TOWN PLANNING BOARD v. TOWN PLANNING APPEAL BOARD

CACV 25/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2014

(ON APPEAL FROM HCAL 26 OF 2013)

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J U D G M E N T

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Hon Poon J (giving the Judgment of the Court) :

A. INTRODUCTION

1.  This is an appeal by the interested parties (“the Developers”[1]) from the judgment of Godfrey Lam J dated 16 January 2014.[2]

2.  The principal issue raised before the learned Judge, as is before this Court, is whether, on a proper construction, a decision by the Town Planning Board (“the Board”) on the compliance of a planning condition imposed under section 16(5) of the Town Planning Ordinance (“the Ordinance”)[3] on planning permission granted pursuant to section 16(3) is “a decision of the Board under section 16” within the meaning of section 17(1), thus entitling the aggrieved applicant to apply to the Board for a review of that decision and, if necessary, to appeal further to the Town Planning Appeal Board (“the Appeal Board”) against the Board’s decision on review under section 17B.[4]

3.  The Judge answered the principal issue in the negative.  It now falls upon us to construe the relevant provisions and decide what the correct answer is.

4.  The background against which the principal issue arose may be summarized as follows.[5]

B. BACKGROUND

B1. Planning permission with conditions

5.  On 1 August 1992, the Developers, through its agent,[6] applied to the Board for planning permission under section 16(1) of the Ordinance for a proposed development scheme on a site situated in Nam Sang Wai and Lut Chau, North West New Territories.[7] The application consisted of, among other documents, a Master Layout Plan (“the Original MLP”).  The development scheme comprised an 18‑hole golf course golf course, 2,550 residential units and a nature reserve.

6.  On 9 October 1992, the Rural and New Town Planning Committee of the Board (“the RNTP Committee”) rejected the application.  On review, the Board affirmed the RTNP Committee’s decision on 11 June 1993.  By a decision dated 26 August 1994, the Appeal Board allowed the Developers’ appeal and granted planning permission for the proposed development, subject to 27 planning conditions numbered as (a) to (z) and (aa).

7.  Planning conditions (a) and (b) dealt with various definitions and the areas covered by the planning permission.  Condition (z) imposed a 5‑year time limit for the permission from the date of its grant.

8.  Other relevant conditions are conditions (c), (d), (f) and (y) :

“Master Layout

(c) Submission and implementation of a detailed master layout plan including phasing/programming of development, schedule of housing type and parking spaces to the satisfaction of the Director of Planning or of the Board

     Master Landscaping

(d) Submission and implementation of a detailed master landscape plan to the satisfaction of the Director of Planning or of the Board

…

     Density and height

(f) The Nam Sang Wai Development shall not exceed a Domestic Site Coverage of 12% and the following restrictions on Gross Floor Area (‘GFA’)

(i) Domestic GFA: 306,581 m²

(ii) Commercial GFA: 5,000 m²

(iii) Club Houses GFA: 8,000 m²

…

     Schools

(y) Provision and reservation of sites for the construction of primary and secondary schools to the satisfaction or of the Director of Education or of the Board.”

9.  What followed from the appeal to the Appeal Board were protracted legal proceedings beginning with a judicial review and going up all the way to the Privy Council in 1996 when the Appeal Board’s decision was eventually upheld.[8]

B2.    The Board’s Decision

10.  Since then, the Developers submitted plans and reports pursuant to the planning conditions but they were not accepted by the relevant Government departments.  Upon the Developers’ applications, the time limit to commence the proposed development was ultimately extended to 18 December 2010.

11.  On 20 September 2010, in purported compliance of conditions (c), (d), (f) and (y), the Developers, through their consultants,[9] submitted a set of modified master layout plan (“Modified MLP”), Master Landscape Plan, Environmental Assessment Study, Traffic Impact Assessment and Drainage Impact Assessment to the Planning Department with a request that copies of the materials be sent to other departments or offices concerned.  Importantly, in the covering letter accompanying the materials submitted, it is stated that as a result of numerous rounds of discussion with Government departments on ecological mitigation requirements, modifications had been made to the Modified MLP as compared to the Original MLP.  The modifications were then described in some detail.

12.  In October 2010, the Developers received comments from different Government departments concerned through the District Planning Office (“DPO”).  They did not consider the technical reports satisfactory.

13.  On 29 October 2010, the Developers applied to the Board for a further extension of time for commencement of development for three years.  It was rejected by the RNTP Committee on 10 December 2010.[10]

14.  On 1 December 2010, the DPO replied to the Developers, pointing out :

“[the Modified MLP] deviates substantially from the approved development scheme and therefore cannot be considered in the context of fulfilment of condition (c) of the planning permission … Your submission of Master Landscape Plan, Environmental Assessment Study, Traffic Impact Assessment and Drainage Impact Assessment … which are all based on the modified MLP, also cannot be considered in the context of fulfilment of the corresponding conditions.”

15.  As noted by the Planning Department, the main deviations from the originally approved scheme included a change in the overall development concept with the introduction of wetland enhancement area of 33.5 hectares (ha), a reduction in the size of the proposed golf course from 43 ha (18‑hole) to 10 ha (9‑hole), a reduction of the total area of water bodies for golf course from 13 ha to 2.87 ha, and a revised layout of residential use which is concentrated at the central and southern parts of the site in one large cluster (instead of being interwoven among the fairways of the golf course in separate and distinct clusters as originally proposed and approved).

16.  The Developers’ solicitors wrote back on 6 December 2010, disagreeing with the Planning Department’s view that there had been substantial deviations from the approved scheme.  Consequently, the Board decided to hold a meeting on 17 December 2010 (“the Meeting”) to consider the Modified MPL and other documents submitted by the Developers.

17.  As noted by the Judge,[11] it is common ground that the matter should be and was regarded as a submission of plans and reports pursuant to the planning conditions, seeking the Board’s indication that they had been submitted to its satisfaction as required by the planning conditions. The practice of the Board in this regard is set out in its “Town Planning Board Guidelines for Class A and Class B Amendments to Approved Development Proposals”[12] :

“8. Under section 16(5) of the Ordinance, the Board may grant planning permission subject to such conditions as the Board thinks fit. In general, the applicant is required to fulfil an approval condition to the satisfaction of the Government department concerned or of the Board. No separate planning application under section 16A(2) will be required for amendments made to the approved development proposal as a result of fulfilling the approval conditions of the planning permission specified by the Board. Should there be disagreement over the fulfilment of the approval conditions between the applicant and the Government departments concerned …, the matter will be submitted to the Board for consideration. … Besides, in complying with the approval conditions, there should not be major changes to the original approved development proposal. A fresh planning application under section 16 will be required if major changes to the approved development proposal are involved.”

18.  Before the Meeting, the Developers wrote to the Board on 15  December 2010.  They argued that the Planning Department was wrong in taking the view that the Modified MLP deviated substantially from the approved scheme and therefore could not be considered in the context of fulfilment of condition (c).  The Original MLP was not cast in stone.  The modifications made in the Modified MLP were necessitated by the need to satisfy the other planning conditions.  It would be a derogation from grant to give permission and yet prevent the applicant from fulfilling some of the conditions for the permission.  The Modified MLP was an improvement over the original MLP in terms of planning, environmental and ecological consideration.

19.  At the Meeting, the Planning Department tabled TPB Paper 8699 before the Board for its consideration.  After deliberations, the Board concluded that the Modified MLP involved major changes when compared to the approved scheme and that as such a fresh planning application would be required if the Modified MLP were to be considered; that the technical reports were considered not acceptable by the relevant Government departments, and that conditions (c), (d), (f) to (w) could not be regarded as having been satisfactorily complied with (“the Board’s Decision”).

20.  By a letter dated 10 January 2011, the Board informed the Developers of the Board’s Decision.  The Developers then, by their solicitors’ letter dated 27 January 2011, applied for a review of the Board’s Decision under section 17.[13]  The Board considered the request for review at a meeting on 8 April 2011.  It concluded that it had no power to review the Board’s Decision. The Developers were informed of the same on 29 April 2011.  Correspondence ensued.  Eventually on 28 June 2011, the Developers appealed to the Appeal Board under section 17B.

B3. The Appeal Board’s Decision

21.  In its oral decision on 30 October 2012 followed by its written decision dated 11 December 2012, the Appeal Board ruled in favour of the Developers (“the Appeal Board’s Decision”), holding that :

(1) the Board’s determination of whether the planning conditions had been fulfilled was a decision reviewable by the Board itself under section 17; and

(2) the Board’s decision that it had no jurisdiction to review such determination was itself a decision made on a review under section 17 and therefore capable of being appealed against to the Appeal Board under section 17B.

C. JUDGMENT BELOW

22.  The Board then applied for judicial review against the Appeal Board’s Decision.  The Appeal Board did not appear.[14]  The Developers appeared as interested parties.  In light of the wholesale attack launched against the Judge’s reasoning and conclusion in the grounds of appeal, it is necessary to go through his judgment in some detail.

23.  The Judge began by focusing, as counsel for the parties did, on the following question :

“Do the Developers have a right under section 17 to require the Board to review its decision on 17 December 2010? This turns on whether that is a ‘decision of the Board under section 16 within the meaning of section 17(1).”

24.  The Judge first examined the statutory framework and the relevant legislative history pertaining to sections 16 and 17,[15] the relevant amendments having been introduced in 1974, 1991 and 2004, in order to decide which of the pre-2004 and post-2004 version of section 17(1) applied to the present case.[16]  He then concluded that the one applicable to the present case was the pre-2004 version.  But he went on to note that the issue before him did not depend on which of the two version applied because both parties had proceeded on the footing that the meaning of section 17(1) was relevantly the same before and after the 2004 amendment.[17]

25.  In the next section headed “Construction of the statute”, the Judge outlined the parties’ contentions as follows :

“46. The Board’s contention, both here and in the Appeal Board, is that under s.16, there are three possible outcomes for an application for planning permission, that is to say, a decision to grant permission without conditions, a decision to refuse to grant permission, and a decision to grant permission subject to conditions which the Board has power to impose under s.16(5). On the proper construction of the Ordinance as a whole, the review procedure in s.17 applies only where the applicant is aggrieved by a decision on the application for planning permission, ie a refusal of permission or a grant of permission subject to conditions. It is submitted that the avenue of review applies neither to any preceding ancillary decision, such as a decision to require verification of particulars of the application under s.16(2A), nor any subsequent decision, such as a decision (to the extent necessary) whether a particular condition subject to which the permission was granted has been fulfilled.

47. The developers’ contrary contention has the virtue of simplicity.  They submit that the phrase ‘a decision of the Board under section 16’ in s.17(1) literally means any decision under s.16, that a decision as to whether plans and reports have been submitted to the Board’s satisfaction pursuant to the planning conditions previously imposed is a decision pursuant to the implied ancillary power of the Board arising from s.16(5) and therefore is a decision under s.16, and that there is no reason why the literal meaning should not be adopted.”

26.  The Judge next looked at the relevant Hansard when amendment to section 17(1) was sought to be introduced in 1991 :

“50. The relevant passage is this. In moving the 1991 Amendment Bill on 8 May 1991, the Secretary for Planning, Environment and Lands said in the Legislative Council:

The Administration, however, agreed that a new independent appeals body for appeals against the Board’s decision on planning applications under section 17(7) could be introduced ahead of the overall review. The Bill introduced today sets out the establishment, powers, membership and procedures of that appeals body. In addition, it provides for a further right of review in respect of conditions imposed on planning permission, which is currently not provided for in the existing Ordinance, as an applicant can only ask the Board to review its decision of refusal of planning permission.

 The amendments contained in the Bill will make the following changes to the Ordinance. They will:

(a) provide a right of review in respect of conditions imposed on the planning permission;

(b) provide for an independent Appeal Board to be substituted for the Governor in Council under section 17(7);

(c) … ;

(d) …;

(e) …

 The basic approach is to substitute the Appeal Board for the Governor in Council as the independent channel of appeal against the Board’s decision on a review under section 17, extended to include the right to review of an applicant aggrieved by the conditions the Board imposed on a planning permission.

See Hansard for 8 May 1991 at pp.1913 & 1914 (emphasis added).”

27.  The Judge then observed that the passage in Hansard quoted is a ministerial statement of mischief at which the amendment to section 17(1) was aimed, namely, that the right of seeking a review was then available only where the Board had refused planning permission, and not to an applicant aggrieved by the conditions imposed by the Board for planning permission.  He took the view that for the purpose and to the extent of identifying this mischief the passage is, on authorities, clearly admissible.[18]

28.  The Judge went on to observe that construing the statute in the way as respectively contended by the Board and the Developers would redress the mischief although in the latter’s case, it would do more by widening the availability of review considerably further than was necessary for that purpose.  He then concluded whether the Legislature intended to do so could not be answered by reference solely to the ministerial statement but must be ascertained from the language of the statute as a whole.[19]

29.  The Judge then discussed the scheme of sections 16 and 17.  After careful analysis, the Judge said that the two sections must be read together as they form a scheme and that having done so, he accepted, in effect, the submission of Mr Litton, who appeared for the Board, that the decision under section 16 referred to in section 17(1) is the decision on an application referred to in section 16(6), which is in turn a reference to the application for planning permission made under section 16(1).[20]  Significantly, the Judge rejected the Developer’s argument that the power to decide whether further materials have been submitted pursuant to planning conditions imposed is an implied ancillary power that flows from the power to impose conditions under section 16(5) and that therefore it is also an act that the Board may do on review under section 17(6), noting that this argument missed the point and failed to give weight to the structure of section 17(6).[21]

30.  The Judge next discussed the nature of the Board’s Decision in the context of dealing with planning conditions imposed under section 16(5).[22]  He then addressed the Developer’s argument on the meaning of “decision” within section 17(1) :

“63. Section 17(1) of the Ordinance provides for the review of ‘a decision of the Board under section 16’. Mr Valentine Yim, appearing for the developers, submits that the word ‘decision’ simply means any decision, any act of making up one’s mind. In my view, however, the meaning of s.17(1) requires a more nuanced approach. ‘Decision’ is a word whose meaning depends on the context. While it sometimes means simply any concluded opinion, it has at other times a narrower meaning that refers to a determination or judgment: see eg Loade v Director of Public Prosecutions [1990] 1 QB 1052; R v Lands Tribunal, ex p City of London Corp [1982] 1 WLR 258. As is stated in Bennion on Statutory Interpretation (5th ed) at p.864, if the grammatical meaning is ambiguous then any of the possible grammatical meanings may be described as the literal meaning. I do not therefore think that the literal meaning rule carries the argument very far.

64. Moreover, it is not just any decision of the Board, but a decision of the Board under s.16, that is subject to review. The word ‘under’ is another chameleonic word whose meaning is affected by its context. The conclusion of the Board in this case that it was not satisfied by the further plans and reports submitted is, in my view, more properly characterised as a decision pursuant to the terms of the conditions imposed by the Appeal Board under s.16(5) in 1994, rather than as a decision under s.16.

65. It has been discussed in argument whether the power of the Board to express its satisfaction or otherwise with the further plans and reports submitted is an ancillary power implied by virtue of s.40(1) of the Interpretation and General Clauses Ordinance (Cap.1). That subsection provides:

Where any Ordinance confers upon any person power to do or enforce the doing of any act or thing, all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.

66. With respect, this seems to me to be an arid question.  There is no dispute between the parties that the conditions here were lawfully imposed (by the Appeal Board) and that Board has power to consider the plans and reports submitted pursuant to the conditions and express its opinion whether they are satisfactory.  Whether or not that power is derived from s.40(1) does not in my view affect the analysis.”

31.  The Judge then identified three anomalies arising from the Developers’ contention under the post-2004 version of the legislation which militates against their construction.[23]

32.  The Judge next rejected the Developers’ attempt to compare section 17(1) with section 4(4) of the Chinese Temples Ordinance[24] and section 11 of the Child Care Services Ordinance,[25] observing that each statue must be considered in its own terms and its overall statutory context.[26]

33.  The Judge next considered the Developers’ argument based on the need for a merits-based appeal procedure and rejected it for the three reasons stated.[27]

34.  Finally, the Judge rejected the Developers’ argument that the interpretation advocated by the Board is inconsistent with Article 35 of the Basic Law (“BL 35”) as misplaced,[28] citing, among other cases, Stock Exchange of Hong Kong Ltd v New World Development Co Ltd.[29]

35.  In conclusion, the Judge held that on a true construction, the Board’s Decision is not a decision of the Board under section 16 within the meaning of section 17 and that the Board therefore had no power to review it under section 17 and was right in refusing to do to on 8 April 2011.[30]  He further held that the Appeal Board’s Decision is vitiated by an error of law.  Allowing the judicial review, he made an order of certiorari bringing up into the High Court and quashing the Appeal Board’s Decision.[31]

D. MR ISMAIL’S PRINCIPAL ARGUMENT

36.  The Developers raised three grounds of appeal, contending that their construction of sections 16 and 17 was correct and ought to have been upheld by the Judge.  Ground 1 complains that the Judge erred in deciding that the Board’s Decision was not a “decision under section 16” within the meaning of section 17.  As a corollary, Ground 2 complains that the judge erred in deciding that the Board had no power to review the Board’s Decision.  Ground 3 complains that the Judge erred in the matters listed in subparagraphs (a) to (m),[32] which amount to a wholesale attack against virtually every aspect of the Judge’s reasoning and a repetition of all their arguments advanced before the Judge.  Subparagraph (n) wraps up the grounds of appeal by complaining that the judge erred in deciding that the remaining arguments of the Developers were not persuasive of the proper interpretation of sections 16 and 17.

37.  Mr Ismail, for the Developers,[33] adopted all the grounds of appeal in his written submissions.  He then divided them into six different sections, that is, Sections E1 to E6, and elaborated them in a more structured manner.[34] In his oral submissions, he dwelled mainly on what is effectively his principal argument underpinning the Developers’ construction on sections 16 and 17.  That argument, based on implied ancillary power, advocated for a literal interpretation of “a decision of the Board under section 16”.  It is basically a repetition of the Developers’ main argument summarised by the Judge at [47] of his judgment.

38.  Mr Ismail’s principal argument can be outlined as follows[35] :

(1) The Board is a creature of statute having been created by the Ordinance[36] and has only such jurisdiction as has been conferred upon it by the Legislature.

(2) The Board’s primary powers are in sections 16 and 17.

(3) However, these primary powers include ancillary or incidental powers by virtue of :

(a) section 40 of the Interpretation and General Clauses Ordinance (“IGCO”),[37] citing R v Rollins[38]and B v The Commissioner of Independent Commission Against Corruption;[39] or

(b) common law, citing A v The Securities and Futures Commission[40] and Dr Li Wang Pong Franklin v The Medical Council of Hong Kong and Another.[41]

(4) Accordingly, the Board has power to grant permission with conditions under section 16(3) and 16(5), it also has the ancillary or incidental powers, deemed to be conferred by (meaning derived from) section 16(5) itself by virtue of section 40 of IGCO and/or implied at common law.

(5) The Board’s Decision (which is an “act” under section 40(1) of IGCO) was based on or derived from the Board’s ancillary or incidental powers included in the Board’s primary powers in sections 16(3) and 16(5) by virtue of section 40 of IGCO and/or implied at common law.

(6) Given that this is the basis of the Board’s power, it follows that the Board’s Decision was “a decision of the Board under section 16” amenable to review by the Board under section 17(1) and to appeal to the Appeal Board under section 17B as it was “a decision of the Board on a review under section 17”.

39.  Basing on that principal argument, Mr Ismail went on to criticize the Judge for summarily dismissing the implied ancillary power argument as “an arid question”.  He further submitted that the Developer’s construction fitted well in the structure of section 17(6).  The implied or incidental ancillary power to decide whether further materials have been submitted pursuant to planning conditions imposed depends upon the existence of the primary powers (under section 16(3)) to determine applications (made under section 16(1)) and to impose conditions upon such applications (under section 16(5)) : it is itself part and parcel of the “structure” since without such implied ancillary or incidental power, the Board would be unable to make such decision, the Board being a creature of statute.

40.  This brings us to construe sections 16 and 17.

E. CONSTRUING SECTIONS 16 & 17

41.  As noted, the parties disputed before the Judge as to which version of sections 16 and 17 applied in the present case.  On appeal, that is no longer an issue.  They accept, and rightly in our view, that because of the transitional provisions, the pre-2004 version, introduced in 1991, applies to the present case.  Those provisions read :

“Section 16

(1) Where a draft plan or approved plan, whether prepared or approved before or after the commencement of the Town Planning (Amendment and Validation) Ordinance 1974 (59 of 1974), provides for the grant of permission for any purpose, an application for the grant of such permission shall be made to the Board.

(2) Any such application shall be addressed in writing to the secretary to the Board and shall be in such form and include such particulars as the Board thinks fit.

(3) The Board shall within 2 months of the receipt of the application, consider the same in the absence of the applicant and, subject to subsection (4), may grant or refuse to grant the permission applied for.

(4) The Board may grant permission under subsection (3) only to the extent shown or provided for or specified in the plan.

(5) Any permission granted under subsection (3) may be subject to such conditions as the Board thinks fit.

(6) The secretary to the Board shall notify the applicant in writing of the Board’s decision on an application under this section, and where the Board refused to grant permission shall also notify the applicant of his right to a review under section 17.

…

Section 17

(1) Where an applicant is aggrieved by a decision of the Board under section 16, the applicant may, within 21 days of being notified of the decision of the Board, apply in writing to the secretary to the Board for a review of the Board’s decision.

(2) On receipt of an application under subsection (1), the secretary to the Board shall fix a time and place for the review, which shall be a day not more than 3 months of the receipt of the application, and shall give 14 days’ notice thereof to the applicant.

(3) On a review under this section the applicant or his authorized representative may attend before the Board and shall be given an opportunity to make representations.

(4) If the applicant or an authorized representative does not attend at the time and place fixed for the review, the Board may proceed with the review or adjourn it.

(5) On a review under this section the Board shall consider any written representations submitted by the applicant.

(6) On a review under this section, the Board may, subject to section 16(4), grant or refuse to grant the permission applied for and may exercise the powers conferred by section 16(5).”

42.  In HKSAR v Cheung Kwun Yin,[42] Li CJ summarised the modern approach to statutory interpretation as follows :

“Approach

11. In interpreting a statute, the court’s task is to ascertain the intention of the legislature as expressed in the language of the statute. This is of course an objective exercise. The court is not engaged in an exercise of ascertaining the legislative intent on its own. As Lord Reid pointed out in Black-Clawson International Ltd v Papierwerke Waldhof - Aschaffenburg AG [1975] AC 591 at p.613G:

We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.

12. The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning. Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise. In HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at p.606E, Sir Anthony Mason NPJ stated:

The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.

See also Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at p.154B-C. As the Court pointed out in Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1 at p.14A-C, the mischief rule is an early example of the purposive approach. And the purposive approach (including the mischief rule) has been reflected in Hong Kong in s.19 of the Interpretation and General Clauses Ordinance (Cap.1).

13. The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law. See Town Planning Board v Society for the Protection of the Harbour Limited at p.13I-J and Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at p.461.

14. The purpose of a statutory provision may be evident from the provision itself. Where the legislation in question implements the recommendations of a report, such as a Law Reform Commission report, the report may be referred to in order to identify the purpose of the legislation. The purpose of the statutory provision may be ascertained from the Explanatory Memorandum to the bill. Similarly, a statement made by the responsible official of the Government in relation to the bill in the Legislative Council may also be used to this end. See PCCW-HKT Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR 337 at p.351F-J and Director of Lands v Yin Shuen Enterprises Ltd (2003) 6 HKCFAR 1 at p.15A-H.”

43.  Applying this approach, it is necessary to ascertain the proper context of sections 16 and 17 to see if the literal meaning contended for by Mr Ismail is correct.  In this respect, a brief survey of the legislature history leading up to the 1991 amendments is informative.

44.  The Ordinance was enacted in 1939.  It was concerned with the systematic preparation and approval of plans only.  It contained no provision for the grant of planning permission, review or appeal.  Such provisions were introduced in the form of sections 16 and 17 respectively in 1974.[43]

45.  Under the 1974 section 16 :

(1) an applicant may apply to the Board for planning permission – subsection (1);

(2) the Board may grant or refuse an application for permission – subsection (3); and

(3) the Board may impose conditions on any permission it granted under subsection (3) – subsection (5).

46.  Under the 1974 section 17(1), an applicant may apply to the Board for a review of its decision in these terms :

“Where the Board refused to grant permission under section 16, the applicant may, within 21 days of being notified of the decision of the Board, apply in writing to the secretary to the Board for a review of the Board’s decision.”

Couched in such narrow terms, the decision of the Board liable to be reviewed was limited to a refusal to grant planning permission under section 16 and no more.

47.  The 1974 section 17(6) entitled an applicant to appeal to the Governor in Council from a decision of the Board on review.  Because of the very limited scope of review, the appeal was confined to the Board’s decision made on the review of a refusal to grant planning permission and no more.

48.  That was the position since 1974 until the relevant amendments to sections 16 and 17 were introduced in 1991.  However, Mr Ismail submitted[44] that as part of the pre-1991 statutory context, the Board had derived implied ancillary power to decide if planning conditions had been fulfilled under section 40 of IGCO and/or at common law; that the pre-1991 section 17(1) would have been interpreted in a manner which allows for a review of the approval conditions; and that the words “a review of the Board’s decision” in the pre-1991 section 17(1) were broad enough to encompass a decision taken in relation to an approval or satisfaction with details under a planning condition.  Given the context, Mr Ismail argued that the Developers’ construction of sections 16 and 17 was consistent with the purpose of the 1991 amendments.  We are unable to accept this line of submissions.  For it is an artificial attempt to read into the pre-1991 section 17(1) something that the Legislature had clearly not provided for.  That is simply impermissible and must be firmly rejected.

49.  In 1991, sections 17A, 17B and 17C were introduced. The Governor in Council, as the appellate body hearing appeals from the Board, was now replaced by the Appeal Board.  At the same time, section 17(1) was amended to read :

“Where an applicant is aggrieved by a decision of the Board under section 16, the applicant may, within 21 days, of being notified of the decision of the Board, apply in writing to the secretary to the Board for a review of the Board’s decision.”

The scope of review was now extended beyond a refusal of planning permission.     As rightly observed by the Judge, the amendment to section  17(1) aimed at addressing the mischief that until then an aggrieved applicant could only apply to review a refusal of planning permission and no more.

50.  By 1991 and before 2004, the statutory scheme of sections 16 and 17 is, in gist, as follows :

(1) Where a draft plan or approved plan provides for the grant of permission for any purpose, an applicant may apply to the Board for the grant of such permission – section 16(1).

(2) The Board shall within the time prescribed consider the application in the absence of the applicant and may grant or refuse to grant the permission applied for only to the extent shown or provided for or specified in the plan – section 16(3) read together with section 16(4).

(3) The Board may impose any condition as it thinks fit when granting a permission under section 16(3) – section 16(5).

(4) The secretary to the Board shall notify the applicant in writing of the Board’s decision on an application under this section, and where the Board refused to grant permission shall notify the applicant of his right to a review under section 17 – section 16(6).

(5) Where an applicant is aggrieved by a decision of the Board under section 16, the applicant may within the time prescribed apply in writing to the secretary to the Board for a review of the Board’s decision – section 17(1).

(6) On a review, the applicant or his authorised representative may appear before the Board – section 17(3).  The Board shall also consider any written representation submitted by the applicant – section 17(5).

(7) On a review, the Board may grant or refuse to grant the permission applied for and may exercise the powers conferred by section 16(5), that is imposing such conditions as it thinks fit – section 17(6).

51.  Within the statutory scheme, in determining an application for planning permission, the Board may make three primary decisions under section 16 :

(1) grant the application for planning permission without conditions;

(2) refuse the application for planning permission; or

(3) grant the application for planning permission with conditions.

Once the Board arrives at any of the three primary decisions in disposing of the application, the secretary for the Board is mandated by section 16(6) to inform the applicant of the same.  Where the primary decision is either a refusal or granting the permission with conditions, and if the applicant is aggrieved, he may apply for a review of that primary decision under section 17(1).  For the purpose of section 17(1), “a decision made by the Board under section 16” embraces such a primary decision only.  It does not include any incidental decision that the Board may make in the discharge of its functions under section 16, irrespective of whether the underlying power to do so is derived from any statutory provision, be it section 16(5) or section 40 of IGCO, or from the common law.  On the facts of this case, it does not include any incidental decision made in the discharge of its function under section 16(5) to determine if a planning condition imposed is satisfied.

52.  It is apparent from the above analysis that Mr Ismail’s reliance on the implied ancillary power argument is wholly misplaced. It simply does not support a wide end literal meaning for “a decision of the Board under section 16” for the purpose of section 17(1) when the statutory purpose and context is properly understood.  For this reason alone, this appeal must fail.

F. OTHER SUBSIDIARY GROUNDS

53.  What remain are those grounds of appeal and Mr Ismail’s written submissions which complain that the Judge erred in :

(a) admitting the Hansard for the purpose of construing sections 16 and 17;[45]

(b) concluding that the Developer’s construction would lead to the three anomalies identified;[46]

(c) refusing to compare sections 16 and 17 with provisions in other statutes;[47]

(d) rejecting the Developer’s argument on the need for a merits-based appeal procedure;[48] and

(e) deciding that the Board’s interpretation did not violate BL35.[49]

54.  It is not necessary for us to dwell on these subsidiary points.  Points (a), (b) (c) and (e) are plainly unarguable.  As to point (d), we respectfully agree with the Judges’ reasoning as set out in [73] to [77] of his judgment.  There is no substance in this point either.

F. CONCLUSION

55.  For the above reasons, we dismiss the Developers’ appeal with costs to the Board, to be taxed if not agreed.

[1] Nam Sang Wai Development Co Ltd and Kleener Investment Ltd.

[2] Reported as Town Planning Board v Town Planning Appeal Board [2014] 1 HKLRD 1056.  Unless otherwise stated, the reference [X] below means the corresponding paragraph in that reported judgment.

[3] Cap 131.  Unless otherwise stated, the statutory provisions cited in this judgment are those of the Ordinance.

[4] On the facts of this case, the provisions under construction are the pre-2004 version.  However, as they are relevantly the same as the post-2004 version, the issue is stated in this way without differentiating between the pre-2004 and post-2004 version.

[5] The relevant background has been set out in detail by the Judge at [2] to [24].  The narrative below is based on his summary.

[6] Henderson Real Estate Agency Ltd.

[7] Initially, the site included Lots 1520RP, 1604 and 1534 in DD 123, Lot 8 s.A and Lot 1740 s.A RP in DD 107 and adjoining Government Land.  Lot 8s.A and Lot 1740 s.A RP in DD 107 were subsequently resumed by the Government for public works.

[8] The Privy Council’s judgment was reported as Henderson Real Estate Agency Ltd v Lo Chai Wai [1997] HKLRD 258.

[9] PDI Consultants Limited.

[10] A review to the Board against that decision is pending the resolution of these proceedings.

[11] [17].

[12] Paper TPB-PG No 36A.

[13] At the hearing before us, we are told that the Developers had issued a judicial review after the Board’s Decision, HCAL 40/2014, which has been stayed pending the outcome of this appeal.

[14] Neither did it before this Court.

[15] [28] to [39].

[16] [40] to [44].

[17] [45].

[18] [52].

[19] [53].

[20] [60].

[21] [59].

[22] [61] to [62].

[23] [67] to [69].

[24] Cap 153.

[25] Cap 243.

[26] [71] to [72].

[27] [73] to [77].

[28] [79] to [87].

[29] (2006) 9 HKCFAR 234.

[30] [88].

[31] [89] to [90].

[32] Subparagraphs (h) and (l) further contain 3 and 4 sub-subparagraphs respectively.

[33] He did not appear before the Judge below.

[34] Mr Ismail did not make any written submission on BL35.

[35] See Sections E1, E2, E3 and E4 of his written submission as further elaborated in his oral submissions.

[36] See section 2 of the Ordinance.

[37] Cap 1 Section 40 provides: “(1) Where any Ordinance confers upon any person power to do or enforce the doing of any act or thing, all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.  (2) Without prejudice to the generality of subsection (1), where any Ordinance confers power— (a) to provide for, prohibit, control or regulate any matter, such power shall include power to provide for the same by the licensing thereof and power to prohibit acts whereby the prohibition, control or regulation of such matter might be evaded; (b) to grant a licence, Government lease, permit, authority, approval or exemption, such power shall include power to impose reasonable conditions subject to which such licence, Government lease, permit, authority, approval or exemption may be granted; (c) to approve any person or thing, such power shall include power to withdraw approval thereof; (d) to give directions, such power shall include power to couch the same in the form of prohibitions.”

[38] [2010] 4 All ER 880.

[39] (2010) 13 HKCFAR 1.

[40] [2008] 1 HKLRD 591

[41] HCAL 12/2008, unreported, 7 January 2009.

[42] (2009) 12 HKCFAR 568, [11] to [14]

[43] They were introduced to address the needs arising from Singway Ltd v Attorney General [1974] HKLR 275.

[44] See E2 of his written submissions.

[45] Ground 3(c) and Section E2 of Mr Ismail’s submissions.

[46] Ground (h) and E5 of Mr Ismail’s written submissions.

[47] Ground (i).

[48] Ground 3(i) (k) and (l) and E6 of Mr Ismail’s written submissions.

[49] Ground 3(m).