Building Authority v Appeal Tribunal (Buildings)
Constitutional and Administrative Law List No. 14 of 2014
Thomas Au J
22 October 2015

Government lease – construction of “appertain” – features outside of lots could “appertain” to lots if indispensable to construction of buildings of lots and/or essential to survival of buildings and structures on lots

X was the owner of two lots of land (“Lots”) which were subject to Government leases (the “Government Leases”). The Government Leases were subject to Condition 6 which required X to, inter alia, carry out repairs of “Walls, Banks, Cutting Hedges, Ditches, Rails, Lights, Pavements, Privies, Sinks, Drains, and Water-courses” which “belong or appertain” to the Lots. An L-shaped soil cut slope (the “Feature”) adjacent to a house, which was in turn adjacent to the Lots, was liable to become dangerous so as to cause a risk of injury to persons or damage to property. The Building Authority (the “BA”) issued a dangerous hillside order against X. X appealed to the Appeal Tribunal (Buildings) (the “BAT”), which found for X as a matter of construction of the word “appertain”, that X had no obligation to maintain and repair the Feature which lay outside the Lots. The BAT did not make any findings on the evidence adduced or determine the other arguments advanced. The BA applied for judicial review of the BAT’s decision.

Held, allowing the application, quashing the BAT’s decision and referring the case back to a differently constituted BAT for reconsideration, that:

  • The usual and ordinary legal meaning of the word “appertain” was “belonging” and this applied to Condition 6. Something would be regarded as belonging to a principal matter if it was part and parcel thereof by being substantially connected to or dependent on the principal matter. If it could be shown by evidence that a certain feature, even though lying outside the Lots, was indispensable to the construction of the buildings of the Lots and/or essential to the survival of the buildings and structures on the Lots, it was likely that such a feature could be regarded as “belonging” or “appertaining” unto the Lots.
  • The general rule of presumption against redundant words did not assist BA. It was regarded as “particularly weak” in construing conveyancing documents. The court could not insist on giving each word in a series a distinct meaning because draftsmen frequently used many words either because it was traditional to do so or out of a sense of caution.

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