Wah Yick Enterprises Co Ltd v. Building Authority
Read the full judgment text of HCMP 1623/1997 on BabelCite. This High Court CFI judgment was delivered on 24 September 1997.
1. The plaintiff wishes to erect a 33-storey block of flats comprising a total of 99 flats, on its site in Yuen Long, New Territories, in accordance with general building plans which were most recently re-submitted to the defendant, the Building Authority, on 29 January 1997. The Building Authority has refused to give its approval to these general building plans on the ground that the proposed development contravenes the draft Yuen Long Outline Zoning Plan No.S/YL/2. The plaintiff now seeks a de
Cited by 14 cases · Cites 4 cases
|
1997, No.MP 1623 IN THE HIGH COURT OF HONG KONG COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS ________________
________________ Coram: Deputy Judge Whaley in Court Dates of hearing: 5, 8, 9 and 11 September 1997 Date of handing down judgment: 24 September 1997 ________________ J U D G M E N T ________________ 1. The plaintiff wishes to erect a 33-storey block of flats comprising a total of 99 flats, on its site in Yuen Long, New Territories, in accordance with general building plans which were most recently re-submitted to the defendant, the Building Authority, on 29 January 1997. The Building Authority has refused to give its approval to these general building plans on the ground that the proposed development contravenes the draft Yuen Long Outline Zoning Plan No.S/YL/2. The plaintiff now seeks a declaration that its proposed development, in accordance with the said general building plans, does not contravene the draft Yuen Long Outline Zoning Plan; and that the defendant's refusal to give approval to the said general building plans is unlawful and hence null and void. 2. The relevant facts and background are set out in a letter written by the plaintiff's solicitors to the plaintiff dated 3 October 1996, in which they generally advised the plaintiff in relation to its proposed development. The plaintiff's site in question consists of three adjacent lots which are all held under a Block Crown Lease, the status of the land being agricultural. The Block Crown Lease contains a restriction under the First Covenant thereof, that land demised as agricultural or garden land shall not be converted into building purposes without the licence in writing of the Governor. In relation to one of the three lots, by a Building Licence dated 10 January 1941, leave and licence were granted to the registered land owner to erect a building on a portion of the lot not exceeding 2,896 sq.ft. in area. It is submitted, and I accept for present purposes, that the Building Licence does not contain any restrictions on the number of storeys, the height of the building or number of flats permitted to be erected, nor does it contain any user restrictions. 3. The site is covered by the draft Yuen Long Outline Zoning Plan No.S/YL/2 ("OZP"). The bulk of the site falls into a "V" zone as delineated on the OZP, namely an area zoned for "Village Type Development". The Notes to the OZP, which in terms of the Ordinance form part of the OZP, show under Column 1 the uses which are permitted at all times in the various zones on the Plan; and under Column 2 the uses which may be permitted by the Town Planning Board, with or without conditions, upon application. Under the heading "Village Type Development Zone", under Column 1, "House" is listed as one of the Uses always permitted. 4. It is under this use that the plaintiff claims that it is entitled to erect its proposed 33-storey block of flats. The Building Authority however refused permission under s.16(1)(d) of the Building Ordinance on the ground that the proposed development does not properly fall within the use "House" as thus provided for in the Village Type Development Zone, and thus contravenes the said OZP. The Notes to the OZP 5. Under the heading "Village Type Development", the Notes provide as follows :
(I note that "Flat" is not one of the uses listed under either Column 1 or Column 2 in the Village Type Development Zone.) 6. Neither "house" nor "flat" are defined in the Town Planning Ordinance, the Buildings Ordinance or the Notes to the OZP. The plaintiff maintains that the use "House" under Column 1 of the Village Type Development Zone is intended to have its ordinary meaning, namely a building for human habitation (Oxford English Dictionary), and that its proposed development falls within such ordinary meaning. The plaintiff relies heavily upon the fact that the notes impose no restriction upon the intensity of the development permitted under the use "House" in the "V" zone, regarding building height, number of storeys, plot ratio, site coverage or maximum gross floor area. It submits that if the OZP intended to restrict the type or height of the "House" which was permitted to be built under Column 1, it could easily and simply have provided for this in the Notes to the Plan. Comparison with other OZP's 7. Indeed, in no fewer than six other OZP's "House" appears in Column 1 as a use always permitted in Village Type Development Zones, but expressly restricted to developments or re-developments not exceeding a maximum building height of three storeys (8.23 metres) or the height of the existing buildings, whichever is the greater. The absence of such an express restriction in the "V" zone in the OZP in question, it is argued, shows that no such restriction or qualification is intended to apply to it. 8. A further comparison reveals that in the Village Type Development Zone of five other OZPs, while there is no general use "house" listed under Column 1, "New Territories exempted house", (which is a low-rise building limited in size to the dimensions set out in Cap.21), is listed as a use always permitted under Column 1; while "House (other than New Territories exempted house)" is listed under Column 2, as being a use which may be permitted upon application to the Town Planning Board. Accompanying "Remarks" specify that any such houses which are permitted under Column 2 cannot exceed a maximum building height of three storeys (8.23 metres) or the height of the existing buildings, whichever is the greater. 9. In three other OZPs "House" is not listed under Column 1 of the "V" Zone, but a "New Territories exempted house" is; while both "Flat" and "House other than New Territories exempted house" are listed under Column 2 as uses which may be permitted upon application, but once again with accompanying "Remarks" making it clear that both these Column 2 uses, if permitted, will be subject to a maximum building height of three storeys or the height of the existing buildings, whichever is the greater. 10. In the Ngau Chi Wan OZP, while there is no general use "house" permitted in the "V" Zone, the following uses are listed under Column 1 : "Flat", "Tenement" and "Village Type House"; no such uses are listed under Column 2. 11. In a further two OZPs under the zoning "Residential (Group C)", no general use of house or flat is listed under either Column 1 or 2, however "House for Single Family" is listed under Column 1, which is further restricted in the accompanying Remarks to buildings not exceeding specified maximum building heights of two or three storeys. 12. The plaintiff submits that the aforesaid comparison with other OZPs clearly demonstrates that where it is intended to limit the height or density of the house or flat which is permitted to be erected, this is clearly stated in the Notes to the relevant OZPs, and the absence of any such stated restrictions upon the use "House" in the "Village Type Development" zone of the subject OZP clearly indicates that no such restriction or limitation are intended to apply there. At the least, if a doubt arises by virtue of the omission to expressly qualify "House" in this context, the plaintiff should be given the benefit of such a doubt.
Comparison with other zones in the subject OZP 13. The plaintiff further submits that the conclusion that no restrictions were intended to apply to "House" in the "V" Zone in question is further fortified by a comparison with other zones in the OZP in question : for example, under the "Residential (Group B)" Zone both "Flat" and "House" are listed under Column 1 as uses always permitted but the accompanying "Remarks" in the notes specify that any new buildings or additions, alterations and/or modifications to existing buildings "should not result in a total development or re-development in excess of a maximum plot ratio of 3, a maximum building height of 12 storeys and a maximum site coverage of 30% ..... Minor relaxation of the stated restrictions, based on the individual merit of each case, may be considered by the Town Planning Board on application under s.16 of the Town Planning Ordinance." 14. Under the "Comprehensive Development Area" Zone ("CDA"), the use "Flat" is listed under Column 2, but the accompanying remarks state that in a specified area of the CDA any buildings should not result in a development or re-development in excess of a maximum plot ratio of 3 and a maximum site coverage of 30%. 15. The plaintiff says that it relies, and is entitled to rely, on the absence of any such stated restrictions to the meaning of the use "House" permitted under Column 1 in the "V" zone of the subject OZP, either as to the plot ratio or height of any building permitted to be erected; such omission cannot have been inadvertent when regard is had to the restrictions which are expressly attached in other zones of the same OZP, and in the other OZP's. The Context of "House" : Village Type Development Zone 16. For the Building Authority Mr Cooney, while conceding that in one ordinary sense of the word "House" might include "Flat", has sought to emphasise the importance of construing "House" in its context in the draft OZP. 17. Most broadly the context is town planning, as opposed to, say, rating or valuation or a term in a restrictive covenant, as in some of the cases cited. More specifically the context is the draft OZP in question, and it is salutary to recall the statutory context in which such an OZP comes into being. Thus s.3 of the Town Planning Ordinance headed "Functions of the Board" provides that :
Section 4 which is headed "Contents of Lay-out Plans and Powers of the Board" provides that :
18. Narrowing the focus further, the precise context in which "House" falls to be interpreted is in Column 1 (Uses always permitted) of the "Village Type Development" zone of this OZP. 19. It is very important, to my mind, to give the description of the zone in which the use "House" appears, its full weight in interpreting the meaning and ambit of the word. The fact that the zone in question has been specifically set apart for "Village Type Development", as opposed to any of the other zones such as Commercial/Residential, Residential (A) or Residential (B), must be a vitally important consideration in construing the meaning of "House" in its context. 20. "Village Type Development" is in its turn nowhere defined. The ordinary meaning of the phrase connotes low-rise and low-density as opposed to high-rise and high-density development; it would not naturally accommodate the plaintiff's proposed 33-storey block of flats, comprising some 99 flats, which is undoubtedly a high-rise and high-density development. 21. Miss Eu submits that the concept "low-rise" is unacceptably vague and uncertain as to what precisely constitutes low-rise, and what is the cut-off point between low-rise and medium-rise or high-rise. In the absence of definite criteria, "high-rise" cannot be adopted as a reason for excluding the plaintiff's proposed development from the ambit of "House". Furthermore, it is essential, in order to decide plaintiff's claim, to first formulate a comprehensive definition of "House" and then decide whether the plaintiff's proposed development falls within such definition. 22. Mr Cooney submits that for the purposes of the present case, it is not necessary to go any further than to interpret house subject to the aforesaid context in which it appears, since it is clear from that context that it does not permit the erection of a 33-storey block of flats in this zone which has been set apart for village-type development. That in itself is sufficient to dispose of the plaintiff's claim. Extrinsic aids : the "Definition of Terms" and the "Explanatory Statement" 23. He submits that the correctness of that interpretation is nevertheless reinforced if reference is had to two documents, neither of which form part of the Plan under the statutory scheme, but both of which shed valuable light on the meaning which should properly be ascribed to "House" in the "V" zone of subject OZP. The first is a booklet published by the Planning Department entitled "Definition of Terms Used in the Statutory Plans"; the second document is the "Explanatory Statement" accompanying the OZP in question, which is also issued by the Planning Department. 24. Ms Eu submits that reference cannot properly be made to either of these documents in construing any of the terms in the OZP, since the status of the OZP is that it is subsidiary legislation and reference cannot properly be made to such extrinsic material to interpret its terms. She relied upon Singway Co. Ltd. v. AG [1974] HKLR 275, and two cases which followed it, namely AG v. C.C. Tse (Estate) Ltd. [1982] HKLR 7 and Auburntown Ltd. v. TPB [1994] 2 HKLR 272 for her proposition that the OZP is subsidiary legislation. 25. Mr Cooney submitted that the basis upon which the court held in Singway that the draft Plans acquired a subsidiary legislative effect - namely that on a proper construction s.16(1)(d) of the Buildings Ordinance did not confer a discretion upon the Building Authority, but obliged it to refuse permission for building plans which contravened any of the draft plans - is no longer good law. Indeed, it was common ground that the aforesaid ratio of Singway has been subsequently overruled and is no longer good law. (See Building Authority v. Head Step Limited [1996] 6 HKPLR 87, in which the Court of Appeal held that the Building Authority enjoys a discretion to approve a building plan under s.16(1)(d) of the Buildings Ordinance even when the building plan contravenes an Outline Zoning Plan.) See also Kwan Kong Co. Ltd. v. Town Planning Board [1995] 3 HKC 254 in which Waung J. held that the Plans produced under the Town Planning Ordinance are not subsidiary legislation. 26. Mr Cooney also relied upon s.34(1) of the Interpretation and General Clauses Ordinance, which provides that subsidiary legislation is required to be tabled before the Legislative Council, and pointed out that draft OZPs are not so tabled. 27. He further submitted that the rule in England that no extrinsic evidence is admissible in interpreting the terms of planning permission is not applicable to the different statutory scheme which exists in Hong Kong. In England planning permission is refused or granted upon specific application by an individual, and once granted it is equivalent to a real right which runs with the land. The relevant authorities are to the effect that since subsequent purchasers may have no knowledge of the facts which prevailed at the time the original application was made, the application cannot be referred to in order to interpret the terms of the planning permission which was granted. 28. In my view OZP's are not subsidiary legislation, for the reasons given above, so that the strict rules relating to statutory interpretation do not apply. (In any event I note that the rule excluding reference to Parliamentary material as an aid to statutory construction was relaxed by the House of Lords in Pepper (Inspector of Taxes) v. Hart [1992] WLR 1032.) 29. Furthermore the considerations which in England militate against having regard to the application for planning permission and other extrinsic material in interpreting the terms of the planning permission, have no application to the interpretation of Column 1 uses provided for in the OZP's, which come into being under the different statutory scheme which prevails in Hong Kong. Application by defendant to introduce affirmations of the Secretary of the TPB 30. In furtherance of his submissions that regard can properly be had to the Definition of Terms and the Explanatory Statement in construing the terms of the OZP, Mr Cooney applied for leave to put in two affirmations of Lo Chai Wan out of time. Lo Chai Wan is the secretary of the Town Planning Board, and in his first affirmation he demonstrated by exhibiting the relevant Papers and Minutes that the Definitions and Explanatory Statement, although issued by the Planning Department (and not the Town Planning Board), had been considered and approved by the Town Planning Board; his second affirmation is sought to be put in in answer to the plaintiff's argument that one reason the Explanatory Statement should not be referred to in construing the terms of an OZP is that a developer might well not know of its existence or contents. Mr Lo exhibits the papers relevant to a previous application of the plaintiff to the Town Planning Board to re-zone the area in which its property is situated from "V" to "Residential (B)", to enable him to erect what was a quite different development from the one which is presently proposed. It was clear from the terms of its application that the plaintiff was well acquainted with the contents of the Explanatory Statement and the intentions and constraints inherent in a "Village Type Development Zone". 31. Ms Eu opposed the application in part because of the lateness of it, which did not allow the plaintiff's legal advisers sufficient time to research the accuracy of the facts deposed to, nor to obtain instructions thereon; and further in relation to the second affirmation that it was not properly speaking relevant, since it is not relevant to demonstrate that the plaintiff, when it made its earlier application for re-zoning, knew of the contents of the Explanatory Statement. 32. In relation to Lo Chai Wan's first affirmation and the material exhibited thereto, this is information which is peculiarly within the knowledge and possession of the Town Planning Board (indeed many of the documents exhibited are headed "Restricted" or "Confidential"). It is not therefore information which the plaintiff would be in a position to rebut, and the lateness of its introduction does not therefore disadvantage the plaintiff. Furthermore the information is clearly relevant to the resolution of the issues in this case. I accordingly give leave for it to be admitted into evidence. 33. In relation to the second affirmation of Lo Chai Wan, since the material which is exhibited to it relates to the plaintiff's own previous application for re-zoning, it is something which the plaintiff is well-placed to deal with promptly should it wish to do so, and in this connection also it is not, in my view, disadvantaged by the lateness of introducing this material. The relevance of this material is more limited than that in the first affirmation. (I should make it clear that there is nothing prejudicial to the plaintiff, to my mind, in the fact that it made an earlier application for the "V" Zone in question to be re-zoned to a Residential (B) zone in order to accommodate a different development from the one which is now proposed. It is perfectly proper for the plaintiff to seek to achieve its objectives by different methods and routes.) Insofar as its relevance is concerned, the fact that the Plaintiff was at that time clearly acquainted with the contents of the Explanatory Statement, while it is certainly relevant, does not significantly detract from Ms Eu's submission, which was a submission of principle and not specific to the plaintiff, that one reason the Explanatory Statement should not be referred to in order to interpret the terms of the OZP is that a land-owner might not know of the existence or relevance of the explanatory statement to the OZP. 34. Although the relevance of the second affirmation is more limited, it is nevertheless sufficient to justify its introduction, and I accordingly give leave for it also to be admitted into evidence. 35. To return to the question whether reference can be made to the Definitions and Explanatory Statement to assist in interpreting the OZP, it is clear from the first affirmation of Lo Chai Wan that although both of these documents were prepared by the Planning Department, they were both considered and approved by the Town Planning Board as documents to be published in order to provide assistance to the members of the public to interpret and understand the provisions of the various OZPs. Furthermore, the revised Explanatory Statement was exhibited for public inspection along with the draft OZP and Notes, on 3 November 1995. I note also that the Explanatory Statement is physically attached to the Notes to the OZP, so that anybody who obtains a copy of the OZP would know of the existence and relevance of it. The Definitions are clearly relevant and useful in showing the construction which was put upon various terms used in the OZP, not only by the Planning Department but as adopted by the Town Planning Board itself; and the Explanatory Statement is also clearly relevant in disclosing the planning intentions and considerations which were applied in the formulation of the OZP. It is in my view legitimate and sensible to have regard to both documents in construing the provisions of the OZP. 36. I should add that Mr Cooney cited the judgment in Henderson Real Estate Agency Ltd. v. Lo Chai Wan [1977] HKLRD 258, in which the Privy Council confirmed the relevance and materiality of considering the contents of the relevant Explanatory Statement in order to ascertain the planning objectives and intentions behind the development permission area (DPA) Plans which fell for consideration and application in that case (at page 267B-C, and also in the dissenting judgment at page 270). 37. I do not however consider that judgment to be germane to the present case, since the application for planning permission with which that case was concerned was more in the nature of an application under Column 2 than Column 1 of the Plan in question, which necessarily required an application to be made to the Town Planning Board. Miss Eu has always conceded that it is relevant for the Town Planning Board to have regard to the relevant Explanatory Statement in considering an application under Column 2 of an OZP; she submits that it is not however relevant to the exercise of interpreting a Column 1 use. 38. The "Definition of Terms Used in the Statutory Plans" The "Definition of Terms Used in the Statutory Plans" defines House and Flat as follows :
It is in my view quite proper to have regard to the "Remarks" in the above formulation, since they are obviously intended to illustrate and expand upon the definition provided in the second column. I note that the examples which are given in the "Remarks" column of what structures are included under the use "House" are all low-rise and low-density (usually of one-three storeys). Nothing in this definition suggests or contemplates that a high-rise 33-storey block of flats could qualify under the use "House". The "Explanatory Statement" 39. The Explanatory Statement attached to the OZP explains, inter alia, the Authority for the Plan and Procedure; the Object of the Plan; the Notes to the Plan, and the fact that a set of definitions which explains some of the terms used in the Notes may be obtained from the Planning Department. Paragraph 6 "Development Constraints" :
Paragraph 7 "Form and Structure of the New Town" :
Paragraph 8 "Land Use Zoning", explains the planning intentions in the various zones created and at :
(I should add that the penultimate sentence in para.8.8 above was not included in the version of the Explanatory Statement which was adopted by the Town Planning Board : it was subsequently added by the Planning Department. However it was in that expanded form that it was available to the plaintiff. Ms Eu seized upon this amendment as illustrating her submission that one reason why reference should not be made to this Explanatory Statement to interpret the OZP, is precisely that it can be amended and changed at any time. In my view however, the fact that it can be amended from time to time does not render it objectionable to refer to it as an aid to construing the OZP : the point is that in whatever terms it is constituted at the material time, it provides a great deal of information about the planning intentions and considerations which lie behind the formulation of the OZP.) 40. Ms Eu has submitted that even if regard is had to para.8.8 of the Explanatory Statement, it does not necessarily exclude the plaintiff's development, since it states that :
"Primarily", she submits, means what it says, namely it allows for exceptions to the rule, provided such exceptions nevertheless qualify as "House". Furthermore, she submitted, these provisions create an unacceptable uncertainty which is so great as to render them invalid. Singway Co. Ltd. v. AG [1974] HKLR 275 at 300. 41. In my view what para.8.8 of the Explanatory Statement does is to give a very clear indication of the planning intention to retain within the "V" zone existing villages and to reserve land for village expansion purposes. Any exceptions impliedly reserved in the statement that land within the zone is primarily intended for development of small houses by indigenous villagers, would not include the erection of a 33-storey block of flats, which would be strikingly out of character and incongruous with a village environment. The case-law 42. I derive little assistance from the authorities which Ms Eu cited to support the plaintiff's construction of "House" as including its proposed 33-storey block of flats. I respectfully accept the principles stated by Jessel, MR, in the Court of Appeal in Mutual Tontine Westminster Chamber Association (1876) 1 Exchequer 469 that :
He went on to state that while the authorities did show that in some cases a portion of a house may be described as a "house", that did not show that the aggregate or entire building may not also be properly described as a "house". 43. The facts upon which and the context within which that case was decided however, are so different from the present facts and context that the decision itself is of no real assistance to the plaintiff. The context was rating and valuation, whereas in the present case it is town-planning; and as far as the facts were concerned, these were set out by the Master of the Rolls as follows :
Compare those facts with the 33-storey block of flats proposed to be built in the present case, which would not have the external appearance of an ordinary dwelling-house, nor would it be described as a "house" in its ordinary meaning. 44. Kimber v. Admans (1900) 1 Ch.412 concerned the interpretation of a covenant to the effect that "no house shall be erected ... of less value than (500 ... and not more than 10 houses shall be erected ...". The defendant proposed to erect four blocks of residential flats, each block to contain two flats on the ground floor and two flats on the 1st floor. The plaintiff contended that such development would be in breach of the covenant. In the Chancery Division, Cozens-Hardy J. said that there was no context to cut down or alter the popular interpretation of the word "house" in the covenant, and that the erection of the blocks of flats were not a breach of such covenant. The Court of Appeal upheld his decision : Lindley M.R. stated that :
45. Again I find that case to be of limited assistance to the plaintiff, bearing in mind not only the different context in which "house" was being construed, but also as far as the facts were concerned, the proposed blocks of flats in that case consisted of two-storey buildings, as compared to the 33-storey high-rise development proposed in the present case. 46. In Wong Bei Nei and another v. AG [1973] HKLR 582, land was sold on behalf of the Crown by public auction subject to special conditions of sale which provided, inter alia, that : "6. The purchaser shall not erect on the lot any buildings other than detached or semi-detached residential premises of European type ... Provided that the purchaser shall be at liberty to erect flats ... save as herein provided, no building erected on the lot shall be used otherwise than as a private dwelling-house". The court held that a building containing a number of flats would be in breach of the condition that no building erected on the lot should be used otherwise than as a private dwelling-house. In the course of his judgment, Trainor J. noted as follows :
Later in his judgment, he went on to say that two of the issues in the case could be summarised in the question whether re-development of the two lots with which the case was concerned was confined to single unit houses, and in the context did "house" preclude a flat or block of flats.
47. This decision also does not assist the plaintiff, in my view. What it does do is to underscore the fact that the interpretation of a word such as "house" depends importantly upon the context in which it appears and the intention of the draftsman as it can be gathered from the document in question, and also any surrounding circumstances which can legitimately be taken into account. 48. Ms Eu cited several other cases which involved the interpretation of "House", which I do not intend to traverse individually : suffice to say that the facts upon which and the context within which those cases were decided were sufficiently different from the present case that I found them to be of little assistance for present purposes. 49. I respectfully adopt the statement of Lawrence J. in Annicola Investments Ltd. and another v. Minister of Housing and Local Government [1968] 1 QB 631 at 640 that :
50. Further, in Re Butler, Camberwell (Wingfield Mews) No.2 Clearance Order 1936 [1939] 1 KB 570 at 579, Sir Wilfrid Greene M.R. observed :
Conclusion 51. It is not in my view necessary, in order to decide this matter, to first formulate a definitive definition of "House". It suffices that it is clear, to my mind, that in the context in which it appears, namely under Column 1 (uses always permitted) in a Village Type Development Zone, the use "House", properly construed, does not include the 33-storey block of flats which the plaintiff proposes to build. This conclusion is reinforced when one has regard to the Definition of Terms and the Explanatory Statement, which, although not part of the Plan, have been adopted by the Town Planning Board (save for the penultimate sentence in para.8.8), and have been published specifically to assist members of the public to more precisely understand the OZP. 52. It follows that the plaintiff's proposed development does contravene the draft Yuen Long Outline Zoning Plan No.S/YL/2, and the plaintiff is therefore refused the Declarations which it seeks. I make an order nisi that the plaintiff is to pay the defendant's costs of these proceedings.
Representation: Miss Audrey Eu, SC & Y.C. Mok, inst'd by M/s Wong, Hui & Co., for Plaintiff Mr Nicholas Cooney & Phyllis Wong, inst'd by Department of Justice, for Defendant |
Cases cited in this judgment
Other judgments that cite this case