2 March, 2016
In the recent decision of Building Authority & Anor v Chao Wei Ting Ronna, HCAL 183/2015, 3 February 2016, the question before Hong Kong’s Court of First Instance was whether in proceedings before the Appeals Tribunal (Buildings) (“the Tribunal”), an order for inspection of documents can be made by the Chairman of the Tribunal alone or can only be made by the Chairman and members of the Tribunal. The Court held that it could only be made by the Chairman and members, and so the Chairman’s decision ordering inspection of documents in this case, should be quashed and made afresh by another Chairman and members.
The Tribunal consists of a Chairman and not less than two members. Some of the Tribunal’s decisions can be made by the Chairman alone and others have to be made by the Chairman and the members. The question which this application for judicial review raised was whether an order for the inspection of documents can be made by the Chairman alone, or whether it can only be made by the Chairman together with the members.
The Building Authority had declined Chao’s application for approval of building works and she appealed that decision to the Tribunal. In the course of that appeal, Chao’s solicitors requested the Building Authority to make certain documents available to them for inspection. As the Building Authority refused to produce some of the documents, Chao applied, through her solicitors, to the Tribunal for an order directing the Building Authority to make the documents available for inspection.
The Chairman of the Tribunal alone made the decision that the Building Authority should produce some of the documents for inspection. The Building Authority applied for judicial review of that decision, arguing that the Chairman had no power to make the decision for production of documents alone and that such decision could only have been made by the Chairman and the members.
The Court held as follows:-
Applications for inspection of documents for the purposes of an appeal of Building Authority decisions are provided for in section 6(1)(b) of the Building (Appeal) Regulation (Regulation).
The Tribunal has power to order production of documents by virtue of Section 6(3) of the Regulation and “the Tribunal” is defined in section 2 of the Regulation as “…the tribunal appointed under section 48(1) of the Buildings Ordinance.”
Since the tribunal appointed under section 48(1) of the Ordinance to hear and determine an appeal consists of the Chairman and the members, it followed that “the Tribunal” in section 6(3) of the Regulation was a reference to the Chairman and the members, unless the context required a different view to be taken, which was not the case here.
The Court said that applications for an order for the inspection of documents will usually be contentious because the Tribunal only gets involved when the initial request for inspection has not been complied with. Moreover, they will inevitably require the Tribunal to get into the detail of the appeal because in order to decide whether inspection is appropriate, the Tribunal will have to determine the extent to which the documents sought are relevant to any of the issues raised in the appeal. Accordingly, it was understandable that decisions of that kind were to be decided with expertise, which the members could bring to the exercise.
Accordingly, the Chairman did not have the power to make the order for inspection on his own and that decision would be quashed and the application considered afresh by the Tribunal – this time consisting of a Chairman (a different chairman) and the members.
The judicial review and reconstitution of the Tribunal as a result will undoubtedly cause long delays to building appeal proceedings. Most appellants do not mind this if the appeal is against a building order on illegal structures, which will not usually be required to be demolished before disposal of the appeal. However, if the appeal is against the Building Authority’s refusal to approve plans, the consideration will be quite different. Parties should therefore look out for any procedural defects which may arise during building appeal proceedings, if they do not want to delay the disposal of their appeal.
