Court of Appeal rules that Building Authority must reject building plans where developer does not own or have realistic prospect of controlling land forming site of proposed building

The main issue raised before the Court of Appeal in the case of Lai Siu-Kin Rembert v Building Authority, CACV 113/2012, 2 August 2013, was whether the Building Authority (“the BA”) may disapprove general building plans submitted for approval under the Buildings Ordinance (Cap.123) (“the BO”) on the basis that the person on whose behalf the plans are submitted is not the owner of the site shown on the plans or does not have a realistic prospect of controlling that site. The BA contended that it can and that it therefore follows that it can request particulars of the ownership or prospect of control of the site shown in such plans, whereas the appellant developer submitted that it cannot do so. Having been informed of a large number of appeals where this same issue arose, the BA referred this appeal to the Court of Appeal for determination, by way of case stated, under section 53C of the Buildings Ordinance.

The following are the four questions of law referred by the BA and the Court of Appeal's answers in respect of the same:-

1. Does the BA, in exercise of its statutory powers (or in exercise of any principle of common law) have to reject building plans on the basis that a developer does not own or have a realistic prospect of controlling the land forming the site of the proposed buildings shown on those plans?

   Answer: Yes. The Court of Appeal held that it was bound by a previous Privy Council decision in this regard. The Court said that if the developer wished to contend that the relevant part of the Privy Council decision was wrong and should be overturned, that was an argument that could only be pursued in the Court of Final Appeal.

2. Does the BA, in exercise of its statutory powers (or in exercise of any principle of common law) have the power to require in respect of any building plans submitted for approval, particulars of ownership or proof/substantiation of realistic prospect of control of the site of the proposed buildings shown on those plans?

   Answer: Yes.

3. If the answers to questions 1 and 2 are in the affirmative, is the power of general application or limited to specific factual situations?

   Answer: Subject to ordinary public law requirements (as to fairness, rationality etc) and to the appeal process under Part 6 of the Buildings Ordinance, the relevant statutory powers may be exercised whenever the BA, in its judgment, considers that the developer has not shown ownership of or a realistic prospect of control over the land within the proposed site.

4. If the answers to questions 1 and 2 are in the affirmative in determining the question of fact as to whether the developer has established such ownership or realistic prospect of control of the site, is the Appeal Tribunal limited to considering the position at the time of the rejection of the plans or can the Appeal Tribunal consider the position as at the date of the appeal hearing, thus taking into account any changes in the interim period?

   Answer: The Appeal Tribunal (Buildings) (“BAT”) should be entitled to consider the position as at the date of the hearing of the appeal and thus taking into account any changes in the interim period. However, given the various ways in which a matter might come before the BAT, on appeal from the decision of the BA, the dispositive powers of the BAT may be different, depending on the nature of the decision appealed from.