SERGE BERTHIER, SUPERVISOR OF LANTAU INTERNATIONAL SCHOOL v. NOISE CONTROL APPEAL BOARD

HCAL117/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 117 OF 2010

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J U D G M E N T

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A. Introduction

1.  The Applicant is the Supervisor of a primary school in Pui O, Lautau, known as Lantau International School (“the School”).

2.  This is the Applicant’s judicial review application against:

(1) The decision dated 9 August 2010 (“the 2010 Decision”) of the Noise Control Appeal Board (“the Appeal Board”) in dismissing the Applicant’s appeal (“the 2010 Appeal”) against the Noise Abatement Notice No. N810005 dated 28 January 2010 (“the 2010 NAN”) issued by the Noise Control Authority (“the Authority”) requiring the Applicant to abate the noise generated from the School.

(2) The Appeal Board’s costs decision (“the 2010 Costs Decision”) dated 27 October 2010 directing the Applicant to bear the costs of the 2010 Appeal.

3.  The Applicant asks the Court to quash the 2010 Decision and declare that the 2010 NAN is invalid and of no effect.  He further asks the Court to award him costs of the 2010 Appeal (thus effectively asking also the Court to quash the 2010 Costs Decision).

4.  The Appeal Board is joined as the Respondent in this application.  As usual, it maintains a neutral stance and has not taken any active steps in the proceedings.  The Authority is joined as the Interested Party, and is the main opponent to the application.

B. The background

B1.  The Noise Control Ordinance

5.  The purpose of the Noise Control Ordinance (Cap 400) (“the NCO”) is to provide statutory controls to restrict and reduce nuisance caused by environmental noise.  It provides for, inter alia, the appointment of the Authority, the powers and duties of the Authority relating to the control of noise and the creation of offences.  Relevant for the present purposes, the NCO deals with and seeks to control noise generated from places other than domestic premises, public places or construction sites.

6.  The Authority as appointed[1] under s. 3 of the NCO is charged with the duty and authority to enforce the provisions under the NCO.

7.  Under the NCO, the control of noise emanating from any place other than domestic premises, a public place or a construction site is achieved by the use of noise abatement notice (“NAN”) issued by the Authority.     

8.  Simply explained, when the Authority receives a complaint by someone occupying a domestic premises of excessive noise emanating from any place other than domestic premises, a public place or a construction site, its officer would take noise measurements at the complainant’s premises. Basing on the results of the measurements, if the Authority finds that the noise emanating from that source exceeds certain level as provided by the TM (as defined below), it may issue a NAN to the person generating the noise requiring him to within a period of time abate the noise to below an acceptable level. Failure to comply with the NAN is regarded as an offence and would attract penalty under the NCO.

9.  For the present purposes, the relevant provisions concerning such control and the issue of NAN can be summarised as follows.

10.  Under s. 10 of the NCO, the Secretary for Environment has issued, inter alia, a Technical Memorandum (“TM”) setting out the principles, guidelines, standards and limits for:

(1) The measurement and assessment of noise emanating from any place other than domestic premises, a public place or a construction site.

(2) The issuing of NANs in respect of such noise.

(3) The determination of whether or not a NAN is being complied with. 

11.  It is further provided under s. 10 of the NCO that the Authority shall be guided by the TM when undertaking any measurement or assessment to determine if a NAN should be served under s. 13(1)(c).

12.  S. 13 of the NCO deals with the issue of the NANs.  It is provided as follows:

“13. Noise abatement notices

(1) Where the Authority is satisfied that noise is emanating from any place other than domestic premises, a public place or a construction site and that such noise, whether on its own or together with noise emanating from any other place other than domestic premises, a public place or a construction site,-

(a) is a source of annoyance to any person (other than a person in the place from which the noise is emanating) in any place considered to be a noise sensitive receiver in any Technical Memorandum issued under section 10;

(b) does not comply with any standard or limit prescribed for the purposes of this section; or

(c) does not comply with any standard or limit contained in [the TM] issued from time to time under section 10(1),

the Authority may serve a noise abatement notice in the prescribed form on any or all of the following-

(i) the person making the noise or causing or permitting the noise to be made; or

(ii) the owner, tenant, occupier or person in charge of the place from which the noise is emanating.

(2) A noise abatement notice served under subsection (1) relating to noise emanating from any place may require the person on whom it is served to abate the noise within the period specified therein and to do all things as may be necessary for that purpose, and may require the person on whom it is served to-

(a) ensure that the noise emanating from such place does not exceed any limit or standard specified in the notice;

(b) where the noise is emanating from such place by reason of the operation of any plant, machinery, vehicle, equipment or process, ensure that any such plant, machinery, vehicle, equipment or process is operated in accordance with any condition specified in the notice; and

(c) notify the Authority in writing within the period specified in the notice that any requirement referred to in paragraph (a) or (b) and specified in the notice has been complied with.

(3) In specifying a period under subsection (2) within which noise is to be abated, the Authority shall have regard to the nature, difficulty and complexity of complying with any requirement in the noise abatement notice.

(4) The Authority may, by notice in the prescribed form served on any person on whom a noise abatement notice has been served under subsection (1), cancel the noise abatement notice or vary any requirement therein.

(5) A noise abatement notice served under subsection (1) or any notice served under subsection (4) varying a requirement in a noise abatement notice shall not take effect until a date specified in any such notice, being a date not less than 21 days after the day on which the notice is served.

(6) Any person who, having been served with a noise abatement notice under subsection (1) or a notice under subsection (4), fails to comply with any requirement therein commits an offence.

(7) Any person who commits an offence under subsection (6) shall be liable-

(a) on first conviction to a fine of $100000;

(b) on second or subsequent conviction, to a fine of $200000, and in any case to a fine of $20000 for each day during which the offence continues.

(8)     Any person who, having been required to notify the Authority in writing under subsection (2)(c) that any requirement has been complied with, makes or furnishes any statement in so notifying the Authority which to his knowledge is misleading or false in a material particular, commits an offence and is liable to a fine of $50000.”

13.  Under s. 19 of the NCO, anyone aggrieved by the service of a NAN may appeal to the Appeal Board, which is appointed under s. 20 by the Chief Executive.  On hearing an appeal, the Appeal Board may receive evidence, and may confirm, reverse or vary the decision appealed against. 

B2.  The TM

14.  As mentioned above, the TM sets out the detailed principles, guidelines, standards, limits and procedures for the Authority to adopt and follow in relation to investigating a noise complaint and considering the issue of a NAN.  These relevant procedures and guidelines are in gist as follows.

15.  Under the TM, after receiving a noise complaint, the Authority shall:

(1) Determine the Acceptable Noise Level (“ANL”) for the Noise Sensitive Receiver (“NSR”) in question;

(2) Conduct measurements to obtain the Corrected Noise Level (“CNL”) of the noise under investigation; and

(3) Then, compare the CNL with the ANL to determine if a NAN may be issued.

16.  For the present purposes and as defined under the TM, domestic premises are regarded as a NSR.

17.  Further, to determine what is the ANL for a particular NSR at the time of the day under consideration, the Authority needs to first identify the NSR and then determine the Area Sensitive Rating (“ASR”) of the area within which the NSR is located.

18.  The ASR is a function of the type of area within which the NSR is located and the degree of the effect on the NSR of particular influencing factors (“IFs”)[2]. For the purpose of the TM, any industrial area, major road or the area within the boundary of the Airport shall be considered to be an IF. 

19.  After careful examination of the area under consideration and the effect of any IFs, the ASR may be found out from Table 1 (“Table 1”) of the TM by reference to the type of area containing the NSR. 

20.  At the same time, there are four types of area set out in Table 1, namely (a) rural area, including country parks or village type development (“rural area”), (b) low density residential area consisting of low-rise or isolated high-rise developments, (c) urban area, and (d) area other than those above. 

21.  In determining the type of area where the NSR is located, the Authority shall have regard to an area of adequate size (500 m radius for the present case) within which the NSR is located.  The Authority should also generally not take into account the presence of the premises or place from which the noise under investigation is emanating (that is, the School in the present case). However, the Authority should take that into account if that premises or place by virtue of its size or other characteristics plays a major role in determining the type of area within which the NSR is located. 

22.  Once the Authority has determined the type of the area where the NSR is located (i.e., whether it is a rural area, low density residential area consisting of low-rise or isolated high-rise developments, urban area or an area other than these), and the degree to which the NSR is affect by the IFs, the appropriate ASR can be identified by simply looking at Table 1.   There are three categories of ASR respectively named as “A”, “B” and “C”.

23.  Once the ASR is determined, the ANL for that determined ASR for the particular period of time of a day can further be found out by looking at Table 2 (“Table 2”) of the TM.

24.  At the same time, the CNL of the complaining NSR is worked out by measuring the noise level of that NSR over a period of sample time period in accordance with the TM under section 3. 

25.  If the CNL is greater than the ANL, the Authority may issue a NAN and serve it on the person or person occupying or supervising the place causing the exceeded noise level[3], requiring him to abate the noise to keep it within the ANL.

B3.  The School

26.  The School is situated at Lo Wai Tsuen (“Lo Wai Tsuen”), Pui O, Lantau Island at Lot 2855 DD 16, occupying three New Territories Exempt Houses (“NTEHs”)[4] viz House Nos. 17, 18 and 19. 

27.  The normal routine of the School is that it operates from 9:00 am to 3:00 pm, Monday to Friday.  The number of school days is 175 days per calendar year.

28.  In June 2008, the Applicant was offered the use of the adjacent government land by the School as a school courtyard.  This land was eventually rented to the Applicant under a Short Term Tenancy Agreement (“the Tenancy”). 

29.  The school courtyard is used by the students as a place for relaxation during recesses and lunch time.  The courtyard is also the only access to the male and female toilets on the ground floor.

30.  Recess times are from 10:15 am to 10:45 am and from 1:05 pm to 2:00 pm, whilst lunch time is between 12:00 pm and 12:45 pm. The School does not provide lunch to the students, who may choose to leave the School or stay and eat their lunch boxes at the courtyard or in the classrooms.

31.  Since February 2010, the School has operated four classes consisting of two Primary 4 classes, one Primary 5 class and one Primary 6 class.  Each class can accommodate up to 22 children.  In September 2010, a second Primary 5 class was added, while in September 2011, a second Primary 6 class was also added. 

B4.  The noise complaint

32.  As mentioned above, the School occupies House Nos. 17, 18 and 19 at Lo Wai Tsuen.

33.  There are similar such three-storeys village houses situated next to and around the School.

34.  On 24 September 2008, the Authority received a complaint from a Mrs Tam of noise emanating from the School.  Mrs Tam was the resident of House 20 (“House 20”) at Lo Wai Tsuen, which is situated adjacent to House 19, that is the School.

35.  House 20 (being for domestic use) is a NSR for the purpose of the TM.  There is also no dispute that the School is a place other than domestic premises, a public place or a construction site for the purposes of the NCO, and thus regulated for noise by the use of NAN under the NCO as mentioned above.

36.  According to the inspection of Ms Connie Wong (“Ms Wong”) of the Environmental Protection Department, House 20 and its surrounding area up to Pui O San Wan Tsuen was a sparsely developed area which is mainly comprised of village houses with some of them being used for small local business on the ground floor, such as an ironmongery (“the ironmongery”) located on the Ground Floor of House 22, and some holiday bungalows.

37.  On 24 November 2008 (which was a Monday), Ms Wong and others for the Authority carried out an investigation in relation to the complaint.  They took measurement of the noise levels emanating from the School at House 20.   The measurement was made from the bedroom on the 1st floor of House 20 around noontime. It lasted for about 30 minutes. The microphone of the sound level meter was placed through the window of the bedroom to the outside.  During this time, the students of the School came out to the courtyard.  The noise sources came from those students chatting, shouting and running at the courtyard at the back of the School.

38.  As the Authority determined that the type of the area within 500 m radius of House 20 (being the NSR) was “rural area” under Table 1, and that said NSR was not affected by any IFs, it further determined that the relevant ASR was thus “A” in accordance with Table A.  The relevant ANL by reference to Table 2 during that time of the day was therefore 60dB.  In so determining that the subject area was “rural area”, Ms Wong had excluded the School in her consideration, as she did not think that it played a major role in characterising the type of the area. 

39.  However, the CNL measured at House 20 as mentioned above of the noise emanating from the School was found to be 62.0 dB.  It exceeded the ANL by 2.0 dB.

40.  As a result, on 26 March 2009, the Authority issued a NAN No. N808024 (“the 2009 NAN”) against the Applicant under s. 13(1)(c) of the NCO.  The 2009 NAN was signed by Ms Wong.

41.  The 2009 NAN was to take effect on 4 May 2009, and its paragraphs 1 and 2 stated as follows:

“1. TAKE NOTICE that under section 13(1) of [the NCO] the Authority being satisfied that noise is emanating from activities, including student activities during recess time of [the School] at G/F Lot 2852 D.D. 316 Pui O and adjacent land granted under [the Tenancy] AND that such noise does not comply with the limits contained in the [TM] issued under section 10(1), as specified in section 13(1)(c), does hereby REQUIRE YOU within the period from 4 May 2009 to 31 August 2009 both days inclusive to abate the noise AND to ensure that at any time within six months commencing on 1 September 2009 the [CNL] of the noise emanating from activities of [the School] at G/F Lot 2852 D.D. 316 Pui O and adjacent land granted under [the Tenancy] does not exceed 60 dB(A) at 1 meter from the exterior of the building façade of any domestic premises at No. 16, 20, 20G, 22, 23, 23B, and 23C – 23D of Lo Wai Tsuen, Pui O , Lantau Island during the day and evening time period (0700 to 2300 hours) when assessed in accordance with [the TM] under section 13(2)(a).

2. If you fail to comply with any requirement of this notice, you are liable to prosecution for an offence under section 13(6). Upon first conviction, a court may impose a maximum fine of $100,000 and upon second or subsequent conviction, a maximum fine of $200,000 and in the case of any conviction, a fine of $20,000 for each day during which the offence continues…” (emphasis added)

42.  Thus, the 2009 NAN:

(1) Required the Applicant as the supervisor of the School to take measures to abate the noise emanating from the School to keep the CNL below 60.0dB during not only the daytime but also the evening period of 7 pm to 11 pm at any time within six months commencing on 1 September 2009.

(2) Included not only House 20 but also House Nos. 16, 20G, 23, 23B and 23C-D of Lo Wai Tsuen as the NSRs.

43.  On 20 April 2009, the School appealed to the Appeal Board the 2009 NAN under s. 19 of the NCO.  I would refer this to be the “2009 Appeal”.

44.  At the same time, in May 2009, the Applicant wrote to the District Land Office (“DLO”), seeking approval for the installation of a glass canopy at the courtyard (which was subject to the Tenancy) to, inter alia, curtail the noise.

45.  The Appeal Board heard the 2009 Appeal on 22 June 2009. The parties filed evidence, and Ms Wong also gave live evidence at the hearing. 

46.  By a decision dated 22 July 2009 (“the 2009 Decision”), the Appeal Board:

(1) Dismissed the 2009 Appeal, but varied the 2009 NAN by excluding the reference to House 16 because there were no domestic premises at House 16; and

(2) Made an order nisi that the Applicant shall pay the costs of the 2009 Appeal (“the 2009 Costs Decision”).

47.  In dismissing the 2009 Appeal, the Appeal Board, inter alia, accepted Ms Wong’s explanations and held that it was “legitimate and reasonable” for the Authority to include Houses 20G, 22, 23, 23B and 23C-D in the 2009 NAN even though no measurement were taken from these houses and no complaints were made by the occupiers of these houses. 

48.  After the 2009 Appeal, in order to offset the time spent for that appeal and to take into account of the 2009 Decision, on 31 August 2009, the Authority varied the 2009 NAN to become NAN No. NA(V)N No. N808024(V) (“the Varied 2009 NAN”) under s. 13(4) of the NCO to vary the period given to the Applicant to abate the noise to “within the period from 6 October 2009 to 1 February 2010 both days inclusive” and to exclude House 16.  The Varied 2009 NAN was to take effect on 5 October 2009.

49.  On 14 January 2010, the Applicant wrote to the Authority asking it to further extend the time to comply with the Varied 2009 NAN to 1 February 2011, as he had just been informed by the DLO that, although the request to install the glass canopy would be approved, it would take time for the formalities and the preparation of the necessary documentations to be completed.

50.  The Authority replied on 21 January 2010.  After having been advised by the DLO on the matter, the Authority was of the view that the Applicant should be able to comply with the requirements under the Varied 2009 NAN by the end of August 2010. 

51.  As a result, to extend the compliance period as aforesaid, the Applicant served the 2010 NAN on the Applicant.  The contents and requirements for abatement of noise between the two NAN are the same save that:

(1) The period of compliance of abatement of noise is changed to from 1 March 2010 to 31 August 2010, and

(2) The Applicant was required to ensure that the CNL emanating from the School does not exceed 60dB at any time within 6 months from 1 September 2010, instead of the original 6 months commencing from the expiry of the previous compliance period. 

52.  The 2010 NAN was to take effect on 1 March 2010.

53.  The Authority issued and served the new 2010 NAN instead of further varying the Varied 2009 NAN because it was of the view that, under the NCO, it could only amend or vary a NAN once.  As a result, it could not further amend the Varied 2009 NAN to further extend the time of compliance, and had to issue a new NAN to do so.

54.  In the letter dated 28 January 2010 accompanying the service of the 2010 NAN, the Authority also stated that the Varied 2009 NAN would be cancelled upon the 2010 NAN coming into effect.   It further said that if the Applicant was aggrieved by the service of the 2010 NAN, he might appeal to the Appeal Board pursuant to s. 19 of the NCO.

55.  This was what the Applicant did.  On 12 February 2010, he appealed to the Appeal Board against the 2010 NAN.  This is the 2010 Appeal.

56.  The parties filed evidence in the 2010 Appeal. The hearing of the 2010 Appeal took place on 7 and 17 June 2010.  Ms Wong again gave evidence and was cross-examined by the Applicant’s counsel.

57.  At paragraphs 39 to 62 of the 2010 Decision, the Appeal Board applied the doctrine of res judicata and held that it was not open to the Applicant to challenge the validity of the 2010 NAN which was substantially the same as the 2009 NAN.  However, it in any event went on to deal with and rejected the Applicant’s arguments on merits in the rest of the decision.  In summary, it rejected in the 2010 Decision, inter alia:

(1) The argument that the 2010 NAN was defective because the abatement was unreasonable[5].

(2) The argument that the ASR was unreasonable because the area was not a rural area[6].

(3) The argument that the Authority had acted unreasonably in using the 60dB in all the circumstances[7].

58.  As a result, by the 2010 Decision, the Appeal Board dismissed the 2010 Appeal but varied the 2010 NAN by:

(1) Excluding the reference to the G/F of House 22 (where it was occupied by the ironmongery) because it was not in use for domestic purposes.

(2) Extending the compliance period to 31 August 2011.

(3) Revising the time for commencement of the six-month period from 1 September 2010 to 1 September 2011. 

59.  Further, by the 2010 Costs Decision, the Appeal Board ordered the Applicant to pay the costs of the 2010 Appeal.

60.  On 8 November 2010, the Applicant applied for leave to apply for judicial review against the 2009 Decision, the 2009 Costs Decision, the 2010 Decision and the 2010 Costs Decision.

61.  On 12 November 2010, A Cheung J (as he then was) granted leave to apply for judicial review only against the 2010 Decision and 2010 Costs Decision, but refused to extend time for the Applicant to apply for judicial review against the 2009 Decision and the 2009 Costs Decision.

62.  Therefore, this judicial review only relates to the 2010 Decision and the 2010 Costs Decision.

C. This judicial review

63.  The Applicant raises four principal grounds in support of the judicial review.  I would deal them in turn.

C1.  Error of law[8]

64.  In the Notice of Appeal filed for the 2010 Appeal, the Applicant raised 4 grounds of appeal.  They were, as entitled in the Notice of Appeal, as follows:

(1) Under s. 19(2) of the NCO, the service of the 2010 NAN was not justified under the TM (“the 1^st ground”).

(2) Under s. 19(2)(a) of the NCO, the service of the 2010 NAN is not justified by the terms of the NCO (“the 2^nd ground”).

(3) Under s. 19(2)(b) of the NCO, there had been some defect or error in the form or content of the 2010 NAN (“the 3^rd ground”).

(4) Under s. 19(2)(c) of the NCO, the requirements of the 2010 NAN were unreasonable in character or extent or were unnecessary, in that the classification of the ASR as rural area in the present case was wrong and unreasonable (“the 4^th ground”).

65.  The Applicant had set out in greater details the arguments under each of these four grounds of appeal in the Notice of Appeal.

66.  At the hearing of 2010 Appeal, the Applicant added the 5^th ground of appeal (“the 5^th ground”).  Under the 5^th ground, the Applicant argued that (a) in determining the ASR, the Authority acted unreasonably in not taking noise measurement of the ironmongery (located at House 22), and (b) the Authority had unreasonably used the 60dB as the reference for the issue of the NAN since this would infringe the children’s right to engage in play and recreational activities enshrined in the international convention.

67.  After hearing the appeal, the Appeal Board accepted the Authority’s preliminary objection and concluded at paragraphs 39 to 62 of the 2010 Decision that the Applicant was estopped from raising any of these grounds under the doctrine of res judicata and the well known Yat Tung principle, since the 1^st, 2^nd, 3^rd and the 5^th ground could have been raised in the 2009 Appeal (against the 2009 NAN), while the 4^th ground had in fact been raised in the 2009 Appeal and rejected by the Appeal Board.  In coming to this conclusion, the Appeal Board was of the view that the doctrine applied because the 2009 NAN and the 2010 NAN were essentially and in substance the same. The only differences between them were (a) the compliance period of abatement, and (b) the exclusion of House 16 (as a NSR) in the 2010 NAN, and these were immaterial for that purpose.

68.  As mentioned above, notwithstanding its conclusion on res judicata, the Appeal Board in any event went on to rule against those grounds of appeal on merits in the 2010 Decision.

69.  In support of the present judicial review, Mr Ismail for the Applicant submits that the Appeal Board was wrong in law in holding that the doctrine of res judicata applied and that it was not opened to the Applicant to challenge the validity of the 2010 NAN. 

70.  The arguments set out in the Form 86 (which are repeated by counsel in his skeleton submissions) are as follows:

(1) The circumstances leading to the 2010 NAN were materially different from the circumstances leading to the 2009 NAN. In particular,

(a)  The 2009 NAN had been cancelled when the 2010 NAN came into effect on 1 March 2009;

(b) The compliance period of the 2009 NAN and the 2010 NAN are different;

(c)  The 2009 NAN included House 16 whereas the 2010 NAN did not; and

(d) The 2009 NAN was not made in response to a request for an extension of the noise abatement period whereas the 2010 NAN was.

(2) The 2010 Decision deprived the Applicant of its statutory right of appeal granted by s. 19(2) of the NCO.

(3) The doctrine of estoppel or res judicata does not apply as a matter of law because it cannot make an unlawful or invalid noise abatement notice into a lawful or valid one.  In support of this, the Applicant relies on Swallow and Pearson v Middlesex County Council [1953] 1 WLR 422 at 426; Mounsdon v Weymouth and Melcombe Regis Corpn [1960] 1 QB 645 at 655; Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 606, 616F-617C; Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1015.

71.  I reject the Applicant’s arguments for the following reasons.

72.  First, it is trite that the underlying rationale of the res judicata doctrine and the Yat Tung principle is to prevent abuse of the legal process by estopping a litigant from re-litigating the issues in a subsequent legal process which have or could have been raised in an earlier proceedings[9].

73.  Thus, in determining whether there is abuse of process in two proceedings, it is important is to look at, inter alia, whether (a) the issues raised in them relate to the same or essentially the same subject matter, and (b) if so, whether there are good reasons to justify the raising of these issues in the subsequent proceedings but not the first.

74.  In this respect, the Appeal Board is in my view correct to conclude that the 2009 NAN and the 2010 NAN are materially and essentially the same.  This is particularly so as the Applicant has not challenged the Authority’s case that the only reason it had to issue the 2010 NAN was because the 2009 NAN was already varied once (thus the Varied 2009 NAN), and under s. 13(4) of the NCO, there was no apparent mechanism in the NCO to enable the Authority to vary an already varied NAN.  It should be remembered that there was a need to further amend the Varied 2009 NAN to extend the compliance period (to reflect the time spent under the 2009 Appeal) and to exclude House 16 (to put into effect the Appeal Board’s order under the 2009 Appeal).  These changes did not affect materially the essential contents of the 2009 NAN, which was to require the Applicant to abate the noise.

75.  In other words, the subject matter under the 2009 Appeal and the 2010 Appeal were essentially and for all practical purposes the same.  

76.  The “differences” pointed out by Mr Ismail as set out in paragraph 70(1) above do not in my view in any way materially affect the nature and subject matter of the 2009 NAN and the 2010 NAN.  This is further underlined by the fact that all the appeal grounds raised in the 2010 Appeal did not relate to or were premised upon those changes resulted and incorporated in the 2010 NAN.

77.  Moreover, there is no suggestion as to why any of the 2010 appeal grounds which were not raised in the 2009 Appeal could not have been so raised. 

78.  In the circumstances, raising these grounds in the 2010 Appeal did amount to an abuse of process.

79.  Secondly, I do not accept that the application of res judicata amounts to depriving the Applicant’s statutory right of appeal under s.19(2) of NCO. I accept the Authority’s submissions that the Applicant’s statutory right to appeal does not entitle him to re-litigate matters which were decided in previous appeals or to raise new points which could have been raised in previous appeals.  It is his abuse of the process which in law has disentitled him from relying on those grounds in the new appeal. That has nothing to do with his statutory right of appeal.  The statue does not preclude the operation of the law on this respect to prevent abuse. The right of appeal must still be looked at in its proper context.  For example, if the Applicant could provide good reasons to explain why certain appeal grounds could not have been properly raised in the previous appeal, there would have been no abuse of the 2010 Appeal in raising those grounds.  

80.  Finally, I agree with the reasons set out by the Appeal Board at paragraphs 49-54 of the 2010 Decisions as to why the authorities relied on by the Applicant as set out in paragraph 70(3) above are not relevant to the issue of the applicability of res judicata in the present case.  For convenience, I would recite them as follows:

“49. The Appellant [i.e., the Applicant] also submits that by virtue of the legal principle set out in the following cases, the doctrine of estoppel and res judicata does not apply as a matter of law:

(a) Swallow and Pearson v Middlesex County Council [1953] 1 WLR 422 (“Swallow”)

(b) Mounsdon v Weymouth and Melcombe Regis Corporation [1960] 1QB 645 (“Mounsdon”)

(c) Newbury District Council v Secretary of State for the Environment [1981] AC 578 (“Newbury”)

(d) Kok Hoong v Leong Cheong Kweng Mines Limited [1964] AC 993 (“Kok Hoong”)

50. The Appellant refers the Board to the case of Swallow wherein the Court said the following in dismissing the appeal:

‘In that connexion Mr. Squibb referred me to W. Davis (Spitalfields) Ld v Huntley and Others. In that case it was held that a tenant, having applied for a new lease under the Landlord and Tenant Act, 1927, on the basis of his existing lease having been determined, could not thereafter as against the landlord set up that a notice given to him by the landlord was invalid and had not terminated the lease. I am not in my own mind quite clear how far those principles apply when one is considering something which is prescribed by Act of Parliament. There is no doubt that a man in such a case is entitled to waive, or to agree to waive, the advantage of the law or rule made solely for his benefit and protection. It is equally clear that no person can waive a provision or a requirement of the law which is not solely for his benefit but which is for the public benefit. In my view, however, in this case, if one looks at it more closely, the plaintiffs are not waiving some irregularity for their benefit, but, it is said, are estopped from denying that a particular document is valid. This enforcement notice is one which Parliament has said must be in a particular form, and when it is in that particular form its non-observance is a criminal offence, not only on the part of the person on whom it is served but, in some cases, on others, and I cannot think that in such a case a person can make a document which is patently unenforceable on its face into a valid document carrying the consequences which I have described. I do not think that any amount of so-called waiver or approbation can make a document such as this, which is patently and wholly invalid, into a valid document with the consequence that would follow.’

51. The Board finds that waiver in the above case concerns a provision or a requirement of the law.  It does not relate to or consider as the doctrine of res judicata.  The Board is unable to see how this case will assist the Appellant’s argument that the doctrine of res judicata has no application in the present appeal.  The Board is unable to accept the Appellant’s submission.

52. Regarding the cases of Mounsdon and Newbury, the Board opines that they are not related to res judicata.  In these two cases, the Court held that the validity of an enforcement notice was either contrary to the applicable legislation or was called into question for the first time in litigation.  Indeed, the doctrine of res judicata was not mentioned in the judgments.

53. The Appellant refers the Board to the judgment in Kok Hoong wherein the Privy Council said:

‘The respondent has invoked in support of its defence a principle which appears in our law in many forms, that a party cannot set up an estoppel in the face of a statue. Thus a corporation upon which there is imposed a statutory duty to carry out certain acts in the interest of the public cannot preclude itself by estoppel in pais from performing its duty and asserting legal rights accordingly. … Given a “statutory obligation of an unconditional character” it is not open to the court to allow the party bound by that obligation to be barred from carrying it out by the operation of an estoppel. Similarly, there is, in most cases, no estoppel against a defendant who wishes to set up the statutory invalidity of some contract or transaction upon which he is being sued, despite the fact that by conduct or other means he would otherwise be bound by estoppel …’.

54. In the present appeal, the Appellant is not suggesting estoppel against the statutory obligation as in Kok Hoong.  Thus, Kok Hoong cannot be applied in the present appeal.  Further, the Privy Council in Kok Hoong held that ‘the full rigour’ of the Henderson Principle should not be applied to a default judgment, which is again not the case in the present appeal.”

81.  Insofar as the Applicant is raising the argument that the application of res judicata restricts his statutory right of appeal and thus Kok is relevant, I have already said in the above that his statutory right isnot deprived of by the doctrine.    

82.  For the above reasons, the Appeal Board has made no error of law in its conclusion that the doctrine of res judicata applied and the Applicant was estopped from raising all his grounds of appeal in the 2010 Appeal.

83.  I therefore reject the Applicant’s first ground of judicial review.

84.  This would have disposed of the entire judicial review.  However, given that the Appeal Board had gone into the ruling on the other grounds (of which the Applicant now raises further grounds of judicial review) and for completeness, I would deal with the other grounds of the judicial review as follows.

C2.  Unlawfulness and/or Wednesbury unreasonableness

85.  There are three subsidiary grounds raised under this ground, whereby the Applicant contends that:

(1) The Authority had failed to follow the TM properly to determine the type of the subject area as a “rural area” for the purpose of the determination ASR in the present case. The Applicant argued that had the TM been properly followed, the subject area should have been categorised as a “semi-rural area” instead of a “rural area” (“the semi-rural argument”).  As a result, the Appeal Board’s decision to confirm and accept the Authority’s said determination is unlawful or unreasonable because it had either failed in the 2010 Decision to deal with the Applicant’s semi-rural argument or it had come to a conclusion that was inconsistent with the same.   The Applicant cited in support the authority of R v Secretary of the State for the Home Department, ex parte Iyadurai (1998) Imm AR 472 (Lexus) at p 4 of 13.  I would call this the “semi-rural argument ground”[10].

(2) The 2010 Decision is also unlawful or Wednesbury unreasonable in not finding that the Authority had failed to follow the TM in including Houses 16, 20G, 22, 23, 23B and 23C-23D in the 2010 NAN.  I will refer this as “the failure to follow the TM ground”[11].

(3) The Appeal Board’s new deadline of 31 August 2011 is unlawful in that this extended period was made in contravention of s. 13(3) of the NCO or is Wednesbury unreasonable in all the circumstances. I will call this “the contravention of the NCO ground”[12].

C2.1  The semi-rural argument ground

86.  To deal with the contentions under the semi-rural argument ground, it is necessary first to understand what the semi-rural argument is.  It runs as follows.

(1) Para 2.3.1 of the TM requires the Authority to have a “careful examination of the area under consideration” in determining the ASR.

(2) Further, the description in Table 1 have to be read in a “practical down-to-earth way” and in the context of the whole of the TM, and the Authority cannot depart or ignore the TM without cogent reasons:  Shiu Wing Steel Ltd v Director of Environmental Protection (2006) 9 HKCFAR 478 at paras 23 and 26 (pp 496-497).

(3) When examined carefully, the area under the present consideration is not a “rural area” because a rural area does not have as in the present case:

(a)  Village houses with some small local business located only at the ground floor of some village houses;

(b) Clusters of NTEH which have been put into commercial uses such as holiday bungalows or many NTEHs which have on their ground floor commercial uses such as the ironmongery and a publishing business; and

(c)  The ironmongery carrying on business every day with noise like the roaring of machines in construction sites or which operates daily with noisy machines.

(4) In the circumstances, and taking into account in particular the presence of the ironmongery at the ground floor of House 22 and the existing and potential commercial uses of the NTEHs, the area under consideration is at best a “semi-rural area” which comes within the “area other than those above” category in Table 1. 

(5) If the area had been so properly designated as an “area other than those above” category, the relevant ASR would be “B” under Table 1, which means that the relevant ANL would be 65dB. 

(6) In which case, the CNL of 62dB as found does not exceed the relevant ANL, and the issue of the 2010 NAN is thus wrongful and invalid.

87.  The Applicant primarily complains that the Appeal Board had effectively failed to deal with the semi-rural argument.

88.  The Appeal Board dealt with the arguments on the ASR determination at paragraphs 108-114 of the 2010 Decision as follows:

“108. The Appellant considers that the ASR of 60 dB(A) is unreasonable because the area is not a rural area.

109. The Appellant relies on the finding by the Town Planning Appeal Board (‘TPAB’) which made a visit to the School and found that there were trade and commercial activities such as ironmongery, guesthouses, a publishing business and a club/bar. According to the Appellant, the situation is the same today and the Respondent has not said otherwise.

110. The Board does not consider the finding by TPAB of much assistance to the Appellant’s present appeal. The Board notes that the TPAB was not required to decide whether the area was or was not a rural area or whether the ‘V’ zone was a correct zoning. It was only concerned whether the School was compatible with zoning as village type development. The TPAB concluded that it was compatible. However, there is no finding by the TPAB (which in any event is not binding on this Board) that the area was or was not a rural area.

111. The Appellant also submits that the size of the School is not small (being of total of 831 m²) and the building which the School occupied had previously been used as a hotel. There is no evidence that the site had ever been used as New Territories Exempted Houses for residential purpose. As a matter of common sense, an area with such trade and commercial activities and a school of such size that was formerly a hotel is either not rural or not wholly rural. At the highest, the area is semi-rural. In either case, it should be properly classified in ‘(iv) Area other than above’. This, according to the Appellant, makes sense and is consistent with the TM because an area with trade and commercial activities does not need the same level of protection from noise as an area without them.

112. In reply thereto, the Respondent relies on the evidence of Ms. Wong who said that the size of the School would not affect the assessment of the type of the subject area given the hundreds and even a thousand village houses in the subject area which consists of an area of 500 m radius. Further, the larger the school is, the more likely that the noise generated will exceed the ANL of 60 dB(A).

113. Regarding the commercial use in the vicinity of the School, the Respondent submits that the Appellant has ignored that (a) some of the commercial uses are holiday houses (NSR); and (b) the domestic premises in the upper floors of the village houses although there may be shops and eating places on the ground floors. These are NSRs requiring protection. In any event, commercial uses scattered around in the vicinity of the School are not of such scale or intensity as to alter the rural and village type development of the subject area. The area opposite the School at South Lantau Road Consists of preservation area and there is no development at all at this piece of land.

114. Having considered the evidence before the Board including the index plan and the photographs, the board prefers the argument put forward by the Respondent and finds that the subject area is still a rural one.  Although the size of the School is not small, it cannot by any means be said to be of such size and character that it plays a major role in determining the type of area within which the NSRs are located. ”

89.  In my view, reading these parts of the 2010 Decision properly and in context, the Appeal Board had properly and adequately considered the Applicant’s semi-rural argument together with the evidence laid before it.  It must be remembered that a written judgment or reasoned decision is not intended to be a full transcript of the proceedings before the tribunal. 

90.  In this respect, reading these parts of the 2010 Decision as a whole, the Board accepted the Authority’s submissions and evidence on the justifications as to why it had not included the School (which was in any event the default position in the TM as mentioned at paragraph 21 above) to consider the type of the subject area, and why even after taking into account of the types and extents of the commercial activities existed in the area and the existence of the ironmongery, it still concluded that it was a “rural area”.   This is a conclusion which the Appeal Board (and to that extent the Authority) was entitled to form and come to.

91.  Insofar as the Applicant is now arguing that the Authority (and thus the Appeal Board) in determining the type of the area under assessment should also take into consideration what he says to be the “potential commercial” use of the area, I will reject it.  I do not think it is intended in the TM that the potential use should be taken into account, as the whole assessment exercise is directed to have noise control of the existing environment.  In any event, I doubt whether this “potential use” argument had been advanced before the Appeal Board in the 2010 Appeal.  If not, it should not be entertained now for reasons explained at paragraph 104 below. 

92.  The alternative complaint under this ground is that, if it had considered properly the semi-rural argument, it is unlawful for the Appeal Board to have found against it. 

93.  The principal basis of this part of Mr Ismail’s arguments is that the Authority and the Appeal Board had a duty to not only properly consider the information which was available to them (i.e., commercial activities and the presence of the ironmongery), but also to come to an opinion which is consistent with those information.  In this respect of the challenge, the Applicant relies heavily on the failure (says the Applicant) of the Authority and the Appeal Board to put sufficient weight to the presence of a noisy ironmongery located on the ground floor of House 22.

94.  From the evidence, Ms Wong had taken into account of the presence of the ironmongery and the nature and extent of the commercial activities existed in the area near the School.  Her evidence (before the Appeal Board) in this regard is set out in her witness statements respectively filed in the 2009 Appeal and the 2010 Appeal.  It is as follows:

(1) In the 2009 witness statement:

“9. Since I noted that Mrs. TAM’s premises and the surrounding area up to Pui O San Wai Tsuen was a sparsely developed area comprising of village houses with some small local business located only at the ground floor of some village houses and there was almost no development on the opposite side of South Lantau Road, I considered that Mrs. TAM’s premises was located on rural area or village type developments according to Table 1 of the TM. A map showing the surrounding area of Mrs. TAM’s premises is given in Appendix 2.

10. When reviewing the effect of any Influencing Factors (IFs) according to Section 2.3.3 of the TM, I noted that there was a family-scale ironwork shop located at the ground floor of 22 Pui O Lo Wai Tsuen.  However, I considered that the scale of this ironwork operation was no significant enough to be considered as an industrial area under Section 2.3.3 of the TM.  Besides, the Annual Average Daily Traffic (AADT) and peak hour flow of this section of South Lantau Road in 2007 was 2,430 vehicles and less than 300 vehicles respectively as published by the Transport Department.  A copy of the relevant statistics compiled by the Transport Department is attached hereto at Appendix 3.  Therefore this section of South Lantau Road could not be considered as a major road according to Section 2.3.3 of the TM.  Also, the noise measurement was taken at the rear side of Mrs. TAM’s premises.  I could not hear any traffic noise during the measurement process and I considered that the noise measurement results have not been affected by the traffic of South Lantau Road.  Therefore, I considered that Mrs. TAM’s premises was not located in an industrial area, major road or an area within the boundary of Hong Kong International Airport and was not affected by any factor that could be considered as an Influencing Factors (IFs) according to Section 2.3.3 of the TM. I accepted that Mrs. TAM premises had an Area Sensitivity Rating (ASR) of ‘A’ according to Table 1 of the TM, and I concurred the application of 60db(A) as the ANL according to Table 2 of the TM.”

(2) In the 2010 witness statement:

“14. I have also reviewed my previous assessment. I considered that [the School], by virtue of its small size did not play a major role in determining the type of area within which the noise sensitive receiver (NSR) is located. I re-confirmed my view that the area should be regarded as a rural area, including country parks of village type developments. In addition, the ANL of 60dB(A) was determined based on the Area Sensitivity Rating (ASR), which is a function of the type of area and the degree of the effect of any Influencing Factor (IF) (see paragraph 2.3.3. of TM). The various small local businesses and the ironmongery at G/F of No. 22, Lo Wai Tsuen, Pui O, Lantau Island had already been considered when determining the type of area and the presence of IF. As such, in determining the ANL of 60dB(A), I had already taken into account all relevant considerations.

15. I noted that the Appellant [i.e., the Applicant herein] also commented that similar NAN had not been issued against all premises at the same or closer distance from the domestic premises such as the ironmongery premises.  I recalled that I had not noticed any noisy activity from other premises including the said ironmongery during my previous visits to the subject area, and had not received complaint from the nearby residents on noise emanating from those premises so far.  In a letter dated 22 December 2008, the Appellant did express noise emanating from the said ironmongery.  To address his concern, we proposed to the Appellant in our letter dated 26 February 2009 to take noise measurement at the school premises.  However, the Appellant did not respond to this suggestion to arrange for noise measurement at the school premises.  Since no noise measurement was taken to prove the said ironmongery did emanate excessive noise, no NAN was served on the said ironmongery.  Copies of the said letters dated 22 December 2008 and 26 February 2009 respectively are attached hereto at Appendix 8.”

95.  This evidence shows that the Authority (and thus the Appeal Board) had taken into account of the existence of the ironmongery. The Authority had also explained why no noise measurements were taken of the ironmongery.  The Appeal Board accepted the evidence.  The Appeal Board had also referred to the Town Planning Board’s finding that there were trade and commercial activities such as ironmongery, guesthouses, a publishing business and a club/bar in the area (see paragraphs 109 and 110 of the 2010 Decision quoted above).  After considering all these, it had come to the view that, with all the evidence before it, the Authority’s conclusion that the area should be categorised as “rural area” was a reasonable one and could be supported.

96.  Looking at the evidence and information placed before the Authority and the Appeal Board, including those set out above, I have come to the clear view that the Authority and the Appeal Board had properly discharged their respective duty in considering all the relevant evidence and information in determining this question.  It was entitled to form the view as it did.

97.  This Court in judicial review is not concerned with the merits of the findings, in particular factual ones, of the Appeal Board. It would only interfere in those findings and the decision if they contain errors of law, are unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.

98.  It is not expressly suggested (and I think rightly so) that such conclusion in light of the evidence is Wednesbury unreasonable.   However, even if it were so suggested, I would not have accepted it, as I think with all the evidence before the Authority and Appeal Board, the said categorisation of the subject area as “rural area” as provided under the TM cannot be said to be so unreasonable that no reasonable person in the position of the Authority or the Appeal Board could have come to.   It is also worth noting that the TM does not provide a detail definition for each of those four types of area as set out in Table 1.  This, in my view, is intended to give the Authority a wide discretion to determine the type of the subject area after inspection, to cater for no doubt the potentially very diverse and different environments surrounding different subject areas.

99.  Towards the end of the hearing before me, the Applicant raised the further argument (in support of the semi-rural argument) that there existed another larger school (the Bui O Public School) within 500 m radius of House 20.  The Authority in accordance with the TM should take this school into account in considering what type of the subject area was for the purpose of determining the ASR.  If it had not done so, the determination contained an error in failing to follow the TM.  If it had in fact so taken into account of this school, which no doubt generated significant noise with its significant school size and activities, the area should reasonably and properly be categorised as at least a “semi-rural area” and thus an “area other than above” under Table 1.

100.  This new argument is not included in the Form 86.  It was not an issue between the parties.  There is thus no evidence before me as to whether Ms Wong had taken into account of this school when she determined the type of this area.  Ms Sara Tong for the Authority protested that the Applicant should not be allowed to raise this new point now.  But doing the best as she could at that time, she on her feet submitted on instructions that Ms Wong had in fact taken this school into consideration in determining the type of the area in the present case. 

101.  In light of this new point, and that there was also a doubt at the hearing before me as to whether this argument had been raised before the Appeal Board during the cross-examination of Ms Wong, I gave directions that the parties could file further evidence and written submissions on this argument.  These were done.  The last submissions (being the Authority’s) were filed on 1 September.

102.  After reading the new evidence[13] and the submissions made, and looking at the materials placed before the Appeal Board again, I am satisfied that this argument was not raised in the 2010 Appeal before the Appeal Board.  This is further underlined by (a) the lack of any reference to this argument in the Form 86, and (b) the fact that, when asked by this Court in his opening on what he regarded as the factors that he said should make the categorisation of the area into a “semi-rural” one, Mr Ismail for the Applicant only referred to the commercial activities and the presence of the ironmongery in the area.  There was no mentioning of the Bui O Public School.

103.  In the circumstances, this argument is an entirely new one.  

104.  Judicial review is not an appeal and the function of the Court is not to rehear the case on its merits.  It is not for this Court in a supervisory role to consider an issue (in particular a fact sensitive one) that was never raised and argued before the Appeal Board.  Not only is that this could not be relied on by the Applicant to show that the Appeal Board was wrong (in the public law sense) in coming to the decision as this had not been argued before it, this would also effectively allow an applicant to mount a second or alternative appeal under the pretence of judicial review[14]. This should not be permitted unless there are good reasons to do so.

105.  I am not satisfied that there are any good reasons to justify the Applicant only raising this argument now.  I would therefore not allow the Applicant to raise it. 

106.  In the premises, the Appeal Board had properly considered the semi-rural argument and its decision is not unlawful.  I would dismiss this ground of the judicial review.

C2.2 The failure to follow the TM ground

107.  The Applicant submits that the Authority in including Houses 20G, 22, 23, 23B and 23C-23D (collectively “the Other Houses”) in the 2010 NAN had failed to follow the TM since:

(1) There had been no complaints from the occupants of these houses;

(2) There had been no determination of the appropriate MNL from these houses (in accordance to paras 2.1(a) and (b) of the TM); and

(3) The G/F of House 22 was not a NSR as defined in para 2.2 of the TM.

108.  It must first be noted that the argument set out at paragraph 107(1) above was not raised in the 2010 Appeal, although it was argued but rejected by the Appeal Board in the 2009 Appeal.  The Applicant however was refused leave for judicial review against the 2009 Decision.  In the premises, for similar reasons I have explained above, the Applicant should not be allowed to raise this ground in this judicial review against the 2010 Decision.

109.  In case I am wrong on this, I would deal with these grounds as follows.

110.  Paragraphs 2.1(a) and (b) of the TM provide as follows:

“2.1. General

The appropriate Acceptable Noise Level (ANL) for a particular Noise Sensitive Receiver (NSR) is dependent upon the character of the area within which the NSR is located, and the time of day under consideration.

The Steps to be followed in determining an ANL are as follows:

(a) identify the NSR, in accordance with Section 2.2;

(b) determine the Area Sensitivity Rating (ASR) of the area within which the NSR is located, in accordance with Section 2.3; and …”

111.  In relation to NSR, para 2.2 of the MT says this:

“2.2. Location of the Noise Sensitive Receiver (NSR)

For the purpose of this Technical Memorandum any domestic premises, hotel, hostel, temporary housing accommodation, hospital, medical clinic, educational institution, place of public worship, library, court of law or performing arts centre shall be considered to be a NSR.  Any other premises or place, not being in the nature of either industrial or commercial premises, which is considered by the Authority to have a similar sensitivity to noise as the premises and places above shall also be considered to be a NSR.  Any premises or place shall, however, be considered to be a NSR only when it is in use for its intended purposes.”

112.  NSR thus is a generic term used in the TM to refer to a wide range of users in an area. Under paragraph 2.2 of the TM, any domestic premises shall be considered to be a NSR.  There is no dispute that House 20 and the Other Houses (except the G/F of House 22) are also domestic premises and thus NSRs.

113.  The Applicant’s above contentions have however, in my view, confused the complainant NSR and the other NSRs in the area.

114.  The complainant of course has to be in a NSR herself.  However, the TM does not provide that if the complaint of noise vis-à-vis the complainant NSR is established in accordance with the TM, the Authority cannot issue the NAN which includes references to other non-complaining NSRs which are likely to be similarly affected. Further, the TM also does not require that any such inclusions must be premised upon individual measurements of MNL. Such an inclusion of non-complaining NSRs of course has to be reasonable and justified in all the circumstances.

115.  There is thus no breach of the TM per se in including the Other Houses[15] in the 2010 NAN as long as it was justified and reasonable to do so in the circumstances.

116.  In the present case, the Authority explained that it had included the Other Houses in the 2010 NAN because these houses were in close proximity of the School[16]. The Appeal Board in the 2009 Appeal accepted the reasons.

117.  I cannot say that these explanations are unreasonable in the Wednesbury sense[17].

118.  It is not disputed by the Authority that the G/F of House 22 (where the ironmongery is located) is not a NSR.  However, its case was that the upper floors of House 22 were domestic premises.  Thus, it referred to House 22 in the 2009 NAN (and thus 2010 NAN) by saying “any domestic premises at [the Other Houses]” to protect the domestic premises at these houses from noise emanating from the School.  Therefore, the G/F of House 22 would not be a subject of protection under the 2009 and 2010 NAN.  The Appeal Board appeared to have accepted this but decided to exclude such premises from the 2010 NAN in any event to avoid any possible ambiguity[18].

119.  Given that the Appeal Board decided in the 2010 Decision to exclude the G/F of House 22 from the 2010 NAN (which in effect reflected the Applicant’s complaint), I cannot see how this could now constitute a ground for judicial review against that decision. 

120.  In the circumstances, I do not find the Appeal Board’s decision to confirm the inclusion of the Other Houses (except the G/F of House 22) in the 2010 NAN contravened the TM as submitted or unreasonable. I too will reject this ground of judicial review.

C2.3 The contravention of the NCO ground

121.  S. 13(3) of the NCO provides that the Authority in specifying a period of compliance in the NAN, it “shall have regard to the nature, difficulty and complexity of complying with any requirement in the [NAN]”.

122.  In order to comply with the 2009 NAN and later the 2010 NAN, the Applicant’s original intention was to install a glass canopy to abate the noise.  This involved seeking consent from the DLO to vary the Tenancy.  The Applicant had been negotiating with the DLO for that purpose notwithstanding the 2009 and 2010 Appeals.

123.  By a letter dated 2 July 2010, the DLO offered the Applicant a supplementary agreement to modify the Tenancy so that the Applicant could install the tempered glass canopy over part of the school courtyard.

124.  However, under this offer, the DLO required the Applicant to obtain approval by the Buildings Department for the installation of the glass canopy and demanded an increase of 56.3% in rent. 

125.  The Applicant found these terms not acceptable, as it was beyond his control as to whether he could obtain the Buildings Department’s approval. He also said that the increase in rent was commercially unreasonable and unacceptable.

126.  By his solicitors’ letter dated 21 July 2010, the Applicant informed the Appeal Board about his refusal to accept the supplementary agreement and the reasons behind it. 

127.  The Appeal Board at paragraphs 91 to 98 of the 2010 Decision explained why it only extended the compliance period to 31 August 2011 as follows:

“91. Secondly and more importantly, the new NAN (indeed following what had been provided for in old NAN) requires the Appellant to abate the noise within the period specified. The Respondent did not specify what measure or works need to be carried out by the Appellant in the new NAN. It is up to the Appellant to consider what measures or works should be carried out in order to have the noise be abated below the statutory limit stated in the new NAN. The Appellant came to the view that a glass canopy should be constructed at the STT land. This proposal was considered by the LandsD to be viable subject to the glass canopy being not connected to the buildings. The Respondent also considered the Appellant’s proposal to be viable and hence proceeded on this basis when issuing the new NAN.

92. However, it is vital to note that the glass canopy is a proposal made by the Appellant, not a measure or work requested or directed by the Respondent in the new NAN. Had the Respondent required the Appellant to construct a glass canopy at the STT land, the situation would be entirely different and the Appellant is justified to make complaints about those matters raised in paragraphs 87 and 88 above. However, what the new NAN requires is an abatement of noise by the Appellant within the abatement period. Construction of a glass canopy is one of the possible measures. However, there is no evidence before the Board that this is the only possible measure. Thus, the Appellant should bear the responsibility to ensure that reasonable steps be taken by it during the abatement period to ensure that the noise could be abated as specified in the new NAN. Such reasonable measures include engaging AP to prepare building plans and drainage plans for submissions to the BA for approval even though the terms of supplementary agreement was still being negotiated. In the Board’s view, it is not reasonable for the Appellant to delay the engagement of AP simply on the ground that the Appellant has not had sight of the supplementary agreement and does not know whether he would accept the terms and conditions imposed under the supplementary agreement. Assuming that the Appellant does not accept the terms and conditions imposed by the LandsD through the supplementary agreement, it does not mean that the Appellant is excused from complying with the requirements stated in the new NAN. As the Board has just indicated, the Board is not satisfied on the basis of evidence before us that there is no measure other than the construction of glass canopy to abate the noise.

93. By reason of the matters aforesaid, the Board does not find merits in the Appellant’s second ground of appeal.

94. As the matter now transpires, if the Appellant wishes to implement the option of constructing glass canopy, it should give serious consideration to the supplementary agreement (which the Board understands from the parties’ correspondences to the Board after the hearing) which has been sent to the Appellant.

95. It is noted that the Respondent has invited the Board to consider varying the new NAN in the event that the appeal is dismissed. The Respondent suggests that the period to be given to the Appellant to comply with the requirements of the new NAN should be varied from the period between “1^st March 2010 and 31^st August 2010” to “within the period ending 1^st March 2011” or to such period as the Board shall deem fit.

96. The Board is prepared to give further time to the Appellant for implementing the glass canopy option and will vary the new NAN to that effect.

97. To minimize any possible disruption to the study of school children during construction of the glass canopy, the Board comes to the view that it would be desirable to have the construction works be carried out during summer vacation. There is no chance that the construction of the glass canopy can be carried out during this summer vacation. Thus, the Board will vary the NAN and extend the time of compliance to 31^st August 2011.

98. However, if the Appellant decides that he will not take up the offer by the LandsD and will not enter into a supplementary agreement, he should forthwith decide and implement whatever alternative ways or measures to ensure that the noise can be abated below 60db(A) by 31^st August 2011.”

128.  Mr Ismail for the Applicant says the said decision is unreasonable in the public law sense because the 2010 NAN was issued on the basis that a tempered glass canopy would be installed.  He also says this part of decision shows that the Appeal Board had failed to give sufficient weight to the Applicant’s solicitors’ letter and in fact forced the Applicant to accept the supplementary agreement offered by the DLO.  The Appeal Board thus was not having sufficient regard to the complexity and nature of the compliance as required under s. 13(3) of the NCO.

129.  With respect to Mr Ismail, I do not agree.

130.  First, I think it is wrong to say that the 2010 NAN was issued on the basis that a glass canopy was to be installed.  The 2009 and the 2010 NAN were respectively issued because the noise generated from the School was found to have exceeded the relevant ANL. It was issued to require the Applicant to abate the noise.  It was then up to the Applicant to decide what to do to abate the noise.  It was the Applicant’s own original intention to do this by installing the glass canopy.  The 2010 NAN was thus not issued on the basis of a glass canopy was to be installed, although it is correct to say that the initial compliance period set out in it took into account of the Applicant’s information concerning the installation of the glass canopy. 

131.  Second, it is also clear that the Appeal Board was aware of the fact that the choice of installing a canopy was the Applicant’s but not the result of the Authority’s direction in issuing the NAN[19].  The Appeal Board also understood fully that it was entirely the Applicant’s own decision as to what alternative measures he would take to comply with the abatement if he decided at the end not to take up the supplementary agreement[20].  It was also clearly aware of the Applicant’s indication under the solicitors’ letter that he found the terms offered by the DLO unacceptable.

132.  All that the Appeal Board was then saying in the decision is that the new period of compliance was reasonable if the Applicant decided eventually to go ahead with the installation of the glass canopy, which was the only concrete means of noise abatement put forward by the Applicant at that time.  Even if the Applicant decided not to enter into the supplementary agreement, it was up to him to come up with other abatement measures, and the period of one year (between August 2010 and August 2011) appeared to be a reasonable one for compliance.  The Appeal Board even took into account of the extra time that might be required in order not to cause too much interruption of the school days. 

133.  Thus, in fixing the compliance period, the Appeal Board had had regard to the nature, difficulty and complexity of the compliance under the 2010 NAN. 

134.  For these reasons, I also do not find that the Appeal Board had failed to give sufficient weight to the solicitors’ letter or had contravened s. 13(3) of the NCO.

135.  I also do not find this part of the decision to be Wednesbury unreasonable.  The installation of the glass canopy was at that time the only abatement measures put forward by the Applicant, the preparation of which had progressed to an advanced stage.  Notwithstanding the Applicant’s indication of his unacceptance of the terms offered by the DLO under the supplementary agreement, there was nothing to stop the Applicant and the DLO to further negotiate these terms to eventually reach an agreement.  It is therefore not unreasonable in my view for the Appeal Board at that time to still proceed to fix the compliance period on this basis.

136.  Further, it was the Applicant’s responsibility to come up with an alternative abatement measures if he decided not to install the glass canopy.  I also do not find anything unreasonable for the Appeal Board to regard the one year compliance time as reasonable.  The Appeal Board must start from somewhere, and without the Applicant at that time suggesting any alternative measures, the Appeal Board’s decision to proceed on the basis of one year in all the circumstances could not be criticised as Wednesbury unreasonable. This is particularly so as the Applicant could apply to the Authority to extend the time later if so justified.  

137.  This ground of the judicial review therefore also fails.

C3. Wednesbury unreasonableness

138.  This ground is set out at paragraph 105 of the Form 86, which includes three bases. In Mr Ismail’s skeleton (at paragraphs 67-70), he is pursuing only the basis set out at paragraph 105.1.  At the hearing he also argues the other basis set out at paragraph 105.2.   I would therefore only deal with these two arguments in this judgment.

139.  Under these two bases, the Applicant argues that the Appeal Board’s decision in affirming the 2010 NAN was unreasonable in:

(1) Requiring the Applicant not to exceed 60dB during the evening period (19:00 to 23:00) from Monday to Sunday because the School operated from 9am to 3pm from Monday to Friday only.  Therefore, it was wrong to use the MNL from House 20 obtained at 12:02 pm (62dB) on a Monday and apply it to the evening periods and from Monday to Sunday;

(2) Not considering that 2dB above the ANL of 60dB as insignificant. 

140.  As pointed out by the Authority, the above contentions were not raised and argued before the Appeal Board in the 2010 Appeal.  There are no good reasons why these arguments could not have been raised in that appeal.  

141.  For the same reasons I mentioned above in paragraph 104, I would not allow these arguments now to be raised in this judicial review.  In particular, the determination of these arguments would require making finding of facts, which should only be properly done by the Appeal Board.

142.  For example, without prejudice to the Authority’s argument that the Applicant should not be allowed to raise these new grounds, Ms Wong has by way of her affidavit filed in the judicial review explained (a) why she found it necessary and reasonable to include those periods in the 2010 NAN[21], and (b) why the difference of 2dB could not regarded as insignificant[22].  These are matters that should have been resolved by the Appeal Board in hearing evidence had the arguments been raised.  It is not for this Court in a judicial review to determine whether such evidence should be accepted and preferred. 

143.  In any event, without determining the correctness of such evidence, I do not find the above explanations given by Ms Wong are Wednesbury unreasonable.  For these purposes, I also note that under Table 2, the ANL (with non-affecting IFs) for a rural area is 60dB while the corresponding ANL for say an urban area is 65dB.  Simply looking at these, I cannot say the difference of 2dB on its face is plainly insignificant.   In the circumstances, even if I had allowed these arguments to be raised now, I would not have accepted them. 

144.  I would therefore reject this ground of judicial review. 

C4. Contravention of the Bill of Rights (“the BOR”) and the United Nations Convention on the Rights of the Child (“the Convention”)

145.  The Applicant submits that the 2010 NAN restricts the children at the School to activities during recess that do not exceed 60dB at the courtyard.  This is in breach of Article 20 of the BOR, and in contravention of ss 2(5) and 7 of the Bill of Rights Ordinance (Cap 383) (“BORO”) and Articles 3, 24 and 31(1) and (2) of the Convention[23].

146.  The contentions are without merits.

147.  The Applicant’s arguments are premised on the fundamental submission that the 2010 NAN restricts the children’s activities. This submission would only make sense if the only practical method to comply with the 2010 NAN is to restrict the children’s activities as suggested.

148.  However, the 2010 NAN does not have any such effect.  All it does is to require the Applicant to install and impose measures to abate the noise.  For that purpose, it is not even suggested by the Applicant himself that the only measures to achieve that is to restrict the students’ activities.  The fact that the Applicant had all along intended to install a glass canopy to abate the noise shows clearly otherwise. 

149.  Thus, without the need to set out in details the various provisions in the BORO and the articles in the Convention, I would reject this ground of judicial review.  The Appeal Board is also correct to reject this argument at paragraph 124 of the 2010 Decision.

C5. The 2010 Costs Decision

150.  The Applicant says the 2010 Costs Decision is Wednesbury unreasonable because the Appeal Board awarded costs of the 2010 Appeal to the Authority despite the fact that it had varied the 2010 NAN by excluding the reference to the G/F of House 22 and by extending the compliance period to 31 August 2011.  Without these variations, says the Applicant, the Applicant would have been successful in the appeal in revoking the 2010 NAN[24].

151.  Costs is a matter of discretion for the Appeal Board.  Unless this Court is of the view that no reasonable board would have made the 2010 Costs Decision in light of the matters before it, the Court would not quash the 2010 Costs Decision.

152.  The variation in relation to the exclusion of the G/F of House 22 in the 2010 NAN is a minor one by reference to the substance and overall contents of the 2010 NAN.  This forms only a minor aspect of the substantive grounds of appeal in the 2010 Appeal.  In particular, the Applicant is still required to abate the noise emanating from the School, and there is no suggestion that by the exclusion of the G/F of House 22 from the 2010 NAN, the obligations imposed on the Applicant to abate noise are significantly or materially different.

153.  Further, the extension of the compliance period arose from the evidence and materials that came out close to and even after the hearing of the 2010 Appeal.  The said extension was only thus to take into account of these materials.  This is particularly so since, as accepted by the Appeal Board at paragraph 90 of the 2010 Decision, the time for assessment of the abatement period by the Authority was when it issued the 2010 NAN, which was 28 January 2010.   

154.  In light of the above, and the fact that the Appeal Board rejected the 2010 Appeal also on the ground of res judicata and, in any event, on any of the other substantive grounds, I cannot say no reasonable board in the same position would have regarded the Authority to have substantially won the appeal and should be awarded with the entire costs.

155.  I therefore also reject the review against the 2010 Costs Decision.

D. Conclusion

156.  For all of the above reasons, this judicial review must fail.

157.  I further make an order nisi that the Applicant should bear the costs of this application. 

158.  I thank counsel for their assistance in the matter.