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SCMP Reporter

A judge has backed two home owners who were ordered to remove balconies built onto the outer wall of their tenement blocks in the 1950s.
Mr Justice Johnson Lam Man-hon  said the Appeal Tribunal (Buildings) had failed to consider evidence that suggested the balconies were legal, even though they were not included in the approved plans for the tenements.
Kam Yui and Lo Yin-ming, who own flats in Main Street East, Shau Kei Wan, were ordered by the Buildings Authority in February  2008 to remove their balconies, doors leading to the balconies and metal frames protruding from the wall. 
The authority said these fixtures were not in the approved plan and were therefore illegal.
On January 13, the Appeal Tribunal (Buildings) ruled there were insufficient reasons for it to hold a hearing into the dispute.  Kam and Lo challenged that decision in a judicial review in the Court of First Instance.
Lam said the tribunal had failed to determine  if the balconies were built when the tenement blocks were constructed in  1958 and 1959, or whether they were added later.
He said that the tribunal had only decided that the building works were not included in the approved plan. 
The tribunal had also failed to consider the applicants' evidence and did not explain why the evidence was rejected, the judge said. 
He ordered the tribunal to open a full hearing to consider the matter.
The applicants believed that the balconies, the doors and metal frames were built when the building was constructed and were therefore legal. The fixtures were approved by the authority during construction as alterations, which were not required to be in the approved plan at the time.
Building Authority inspectors would have noticed the works in dispute. The authority's records show that officials inspected the construction five times between November 25, 1958, and March 12, 1959. The blocks were inspected again on April 3, after they were completed. Occupation permits were issued on April 6. 
According to the Buildings Ordinance the authority must refuse to issue these permits if it discovers illegal building work. 
Lam said that the occupation permits could be viewed as the authority's acknowledgement of the legality of the building work. The tribunal should have considered whether the issuing of the permits meant approval from the authority. 
The tribunal dismissed the applicants' use of reasonable expectation as a legal principle to argue for rejecting the removal orders, Lam said. But he found the tribunal did not analyse the basis of their argument. 
Moreover, he noted that the law became more stringent after the ordinance was amended in 1959. The law, as stated in the 1955 ordinance, applied to Kam's and Lo's flats. Before 1959 the authority could approve work that was not in the approved plans. After the amendment, the authority could only approve work that was in the approved plans. 
Outside court Kam said: 'Back in the '50s, there was no requirement that [building works] had to be in the approved plan ... Using the current standard to say what was built 50 years ago was illegal is unreasonable.' 
A spokeswoman for the  tribunal said a new panel would hold a full hearing into the dispute.
On solid ground
Inspectors in the 1950s raised no objections  to the balconies 
Number of times construction work on the tenements was inspected: 6



Judge backs flat owners in row over balconies