HKSAR v. WU KOON TAI AND OTHERS

HCMA337/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.337 OF 1999

(ON APPEAL FROM STS 5895-7 OF 1998)

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J U D G M E N T

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1. The appellants were summonsed before a magistrate for failure to comply with an Enforcement Notice issued under section 23(6) of the Town Planning Ordinance, Cap.113. After a trial which lasted for three days in the magistracy, each appellant was found to be in breach of the Enforcement Notice and was fined $15,000 respectively. They now appeal against their convictions.

2. The site in question is comprised of parts of Lot Nos.1164RP and 1165 in Demarcation District 106 in Yuen Long. It has an area of about 1,900 m2. The 1st and 2nd appellants were the registered owners of the site and the 3rd appellant, who operates the business of a motor vehicle accessories dealer, was the occupier. She and her husband came into occupation of the site in 1989. It was the 3rd appellant's contention at the trial that at all material times the site was used as a sales display yard and not as an open storage of the merchandise of her business.

3. On 5 October 1990, notification was published in the Government Gazette and the area in Yuen Long where the site is located was designated as an Interim Development Permission Area (IDPA) pursuant to the Town Planning (Amendment) Bill 1990.

4. Between 1987 and 1989 staff from the District Lands Office conducted a number of visits at the site and it was found to be used for mushroom farming. Subsequent inspections by officers from the Town Planning Department revealed that by August 1997, over 70% of the site area was used for the storage of used vehicles and vehicle parts. The items stored were piled up to a height of around 15 feet from the ground.

5. On 19 November 1997, each appellant was served with an Enforcement Notice pursuant to section 23(1) of the Ordinance. Under the Notice, the appellants were required either to discontinue the unauthorized development of using the site as "open storage of vehicles and vehicle parts" or to obtain planning permission under section 16 of the Ordinance. The last date of compliance was stated to be 19 February 1998.

6. It is common ground that no steps had been taken by the appellants to apply for planning permission in compliance with the Enforcement Notices.

7. There were two issues before the learned magistrate at the trial. The 1st issue was whether the land was used as an open storage for vehicles or vehicle parts before 5 October 1990. This was relevant to the issue whether the appellants were able to rely on the statutory defence of existing user under section 23(9) of the Ordinance. The 2nd issue was there had been a material change in the use of the site from that of a mushroom farm or from that of an open storage subsequent to 5 October 1990.

8. On the 1st issue, the learned magistrate found the appellants were able to prove, on a balance of probabilities, that prior to 5 October 1990, the site was no longer used as a mushroom farm and part of the land had in fact been used as an open storage. He went on to find that since 1992, the storage activities at the site had increased substantially and such increase amounted to a material change in the use of land as defined in section 1A of the Ordinance.

9. It is against this finding of the learned magistrate that this appeal is lodged.

10. There are two main grounds of appeal before this court. Ground one is that the learned magistrate erred in law in failing to consider the primary purpose of which the land was being used. It was submitted that the storage activities on the site was ancillary to the primary user of land which was a sales yard where prospective customers could visit the site with a view to purchase the items on display. The second main ground of appeal is that the learned magistrate failed to give sufficient weight to the evidence of the defendants. Had he given proper evaluation of the evidence, it was said, he would have come to the conclusion that the land was chosen for its commercial exposure because of its frontage at the main road. This evidence supported the appellants' contention that it was a display yard. The learned magistrate's finding was against the weight of the evidence and the conviction of the appellants was therefore unsafe and unsatisfactory.

11. In support of the 1st ground of appeal, Mr Wong, who also appeared for the appellants in the court below, contended that the issue of the user of the land was a question of mixed fact and law. The learned magistrate erred in approaching the issue on a pure factual basis. The primary user of the land was as a sales display yard and was very different in nature from that of an open storage alleged in the Enforcement Notice.

12. Mr Wong relied on the case of Crawley Borough Council v. Hickmet Limited, Nevvra Hickmet and Mark Smith trading as CTS Holdings [1998] J.P.L.210. The issue before the English Court of Appeal in that case was that the Council sought an injunction to restrain the site operators Hickmet Limited from using the site as a carpark for those passengers flying out of Gatwick Airport. The site in question was granted to the respondent in that case for use as a commercial storage. The sole issue before the Court of Appeal was whether using the site for car parking amounted to commercial storage for town planning purposes. In refusing to grant an injunction, the trial judge concluded that the activity of the defendants constituted commercial storage and there was no breach of planning control. The Council appealed to the Court of Appeal. In allowing the appeal, Otton L.J. said :

"However, was this activity within the permitted use of commercial storage? In my view it was not. It is not appropriate to determine this issue solely by analysing the purpose of the user or the provider of the land. It is necessary to examine the activity on the land and to assess the primary purpose to which the land was being put, and to decide whether it can be fairly called 'storage'. The activity described, in my judgment, clearly indicated a primary use of the land for car parking and not storage. The fact that some customers left their car there for two to three weeks at a time when on holiday, that they left their keys and the practice of block parking are not sufficient to constitute storage."

The judge in the court below in that case erred in equating temporary parking of cars by those flying out of Gatwick Airport with long term storage of new vehicles in a compound. The Court of Appeal concluded by observing that the words "parking" and "storage" should be given their ordinary and natural meaning. The activities in question in that case were car parking in connection with the Gatwick Airport and not commercial storage for vehicles pending delivery to customers.

13. The present case turns on the construction and the concept of the terms "sales yard" and "storage". A "sales yard" is where merchandises are displayed to prospective customers. The relevant definition of the word "storage" in the New Shorter Oxford Dictionary, 1993 Edition is :

"The action of storing or laying up a thing or things in reserve; the condition of fact of being stored."

Mr Wong for the appellant submitted that they are mutually exclusive. Even if they were not, it was argued, the storage activities were only ancillary to the primary user of the land as a sales display yard.

14. There was never any dispute that since 1992, used motor vehicles and vehicle parts were stored at the site. The evidence of the officer from the Town Planning Department was that the storage area had taken up to between 70% to 85% of the site and at various places, vehicle parts were piled up to the height of some 15 feet from the ground. It would also be important to note that on his visits at the site between 1997 and 1998, the witness did not see any customers. Had the site been used as a sales yard, the witness would have noticed the presence of customers. His evidence was accepted by the learned magistrate who found that the site had been used as a storage area even before 5 October 1990, which was the date of the Gazette. He rejected the defence contention that the site was used as a sales display yard. He found, based on the aerial photographs and the evidence of the prosecution and defence witnesses, that the percentage of the site for use as a storage had been greatly increased after 1990. It thus amounted to "a material change in the use of land".

15. In R. v. Helen Transportation Company Limited, MA303/1995, Litton V.-P. (as he then was) observed that the definition of material change in the use of land is concerned with what amount of matters had been deposited on the ground at the material time. The use labelled by the owner occupier or their subjective intention of the land user was irrelevant. The purpose of the ordinance is to regulate the actual use of land and this can only be determined by reference to the evidence of each case. The present case is no exception.

16. The learned magistrate approached the issue on the basis that there could have been different activities carrying on at the site at any one time. Even though the items stored thereon may be for sale, he found, however, that the primary user of the site was for open storage of used vehicles and motor accessories and not as a sales display yard as labelled by the appellants. There was no error in his understanding and application of the law.

17. It was submitted by Mr Wong as his 2nd main ground of appeal that the magistrate's finding was against the weight of the evidence.

18. The 3rd appellant's evidence was that her husband first started to use the site for display of used vehicles and vehicle parts in the middle of 1989. By 1992, their business was relocated from Ping Shan to the site in question. There was never any dispute that between 70% to 80% of the site was used as a storage area. Also not in dispute was that the accessories and parts were stacked up to heights of 15 feet. The appellants insisted the items were so arranged for the primary purpose of display and not for storage.

19. The learned magistrate accepted the evidence of the three prosecution witnesses. He conducted a careful evaluation of the oral evidence of the witnesses and scrutinized the documents and the aerial photographs exhibited before him. Based on the evidence and on the admission of the 3rd appellant, the magistrate found that there has been a substantial increase of storage activities on the site to the extent that it constituted a material change in the user of land since 1992. He was entirely justified in coming to the conclusions as he did. The criticism that he erred in misdirecting himself on the law and misinterpreting the evidence is totally without grounds.

20. For the reasons given, the appellant's appeals against their convictions are dismissed.