Building Authority defends rejection of permit

Building Authority argues its 2009 decision to revoke permission to developer is acceptable if conditions agreed previously had changed

PUBLISHED : Tuesday, 06 November, 2012, 12:00am
UPDATED : Tuesday, 06 November, 2012, 3:28am

The Building Authority argued yesterday that it was entitled to revoke a building permit when changing circumstances removed the need for a key condition in the project.

The authority's lawyers defended in the Court of First Instance its decision in 2009 to reject a building plan, from Long Winner Development, which it had accepted two years earlier under different circumstances.

The authority was appealing against an earlier tribunal ruling that said it had erred in rejecting the plan.

The case stems from a 2007 agreement between the authority and the developer. It granted the developer extra building area for a 31-storey residential high-rise near Pottinger Street on condition that Long Winner would surrender land on the ground for a 4.5-metre-wide walkway.

The walkway was considered essential because pedestrian traffic was expected to increase significantly when the proposed Central station was built for the new Sha Tin-Central Link.

But when the new railway station was relocated to Admiralty, the Transport Department concluded the walkway needed to be only 2.5 metres wide and it was rated only "desirable" rather than "essential".

The reduced need for the walkway led the Building Authority to reject the plan in 2009.

The developer appealed against that decision to a tribunal, which by majority decision reversed the authority's decision. The tribunal reasoned that "desirable" was still "a good thing", and should not have resulted in the plan being rejected.

Yesterday Andison Chow SC, for the authority, said the granting of such a building permit was purely in the hands of the authority, which could revoke the permit when conditions changed. A permit was not granted forever and it "must give way to changing conditions".

"[It] cannot be the case that merely because a developer is able to provide … improvement of pedestrian flow at a site that it should always be allowed to build beyond the normal limits," Chow wrote in a court document.

But Benjamin Yu SC, for the developer, said the authority could not back away from its promise "in the middle of the game". The developer had proceeded with the project on the basis of the permission for the extra building area, and had completed piling at the site.

Mr Justice Johnson Lam Man-hon will hand down his written judgment at a later date.