Delight World Ltd v. The Town Planning Appeal Board

Headnote

[(1) The correctness of the decision in Mutual Luck Investment Ltd. v. The Attorney-General (HCMP 2065/95) - that a Justice of Appeal was not a "public officer" for the purposes of section 17A(2) of the Town Planning Ordinance (Cap.131) - was not affected by the legislative history of section 17A(2) or by various statements made in the Legislative Council.

(2) Uncertainty as to whether a subsequent event would render it impossible for a particular development to proceed was not in law a valid ground for refusing planning permission for that development, since such planning permission could be conditional on the development not proceeding until it was known whether the subsequent event would occur.]

1996 M.P. No. 197

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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Coram: The Hon. Mr. Justice Keith in Court

Dates of hearing: 18-20 June 1997

Date of handing down of judgment: 13 August 1997

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J U D G M E N T

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INTRODUCTION

1. The Applicant, Delight World Ltd. ("the Company"), owns various lots of land in the New Territories. In March 1994, it applied to the Town Planning Board ("the Board") for planning permission for a residential development. In June 1994, the Board refused the application. The Board subsequently reviewed its decision, and in January 1995 it again refused to grant the permission sought. The Company appealed against that refusal to the Town Planning Appeal Board ("the Appeal Board"). On 18th October 1995, the Appeal Board dismissed the appeal. The Appeal Board's decision to dismiss the Company's appeal is the decision now challenged on this application for judicial review. All references in this judgment to a section of an ordinance are references to sections of the Town Planning Ordinance (Cap.131), unless otherwise stated.

THE CHAIRMAN OF THE APPEAL BOARD

2. A preliminary question arises on the constitution of the Appeal Board. The panel of the Appeal Board which considered the Company's appeal was chaired by Mr. Justice Litton. He was, at that time, the Chairman of the Appeal Board. Mr. Justice Litton was also a Justice of Appeal, and a Vice-President of the Court of Appeal. Since May 1996, a Justice of Appeal has not been eligible to be on the panel of persons appointed to act as members of the Appeal Board under section 17(B). However, the Company contends that a Justice of Appeal was not even eligible to be a member of the panel at the time when the Appeal Board considered its appeal. That is because section 17A(2) then provided:

"The Governor shall not appoint a member of the Board or a public officer to the Appeal Board panel."

The Company argues that a Justice of Appeal is a public officer within the meaning of section 17A(2) as it then was.

3. The question whether a Justice of Appeal is a public officer within the meaning of section 17A(2) as it then was was considered in Mutual Luck Investment Ltd. v. The Attorney-General (HCMP 2065/95). It was held that a Justice of Appeal is a public officer within the meaning of section 3 of the Interpretation and General Clauses Ordinance (Cap.1). However, the definitions in section 3 do not apply "where the contrary intention appears ... from the context of any other Ordinance". It was held that a contrary intention did appear from the context of the Town Planning Ordinance. The court's reasons were as follows:

"... the Appeal Board panel adjudicates in disputes between private citizens (usually, but not necessarily, developers) and the Government. The intention could have been to exclude anyone who works in Government on the ground that persons who work in Government might be perceived as having an interest in furthering the Government's aims by having the dispute resolved in the Government's favour. I regard that as [the] more likely rationale for the exclusion of public officers ... However, there is a significant distinction between Justices of Appeal (indeed all judges) and other people who work in Government. They perform their duties wholly independently of Government control, and they enjoy tenure in their office which civil servants do not enjoy. Although they are public officers in the sense that they hold offices of emolument under the Crown, their independence from Government control and their security of tenure is such that the rationale for excluding public officers from the Appeal Board panel simply cannot apply to them. All judges, and particularly Justices of Appeal, are regularly called upon to adjudicate in disputes between private citizens and the Government, and it cannot be said that their independence in doing so is somehow compromised because they hold offices of emolument under the Crown. Indeed, it could hardly have been intended to exclude from participation in a quasi-judicial process persons who are pre-eminently qualified to participate in that process."

The court therefore concluded that a Justice of Appeal is not a public officer within the meaning of section 17A(2) as it then was.

4. In the present case, Mr. Robert Kotewall S.C. has taken me through the legislative history of section 17A(2), and to various statements in the Legislative Council. The legislative history of the section and these statements were not brought to the court's attention in the Mutual Luck case, and Mr. Kotewall argues that the court's decision would have been different if they had been.

5. The relevant history is as follows. In 1991, it was decided to amend the Town Planning Ordinance to provide an appeal procedure for persons aggrieved by decisions of the Board on reviews under section 17. The Appeal Board was to be created. The legislative proposals were contained in the Town Planning (Amendment) No.2 Bill 1991 ("the Bill"). In the Bill, the only persons not eligible to be members of the proposed Appeal Board were members of the Board. However, representations on the Bill were made by interested bodies to the Ad Hoc Panel of the Legislative Council which considered the Bill. The debate on the resumed Second Reading of the Bill shows that those bodies wanted the new appeal system to be independent, not merely of the Board, but also from "the government administration". Their view was that "no government official or any one who has a vested interest in a case should be appointed to hear it."

6. The Panel accepted that view, and its Chairman reported that "government officials" should not sit on the Appeal Board: see Hong Kong Legislative Council, Reports of Debates, 17th July 1991. As I read the debate, it was for that reason, and for that reason alone, that the Bill was subsequently amended to make public officers, as well as members of the Board, ineligible for membership of the Appeal Board. That reason was the same as that which the court had identified in the Mutual Luck case as being the likely rationale for the exclusion of public officers.

7. Two points were taken by Mr. Kotewall. The first relates to another issue which was discussed in the debate. That issue was who should be the Chairman of the Appeal Board. It had been suggested to the Panel that the Chairman "should preferably be a District Court Judge". On the other hand, the Administration had reservations about the appointment of a judge. Two reasons were given: (i) the Appeal Board was an administrative body and not part of the judicial system, and (ii) it was impractical to appoint a judge because of a shortage of judges. The Administration's proposal was that a senior lawyer should be appointed. That was the view which the Panel adopted. Mr. Kotewall argued that since it was not thought appropriate for a judge to be appointed as Chairman of the Appeal Board, it could not have been intended for a judge to be a member of the Appeal Board.

8. I see the force of that argument, but I cannot go along with it. I accept that the reasons for the view that a judge should not be the Chairman of the Appeal Board could equally apply to whether a judge should be a member of the Appeal Board. But the Reports of Debates in the Legislative Council can only be used as an aid to statutory construction if the statements they contain amount to a clear expression of legislative intent. The plain fact is that there is nothing in the reports which show that it was intended to apply the objection to a judge being Chairman of the Appeal Board to a judge being a member of the Appeal Board. It may be that if the Legislative Council had addressed the question of whether a judge should be ineligible for membership of the Appeal Board, it would have decided that a judge should be ineligible. But in the absence of a clear statement to that effect, the limitations on the application of the principles in Pepper v. Hart [1993] AC 593 prevent me from making the leap of faith which Mr. Kotewall asks me to.

9. Mr. Kotewall's second point related to what happened in 1996. Although the legal challenge in the Mutual Luck case to Mr. Justice Litton's membership of the Appeal Board panel had failed, it was thought appropriate to confirm that a judge should not be ineligible for membership of the Appeal Board panel. That legislative proposal was contained in the Town Planning (Amendment) Bill 1995. Two things are apparent from the debate on the resumed Second Reading of the Bill: see Hong Kong Legislative Council, Reports of Debates, 24th April 1996. First, the Bills Committee took the view that there was nothing objectionable in a judge per se being a member of the Appeal Board panel. Secondly, the Bills Committee thought that a Justice of Appeal should not be a member, "because it might cause embarrassment if a High Court Judge was asked to quash the Appeal Board's decision which was made by a Justice of Appeal sitting as Chairman/Deputy Chairman of the Appeal Board". The Administration accepted the Bills Committee's view, and an amendment was made at the Committee stage to reflect that. The result was that in the Town Planning (Amendment) Ordinance (No.14 of 1996), section 17A(2) was repealed, and new sections 17A(2) and 17A(2A) were substituted as follows:

"(2) The Governor shall not appoint -

(a) a member of the Board;

(b) a public officer;

(c) a Justice of Appeal,

to the Appeal Board panel.

(2A) For the avoidance of doubt, in subsection (2), 'public officer' does not include a judge of the High Court of Justice, a recorder of the High Court of Justice, a deputy judge of the High Court of Justice or a District Judge."

10. Mr. Kotewall argued that all of this shows that had the matter been addressed in 1991, it would not have been thought appropriate for a Justice of Appeal to be eligible for membership of the Appeal Board panel. That may be so, but the fact is that the possibility of embarrassment to a High Court Judge in having to pass judgment on decisions in which a Justice of Appeal participated was not considered in 1991. Since the problem identified in 1996 about a Justice of Appeal being a member of the Appeal Board panel was not considered in 1991, there would have been no legislative intention in 1991 to exclude a Justice of Appeal from membership of the Appeal Board panel on that ground.

11. It follows that Mr. Justice Litton was eligible to act as Chairman of the panel of the Appeal Board when he considered the Company's appeal. In these circumstances, it is unnecessary for me to consider the interesting argument deployed by Mr. Nicholas Cooney for the Board - that even if Mr. Justice Litton had been ineligible, the de facto doctrine (explained in Wade & Forsyth, "Administrative Law", 7th ed., pp.326-328) would have prevented the dismissal of the Company's appeal from being declared null and void.

THE SITE

12. The site which the Company wishes to develop is just to the west of the village of Kam Tin. It falls within the Kam Tin North Development Permission Area Plan ("the DPA Plan") prepared by the Board. A draft of the DPA Plan was published in July 1991, and was approved by the Governor-in-Council in April 1994. When the draft DPA Plan was published, the site was largely cultivated, with fishponds to the north-west of the site. However, the site has not been cultivated since the Company began to purchase the site in parcels a few years ago. The site remains a green field site to this day: the land lies fallow and the fishponds have been abandoned.

13. The DPA Plan designated certain parts of the area covered by it for specific uses. However, it did not designate the area in which the site was for any particular use. The Notes to the DPA Plan (which form part of the Plan) provided that with certain exceptions any development in an "unspecified use" area required planning permission from the Board. The development which the Company proposed did not fall within any of the exceptions, and planning permission for the development was therefore required.

14. The development for which the Company sought planning permission consisted of (a) 16 apartment blocks, each with 4 storeys, comprising 384 flats, (b) 15 houses, each with 4 storeys, (c) 599 car-parking spaces at basement level, (d) a club-house, and (e) a swimming pool. The proposed plot ratio was 0.8, and it was anticipated that the development would provide accommodation for 1,197 people.

THE EXPLANATORY STATEMENT

15. The DPA Plan was accompanied by an Explanatory Statement. This statement did not form part of the DPA Plan, and was prepared, not by the Board, but by the Planning Department. In Henderson Real Estate Agency Ltd. v. Lo Chai Wan [1997] HKLRD 258, it was said at p.262A-B:

"This distinction is not so technical as it may seem. Whereas the public can object to the DPA plan and the Notes [to it] ..., there appears to be no opportunity to lodge objections to the Explanatory Statement."

16. The Explanatory Statement noted that the area covered by the DPA Plan was about 603 ha. The area was "essentially a flat plain comprising agricultural land, fish ponds and villages". It noted that in recent years, "massive areas of agricultural lands and fish ponds [had] been converted into open storage and individual uses ... Most of these industrial establishments are accommodated in temporary structures developed in an uncontrolled and unplanned manner." The Explanatory Statement concluded:

"The unregulated open storage and industrial uses have led to the degradation of the rural environment and created a number of problems, such as pollution, flooding, traffic congestion and visual blight. Such uses have prejudiced Government's land use intention for the area. [Accordingly], there is an immediate need for planning and development control in the Area."

17. The Explanatory Statement noted that about 474 ha. of the area had not been designated for any particular use in the DPA Plan. As the Appeal Board pointed out, in an area as large as that, the planning intention cannot be uniform throughout. The land use over the whole of the area not designated for any particular use could differ considerably. Accordingly, the Explanatory Statement divided the area which had not been designated for any particular use into four large sub-areas. Sub-area (iii) was designated as follows:

"Cheung Chun San Tsuen sub-area. Agricultural uses (especially pond fishing) in [this sub-area] will be encouraged as far as possible and recreational uses (including ancillary facilities) which are generally compatible with the rural environment and are unlikely to adversely affect local communities may also be permitted."

This was the sub-area in which the Appeal Board said the Company's site was.

18. The Explanatory Statement went on, in para. 6.2.5, to make some general observations about the areas which had not been designated for any particular use:

"(c) Agricultural uses in these areas will be encouraged as far as possible and recreational uses (including ancillary facilities) which are generally compatible with the rural environment and are unlikely to adversely affect local communities may also be permitted. The main planning objectives of this land use designation are to identify non-urban areas where appropriate forms of agriculture and rural activities can be sustained to prevent unwanted urban growth and to enhance the quality of the environment. Residential development in compliance with the conditions of the 'On-Farm Domestic Structure' scheme may be permitted where it is established that a dwelling is necessary to support the agricultural use.

(d) There may be areas where private initiatives may wish to provide comprehensive low-rise, low-density residential developments ... mainly through land exchange or lease modification. Applications should be made to the Board. If approved by the Board the developments should be implemented in accordance with the approved master layout plans with adequate provision for government, institution and community uses and recreational facilities to serve these developments. Due regard should be given to minimizing the environmental, drainage and traffic impacts of these developments on the surrounding areas.

(e) For any development within these sub-areas, the owners/developers must demonstrate that their proposals would have insignificant adverse impacts on the environment, traffic and drainage of the area or appropriate measures will be taken by the applicants to minimize such impacts. The submission of master layout plans, landscaping proposals, environmental impact assessments, drainage impact studies and/or traffic impact studies may be required when the proposals are submitted to the Board for consideration."

19. Finally, para. 7.3 of the Explanatory Statement noted that the Board's consideration of planning applications would be guided by the adopted layout plan as well as other planning considerations. The adopted layout plan was a plan which had been prepared by the Planning Department to facilitate major infrastructural planning for the area. It showed that the Company's site had been designated for considerable infrastructural activities. There was nothing in that plan which suggested that the site had been earmarked for residential development - apart from a minute portion of the site, which was a part of the proposed expansion of Kam Tin Village.

THE DRAFT OUTLINE ZONING PLAN

20. A draft Outline Zoning Plan for Kam Tin North ("the draft OZP") prepared by the Board was gazetted in June 1994. It covered the same area as the DPA Plan. Accordingly, on the gazetting of the draft OZP, the DPA Plan ceased to be effective in relation to the land covered by it: section 20(6). However, since the Company's application for planning permission had been made in March 1994, i.e. within three years of the publication of the draft DPA Plan, the Appeal Board was required to consider the appeal "to the extent as shown or provided for or specified in" the DPA Plan: see section 20(6A).

21. The zone in which the Company's site falls was zoned for agricultural use in the draft OZP. Residential development is not permitted in such a zone. In view of the fact that no fresh application for planning permission for any sort of residential development can be made, the only route by which the Company can acquire planning permission for even a reduced residential development (unless the Board decides that the site should be rezoned) is for this application for judicial review to succeed. That explains the importance to the Company of the present application.

THE APPEAL BOARD'S REASONS

22. Two key factors informed the Appeal Board's approach to the Company's appeal. First, the Appeal Board noted that planning control by means of the DPA Plan was relatively short-lived. It is effective for at most four years: see section 20(5). In that context, it referred to para. 2.2 of the Explanatory Statement, which read:

"The plan is to provide guidance for planning and to facilitate development control within the DPA during the period required for detailed analysis of land use pattern, study of infrastructural provisions and examination of development options before the formulation of an outline zoning plan."

These considerations prompted the Appeal Board to conclude:

"A development as large as this, once authorised, may have the effect of pre-empting future patterns of land use. Obviously, therefore, the [Board] must tread very warily in dealing with applications such as the [Company's]."

23. This approach is criticised by Mr. Kotewall. If the refusal of planning permission is attributable in a particular case to so cautious an approach, it amounts, in effect, to the imposition of a temporary moratorium on development in areas not specified for any particular use. Indeed, the Privy Council has rejected the thinking behind this approach. In Henderson, it was argued (at p.266I) that:

"since the DPA plan was only intended to have a life span of three years, or four at the most, and was in that sense a 'stop-gap' until it could be replaced by the OZP, it cannot have been intended that permission for permanent development on a large scale should be granted in the meantime."

The Privy Council rejected that argument. It said (at p.266J):

"... if that had been the intention, it would have been simple enough to impose a restriction in the Notes attached to the plan. No such restriction was imposed. Their Lordships do not see how such a restriction can be implied."

There was no such restriction in the Notes attached to the DPA Plan in the present case.

24. The second factor which informed the Board's approach was its belief that the planning intention for the Company's site was "by and large, for agricultural use". Two factors in particular contributed to that belief. First, the Explanatory Statement stated that agricultural uses would be encouraged (and compatible recreational facilities may be permitted) in the particular sub-area which the Appeal Board thought the Company's site was in. Secondly, the zone in which the Company's site fell was zoned for agricultural use in the draft OZP.

25. Mr. Kotewall subjected this approach to considerable criticism as well. The draft OZP was irrelevant in view of section 20(6A): that was recognised by the Privy Council in Henderson at p.264 H-I. If it had been intended to preserve the area which comprised the Company's site for agricultural use, the DPA Plan could have expressly provided for that pursuant to sections 4(1)(b) or 4(1)(h). To adopt the language which the Privy Council in Henderson used at p.268E when dealing with a similar point, "it would have been easy enough to say so by designating the ... area [a zone set apart for agricultural use]." The fact that the Company's site was in a sub-area for which no particular use was specified meant that no planning intention had been assigned to it.

26. As for the Appeal Board's reliance on the Explanatory Statement (which was questionable in view of the fact that it did not form part of the DPA Plan, but represented the view of the Planning Department rather than the Board), two complaints, broadly speaking, are made. The first is that the Appeal Board erred in thinking that the Company's site fell within sub-area (iii). It therefore erred in thinking that the planning intention for that sub-area was relevant. The four sub-areas were not shown or described in either the DPA Plan or the Notes to it, the Company's site was some distance away from Cheung Chun San Tsuen, and the sub-area which it was in fact closest to was sub-area (iv), which was described as "the sub-area north-east of Kam Tin Shi". The second complaint is that the Board either misunderstood or gave no weight at all to paras. 6.2.5(d) and 6.2.5(e) of the Explanatory Statement. These two paragraphs were, apart from necessary changes, identical to the equivalent paragraphs in the Explanatory Statement in Henderson. It was said at p.267G that they

"show that comprehensive residential development is not ruled out altogether provided it is low-rise and low-density, and provided 'appropriate measures' are taken to minimise the impact on the environment."

27. These are powerful arguments, but it is easy to be wise after the event, and in defence of the Appeal Board it should be emphasised that the Privy Council's judgment in Henderson (which was a spilt decision of 3:2) was rendered well after the Appeal Board's decision in the present case. However, before I decide whether it is necessary for me to determine whether these arguments are correct, I ought to consider two other grounds on which the Appeal Board dismissed the Company's appeal, because Mr. Cooney argued (in my view, correctly) that this application must fail if either of those two grounds are upheld. That is because the Appeal Board itself regarded both of these two grounds as "insuperable" difficulties facing the Company. Had they, or either of them, been the only reasons for refusing planning permission, the Appeal Board would inevitably have dismissed the appeal.

THE KAM TIN BYPASS

28. The proposed Kam Tin Bypass cuts across the south-east corner of the site. By October 1995, when the hearing before the Appeal Board took place, the project was at a relatively advanced stage. The works which the Secretary for Transport proposed were due to be gazetted under the Roads (Works, Use and Compensation) Ordinance (Cap.370) ("the Roads Ordinance") in January 1996.

29. The Company met this difficulty by proposing a different route for the Bypass. That route would skirt the site but would not cut across it. However, it would be much closer to Kam Tin village, and it would run across land which, according to the adopted layout plan, had been thought of as an area into which Kam Tin village could expand, and land on which an indoor recreation centre, a swimming pool and an all-weather sports pitch had been contemplated. In order to reduce the noise which the Bypass would cause to local villagers (including a nearby school), the Company proposed the erection of noise barriers.

30. The Appeal Board declined to adjudicate between the two proposals. It noted that the Company contended that its proposals for the Bypass were far better than those proposed by the Secretary for Transport. At the same time, the Appeal Board envisaged the possibility of the inhabitants of Kam Tin objecting to the Company's proposals. Both those objections - and the Company's objection to the Secretary for Transport's proposals - would be considered in accordance with the procedure laid down in the Roads Ordinance, and the Appeal Board presumably thought, though it did not say so expressly, that it would be wrong for it to pre-empt that procedure by determining which of the proposals had the greater merit. In my judgment, the Appeal Board was entirely correct to adopt this approach. To embark on a consideration of the comparative merits of the two schemes would have been to usurp the functions of the Chief Executive-in-Council under the Roads Ordinance.

31. It is what the Appeal Board went on to conclude which is more contentious:

"... so long as there exists a real possibility that the bypass may in fact cut across the site, requiring resumption of a substantial part of the site, the development proposal clearly cannot go ahead. Putting the [Company's] case at its highest, that possibility clearly exists."

I cannot go along with this reasoning. It does not follow that because the Bypass might cut across the site, therefore the Company's application for planning permission had to fail. What the Appeal Board ignored was the well-settled distinction in planning law between the grant of planning permission and its implementation. That principle was explained by the House of Lords in British Railways Board v. The Secretary of State for the Environment [1994] J.P.L. 32 at p.38 as follows:

"... there was no absolute rule that the existence of difficulties, even if apparently insuperable, had to necessarily lead to refusal of planning permission for a desirable development. A would-be developer might be faced with difficulties of many kinds ... If he considered that it was in his interests to secure planning permission notwithstanding the existence of such difficulties, it was not for the planning authority to refuse it simply on their view of how serious the difficulties were."

Thus, if planning permission would have been granted but for the uncertainty as to the routing of the Bypass, planning permission could have been granted, but subject to the conditions that (a) the development should not commence until the final routing of the Bypass had been determined, and (b) if it was eventually decided that the Bypass should be routed across the site, the planning permission would lapse. I see no bar to the imposition of conditions of this kind. Section 16(5) gives the Board wide powers to impose conditions on the grant of planning permission - "such conditions as the Board thinks fit". Conditions of this kind are well-known to planning lawyers: they are called "Grampian" conditions - named after the decision of the House of Lords in Grampian Regional Council v. Aberdeen District Council (1984) 47 P. & C.R. 633 - and they provide that approved developments should not be commenced until some event, in that case the closure of a section of public road, had taken place.

32. I have considerable sympathy for the Appeal Board. It does not look as if the British Railways Board case was cited to it, or that the principle which it enunciated was brought to its attention. But for the reasons I have given, although the uncertainty at the time of the hearing over the eventual routing of the Bypass would have turned out to be an insuperable difficulty if the Secretary for Transport's proposals are approved, that uncertainty should not have been treated as so insurmountable a hurdle at the stage at which planning permission was sought.

THE KAM TIN DRAINAGE CHANNEL

33. It was common ground that the development for which the Company originally sought planning permission could not be built. That was because a part of the site was to be resumed for the Kam Tin drainage channel. That directly affected 5 of the 16 apartment blocks, and would have had a knock-on effect on the rest of the development. Accordingly, the Company accepted at the hearing before the Appeal Board that such planning permission as it may be granted would have to be conditional, i.e. subject to the submission of a revised master layout plan to the satisfaction of the Director of Planning or the Board. A hand-written sketch was produced to give the Appeal Board some idea of what the new configuration of the development might look like. The Appeal Board rejected this suggestion. It said:

"... the effect of [what the Company is seeking] would be that the [Company] is to be given planning permission for a residential scheme which, even now, has not been set out on paper. That we cannot do. In this context ..., a scribbled sketch ... is of no value to anyone whatsoever. It cannot be seriously suggested that the Director of Planning can form any judgment on the basis of [it]."

34. Mr. Kotewall criticised this approach. The condition which the Company proposed be attached to the grant of planning permission had been suggested by the Planning Department. Again, the Appeal Board, so it is said, overlooked the distinction between the grant of planning permission and its implementation. I cannot accept these arguments. The condition to be attached to the grant of planning permission had only been suggested by the Planning Department on the basis that this condition would be appropriate if planning permission was granted. And the reason why planning permission could not be granted was not because there were difficulties in putting the planning permission into effect, but because the Appeal Board did not know the details of the proposed development for which planning permission was being sought. All it had to go on was the sketch. That changed the configuration of the access road, and moved the refuse collection point. It did not identify the height of the apartment blocks, or the number of storeys, or whether they were smaller. That affected the site coverage and the plot ratio. Moreover, the changes were bound to have an impact on the amount of open space on the site and the provision of car-parking. The plain fact is that it was not possible for planning permission to be granted on the footing that the details would be worked out later. The details were critical to the decision as to whether planning permission should be granted at all.

35. It is said that all that the Company was doing was seeking planning permission in principle for a development which would be smaller than that to which the application had originally related. In Bernard Wheatcroft Ltd. v. The Secretary of State for the Environment (1982) 43 P. & C.R. 233, it was held that that was permissible. The material part of the headnote reads:

"... there was no principle of law that prevented the imposition on a planning permission of conditions that would have the effect of reducing the permitted development below that for which permission had been applied for except where the application was severable; ... the true test was not whether the development proposed in the application was severable but whether the effect of the conditional planning permission would be to allow development that was in substance not that for which permission had been applied for ..."

I reject this argument. Bernard Wheatcroft is distinguishable from the present case in two respects. First, in Bernard Wheatcroft the proposals for the reduced development were known. Detailed plans explaining them had been prepared. The Secretary of State was therefore aware what the reduced development involved. Secondly, if the sketch is anything to go by, the development was not going to be smaller. The sketch showed that 16 apartment blocks were still contemplated: they were just going to be squeezed into a smaller area.

36. But even if a new master layout plan reduced the number of the blocks, so that the site coverage and plot ratio were not affected, Mr. Kotewall's reliance on Bernard Wheatcroft does not take account of the fact that in that case outline planning permission was being sought for. Outline planning permission was defined in section 42(1) of the Town and Country Planning Act 1971 (the statutory provision in force at the time of the decision of the Secretary of State in Bernard Wheatcroft) as

"planning permission granted, in accordance with the provisions of a development order, with the reservation for subsequent approval by the local planning authority or the Secretary of State of matters... not particularised in the application."

The concept of outline planning permission has not been introduced into Hong Kong. The flaw in Mr. Kotewall's beguiling and elegant argument is that what the Company is in effect seeking to do is to introduce it now.

CONCLUSION

37. It follows that there is no basis on which a successful challenge to the views expressed by the Appeal Board on the effect of the Kam Tin drainage channel can be mounted. Since the Appeal Board would have dismissed the appeal on that ground alone, it follows that even if the Appeal Board's decision had been flawed in other respects, those flaws would not have affected the ultimate outcome of this application for judicial review. It is unnecessary, therefore, for me to determine whether the Board fell into error in the other respects alleged by the Company, and for the reasons I have given this application for judicial review must be dismissed. At present, I see no reason why costs should not follow the event. Accordingly, there will be an order nisi that the Company pays to the Board its costs of this application, to be taxed if not agreed.

Representation:

Mr. Robert Kotewall S.C. and Mr. Anthony Ismail, instructed by Messrs. Bernard Wong & Co., for the Applicant.

Mr. Nicholas Cooney, Senior Government Counsel, for the Town Planning Board.

The Respondent, the Town Planning Appeal Board, was not represented.