R. v. POWER STRAIGHT & OTHER

IN THE HIGH COURT

1995, No. 644

Magistracy Appeal

- Headnote-

Town Planning Ordinance - Prosecution for failure to comply with enforcement notice under s.23(6) - "Existing use" defence - Unauthorized use prohibited by interim development permission area plan - Interim DPA plan later replaced by DPA plan prepared by Town Planning Board - whether "existing use" defence under s.23(9)(b) is use existing immediately before gazetting of interim DPA plan prepared by Director of Planning or DPA plan prepared by Town Planning Board.

Observations on retrospective effect of Town Planning (Amendment) Ordinance 1991. Decision of Rhind J in Tse Kwei-king v AG (HCMP 1509/93, 21 Dec 93) followed.

Appeals against convictions dismissed.

IN THE HIGH COURT

1995, No. 644

Magistracy Appeal

________________

J U D G M E N T

________________

1. The appellants are the registered owners of various lots of land located in D.D.104 near Yuen Long, New Territories. On 3 April 1995 they were convicted after trial at the Tuen Mun Magistracy by Mr A.J. Wyeth of an offence under s.23(6) of the Town Planning Ordinance, for failing to comply with the requirement in an enforcement notice that unauthorised development on their land be discontinued. They were each fined $30,000. They now appeal against their convictions.

2. The facts in the lower court were largely agreed, pursuant to s.65C of the Criminal Procedure Ordinance. This appeal turns upon one point : Has the defence of "existing use" been established under s.23(9)(b) of the Town Planning Ordinance.

"Existing use"

3. The expression "existing use" is a short-hand for the statutory defence set out in s.23(9)(b) which states :

"(9) It is a defence to a prosecution under subsection (6) .... if the defendant proves that -

(a) ....

(b) the development was an existing use or, in the case of land within an interim development permission area, that the use of a building or land was in existence immediately before publication in the Gazette of the notice of the relevant plan of the interim development permission area;"

The facts

4. The undisputed facts are these:

(i) An aerial photograph taken on 11 October 1989 shows the appellants' land as completely agriculture in nature : It consisted of several large fish-ponds.

(ii) On 14 September 1990 notice of the Interim Development Permission Area (IDPA) plan for the Ngau Tam Mei area prepared by the Director of Planning was published in the Gazette. The object was to prohibit unauthorised development, particularly in unspecified areas.

(iii) The Ngau Tam Mei IDPA plan covered the appellants' land. No designated use was indicated for their land in that plan.

(iv) As at the date of the publication of the Ngau Tam Mei IDPA plan, some development had taken place on the land. It consisted of the making of an access path to the New Territories Circular Road (then in the course of construction) and the filling-in of some of the fish-ponds. Approximately half the area was affected by such development.

(v) On 25 January 1991 the Town Planning (Amendment) Bill 1990 became law : Ordinance No.4 of 1991. By s.1(2) of Ordinance No.4 of 1991 the provisions authorising the Director of Planning to prepare Interim Development Permission Area plans and to prohibit development within such areas were deemed to have come into operation retrospectively on 27 July 1990. The effect of this, as far as the appellants are concerned, is that the prohibition on development sought to be imposed by the Director of Planning by the publication of the Ngau Tam Mei IDPA plan became effective as from 14 September 1990.

(vi) Between September 1990 and July 1991 development of the land continued, first by the filling-in of the remaining ponds and the levelling of the site to a height of about 2 meters above the level of the surrounding ponds, then by the erection of fencing and a gate. By July 1991 the land was being used for the storage of vehicles and vehicle parts and the dismantling of vehicles.

(vii) On 12 July 1991 the draft Ngau Tam Mei Development Permission Area plan No.DPA/YL-NTM/1 was published in the Gazette, with the appellants' land falling within an area of unspecified used. In the Notes to the plan, forming part of the statutory plan, the following appears :

"(vii) ....

'Existing use' in the case of land previously included in a plan prepared under section 26 of the Town Planning Ordinance means a use of a building or land that was in existence immediately before the publication in the Gazette of the notice of the relevant plan of the interim development permission area, otherwise it means a use of a building or land that was in existence immediately before the publication in the Gazette of notice of the draft plan of a development permission area."

(viii) On 3 February 1993 enforcement notices were issued by the Director of Planning, pursuant to s.23(1), which state as follows :

"Whereas

(1) It appears to the Director of Planning, being the Authority for the purposes of section 23 of the Town Planning Ordinance, that there has been an unauthorised development on the land or premises described in Schedule 1 below.

(2) The unauthorised development which appears to have taken place consists of the carrying out of engineering operation, and development by the making of a material change in the use of the land described in Schedule 2 below and it appears to the authority that the development

(i) did not exist before the Ngau Tam Mei Interim Development Permission Area Plan was gazetted on 14 September 1990;

(ii) is not permitted under the plan of the Ngau Tam Mei Development Permission Area which was gazetted on 12 July 1991;

(iii) permission to do so has not been granted under section 16 of the Ordinance nor by the authority before the plan of the Development Permission Area was gazetted.

NOTICE IS HEREBY GIVEN that the Authority, pursuant to section 23(1) of the Ordinance, requires that by 3 May 1993

(i) the development shall be discontinued; or

(ii) permission for the development shall be obtained under section 16 of the Ordinance.

In the event that this Notice is not complied with, the person served commits an offence under section 23(6) of the Ordinance, and is liable to a fine of $100,000 and a fine of $10,000 for each day during which the offence is proved to have continued.

	(K.C. CHAK)
	for the Director of Planning"

Schedule 2 referred to in the notice reads as follows :

"S C H E D U L E 2

1. Filling of ponds

2. Open storage of vehicles and vehicle parts

3. Dismantling of vehicles"

Where the notice refers to the "carrying out of engineering operations", that is, the filling-in of the fish-ponds, such operations had in fact already taken place, long before the service of the notice and, as at the date of the notice, the "operations" could not have been "discontinued" as required by the notice. But as regards the use of the land for the storage of vehicles and vehicle parts, and the dismantling of vehicles, that could of course have been discontinued.

(ix) The requirements in the notice were not complied with.

(x) On 25 November 1993 the appellants were summoned to appear at the Tuen Mun Magistracy to answer informations laid against them to the effect that they had wrongfully failed to comply with the enforcement notices of 3 February 1993, contrary to s.23(6) of the Town Planning Ordinance.

S.23(6) reads :

"Where, by the date specified in that regard in a notice under this section -

(a) the development has not been discontinued;

(b) ....

(c) .... a person who is served with the notice commits an offence ...."

Upon the facts as stated above, the appellants have plainly committed a s.23(6) offence, unless the "existing use" defence prevails.

The issue on appeal

5. It is common ground that if use of the land as at 11 July 1991, the day immediately before the publication of the Ngau Tam Mei DPA plan, is the relevant consideration, then the defence must succeed : as at that date, the land was already being used for the storage of vehicles and vehicle parts and the dismantling of vehicles. Equally, it is common ground that if the relevant date is the day immediately before the publication of the Interim DPA plan, 14 September 1990, the defence must fail because the use complained of in the enforcement notices, as regards the storage and dismantling of vehicles did not exist.

The appellants' argument

6. Mr Chong, counsel for the appellants, relies on the definition of "existing use" in s.1A as follows :

"'existing use' in relation to a development permission area means a use of a building or land that was in existence immediately before the publication in the Gazette of notice of the draft plan of the development permission area;"

7. Mr Chong argues thus : since the Interim DPA plan was replaced by the DPA plan on 12 July 1991, it must be the unauthorised use as prohibited by the DPA plan which counts. Conformity with the Interim DPA plan ceased to be a requirement as from 12 July 1991 : see s.26(3) which says :

"(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 required conformity with such a plan or obtaining permission from the Director of Planning shall not apply as regards that land."

8. Thus, applying s.23(9)(b), Mr Chong says that the court does not need to go beyond the opening words "the development was an 'existing use'"; the words "existing use" have been statutorily defined as use immediately preceding the publication of the DPA plan; this, says Mr Chong, concludes the matter in the appellants' favour.

9. Is this argument correct?

Construing the Ordinance

10. I approach the task of construing s.23(9)(b), as Mr Liu, counsel for the respondent, has invited me to do, by looking at the statutory scheme as a whole where relevant : remembering that s.23(9)(b) is in two parts, divided by the disjunctive "or". In the second part, it is the use of the land immediately before the publication of the Interim DPA plan which counts.

11. Firstly I ask myself this question : What was the object of the legislature seeking to govern development by the use first of all of Interim DPA plans and then of DPA plans? As regards DPA plans prepared by the Town Planning Board under s.3(1)(b), the answer is in s.20 where, by subsection (5), a DPA plan is effective in the first place for only 3 years and might be extended for a further year by the Governor-in-Council. In the Explanatory Statement to the draft DPA plan for Ngau Tam Mei (Ex. P8) I see this as the object :

"2. Object of the Plan

2.1 The object of the Plan is to delineate the extent of the Ngau Tam Mei DPA and to set out the types of development and uses which are permitted at all times and such development and uses that may be permitted with or without conditions by the Board on land within the DPA.

2.2 The plan is to provide guidance for planning and to facilitate development control within the DPA during the period required for detailed analysis of land use pattern, study of infrastructural provisions and examination of development options before the formulation of an outline zoning plan."

12. Plainly, the comprehensive "freeze" on development in the "unspecified use" areas designated in the DPA plan was not intended to be permanent : it was, broadly-speaking, as para. 2.2 above makes clear, to prevent ad hoc development by private owners which might have the effect of pre-empting the planning options available to the government, during the 3 years considered necessary to formulate an outline zoning plan.

13. Secondly, I note the retrospective effect of s.26, empowering the Director of Planning to regulate land use before the drawing up of DPA plans by the Town Planning Board, by the use of Interim DPA plans. By the Gazette notification of 14 September 1990 (Ex P.6) the Director of Planning gave due warning that if the Town Planning (Amendment) Bill 1990 should become law, the provisions in relation to Interim DPA plans would be deemed to have come into operation on 27 July 1990. The Bill duly became law on 25 January 1991. The Explanatory Statement to the Interim DPA plan (Ex P5) explains the need for interim planning control in this way :

"5. Need for Interim Planning Control

5.1 With the improvement in accessibility, there is a rapid and uncontrollable proliferation of open storage and industrial uses in the Area, .... Such uses have jeopardised the Government's land use intention in the Area. These open storage uses in general consist of storage of construction materials and equipment, timber, container and machinery.

5.2 The unregulated open storage and industrial uses have led to degradation of the rural environment and created a number of problems, such as pollution, flooding, traffic hazards and visual blight.

5.3 In the light of the above, there is an immediate need for development control in the Area. The Director has, implementing a directive of the Governor, prepared a plan designating the Area as an IDPA. The Plan provides a framework for control of development in the Area in the period from publication of the Town Planning (Amendment) Bill 1990 to the inclusion of the IDPA into a statutory development permission area (DPA) plan after commencement of the Town Planning (Amendment) Ordinance."

14. Thirdly, it is s.26(1) which empowered the Director of Planning to limit development by the use of IDPA plans; and once s.26 became law it took effect retrospectively : a point considered by Rhind, J. in Tse Kwei-king v. Attorney General MP 1509 of 1993, 21 December 1993. At p.24 Rhind, J. said :

"Unless the enforcement provisions were meant to be retrospective, it was pointless for the legislature to enact the new s.26 of the Ordinance, setting up interim development permission areas. As I read it, the whole tenor of the new Town Planning (Amendment) Ordinance 1991 is effectively to clamp down on unauthorised development in areas designated as development permission areas, interim or otherwise. Retrospectively effect legislation is not unknown in Hong Kong. Lai Man Yau v. A.G. (No.2) [1979] HKLR 546 was such a case ....

In the same way the legislature embodied its intention to combat corruption by passing tough anti-corruption legislation with far-reaching effects 1971, both prospectively and retrospectively, I am satisfied the legislature in 1991 firmly set its face against further environmental harm to those parts of Hong Kong that the Governor, through the Director of Planning, wanted to protect from unplanned development by means of, initially, interim development permission areas, and, then, development permission areas.

The Town Planning (Amendment) Ordinance 1991 did not come as a bolt completely out of the blue when passed. It had been foreshadowed by a bill gazetted on 27th July 1990. That bill had indicated that the legislation, if and when passed, would be deemed to have come into operation on 27th July 1990.

The legislation has only limited retrospectivity. It was only after the gazetting of an interim development permission area plan that unauthorised development was forbidden. Through gazetting, owners of land within the plan area were alerted to what they must not do. Existing uses prior to gazetting are unaffected. To that extent, the Town Planning (Amendment) Ordinance 1991 was intended to be retrospective."

15. I would respectfully adopt what Rhind, J. has said. Without such retrospectivity, the whole object of bringing large parts of the territory under planning control, by means of DPA plans and later by means of outline zoning plans, might have been defeated: and, to counteract the harmful effect of ad hoc development in the mean-while, even stronger retrospective legislation might then have had to be introduced.

Conclusion

16. Viewed in this light, there can be no doubt whatever in my mind what is the appropriate date for considering the defence of existing use: it is the day immediately preceding the publication of the Interim DPA. When unauthorized development has been prohibited with effect from the date of gazetting of the interim DPA plan, it would have been bizarre for the legislature then to have counteracted the legal effect of such prohibition by providing a defence of "existing use" not as at that date, but months later. This might have had the effect of destroying the statutory scheme: as illustrated by this very case if Mr Chong's argument be correct.

17. It is important to bear in mind the interim nature of the powers conferred on the Director of Planning under s.26(1) : it was to cover the period from the first publication of the Town Planning (Amendment) Bill 1990 (27 July 1990) to the enactment of the new law (25 January 1991). As from the commencement of the Town Planning (Amendment) Ordinance 1991, the Director's powers to regulate land use by means of Interim DPA plans ceased : see s.26(4). Thereafter, it was the Town Planning Board alone which had the power to prepare DPA plans : It was therefore necessary for the legislature to extend the "existing use" defence not only to areas previously covered by Interim DPA plans, but also to provide for the situation where there might be no Interim DPA plans at all : hence the opening words in s.23(9)(b) : "It is a defence to a prosecution under subsection (6) .... if the defendant proves that the development was an existing use" : meaning a use in existence immediately before the publication of the draft DPA plan. But where the Director of Planning had previously exercised his power under s.26(1) to draw up an Interim DPA plan, I have no doubt whatever that the use as referred to in s.23(9)(b) is the use in existence immediately before the publication of the Interim DPA plan.

18. The magistrate in the court below came to this view. So did Mr D.I. Thomas in R. v. Tsoi Chuen-pan & Tsoi Chung-hoi (FLS 11788/93 & FLS 11789/93 17 March 1994), and of course Rhind, J. in Tse Kwei-king as referred to earlier. I agree with them.

19. It must follow that this appeal must be dismissed.