HKSAR v. HOP WING TRANSPORTATION CO. LTD.

HCMA490/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.490 OF 1997

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R U L I N G

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1. I have before me an application by the Appellant in this matter asking me to grant a certificate under s.32 of Cap.484 to the effect that for the purpose of an offence under s.20(7) of the Town Planning Ordinance, Cap.131, where the development alleged as a material change, whether the material change is established, by comparing the use of the land on the date of the alleged offence with, firstly, the date immediately preceding the gazetting of the Notification of the relevant Draft Development Permission Plan or, secondly, the date immediately preceding the gazetting of the Notification of the relevant Outline Zoning Plan.

2. The first point taken by Mr Yeung, for the Appellant, is to the effect that this must be a matter of general public importance for the reason that interest of property rights of land in the New Territories affected by such Outline Zoning Plan would be important to those landowners, and secondly, that since there is, in Hong Kong, no direct authority on this point prior to the judgment given by myself in this matter on 29th September 1998, therefore, it warrants a decision on this point by the Court of Final Appeal.

3. Mr Saw, on the other hand, contends firstly, that insofar as Mr Yeung's first point is concerned, there is nothing to suggest that a large number of landowners in the New Territories would be affected by this decision of mine. In that respect, looking at the Outline Zoning Plan produced at the trial of this matter, that Outline Zoning Plan gives a good indication as to the extent of land which is affected by such an Outline Zoning Plan and noting that that Outline Zoning Plan is but one Outline Zoning Plan gazetted by the Town Planning Board when there are other Outline Zoning Plans gazetted, I can take into account the number of landowners in the New Territories who would be affected by this decision.

4. Secondly, reference was made this morning by Mr Yeung to s.23 of the Town Planning Ordinance. Although s.23 was not relied on extensively in argument at the appeal before me, the point taken by Mr Yeung then relates really to the words 'unauthorized development' which appears in s.23 of that Ordinance.

5. Whilst I do not agree with the argument put forward by Mr Yeung, I can see, from what he submitted this morning, that the point is at least arguable. Ultimately, the question must boil down to this : that it must be in the interest of landowners where land in the New Territories are affected by such Outline Zoning Plans, that these landowners should know what they can or cannot do with their land.

6. For these reasons, I would accede to the application by Mr Yeung and I will grant him the certificate that he seeks, in his Notice of Application. Having said that, the fact that the Appellant will need to apply for extension of time to lodge their appeal with the Court of Final Appeal is a matter that I can only leave to the Court of Final Appeal to deal with.