WAH YICK ENTERPRISES CO LTD v. BUILDING AUTHORITY

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 210
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. This is an appeal from the judgment of Deputy Judge Whaley refusing the plaintiff's application for a declaration that a proposed 33-storey block of flats does not contravene the draft Yuen Long Outline Zoning Plan No. S/YL/2 ("the OZP").

2. The relevant facts and background can conveniently be taken, as the judge took them, from a letter written by the plaintiff's solicitors to the plaintiff dated 3 October 1996. The plaintiff's site in question consists of three adjacent lots which are all held under a Block Crown Lease, the status of the land being agricultural. The Block Crown Lease contains a restriction under the First Covenant thereof, that land demised as agricultural or garden land shall not be converted into building purposes without the licence in writing of the Governor. In relation to one of the three lots, by a Building Licence dated 10 January 1941, leave and licence were granted to the registered land owner to erect a building on a portion of the lot not exceeding 2,896 sq.ft. in area. The judge accepted that the Building Licence does not contain any restrictions on the number of storeys, the height of the building or the number of the flats permitted to be erected, also that it does not contain any user restrictions.

3. The site is covered by the OZP. The bulk of the site falls into a "V" zone delineated on the OZP, namely an area zoned for "Village Type Development". It is convenient at this point to shortly outline the nature and format of the OZP. It consists of a large map or plan of the Yuen Long area in which the site appears to the south of the urban type of development at the centre of the new town. There are typed annexures to the plan, of which the English version runs to some 28 pages. First, there are "Notes" running to 11/2 pages which state that they form part of the plan. Then there is an index of some 10 use zones (ranging from Commercial Residential to Village Type Development, other specified uses and Green Belt) followed by a schedule of each zone uses each of which usually occupies a page. The format of these can be seen from the OZP Village Type Development Zone schedule or specification set out below:

"

S/YL/2

Village Type Development

Column 1	Column 2
Uses always permitted	Uses that may be permitted with or without conditions on application to the Town Planning Board
Agricultural Use Ancillary Car Park (Ground Level Only) Barber Shop Beauty Parlour Clinic/Polyclinic Cooked Food Centre Government Refuse Collection Point Government Use (not elsewhere specified) Hawker Centre House Market Place of Recreation, Sports or Culture Police Reporting Centre Post Office Private Swimming Pool Public Bathhouse Public Convenience Public Transport Terminus or Station Public Utility Installation Religious Institution Restaurant Retail Shop Rural Committee Building School Service Trades Social Welfare Facility Staff Quarters Utility Installation for Private Project"	Bank Mass Transit Vent Shaft or Other Structure above Ground Level Off-course Betting Centre Petrol filling Station Place of Public Entertainment Residential Institution

In this specific instance there are no remarks following the Village Type Development Zone although in many other instances there are such remarks. One such instance is the specification of Village Type Development uses in the Tai Po Outline Zoning Plan in which the following remarks (themselves of some interest) appear:

"On land designated 'Village Type Development', any new building(s) and any addition, alteration and/or modification to the existing building(s) should not result in a total development or redevelopment in excess of a maximum building height of 3-storeys (8.23m) or the height of the existing building(s) which ever is the greater." (P.261)

Following the specification of the different zone uses is an "Explanatory Statement" commencing with an index of the contents. The English version of this Statement runs to some 10 pages of typescript. Paragraph 8.8 of the Statement is of interest:

"8.8 There are many well-established recognised 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 the village expansion purpose. It should be noted that land within the zoning is primarily intended for development of small houses by indigenous villages. Village expansion areas and other infrastructural improvements will be guided by more detailed layout plans."

4. It can be seen that "House" appears in Column 1 of the Zone uses specification, as a use that is always permitted. Mr Wong also pointed out that "Flat" is not one of the uses listed under either Column 1 or Column 2 although it appears elsewhere in this and other outline zone plans. It was under the "House" use that the plaintiff claimed it was entitled to erect its proposed 33-storey block of flats. The Building Authority, however, refused permission under s.16(1)(d) of the Building Ordinance on the ground that the proposed development does not properly fall within the "House" use as so provided for in the Village Type Development Zone, and thus contravenes the OZP.

5. The plaintiff then applied to the Court of First Instance for a declaration that its proposed development did not contravene the OZP. The matter came before Deputy Judge Whaley with the result mentioned. The plaintiff now appeals to this Court against the judgment of Deputy Judge Whaley. Mr Ronny Wong SC, who with Mr Y.C. Mok, appeared for the plaintiff, pursued with thoroughness the several grounds to which I now turn.

The plaintiff's primary case

6. Mr Wong pointed to Lord Warrington's dictum 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" (Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioner [1927] AC 343, 359). Lord Reid referred to the foregoing dictum in Westminster Bank v Beverley B.C. (HL) E)) [1971] AC 508; 529B-D and continued "I entirely accept the principle ... I would agree that, if there is reasonable doubt, the subject should be given the benefit of the doubt ... I think we must be sure that it was intended that this should be done without compensation."

7. It is in the light of this principle, Mr Wong submitted, that the plaintiff's grounds should be considered.

The ordinary and legal meaning of "House"

8. Mr Wong pointed out that it was common ground before the deputy judge that the ordinary and legal meaning of "House" includes a wide range of buildings and includes a building that is comprised of flats for residential use. That, I think, is clear from the Oxford English Dictionary and several legal authorities to which he referred (see Kimber v Adams [1900]1 Ch 412 at 413, 415; AG v Mutual Tontine Westminster Chamber Association [1876]1 ExD 469 at 475, 476; Wong Bei-nei v AG [1973] HKLR 582 at 593; Hang Wah Chong Investment Co Ltd v AG, CA No. 84 of 1978, unreported at p. 6; Real Honest Investment Ltd v AG [1997]2 HKC 182 at 191E (CA) and 436 at 439G (PC)). Moreover, it was not disputed that the word does have a wide meaning. Mr Wong pointed also to the definition of "tenement house" in regulation 46(5) of the Building (Planning) Regulations which is defined as "any building in the domestic part of which any living room is intended or adopted for the use of more than one tenant or sub-tenant" contending that it includes a multi-unit building with no restriction of the height or the number of storeys. The question, therefore, is, he submitted, whether the context of the OZP compels the court to exclude a building comprised of flats. He submitted that there is no compelling context in the OZP to displace the ordinary legal meaning; that the OZP in fact points to the other way. To those contentions I now turn.

The intention of the OZP

9. This, Mr Wong submitted, is "to impose no height restriction" and that the heading "Village Type Development" in the context of the OZP does not have the effect of imposing a height restriction confining any development to low rise and low density.

10. He pointed to the following matters. The only express height restriction under this heading relates to one single use, i.e. "Ancillary Car Park (Ground Level Only)". It is common ground, he said, that no height restriction is imposed on Column 1 uses in the same "V" zone, e.g. school, staff quarters, service trades etc, and these can accordingly be 33 storeys high. This, he contended, does not impose a low rise restriction on other uses. Why, therefore, should it have that effect only upon "House" use, he asked; and how does that effect arise? Mr Wong also referred to a number of other Outline Zoning Plans by reference to which he demonstrated that "House" with restrictions and unqualified "House" use are standard categories of uses permitted in "Village Type Development" zones. Relying upon the maxim expressio unius exclusio alterius he submitted that the unqualified "House" use in the OZP shows that it is intended here that there should be no restriction on height in the same way as respects the other uses like school and staff quarters.

11. He submitted that the OZP must achieve certainty, a point to which I shall come as it is also raised on its own (and it does strive to do so in other instances where a height restriction of 8.23 metres is provided. A vague formula like "low rise and low density" is too uncertain, he submitted, to be valid.

12. Moreover, he submitted that a lack of height or volume control does not mean every owner in the "V" zone can erect a high rise building; it must mean only that the Town Planning Board is content with the controls already imposed by the lease conditions (e.g. agricultural use) the Building Regulations and market forces.

13. It is also contended that the range of Column 1 uses in "V" zone are much more extensive than those of the residential (B) category and are akin to the residential R(A) category. Also, that the purpose of Column 1 uses is to denote types of permitted uses and not to denote the extent of those uses, unless otherwise stipulated.

14. Most of these are plainly factors and considerations that point to the meaning Mr Wong contended for.

The Definition and Explanatory Statement

15. In the town planning scheme for planning control and permission only the plan or map and the notes, with or without remarks, form part of the scheme, and no provision or authorisation is made for an explanatory statement or definition. Thus, the public is provided with a statutory right to object to the map and the notes and amendments to them but not to an explanatory statement or definition. The former two items are sanctioned by the Town Planning Board, a statutory board, whereas explanatory statements and definitions are published by the Planning Department, a department of the Government, and, Mr Wong asserted, may be changed at any time. Mr Wong submitted, therefore, when interpreting and construing the OZP, as a matter of principle, explanatory statements and definitions ought not to be looked at. To do so might effect changes of planning control without amendment to the OZP and without going through the statutory procedure and control imposed by the Town Planning Ordinance.

16. These points go to the judge's conclusion which it is convenient to set out here:

"Conclusion

It is not in my view necessary, in order to decide this matter, to first formulate a definitive definition of 'House'. It suffices that it is clear, to my mind, that in the context in which it appears, namely under Column 1 (uses always permitted) in a Village Type Development Zone, the use 'House', properly construed, does not include the 33-storey block of flats which the plaintiff proposes to build. This conclusion is reinforced when one has regard to the Definition of Terms and the Explanatory Statement, which, although not part of the Plan, have been adopted by the Town Planning Board (save for the penultimate sentence in para.8.8), and have been published specifically to assist members of the public to more precisely understand the OZP."

This conclusion is best examined in the light of all the appellant's grounds. I accordingly turn to the remainder of those, advanced as further grounds for excluding the Explanatory Statement and the Definition.

The Definition

17. The Definition of Terms that the judge referred to appear in a Town Planning Board paper that it considered in July 1979. It was submitted in response to the Singway case and proposed a revised form of "Notes" which noted inter alia that in an attempt to provide proper guidance for the general public, definitions for some of the terms used in the Schedule to the paper had been produced; a list was attached. It is apparent that thereafter the Town Planning Board must have considered Outline Zoning Plans with the definitions in mind. As it appeared in its master schedule of uses, in the Schedule of Definitions there appeared the use "House" in the first column with the following definition in the second column "means a dwelling house for residential occupation" and the following corresponding remark in the third column "it includes a Village House, villa, bungalow, an N.T. exempted house, and a town house. It is usually of 1-3 storeys with separate rooms and full services with auxiliary car park and garden. An N.T. exempted house refers to any building exempted from the application of the Buildings Ordinance as defined in the Buildings Ordinance (Application to the New Territories) Regulations. Based on HK Pop. and Housing Census 1971 Main Report CH.9, p233.

18. The admissibility of the Schedule of Definitions, and the Explanatory Statement for that matter, are disputed by the appellant. Although not a formal part of an Outline Zoning Plan under the Town Planning Ordinance and subsidiary legislation, if the word "House" is assumed to be unclear, then in my view the Definition and the Explanatory Statement must be admissible and of substantial weight as part of the matrix and in particular a definition and explanatory statement borne in mind or to which express reference would have been made in the very making of Outline Zone Plans. It means to me therefore that the judge cannot be faulted in the secondary use he made of the Definition of Terms and the Explanatory Statement.

Exclusion by virtue of uncertainty

19. The OZP, it was submitted, introduces restrictions on the proprietary rights of land owners and these restrictions are required to be clear and certain. For that proposition, Mr Wong relied in particular upon Singway Co Ltd v AG [1974] HKLR 275. There Leonard J held that words like "such as" and "may be permitted" appearing in the notes and plan introduced a wholly unacceptable degree of uncertainty which was so great that the OZP was rendered invalid. As already mentioned, the format of OZP notes has been revised.

20. Mr Wong asked, if the Explanatory Statement and the Definition are admissible, what other documents might not be admissible? How would the public know what is to be admissible and what the contents of such documents might be? There could be no certainty at all.

21. I do not feel able to accept these arguments. It is not suggested that any other documents are similarly part of the matrix in which the Town Planning Board adopts Outline Zone Plans. Nor do I see that regard to Explanatory Statements and Definition would not come to the knowledge of the public in the same way as Outline Zone Plans and the contents of documents similar to the Explanatory Statements and Definition, which are exhibited in the same way as the OZP.

Admissibility of Explanatory Statement and Definition to explain planning permission

22. It is not disputed that no extrinsic evidence is admissible in England for the interpretation of planning permission (see London County Council v Central Land Board [1958] 1 WLR 1296; Halsbury's Laws Vol.46, para.464. The rationale for this well-established rule is explained in the following way:

"A planning permission is not a mere personal licence granted to the applicant but can be said to run with the land." (See the Wyre Forest case at p.370C)

Members of the public are entitled to rely on a public document and surely ought not to be subject to the risk of its apparent meaning being altered by the introduction of extrinsic evidence (Slough Estates Ltd v Slough Borough Council [1971] AC 958 at 962). It should be borne in mind that breach of planning permission may lead to criminal sanctions. The public should be able to rely on a document that is plain on its face without being required to consider whether there is any discrepancy between the permission and the application." (Slough Borough Council v Secretary of State for Environment (1995) 159 Local Government Review Reports 969 at 972.

23. However, it seems to me as contended by Mr Cooney for the respondent that the position in England is very different from that of Column 1 uses that are approved in Outline Zone Plans. The public here would be able to rely on a public document and in fact its published Explanatory Statement.

Whether Explanatory Statements admissible for interpretation of the OZP as subsidiary legislation

24. It is submitted that no extrinsic evidence is admissible for statutory interpretation when the meaning is clear. The first proposition advanced here is that the OZP is subsidiary legislation. The authorities relied upon by both sides leave the position unclear. The point does not seem to me to be of sufficient significance to review those authorities. Suffice it to say that I am not persuaded that the OZP is subsidiary legislation. In any case Mr Wong submitted that even so, it should be treated as subsidiary legislation whether technically so or not. I am equally not persuaded that this is right in the present context particularly when the object of doing so would be to exclude evidence that could be particularly valuable, given the nature of the OZP, which is far removed from the precise nature of the drafting and formulation of subsidiary legislation. Moreover, it is difficult to see why the OZP and its Explanatory Statement (not to mention the Definition) should rate for assistance in construction so very differently.

Whether Explanatory Statement or Definition would assist interpretation if admissible

25. Here Mr Wong relied upon the omission of the sentence "It should be noted that the land within the zoning is primarily intended for development of small houses by small houses by indigenous villagers" in the Explanatory Statement when the OZP was submitted to the Town Planning Board. However, as I have said, the effect of the sentence was well known to the Town Planning Board, and part of the general position with regard to Village Type Development Zones.

26. Mr Wong also submitted that "primarily" in the missing key sentence gives rise to unacceptable uncertainty in that it clearly means that within the zone there was intended use for other than such primary use. It does not seem to me that these considerations strip the Explanatory Statement and the sentence of all assistance they could provide. However that may be, I do not find it necessary to say more as only secondary reliance was placed upon the Explanatory Statement.

Whether "low rise and low density" an ambiguous test

27. In his judgment, having set out the definition in the way it appeared in a booklet published by the Planning Department, the judge observed that the examples which were given in the "Remarks" column of what structures are included under the use "House" are all low-rise and low-density (usually of 1-3 storeys). This prompted the complaint in the appellant's grounds of appeal that the connotation accepted by the judge that Village Type Development connotes low-rise and low-density, is too unclear, too unambiguous and too uncertain to have imposed a valid restriction in Outline Zone Plans. Pursuing the point in his submissions, Mr Wong asked, how high is high rise? Does it extend to 4, 6, 8 or 12 storeys? At what precise point does it cease to be a low rise? It cannot be a matter of discretion, impression or approximation. There must be a definite and certain criteria because "House" is a Column 1 use as of right. To permit a fluid restriction like "low rise and low density", he said, amounts to reducing a Column 1 use (as of right) to a Column 2 use (for which permission is required).

28. I pause only to mention that the respondent's contention here is that whatever ambiguity there might be at these low rise levels (which was not conceded), there is none whatever with reference to a 33-storey tower block.

Conclusion

29. Immediately before his conclusion the judge in his judgment adopted the statement of Lawrence J in Annicola Investments Ltd and another v Minister of Housing and Local Government [1968] 1 QB 631 at 640 that :

"The precise meaning of the word 'houses' has frequently arisen for judicial consideration, but mostly in connection with other statutes or in other contexts. Decisions in relation to such other matters appear to me to afford very little, if any, assistance to the determination of its meaning in this case. What seems to be clear is that the word has a distinct fluidity of meaning, and that it is best construed in relation to the context in which it is found, and in relation to the objects and purposes of the Act or of the section of the Act in which it is used."

30. The judge also referred to the following words of Sir Wilfrid Greene MR in Re Butler, Camberwell (Wingfield Mews) No.2 Clearance Order 1936 [1939]1 KB 570 at 579:

"Whether a particular building does or does not fall under that word ('houses') is a mixed question of law and fact; fact insofar as it is necessary to ascertain all the relevant facts relating to the building, and law insofar as the application of the word 'houses' to those facts involves the construction of the Act. However, as so frequently happens in dealing with Acts of Parliament, words are found used - and very often the commoner the word is, the greater doubt it may raise - the application of which to individual cases can only be settled by the application of a sense of language in the context of the Act, and if I may say so, a certain amount of common sense in using and understanding the English language in a particular context. There may of course be cases which fall very near a borderline, and it is impossible to lay down any exhaustive definition as to what is or what is not a house. Every case must be considered in the light of its own facts ..."

Clearly it was in the light of those dicta that he came to his conclusion that "House" properly construed does not include the 33-storey block of flats which the plaintiff proposed to build. I have no doubt in the immediate context of the Village Type Development Zone, that is quite right. None of the numerous points Mr Wong so forcefully and eloquently made compels one to a different conclusion. Indeed, the meaning of "House" in context and relative to the issue before the Court is clear, and accordingly the need and occasion to resort to the aids to construction relied upon by Mr Wong simply do not arise.

31. The question then arises, although it has not been put that way, whether the judge was entitled to approach the meaning of "House" in the limited way he did by reference to the question before him, i.e. whether the 33-storey block was a "House" in the particular context. I am of the view he was. Undoubtedly, limits upon development of private property should be clearly stated. Here, they are clearly stated in relation to the application to build a 33-storey tower block of flats. But they may not be clear in reference to a 4 or 6 storey block, a point Mr Wong made. Would that mean that the entire specification of "House" use should be struck down and discarded? I think not. There is not here a wholly unacceptable degree of uncertainty so great as to render the specification of the use invalid, as there was in Singway Co Ltd v Attorney General [1974] HKLR 275. The proper approach seems to me to be incidentally indicated in one of the first authorities relied upon by Mr Wong, i.e. Westminster Bank v Beverley BC where Lord Reid accepted Lord Warrington's dictum in the Colonial Sugar case adding "I would agree that, if there is reasonable doubt, the subject should be given the benefit of the doubt". Here, there is no doubt. If in the case of application to build a 4 or 6 storey block, there is reasonable doubt then presumably the subject should be given the benefit of that doubt, but leaving the specification and OZP itself to continue to have effect in accordance with the law. The preservation of the existing planning regime in that way would also be consistent with the function of the Town Planning Board, i.e. "to promote the health, safety, convenience and general welfare of the community by undertaking the systematic preparation of draft plans ..." relied upon in a somewhat different context in Kwan Kong Company Ltd v Town Planning Board [1966]2 HKLR 363 at 373I.

32. Furthermore, having reached his conclusion, there is clearly support for it in the Definition and the Explanatory Statement, to which, in my view, it was legitimate to resort in case such support became necessary.

33. I would accordingly dismiss the appeal with an order nisi that the respondent is to have its costs of the appeal.

Wong, J.:

34. I agree.

Gall, J.:

35. I agree and I have nothing to add.

Nazareth, V.-P.:

36. The appeal is accordingly dismissed. There will be an order nisi that the respondent is to have its costs of the appeal.