Building Authority v Appeal Tribunal (Buildings) (229/2016)
Court of Appeal
Civil Appeal No. 229 of 2016
Lam V-P, Kwan and McWalters JJA
11 August 2017

Government lease – conditions – grantee under obligation to take over maintenance and responsibility for road – whether, on proper construction of special condition, obligation extended to man-made slopes which supported road

X was the owner of a land lot (the “Lot”) under a New Grant for the purpose of building a private country club on the Lot. The only access to X’s club was via a road which was outside the Lot. The original road was constructed before the New Grant was executed (the “Original Road”) and appeared as a brown strip (the “Brown Area”) on the plan annexed to the Grant. It was formed by cutting the natural terrain and end tipping the soil onto the hillside which created man-made slopes (the “Slopes”) supporting parts of the Original Road. Special Condition 31 of the Government lease required X, as the Grantee, to take over responsibility for the maintenance of the Original Road from the Government, specifically to “construct a paved way to the standards laid down in the Building (Private Streets and Access Roads) Regulations [(Cap. 123G, Sub. Leg.) (the “Regulations”)] over [the Brown Area] and shall uphold, maintain and repair such paved way and everything forming portion of or pertaining to it … and … be responsible for the whole as if he were absolute owner thereof” (“SC31”). The Building Authority (the “BA”) issued two dangerous hillside orders in respect of two of the Slopes against X on the basis, inter alia, that under SC 31, X was treated as having constructed the Original Road and the Slopes. X appealed to the Appeal Tribunal (Buildings) (the “Tribunal”) which found for X, holding that it had no obligation to maintain the Slopes under SC31, because SC31 applied only to the inside of the Brown Area (the “Determination”). The BA applied for judicial review of the Determination and X joined as an interested party. The Judge allowed the application, but adopted a narrower interpretation than that of the BA, holding that under SC31 and in particular the words “everything … pertaining to” the paved way, properly construed, X was responsible for maintaining all man-made slopes which resulted from X’s construction of the paved way over the Original Road which were substantially connected to or in support of the same whether inside or outside the Brown Area. He therefore quashed the Determination and remitted the appeals to the Tribunal for reconsideration. X appealed.

Held, allowing X’s appeal on the construction of SC31, that:

  • The Judge’s construction of SC31 could not be supported. It was based on a false premise that the parties reasonably contemplated construction works on the Slopes by X to upgrade and in particular to resite the Original Road. However, there was no evidence of a potential need for such works on the Slopes; and there was no requirement in the Special Conditions that X seek prior approval for any such works.
  • The BA’s construction of SC31 was strained and also rejected. There was nothing to indicate that the parties had intended to treat or to assume the factual basis of the Grant was other than the state of affairs prevailing at the time.
  • Notwithstanding the wide scope of the wording in question, on a proper construction, SC31 only imposed an obligation on X to maintain everything within the boundaries of the Brown Area and any incidental structures on that paved way referred to in ss.19 to 25 of the Regulations. This was the same as the construction adopted by the Tribunal.
  • Inter alia, X was not involved in the construction of the Slopes on Government land. If it had been the common intention that X should bear the substantial and onerous responsibility to maintain all the man-made slopes which supported the road, this would have been provided for in clear and detailed provisions. Further, X and visitors to the club would not be the only users of the road and there were structures and human activities on the Slopes which had nothing to do with X and were outside its control.

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