In a recent case, interesting issues arose in applications by a building owner (Profit Success Ltd) for judicial review of decisions of the Appeal Tribunal (Buildings) in relation to:
1. whether structures ordered to be demolished under a building order (Building Order) issued by the Building Authority (BA) were “building works” (Profit Success argued that they were plant, machinery or equipment and not “building works”); and
2. whether the Building Order was invalid and in breach of section 14 of the Buildings Ordinance (Cap 123) (Ordinance) because it required Profit Success to carry out demolition works (themselves “building works” under the Ordinance) without first requiring Profit Success to obtain the Building Authority’s approval of plans and the necessary consent.
Background
The structures in question were a fully enclosed container erected in a car park used as a control room and metal platforms and staircases erected above a ramped driveway (Structures).
The Building Order was issued under section 24 of the Ordinance, which provides that where any works have been carried out in contravention of any provisions of the Ordinance, the Building Authority may issue a written order requiring demolition of the building work and reinstatement. It was the Building Authority’s position that the building works contravened section 14 of the Ordinance because no approval of any building plans or consent for their commencement had been first obtained from the Building Authority.
The Building Order required Profit Success (amongst other things) to:
i. demolish the Structures and reinstate the parts of the building affected by the building works; and
ii. appoint a General Building Contractor or Registered Specialist Contractor in the demolition category to carry out the works and appoint an Authorised Person or Registered Structural Engineer to advise on the details of the works, such Authorised Person to submit plans of the works and protective measures to the Building Authority for agreement before commencement of the works.
First Appeal Tribunal (Buildings) Ruling
Profit Success appealed against the Building Authority’s decision to issue a Building Order, but the Appeal Tribunal (Buildings) dismissed the appeal.
First Court of First Instance Ruling
On Profit Success’s application for judicial review of the Tribunal’s decision, the High Court, Court of First Instance (CFI) found that:
1. the Tribunal had not given any reasons or adequate reasons why, after considering the relevant factors, it had rejected Profit Success’s argument that the Structures were not “building works”; and
2. the demolition and reinstatement works ordered to be carried out under the Building Order were subject to section 14 of the Ordinance, which requires written approval of building plans and written consent for commencement of works from the Building Authority for any proposed works. In some cases, depending on the demolition and reinstatement involved, no further plans (to the original approval plans) need to be submitted under section 14 for the purposes of works and the building order could be regarded as consent in writing under section 14. However, in the present case, there was no evidence before the court to enable it to conclude whether the necessary and relevant “approval” and “consent” under section 14(1) could be regarded as already having been given by the Building Authority at the time of the Building Order.
The CFI therefore quashed the Tribunal’s decision and remitted the case back to the Tribunal to reconsider the following questions:
1. whether the Structures were “building works”; and
2. whether on the evidence and facts of the case, the necessary approval and consent required under section 14(1) of the Ordinance for the demolition and reinstatement works could be regarded as having already been given by the Building Authority at the time of the Building Order.
Second Appeal Tribunal (Buildings) Ruling
After reconsidering the above two questions, the Tribunal again dismissed Profit Success’s appeal, finding that the Structures were “building works” and that on a proper construction of the Building Order, Profit Success was required to engage an authorised professional to apply for the approval and consent required under section 14(1) of the Ordinance before commencement of the works required under the Building Order. The Tribunal found that there was no question that the necessary approval or consent required under section 14(1) had already been given by the Building Authority at the time of the Building Order. The Buildings Order was not, therefore invalid or unenforceable.
Second Court Of First Instance Ruling
Profit Success’s application for leave to apply for judicial review against the Tribunal’s second ruling was dismissed by the court, which held that:
1. the Tribunal had given adequate reasons for its finding that the Structures were “building works” and its findings could not be challenged; and
2. the Building Order was not a statute and should not be read as such. In its ordinary meaning, the Building Order required Profit Success, through its qualified professional, to apply and obtain all necessary permissions legally required from the Building Authority to commence the demolition work, including (if applicable) section 14 approval under the Ordinance.
Court Of Appeal Ruling
Profit Success further appealed to the Court of Appeal against the CFI’s refusal of leave for judicial review against the Tribunal’s second ruling, but the appeal was dismissed. The Court of Appeal held that:
1. The Tribunal, had, in it’s second ruling given very full and clear reasons for coming to the conclusion that the works were “building works” rather than plant and machinery and accordingly, Profit Success failed in its challenge based on the Tribunal having not given reasons for its decision.
2. A section 24 building order was not immune from the requirements of section 14 in terms of approval and consent, but the building order itself would normally constitute the necessary consent by the Building Authority to commence the work ordered to be done under the building order, if such work fell within the scope of section 14. However, where a building order does not say that the work ordered to be done under it is subject to the requirements of section 14 where applicable, it does not make the building order invalid, since a building order must be read and understood in the context not only of section 24, but also all other relevant provisions of the Ordinance and its subsidiary regulations, which everyone is presumed to know. The building order does not need to recite the requirements under section 14 to be valid and the Building Authority has no obligation to mention each and every provision in the Ordinance or regulations which may have a bearing on the work ordered to be done in order for the building order to be valid. Only if the building order was “hopelessly ambiguous and uncertain”, sothat the owner or occupier could not tell with reasonable certainty what steps he had to take to remedy the alleged breaches, would the building order be a nullity.
3. It was plain that the Building Order required Profit Success to obtain the Building Authority’s approval of all relevant plans under section 14 regarding the demolition work ordered to be carried out. Since section 24 merely gave the Building Authority the power to fix the times for commencement and completion of works, it did not give it power to impose the requirement for obtaining its agreement to plans, independent of section 14. Therefore read in the context of the Ordinance, the Building Order must be reasonably understood as referring to the approval procedure laid down in section 14. No distinction should be made between “approval” and “agreement” and, in fact, the distinction became irrelevant once “agreement” was read simply to mean the approval procedure in section 14.
Lessons To Be Learnt
In our experience, the wording used in building orders issued by the Building Authority varies. It appears that Profit Success lost its appeal because the Building Order requested it to submit plans to the Building Authority for its “agreement”. In other building orders which we have come across, the Building Authority simply requests the owner to commence demolition and reinstatement works without mentioning the need to engage construction professionals or only mentions engaging construction professionals to ensure safety of the works. Whether such building orders would be upheld by the Court depends on the nature of demolition works required to be carried out and the precise wording used in the building order. We have recently succeeded in defending a court case for a building owner served with a building order by relying on the reasoning in the Profit Success case.
