TOWN PLANNING BOARD v. TOWN PLANNING APPEAL BOARD NAM SANG WAI DEVELOPMENT COMPANY LTD

HCAL 26/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 26 OF 2013

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D E C I S I O N

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Background

1.  This is an application for judicial review brought by the Town Planning Board in respect of a decision of the Town Planning Appeal Board.  I shall refer to the former as the Board and the latter as the Appeal Board.  The application raises a point of construction of s. 17(1) of the Town Planning Ordinance (Cap. 131) (“the Ordinance”).  The relevant factual background may be stated as follows. 

2.  In the early 1990s, Nam Sang Wai Development Company Limited and Kleener Investment Limited, the interested parties in the present application (whom I shall collectively call “the developers”), proposed to develop certain areas in Nam Sang Wai and Lut Chau in the North West New Territories.  The areas concerned were at the relevant time covered by the Draft Nam Sang Wai Development Permission Area Plan No. DPA/YL-NSW-1 (“the DPA Plan”) issued in 1991. 

3.  Under the DPA Plan, there are certain areas zoned for “unspecified use”.  In these areas, residential and recreation uses are not permitted as of right but development was possible with the permission of the Board.  The project that the developers wished to pursue included such areas.

4.  As the site lies close to the Mai Po Nature Reserve and its buffer zones, the environmental and ecological impact of the proposed development has received much attention.

5.  In August 1992, pursuant to s. 16 of the Ordinance, the developers through their agent, Henderson Real Estate Agency Limited, submitted an application for planning permission under the DPA Plan in relation to a development scheme comprising an 18-hole golf course, 2,550 residential units and a nature reserve.  The Rural and New Town Planning Committee (“RNTP Committee”) of the Board refused permission and the Board on review affirmed that decision in June 1993.  The developers appealed to the Appeal Board.

6.  In August 1994, the Appeal Board, by a majority of 3 to 1, allowed the developer’s appeal and granted planning permission for the proposed development, subject to the planning conditions set out in an appendix with 27 paragraphs, numbered (a) to (z) and (aa), which were proposed by counsel on behalf of the developers.  The actual conditions are contained in paragraphs (c) to (y), which read as follows:

“Master Layout

(c) Submission and implementation of a detailed master layout plan including phasing/programming of development, schedule of housing type and parking spaces to the satisfaction of the Director of Planning or of the Board

Master Landscaping

(d) Submission and implementation of a detailed master landscape plan to the satisfaction of the Director of Planning or of the Board

Partitioning of Nam Sang Wai Site

(e) The Nam Sang Wai Site shall not be partitioned as to enable the ‘Golf Course’ to form a separate sub-division

Density and height

(f) The Nam Sang Wai Development shall not exceed a Domestic Site Coverage of 12% and the following restrictions on Gross Floor Area (“GFA”)

(i) Domestic GFA: 306,581 rn²

(ii) Commercial GFA: 5,000 m²

(iii) Club Houses GFA: 8,000 m²

(g) No building in the Nam Sang Wai Development shall exceed 8 domestic storeys

Environmental Impact

(h) Provision of a comprehensive environmental impact assessment covering all relevant environmental issues associated with the construction and operation of the development (including effluent disposal, construction impacts, impacts of the haul route and material transportation, leaching of pesticides/fertilizers/chemicals, if used, ecological impacts, and the layout and design of development before the commencement of works, and implementation of all recommendations of the EIA study to the satisfaction of the Director of Environmental Protection [or] of the Board

Conservation Plan

(i) Submission and implementation of a detailed Habitat Creation Plan for the Nam Sang Wai Site to the satisfaction of the Director of Lands or of the Board

(j) Submission and implementation of a Habitat Management Plan for the Nam Sang Wai Development, including the establishment of an Environmental Advisory Group and the qualifications for and appointment of an auditing ecologist, to the satisfaction of the Director of Lands or of the Board

(k) Submission and implementation of a Pest Management Plan for the greens, trees, fairways, practice range and other areas of the Golf Course, to the satisfaction of the Director of Environmental Protection or of the Board

(1) Submission and implementation of detailed plans for the Lut Chau Nature Reserve to the satisfaction of the Director of Lands or of the Board

(m) Submission and implementation, of a detailed management plan for the Lut Chau Nature Reserve, including enforcement arrangements for the Lut Chau Nature Reserve Levy on owners for the time being of the Nam Sang Wai Development, to the satisfaction of the Director of Lands or of the Board

(n) Provision and maintenance of open Perimeter planting at Nam Sang Wai Site to the satisfaction of the Director of Planning or of the Board

Off-site pollution control

(o) Submission and implementation of detailed plans for the Kam Tin River Reed Bed Treatment System, to the satisfaction of the Director of Environmental Protection or of the Board

(p) Submission and implementation of detailed plans for the Yuen Long Nullah Screening Plant to the satisfaction of the Director of Environmental Protection or of the Board

(q) Submission and implementation of management plans for (o) and (p) above, including arrangements for a management levy on owners for the time being of the Nam Sang Wai Development, terms of operation, and re-instatement upon removal, to the satisfaction of the Director of Environmental Protection or of the Board

Drainage

(r) Provision of a detailed drainage impact assessment and construction of drainage mitigation measures to the satisfaction of the Director of Drainage Services or of the Board

Traffic

(s) Provision of a detailed traffic impact assessment and detailed design on internal and external access arrangement to the satisfaction of the Commissioner for Transport or of the Board

(t) Provision of an access road and its junction with Castle Peak Road including diversion of underground utilities and implementation of such to the satisfaction of the Commission for Transport and the Director of Drainage Services or of the Board

(u) Submission and implementation of detailed plans for improvement to the Fairview Park Roundabout and the underpass to the south of the development to the satisfaction of the Commissioner for Transport or of the Board

(v) Provision of emergency vehicular access and street fire hydrant to the satisfaction of the Director of Fire Services or of the Board

Water Supply

(w) Provision and implementation of water mains along Castle Peak Road to the satisfaction of the Director of Water Supplies or of the Board

(x) No mains water shall be used for on-site irrigation

Schools

(y) Provision and reservation of sites for the construction of primary and secondary schools to the satisfaction or of the Director of Education or of the Boa[r]d”

7.  Paragraph (z) of the conditions states that the planning permission granted shall cease to have effect after 5 years.  Paragraph (aa) gives liberty to apply to the Appeal Board “for directions as to carrying the aforesaid conditions into effect”.

8.  The Board, not satisfied with the Appeal Board’s decision, applied for it to be judicially reviewed.  The details of those judicial review proceedings are not relevant for present purposes.  Suffice it to say that the Appeal Board’s decision was quashed by the Court of Appeal but eventually upheld by the Privy Council, by a majority of 3 to 2, in December 1996.  (The decision of the Privy Council is reported as Henderson Real Estate Agency Limited v Lo Chai Wan [1997] HKLRD 258.)

9.  Thereafter the developers submitted a number of plans and reports pursuant to the conditions but these submissions were considered not acceptable to the relevant Government departments.  The developers also made a number of applications for extension of the permission to commence the proposed development.  The effect of those applications, which were approved, was to extend the time limit for commencement of the proposed development ultimately to 18 December 2010. 

10.  The developers’ fourth and last application for extension of time was rejected by the RNTP Committee on 10 December 2010.  There is an application to the Board for review of that decision, the determination of which has been deferred pending the resolution of the present proceedings.

11.  Meanwhile, on 20 September 2010, in an attempt to meet planning conditions (c), (d) and (f) to (y), the developers had, through their consultants, submitted a set of Master Layout Plan (“MLP”), Master Landscape Plan, Environmental Assessment Study, Traffic Impact Assessment and Drainage Impact Assessment to the Planning Department with a request that it send copies of the materials to other departments or offices concerned.  The consultants’ letter stated:

“We … submit herewith plans and assessment reports for the purpose of discharging planning conditions imposed on the planning permission for the captioned development. …

… Therefore, the purpose of this submission is to discharge the following Planning Conditions: [conditions (c) to (d) and (f) to (y) are set out]”

The letter went on to explain that, as a result of numerous rounds of discussion with Government departments on ecological mitigation requirements, modifications had been made to the MLP as compared to the MLP approved by the Appeal Board in 1994.  The “major modifications” were described in the consultants’ letter.

12.  This submission failed to satisfy the Planning Department, which took the view, as stated in its letter to the developers dated 1 December 2010, that

“[t]he submitted modified MLP deviates substantially from the approved development scheme and therefore cannot be considered in the context of fulfilment of condition (c) of the planning permission … Your submission of Master Landscape Plan, Environmental Assessment Study, Traffic Impact Assessment and Drainage Impact Assessment … which are all based on the modified MLP, also cannot be considered in the context of fulfilment of the corresponding conditions.”

13.  In particular, the Planning Department considered that the main deviations from the approved scheme included a change in the overall development concept with the introduction of wetland enhancement area of 33.5 ha, a reduction in the size of the proposed golf course from 43 ha (18-hole) to 10 ha (9-hole), a reduction of the total area of water bodies for golf course from 13 ha to 2.87 ha, and a revised layout of residential use which is concentrated at the central and southern parts of the site in one large cluster (instead of being interwoven among the fairways of the golf course in separate and distinct clusters as originally proposed and approved).

14.  Other Government departments concerned also considered the technical assessment reports unsatisfactory.

15.  By a letter dated 6 December 2010, the developers asked the Board to grant an extension of the permission so that they could resolve the matter with the Planning Department, “failing which resolution, the dispute may be referred to you for consideration, pursuant to Planning Condition (c)”.

16.  Since, as I have mentioned above, the RNTP Committee of the Board had on 10 December 2010 refused to renew the validity of the permission, there could not be a further revised submission by the developer to the Planning Department and other Government departments. Accordingly, the matter was referred to the Board to see whether the MLP and other requisite plans and studies had been submitted “to the satisfaction … of the Board” as required by the planning conditions.

17.  There was no suggestion by the developers that the matter should be treated as an application for amendments to the permission granted in 1994.  It is common ground that the matter should be and was regarded as a submission of plans and reports pursuant to the planning conditions, seeking the Board’s indication that they had been submitted to its satisfaction as required by the conditions.

18.  The practice of the Board in relation to submissions of this nature is set out in a passage in a paper called “Town Planning Board Guidelines for Class A and Class B Amendments to Approved Development Proposals” (TPB-PG No. 36A).  The paper primarily concerns amendments of permission pursuant to s. 16A of the Ordinance but it also contains the following paragraph:

“8. Under section 16(5) of the Ordinance, the Board may grant planning permission subject to such conditions as the Board thinks fit. In general, the applicant is required to fulfil an approval condition to the satisfaction of the Government department concerned or of the Board. No separate planning application under section 16A(2) will be required for amendments made to the approved development proposal as a result of fulfilling the approval conditions of the planning permission specified by the Board. Should there be disagreement over the fulfilment of the approval conditions between the applicant and the Government departments concerned …, the matter will be submitted to the Board for consideration. … Besides, in complying with the approval conditions, there should not be major changes to the original approved development proposal. A fresh planning application under section 16 will be required if major changes to the approved development proposal are involved.”

19.  By a letter to the Board dated 15 December 2010, the developers argued that the Planning Department was wrong in taking the view that the new MLP deviated substantially from the approved development scheme and therefore could not be considered in the context of fulfilment of condition (c) of the planning permission.  They contended that the original MLP was not cast in stone, that the modifications made in the new MLP were necessitated by the need to satisfy the other planning conditions, that it would be a derogation from grant to give permission and yet prevent the applicant from fulfilling some of the conditions for the permission, and that the new MLP was an improvement over the original MLP in terms of planning, environmental and ecological considerations.

20.  At a meeting held on 17 December 2010, the Board after deliberation concluded that the new MLP involved major changes when compared to the approved scheme and that as such a fresh planning application would be required if the new MLP were to be considered.  The Board also noted that the technical reports were considered not acceptable by the relevant Government departments, and conditions (c), (d), (f) to (w) could not be regarded as having been satisfactorily complied with.

21.  A letter was sent to the developers on 10 January 2011 to notify them of the decision, stating that the Board had

“decided that the modified MLP for the proposed development submitted by you on 20.9.2010 constituted major changes to the scheme approved by the Town Planning Appeal Board on 26.8.1994 and noted that the technical reports, including the modified MLP, LMP, EA, DIA and TIA, submitted by you on 20.9.2010, were considered not acceptable by the relevant departments, and conditions (c), (d), and (f) to (w) could not be regarded as satisfactorily complied with”.

22.  By their solicitors’ letter of 27 January 2011 the developers applied for a review of that decision by the Board under s. 17 of the Ordinance.

23.  The Board considered the request at a meeting held on 8 April 2011 and concluded it had no power to review its decision reached on 17 December 2010.  This was intimated to the developers by letter which stated that

“there is no provision to review the [Board’s] decision on fulfilment of approval conditions … under section 17 of the Town Planning Ordinance”.

The decision challenged

24.  The developers took the matter to the Appeal Board.  In its oral decision on 30 October 2012 followed by its written decision dated 11 December 2012, the Appeal Board ruled in favour of the developers on the issue whether it had jurisdiction to consider the developers’ appeal, holding:

(1) the Board’s determination of whether the planning conditions had been fulfilled was a decision reviewable by the Board itself under s. 17 of the Ordinance; and

(2) the Board’s decision that it had no jurisdiction to review such determination was itself a decision made on a review under s. 17 and therefore capable of being appealed against to the Appeal Board under s. 17B of the Ordinance.

25.  The Board now applies for judicial review of the Appeal Board’s decision.  The Appeal Board has not taken any part in these proceedings.  The developers, as interested parties, have filed evidence, appeared by counsel and made submissions in opposition to the Board’s application.

26.  Against this background, two questions of statutory construction arise:

(1) Was there a competent appeal under s. 17B(1) to the Appeal Board from the decision of the Board on 8 April 2011 that it had no jurisdiction to review its own decision reached on 17 December 2010?  This turns on whether there is a “decision of the Board on a review under section 17” within the meaning of s. 17B(1).

(2) Do the developers have a right under s. 17 to require the Board to review its decision of 17 December 2010?  This turns on whether that is a “decision of the Board under section 16” within the meaning of s. 17(1).

27.  Counsel have, rightly in my view, focussed on the second of these questions because if the Board was wrong to decide that it had no power to carry out a review under s. 17, then it is common ground that it should proceed to conduct a review, irrespective of whether it is directed by the Appeal Board to do so.  It is therefore to that question that I turn. 

The statutory framework and the relevant legislative history

28.  I set out below the relevant legislative history (which is largely adapted from Mr Litton’s submissions), because in my view the proper interpretation of the statute is informed by an examination of this history and secondly because there is a dispute as to which version of the legislation applies in the present case.

29.  The Town Planning Ordinance was originally enacted in 1939 and, although amended in 1956, 1959 and 1969, it contained no provision for the grant of planning permission, subsequent review or right of appeal.  It was only concerned with the systematic preparation and approval of plans.

30.  In 1974, the Attorney General moved the Town Planning (Amendment and Validation) Bill 1974 to address a court ruling (namely, Singway Ltd v The Attorney General [1974] HKLR 275) that the inclusion of notes on town plans, and in some instances the uncertainty of those notes relating to the procedure for obtaining planning permission, rendered the town plans invalid.  The administration proposed to introduce a statutory procedure for obtaining planning permission with a right, where planning permission is refused, to have the Board re-consider its decision.

31.  There was concern expressed in the Legislative Council that, as originally proposed, the 1974 Bill contained no right of appeal from the Board.  This was addressed by an amendment proposed during the committee stage to insert a new s. 17(7) granting any person who was aggrieved by a decision of the Board on a review under the section a right to appeal to the Governor in Council.

32.  As enacted, the Town Planning (Amendment and Validation) Ordinance 1974 introduced two new sections, namely ss. 16 and 17, which set out the procedure for applying for permission where a plan provided that departures from the plan may be permitted.  The addition of these two sections resulted in:-

(1) the s. 16(1) right for an applicant to apply to the Board for planning permission;

(2) the s. 16(3) power for the Board to grant or refuse an application for permission made to it;

(3) the s. 16(5) power for the Board to impose conditions on any permission it granted under s. 16(3);

(4) the s. 17(1) right for an applicant to apply to the Board for a review of its decision.  Significantly, this subsection was then worded narrowly as regards the circumstances in which a review might be sought.  It read:

“Where the Board refused to grant permission under section 16, the applicant may, within 21 days of being notified of the decision of the Board, apply in writing to the secretary to the Board for a review of the Board’s decision”;

and

(5) a right under s. 17(7) to appeal to the Governor in Council from a decision of the Board on a review.

33.  In 1991, the administration agreed that a new independent appellate body for appeals against the Board’s decision on planning applications could be introduced in advance of the overall review of the plan-making and approval system.  As a result, the Town Planning (Amendment) (No. 2) Bill 1991 (“the 1991 Amendment Bill”) was introduced to add ss. 17A, 17B and 17C to the Ordinance.  The 1991 Amendment Bill was enacted as the Town Planning (Amendment) (No. 2) Ordinance 1991.  The system of appeals to the Governor in Council was thereby replaced by appeals to the Appeal Board.

34.  In addition, an amendment to s. 17(1) of the Ordinance was made at the same time, by amending “where the Board refused to grant permission under section 16” to “where an applicant is aggrieved by a decision of the Board under section 16”.  This amendment is central to the debate in the present case as will become apparent below.

35.  During the period between 1991 and 2005, ss. 16 and 17 of the Ordinance were in the following terms:

Section 16

“(1) Where a draft plan or approved plan, whether prepared or approved before or after the commencement of the Town Planning (Amendment and Validation) Ordinance 1974 (59 of 1974), provides for the grant of permission for any purpose, an application for the grant of such permission shall be made to the Board.

(2) Any such application shall be addressed in writing to the secretary to the Board and shall be in such form and include such particulars as the Board thinks fit.

(3) The Board shall within 2 months of the receipt of the application, consider the same in the absence of the applicant and, subject to subsection (4), may grant or refuse to grant the permission applied for.

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

(5) Any permission granted under subsection (3) may be subject to such conditions as the Board thinks fit.

(6) The secretary to the Board shall notify the applicant in writing of the Board’s decision on an application under this section, and where the Board refused to grant permission shall also notify the applicant of his right to a review under section 17.

(7) For the purposes of section 16(1)(d) and (da) of the Buildings Ordinance (Cap 123), anything permitted by the Board under this section shall not be a contravention of any approved plan or draft plan prepared under this Ordinance.”

Section 17

“(1) Where an applicant is aggrieved by a decision of the Board under section 16, the applicant may, within 21 days of being notified of the decision of the Board, apply in writing to the secretary to the Board for a review of the Board’s decision.

(2) On receipt of an application under subsection (1), the secretary to the Board shall fix a time and place for the review, which shall be a day not more than 3 months of the receipt of the application, and shall give 14 days’ notice thereof to the applicant.

(3) On a review under this section the applicant or his authorized representative may attend before the Board and shall be given an opportunity to make representations.

(4) If the applicant or an authorized representative does not attend at the time and place fixed for the review, the Board may proceed with the review or adjourn it.

(5) On a review under this section the Board shall consider any written representations submitted by the applicant.

(6) On a review under this section, the Board may, subject to section 16(4), grant or refuse to grant the permission applied for and may exercise the powers conferred by section 16(5).”

36.  In 2004, the Town Planning (Amendment) Ordinance 2004 was enacted.  Among other things, it made amendments to ss. 16 and 17 to enhance public involvement in the process of application for planning permission and in the process of review.  In particular, s. 16(2A) enables the Board to require the applicant to verify any matter in the application.  S. 16(2B) empowers the Board to “refuse to consider” an application on specified grounds.  S. 16(2C)-(2I) lay down the procedures for the application to be made available for public inspection, for notice of the application to be published, for the public to comment on the application, and for the comments in turn to be made available for public inspection.  S. 16(2J)-(2L) make provisions enabling the Board to receive further information from the applicant, and for such further information to be subject to public consultation.

37.  S. 16A was added to provide for a system for amendments to planning permission.

38.  Similar provisions were added to s. 17 to enhance the involvement of the public in the review process: see s. 17(2A)-(2J) which are broadly equivalent to s. 16(2C)-(2L) respectively.  In addition, s. 17(6) which set out the Board’s powers upon a review was also amended.  The phrase “may, subject to section 16(4), grant or refuse to grant the permission applied for and may exercise the powers conferred by section 16(5)” was replaced by “may confirm or reverse the decision in question, or substitute for the decision in question any decision it could have made under section 16 or 16A, as the case may be”.

39.  I shall refer to the amendments effected by the Town Planning (Amendment) Ordinance 2004 as the “2004 amendments”, although the amendments actually only came into effect on 10 June 2005.  Transitional provisions are now found in s. 28 of the Ordinance.  Ss. 16 and 17 as thus amended remain the current version of the legislation.

Applicable version of legislation

40.  The appeal was argued before the Appeal Board on the basis of the current version of the ss. 16 and 17.  In light of the transitional provisions in s. 28 of the Ordinance, however, the developers now submit that the applicable legislation is the version that existed before the 2004 amendments. 

41.  S. 28(3), (4) and (6) provide as follows:

“(3) The amendments effected by section 15 of the amending Ordinance do not apply in respect of any case in which the application for the grant of permission in question has been made to the Board under section 16(1) of the pre-amended Ordinance or its corresponding provision before the commencement of the amending Ordinance, and, for the avoidance of doubt, the provisions of this Ordinance shall, with necessary modifications, be construed and have application accordingly.

(4) The amendments effected by section 17 of the amending Ordinance, in relation to a decision made under section 16, do not apply in respect of any case in which the application for the grant of permission in question has been made to the Board under section 16(1) of the pre-amended Ordinance or its corresponding provision before the commencement of the amending Ordinance, and, for the avoidance of doubt, the provisions of this Ordinance shall, with necessary modifications, be construed and have application accordingly.

…

(6) Notwithstanding anything in the amending Ordinance but subject to subsections (1), (2), (3), (4) and (5)—

(a) any plan a notice of which has been published under section 5 of the pre-amended Ordinance or its corresponding provision shall be regarded as a plan a notice of which has been published under section 5;

(b) any amendments made to a draft plan under section 7 of the pre-amended Ordinance or its corresponding provision shall be regarded as amendments made to the draft plan under section 7; and

(c) any permission granted under section 16 of the pre-amended Ordinance or its corresponding provision shall be regarded as having been granted under section 16,

and, for the avoidance of doubt, the provisions of this Ordinance shall, with necessary modifications, be construed and have application accordingly.”

42.  In these provisions, “the amending Ordinance” means the Town Planning (Amendment) Ordinance 2004 (25 of 2004), and “the pre-amended Ordinance” means the Ordinance as in force immediately before the 2004 amendments.  S. 15 of the amending Ordinance made amendments to s. 16 of the Ordinance, whereas s. 17 of the amending Ordinance made amendments to s. 17 of the Ordinance.

43.  Mr Litton who appears for the Board places reliance on s. 28(6)(c) and submits that the planning permission granted to the developers in 1994 under section 16 of the pre-amended Ordinance should be regarded as having been granted under section 16 of the Ordinance as amended and as it now stands.  He submits that the applicable version of legislation is the current version which is based on the 2004 amendments.

44.  However, s. 28(6) is expressly subject to, inter alia, s. 28(3) and (4).  Those two subsections are similar except that there is an additional phrase “in relation to a decision made under section 16” in s. 28(4).  That sentence makes it clear the transitional provision applies to a review of a decision made under s. 16 rather than s. 16A.  It is not in dispute that in the present case, the application for the grant of permission was made to the Board under s. 16(1) of the pre-amended Ordinance.  It follows that the 2004 amendments to ss. 16 and 17 do not apply “in respect of” this case.  The phrase “in respect of” has a very wide meaning.  In my opinion the effect of the transitional provisions is that in this case whether there can be a review of the decision of the Board made on 17 December 2010 is a matter to be determined in the context of the pre-amended Ordinance.

45.  That said, neither side has suggested that the answer to the issue before me depends on which of the two versions applies. Both parties have proceeded on the footing that the meaning of s. 17(1) is relevantly the same before and after the 2004 amendments.

Construction of the statute

The arguments in outline

46.  The Board’s contention, both here and in the Appeal Board, is that under s. 16, there are three possible outcomes for an application for planning permission, that is to say, a decision to grant permission without conditions, a decision to refuse to grant permission, and a decision to grant permission subject to conditions which the Board has power to impose under s. 16(5).  On the proper construction of the Ordinance as a whole, the review procedure in s. 17 applies only where the applicant is aggrieved by a decision on the application for planning permission, ie a refusal of permission or a grant of permission subject to conditions.  It is submitted that the avenue of review applies neither to any preceding ancillary decision, such as a decision to require verification of particulars of the application under s. 16(2A)[1], nor any subsequent decision, such as a decision (to the extent necessary) whether a particular condition subject to which the permission was granted has been fulfilled.

47.  The developers’ contrary contention has the virtue of simplicity.  They submit that the phrase “a decision of the Board under section 16” in s. 17(1) literally means any decision under s. 16, that a decision as to whether plans and reports have been submitted to the Board’s satisfaction pursuant to the planning conditions previously imposed is a decision pursuant to the implied ancillary power of the Board arising from s. 16(5) and therefore is a decision under s. 16, and that there is no reason why the literal meaning should not be adopted.

48.  The Appeal Board in effect accepted the developers’ contention.  However, they seem to have thought that the Board’s argument was that only a refusal of planning permission was subject to review, and not a grant of permission subject to conditions.  They considered that if the legislature had intended to limit the word “decision” in s. 17(1) in that way, it would have made that clear by adding the words “of refusal” after “decision”.  They relied on the fact that there were previous decisions of the Appeal Board that dealt with appeals against the conditions imposed by the Board, and saw no reason to distinguish between a decision to impose conditions and a decision on whether the conditions had been fulfilled.  They allowed the appeal by holding that the Board does have the power to review, directing that the Board should proceed to a review under s. 17(1) of the Ordinance.

Hansard

49.  The principles of statutory construction are not in dispute in this case.  There is however a debate whether certain passages from Hansard may be taken into account at all, given that the Court of Final Appeal have expressly left open the question whether, and the extent to which, the approach in Pepper v Hart [1993] AC 593 is applicable in Hong Kong: see eg HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568,  576 at §17.

50.  The relevant passage is this.  In moving the 1991 Amendment Bill on 8 May 1991, the Secretary for Planning, Environment and Lands said in the Legislative Council:

“The Administration, however, agreed that a new independent appeals body for appeals against the Board’s decision on planning applications under section 17(7) could be introduced ahead of the overall review. The Bill introduced today sets out the establishment, powers, membership and procedures of that appeals body. In addition, it provides for a further right of review in respect of conditions imposed on planning permission, which is currently not provided for in the existing Ordinance, as an applicant can only ask the Board to review its decision of refusal of planning permission.

The amendments contained in the Bill will make the following changes to the Ordinance. They will:

(a) provide a right of review in respect of conditions imposed on the planning permission;

(b) provide for an independent Appeal Board to be substituted for the Governor in Council under section 17(7);

(c) … ;

(d) …;

(e) …

 The basic approach is to substitute the Appeal Board for the Governor in Council as the independent channel of appeal against the Board’s decision on a review under section 17, extended to include the right to review of an applicant aggrieved by the conditions the Board imposed on a planning permission.”

See Hansard for 8 May 1991 at pp 1913 & 1914 (emphasis added).

51.  It is in my view unnecessary in this case to go into the question of the applicability of Pepper v Hart in Hong Kong. In PCCW-HKT Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR 337,Bokhary PJ, with whom all the other members of the Court of Final Appeal agreed, said at §20:

“It has been clear at least since the decision of the Full Court in Elson-Vernon Knitters Ltd v. Sino-Indo-American Spinners Ltd [1972] HKLR 468 that the Objects and Reasons or Explanatory Memorandum annexed to a Bill is admissible for the purpose of ascertaining the mischief which the proposed statute was intended to remedy. Explanations given by Ministers when introducing a Bill are also admissible for that purpose. But to treat ministerial statements about the meaning and effect of proposed legislation as reflecting the will of the legislature would go beyond using such statements to ascertain the mischief against which a statute is aimed. Lord Millett NPJ, with whom the other members of this Court agreed, said this in Director of Lands v. Yin Shuen Enterprises Ltd (2003) 6 HKCFAR 1 at p.15 F-H:

‘Such evidence is admissible for a limited purpose only, to enable the Court to understand the factual context in which the statute was enacted and the mischief at which it was aimed.  This is not the same as treating the statements of the executive about the meaning and effect of the statutory language as reflecting the will of the legislature.  Within the permissible limits, however, the admissible evidence is not confined to the Explanatory Memorandum of Objects and Reasons, but must logically extend to explanations given by Ministers when introducing the Bill.’ ”

52.  It seems to me that the passage in Hansard referred to by Mr Litton is a ministerial statement of the mischief at which the amendment to s. 17(1) of the Ordinance was aimed, namely, that the right of seeking a review was then available only where the Board had refused planning permission, and not to an applicant aggrieved by the conditions imposed by the Board for planning permission.  For the purpose and to the extent of identifying this mischief the passage is, on the authorities, clearly admissible.

53.  Construing the statute in the way contended for by the Board would achieve the purpose of dealing with the mischief identified by the Secretary for Planning, Environment and Lands when he introduced the 1991 Amendment Bill into the Legislative Council.  But construing the statute in the way the developers advocate would also redress the mischief, though it would do more – it would widen the availability of review considerably further than was necessary for that purpose.  Whether the Legislature intended to do so cannot in my view be answered by reference solely to the ministerial statement but must be ascertained from the language of the statute as a whole.

The scheme of ss. 16 and 17

54.  The scheme of s. 16, prior to the 2004 amendments, is that where a draft plan or an approved plan provides for the grant of permission for any purpose, a person may under s. 16(1) make an application to the Board for the grant of such permission.  That is the only application expressly contemplated by the section, which is referred to in the later subsections.  Thus the “application” has to be in such form and include such particulars as the Board requires (s. 16(2)).  The Board has a duty to consider “the application” within two months (s. 16(3)).  Subsections (3), (4) and (5) of s. 16 set out what the Board may do in determining such an application: it may grant or refuse to grant the permission applied for (but only to the extent shown or provided for or specified in the plan), and where it grants permission it may impose such conditions as it thinks fit.

55.  S. 16(6) then imposes a duty on the secretary to the Board to notify the applicant in writing of “the Board’s decision on an application under this section”.  It is clear that this refers to the application for planning permission under s. 16(1).  The decision to be notified is a decision on the application, which seems to me to refer to the decision disposing of the application in one of the ways referred to in subsections (3), (4) and (5).  The duty to notify is significant since the application will, by virtue of s. 16(3), have been considered in the absence of the applicant.

56.  S. 16(6) further provides that where the Board refused to grant “permission” – referring to the planning permission applied for under s. 16(1) – the secretary to the Board shall also notify the applicant of his right to a review under s. 17.

57.  Before the amendment of s. 17(1) in 1991 (see paragraph 34 above), s. 16(6) corresponded neatly with s. 17(1).  S. 17(1) gave the applicant the right to apply for a review where the Board “refused to grant permission under section 16”, which mirrored the circumstance in which the secretary was required by s. 16(6) to notify an applicant of his right to a review.  In addition, the time for seeking a review is under s. 17(1) limited to 21 days “of being notified of the decision of the Board”, which seems to me to hark back to the requirement in s. 16(6) for the secretary to notify the applicant of the Board’s decision on the application under s. 16.

58.  It is not entirely clear why s. 16(6) was not also amended in 1991 together with s. 17(1) when the latter was amended to expand the range of circumstances in which a review was available.  The result of that omission is that although (at least) a decision to grant planning permission subject to conditions became reviewable after the amendment of s. 17(1) in 1991, the Board’s secretary is only obliged by s. 16(6) to notify an applicant of his right to a review where the Board had refused permission outright.  I can see no rational reason for this omission, which must have been unintended.  (In practice, perceiving a casus omissus, the secretary also notifies an applicant of his right to a review where the Board has granted planning permission subject to conditions.) 

59.  S. 17(6) then specifies that upon a review under s. 17, the Board “may … grant or refuse to grant the permission applied for … and may exercise the powers conferred by section 16(5)” (emphasis added).  This wording, especially the juxtaposition of the words “or” and “and”, seems to me to presuppose that on a review, the Board will of necessity either grant or refuse to grant planning permission.  Where the Board grants planning permission, it may in addition exercise the powers conferred by s. 16(5) to impose conditions.  This in turn suggests that the review is supposed to be concerned with the application for planning permission itself, and not some standalone ancillary question.  The developers argue that the power to decide whether further materials have been submitted pursuant to planning conditions imposed is an implied ancillary power that flows from the power to impose conditions under s. 16(5) and that therefore it is also an act that the Board may do on review under s. 17(6).  This argument in my view misses the point and fails to give weight to the structure of s. 17(6).

60.  It is trite that statutes must be construed as a whole, and that individual words or even sentences must not be interpreted by being examined in isolation.  In particular, s. 17 should be read with s. 16 since the two provisions form a scheme.  Reading ss. 16 and 17 together, there is in my view much force in Mr Litton’s contention that the “decision … under section 16” referred to in s. 17(1) is the “decision on an application under this section” referred to in s. 16(6), which is in turn a reference to the application for planning permission made under s. 16(1).  This appears also to be the understanding of the learned editor (Prof MJA Cooray) of the title “Town Planning” in Halsbury’s Laws of Hong Kong, Vol. 25 (2000 edition, being the edition before the 2004 amendments) where it is stated at §385.250 that:

“Where planning permission has been granted subject to conditions or refused by a Planning Committee on behalf of the Town Planning Board, the applicant aggrieved by the imposition of such conditions or the refusal of planning permission may, within 21 days of being notified, apply in writing … for a review of the Planning Committee’s decision.”

Nature of the Board’s “decision”

61.  S. 16 does not, whether before or after the 2004 amendments, specify the kind of conditions that may be imposed by the Board under s. 16(5) when planning permission is granted. S. 16(5) simply confers a power to grant permission subject to “such conditions as the Board thinks fit”.[2] For present purposes a distinction can be drawn between two types of conditions: those that require the further expression of approval or satisfaction by some authority (such as a government department or the Board) with respect to certain matters to be submitted and those that do not.  For example, in the present case, condition (c), among others, is of the former kind, whereas conditions (f) and (g) are of the latter kind. 

62.  Conditions of the former kind envisage the relevant authority coming to a view as to whether the further matters submitted are satisfactory or not.  The following general observations may be made about that process.

(1) The matters are submitted to the specified authority pursuant to the conditions imposed by the Board under s. 16(5) of the Ordinance when granting planning permission.

(2) What the authority does is to decide, in the context of those conditions, whether it is satisfied with, or in other words, approves of, the matters submitted.

(3) In doing so the authority does not, strictly speaking, make a decision as to whether the conditions (either individually or as a whole) have been fulfilled or not as such.  Such a question may arise for the Building Authority under s. 16(1)(d) of the Buildings Ordinance (Cap. 123) in deciding whether to refuse to approve building plans, or for the Director of Planning or the court where a development permission plan is sought to be enforced against unauthorized developments under ss. 21 and 22 of the Ordinance.

(4) Where a condition requires submission of matters to the satisfaction of a government department or of the Board, the condition is fulfilled if either authority gives approval.

(5) If the matters submitted fail at first to satisfy the authority, there is in principle nothing to prevent the applicant from revising them and making repeated submissions so long as the planning permission which is subject to the condition in question has not expired.

(6) Where the requisite matters have been submitted to, but failed to satisfy, a government department (e.g. the Planning Department), there is no procedure in law whereby that department can be required to review its “decision”, or providing for an appeal against such “decision”.  Such a “decision” would however ordinarily be amenable to judicial review.

63.  S. 17(1) of the Ordinance provides for the review of “a decision of the Board under section 16”.  Mr Valentine Yim, appearing for the developers, submits that the word “decision” simply means any decision, any act of making up one’s mind.  In my view, however, the meaning of s. 17(1) requires a more nuanced approach.  “Decision” is a word whose meaning depends on the context.  While it sometimes means simply any concluded opinion, it has at other times a narrower meaning that refers to a determination or judgment: see eg Loade v Director of Public Prosecutions [1990] 1 QB 1052; R v Lands Tribunal, ex parte City of London Corporation [1982] 1 WLR 258.  As is stated in Bennion on Statutory Interpretation (5^th ed) at p. 864, if the grammatical meaning is ambiguous then any of the possible grammatical meanings may be described as the literal meaning.  I do not therefore think that the literal meaning rule carries the argument very far. 

64.  Moreover, it is not just any decision of the Board, but a decision of the Board under s. 16, that is subject to review.  The word “under” is another chameleonic word whose meaning is affected by its context.  The conclusion of the Board in this case that it was not satisfied by the further plans and reports submitted is, in my view, more properly characterised as a decision pursuant to the terms of the conditions imposed by the Appeal Board under s. 16(5) in 1994, rather than as a decision under s. 16.

65.  It has been discussed in argument whether the power of the Board to express its satisfaction or otherwise with the further plans and reports submitted is an ancillary power implied by virtue of s. 40(1) of the Interpretation and General Clauses Ordinance (Cap. 1).  That subsection provides:

“Where any Ordinance confers upon any person power to do or enforce the doing of any act or thing, all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.”

66.  With respect, this seems to me to be an arid question.  There is no dispute between the parties that the conditions here were lawfully imposed (by the Appeal Board) and that Board has power to consider the plans and reports submitted pursuant to the conditions and express its opinion whether they are satisfactory.  Whether or not that power is derived from s. 40(1) does not in my view affect the analysis.

Consequences of the developers’ interpretation

67.  The developers’ contention, with all its simplicity, would in my opinion lead to incongruous and anomalous results under the post-2004 version of the legislation.  First, where materials such as plans and reports are submitted for the Board’s approval pursuant to the conditions subject to which planning permission has been granted, no public consultation would be required under s. 16.  The procedures for public inspection and comment laid down by s. 16(2C)-(2L) apply only to an application under s. 16(1), that is to say, the initial application for planning permission.  In contrast, on the basis of the developers’ contention, if the Board is not satisfied with the submission and that decision is subject to review under s. 17, the review would have to go through the elaborate procedures for public consultation under s. 17(2A)-(2J). It is difficult to see why there should be such disparity between the original process and the review.

68.  Secondly, the Board may make various “decisions” (in the broad sense) in the course of processing an application made under s. 16(1).  Thus, for example, it may under s. 16(2A) require the applicant to verify any matter or particulars in the application; it may under s. 16(2B) refuse to consider an application where it is not in the prescribed form or does not include requisite particulars, or where the applicant has not taken sufficient steps to obtain the consent of the current land owners; it has under s. 16(2L) a discretion to exempt further information supplied by the applicant from the process of public consultation.  On the developers’ argument, all such “decisions” are subject to review by the Board under s. 17, with the decision on review subject to appeal to the Appeal Board under s. 17B.  Multiple reviews and appeals could be generated in the course of a single application for permission, with the prospect of judicial review of each decision of the Appeal Board.  I doubt very much that the Legislature had intended to create such a potentially lengthy and cumbersome procedure.

69.  Thirdly, on the developers’ argument, the applicant could seek a review where the Board had under s. 16(2L) refused to exempt further information from the requirement of public consultation.  Yet such public involvement would be mandatorily required in the review process: see s. 17(2A)-(2J).  Further, the Board is required to consider the application for planning permission within 2 months of receipt of the further information (see s. 16(2K)(c)(ii) and 16(3)).  It follows that the review (which under s. 17(2) requires 14 days’ notice and may take place within 3 months of the request for review) and the process of public consultation if the refusal of exemption is maintained on review, would all have to take place within the 2 months prescribed by s. 16(3).

70.  These anomalies in my view militate against the construction advanced by the developers.

Comparison with other statutes

71.  Mr Yim submits that the argument of the Board runs contrary to the plain wording of s. 17(1).  He submits that if the Board’s power to review is intended to be limited to the extent suggested, clearer words to that effect would have been used by the Legislature.  By way of example he refers to s. 4(4) of the Chinese Temples Ordinance (Cap. 153), which provides:

“Any person aggrieved by a decision of the Chinese Temples Committee to refuse to exempt any Chinese temple under subsection (2) or to withdraw any exemption under that subsection may, within 28 days after receiving notice of such refusal or withdrawal, as the case may be, appeal to the Administrative Appeals Board”

and s. 11 of the Child Care Services Ordinance (Cap. 243), which provides:

“Any person aggrieved by a decision of the Director-

(a) under section 7(2) refusing an application for registration; or

(b) under section 9 cancelling a registration,

made in respect of him may, within 28 days after receipt of a copy of the order in relation to that decision, appeal to the Administrative Appeals Board.”

72.  These provisions specify the type of decisions from which a person aggrieved is entitled to appeal.  In my view however each statute must be considered having regard to its own terms and their overall statutory context.  I have already explained why the wording of s. 17(1) of the Ordinance, read with s. 16, suggests that it does not extend to an opinion of the Board such as that in question in the present case.  I do not think a contrary legislative intention can be distilled from the fact that s. 17(1) is not couched in terms similar to those found in the Chinese Temples Ordinance or the Child Care Services Ordinance.

The need for a merits-based appeal procedure

73.  Mr Yim for the developers further submit that the purpose of the review procedure is to provide an aggrieved applicant with an avenue of review, and thereafter appeal, on the basis of the substantive merits of the planning application.  If a decision of the Board such as its decision in this case made on 17 December 2010 is not subject to review, then it cannot be appealed and could only be impugned by judicial review which is concerned with the legality of the decision and not its merits.  He submits there is no reason why a decision to grant permission subject to conditions should be subject to a substantive process of scrutiny (i.e. review and appeal), whereas a decision to approve or disapprove of matters submitted pursuant to those conditions is only susceptible to a non-merits-based challenge in the form of judicial review.

74.  I see the force of this argument, but I am unable to accept it.  First, not all decisions of the Board under the Ordinance are subject to review and appeal – for example, a decision whether to amend an approved plan upon application made under s. 12A.  There is no a priori reason why there must exist a review and appeal procedure in relation to the non-approval of submissions made pursuant to the conditions that have been imposed for the grant of planning permission.

75.  Secondly, in the present case, when determining whether to grant planning permission on an application under s. 16(1) in 1994, the Appeal Board (exercising equivalent power to that of the Board) had completely discharged its function in deciding upon the application for planning permission.  The conditions imposed were proposed by the developers themselves.  There is no suggestion that the further submissions required by the conditions are matters which should have been determined by the Appeal Board in 1994 as part of the application for planning permission.  There is no suggestion that the Appeal Board has, instead of deciding the application for planning permission, carved out part of it and deferred it in the guise of the conditions to be fulfilled and unlawfully delegated it to various Government departments.  Even if there were such suggestion, the remedy would seem to me to be an attack on the legality and propriety of the conditions themselves.

76.  Mr Yim submits, in effect, that the decision of the Board in this case on 17 December 2010 is in substance part of the decision on the planning application itself.  He argues that it is the intention of the Legislature to provide a system whereby decisions on application for planning permission are subject to review and appeal on the substantive planning merits, and that adopting a purposive approach to interpretation, s. 17(1) should be construed in such a way as to permit a review of the decision in respect of the materials submitted pursuant to planning conditions because it was in substance part of the decision on the planning application under s. 16.  I am unable to accept this argument.  It is the premise with which I have difficulty.  There is no provision in the Ordinance for the Board to defer part of the consideration and decision of the application for planning permission to a subsequent stage after an initial decision, let alone to delegate that responsibility to or share it with Government departments.  As Keith J said in Delight World Ltd v The Town Planning Appeal Board [1997] HKLRD 1106, 1116-1117, Hong Kong has not introduced the concept of “outline planning permission” into the Ordinance.  In my judgment, it would not be right to try to fashion a further review and appeal mechanism on the supposition that the Appeal Board has introduced just that in this case in 1994.

77.  If the Legislature wishes to do so it may of course devise and put in place a system whereby both the determination of the planning application itself and any approval by an authority of further submissions made pursuant to a condition imposed on the grant of planning permission are both subject to review and appeal.  It is however in my view not irrational for the Legislature to create a system under which the former is subject to review and appeal on the merits but not the latter.  If on analysis of the purpose, structure, language and history of the legislation such a system is what the Legislature intended, it is not for the courts to reconstruct a different regime.  I am unable to subscribe to the developers’ argument that the Board’s interpretation should be rejected on the ground that it led to an absurdity.

78.  Thirdly, where, as in this case, a condition imposed requires submission of materials to the satisfaction of a Government department, it is clear, as is accepted by the developers, that there is no review or appeal procedure in respect of the decision by such Government department.  The non-approval can only be challenged, if at all, by way of judicial review.  In the present case, the conditions are so worded as to require submission of materials to the satisfaction either of the Government department concerned or of the Board.  There seems to me to be no difference in nature between the decision of the Government department and the Board in this respect.  Ex hypothesi, that decision is not part of the decision on the application for planning permission, which it is the statutory duty of the Board alone to determine.

Article 35 of the Basic Law

79.  Mr Yim further submits that the interpretation advocated by the Board is not consistent with Article 35 of the Basic Law, which provides:

“Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.

Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.”

80.  Relying on the decision in Lee Yee Shing Jacky v Inland Revenue Board of Review, HCAL 40/2008, 22 February 2011 (Lam J) and [2012] 2 HKLRD 981 (CA), the developers argue that by construing s. 17(1) as not applicable to the Board’s decision on whether further materials have been submitted pursuant to the planning conditions to its satisfaction, they would be deprived of their right to bring legal proceedings against such decision. 

81.  In my opinion, the developers’ reliance on Article 35 is misplaced.  As Ribeiro PJ made clear in Stock Exchange of Hong Kong Ltd v New World Development Co Ltd  & Others (2006) 9 HKCFAR 234 at §88, “courts” in Article 35 refer to the courts of law.  The right of access to the courts does not advance the developers’ argument that they should have a right to a review by the Board and a right of appeal to the Appeal Board, neither of which is a court within the meaning of Article 35.

82.  In any event I do not think that Lee Yee Shing Jacky supports the developers’ argument.  In that case, both Lam J (as Lam VP then was) and the Court of Appeal held that the procedure of appeal from the Board of Review by way of case stated does not involve any infringement of Article 35 of the Basic Law.  They pointed out that the right of access to the courts under Article 35 is not absolute.  They saw no substantive difference between an appeal by way of case stated and judicial review.

83.  Furthermore, Lam J stated in paragraph 79 of his judgment at first instance:

“… in the consideration of the substance of a resident’s constitutional right of access to the courts as enshrined in Article 35 of the Basic Law and buttressed by Article 80, the first question to be asked is in what manner the exercise of the judicial power of the state should be involved regarding the subject matter at hand. If the primary decision is, upon proper analysis, in substance an exercise of original judicial power of the state, an exercise of such power by a body other than the courts of law is prima facie a curtailment of the constitutional right. Such curtailment would then have to be justified under the proportionality test laid down in Solicitor v Law Society of Hong Kong (2003) 6 HKCFAR 570 and recently applied in Charles Mok v Tam Wai Ho FACV 8 of 2010, 13 December 2010. On the other hand, if the primary decision is an administrative one, the constitutional right of access to the courts manifests itself in the form of the exercise by the court of its supervisory jurisdiction through judicial review. It is then for the court to decide on the facts and circumstances in each case the extent to which the court could intervene (including intervention on the basis of errors of material facts). …”

84.  Similarly, Lord Hoffmann said in Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening) [2003] 2 AC 430 at §57, in the context of article 6 of the European Convention on Human Rights:

“In the case of decisions appropriate for administrative decision, [the Strasbourg court’s] concern, again founded on the rule of law, is that there should be the possibility of adequate judicial review.”

85.  It seems to me clear that the process of examining and approving materials submitted pursuant to planning conditions is quintessentially an administrative decision based on policy and expedience, with the decision-maker having to balance a wide range of interests including public needs.

86.  As Lord Hoffmann has said, while article 6 of the European Convention (equivalent to article 10 of the Hong Kong Bill of Rights) may call for control by a judicial body with full jurisdiction, “ “full jurisdiction” does not mean full decision-making power.  It means full jurisdiction to deal with the case as the nature of the decision requires”: R (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at §87. 

87.  On this basis, it follows from the availability of judicial review that there exists adequate judicial control over the decision of the Board in question.  There is in my view no infringement of any constitutional right of the developers arising from the absence of an internal review by the Board to be followed by an appeal to the Appeal Board.

Conclusion

88.  For the above reasons, I conclude that:

(1) on a true construction of the Ordinance, the decision of the Board on 17 December 2010 is not a “decision of the Board under section 16” within the meaning of s. 17(1); and

(2) the Board therefore had no power to review that decision under s. 17 and was right so to hold on 8 April 2011.

There will be declarations accordingly.

89.  It follows that in my opinion the Appeal Board’s decision is vitiated by an error of law.  It is unnecessary to decide whether there was a competent appeal to the Appeal Board, which raised a nice question as to whether the developers were aggrieved by “a decision of the Board on a review under section 17” when the Board held that it had no jurisdiction to undertake the review requested. 

90.  The application for judicial review is therefore granted.  There will be an order of certiorari bringing up into the High Court and quashing the decision of the Appeal Board.

91.  There will be an order nisi that the Interested Parties pay the costs of the Board.