Chan Ka Lam v. The Country and Marine Parks Authority

CACV 150/2017

[2019] HKCA 525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2017

(ON APPEAL FROM HCAL 54/2014)

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BETWEEN

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Before: Hon Lam VP, Barma and Poon JJA in Court

Date of Hearing: 28 March 2019

Date of Judgement: 14 May 2019

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

A. Introduction

1.By this judicial review, the applicant challenged the decisions of the Country and Marine Parks Authority [“the Authority”], made known at a meeting on 24 February 2014, to not recommend the inclusion of 6 enclaves in 4 Country Parks.  There were two limbs in the challenge.  The first limb related to the lack of consideration of the subject matter of the decisions by the Country and Marine Parks Board [“the Board”].  The second limb related to the substantive decisions based on a set of criteria set out in a working paper presented to the Board in May 2011 [“the 2011 Criteria”].

2.The application for judicial review was heard by Au J (as Au JA then was).  In a judgment handed down on 27 April 2017, Au J rejected the first limb challenge but upheld some aspects under the second limb challenge.

3.In this appeal, the applicant only sought to overturn the judge’s decision in respect of the first limb challenge.  In rejecting the first limb challenge, Au J held as follows:

(a)  Section 5(1)(b) of the Country Parks Ordinance Cap 208 [“CPO”] is not to be read as merely an adjunct to Section 5(1)(a).  The Board has a duty to consider and advise the Authority on the policy and programmes prepared by the Authority in respect of country parks.  The Authority has a corresponding duty to consult the Board on those matters.  In so holding, the judge rejected the submissions of the Respondent to the contrary, see [27] to [36] of the judgment;

(b)  The decisions of the Authority in respect of the non-recommendation of the 6 enclaves were, however, not policy or programmes within the meaning of Section 5(1)(b), see [37] to [40] of the judgment;

(c)  Such decisions were not made in respect of the country parks or proposed country parks as the enclaves were not part of a country park or proposed park, see [41] to [46] of the judgment;

(d)  Because of (b) and (c), the Authority had not misdirected himself in not seeking the Board’s advice on the decisions.

4.Mr Kat SC (appearing with Mr Deng for the applicant) submitted that the judge erred in holding as he did under (b) and (c).  By way of Respondent’s Notice, Mr Chan SC (appearing with Mr Lam for the Authority) submitted that the judge erred in the holding under (a).

5.We reserved our judgment after hearing counsel. We now give judgment in the appeal.

B.  Statutory Scheme of the CPO

6.The issues in this appeal revolve around the construction of Section 5(1)(b) of the CPO.  We shall start by examining the relevant provisions and the statutory scheme before we focus on Section 5(1)(b).

7.The proper approach in statutory construction was recently summarized by Ma CJ in Town Planning Board v Town Planning Appeal Board (2017) 20 HKCFAR 196 at [29]:

“ 29.  No issue arises between the parties as to the applicable principles regarding the construction of statutes. They are well known and I need not refer to them in any detail save to emphasise the following for the purposes of the present case:

(1)  In construing statutory provisions, the court does not merely look at the relevant words. It construes the relevant words having regard to their context and purpose.

(2)  The context of the relevant statutory provision should be taken in its widest sense and will of course include the other provisions of the statute. It may also be relevant in any given case to look at the history of the relevant provisions.

(3)  Ascertaining the purpose of the statutory provision is obviously relevant, not only to help provide the relevant context, but to give meaning to the words used. In this latter respect, it is to be observed that often the meaning of words by themselves will not be clear unless regard is paid to context and purpose. Words have to be construed but they must not be construed in a vacuum.

(4)  In ascertaining the purpose of a statutory provision, the court adopts a flexible and open-minded approach.  The purpose may be clear from the provision itself or it may be necessary to look at the Explanatory Memorandum to the bill introducing the provision or a ministerial or official statement may be utilised for this purpose.”

8.An earlier discussion on the proper approach can also be found in the judgment of Li CJ in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at [11] to [17].

9.The preamble of the CPO sets out the legislative objectives of the statute as follows:

“ To provide for the designation, control and management of country parks and special areas, the establishment of the Country and Marine Parks Board, and for purposes connected therewith.”

10.Designation of country parks is a distinct objective.  The designation process is primarily governed by Part III of the CPO.  Under Part III, the process starts with a direction of the Chief Executive under Section 8(1) of the CPO to the Authority to prepare draft maps.

11.However, in an earlier section, viz Section 4(a), the statute provides that one of the duties of the Authority is to make recommendations to the Chief Executive for the designation of areas as country parks.  At the same time, Section 7 provides that the Chief Executive may give directions with respect to the exercise or performance by the Authority of his powers, functions or duties under the CPO.

12.For the purpose of this appeal, it is not necessary for us to consider if the Chief Executive can give a Section 8(1) direction in the absence of any recommendation from the Authority.  As a matter of fact, recommendations were made in relation to the subject sites involved in this appeal.

13.The decisions challenged in this judicial review were the recommendations by the Authority.  The applicant’s case is that before the making of such recommendations, the Authority must consult the Board.

14.During the preparation of draft maps, the Authority has a duty to consult the Board, see Section 8(4) of the CPO.  Mr Chan accepted that upon such consultation, members of the Board can express views on whether areas not included in the Section 4(a) recommendations should be added to a country park or proposed country park.

15.After a draft map has been prepared, the Authority shall publish a notice in the Gazette and newspapers, disseminating information about the draft map to the public, under Section 9.  The draft map shall be available for inspection by the public for 60 days, see Section 9(3).

16.By reason of Section 10(1) of the CPO, the publication of such a notice has the effect of barring new development in the area of a proposed country park as shown on the draft map without the prior approval of the Authority.

17.Section 11 of the CPO puts in place an objection mechanism after the publication of notice of a draft map.  In such process, different roles are played by the Authority and the Board.  The section reads as follows:

“ (1)  Any person aggrieved by a draft map available for inspection under Section 9 may within the period of 60 days referred to in Section 9(3) send to the Authority and to the Secretary of the Board a written statement of his objection to the draft map.

(2)  A written statement under subsection (1) shall set out—

(a)  the nature of and reasons for the objection; and

(b)  if the objection would be removed by an alteration to the draft map, any alteration proposed.

(3)  Where the Authority receives a written statement of objection under subsection (1), he may within 30 days of receipt of the objection send to the Secretary of the Board his written representations concerning such objection.

(4)  Upon receipt of an objection under subsection (1) and any representations by the Authority under subsection (3), the Secretary of the Board shall fix a time and place for the hearing of the objection by the Board and shall give 14 clear days’ notice thereof to the objector.

(5)  The objector may attend the meeting of the Board at which the objection is to be heard, and may be heard in person or by his authorized representative.

(6)  Upon the hearing of an objection, the Board may—

(a)  reject the objection in whole or in part; or

(b)  direct the Authority to make amendments to the draft map to meet such objection in whole or in part.

(7)  Where the Board rejects the objection under subsection (6)(a), the Secretary of the Board shall notify in writing the objector of the Board’s decision.”

18.The role of the Authority in the objection process is to make representations on the objection.  The objection will be heard by the Board which will determine it after the hearing.  The Board may direct the Authority to amend the draft map to meet the objection.

19.Before us, Mr Chan accepted that the objection can include objection as to the non-inclusion of certain areas in a proposed country park.  It follows that if such objection is upheld by the Board, the Board can direct the Authority to amend the draft map to include such areas in the draft map.

20.This adjudicative role of the Board is also set out explicitly under Section 5(1)(c) of the CPO.

21.The draft map will be submitted by the Authority to the Chief Executive in Council for approval after the objection has been processed: see Section 12 of the CPO.  The Chief Executive in Council shall either approve the draft map or refuse to approve it or refer it to the Authority for further consideration and amendment: see Section 13(1).

22.A draft map approved by the Chief Executive in Council shall be deposited in the Land Registry.  The designation will be effected by an order of the Chief Executive in the Gazette: see Section 14.

23.Similar functions and roles are played by the Authority and the Board in the context of replacement or amendment of an approved map.  Section 15(2) provides for the application of Sections 8 to 14 in such context.  The amendment or replacement process starts with a referral by the Chief Executive in Council of an approved map to the Authority.

24.Though it is not clearly provided in Part III whether the referral for amendment or replacement should be preceded by a recommendation from the Authority, the evidence filed in the present judicial review[1] shows that in practice such referrals were precipitated by assessments and recommendations by the Authority on the suitability of some enclaves for inclusion in existing country parks.

25.Apart from its role in designation, the Authority is entrusted with the power and duty of the control and management of country parks: see Section 3(1) of the CPO.  The statute specifically sets out some duties of the Authority in this respect at Section 4(b) and (c):

“ It shall be the duty of the Authority—

…

(b)  to develop and manage country parks and special areas;

(c)  to take such measures in respect of country parks and special areas as he thinks necessary—

(i) to encourage their use and development for the purposes of recreation and tourism;

(ii) to protect the vegetation and wild life inside country parks and special areas;

(iii) to preserve and maintain buildings and sites of historic or cultural significance within country parks and special areas but without prejudice to the Antiquities and Monuments Ordinance (Cap. 53); and

(iv) to provide facilities and services for the public enjoyment of country parks and special areas …”

26.Under Section 4(d), the Authority has the general duty to administer the CPO.

27.In connection with the control of land in the country park, the Authority can initiate actions in respect of leased land within a country park.  Section 16(1) of the CPO provides that where the Authority is of the opinion that any use of leased land within a country park would substantially reduce the enjoyment and amenities of the country park, he may request the Land Authority (viz the Director of Lands: see Section 16(7)) to exercise the power under Section 16(2).  The Land Authority can issue a notice to require the occupier to discontinue or modify the use or to prohibit the occupier from proceeding with a proposed use.  Failure to comply with such notice is an offence under Section 16(4).  Further, the leased land may be resumed under Section 16(6) if the requirements of the notice are not complied with.

28.The CPO also provides for an objection procedure in Section 17 in respect of such notice.  The Board is entrusted with the function of hearing such objection and determining the same.  There is also a further avenue of appeal from the Board to the Chief Executive by way of petition.  The Chief Executive may refer the petition to the Chief Executive in Council.

C.  Construing Section 5(1)

29.After a brief survey of the statutory regime, we shall now consider the section which we have to interpret in the present appeal.  Section 5(1) of the CPO reads:

“ 5.  Establishment of Country and Marine Parks Board

(1)  There is hereby established a Country and Marine Parks Board which shall—

(a) act as a consultative body to advise the Authority upon any matter referred to it by the Authority;

(b) consider and to advise the Authority on, the policy and programmes prepared by the Authority in respect of country parks and special areas, including proposed country parks and special areas; and

(c) consider any objections that may be lodged under Section 11 or Section 17.”

30.Mr Chan submitted that sub-paragraphs (a) and (b) should be read together so that (b) should be regarded as a specific instance of (a).  The net effect, according to counsel, is that as provided under (a), the Board would only act in its consultative role in respect of “any matter referred to it by the Authority”.  In other words, even for policy and programmes within (b), the Board does not have to consider and to advise the Authority on them if the Authority does not refer such policy and programmes to it under (a).

31.This submission was rejected by the judge at [27] to [36] of the judgment.  We respectfully agree that sub-paragraph (b) in Section 5(1) should not be read subject to the requirement of referral by the Authority in sub-paragraph (a).

32.Firstly, there is nothing in sub-paragraph (b) itself to support the construction of Mr Chan.  As the judge pointed out at [34], the requirement of referral by the Authority is conspicuously absent in sub-paragraph (b) in contrast with sub-paragraph (a).

33.Secondly, it is clear that the function of the Board under sub-paragraph (c) is not predicated upon a referral by the Authority.  As we have seen above, the Board has a statutory duty to hear objections under Section 11 (in respect of draft maps) and Section 17 (in respect of statutory notice issued by the Land Authority).  Thus, there is no justification for holding that the requirement in sub-para (a) should be construed as an overarching provision which governs the other sub-paragraphs in Section 5(1).

34.Thirdly, we cannot find anything in the statutory context to support Mr Chan’s construction.  Mr Chan placed emphasis on the explicit requirement to consult the Board in Section 8(4) in respect of the preparation of draft maps and the absence of similar provision regarding the policy and programmes prepared by the Authority.  Counsel also submitted that there is no necessity to imply a duty on the part of the Authority to consult the Board regarding its policy and programmes.

35.With respect, one should start by examining if Section 5(1)(b) should be construed as being subject to a referral by the Authority. In our judgment, it would be putting the cart before horse if one starts from the other end, viz examining if the Authority has an implied duty to seek the advice of the Board in respect of its policy and programmes.  One cannot examine whether such a duty should be implied when one has not reached a view of the Board’s function under Section 5(1)(b) is dependent upon a referral by the Authority.

36.Mr Chan’s argument runs as follows: as the statute does not have an express provision for a duty on the part of the Authority to consult, it follows that the legislature could not have intended for the Board to perform, without any referral from the Authority, its advisory function under Section 5(1)(b) in respect of the policy and programmes prepared by the Authority.

37.The argument is self-serving because it starts from a premise which has already ruled out any duty on the part of the Authority to consult.  We do not think it is correct to start from such a premise.  As we shall explain below, notwithstanding the absence of express provision for a duty to consult on the part of the Authority, there is a cogent and firm basis for holding that such duty is implied.  The absence of express provision similar to Section 8(4) in the context of policy and programmes is not by itself a sufficient ground for holding that Section 5(1)(b) should be construed as being a mere specific adjunct to Section 5(1)(a).

38.Fourthly, notwithstanding Mr Chan’s submission that this is not a very strong indicator in this exercise, we agree with the judge that Mr Chan’s construction would reduce Section 5(1)(b) to surplusage and we see no reason for acting on the basis that the legislature enacted sub-paragraph (b) simply to highlight the specific areas where the Authority may consider referring to the Board for consultation under sub-paragraph (a).

39.The enactment history of sub-paragraph (b) and the speech of the Secretary for the Environment on 10 March 1976 at the Committee Stage of the Country Parks Bill 1976 (adding the equivalent of Section 5(1)(b) to the bill) remove the basis for suggesting that sub-para (b) is subject to referral by the Authority.  On that occasion, the Secretary had this to say:

“ it has been represented to me that clause 5 as it stands appears to restrict unnecessarily the functions of the Country Parks Board. This is certainly not the intention and I hope the new subclause (1)(aa) will make it clear that the Authority will consult the Board on major policies and programmes in respect of country parks and special areas.” (our emphasis)

40.That new subclause (1)(aa) is the current Section 5(1)(b).

41.In light of this legislative history, notwithstanding Mr Chan’s argument based on citation of Craies on Legislation, 11th Edn, paragraphs 20.1.23 to 20.1.25, we are of the view that the correct position was set out at paragraph 20.1.25 in that textbook:

“ In essence, therefore, the rule that every provision of an enactment is intended to have separate effect is treated much like the rebuttable presumptions …”

42.We can also cite a passage from the judgment of Viscount Simon in Hill v William Hill (Park Lane) Ltd [1949] AC 530 at 546-7, which was also cited by Craies:

“ … it is to be observed that though a Parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of an Act of Parliament is not to be assumed. When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out.”

43.We cannot find any good reasons to regard sub-paragraph (b) in Section 5(1) as mere surplusage.

44.Bearing in mind the purpose of setting up the Board and inserting the new subclause (1)(aa) to the Country Parks Bill in 1976 as recounted above, the proper construction is to read Section 5(1)(b) as providing for a distinct and separate function of the Board, independent from the function under Section 5(1)(a).

45.For the above reasons, we uphold the judge’s construction of Section 5(1)(b).

46.To give effect to the function placed upon the Board under Section 5(1)(b), we have no hesitation in holding that, as the judge did, the Authority (who is also a member of the Board) must have an implied duty to refer his policy and programmes to the Board for advice and consideration.

47.Under the statutory scheme, the Authority has a duty to generally administer the CPO: see Section 4(d).  The function of the Board under Section 5(1)(b) is to consider and to advise the Authority on the policy and programmes prepared by the Authority.  Since the Authority is responsible for the preparation of these policies and programmes, it is a natural reading of the statute that the combined effect of Sections 4(d) and 5(1)(b) that the Authority should forward his policies and programmes to the Board for consideration and advice.  Otherwise, it is difficult to see how the Board can perform its statutory function under Section 5(1)(b).

48.We would also say that the CPO does not provide expressly that the policies and programmes prepared by the Authority cannot take effect or be implemented (at least on a trial or pilot basis) before the consideration or advice by the Board.  The judge did not rule on this aspect and we have not heard submissions from counsel in this regard.  We can see that Mr Kat may argue by reference to the first of the four basic requirements for consultation[2] that the consideration by the Board of the policy or programme should take place at a time when they are still at a formative stage.  However, we can also see an argument that given the wide varieties of matters that the Authority has responsibility in respect of country parks, these policies and programmes can be of very different nature or character, depending on the subject matter concerned.  Thus, it may not be wise to equate the Section 5(1)(b) consideration by the Board in all respects with the duty of consultation in respect of other decisions (like the closing down of a school or the formulation of a scheme for council tax reduction) discussed in the English cases.

49.In light of our determination (as set out below) that the subject assessments and recommendations by the Authority in the present appeal do not fall within the scope of Section 5(1)(b), we do not need to address this question in this appeal.  Since the issue can be fact and context sensitive, we would leave the question open for future determination when the issue arises in a specific case.

D.  Is exclusion of enclaves policy or programme?

50.We can now come to the central issue in the appeal: did the judge err in holding that the assessments and recommendations by the Authority regarding the inclusion or exclusion of enclaves do not fall within the scope of Section 5(1)(b) as they are not policies or programmes in respect of the country parks?

51.There are two subsidiary questions under this issue:

(a)  Are the assessments and recommendations by the Authority policies or programmes?

(b)  If the answer to (a) is affirmation, are the assessments and recommendations policies or programmes in respect of the country parks?

52.We start by considering the first subsidiary question.  At [38] to [40] of the judgment, Au J explained his reasons for holding that these assessments and recommendations do not constitute “policies or programmes” within the meaning of Section 5(1)(b).  He said:

“ 38.  First, I accept that the usual meaning of ‘policy’ and ‘programme’ refers to or denotes respectively a course or set of general principles to guide the conducts and plan or scheme that is of general and broad nature.   Such meaning is also consistent respectively with the usual meaning of the Chinese words ‘政策’ and ‘計劃’.  These words therefore are not intended to include or cover individual one-off decision made in respect of country parks.

39.  Understood as such, I would regard the 2011 Criteria, which represent a set of general principles and criteria to guide the assessment for designating an area as country park, could be regarded as a ‘policy’ in respect of country parks or proposed country parks.   In this respect, the Authority did refer those proposed revised principles and criteria to the Board for advice, and the Board has endorsed them.

40.  However, the individual specific assessment conducted under the 2011 Criteria and decision made not to designate an area as country park are not and cannot be regarded as a ‘policy’ or ‘programme’.”

53.Although he did not expressly abandon the contention that the assessments and recommendations could be regarded as policy, Mr Kat concentrated on arguing that they should be regarded as programmes. It is plain to us that each assessment and recommendation is based on the specific facts, findings and circumstances of each enclave.  It is a misuse of language to describe the same as a policy in respect of the country park. There is nothing in the context and purpose of the CPO to call for such an unnatural interpretation of the word “policy” in the section.

54.We shall focus on arguments relating to the meaning of “programmes”,

55.Mr Kat submitted that the judge was wrong in holding that the recommendations and assessments could not be regarded as “programmes”.  In essence, his argument (in his written as well as oral submissions) was as follows:

(a)  The legislature chose the word “programmes” in Section 5(1)(b), which is a word of wide import, and the court should not cut down its meaning by any attempt to define it;

(b)  Au J’s approach failed to differentiate between “policy” and “programme”, thereby rendering the word “programme” superfluous;

(c)  The judge’s definition of “programme” focuses on the individual assessment and ignores the parts which make up a whole programme. It compartmentalized a series of decisions in a programme into individual one-off decisions.

56.With respect, we do not consider the judge to have fallen into these errors.  We have cited the relevant paragraphs in the judgment.  We cannot see any attempt by the judge to define the meaning of the word “programmes”.  Nor do we see any failure on the part of the judge to differentiate between “policy” and “programme”.  The issue before the judge, as it is now before us, is whether the assessments and recommendations are programmes within the meaning of Section 5(1)(b).  At [38] of the judgment, the judge gave his reasons for holding against Mr Kat on this issue.  His Lordship referred to the respective features derived from the usual meanings of the two words: a course or set of general principles to guide the conducts for “policy” and plan or scheme that is of general and broad nature for “programme”.   In so doing, the judge did not attempt to defines those words.  He was simply explaining that the assessments could not be “policy” or “programme” as these words do not cover individual one-off decision.

57.In the statutory context of the CPO, we agree with the judge that in Section 5(1)(b) “policy” and “programmes” refers to formulation of principles (as policy) and the making of plan or scheme (as programme) on a high level of generality.  There is a clear distinction between the formulation of policy and programme on the one hand and their actual execution and implementation on the other.  Whilst Section 5(1)(b) provides that the Board should consider and give advice on the former, it could not be the legislative intent that the Board, playing an advisory role, should be involved in the execution or implementation of policy or programme.

58.The 2011 Paper[3] sets out different protection measures for enclaves against incompatible use.  The incorporation of enclave into a country park is only one of the measures.

59.As submitted by Mr Chan, paragraphs 3.1 and 3.2 of the 2011 Paper setting out the principles and criteria for designating areas as country parks are matters of policy and paragraphs 5.1 to 6.2 setting out an action plan on the way forward is programme.  The 2011 Paper was therefore rightly tabled before the Board for consideration and advice.  In so doing, the Authority had acted in accordance with Section 5(1)(b).

60.On the other hand, the application of the policy and the implementation of the programme set out in that 2011 Paper (after the consideration of the policy and programme by the Board) in the assessment of each enclave does not, in our judgment, fall within the scope of Section 5(1)(b).

61.This view is reinforced by the statutory scheme for designation of country parks, which also provides for the amendment of maps to include some enclaves in existing country parks.  As we have seen, the assessment and recommendation of the Authority is preliminary to the referral from the Chief Executive in Council for the amendment of maps.  It is a pure executive act instead of a policy making or programme planning stage.  The statute expressly provides for consultation with the Board at the next step, viz under Section 8(4), which strongly militates against the suggestion that such consultation is in respect of policy or programmes.  Otherwise, the Board will have to be consulted once before the recommendation to the Chief Executive in Council and then a second time on the same matter after such recommendation in the context of Section 8(4).  We cannot accept that to be the intent of the legislature.

62.Mr Kat submitted that there were cases where the Authority did not recommend any enclave assessed to be included in respect of a country park and for those cases the matter would not reach the stage of Section 8 and the Board would not have any opportunity to be consulted.

63.Even so, it still begs the question whether the legislature has provided for consultation on executive acts in the form of the assessments.  In our judgment, for the reasons given by Au J and our discussion above, Section 5(1)(b) does not cover such acts.

64.Likewise, the submission of Mr Kat that each assessment should be viewed together with other assessments to form a programme cannot assist his case.  Notwithstanding that these assessments were conducted with the same approach and with the same set of criteria (as they had to be since they were all done pursuant to the criteria set out in the 2011 paper), we do not regard such nexus as providing a basis for asserting that they were a programme within the meaning of Section 5(1)(b).  If Mr Kat were correct, all decisions or actions or other executive steps taken under the 2011 Paper can be regarded as programme for which the Authority must seek the advice of the Board under that subsection.

65.In our view, the fundamental flaw in Mr Kat’s submission is his failure to recognize the difference between the formulation of policy and programme on the one hand and their execution and implementation on the other.

66.We do not consider that our construction of Section 5(1)(b) would frustrate the legislative objective.  For matters properly coming within the scope of “policy and programmes”, we have held that the Authority has an implied duty to refer his policy and programmes to the Board for advice and consideration.  As for matters falling outside such scope, there are other avenues to challenge the Authority’s decision.  The success of the applicant in the challenge under the second limb clearly demonstrates that decisions outside the scope of Section 5(1)(b) can be effectively tested in court by reference to policy and programmes prepared by the Authority.

67.For these reasons, we uphold Au J’s conclusion that the assessments were not within the scope of “policy and programmes” under Section 5(1)(b).

68.It follows that we need not consider the question whether the assessments were made in respect of a country park and the appeal falls to be dismissed.

E.  Conclusion

69.For the above reasons, we dismiss the appeal. Since Mr Chan failed in persuading us on the point raised by his Respondent’s Notice, we shall make a costs order nisi that each party shall bear his own costs in the appeal.

Mr Nigel Kat SC and Mr Earl Deng, instructed by Vidler & Co, for the applicant

Mr Abraham Chan SC and Mr Keith Lam, instructed by the Department of Justice, for the respondent