C.C. Tse (Estates) Ltd v. Attorney General
Read the full judgment text of HCMP 604/1981 on BabelCite. This High Court CFI judgment.
1. The plaintiff company is the registered owner of Tai Po Inland Lot No. 6 which is held under a Crown Lease dated 16th May 1958. None of the Crown Lease covenants concerns the matters under consideration which involve construction of sections 3 and 4 of the Town Planning Ordinance in conjunction with the provisions of the Buildings Ordinance and the Building (Planning) Regulations.
|
HCMP000604/1981
----------------- Coram: Liu, J. in Chambers Date of Judgment: 24th July, 1981. ----------------- JUDGMENT ----------------- 1. The plaintiff company is the registered owner of Tai Po Inland Lot No. 6 which is held under a Crown Lease dated 16th May 1958. None of the Crown Lease covenants concerns the matters under consideration which involve construction of sections 3 and 4 of the Town Planning Ordinance in conjunction with the provisions of the Buildings Ordinance and the Building (Planning) Regulations. 2. These proceedings were contested on the basis that all the necessary statutory bodies were properly represented by the Attorney General. 3. The plaintiff's site is about 43,560 sq. ft. (4,046.86 square metres) on which a two-storeyed residential building now stands. It is quite unnecessary to describe the location of the site. Suffice it for me to say that this is a Class A site in Tai Po. In 1978, the plaintiff company caused to be submitted proposed building plans for an ambitious redevelopment. That submission was rejected under, inter alia, section 16(1)(g) of the Buildings Ordinance on the ground that the carrying out of the proposed building works would result in a redevelopment not in keeping with buildings in the immediate neighbourhood in height, design, type and intended use. The Plaintiff's appeal against such rejection to the Appeal Tribunal established under section 43 of the Buildings Ordinance was unsuccessful. It was claimed that the immediate neighbourhood as defined by the Appeal Tribunal was more extensive than that contended for by the Building Authority. 4. On 23rd October, 1980, the plaintiff submitted fresh proposed building plans for the erection of two blocks of 5-storeys each on its site. 5. On 12th December, 1980, a draft plan was exhibited and gazetted for a zone in Tai Po under the provisions of the Town Planning Ordinance, which in effect lowered the permitted plot ratio for the plaintiff's 1980 proposed redevelopment. When these fresh plans were submitted on 23rd October, 1980, a permitted plot ratio of 3.3 was then in force for the plaintiff's Class A site under the Building (Planning) Regulations. The gazetted draft plan allocated the plaintiff's site to a designated future "Residential (Group C)" area, for which a maximum plot ratio of 0.6 was sought to be imposed by the Town Planning Board on all new buildings to be erected therein. The reduction in permitted plot ratio was from 3.3 to 0.6, which would lead to a significant decrease in gross floor area from 13,354 sq. m. to 2,427 sq. m. The plaintiff's complaint is that the Town Planning Board had no power to prescribe any plot ratio or a plot ratio different from that laid down by the Building (Planning) Regulations. 6. Of the prayers in its originating summons, the plaintiff confined itself to those set out below in the same order as re-arranged by Mr. Swaine, leading counsel for the plaintiff:
Naturally, the plaintiff has not abandoned its prayer for costs. 7. In the case of Crozet Limited & Others v. Attorney General(1), it was held that the Town Planning Board had power to "decide the plot ratio of buildings to a site". The learned judge observed in passing that the word "types" used in relation to a building in section 3 of the Town Planning Ordinance would seem to refer to "the uses of the building to be planned for". None of the parties hereto supported the decision, and the defendant further joined issue with that observation of the court. In certain fundamental concepts assumed in matters of definitions and of inter-relationship between various sections, there was flaws on which the decision in Crozet was founded. As for construction of statutes which manifest themselves in wide-ranging subsidiary legislative ramifications, a pragmatic approach is not infrequently seized at the expense of statutory definitions. with at least equal diffidence, I approach the questions posed for my consideration. Both parties invited me not to follow the decision in Crozet but to examine the Board's power to prescribe permitted plot ratio de novo. There is sufficient justification for this Court to accede to that joint request. 8. Two cases were commended by counsel as useful aids of construction. In Colonial Sugar Refining Co. Ltd. v. Melbourne Harbour Trust Commissioners(2), in the only speech delivered in their Lordships' Judicial Committee, Lord Warrington had this to say at p.359:
9. The next case is Westminster Bank v. Beverley B.C.(3). At p.529C, Lord Reid quoted the above principle with this observation:
10. At p.529D/E, Lord Reid drew no distinction between deprivation of private rights and the restraint of their exercise:
11. Leonard, J., as he then was, considered these very sections and regulations in Singway Co. Ltd. v. The Attorney General(4). The question of permitted plot ratio was withdrawn from the learned judge's consideration. Singway, insofar as it affects these proceedings, decided that section 4(1) of the Town Planning Ordinance set out an exclusive list of matters which a draft plan might show or make provisions for and that the notes attached to the draft plan there sought to be impugned were an attempt at "flexibility in a manner not permitted by the Town Planning Ordinance" and thus ultra vires. 12. I will set out the relevant sections of the Town Planning Ordinance:
13. Section 4(1) of the Town Planning Ordinance was amended twice, once in 1969 and again after the case of Sing way in 1974. paragraph (e) was a creation of the 1969 amendment. The 1974 amendments introduced "institution or community purposes" to paragraph (c) and added the passage immediately following paragraph (e). 14. Differentiation between "height", "design", "type" and "intended use" of a building is evident in section 16(1)(g) of the Buildings Ordinance. One can see the wisdom of listing out these attributes individually, in particular when "intended use" may be different from the usual or proper use to which a building is expected to be put, but it is certainly no postulation that buildings may not generally be divided into types by their common characteristics such as matters of height, design or use. As for section 4(1) of the Town Planning Ordinance. it seems content to be restricted to "uses" alone, such as "use foruresfdenteal, commercial, industrial or other specified uses". On the face of it, these "ases" relate to land set apart or reserved by the draft plans without any specific reference to buildings. I will return to this sub-section. 15. Section 16(1)(g) of the Buildings Ordinance reads as follows:
16. Leonard, J., as he then was, reviewed the historical background and legislative development of these sections in the Town Planning Ordinance and section 16(1)(d) of the Buildings Ordinance. A reading of it is recommended for a better understanding of these enactments. For our present purposes, it need only be mentioned that the Town Planning Ordinance came into force in 1939 at a time when Hong Kong was unwary of density. Sophistication in the current building industry could not have been contemplated. The concept of permitted plot ratio made its debut only in 1962. Plot ratio is calculated, as explained in regulation 21(3) of the Building (Planning) Regulations,
In plain language, it means the maximum number of times of the site area a proposed development is permitted to yield in gross floor area. Plot ratio as it is Known to-day was not then worthy of serious consideration. Under the Town Planning Ordinance, draft plans had been of no validity or consequence and would at best serve merely as advanced notice of governmental preference. Even plans finally approved would provide no more than standards for guidance to all public officers. See section 13 of the Town Planning Ordinance. 17. It would not be out of place here to set out below section 16(1)(d) of the Buildings Ordinance brought about in 1959 by an amendment to come into operation on the 1st January 1960, which empowered the Building Authority to exercise a measure of control over a proposed redevelopment with regard to matters in draft plans or approved plans prepared under the Town Planning Ordinance. Thus, the Building Authority was for the first time in 1960 given power to reject proposed building plans which contravened these draft plans and approved plans.
18. Section 3 of the Town Planning Ordinance defines the functions or duties of the Town Planning Board which is inter alia enjoined to "undertake the systematic preparation of draft plans for the future lay-out of such existing and potential urban areas as the Governor may direct as well as for the types of building suitable for erection therein". Section 4(1) of the Town Planning Ordinance contains no express reference to any draft plans for "the types of building suitable for erection" in these areas, the ground of which is to be laid out in desired arrangements for a long-term planning. Mr. Swaine argued that section 4(1) by its paragraph (b) had sufficiently dealt with the "types of building suitable for erection" in these areas. At p.285 in Sing way, Leonard, J. made the following observation:
19. The "omission" was not a matter necessary for the decision in Singway, particularly when the Building Authority no longer forced the issue of "permitted plot ratio". But the term "types of building" is the central point in these proceedings, and the lack of express reference thereto in section 4(1) has become the core of the controversy. 20. It is just as convenient here to dispose of one further matter. At p.284 in Singway's case, Leonard, J. commented that section 3 of the Town Planning Ordinance envisaged "two types of plans: plans for the layout of areas and plans for 'types' of building suitable for erection in areas." There was one draft plan for Wanchai in Singway before the learned judge as there is one draft plan for this zone of Tai Po in these proceedings. It would be highly unproductive to prepare one plan or one set of plans solely for mapping out an area and another duplicate plan or set of plans for showing the "types of building" suitable. One plan or one set of plans is enough to serve both purposes, carving up the area as well as allocating to its building land the proper "types" of structure. A lay-out plan is a drawing to show an arrangement of ground. The mapping out of space within an area would be meaningless unless it is accompanied by descriptive designations. A plan containing one without the other would be unintelligible. Therefore, a "lay-out plan" is a composite term which comprises both carving up an area and specifying the desired purposes. The reference to two types of plans by the learned judge in Singway was a recognition of these two matters for inclusion in a draft plan and was obviously not intended to advocate the necessity for two or two sets of plans for the purposes of sections 3 and 4 of the Town Planning Ordinance. 21. Section 3 of the Town Planning Ordinance lays down the objectives, and section 4(1) regulates their implementation. The plaintiff's contention was that these two sections were closely allied provisions, with the former complemented by the latter and no others. It was submitted that in the discharge of its functions, the Town Planning Board could not be taken as being aided by section 4(1) only in mapping out the future lay-out of the areas without making provisions for the suitable "types of building". Rhetorically, it was asked: "Is the exercise of the Board's duties under section 3 only to be regulated in part?". It would not be right to assume that in section 4(1) the Legislature had been careless in not making provisions for all the powers pertaining to the exercise of all the Board's functions under section 3. 22. Once it is accepted that one plan or one set of plans is envisaged in practice and that a workable lay-out plan or a workable set of lay-out plans must contain both geographical demarcation and designations, it can readily be appreciated why it is not necessary to refer specifically to uses of buildings to be erected on the building land mapped out in an urban area because the uses to which such building land may be put must coincide with the permitted uses of these future buildings. Thus, the reference to lay-out plans in section 4(1) and permitted uses for private building land in its paragraph (b) must, by necessary implication, provide for and correlate with the permitted uses of buildings to be erected thereon. It may well be a matter of caution to deal separately with "type", "intended use" and others in section 16(1)(g) of the Buildings Ordinance, but I will soon endeavour to illustrate that generally "uses of building" is one of the characteristics whereby buildings may be classified or put into types. 23. Given its ordinary meaning, "types of building" means classes of buildings sharing common characteristics. Buildings may be cast into types or classified by their uses (eg. industrial, commercial, domestic, undetermined etc.), their purposes (eg. private, communal, public, governmental, military etc.), their functions (eg. hall, mess, greenhouse, etc.), their design (eg. oriental, Renaissance, baroque, etc.) their configuration (eg. castle, bungalow, etc.), their dimensions (eg. high-rise, low etc.), their methods of construction (eg. pre-fabricated, brick, R.C.C., wood etc.), their durability (eg. temporary, permanent, etc.) or their status (eg. low-cost, ressettlement etc.). The list of common characteristics is never exhaustive. As contended by the defendant, "uses" is undoubtedly an aspect for classifying "types of building", which seems to be a fairly dominants ingredient of the "lay-out" of urban areas called for by section 3 of the Town Planning Ordinance. An important aspect of "types of building" has thus, in my view, been provided for in section 4(1) of that Ordinance by the reference to uses of private building land in its paragraph (b). 24. For all its inelegance, section 4(1) complements the Board's functions to prepare draft plans for a future lay-out and for the types of building suitable for erection in the area involved, but that sub-section deals exclwsively with only one aspect in the classification of "types of building", viz. uses of the buildings as dictated by the specified uses for the mapped out private building land. The ultimate solution therefore lies in whether, with provisions made for only certain "types of building" in section 4(1), the expressio unius exclusio alterius rule applies in the interpretation of that sub-section to bar the Board from making any other provisions as regards "types of building". 25. Finally then I pass to consider if section 4(1) provides an exclusive list both for "future lay-out" and "types of building". I have demonstrated with, I hope, sufficient clarity that a workable lay-out plan must contain a description of the designated purposes and, for land set apart or reserved for building purposes, its specified uses, hence uses of the buildings to be erected thereon. At p.295 of Sinqway(4), Leonard, J., as he then was, held:
Since a lay-out plan is inherently tied to the specified uses, by the very force of that decision, section 4(1) must likewise limit the Board's power to make provisions for "types of building" on private land to the singular aspect in its paragraph (b). Independently, a like conclusion may be reached on the same parity of reasoning as in Singway (4): Section 4(1) contains no general words for "cypes of building". As regards private building land, only one of its aspects viz. uses, a facet of no small significance in town planning, is provided for in section 4(1)(b). If, as was analysed by Leonard, J., section 4(1) had not contained an exhaustive list of matters which the Town Planning Board was given power to prescribe, it would have been quite unnecessary in the amendment made in 1969 for enlarging the scope of these subject-matters from 4 categories to 5 categories by the addition of paragraph (e). Moreover, after the decision in Singway(4) to the effect that these "matters which plans may show or make provisions for must be regarded as being exclusive", the amendments in 1974 also did not seek to introduce general words to empower the Town Planning Board to prescribe for all matters in relation to the other aspects of "types of building" for the total control of construction and planning which have been ambly dealt with by the provisions of the Buildings Ordinance and the regulations made thereunder. 26. Whether or not uses of future buildings is implicitly provided for in section 4(1)(b) as a necessary and natural consequence of its reference to permitted uses for building land, if in fact the Town Planning Board might in the draft plan provide for "types of building" at large or on an aspect other than "uses" like plot ratio, then the resultant situation would be as odd as it is ludicrous. Section 4(3) of the Town Planning Ordinance offers no compensation to an owner for change of land user under section 4(1)(b). As plot ratio is outside section 4(1)(b), if the diminished permitted plot ratio could attract compensation, it would mean that compensation is payable for a decrease in the extent of user but not for a total discontinuance of the same user. In another words, an owner would be entitled to claim compensation for not being able to build a certain type of building as high or as big or as large but he would have no right to compensation, if the defendant's contention were correct, for being completely deprived of his right to erect that very type of building at all. If "uses of land" mapped out were to be construed as unconnected with "uses of building", the position would be even more nonsensical. 27. In conclusion, section 4(1) of the Town Planning Ordinance does provide a comprehensive code for the exercise of the Board's functions under section 3, and any departure from such code is ultra vires the Ordinance. 28. Alternatively, if section 4(1) conferred no power with regard to all "types of building", no power for the Board to prescribe plot ratio is to be implied unless it is an irresistible inference from the Ordinance read as a whole. See Westminister Bank v. Beverley B.C.(3). In view of the historical background and the very full subsidiary legislative control under the Buildings Ordinance, there is no warrant for such an irresistible inference to be drawn. Prayers 3, 4 and 5 of the originating summons must therefore be acceded to and the declarations prayed for made in terms thereof with costs to the plaintiff; certified fit for two counsel.
Representation: Mr. John Swaine, Q.C. with Mr. Andrew Li instructed by Deacons for the Plaintiff. Mr. Peter Graham, Counsel for the Defendant. M.P. NO: 604/81 Date of Hearing: 8-9th July, 1981. Date When Judgment Was Delivered: 24th July, 1981. (Written judgment) Order: 1. It is declared that:
Cases cited by Counsel for Plaintiff in argument but not mentioned in the Judgment:
Case cited by Counsel for Defendant in argument but not mentioned in the Judgment: 1.S.19 Cap. 1 Laws of H.K. Actual Cases Cited in the Judgment:
Representation: Mr. John Swaine, Q.C. with Mr. Andrew Li instructed by Deacons for the Plaintiff. Mr. Peter Graham, Counsel for the Defendant. (1) Miscellaneous Proceedings No. 409 of 1973, judgment whereof was delivered on the 8th April, 1974. (2) [1972] A.C. 343 (3) [1971] A.C. 508 (4) [1974] H.K.L.R. 275 |