LAU CHI WANG and 613 Others as listed in the Schedule attached hereto v. APPEAL TRIBUNAL (BUILDINGS)

LAU CHI WANG and 613 Others as listed in the Schedule attached hereto v. APPEAL TRIBUNAL (BUILDINGS)

The Court held the Tribunal did not commit legal error nor make a perverse factual finding: the claimed substantive legitimate expectation failed because either it was unlawful/unreasonable in the statutory and policy context of the Buildings Ordinance and BA enforcement policy, or there was no clear, unambiguous representation to support it; BA retains discretion under s24 to issue demolition orders; accordingly the judicial review is dismissed and costs awarded to the BA.

Citation
[2024] HKCFI 2046
Parties
Applicants: LAU CHI WANG and 614 Others; Putative Respondent: APPEAL TRIBUNAL (BUILDINGS); Putative Interested Party: BUILDING AUTHORITY
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 August 2024
Case Number
HCAL587/2022
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Rolled Up Hearing and Judgment on Substantive Review
Outcome
Application for judicial review dismissed on substantive review
Legal Topics
Legitimate Expectation, Unauthorized Building Works (ubws), Discretionary Enforcement, Statutory Interpretation, Procedural Fairness, Costs
Source Language
EN
Administrative Law Constitutional Law Building Regulation Judicial Review Public Law Legitimate Expectation Unauthorized Building Works (ubws) Discretionary Enforcement +3 more

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Parties

LAU CHI WANG and 614 Others

Applicants

APPEAL TRIBUNAL (BUILDINGS)

Putative Respondent

BUILDING AUTHORITY

Putative Interested Party

Procedural Posture

Judicial Review (constitutional and Administrative Law) / Rolled Up Hearing and Judgment on Substantive Review

Legal Issues

  1. 1 Whether applicants had a substantive legitimate expectation that the Building Authority would not demolish UBWs if structurally safe
  2. 2 Whether the Tribunal misapplied Magic Key v Appeal Tribunal (Buildings) regarding lawfulness and reasonableness of the claimed expectation
  3. 3 Whether the Tribunal's factual finding that no clear representation was made was irrational or perverse

Ratio Decidendi

The Court held the Tribunal did not commit legal error nor make a perverse factual finding: the claimed substantive legitimate expectation failed because either it was unlawful/unreasonable in the statutory and policy context of the Buildings Ordinance and BA enforcement policy, or there was no clear, unambiguous representation to support it; BA retains discretion under s24 to issue demolition orders; accordingly the judicial review is dismissed and costs awarded to the BA.

Court Disposition

Application for judicial review dismissed on substantive review

Orders

  • Judgment dismissing the application for judicial review
  • Applicants ordered to pay the Building Authority's costs, to be taxed if not agreed