HCA2137/2004

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HCAL 145/2014IN THE HIGH COURT OF THEHONG KONG SPECIAL ADMINISTRATIVE REGIONCOURT OF FIRST INSTANCECONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 145 OF 2014------------------------BETWEEN

CHAN KAM CHUEN

1st Applicant

LIU KAM CHUN

2nd Applicant

CHAN WAI NAM,

3rd Applicant

MANAGER OF CHAN TING YU TSO,

REGISTERED OWNER OF DD 76, LOTS 6,

1696, 1720 AND 1722

CHAN KWAI FUK

4th Applicant

LAW CHUN PING,

5th Applicant

MANAGER OF LO MAN PAU TSO,

REGISTERED OWNER OF DD 76, LOT 1232

LAW PAK FUN

6th Applicant

TANG KOON YEUNG

7th Applicant

YUEN CHI FAN

8th Applicantand

DIRECTOR OF LANDS

1st Putative Respondent

SECRETARY FOR TRANSPORT2nd Putative Respondent

AND HOUSING

SECRETARY FOR DEVELOPMENT3rd Putative Respondent

------------------------Before: Hon Au J in Court Date of Hearing: 5 March 2015Date of Decision: 5 March 2015Date of Reasons for Decision and Decision on Costs: 13 March 2015________________________________R E A S O N S F O R D E C I S I O N

AND

D E C I S I O N O N C O S T S________________________________A.Introduction

1. The applicants apply for leave to apply to judicially review the decision (the Decision) effectively of the Director of Lands (the Director) to create certain easements and permanent rights (the EPRs) on certain parcels of land in DD 76 and DD 85 in New Territories North District for the purpose of Public Work Project No 5013GB (namely, the project of Liantang/Heung Yuen Wai Boundary Control Point and Associated Works) (the Project) pursuant to the Roads (Works, Use and Compensation) Ordinance (Cap 370) (the Ordinance) as described in Government Notice GN 4235 (the EPRs Notice) dated 22 June 2012.2. The applicants are either the registered owners or Manager of certain Tsos as registered owners of various lots of lands (the Lands) affected by the Project and where the EPRs are created.3. By way of the EPRs Notice issued under s 16 of the Ordinance, the Director informed, among others, the applicants that the EPRs are created over the Lands.4. The EPRs are created under s 15 of the Ordinance.5. A total of 9 grounds were originally relied on in the Form 86 (running up to 88 pages) filed on 29 October 2014. In relation to these original 9 grounds, the court echoes the putative respondents observations that they are rather confused and not easy to understand.6. However, on the date before the leave application, the applicants (now also represented by Mr Pun who was only instructed on 27February, a few days before the hearing, and is not responsible for drafting the original Form 86) filed a revised skeleton and also asked to amend the Form 86 effectively to limit the proposed grounds of judicial review to the following two principal bases:(1)The EPRs created are in effect not easements in nature but deprivation of the applicants use of the lands under Art 105 of the Basic Law. This in substance amounts to resumption of the substrata of the Lands under s 13 of the Ordinance. The Directors purported reliance on s 15 of the Ordinance to create the EPRs is thus unlawful. This is particularly so as the standard of compensation assessment under s 15 (for easements) is different from that to resumption under s 10 of the Lands resumption Ordinance (Cap 79A) (the easement arguments ground).

(2)The Decision is tainted with procedural irregularity or unfairness as the Director has failed to properly affix the EPRs Notice and/or serve the EPRs Notice on the applicants pursuant to s 16 of the Ordinance (the affixation and/or service ground).7. The putative respondents (represented by Mr Paul Shieh SC together with Ms Teresa Wu) at the invitation of the court appeared at the hearing and opposed the leave application.8. At the end of the hearing, I refused to grant leave with reasons to follow. I also said that I would decide on costs (where arguments had also already been heard) at the same time I hand down my reasons for decision.9. These are what I do now.B.Brief background

10. The relevant brief background can be summarized as follows:(1)For the purpose of the road works for the Project, the Secretary for Transport and Housing had prepared the plan nos 255228/GZP/1000 to 255228/GZP/1017 (the Plans) and the scheme (the Scheme). The general nature of the proposed works included (i) construction of an approximate 4.8 km dual 2-lane road tunnel between Princess Hill and Lung Shan (the Lung Shan Tunnel) with associated cross passages. Notice in relation to the deposit of the Plans and the Scheme was firstly gazetted under GN 7025 on 9November 2010.(2)GN 7025 identified the EPRs to be created on certain parcels of land in DD 76 and DD 85, including the Lands, for the purpose of or incidental to the works of the Project.(3)GN 7025 stated that members of the public could inspect the Plans and the Scheme free of charge, and make further enquiries with the Civil Engineering and Development Department. The public could also make objections not later than 60 days after the date of publication.(4)GN 7025 was published in 2 issues of Ming Pao and The Standard on 12 November 2010 and 19 November 2010.(5)On 12 November 2010, the Civil Engineering and Development Department affixed copies of the notice under GN 7025 within the concerned works areas.(6)GN 7025 published on 12 November 2010 and 19 November 2010, together with the Plans and the Scheme, were deposited at the North and Tai Po District Boards.(7)The Civil Engineering and Development Department had issued letters (with copies of GN 7025 published on 12November 2010 and 19 November 2010, the Plans and the Scheme) to the Rural Committees, including the Fanling District Rural Committee, requesting for their assistance to distribute GN 7025 to the village representatives and/or to inform them for collection.(8)Amendments had been made to the Scheme to accommodate design development and in view of the objections. The Amended Plans and the Amended Scheme were gazetted under GN 5861 on 9 September 2011 and 16 September 2011.(9)GN 5861 provided for public inspection of the Amended Plans and the Amended Scheme, for enquiries be made to the Civil Engineering and Development Department and for objections be made to the Secretary for Transport and Housing no later than 60 days after the first publication of the notice.(10)GN 5861 was published in Ming Pao and The Standard on 9September 2011 and 16 September 2011, and the notice under GN 5861 was affixed within the concerned work areas.(11)The applicants have not at any stage challenged the adequacy of the gazetting, publicity or notification in respect of all the above matters.(12)On 27 March 2012, the Chief Executive in Council authorized the works and the use as described in the Amended Plans and the Amended Scheme under s 11(2) of the Ordinance, as gazetted under GN2759 dated 20 April 2012 and published on 27 April 2012 and 4 May 2012 respectively.(13)On 15 June 2012, pursuant to the power delegated by the Chief Executive, the Deputy Director/Specialist of the Lands Department ordered (the Easement Order) the creation of the EPRs in, under and over the lands described in Plan No DNM 2357b Sheets 1 to 3 (the Easement Plan) for the purpose of or incidental to the works of the Project with a 3month notice period under s 15. A notice to that effect as set out in GN 4235 was prepared.(14)On 21 June 2012, the District Lands Office/North affixed notice on or near the concerned lots.(15)On 22 June 2012, the Lands Department gazetted the EPRs Notice. It was published in 1 issue of Sing Tao Daily and 1issue of The Standard on 22 June 2012.(16)Copies of EPRs Notice and the Easement Plan had been deposited at the relevant Government Offices, including District Lands Office/North District Office/North, the Tai Po District Office and the Central and Western District Office of the Home Affairs Department, and the District Lands Office (Tai Po) of the Lands Department for inspection by public free of charge.(17)On 25 June 2012, the District Lands Office/North sent two copies of the ERPs Notice and two sets of Easement Plans to the Land Registry for memorialization and registration against each and every lot mentioned.(18)On 19 July 2012, the District Lands Office/North sent copies of the EPRs Notice to the landowners whose lands were subject to the creation of the EPRs by recorded delivery in accordance with the addresses provided by the Land Registry. If the addresses provided by the Land Registry were different from the addresses kept in the A Book, an extra copy of the letter enclosing the EPRs Notice was also sent to the addresses of those affected landowners as shown in the ABook.C.REASONS FOR REFUSING LEAVEC1.Grounds not reasonably arguable with a realistic prospect of success11. In my view the proposed grounds of judicial review are not reasonably arguable. I will explain way.C1.1.The easement arguments ground

12. S 15 of the Ordinance provides as follows:15.Governor may order creation of easements and other rights

(1)The Governor may by order direct that easements or other permanent rights in, under or over land and rights of temporary occupation of land in the works area which easements and rights were proposed in the scheme mentioned in section 5 shall be created in favour of the Government for the purposes of or incidental to the works or the use.

(2)An order under subsection (1) shall specify the period of notice to be given under section 16(2) which period shall run from the day on which notice of creation of an easement or right is affixed to the land under that subsection and shall in no case expire earlier than 28days from that day.

(3)An order made under subsection (1) may contain such consequential and incidental provisions as appear to the Governor to be necessary or expedient for the purposes of the order including in particular provisions for authorizing persons to enter upon land or buildings in accordance with subsection (5) for the purpose of carrying out any operations or installing, maintaining or removing any structures or apparatus.

(4)Unless the Governor has previously revoked the order made under subsection (1), upon the expiry of the period specified under subsection (2) the easement or right shall be created in favour of the Government and the benefits and obligations thereof and of all consequential and incidental provisions made under subsection (3) shall be of full force and effect against all persons having any estate, right, share or interest in the land without any consent, grant or conveyance.

(5)No person shall, in the exercise of any power of entry referred to in subsection (3), enter upon any land which is occupied without giving at least 28 days notice of his intention so to do unless the Secretary is of the opinion that an emergency exists which necessitates immediate entry.

(6)Notice under subsection (5) shall be served on the owner and the occupier of the land.

(7)The ownership of any thing shall not be altered by reason only that it is placed in or under or affixed to any land in exercise of the rights and powers arising from or incidental to an easement or right created under this section.

(8)The Secretary shall, as soon as practicable after an easement or other permanent right has been created in favour of the Government under subsection (4), cause the creation of such easement to be noted in the register of the land kept in the Land Registry.13. Insofar as the easement arguments ground is concerned, the main thrust of Mr Puns contentions are as follows:

(1)The meaning of easements is not defined in s 15 of the Ordinance. Thus, the common law meaning of easements applies.

(2)Under common law, it is trite that an easement cannot substantially deprive the servient owner of proprietorship or possession. This meaning should equally apply to the meaning of permanent rights under s 15.(3)The EPRs created for the substantial underneath land strata of the Lands for the purposes of building road tunnel would be permanently and exclusively occupied by the Government.(4)This amounts to an exclusion of the applicants from possession of a substantial portion of their land, ie, the underground strata. This cannot be regarded as easements or permanent rights under s 15 of the Ordinance. The purported exercise of the power under s 15 to create the EPRs is thus unlawful.(5)If the Government wants to do that, she should seek to exercise the power under s 13 to resume the underground strata.

14. With respect to Mr Pun, I am not convinced it is reasonably arguable that the meaning of permanent rights under s 15 should bear the same meaning of easements as suggested. As submitted by Mr Shieh, these two terms are expressly used disjunctively and separately under s 15. If Mr Pun is correct, the term permanent rights would have added nothing to the term of easements and is thus superfluous. This cannot be the legislatures intention.15. As I think fairly accepted by Mr Pun at the hearing, the term permanent rights means and includes some permanent rights created over the land (for the purposes of or incidental to the works or their use) which are short of and less substantial than the rights that would be created by a resumption (contrasting the power under s 13 of the Ordinance). By its ordinary meaning, a permanent right so created must to a degree take away some of the rights over the use or possession of the affected land. By contrast, a resumption order would have the effect of vesting the ownership of title of the land concerned to the Government (see s 13(3)) and depriving the entire bundles of rights associated with ownership of the piece of land. In other words, as submitted by Mr Shieh, the permanent rights intended under the s 15 would and should not amount to effectively taking away or depriving the ownership (and thus all the rights pertinent to that ownership such as the right to sell the land or to use substantially the land as a whole, including the right relating to the space above and the substrata below the land). But the mere fact that certain occupational or possessory rights of some parts of the land have been restricted or deprived of by reason of the creation of the right does not necessarily make it tantamount to effectively resumption. This is particularly so as under the Schedule in Part II of the Ordinance, compensation would be assessed on the open market value of the claimants interest in the land that is diminished by reason of the EPRs.

16. In the present case, it is clear that the applicants ownership and substantial use of the Lands (as whole) is not effectively deprived of even though some substantial parts of substrata of some of these Lands have been subject to the EPRs. It also does not affect the title of the Lands (which include the rights over and under them). The applicants, notwithstanding the EPRs, are still free to deal with the Lands together with substantial portion of the substrata where the EPRs are created as title owners, subject to any diminished value caused by the loss of use or possession of those parts of the substrata. As mentioned above, this is a loss which would be compensated in value. This is my view must fall within the meaning of the permanent rights but not arguably a resumption. 17. Insofar as if Mr Pun is saying that the reference that one should have to see whether there is effective resumption instead of the creation of a permanent right is that particular part of the land where the permanent right is created, without any reference to the entire piece of the land, I am not convinced with this submission. This is so as, if counsel is correct, then almost every permanent right so created, insofar as that particular part of the land is concerned, it is a resumption, because, permanent means permanent, meaning that to that extent of the right over that part of the land, the owners corresponding right over it has been lost permanently. That in my view cannot be the intention of the legislature. This is underlined by looking at ss 5 and 15 of the Ordinance, where the use of the word land over which the major works are to be carried out and where the EPRs are to be created in, under or over. Read in that context and by reference to those words in, under or over, the reference to the word land objectively must be intended to at least also mean and refer to the entire (which includes its substratum, surface and above space) concerned land or the entire parts (which similarly includes its substratum, surface and above space) of the concerned land.18. As such, I do not accept Mr Puns contentions that, on this question, one should only focus on the use of the substrata of the relevant Lots without any reference to the use of the other parts of the Lots.19. This ground is thus not reasonably arguable. Leave to apply for judicial review on this ground should be refused.

C1.2The affixation/service ground

20. S 16 of the Ordinance provides as follows:

16.Notices of creation of easements or other rights

(1)Subject to subsection (3), notice of creation of an easement or right by order made under section 15(1) shall be-

(a)served on every person known to the Secretary as having any estate, right, share or interest in the land mentioned in the order;

(b)published-

(i)in one issue of the Gazette in both the Chinese and English languages;

(ii)in one issue of a Chinese language newspaper;

(iii)in one issue of an English language newspaper; and

(iv)by affixing a copy in the Chinese and English languages in a prominent position on or near the land mentioned in the order; and

(c)made available for inspection by the public free of charge at such offices of the Government as the Secretary may direct, during the hours when those offices are normally open to the public.

(2)A notice of creation of an easement or right shall-

(a)describe the land and the easement or right and state that an order creating the easement or right has been made under section 15(1);

(b)state where and at what times a copy of the order and a plan of the land affected by the easement or right may be inspected in pursuance of subsection(1)(c);

(c)state the day on which the notice was affixed on or near the land;

(d)state the period of notice specified by the Governor under section 15(2);

(e)declare that upon the expiry of that period the easement or right described in the notice shall by virtue of section 15(4) be created in favour of the Government for the purposes of or incidental to the works or the use; and

(f)state that any person having a compensatable interest under this Ordinance may serve a written claim upon the Secretary.

(3)Where an order has been made under section 15(1) in respect of land which was, when the order was made, a road, subsection (1)(a) of this section shall not apply.21. The applicants say the Director has failed to comply with s16(1) in relation to the obligations to (a) affix the ERPs Notice that created the EPRs, and (b) serve the ERPs Notice on the applicants.

22. In relation to the affixation of the EPRs Notice, the Director has provided evidence in the form of photos that it was affixed on site at various locations of the Lands.

23. The applicants have not made any challenges in relation to these photos as evidence of affixation of the notices.

24. Mr Pun however says the applicants have said as a matter of evidence that they have not seen the relevant notices affixed on the Lands. He refers to paragraph 102(2) to (5) of the original Form 86 (the contents of the Form 86 have been confirmed by the 1st applicants affirmation in a general manner) in support of this contention:

102.The Sixth Ground focuses on the failing of the Respondent(s) of the statutory duty to comply with certain procedural requirements under [the Ordinance]:

(2)The Respondent(s) has/have not complied with the requirement of service and affixation which are both essential in bringing the Decision to the Applicants attention;

(3)In fact, the Respondent(s) (in particular the Secretary for Development) did not ever positively provide any evidence of service or affixation under section 16 despite repeated demands;

(4)The lack of service of the notice was first raised in a letter to the Respondent(s) dated 31 July 2013 and the lack of any notice at all was raised again in a letter to the Secretary for Development dated 16 June 2014;

(5)Whilst the Respondent(s) alleged on 7 July 2014 that there had been affixation and service (latter being on 19 July 2012 and 12 October 2012), it had produced no evidence to support the same;

(footnote omitted)25. In further support, Mr Pun also relies on a letter dated 16September 2013 sent by the 1st applicant to the Secretary which stated, inter alia, the following:

60

26. Mr Pun thus submits that in this context of evidence, it is at least reasonably arguable that the Director had not affixed the EPRs Notice on the Lands in compliance with s 16(1)(b)(iv).27. With respect, this is a non-starter.

28. S 16(1)(b)(iv) requires the Director to affix the notices in a prominent position on or near the land mentioned in the order. This in my view has been demonstrated clearly to have been done by the photos (in particular, there is no evidence from the applicants to say the positions where those notices were affixed cannot be regarded as prominent ones). The assertion that the applicants have somehow not seen those notices (even if established) is neither here nor there as to the question of whether the Director had so affixed the EPRs Notice in accordance with the statutory provision. In any event, I do not accept that the above quoted evidence relied on by Mr Pun amounts to a positive case that the applicants have not seen those notices as affixed. The quoted paragraphs in the Form 86 at best only put the burden on the Director to prove that he had so affixed the EPRs Notice. It falls clearly short of saying positively that the applicants had not seen the Notice. The part of the letter relied on has nothing to do with the EPRs Notice. It refers to the lack of consultation regarding the Project, which was at a time before the EPRs order was even made and thus the need to issue and affix the EPRs Notice.

29. For these reasons, the ground relating to the failure to affix the EPRs Notice in compliance with s 16(1)(b)(iv) is without merits. No leave should be granted on this basis.

30. For the ground in relation to the failure to serve the EPRs Notice on the applicants in accordance with s 16(1)(a), Mr Puns arguments run as follows:

(1)S2(2) of the Ordinance provides expressly that the service needs to be done either by hand or by registered post.(2)The Director in the evidence filed now confirms that that was only done through recorded delivery, which is therefore not either by hand or by registered post.

(3)The Director had therefore failed to comply with the statutory requirement on service. This amounts to procedural irregularity or unfairness, which should vitiate the Decision to create the EPRs.

31. This ground is not reasonably arguable:

(1)The relevant decision under challenge is to create the EPRs. One must therefore consider whether the claimed procedural irregularity or unfairness is pertinent or relevant to that decision making process. In other words, whether the procedural irregularity is material to that decision or its process.

(2)Under the Ordinance, there is no right to objection to the creation of the EPRs. Hence, persons having any estate, right, share or interest in the land mentioned in the EPRs Notice do not have any right to make representations or object to the creation of the EPRs which are considered necessary or incidental to the works that have been authorized. They may object to the major works proposed to be carried out in the earlier stages of the statutory process under ss 10 and 11. However, once that process is completed and the works have been authorized by the Chief Executive in Council under s11(2), there is no right to object to the thereafter creation of the EPRs necessary and incidental to the works. Persons affected by the EPRs could of course claim for compensation under s 27.

(3)In the premises, the requirement of service under s 15(1)(a) of the relevant EPRs Notice on persons that have any estate, right, share or interest in the land mentioned in the EPRs Notice is not material, pertinent or relevant to the EPRs decision making process. One can test it this way: assuming that the Director had complied with the means of service (instead of serving it by recorded delivery), what different things the applicants would have been able to do vis--vis the decision to create the EPRs. Mr Pun rightly accepted that there was probably nothing except perhaps they could have a full 12-month period provided under s 28 and the Schedule under Part II to make the claim for compensation, instead of a shorter time given that the applicants alleged that they only came to know about the EPRs at a later time. This (ie, the applicants had had a shorter period to make the claim) even if correct (which I am not determining), has nothing to do with the decision to create EPRs, but only in relation to the applicants claim for compensation. Insofar as that is concerned, even if Mr Pun is right to say that the shorter period would have prejudiced the applicants preparation to make the claim (where there are in fact no such suggestions put forward by the applicants in evidence), it is pertinent to note that the Lands Tribunal (which deals with the compensation claims) has ample discretion on wide bases to extend time under s 28 of the Ordinance.

(4)In the premises, it is clear to me that the claimed procedural irregularity or unfairness is not material or relevant to the Decision or its making process. This therefore cannot constitute an arguable ground to judicially review the Decision.32. I therefore would also not grant leave on this basis.

C2.Delay and no extension of time

33. The relevant Decision was made in June 2012. From the applicants own evidence, leaving aside the complaint about the failure to serve the EPRs Notice in accordance with s 16(1)(a), the applicants came to know about the creation of EPRs by October 2012 (see the 1stapplicants letter to the Secretary dated 31 July 2013). The application for leave to apply for judicial review was only made on 29October 2014. It was thus made seriously out of the 3-month period under O 53 r 4. The applicants thus also seek extension of time to apply for judicial review. The putative respondents oppose any extension of time to be granted.

34. Given that I have in the above refused leave on the lack of reasonably arguable grounds, strictly speaking it is unnecessary for me to deal with extension of time. However, given that this is fully argued, for the sake of completeness, I would briefly deal with this part of the application as well.

35. If necessary, I would have refused to grant any extension of time for the following reasons.

36. It is common ground to adopt the applicable principles summarized by G Lam J in Re Thomas Lai [2014] 6 HKC 1 at paragraph45 on whether to grant extension of time in a judicial review application:45.What may constitute a good reason for extending time cannot of course be defined. It seems to me it is in most cases a multi-faceted question the answer to which depends on the circumstances of each case. Nor can the factors relevant to the question be exhaustively set out, although the following matters are likely to be of significance:

(1)The length of the delay. Obviously the longer the delay, the more cogent the reason has to be for extending time.

(2)An explanation for the delay. While O53 r4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is simply common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicants request for what is after all an indulgence to be granted to him in the courts discretion. It will be noted that in R v Commissioner for Local Administration, ex parte Croyden London Borough Council, supra, Woolf LJ referred to an applicant who has behaved sensibly and reasonably.

(3)The merits of the substantive application. Again it is common sense that the merits of the challenge of the administrative decision is a significant matter to be taken into account. It is however by no means the sole criterion. As Litton NPJ has said, where an applicant is many months out of time, leave may be refused however strong the complaint might otherwise be: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at p 693B-C. Likewise, HartmannJ said in LawChun Loy v Secretary for Justice, supra, at 13:

In summary, any person who seeks by way of judicial review to challenge a public law decision is from the outset under a clear warning: sleep on your rights and, even if your cause is meritorious, you may find the gates locked against you.Mr James Lee who appears for the applicant submits that it is sufficient for present purposes to see whether the applicant has a reasonably arguable claim which enjoys a realistic prospect of success. But that is the threshold for applications for leave lodged within time. Where the applicant is out of time, the court is in my view entitled, in an appropriate case, to delve more deeply into the merits. Its function is not just to filter out the unarguable, but also to see whether indulgence in the form of extension of time should be granted to the applicant.

(4)Prejudice. The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(5)Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event, are also relevant considerations. I shall return to these aspects at the end.37. In my view, looking at those factors as set out in Re Thomas Lai in the circumstances of the present case, it is clearly a case where Iwould not exercise my discretion to extend time for the following reasons:(1)The length of delay is any view a substantial one. It is for almost 2 years (from October 2012 to October 2014) or at the least 19 months (from March 2013 to October 2014).(2)The explanation for the delay relied on by Mr Pun is that since March 2013, the applicants had been ascertaining with the Director as to whether the Director had served the EPRs Notice on them by way of registered post or by hand in compliance with s 16(1)(a) and s 2(2). That lasted until September 2014 by way of correspondence, whereby the authority had been shifting its position back and forth between by hand and by registered post. It is thus, says Mr Pun, not unreasonable for the applicants to have waited and clarified with the authority in order to properly consider whether there was any ground to challenge the Decision on the basis of service as well. The applicants should therefore not be criticized or prejudiced for taking this non-confrontational stance. With respect, this does not amount to good reason or explanation for the delay. First, it is Mr Puns position that the easements argument constituted a good ground to challenge the Decision. That had nothing to do with the service consideration. It cannot be right that a party, knowing (and in any event is presumed to know the law) the time limit to bring a judicial review on what he believes to be a good ground, should be generally excused to wait for a longer time, until he could ascertain he may also be able to challenge the decision on another potential ground. This is particularly so when, as I said above, the original Form 86 contained 9 grounds of judicial review. Second, in the circumstances of this case, it is clear that although the authority was changing the position as to by exactly which means it had served the EPRs Notice, it had maintained all along the position (rightly or wrongly) that that had been done properly in accordance with the statutory requirement. That was the same even by September 2014, ie, a month before the leave application was taken out. There is nothing before this court to say what suddenly had prompted the applicants by then to think that they then had a case to challenge the Decision on the basis of service, and thus finally taking out the leave application on, amongst others, that ground too. In the premises, I cannot see how and why it can be said that it had been reasonable for the applicants to have waited for more than one year to see whether they had a good ground to complain about service. I therefore do not accept that the applicants have provided good reasons or explanation for the substantial delay.

(3)The merits of the substantive application: For the same reasons I have stated above, even if I were wrong to say that the grounds are not reasonably arguable, their merits are in my view not so compellingly strong so as to outweigh the very substantial delay and the lack of good reasons for the delay so as to justify exercising the discretion to extend time.

(4)Prejudice: The Project has already begun and the delay in bringing the challenge would certainly have an impact on and caused delay in the work. That would have an impact on due public administration. Viewed against this, the prejudice that may be caused to the applicants is outweighed in the scale of the exercise of discretion: any such prejudice is caused by the delay itself coupled with lack of good reasons for the delay. Further, the applicants are entitled to, and have in fact claimed, for compensation for the creation of the EPRs. Finally, it is the applicants own case (see below) that they would take the objections again in private proceedings.(5)General public importance and that the questions are likely to have been resolved by the courts: In my view, the proposed judicial review is mainly to advance the applicants private interest and thus does not concern principally any points of great general public importance. In particular, the easements and service arguments are also facts sensitive pertinent to the circumstances of this case. This cannot justify the extension of time.

(6)Finally, Mr Pun says, if the court refuses to hear the application on merits for the reason of delay, the issues are likely to come up again and in any event needed to be dealt with by the court perhaps in a private civil or criminal proceedings context given that the applicants are likely to contest the EPRs by way of say an injunction application or obstruction against the carrying out of the construction of the tunnel. This is a relevant factor that the court should consider whether to extend time: R (British Waterways Board) v The First Secretary of State [2006] EWHC 1019 (Admin) at paragraphs 16-17 per Collins J (as he then was), citing also Wandsworth LBC v Winder [1985] AC 461. In my view, when the court take into account this factor in considering whether to exercise the discretion to extend time, it must still be looked at together with all the other relevant factors in each case. Mr Pun is not, I think, saying that this must be considered as an overwhelming factor. This must be right. In the present case, given the substantial and serious delay with the lack of any good reasons, and the relatively weak merits of the grounds, I do not think the fact that the applicants have indicated that they may well raise the same issues in their potential application for injunction or obstruction against the carrying out of the tunnel construction outweigh these factors against the grant of extension. In particular, as Mr Shieh submits, it is up to the applicants to decide whether they do eventually take out such injunction application in a private civil claim or even obstruct the construction (which under s 24 of the Ordinance would constitute an offence liable for imprisonment and a fine), and their rights to do so would not in any way be prejudiced.38. For all these reasons, I would also refuse to grant extension of time to the applicants to apply for judicial review.

D.Costs

39. The putative respondents ask for costs of this application.

40. The principles governing whether costs should be awarded to a putative respondent in an unsuccessful leave application are well settled. The general rule is that an unsuccessful applicant for leave should not be required to bear costs. The court would only award costs against such an unsuccessful applicant where there are unusual or exceptional circumstances to justify doing so. The discretion is a broad one but the court should exercise that sparingly. In considering whether there are such good reasons or unusual circumstances, the court takes into account all the facts and circumstances that may be relevant to the exercise of that discretion. See: Leung Kwok Hung v The President of the Legislative Council (unreported, FACV 1/2014, 5 December 2014, Ma CJ, Ribeiro, Tang, Fok PJJ and Sir Anthony Mason NPJ) at paragraph 17 per RibeiroPJ. This court, after having guidance from previous authorities, sought to set out some of those common but non-exhaustive factors in TVB v Communications Authority (unreported, HCAL 3/2013, 22 July 2013) at paragraph 6, and I do not propose to repeat them here.41. Further, as Ribeiro PJ observed in Leung Kwok Hung, supra, at paragraph 17(2)-(4), given that leave applications are by the rules meant to proceed on an ex parte basis, one of the relevant factors the court should look at in considering costs is what has led the opposing party to attend the hearing. This must also be viewed together with the underlying merits of the application and whether that partys attendance has been of material benefit to the court, always bearing in mind that the context is the end result that the court has refused to grant leave.42. I am of the view that there are the following unusual reasons or circumstances considered together to justify awarding costs against the applicants in this case:

(1)One of the reasons the putative respondents are invited to attend the hearing is because of, as I said in the beginning, the myriad and relatively confused grounds set out in the original Form 86, which the court believed required the assistance of the putative respondents to provide a better picture and understanding of those grounds. This to that extent is caused by the applicants own making. In this regard, it is pertinent to note that it is only the day before the hearing that the easements ground (which Mr Pun now says constitutes the applicants stronger ground) is properly formulated and relied upon and most of other grounds in the original Form 86 are either not pursued or substantively consolidated and reformulated.

(2)Further, given the very substantial delay in making the application, the need for extension of time, and the apparent lack of good reasons to explain the delay on the face of the Form 86, the court also considered it to be necessary to hear from the putative respondents for the purpose of the leave application.(3)The putative respondents attendance has been of material benefit to the court in the areas of evidence and legal submissions. (4)The application is made to advance the applicants own private interest.

(5)The relative lack of merits of the application. I further repeat the observation at subparagraph (1) above.(6)The applicants effectively had a roll-up substantive hearing of the judicial review. 43. For these reasons, I would order that costs of this application be to the putative respondents, to be taxed if not agreed, with certificate for two counsel.44. Lastly, I thank counsel for their assistance.

(Thomas Au)

Judge of the Court of First Instance

High CourtMr Hectar Pun and Mr Ernest CY Ng, instructed by Wong & Co, for the applicantsMr Paul Shieh SC, leading Ms Teresa Wu, instructed by Department of Justice, for the putative respondents See paragraphs 59-82 of the draft Amended Form 86.

See paragraphs 96-104 of the draft Amended Form 86.

This is largely taken from the putative respondents skeleton, which appears to be not in any material controversy.

In support, Mr Pun relies on these authorities: Reilly v Booth (1980) 44 Ch D 12, 26; Taff Vale Railway Company v Cardiff Railway Company [1917] 1 Ch 299, 316-318; Grigsby v Melville [1972] 1 WLR 1355, 1364, and Gale on Easement (19th ed, 2012), paragraphs 1-54 to 1-71 and the authorities cited therein.

Exhibit CSL-9.

See Exhibit CCFM-3 at hearing bundle C/504-6.

In relation to this, it must also be noted that under s 15(4) of the Ordinance, the EPRs would as a matter of law be formally created and assume force and effect on the expiry of the stated notice period which is counted from the date of the affixation (not service) of the relevant notice.

It again must be noted that the 1-year period is to be counted from the date of the creation of the EPRs, which as mentioned above, is the date on the expiry of the notice period counting from the date of the affixation (but not service) of the notice. In the present case, the EPRs Notice was affixed on 21 June 2012 and the 3-month stated notice period would thus expiry in late October 2012. In this respect, it must be noted that it is the applicants own position stated in the 1st applicants letter dated 31 July 2013 to the Secretary (see footnote 9 below) that the owners of the affected lands were informed of the creation of the EPRs in October 2012.

Exhibit CCFM-1 at Hearing Bundle C/486-488 at 487.

See another latter by the applicants to the Secretary dated 10 March 2013 (exhibit CSL-14 at Bundle C/470) where they dealt with the question of the fact that the EPRs had been created over their lands.