FACV 19/2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 19 OF 2015
(ON APPEAL FROM CACV NO. 105 OF 2015)

BETWEEN

THE REAL ESTATE DEVELOPERS Appellant

ASSOCIATION OF HONG KONG

And

BUILDING AUTHORITY Respondent

___________________________________________

APPELLANT’S WRITTEN CASE

___________________________________________
Contents

A. INTRODUCTION ....................................................................................................... 2
B. PROCEDURAL BACKGROUND ............................................................................. 7
C. THE POLICY .............................................................................................................. 9
D. THE BUILDING LEGISLATION ............................................................................ 12
D1. BA‟s power to reject applications for GBP approval must derive
from statute ......................................................................................................... 12
D2. Provisions of the building legislation ................................................................. 13
D3. Purpose of the building legislation ..................................................................... 17
D4. No nexus between “site” and Government lease ................................................ 18
D5. No need for proof of ownership or control ......................................................... 20
D6. Summary on the building legislation .................................................................. 21
E. CHENG YICK CHI ................................................................................................... 23
F. CASE STATED AND DOBROWEN JUDGMENTS .............................................. 27
F1. Case Stated Judgment ......................................................................................... 27
F2. Dobrowen Judgment ........................................................................................... 27
G. OTHER POST-CHENG YICK CHI CASES ............................................................ 31
H. CONCLUSION.......................................................................................................... 36

45565453.7 1
A. INTRODUCTION Record

1. This appeal challenges the policy of the Building

Authority (“BA”), promulgated in October 2010, of
requiring an applicant who submits general building
plans for approval under s.14(1) of the Buildings
Ordinance (“BO”) to prove that he owns or has a realistic
prospect of controlling the site shown in those plans as a
pre-requisite for the BA‟s consideration of the plans
(“the Policy”).

2. The BA does not – indeed, it cannot – point to any

provision in the BO which requires an applicant to be the
owner or have control of the site, or submit proof of the
same. Instead, he relies on a passage from Lord Fraser‟s
speech in the Privy Council decision in Attorney-General
v Cheng Yick Chi [1983] HKC 14 to say that a “site”
shown in a set of plans submitted for approval can only
include land which the applicant owns or has a realistic
prospect of controlling. The Privy Council was not,
however, concerned with the issue of construction of the
legislative provisions relating to approval of building
plans.

3. The effect of the Policy has been to introduce a great deal

of uncertainty into development of land, a consequence
which affects both corporate developers and landowners
of individual units alike. Some of the problems to which
the Policy has given rise are set out in the Amended
Form 86 §55, Affidavit of Loong Hon-Biu §§45-48;
Affirmation of Lau Chi Keung §§18-24:

(1) The uncertainty as to what can be lawfully be built

on any particular site means that both an intending
developer and intending seller (whether of an
entire lot or an individual flat) cannot know the
development potential of the land and can only
negotiate “in the dark”.
(2) The uncertainty further affects the provision of
financing for development projects. If the
development potential of a piece of land cannot be
clearly ascertained, banks will err on the side of

45565453.7 2
 caution and are likely to undervalue the land when
lending for development finance.

(3) It will also be difficult for developers, especially

small ones, to attract joint venture partners with
whom they can pool resources to acquire
ownership of a site, when it is unknown whether a
development proposal will be approved.

(4) Even if it were possible for a developer to know

that the BA is favourably disposed to giving
approval to plans for a piece of land he intends to
buy, there is a chance that the law or the BA‟s
practice will be changed after he acquires the land
but before approval is given, which will mean that
the plans are not approved after all. For example,
there may be changes in the applicable Outline
Zoning Plan, the regulations under the BO (“the
Regulations”) or the practice notes issued under
the BO.

The practical effect is that, without an ability to

submit plans for approval prior to acquiring
ownership or control of the site, the prices an
intending developer would pay to individual flat
owners would be discounted by a „risk premium‟
reflecting possible future changes in law affecting
the site‟s redevelopment potential1.

(5) Other examples of difficulties can be envisaged.

For example, the owners of two adjacent plots of
land would not be able to ascertain whether, if they
were to combine the sites in a composite
development, that development would be
approved.

(6) In March 2011, the Pre-construction Task Force

(PCTF) noted its concern about the impact of the
Policy (see Business Facilitation Advisory
Committee Paper 2/11(2) at §10)2:

1
Affirmation of Lau Chi Keung §22.
2
Affidavit of Loong Hon-Biu §§45-48 and Exhibit LL-3.

45565453.7 3
 “The PCTF is concerned about the potential
impact of the above new measures which
may bring about uncertainties for the trades
in planning and implementing new building
projects and in turn affect the supply of
private housing.”

4. The reason why unapproved plans give rise to uncertainty

is because there are a large number of development
parameters which cannot be known until the BA gives
approval (for example, whether the site will be accepted
as a class A, B or C site, whether bonus plot ratio will be
granted, whether discretionary gross floor area will be
granted, whether modifications or exemptions from the
operation of the BO will be granted, and so on). The
uncertainty is aggravated by the inconsistency between
different officers of the Buildings Department in
handling applications, the lack of transparency of
Building Committee decisions, and the lack of general
publication of Buildings Appeal Tribunal decisions. See
Affirmation of Lau Chi Keung §§24-28.

5. The manner of implementation of the Policy has

effectively meant that building plans not accompanied by
proof of ownership / control have not been processed at
all, without proper consideration as to whether grounds
for rejection under s.16(1) BO exist. 3 Indeed it is the
BA‟s case that he need not waste resources processing
such plans.4

6. No issues of fact have arisen for determination in these

proceedings, which have been brought by the Applicant
(“REDA”) to challenge the Policy generally, rather than
having arisen out of a dispute over a particular
development. The BA does not agree that his Policy is
new, but it is a fact that since its promulgation, he has
rejected numerous sets of building plans on the grounds
that applicants do not own or have a realistic prospect of
control of the sites shown in the plans; and that pending

3
Affidavit of Loong Hon-Biu §§49, 54.
4
Affirmation of Yu Po Mei Clarice §26.

45565453.7 4
 the Court of Appeal‟s determination of a challenge to the
policy in 2013 in Lai Siu Kin Rembert v Building
Authority [2013] 4 HKLRD 74 (“Case Stated
Judgment”), 5 some 116 appeals before the Buildings
Appeal Tribunal were held in abeyance.6

7. In short, the Policy has had, and will have, a wide-

ranging impact on land and building development in
Hong Kong. REDA (an association of persons engaged in
real estate development and related businesses) therefore
brings this appeal to challenge the Policy in the broad
interests of Hong Kong as a whole and in the interest of
maintaining an efficient, fair, and sustainable regime for
development 7 . REDA is highly concerned about the
Policy‟s effects on stakeholders (including developers
and especially individual owners of flats in old and
dilapidated buildings due for redevelopment) and the
manner in which the Policy was imposed by the BA.
Significantly, the Policy undermines the urban renewal
objectives under the Land (Compulsory Sale for
Redevelopment) Ordinance (Cap. 545).

8. There is no dispute that the question arising in this case A/10/37-

(and for which leave to appeal to the Court has been 38
granted) is one of great general or public importance.
That question is as follows.

“Does the Building Authority have an unqualified

power in all cases, subject only to ordinary public
law requirements (such as fairness or rationality),
to:

(1) reject building plans submitted for approval

under s.14(1) Buildings Ordinance on the
basis that a developer does not own or have
a realistic prospect of controlling the site
shown on the plans, or

5
See section F below. “Case Stated Appeal” refers to the appeal which is the
subject of the judgment.
6
See §13 of the Case Stated Judgment.
7
Amended Form 86 §4, Affidavit of Loong Hon-Biu §§7, 46-48.

45565453.7 5
 (2) require particulars or proof of ownership or
realistic prospect of control of a site shown
on building plans as pre-requisites for his
approval of such plans under s.14(1)
Buildings Ordinance?”

9. It is submitted that both parts of the above question

should be answered in the negative.

45565453.7 6
B. PROCEDURAL BACKGROUND Record

10. On 4 November 2011, REDA commenced these judicial

review proceedings.

11. Meanwhile, Henderson Land was involved in two appeals

to the CA raising inter alia similar issues regarding the
Policy: CACV 19/2012 (“Dobrowen Appeal”) 8 and
CACV 113/2012 (the Case Stated Appeal).9

12. REDA applied to intervene in the Dobrowen and Case

Stated Appeals. However, the application was dismissed
on 15 March 2013.10

13. On 2 August 2013, the CA11 handed down judgments in

the appeals. The CA issued two separate judgments which
were intended to be read together: Building Authority v
Appeal Tribunal (Buildings) [2013] 4 HKLRD 52
(“Dobrowen Judgment”), and the Case Stated Judgment.

14. In both appeals, the CA ruled in favour of the BA. The CA

held that the BA has power to reject building plans on the
basis that the applicant does not own or have a realistic
prospect of controlling the land.

15. The unsuccessful appellants in the Dobrowen Appeal and

Case Stated Appeals declined to pursue the matter to this
Court.

16. On 1 April 2014, REDA‟s Form 86 was amended by

consent. The purpose was to confine the present
proceedings to the question of whether the Policy is ultra
vires (i.e. REDA would no longer pursue other arguments
based on legitimate expectation and failure to take account
of relevant considerations).

8
The Dobrowen Appeal was an appeal against the decision of Johnson Lam J dated
20 December 2011, unreported, HCAL 20/2011 (which in turn was a judicial review
against the decision of the Buildings Appeal Tribunal dated 6 January 2011).
9
The Case Stated Appeal was brought under the “case stated” procedure in s.53C of
the BO.
10
Building Authority v Appeal Tribunal (Buildings) [2013] 3 HKC 79.
11
Consisting of Fok JA, Cheung JA, and McWalters J.

45565453.7 7
17. In light of the Case Stated and Dobrowen Judgments,
REDA acknowledged that the Court of First Instance was
bound on the question of whether the Policy is ultra vires. A/2/5-
Consequently, on 11 June 2014, a short hearing took place 16
before Au J, who formally dismissed the judicial review.

18. REDA recognised that the CA was similarly bound, and

made clear that its intention was to ventilate the dispute in
this Court. In view of that position, the CA directed
written submissions on the substantive appeal and also on
REDA‟s application for leave to appeal to this Court.

19. After considering the submissions, on 10 September 2015, A/3/17-

the CA formally dismissed the appeal, and granted leave to 20
REDA to appeal to this Court.

45565453.7 8
C. THE POLICY

20. The Policy is set out in a letter dated 20 October 2010

(“October 2010 Letter”) sent by the BA to authorised
persons, registered structural engineers, and registered
geotechnical engineers.

21. The October 2010 Letter stated that, starting from 21 October
2010, applicants submitting general building plans (“GBP”)
for a proposed new building for the BA‟s approval pursuant
to s.14(1)(a) BO would be required to submit:

(1) particulars of ownership or realistic prospect of control

of the land forming the site; and

(2) documentary proof of such ownership or realistic

prospect of control.

(The above requirements are what is referred to herein as

“the Policy”).

22. Attached to the October 2010 Letter was a new version of

Form BA5 (the specified application form for approval of
plans of buildings works or street works). This new Form
BA5 contained spaces for the applicant to indicate what
documentary proof of ownership or control he was
submitting in support of his application. The applicant could
tick one of two boxes:

- “Copy of the relevant Land Registry Memorial and

assignment plans”; or
- “Other documentary proof of control of the land”

Cf. the previous Form BA5 (which did not ask for any
information about the owner or ownership) 12.

23. The October 2010 Letter also claimed that the BA had
always taken the stance that, for the purpose of the BO, the
“site” of a proposed building can only include land which the
applicant owns or has a realistic prospect of controlling. The
BA asserted that the introduction of the Policy was simply to

12
Affirmation of Lau Chi Keung §§11-13.

45565453.7 9
 “facilitate” his consideration of whether that ownership /
control requirement was satisfied.

24. The BA has denied that the Policy in fact marked a change
from the BA‟s previous stance. However, his own evidence
at best was that building plans had sometimes been rejected
for failure to demonstrate ownership or a realistic prospect of
control.13

25. The Policy was repeated in a letter dated 8 August 2011 from
the BA to REDA (“August 2011 Letter”). The BA set out
his stance that:

(1) the site of a proposed building for the purpose of the

BO can only include land which the applicant owns or
has a realistic prospect of controlling;

(2) the BA has power to require an applicant to provide

proof of ownership or realistic prospect of control;

(3) the BA has power to disapprove GBP under s.16(1)

BO for failure to provide such proof.

26. In the August 2011 Letter (and also in a letter to REDA dated
9 December 2010), the BA sought to justify the legality of
the Policy in the following way:

(1) In order to determine whether a proposed development

complies with the provisions of the BO, it is necessary
to ascertain the “site” of the development.

13
Whereas REDA‟s evidence was that prior to the October 2010 Letter, developers
had routinely applied for GBP approval before purchasing the land in question, and the
BA‟s consistent practice was not to require any proof of ownership / control: Chung
Affirmation §§11-17, 20-21, 23-24; Lau Affirmation §§10-17.
An instance of the BA giving GBP approval to a non-owner applicant can be
found in Fully HK Investments Ltd v Poon Vai Ching, unreported, LDCS 3000/2005, 26
February 2007 at §7; and unreported, HCMP 591/2007, 4 April 2007, §11. There, the
company which had obtained a set of approved GBP was not the same company bidding
to acquire ownership of the site (albeit the two were in the same corporate group).
Evidently, the BA gave approval to the GBP (i) knowing that the applicant was not the
company intending to acquire ownership; or (ii) not caring whether the applicant was the
company intending to acquire ownership.

45565453.7 10
 (2) There is no statutory definition of “site”. However, the
Privy Council in Cheng Yick Chi gave a certain
interpretation of “site”.

(3) Therefore, where an applicant fails to provide proof of

ownership or realistic prospect of control, it is
impossible to ascertain the “site” and hence to check
whether the proposed development complies with the
BO.

(4) Thus, where an applicant fails to provide proof of

ownership or realistic prospect of control, the BA may
refuse to give approval of the GBP pursuant to
ss.16(1)(c), (d), (i), or (j) BO.

27. Basically, the BA relies on the following passage in Lord

Fraser‟s opinion in Cheng Yick Chi (at pp.19I-20A):

“Their Lordships are of the opinion that the land

which forms a „site‟ for the purposes of the [Building
(Planning)] Regulations must be ascertained as a
question of fact in the case of each development. It
means, in addition to the land on which it is proposed
to erect buildings, any land which the developer bona
fide proposes to include in the development. It can
only include land which he owns or which he has a
realistic prospect of controlling. The additional land
must be at least sufficient to enable the proposed
building to comply with the Regulations and it must, of
course, not have been taken into account and, so to
speak, used up in enabling some other existing
building to comply with the Regulations.”

(Emphasis added.)

28. However, for reasons which follow, this passage provides no

legal basis for the Policy.

45565453.7 11
D. THE BUILDING LEGISLATION

D1. BA‟s power to reject applications for GBP approval must

derive from statute

29. If the BA has any power to reject applications on the ground

that the applicant has not proved ownership/control of the
land, such power can only derive from the building
legislation, i.e. the BO and the Regulations.

30. This is because the BA is a creature of statute. The very

position of the “Building Authority” is created by statute
(specifically, s.2(1) BO, where the BA is defined to mean the
Director of Buildings). Since the BA is a creature of statute,
all of his powers can only derive from the enabling statute,
i.e. the BO.14 That includes his power to reject applications
for GBP approval.

31. In this connection:

(1) In R v Somerset CC ex parte Fewings [1995] 1 WLR

1037, 1042G-H, Sir Thomas Bingham MR referred to
St Matthew, chapter 20, verse 15 and the question
asked by the owner of the vineyard: “Is it not lawful
for me to do what I will with mine own?”. Sir Thomas
said that the modern answer would be, “Yes, subject to
such regulatory and other constraints as the law
imposes.” But, he added, if the question were posed by
a public authority, “the answer would be different. It
would be: „No, it is not lawful for you to do anything
save what the law expressly or impliedly authorises.
You have no unfettered discretion. There are legal
limits to every power you have.‟ Sir Thomas added that
for public authorities, “any action to be taken must be
justified by positive law.”

(2) See also R v Richmond LBC ex parte Watson [2001]

QB 370, 385C per Buxton LJ: "A public body can only

14
Secretary for Justice v Commission of Inquiry Re Hong Kong Institute of
Education [2009] 4 HKLRD 11, §36; Kwong Ka Yin Phyllis v Solicitors Disciplinary
Tribunal, unreported, HCAL 93/2004, 12 July 2006, §31.

45565453.7 12
 do that which it is authorised to do by positive law."

(3) A public authority has an implied power to do that

which is incidental to, or consequential upon, the
express functions which are conferred by the
legislation. But the authorities “establish the general
proposition that when a power is claimed to be
incidental, the provisions of the statute which confer
and limit functions must be considered and
construed”: Hazell v Hammersmith LBC [1992] 2 AC
1, 31D-E. Therefore, as Lord Templeman stated, the
question is whether the impugned conduct is incidental
to the authorised statutory functions “having regard to
the provisions and limitations of the Act...regulating
that function.” Where the statute contains a detailed
statutory code, it cannot be open to the public authority
to seek to imply further substantive powers,
limitations, or conditions which are not contained in
the detailed express provisions. Even “a power
conferred in very general terms plainly cannot be
relied on to defeat the intention of clear and particular
statutory provisions”: R v Liverpool City Council ex
parte The Baby Products Association [2000] LGR 171,
178e-f (Lord Bingham LCJ). A fortiori, the BA cannot
claim an implied power to impose conditions which
seeks to add to the detailed statutory code setting out
the circumstances in which there is power to reject
applications for GBP approval.

32. Therefore, the question of whether the Policy is ultra vires is

to be determined by looking at the applicable statute – i.e. the
BO and the Regulations – and considering whether it gives
the BA the power to refuse approval of building plans for
lack of ownership/control.

D2. Provisions of the building legislation

No requirement for ownership / control

33. The starting point is that there is no requirement anywhere in
the BO or Regulations for a person submitting GBP to be the
owner of, or control, the site shown in the GBP. This has
been acknowledged by the BA himself: see Case Stated
Judgment §68.

45565453.7 13
 (1) There is no reference to ownership or control at all in
ss.14-16 BO. Section 14(1) simply states that no
“person” may commence or carry out building works
without obtaining the BA‟s approval and consent.

(2) Reg. 29(1A) of the Building (Administration)

Regulations (Cap. 123A) (“B(A)R”)) only refers to the
“applicant” paying the prescribed fee to the BA for
processing applications for plan approval. There is no
reference to ownership or control.

(3) Reg. 18A of the B(A)R imposes a requirement that

building plans submitted for approval must be
accompanied by a certificate from the authorised
person15 (who prepared the plans) confirming that (i)
the plans were indeed prepared by him16; and (ii) to the
best of his knowledge and belief, they comply with the
BO and Regulations.

By contrast, there is no requirement in the legislation

that a building plan submitted for approval must be
accompanied by proof of the applicant‟s ownership /
control.

(4) Reg. 33 of the B(A)R imposes a requirement that a

person desiring to alter or add to any building works
needs to make an application to the BA in writing,
together with plans showing the alterations or
additions. There is no reference to ownership or
control.

No power to refuse approval for want of ownership / control

34. Nor is there any provision in the BO or Regulations to refuse
approval of GBP which confers on the BA the general,
unqualified power to reject GBP on the ground that the
applicant does not have ownership or control of the site
shown in the GBP. The only grounds on which the BA may
refuse to give approval to plans for building works are set out
in s.16(1) BO.

15
Or registered structural engineer or registered geotechnical engineer.
16
Or under his supervision or direction.

45565453.7 14
35. The courts have all along proceeded on the basis that the
grounds in s.16(1) are exhaustive: Re Ho Mei Ling [2011] 6
HKC 1, §42; Filipino Club v Building Appeal Tribunal
[1995] 3 HKC 356, 358H; Rich Resources Enterprises Ltd v
Attorney-General, unreported, HCMP 3896/1991, 10 Apr
1992, pp.8-9. Notably, there are no „residual‟ grounds in
s.16(1) on which the BA may make his decision; nor are
there phrases such as “including but not limited to” before
the grounds listed in s.16(1).

36. In the Case Stated Appeal, the BA did not expressly accept
that s.16(1) is exhaustive: see Case Stated Judgment §29.
However, that does not matter for the purpose of this appeal,
because the BA‟s contention is that he is entitled to reject
plans for lack of proof of ownership/control pursuant to
ss.16(1)(c), (d), (i), or (j) – and not by virtue of some other
provision or principle: see BA‟s letter dated 9 December
2010; and Case Stated Judgment §29. But none of the four
subsections refer to ownership or control.

(1) The ground of rejection under s.16(1)(c) is that:

“[the BA] has not received application for their

approval in the specified form or any such
application does not contain the particulars
required therein.”

(2) The ground of rejection under s.16(1)(d) is that:

“the carrying out of the building works shown

thereon would contravene the provisions of this
Ordinance or of any other enactment, or would
contravene any approved or draft plan prepared
under the Town Planning Ordinance (Cap
131).”

(3) The ground of rejection under s.16(1)(i) is that:

“in [the BA‟s] opinion, it is necessary for him to

have further particulars of such plans or of the
building works shown thereon…to enable him

45565453.7 15
 fully to consider such plans.”

(4) The ground of rejection under s.16(1)(j) is that:

“any further particulars or other plans

delivered to [the BA], upon his refusal, under
paragraph (i), to give his approval to any plans,
are not to his satisfaction”.

37. Whilst the BA has power to seek particulars under s.16(1)(i)

or (j), this is confined to particulars which are reasonably
necessary to enable him to decide whether to disapprove the
plans under one or more limbs of s.16(1): Fortune Key Ltd v
Appeal Tribunal (Buildings), unreported, HCAL 82/2009, 7
May 2010, at §§24, 30-33; cf. Building Authority v Appeal
Tribunal (Buildings) (2015) 18 HKCFAR 317, at §40.

38. REDA accepts that on a proper construction of ss.16(1)(i)

and (j), where particulars are needed in order to enable the
BA to consider whether or not his power under another limb
of s.16(1) arises, the BA can ask for such particulars. The
Dobrowen Judgment illustrates one such situation.17 But that
is a wholly different proposition from construing ss.16(1)(i)
and (j) as conferring an untrammelled power on the BA to
refuse approval to GBP on the ground that a requirement not
prescribed by the BO has not been met, or that particulars
relating to such a requirement have not been provided,
because that would be tantamount to allowing the BA to
refuse approval for a reason extraneous to the statutory
scheme.

Other BO provisions indicate ownership / control irrelevant

39. Other provisions in the BO further indicate that ownership /
control is not relevant to the BA‟s power to approve plans:

(1) “Building owner” is defined in s.2(1) BO as “a person

desiring to build a new building or to alter an existing
building”.

The legislation contains no requirement for such a

person to acquire any land before he applies for GBP
17
See section F below.

45565453.7 16
 approval, nor to prove that he owns or controls any land
before he applies.

(2) Although there is a definition of the word “owner” in

s.2(1) BO (“any person holding premises direct from
the Government whether under lease, licence, or
otherwise”), that word is used in the BO to address the
obligations of owners to comply with the BA‟s
enforcement orders (see sections 19, 24, 24A, 24AA,
24C, 25, 26, 26A, 27, 27A, 27C, 28, 29A, 31, and 40);
to inspect and repair buildings (see sections 30B and
30C); and to allow the Government to number the
building for identification purposes (see section 32) The
word is not used in connection with applications for
GBP approval.

(3) The definition of “building works” in s.2(1) BO makes

no reference at all to ownership or control.

D3. Purpose of the building legislation

40. In construing ss.14 and 16 of the BO, regard must be had to

their context and purpose, taken in their widest sense.18 That
context and purpose does not suggest any justification for the
BA to require proof of ownership / control.

41. The purpose of the BO is indicated by its long title19:

“To provide for the planning, design and construction

of buildings and associated works; to make provision
for the rendering safe of dangerous buildings and land;
and to make provision for matters connected
therewith”.

42. In Gammon v A-G of Hong Kong [1985] AC 1, the Privy

Council (on appeal from Hong Kong) commented at 14E:

“[The BO‟s] overall purpose is clearly to regulate the

18
Leung Chun Ying v Ho Chun Yau Albert (2013) 16 HKCFAR 735 at §12.
19
It is trite that the Court may use the long title as an aid in identifying the purpose
of a statute: Tri-view Ltd v HKSAR (2006) 9 HKCFAR 695, §§11-13.

45565453.7 17
 planning, design and construction of the building works
to which it relates in the interests of safety.”

43. In Mariner International Hotels v Atlas Ltd (2007) 10

HKCFAR 1, Bokhary PJ similarly commented at §51 that:

“A purpose, if not the purpose, of the approval scheme

of our building legislation is to protect the public by
subjecting the matter of structural acceptability to the
scrutiny of the Building Authority.”

44. The history of the building legislation is recounted in

Butterworths Hong Kong Building Law Handbook, 3rd edn.
(2011) at pp.1-5. This indicates that the principal concerns
behind the enactment of the current BO and its antecedent
statutes were firstly, building safety; and secondly, sanitation
and public health.

45. One should also take note of s.41(3) BO, which exempts
non-structural building works from the requirement that BA
approval and consent first be obtained. The fact that only
structural works require BA approval and consent further
demonstrates that building safety is the principal concern of
the BO.

46. In the light of the above, it is evident that the purposes of the
BO and the Regulations are to:

(1) regulate the planning, design, and construction of

building works;

(2) ensure the safety of buildings; and

(3) (particularly in previous incarnations of the statute)

promote sanitation and public health.

47. It is highly difficult to see how a requirement to prove

ownership / control relates to any of these purposes. Whether
or not a building will be safe or sanitary cannot depend on
the identity of the person owning or controlling the land.
There is therefore no general need for the BA to require
information as to ownership or control of the land. The BA

45565453.7 18
 does not need to know anything about ownership in order to
ascertain (for example) whether a proposed building will be
subject to an excessive load. Indeed, neither the Building
(Planning) Regulations (Cap. 123F) (“B(P)R”) nor the
Building (Construction) Regulations (Cap. 123B) – which
are the main Regulations that control building planning and
safety – contain any requirement to prove ownership /
control.

D4. No nexus between “site” and Government lease

48. Moreover, it is important that, under the building legislation,

there is no nexus between a “site” and a Government lease.

49. In other words, the legislative scheme de-links the concept of

“site” from the concept of ownership.

(1) The BO and the Regulations do not define “sites” with

reference to plots of land leased out by the Government.
Indeed, in Cheng Yick Chi, Lord Fraser (at 19F-G)
explained that a “site” is not necessarily co-extensive
with a “lot” held on lease from the Government
“because the word site must be flexible enough to
apply to a case in which the person holding several
adjacent lots under Crown leases proposes to develop
them together as a single site.” (See also: at 20B-C.)

(2) The legislation imposes no obligation for a GBP

approval application to identify the location of a site by
reference to land held under a Government lease.

(3) Section 14(2)(a) BO expressly provides that the BA‟s

approval of building plans and his consent to the
commencement of building works do not confer any
title to land. In other words, if a person does not have
the proprietary right to carry out building works on the
land concerned, the BA‟s approval of building plans
would not confer such right on him: Re Ho Mei Ling,
§41.

(4) Consistently with the above, the Lands Department and

the Buildings Department operate under separate,
parallel regimes. The Buildings Department administers

45565453.7 19
 the BO, whereas the Lands Department deals on behalf
of the Government with land matters such as
administration of leases.

D5. No need for proof of ownership or control

50. In construing ss.14 and 16 BO, it should be borne in mind

that there is no need, whether in theory or in practice, for an
applicant to own or control the site shown on his plans.

51. The BA insists 20 that a site cannot be identified – and

therefore, parameters such as permissible plot ratio and site
coverage cannot be calculated – without the applicant
proving ownership or control. This cannot be right.

(1) “Site” is not defined in the BO or the Regulations. In

the absence of such definition, the starting point is to
take the ordinary English meaning of the term, viz. “a
piece of land”. This is simply a question of physical
area. It does not involve the concept of legal
ownership.

(2) When a developer submits GBP for the BA‟s approval,

the area of the proposed site will be drawn on and
identified in the plans. Thus, there would be no
difficulty in identifying the site. Indeed, if the
developer fails to identify the relevant site, the BA
would, of course, be entitled to refuse to give approval.
But the question of identification of the site is distinct
from the question of ownership / control of the site.

52. Nor is a requirement of ownership / control necessary or

sufficient to avoid a “floodgates” problem, with numerous
hypothetical plans being submitted for approval.

(1) The statute imposes substantial processing fees for

applications: see Item 7A of reg. 42 of the B(A)R.
Indeed, under s.38(3A) BO, the Chief Executive is
entitled to fix the fees for making applications for
building plan approval “at levels which provide for the
recovery of expenditure incurred or likely to be

20
See his letter to REDA dated 9 December 2010.

45565453.7 20
 incurred generally by the Government in relation to
such application or approval and need not be limited
by reference to the administrative or other costs
incurred or likely to be incurred in the processing of
any individual submission of plans”. Hence, the fees
would be sufficient to both: (i) deter persons without a
genuine intention to develop the site from submitting
an application; and (ii) compensate the BA for the time
and resources expended in processing the application.

(2) Conversely, even if an applicant owns a particular site,

this would not stop him from putting in hypothetical
plans in relation to that site.

(3) In any event, it is impermissible to read words into a

statute merely in order to bring about a result thought
to be desirable. The question of construction must be
answered by reference to the statutory language as
construed in light of its context and purpose (and not
by invoking extraneous policy reasons): HKSAR v Lam
Kwong Wai (2006) 9 HKCFAR 574, §63; China Field
Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12
HKCFAR 342, §36.

See Case Stated Judgment at §§55-56, 65-67 per Fok

JA.

D6. Summary on building legislation

53. In light of the above, it is clear (subject to the effect of Cheng

Yick Chi) that the legislative scheme does not give the BA a
general, unqualified power to refuse approval of GBP on the
ground that the applicant has failed to prove ownership /
control.

54. To be clear, REDA fully accepts that the BA has power to

seek information relating to ownership or control of a site
(and to reject GBP for failure to provide such information)
where such information is necessary in order to determine
whether a specific, identified provision of the building
legislation has been or will be complied with. The Dobrowen
Appeal (discussed at §§73-79 below) is a prime illustration
of this qualification. However, what the BA does not have is

45565453.7 21
 a general, „free-standing‟ power to reject GBP for lack of
ownership / control or proof thereof (i.e. a power which can
be exercised even where there is no other ground for
disapproval in issue).

45565453.7 22
E. CHENG YICK CHI

55. The BA‟s justification for the Policy relies on a single

sentence in Cheng Yick Chi (namely, the underlined sentence
at §27 above).

56. To determine what Cheng Yick Chi decided, it is necessary to

examine what was in issue. Briefly:

(1) The respondents were developers who owned several

houses and a piece of unbuilt on land in front of the
houses. The developers intended to demolish the
houses and erect a single new building in their place,
while leaving the unbuilt on land (which had been
dedicated as a public right of way in the past) as it was.

(2) The building plans submitted by the developers to the

BA treated both (i) the land on which the houses stood
and (ii) the unbuilt on land as part of the “site” for the
purposes of the BO and B(P)R.

(3) Two main issues had to be determined by the Privy

Council (p.16C-E). The more important one for
present purposes is whether the “site” included the
unbuilt on land. The developers argued that it did,
whilst the Crown contended that it comprised only the
land on which the houses stood. If the developers were
right, the site would be a “Class A site” within the
meaning of r.2 of the B(P)R (p.19B-C); that in turn
would affect the permissible gross floor area (p.16D)
and the building height allowed under r.16 of the
B(P)R (pp.20F-21A).

57. In addressing that issue, Lord Fraser started by observing

uncontroversially that the statute does not contain a
definition of “site” (p.19C) and that a “site” is not necessarily
limited to the ground on which buildings actually stand
(p.19D).

58. Next, Lord Fraser (at pp.19I-20A) made the statement quoted
at §27 above.

59. Lastly, at p.20D-E, Lord Fraser ruled in favour of the Crown,

45565453.7 23
 holding that the unbuilt on land did not form part of the site.
This was because, although it was owned by the developers,
it had previously been dedicated to the public for purposes of
passage and was therefore not available for inclusion as part
of the site for the intended development.

60. Against that background, it is clear that Cheng Yick Chi –

and in particular the lone sentence relied on by the BA – does
not provide any legal basis for the Policy.

61. First, in Cheng Yick Chi, the Privy Council was not faced
with the question of the proper interpretation of s.14(1) or
s.16 BO, or whether an applicant submitting GBP for
approval must be the owner of, or have control over, the site
shown in the plans. Indeed, the Privy Council was not even
facing a question which necessitated a general analysis of the
concept of “site”.

62. Instead, the Privy Council was called upon to decide a

narrow question: whether a piece of vacant land, directly
adjacent to the land on which the developer proposed to erect
a new building, could form part of the site for the specific
purpose of site classification under the B(P)R
notwithstanding that such land had previously been dedicated
to the public.

63. It is trite that a judgment must be treated as applicable to the

particular facts proved (or assumed to be proved) because
general expressions of principle are not to be taken as
expositions of the whole law, but are instead governed and
qualified by the particular facts of the case.21 It is erroneous
to take passages from judgments and apply them as if they
were words of a statute. A decision is binding as legal
precedent only in relation to those legal reasons or principles
which were accepted by the Court and were necessary for the
decision of the questions before it.22

64. Cheng Yick Chi is therefore not authority for a general

21
Quinn v Leathem [1901] AC 495, 506; Ogden Industries v Lucas [1970] AC 113,
127; Wong Kai Fou v The Medical Council of Hong Kong [1967] HKLR 620, 636.
22
Cross and Harris, Precedent in English Law (4th edn), pp.40-41; Halsbury’s
Laws of England, (5th ed) Vol. 11, §91; Solicitor (24/07) v Law Society of Hong Kong
(2008) 11 HKCFAR 117, §25 and fn. 11

45565453.7 24
 requirement on applicants under s.14(1) to prove ownership
or control. Lord Fraser was simply deciding that on the facts
of that case, an area that was “used up”, having been
previously dedicated to the public, could not be double-
counted for inclusion in the site for the purpose of certain
provisions in the B(P)R. This was hardly a surprising
outcome on the facts.

65. Second, and even if Lord Fraser‟s sentence had been directed
to the question of the proper interpretation of ss.14 and 16
BO, his remarks cannot override the express statutory
language and confer a power on the BA where the statute
simply does not grant it. Whilst a statute has to be interpreted
in the light of its context and purpose, this does not permit
the Court to attribute to a statutory provision a meaning
which the language cannot bear. The Court is an interpreter,
not a legislator. See T v Commissioner of Police (2014) 17
HKCFAR 593 at §§195, 222, 278. Both the express wording
of the BO and the context of the legislation militate against
an interpretation which confers a power on the BA to reject
GBP simply because an applicant is not the owner of, and
does not control, the site shown in the plans.

66. Third, the clearest indication that Lord Fraser's sentence

should not be read like a statute comes from Cheng Yick Chi
itself. The developer did own the unbuilt-on area. Lord
Fraser was not addressing a case where a developer was
seeking permission in relation to land which he did not own
or control. Had Lord Fraser been considering such a case,
and had he been addressing whether such an applicant could
seek approval of GBP, Lord Fraser would have analysed the
relevant statutory provisions in detail.

67. Fourth, the sentence of Lord Fraser now relied on by the BA

was not necessary to the determination of the appeal in
Cheng Yick Chi. In concluding that the vacant land was not
part of the site, Lord Fraser relied on the fact that it had
previously been dedicated to the public for purposes of
passage (see p.20D) – and not that it was outside the
ownership of the developer (since the unbuilt on land was not
outside the ownership of the developer). In other words, Lord
Fraser‟s remarks about ownership were in any event obiter

45565453.7 25
 and not part of the ratio decidendi. 23

68. It is notable that Lord Fraser did not give any reasons for his
statement that a site could only include land which the
developer owns or controls. Lord Fraser also did not explain
how that statement, if interpreted in the way that the BA
seeks to do, is reconcilable with a legislative scheme which
provides no indication that ownership / control is relevant in
any way to the submission of building plans for approval and
contains a number of clear indications that ownership /
control is not of itself relevant in this context. This is all the
more reason to reconsider the question of construction from
first principles.

69. In summary, the BA is wrong to interpret Lord Fraser‟s

comment in Cheng Yick Chi as laying down a general
principle that the BA has an unqualified power to reject GBP
where an applicant does not own or control the land which is
the subject of the plans. On proper analysis, Lord Fraser was
simply deciding the case on its facts. Alternatively, if the
Court takes the view that the BA‟s interpretation of the
meaning of Lord Fraser's comment is correct, it is
respectfully submitted that Cheng Yick Chi was wrongly
decided, given that this would be inconsistent with the
express provisions of the BO, and be contrary to the overall
purpose of the building control legislation. Cheng Yick Chi is
not binding on this Court: Solicitor (24/07) v Law Society of
Hong Kong (2008) 11 HKCFAR 117, §18.

23
See the explanation of ratio decidendi in Solicitor (24/07) v Law Society of Hong
Kong (2008) 11 HKCFAR 117, at §25 and fn. 11. See also Halsbury’s Laws of England
(5th ed), Vol. 11, §92.

45565453.7 26
F. CASE STATED AND DOBROWEN JUDGMENTS

70. The question of whether the BA has a blanket power to

refuse approval of GBP where an applicant does not have, or
fails to prove, ownership or control, arose in the Case Stated
and Dobrowen Appeals. See Case Stated Judgment §19 and
Dobrowen Judgment §§40-43.

71. The Case Stated and Dobrowen Judgments are not binding
on this Court. In any event, they do not provide any
independent support for the blanket power contended for by
the BA:

(1) In the Case Stated Judgment, the CA basically decided

that it was bound by Cheng Yick Chi and hence
followed it; the CA did not undertake any substantive
analysis of the relevant statutory provisions.

(2) As for the Dobrowen Judgment, that was decided on

its own particular facts and does not provide any
support for the legality of the Policy.

F1. Case Stated Judgment

72. In the Case Stated Judgment, Fok JA24 held that the BA did
have a blanket power to require applicants to demonstrate
ownership or realistic prospect of control of land which they
proposed to develop, but made it clear that he came to this
conclusion only because Cheng Yick Chi was binding on
him. See §§69 and 94 of the Case Stated Judgment.

F2. Dobrowen Judgment

73. The facts were as follows:

(1) The case concerned Nos. 7-9 and Nos. 10-12 of Ying
Wa Terrace. Running along the front of both Nos. 7-9
and Nos.10-12 was a lane.

(2) The developer constructed a building called Ying Wa

24
Who gave the only substantive judgment in both the Case Stated and Dobrowen
Appeals.

45565453.7 27
 Court at Nos.10-12, which was completed in 1999.
The developer sold off the individual units in Ying Wa
Court but reserved exclusive possession of an open
area in front of it.

(3) Under the Government lease, the owners of Nos. 10-12

had a right of way over the lane running along the
front of Nos. 7-9.

(4) In 2009-2010, the developer submitted building plans

for the development of Nos. 7-9.

(5) In April 2010, the BA disapproved those building

plans on the basis that the developer had not
demonstrated “control of the land at No. 10-12 Ying
Wa Terrace for its inclusion into the site area”.

74. The key question was whether, in considering the

developer‟s building plans for Nos. 7-9, the BA was entitled
to require proof that the developer owned, or had a realistic
prospect of control over, Nos. 10-12.

75. Fok JA answered this question in the affirmative. On Fok

JA‟s analysis, there were two ways to reach this conclusion.

76. The first line of reasoning was as follows25:

(1) Reg. 23(2)(a) of the B(P)R provides that:

“In determining for the purposes of regulation

20, 21 or 22 the area of the site on which a
building is erected, no account shall be taken of
any part of any street or service lane.”

(2) Although there is no express definition of “street” in

reg. 23, it clearly bears the same meaning as “specified
street” in r.18A(3)(a).

(3) Under r.18A(3)(a), the definition of a “specified street”

includes (inter alia) a street “on land over which the
owner of the site is expressly granted, by or by virtue
25
§§32-39, 44 of Dobrowen Judgment.

45565453.7 28
 of an instrument, a right of way exercisable at all
times.”

(4) Therefore, where a street is on land over which the

owner of the site is granted a right of way, that street
cannot be included in the area of a “site” (by virtue of
regs. 18A(3)(a) and 23(2)(a) read together).

(5) In the premises, it was necessary for the BA to ask

whether the intended developer of Nos. 7-9 owned or
controlled Nos. 10-12. If Nos.7-9 and Nos.10-12 were
all owned by the developer, then the right of way
running along the front of Nos.7-9 would be
extinguished 26 and could be included as part of the
development site of Nos.7-9. If, on the other hand,
Nos.7-9 and Nos.10-12 were not in common
ownership, then the right of way would remain in
existence and (by virtue of r.23(2)(a)) could not be
included as part of the development site of Nos.7-9. In
short, the BA was entitled to seek information from the
developer regarding ownership and control of Nos.10-
12 for the purpose of determining whether or not the
right of way should be excluded from the calculation
of site area and plot ratio for Nos. 7-9.

(6) Further, it was undisputed that Cheng Yick Chi was

binding at least to the extent of entitling the BA to
request particulars of ownership or control where the
land sought to be included in the site had previously
been dedicated to the public for the purposes of
passage, or there existed a right of way over such land.

77. The second line of reasoning (see §43 of Fok JA‟s judgment)
was more direct. It simply relied upon the conclusion in the
Case Stated Judgment that Lord Fraser‟s statement was
binding on the CA. In the premises, the BA was entitled to
ask for particulars of the developers‟ ownership or control
over Nos.10-12.

26
It is trite that a right of way is automatically extinguished if the dominant and
servient lands come into the ownership and possession of the same person: see Goo &
Lee, Land Law in Hong Kong, 4th edn. (2015), pp.779-780.

45565453.7 29
78. Thus, the Dobrowen Judgment provides no independent
support for the Policy:

(1) On the first line of reasoning, the Dobrowen Judgment

simply decided that in a specific factual situation
(namely, where it was unclear whether a right of way
had been extinguished by the dominant and servient
land coming into common ownership) the BA was
entitled to seek proof of ownership / control.27 This is
uncontroversial: as mentioned in §54 above, REDA
accepts that in certain factual circumstances,
particulars of ownership / control will be relevant in
determining whether specific provisions of the BO and
the Regulations have been complied with. The issue in
the present case, however, is whether the BA has a
general, unqualified entitlement to require ownership /
control as a precondition of processing GBP. The two
issues are very different, as Fok JA recognised: see
Case Stated Judgment §68 and footnote 10.

(2) On the second line of reasoning, the Dobrowen

Judgment adds nothing to the Case Stated Judgment.

79. Furthermore, on the facts, the Dobrowen Judgment was not

even a true illustration of exercise of the power contended for
by the BA since the BA was asking the developer of Nos.7-9
for proof of ownership / control of Nos.10-12, not part of the
site which was the subject of the building plan submission.

27
In relation to a neighbouring site.

45565453.7 30
G. OTHER POST-CHENG YICK CHI CASES

80. There are a number of cases which have apparently applied,

or referred to, Cheng Yick Chi. However, the issue of
whether ownership / control of land is a pre-requisite to the
approval of GBP did not arise in those cases and they
therefore do not provide any legal support for the Policy.

81. Chronologically, the first case is the Privy Council‟s decision

in Hinge Well Co Ltd v Attorney-General [1988] 1 HKLR 32.

82. In Hinge Well, the question was whether two adjoining plots
of land, owned by the same developer but in between which
there used to be a scavenging lane, could be treated as one
site in a building plan submitted to the BA.

83. As part of its argument, the Government cited (see p.39A-C)

Lord Fraser‟s dictum in Cheng Yick Chi. However, the Privy
Council in brief terms rejected this part of the Government‟s
argument (see p.39F-I). The Privy Council did not analyse,
and indeed there was apparently no argument about, the
correctness or meaning of Lord Fraser‟s dictum. In any
event, the Privy Council correctly considered that the
decision in Cheng Yick Chi turned on the fact of the
dedication of the unbuilt-on land to public passage, not its
ownership (see 39E).

84. Further, the Privy Council‟s actual decision was based on a

quite different point concerning B(P)R r.23 (see pp.40G-
44B).28 In other words, the ground of decision had little to do
with the requirement of ownership / control mentioned in
Cheng Yick Chi.

85. Therefore, Hinge Well adds nothing of significance to the

debate, and cannot be said to have endorsed or approved
Lord Fraser‟s dictum in Cheng Yick Chi.

86. The next case is Wharf Properties v Eric Cumine Associates

28
The actual ground relied upon by Lord Oliver (to hold that the two plots of land
had to be treated as two separate sites) was that a private right of way still existed over the
scavenging lane, so the scavenging lane could not be built upon, and therefore the
scavenging lane was a “street” within the meaning of r.23(3)(a) of the B(P)R.

45565453.7 31
 [1991] 2 HKLR 6, which involved a negligence claim against
a firm of architects. In the course of making preliminary
remarks, the Privy Council (at p.12I-J) mentioned Cheng
Yick Chi in passing. Given the very different factual
circumstances, and the lack of analysis of Lord Fraser‟s
dictum, Wharf Properties sheds no light on the question at
hand.

87. Next, the Cheng Yick Chi passage was mentioned by the
Privy Council in Cinat v Attorney-General [1995] 1 HKLR
128.

88. In Cinat, a company called Mai Lee had owned a plot of

land, which included a triangular portion. Mai Lee reached
an agreement with the BA that the triangular portion would
be gratuitously surrendered to the Government, on condition
that the area of the triangular portion would be counted as
part of the site for calculating the plot ratio and site coverage
of a building to be constructed on the rest of Mai Lee‟s land.

89. Pursuant to this agreement, a building called Carson Mansion

was built on the rest of Mai Lee‟s land, which building “used
up” almost the whole of development potential of the
triangular portion in calculating its plot ratio and site
coverage. The triangular portion was later purchased by the
appellant company (Cinat). Eventually, the Government
decided not to acquire the triangular portion. Cinat then
applied to the BA for permission to construct a building on
the triangular portion, but this was refused by the BA on the
ground that the triangular portion‟s development potential
had already been “used up” for Carson Mansion.

90. One of Cinat‟s arguments was that, as a matter of law, a

“site” could only include the proposed building and its
curtilage (gardens, courtyards, fountains, etc.) and that
therefore the triangular portion could not have been lawfully
included in the Carson Mansion site, which in turn meant that
the development potential of the triangular portion was still
available.

91. It was in the context of rejecting this argument that the Privy
Council cited Lord Fraser‟s dictum in Cheng Yick Chi and
then commented (at p.130 line 25):

45565453.7 32
 “It was thus recognised that a development site might
include some particular area of land owned or
controlled by the developer which was not intended to
be built on but which was necessary to enable the
proposed to comply with the regulations.”

92. It can thus be seen that the Privy Council in Cinat was citing
Lord Fraser‟s dictum only for the purpose of saying that a
site could include land other than the land on which the
building was to be erected. The Privy Council mentioned the
words “…owned or controlled by the developer” because
that was the way in which Lord Fraser‟s dictum was framed,
but the ownership / control requirement was not relevant to
the decision in Cinat. The Privy Council in Cinat was not
suggesting that a site for the purposes of the BO was limited
to land owned / controlled by the developer. Further, the
Privy Council was not dealing with s.14(1) BO at all.

93. Thus Cinat did not endorse Cheng Yick Chi as having laid
down a general requirement of ownership / control as a pre-
requisite for obtaining GBP approval.

94. More recently, Lord Fraser‟s dictum was mentioned in a first

instance decision by Reyes J, Ashley 121 Ltd v Appeal
Tribunal (Buildings) [2011] 2 HKLRD 728.

95. Ashley was in fact a sequel to the Cinat case. After the Privy
Council‟s decision in Cinat, the triangular portion was
acquired by a company called Ashley. Ashley took the view
that, due to a previously unnoticed miscalculation during the
construction of Carson Mansion, there was still some
development potential remaining in the triangular portion.
Ashley therefore submitted plans to the BA to construct a
building on the triangular portion. Such plans called for a
building to be constructed on the triangular portion by way of
alterations and additions works to Carson Mansion. The BA
rejected the plans, calling on Ashley to demonstrate that it
owned or had a realistic prospect of controlling Carson
Mansion.

96. Reyes J held at §§81-83 that the BA was entitled to reject the

45565453.7 33
 plans on this basis. However, this was simply because Reyes
J considered himself bound by Lord Fraser‟s “dictum”. He
did not analyse the question of construction himself.

97. Reyes J further suggested a “compelling” rationale for the

requirement of ownership / control as a pre-requisite for
obtaining GBP approval (at §83): without it, the BA “may be
vexed by a flood of hypothetical proposals for the
development of land which would-be developers have no
realistic prospect of achieving.” There is in fact no factual
basis for the supposed rationale, and even if there were, such
a rationale could not justify reading words into the BO which
do not accord with the legislative intention:

(1) as set out at §52 above, the BO already contains

measures to safeguard against any possible flood of
hypothetical proposals; and more importantly, it is
impermissible to read a power into the statute which is
not supported by the language used simply because of
an apprehended outcome, real or imaginary;

(2) there was in any event no hint in Cheng Yick Chi that
this was a rationale that Lord Fraser had in mind;

(3) there was no indication, whether in Cheng Yick Chi or

in Ashley 121, of there being any empirical evidence
showing a risk of the BA being inundated with
hypothetical proposals absent a requirement of proving
ownership / control as a pre-condition for
consideration of the proposals;

(4) if the Government were to take the view that there are
good policy reasons to introduce a requirement of
ownership / control it may consult and invite the
legislature to amend the legislation. It is not for the
courts to create powers not contained in the statutory
scheme because of a perceived risk of adverse
consequences.

98. For the sake of completeness, it should be pointed out that

Cheng Yick Chi has been referred to in a number of other
first instance decisions:

45565453.7 34
 ▪ R v Buildings Ordinance Appeal Tribunal, ex parte
Widearn Investments Ltd, unreported, HCMP
600/1994, 20 September 1994, p. 7

▪ Building Authority v Appeal Tribunal (Buildings),

unreported, HCAL 147/2002, 25 July 2003, §§25-29

▪ International Trader Ltd v Appeal Tribunal

(Buildings) [2006] 3 HKC 501, §§51-52.

However, such references were made either in passing or on

a different point and therefore are of no relevance.

45565453.7 35
H. CONCLUSION

99. For the reasons set out above, REDA respectfully invites the
Court to grant the relief sought in Amended Form 86 §§1-2,
namely:

(1) Order of certiorari to bring up and quash the Policy;

and

(2) Declaration that the BA is not entitled, when

considering applications submitted to him under
s.14(1)(a) BO, to:

(a) require particulars or proof of ownership or of

realistic prospect of control of a site as pre-
requisites for his approval of GBP relating
thereto (unless, for reasons other than ownership
or control per se, such particulars and proof are
reasonably necessary to enable the BA to decide
whether to disapprove the GBP under one or
more of the grounds under s.16(1) BO); or

(b) refuse to give approval of GBP on the ground

that the applicant has failed to provide
particulars or proof that he is the owner of the
site or has a realistic prospect of controlling the
site, or that the applicant is not the owner of the
site or does not have a realistic prospect of
controlling the site (unless such failure or status
establishes a further and separate ground upon
which the BA is entitled under s.16(1) BO to
disapprove the GBP).

Dated this 28th day of December 2015.

LORD PANNICK QC
YVONNE CHENG SC
WILSON LEUNG

Counsel for the Appellants

45565453.7 36