R. v. WAY LUCK INDUSTRIAL LTD.

IN THE HIGH COURT

1994, No. 1396
Magistracy Appeal

- Headnote -

Prosecution under s23(6) Town Planning Ordinance - "unauthorized development" - Defence of "existing use" - Observations on the particulars set out in the enforcement notice. Appeal dismissed.

IN THE HIGH COURT

1994, No. 1396
Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. The appellant Way Luck Industrial Limited is and was at all material times the occupier of various blocks of land in DD 91 Lin Tong Mei in the New Territories. The site measures approximately 20,000 square feet and falls within the draft Development Permission Area plan DPA/NE/KTS/1 published on 12 July 1991.

Enforcement notice

2. On 23 March 1993 the appellant was served with an enforcement notice issued under s23(1) of the Town Planning Ordinance. It is in these terms:

"             Notice under s23(1)

To Way Luck Industrial Limited
Whereas:

(1) it appears to the Director of Planning, being the Authority for the purposes of s23 of the Town Planning Ordinance ... that there has been an unauthorised development on the land ...

(2) The unauthorised development which appears to have taken place consists of the carrying out of the development by the making of a material change in the use of the land described in Schedule II below and it appears to the authority that:

(i) The development did not exist before the Kwu Tung South Interim Development Permission Area plan (No. IDPA/NE-KTS/1) which was gazetted on 17 August 1990;

(ii) the development is not permitted under the draft plan of the Kwu Tung South Development Permission Area (No. DPA/NE-KTS/1) which was gazetted on 12 July 1991; and

(iii) permission to do so has not been granted under s16 of the Ordinance nor by the authority before the plan of the Development Permission Area was gazetted;

NOTICE IS HEREBY GIVEN that the authority, pursuant to s23(1) of the Ordinance, requires that by 23 June 1993

(i) The development shall be discontinued; or

(ii) permission for the development shall be obtained under s16 of the Ordinance.

In the event that this notice is not complied with, the person served commits an offence under s23(6) of the Ordinance, and is liable to a fine of $100,000 and a fine of $10,000 for each day during which the offence is proved to have continued.

 

Issued: 23 March 1993

SCHEDULE II

Site formation works, storage and open storage of furniture and household wares"

Prosecution under s23(6)

3. The notice was not complied with. Criminal proceedings were accordingly brought against the appellant pursuant to s23(6) of the Ordinance. The information was heard by Mr D.I. Thomas at Fanling Magistracy over a period of five days in September 1994 and, by his decision dated 20 September 1994, the appellant was convicted.

4. Section 23(6) under which the appellant was convicted reads:

"(6) Where, by the date specified in that regard in a notice under this section

(a) the development has not been discontinued;

(b) steps have not been taken as required under ss(2); or

(c) land has not been reinstated as required by ss(3) or (4),

a person who is served with the notice commits an offence and is liable to a fine of $100,000 and a fine of $10,000 for each day during which the offence is proved to have continued."

5. Paragraphs (b) and (c) of subsection (6) are not relevant to this case. The prosecution was based solely upon the appellant's failure to comply with the requirement that the unauthorised development should be discontinued in terms of ss(6)(a); the question of reinstatement of the land to a condition immediately before the DPA plan became effective - dealt with in ss(3) - and reinstatement to the condition immediately before the publication of the Interim DPA plan - dealt with in ss(4) - are of no concern in this case.

6. "Development" As was pointed out by counsel in argument, the expression "development" in the Ordinance has a two-pronged meaning: it comprises (a) "the carrying out of building, engineering, mining or other operations in, on, over or under land", or (b) "the making of a material change in the use of land or buildings".

7. As a pure matter of language, it seems to me that "operations" in this context must mean that something is done to the land. This is to be contrasted with "use" where the physical character of the land would not normally be substantially changed: for instance, the depositing of goods or the stacking of containers on land. This approach is consistent with that of the English Court of Appeal in Parkes v. Environment Secretary [1978]1 WLR 1308 dealing with the Town and Country Planning Act 1971 which has a definition of "development" identical to that appearing in the Hong Kong Ordinance. At p1311-E Lord Denning M.R. said:

"... in the first half 'operations' comprises activities which result in some physical alteration to the land, which has some degree of permanence to the land itself: whereas in the second half 'use' comprises activities which are done in, alongside or on the land but do not interfere with the actual characteristics of the land".

8. I draw attention to the two-pronged definition of "development" in the Ordinance for this reason: Schedule II to the enforcement notice complains of "site formation works, storage and open storage of furniture and household wares". As a matter of language, I would have thought that "site formation works" would be engineering or other operations on and perhaps under the land. It would generally comprise a certain amount of digging levelling and perhaps the addition of fill and other material. And yet, in this case, the "site formation works" complained of is said in the enforcement notice to be part of the "material change in the use of the land" and the case has proceeded throughout on that basis. Counsel appearing before me on the appeal never suggested that the site formation works, having been completed a long time ago, could not have been "discontinued" in compliance with the enforcement notice and, for that reason, or at least to that extent, the notice was bad. I therefore say no more about this matter at this point and will deal with this appeal in the same way as in the court below: that the complaint, set out in the notice, related broadly to unauthorised development, and "material change in the use of the land" comes within the definition of unauthorised development. And, obviously, where "use" is concerned, it can be "discontinued" in terms of the notice.

Facts found by the magistrate

9. There was substantial agreement between the parties as to the relevant primary facts. In essence, the facts found by the magistrate are as follows:

(i) The site lies at the edge of Lin Tong Mei Village.

(ii) At all times up to about October 1991, the site was lying fallow, unused for agricultural purposes. There were bushes, trees (including banana trees) and shrubs on the land which was overgrown with weeds.

(iii) Prior to July 1991 no one had claimed to exercise rights of ownership over the land. There was a track across the site linking the village with Lin Tong Mei Road. The villagers used this for access and vehicles would be parked from time to time over part of the land by the villagers.

(iv) The appellant's associated company Fitgear Development Limited had for some years prior to July 1991 operated a warehouse business in a single-storey building west of the site. As there was no fence to the site Fitgear would, from time to time, use the part of the land nearest to the warehouse for transient storage: i.e., containers and some goods would be placed there from time to time, sometimes as a spill-over from their own site. As the magistrate found, this was transient and sporadic and was wholly ancilliary to the use of the warehouse. Lorries were also sometimes parked there. Technically, of course, these were acts of trespass on the neighbouring land.

(v) In May 1991 Fitgear entered into agreements to buy some of the lots comprising the site. In July 1991 solicitors acting on behalf of Fitgear began to take steps to exclude the public from the site. In October 1991 the vegetation was cleared and a hard surface was placed on the site. Fencing and a gate were erected and drainage pipes installed. From that time on the site began to be used as an enclosed storage depot. Containers were brought onto the site, stacked two-storeys high, to form offices and storage space. Corrugated iron sheets were placed over the containers, with overhangs, to form roofs.

Unauthorised development

10. The first question for the magistrate, obviously, was whether he was satisfied on the evidence that there had been "unauthorised development" as alleged in the enforcement notice. Unless the magistrate was satisfied that this had been proved, he could not have found that the appellant was criminally liable for failing to comply with the notice. The magistrate's finding is expressed in these terms:

"The land as at 17 August 1990 was being used as temporary and sporadic storage as an ancillary use to the use of the godown outside the site. The storage was small scale. The land was shared with others for other purposes. The land was open and unpaved. By the time of the service of the enforcement notice the site had been turned into a "storage depot". The use for storage appears to have become full time and permanent. The site had become fenced, gated and enclosed. Hard-standing had been put down. I have no hesitation in saying that, in comparing the use of the land comprising the site as at 17 August 1990 with the use on 27 March 1993, there had been a clear material change in the use of the land. In my judgment, there was a change in the character of the use of the land and not merely an intensification of an existing use".

Change of use

11. The question of a change in the use of land is one of degree and, accordingly, one of fact. The magistrate had, appearing before him, a substantial number of witnesses called by both sides; he had also a series of photographs, including aerial photographs showing the condition of the site at various points in time.

12. It is difficult to see how, in the light of the evidence, the magistrate's finding that there had been a material change in the use of the land can in any way be faulted.

Defence of existing use

13. Section 23(9) of the Ordinance, where relevant, provides as follows:

"(9) It is a defence to a prosecution under ss(6) ... if the defendant proves that -

(a) ...

(b) the development was an existing use or, in the case of land within an interim development permission area, that the use of a building or land was in existence immediately before publication in the Gazette of the notice of the relevant plan of the interim development permission area;

(c) ...

(d) ..."

14. Mr Benjamin Chain, counsel for the appellant, in the course of his able argument, draws attention to the statutory definition of existing use as follows:

"Existing use in relation to a development permission area means a use of a building or land that was in existence immediately before the publication in the Gazette of notice of the draft plan of the development permission area".

15. Mr Chain puts emphasis on the expression "... a use ...". He argues thus: since the enforcement notice referred to the whole of the site of approximately 20,000 square feet, the prosecution had to prove that that site - the "planning unit" in question - had been put to unauthorised use. He concedes that if the notice had been confined to the areas previously covered with vegetation, his client would have no defence. But that is not so. Here, the requirement to discontinue use, as specified in the notice, included the area on the western side, near Fitgear's godown, where there was, in August 1990, an existing use. Thus, Mr Chain argues, the site as a whole had been used for open storage and storage generally; accordingly, the defence of existing use prevails.

16. The problem with this argument is that it conflicts to an extent with the definition of "unauthorised development" in the Ordinance. "Development" includes any material change in the use of the land and it is not easy to reconcile the statutory defence in s23(9) with the sweeping definition of "material change in the use of land or building" in section 1A where such change includes:

"Depositing matter on land, notwithstanding that all or part of the land is already used for depositing matter, if the area height or amount of the deposit is increased".

17. I can envisage a case where the "development" - that is, the depositing of "matter" - remains on a very small scale and the use of the land has not, broadly-speaking, changed in character; that might come within the defence of "existing use" in s23(9), despite the sweeping definition in section 1A. Or, as suggested in argument, where the use is wholly ancilliary to the existing use.

18. Ultimately, the question is one of degree. The question for the magistrate was simply this: Looking at the land broadly, as referred to in the enforcement notice, that is to say, the "planning unit", has there been a material change in the use of the land since the publication of the draft DPA plan? On the facts as found by the magistrate, the use of the site had radically changed: from the sporadic placing of cartons and containers on a portion of the open land, and the occasional parking of vehicles there, with the existing trees, bushes and vegetation intact, to the conversion of the land into an enclosed commercial storage depot, stripped of vegetation, with a hard surface laid over the whole area. In my judgment this is not a border-line case where the precise scope of the statutory defence merits closer examination. On all the evidence before the magistrate, the statutory defence had clearly been negatived.

Site formation works

19. In the enforcement notice, the planning authority complained that "site formation works" constituted part of the "making of material change in the use of the land".

20. It seems to me that this is straining the definition of "use". I would have thought that site formation works as such come far more comfortably within the first limb of the definition of development: the carrying out of building engineering, mining or other operations. But that is not the way the complaint is particularized in the enforcement notice.

21. The magistrate was aware of this matter. In his reasons for verdict, he referred to Parkes v. Secretary of State for the Environment (supra) where the High Court judge had held that, with reference to the equivalent English statute, there were "operations" being carried on in the land and thus a discontinuation order could not be made. That decision was reversed on appeal by the Court of Appeal by construing the activities - the storing, sorting and processing of scrap on land - as amounting to "use" of the land.

22. As I understand the magistrate's approach, he concluded that the depositing of bitumen on the land came within the definition of a material change of use, and to that extent the complaint of "site formation works" was justified. It might have been clearer if, instead of a sweeping phrase like "site formation works", the planning department had spelt out in the enforcement notice the acts which they said amounted to a material change in the use of the land: for example, the depositing of aggregate on the surface. I should add that, if the point had been explored in the court below and in the course of the appeal, I might well have concluded that the depositing of bitumen did not come within the definition of "use". I say it for this reason. "Site formation works" would generally-speaking involve excavation, grading, levelling, perhaps impacting, filling etc.; the laying of aggregate and sealing with bitumen would normally have been part of the same operation. It would thus come within the first "limb" of the definition of "development" rather than the second limb. But the point was never explored in the court below, and there is no appeal in this court against the magistrate's finding that the laying of bitumen over the entire site, causing "the height of the deposit" to increase, constituted a material change in the use of the land.

Conclusion

23. The evidence accepted by the magistrate allowed no room for the defence of "existing use" to be raised. Such defence has might have been raised was effectively negatived by the prosecution case. Accordingly any discussion as to whether the provisions of s23(9) are inconsistent with Article 11(1) of the Bill of Rights as averred in the grounds of appeal and, to that extent, repealed in accordance with s3(2) of the Hong Kong Bill of Rights Ordinance is wholly academic.

24. The "unauthorised development" of the site, broadly-speaking, was the use of the site for the storage of goods on a commercial basis - identified in the enforcement notice as "storage and open storage of furniture and household wares". On the findings of the magistrate the appellant was rightly convicted. This appeal is dismissed.