TONG LAU FUNG v. THE INCORPORATED OWNERS OF YUE SUN MANSIONS

TONG LAU FUNG v. THE INCORPORATED OWNERS OF YUE SUN MANSIONS

The Tribunal found the proposed RCHE/RCHD is primarily a residential accommodation use (domestic) with care ancillary; that characterisation means the intended use contravenes the Occupation Permit and does not qualify as permitted shop/office use, and further the intended use falls within the prohibition in the Government Lease (tavern/boarding-house type user) and thus is illegal for lease purposes and breaches Clause 10(c) of the DMC; the use is also likely to cause nuisance/annoyance to other occupiers (lift capacity and wheelchair traffic) so a quia timet injunction restraining operation was justified; the separate application for restoration of lift service under s34I BMO was...

Citation
TONG LAU FUNG v. THE INCORPORATED OWNERS OF YUE SUN MANSIONS
Parties
Applicant in Ldbm26/2015; Respondent in Ldbm32/2015: The Incorporated Owners of Yue Sun Mansion; Respondent in Ldbm26/2015; Applicant in Ldbm32/2015: Lake Side Elderly Centre Limited; Applicant in Ldbm32/2015; Tenant, Director and Shareholder of Lake Side: Tong
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
9 December 2016
Case Number
LDBM32/2015
Procedural Posture
Building Management / Lands Tribunal Applications / Hearing and Final Judgment (trial)
Legal Topics
Change of Use, Occupation Permit Compliance, Deed of Mutual Covenant Covenants, Quia Timet Injunction, Section 34 I Building Management Ordinance (lift Access), Government Lease User Covenants
Source Language
EN
Building Management Property/leasehold Law Administrative/licensing Law Change of Use Occupation Permit Compliance Deed of Mutual Covenant Covenants Quia Timet Injunction Section 34 I Building Management Ordinance (lift Access) +1 more

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Parties

The Incorporated Owners of Yue Sun Mansion

Applicant in Ldbm26/2015; Respondent in Ldbm32/2015

Lake Side Elderly Centre Limited

Respondent in Ldbm26/2015; Applicant in Ldbm32/2015

Tong

Applicant in Ldbm32/2015; Tenant, Director and Shareholder of Lake Side

Procedural Posture

Building Management / Lands Tribunal Applications / Hearing and Final Judgment (trial)

Legal Issues

  1. 1 What is the intended use of the Premises (RCHE or RCHD)?
  2. 2 Whether the intended use is non-domestic
  3. 3 Whether the intended use breaches the Occupation Permit, Deed of Mutual Covenant or Government Lease

Ratio Decidendi

The Tribunal found the proposed RCHE/RCHD is primarily a residential accommodation use (domestic) with care ancillary; that characterisation means the intended use contravenes the Occupation Permit and does not qualify as permitted shop/office use, and further the intended use falls within the prohibition in the Government Lease (tavern/boarding-house type user) and thus is illegal for lease purposes and breaches Clause 10(c) of the DMC; the use is also likely to cause nuisance/annoyance to other occupiers (lift capacity and wheelchair traffic) so a quia timet injunction restraining operation was justified; the separate application for restoration of lift service under s34I BMO was...