AUBURNTOWN LTD. v. TOWN PLANNING BOARD

HCMP No. 222 of 1993

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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________

JUDGMENT

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1. Two questions involving the Town Planning Board ("the Board") fall for determination in the present proceedings by way of judicial review. The first is whether the Board acts beyond the powers conferred on it by the Town Planning Ordinance, Cap.131 ("T.P.O.") when it imposes restrictions on types of buildings such as houses and their plot ratios permitted under a draft development permission area plan. The other is whether the Board contravenes the provisions of Article 10 of the Hong Kong Bill of Rights Ordinance, Cap.383 ("B.O.R.O.") on the right to a fair hearing by a competent, independent and impartial tribunal when it considers objections under s.6(6) and (9) of the T.P.O. to one of its draft development permission area plans. Article 10 of B.O.R.O., insofar as relevant for the purposes of the present case, and s.6 of the T.P.O. are as follows :-

Article 10

Equality before courts and right

to fair and public hearing

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

"6. Consideration of objections

(1) Any person affected by the draft plan so exhibited may within the said period of 2 months send to the Board a written statement of his objections to anything appearing in the draft plan.

(2) Such written statement shall set out -

(a) the nature of and reasons for the objection;

(b) if the objection would be removed by an alteration of the draft plan, any alteration proposed.

(3) Upon receipt of a written statement of objection under subsection (1), the Board may give preliminary consideration to an objection in the absence of the objector and may propose amendments to the draft plan to meet the objection.

(4) If the Board proposes an amendment to the draft plan pursuant to subsection (3), it shall give notice in writing of the amendment proposed to the objector by registered post and may invite the objector to withdraw his objection on the condition that the amendment is made as proposed.

(5) An objector may notify the Board in writing within 14 days after service of notice under subsection (4) that his objection is withdrawn on the condition that the amendment is made as proposed but if no such notification is received the objection shall continue in force.

(6) Where -

(a) the Board does not propose amendments under subsection (3); or

(b) an objector does not notify the Board under subsection (5) that his objection is withdrawn; or

(c) an objector was conditionally withdrawn under subsection (5) and the Board does not proceed with the amendment proposed,

the Board shall consider the written statement of objection at a meeting of which the objector is given reasonable notice, and the objector or his authorized representative may attend such meeting and if he desires shall be heard.

(7) In any case where an amendment made by the Board to meet an objection appears to the Board to affect any land, other than that of the objector, held under lease, tenancy or permit from the Crown for a term exceeding 5 years, the Board shall give such notice by service, advertisement or otherwise as it deems desirable and practicable to the owner of the land in question.

(8) Any written objection received within 14 days after the giving of notice under subsection (7) shall be considered at a meeting of the Board of which the original objector and the objector to the amendment are given reasonable notice, and the objectors, or their authorized representatives may attend such meeting and if he or they so desire shall be heard.

(9) Upon consideration of an objection in accordance with subsection (6) or (8) the Board may reject the objection in whole or in part or may make amendments to the draft plan to meet such objection."

2. Those challenges to the Board's position come from Auburntown Development Limited, ("the Applicant"), which owns 6.4223 hectares of land including the adjoining foreshore, ("the Site"), on the Mau Tin Headland at the western side of the entrance to Hebe Haven. That headland, together with the one on the Pak Sha Wan Peninsula on the eastern side of Hebe Haven's entrance, are so far untouched by any development. How those two headlands form the mouth of Hebe Haven is illustrated by the plan from the Bundle of Documents ("B.D.") at page 34. An aerial photograph of the Site, taken last year, can be found at B.D.353.

3. The Applicant had bought the Site on 28the December 1988 for $5 million, with a view to developing it as a marina comprising a clubhouse, berths, residential accommodation and premises for marina-related businesses. The various Lots making up the Site are held under a Block Crown Lease where the use is described as agricultural.

4. In or about 1979, Government had indicated to the Applicant's predecessor-in-title, ("the previous owner"), approval in principle for the Site being developed as a residential/marina complex.

5. The District Land Conference, on 18th December 1980, had approved a proposal for the Site's use for a residential/marina development. On 7th April 1983, the Junk Bay Development Office of the New Territories Development Department even went as far as agreeing in principle with the previous owner's proposal that the planning parameters for the Site should include a plot ratio of 0.45, maximum residential gross floor area of 51,605 square metres, and 3,095 square metres for non-domestic; four hundred domestic units and one hundred and eighty three berths in the marina (see B.D.191).

6. Despite agreement in principle between Government and the previous owner over the latter's planning proposals for the Site, such agreement of itself did not amount to very much, since it was dependent on the owner being able successfully to conclude negotiations with Government over modification of the lease terms and the level of premium payable on surrender and regrant.

7. By a letter (B.D.279) dated 19th November 1981, Government got as far as sending the previous owner draft Special Conditions for the contemplated surrender and regrant. Not only did the body of that letter describe those draft conditions as, "very preliminary", but also the whole letter was headed, "Without Prejudice and subject to Contract".

8. Some two years later, on 15th December 1983, Government wrote to the previous owner indicating the premium payable on an exchange would be calculated on the basis of Accommodation Values in the range of $1,000 to $1,500/m2. Again, Government hedged its offer, this time saying "... information is given for your guidance only at this stage and does not imply any commitment on behalf of Government to proceed with this proposed exchange".

9. Had the previous owner been minded to go ahead with its proposed development at that time, there is every reason to suppose Government would have been agreeable so long as the appropriate lease premium was paid. However, the previous owner lost interest in the project, a serious slump in real estate having occurred. The matter went to sleep, with Government, on 2nd August 1984, writing to the previous owner it was closing its file, since it presumed there was no intention of proceeding with the project then. That letter did not elicit any contradiction from the previous owner.

10. Against a background of having agreed in principle with the previous owner that the site could be developed as a marina/residential complex, subject to being able to reach agreement over lease modifications and the level of premium, Government, in 1985, adopted the Ho Chung Outline Development Plan, (H.C.O.D.P.), which showed the major part of the Site zoned as "Residential Group 3 (Residential and Marina)", and a minor part zoned, "Countryside Conservation Area".

11. That sort of Outline Development Plan was merely a departmental plan lacking any form of statutory authority, a state of affairs explicitly pointed out on the face of the H.C.O.D.P. There was, in fact, no town planning legislation in relation to rural areas at the time the H.C.O.D.P. came into existence, the version of the then current being confined in its operation, by its s.3 as then enacted, to "existing and potential urban areas", that is to say, existing urban areas and the New Towns.

12. The position was the same when the Applicant bought the Site.

13. Major amendments, with far-reaching implications for the Applicant's present case were, however, made to the T.P.O. in January 1991 (by Ordinance 4 of 1991), with retrospective effect from 27th July 1990.

14. Ordinance 4 of 1991, for the first time made provision for the Governor to designate any area of Hong Kong, regardless of whether it is urban or rural, as a "development permission area", "development", being defined by what is now s.1 A of the T.P.O., to mean, "carrying out building, engineering, mining or other operations in, on, over or under land or making a material change in the use of land or buildings", and "development permission area" as, "an area so designated in a plan prepared under sections 3(1)(b) and 20 but does not include land included in a plan of an interim development permission area;" Sections 3 and 20 are set out later.

15. Once land is designated a "development permission area", it becomes a criminal offence for anyone to carry out development there, except as authorised by the T.P.O. (s.20(8) and s.21(2)).

16. As an emergency stop-gap measure, s.26 of the T.P.O. was enacted in January 1991, empowering the Governor, with retrospective effect from 27th July 1990, to designate any area as an "interim development permission area".

17. I now set out s.26, together with sections 3, 4 and 4A, to which it makes reference.

"26. Interim development permission areas

(1) Notwithstanding any other provision in this Ordinance, the Director of Planning - (not TPB)

(a) may prepare plans designating any area of Hong Kong as the Governor may direct as an interim development permission area and providing that development shall not be undertaken or continued in such area otherwise than in conformity with such plans or with the permission of the Director of Planning;

(b) may, for the purposes of paragraph (a), on an application being made for permission, grant permission in writing with or without conditions or refuse permission; and

(c) shall cause notice to be published in the Gazette of any such plan.

(2) Sections 4(1) and 4A shall apply to a plan prepared under subsection (1) as if the references in those sections to a draft plan of the Board were references to a plan prepared under subsection (1) and the references to the Board and the Chairman of the Board were references to the Director of Planning.

(3) Where land to which a plan prepared under subsection (1) relates is subsequently included in a plan prepared under section 3, subsection (1) in so far as it requires conformity with such a plan or obtaining permission from the Director of Planning shall not apply as regards that land.

(4) The Director of Planning shall not prepare a plan under subsection (1)(a) or cause a notice to be published under subsection (1)(c) after the commencement of the Town Planning (Amendment) Ordinance 1991 (4 of 1991)."

"3. Functions of the Board

(1) With a view to the promotion of the health, safety, convenience and general welfare of the community, the Board shall undertake the systematic preparation of -

(a) draft plans for the lay-out of such areas of Hong Kong as the Governor may direct, as well as for the types of building suitable for erection therein; and

(b) draft development permission area plans of such areas of Hong Kong as the Governor may direct.

(2) In the course of preparation of the plans referred to in subsection (1), the Board shall make such inquiries and arrangements (including, if it thinks fit, the taking of any census of the occupants of any buildings or of the users of any thoroughfares or spaces) as it may consider necessary for the preparation of such drafts."

"4. Contents of lay-out plans and powers of the Board

(1) The Board's draft plans prepared under section 3(1)(a) for the lay-out of any such area may show or make provision for -

(a) streets, railways and other main communications;

(b) zones or districts set apart for use for residential, commercial, industrial or other specified uses;

(c) reserves for Government, institution or community purposes;

(d) parks, recreation grounds and similar open spaces; (e) zones or districts set apart for undetermined uses;

(f) comprehensive development areas;

(g) country parks, coastal protection areas, sites of special scientific interest, green belts or other specified uses that promote conservation or protection of the environment;

(h) zones or districts set apart for use for village type development, agriculture or other specified rural uses;

(I) zones or districts set apart for use for open storage, and any matter whatsoever may be shown or provided for or specified in or in respect of the plans by means of such diagrams, illustrations, notes or descriptive matter as the Board thinks appropriate; and any such diagrams, illustrations, notes and descriptive matter shall be part of the plans.

(2) The Board may recommend to the Governor in Council the resumption of any land that interferes with the lay-out of an area shown on a draft or approved plan or on a master lay-out plan approved under section 4A; and resumption to avoid such interference shall be deemed to be resumption for a public purpose within the meaning of the Crown Lands Resumption Ordinance (Cap. 124).

(3) Except in the case of resumption under the said Ordinance no compensation shall be paid to the proprietor or any person interested in any holding by reason of the fact that it lies within or is affected by any zone or district set apart under subsection (1)(b)."

"4A. Comprehensive development areas

(1) Without restricting what the Board may, under sections 3 and 4, show or make provision for in a plan, the Board may, by a note on the plan, in respect of a comprehensive development area, prohibit the undertaking of any building works, as defined in the Buildings Ordinance (Cap. 123), except -

(a) as specified in the note; or

(b) with the permission of the Board, which permission may be granted by reference to a plan approved by the Board under subsection (2).

(2) An applicant for the Board's permission under subsection (1)(b) may be required by the Board -

(a) to prepare a master lay-out plan and submit it to the Board for approval; and

(b) to include information in the master lay-out plan respecting building dimensions, floor area for each use, building development programmes and any other matter the Board considers appropriate.

(3) A copy of the approved master lay-out plan, certified by the Chairman of the Board, shall be deposited in the Land Office and shall be available for inspection without payment of a fee."

18. I also now set out the T.P.O.'s s.20, which, through its subsections (1) and (3) ties in development permission area plans to s.3 and 4 of the same Ordinance:

"20. Development permission area plans

(1) In any draft plan prepared under section 3(1)(b), the Board shall designate any area of Hong Kong, as directed by the Governor, as a development permission area.

(2) The Board shall not designate as a development permission area any area that is or was previously included in a plan under this Ordinance, other than a plan prepared under section 26.

(3) A draft plan referred to in subsection (1) may as in section 4(1) show or make provision within the development permission area for any of the matters specified in section 4(1) in relation to a plan prepared under section 3(1)(a).

(4) Sections 4(3), 4A to 13A, 16 and 17 apply to a plan referred to in subsection (1) as they apply to a plan prepared under section 3(1)(a).

(5) A plan referred to in subsection (1), whether or not it becomes an approved plan, is effective for a period of 3 years after notice of the draft plan is first published in the Gazette pursuant to section 5, but on the application of the Board the Governor in Council may, by a notice published in the Gazette before the end of the 3-year period, extend the period for up to one additional year.

(6) Except as provided in subsection (7)(a) and in the definition of 'unauthorized development' in section 1A, where land that is within a plan referred to in subsection (1) is included in a plan prepared under section 3(1)(a), the plan referred to in subsection (1) ceases to be effective in relation to that land.

(7) Where land that is within a plan referred to in subsection (1) is included in a plan prepared under section 3(1)(a), no person shall undertake or continue development on that land unless -

(a) the development was an existing use in relation to the plan prepared under this section;

(b) the development is permitted under the plan prepared under section 3(1)(a); or

(c) permission to do so has been granted under section 16 either before or after the land was included in the plan prepared under section 3(1)(a).

(8) A person who contravenes subsection (7) commits an offence and is liable to a fine of $100,000."

19. On 12th October 1990, the Hebe Haven Interim Development Permission Area Plan ("the Interim Plan") was published in the Gazette. The area covered by the Interim Plan was 355.56 hectares, and comprises a tract of land abutting the full extent of the Hebe Haven foreshore. Included within that area was the whole of the Mau Tin Headland, as well as the headland on the Pak Sha Wan Peninsula, which, between them, form the mouth of Hebe Haven. The area falling within the Interim Plan was the same as that shown on B.D.34.

20. On the Interim Plan, the Site of the Applicant came under the zoning, "Unspecified Use".

21. Both before and after the gazetting of that Interim Plan, the Applicant employed a firm of town-planning consultants, Townland Consultants Ltd, ("Townland"), to negotiate with the Town Planning Department for permission to develop the Site as a residential/marina complex.

22. According to Townland, at a meeting as late as 12th December 1990, the Senior Town Planner at the Sai Kung District Planning Office had ".... confirmed that the planning approval for the previous proposal of 400 flats was still valid and the approved scheme was regarded by the District Planning Officer as the baseline scenario". Assuming that the Senior Town Planner did make that unqualified assertion, it would avail the Applicant nothing in the face of the Interim Plan's showing the permitted use for the Site as "unspecified". Under the provisions of s.26(1) of the T.P.O., nothing less than the Director of Planning's permission in writing would have been sufficient to authorise the Applicant's going ahead with its proposed residential/marina project.

23. Having frozen development in the designated Hebe Haven area by the Interim Plan, the Governor, on 10th March 1991, pursuant to his powers under s.3(1)(b) of the T.P.O., directed the Board to move on to the next stage which was the preparation of a draft development permission area plan for the area covered by the Interim Plan.

24. The Board, meeting on 14th March 1991, decided that when it gazetted the Hebe Haven draft development permission area plan ("the Draft Plan"), the zoning of the part of the area which included the Site of the Applicant would be shown as changed from "unspecified use" to "green belt". Pursuant to s.5 of the T.P.O., the Draft Plan, with the Site zoned "green belt", was gazetted on 12th July 1991. I now set out s.5:

"5. Exhibition of draft plans

Any draft plan, prepared under sections 3 and 4 under the direction of the Board, which the Board deems suitable for publication, shall be exhibited by the Board for public inspection at reasonable hours for a period of 2 months. During such period the Board shall advertise once a week in a local newspaper and shall notify in each issue of the Gazette the place and hours at which such plan may be inspected. The Board shall supply a copy of such plan to any person on payment of such fee as the Board may determine."

25. Of the 355.56 hectares making up the Draft Plan area, 156.57 hectares (including the 6.4223 hectares comprising the Site) were zoned "green belt", 126.70 hectares "country park", and the balance for various other uses.

26. Attached to that plan, and forming part of it by virtue of s.4(1) of the T.P.O., were Notes setting out :

"(a) the types of development which were permitted at all times on the area falling within the boundaries of the plan of the development permission area (DPA);

(b) the uses which were permitted at all times in the various zones and other areas within the DPA; and

(c) the uses which may be permitted, with or without conditions, by the Town Planning Board in the various zones within the DPA."

(See B.D.35).

27. In relation to green belt zoning, separate columns, as follows, specified the uses always permitted, and those permitted on application to the Board, under s.16 of the T.P.O.:

_____________________________________________________________________________________________

__________________________________________________________________________

28. In the middle of Column 2 of the Notes will be seen "House" as one of the land uses for which the Board can give development permission in a green belt zone.

29. I now set out s.16 :-

"16. Applications for permission in respect of plans

(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.

(7) For the purposes of section 16(1)(d) and (da) of the Buildings Ordinance (Cap. 123), anything permitted by the Board under this section shall not be a contravention of any approved plan or draft plan prepared under this Ordinance.

30. Unwaveringly, both before and after the publication of the Draft Plan on 12th July 1991, the Applicant, so far without success, has sought permission, firstly, from the Director of Planning under s.26(1) of the T.P.O., and, then, from the Board under s.16, to erect at least 399 houses on the Site. In such circumstances, therefore, it is not without an element of irony that those appearing for the Applicant call on this court to hold that the reference to "House" in the Notes brings about the result that the Draft Plan is ultra vires the T.P.O., and hence, of no effect against the Applicant.

31. The argument is a wholly technical one. It relies on the circumstance that, in A.G. v. C.C. Tse Estate Ltd [1982] HKLR, before s.3 of the T.P.O. was amended to include limb (b) in what is now sub-section (1), the words "types of building" were resorted to by the Court of Appeal in support of their holding that the Board had not exceeded its functions under what is now s.3(1)(a) by treating itself as empowered to make draft lay-out plans showing plot ratios. On the basis that plot ratio can be regarded as an attribute of buildings sufficient to make those of the same plot ratio fall into a "type", the Court of Appeal there held the Board did have power to control plot ratio, such power stemming from the words, "as well as for the types of building" in s.3.

32. Because those words, "as well as for the types of building" do not feature in s.3(1)(b), so it was argued on behalf of the Applicant, the Board lacks power to control "types of building" in the various zones on a draft development permission area plan. The maxims "Expressum facit cessare tacitum" and "Expressio unius est exclusio alterius" were invoked. Since houses are among "the types of building", the Board was acting outside its powers when it included "House" in the Notes to the Draft Plan as a use in a green belt zone for which permission might be given on an application to the Board under s.16, according to the Applicant's submissions.

33. It is impossible, in my view, to see any legislative purpose in the interpretation of s.3(1)(b) for which the Applicant strives.

34. The scheme of the Town Planning legislation, as I discern it since the amendments brought about by Ordinance 4 of 1991, is to give the Board comprehensive powers to control development on a long-term basis in any part of Hong Kong duly designated by the Governor.

35. The legislation enables the Town Planning authorities to publish plans in stages which become progressively more refined. Firstly, there could be the imposition of an interim development permission area plan under s.26 of the T.P.O., in effect freezing development in an area and giving the Director of Planning what amounted to summary powers to control development during that stage.

36. Interim plans could then be superseded by draft development permission area plans under s.3(1)(b) of the T.P.O., as happened in the Hebe Haven area with which the present case is concerned. A draft plan prepared by the Board under s.3(1)(b) will not be gazetted under s.5 before the Board deems it suitable for publication. At that stage, while it is true the legislation imposes no obligation on the Board to show types of buildings to be permitted in the various zones, it is, nonetheless, difficult to see any sensible reason why it should not. In fact, it must be to everyone's advantage to be apprised at as early a stage as possible of the types of building the Board intends to be permitted in a zone.

37. As I perceive the scheme of the legislation, no steps should be taken at the draft development permission area plan stage which will hinder systematic long term planning for the area. According to the submissions on behalf of the Applicant, however, it does not matter if the legislation is interpreted in such a way that the Board cannot control the types and limit the density of building at that stage, since the Government would still have some control on such matters through s.16(a) and (g) of the Buildings Ordinance, Cap. 123, and through lease modifications. I now set out so much of s.16 of the Buildings Ordinance as is relevant for present purposes :

"16. Grounds on which approval or consent may be refused

(1) The Building Authority may refuse to give his approval of any plans of building works where-

(a) the plans are not such as are prescribed by regulations or are not such as he may have required under this section;

...........

(d) the carrying out of the building works shown thereon would contravene the provisions of this Ordinance or of any other enactment, or would contravene any approved or draft plan prepared under the Town Planning Ordinance; (Cap.131)

...........

(g) the carrying out of the building works shown thereon would result in a building differing in height, design, type or intended use from buildings in the immediate neighbourhood or previously existing on the same site;

............"

38. That sort of ad hoc control is not, in my judgment, an adequate substitute for the systematic control of development available to the Board under the interpretation of s.3(1)(b) of the T.P.O. advocated by the Crown. Part of the mischief against which the amendments in Ordinance 4 of 1991 were directed, in my view, was uncoordinated development where there may well be a mismatch between the infrastructure planned or in place, and development likely to burden such infrastructure.

39. The next level of planning refinement contemplated by the legislation is the Board's draft Outline Zoning Plan under s.3(1)(a) of the T.P.O. which will certainly show types of building.

40. Adopting a purposive approach to construction, as urged upon me by the Crown, I can see no justification for construing s.3(1)(b) in such a way as to disentitle the Board from specifying types of building in draft development permission area plans, if so minded.

41. That the purposive approach has won the day as the right way of interpreting legislation is manifested in Lord Browne-Wilkinson's speech in the House of Lord's case, Pepper v. Hart [1993]1 AII ER 42, 63E to F. Theoretically, that always has been the position in both England and Hong Kong, because of the general principle of interpretation, embodied in s.19 of Cap. 1 of the Interpretation and General Clauses Ordinance, (and England's equivalent) that,

"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

42. In years gone by, much lip-service was paid to the idea enshrined in s.19 of Cap. 1, but the reality was its being regularly observed in the breach, a good example of that being Singway Co Ltd v. Attorney General [1974] HKLR 275, with which I deal more fully later, where a narrow, literal, rather than a broad, purposive approach to interpreting s.3 and 4 of the T.P.O., as they then were, led to a result conveniently reversed by an amendment to the T.P.O. a few months later via Ordinance 59 of 1974.

43. Even if I were to accede to the Applicant's construction argument, it would yield no practical advantage to the Applicant, since I would then treat the reference to "House" or any other type of building as so much surplusage with no effect on the validity of the green belt zoning in the Draft Plan. The Applicant would then still be required to seek permission from the Board for any development.

44. In its most extreme form, the Applicant's submission would seek to bring about the result that the land described in the Draft Plan would never acquire the status of a development permission area under the T.P.O. as a consequence of the Board having referred to "House" in the Draft Plan. Considering that the development permission area under the Draft Plan comprises almost 366 hectares, that would indeed be a drastic consequence to flow from what seems such a harmless step on the Board's part as referring to "House". The absurdity of such a result militates against the construction of s.3(1)(b) advanced on the Applicant's behalf.

45. Besides reliance on a purposive approach to construing s.3(1)(b), another route for establishing that the Board was not acting outside its powers by including the reference to "House" in the Notes accompanying the Draft Plan is to be found in the definition of "development" included in s.1A of the T.P.O. by Ordinance 4 of 1991. The fact that "development" means, "carrying out building, engineering, mining or other operations in, on, over or under land ..." points towards the legislation envisaging that plans for a "development permission area" under s.3(1)(b) could legitimately include houses within their scope as a form of "development" from "carrying out building ... operations".

46. For the Applicant, the question was asked where was the source of the power for development permission areas to control development. That question was prompted by s.21 of T.P.O. and its reference to "effective" :

"21. Offence of unauthorized development

(1) While a plan of a development permission area is effective, no person shall undertake or continue development in the development permission area unless -

(a) the development is an existing use;

(b) the development is permitted under the plan of the development permission area; or

(c) permission to do so has been granted under section 16.

(2) A person who contravenes subsection (1) commits an offence and is liable to a fine of $100,000."

47. The matter was put this way in the submissions made on the Applicant's behalf by way of Reply. "Section 21(1) expressly refers to an "effective" DPA. One thus returns to the question of effectiveness, and the source from which effectiveness springs."

48. "Effective" there in my view means nothing more than "while in effect", that is to say it is used temporally. "Effective" is used in that same sense in s.20(5) and (6) of T.P.O.

49. The source of power from which effectiveness springs is gazetting.

50. In the context of statutory interpretation, brief reference can be made to a pair of canons of construction relied on for the Applicant on the ultra vires issue.

51. Firstly, where legislation is ambiguous, the courts lean against a construction which would result in a property owner being deprived of his property rights without compensation. A distinction is, however, drawn by the law for the purpose of statutory interpretation between legislation which might be construed as confiscating land and that which merely regulates its use, the former enjoying the benefit of the presumption that the legislature does not take land without compensation, the latter not : Belfast Corporation v. O.D. Cars Ltd. [1960] A.C.49. In the eyes of the law, the T.P.O.'s s.3(1)(b), of which the Applicant complains, clearly falls within the regulatory classification, so that the Applicant cannot pray the presumption in aid. In any event, I do not regard s.3(1)(b) as ambiguous in its meaning when a purposive approach is adopted for its interpretation.

52. The other rule of interpretation to which the Applicant sought recourse is that ambiguity will be resolved in the citizen's favour where legislation is penal in character. Whilst the T.P.O. does have penal features in that unauthorised development was made an offence by Ordinance 4 of 1991, the Applicant's effort to gain advantage from the presumption founders on the absence of ambiguity.

53. Attention can now be switched from matters of statutory interpretation to the significance of non-statutory guidelines for the purposes of the present case. Whilst the Notes forming part of the Draft Plan make no reference to plot ratio, site coverage, building height and other such matters affecting development intensity in the green belt zone where the Site is located, the Board, however, in July 1991, approved a set of guidelines (B.D.83-86) covering those sorts of matters for use by the Board when considering applications under s.16 of the T.P.O. for development permission within a green belt zone. The Board's objective in having guidelines is to achieve consistency when hearing development permission applications.

54. The stated position of the Board is that the guidelines are intended for general reference only, and the decision whether to approve or reject an application rests entirely with the Board, being based on individual merits and specific considerations in each case.

55. According to what is stated in those guidelines, two of the main planning criteria adopted by the Board when hearing s.16 applications are as follows:

"(a) There is a general presumption against development (other than redevelopment) in a "GB" zone. In general the Board will only be prepared to approve applications for development in the context of requests to rezone to an appropriate use.

(b) An application for new development in a "GB" zone will only be considered in exceptional circumstances and must be justified with very strong planning grounds. The scale and intensity of the proposed development including the plot ratio, site coverage and building height should be compatible with the character of surrounding areas. With the exception of New Territories Exempted Houses, a plot ratio up to 0.4 for residential development may be permitted."

56. If those are the criteria adopted by the Board when hearing s. 16 applications for development permission, the Board will be acting ultra vires according to the line of reasoning put forward by those appearing for the Applicant to the effect that the Board is precluded from considering "types of building" in relation to a draft development permission area plan made under s.3(1)(b) of the T.P.O.

57. As the present case is not concerned with a s. 16 application for permission to build within a green belt zone, but, instead, with an objection by the Applicant under s.6 to the appropriateness of a green belt zoning for the Site, the relevance of the guidelines for present purposes is somewhat questionable. I presume they have been drawn to the court's attention by those appearing for the Applicant as an illustration of what they contend is the generally misguided view by the Board of its powers in relation to draft development permission area plans. For reasons already given, I am satisfied that the Draft Plan published by the Board was within its powers, the reference to "House" notwithstanding, and, for my part, if the same line of thinking found in the guidelines influenced the Board in its deciding which areas it should zone as green belt, I do not think that the Board is to be faulted in any way for that.

58. Based on my interpretation of s.3(1)(b) of the T.P.O., I have already indicated that I find against the Applicant on its ultra vires argument.

59. There is yet another ground available to the Crown pointing towards an outcome in its favour on the ultra vires issue. That ground took the form of arguing that, in preparing draft development permission area plans, the process embarked on by the Board was that of making subsidiary legislation.

60. In fact, the Crown's contention that the Board in preparing and publishing draft development permission area plans, as well as hearing objection to them under s.6 of the T.P.O., was engaged in a legislative function was the central plank of the Crown's defence to the other main issue in the case, namely, whether the objection procedure under s.6 of the T.P.O. violated the Applicant's constitutional right under Article 10 of the Bill of Rights to a fair hearing by an independent tribunal.

61. Through the presumption that subsidiary legislation is valid (Hoffman - La Roche & Co. v. Secretary of State for Trade and Industry [1975] A.C.295.), that contention was also prayed in aid by the Crown on the ultra vires issue.

62. The concept of the plan-making process under the T.P.O. being legislative in character first finds expression in Singway Co. Ltd. v. Attorney General [1974] H.K.L.R.275, 291 where reference was made to how "a draft town plan could properly be regarded as 'subsidiary legislation', i.e. as having legislative effect." The same theme was taken up by Cons J.A. in Attorney General v. C.C. Tse (Estate) Ltd. [1982] H.K.L.R.7, 13, where he said, in relation to a draft Outline Zoning Plan under the T.P.O., "The Attorney General has asked us to adopt a benevolent attitude, to keep the plan alive if we possibly can. That is a proper approach to subsidiary legislation, as appears from the judgment in Singway [1974] H.K.L.R.275 where the authorities are conveniently set out." There, a purposive approach was, in fact, adopted. That plans under the T.P.O. amount to subsidiary legislation is also accepted by Hong Kong text-book writers : see Cruden's Land Compensation and Valuation Law in Hong Kong, 380; Sihombing and Wilkinson, Hong Kong Conveyancing Law and Practice, para.77, and Clark & McCoy's Hong Kong Administrative Law, 2nd Ed., 408.

63. Speaking for myself, the idea of regarding plans under the T.P.O. as subordinate legislation did take some getting used to, but now I have come around firmly to the view that is, indeed, what they are.

64. Subsidiary legislation, I now recognize, can take many forms, examples being regulations, rules, orders, byelaws, directions and schemes : see Wade's Constitutional And Administrative Law (10th Ed.) 610 and Halsbury's Laws of England (4th Ed.), Vol.44, para.582.

65. The issue of whether the Board when considering objections under s.6(6) and (9) of the T.P.O. is engaged on an adjudicative determination requiring conformity with the provisions of Article 10 of B.O.R.O., as the Applicant contends, or whether, at that stage, it is participating in a legislative process which culminates in subsidiary legislation in the form of an approved development area plan as the Crown contends, ultimately hinges on a narrow point of law, namely, how s.9(2) of T.P.O. should be interpreted.

66. Sections 8 and s.9 of T.P.O. set out the role of the Governor in Council in relation to plans :

"8. Submission of considered draft plan to Governor in Council

After consideration of all objections, the Board shall submit the draft plan, with or without amendments, to the Governor in Council for approval, and shall submit therewith -

(a) a schedule of the objections (if any) made under section 6 and not withdrawn;

(b) a schedule of the amendments (if any) made by the Board with a view to meeting such objections."

"9. Powers of Governor in Council upon submission

(1) Upon submission of a draft plan the Governor in Council may -

(a) approve it;

(b) refuse to approve it;

(c) refer it to the Board for further consideration and amendment.

(2) The Governor in Council may approve a draft plan notwithstanding that any requirements of this Ordinance applicable thereto have not been complied with.

(3) A draft plan approved as aforesaid is hereinafter referred to as an 'approved plan'.

(4) The Governor in Council may by notification in the Gazette correct any omission from or error in any approved plan.

(5) On such approval being given the approved plan shall be printed and exhibited for public inspection at such place as the Board may consider suitable and the fact of such approval and exhibition shall be notified in the Gazette.

(6) The Board shall supply a copy of any approved plan to any person on payment of such fee as the Board may determine."

67. In brief, the Crown's argument is that s.9(2) vests legislative power in the Governor in Council to determine the content of an approved plan, so that he may, if so minded, disregard the Board's decision under s.6(9) on the draft plan, whereas the submission for the Applicant was to the effect that the Board's decision under s.6(9) amounts to the last word, determining what can go into a plan, the Governor in Council having no power by virtue of s.9(2) to override the Board's decision under s.6(9), but instead being limited by s.9(1) to (a) approving, (b) refusing to approve and (c) referring the draft plan to the Board for further consideration and amendment.

68. Before turning to consider in detail the circumstances of the Applicant's objections to the Draft Plan pursuant to s.6 of T.P.O., and the significance of Art 10 of B.O.R.O., it will be convenient to make some observations on the nature and characteristics of subsidiary legislation in Hong Kong, and how the Draft Plan fits within that rubric.

69. "Subsidiary legislation" is defined by s.3 of the Interpretation and General Clauses Ordinance, Cap. 1 to mean :

"... any proclamation, rule. regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any Ordinance and having legislative effect;"

and a development permission area plan is undoubtedly an "instrument" which Cap.1 defines to include "... any publication in the Gazette having legal effect". As was rightly pointed out, on behalf of the Applicant, having "legal effect" is by no means synonymous with having legislative effect, however.

70. Part V of Cap.I is given over to the topic of "Subsidiary Legislation". The only section within that Part which caused me to doubt whether plans made under the T.P.O. amount to subordinate legislation was 34, the first two subsections of which I now cite :

"(1) All subsidiary legislation shall be laid on the table of the Legislative Council at the next sitting thereof after the publication in the Gazette of the subsidiary legislation.

(2) Where subsidiary legislation has been laid on the table of the Legislation Council under subsection (1), the Legislative Council may, by resolution passed at a sitting of the Legislative Council held not later than 28 days after the sitting at which it was so laid, provide that such subsidiary legislation shall be amended in any manner whatsoever consistent with the power to make such subsidiary legislation, and if any such resolution is so passed the subsidiary legislation shall, without prejudice to anything done thereunder, be deemed to be amended as from the date of publication in the Gazette of such resolution."

71. The notion of tabling approved plans in the Legislative Council at first struck me as slightly incongruous, and I cannot help wondering whether it in practice happens, but, on more mature, reflection I see no reason why it should not be done, and, moreover, even if it is not done, such omission would in no way be fatal to an approved plan's qualifying as subsidiary legislation, since the tabling contemplated by s.34 of Cap.1 is in my view not mandatory but directory only. See Halsbury's Laws of England, (4th Ed.) Vol.34, para. 1433.

72. What made me hesitate most about treating plans under the T.P.O. as subsidiary legislation is the circumstance that the ordinance's s.14 explicitly confers powers on the Governor in Council to make that sort of legislation.

"14. Power to make regulations

The Governor in Council may make regulations for the purpose of facilitating the work of the Board and generally for the purpose of carrying the provisions of this Ordinance into effect."

73. That the one and the same ordinance should have impliedly granted the Governor in Council power to make subsidiary legislation while at the same time expressly granting it, is unusual, but I am, nonetheless, satisfied that is what the legislature intended in this instance.

74. For the Applicant, it was said that s.13 of the T.P.O. was inconsistent with plans under the ordinance having the status of subsidiary legislation since the section treats even approved plans as no more than advisory rather than mandatory. The section is as follows :

"13. Approved plans to serve as standards

Approved plans shall be used by all public officers and bodies as standards for guidance in the exercise of any powers vested in them."

75. While what the Applicant says about s.13 is correct as far as it goes, it fails to take account of other situations where plans under the T.P.O. are undoubtedly mandatory, examples being the binding effect of such plans for purposes of s.16(1)(d) of the Building Ordinance, Cap.123, as demonstrated in Singway, and for the purposes of s. 16(4) of the T.P.O. itself, which limits the Board to granting permission only for the uses specified in the plans.

76. In my view, the isolated instance of s.13 of the T.P.O. treating plans as less than mandatory goes nowhere near outweighing the indicia to the opposite effect.

77. Overall, I am satisfied that approved plans under the T.P.O. are subordinate legislation, and the various steps along the way from promulgating draft plans under s.3 up until the Governor in Council approving a plan under s.9 are all part of a legislative process.

78. As a prelude to considering Art 10 of B.O.R.O. and its relationship to s.6 of T.P.O., it is necessary to amplify the facts and circumstances leading up to the alleged violation of constitutional rights complained of by the Applicant.

79. I will begin by considering the composition of the Board.

80. Provision was made for the appointment of the Board in s.2 of the T.P.O., the relevant part of which is as follows:

"(1) The Governor may appoint a Town Planning Board consisting of such official and unofficial members as he may nominate, and may appoint any member of the Board, either ex officio or personally, as chairman or vice-chairman and any public officer as secretary thereof.

(2) 5 members of the Board, one of whom must be the chairman or vice-chairman, shall form a quorum at any meeting of the Board."

81. Pursuant to that power under s.2(1), the Governor has appointed six official and twenty-four unofficial members of the Board. Included amongst the official members is the Secretary for Planning, Environment and Lands who has been appointed the Chairman, the Director of Planning appointed as Vice-Chairman, and the Principal Government Town Planner as the Secretary.

82. It was the Board, thus constituted, which prepared the Draft Plan under s.3(1)(b).

83. After the Board published the Draft Plan on 12th July 1991 by gazetting it under s.5 of the Ordinance, the provisions of s.6 came into play.

84. On 10th September 1991, which was within the two month period permitted by s.6(1) of the T.P.O., Townland, on behalf of the Applicant which was "affected by the plan", lodged its written objection to the green belt zoning for the Site, contending that it should be zoned as a comprehensive development area for residential/marine use.

85. As contemplated by s.6(3), the Board, on 31st January 1992 in the absence of the Applicant, gave preliminary consideration to the Applicant's objection.

86. Making up the Board on that occasion were all six of its official members, and five of the unofficials.

87. They decided against changing the zoning as requested by the Applicant for the following reasons, which were communicated to Townland by a letter dated 25th March 1992 :

"(a) the entire headland area is an important landscape feature and landmark of Sai Kung. The planning intention is to conserve the nature character of this scenic area. Rezoning of the site to 'CDA' would be incompatible with the planning intention; and

(b) any large-scale development in the objection site would impose additional strains on the infrastructure in the area, particularly the transport network."

88. By letter dated 31st March 1992, Townland, on behalf of the Applicant, requested a hearing by the Board under s.6(6).

89. That hearing by the Board took place on 11th September 1992. On that occasion, all the official members were present, plus twelve unofficials. Three representatives from Townland presented the Applicant's case to the Board, and a representative of the Planning Department presented his Department's position.

90. The result of that hearing was communicated to Townland by letter dated 23rd October 1992 : the Applicant's objection to the green belt zoning of the site was rejected for reasons identical to those given by the Board in its letter of 25th March 1992 rejecting the Applicant's objection when first considered under s.6(3).

91. There being no other avenue under the T.P.O. for having the green belt zoning for the Site reconsidered, the Applicant brought the present judicial review proceedings.

92. For convenience, I will again set out so much of Art 10 of B.O.R.O. as is relevant for the purposes of the present case :

"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

93. Article 10 of B.O.R.O. is a translation of the French text of Art 14 of the International Covenant on Civil and Political Rights ("I.C.C.P.R."), as is Art 6(1) of the European Convention on Human Rights (E.C.H.R.), the English text of Art 6(1) of E.C.H.R. being as follows :

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

94. By virtue of the Vienna Convention on the Interpretation of Treaties, the Chinese, English and French texts of the I.C.C.P.R. are of equal authenticity, and the text in one language can be used to clarify the meaning of the text in another language.

95. The English of Art 6(1) of the E.C.H.R. is easier to fathom than that found in Art 10 of B.O.R.O., particularly the words, "In the determination of his civil rights and obligations ....." in the E.C.H.R., rather than B.O.R.O.'s "In the determination ..... of his rights and obligations in a suit at law ....." Authority for resorting to E.C.H.R. 6(1)'s English rather than directly using Art 10 of B.O.R.O. is to be found in Commissioner of Inland Revenue v. Lee Lai-ping [1993]3 H.K.P.L.R. 141.

96. Article 10 of B.O.R.O., as re-stated by Art 6(1) of E.C.H.R., gives rise to three issues for the purposes of the present case, namely :

(i) whether the Board's action in preparing and publishing the Draft Plan showing the Site in a green belt zone involves the Applicant's "civil rights and obligations";

(ii) whether the decision by the Board to reject the Applicant's proposal in objecting to the Site's green belt zoning amounted to a "determination" of the Applicant's civil rights and obligations; and

(iii) whether the Applicant's right to a "fair and public hearing by a competent, independent and impartial tribunal established by law" has been infringed?

97. There was common ground on the approach to be adopted by the court in construing B.O.R.O.

98. In interpreting B.O.R.O., the Court is no longer guided by the ordinary canons of construction of statutes, nor with the dicta of the common law, but must look at the aims of the International Covenant on Civil and Political Rights ("I.C.C.P.R."), giving full recognition and effect to the preamble to such Covenant. A generous and purposive approach is to be adopted, giving full recognition to the aims and purposes of the ICCPR. General Comments and decisions of the Human Rights Committee, decisions of the European Court, the Court of Human Rights and European Commission of Human Rights, as well as decisions taken in common law jurisdictions which contain a constitutionally entrenched Bill of Rights are of the greatest assistance and shall be given considerable weight: (See R v. Sin Yau Ming [1992]1 HKCLR 127.)

99. One of the consequences of adopting what Silke J.A. in the case just cited described (at p.141) as an, "entirely new jurisprudential approach" in construing B.O.R.O., is that its terms and concepts can have an autonomous meaning, that is to say, terms used in the international treaty do not necessarily have to bear the same meaning as in the domestic law, but should be understood in an international sense in accordance with what Kempster J.A., in the same case, (at p. 159) referred to as "a universal concept of justice". Treaty-words having an autonomous meaning assumes significance in the present case in the context of whether the Applicant's development rights in respect of the Site affected by the Draft Plan amount to "civil rights and obligations".

100. It is unnecessary precisely to analyse the juristic nature of the Applicant's rights affected by the Board's action in imposing a green belt zone on the Site. In the words of Lord Wilberforce in Minister of Home Affairs v. Fisher [1980] AC 319,328, a constitutional document like B.O.R.O. calls for a generous interpretation, avoiding what he called the "austerity of tabulated legalism", suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.

101. Clearly, there are various limitations on the Applicant's rights to develop the Site as it would like, such as, for example, the restrictions of a contractual nature in the Crown Lease, and those of a statutory nature in the Building Ordinance or, for that matter, the T.P.O., but despite all those limitations, I am in no doubt that it has suffered a loss of rights, proprietary in nature, as the result of the Board zoning its Site "green belt". On the other hand, though, I do not subscribe to Townland's self-serving assertion on its client's behalf to the effect that the Applicant enjoyed, "committed development status".

102. It is difficult to see how the Board, exercising powers conferred on it by Ordinance 4 of 1991, which enabled "development permission areas" to be brought into existence for the first time, could be fettered by any arrangements made between the Applicant and Government years earlier. What Devlin J. said in Commissioner of Crown Lands v. Page [1960]2 QB 274, 291 must apply a fortiori in relation to the position between the Board and the Applicant since the Board has not even been in any sort of contractual relationship with the Applicant,

"When the Crown, or any other person, is entrusted, whether by virtue of the prerogative or by statute, with discretionary powers to be exercised for the public good, it does not, when making a private contract in general terms, undertake (and it may be that it could not even with the use of specific language validly undertake) to fetter itself in the use of those powers, and in the exercise of its discretion. This principle has been accepted in a number of authorities."

Southend-On-Sea Corporation v. Hodgson [1962]1 QB 416 is to like effect.

103. The H.C.O.D.P. was a non-statutory plan. Much water has run under the bridge since the Site was shown there as "residential marina". Vast changes have occurred in the area such as the opening of the University of Science and Technology, and the completion of private housing schemes such as Marina Cove and Berkeley Villa which have put new demands on the area's infrastructure since the publication of the H.C.O.D.P.

104. Even more importantly, the enactment of Ordinance 4 of 1991 has enabled development permission areas to be brought into existence. The simple fact of the matter is the law has changed adversely to the Applicant with the enactment of Ordinance 4 of 1991. The situation of some of the Applicant's rights being taken away or regulated by fresh legislation is no different from that commented on by the High Court of Australia in Arthur Yates & Company v. The Vegetable Seeds Committee [1946]72 C.L.R. 37, 64 where Latham, C.J., observed,

"The enactment of a law cannot in itself give any cause of action to a person who is injured by the operation of the law. All member of the community are subject to the risk of a law being made, altered, or repealed to their detriment, and they have no remedy for any injury consequentially suffered unless the law provides for some form of compensation."

105. The European Human Rights Reports abound with cases showing that ownership of land carries with its civil development rights, the nature of which are such as to fall within the embrace of Art 6(1) of the E.C.H.R., the equivalent of Hong Kong's Art 10.

106. A whole raft of such cases from Sweden, Holland, and Ireland showing how development rights are capable of attracting the procedural safeguards of E.C.H.R. Art 6(1) were cited to the court on behalf of the Applicant.

107. Rights to develop one's land can be regarded as part of the wider civil right to engage in private commercial activity, exemplified in such cases as Tre Traktorer Aktiebolag v. Sweden (1991) 13 EHRR 309, and Kaplan v. U.K. (European Commission of Human Rights : Application No.7598/76).

108. Regardless of how the Applicant's rights to develop the Site might be classified under Hong Kong's ordinary domestic law, I am satisfied that, by virtue of the international norms which now operate for the protection of civil rights as contemplated by Art 10, the Applicant enjoys autonomous development rights in respect of the Site within the Art 10 meaning of "civil rights and obligations".

109. The ingredient of Art 10 falling for consideration next is "determination". On that, the Applicant founders.

110. The type of "determination" contemplated by Article 10 is one which, in relation to a dispute of a serious nature concerning civil rights, is decisive for the exercise or enjoyment of those rights : Boden v. Sweden [1988]10 ELR 367. A finding by the Board under s.6(9) of T.P.O. in relation to an objection lacks the quality of decisiveness, since the Board can be overriden by the Governor in Council on that legislatively by virtue of s.9(2) of the same ordinance if he decides to approve the draft plan.

111. A valid point made on the Applicant's behalf in relation to s.6 of T.P.O. is that the way it requires the compulsory resolution of disputes arising from objections is suggestive of the Board there performing an adjudicative role. While, however, the requirement to reach a decision is a necessary condition to qualify a tribunal as making a "determination", it is not a sufficient condition. There has to be the further condition that the tribunal's finding must be decisive in relation to the dispute.

112. The Board's hearing of an objection under s.6(6) and (9) of the T.P.O. is, in my view, part of the legislative process. By being given the opportunity to make his objections known to the Board, the Applicant participates in a legislative process. Under s.8(a) of T.P.O., such objections are brought to the attention of the Governor in Council as part of the input made available to him for the purpose of the policy decision he has to make on whether a draft plan should become an approved plan.

113. Having dealt with the ingredient "determination" for the purposes of Art 10, I turn, lastly, to look whether the Board, performing its functions under s.6(6) and (9) of T.P.O. measures up to the requirements of Art 10 for a tribunal to be "independent and impartial" at a hearing which is to be "fair and public".

114. The "fair and public " part can be rapidly disposed of. Whether the Board's hearings are "fair" can be treated as a function of whether the Board is perceived to be "competent, independent and impartial". Whether the Board's hearings are "public" was never a live issue in the case. My guess would be that the Board's hearings in the present case were not "public", but that would be a shortcoming easily rectified by the Board for the future since there is nothing in the T.P.O. which constrains the Board from its hearings being "public" when performing its functions under s.6(6) and (9).

115. When it came to considering whether the Board was "independent and impartial", the Crown, realistically, did not dispute that the Board cannot be perceived as blessed with those attributes, bearing in mind the composition of the Board and the fact that not only did the Board promulgate the Draft Plan in the first place, but also that the Board will, in the absence of the objector, already once have rejected the objection at the "preliminary consideration" stage under s.6(3).

116. Because, clearly, the Board is not seen to be "independent and impartial", and because there is no comprehensive appeals machinery from its findings, there being no appeal from its findings of fact, only its findings of law by way of judicial review, s.6(6) and (9) would fall well and truly foul of Art 10 of B.O.R.O., were it not for the circumstance that Art 10 never gets into play, because the crucial ingredient of a "determination" is lacking.

117. Article 10's effect is well summarised in Law Lectures for Practitioners 1992, The Impact of the Bill of Rights on Litigation by Andrew Byrnes, p.223/4 :

"Article 10 embodies the so-called 'right of access to court' where there is a dispute between government and a private party over the existence of a 'right or obligation in a suit at law' (or a 'civil right and obligation'), the article requires that all issues of fact and law which are decisive for the existence of that right can be determined by a tribunal which satisfies the criteria of article 10. Article 10 requires that at some stage in the process, the administrative decision affecting the right be:

'amenable to a properly constituted tribunal with power to give full consideration to issues of law, fact and merits, whether as initial decision-maker or subsequently on appeal.'"

"The importance of article 10's guarantee in the Hong Kong context is that persons affected by many administrative decisions have two avenues of 'appeal' open to them. One avenue is that of a full appeal on all issues to a body internal to the administration (perhaps going so high as the Governor in Council) or on which the administration has a nominee. Such a body may not satisfy the requirements of independence and impartiality required by article 10. The other avenue is to seek judicial review of the decision in the courts, which are clearly article 10 tribunals. However, the courts do not have the power on an application for judicial review to reconsider the merits of the decision, but are confined to a review of its legality. If there is a dispute over a question of law, then the availability of judicial review will satisfy article 10. However, if there is a factual dispute between the person affected and the decision-maker, then judicial review will not be sufficient to satisfy article 10's guarantee of a right to a court. In such a case, there will be a violation of article 10 and some or all of the relevant regulatory statute may fall."

118. The Crown's point in effect was that, under s.6 of T.P.O., the Board was exercising a non-adjudicative power. The distinction between a non-adjudicative power not engaging the operation of Art 10 of B.O.R.O. and an adjudicative power which does, is brought out in the following passage from Kaplan on Art 6(1) of E.C.H.R. :

"Paragraph 154. In the Commission's view the essential role of Article 6(1) in this sphere is to lay down guarantees concerning the mode in which claims or disputes concerning legal rights and obligations (of a "civil" character) are to be resolved. A distinction must be drawn between the acts of a body which is engaged in the resolution of such a claim or dispute and the acts of an administrative or other body purporting merely to exercise or apply a legal power vested in it and not to resolve a legal claim or dispute. Article 6(1) would not, in the Commission's opinion, apply to facts of the latter even if they do affect "civil rights". It could not be considered as being engaged in a process of "determination" of civil rights and obligations. Its function would not be to decide ("decidera") on a claim, dispute or "contestation". Its acts may, on the other hand, give rise to a claim, dispute or "contestation" and Article 6 may come into play in that way."

119. By contrast, the Board's role in hearing permission applications under s.16 and reviews under s.17 of T.P.O. is adjudicative in character, thereby attracting the operation of Art 10 of B.O.R.O. The requirements of Art 10 in relation to the Board's actions under ss.16 and 17 of T.P.O. are met by the independent Appeal Board constituted under s.17A enjoying the powers conferred by s. 17B of T.P.O.

120. Simply because the Board promulgating the Draft Plan under s.3(1)(b) of the T.P.O. was the same body which heard objections to that same plan under its s.6(6) and (9), thereby creating the appearance of the Board's being judge in its own cause, does not of itself afford the Applicant any ground for invalidating the Board's decisions. Unless the Applicant can shoehorn itself into Art 10, the Applicant cannot succeed on its B.O.R.O. point. On ordinary principles of statutory interpretation, there was, I think, a clear legislative intent to make the Board an indivisible decision-making authority, empowered to deal with both the promulgation (s.3(1)(b)) and the hearing of objection (s.6(6) and (9)) stages (see Jeffs v. New Zealand Dairy Products & Marketing [1967]1 AC 551 and CREEDNZ v. Governor General [1981]1 NZLR 172).

121. For the reasons I have given, the judicial review sought by the Applicant is dismissed.

122. This being a written judgment reserved pursuant to 0.42 r.5B, I make a 14 day order nisi that costs are to follow the event.