REGAL SHINING LTD v. SECRETARY FOR JUSTICE (ON BEHALF OF THE DIRECTOR OF THE LANDS DEPARTMENT AND THE TOWN PLANNING BOARD)

CACV 230/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 230 OF 2014

(ON APPEAL FROM HCMP No 2781 OF 2012)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1. Regal Shining Limited, the plaintiff in this appeal, is the registered owner of the land known as the Remaining Portion of Lot No 714 in Demarcation District No 450, Yiu Wing Street, Kwai Chung [“the Land”]. A Taoist temple called Hong Dao Tong (弘道堂) [“HDT”] was built on the land. In the temple, a columbarium with niches is situated at various parts of the building. Though it only occupied 26.94% of the total area of the temple, the scale of the columbarium is substantial. There are 26,000 niches for storage of ashes from the cremation of deceased believers and the evidence shows that the average cost for the licence granted by the temple to use the niches was $80,000 per niche. It was accepted at the court below (and also before us) that the licensing of such use is a commercial enterprise. Religious rites associated with the use of the niches are also offered at a fee. The present proceedings concern whether such use of the Land (a) constitutes a breach of the lease conditions under which the Land was granted; and/or (b) constitutes a breach of the planning requirements in the relevant Outline Zoning Plan [“OZP”].

2. At the court below, Anthony Chan J held that such use was unlawful in that it is in breach of General Condition 15 [“GC 15”] of the government lease under which the Land was granted.  GC 15 provides,

“Without the consent of the District Officer, no grave shall be made on, nor shall any human remains be interred in, or deposited on the lot sold either in earthenware jars or otherwise”.

3. GC 15 was incorporated into the government lease granted under New Grant 3306 of 5 August 1953 because the Memorandum of Agreement of that date provided that the Land was to be granted under the conditions set out in Gazette Notice No 364 of 1934 as amended by Gazette Notice No 50 of 1940.  GC 15 was one of those conditions.

4. Further, pursuant to Section 14(2) of the Conveyancing and Property Ordinance, Cap 219, the government lease, which is deemed to have been issued, included a provision in similar terms to GC 15.  Clause 7(5) of the government lease provides,

“That without the consent of His said Majesty, signified in writing by the Governor of the said Colony or other person duly authorized in that behalf, no grave shall be made on, nor shall any human remains be interred, or deposited on the said premises, …”.

5. The Judge held that given the similarity of the terms his analysis regarding GC 15 applied equally to Clause 7(5), see footnote 2 in his judgment.  Thus, he also held that there was a breach of Clause 7(5).

6. In respect of the planning restrictions, before subsequent OZPs came into effect, the Land was governed by Kwai Chung OZP No S/KC/ 21 [“OZP 21”] which was gazetted on 9 July 2004.  That was the plan in force when the temple was established in December 2007.  It has since been replaced by a series of subsequent OZPs.  OZP No S/KC/28 [“OZP 28”] comes into force on 16 June 2014.

7. The main dispute concerning the OZP restriction is whether the operation of the columbarium can come within the permitted uses as an integral part or incidental to the business of  a Religious Institution [“RI”] (permitted under both OZP 21 and OZP 28).  The Judge considered that there was no material difference between OZP 21 and OZP 28 in this respect.  He held that it did not come within that use because of the scale of the columbarium operated on the Land.  In coming to this conclusion, the Judge primarily referred to OZP 28 in his analysis.   

8. The Judge dismissed the claims of the plaintiff for declaratory relief in its originating summons.  He also granted relief on the counterclaim by declaring that the plaintiff is in breach of GC 15 and/or Clause 7(5).  He ordered the plaintiff to remove from the Land all human remains, including any cremated ashes and to cease the sale or advertisement of the sale of niches for the storage of cremated ashes.

9. In this appeal, Mr Chan SC (appearing together with Mr Hon) submitted on behalf of the plaintiff that the Judge erred in his conclusion on GC 15 as well as his conclusion on the OZP restriction.  In the Notice of Appeal, the plaintiff asked this court to set aside the judgment below and to grant declarations to the effect that GC 15 does not prohibit storage of ashes resulting from the cremation of human remains, that the temple is a RI and the use of the Land (as it is) was permitted under OZP 21, and that the plaintiff is entitled, without the consent or approval of the Lands Department or Town Planning Board or any other government or statutory bodies, to store ashes resulting from the cremation of human remains on the Land.

10. At the opening of the appeal, whilst acknowledging that he needed to succeed on both the GC 15 limb and the OZP limb of the appeal in order to obtain the relief sought by the plaintiff, Mr Chan invited this court also to consider revising the wording of the order of the Judge even if he were only successful on the GC 15 limb.  He suggested that in that event, there could be storage of ashes at a modest scale as an operation incidental to the business of the temple as a RI.  However, that was not a matter argued before the Judge and we are not sure that there would not have been further relevant evidence if the point had been argued by the plaintiff below.  Mr Chan did not put forward any proposed revision for our consideration.  If the order is formulated in a vague and general manner, it would not be of much assistance to the parties and may even invite further rounds of litigation.  As the point was not raised in the Notice of Appeal, we indicated we were not minded to entertain such a course in this appeal.  In any event, as it transpires, for the reasons given below we shall dismiss the appeal on both limbs. 

The construction of GC 15

11. In ordinary parlance, the expression “human remains” is wide enough to include ashes of cremated human bodies or skeletons. This is illustrated by one of the meanings for “ash” in the New Shorter Oxford English Dictionary: “That which remains of a human body after cremation”.  See also The New Oxford Dictionary of English.

12. However, Mr Chan submitted that when the context for GC 15 is taken into account (as required by the well settled approach on construction of covenants, see River Trade Terminal Co Ltd v Secretary for Justice (2005) 8 HKCFAR 95; Fully Profit (Asia) Ltd v Secretary for Justice (2013) 16 HKCFAR 351), “human remains” in GC15 does not include ashes.  In essence, counsel submitted that in view of the historical genesis of this clause and the mischief the clause was aiming at, human remains in GC 15 only refers to human bodies or skeletons.

13. As held by Lord Hoffmann in Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279 at p.296E, apart from the words used, in the construction exercise one must have regard “to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve.”

14. In ICS v West Bromwich Building Society [1998] 1 WLR 896, Lord Hoffmann explained at some length the relevant principles on contractual construction at p.912 to 913.  In particular, on the relevant context, he said at (2) and (3),

“(2) The background was famously referred to by Lord Wilberforce as the “matrix of fact,” but this phrase is, if anything, an understated description of what the background may include.  Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent.  They are admissible only in an action for rectification.  The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life.  The boundaries of this exception are in some respects unclear.  But this is not the occasion on which to explore them.”

15. There is an issue as to the relevant timeframe for determining the relevant context.  Though New Grant 3306 was issued on 5 August 1953, Mr Chan submitted that the relevant context should be derived from events leading to the inclusion of a similar clause in the Government grants in 1911.  On the other hand, Ms Eu SC (appearing together with Mr A Chan for the defendant) submitted that the relevant background should be the prevalent circumstances when the Grant was issued, viz 1953.

16. After referring to the ordinary meaning of “human remains”, the Judge discussed the purpose of GC 15, the relevant context and the Plaintiff’s arguments at paras 52 to 89 of the judgment below.  At paras 56 and 57, he considered the clause as a whole.  Then, he moved onto the purpose of the clause at paras 58 to 63.  At paras 64 to 77, the Judge considered the historical as well as social context.  It is fair to say that the Judge focused more on the prevalent circumstances in the 1950s though he also referred to the development between 1914 and 1953.

17. It is noteworthy that the Judge started off with these observations at para 65,

“65. One may start off with a few obvious points about the social conditions in Hong Kong. Hong Kong is a small place with a big population. For those who know a little about the history of Hong Kong, there must have been significant population expansion in the 1950s. No doubt that had put a strain on much of the available resources. Hong Kong people are superstitious, likely more so in those days. The points made above (para 60) on reluctance to live near a graveyard and the value of neighbouring land being depressed by the existence of the same must be part of the factual matrix.”

18. The Judge’s observation in that paragraph referred to the present day situation as well as the situation back in the 1950s.  Mr Chan did not address this paragraph specifically though he contended that people ordinarily do not have the same level of aversion towards a graveyard as compared with that towards a columbarium.

19. In any event, Mr Chan submitted that the relevant historical context should be the prevailing situation in 1911 when the clause (which has become a standard clause for leases in the New Territories) was first devised.  Counsel further submitted that the relevant context should also be confined to the situation in the New Territories as opposed to the general situation in Hong Kong because the clause appeared in a lease for the New Territories.

20. Mr Chan relied on two authorities to support his contention:  St Marylebone Property Co Ltd v Tesco Stores Ltd [1988] 2 EGLR 40 at p.42 and Skips A/S Nordheim v Syrian Petroleum Co Ltd [1984] QB 599 at p.620-621.  In the latter case, Oliver LJ said,

“What does seem to me important is that documents so commonly in use and containing familiar expressions which have a well-established meaning among commercial lawyers should be consistently construed and that a well-established meaning --- particularly as regards something like an arbitration clause where clarity and certainty are important to both parties should not be departed from in the absence of compulsive surrounding circumstances or a context which is strongly suggestive of some other meaning.”

21. That was said in the context of a commercial dispute relating to a clause in a bill of lading which incorporated all conditions and exceptions of a charterparty, in particular whether that clause effectively incorporated an arbitration clause into the contract under the bill of lading.  There were authorities deciding that the conditions so incorporated into the bill of lading were only confined to those conditions applicable to the carriage and delivery of goods and as such did not include the arbitration clause.  It had become an established commercial practice. On the facts of the case, there was nothing to show that the parties intended to depart from such an established commercial practice.  The court therefore held that the arbitration clause was not incorporated into the bill of lading.

22. In her written submissions, Ms Eu referred us to p.619C to D where Oliver LJ said,

“… there seemed to be in the consignees’ argument a suggestion that because the bill of lading … compels reference to the charterparty to ascertain the contents of some of its clauses, it follows that the whole charterparty must be referred to to ascertain the meaning which the parties to that contract attached to those clauses. That seems to me to be an impermissible approach. The purpose of referential incorporation is not --- or at least is not generally --- to incorporate the intentions of the parties to the contract whose clauses are incorporated but to incorporate the clauses themselves in order to avoid the necessity of writing out verbatim. The meaning and effect of the incorporated clauses has to be determined as a matter of construction of the contract into which it is incorporated having regard to all the terms of that contract.”

23. Applying that approach to the present case, the incorporation of GC 15 into New Grant 3306 would not have the effect of incorporating the common intention leading to the initial drafting of that clause in 1911 into the contract and covenant between the parties to New Grant 3306.  The relevant context remains the prevalent circumstances in 1953 when the Grant was made.  What could be relevant in such context is that if a clause had already had an established meaning in 1953 which must have been well-known to the parties (by way of general practice or decided authorities), they would be taken to ascribe the same meaning to the clause unless the relevant circumstances suggested otherwise.

24. Despite Mr Chan’s submissions, we are not persuaded that by 1953, it had been well-established that “human remains” in GC 15 did not include ashes from cremation.  We are not aware of any authorities deciding that question prior to 1953 and Mr Chan did not refer us to any cases to that effect.  Taking his submissions to their highest, Mr Chan’s contention was that, cremation was not that prevalent in the New Territories and GC 15 (and its precursor) was not devised for the purpose of dealing with a columbarium.  We shall come back to the historical origin of the precursor of GC 15 later.  At this juncture, it suffices for us to say that in any event, the matters relied upon by Mr Chan fall far short of showing that there had been an established practice of excluding ashes from the scope of “human remains” in GC 15.  Taking his case to its highest, it only shows that up to 1953, there had not been any or much need to apply GC 15 to ashes.  But that is not the same as showing that it was established before 1953 that “human remains” in GC 15 could never be applied to ashes when such situations should arise in the future.  In our judgment, the present situation is miles away from the established commercial practice in Skips A/S Nordheim v Syrian Petroleum Co Ltd, supra.

25. Mr Chan referred to St Marylebone Property Co Ltd v Tesco Stores Ltd, supra, to support his contention that the meaning of the words “human remains” should not be changed irrespective of subsequent changes in the prevalent circumstances, hence whatever meaning that was given to the expression in 1911 should remain the same today.  In that case, Hoffmann J (as he then was) held that the term “grocers provisions wine spirit and beer merchants” in a user restriction in a lease did not change notwithstanding the change in market practice on sales of grocery and the restricted use could not encompass a store selling goods other than grocery and alcohol. 

26. That case was decided in respect of a lease of some units in a parade where the landlord also owned other shop units.  The user restriction in the lease served the purpose of the landlord in the overall management of the whole parade.  Thus, the breach of the covenant led to complaints by the shop-keepers in the other units (selling similar products), see the observations in this regard at p.43.  In light of this, it can readily be understood why the court refused to extend the meaning of the user restriction to permit the carrying on of a separate trade by way of selling a wide variety of non-grocery items in a significant quantity. 

27. We do not think this authority provides any assistance to Mr Chan in the present case.  First, it is quite plain that there was nothing in the judgment of Hoffmann J to suggest the relevant context should be other than those prevailing at the time of the making of the lease.  Second, in that case it was quite clear that the meaning of the user restriction did not extend to a trade selling items like electrical articles, newspapers, magazines, books, cards, records, tapes and a business of video hiring.

28. In contrast, in the present appeal, we are not concerned with a widening of the meaning of the expression “human remains”.  Instead, what we have to examine is whether the meaning of the expression in GC 15 should be cut down by the prevailing mode of burials at the relevant time.

29. As a matter of principle well supported by authorities, we agree with Ms Eu that the relevant context must be the prevailing circumstances at the time when the Grant was issued, viz 5 August 1953.  Was there anything in the relevant background prevailing on that date leading a reasonable person having all the background knowledge in 1953 to understand that “human remains” in GC 15 did not include ashes from cremation?

30. At paras 67 to 75 in the judgment below, the Judge considered the prevalence in the use of cremation in 1953.  Though he acknowledged that it was impossible to make a quantitative assessment, he was able to find,

(a) Cremation, regulated by law as early as 1914, was not an alien concept to the Chinese population (para 68);

(b) Between 1914 and 1953, cremation had grown in popularity and by 1953 became part of the local culture (paras 69 and 75).

31. Mr Chan submitted that the Judge erred in taking account of the territory wide position when he should have focused on the position in the New Territories.  Counsel also referred us to the expert evidence of Dr Baker in respect of Chinese burial practice.

32. We have read Dr Baker’s report carefully and paid particular attention to his evidence on burial customs in the New Territories.  He referred to his fieldwork conducted in the Sheung Shui area in 1963-65.  He was informed by villagers that it was not customary to cremate and they regarded it as their customary rights to be buried in the hills in the vicinity of their villages.  The Judge also had regard to this report (mentioned at para 67 of his judgment).

33. In our judgment, the evidence of Dr Baker does not invalidate the Judge’s conclusion that cremation was not an alien concept in Hong Kong.  In that respect, Hong Kong being a small territory, there is no reason to believe that the concept of cremation was contained within the urban areas in the 1950s.  Even though the scale of its practice amongst the Chinese communities in the New Territories might not be as prevalent as in the urban areas, there was no reasonable basis to suggest that the possibility of cremation being practised in the New Territories could be ruled out completely. As in the case of development in the urban areas, burial practices in the New Territories could change.  This is particularly so when, according to the evidence of Dr Yao (mentioned at para 69 of the judgment below), the government was encouraging people to use cremation.

34. The report of Dr Yao also referred to the practices of some Taoist institutions in the New Territories providing columbarium services since 1960s like青松仙苑 (1968) in Tuen Mun, 圓玄學院(1970’s) in Fanling, 蓬瀛仙館(1975) in Tsuen Wan.  Though these were developments after 1953, they showed that cremation could not have been an unknown concept in the New Territories, even though it might not have been that popular, in the 1950s.    

35. Further, it must also be borne in mind that there was nothing to prevent the transfer of the lease to a non-Chinese lessee.  There is evidence that cremation was actually the preferred method for some non-Chinese people residing in Hong Kong.

36. Thus, it cannot be said that a reasonable person with knowledge of the background in 1953 would have understood “human remains” in GC 15 as excluding cremated ashes.

37. In his oral submissions, Mr Chan took us through the historical genesis of the precursor of GC 15 at some length.  Like the Judge, we do not propose to discuss such genesis in great detail.  We accept that in 1911, when a similar clause was first proposed, the practice of cremation was not prevalent in the New Territories.  From the internal minutes in the government files, it would appear that in those days people simply buried the dead on government land.  Burials on land owned privately were rare. Yet burials in government land also generated disputes between those in the neighbourhood which were virulent and acrimonious.

38. In the course of his reference to these minutes, Mr Chan emphasized that the concerns of the government officials at that time were in respect of graves and not the deposit of cremated ashes in a columbarium.  He submitted therefore the clause should be construed in that light and “human remains” must therefore mean human bodies or bones.

39. Insofar as Mr Chan suggested that the intention of the government was that “human remains” in GC 15 should be confined to what one would ordinarily find in graves, we agree with Ms Eu that this is not a permissible approach as it contravenes the rule against the admissibility of evidence on declaration of subjective intent for the purpose of construction, (Lord Hoffmann’s proposition (3) in ICS v West Bromwich Building Society supra).  In effect, Mr Chan’s approach is to invite us to ignore the obvious reference to situations other than graves in GC 15.  Like the Judge, we should bear in mind that GC 15 has 2 limbs: (a) “no grave shall be made”; (b) “nor shall any human remains be interred in, or deposited”.  The second limb referred to situations other than graves and there is no reason why “human remains” in that limb should be confined to human bodies or bones which were usually found in graves.

40. It is permissible to refer to the materials to identify the purpose of the clause, see United Bright Ltd v Secretary for Justice [2015] 2 HKLRD 633.  However, the identification of the purpose should not be confused with the substitution of what were said in the minutes with the clause itself.  Whilst the immediate concern of the government in 1911 was not a columbarium with thousands of niches for the deposit of cremated ashes, the mischief occasioned by uncontrolled burials in graves or urns containing human bones is similar to that occasioned by the presence of a columbarium in the neighbourhood.  As mentioned in a minute of 24 August 1911,

“The danger of indiscriminate burial is not a sanitary one; it is that valuable sites may be rendered unavailable for the occupation of the living owing to the presence of the remains of the dead, and the sentimental reverences attached to them.”

41. Bearing in mind the social condition referred by the Judge at para 65 of the judgment below, the same comment is applicable to a columbarium with thousands of niches.  Mr Chan submitted that there is a difference.  In our judgment, if there was any difference, it would only be a difference in degree instead of nature.  The adverse impact to the neighbourhood due to the presence of a resting place for dead is beyond dispute.  As the insertion of the provision was to serve the purpose of the government as landlord in respect of land-use control against the background that it also held all the land in the neighbourhood, and the lease was a long term lease, we do not see any justification for cutting down the meaning of a general provision by reference to the specific practice at the time when the lease was made.

42. In this connection, even without paying regard to what the plaintiff advertised in its promotional materials as to the services offered at the columbarium, common sense tells us that there are many people who regard a columbarium as a resting place for the dead and they go there to pay respects to and/or worship their ancestors.  In terms of post-funeral functions, for those who deposit cremated ashes of their loved ones at niches in a columbarium, there is no substantial difference between a columbarium and a grave.  Thus, there is no qualitative distinction in terms of the adverse effect on the neighbourhood from a social and land-use control point of view.  Viewed from that angle, Mr Chan’s submissions based on scientific analysis on the products of cremation are irrelevant for present purposes.

43. We do not consider it relevant to have regard to the Chinese translation of the clause.  Though the translation was published in the gazette, it did not form part of the Grant.  It could not have any effect on the meaning of the Grant which was executed solely in English.  There was no suggestion that the grantee was led to believe that the translation would prevail over the executed English document.

44. We conclude that the Judge was correct in holding that the term “human remains” in GC 15 includes cremated ashes.  The deposit of such ashes in the columbarium of the plaintiff is a contravention of GC 15.

The OZP issues

45. Draft OZPs do not have any retrospective effect, see Notes to OZP 21 para (3).  Thus, given that the effective plan when the columbarium of HDT was built was OZP 21, we agree with Mr Chan that the relevant plan for the purposes of this appeal is OZP 21.

46. The Land is situated within an area zoned as “Other Specified Uses: Business”, in which RI was a use always permitted.  On the other hand, “columbarium” use was not a permitted use for land in such a zone. It appeared as a permitted use in other zones: “Government, Institution or Community” under Column 2[1]; “Other Specified Uses: Cemetery and Funeral Parlours and Crematorium” under Column 1[2].

47. With reference to the Definitions of Terms/Broad Uses Terms used in statutory plans attached to Town Planning Board Paper No 6643[3], which was the relevant set of definitions when OZP 21 was gazetted in 2004, “columbarium” use and RI were two distinct uses.  “Columbarium” means “any place or vault with niches or urns that contain the ashes of cremated bodies” and it included “garden of remembrance” and “funeral services centre” and could be subsumed under “Crematorium”. “RI” means “any place or premises where in accordance with the practice of religious principles services are held or prayers said by congregations loyal to a belief”.  It includes mosques, chapel, Tsz Tong, church, seminary, nunnery, monastery, temple, ancestral hall, shrine, pavilion, convent and religious statue.  It further includes “ancillary office, car parks and/or quarters that are essential to the operation of the particular organization”.  Ancestral Hall and Shrine are subsumed under this term unless otherwise specified.

48. Mr Chan did not contend that a columbarium can be regarded as a RI.  However, counsel contended there could be overlaps and in the present case, HDT was undisputedly a RI and it was permissible to have columbarium use within a RI as an essential or integral feature of a Taoist RI. In this kind of situation, Mr Chan submitted that the land use should still be regarded as RI (with the columbarium use being regarded as ancillary to it) and as such always permitted in the Land under OZP 21.  In this respect, Mr Chan relied on para (9) in the Notes to OZP 21 which provides,

“Unless otherwise specified, all building, engineering and other operations incidental to and all uses directly related and ancillary to the permitted uses and developments within the same zone are always permitted and no separate planning permission is required.”

49. In this connection, Mr Chan also relied on the evidence of Dr Yau on the developments leading to the provision of ash storage facilities in a Taoist temple for his contention that the columbarium function was an integral part of the Taoist institution.

50. With respect, we cannot accept this submission.  In Hong Kong, it is not uncommon that a religious body may undertake different functions at the same site.  Some religious bodies run schools or social service or community centres at the same building or site where they also organize religious activities.  From the land-use and town planning point of view, it would not be right to group all such different functions into one single use as RI.  The correct approach is to ask whether in substance different primary uses are being made of the land as opposed to one activity or function being ancillary to the primary use as a religious institution.  If there were distinct uses in the sense that a particular use cannot properly be regarded as being incidental or ancillary to one primary use, all the uses should comply with the planning requirements under the relevant OZP.  Any other approach is unacceptable because it would give free rein to a religious organization to carry on activities without regard to the planning intention of the OZP so long as it also functions as a religious institution.  This, in our view, is an unwarranted extension of the meaning of RI.

51. On the facts of the present case, we agree with the Judge that the columbarium of HDT cannot be regarded as ancillary to the religious function of the temple.  As the Judge observed at para 104 of the judgment below, the present case is obviously different from situations where a Taoist temple has a small number of niches for deceased ascetics to whom worshippers or pilgrims come to pay homage.  The essence of the evidence of Dr Yau is that since 1970s many Taoist institutions needed the financial income from operating niches for storing of cremated ashes to support their operations.  But financial considerations cannot turn a commercial activity into an ancillary use of a religious institution from a town planning point of view.  As we have seen, the Town Planning Board has defined RI as a place or premises where in accordance with the practice of religious principles, services are held or prayers said by congregations loyal to a belief.  Thus, the primary and core function of a RI must be activities like the conducting of religious services and saying of prayers.  Having regard to the scale at which the columbarium of HDT operated, we do not think it can be properly be described as being ancillary to the use of the land as a religious institution.  By the same token, nor can the columbarium be regarded as integral or incidental to the operation of the temple in terms of its core religious activities.

52. Mr Chan tried to advance his case by comparing the specific exclusion of columbarium use in the Town Planning Board’s definition for “ancestral hall” with the absence of such a specific exclusion in the definition for “RI”.  With respect, we cannot draw the conclusion (which Mr Chan invited us to draw) that the absence of such an exclusion means that columbarium use was permitted within the context of RI.  Otherwise, there should be a reference to such use being subsumed under RI in the definition of columbarium.

53. We therefore see no merit in the appeal on the OZP issues.

Disposition

54. We dismiss the appeal and make a costs order nisi that the plaintiff shall pay the costs of the defendant in this appeal, with certificate for 2 counsel.  Such costs are to be taxed if not agreed.