CSE566

Topic 3 - Cases
 Yeung Pui Yee 1
• Yeung Pui Yee sought a judicial review in relation to the
April 1988 PNAP headed as “Unauthorized Alterations and
Additions BO s14”
• She said that on a fair reading: “If your proposal for
alterations is concerned with a structure which has been
erected in contravention of s14(l) the BA will not entertain
your proposal at all.”
• She argued that persons, in particular AP, read the PNAP in
this way. Accordingly, none of those she approached were
prepared to give her assistance of getting the BA to agree to
certain alterations and additions to an existing building.
 Yeung Pui Yee 2
• The building did not originally obtain a s14 approval and she
was in effect stalemated by the action of the BA.
• The court concluded that
– “on no proper construction can it bear the meaning for which the
Applicant contends”;
– “Despite the heading, ... To all such building works, s14(1) of the
BO applies”; and
– The BA has “no powers to give retrospective approval or consent in
respect of building works which have already been commenced,
carried out or completed”.
• PNAP such as this are issued by way of guidance by the BA
and are not statutory in character.
Example BA5
 Firebird
• In September 1979, the respondents submitted plans to the
BA for approval. The B(P)R were amended (in Gazette on
12 October 1979) to redefine class A, B C sites.
• By letter dated 19 October 1979, the BA refused to approve.
1. The permitted plot ratio and site coverage had been exceeded, the
site being a class A site under the B(P)R as amended.
2. The plans were not endorsed with or accompanied by a certificate
from the Director a Fire Services: s16(1) (b) of the BO.
• The Court of Appeal allowed the appeal.
– “… once the plans had been submitted (class C site, as it was on 8
September 1979), the respondents had ‘an accrued right’ to have the
plans considered on that basis and not by reference to any subsequent
change in the law.
 BA appealed
• Their Lordships are of the clear opinion that the B(P)R
confer on the BA discretionary powers in relation to a
number of matters which makes it impossible to say that the
respondents ever had an absolute right to have their plans
approved.
• Any right which the respondent did acquire under this
legislation was a right correlative with the public duty of the
BA to consider the plans according to law, and the relevant
law must be the law applicable at the date when the BA
performs its statutory duty of considering the plans within
the 60 days, and not some other spent law.
 Lordship’s view
• ... Suppose the amendments had enlarged the respondents’
rights and not restricted them. Their Lordships find it
impossible to accept that the BA, when considering the plans
after the relaxing amendment had taken effect, would have
been justified in refusing to record to the respondents the
benefit of those amendments upon the ground that it was the
spent law which alone was relevant. In so doing, the BA
would not be performing their statutory duty to consider the
plans according to law.
• The absence of a certificate from the D of FS empowered the
BA, without more ado, to refuse to approve the plans.
 Super Mate
• The applicants applied to the Director of Buildings and
Lands (“the Director”) to redevelop a site. Their plans were
refused on 21 April 1993. The Director subsequently
admitted the refusal had been in error. By the time the plans
were re-submitted, the OZP had changed, reducing the
permitted height from 27 to 12 floors. The Director advised
the applicants to comply with the new zoning laws.
• The applicants argued that their re-submitted plans should
have been considered under the zoning laws in force in April
1993 when they were first considered, and wrongly rejected,
and that the amended zoning laws should not apply to their
application.
 Mayo, J.: Judicial Review
• … one of the first questions I must determine is whether the
resubmission of the plans was a fresh submission of plans or
whether it formed a continuing process of the original
application made in February 1993.
• While I accept that the Respondent has at all times
conducted itself with all due propriety and is guilty of no
mala fides it is nonetheless true to state that the Applicants’
present predicament has been brought about as a result of an
error which as been made by the Respondent.
• This scope for the granting of an Order of Mandamus is
sufficiently wide to accommodate a situation of this nature.
 Head Step
• The applicant sought approval of plans in 4 submissions.
– First submitted: plot ratio of 15 permitted by OZP S/K11/5 then in
force. It was refused on the ground that further information or
classification was required under 16(1)(i) of the BO.
– Second submission: Similar to the first plan with plot ratio of 15.
However, OZP S/K11/6 came into effect reducing the plot ratio to
12. Approval was refused on the ground that further information or
classification was required and compliance with OZP SA/K11/6
– The applicant appealed to the BAT, which was adjourned sine die.
– Third submission: it was subsequently withdrawn.
– Fourth submission: With almost identical plans: BA refused
approval on the grounds that it contravened OZP S/K11/6 and that
he had no discretion to approve a plan which contravened OZP.
 Appeal to Court of Appeal
• The applicant obtained leave to apply for Judicial Review.
• It was held that the fourth submission was a ‘re-
submission’ of the original submission and the applicable
law was the law in force at the time when the first
submission was made, ie OZP S/K11/5.
• The refusal was quashed. The case remitted to BA for a
rehearing on the basis of plot ratio 15 as permitted by OZP
S/K11/5.
• The Authority appealed to the CA.
 Held 1
• The BA refused to approve the plans for a number of
reasons, including breaches of fire code and some parking
concerns. It is conceded that the BA had wrongly assumed
that submitted building plans must be peremptorily
rejected for any non-compliance with or breach of
statutory requirements. The BA was then unaware of and
did not consider exercising its discretionary power.
• Under Regulation 30 Application for approval
– … the submission of further particulars or other plans consequent
upon the refusal of the BA to give his approval under s16(1) (i) or
(2) (f) of the Ordinance shall be deemed to be a fresh application in
respect of the plans which the BA had refused to approve.
 Held 2
• In the discharge or performance of this statutory duty by
the BA, the relevant law is the law prevailing each time he
is being called upon to consider and, if he thinks fit, pass
the submitted building plans.
• Counsel for Head Step, Mr Benjamin Yu, relies heavily on
Super Mate and Heland. It was held in these decisions that
submission or re-submission of substantially the same
building plans at any point of time was or was to be
regarded as part of the first submission plans and were
decided on their own facts.
• There was no further or another fresh submission in
Firebird.
 Held 3
• The relevant law should be the law prevailing each time
the Building Authority is asked to consider the submitted
building plans and not the ‘spent law’.
• It matters not whether the submission was the first
application or a further step in the first approval seeking
process by way of re-submission a fresh submission.
– First, the submission of plans given no accrued right to have those
plans considered on the basis of the law applicable at the time of
submission without regard to subsequent amendment.
– Secondly, the law to be applied is that applicable at the date when
the Building Authority considers the submission, within the time
limits allowed.
 Held 4
• The BA was in error in thinking that it has no discretion
when considering the second and fourth applications. The
BA contends that even though unaware of the existence of
the discretion at the time, had it been aware of it, it would
still not exercise it so as to approve the application the
OZP being the obstacle. I do not think that is a proper way
of dealing with it …
• The appeal was allowed and the fourth submission was
remitted to the BA for it to decide whether or not it should
exercise its discretion in favour of Head Step on the basis
of OZP S/K11/6. An order nisi was ordered as to costs in
favor of the BA.
Site safety supervision
– Roles and responsibilities of
engineers
 Sze Che Sau & Others v. Dragages &
Others [2007] 4 HKLRD 890
• On 29 May 2001, an accident occurred at a construction
site of a bus depot of the KMB at Hing Wah Street West
• At about 2:45pm, whilst placing concrete at Level 5, a
concrete beam supporting prefabricated concrete
platform collapsed
• This caused 1 death and 9 injuries
Sze Che Sau & Others v. Dragages &
Others [2007] 4 HKLRD 890
Sze Che Sau & Others v. Dragages &
Others [2007] 4 HKLRD 890
 The accident
Accident was
caused by
collapse of the
falsework next
to C97 (due to
insufficient
diagonal
bracing)
The RMD Rapidshor falsework
Assembly guidance
Was the RSE/RE responsible for checking/approving
the falsework design?
• CoPSS – Court accepted that it was Case 1
• So, the answer to the above question is “yes”
 The approved drawings

The falsework was

described as “32T”,
“self standing” and
“laterally braced”
 Was RSE/RE responsible for site supervision?
• From Safety Supervision Plan – RE was TCP1, TCP3
and TCP4: needed to supervise the works
• Main contractor accepted that it is to be more
blameworthiness.
– BO s(4)(3): RSE … shall (a) supervise the carrying out of
the building works … in accordance with the supervision
plan …
– BO s(9)(5) A RGBC … appointed to carry out building
works or street works … is required to (a) provide
continuous supervision to the carrying out of the works in
accordance with his supervision plan …
• RSE was under an obligation to supervise the works:-
– Lack of diagonal bracing was obvious – no difficulties to
observe on site – no working drawings on site to follow.
– It was reported by the Labour Department that “3 twin-
towers were found with 1 to 7 diagonal braces missing”.
 The judgment 1
• Main contractor accepted that it was more
blameworthiness.
• The RSE was liable for damages for breach of
statutory duty under section 7(1) of OSHO.
– OSHO s(7)(1) … the occupier of the premises must ensure
that (a) the premises; and (b) the means of access to and
egress from the premises; and (c) any plant or substances
kept at the premises, are, so far as reasonably practicable,
safe and without risks to health.
• The RSE was in breach of statutory duty under BO:-
– The RSE failed to properly supervise the erection of the
falsework in breach of his obligation under BO s4(3)(a)
– The RSE authorized or permitted the works to be carried
out in such manner that it caused injury and death, and
committed an offence under BO s40(2B)(a)
 The judgment 2
• It is just and equitable to apportion liability at
– 30% on the part of the RSE and
– 70% on the part of the main contractor.
• There is also cost, i.e. legal fee.
• In the present case, D6 was the consultant employing
D8 the RSE. D6 was variously liable to the fault of
its employee – i.e. the RSE.
THE END