Man Shin Kang Tong and Another v. The Attorney General and Another

HCMP000237/1986

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HEADNOTE

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Upon challenge by plaintiffs to the validity of an order creating a "temporary easement on land" under section 15 of the Roads (Works, Use and Compensation) Ordinance, Cap. 370 held:

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: Hon Hunter, J. in Court

Dates of hearing: 24th, 25th & 28th April, 1986

Date of delivery of Judgment: 29th April, 1986

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JUDGMENT

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1. This is a case which has given rise to strong feelings and also to questions of some public importance. I would, therefore, like to have taken more time for thought. But time is pressing: a quick decision is important: and speed must therefore prevail over polish.

2. I am concerned with two lots of land in Demarkation District 99, in the Village of San Tin in the New Territories. The first lot is numbered 372. It is quite a large lot. Until very recently it was farmed as a fish pond by four persons who, having received compensation, vacated the land in September and October of last year. The lot is owned by Man Shin Kang Tong which is the 1st plaintiff. The second lot of land No. 588 is tiny. It is recorded in the documents as being 640 square feet. It is, I think therefore, much too small to be farmed separately. That is owned by the 2nd plaintiff, Man Tsui In Tso.

3. Both plaintiffs are here as custodians for the Man Clan. Both lots form part of the Man ancestral land, which had been in the family through 25 generations for 700 years. As such the plaintiffs are very upset at the prospect of losing any land, and likewise at the prospect of witnessing what they regard as it's destruction, namely the filling in of the fish pond on Lot 372. One cannot but have the greatest of sympathy with anybody who finds himself in the way of what the community regards as progress; or more literally in this case in the path of the bulldozer. Because the trouble has been caused by roads. Communities want bigger roads and better roads. Roads are greedy of land. Nothing is greedier of land then an intersection. The cause of the trouble here is the proposed new intersection between the New Territories Circular Road and a new spur to Lok Ma Chau and the new bridge which is intended to cross the Shum Chun River. In many respects, this is a cri de coeur from the clans who find themselves in the path of what others regarded as progress, and which they regard rather differently. But this is not a matter of sympathy. I have to look at the hard and narrow question of law, which is whether or not they have made good their attack upon recent government conduct. Therefore I must first recite the history.

4. It starts in October 1982, when the Secretary for Lands decided that the existing Castle Peak Road between Au Tan and Fanling needed substantial modernisation and indeed a new line altogether. He prepared and published a scheme under Section 5 of the relevant Ordinance which is the Roads (Works, Use and Compensation) Ordinance Cap. 370. That scheme described the line of the proposed new three lane carriageways in paragraph entitled A general description of the works. One then comes to B land resumption, where the land which has to be resumed in order to enable the road to be constructed is identified by a number of drawings. Then one has side heading C Temporary Easement. "The land in, under, or over which the Secretary for Lands and Works proposes to create a temporary easement for a period of three years under Section 15 of the Ordinance, is delineated and shown coloured blue on drawing NDR 37B in Volume 2B. This land will be used as a works area to accommodate site offices and for the storage of construction materials and equipment. "

5. The next step was that the public had to be given notice of this scheme. This was done by Gazette Notice 3453 dated 29th October. The notice gave a brief description of the scheme and told the public where they could inspect the documents and the plan. This was to enable those persons affected to do just that, and if they were so minded to raise objection under Section 10. In passing (because the point was raised) Section 10 seems to me wide enough to permit any person affected simply by the passage I have read under the side heading 'Temporary Easement', to raise objection.

6. The next stage in the statutory framework, is for the scheme and the objections to be considered by the Governor-in-Council. The Governor-in-Council is empowered to make amendments to the scheme, if that body is so minded. This occurred in this case. Amendments were proposed by Governor-in-Council, and were gazetted by Gazette Notice 3733 on 25th November 1983. A number of modified plans were referred to in that Notice.

7. Up to this point, these plaintiffs were relaxed spectators. It is one of the facts of life, when new roads are proposed, that those who are not in its path can smile and look with pleasure at future benefits from the construction; whereas those who are in its path are minded inevitably to take a rather different view. The plaintiffs' change of role from spectators to persons lying athwart the road, was brought about dramatically in 1984 when proposals were apparently first formulated to construct the bridge at Lok Ma Chau. That necessitated a connecting road being built from the new bridge to the new highway, and an intersection very close to this village.

8. The first public notification of this was given by Gazette Notice 114 on 8th January 1985, when notice was given that the Secretary was proposing to recommend to the Governor-in-Council an amendment to the existing scheme to provide for the construction of "a grade-separated interchange" at this point. The notice sets out a brief description of the proposals. It goes on "the above proposed amendments are shown on the Plan consisting of drawing Nos. NH6119, NH6120 and NH6121. Additional land to be required to be resumed is shown on plan Y. L. P. R. 21 (3 plans) attached to the above drawings". It concludes by inviting objections from any persons who wish to do so.

9. Anyone who took advantage of that invitation and inspected the amended scheme and the plans would have found this. The amended scheme starts off in paragraph (A) with an introduction. This explains the history of the project so far is, similar to that I have already just given. It then goes on in paragraph (B) to give a general description of the works, basically the interchange and associated works. It goes on in paragraph (C) to deal with land resumption. It specifies the land which is required to accommodate the new works, and some much smaller parcels of land which are no longer required from the original work. It goes on in paragraph (D) again under the side heading "Temporary Easement". "The land in, under or over which the powers under Section 15 of the Ordinance would be exercised for the creation of a temporary easement for a period of three and a half years" (in contrast to the original three)"is shown on plan Y.L.P.R. 21 (Plan 3 of 3). This land will be used as a works area for the purpose of or incidental to the works. "

10. Anyone who then consulted those plans would have discovered, first of all, that the Plan 3 of Y.L.P.R. 21, identifies these areas under the legend "Temporary Easement" with purple marking on that plan. It also contains a complete list of all the lot Nos. affected by those areas. The list includes, of course, the two lots before me. If the person had gone on to consider the other main drawings including for example, 'NH 6120' he would have seen the same area marked within the limit of the "works area", which is carefully traced round its outer boundary. These areas are separately shown within their own boundaries under the legend "temporary easement for the contractors works area", in three parcels of land which fall within the proposed new road works. They should be contrasted with the area which is also shown within the new road works, but which is labelled "this area is not part of the works area". He would also have noticed that there are in fact a number of ponds marked upon these plans in the vicinity of the new road works, all of which were about to suffer a change of user.

11. Following the publication of the amended scheme and plans, the matter was open for the public to inspect and to object. No evidence had been placed before me by the plaintiffs or anyone of any inspection of these documents, or as to how they were read, or how they were understood. There is no suggestion that I know of, that the plaintiffs raised any objection to this scheme. The amended scheme in due course came before the Governor-in-Council and was approved. Notice of that approval was given by Gazette Notice 2230 of 4th July 1985 again pursuant to Section 11. The matter was then poised for implementation and the next stage was that an order was made under Section 15. This was made on 24th July 1985.

12. This is the document which has been most carefully scrutinized and attacked in the course of the hearing. Therefore I must read a substantial proportion of it. It is signed by Mr. F.D. Roome as Principle Government Land Agent to whom, on the evidence, had been delegated the functions, exerciseable by the Governor, under Section 15. It is headed "Creation of Temporary Easement on Land' .............. for these works. "In the exercise of powers delegated by the Governor, I hereby direct under Section 15(1) of the Ordinance that temporary easement and temporary occupation to carry out works over the land" (and then the lot numbers are all set out and include these two lots). "In Demarkation District 99 as shown coloured purple on Plan Y. L. P. R. 27(a) sheet 1 of 2, which land was described in the amended scheme referred to in GN 114, published on 11th January 1985, shall be created in favour, of the Crown, for the purposes of, or incidental to the works described above or their use, and I specify the period of notice to be stated under Section 15(2) of the said Ordinance to be two months from a day on which a notice under Section 16 of the said Ordinance is affixed on on the other land. And I further direct under Section 15(3) of the said Ordinance, that subject to the service of any notice required to be given under Section 15(5) of the Ordinance, that the Director of Engineering Development, his staff and contractors working on his behalf shall be authorised to enter upon the land for the purposes of carrying out the works described above. "

13. That order was brought to public notice by a notice GN 2511 of 1st August, which also recorded that on the same date: "this notice was affixed on or near the land on the 1st August." So the time set by the order, two months, accordingly started to run as from that date. Government started to move in onto the site in September and October. It bought out a large number of tenants on this land. Inferentially it brought out all those actual occupants who could be traced. It has been stated in evidence before me, that by 8th October 1985 there were no other persons actually in occupation. That has been expressly accepted as correct in relation to 372. Frankly in relation to 588 it has, I think, likewise to be accepted having regard to the tiny nature of that lot.

14. On 11th November 1985, articles of agreement were entered into between Government and the 2nd defendants, Korea Shipbuilding & Engineering Corporation which was to execute the building works. On 2nd December, 1985, Government gave the 2nd defendant's possession of the site. At once the 2nd defendants came into conflict with the San Tin Rural Committee. The 2nd defendants then proceeded to do two things which are of significance here. First, they filled in the fish pond on Lot 372, so as to make the land suitable for use as a works or storage area. Secondly, they seem to have carried out some levelling operations on the more easterly purple site which contains 588, with the result they raised the level of that area by some three feet. The 2nd defendant's conduct led to great resentment in the village; and conduct which one can understand rather than condone. The last stage in the story was last week. On 23rd April notice was given of another amendment to this scheme, which would lead to the resumption of the land in question if it is carried through.

15. That is the background. I must now consider the validity of the twin attack which is made upon the Order of 24th July. The attack takes two forms. First, it is said that the Order is not legal in itself. Secondly, it is said that even if it was, it did not permit the site alteration which has taken place, i.e. the filling in of the fish pond.

16. I can get rid of a number of subsidiary points which were mentioned, at the outset. The first is that certain criticisms were directed at the notice of this Order which was GN 2500. But it was accepted in argument that this could not be relied upon as a matter of substance having regard to the provisions of Section 2(5) of the Ordinance, and that what mattered was the validity of the attack on the Order. Secondly, coming to the Order itself, there are three small points which I can deal with. First it is said that the Land was not sufficiently identified in the body of the Order. I cannot accept this. The land is identified by lot, and then by reference to the plans and the amended scheme, which takes you into all the other documents. That seems to me quite sufficient. Secondly, it is said that the timing was not sufficiently specified, by naming simply a period of two months from the date on which the notice was affixed to the land. That fixes the starting time, which was two months from lst August which then takes one through to lst October. The period is then fixed by the period named in the amended scheme, which is three and half years. That seems to me quite sufficient in the circumstances. Thirdly, it is said that the phrase "contractors working on his behalf" did not authorise the entry of this 2nd defendant, because it was an independent contractor. I do not acknowledge the relevance of this tortious phrase "independent contractor" in this context. It seems to me that "contractors working on his behalf" covers precisely the 2nd defendants which are the contractors retained by him to construct these roads. I do not see any substance in those points.

17. The real point on this Order which requires much more detailed consideration, centres upon the use of the phrase 'Temporary Easement' both in the heading and in the body of the Order, and in the body of the Order the phrase 'Temporary Easement and Temporary Occupation'. It is upon those phrases that Mr. Litton primarily relies. He submits, first of all, that the phrase 'Temporary Easement' is a contradiction in terms, because all easements for the purposes of this Ordinance are permanent, not temporary. Secondly, he says the phrase 'Temporary Easement' tells the reader nothing without describing what the easement itself is to be. Thirdly, the order does not distinguish, he says between 'Temporary Easement' and 'Temporary Occupation', and does not say which is to apply to which of the various lots which are specified in the Order. Finally, he says the Order goes beyond the original scheme and is therefore ultra vires the Governor. The original scheme only talked about temporary easement which he says constitutes less than exclusive possession. This Order talks about temporary occupation which is a phrase not to be found in the original scheme and means exclusive possession. Therefore the whole thing is ultra vises. These submissions raise substantial points on this Order, and mean I must go back to consider in some detail the two relevant sections of this Ordinance which are Sections 5 and 15.

Section 5 opens like this:-

With the greatest respect to the draftsman of that section, he seems to have used such economy of language that the grammar is difficult. For my part, I think the section is clearer if you read in certain words. The plan has to delineate the works area. That is an area which has to do three things. It is an area within which (and I have read in) (1) land may be resumed or, (2) within which easements or other rights in, under or over land, may be created or, (3) within which rights may be affected. That seems to me to show that the purpose of the plan, the purpose of the delineation of the works area, is to create a basket of rights or consequences.

18. In ascending order one starts first of all simply with temporary user for constructional purposes, which will give rise to no permanent rights and no permanent disabilities. Next one comes to temporary user which leads to the creation of permanent rights or permanent disabilities which fall short of ownership. A typical example of this is the easement. I take, for example, drainage. Drainage may be required for the road works which necessitates the laying of pipes under someone else's land. In order to lay these pipes, temporary possession may be required of such land. When the pipes are in, the surfaces are restored, and the land goes back to its original owner for his use as before, but subject to the easement enjoyed by the owner of the dominant tenement, in this case, the gentlemen in whom the land surface of the road is vested. That is a typical example of temporary user leading to permanent rights. The third category is where temporary user leads to permanent deprivation, i.e. if the land which has to be resumed to accommodate the permanent works. The lowest common denominator for all these users, is temporary occupation. That is not surprising because you are dealing here with a works area, with a building site. In practical parlance a building site, in the interests of construction, efficiency, safety and security, requires a single occupation, exclusive possession of the building contractor. All that is what is intended to follow from the delineation on a plan of an area called "works area".

19. That is the first part of the Secretary's obligation under 5(a) which requires the production of drawings: S. 5(b) requires him to put a description to these drawings. He has to prepare "a scheme annexed to the plan in which he shall (1) describe the general nature of the works which he proposes to carry out and the use to which he intends the road to be put; (ii) describe the land which he proposes may be resumed under Section 13; (iii) describe the land in, under or over which, he proposes there may be created an easement or other permanent or temporary right under Section 15 and indicate the nature of that easement or right". It will be seen at once that these three categories follow A, B & C in the original scheme.

20. It is common ground that the obligation in Section 5(b)(iii) can fairly be described as minimal, because it is to indicate the nature of that easement or right, and not precisely to define it. Secondly, it seems to me at least that the draftsman here has used the same economy of language in sub-section (iii) which can mislead the unwary. He draws a distinction between first an easement as one category "or other permanent" right, and then goes "or temporary right". That can very easily be read as "other temporary right". He does not unfortunately draw a distinction between those two parts of the section by writing in "other permanent right or a temporary right". A quick reading can lead the uninitiated to think that an easement might be regarded as a temporary right. That reading is I am quite satisfied false, and section 15 shows it to be false. But I can understand someone falling into this error. The last point to noteabout this section is that (ii) and (iii) are intended to give a total description in words of the land uses proposed, permanent or temporary, within this area delineated as "works area" on the plan.

21. The last relevant section is Section 15(1) which is in these terms:" The Governor may by Order direct that easements or other permanent rights in, under, or over land, and rights of temporary occupation of land in the works area, which easements and rights were proposed in the scheme mentioned in Section 5, shall be created in favour of the Crown, for the purposes of, or incidental to, the works or to the use." It is under that section, that this Order is purported to be made. It can be seen that this section does what section 5(b)(iii) does not obviously do. It draws a firm distinction between (1) 'easements' (2) 'other permanent rights' and (3) 'rights of temporary occupation'. This shows to my mind, first of all, that easements strictly so called in this Ordinance, come into the category of permanent rights, not temporary, which the earlier section might possibly on one reading have suggested. Secondly, it makes it clear that the Governor cannot sanction anything under 15(1) which is not already in the scheme under Section 5.

22. That analysis of those two sections leads me inevitably to the conclusion that the original draftsman of this scheme misread the Ordinance. I reach that conclusion for two reasons. First because it seems to me that in the Ordinance, all easements are deemed to the permanent. They are a species of permanent right as so described. I sympathise with him because I think that S5(b)(iii) is misleading: but the imperatives of S 15(1) are to my mind plain. The ultimate right, the ultimate easement is permanent; but in order to reach it the power to take temporary occupation may have to be employed. A typical example I have already given is the construction of the drainage channel. So you have temporary exclusive user leading to permanent non-exclusive user, i.e. the easement. That conclusion I reach simply on the construction of the Ordinance.

23. I am also minded to reach it as a matter of general law. An easement gives rights over land which may be very extensive, but I think as a matter of law they have to stop short of exclusive possession. That is a conclusion which I think is supported by Halsbury's Laws 4th Edn. vol. 14, paragraph 34; and Gale on Easements, 14th Edn. pp. 30-36. So that when Mr. Litton submits that the phrase "Temporary Easement" is in this context a contradiction in terms. I think he is right. I think the draftsman of the original scheme thought that easement could mean temporary right of occupation, and from that mistaken belief, a lot of the problems of language arise in this case.

24. I then have to consider what the effect of this is. I am going to consider that under two headings: first fact and second 1aw.

25. First of all, what is the effect in fact? What were the consequences of this mistake? Was anyone misled or could anyone reasonably have been misled? My conclusions under this head are these. First, I have had no direct evidence at all that anyone was in fact misled in reading either the original or the amended scheme. Neither plaintiff advances any such assertion. The contrary inference (if any) is to be drawn from the conduct of the tenants who vacated in October and September of last year, presumably upon the basis that they recognised they could not continue in parallel occupation with the contractors. Secondly, the word consistently used throughout these documents is "temporary". The temporary right, and probably the only temporary right (because I cannot think of any other) envisaged by this Ordinance, is the right of temporary occupation. Thirdly, the land comprehended by the phrase 'Temporary Easement' in both the scheme and the annotation on the plans is always within the defined boundary of the "works area's. To me the concept of shared possession of a works area with a contractor is totally unreal. Fourthly, the actual descriptions used in the documents, both in paragraph C of the original scheme and in paragraph D of the amended scheme, seem to me to make it quite clear that this is an area which is to be used by the contractor for working purposes. The original description talks in terms about accommodating site offices and the storage of construction materials and equipment. One has to remember the amended scheme is an amendment to that, when the same terminology is used.

26. From these documents, I therefore conclude that no one reading them was misled, and no one reading them cause reasonably have been misled. I think the layman reading these documents would have said "this was a contractor's working space". The lawyer may have been more puzzled because he would have understood, perhaps, what the meaning of the word 'easement' was. But when he put that word in this context, I think he would readily have come to the conclusion that the author of the document, whom he might pompously, if he were a lawyer, say "must be an engineer" did not understand the correct use of the word that he was using. I do not believe that anyone reading these documents could have thought that the intention was to provide for non-exclusive use for three and half years, or for anything less than temporary exclusive occupation.

27. When I come to the Order of 24th July, it seems to me that the terms of this confirm this conclusion. Because the author there, is careful not simply to rely upon the description 'temporary easement'. He adds to it, the description "temporary occupation". It may be tautologous because it is plain to me that the phrase 'Temporary Easement' has meant 'temporary occupation' throughout all the documents. He is adding it in to make that clear, and he is adding it in with the conjunctive 'and'. That seems to me significant. I cannot read this document as saying that anything other than 'temporary easement' and 'temporary occupation' relate to all these lots in that Order. There is no room for any disjunctive reading so that anyone can say: "I do not know whether I am affected by 'temporary easement' or 'temporary occupation"'. The same observations can be applied to GN 2500, the Notice. I am not at all surprised, in the circumstances, that the tenants, when facing with that documentation, surrendered and left site.

28. That seems to me to be the effect of these documents in fact. I then have to consider what their effect is in law. The question seems to me to come down to this: is section 5 to be read as mandatory or as directory? There is a fundamental distinction between the two, which is described by Mr. De Smith in his book Judicial Review of Administrative Action, 4th Edn. at p. 142 in these words, which are identical in fact to those approved by Templeman, J. from the 3rd Edn. in Coney v Choyce (1975)1 All E. R. 979 at p. 988. He says this: "The Courts must therefore formulate their own criteria for determining whether the procedural rules are to be regarded as mandatory in which case disobedience will render void or voidable what has been done, or as directory, in which case disobedience will be treated as an irregularity, not affecting the validity of what has been done (though in some cases it has been said there must be "substantial compliance" with this statutory provision if the deviation is to be excused as a mere irregularity). "

29. That is the contrast. It is well illustrated by the decision in London Clydeside Estates Ltd. v. Aberdeen District Council & others (HL) (1980)1 W.L.R. 182. In that case the House of Lords held that the particular statutory provision was mandatory. In those circumstances, subsequent conduct did not matter, and particularly, it did not matter whether anyone was in fact misled. That was an irrelevant consideration. Failure to comply with a mandatory provision ipso facto rendered what was done void without further enquiry. That was a conclusion plainly reached by Lord Hailsham at 186, and Lord Fraser at p.195. That is the conclusion upon which Mr. Litton particularly relies. This he says, enables him to ignore the whole of the consequences on the facts. He can simply point to the misuse of the word 'easement' and the mandatory rule takes over.

30. The contrary conclusion, if the section is to be construed as directory, was likewise considered by Lord Hailsham, admittedly obiter at p. 189 where he says: "What the Courts have to decide in a particular case is the legal consequences of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the Courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities." He concludes in these words over the page; "the jurisdiction is inherently discretionary, and the Court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind. "

31. Another useful test is to be found in the decision in Montreal Street Railway Co. v. Normandin (1917) AC 170 where the opinion of the Privy Council at 175 contains this. "Where the provisions of a statue relate to the performance of a public duty, and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who had no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done. " I could likewise cite the rest of pages 142 and the top of page 143 where Mr. de Smith suggests other practical tests.

32. Applying those tests, I frankly do not see how I can start to read Section 5 of this Ordinance as other than as directory, or how I can start to impose the requirements and consequences of a mandatory reading upon it. First of all, it seems to me almost classically directory because it tells the Secretary what he has to do as the very first step, in what may be a protracted chain of events leading to the Governor-in-Council objections amendments and so on. The imperative parts of the section are comparatively few. They start with the words 'he shall cause to be prepared a plan' and "a scheme annexed to the plan in which he shall ......". Then when one looks beyond those words, one finds that the plan is to show land which "may be resumed" or other rights which "may be created". When you go on to paragraph 5(b)(iii), it is not definition of the rights but an indication of the nature which it required. Following that initial stage, the matter can go through any number of sea changes by reason of directions from the Governor-in-Council. It would seem to me quite extraordinary, and with respect plainly contrary to the intention of the legislature, should some failure at stage 1, vitiate the whole scheme and force a complete restart.

33. But that would be the effect of giving a mandatory reading to this section. Take this case. If a mandatory reading is given to the strict requirement of the use of language, it would follow that everything done in relation to land covered by the phrase 'temporary easement' in the original scheme of 1982 is void. Unless and until an amended scheme went through the Governor-in-Council, everything done under that would be illegal, and if the matter was then to be considered by the Governor-in-Council, there may be a series questions as to whether retrospective validity and effect could be given now, four years after the event, to anything that has been done. This is a result which seems to me quite unreal.

34. Mr. Litton relied heavily upon the connection between Section 5 and Section 15(1). I accept that that is very close. I accept that the Governor's power under Section 15(1) are limited by what has appeared in the original scheme. That is what the section says. But that does not mean that one has to look for this purpose to the form and not to the substance. Mr. Litton naturally argues literally. He says that the phrase 'temporary occupation' was not used in the original scheme; it was used in the Order; ergo the Order is ultra vires. Literally he is right. But, if one looks at the substance of the matter, there has been no change of substance. There has simply been an enlargement of the language to give effect to the true meaning of the original. There has been no extension at all. If anything, there has been a narrowing. Because it is emphasised that the rights in respect to this area are temporary and give rise not to any true easements or permanent rights at all. That conclusion can readily be reached by reading Section 5 in a directory manner; looking to the substance; and then seeing that there has been, in fact, no alteration. I do not think myself that so reading Section 5 and Section 15 in any way impairs their substance or effect at all.

35. If, as I conclude, Section 5 is given a directory reading, and I have in Lord Hailsham's words "a spectrum of possibilities" arising on a discretionary remedy, it seems to me extremely difficult to find any good reason for exercising discretion in the plaintiff's favour. First on ultimate analysis, this is a failure of language, not a failure of substance. It is a failure by the original draftsman, carried through both schemes, to understand the true meaning and limitations of the work 'easement'. But as I have already indicated and found, I do not believe that anyone was misled, or that anyone was in fact likely to be misled. These plaintiffs certainly were not. They may have been persons aggrieved but they are not persons who are misled. The same point applies with identical force to the original schemes to the amended scheme. I accept that to these plaintiffs, this land is very important. But in the context of the amended scheme, their land is very small compared to the totality of the amended scheme; and in the context of the original scheme it is totally insignificant. To strike down the original scheme now as illegal would be positively grotesque in my view. It is equally unreal, to try and draw a distinction between the original scheme and the amended scheme, which does not really exist, and then having done that to say it is proper to strike down the amended scheme leaving the original intact.

36. Therefore in my judgment, this attack on the Order is purely a matter of semantics. It is purely a matter of language. It does not go to the substance of the Order at all. Fault, there was; but it is a fault which I regard as trivial in the circumstances. In other respects, there was (if this is required, which I doubt) substantial compliance with Section 5. Therefore in my judgment, this attack on the validity of the Order fails.

37. I then have to consider the second question as to whether the Order empowered the infilling of the fish pond and whether this was in the words of the Order and of Section 15 "for the purposes of or incidental to the works described". Again I have great sympathy with these plaintiffs. I accept it must be heart breaking to watch ancient ponds being filled in, and in their view in the process permanently destroyed; worse still when it is done simply to provide working space for contractors; and yet more offensive when it is done under a label of temporary user. They may well think that the concepts of temporary user and permanent destruction are totally inconsistent. But I regret to say I can see no escape from the conclusion, that even if their worst fears are well founded, the plaintiff's remedy and their only remedy is in compensation. Their's is one of many ponds shown on this plan. The plans have been approved expressly for temporary easement, which I construe in the context as temporary occupation to provide working space and a works area. A contractor cannot use a pond for the storage of site offices, material and equipment. It therefore seems to me quite impossible to argue that the filling in and levelling out of these ponds were not within the words I have just quoted from Section 15(1). The filling of the pond for that purposes is identical to the need for filling in the ponds which lay where the roads are themselves to run. That is the test. There is no need in my judgment for any specific authority in a case like this under Section 15(3) for something as basic as this. On my initial reading of Part 2 in schedule, I had doubts at one stage about the adequacy of the compensation, if the plaintiff's views on the final destruction of this pond should be well founded. If there is anything in these doubts, then the most appropriate remedy from the outset was resumption. Therefore, I am, for my part, not sorry to hear that that machinery has already been put in motion.

38. In those circumstances, in my judgment, this attack under both heads fails. It is therefore not necessary for me to deal with any of the other points which have been canvassed in this case. But because I am conscious that this is a matter of great importance to the plaintiffs, and they may wish to take the matter further, and the Court of Appeal might conceivably be interested in what I might have done on a different view of the facts, I propose very tentatively to deal with them.

39. I can dismiss Section 36 very quickly. I cannot see how that helps the Crown in this case at all. All it seems to me to do is to make conclusive the statement in the Order that 'the user was, for the purposes of, or incidental to the works' and no more.

40. The combined effect of sections 25 and 26 is a very different matter. This is a question of much wider importance. But for the imperative of an early judgment, I would have much preferred to have taken time to reflect upon their meaning and effect. My views are not only obiter, they are preliminary and tentative. The question is what would have been the effect of these two sections, had I taken the converse view of the legality of the order. It is common ground the word "authorised" in those two sections means purported to be authorised or authorised in fact. There is no doubt that what was done here was purported to be authorised in fact. It follows that section 25 precludes the Court from making any order against either defendant, restraining anything, i.e. from proceeding with the roadworks or compelling anything, i.e. re-instating the fish pond. In addition to that, on the facts it is accepted, that this is not a case where on ordinary principles, the Court would be justified in making a mandatory order. It follows that that the real relief which both plaintiffs are seeking is simply not available. Section 26 likewise precludes any claim against either defendant, consequential upon any findings of illegality or otherwise, for monetary compensation or damages other than for compensation under the Ordinance. This means that there is only one possible remedy open which is the remedy of a declaration. It has no practical effect; it cannot be ancillary to, or lead to, any other relief; and it would not stop the present resumption process from proceeding.

41. Mr. Litton urged me to grant a declaration basically on two broad grounds. First he submitted that the granting of a declaration is not excluded by the combined effect of these two sections. He submitted that the sections do not exclude Judicial Review; and to exclude Judicial Review much clearer words were needed than these. He compared the position with that which operates in England as revealed in the cases of Smith v. East Elloe R.D.C. 1956 AC 736 and ex parte Ostler (1976)3 All E. R. 90. These show that in the relevant planning legislation, parties are given 6 weeks to challenge the equivalent of an order under this Ordinance, and that if they do not present their challenge within 6 weeks the statute goes on to say that the order "is not to be questioned in any proceedings. " These words plainly are much more precise and specific than anything one has got in sections 25 and 26. Mr. Litton's argument proceeds-on Judicial Review the Court could grant a declaration, and therefore equally it should be free to do so on an application by originating summons.

42. I go along, I think, with half of that. I go along with his submissions that Judicial Review is not excluded by these sections, and that on Judicial Review, it would be open to a Court to grant a declaration. But this only shows that I have jurisdiction. Whether that jurisdiction should be exercised when Judicial Review has not been sought and having regard to the other confining effects of section 25 is a very different matter.

43. Secondly he put it on broader ground that I should grant it to vindicate the Man family; to show that the Government was wrong; by way of rebuke to Government as a sort of moral imperative; and because it was relevant to costs. I minded to think that the question is very much narrower than that. It does not seem to me that costs should be directly affected by this or by whether in fact a particular label was attached to the end of the judgment. Equally winning or losing, the moral imperative, should not I would have thought depend upon this, but upon the substance of the judgment. The much narrower question seems to me whether a Court should grant a declaration which is about as bare as any declaration could be, not as an alternative to a Judicial Review but when Judicial Review has not been and cannot now be claimed.

44. I confess that my mind has fluctuated a great deal on this. But in the end, putting myself in this hypothetical position, I think I would have been constrained to conclude that it is not the function of the Court to grant declarations in these sort of circumstances because the declaration would add nothing, by way of moral imperative, (if it has any value at all) to what would otherwise have appeared in the judgment. Those remarks are added simply in case anyone hereafter should be interested in what might have been. I base my decision upon my conclusion that the main grounds of attack fail in both respects.

Representation:

Mr. Henry Litton, Q.C., Mr. J. Kwong instructed by M/S William Sin & Co. for Plaintiffs.

Mr. John Burdett, Senior Crown Counsel for 1st Defendant.

Mr. William Stone instructed by M/S Denton, Hail, Burgin & Warrens for 2nd Defendant