TURBO TOP LTD v. TOWN PLANNING BOARD

HCAL 23/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 23 OF 2011

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BETWEEN

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(Heard together)

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J U D G M E N T

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I. INTRODUCTION

1.  Turbo Top is a subsidiary of Cheung Kong (Holdings) Ltd.

2.  Turbo Top owns the site at the junction of Queen’s Road Central and Garden Road. Cheung Kong Center (CKC) (a commercial tower) now occupies the site. In addition, there is a public open space in front of CKC; a car park of 1,046 parking spaces (800 for public and 246 for private use); a public garden at the car park’s deck level; a public toilet; and a small commercial space of about 648 sq m used as a fast food outlet.  The development originally included a post office. But the space occupied by the latter is now used by a Government office.    

3.  The site formerly comprised the Hong Kong Hilton, Beaconsfield House (where Government offices were situated) and the Garden Road Car Park (which had 800 public car parking spaces). 

4.  Turbo Top acquired the site in November 1996 under an Agreement with Government.  It was a special condition of the Agreement that Turbo Top maintain a public car park of at least 800 spaces at the site.  It was also a special condition of the Agreement that Turbo Top erect a development at the site having a specified minimum GFA, of which not more than 680 sq m could be for retail purposes.

5.  Turbo Top now challenges amendments proposed by the Town Planning Board (TPB) to the Outline Zoning Plan (OZP) for the area where the site is situated. 

6.  Turbo Top objected to the amendments when they were gazetted.  On 21 January 2011 TPB rejected Turbo Top’s objections. 

7.  The TPB then further considered the OZP amendments as a result of representations by members of the public (including Turbo Top).  As a result, on 15 April 2011 the TPB accepted some representations (including some by Turbo Top).

8.  On 13 May 2011 the TPB of its own decided to vary the proposed OZP amendments yet further.

9.  Turbo Top contends that the TPB’s decisions of 21 January, 15 April and 13 May 2011 (respectively, the 1st, 2nd and 3rd decisions) were invalid for various reasons.  By HCAL 23 Turbo Top attacked the 1st decision.  By HCAL 52 Turbo Top attacked the 2nd and 3rd decisions.  Since both sets of proceedings are inter-related, they have been heard together.  

10.  Turbo Top’s main complaint is that, in proposing to amend the relevant OZP, the TPB exceeded its jurisdiction.  The TPB (Turbo Top says) is only authorised by the Town Planning Ordinance (Cap.131) (TPO) to prepare and approve plans for the layout of areas of Hong Kong.  According to the long title to the TPO, the TPB should do this in order “[t]o promote the health, safety, convenience and general welfare of the community”. 

11.  What the TPB cannot do (Turbo Top suggests) is impose restrictions on a specific building (such as CKC) within an area.  That (Turbo Top complains) is to usurp the power of the Building Authority which regulates what can or what cannot be done in relation to a given building. 

12.  The TPB’s powers (Turbo Top argues) are merely “broad brush” in relation to areas of Hong Kong.  The TPB’s powers do not allow the TPB to engage in the “micro-management” of a building by the preparation and approval of plans which state what can or should not be done in a building.

II. BACKGROUND

13.  Since 1981 the site has had 2 zonings.  About 0.64 ha is zoned G/IC, while the remaining 0.32 ha is zoned C.

14.  Cheung Kong submitted a proposal for the comprehensive re-development of the site in 1994.  ExCo agreed to the re-development scheme in 1995.  The Lands Department then negotiated terms of exchange. 

15.  A pre-requisite for implementation of the scheme was the obtaining by Cheung Kong of the TPB’s approval for the redevelopment pursuant to TPO s. 16.  Cheung Kong did not regard it as strictly necessary from a legal standpoint to apply for TPB approval. Nonetheless, for “public relations” reasons, it agreed to seek TPB approval as required by Government.

16.  A selling-point of Cheung Kong’s planning application was that the re-development would include re-provisioning of the 800 public parking spaces that would be lost through demolition of the Garden Road Car Park. 

17.  The re-provisioning was a matter of concern to Government at the time.  This is evident, for instance, from comments on the scheme by the Project Manager (Hong Kong & Islands) (PM(HK&I)).  The latter stressed that “[t]he existing public facilities within the redevelopment site such as public car park, public toilets, Post Office etc. must be adequately re-provisioned so as to safeguard the interest of the public”.

18.  In October 1995 the TPB notified Cheung Kong that its TPO s.16 application had been approved.  It was a condition of approval that “the provision, management and maintenance of the public car park including temporary re-provisioning arrangements” be to “the satisfaction of the Commissioner for Transport or of the [TPB]”.

19.  In November 1996 Government and Turbo Top entered into the Agreement and Conditions of Exchange whereby the latter was granted the site as one lot (not 2 distinct lots as formerly). 

20.  In June 2008 Turbo Top applied to the Lands Department for modification of its lease conditions to allow 78 public parking spaces (located in the C zone) to be converted to a supermarket. 

21.  In support, Turbo Top commissioned a car park study.  That showed that peak utilisation of the public parking spaces was only 68.3%.  Nearby car parking (such as at Citibank Tower and Murray Road) also revealed low utilisation rates.

22.  In July 2010 the Transport Department indicated that it had no objection to the proposed conversion of 78 spaces to a supermarket.

23.  Meanwhile, in June 2010, the TPB’s Metro Planning Committee proposed re-zoning the site from C and G/IC to C(1).  This would be done “to reflect the existing development on the site”.

24.  The proposed OZP amendments were gazetted on 16 July 2010. 

25.  The draft OZP amendments stated in “Remarks” within the “Commercial” section of the Schedule of Uses:-

“On land designated ‘Commercial (1)’, no new development, or addition, alteration and/or modification to or redevelopment of an existing building shall result in a total development and/or redevelopment in excess of a maximum non-domestic gross floor area of 144,840 m², of which a gross floor area of not more than 680 m² shall be used for retail purpose, and gross floor areas of not less than 700 m² and 25,000 m² shall be used respectively for Government facilities and public car park with a minimum of 800 public car parking spaces. Public open space of not less than 5,200 m² shall be provided.”

26.  On 16 September 2010 Turbo Top submitted representations (referred to as “R7”) objecting to the OZP amendments affecting the site.  Other parties also made representations.

27.  To assist the TPB when considering the representations, the Planning Department prepared Paper No. 8703.  On R7, that paper stated:-

“TD [Transport Department] has advised that taking onto account the imminent developments/redevelopments in Central, which include a number of private developments alongside Queen’s Road Central without public car parking spaces, it would be prudent to keep 78 car parking spaces at Cheung Kong Center. It should be noted that what R7 asks for is deleting the stipulation of the requirements relating to the public car park in the Notes, rather than just the 78 car parking spaces. The implication of such proposal is far more significant.”

28.  At its 21 January 2011 meeting, the TPB by the 1st decision rejected R7.  Its reasons for so doing were as follows:-

“(a) the rezoning of the Cheung Kong Center site to C(1) was to reflect the completed development of the site. The stipulation of the specific GFA restrictions in the Notes followed the entitlements under the lease which reflected the development scheme approved by the Board. There was provision under the Notes for minor relaxation of the GFA restrictions on application to the Board.

(b) the public car park was for the re-provisioning of the ex-Garden Road Multi-storey Car Park, and the government facilities provided within the site are for the re-provisioning of similar facilities in the ex-Beaconsfield House, continuous provision of these facilities should be ensured by imposing specific control in the Notes of the ‘C(1)’ zone; and

(c) the OZP was a small-scale plan and it was intended to illustrate only the broad land use zonings. Since there was provision in the covering Notes of the OZP allowing boundaries between zones be subject to minor adjustments, realignment of the boundary to follow the lot boundary was considered not necessary.”

29.  Note that there is a slight discrepancy between the boundary of the area zoned C(1) in the draft amended OZP and the actual site boundary.  Reason (c) concerned Turbo Top’s request that the OZP zoning boundary be re-drawn to conform with the site’s actual boundary.

30.  On 18 February 2011 the TPB gazetted a revision to its proposed amendments to the OZP pursuant to TPO s. 6B(8).  The TPB put forward the revision in response to certain representations (identified as “R2” and “R5”) on the proposed OZP amendments.

31.  The revision was supposed to make clear the planning intention behind the amendments.  Thus, the revision would expressly state that the C(1) zone was intended primarily for comprehensive development/ redevelopment for office use and provision of public car park, Government facilities and public open space, with supporting shop, services and eating place. 

32.  On 10 March 2011 Turbo Top objected to the gazetted revision without prejudice to its previous representations.

33.  At its 15 April 2011 meeting, the TPB by the 2nd decision rejected Turbo Top’s further representation (known as “F1”) against the inclusion of a statement of planning intention.  Instead, the TPB justified the revision to the OZP thus:-

“To address the concern of some representers and commenter as well as the public on possible loss of Government, Institution or Community facilities and public open space due to the rezoning amendment of the CKC site from ‘Government Institution or Community’ and ‘Commercial’ to ‘C(1)’, it is considered appropriate to explain clearly the history/rationale of the rezoning and the planning control imposed on the site by revising the relevant parts of the Notes and ES [Explanatory Statement] to clearly set out that the planning intention of the ‘C(1)’ zone which is primarily for office use and the provision of public car park, government facilities and public open space, with supporting shop, services and eating place.”

34.  At its 15 April meeting, the TPB by the 2nd decision also heeded some of Turbo Top’s objections. 

35.  It decided to delete the retail GFA restriction which it had sought to impose on the site.  It did so to make the proposed amendments to the OZP insofar as the site was concerned “consistent with the development restrictions imposed on the IFC site”.

36.  It decided to retain the requirement of 800 parking spaces, but it resolved “to incorporate provision for minor relaxation of the restriction on the minimum number of public car parking spaces on application for the C(1) zone”. 

37.  Having made its 2nd decision, the TPB requested its Secretariat “to work out the amendments to the Notes and Explanatory Statement of the OZP for the Board’s further consideration”.   

38.  On 13 May the TPB by the 3rd decision deleted the restriction of a minimum GFA for car parking spaces at the site.  According to the minutes of the meeting, the deletion was prompted by an observation of the TPB’s Secretary (Ms. Ophelia Wong).  She had pointed out that:-

“for other OZPs, the general practice was to stipulate car parking requirement for particular sites either in terms of minimum GFA or minimum number of parking spaces. For consistency, it was therefore suggested that the restriction on the provision of a minimum GFA for public car parking for the C(1) zone be deleted.”

39.  Turbo Top was informed of the 3rd decision on 18 May 2011.  Until then it had no idea that the TPB was considering the deletion of the minimum GFA for car parking spaces at the site.

40.  Turbo Top’s principal complaints are as follows:-

(1) The 1st decision and, consequently, amendments to the 1st decision made by the 2nd and 3rd decisions were ultra vires. That was because the decisions constituted impermissible micro-managing by the TPB of the uses of a specific building (CKC), rather than an area.

(2) The proposed OZP amendments (as proposed by the 1st, 2nd and 3rd decisions) are inconsistent.

(3) The 1st, 2nd and 3rd decisions were based on irrelevant or erroneous considerations.

(4) The 3rd decision was vitiated by procedural irregularity.

(5) The 1st, 2nd and 3rd decisions are arbitrary and discriminatory.

III. DISCUSSION

A. Preliminary

41.  Before examining Turbo Top’s complaints, I should deal with a preliminary point raised by Mr Johnny Mok SC (appearing for the TPB). 

42.  Mr Mok submits that HCAL 23 was premature.  That is because, when HCAL 23 was commenced, the TPB had yet to consider Turbo Top’s further representation (F1) at its 15 April 2011 meeting.  The 2nd decision, which was the outcome of that meeting, accepted some of Turbo Top’s arguments and varied the OZP amendments originally proposed. 

43.  According to Mr Mok, this suggests that Turbo Top should have waited for the outcome of the 15 April meeting before initiating a judicial review.

44.  But, as I indicated to Mr Mok and Mr Benjamin Yu SC (appearing for Turbo Top), I do not think that I should dismiss HCAL 23 on the purely technical ground of being premature. There is little point in so doing.

45.  I doubt that the application was premature, since it seems to me that as of 21 January 2011 the TPB had firmly decided to revise the zoning of the site and impose restrictions on what could be done there.  The precise nature of those restrictions may have been varied later in response to other representations (for instance, R2 and R5, as opposed to R7). But the variations were in effect “fine-tuning” of the substantive decision already taken to reject R7.

46.  I do not have to determine the question conclusively. 

47.  By any reckoning, even in considering HCAL 53, I would have to grapple with at least the key issues raised by HCAL No. 23.  HCAL No. 23 queries the 1st decision.  HCAL 53 queries the 2nd and 3rd decisions.  Even if HCAL 23 were premature, I would still have to assess the essential legality of the 1st decision (or what survives of it), if only to arrive at conclusions on the vires of the 2nd and 3rd decisions. 

48.  It follows that it would be wrong to dismiss HCAL 23 off-hand.  I need to deal with the thrust of the argument there at the very least.  It would accordingly be an arid exercise to spend significant time on the niceties of whether, when HCAL 23 of 2011 was initiated, the 1st decision had definitely rejected R7 or only reflected a provisional view on R7’s merits.

49.  I shall proceed then on the foregoing basis.  In so doing, I am mindful that I cannot ignore subsequent events.  I accept Mr Mok’s caveat that I ought in any event to focus on what now remains of the 1st decision, namely, the re-zoning of the site from distinct G/IC and C zones to a C(1) zone and the imposition of a requirement (subject to minor relaxation upon application) that there be at least 800 public parking spaces in the site.  It would be academic to consider those elements of the 1st decision which the 2nd and 3rd decisions have superseded.

B. Complaint (1): Impermissible micro-managing by TPB

50.  Mr Yu’s submission begins with the long title to the TPO.  That expresses the TPO’s purpose:-

“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 and for the preparation and approval of plans for areas within which permission is required for development.”

51.  The long title is echoed in TPO s. 3(1)(a). That confers on the TPB a power to “undertake the systematic preparation of draft plans for the lay-out of such areas of Hong Kong as the Chief Executive may direct, as well as the types of building suitable for erection therein”. Such power is to be exercised “[w]ith a view to the promotion of the health, safety, convenience and general welfare of the community”.

52.  TPO s. 4(1) specifies how the TPB may exercise the power conferred by s. 3(1)(a) in respect of layout plans.  TPO s. 4(1) provides:-

“The Board’s draft plans prepared under section 3(1)(a) for the layout of any such area may show or make provision for:-

(a) streets, railways and other main communications;

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

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

(d) parks, recreation grounds and similar open spaces;

(e) zones or districts set apart for undetermined uses;

(f) comprehensive development areas;

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

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

(i) zones or districts set apart for use for open storage,

and any matter whatsoever may be shown or provided for or specified in or in respect of the plans by means of such diagrams, illustrations, notes or descriptive matter as the Board thinks appropriate; and any such diagrams, illustrations, notes and descriptive matters shall be part of the plans.”

53.  TPO s. 4(1)(f) was added in 1988.  TPO ss. 4(1)(g)-(i) were added in 1991.

54.  The words beginning “and any matter whatsoever ...” in s. 4(1) were added in 1974.  I shall refer to those words as “the s. 4(1) proviso”.  They were added to bring s. 4(1) in line with what had been thought to be the position prior to the High Court’s judgment in Singway v. AG [1974] HKLR 275. 

55.  Before Singway, it had been assumed that ss. 4(1)(a)-(e) were illustrative, not exhaustive, of what the TPB could make provision for in a layout plan.  But Singway held otherwise.  Applying the maxim that the expression of a specific matter implied the exclusion of any other matter (expressio unius, exclusio alterius), Leonard J read the list in paras. (a)-(e) as an exhaustive statement of what the TPB could designate in a layout plan.

56.  Had the TPO not been amended by the s. 4(1) proviso, Singway would have invalidated numerous OZPs, all based on a mistaken assumption as to the width of the power in s. 4(1).  See Explanatory Memorandum to the Town Planning (Amendment and Validation) Bill of 1974.

57.  I pause to note that TPO s. 16 was also a response to Singway.  That was enacted to confer flexibility.  It enabled the TPB, where there is provision in an OZP for relaxation of a restriction, to grant permission upon application for the restriction to be relaxed in a particular case.

58.  Mr Yu infers from the long-title and TPO ss. 3(1)(a) and 4(1) that the TPB’s approach in drawing up plans must be “broad brush”.  The TPB’s statutory powers can only be exercised in relation to areas or in respect of the types of buildings in particular areas.  The TPB cannot engage in “spot-zoning” by specifying some restriction affecting only a particular building within a given area.  If the TPB were to engage in such, it would be encroaching (Mr Yu says) upon the role of the Building Authority.

59.  Mr Yu supports his reading of the TPB’s limited power with dicta from a trilogy of cases: Crozet v. AG [1973-76] HKC 97; AG v. CC Tse (Estate) Ltd. [1982] HKLR 7 (CA); and Wing On Ltd. v. Building Authority (1996) 6 HKPLR 432 (CA).

60.  In Crozet (decided before Singway), Briggs CJ held that the TPB had power to specify the plot ratio for buildings in an area.  He observed that the TPB’s powers were widely drawn in the TPO and should be liberally construed.  But he cautioned (at 100E) that the TPB’s powers under the TPO “do not include such matters as the proportions, height and design of buildings”.  That was because the latter matters had been “left to the Building Authority under the Buildings Ordinance”.

61.  In CC Tse (decided after Singway), it was argued that the TPB had no power under s. 3(1) to make provision for “the types of building suitable for erection” in a particular area otherwise than by reference to one or more of the matters listed in the paragraphs of s. 4(1).  Since s. 4(1) did not specifically mention plot ratio, it was submitted that the TPB could not regulate the plot ratios of buildings in a particular area. In the alternative, it was argued that plot ratio could not be equated with the expression “types of building” in s. 3(1). 

62.  At first instance, CC Tse had successfully challenged the validity of the plot ratio restriction in the relevant OZP.  In the course of his judgment, Liu J suggested that “types of buildings” meant “classes of buildings sharing common characteristics”.

63.  The Court of Appeal rejected the submission that the general power to make provision for “types of building” in s. 3(1) was constrained by the specific list in s. 4(1) dealing with layout plans. 

64.  In considering the Applicant’s alternative argument, Cons JA stated (at 14H ff.):-

“It seems to me that what is done inside a building is not a satisfactory characteristic for determining the type of that building, which is more a question of design. This could be introduced into [Liu J’s] definition by the addition of the word ‘architectural’, so that it would then read: ‘“types of building” means classes of building sharing common architectural characteristics’, or to put it in another way, when we wish to know into which type or types of building a particular building falls, we must look at the building as a building.

The question then is whether plot ratio is an architectural characteristic. In my opinion it is. As I understand the term it means the relationship between the floor area of the building and the ground on which it could be built....

It is thus not a rigid feature. It is a matter of proportion which leaves the architect considerable latitude, in theory at least. He may design a la pancake or a la pencil, or somewhere between those two extremes. Nonetheless, the resultant buildings will all have something in common. All will have the same relationship of floor area to site area. That is something which relates to the building as a building and in my view is an architectural characteristic as much as an auditorium or a garage. It may not be as readily discernible to the untrained eye, but it is there all the same, and its effect would, I feel confident, be immediately discernible to anyone were he faced with buildings of plot ratios as widely varied as those we are concerned with here.”

65.  Cons JA obliquely contrasted (at 15F) the powers of the Building Authority under the Buildings Ordinance (Cap. 123) (BO) with those of the TPB under the TPO:-

“A further objection was that the legislation cannot have intended the Town Planning Ordinance to deal with a matter of this kind because it is fully and specifically dealt with in regulations made under the Buildings Ordinance Cap. 123; the Town Planning Ordinance was meant to give guidance only of the ‘broad brush’ kind, not to deal with fine particulars of this nature.

It seems to me however that the restriction imposed in the present instance is of the ‘broad brush’ kind...”

66.  Having rejected the Applicant’s main and alternative arguments, Cons JA did not deal with the Government’s points on the scope of the TPB’s power under TPO s. 4(1).  But Cons JA remarked (at 15F):-

“The Attorney General had two or perhaps three further arguments based upon the last paragraph of section 4(1) [that is, the s. 4(1) proviso] or upon Crozet’s case HCMP 409/73, unreported. I venture to think that all were doubtful starters but express no concluded opinion....”

67.  In Wing On, the Court of Appeal held that the Building Authority retained a discretion under BO s. 16 to approve building plans even where they contravened an OZP.  In the course of a concurring judgment, Godfrey JA approved (at 438D ff) the following passage from the Building Appeal Tribunal’s determination:-

“Leading Counsel for the Appellants contended that in exercising the discretion to approve building plans even if they contravene the TPB plans, the Building Authority and this Tribunal must do a balancing exercise on site specific considerations. We agree with this proposition and would incidentally observe that this approach underlines the difference between the functions of the Building Authority and this Tribunal on the one hand and the Town Planning Board on the other: whereas the Town Planning Board is concerned with planning considerations for a particular zone or area, the Building Authority and this Tribunal are of course concerned with a particular site or specific building development. It is therefore perhaps not surprising that in the objection hearing the Town Planning Board was not willing to revise the draft OZP for the sake of the Appellants’ building plans in respect of their specific site and were not therefore prepared to treat the Appellants’ Site as a special case.

The Building Authority on the other hand is and can only be concerned with a specific site. Leading Counsel for the Appellants and Counsel for the Building Authority were agreed that relevant considerations for the exercise of this discretion were (a) whether the planning intention in the OZP is contravened and (b) whether there are special considerations which warrant approval. Leading Counsel for the Appellant also contended that the question as to whether or not there were special considerations relating to the Applicant or the application was a relevant consideration for the purpose of the exercise of the discretion. Counsel for the Building Authority contended otherwise but we are satisfied that in principle this factor is a relevant consideration for the exercise of the discretion.”

68.  Mr Yu claims support for his argument because the 3 cases apparently distinguish between the TPB’s power to draw up plans for areas and the Building Authority’s power to accept or reject plans for a building within an area covered by a layout plan.  The TPB’s power must be “broad brush,” while the Building Authority’s power is building specific.  An attempt by the TPB (Mr Yu submits) to regulate by an OZP what can or cannot be done in a particular building would be an unlawful extension of the TPB’s jurisdiction and an encroachment upon the Building Authority’s competence.

69.  To bolster his argument, Mr Yu referred me to Town Planning Bill 2000 cls. 8 and 9. Those would have conferred specific powers on the TPB to prepare OZPs providing (among other matters) for “the control of height, number of storeys, plot ratio, gross floor area, site coverage, number of flats, disposition and use of buildings, which may vary from building to buildings in the same land use zone”. 

70.  The 2000 Bill (Mr Yu says) would have extended the TPB’s powers to the regulation of individual buildings within a zone or area.  But, the Bill never having been enacted, Mr Yu invites me to infer that the Government has tacitly accepted that for the time being the TPB’s powers are to be limited to the regulation of classes of buildings (as opposed to any specific building or development) within a zone or area.

71.  Mr Yu stresses (citing Bokhary PJ in Wah Yick Enterprises Co Ltd. v. Building Authority (1999) 2 HKCFAR 170 (at 182G)) that, if there is ambiguity as to the ambit of a statutory power, the power should be construed narrowly.  The operative statute should not be interpreted to take away private rights of property without compensation.  A property owner is entitled to the benefit of any doubt over the extent of the power.

72.  Mr Yu says that, in light of the perceived need to clarify the scope of the TPB’s power by the Town Planning Bill 2000, there must have been doubt about the scope of the TPB’s power under the present TPO to regulate what may or may not be done in a specific building or development within a zone.  If so, then applying Bokhary JA’s dictum in Wah Yick, Turbo Top should enjoy the benefit of that doubt.  The TPO should be construed in its favour.  To do otherwise, would be tantamount to depriving Turbo Top of property rights without compensation.

73.  Mr Yu adds that, in any event, the proposed restriction (namely, the requirement that there be at least 800 spaces at the site) is unworkable.  Mr Yu asks rhetorically: If there is re-development of the site, how will the minimum parking spaces requirement work? If the sole existing building at the site has no public parking provision, would this mean that the next building will have to introduce all 800 spaces?  That (Mr Yu submits) cannot be right.

74.  I am not persuaded by Mr Yu’s arguments.

75.  First, I think (as Mr Mok submits) that the 1st, 2nd and 3rd decisions fall squarely within the functions defined in the long title to the TPO and s. 3(1).  For the “convenience and general welfare” of the community, the TPB designated the site as C(1) and imposed a restriction on the number of public parking spaces there.

76.  The C(1) zoning recognised an existing reality at the site (namely, that it had ceased to be 2 separate lots zoned G/IC and C), while the restriction safeguarded future availability of public car parking at the site. 

77.  It would not be conducive to the public convenience to continue treating the site as something (2 separate lots) which it long had ceased to be. On the other hand, by imposing the restriction the TPB was preserving a public asset (the 800 car parking spaces) for use by the community in the future.

78.  Nor did the TPB in imposing a parking space restriction act inflexibly.  Instead, by the 2nd and 3rd decisions, the TPB acknowledged that there could be minor relaxation of the 800 space minimum to cater for contingencies that might arise (such as the foreshadowed application by Turbo Top to convert 78 spaces to a supermarket).

79.  The TPB exercised its power under TPO s. 4(1)(b) when it designated the site area in a layout plan as a zone for commercial use. 

80.  It acted within its power under TPO s. 4(1)(c) when in Notes to the layout plan it reserved 800 car parking spaces in the site for community purposes. 

81.  In any event, in so reserving 800 spaces, it also acted within the power conferred by the s. 4(1) proviso.  The imposition of the parking space restriction constituted making provision in a layout plan for “any matter whatsoever ... by means of such ... notes or descriptive matter as the Board thinks appropriate”.

82.  Mr Yu submits that the s. 4(1) proviso should not be interpreted as giving the TPB wider powers than those already conferred by ss. 4(1)(a)-(i).  The s. 4(1) proviso (Mr Yu contends) only stipulates the means (diagrams, illustrations, notes or descriptive matter) by which the TPB can visually or verbally convey the zonings and other matters in ss. 4(1)(a)-(i) on a 2-dimensional layout plan.

83.  But I do not think that is correct. 

84.  Mr Yu accepts that the s. 4(1) proviso was enacted to restore what had been the case before Singway. 

85.  Assume Mr Yu is right that the s. 4(1) proviso only concerns the means by which the TPB can show the matters in ss. 4(1)(a)-(i) on a layout plan.

86.  Then, in effect, there would be no difference from the position immediately after Leonard J’s judgment in Singway.  On Mr Yu’s argument, ss. 4(1)(a)-(i) would be an exhaustive list of what the TPB could do in a layout plan. The s. 4(1) proviso would have added nothing and its enactment would have been in vain. 

87.  The initial premise that the s.4(1) proviso restored what was the case before Singway would be contradicted by Mr Yu’s argument.  Consequently, I should not construe the s. 4(1) proviso in the unduly narrow manner which Mr Yu advocates.

88.  Mr Yu observes that ss. 4(1)(f)-(i) were added to the TPO in 1988 and 1991 after the s. 4(1) proviso was added in 1974.  He asks, if the s. 4(1) proviso introduced a general power in 1974 over and above those enumerated in ss. 4(1)(a)-(e), why was there need to add ss. 4(1)(f)-(i)?  Why not just rely on the supposed general power in the s. 4(1) proviso?

89.  The answer is to be found, in part at least, in the judgment of Litton JA in R v. Tang Ying Yip [1995] 2 HKC 277 (at 282C):-

“The answer ... is simply this: the powers given by the legislature to the Board have evolved in the course of time, as the scope of responsibility of the Board increased with the growing urbanisation of the territory. The words ‘... and any matter whatsoever ... etc’ were added to s. 4(1) in 1974, to counteract the decision of the High Court in Singway ... Prior to those amendments, the zoning categories ended with para. (f). It would have been highly confusing if, in an effort to increase the powers of the Board, the legislature had deleted paras. (a) to (f), relying simply upon the generality of the additional words ‘... and any matter whatsoever may be shown ... etc’.”

90.  There is a small error in Litton JA’s judgment. He referred to paras. (a)-(f) existing prior to the 1974 amendment of the TPO. In fact, para. (f) was not inserted until 1988.  I do not, however, believe that this error detracts from the thrust of his point. 

91.  It would have been confusing to have increased the TPB’s powers to counteract Singway, while simultaneously deleting the powers listed in paras. (a)-(e).  Later, despite the existence of the s. 4(1) proviso, it was probably thought convenient to add paras. (f)-(i) to s. 4(1) as the most efficient way of introducing new types of zonings (comprehensive development, country parks, village type development, open storage).  In the absence of clear words to such effect, the addition of the new zonings to s. 4(1) could not have been intended to whittle down the width of the s. 4(1) proviso previously inserted to correct Singway.        

92.  Second, I doubt that it is helpful pejoratively to label the proposed OZP amendments as the “micro-managing of a specific building”.  I do not think that is an appropriate way of looking at the present case.

93.  As Mr Mok submits, what the TPB has actually done is to designate an area (the site) as a C(1) zone and to impose a car parking space restriction on that area.  That there currently happens to be a single building or development in the area is only fortuitous.  If (for instance) in the future third parties acquired parts of the site from Turbo Top for the purpose of erecting buildings on the portions so acquired, the same C(1) zoning and parking space restriction would apply to them unless relaxed by the TPB.

94.  I see nothing in the cases cited by Mr Yu to suggest that the TPB cannot do what is has done by a layout plan of the site area.  In particular, there is nothing in the cases which cuts down the width and plain meaning of the s. 4(1) proviso. 

95.  In Crozet Briggs CJ expressly stated that the TPB’s powers were “widely drawn ... and must be liberally construed”. Insofar as his obiter remarks about the TPB not including “such matters as the proportions, height and design of buildings” are concerned, Briggs CJ would only have been speaking generally, without any intention that his words should be treated as laying down any rigorous (as opposed to a merely rough and ready) rule. 

96.  In any case, in reality the instant case concerns the zoning of, and the imposition of a restriction on, an area, regardless of the building or buildings that may be standing there now or in the future. 

97.  There is the further consideration that, at the time of the decision in Crozet, the s. 4(1) proviso had yet to be added to the TPO.

98.  It is true that in CC Tse, Cons JA described the Government’s arguments in connection with the s. 4(1) proviso as “doubtful starters”.  But he also made clear that he retained an open mind and was venturing no concluded opinion.

99.  Cons JA did suggest that in dealing with the expression “types of building” in TPO s. 3(1) one should “look at the building as a building”.  Whatever that cryptic observation might mean, it could not have been intended as a gloss on what the TPB could or could not do in a layout plan within the terms of ss. 4(1)(a)-(i) and the s. 4(1) proviso.  The latter issue is different from the main and alternative arguments which the Court of Appeal considered in CC Tse in relation to TPO s. 3(1).

100.  In Wing On Godfrey JA was drawing a general distinction between the functions of the TPB and the Building Authority.  It is unlikely that, by simply quoting the Building Appeal Tribunal with approval, he was intending to pronounce a hard and fast rule.  All he did was to draw a “broad brush” distinction between what the TPB and the Building Authority do. His dictum was intended to provide no more than a rule of thumb or common sense guidance.

101.  In any case, Godfrey JA pointed that the TPB was essentially “concerned with planning considerations for a particular zone or area”.  That is what we are concerned with here.

102.  Third, I find no relevant ambiguity in TPO ss. 3(1) or 4(1).  I therefore do not see how I can be assisted in construing the ambit of those provisions by reference to the abortive Town Planning Bill 2000.

103.  Little can be inferred from the mere fact that the 2000 Bill was more specific in its enumeration of the TPB’s powers.  That more detailed enumeration, for example, might equally plausibly have been intended just to make crystal clear what is already sufficiently explicit in the TPO. 

104.  Moreover, I do not think that the failure to pass the 2000 Bill logically implies (and can only imply) a tacit acceptance by the Government of particular limitations in the TPB’s powers.

105.  Given the absence of ambiguity in the TPO’s provisions, it follows that the TPB has not here deprived Turbo Top of property rights.  Zoning may place restrictions on the uses to which a property can be put.  But zoning restrictions imposed in the public interest will not without more amount to a deprivation of property.  This is because when one acquires land, one takes the property subject to an implied condition that, for the public good, the Government may by regulation (including OZPs) limit the uses to which such land can be put in the future.

106.  Fourth, I do not believe that there is anything unworkable about the requirement of a minimum of 800 parking spaces. 

107.  Mr Yu’s rhetorical question assumes that the TPB imposes a requirement that there be at least 800 public car parking spaces in an area where currently there is not that number of parking spaces.  He then asks whether and (if so) why the first person to develop the site after the imposition of the requirement must bear the entire burden of making up the deficiency in car parking spaces. 

108.  But Mr Yu’s assumption does not conform with the present situation.  Here the TPB has acknowledged the existence of 800 re-provisioned spaces and by its amendments to the OZP sought to ensure that at least that number (subject to minor relaxation) will be available to the public in the future at the site. 

109.  Assume that third parties take over all or parts of the site from Turbo Top.  If any of those parties intends to develop a part of the site in a manner that reduces the 800 existing spaces, such party will have to apply to the TPB under TPO s. 16 for permission to do so. It does not appear that there is anything intrinsically unworkable about such a requirement.

110.  Fifth, in oral submission, Mr Yu drew my attention to TPO s. 4A(1) which deals with the comprehensive development area zoning introduced in s. 4(1)(f). TPO s. 4A provides:-

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

(a) as specified in the note; or

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

111.  Mr Yu suggested that, in contrast to s. 4(1), TPO s. 4A(1) allowed the TPB to impose restrictions on a specific building within a comprehensive development area zone.  But if that is right, then it seems to me that Mr Yu’s argument is undermined. 

112.  To begin with, any power conferred by s. 4A(1) would on Mr Yu’s case have to be exercised in accordance with the purpose to the TPO as stipulated in its long title.  That purpose in the long title (Mr Yu argues) does not allow for the imposition by the TPB of restrictions on a specific building (as opposed to a particular area).  But, if that is so, how can the TPB impose, consistently with the long title, restrictions on a specific building under s. 4A(1)? The TPB could only so act if its raison d’etre (as defined by the TPO’s long title) enabled it to do so. That the TPB may (as it undoubtedly can) “micro-manage” in relation to a specific building under s. 4A(1), implies that Mr Yu’s narrow reading of the scope of the long title is wrong.

113.  My reasoning is fortified by the subordinate clause which begins s. 4A(1).  Nothing in s. 4A(1) is to be treated as diminishing the Board’s wide powers under TPO ss. 3(1) and 4(1).  Thus, if the TPB can “micro-manage” by imposing a restriction (say) on a particular building in a comprehensive development area under s. 4A(1), the TPB must be able to do similarly in relation to other zonings under s. 4(1).

C. Complaint (2): Inconsistency

114.  The result of the 1st, 2nd and 3rd decisions is an OZP with a Schedule of Uses that in Column 1 of its “Commercial” section identifies “Uses always permitted” within the site.   Such uses listed under Column 1 include, for instance, “Shop and Services”. 

115.  But the “Commercial” section also contains “Remarks” which (among other things) impose a requirement (subject to minor relaxation) that there be a minimum of 800 public car parking spaces at the site.

116.  Mr Yu submits that there is an internal inconsistency within the “Commercial” section.  On the one hand, according to Column 1, a property owner can always use the site for purposes listed in Column 1 without seeking TPB permission.  On the other hand, if an intended Column 1 use will lead to a reduction in the 800 car parking spaces, the owner must seek the TPB’s permission for a relaxation.  The Column 1 use in such case would not be “always permitted”.  Thus, the “Uses always permitted” designation of Column 1 is contradicted by the “Remarks”.  That (Mr Yu submits) is irrational.

117.  I disagree.  There is no irrational inconsistency.

118.  The OZP is a statutory instrument and, like all statutes, must be construed in a way that will make sense of it as a whole. One cannot read a part of the OZP in isolation from the rest.

119.  Self-evidently, the Column 1 description of “always permitted” is to be read as qualified by the “Remarks”.  To the extent that a Column 1 use does not contravene the “Remarks,” then to that extent the use may be regarded as “always permitted” and no reference to the TPB needs to be made.

D. Complaint (3): Irrelevant or erroneous considerations taken into account

120.  Mr Yu complains that in zoning the site C(1) “to reflect the completed development on the site” the TPB abdicated its responsibility of planning for the future.  Planning involves providing for the future.  In contrast, Mr Yu contends that “reflecting the completed development” solely entails looking to the past. 

121.  Mr Yu adds that the existing development at the site was not the result of the exercise by the TPB of a planning judgment. There was no requirement (Mr Yu says) for Turbo Top to apply for TPB permission to build CKC and its ancillary structures.  Planning permission was only sought as a public relations exercise to placate the Government which was insisting that Turbo Top apply to the TPB.

122.  I am unable to accept Mr Yu’s argument.

123.  Even if Turbo Top only went through the motions of applying for TPB permission for public relations reasons, Turbo Top must be held bound by the statements and representations which it made in its application.  The Court cannot ignore the fact that an application to the TPB was made at the time and that the TPB assessed from a planning perspective whether the CKC development was appropriate.  The building of CKC must have involved planning considerations on the part of the TPB.

124.  Nor do I understand why the recognition by the TPB of the state of affairs which had been achieved through the development of CKC at the site should involve an “abdication” of planning responsibilities. In proposing amendments to the OZP, the TPB was confirming the reality of an existing state of affairs at the site as the starting point for any future development of the area.  In so doing, the TPB would have been looking not just to the past, but also to the future.  

125.  Mr Yu further complains that, in coming to its decisions, the TPB acted on the views of Transport Department (as conveyed to the TPB by its Secretary).  Those views were to the effect that “taking into account the imminent developments/redevelopments in Central,” it would be prudent keep the 78 public parking spaces which Turbo Top wished to convert into a supermarket.   

126.  Mr Yu says that, to the extent that the TPB acted upon Transport Department’s views, the TPB would have taken into account irrelevant or erroneous considerations. 

127.  Mr Yu argues that no consideration has ever been given to the appropriate number of parking spaces required in the site area. The only available study, that commissioned by Turbo Top for the purposes of its proposal to convert 78 spaces into a supermarket, suggests that the 800 currently available public spaces are under-utilised.

128.  Mr Yu submits that, if the TPB wished to act upon Transport Department’s views, it ought first to have investigated whether those views were justified.  It could not simply have acted on the views on the assertion of the Transport Department.  Insofar as the TPB did nothing to verify the views, the TPB acted in a way that was unfair to Turbo Top.

129.  As I indicated to Mr Yu during oral submission, it seems on the evidence that the TPB did not place any weight on the Transport Department’s views in coming to its decisions.  Instead, the TPB focused on the fact that the CKC development entailed a re-provisioning of the pre-existing 800 public spaces at the Garden Road car park.  The TPB’s decisions treated the re-provisioned parking spaces as a public asset which should be preserved, subject to minor relaxation.

130.  Consequently, it is unnecessary to consider whether, in taking account of Transport Department’s views, the TPB wrongly conducted itself.  The TPB took no account of the Transport Department’s views in coming to its decisions.  Mr Mok did not strongly resist this conclusion in the course of his submissions.

131.  But I do not accept Mr Yu’s still further suggestion that, in focusing on the re-provisioning of the 800 spaces, the TPB also acted outside its remit.  In my view, the TPB was fully entitled in the exercise of its planning functions to treat the 800 spaces as a public asset which should be preserved for the future benefit of the area. 

132.  The spaces may currently be under-utilised.  But prudent planning strategy can include the preservation of an existing feature to meet unknown or unexpected contingencies, even where the feature may not be much used or appreciated at the moment.

E. Complaint (4): Procedural irregularity in the 3rd decision

133.  The 3rd decision removed the GFA restriction on the 800 car parking spaces.  The TPB decided this of its own motion without first informing Turbo Top or giving it the opportunity to be heard on that matter.  Mr Yu says this was procedurally unfair.  Had it been informed, Turbo Top argues that it could have submitted that the whole car parking restriction should have been removed.

134.  There is nothing in this point. 

135.  By the 1st and 2nd decisions the TPB had already decided not to remove the car parking restriction.  At its meeting on 13 May 2011 the TPB’s Secretary pointed out that, as a matter of practice, where the TPB had imposed a minimum number of car parking spaces on an area, the TPB did not also impose a minimum GFA for the car parking spaces.  The TPB accordingly deleted the car parking GFA restriction to conform with its past practice. There is no unfairness in that.

136.  Mr Yu suggests that on one reading of the minutes of the TPB’s 13 May 2011 meeting the Secretary pointed out something other than what I have just stated.  But I do not accept that Mr Yu’s interpretation of the minutes is the correct or natural reading.

F. Complaint (5): Discriminatory treatment

137.  The criticism is that the TPB did not impose an analogous parking requirement in the IFC site.  Nevertheless, the TPB deleted the GFA retail restriction in the CKC site because there was no retail restriction in the IFC site.  So (Mr Yu concludes) the IFC and CKC sites have not been treated in like manner.

138.  I do not find this a compelling point. Comparing the IFC and CKC developments is akin to comparing apples and oranges.  What is true of one site would not necessarily be true or applicable to the other.

139.  It is correct that the TPB deleted the GFA retail restriction for the CKC on the basis that there was no such in the IFC. But it does not follow that the omission or imposition of any restriction in the IFC should also be mirrored in the CKC site. 

140.  The IFC scheme was one for mixed uses (office, hotel and retail).  In contrast, the CKC site was intended for office and car park, with limited retail space (no more than 680 sq m).  It is not therefore possible meaningfully to compare one development with the other and conclude that, because one has or does not have some restriction, there has been arbitrary or unfair discrimination in respect of the other.

G. Miscellaneous complaints

141.  I deal here with 2 minor complaints made by Turbo Top.

142.  In its Notice for Judicial Review, Turbo Top criticises the TPB for failing to rectify the discrepancy between the C(1) zone boundary shown in the OZP and the actual CKC site boundary.  This criticism is unjustified.  The OZP is a “broad brush” plan drawn on a small scale (1:5000). No material confusion could result from the slight discrepancies between the OZP and the actual site boundary.

143.  Turbo Top also complains that the reasons for the TPB’s decisions here typically follow wording found in briefing papers prepared by the Planning Department for the TPB.  In my view, such tracking of wording merely reflects general practice.  The tracking does not necessarily mean that the TPB failed to give independent consideration to the representations before it.  On the contrary, in this case, the minutes of the TPB’s meetings show that members actively engaged in discussion of the matters before them before arriving at their independent conclusions.

H. Summary

144.  The long title to the TPO and ss. 3(1) and 4(1) therein (including the s. 4(1) proviso) are “widely drawn and must be construed liberally”. There is no ambiguity in their extent as far as this case is concerned.  The provisions read in their ordinary and natural meaning are wide enough to empower the TPB to zone the site as C(1) and impose an 800 public parking space restriction on that area.  There has been no encroachment on the jurisdiction of the Building Authority. 

145.  There is no inconsistency within the Explanatory Statement of the draft amended OZP.  Nor has there been any abdication of responsibility, improper consideration, or procedural unfairness in the manner in which the TPB has conducted itself here.

146.  Finally, there is no compelling case of discriminatory conduct on the part of the TPB as far as the treatment of the CKC and IFC are concerned.               

IV. CONCLUSION

147.  The judicial reviews in HCAL 23 and 52 fail. They are dismissed.

148.  The interim stays of the submission to the Chief Executive in Council of the draft amended OZP which I previously ordered are to be lifted.  But such lifting is not to come into effect for 7 days from this Judgment in order to give Turbo Top time to consider whether to apply for an interim stay of the lifting pending appeal.  If Turbo Top applies within those 7 days for an interim stay, the lifting is to be further stayed pending consideration of Turbo Top’s application.  Any such application by Turbo Top for an interim stay pending appeal should be listed before me to be heard at the soonest possible opportunity (estimated length 30 minutes).  If necessary, to accommodate at least one counsel on each side, the application can be listed for hearing at 4.30 pm.

149.  There will be an Order Nisi that Turbo Top pay the TPB’s costs of both judicial reviews (including any reserved costs), such costs to be taxed if not agreed.  There will be certificate for 2 counsel.

150.  There will be liberty to apply.