WAH YICK ENTERPRISES CO LTD v. BUILDING AUTHORITY

FACV No. 12 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 210 OF 1997)

_____________________

____________________

J U D G M E N T

____________________

Chief Justice Li:

1. I agree with Mr Justice Litton PJ's judgment.

Mr Justice Litton PJ:

Introduction

2. The appellant is the owner of land in the New Territories. The land falls within an area zoned for "Village Type Development" in the draft Yuen Long Outline Zoning Plan S/YL/2 ("OZP") published by the Town Planning Board on 3 November 1995. In the Notes to the OZP, forming part of the plan, under the column "uses always permitted", the word "House" appears. No other words qualify that designation of use. On 29 January 1997 the appellant submitted to the Building Authority plans for the erection of a 33-storey block of flats comprising a total of 99 flats on a portion of its land. The Building Authority, pursuant to s.16(1)(d) of the Buildings Ordinance, Cap. 123, refused to give approval to the plans on the ground that the carrying out of the building works shown thereon would contravene the OZP. The appellant, being dissatisfied, took out an originating summons to challenge the Building Authority's decision. This was heard by Deputy Judge Whaley in September 1997 and by his judgment dated 24 September 1997 the appellant's application was dismissed. The appellant then appealed to the Court of Appeal. By its judgment dated 1 April 1998 the Court of Appeal dismissed the appeal and affirmed Deputy Judge Whaley's judgment. Pursuant to leave granted by the Court of Appeal on 5 May 1998 the appellant now appeals to this Court.

The Outline Zoning Plan

3. The OZP was prepared by the Town Planning Board under the provisions of s.3(1) of the Town Planning Ordinance, Cap. 131, which provides:

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

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

4. Section 4 which is headed "Contents of Lay-out Plans and Powers of the Board" says:

"(1) the Board's draft plans ... may make provision for -

....

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

....

(e) zones or districts set apart for undetermined uses

....

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

5. The OZP covers an area of about 562 hectares of which land zoned for village type development (represented by the symbol "V") covers about 99 hectares or 17.6%.

6. In the Explanatory Statement published with the OZP one finds the following broad statements concerning the general planning intentions for the area:

"5. Population

The estimated total population of the Area was about 124,000 persons in March 1994. Upon full development, the total population will be about 165,000 persons. This estimate is based on an assumption that the land use capacity as shown on the Plan would be fully realised.

....

8.8. Village Type Development (V): Total Area 99.35 ha

There are many well-established recognized villages within the Area, such as Shap Pat Heung. The zoning is intended to provide for the retention of existing villages and the reservation of land for village expansion purpose. It should be noted that land within the zoning is primarily intended for development of small houses by indigenous villagers. Village expansion areas and other infrastructural improvements will be guided by more detailed layout plans."

The appellant's case

7. As mentioned earlier, in the Notes to the OZP, under the column "uses always permitted" for the "V" zone, the word "House" appears. It is the appellant's case that the proposed 33-storey block of flats falls within the meaning of House; that it is entitled as of right to use the land for the purpose of building a high-rise house; and that the Building Authority was accordingly not authorized to reject the plans on the ground that the carrying out of the building works shown thereon would contravene the OZP. The appellant points to the fact that in some other OZPs covering other parts of the New Territories, where "House" appears in column 1 under village type development, the Notes restrict development or re-development to buildings of three storeys (8.23 metres) or the height of the existing buildings, whichever is the greater; the absence of such restriction indicates, so the appellant contends, that no such restriction was intended in the Yuen Long OZP. Further, in the "V" zones in some other OZPs, while there is no "House" use listed in column 1 in the Notes, "New Territories exempted House" (a building of not more than 3 storeys under the Buildings Ordinance (Application to the New Territories) Ordinance, Cap. 121) is so listed, and "House" comes under column 2, the "Remarks" in the Notes making it clear that any such "House" cannot exceed a height of 3 storeys (8.23 metres) or the height of the existing buildings, whichever is the greater. Thus, whether the proposed development falls under column 1 ("uses always permitted") or under column 2 ("uses that may be permitted ... on application to the Town Planning Board"), so the argument goes, the Town Planning Board has taken pains in other instances to specify a height restriction for House use; this reinforces the point that in the Yuen Long OZP no height restriction was intended for "House" development. It is unnecessary to enumerate all the evidence relied on by the appellant in this regard. The effect of the evidence, as the appellant contends, is that in the Yuen Long OZP "House" development is unrestricted in height; that the Building Authority is bound to give effect to this, and that any domestic building falling within the general meaning of House is consistent with the OZP, thus giving the appellant the right to construct a 33-storey block of flats, so long as that block has only one main entrance. The appellant concedes that if the block of flats has more than one main entrance it would not qualify as a house: see Wong Bei-nei v. A.G. [1973] HKLR 582 at 593, citing among other cases Kimber v. Admans [1900] 1 Ch 412.

8. The judge rejected this argument. He concluded that, in the context of a village type development zone, House meant a low-rise low-density building. Hence a 33-storey block of flats did not qualify. He was, as mentioned earlier, upheld by the Court of Appeal.

Meaning of "House"

9. At the hearing before us, and in the courts below, submissions were made concerning the meaning of the word House. We were taken through a number of English cases where courts have sought to construe the meaning of house or dwelling house in the context of the instruments in which those words appeared. Little assistance can be derived from those cases. A search for a free-standing meaning of the word House, valid for all time in all circumstances, is fruitless. The word has, as Lawrence J in Annicola Investments Ltd v. Minister of Housing [1968] 1 QB 631 at 640 remarked, a fluidity of meaning; it takes its flavour from the context in which it is used. It is clear that, as a matter of the ordinary use of language, a residential block with one common entrance but containing a number of flats within the building envelope can be considered a house. An example of this, in the context of restrictive covenants attaching to the grant of land located on Hong Kong Island, is Real Honest Investment Ltd v. Attorney General [1997] 2 HKC 182 where it was common ground that an apartment block of 7 storeys, with one common main entrance, 85 ft in height, consisting of 14 residential flats was a house. That was a result arrived at by concession by the grantor, not by adjudication in court. The examples from English cases cited in the course of argument were old cases, decided at a time when residential tower blocks of over 30 storeys were unknown. In this regard, it is worth noting that the Town Planning Ordinance was first passed in 1939 when Hong Kong's population was approximately one and a half million and multi-storey buildings were few: see the observations of Leonard J in Singway Co. Ltd v. Attorney General [1974] HKLR 275 at 283 to this effect. In such a setting, a residential block might well, in ordinary parlance, be referred to as a house, whatever its internal divisions. It does not follow that, in the ordinary use of language today, a 30-storey residential block can be referred to as a house: most people would simply call it a block of flats.

10. Counsel for the appellant submits that House in its "ordinary legal meaning" includes a block of flats for residential use and therefore should be given that meaning in column 1 of the Yuen Long OZP; primafacie it includes the proposed block of flats. Counsel does not make clear whether "ordinary legal meaning" is something different from "ordinary meaning". In my judgment, in relation to the word "house", there can be no difference.

11. Counsel further submits that the meaning of House does not become more precise in the context of "village type development" because that is so vague a concept that no weight should be attached to it; it is, counsel submits, "too uncertain to be valid and workable".

Village type development

12. As mentioned earlier, the designation of 'V' zones in the Yuen Long OZP was made by the Town Planning Board under s.4(1)(h) of the Town Planning Ordinance. This authorized the Board to provide for zones suitable for "village type development, agriculture or other specified rural uses". It first appeared in subsection (1) of s.4 by amendment in January 1991. When para. (h) was added to s.4(1), there was also added at the same time para. (g) which authorized the Town Planning Board to draw up plans for:

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

13. These two paragraphs were part of much wider amendments to the Ordinance whereby, for the first time, rural areas of Hong Kong - and in particular those lying in the New Territories - were brought under statutory planning control. The power of the Town Planning Board to designate zones for village type development under s.4(1)(h) has to be viewed in this setting. It was not by coincidence that village type development appears in the same paragraph as agriculture or other specified rural uses. In moving the second reading of the amendment Bill on 7 November 1990 the Secretary for Planning Environment and Lands said:

" The present Town Planning Ordinance was enacted in 1939 to provide for the systematic preparation and approval of zoning plans for future layout of existing and potential urban areas....

Control in all the rural and village areas is carried out through lease conditions and administrative means. Such control is, however, limited to the construction of buildings on agricultural land and noxious activities, and does not apply to situations when a landowner changes the use of his land. During recent years, we have seen changes in the character of a considerable portion of the New Territories land area, mainly due to conversion of land for open storage purpose, which in turn has given rise to other environmental and infrastructural support problems. The indications are that such activities are likely to continue to increase....

The amendments contained in the Bill would make the following main changes to the Town Planning Ordinance -

First, clauses 2 and 5 remove the constraints in the Ordinance restricting its provisions to urban and potential urban areas; and adds to the Town Planning Board's duties the designation of development permission areas;

....

Thirdly, clause 6(a) expands the types of zoning which the Town Planning Board may include in a draft plan; and

Fourthly, clause 8 creates provision for preparing draft plans designating areas within which a permissive system of development control would then apply, and powers to enforce compliance with this system.

....

Sir, the principal intention of extending proper town planning to the rural areas is to assist orderly development in the same way as the legislation has effectively been applied to guide development of the urban areas....

....

Sir, let me stress again that the main intention of this amendment Bill is to ensure that development in the rural areas will proceed under the right conditions in the right place. The Bill is a positive measure whereby developments beneficial to the New Territories will be able to take place, both in the short term and in the years to come."

14. This is the stated purpose of the 1991 amendment and the expression village type development must be construed in such a way as to be consistent with this purpose.

15. As mentioned earlier, the approach of the lower courts was to consider the meaning of House in the context of village type development. Far from this expression being vague and uncertain, as counsel for the appellant contends, it is, in the context of the legislative amendment of January 1991, clear: The object of the amendment was to enable the Town Planning Board to designate zones for rural development which would include the preservation and expansion of villages in the rural areas of the territory, to ensure that such development is compatible with the objectives of the new legislation. Para. 8.8 of the Explanatory statement, published alongside the Yuen Long OZP, is consistent with this legislative aim.

16. That paragraph, as mentioned earlier, contains the sentence:

"It should be noted that land within the zoning is primarily intended for development of small houses by indigenous villagers."

17. This sentence, as counsel for the appellant points out, does not appear in the text of the Explanatory Statement approved by the Rural and New Town Planning Committee of the Board at its meeting in July 1995, prior to the publication of the OZP in November 1995, though the rest of para. 8.8 was so approved. Assuming this was a last minute addition by the Planning Department, and not something specifically approved by the Board for publication with the OZP, the rest of para. 8.8 nevertheless states the broad intention: That development in 'V' zones must be viewed in a rural setting; the object of the designation being to preserve the character of existing villages and to allow for the expansion of such villages. In this context, a 33-storey block of flats is wholly out of character.

18. It should be noted that the Yuen Long OZP published in November 1995 was a revision of the first OZP affecting the Yuen Long area published in April 1991. The total area of 'V' zones in the earlier plan was slightly smaller: 95.83 hectares. The appellant's land, at that time, already fell within the 'V' zone. It objected to that designation. The appellant sought a re-zoning to 'Residential (Group B)' which, if successful, would have enabled it to put up a 12-storey building with a site coverage of 30%. The objection was rejected by the Board. The appellant was, of course, entitled to pursue that remedy first, but the fact remains that it did not suggest then that the 'V' zone designation was uncertain and unworkable. Rightly so. A court is duty-bound to give meaning to a statute. It would not hold the words of a statute void for uncertainty, or meaningless, unless no other outcome is possible.

Width of discretion of the Building Authority

19. In the present case, the building works shown on the plans submitted to the Building Authority for approval were so clearly in contravention of the OZP that its discretion under s.16(1)(d) of the Buildings Ordinance was not engaged. The appeal therefore does not turn on whether the discretion was exercised erroneously (This would have been a matter of an appeal to the Appeal Tribunal under Part VI of the Buildings Ordinance, rather than proceedings in the High Court for declaratory relief). The argument, however, developed in such a way that it would be helpful to add some comments on the exercise of discretion under s.16(1)(d).

20. In those 'V' zones in OZPs where the Notes to the plan qualify the use of the word House, imposing a limit as to the size of the development, the function of the Building Authority under s.16(1)(d) of the Buildings Ordinance is easily discharged; it will not, in effect, be called upon to exercise any real judgment as to whether a residential block qualifies as a House; either the plans show a residential development within the physical dimensions stated in the Notes, or they do not. This is not to say that, in a case like the present, where no remarks in the Notes qualify the word House, the Building Authority's exercise of judgment is totally at large. To start with, the proposed development shown in the plans must be a village type development: which means, to use the judge's language, a low-rise low-density development. The Building Authority would also be guided, in the exercise of its judgment, by the published Definition of Terms, approved by the Town Planning Board in July 1979. These definitions, well-known to practitioners in the town planning field, are referred to in the Explanatory Statement of the Yuen Long OZP as follows:

"3.2 For the guidance of the general public, a set of definitions which explains some of the terms used in the Notes may be obtained from the Planning Information and Technical Administration Unit of the Planning Department. The set of definitions does not form part of the Notes."

21. In the "Definitions", House is defined as "a dwelling house for residential occupation". In the remarks, it says that "House" is "usually of one to three storeys with separate rooms and full services with ancillary car park and garden", and it includes a village house, villa, bungalow, a New Territories Exempted House, and a town house which all belong to the same class i.e. low-rise and low-density houses.

22. This is to be contrasted with Flat (or flats) which is separately defined. There is no reason why the Building Authority, in the exercise of its discretion under s.16(1)(d), should strain the ordinary use of language by considering a development a House when the ordinary person would have regarded it as a high-rise block of flats.

23. Of course, the word House, if not qualified by reference to dimensions in the Notes, gives to the Building Authority some elasticity in the exercise of discretion under s.16(1)(d) of the Buildings Ordinance. Moreover, the meaning of the expression village type development is itself not set in concrete. As counsel points out, this expression has been used in OZPs before the statutory control scheme was made applicable to the rural areas of the New Territories. An example is a small 'V' zone in the Ngau Chi Wan OZP, designated under "other specified uses" in para. (b) of s.4(1): This authorizes the Board to provide for zones for residential, commercial, industrial and other specified uses. The Notes to the 'V' zone in the Ngau Chi Wan OZP allowed for a wide range of uses: much wider than that allowed for in the 'V' zone in the Yuen Long OZP. This was because part of the old Ngau Chi Wan Village adjoining the Choi Hung Mass Transit Railway Station had been redeveloped as part of that station. Ngau Chi Wan had by then lost most of its character as a village. This illustrates the flexibility in the use of the expression village type development.

24. The Building Authority, in considering whether to reject plans under s.16(1)(d), must obviously have regard to the broad planning aims of the OZP before it. A 'town-house' development permissible in one 'V' zone does not necessarily mean that it would be appropriate in another 'V' zone. But when there is a reasonable doubt, the developer must be given the benefit of the doubt. This is consistent with the principle that "a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms": see Colonial Sugar Refining Co. Ltd v. Melbourne Harbour Trust Commissioner [1927] AC 343 at 359. As always, in the exercise of the discretion, the Building Authority must not only be guided by the planning objectives in the OZP but by common-sense.

Conclusion

25. In the present case, the proposed development is so far removed from a village type development as contemplated in the Yuen Long OZP that the Building Authority was clearly right to reject the building plans under s.16(1)(d).

26. I would dismiss this appeal with costs.

Mr Justice Ching PJ:

27. I agree with the judgment of Mr Justice Litton PJ.

Mr Justice Bokhary PJ:

28. Mr David Widdicombe QC for the appellant Developer, with his vast experience of this kind of case, has deployed every argument which can possibly be advanced on behalf of his client. Since all of these arguments have been fully dealt with by Mr Justice Litton PJ with whom I respectfully agree that this appeal must be dismissed with costs, I can confine myself to what I see as lying at the heart of the case.

29. The Developer owns a site in Yuen Long. It wishes to develop this site by the erection thereon of a 33-storey block containing 99 flats. To this end, it submitted building plans for such a development. The respondent Building Authority disapproved these building plans. He did so under s.16(1)(d) of the Buildings Ordinance, Cap. 123. This provision empowers him to refuse approval of building plans on the ground that the carrying out of the building works shown thereon would contravene any approved or draft zoning plan prepared under the Town Planning Ordinance, Cap. 131.

30. He exercised that power on the following basis. Under s.4(1)(h) of the Town Planning Ordinance, zoning plans may zone land for "village type development". The Developer's site is on land which has been so zoned. The Building Authority took the view that the proposed development - consisting as it does of a 33-storey block of flats - is not a village type development. The Developer has unsuccessfully challenged this view in the High Court and then in the Court of Appeal. It now challenges the same in this Court.

31. The question is whether the Building Authority had a discretion: which he would have had if the proposed development is not a village type development. The question is not whether he exercised his discretion properly. If that had been the question, it would not have gone to the High Court. Instead it would have gone to the Appeal Tribunal which, under Part VI of the Buildings Ordinance, hears appeal against decisions made by the Building Authority in the exercise of a discretion conferred on him under that Ordinance.

32. Under the heading "Village Type Development", the notes to the draft zoning plan covering the Developer's site includes "House" under the "Uses always permitted" column. A block of flats with a single common entrance can sometimes be treated as a house. The proposed development has a single common entrance; and I will proceed on the footing that it can be treated as a house. The question is then reduced simply to whether a 33-storey block of flats can reasonably be considered a village type development. It is to be answered in the context of what, as a matter of judicial notice, the courts know of the nature of villages in Hong Kong today. If the answer is "yes", then the Building Authority acted unlawfully in disapproving the Developer's building plans under s.16(1)(d): and the appeal will have to be allowed. But if the answer is "no", then such disapproval is lawful: and the appeal will have to be dismissed.

33. The Developer runs what I would call a "Where do you draw the line?" argument. Thus it contends that one cannot say that any building is too high to constitute a village type development because one cannot say precisely how low a building must be in order to do so. This argument is untenable. Precision is a good thing. But just because a court cannot pronounce in a vacuum precisely where a line is to be drawn, it does not mean that the court cannot say on which side of the line something necessarily falls. All that such lack of precision means is this: where there is a doubt, the decision must go in favour of the party entitled to the benefit of the doubt.

34. In a matter such as this one, the party entitled to the benefit of the doubt is the property owner. Delivering the Privy Council's advice in Colonial Sugar Refining Co. Ltd v. Melbourne Harbour Trust Commissioners [1927] AC 343, Lord Warrington of Clyffe said (at p.359) that:

"...a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms".

Giving the leading speech in the House of Lords in Westminster Bank Ltd v. Minister of Housing and Local Government [1971] AC 508, Lord Reid referred to Lord Warrington of Clyffe's statement, and said this (at p.529):

" I entirely accept the principle. It flows from the fact that Parliament seldom intends to do that and therefore before attributing such an intention to Parliament we should be sure that that was really intended. I would only query the last words of the quotation. When we are seeking the intention of Parliament that may appear from express words but it may also appear by irresistible inference from the statute read as a whole. But I would agree that, if there is reasonable doubt, the subject should be given the benefit of the doubt.

It would be possible to distinguish this statement of the principle on the ground that planning legislation does not take away private rights of property: it merely prevents them from being exercised if planning permission is refused. But that would, in my view, be too meticulous a distinction. Even in such a case I think we must be sure that it was intended that this should be done without compensation."

35. In my judgment, the principle holds good in respect of approved or draft zoning plans prepared under the Town Planning Ordinance. Where there is any reasonable doubt as to whether any approved or draft zoning plan restricts a property owner's rights, such doubt is to be resolved in the property owner's favour.

36. So if there were any reasonable doubt as to whether the proposed development falls on the wrong side of the line, wherever that line is properly to be drawn, then that doubt would have to be resolved in the Developer's favour. Here there is, in my view, no such doubt. Even in present-day Hong Kong, a 33-storey block of flats simply cannot, in my opinion, reasonably be considered a village type development.

37. In my judgment, the courts below were right in holding as they did that the Building Authority acted lawfully in disapproving the Developer's building plans. I, too, would dismiss this appeal with costs.

Sir Anthony Mason NPJ:

38. I agree with the judgment of Mr Justice Litton PJ.

Chief Justice Li:

39. The Court being unanimous, the judgment of the courts below are affirmed and the appeal is dismissed with costs.