Tse Kwei King and Another v. The Attorney General

HCMP001509/1993

1993, No.MP1509

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H E A D N O T E

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TOWN PLANNING ORDINANCE, CAP.131 - TOWN PLANNING (AMENDMENT) ORDINANCE 1991 (ORDINANCE 4/91) - INTERIM DEVELOPMENT PERMISSION AREA - DEVELOPMENT PERMISSION AREA - DEVELOPMENT PERMISSION AREA PLAN - UNSPECIFIED USE - UNAUTHORIZED DEVELOPMENT - AGRICULTURAL LAND - OPEN STORAGE OF BUILDING MATERIALS AND CONTAINERS - EXISTING USE - ENFORCEMENT ACTION - JUDICIAL REVIEW - VALIDITY OF ENFORCEMENT NOTICE - RETROSPECTIVE LEGISLATION

1993, MP No. 1509

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Hon. Rhind J. in open court

Date of hearing: 18 November 1993

Date of delivery of judgment: 21 December 1993 at 2:15 p.m.

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J U D G M E N T

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1. Madam Tsei Kwei King ("Madam Tsei") is the sole proprietress of Tai Hing Metal and Construction Materials, ("Tai Hing Metal"), a firm retailing building materials. For the purpose of storing her wares and conducting her business, she rented a plot of land in Tai Chung Hau, Sai Kung, for two years, commencing in December 1988, from a Madam Yip Luk Lan.

2. As the term of that two-year tenancy drew towards its close, Madam Tsei decided to buy some land from which to run her business.

3. Together with her husband, Mr Cheung Kam ("Mr Cheung"), Madam Tsei bought some land in the Pak Kong Valley, Saikung, known as the remaining portion of Lot No. 72 and the remaining portion of Lot No. 73 in Demarcation District No. 217, for $429,462, the Assignment to the pair of them as joint tenants being dated 18 September, 1990. Part of the land they bought lay on the west side of a water-reserve access-road belonging to government, and the other part on the east side of that road. It was all held under a block Crown lease in which it was described as "agricultural". There was nothing in that Crown lease which prohibited use of the land for storage purposes of the type required for Tai Hing Metal's business. Nor, at the time of the Assignment, was there anything by way of restrictions under the Town Planning Ordinance, Cap. 131 ("the Ordinance") to interfere with such use.

4. There is no dispute that, on the day of the Assignment, all the land lay fallow and unused. Nor is there any dispute that, by the end of November, 1990, Tai Hing Metal's business was in full swing on the parcel of land on the east side of the water-reserve access-road. By then, at least three 20 feet containers had been moved on to that piece of land to store particular types of building materials such as bags of cement. Other building materials like sand stood piled in the open.

5. Between 18th September 1990, the date of the Assignment, and the end of November 1990, an event of great potential significance for the whole Pak Kong Valley area occurred : the government, on 12th October 1990, gazetted a notice under the Ordinance which had the effect of prohibiting the undertaking of any development in the parts of the Pak Kong Valley area delineated on a plan, without planning permission. The plan area included the land bought by Mrs Tsei and her husband. Existing uses were unaffected. Mrs Tsei and her husband contend that before 12th October 1990, they were already using their land for Tai Hing Metal's business by storing building materials on at least the part on the west side of government's water-reserve access-road. If they are right on that, they will have done nothing wrong in continuing to use that part of their land for the same purpose since.

6. The Director of Planning disputes what they say. It so happens that the Planning Department caused aerial photographs of the land to be taken on 12th October 1990. Just looking at those photographs (Court Bundle, pages 151-153), one certainly gets the impression that the land belonging to Madam Tsei and her husband to the east of the water-reserve access-road was not being used for the storage of anything. It was simply a piece of vacant ground with what looks like a van parked on it. On their land to the west side of that road, the photographs show some indistinct marks consistent with part of it being used for open storage of building materials.

7. The Director of Planning has brought enforcement proceedings against Madam Tsei and her husband under section 23(1) of the Ordinance, on the basis that it appears to the Director they are responsible for unauthorized development on their land on the east side of the water-reserve access-road by changing its use from fallow agricultural as at the 12th October 1990 to construction materials storage since that date. Their land on the east side of the water-reserve access-road I will henceforth refer to as "the subject site". The best plan showing the subject site, the intervening water-reserve access-road, and their land on the west side of that is to be found at page 139 of the Court Bundle.

8. Those enforcement proceedings were initiated by a notice dated 10th March 1993, informing Madam Tsei and her husband that unless they discontinued storage of building materials on the subject site by 10th June 1993, they would stand in peril of being prosecuted under s.23(6) of the Ordinance by virtue of which each of them could be fined up to $100,000, plus a further $10,000 for each day the offence continued.

9. On 9th July 1993, the day before the enforcement notice became operative, Mrs Tsei and her husband applied for a judicial review of the Director of Planning's action against them. They claimed that the enforcement notice should be quashed on the basis of the Director allegedly labouring under an error of fact when he claimed there had been unauthorised development on the subject site. His errors of fact are alleged also to have led him into errors of law. With Mrs Tsei and her husband as the Applicants, and the Attorney- General on behalf of the Director of Planning as Respondent, those judicial review proceedings have now come on for hearing before me to see whether the enforcement notice should be quashed. The Applicants contend it is unfair for them to have to comply with the enforcement notice without first having its validity determined.

10. Much is at stake for the Applicants. Not only do they face the embarrassment of a possible criminal prosecution which could result in heavy fines if they lose, but, also, they will no longer be able to continue the business at the present location where they have five containers used as sheds to store such building materials as putty and cement, four roof-covered areas for pipes, and, lying out in the open, they have metal grids, bricks, sand and gravel.

11. While the Applicants personally have much at stake, their immediate neighbours and also the community at large are not without a legitimate interest in the uses to which the Applicants put this land.

12. Within thirty metres of where the Applicants store their building materials are dwellings of the old village of Pak Kong. Instead of looking out on farmland as formerly, the Applicants' neighbours instead now have the sight of a builder's materials yard. How the view from those neighbouring houses must have changed for the worse can easily be appreciated from the photographs at pages 109 and 110 of the Court Bundle.

13. Another adverse change for the Applicants' neighbours is having to cope with dust from the cement, sand and gravel stored on the subject site. A construction materials' business premises are also inherently noisy. Whenever building materials are moved, there is bound to be much noise. Machinery for lifting and stacking will be noisy. There will also be noise as heavy-duty and other lorries arrive and depart. Of concern to both neighbours and the community at large is the pollution of streams by the run-off from building materials when it rains. One of the site boundaries is a stream-bed, and there are other stream beds in the vicinity.

14. Many of the rural areas in the New Territories suffered environmental degradation during the nineteen-eighties from a proliferation of container-sites, car-dumps, scrap yards, building materials sites, and the like, - all out in the open, and outside the effective scope of any statutory planning control. Urban areas, particularly the New Towns, were the subject of intensive town planning, but rural areas fell outside any such regime.

15. Despite its exposure to the same risks as other rural areas from incongruous types of uncontrolled development such as those I have already mentioned, the Pak Kong Valley area emerged from the nineteen-eighties with its rural character relatively unspoiled. One can see that from the aerial photographs the Planning Department had taken on 12th October 1990. They show there was still much agriculture going on in the vicinity of Pak Kong Village. That the rural character of the Pak Kong Valley had still managed to survive emerges clearly in a report the Governor had directed the Planning Department to prepare on 15th August 1990, (see Court Bundle, page 32), to coincide with the advent of a new statutory framework to control development in rural areas. Radical amendments to the Ordinance were foreshadowed in the Town Planning (Amendment) Bill 1990, gazetted on 27th July 1990. Section 3 of the Ordinance was no longer to be confined to "existing and potential urban areas". Not only did the amendments bring, "zones or districts set apart for use for village type development, agriculture, or other specified rural uses", within the embrace of the Ordinance by adding a new sub-paragraph (h) to its s.4, but, also, for the first time, gave the Director an array of penal weapons to combat unauthorised development. Moreover the Director was at last given power to prevent the opening up of new container and similar sites by means of adding, as a new paragraph (i) to the same section, "zones or districts set apart for use for open storage", thus nullifying the effect of Attorney-General v. Melhado Investment Ltd [1983] HKLR 327, for those who, in future, want to start using their agricultural land as container or similar depots, in areas the Director has brought under his control in exercise of his powers under the Ordinance.

16. The new s.23, which the Director seeks to employ against the Applicants, introduced enforcement notices, disregard of which can, in the circumstance defined, (i) require reinstatement of the land; or (ii) result in what are commonly referred to in this branch of the law as, "stop notices", or (iii) attract a fine of $100,000 plus $10,000 for each day the offence continues.

17. I now set out s.23:-

"23. Enforcement on land within a development permission area

(1) Where there is or was unauthorized development, the Authority may, in a notice served on one or more of a land owner, an occupier or a person who is responsible for the unauthorized development -

(a) specify the matters that constitute or constituted the unauthorized development; and

(b) specify a date by which if the unauthorized development has not been discontinued, the Authority requires -

(I) it to be discontinued; or

(ii) permission for the development to be obtained under section 16.

(2) Where the Authority considers that continuance of unauthorized development could -

(a) constitute a health or safety hazard;

(b) adversely affect the environment; or

(c) make it impracticable or uneconomic to reinstate the land within a reasonable period,

the Authority may, in a notice under subsection (1) or in case such a notice has already been served, in a further notice served, instead of specifying the same date under subsection (1)(b) for discontinuance and for obtaining permission, specify -

(i) an earlier date for discontinuance of the unauthorized development; and

(ii) the steps, if any, required to be taken by a date specified in that regard to prevent anything related to the unauthorized development from causing any effect referred to in paragraph (a), (b) or (c).

(3) Where a notice under subsection (1) has been served in relation to any unauthorized development and permission under section 16 -

(a) has not been obtained in respect of that development by the date specified in that regard; or

(b) has been refused and all rights of review or appeal under section 17 have been exhausted, abandoned or have expired,

the Authority may, subject to subsection (4), in a notice served on any person on whom a notice may be served under subsection (1), require such person to reinstate the land, by a date not earlier than 30 days after service of the notice, to the condition it was in immediately before the development permission area became effective or to such other condition, more favourable to the person served, as the Authority considers satisfactory.

(4) Where the unauthorized development referred to in subsection (3) is or was on land included -

(a) in a plan of an interim development permission area; and

(b) within 6 months of the commencement of the Town Planning (Amendment) Ordinance 1991 (4 of 1991) in a plan of a development permission area,

the Authority may, in the notice under subsection (3), require the person served to reinstate the land to the condition it was in immediately before notice of the plan of the interim development permission area was published in the Gazette or to such other condition, more favourable to the person served, as the Authority considers satisfactory.

(4A) Where the Authority is satisfied -

(a) in the case of a notice served under subsection (1) that -0

(I) the unauthorized development has been discontinued; or

(ii) permission for the development has been obtained under section 16;

(b) in the case of a further notice served under section (2) that -

(i) the unauthorized development has been discontinued;

(ii) the steps have been taken as required by the notice;

(c) in the case of a notice served under subsection (3) that the land has been reinstated as required by the notice,

he shall serve a further notice stating that -

(i) the unauthorized development has been discontinued;

(ii) permission for the development has been obtained under section 16; or

(iii) the steps have been taken as required by the notice, as the case may be, and shall as soon as reasonably practicable register such further notice in the Land Registry.

(4B) A notice served under subsection (1), (2), (3) or (4A) shall be deemed to be an instrument affecting land or premises and shall be registrable in the manner required by or under the Land Registration Ordinance (Cap. 128).

(5) Where permission to undertake or continue development on land referred to in subsection (4)(a) was granted under section 26 before the land was included within the plan of the development permission area, the permission shall, for the purposes of sections 20(7)(c) and 21(1)(c) and subsection (1)(b)(ii), be deemed to be permission granted by the Board under section 16.

(6) Where, by the date specified in that regard in a notice under this section -

(a) the development has not been discontinued;

(b) steps have not been taken as required under subsection (2); or

(c) land has not been reinstated as required by subsection (3) or (4),

a person who is served with the notice commits an offence and is liable to a fine of $100,000 and a fine of $10,000 for each day during which the offence is proved to have continued.

(7) Where, by the date specified in that regard in a notice under this section -

(a) an unauthorized development has not been discontinued;

(b) steps have not been taken as required under subsection (2); or

(c) land has not been reinstated as required by subsection (3) or (4).

the Authority may enter the land and take whatever steps he considers necessary to ensure the discontinuance of the unauthorized development, to prevent the effects referred to in subsection (2)(a), (b) or (c) or to reinstate the land.

(8) Expenses incurred by the Authority under subsection (7) are recoverable as a civil debt from any person served with a notice under this section.

(9) It is a defence to a prosecution under subsection (6) and in a proceeding to recover expenses under subsection (8) if the defendant proves that -

(a) he took all reasonable steps in the circumstances to comply with the notice;

(b) the development was an existing use or, in the case of land within an interim development permission area, that the use of a building or land was in existence immediately before publication in the Gazette of the notice of the relevant plan of the interim development permission area;

(c) the development is permitted under the plan of the development permission area or under a relevant plan of an interim development permission area; or

(d) permission for the development was granted under

(10) A notice under this section may be served on a person in person or by sending it by post to his address or depositing it in his post box or posting it in a prominent position -

(a) on or near the land; or

(b) on any premises or structure on the land, affected by the notice."

18. It is now necessary to consider the material steps taken by the Director of Planning which culminated in the enforcement notice the Applicants seek to challenge.

19. To start with, there was the gazetting of the Pak Kong Interim Development Permission Area Plan on 12th October 1990. That, by the retroactive effect of what became s.26 of the Ordinance, under legislative amendments passed on 24th January 1991, (the Town Planning (Amendment) Ordinance 1991), "froze" all development in the plan area which included the subject site. Existing uses were excepted, as was development for which the Director of Planning granted written permission. That Interim Development Permission Area Plan (Court Bundle page 47) set out in its Notes types of development and uses permitted in the various zones shown on the plan. The subject site fell within the area designated "unspecified use", a category which did not permit use for storage purposes.

20. I now set out s.26:-

"26. Interim development permission areas

(1) Notwithstanding any other provision in this Ordinance, the Director of Planning-

(a) may prepare plans designating any area of Hong Kong as the Governor may direct as an interim development permission area and providing that development shall not be undertaken or continued in such area otherwise than in conformity with such plans or with the permission of the Director of Planning;

(b) may, for the purposes of paragraph (a), on an application being made for permission, grant permission in writing with or without conditions or refuse permission; and

(c) shall cause notice to be published in the Gazette of any such plan.

(2) Sections 4(1) and 4A shall apply to a plan prepared under subsection (1) as if the references in those sections to a draft plan of the Board were references to a plan prepared under subsection (1) and the references to the Board and the Chairman of the Board were references to the Director of Planning.

(3) Where land to which a plan prepared under subsection (1) relates is subsequently included in a plan prepared under section 3, subsection (1) in so far as it requires conformity with such a plan or obtaining permission from the Director of Planning shall not apply as regards that land.

(4) The Director of Planning shall not prepare a plan under subsection (1)(a) or cause a notice to be published under subsection (1)(c) after the commencement of the Town Planning (Amendment) Ordinance 1991 (4 of 1991)."

21. Empowering the Director of Planning to control development by designating interim development permission areas under the Ordinance was in the nature of an emergency stop-gap measure to preserve the status quo in the rural parts of Hong Kong.

22. The next stage under the legislative framework was for the Director of Planning to prepare and gazette a draft development permission area plan under sections 3 and 20 of the Ordinance. I now set out those sections together with s.1A which is the interpretation section:-

"1A. Interpretation
In this Ordinance, unless the context otherwise requires -
'Appeal Board' means an Appeal Board constituted under section 17A;
'Authority' means the Director of Planning;
'building' includes a structure or part of a structure;

'development' means carrying out building, engineering, mining or other operations in, on, over or under land, or making a material change in the use of land or buildings;

'development permission area' means an area so designated in a plan prepared under sections 3(1)(b) and 20 but does not include land included in a plan of an interim development permission area;

'existing use' in relation to a development permission area means a use of a building or land that was in existence immediately before the publication in the Gazette of notice of the draft plan of the development permission area;

'interim development permission area' means an area so designated in a plan prepared under section 26;

'land owner' has the same meaning as 'owner' in section 2(1) of the buildings Ordinance (Cap.123);

'material change in the use of land or buildings' includes depositing matter on land, notwithstanding that all or part of the land is already used for depositing matter, if the area, height or amount of the deposit is increased;

'occupier' includes a tenant of a land owner whether or not he pays rent, a person who resides in a building and a person who carries on a full-time occupation in a building;

'unauthorized development' means -

(a) in relation to land included in a plan of a development permission area or described in section 20(7), development in contravention of this Ordinance; and

(b) in sections 22 and 23, in relation to land referred to in section 23(4), development other than development permitted under a plan of an interim development permission area, undertaken on or after the date on which notice of that plan is gazetted.

3. Functions of the Board

(1) With a view to the promotion of the health, safety, convenience and general welfare of the community, the Board shall undertake the systematic preparation of-

(a) draft plans for the lay-out of such areas of Hong Kong as the Governor may direct, as well as for the types of building suitable for erection therein; and

(b) draft development permission area plans of such areas of Hong Kong as the Governor may direct.

(2) In the course of preparation of the plans referred to in subsection (1), the Board shall make such inquiries and arrangements (including, if it thinks fit, the taking of any census of the occupants of any buildings or of the users of any thoroughfares or spaces) as it may consider necessary for the preparation of such drafts.

20. Development permission area plans

(1) In any draft plan prepared under section 3(1)(b), the Board shall designate any area of Hong Kong, as directed by the Governor, as a development permission area.

(2) The Board shall not designate as a development permission area any area that is or was previously included in a plan under this Ordinance, other than a plan prepared under section 26.

(3) A draft plan referred to in subsection (1) may as in section 4(1) show or make provision within the development permission area for any of the matters specified in section 4(1) in relation to a plan prepared under section 3(1)(a).

(4) Sections 4(3), 4A to 13A, 16 and 17 apply to a plan referred to in subsection (1) as they apply to a plan prepared under section 3(1)(a).

(5) A plan referred to in subsection (1), whether or not it becomes an approved plan, is effective for a period of 3 years after notice of the draft plan is first published in the Gazette pursuant to section 5, but on the application of the Board the Governor in Council may, by a notice published in the Gazette before the end of the 3-year period, extend the period for up to one additional year.

(6) Except as provided in subsection (7)(a) and in the definition of 'unauthorized development' in section 1A, where land that is within a plan referred to in subsection (1) is included in plan prepared under section 3(1)(a), the plan referred to in subsection (1) ceases to be effective in relation to that land.

(7) Where land that is within a plan referred to in subsection (1) is included in a plan prepared under section 3(1)(a), no person shall undertake or continue development on that land unless-

(a) the development was an existing use in relation to the plan prepared under this section;

(b) the development is permitted under the plan prepared under section 3(1)(a); or

(c) permission to do so has been granted under section 16 either before or after the land was included in the plan prepared under section 3(1)(a).

(8) A person who contravenes subsection (7) commits an offence and is liable to a fine of $100,000."

23. Even development permission area plans for a particular area were no more than a three-year transitional step (with the possibility of a one year extension) pending the preparation of a fully-fledged Outline Zoning Plan which could only be done with adequate time to perform detailed analysis of land - use patterns, the study of infrastructural provisions, the examination of development options and the like.

24. It was on 12th July 1991 that the Director of Planning gazetted a draft development permission plan for the same Pak Kong Valley area as had previously been covered by the interim development permission plan. Uses existing on an owner's land before the gazetting of an interim development permission area continued to be exempt from development permission control. Thus, if the Applicants were already using the subject site before the gazetting of the interim development control plan on 12th October 1990 in the same way as now, the subject site will have escaped control over its present use.

25. After the taking of the aerial photographs of the subject site at the Planning Department's behest on 12th October 1990, staff from that Department visited the subject site from time to time to check on the use to which the Applicants were putting it. Always it was the same : running a retail builders' supplies yard.

26. On 18th November 1991, the District Planning Officer, Sai Kung wrote to the Applicants in the following terms :-

"Mr CHEUNG Kam and Ms TSE Kwei-king
(Registered Owners of Lots 72 R.P. &
73 R.P. in DD 217)
Tai Hing Metal & Const. Materials
G/F, Block B, Hop Yick House
Fuk Man Road
Sai Kung
NT

Dear Sir/Madam

Unauthorized Development within Pak Kong Development Permission Area
Draft DPA Plan (No.DPA/SK-PK/1)
Lot Nos.67, 72 R.P. & 73 R.P. in DD217
Pak Kong, Sai Kung

On 12 October 1990, notification was published in the Hong Kong Government Gazette (the Gazette) in respect of the plan designating the Pak Kong Area as an "Interim Development Permission Area' (Plan No.IDPA/SK-PK/1).

On 12 July 1991, notification was published in the Gazette in respect of a plan designating the Pak Kong Area as a 'Development Permission Area' (Plan No.DPA/SK-PK/1). The captioned site, which is located at Pak Kong, falls within the plan area and is designated 'Unspecified Use' on the captioned Plan.

The captioned Plan provides that any development/use on land in the plan area, unless permitted in terms of the Plan, shall not be undertaken or continued on or after the date of notification in the Gazette (i.e. 12 July 1991) without the permission granted under section 16, or section 26, of the Town Planning Ordinance (the Ordinance).

A site inspection has been carried out by the staff of this office on 6 November 1991 and the inspection revealed that the site has been converted into the storage of construction materials, vehicles, machineries and containers.

It appears that the development for storage purpose has been undertaken or continued on or after 12 October 1990 on the captioned site and that such development is neither permitted in terms of the captioned Plan nor permitted in terms of a permission granted under section 16, or section 26, of the Ordinance.

You are, therefore, advised to note the provisions of the Pak Kong DPA Plan (Plan No.DPA/SK-PK/1), which is available at the Survey and Mapping Office. Buildings and Lands Department, 14th Floor, Murray Building, Garden Road, Hong Kong, and Kowloon Map Sales Section, 382 Nathan Road, Kowloon, and the possibility of enforcement action. A copy of the 'Notes on Enforcement within the Development Permission Area' is enclosed for your attention.

If you fail to satisfy me that the development on the captioned site is authorized, or if a planning application for the unauthorized development is not received, on or before 16 December 1991, then I shall recommend to the Director of Planning that he should issue a notice under section 23(1) of the Ordinance including the requirement for the cessation of the unauthorized development.

Should you require further information regarding the above, please do not hesitate to contact me on Tel 3011413 or Ms Doreen Chan on Tel 3011411.

A Chinese version of the letter is enclosed for your reference.

27. Prompted by that letter, the Applicants, on 12th December 1991 submitted a written application (Court Bundle pages 10-13) to the Town Planning Board, on the Planning Department's standard form, for permission under s.16 of the Ordinance to change the use of the subject site from agricultural to storage of building materials.

28. Section 16 of the Ordinance is as follows :

"16. Applications for permission in respect of plans

(1) Where a draft plan or approved plan, whether prepared or approved before or after the commencement of the Town Planning (Amendment and Validation) Ordinance 1974 (59 of 1974), provides for the grant of permission for any purpose, an application for the grant of such permission shall be made to the Board.

(2) Any such application shall be addressed in writing to the secretary to the Board and shall he in such form and include such particulars as the Board thinks fit.

(3) The Board shall within 2 months of the receipt of the application, consider the same in the absence of the applicant and, subject to subsection (4), may grant or refuse to grant the permission applied for.

(4) The Board may grant permission under subsection (3) only to the extent shown or provided for or specified in the plan.

(5) Any permission granted under subsection (3) may be subject to such conditions as the Board thinks fit.

(6) The secretary to the Board shall notify the applicant in writing of the Board's decision on an application under this section, and where the Board refused to grant permission shall also notify the applicant of his right to a review under section 17.

(7) For the purposes of section 16(1)(d) and (da) of the Buildings Ordinance (Cap.123), anything permitted by the Board under this section shall not be a contravention of any approved plan or draft plan prepared under this Ordinance."

29. Although that standard form filled in by the Applicants spoke in terms of changing use from agricultural to storage, and even stated, "Anticipated date of development : one month from date of approval," I, nonetheless, do not regard it as raising an irreversibly adverse inference against the Applicants in the sense of their impliedly acknowledging they had undertaken material change of use of their land since the gazetting of the Pak Kong Interim Development Permission Area Plan on 12th October 1990. At the same time as they say in paragraph 3 (c)(iii) of the form, "change of use - from agricultural to storage use", they showed under paragraph 2, concerning existing status of the land, that the existing use was "storage". In their affidavit evidence, the Applicants explain that they do not speak English, and that the non-lawyer who helped them complete the form in English must have misunderstood them if their answers in English give the impression they were making admissions to the effect that they had changed the use of the land since 12th October 1990. Obviously, the existence of this form cannot help the Applicant's case, but neither is it necessarily fatal to them, in my view.

30. As contemplated by s.16(2) of the Ordinance, their planning application duly went before the Town Planning Board whose Rural and New Territories' Planning Committee considered it on 24th January 1992. That body rejected the application, the grounds for their refusal being communicated to the Applicants by a letter in the following terms on 31st March 1992 : B.124/5.

31. The Applicants availed themselves of the opportunity afforded by s.17 of the Ordinance to seek a review of the Board's decision. Section 17 is as follows:

"17. Right of review

(1) Where an applicant is aggrieved by a decision of the Board under section 16, the applicant may, within 21 days of being notified of the decision of the Board, apply in writing to the secretary to the Board for a review of the Board's decision.

(2) On receipt of an application under subsection (1), the secretary to the Board shall fix a time and place for the review, which shall be a day not more than 3 months of the receipt of the application, and shall give 14 days' notice thereof to the applicant.

(3) On a review under this section the applicant or his authorized representative may attend before the Board and shall be given an opportunity to make representations.

(4) If the applicant or an authorized representative does not attend at the time and place fixed for the review, the Board may proceed with the review or adjourn it.

(5) On a review under this section the Board shall consider any written representations submitted by the applicant.

(6) On a review under this section, the Board may, subject to section 16(4), grant or refuse to grant the permission applied for and may exercise the powers conferred by section 16(5).

(7) (Repealed 101 of 1991 s.3)."

32. The Applicants elected not to attend before the Planning Board, but put in a written submission.

33. After due deliberation on 26th June 1992, the Planning Board, exercising its function of review, refused planning permission, the grounds for that decision being conveyed to the Applicants by a letter dated 11th August 1992 from the Town Planning Board, as follows:-

"Cheung Kam and Tse Kwei King,
B2, G/F, Hop Yick House,
Fuk Man Road,
Sai Kung,
N.T.

Dear Sirs,

Application for Permission for
Development within a Development Permission Area

Application under s.16 of the Town Planning Ordinance (Cap 131)
Lot Nos. 72 RP and 73 RP in DD 217, Pak Kong. Sai Kung

I refer to the Town Planning Board meeting held on 26.6.1992.

After giving full consideration to your submission and to your written statement, the Town Planning Board (the Board) decided on review not to approve your application on the following grounds:-

(a) the storage use is incompatible with the Planning intention for the area which is to prevent undesirable uses pending a comprehensive review of the development potential of the area;

(b) the storage use is incompatible with the surrounding land use and will cause environmental nuisance to the nearby residents;

(c) no mitigation measures to reduce the adverse environmental impact have been proposed in the submission; and

(d) the vehicular access via the waterworks reserve access road of the Water Supplies Department is undesirable.

Under section 17(B) of the Town Planning Ordinance, any person aggrieved by a decision of the Board on a review may, within 60 days from the date of this letter, lodge an appeal to the Appeal Board whose decision on such appeal shall be final.

34. Section 17(B), along with s.17(A) of the Ordinance, makes provision for the hearing of appeals by an independent Appeal Board for those aggrieved by a decision of the Town Planning Board on a review.

35. I now set out those sections :

"17A. Constitution of Appeal Board

(1) The Governor may appoint a panel of persons ("the Appeal Board panel") whom he considers suitable to sit as members of an Appeal Board to hear an appeal under section 17B.

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

(3) The Governor may appoint a member of the Appeal Board panel as Chairman of the panel and may appoint another such member as Deputy Chairman of the panel as he thinks fit.

(4) The Governor may appoint a public officer to be the secretary to the Appeal Board panel.

(5) On receipt of a notice of appeal, the secretary to the Appeal Board panel shall notify the Chairman of the panel who, subject to subsections (6), (7), (11) and (16), shall nominate an Appeal Board.

(6) The Chairman of the Appeal Board panel shall not nominate an Appeal Board to hear an appeal or act as its Chairman if he has a direct or indirect interest in the appeal.

(7) The Deputy Chairman of the Appeal Board panel shall, in the absence of the Chairman of the panel, or if the Chairman of the panel has a direct or indirect interest in an appeal, nominate an Appeal Board to hear the appeal.

(8) Subsection (6) shall apply to the Deputy Chairman of the Appeal Board panel as it applies to the Chairman of the panel.

(9) Subject to subsections (6), (8), (11) and (16), the Chairman or Deputy Chairman and 4 other members of the Appeal Board panel shall constitute an Appeal Board to hear an appeal.

(10) Subject to subsections (6), (8), (11) and (16), the Chairman or Deputy Chairman of the Appeal Board panel shall act as Chairman of an Appeal Board."

"17B. Appeals

(1) An applicant who is aggrieved by a decision of the Board on a review under section 17 may appeal by lodging, within 60 days after notification of the Board's decision under section 17(6), a notice of appeal setting out the grounds for the appeal and such other particulars as may be prescribed.

(2) The appellant and the Board may appear before an Appeal Board in person, where applicable, or by an authorized representative.

(3) No decision of an Appeal Board shall be questioned by virtue of the absence of a member of the Appeal Board during the hearing of an appeal provided that member does not participate in the final decision of the Appeal Board.

(4) The Governor in Council may make regulations prescribing the procedures to be followed in making an appeal, including matters to be set out in or to accompany the notice of appeal, the hearing of an appeal and the determination of an appeal.

(5) If a person mentioned in subsection (2) fails to appear on a date set for the hearing of an appeal, an Appeal Board may proceed to hear any other party entitled to appear and may make its decision without hearing the absent party.

(6) Prior to or at the hearing of an appeal, an Appeal Board may

(a) consider and determine whether a party should have access to documents which the party claims are relevant to the appeal and which are in the possession or control of another person and order that other person to give the party access to such documents;

(b) hear evidence on oath and administer any oath necessary to swear in a witness;

(c) admit or take into account any statement, document, information or matter whether or not it would be admissible as evidence in a court of law;

(d) by notice in writing summon any person to appear before it to give evidence and to produce any document or other thing specified in the notice.

(7) Any notice or order of an Appeal Board shall be issued under the hand of the Chairman or Deputy Chairman.

(8) At the completion of the hearing of parties appearing at an appeal or at any adjourned hearing, an Appeal Board may -

(a) adjourn for such period as it considers necessary to reach its decision;

(b) confirm, reverse or vary the decision appealed against;

(c) award to a party such costs legal or otherwise as it considers reasonably incidental to the preparation and presentation of an appeal.

(9) The decision of an Appeal Board on any appeal shall be final."

36. The Applicants on 7th October 1992 lodged their appeal from the Town Planning Board's review. The Appeal Board, who heard the Applicants' appeal on 10th February 1993, was chaired by a Justice of Appeal, who sat with four members of the Appeal Board Panel.

37. The Appeal Board, by a unanimous determination in writing, delivered on 24th February 1993, dismissed the Applicants' appeal, their reasons for so doing being expressed in their final two paragraphs as follows:-

"The Appeal

9. At the appeal, a number of points were put forward on behalf of the appellants based upon environmental grounds: for example, that the storage of sand and gravel on these sites would cause far less nuisance to the inhabitants of the area than the storage of containers upon neighbouring sites. These points, however, were hardly pressed. The main thrust of the appeal was this : even before the Interim DPA Plan was gazetted in November 1990 the two lots had already been used for open storage purposes; hence, such use came within the definition of 'existing use' in section 1(A) of the Town Planning Ordinance. This submission is surprising for two reasons:

(1) If that was, indeed, the case, then the appellant did not require permission for change of use from the Town Planning Board;

(2) Such evidence as was placed before us indicated that in October 1990 the appellants' lots were lying fallow. Whilst the original dates on the aerial photographs were, unfortunately, not shown in the copies produced, the evidence satisfied us that these photos were taken at the times stated. No evidence was put forward to contradict this.

10. In our view, this appeal has no merit whatever and the Town Planning Board had clearly come to a correct decision. To permit the appellants' lots to be used for storage purposes would be to frustrate the entire statutory scheme, which is to bring the Pak Kong area under some form of rational system of planning control. We accordingly confirm the decision of the Town Planning Board under the provisions of section 17(B)(8)(b) of the Ordinance and dismiss the appeal.

Dated this 24th day of the February 1992."

38. Close on the heels of the Appeal Board's decision came the enforcement notice of 10th March 1993, addressed to the Applicants, together with its accompanying letter of the same date. The validity of that enforcement notice is what the Applicants seek to impugn by their present proceedings for judicial review.

39. In conducting a judicial review on whether there has been a fair exercise of an administrative discretion such as that conferred on the Director of Planning by the Ordinance in relation to enforcement action, it is not the function of the courts to interfere unless satisfied either that individuals likely to be affected by the exercise of that discretion might have been denied the benefit of fair procedures giving them the opportunity to explain their side of the story before that discretion was exercised to their detriment, or else the decision was one which no fair-minded and rational official could have reached on the material before him.

40. In my judgment, the Applicants have been treated fairly by the Director of Planning at every stage leading up to his decision to issue an enforcement notice against them pursuant to his powers under s.23(1) of the Ordinance. At every point, the procedural safeguards written into the Ordinance for the protection of land owners against the possibility of arbitrary action by the Planning Authority have been observed. The Applicants were first of all warned by the Director in his letter of 18th November 1991 (in both English and Chinese) that he was contemplating enforcement action against them under s.23(1) of the Ordinance, because it appeared to him from the site inspections carried out by his staff that the unauthorised development he specified had taken place since 12th October 1990.

41. That letter went on to invite the Applicants either to satisfy him that the development was authorised, or to put in a planning application for development permission if the development were unauthorised. The Applicants pursued the latter course by submitting a planning application which the Town Planning Board dealt with in full accordance with the procedures laid down in s.16 of the Ordinance. Next, the Applicants were accorded all the rights of review conferred on them by s.17 of the Ordinance. Then the Appeal Board, under s.17B of the Ordinance, gave the Appellants all the advantages that section offers.

42. Now the Director has initiated action against the Applicants pursuant to s.23 of the Ordinance because it appears to him they are responsible for the unauthorised development of which he complains. I see no basis on which the Director can be faulted on what he is trying to do, or the way he has gone about it. There is nothing unreasonable about the statutory action that the Director has taken so far. There must at least be a prima facie case of unauthorised development against the Applicants, bearing in mind the evidence in the form of the aerial photographs of 12th October 1990 and the Applicants' application for planning permission on 12th December 1991.

43. Having already served the Applicants with a notice under s.23(1) of the Ordinance, the Director has laid the ground work for reinstatement action against the Applicants pursuant to s.23(3) and (4), the latter sub-section, in particular, being tailor-made for a situation like the one in the present case where the subject site was first of all included in a plan of an interim development permission area, and then, within the period stated in s.23(4)(b), included in a plan of a development permission area.

44. A point which has caused me considerable concern in the present case is whether the enforcement provisions of the Town Planning (Amendment) Ordinance 1991, which became law on 24th January 1991, were meant to operate retrospectively from 27th July 1990 onwards, in the light of its s.1(2), which is as follows:-

"(2) Section 6(b) and new section 26 in section 8 shall be deemed to have come into operation on 27th July 1990."

45. The section s.6(b) referred to there had added the following to s.4 of the Ordinance:-

"(b) by adding after paragraph (f) -

(g) country parks, coastal protection areas, sites of special scientific interest, green belts or other specified uses that promote conservation or protection of the environment;

(h) zones or districts set apart for use for village type development, agriculture or other specified rural uses;

(i) zones or districts set apart for use for open storage."

46. I have already made reference to those paragraphs (h) and (i), as well as to s.26 which I earlier set out in full.

47. There is a presumption against the retroactivity of penal measures. In the present case, I am satisfied that it was the intention of the legislature to make the enforcement provisions brought in by the Town Planning (Amendment) Ordinance 1991, being Ordinance No.4 of 1991, retrospective in their operation. Unless the enforcement provisions were meant to be retrospective, it was pointless for the legislature to enact the new s.26 of the Ordinance, setting up interim development permission areas. As I read it, the whole tenor of the new Town Planning (Amendment) Ordinance 1991 is effectively to clamp down on unauthorised development in areas designated as development permission areas, interim or otherwise. Retrospectively effective legislation is not unknown in Hong Kong. Lai Man Yau v. A.G. (No.2) [1979] HKLR 546 was such a case where the Privy Council held that the offence of being or having been a Crown servant in control of pecuniary resources or property disproportionate to present or past official emoluments, enacted as s.10(1)(b) of the Prevention of Bribery Ordinance, which came into effect on 14th May 1971, applied to someone who had ceased to be a Crown servant in 1969 in relation to assets acquired between 1951 and 1966.

48. In the same way the legislature embodied its intention to combat corruption by passing tough anti-corruption legislation with far-reaching effects in 1971, both prospectively and retrospectively, I am satisfied the legislature in 1991 firmly set its face against further environmental harm to those parts of Hong Kong that the Governor, through the Director of Planning, wanted to protect from unplanned development by means of, initially, interim development permission areas, and, then, development permission areas.

49. The Town Planning (Amendment) Ordinance 1991 did not come as a bolt completely out of the blue when passed. It had been foreshadowed by a bill gazetted on 27th July 1990. That bill had indicated that the legislation, if and when passed, would be deemed to have come into operation on 27th July 1990.

50. The legislation has only limited retrospectively. It was only after the gazetting of an interim development permission area plan that unauthorized development was forbidden. Through gazetting, owners of land within the plan unaffected. To that extent, the Town Planning (Amendment) Ordinance 1991 was intended to be retrospective.

51. So far, I do not think the Director is to be faulted for any of the steps he has taken, and I can see no justifiable ground on which I should interfere to prevent the law taking its course.

52. This application for judicial review must, therefore, stand dismissed.

53. This judgment is delivered pursuant to O.42, r.5B. I make an Order Nisi that costs are to follow the event.

Representation:

Mr Lam Shun Chiu (inst'd by M/s Wong, Poon, Chan, Law & Co) for the Applicants

Miss V. Patel, S.C.C., for the Respondent