Buildings chief challenges ruling by appeals tribunal

PUBLISHED : Thursday, 10 November, 2011, 12:00am
UPDATED : Thursday, 10 November, 2011, 12:00am


The Building Authority, in a rare move, has taken the Buildings Appeal Tribunal to court because it is not happy with a decision in favour of a developer associated with Henderson Land.

In a judicial review, the authority is asking the Court of First Instance to quash a tribunal decision that resulted in an increase in the plot ratio and site coverage for a redevelopment in Sai Ying Pun.

The case stemmed from the authority's refusal to approve a building plan submitted by Gavin Development, a firm owned by tycoon Lee Shau-kee, to build a 30-storey residential building near High Street.

The court heard that the developer wanted to build the high-rise next to a residential block, Ying Wa Court. Claiming that the development was in fact a 'phase two' of Ying Wa Court, the developer sought last year to include in the building plan of the new block an access road earlier set aside for Ying Wa Court.

By including the road, the developer could enjoy more floor area because the site coverage increased.

The authority rejected the building plan in March last year, saying the flats of Ying Wa Court had been sold to individual owners. Without the ownership or control of the access road, the developer could not apply to include the road in the building plan of the new development.

The developer appealed to the tribunal, which overturned the authority's decision in January on the grounds that the authority did not have the power to require the developer to prove it had the right of the road in approving the building plan.

The Building Authority is a quasi-judicial post held by the director of buildings and is the arbiter of what buyers can do with sites.

Godfrey Lam Wan-ho SC, for the developer, said the submission of the building plan was only a 'notional exercise' and at that stage the authority was not empowered to require a developer prove land ownership.

He argued that the proof of land ownership should only be required during the application for commencement of building works.

But Nicholas Cooney SC, for the authority, said it was empowered by the Building Ordinance to ensure the site was owned by the developer before approving building plans.

Mr Justice Johnson Lam Man-hon also questioned whether efforts and public resources spent in approving the building plans would be wasted if ownership of the land only turned out to be problematic later.

The hearing continues.