Advertisement
Advertisement

Raider ruling threatens to trigger rents shock

An interesting high court decision, which has so far not been given much publicity, could soon have enormous reverberations in the property market.

The case is Raider Ltd vs the Secretary for Justice, which was heard from February 24-26 and in which a judgment was handed down on March 2 by Mr Justice Findlay.

It removes the distinction between industrial and office property for at least a very large proportion of companies operating in Hong Kong and legitimises the use of industrial premises by what the Government had previously deemed non-industrial users.

With a stock of about 180 million square feet of industrial space, twice the size of the office stock, this could have a severe impact on rents and prices for secondary office locations as occupants seek alternative space in industrial buildings from which they previously thought they were excluded.

But it could also contribute to a reduction in the costs of doing business in the SAR and it is just possible that senior Government officials will raise no serious objections, given that almost all manufacturing has already fled across the mainland border and that the decision legitimises what is already widespread use of industrial space for office activities.

Raider is a paging company operating out of industrial premises in Ngau Tau Kok.

It took issue with a ruling by the District Lands Office of Kowloon East that it pay an extra fee for using the property for paging services, a use which was deemed non-industrial.

Its argument was that paging service is an integral part of an operation, which includes pager production, and that it should not be required to separate the two in different buildings.

The key element of the judicial decision in the case was that the commonly accepted meaning of industry is 'a trade or manufacture' and this is not confined to manufacturing but has a very wide meaning covering a whole range of human activities aimed at making money.

Even if the pager service could be separated from pager production there was no reason to conclude that was not an industrial purpose, Mr Justice Findlay said.

He also said that a condition on the use of the site, which restricted any building on it to a factory, ancillary offices and quarters essential to the safety and security of the building, did not justify the Government's case.

He noted that the Government's argument was that it meant to restrict the use of the premises to manufacturing only but it did so, not by saying so directly, which it could have done quite easily, but by defining the user in wide terms and then restricting it by requiring that only a factory be built on the lot.

'That, if indeed it was the Government's intention to confine the use of the lot to manufacturing, was a very odd way of going about it,' he said.

'I reject this interpretation. It is artificial and convoluted. The way in which the Government restricts, or should restrict, a use is by restricting the use, not restricting the type of building that may be erected.

'A person to whom a lease is granted by the Government is entitled to be told, in clear terms, what he may and may not do on the property.

'Here, he was told in clear terms that he could use the lot for trade or manufacture, and it is not right, morally or otherwise, that the Government should now pretend that what it said was not what it meant, but that the lessee should have read beyond the restriction in user and found a restriction in the type of building that could be erected.' Mr Justice Findlay also suggested that the Government may have wanted to enforce its definition of industrial use only to raise revenue.

'If this is really the policy of government in dealing with local industry, perhaps it should think again.

'This policy seems destined to drive industries from our shores by seeking to impose totally unreasonable restrictions,' he said.

This judicial decision is now ticking away in the Government's hands.

We could be looking at a big bang here soon.

Post