Hong Kong: Can The Building Authority Blow Hot And Cold In Assessing Building Plans? The Court Of First Instance Says "NO".

Last Updated: 3 December 2012
Article by Alan T.S. Yip
Most Read Contributor in Hong Kong, November 2017

Keywords: building authirty, building plans, buildings ordinance


On 22 November 2012, Mr. Justice of Appeal Johnson Lam handed down his judgment in the case Building Authority and Appeal Tribunal (Buildings) and Long Winner Development Limited (HCAL 45/2012), where he dismissed the Building Authority's (BA) application for judicial review of the decision of the Appeal Tribunal (Buildings) to reverse the BA's decision to reject the Superstructure Plans submitted by the developer, Long Winner Development Limited (Long Winner).


Long Winner proposed to redevelop a site in Central (located at the junction of Pottinger Street and Ezra's Lane) for a commercial/residential building.

The development took advantage of the Government's original plan to provide the Central West Station for MTRC's Shatin-Central Link in Central:

  • In 2003, Long Winner proposed a pedestrian enhancement scheme involving creating a linkage of the site with the originally planned Central West Station. The proposal involved surrender of a certain part of the site area for footpath widening and the dedication of a certain part of the site area for public passage.
  • The Government anticipated that, with the new Station, there would be increased pedestrian and traffic flows. In October 2007, the BA approved the general building plans (2007 GBP) submitted by Long Winner and granted a Permit (Permit) under s.42 of the Buildings Ordinance (BO) to modify/exempt the provisions of the BO and the Building Planning Regulations by granting certain bonus site coverage (3.48%) and a plot ratio (of 976.435 sq.m.) to Long Winner.
  • The Permit was granted subject to certain conditions, including the execution of a Deed of Dedication and Agreement to Surrender for the proposed footpath widening and public passage respectively before application for an occupation permit.
  • Long Winner proceeded with construction works based on the Permit. Before 2008, the BA continued to grant consent to commence the foundation works, excavation and lateral support works.

However, in late 2008, after Long Winner had completed the foundation and piling works, the Government decided to relocate the Central West Station:

  • Transport Department took the view that, with the relocation, the pedestrian demand in the area might not be significantly increased and thus there was no justification for Long Winner's pedestrian enhancement scheme.
  • In November 2009, Long Winner submitted Superstructure Plans corresponding to the approved 2007 GBP and the Permit to the BA for approval. The BA rejected the Plans on the ground that the proposed plot ratio and site coverage exceeded those permitted under the BO, because the Government no longer accepted the proposed surrender/dedication due to the relocation of the Station.
  • Apparently, the BA proceeded on the basis that it was entitled to disregard the effect of the Permit as the circumstances had changed, although the Permit itself was still in effect.

Long Winner lodged a building appeal to challenge the BA's decision and the Appeal Tribunal allowed the appeal and directed the BA to approve the Superstructure Plans. The BA applied for judicial review of the Tribunal's decision.

Court's Decisions

The Court of First Instance dismissed the BA's judicial review application because:

  • the Permit was still valid at the time that the BA rejected the Superstructure Plans;
  • the modifications/exemptions granted in the Permit were effective upon the issuance of the Permit and this was reflected in the BA's approval of the 2007 GBP;
  • without any revocation of the Permit, the modification to/exemption from the usual limits for site coverage and plot ratio granted under the Permit was still in effect.

The BA was therefore legally bound to approve the Superstructure Plans subject to the same modifications and exemptions as previously granted by the BA in the Permit.

Can the BA rely on the change in Government's position?

The BA argued that, because of the change in Government's own position to relocate the Central West Station, Government would no longer accept the surrender and dedication, and thus the conditions imposed under the Permit would not be satisfied. The BA was therefore correct to reject the Superstructure Plans which were submitted on the basis that the surrender/dedication under the Permit would be implemented.

The Court rejected this argument and held that, when the BA was faced with the Government's change in position regarding the Central West Station, the BA could have either:

  • processed the Superstructure Plans in accordance with the Permit and left it to the Government or Long Winner to seek legal redress in terms of the execution of the documents for the surrender/dedication; or
  • started the process of revocation before making its decision on the Structure Plans, if the BA considered that it had power to revoke the Permit (which would also involve revocation of the approved 2007 GBP).

The BA was therefore wrong to ignore the effect of the Permit on the modification of the plot ratio and site coverage in respect of the approved 2007 GBP without any revocation.

Can the BA revoke the modification/exemption granted in the Permit?

The Court indicated several times in the judgment that, if the Permit had been revoked before the BA made its decision to reject the Superstructure Plan, the present dispute would not have arisen. However, since both parties accepted that the Permit was still valid at the time of rejection of the Superstructure Plans, the Court was not required to make a decision as to whether the BA had the power to revoke the Permit.

The Court only mentioned that if the BA sought to revoke the Permit, the following issues could arise:

  • whether the BA has power of revocation as a matter of law; and if so
  • whether it is proper for the BA to exercise such power in the circumstances of the case as a matter of discretion.

This issue remains outstanding and it remains to be seen whether the BA, after losing this case, will attempt to revoke the Permit as an alternative way to stopping the proposed development in accordance with the approved 2007 GBP and the Superstructure Plans.

Learn more about our Hong Kong office and Construction & Engineering, Litigation & Dispute Resolution, Real Estate practices.

Visit us at www.mayerbrownjsm.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2012. The Mayer Brown Practices. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions