An alley that runs across a plot of land in Sham Shui Po has hampered a major redevelopment plan to build a 57-storey residential complex, the court heard yesterday.
The legal battle centres on a disagreement over ownership of the back lane, which is surrounded by old buildings on the 45,000 square foot site on Berwick Street facing St Francis of Assisi Church.
Property developer Fairbo Investment sought a judicial review to dispute decisions by the Building Authority and the Appeal Tribunal (Buildings) that the lane had been surrendered to the government, making it unavailable for building the complex.
The authority claims the lane has been given up to the government and therefore does not belong to the site owner to undertake any redevelopment.
It also says the alley is a street, hence no building or structure is allowed to be built on it under the Buildings Ordinance.
In 2010, the authority rejected the redevelopment plan. Last year, the tribunal upheld the authority's decision and dismissed an appeal by Fairbo.
At the hearing for the judicial review yesterday, Anthony Neoh SC, for the developer, challenged the tribunal's finding that the lane had been surrendered to the government. "Any surrender needs to be dealt with between the landlord and the tenant.
"Also, the [conduct of] surrender and any acceptance of the surrender have to be unequivocal," Neoh told the Court of First Instance. "You need clear indication to any surrender and to the acceptance."
The lawyer noted that the government had done nothing to inform subsequent buyers of the site of any surrender.
Even though different government bodies, including the Highways and Drainage Services departments, had been carrying out maintenance work on the lane, those public officers did not represent the government as a landlord, he said.
Also, the fact that the lane was open to the public did not mean it could not be private property, the court heard.
"Unless the court finds the scavenging lane has been handed to the government, the lane belongs to the owner," Neoh said.
Barrister Abraham Chan, for the authority, said the judicial review was not an appeal. Chan also argued there were no errors in the authority's factual findings that the lane had been surrendered to the government.
The tribunal was not legally represented yesterday.
The hearing continues before Mr Justice Au Hing-cheung today.