Hong Kong’s High Court has dismissed a judicial challenge from a group of owners of a private residential estate who argued they had a “legitimate expectation” that authorities would take no action against the decades-long unauthorised structures found in 95 per cent of flats in the project.
The judgment was handed down by Mr Justice Russell Coleman of the Court of First Instance on Monday, years after the Buildings Department in 2018 and 2019 ordered owners of 876 flats at the Braemar Hill Mansions in North Point to demolish their illegal structures attached to the external wall next to the kitchen.
Among the owners of the 876 flats, 555 took their cases to the Buildings Appeal Tribunal three years ago but were rejected. Of these, 489 further lodged a judicial review at the High Court against the building authorities in 2022.
The department issued demolition orders under Section 24 of the Buildings Ordinance as the additional structures were built without prior approval from the building authorities under Section 14 of the law.
It was the third enforcement action against the owners of the estate. The first attempt took place in around 1978 on at least 224 flats, but building authorities withdrew all orders upon being satisfied with the structural investigation.
The second action happened in 1991 against two cases. The owners appealed and they were allowed to keep their structures in 1993 to maintain fairness, as the rest of the homeowners among the 435 flats with unauthorised structures were allowed to keep the additions.
The owners argued that the “action and inaction” of the building authorities over the past decades had given rise to the “legitimate expectation” that they should be allowed to retain the unauthorised works as long as they remained structurally safe.
But Coleman disagreed, arguing the move to ask authorities to refrain from taking enforcement action was effectively suspending the consequence of non-compliance.
“Ordinary home-users would care very little whether their structure is designated as authorised or unauthorised under the Buildings Ordinance as long as they know the [Buildings Department] would not take action against them,” he said.
The judge also said owners should not expect to retain the unauthorised structures even when they were structurally safe.
He added that only 236 flats were found structurally safe over 40 years ago and had no update since then, while other flats were only in the process of appointing professionals to inspect.
Coleman ordered the applicants to pay the legal cost for the building authorities.
Braemar Hill Mansions, a luxury estate built in 1978 in the Mid-Levels on Braemar Hill Road, comprises 15 blocks and 925 residential units.
A 1,090 sq ft flat was sold for HK$21.68 million (US$2.78 million) in August.
