INTERNATIONAL TRADER LTD v. THE TOWN PLANNING APPEAL BOARD

CACV 407/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 407 OF 2007

(ON APPEAL FROM HCAL NO. 13 OF 2007)

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J U D G M E N T

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Hon Stock JA:

1.  I have had the advantage of reading in draft the judgment of Hartmann JA and for the reasons he provides, I would dismiss the appeal.

Hon Hartmann JA:

Introduction

2.  This is an appeal from a judgment by Cheung J in terms of which, on an application for judicial review brought by the respondent, a property developer, the judge quashed two decisions of the Town Planning Appeal Board, making in addition certain consequential orders.  The decisions quashed had upheld decisions of the Town Planning Board to refuse the respondent permission to proceed with a certain building development in the Mid-Levels area of Hong Kong.  By this appeal, however, it is the Town Planning Board, the maker of the first instance decisions, which seeks to challenge the findings of Cheung J.  In accordance with practice, the Appeal Board itself has not been represented.

3.  The respondent is the owner of a number of pieces of land in Western Mid-Levels which, taken together, form a single site.  The amalgamated site is about 2,133 square metres in area.  It lies below Robinson Road on the slopes of the Peak; that is, to the north of Robinson Road.  The site fronts on to Castle and Seymour Roads.  Almost directly behind the site; that is, above it, to the south, is a large two-tower development called Robinson Place.

4.  The respondent seeks to build a high-rise residential development on the amalgamated site.  As Cheung J observed in his judgment, various development proposals were put before the Town Planning Board but, for the purpose of these proceedings, one option only need be considered, a proposal known as option 6a comprising a 54-storey tower of 43 residential floors and 90 car parking spaces.

5.  All of the pieces of land which constitute the amalgamated site fall within the boundaries of an approved plan created in accordance with the provisions of the Town Planning Ordinance, Cap 131.  The plan is called the Mid-Levels West Outline Zoning Plan No. S/H11/13 (‘the Mid-Levels West OZP’). 

6.  Western Mid-Levels is a largely residential area and the OZP makes extensive provision for residential development.  In this regard, the OZP divides the land within its boundaries into three zones: Residential (Group A), Residential (Group B) and Residential (Group C).

7.  R(A) land may be used for residential development without any planning limitation as to height or plot ratio.  A developer therefore does not need to obtain planning approval.  He needs only to meet the requirements of the Buildings Ordinance, Cap 123, and its regulations.

8.  R(B) land is subject to a plot ratio restriction of 5.0 or the plot ratio of the existing building, whichever is the greater.  If an application for permission is made to the Town Planning Board, the Board may, however, based on the merits of the proposed development, allow a “minor” relaxation of the plot ratio restriction.

9.  As for R(C) land, this is divided into two sub-groups, R(C) 1-6 and R(C) 7.  The sub-group of direct relevance to this appeal is the latter.

10.  R(C) 7 land was originally zoned in the draft Mid-Levels West OZP as R(A) land; that is, land in respect of which there is no planning limitation as to height and plot ratio.  The re-zoning took place when the draft OZP was amended in 1995.

11.  Why then should R(C) 7 land have been given a distinct zoning classification?  In his judgment, Cheung J provided the answer when he said (para. 32):

“A more detailed examination of the [OZP] would readily reveal that the one common feature of the R(C)7 sites is that each of them abuts one or more stepped streets with no direct vehicular access, and is otherwise landlocked.”

12.  The Mid-Levels West OZP provides that these ‘landlocked’ pieces of land zoned as R(C) 7 may always be used for residential apartments but restricts such development to a plot ratio of 5.0 and to a height limitation of 12 storeys (or the plot ratio and height of any existing building whichever is the greater).  However, the OZP allows for a “relaxation” of these restrictions – without any qualification as to the relaxation being “minor” only – if the Town Planning Board considers that the merits of a proposed development so warrant.

13.  Central to this appeal is the fact that the respondent’s amalgamated site is a hybrid.  While the greater extent of the land is zoned as R(A), part of the land is zoned as R(C) 7.

14.  The R(C) 7 land included in the amalgamated site may be ‘landlocked’ but, when joined with the R(A) land, direct access to Castle and/or Seymour Road is provided.

15.  So that it may build one high-rise tower on the amalgamated site, the respondent made two alternative applications to the Town Planning Board in respect of the R(C) 7 pieces of land making up its amalgamated site.  The applications were made under s.16 of the Ordinance which provides that, where an approved plan provides for the grant of permission for any purpose – in this case a relaxation of height and plot ratio restrictions – an application must be made to the Town Planning Board which “may grant or refuse to grant the permission applied for.”

16.  The Town Planning Board refused both applications for permission.  In reaching their decision, the members of the Board took into account, first, the adverse effect of general traffic conditions in the area and, second, the adverse visual impact of both alternative development proposals, essentially the degree to which they would obstruct views from nearby buildings.

17.  The respondent appealed to the Town Planning Appeal Board which, by a majority, upheld the refusals to grant permission.  The issue which divided the Appeal Board was whether the Town Planning Board had been entitled in law to take into account the two issues upon which its refusal of permission had been based: the adverse effect of general traffic conditions and the adverse visual impact of the proposed alternative developments.  A minority of members of the Appeal Board were of the opinion that, having regard to the terms of the Mid-Levels West OZP, they were not permissible considerations.  This was because both issues, in respect of the respondent’s site, had already been determined in the creation of the OZP itself and the Town Planning Board’s discretion in determining a s.16 application had to be exercised within the parameters of the OZP.  The majority, however, held that all relevant and material planning considerations remained open to the Town Planning Board and, while the terms of the OZP were obviously of central importance, they did not act to constrain the Town Planning Board in the manner advanced by the minority.  In the result the Appeal Board upheld the Town Planning Board’s refusal of permission.

18.  However, on an application for judicial review brought by the respondent, Cheung J supported the minority view, holding that the Town Planning Board’s discretion was, on a true construction of the Mid-Levels West OZP, constrained by the terms of the plan and that, by taking into account considerations which fell outside of the parameters of the plan, the Town Planning Board had taken into account irrelevant considerations.  Cheung J therefore quashed the decision of the Appeal Board and, in light of the particular circumstances, issued an order of mandamus requiring the Appeal Board to allow the respondent’s second appeal, the second having overtaken the first.  In practical terms, it meant that planning permission had to be granted for the proposed development known as Option 6a.

19.  While certain ‘jurisdictional’ issues, as they may best be described, fall for consideration in this appeal, only one substantive issue was extensively argued.  That issue goes to the nature and extent of the discretion exercised by the Town Planning Board when, in respect of a plan that has been approved by the Chief Executive in Council – such as the Mid-Levels West OZP – it considers an application made under s.16 of the Ordinance.  That issue has been defined by Mr Lindblom QC, leading counsel for the Town Planning Board, in the following terms:

“Whether, as a matter of law, the appellant and in its turn the Appeal Board, when determining an application for planning permission made under section 16 of the Ordinance are entitled, indeed required, to have regard to any and all planning considerations which they reasonably judge to be relevant in their task of taking the right decision on the application in the public interest.”

Construing the Ordinance

20.  The Town Planning Board is a statutory body, its powers being drawn from, and limited by, the Ordinance.  As such, ascertaining the true nature and extent of the Board’s discretion under s.16 is a matter of statutory interpretation.

21.  The modern approach to statutory interpretation has been described by Sir Anthony Mason (in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, at 606) as demanding that context and purpose be considered in the first instance, especially when general wording is under consideration, and not merely at some later stage when an ambiguity may be thought to arise.  While a court may not attribute to a statutory provision a meaning which the language, read in context and purposively, is incapable of bearing, Sir Anthony Mason said a court may –

“... imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process.”

22.  A statute must be considered as a whole, its provisions being understood in their widest context.  To that end it is to be noted that the stated purpose of the Ordinance itself is to promote the health, safety, convenience and general welfare of the community –

“... by making provision for the systematic preparation and approval of plans for the lay-out of areas of Hong Kong as well as for the types of building suitable for erection therein ... ”

23.  The legislature has directed that the preparation of plans is to be ‘systematic’; that is, conducted according to a methodical, organised process.  Section 4 of the Ordinance allows for the creation of plans accompanied by diagrams, illustrations, notes and descriptive matter.  The body responsible for the preparation of plans is the Town Planning Board.  Section 3 directs that, with a view to the promotion of the health, safety, convenience and general welfare of the community, the Board shall “undertake the systematic preparation of draft plans for the lay-out of such areas of Hong Kong as the Chief Executive may direct.

24.  Under the Ordinance, the Town Planning Board has two principal functions.  The first, as I have said, is the systematic creation of draft plans.  The second is the consideration of applications by persons who seek some required permission under a plan, either a draft plan or one already approved by the Chief Executive in Council.

25.  It is to be emphasised that the preparation of plans is not simply an internal Board responsibility, the Board deciding on who, if anybody, it wishes to consult.  Draft plans, once prepared, must lie for inspection.  Under s.5 and s.6 of the Ordinance an elaborate procedure of public consultation is mandated.  Members of the public have the right to submit representations and to be heard (either personally or by an authorised representative) at public meetings.  All amendments to draft plans must themselves lie for inspection and are subject to essentially the same procedure of public consultation.

26.  At the conclusion of the consultation process, the Planning Board, which received its original instruction from the Chief Executive, must submit its draft plan to the Chief Executive sitting in Council.  Section 8 directs that the draft plan must be accompanied by a schedule of all representations made during the consultation procedure together with details of any amendments made.  The history of the public consultation process is therefore made known to the Chief Executive in Council.

27.  The Chief Executive in Council has the power under s.9 to approve or reject draft plans or to refer them back to the Board for further consideration.  If approved, s.9 directs that ‘approved plans’ must themselves be printed and exhibited for public inspection.

28.  The Chief Executive in Council has the further power under s.12 to refer an already approved plan to the Town Planning Board for amendment.  If this is done, public notice must again be given and the process of preparation and public consultation described earlier must be repeated.  The Board may not therefore amend a plan of its own volition on the basis only that it would be in the public interest to do so.  All and any proposed amendments must endure the rigours of a fresh consultative procedure.

29.  Once a plan is approved, s.13 directs that it –

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

30.  Section 13 is expressed in mandatory terms: “Approved plans shall be used by all public officers and bodies as standards for guidance ... ”.

31.  As to use of the word ‘standards’, read in context, these ‘standards’ constitute appropriate criteria or recognised measures which are to be used as ‘guidance’ for public officers and bodies; that is, to direct them as to the discharge of their duties.  The effect of the section, therefore, is to impose on all public officers and all public bodies the statutory duty to have reference to approved plans as the recognised measure by which they are to be guided; that is, directed, in the exercise of their powers.

32.  The Ordinance not only imposes on public officers and public bodies the statutory duty to refer to approved plans as the recognised measure by which they are to be guided in the exercise of their powers, it directs that all private persons shall be bound by them too.  In this respect, when an approved plan permits a particular use of land, the land may be developed in accordance with that permitted use without any obligation to seek planning approval.  In this respect an approved plan does not merely provide a degree of certainty for developers, it may, in many instances, provide an absolute permission.

33.  It is only when the terms of an approved plan require permission that a developer must seek permission from the Town Planning Board, the body responsible for the creation of that approved plan.  In this regard, s.16 directs that, where an approved plan provides for the grant of permission, an application for that grant shall be made to the Board.  In short, planning permission under s.16 only arises under and in terms of a plan.  In this regard, see the observations of Bokhary PJ in Secretary for Transport v Delight World Ltd (2006) 9 HKCFAR 720, at 733F:

“... the [Ordinance] permission scheme only applies where a zoning plan provides for the grant of permission.  And this requires one to know how the land in question has been zoned, for only then can one ascertain whether the proposed use comes within Column 1 (so that there is no need to seek permission) or comes within Column 2 (so that permission has to be sought) or falls outside both columns (so that permission is never to be granted).”

34.  In this respect, there is a fundamental difference of approach between the Hong Kong legislation and that of England and Wales.  The Town and Country Planning Act 1990 creates a general requirement that all development of land requires planning permission.  Section 57(1) of the Act provides that:

“Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.”

35.  The 1990 Act does make provision for the creation of plans (called ‘development plans’) but, in contrast to the provisions of the Hong Kong Ordinance, specifically provides that any such plan shall not be the single point of reference in the determination of planning applications.  In this regard, s.70(2) of the Act provides that, where an application is made to a local planning authority for planning permission –

“In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.” [my emphasis].

36.  This is fortified by s.54A of the Act which directs that:

“Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise”. [my emphasis]

37.  A formal circular addressing the Act (Circular 14/91) has expressed the purpose of s.54A in the following terms:

“The starting point is to be the development plan.  If the development plan has something to say on a particular application the plan should be followed unless the weight of the other considerations tell against it.  This will still allow appropriate weight to be given to all the other material considerations.”

38.  By contrast, there is nothing in the Hong Kong Ordinance which either specifically provides or even implies that, in considering an application for permission under s.16, a consideration of the relevant approved plan is ‘the starting point’ only and that appropriate weight may be given to all other material considerations.

39.  In looking to the structure of the Hong Kong Ordinance, it is to be noted that an application for permission made under s.16 must itself lie open for public inspection.  The public may make representations and the Town Planning Board is obliged to take those representations into account: see s.16(3A).  The Ordinance, however, lays down no further specific qualifications as to how the Board may exercise its discretion.  Section 16(3) says only that the Board “may grant or refuse to grant the permission applied for.”  But this is qualified by s.16(4) which provides that:

“The Board may grant permission under subsection (3) only to the extent shown or provided for or specified in the plan.”

40.  Mr Lindblom submitted that the terms of s.16(4) demonstrated that the only statutory limitation to the exercise of the Board’s discretion applied to a favourable exercise of that discretion.  That being the case, there was no limit to the Board’s unfavourable exercise of discretion and any planning consideration could be taken into account whether or not it fell within the parameters of the relevant plan.  I am unable to accept that proposition.  When the Board commences its deliberations it is self-evident that it is obliged to do so with an open mind, being inclined neither to exercise its discretion favourably or unfavourably.  That being the case, s.16(4), on a true construction, relates to the consequences of the Board’s deliberations and is only engaged when the Board, as a result of its deliberations, is minded to grant permission.  If so, that permission must, of course, comply with the relevant plan.  If however the Board is minded to refuse permission, the parameters of the plan are then of no consequence.

41.  In my view, therefore, s.16(4), on a purposive construction, points to the legislative intent that a plan, once created, must be adhered to.

42.  Mr Lindblom acknowledged that an approved plan does provide a degree of certainty for all parties.  Nevertheless, he said, it remains the product of an administrative process and, as such, even after extensive public consultation, remains simply a reflection of administrative policy.  That policy may provide ‘guidance’ – to use the word contained in s.13 – but does not act as a straightjacket.  It is fundamental, Mr Lindblom contended, that administrative policy is not to be applied inflexibly.  In my judgment, however, an approved plan, while of course it does reflect administrative policy as well as the views of interested parties in both the public and private sectors, is more accurately defined in context as a statutory scheme, a scheme which the Town Planning Board cannot unilaterally amend and which therefore it is obliged to follow in the exercise of its statutory powers.

43.  Mr Lindblom contended that, if the discretion of the Board was limited to what is contemplated by, and therefore included in, an approved plan, that would materially curtail the Board’s ability to meet changing circumstances.  That, he said, could not have been the legislative intent.

44.  I accept that the English 1990 Act allows for greater flexibility to meet changing circumstances, especially if it is apparent to planning authorities that a development plan is out of date.  But, as I have said earlier, there is a fundamental difference of approach between the 1990 Act and the Hong Kong Ordinance.  But in any event, the Ordinance is not devoid of flexibility.  Provision is made for amending plans, both draft plans and approved plans.  In addition, the Town Planning Board, in its preparation of plans, may make allowance for changing circumstances by building in a degree of flexibility.  In this latter respect, the Explanatory Statement published with the Mid-Levels West OZP speaks directly of flexibility: see, by way of illustration, paragraph 9.1 of the Statement:

“Attached to the Plan is a set of Notes indicating uses which are always permitted and other uses for which the permission of the Board must be sought.  The provision for application for planning permission under section 16 of the Ordinance allows greater flexibility in land use planning and better control of development to meet changing needs.”

45.  The Ordinance provides that the Town Planning Board has the duty to prepare plans with a view to the promotion of the “health, safety, convenience and general welfare of the community”.  In this regard, s.3(1) reads:

“With a view to the promotion of the health, safety, convenience and general welfare of the community, the Board shall undertake the systematic preparation of –

(a)  draft plans for the lay-out of such areas of Hong Kong as the Chief Executive may direct, as well as for the types of building suitable for erection therein ...”.

46.  However, s.16, which provides for the granting of some required permission under a plan makes no qualification concerning the “promotion of the health, safety, convenience and general welfare of the community”.

47.  Considered in context, I accept the force of the submission by Mr Benjamin Yu SC, leading counsel for the respondent, that it confuses the dual roles of the Board to say that, when considering an application for permission under s.16 of the Ordinance, the Board may take into account any consideration that it considers promotes the “health, safety, convenience and general welfare of the community”.  Those matters, in accordance with the mandate imposed by s.3, have already guided the Board in the preparation of the relevant approved plan and must be integral to that plan.  While, therefore, when considering an application for permission under s.16, the Board may – indeed, must – take into account the underlying purposes of the Ordinance, it may only do so in so far as the relevant approved plan permits.

48.  In my judgment, when considering a s.16 application for permission under and in terms of an approved plan, the Board is not given a blank canvas.  The canvas is already painted with the relevant approved plan.  That being so, while the Board’s discretion is a broad one, it is evident that the Ordinance, considered as a whole, requires that the discretion be exercised within the limits of the relevant approved plan.  Put another way, the approved plan is not merely a relevant consideration, one which the Board may, for cogent reason, ignore.

49.  I am satisfied that an essentially unfettered discretion of the kind advocated by Mr Lindblom would undermine the framework of the Ordinance which, as Mr Yu emphasized, makes elaborate procedures for public representations in the plan making process and for the role of the Chief Executive in Council in approving or refusing to approve a draft plan.  There is substance, I think, in the observations of the majority of the Town Planning Appeal Board in Town Planning Appeal by Henderson Read Estate Agency Ltd, TPA No. 13 of 1993:

“... we live in a world in which every citizen is entitled to regulate his affairs according to law.  Just as the Town Planning Ordinance protects the Community, it protects property owners as well.  An owner is just as entitled to rely on a DPA plan as the Government.  That is the raison d’etre for the existence of the Board and the Appeal Board.”

50.  As Mr Yu observed, that is consistent with the principle that the courts will not construe a statute as taking away the rights of a property owner – in this instance, the right to place full reliance on the terms of an approved plan – unless there is clear wording to that effect: see Wah Yick Enterprises Co. Ltd v Building Authority (1999) 2 HKCFAR 170 at 181B per Litton PJ, citing Colonial Sugar Refining Co. v Melbourne Harbour Trust Commissioners [1927] AC 343 at 359.

51.  In summary, therefore, I am satisfied that, on a true construction of the Ordinance, when determining an application for planning permission under s.16, the Board does not have the power to have regard to any and all planning considerations which it believes will assist it to reach the right decision in the public interest.  The Board’s discretion is one that must be exercised within the parameters of the approved plan in question.  Accordingly, if it takes into account material considerations which fall outside of the ambit of an approved plan, considerations which are therefore not relevant to it, it acts ultra vires. 

52.  That determines the single substantive issue that was extensively argued and does so in favour of the respondent.

53.  There is, however, one further substantive issue that falls for consideration; namely, whether, even if the Town Planning Board’s discretion was limited by the terms of the Mid-Levels West OZP, nevertheless the two matters that were taken into account by the Town Planning Board remained relevant and material considerations.  Cheung J, after an exhaustive analysis, held that they did not remain relevant.

54.  Although Mr Lindblom did not address extensive argument in respect of this finding by the judge at first instance, he did not concede that the judge had been correct in his determination.  Something therefore, albeit relatively briefly, must be said of the matter.

55.  Correctly in my view, the judge recognised that, in determining what is or is not a relevant matter to take into account when an application is made pursuant to s.16, it is necessary to ascertain the planning intention behind an approved plan.  This is a matter of interpretation which is itself a matter of law and, as such, admits of only one correct answer.  As it was expressed by Sir Gerard Brennan NPJ in Shiu Wing Steel Ltd v Director of Environmental Protection and Airport Authority (No. 2) [2006] 3 HKLRD 487, at 500:

“When the court construes language which affects legal rights and duties, it is constrained to arrive at a single meaning to define those rights and duties.  That meaning may apply to one or more sets of facts ... but there can be only one meaning of the language so construed.”

56.  In the present case, the identification of the planning intention was a relatively narrow issue as it required a determination only of why it was that R(C) 7 sites, which before amendment of the OZP had been zoned as R(A) sites, had been rezoned.

57.  On an examination of the relevant documents and a detailed study of the history of the matter, the judge concluded that R(C) 7 sites had been rezoned for the reason that they did not enjoy any direct vehicular access to a road.  Neither the state of general traffic conditions in the area nor any question of visual impact lay behind the rezoning.

58.  Among other matters, the judge had regard to the explanatory statement attached to the OZP plan; particularly, paragraphs 7.4.4 to 7.4.7 which state:

“7.4.4  The “R(C) 7” sub-area covers sites in Castle Steps, Castle Lane, Prince’s Terrace, Rednaxela Terrace, Shelley Street and Leung Fai Terrace with no direct vehicular access.  Hence, loading and unloading activities, including those related to refuse collection and emergency can only take place at a rather distant location.  As such, more intensive developments on the sites would bring about inconvenience to more people.

7.4.5  Due to the inadequate access for servicing and fire fighting, development/redevelopment in the “R(C) 7” sub-area will be restricted to residential use only with a maximum plot ratio of 5 ... and a maximum building height of 12 storeys ....

7.4.6  In the “R(C) 7” sub-area, the Fire Services Department at present has no statutory authority to require the provision of emergency vehicular access to reach sites abutting stepped street nor to restrict the development intensity.  Only additional provision to enhance the fire fighting installations within the building would be required.  However, it is desirable to have emergency access to the principal face of a building.  The inaccessibility of fire engines to the sites concerned would pose a potential safety risk ....

7.4.7  Notwithstanding the above restriction, comprehensive development/redevelopment of the “R(C) 7” sub-area can still be pursued with amalgamation of sites.  Upon submission of comprehensive development/redevelopment proposals, favourable consideration may be given to relaxation of the development restrictions and each proposal will be considered on its own merits.”

59.  An explanatory statement, although not part of an OZP plan for the purposes of the Ordinance, is nevertheless prepared by the Town Planning Board in order to assist in an understanding of the OZP.  More than that, the explanatory statement for the Mid-Levels West OZP specifically provides that it “reflects the planning intention and objectives of the Town Planning Board for the various land use zonings of the Plan”.

60.  Paragraph 7.4.7, in my view, is particularly revealing.  First, it states that, if there can be an “amalgamation of sites”, a “comprehensive” redevelopment can be pursued.  Amalgamation must include in the majority of cases amalgamation with sites that enjoy direct vehicular access to a road.  If not, there could be no suggestion that a “comprehensive” redevelopment may be permitted.  In addition, it is to be noted that the paragraph, when it speaks of relaxing the restrictions, does not in any way qualify the extent of the relaxation as is done elsewhere. 

61.  In looking to the explanatory statement, Cheung J, took note of the contrast between what was said concerning R(C) 7 sites and other sites in respect of which general traffic and visual impact problems were raised.  By way of example, when speaking of R(C) 1-6 sites in paragraph 7.4.3, the explanatory statement says that these sites are intended for –

“... lower density residential developments where commercial uses are not permitted unless otherwise approved by the Broad under the planning permission system.  Developments within these sub-areas are subject to specific control on building height and building bulk.  These restrictions are required for the purposes of preserving public views, the existing landscape and general amenities, maintaining control on the character of existing and planned developments, and restraining traffic growth which will otherwise worsen the already overloaded road network.  These development restrictions are stipulated in the Notes attached to the Plan.  Minor relaxation of the stated restrictions may also be considered by the Board through the planning permission system, strictly on individual merits.” [my emphasis].

62.  As the judge himself noted, only “minor” relaxation of R(C) 1-6 restrictions is permitted while there is no such qualification of the restrictions governing R(C) 7 sites.

63.  Cheung J’s reference to the explanatory statement, a document speaking directly to the Town Planning Board’s planning intentions, was based on the authority of the Privy Council in Henderson Real Estate Agency Ltd v Lo Chai Wan [1997] HKLRD 258, at 267, per Lord Lloyd:

“Then what about the other documents on which the Town Planning Board rely?  At this point a preliminary question arises.  The plan and the Notes attached to the plan are obviously material documents to which the Appeal Board were bound to have regard; indeed they are the most material documents in the case.  But what about the Explanatory Statement, and the subsequent guidelines?  The Explanatory Statement is expressly stated not to be part of the plan.  But it does not follow that it was not a material consideration for the Appeal Board to take into account, even though, as Mr Read, QC, for the appellants, pointed out, the Ordinance does not contain a provision, corresponding to s.70(2) of the Town and Country Planning Act 1990, or clause 38(2) of the new Town Planning Bill, requiring the Town Planning Board and the Appeal Board to have regard to material considerations.

By the same token, the 1992 and 1993 guidelines are also material considerations to be taken into account.  The Appeal Board was not bound to follow the Explanatory Statement or the guidelines.  But they could not be disregarded.”

64.  Pausing for a moment, I find nothing in the words of Lord Lloyd to imply that, in considering a s.16 application for permission, the Town Planning Board may take into account any material planning consideration that it wished.  To the contrary, Lord Lloyd recognised the difference between the structure of the Hong Kong and English statutes and in looking to the Hong Kong statute, spoke only of documents speaking directly to an approved plan.

65.  In seeking to ascertain the true planning intention contained in the OZP, Cheung J considered relevant history, taking note of a number of ‘internal’ papers.  These included a report prepared by the Planning Department in 1995 in respect of an early application made by the respondent under s.16.  That report said the following as to the planning intention behind the zoning of R(C) 7 sites:

“The main reasons for imposing plot ratio and building height restrictions within the R(C) 7 zone are due to the lack of vehicular and emergency access for sites abutting only onto stepped streets.  As the application site is now provided with vehicular access at 2A & 2B, Seymour road, to further retain the plot ratio and building height restrictions for the site under the R(C) 7 zoning may no longer be appropriate.”

66.  As to the general traffic difficulties, the report continued:

“... the original planning intention for re-zoning part of the site (which is a stepped street site) from R(A) to R(C) 7 for imposing more restrictive plot ratio and building height is mainly to enhance the safety, servicing and convenience of the area rather than for traffic reasons.  Since the application site is now provided with vehicular access from Seymour Road, it may no longer be regarded as a ‘stepped street’ site, and hence it may not be reasonable to require a [Traffic Impact Assessment] submission in the present application.”

67.  That report was placed before a committee of the Town Planning Board called the Metro Planning Committee (‘the MPC’).  While the report was not uncontentious, the minutes of the MPC record that -

“Members noted that the planning intention of the R(C) 7 zone was related to the non-availability of direct vehicular access.  As the proposed development now had direct vehicular access at Seymour Road, the concern would no longer be valid.”

68.  In this regard, Cheung J said the following (paragraph 89):

“... it is by no means surprising that the MPC eventually decided to approve the section 16 application [for a period of two years only] without requiring a traffic impact study insisted on by the Transport Department or Police.  Quite plainly, the MPC accepted the view of the Planning Department.  The decision of the MPC represented that of the Board’s, and the same was duly communicated by the Board to [the respondent].”

69.  In short, the Town Planning Board itself had at one time recognized the true planning intention behind the rezoning of R(C) 7 sites as being the limitation of development so long as those sites did not enjoy direct access to a road.

70.  On my reading, the judge correctly concluded that, as a lack of direct access was the reason for the rezoning of sites as R(C) 7, it had to follow that, once that limitation was removed by way of amalgamation, the raison d’etre for the rezoning fell away.  Fairness then demanded that a relevant s.16 application for relaxation of restrictions should be acceded to, allowing the amalgamated site to be redeveloped as if it was an R(A) site, no different from the R(A) sites all around where maximum development was permitted without any reference to the Town Planning Board.  To do otherwise would constitute unequal treatment with no sufficient justification.  As the judge observed, it was incumbent on the Town Planning Board to seek to strike a balance between private development rights and public interest.

71.  This overview of Cheung J’s reasoning is not exhaustive Cheung J’s analysis was more detailed and was, in my view, correct in its conclusions.  In short, I am satisfied that he correctly identified the planning intention behind the zoning of R(C) 7 sites and, having done so, was correct also in defining the consequences.

The ‘jurisdiction’ issues

72.  Two jurisdictional issues were raised on behalf of the appellant.  As will be seen, the answer to the second issue is contained in the answer to the first.

73.  At the outset of the appeal hearing, an application was made by the Town Planning Board to adduce further documentary evidence relevant to the jurisdictional issues.  It was not opposed.

74.  The first issue of jurisdiction relates to an order of mandamus made by the judge at first instance, the appellant’s assertion being that it was not a valid order.  Mr Lindblom submitted that the mandatory order, in so far as it was directed to the Appeal Board which had heard the respondent’s appeals, was not capable of being implemented by that Board.  That was because the Chairman of the Appeal Board (together with one member) had ceased to be a member so that, when the order of mandamus was made, the Appeal Board no longer had an existence in law. 

75.  In so far as the mandatory order was addressed to a new Appeal Board still to be constituted, said Mr Lindblom, the order had no binding effect for two reasons.  First, the order attempted to bind a body which was not a party to the proceedings.  Second, the order attempted to bind a body not in existence.  Mr Lindblom’s submission was based on the premise that an Appeal Board – in contrast to the Appeal Board Panel – is not a permanent entity such as a court which has an identity apart from the individuals sitting on it.  An Appeal Board is constituted for the determination of one, or one set of, appeals only.  It is constituted by the five persons nominated to hear the appeal.  It is correct that in terms of s.17A(12), an Appeal Board is empowered to determine an appeal with a quorum of just three members but one of them must be the chairman.  Consequently, the removal of the chairman - as happened in the present case - means that in law the Board has no further existence.

76.  As to the relevant statutory provisions, s.17A(1) of the Ordinance provides that:

“The Chief Executive may appoint a panel of persons (“the Appeal Board Panel”) whom he considers suitable to sit as members of an Appeal Board to hear an appeal under section 17B.”

77.  Persons appointed to the Appeal Board Panel are appointed for fixed terms.  It is the same for persons appointed in terms of s.17A(3) to be the Chairman of the Panel.

78.  It is from the Appeal Board Panel that persons are chosen to sit on individual Appeal Boards.  S.17(A)5 directs that:

“On receipt of a notice of appeal, the secretary to the Appeal Board Panel shall notify the Chairman of the Panel who ... shall nominate an Appeal Board.”

79.  Section 17A(10) of the Ordinance provides that, when an Appeal Board is constituted, the Chairman or a Deputy Chairman of the Panel shall act as Chairman of that Appeal Board.

80.  In respect of the respondent’s appeals, five persons were chosen from the Panel.  They were Mr Ronny F H Wong SC, appointed as Chairman, and, as members, Prof Lee Ngok, Dr Gary Ades, Mr Yip Chung Yin and Ms Sylvia Siu Wing Yee.

81.  The Appeal Board sat on numerous occasions between May 2005 and October 2006.  The Board’s decision, a majority decision, was given on 12 December 2006.

82.  It is to be noted that the Chairman, Mr Ronny Wong, had been appointed as Chairman of the Appeal Board Panel by the Chief Executive for a fixed term of two years from 1 October 2004 to 30 September 2006.  He therefore ceased to hold the office of Chairman of the Panel at the end of September 2006, some six weeks before the Appeal Board gave its decision in the respondent’s appeals.  However, what must also be noted is that Ms Sylvia Siu Wing Yee, also a member of the Appeal Board, was appointed a Deputy Chairman of the Panel from 1 October 2006 for a period of two years.  She therefore assumed her new office on the morning following Mr Wong’s completion of his office.

83.  As to the order of mandamus itself, this was contained in the first instance judgment handed down on 15 November 2007 and was to the following effect:

“the respondent [the Appeal Board] do and is hereby commanded to allow the applicant’s appeal in Town Planning Appeal Case No. 5 of 2005 to the extent of granting relaxation in terms of option 6a of the development proposals as referred to in the respondent’s decision dated 12 December 2006.”

84.  Pausing for a moment, our jurisprudence recognises that occasions may arise, albeit rarely, when a public law court is able to conclude that only one result is legally open to a tribunal and that, in the circumstances, it is appropriate, by way of remedy, to back an order of certiorari with a mandatory order.  This was done in the present case, the decision resting in the discretion of the judge at first instance.

85.  In light of the fact that Mr Ronny Wong’s tenure of office as Chairman of the Appeal Board Panel had expired on 1 October 2006, doubts were raised as to whether the order of mandamus required the Appeal Board as originally convened to be reconvened or whether a new Board, freshly appointed, should be convened in order to decide the respondent’s appeals in accordance with the order.  The assistance of the court was therefore sought.

86.  Having heard submissions, Cheung J took the unusual step of handing down a clarification ruling, amending the order of mandamus.  It was assumed by the judge – he put it no higher than that – that a “reconstituted or re-appointed Appeal Board” would hear the appeal now that the original decisions had been quashed and would determine it in accordance with the order of mandamus.  The judge therefore amended the order so that it commenced with the words:

“The Town Planning Appeal Board for the time being seized of the determination of Town Planning Appeal Case No. 5 of 2005 do and is hereby commanded....”

87.  In consequence of that ruling, a new Appeal Board was appointed to hear the respondent’s appeals and to allow them in accordance with the order of mandamus.  The new Board sat and duly complied with the order.

88.  In my judgment, it was not necessary to constitute a new Appeal Board.  The judge at first instance had the power to issue an order of mandamus directed to the original Appeal Board; that is, the one which had determined the respondent’s appeals.  I say that because I am satisfied, on a true construction of s.17A, that the Appeal Board remained in existence (complete with the power to reconsider the respondent’s appeals in accordance with law) until the appeal proceedings before it had been fully exhausted.

89.  An Appeal Board is constituted for the purposes of determining one appeal or one set of appeals only, its membership being drawn from the Appeal Board Panel.  The Panel and each and every duly constituted Appeal Board are bodies distinct and separate from each other.  Accordingly, appointment to the Panel means only that the Chief Executive considers that the person is “suitable” to sit as a member of an Appeal Board; that is, to be appointed to a Board.  That being the case, an Appeal Board, chosen from members of the Panel but now independent of it, remains in existence - constituted with a Chairman and members - until it has discharged its statutory duty of determining an appeal or set of appeals.  It follows that a Chairman of an Appeal Board, once lawfully chosen from the Panel, remains Chairman until the Board has completed its work.  If a Chairman’s tenure of office as Chairman of the Panel expires, it means only that he is from that time no longer a member of the Panel and cannot be chosen for any further Appeal Board.  But, on a plain reading, I can find nothing in the Ordinance which prescribes, directly or by implication, that, if a person’s tenure as a Panel member expires, then he automatically loses his membership of any Appeal Board to which he was appointed during his tenure.  As I have said, the Panel is simply the body from whom membership of Appeal Boards is drawn.

90.  If it was otherwise, a great many hearings would be frustrated.  The hearings in the present case, for example, ran for some 18 months.  Our courts presume that the legislature does not intend a statute to have consequences which are “objectionable or undesirable; or absurd or unworkable or impracticable, or merely inconvenient; or anomalous or illogical; or futile or pointless” : see R (Edison) v Central Valuation Officer [2003] 4 All ER 209, at 238 per Lord Millett.

91.  In summary, although Mr Ronny Wong’s tenure as Chairman of the Panel expired on 1 October 2006, while he could not from that date be appointed to any new Board, I am satisfied that he remained as Chairman of the Appeal Board constituted to determine the respondent’s appeals.

92.  If however I am wrong in this regard, I remain of the view that Mr Lindblom’s submission must still fail.  This is because, even with the removal of two members of the Appeal Board, a quorum of three remained including a Chairman.  Mr Wong may have ceased to be Chairman of the Panel as from the morning of 1 October 2006 but from that same morning Ms Sylvia Siu Wing Yee was appointed as a Deputy Chairman of the Panel.  As such, in the absence of Mr Wong, Ms Siu would automatically have assumed the role of Chairman of the Appeal Board pursuant to the provisions of s.17A(10) which provides that:

“... the Chairman or a Deputy Chairman of the Appeal Board panel shall act as Chairman of an Appeal Board.”

93.  The fact that the legislature has seen fit to make provisions for a quorum is evidence of the recognition that there may be instances when not all the persons appointed to an Appeal Board are able to see the appeal process through to conclusion.  I have no difficulty in the circumstances reading s.17A(10) to mean that, if the Chairman of an Appeal Board is no longer, for whatever reason, able to remain in post and, if on the same Board there sits a Deputy Chairman of the Panel, then that Deputy Chairman shall act as Chairman, meaning that he shall continue as Chairman.

94.  In summary, therefore, I am satisfied that the order of mandamus, in so far as it was addressed to the original Appeal Board, was a valid order.  The amended order, being directed to the Board “for the time being seized of the determination of the Town Planning Appeal” was sufficiently widely worded to include the original Board.  It too therefore is appropriate and there is no need for us to disturb that order.

95.  I come now to the second jurisdictional issue which can be disposed of without too much debate.  Although not advocated as such, Mr Lindblom nevertheless raised the possibility that, as the tenure of Mr Ronny Wong as Chairman of the Panel had expired by the time he and the other members of the Appeal Board had made their decision, that decision was of no effect, being a decision made by a Board that was no longer properly constituted.

96.  But, as I have said earlier, I am satisfied, on a true construction of s.17A, that chairmanship of an Appeal Board, once lawfully made, is not expunged, by the fact alone that chairmanship of the Panel has expired.  The one appointment may arise from the other but, once made, they are different and independent of each other.

Conclusion

97.  For the reasons given, I am of the view that the appeal must be dismissed. 

Hon Chu J: 

98. For the reasons given by Hartmann JA, I agree that the appeal should be dismissed.

Hon Stock JA: 

99. Accordingly the appeal is dismissed.  There will be an order nisi that the costs of the appeal be to the respondent to be taxed if not agreed with a certificate for two counsel.