Leading Well Ltd v Secretary for Justice (on behalf of Director of Lands) [2024] HKCA 821: Court of Appeal Interprets Criterion of “Specified Street” under regulation 18A(3)(a)(iv) of Building (Planning) Regulations
Land Law
In a first-of-its-kind Judgment handed down yesterday afternoon, the Court of Appeal interprets regulation 18A(3)(a)(iv) of the Building (Planning) Regulations (Cap 123F), under which a road or street is a “specified street” if (among other circumstances) it “is on land over which the owner of the site is expressly granted, by or by virtue of an instrument, a right of way exercisable at all times”. The practical significance is that a site abutting on such “specified street” normally has a higher maximum permitted site coverage and plot ratio – thus a higher (re‑)development potential and value. This is obviously crucial to developer and re-developer clients alike, and was no exception in this case.
Denis Chang SC leading Thomas WK Wong acted for the successful intended re-developers (“P”), obtaining favourable declarations that (1) by virtue of the relevant Instruments in this case, P has been expressly granted a right of way exercisable at all times over the Road at issue, and (2) the Road fulfils the requirements, or is within the meaning and scope of regulation 18A(3)(a)(iv), with costs of both this appeal and in the Court below.
In essence, the unanimous Court (Chu VP and Barma and Au JJA) accepted P’s construction of regulation 18A(3)(a)(iv) – the first ever considered by the Hong Kong Courts – holding (at §§49 – 52) that:
1. “… the words ‘by virtue of’ are intended to carry a different meaning from ‘by’ in the Regulation…. In this respect, as submitted by Mr Denis Chang SC for P [leading Thomas WK Wong], which we accept, the phrase ‘by virtue of’ means ‘in consequence of’ or ‘because of’”;
2. “… the words ‘an instrument’ could include more than one document…. Moreover, applying its plain and ordinary meaning, an ‘instrument’ means a formal or legal document, and in the context of considering whether a right of way is granted over a land, could include a deed, agreement, plans and formal correspondences”; and
3. “Given this wider meaning of ‘by virtue of’,… the phrase ‘is expressly granted’ is not limited to the situation where the words ‘right of way’ are expressly spelt out or stated in the relevant instrument (as this would already fall under the situation where a right of way is granted ‘by’ an instrument). This phrase would also cover the situation where there are other words, drawings and diagrams in the relevant instruments which, when read singly or together properly, show clearly and unambiguously that the owner of the subject site is given a right of way over the relevant road or street”.
Applying this interpretation of regulation 18A(3)(a)(iv), the Court further concluded that:
1. (At §§79 – 80) The Deputy Judge below erred in having limited himself to looking at plans relating to Lot 1469 only to see if there was a tracing of the Road. This had further led to his erroneous failure to consider the Lot 1469 plans together with the other documents relating to Lot 1470 and with regard to their proper context in determining the question of whether a right of way over the Road was granted to the owner of Lot 1469 by the Government “by virtue” of a series or number of instruments. The Deputy Judge further erred in principle in that not only had he failed to consider all the other relevant documents and proper context before coming to this conclusion, when he ought to have, but also, as a matter of principle, an owner of a land can grant a right of way to a road to be built over his land with its location and alignment yet to be approved.
2. (At §§90 – 98) The deemed Government lease for Lot 1469 was also deemed to have included Clause 2 of GN364 (which expressly “included in [the Grant] … all the easements and appurtenances … whatsoever to the said premises …”. Among these “easements and appurtenances” was the right of way over the Road), such that even if the right of way over the Road was implied by necessity in the beginning as accepted by the Government, it had since the issue of deemed Government lease become provided for expressly by way of Clause 2. The said right of way then was assigned and passed to P by virtue of paragraph 1(c) of the Schedule to the Assignment. In the Court’s words, “Clause 2 is in the form of a standard catch-all provision, and it amounts to an express grant of all the ‘easement’ and ‘appurtenances’ related to the land. In this respect, there is no dispute that the right of way in the present case (even if it was an implied one when it was created) is an ‘easement’. In the premises, when considered in its proper context, it is plain and unambiguous that when the Government lease of Lot 1469 was deemed to have been issued…, this right of way as an easement was included under Clause 2 and has since become a right of way expressly granted thereunder. The right of way over the Road therefore also satisfies the requirements of the Regulation.”
Denis Chang SC
“Supreme at strategic planning of litigation. He takes a holistic view and his rich legal knowledge and experience means he is able to anticipate parties’ reactions accurately.”
Legal 500 Asia-Pacific 2021-2024, Commercial Disputes –
Leading Silk, Tier 1
Denis Chang is a Senior Counsel in private practice, Head of Denis Chang’s Chambers, Honorary Professor at HKU’s Law Faculty, and Council Chair of St Francis University. Appointed Queen’s Counsel in 1981, he has served as Chairman of the Hong Kong Bar Association, member of the Executive Council, and Executive Committee Member of the former Basic Law Consultative Committee etc.
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Thomas WK Wong
“Thomas is incredibly smart and hard working, and also incredibly responsive. He quickly grasps the essential features of a case, his written and oral advocacy are both excellent, and clients love him and often don’t see the need to instruct a silk if Thomas is handling the matter.”
— Legal 500 Asia-Pacific 2024, Commercial Disputes, Leading Juniors
Thomas WK Wong, FCIArb, FHKIArb, is a seasoned civil litigator who was called to the Bar and joined Chambers in 2018. Prior to that, Thomas had practised for seven years as a civil litigation solicitor, at three top-tier litigation Firms (Hogan Lovells, Clifford Chance and Wilkinson & Grist).
Both as Counsel and as a civil litigator, Thomas has handled and conducted a full range of Civil cases (as to which please see “Selected Cases” in his profile), from commercial / contract, chancery, and companies, to defamation, enforcement of arbitral awards, and judicial review. Thomas is also a Fellow of the Chartered Institute of Arbitrators and of the Hong Kong Institute of Arbitrators, and acts as both Counsel and Arbitrator in arbitrations.
This article was first published on 28 August 2024.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.