Crozet Ltd and Others v. Attorney General
Read the full judgment text of HCMP 409/1973 on BabelCite. This High Court CFI judgment.
1. This summons concerns the proposed re-development of Rural Building Lot No. 534 which is No. 22 Plunkett's Road. The matter was very fully argued before me by counsel in Chambers. I am giving my decision in open court so that if either party so decides, the matter can be taken to a higher court which will then be aware of the reasons for my decision. Any hearing in a higher court will, of course, be a re-hearing: so I do not intend to deal with all the details of the arguments advanced before
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HCMP000409/1973 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) MISCELLANEOUS PROCEEDINGS NO.409 OF 1973 --------------------------------------------------------------
Coram: Geoffrey Briggs, Chief Justice Date of Judgment: 8th April 1974. ----------------- JUDGMENT ----------------- 1. This summons concerns the proposed re-development of Rural Building Lot No. 534 which is No. 22 Plunkett's Road. The matter was very fully argued before me by counsel in Chambers. I am giving my decision in open court so that if either party so decides, the matter can be taken to a higher court which will then be aware of the reasons for my decision. Any hearing in a higher court will, of course, be a re-hearing: so I do not intend to deal with all the details of the arguments advanced before me. 2. On the site in question there is at present standing a block of flats. An application for re-development was made and building plans were submitted on the 21st July, 1973. The plan showed three blocks of flats, each having twenty storeys which the three companies named as plaintiffs in the summons were desirous of building. The proposed building provided for 120 flats with 138 car ports and a swimming pool. Permission was refused by the Building Authority under the Buildings Ordinance for the following reasons:
3. The letter of refusal continued as follows:-
4. As long ago as 1963 there was a proposal to re-develop this site and the Building Authority then approved plans for buildings of seven storeys. However, the developers did not proceed with that plan and the matter had lapsed. 5. The second reason given for the refusal which is stated above, reason (b), does not concern me here. That is a matter of other proceedings before a different tribunal. 6. The first reason given for the refusal which is stated above, reason (a), refers to section 16 (1)(d) of the Buildings Ordinance. In part this reads as follows:-
The building works shown on the plans submitted by the plaintiffs provided for a building with a plot ratio greater than that stated on the Draft Outline Zoning Plan, Plan LH 14/20. Hence the Building Authority refused his approval to the plans submitted. 7. On the 13th April, 1973 the Town Planning Board published a draft plan of Hong Kong Planning Area No.14, which is the Peak area. It is described as an "Outline Zoning Plan" and covers the whole area of the Peak. The area is divided into residential and commercial zones and specifies open spaces and roads etc. The site, 22 Plunkett's Road, is described as a residential site. On the plan is a legend which is written both in the Chinese and English language and which is of great importance in this case. It reads, in part, as follows:-
8. The plan purports to have been made under section 3 of the Town Planning Ordinance (Cap. 131). The relevant portion of the section reads as follows:-
9. Section 4 (1) of the Ordinance is also material. It states:-
10. It will be noted that in neither section is there a reference to plot ratio. It is the contention of the plaintiffs that the Town Planning Board has no power to decide the plot ratio of buildings to a site. But I cannot agree with this proposition. In my view, it is well within the powers of the Town Planning Board to decide how much of an area shall be covered by buildings. That is one way of planning the future lay-out of an area. The Town Planning Board is charged with the duty of promoting the "health, safety, convenience and general welfare of the community." One of the most important matters for the decision of the Board is the density of population in any particular area. One way to control this is to lay down the permitted plot ratio. The plan is a warning to anybody who wishes to build in the area: (1) that is a zone is marked "residential" he must build residential buildings; and (2) that he may only build buildings which cover a stated proportion of the zone. 11. The powers of the Planning Board are widely drawn in the Ordinance and must be liberally construed. They do not include such matters as the proportions, height and design of buildings. That is left to the Building Authority under the Buildings Ordinance. I see no reason why when dealing with the "future general lay-out of an area" the Board should not specify the plot ratio which is acceptable. In deciding what the plot ratio is to be the Board is only carrying out the duty to plan the future lay-out of the area in order to promote the general welfare of the community. 12. The Ordinance refers also to "types" of building. But I do not think that that assists very much. It would seem that the term "types" refers to the uses of the buildings to be planned for. 13. The plaintiffs pointed out that the Building (Planning) Regulations, which are made under the Buildings Ordinance, lay down the percentage of site coverage and plot ratios for domestic and non-domestic buildings. These are very much higher than 0.5 per cent. It was suggested that the Board had tried to get round these Regulations as it were by putting something in the Outline Zoning Plan so that they could, in a suitable case, invoke section 16(1)(d) of the Buildings Ordinance. I reject that point. The Town Planning Board was not concerned with the Buildings Ordinance they were concerned with making an Outline Zoning Plan under the Town Planning Ordinance. The plan is described as a "draft plan for a future lay-out." It is in the nature of a document of policy. 14. The provisions of section 16(1)(d) of the Buildings Ordinance are necessary in order for the Town Planning Ordinance to be effective. 15. Much was made of the fact that certain circulars had been sent out to registered architects which set out the building policy of the Building Authority in terms different from the contents of the Building Regulations particularly in the matter of the permitted plot ratios. I do not think that there is anything in this point: the plot ratios laid down in the Building (Planning) Regulations are maximum figures. There is no reason in law why the Building Authority should not let the public know that he will only accept a lesser figure. However, it is true that these circulars do not replace the regulations. 16. Under the summons, the third question that the court is asked to answer is: Has the Town Planning Board authority or power under the Town Planning Ordinance to show or make provision on any draft plan prepared by the said Board a restriction as to the extent of the plot ratio of new residential buildings? I think the answer to that question must be "Yes". 17. In the letter of the Building Authority refusing to give approval to the plans submitted, to which I have referred above, a reference is made to a special condition to the Crown Lease of this lot. The special condition reads as follows:-
18. It was suggested by the plaintiffs that there should be read into this special condition a provision that the Building Authority would not unreasonably withhold their approval. Various authorities were placed before the court by both parties. I do not intend to deal with them in detail. In my view the cases of Pearce v. Maryon Wilson(1) and Tredegar v. Harwood(2) are directly in point. There is no ground here for seeking to read these extra words into the condition. The condition is perfectly clear on the face of it. It was not suggested that there are mala fides here. But Mr. Jackson-Lipkin pointed out that the Building Authority is not a party to the lease and he asked the rhetorical question "Is a covenant in a lease between the Crown and a subject to be treated as an instrument to enforce Government policy?" I must confess that I do not see why not, always providing that the Government policy is within the law. In my view the power of the Building Authority to refuse special approval is unfettered. However, I will go further. In my view the evidence clearly shows that the reasons for refusing special approval under the condition were gone into in detail and the decision not to approve was in itself reasonable. Matters such as the height of the proposed new buildings, with special reference to the safety of and from aircraft, the question of the difficulty of sewage were canvassed and also the question of access to the site. It is true that in the first of these three matters there is no covering legislation but I do not think that that is material. It would not be reasonable to approve a plan for a building which later might have to be, partially at least, demolished. 19. It is true that these matters, though canvassed were not referred to in the letter of refusal sent by the Building Authority. But I do not think that this makes any difference in view of my finding that this makes any difference in view of my finding that the Building Authority has the widest possible power to withhold consent. 20. The first question for the determination of this court was this:-
The answer to this question is "No". 21. It will be unnecessary for the second question in the summons to be answered. 22. The summons also asks for six declarations. In view of my above decision no declarations will be made. 23. The defendant is to have his costs. There will be a certificate for counsel.
Representation: Jackson-Lipkin (Patrick Poon & Co.) for the plaintiffs. H.J. Somerville, C.C., for Crown/Defendant. (1) (1935) Ch. 188 (2) (1929) A.C. 72. |