CSE566

Topic 2 - Cases
 Land holding
Basic Law, Article 7: HKSAR Government is responsible for
the management, use and development of the land and for its
leasing to individuals.
Government lease is issued by the Conditions of Sale (since the 60s).
In the old days, it should be the Crown lease.
Common law definition of land: owner of land owns both the
airspace and all the land below the surface.
Construction work may not be carried out outside the site boundary.
Exception:
Owner does not own the minerals, s3 Mining Ordinance, and
Relic, s2 and s10 Antiquities and Monuments Ordinance, (古代遺物)
means- (a) before ... 1800 and (b) fossil remains or impressions
 Lease
Razor 12
The lease contains, inter alia, a restrictive covenant requiring
the owner as to the type of building, a restriction to residential
or agricultural use, to build the same within a period of time,
etc.
WONG BEI NEI KATE
The plaintiffs are the successors in title to the purchasers of the parcel
of land the subject of the Conditions and Special Conditions of Sale ...
These conditions some of which were to be incorporated as
covenants in the Crown Lease or Leases to be executed as and when
required... the restrictions on how the land is to be developed and how
it is to be used run with the land and are binding on the plaintiffs.
They include the restriction of the use of any premises built to that of a
private dwelling house. (Page 10)
 Illegal structures (an old term)
cows2 Quon ez sanest 7
Illegal structure if its in breach of the covenant of the lease.
Wong Bei-nei v AG [1973] HKLR 582
restrict to erect detached or semi-detached residential premise of a
E ropean pe prohibited the erection of a block of flats
TS Cheng v AG [1986] HKC 607
permitted to erect villa erected blocks of flat not permitted
AG v Lo Hoi-ming [1965] HKLR 1152
premise restricted to private residential purpose use of basement as
commercial car park breached the covenant
Cavendish Property Development Ltd v AG (1988)
permitted for industrial purpose use of premises by bank for data
processing breached covenant.
 Consequence of IS v. UBW 1
Secan Limited v AG [1995] 2 HKLR 523 CA
In 1988, the plaintiff, a developer, entered into an agreement with
Government to develop inter alia "South Horizons".
The parties agreed certain Special Conditions including Clause 12(a)
which provided that the developer "... Shall implement such
ameliorative measures as deemed necessary by the Director of
Environmental Protection".
The plaintiff submitted an "environmental issues report" and
proposed weather-stripping the windows and double-glazing.
These were not acceptable to EPD. After various meetings,
the plaintiff was told to build a large noise barrier.
 Consequence of IS v. UBW 2
The Government insisted the plaintiff to build a noise barrier
or otherwise permission to assign the flats would be refused.
The plaintiff sought a declaration that it was not bound to
construct the barrier and it was granted by the court. The
defendant appealed.
The agreement was a commercial agreement which intended to give
the Government a very large measure of control over the
development proposal.
The respondent was bound to implement such ameliorative measures
as were deemed necessary by the Director of EPD.
Clause 12(a) empowered the Director of EPD to require ameliorative
measures to be implemented but he was bound to act in good faith,
exercise judgment and not act capriciously.
 Town Planning Board 1
Town Planning Ordinance s3 empowers the Town Planning
Board to prepare, inter alia, zones or district set apart for
residential, commercial, industrial and other specified uses.
Approved or Drafted Outline Zoning Plans (OZP) in BO s16(1)(d)

residential,
commercial ( C ),
industrial and
other specified ses ( OU ).

No AMMENDMENT Allow
AFTER DRAFTED
 Town Planning Board 2
BO s16(1)(d): The BA may refuse to give his approval of
any plans of building works here (d) the carrying out of
the building works shown thereon would contravene any
approved or draft plan prepared under the Town Planning
Ordinance (Cap 131)
The B ilding A hori ma refuse which is a discretion.
Application of planning permission if the notes
accompanying the Zoning Plan do not permit particular use,
the developer may apply for permission from the Town
Planning Board.
 Quebostock Limited
Pursuant to s24(1) of the BO, the BA ordered the demolition
of certain shops erected by the appellant.
The appellant appealed to the Appeal Tribunal (Building)
and the ATB held that it had no jurisdiction.
The appellant then applied to the High Court for judicial
review but was refused on the ground that s24(1) vested the
BA not with a discretion, but with a duty.
The appellant appealed to the Court of Appeal.
Held: The word ma in s24(1) denotes a discretion. The
ATB has jurisdiction to entertain appeals from decisions
made by the BA under s24(1). Appeal allowed.
 Ho King Kwan 1
In 1978, the BA issued a notice requiring the applicant to
dismantle a rooftop structure on the ground that it
contravened regulations made under the BO.
Following negotiations, the applicant modified the structure.
In 1979, the BA in writing expressing satisfaction with the
work and confirming that the notice had been complied with.
In 1984, the BA served another demolition notice on the
applicant in respect of the same rooftop structure.
An application for judicial review of that notice was
dismissed and the applicant appealed against that decision.
 Ho King Kwan 2
The structure remained as it was when certified compliance.
The applicant contended that the letter confirming
compliance gave rise to a legitimate expectation that it
would be allowed to remain indefinitely.
The BA asserted that the structure was a fire-hazard. Due to
shortage of manpower, partial compliance was tolerated in
1978. With enough manpower, full compliance was sought.
Held: The 1979 letter only stated no further action would be
taken. The applicant did not have a legitimate expectation
that no further enforcement action would ever be taken in
respect of the structure.
 KOY Investments Co Ltd 1
The applicants were the Crown lessees of certain lands in
Causeway Bay. The Governor ordered the resumption of the
lands pursuant to s3 of the Crown Lands Resumption
Ordinance.
The applicant complained that the resumption order was
made without prior notice = contrary to the rules of natural
justice and sought certiorari to quash the resumption order,
mandamus with an opportunity to make representations and
a declaration that the resumption order was null and void.
The Cro n opposed: he Go ernor s power to order
resumption was not subject to the rules of natural justice.
 HELD
(Per Mayo J.) s9 provides no action for loss suffered as a
result of the resumption of land and bars a the claim.
(Per Mayo J.) The correct approach was first to inquire
nature of the discretion = it was purely administrative. The
Governor, under s3, was not subject to the rules of natural
justice, but merely a duty to act fairly.
The correct approach was to consider the true construction
of the ordinance as a whole.
Applications dismissed.
 Sun Honest 1
Before the Appeal Tribunal (Building) was an appeal from
he BA s ref sal o appro e he applican s b ilding plans.
4 members of the ATB were selected from a panel.
On 11/01/02, the BA submitted an application in relation to
the appeal. The papers were sent to a barrister qualified to
act as chairman of the ATB.
Although the barrister was formally appointed Chairman of
the ATB on 10/05/02, he gave detailed directions in respect
of the conduct of the appeal by letter dated 2/02/02.
On 14/06/03, the applicant became aware that the barrister
had been acting on behalf of the BA in another case.
 Sun Honest 2
Porter v Magill: The question is whether the fair-minded
and informed observer, having considered the facts, would
conclude that there was a real possibility that the tribunal
was biased.
The letter of 14/01/02 show that an indulgence had been
given to the BA for whom the barrister was working as a
barrister at the time in an important case.
A reasonable observer would come to the conclusion that
there was a possibility of (apparent) bias.
The matter is one of perception by an independent and well-
informed observer.
THE END