevant under s 16(1)(g) and broad matters of infrastructure
which are not. However, that decision is at one with Rich Resources that in
considering an exercise of discretion under s 16(1)(g), the Building Authority
has to consider aspects of public safety and health. Mr Chan relied on the
expression site specific. To overcome decisions which upheld the right of the
Building Authority to consider aspects of public safety and health, Mr Chan
submitted that to be site specific required that they be confined within the four
corners of the building sites. A related argument is that there is a spatial
requirement in the sense that it must be something within the immediate
neighbourhood of the proposed development. With respect, I cannot agree.
The second limb is not concerned with the immediate neighbourhood. As for
the first limb, the condition for its exercise required a comparison with
buildings in the immediate neighbourhood but the factors relevant for the
exercise of the discretion are not so limited. There is nothing in the language of
the provision to support such limitation. With respect, I agree with the Chief
Judge that the test is one of causal connection.26 I believe, the requirement that
the concern must be site specific is another way of saying what the Chief Judge
said is required, namely, that there must be a causal connection between the

26

Para 94.

- 11 -

consideration in question and the difference in height (etc) concerned. 27 As the

Chief Judge pointed out there is no hard and fast rule. The more remote
physically a consideration is from the proposed development, the more difficult
it is to establish a causal connection.
20.

The decisions under the second limb which went back many years

are unanimous that health and safety concerns are relevant factors to be
considered.28

I can see no reason why they should be impermissible

considerations under the first limb. Surely, health and safety concerns directly
attributable to height should be relevant to a proposed building whether it
differs from the existing building or other buildings in the neighbourhood.
There is nothing in the language of s 16(1)(g) which requires a different
conclusion.

Mr Chans principal contention is that congruity is the only

relevant concern.29 He submitted, first, density is not covered by s 16(1)(g), it

uses the word height instead, so any safety or health concerns, even if the
direct consequence of the increased density, are not relevant. With respect, this
is a futile semantic exercise. What does it matter whether one says there are
health or safety concerns as a direct result of the additional floors and the people
accommodated in them, or as a direct result of greater density. Then, Mr Chan
submitted that density as a result of greater height is a town planning concern.
More importantly, it is the sole concern of the Town Planning Board. But
height, design, type or intended use are also town planning considerations
and they are matters which trigger the Building Authoritys discretion under s
16(1)(g). Why must health or safety concerns which spring directly, say, from
27

28

29

At para 79. Lord Millett expressed similar views at para 30 in China Field No 2, quoted in para 8
above.
Mr Chan relied on 11-13 Sands Street (15 October 1993) as a contrary decision. Like the Chief Judge
at para 80, I am of the view that the decision gives Mr Chan no support.
Mr Chan accepts as a fall back position that health may be a relevant concern. He gave the example of
the building of a hospital for infectious disease which is a different intended use. He contended, however,
that this is a site specific consideration. I have dealt with his argument on site specific in para 19 above.

- 12 -

the increased height be ignored by the Building Authority? Mr Chan relied on s

13 of the Town Planning Ordinance Cap 131 which provides Approved plans
shall be used by all public officers and bodies as standards for guidance in the
exercise of any powers vested in them. But the building density guidelines 30
show that whilst the ultimate maximum domestic plot ratios permissible in
Hong Kong are set by First Schedule of the Buildings (Planning) Regulations,
restrictions below this level can only be enforced through, inter alia, statutory
controls incorporated in Outline Zoning Plans or rural Outline Zoning Plans.
Moreover, not only does plot ratio which governs the maximum density of
developments come under the purview of the Buildings Ordinance, s 16(1)(d)
and (d)(a) of the Buildings Ordinance empower the Building Authority to
approve plans notwithstanding that they contravene plans made under the Town
Planning Ordinance31. Section 13 of the Town Planning Ordinance does not
support the argument that density is the sole concern of the Town Planning
Board, or that the Building Authority must approve building plans which do not
exceed the density permitted under a relevant zoning plan whatever the health
or safety concern. With respect, the argument that density was the concern
solely of the Town Planning Board must be rejected.
21.

Mr Chan also argued by analogy that fire safety was the concern

solely of the Fire Services Department such that if s 16(1)(b) was satisfied, the
Building Authority could not reject the plans under s 16(1)(b). This argument
was rejected as long ago as 1973 in Nos 2-11 Hok Sz Terrace referred to in para
17 above. There, the Tribunal rejected the argument on behalf of the appellant
that:
30
31

The Hong Kong Planning Standards and Guidelines, at 3.1.1.

As well as contravention of the Buildings Ordinance so the Building Authority could allow maximum
plot ratios to be exceeded. I cannot agree with Mr Chan that these provisions merely gave the Building
authority limited power to enforce plans made under the Town Planning Ordinance.

- 13 4. if the Director of Fire Services was willing to provide a certificate under

section 16 (1)(b)(ii)32, as he did in the present case, then the Building Authority
ought not to place emphasis upon the lack of vehicular access, and difficulty in
protecting the premises in the event of fire.

22.

It is said that to permit the Authority to take traffic safety into

account is tantamount to allowing reliance on s 16(1)(h) by the backdoor. Mr

Chan made the further point that the power to disapprove on account of danger
to traffic is restricted to situations covered by s 16(1)(h). With respect, I cannot
agree. In China Field (No 2) this court decided that on the true construction of s
16(1)(h), the Authoritys traffic concern did not fall within s 16(1)(h), not that it
was irrelevant under s 16(1)(g).
23.

So here, although s 16(1)(h) has no application, other traffic

concerns may be taken into consideration by the Building Authority. In the

present case, if it is established33, for example34, as this court in China Field (No
2) put it, there would be danger at the junction of Wang Fung Road and Tai
Hang Road due to the increase in the volume of traffic using the junction
which would result from the increased density of occupation of the sites if the
development were permitted.35, the Building Authority would be entitled to
disapprove the plans under s 16(1)(g).
24.

We have had the benefit of substantial submissions on the

legislative history of s 16(1)(g). But I have not found it necessary to resort to

them for the purpose of this judgment.

32
33
34

35

Section 16(1)(b)(i) applied to buildings where no fire safety installations etc was required.
At the remitted hearing.
I do not exclude other serious traffic concern at the junction or elsewhere on Wang Fung Road. In a suitable
case, as Cheung CJHC said other infra-structure issues may be relevant. Para 71.
See per Lord Millett at para 31 cited above at para 8.

- 14 -

25.

For these reasons, I would dismiss the appeal and make an order

nisi that the appellant pays the costs of the appeal. Should either party wish to
contend for a different order for costs, written submissions should be lodged
with the Registrar and exchanged within 14 days of the handing down of this
judgment, with liberty on the other party to lodge and exchange written
submissions within 14 days thereafter. In the absence of an application to vary,
this order as to costs will become absolute at the expiry of the time limited for
the lodging of submissions.

Mr Justice Bokhary NPJ:

26.

Subject to narrow exceptions, none of which apply in the present

case, no building works may be commenced or carried out without first

obtaining the Building Authoritys approval of the plans for such works. The
grounds on which the Building Authority may refuse to give his approval of
plans for building works are many, varied and to some extent overlapping.
They are set out in subsection (1) of section 16 of the Buildings Ordinance, Cap
123. This subsection is a lengthy one consisting of 18 paragraphs which are
designated as paragraphs (a) to (d) and (da) to (q). The present appeal concerns
the scope of the grounds of refusal contained in paragraph (g). By s.16(1)(g),
the Building Authority may refuse to give his approval of any plans of building
works where the carrying out of the building works shown thereon would
result in a building differing in height, design, type or intended use from
buildings in the immediate neighbourhood or previously existing on the same
site. In granting China Field Ltd (China Field) leave to bring the present
appeal, the Appeal Committee did so on the basis that it involved a question
which, by reason of its great general or public importance, ought to be
submitted to this Court for decision.

- 15 -

Question on which leave to appeal was given

27.

As formulated by the Appeal Committee, that question is whether

in the application of s.16(1)(g) consideration can be given to health and safety

issues, or town planning aspects; and the extent to which such consideration
have any spatial or causal limitations. On this question, China Field contends
that in the application of s.16(1)(g) no consideration can be given to health and
safety issues or town planning aspects but that if consideration can be given to
them, then such consideration is to be confined to their effect within the
building site or at most its immediate neighbourhood. The Court of Appeal
(Chief Judge Cheung and Justices of Appeal Kwan and Barma) took the
opposite view. Its view, which China Field attacks and the Building Authority
defends, can be summarised thus. (1) Consideration can be give to health and
safety issues and town planning aspects provided that there is a causal
connection between the difference on the basis of s.16(1)(g) is invoked and such
issues or aspects.

(2) There can exist, depending on the particular

circumstances of any given case, such a causal connection even where the
health and safety or town planning effect is felt beyond the building site and
indeed its immediate neighbourhood.
28.

Questions of law, however broad, are at least in general far more

clearly understood and better answered in the context of the facts in which they
arise. Shortly stated, the relevant facts are as follows.
Relevant facts
29.

China Field proposes to redevelop the site (which I will call the

subject site) constituted by Nos 11 and 12 Wang Fung Terrace. With the

- 16 -

exception of the 16-storey building at No. 6, the buildings in Wang Fung

Terrace range from 4 to 5 storeys. Two 5-storey buildings housing between
them a total of 39 flats stand on the subject site. China Field proposes to
redevelop the subject site by demolishing those two 5-storey buildings and
erecting in their stead two 39-storey buildings housing between them a total of
152 flats and 46 car-parking spaces.

The evidence is that China Fields

proposed redevelopment would increase the potential traffic flow from Wang
Fung Terrace by approximately 43%. Such an increase of traffic flow would
render Wang Fung Roads junction with Tai Hang Road even more dangerous
than it already is. And such increase of danger is the health and safety issue or
town planning aspect which the Building Authority took into account in
deciding to refuse to give his approval of the building plans for China Fields
proposed redevelopment.
30.

There have been two sets of judicial review proceedings pertaining

to that refusal (which was communicated by a refusal letter dated 2 November

2001). The first set culminated in this Courts decision handed down on 30
October 2009 and reported as China Field Ltd v Appeal Tribunal (Buildings)
(No 2) (2009) 12 HKCFAR 342. (To avoid confusion, it should be mentioned
that China Field Ltd v Appeal Tribunal (Buildings) (No 1) is the report of the
Appeal Committees determination granting the leave pursuant to which that
appeal was brought.) The present appeal is the culmination of the second set of
judicial review proceedings pertaining to the refusal communicated as long ago
as 2 November 2001. This litigation as a whole is, it can be seen, in the nature
of a saga. And, as will be seen, the present appeal will not be the end of the
saga since the matter has to be remitted to the Buildings Appeal Tribunal yet
again.

- 17 -

31.

For the details of the danger which already exists at the junction of

Wang Fung Road and Tai Hang Road and which the Building Authority does
not wish to increase, it is convenient to look at paragraphs 22 to 26 of the
judgment which Lord Millett NPJ gave in China Field (No 2) which read:23. Wang Fung Terrace is situate on an elevated, elongated finger of land
running from north to south, which is surrounded on the West and North sides
by Tai Hang Road, on the South side by a steep bank of undeveloped
Government land, and on the south side abutting but without access to other
residential land. The only access to Wang Fung Terrace is from Tai Hang Road
which runs along its western side. To reach it when travelling south along Tai
Hang Road, it is necessary to make a very sharp left turn into Wang Fung
Road. Wang Fung Road itself is steep and narrow and runs in a northerly
direction, virtually doubling back along the same stretch of Tai Hang Road but
at a higher elevation. The comparatively short section of the road from the
junction with Tai Hang Road uphill to the midpoint of the 180 hairpin bend is
on Government land but is subject to a right of way in favour of the owners of
Wang Fung Terrace. From that point, the road doubles back and runs in a
southerly direction along the western side of the promontory pas Nos 4 and
4A-D until it eventually reaches the northwestern corner of No 11 where it
terminates.
24. The building plan for the development of Nos 11 and 12 shows that the
property will have direct access to Wang Fung Road. The building plan for the
development of Nos 4 and 4A-D shows that the property will not have direct
access to Wang Fung Road, but to a pre-existing paved lane (the lane) which
feeds into Wang Fung Road. The lane lies between the site and an adjacent
property and at right angles to Wang Fung Road, which continues past the
property for a considerable distance. It is 18 feet wide, half its width lying
within the development site and half belonging to the adjacent property.
25. Wang Fung Road is an unsatisfactory road in many respects. It is very
narrow. It has no footpath for pedestrians. It has a hairpin bend that is too
narrow for cars travelling in opposite directions to navigate simultaneously.
The fall in Wang Fung Terrace towards Tai Hang Road also means that there is
poor visibility at the hairpin bend. The junction with Tai Hang Road also has
numerous problems. It affords poor visibility for vehicles joining Tai Hang
Road. This is because of the steep gradient from the upper area of Wang Fung
Terrace to Tai Hang Road and the fact that a short distance to the north of the
junction Tai Hang Road bends sharply. Most seriously, Wang Fung Road joins
Tai Hang Road at an acute angle, which means that southbound traffic on Tai
Hang Road would usually have to execute a three point turn in order to enter
Wang Fung Road.
26. Despite these shortcomings, the evidence which the Tribunal accepted
was that Wang Fung Road itself is not dangerous or likely to be made

- 18 dangerous by the increased volume of traffic due to the developments except at

the junction with Tai Hang Road, where it would aggravate an already
dangerous situation.

32.

In this the second set of judicial review proceedings pertaining to

the Building Authoritys refusal to give his approval of the building plans for
China Fields proposed redevelopment, the Buildings Appeal Tribunal, by the
decision which it gave on 29 April 2011, allowed China Fields appeal to it
against such refusal. On 19 November 2012 Justice of Appeal Lam (sitting as
an additional judge of the High Court) allowed the Building Authoritys
application for judicial review of the Buildings Appeal Tribunals decision of 29
April 2011 so as to remit the matter to the Buildings Appeal Tribunal. China
Field then appealed from the High Court to the Court of Appeal. On 3 January
2014 the Court of Appeal, whose view on the point of law involved I have
already summarised, varied the High Courts order but otherwise dismissed that
appeal of China Fields. The present appeal is China Fields appeal against that
dismissal.
What is the scope of s.16(1)(g) and of the Building Authoritys role?
33.

What is the scope of s.16(1)(g) and of the Building Authoritys

role?
34.

In putting forward its answer to this question, each side has in its

own way placed reliance on the history of Hong Kongs legislation in regard to
building and town planning matters.

Recourse to legislative history is

sometimes illuminating. Suffice it to say that I do not find it so in the present

case. The answer has to be found via some other route.

- 19 -

35.

There can be, as the facts of the present case show, circumstances

in which matters such as vehicular traffic have a site specific dimension with
which the Building Authority is rightly concerned as well as being part of the
wider picture which is the province of town planners. Building height is one of
the differences to which s.16(1)(g) is directed, and experience shows that it is
the difference on the basis of which s.16(1)(g) is most often invoked. As to the
site specific dimension of vehicular traffic, it is worth noting that an increase in
building height usually means an increase of occupants some of whom are
likely to be motorists and all of whom are liable to be visited by persons
travelling in private cars or taxis. That is a reality which Mr Edward Chan SC
for China Field rightly felt unable to deny when it was put to him by Mr Justice
Gleeson NPJ in the course of the argument.
36.

There have been instances in which s.16(1)(g) has operated to

preserve strict uniformity as a rate and range clause would have done. But
that does not turn s.16(1)(g) into no more or no less than such a clause.
Whatever room there may be for using s.16(1)(g) to achieve an aesthetic
objective, the Buildings Appeal Tribunal and the courts alike have consistently
refused to confine s.16(1)(g)s operation to aesthetics. Ably as always but more
boldly than usual, Mr Chan nevertheless invites us to hold that s.16(1)(g)s
operation is indeed so confined. I respectfully decline the invitation, seeing
nothing in the language or the context of the legislation to warrant accepting it.
37.

As Mr Justice Gleeson NPJ so pertinently observed in the course of

the argument, building development or redevelopment by its very nature

involves change. It is not any and every change that would warrant invoking
s.16(1)(g). Standing against change simply for the sake of preventing change is
not its purpose. It has a more practical purpose than that.

- 20 -

38.

There have been numerous instances in which the Buildings Appeal

Tribunal have treated health and safety as within the purview of s.16(1)(g).
True it is that those appear to have been instances involving the previously
existing buildings limb of s.16(1)(g) and the proposed building itself. But
there is no basis for drawing a distinction for present purposes between that
limb (which is sometimes called the second limb) and the buildings in the
immediate neighbourhood limb (which is sometimes called the first limb).
Nor is there any reason for taking so limited a view of health and safety as to
treat them as incapable of ever being relevant other than in regard to the
proposed building itself.
39.

Mr Chan submits that since there are other officials with

responsibility for health and safety issues and town planning matters, no such
issue or matter can ever be taken into consideration by the Building Authority
when deciding whether or not to give his approval of building plans. That
submission goes too far. Of course the Building Authority is not to usurp the
functions of such other officials.

But he would not necessarily be doing

anything of the kind when, in an instance within the objective limits of s.16(1)
(g), he refuses to give his approval of plans of building works which if carried
out would create or exacerbate something seriously detrimental to health and
safety or town planning.
Answer
40.

In my judgment, the position in law, on a purposive, contextual and

therefore true construction of the legislation in question, is as follows. (1)

Matters of health and safety and matters of town planning can be taken into
consideration by the Building Authority when he decides whether or not to give

- 21 -

his approval of plans of building works provided that there is a causal

connection between such matters and the difference on the basis of which
s.16(1)(g) is invoked. (2) The distance between the proposed development or
redevelopment and the place or places where its effect on health and safety or
town planning is felt will at least in general be relevant to the question, which is
one of fact and degree, of whether there is such a causal connection. But (3)
such a causal connection can, depending on the particular circumstances of the
case, exist whether such effect is felt within the building site, in its immediate
neighbourhood or beyond its immediate neighbourhood.
Traffic lights
41.

I mention only promptly to dismiss Mr Chans contention that the

danger at the junction of Wang Fung Road and Tai Hang Road can be removed
by the installation of traffic lights. There is no evidence to that effect. Nor is
there any evidence as to what knock-on effect such traffic lights may or may not
have. It is open to China Field to raise this question of traffic lights before the
Buildings Appeal Tribunal upon the remitter to it. My saying that is not to be
taken to suggest that I see any promise in an argument that the exercise of the
Building Authoritys discretion should somehow depend on what somebody else
may or may not see fit to do in regard to the installation of traffic lights.
Result
42.

In the result, I would, for the foregoing reasons and with an

expression of my thanks to counsel on both sides, dismiss this appeal with costs
nisi to the Building Authority.
Mr Justice Chan NPJ:

- 22 -

43.

I agree with the judgments of Mr Justice Tang PJ and the judgment

of Mr Justice Bokhary NPJ. I wish to add only a few observations on 3 of the

points made by the parties.
Legislative history
44.

I do not think the legislative history of the Buildings Ordinance,

Cap 123 and other statutes is particularly helpful in the present case.
45.

The social conditions at the time when these statutes were enacted

were very different: the demand for new buildings especially domestic buildings
and the need for redevelopment of old buildings were not the same; the
problems with regard to public health and safety arising from developments or
redevelopments are more varied and complex; and the structure of government
policy making departments and law enforcement departments and the role each
of these departments is required to play are also quite different.
46.

It is therefore not easy to discern any clear legislative intention

regarding the Building Authoritys powers under the current s.16(1).

It is

significant to note that there is no reference in any of the statutes, either

expressly or impliedly, suggesting that the Building Authority in exercising its
powers under s.16(1)(g) is not to be concerned with issues of public health and
safety.
47.

On the contrary, the grounds upon which the Building Authority

can refuse approval of proposed building plans under s.16(1) have increased to
18 grounds, many of which are indeed concerned with various aspects of public
health and safety. Mr Chan SC has not submitted that these grounds are
mutually exclusive. As a matter of statutory construction, I do not think this is

- 23 -

open to him. Some of the considerations relevant to one ground are clearly also
relevant to some other grounds.
48.

Ultimately, what are the matters which the Building Authority can

or cannot take into consideration in the exercise of his discretion under a

particular provision, in this case s.16(1)(g), is a matter of construction of that
provision, adopting a purposive approach bearing in mind the Building
Authoritys role and duty under the Buildings Ordinance.
The role of the Building Authority
49.

The Town Planning Board and the Building Authority obviously

have different roles to play under their respective empowering statutes.

50.

The Board is entrusted with the power, among other things, to draft

plans for the lay-out of the urban areas in Hong Kong according to certain town
planning policies (s.3(1)(a) of the Town Planning Ordinance, Cap 131). In
drafting such lay-out plans, the Board may make provisions for the delineation
of zones and districts and the provision of facilities for communal purposes as
mentioned in s.4(1)(a) to (i) of that Ordinance. Needless to say, it must take
into account broad town planning considerations including the general concern
over public health and safety of the residents within the zones and districts
shown on the draft plans.
51.

However, it cannot be seriously suggested that when drafting these

lay-out plans, the Board has any particular building or site, or the future
potential redevelopment of such building or site within its contemplation. Nor
would it have in mind problems, particularly those concerning public health and
safety, which may specifically arise from the redevelopment of any particular

- 24 -

building or site. These problems (which are unlikely to have been anticipated
by the Board when preparing the draft plans) would only be noticeable from any
proposed building plans which are submitted to the relevant departments or
authorities for approval. Hence, it cannot be argued that the departments and
authorities entrusted with the power and duty to approve building plans are not
to be concerned with aspects of public health and safety which may specifically
arise from a particular proposed redevelopment on the ground that these are
broad town planning considerations which have nothing to do with the relevant
departments or authorities.
52.

They of course have to be guided by the draft plans prepared by the

Board (s. 13 of the Town Planning Ordinance, Cap 131). But they play a
different role from that played by the Board.

The Building Authority is

entrusted with the duty to properly and fairly administer the provisions of the
Buildings Ordinance.

As pointed out by Godfrey JA approving what the

Buildings Appeal Tribunal said in Wing On Co Ltd v Building Authority (1996)

6 HKPLR 432, 438:
whereas the Town Planning Board is concerned with planning
considerations for a particular zone or area, the Building Authority and this
Tribunal are of course concerned with a particular site or specific building
development.

53.

I would also respectfully agree with the comments made by Mayo J

in Rich Resources Enterprises Ltd v Attorney General, HCMP 3896 of 1991 (10
April 1992) at p 9:
I can see no difficulty if these powers and discretions [under s.16(1)] are
exercisable side by side with powers exercisable by such bodies as the
Planning Board and the Fire Services Department. Each body views the overall
situation from a different perspective but it is the Building Authoritys
responsibility to ensure that all requirements are adhered to. The height of a
building is very much the concern of the Building Authority and there is a

- 25 definite duty imposed on it to ensure that such matters as access to the Building
are sufficient. This would certainly impinge on the safety of the Building.

54.

The differences in height, design, type and intended use of any

proposed new building are in one sense also town planning considerations. But
they are specific to the proposed development and are not to be regarded as
general town planning considerations which pertain to the zone or district
covered by the draft plans. Yet, the Building Authority is empowered to exercise
its discretion to disapprove proposed building plans if there are such
differences.
What does difference in height entail?
55.

It can hardly be disputed that the possible consequences of a

difference in height must be a relevant consideration in the exercise of

discretion under s.16(1)(g).

The real issue in the present case is whether

problems of public safety (i.e. the potential increased traffic danger at the
junction at Tai Hang Road) which may result from the difference in height in the
proposed buildings can be taken into consideration by the Building Authority in
exercising its discretion under that subsection.
56.

Mr Chan submits that to be a relevant consideration, it must be shown

that the concern in question is directly caused by the difference in height

between the proposed new buildings and their immediate neighbourhood.
However, he argues that such a concern cannot be a relevant consideration
because one cannot translate the difference (here, the substantial increase) in
height into an increase in density or traffic danger; density or traffic danger,
it is said, simply does not appear in the provision.

- 26 -

57.

With respect, I do not think this submission can be sustained. It is

putting too narrow a construction on s.16(1)(g). In considering this subsection,

the Building Authority does not merely focus on any difference in height in
terms of metres and feet, but has also to consider the natural consequences, if
any, arising from such a difference, including its possible impact on the
occupants and users of the new building.
58.

We are concerned with a proposal to construct two high rise domestic

buildings (not a radio tower as Mr Justice Gleeson NPJ put it during argument).
In the Hong Kong context, a new domestic building taller than the buildings in
the immediate neighbourhood (or the building it is proposed to replace) would
in most cases almost inevitably result in an increase in the number of flats and
the number of occupants living in the new building and this would no doubt in
turn lead to an increased burden on the traffic in the vicinity.

It defies

commonsense to argue that the result of a difference in height should not and
could not be translated in terms of density and traffic danger. This is what a
difference in height would entail in practical terms.
59.

In the present case, there are in the whole of Wang Fung Terrace 214

flats. The proposed development involves an additional 113 flats (an increase of
almost 53%) and 46 new car parking spaces. It would be quite wrong to say that
the possible effect of such an increase (which is the natural consequence of the
difference in height) is, as a matter of construction of s.16(1)(g), an irrelevant
consideration. In my view, the Building Authority would be failing in its duty if
it were to ignore any effect on public safety of such a project.
Mr Justice Gleeson NPJ:

- 27 -

60.

I agree with the judgments of Mr Justice Tang PJ, Mr Justice

Bokhary NPJ and Mr Justice Chan NPJ.

Mr Justice Ribeiro Acting CJ:

61.

The Court unanimously dismisses this appeal and makes the order

as to costs set out in the last paragraph of Mr Justice Tang PJs judgment.

(RAV Ribeiro)
Acting Chief Justice

(Robert Tang)
Permanent Judge

(Patrick Chan)
Non-Permanent Judge

(Kemal Bokhary)
Non-Permanent Judge

(Murray Gleeson)
Non-Permanent Judge

Mr Edward Chan SC and Mr Anthony Ismail, instructed by Kao, Lee & Yip, for
the appellant.
Mr Mok Yeuk Chi and Mr Alexander Stock, instructed by the Department of
Justice, for the respondent.