Singway Co Ltd v. Attorney General

HCA003826/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 3826 OF 1973

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Coram: Leonard J. in Court.

Date of Judgment: 20th June, 1974.

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JUDGMENT

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1. This is an action for declarations, firstly that draft Outline Zoning Plans Nos. LH5/34 and LH5/34A are not draft plans within the meaning of the Town Planning Ordinance and were and are invalid, void and of no effect, secondly for a declaration that a refusal of approval of the plaintiff's plans for certain buildings to be erected at Queen's Road, East, communicated to the plaintiff by the Building Authority by letter of the 17th November 1972 is consequently invalid, and thirdly, for a declaration that the plaintiff's plans for the proposed building are doomed to be approved pursuant to Section 15(1) of the Building Ordinance and in the alternative to this declaration an order of mandamus directing the Building Authority to determine the plaintiff's application for approval of plans forthwith in accordance with the law and principles laid down by the court. There was a further Laim for damages which was not pursued before me.

2. The facts are not in dispute. On divers days between the 19th of June 1970 and the 27th December 1972 the plaintiff acquired various of land between Queen's Road, East and Robinson Road which are adjacent to one another so as to form one large site with a total area of approximately 52,425 sq. ft. It did so intending to erect on the large site a 53-storey building which was to contain offices, restaurants, a cinema and other commercial enterprises, if and when building plans were approved by the Building Authority. On a date unknown, which is immaterial to my considerations, the Town Planning Board was directed by the Governor under Section 3 of the Town Planning Ordinance Cap. 131 to prepare a draft plan for the Wanchai area in which the site in question is situated. In consequence of this direction the Town Planning Board prepared and exhibited plans No. LH5/34 and LH5/34A (being an amendment of plan LH5/34) which plans the plaintiff now contends are invalid. Plan LH5/34 was exhibited on the 26th February 1971: the plaintiff's general plans for the proposed building were submitted to the Building Authority and the other departments concerned by the plaintiff's architect on the 20th September 1972. On the 17th November 1972 the Building Authority by a letter of that date refused approval of these general plans. The letter of refusal reads as follows:

"Dear Sir,

3. Mr. Howlett, the signatory of this letter, was at that time the Chief Building Surveyor for that area of the island and before sending it had discussed the plans with his senior officer, Mr. Rowley, to whom the Building Authority had delegated powers to refuse to approve plans under Section 16 of the Buildings Ordinance. Mr. Rowley considered that the plans clearly contravened the draft plan LH5/34 and that approval should be refused on that basis. In the course of their conversation Mr. Howlett and Mr. Rowley "touched on" Section 16(1) (g) of the Building Ordinance which empowers the Building Authority to refuse approval of plans where

"the carrying out of the building works shown theroon would result in a building differing in height, design, type or intended use from buildings in the immediate neighbourhood or previously existing on the same site".

They considered that approval could equally well be refused under Section 16(1) (g) but decided not to include this paragraph as a ground for refusal. I am satisfied that this was because Mr. Rowley was then quite satisfied that Section 16(1) (d) offered him a valid ground of refusal and because refusal under Section 16(1) (g) was exercised very sparingly and was not given (because of an administrative practice) until after reference to a meeting known as "The P.W.D. Land Conference".

4. I have no doubt from the plaintiff's building plans and from photographs of the area supplied to me coupled with a photograph of a model of the plaintiff's intended building also exhibited that the carrying out of the building works shown on the plaintiff's building plans would so result. This was not disputed.

5. On the 24th November 1972 draft plan LH5/34A was published and exhibited. On the 7th December 1972 the plaintiff's solicitor wrote to the Building Authority objecting to the refusal of approval conveyed to him by the letter of the 17th November. In this letter the plaintiff's solicitor having pointed out that the only ground for disapproval of the plans was set out in the fast paragraph of the letter I have quoted went on to say:

"We hereby give you notice that you are not entitle to rely on s.16(1) (d) of the Buildings Ordinance on the grounds that the plan you have referred to as 'draft Outline Zoning Plan No. LH5/34' has not been prepared within or in accordance with the provisions of the Town Planning Ordinance, and has no validity. Further, even if (which is denied) the purported draft plan has been prepared within or in accordance with the provisions of the Town Planning Ordinance, our client is entitled to erect a building of the type shown in the plan submitted as the definition of the word 'Residential' therein is not exhaustive nor does it exclude the proposed user."

This letter also commented on the second paragraph of the letter I have quoted but it was never contended that this second paragraph could be regarded as grounds for an objection to the plans. Apparently this letter came to the attention of a Mr. K.B. O'Sullivan who noted on the relevant file that draft plan LH5/34 had been superseded by draft plan LH5/34A date 24th November 1972 but that this would have little effect on the plainitff's proposals as they then stood; that LH5/34 allowed certain other uses provided the predominant use was residential. He went on to note that he had discussed with Mr. Wigglesworth (the Chief Planning Officer) who "agreed that our objection to the plans showing offices on land designated 'Residential' was correct".

6. Although the plaintiff had not objected to draft plan No. LH5/34 as it was entitled to do under Section 6 of the Town Planning Ordinance Cap. 131 it objected by letter of 14th December 1972 to draft plan NO. LH5/34A. This objection was to the validity of the plan

"in that

The objection in paragraph (d) of this letter was met in part by deletion of the reference to plot ratio contained in plan No. 5/34A. By a letter of 15th December 1972 the Building Authority confirmed its refusal to grant approval to the general plans. In the course of this letter, Mr. Rowley said:

"I am advised that the proposed use of the building ... would not be permitted and as the draft plan prepared under the Town Planning Ordinance has been exhibited, my refusal to give approval to such is in order. I note your contention that the draft plan has not been prepared within or accordance with the provisions of the Town Planning Ordinance and has no validity. This is not a matter in which I have competence so, with respect, suggest that your objection would be better addressed to the Town Planning Board." (The emphasis is mine.)

The differences between plan LH5/34 and LH5/34A are, by reason of an amendment made after hearing the plaintiff's objection but not in satisfaction of it by plan LH5/34B to LH5/34A not relevant to my considerations so that a description of plan LH5/34 will suffice. This plan consists in part of a map of the Wanchai area. The map itself bears certain notations, one of which reads:

"approximate location of possible future mass transport railway";

another reads:

Various areas or "zones" on the map are given different colours and on the right-hand side of the map there is a "notation table" in which colours corresponding to those on the map are identified respectively "commercial/residential", "residential", "Government, institution and community", "open space" and "other specified uses". From this when the map is read in conjunction with it, it appears that the area on which the plaintiff proposes to erect its building is designated "residential". Again on the right-hand side of the map the plan contains a "schedule of uses and areas" and underneath this heading there appear six paragraph which may loosely be said to be explanatory of the plan. The first four of these paragraphs read as follows:

It was common ground that since the late 1950s the Planning Board in preparing is plans followed a standard mode of presentation. Invariably the plans contained paragraphs similar to those in LH5/34. Although a variable form of wording is used contemplating departures from zone uses, the phrases "such as" and "may be permitted" are almost inevitably used. In addition in many cases there were notations on the map itself. I have mentioned those on LH5/34. Another illustration may be helpful. One area of LH5/34B bears the notation "tramway depot/ car parks/shops/supermarkets/department stores/showrooms/offices but excluding any form of residential accommodation including an hotel". It will thus be seen that the Town Planning Board was seeking to preserve flexibility in three ways - by notations on the maps themselves, by reserving areas for "other specified uses" and by paragraphs like those quoted which I will refer to hereafter as the "notes".

7. The plaintiff by its statement of claim contended that on a true construction of plan LH5/34 it was not a draft plan within the meaning of the Town Planning Ordinance; that even if it was such a draft plan the plaintiff's building plans did not contravene it; that even if the plan LH5/34 was valid and the building plans did contravene it the Building Authority wrongly regarded themselves as bound to refuse approval of the plan and failed to exercise discretion. [This third contention was not pursued, indeed it was repudiated, before me.] The statement of claim went on to contend that the plaintiff's plans were deemed to be approved pursuant to s.15(1) of the Building Ordinance or in the alternative not yet determined and went on to claim the relief which I have mentioned.

8. As originally framed the defence did not allege that there was any reason for the refusal of the Building Authority to approve the plaintiff's building plans other than the failure of those plans to comply with plan LH5/34. By an amendment which I will discuss hereafter, the defendant contended that even if the original ground for refusal by the Building Authority to give its approval to the plaintiff's building plans was invalid the refusal itself was nevertheless valid since a further ground existed for refusal, this further ground being that originally "touched on" by Mr. Rowley and Mr. Howlett namely that the carrying out of the building works shown on the plaintiff's building plans would result in a building differing in height, design and type from buildings in the immediate neighbourhood or previously existing on the same site.

9. Our Town Planning Ordinance Cap. 131 was passed on the 23rd June 1939. Since that date the character of the Colony of Hong Kong has changed radically from that of an entrepot centre to that of a manufacturing centre. Its population has soared from approximately one and a half million in 1939 to well over four million to-day. Multi-storey buildings were virtually unknown in 1939; today they are the rule rather than the exception. Our present Buildings Ordinance had not come into force. Such has been the change in building concepts over the years that the Ordinance under which our Public Works Department has laboured since 1956 has itself been the subject of some eighteen amendments. Its predecessor came into force on the 1st January 1936 and was prior to 1939 amended three times. It displays an approach to the control of building which today would be regarded as unsophisticated and unworkable. The extent of the changes which have occurred can be seen from the definition of what are called "exceptional buildings" in the 1935 Ordinance. Inter alia factories, workshops, pawnshops, buildings intended for special uses and "every building made wholly or partly of reinforced concrete" were dubbed "exceptional" and their design, construction and situation subjected to the special approval of the Building Authority. In those simpler and more spacious days Hong Kong had little need for a sophisticated system of town planning. It is against that background that the Town Planning Ordinance was enacted in 1939. It is an Ordinance of 15 sections only. The preamble reads:

"to promote the health, safety, convenience and general welfare of the commonity by making provision for the systematic preparation and approval of plans for the future layout of existing and potential urban areas as well for the types of building suited for erection therein."

The first section gives the short title to the Ordinance and the second enables the Governor to appoint the Town Planning Board and fixes its quorum. The third section, the rubric to which is "Functions of the Board", obliges the board "with a view to the promotion of the health, safety, convenience and general welfare of the community", to "undertake the systematic preparation of draft plans for the future layout of such existing and potential urban areas as the Governor may direct as well as for the types of building suitable for erection therein. In the course of preparation of such plans the Board shall make such enquiries and arrangements (including, if it will think fit, the taking of any census of the occupants of any building or of the users of any thoroughfares or spaces) as it may consider necessary for the preparation of such drafts." The section thus envisages two types of plans: plans for the layout of areas and plans for "types" of building suitable for erection in areas.

10. The rubric for Section 4 reads: "Contents of layout plans and powers of the Board." The portions of the section with which I must concern myself read as follows:

The section is silent concerning plans for the types of building suitable for erection in existing and otential urban areas. I have been unable to attribute any significance to this omission in considering the interpretation of the two sections. The section goes on to provide that the Board may recommend to the Governor-in-Council resumption of land interfering with its plans and resumption to avoid interference is deemed to be resumption for a public purpose within the meaning of the Crown Lands Resumption Ordinance. Subsection 3 of Section 4 provides that except in the case of resumption no compensation shall be paid to the proprietor or any person interested in any holding by reason of the fact that it lies within or is affected by any zone or district set apart under paragraph (b) of Subsection 1. Section 5 deals with the exhibition of draft plans when these have been prepared by the Board: Section 6 deals with the consideration of objections made by persons affected by plans and the manner in which such objections ought to be dealt with: Section 7 with the amendment of draft plans: Section 8 with their submission to the Governor-in-Council: Section 9 with the powers of the Governor-in-Council when a plan has been submitted to him. He may approve it; refuse to approve it; or refer it to the Board for further consideration and amendment. He "may approve it" notwithstanding that any requirements of this Ordinance have not been complied with and when a draft is approved it is thenceforth referred to as an "approved plan". The Governor-in-Council may by notification in the Gazette correct any omission from or error in any approved plan. An approved plan must be printed and exhibited and the fact of its approval must be notified in the Gazette. Section 10 deals with the effects of his refusal to approve plans: Section 11 with the deposit of approved plans in the Land Office and their publication by the Land Officer: Section 12 with the revocation by the Governor-in-Council and the replacement and amendment of approved plans. Section 13 reads:

"13. Approved plans shall be used by all public officers and bodies as standards for guidance in the exercise of any powers vested in them."

Section 14 confers power to make regulations, and Section 15 with sanctioning the Board's expenses. The only regulations made have been to ex power the Chairman of the Board to require the Director of Public Works to prepare plans or sketches to assist the Board in carrying out its duties. The Ordinance is then an relatively simple document. Such amendments as have taken place since 1939 have not detracted from this simplicity nor have they altered the essential scheme of the Ordinance.

It is particularly noticeable that the Ordinance of itself does not affect the rights of the holder of any property in a zone or district set apart under Section 4(1) (b). Its effect on persons interested arises indirectly by virtue of Section 13. The precise nature of the shackle placed (by, I would note, approved plans not draft plans) on the activity of public officers by the use of the expression "standards for guidance" in that Section is perhaps doubtful. Hence the prohibition in Section 4(3) against the payment of compensation to the persons interested in any holding affected by a zone or district set apart is not surprising. A draft plan could not hurt anyone and an approved plan was presumably no more than one of many "standards for guidance" which a public officer might use for his assistance in the exercise of the powers vested in him.

11. While the essential scheme of this Ordinance has not altered since 1939 the effect on landowners of draft plans made under it became profound on the passing of the Buildings (Amendment) Ordinance 1959 which by its Section 9B(1) (c) enacted for the first time what is now Section 16(1) (d) of the Buildings Ordinance. In 1959 just 20 years after its enactment draft plans made under the Town Planning Ordinance became not just "standards for guidance for public officers" - a status they have not yet received - but the equivalent of a provision in the Buildings Ordinance.

12. It is not necessary for me to set out Section 16(1) of the Buildings Ordinance in full. The opening words are:

"(1) The Building Authority may refuse to give his approval of any plans of building works where -"

There follow some sixteen cases in paragraphs numbered from (a) to (p). In some of these cases the Building Authority clearly must refuse to give his approval. In considering whether the word "may" in the introductory words of the section quoted above is permissive or mandatory one must, I consider, look to each individual paragraph for clearly as applied to some the word "may" must be mandatory and as applied to other permissive. For example, the first case mentioned is where:

The Building Authority could not be intended to have a discretion to approve plans conflicting with regulations which it is his duty to enforce. This may be contrasted with (i):

I should have thought there must be a discretion under (i) because of the use of the expression "in his opinion" and its general nature and that the word "may" must be permissive when applied to it. It may be contrasted with (k) where:

"Such plans differ materially from those approved by the Governor or Governor-in-Council upon the exemption from the provisions of the Landlord and Tenant Ordinance of the premises to which they relate."

When applied to this paragraph the word "may" is clearly mandatory for the Ordinance cannot have contemplated the Building Authority approving plans so as to override the Governor-in-Council in his administration of another Ordinance. Equally I consider that the word "may" must be mandatory when applied to case (d):

"The carrying out of the building works shown thereon would contravene the provisions of this Ordinance or any other enactment or would contravene any approved or draft plan prepared under the Town Planning Ordinance."

It is the clear duty of the Building Authority to uphold the provisions of the Building Ordinance which creates his office. Equally it is his duty as a public servant to uphold the provisions of other enactments that do not conflict with the Buildings Ordinance. If the section is to be construed so that "may" is mandatory in regard to the first part of this paragraph I don't see how it can have been intended to be permissive for another part of the same paragraph: such an intention could have been adequately shown by framing another paragraph associated with a paragraph to which "may" when applied was permissive. My view as to this is strengthened by Miscellaneous Proceedings No. 409 of 1973 Crozet Ltd., Hill Development Ltd., Day Enterprise Ltd. v. The Attorney General (as yet unreported). In that case the Building Authority refused approval under Section 16(1) (d) and also under Section 16(1) (g) (applied to which paragraph I should have regarded "may" as permissive) on the ground that the carrying out of the building works shown on the plan would result in a building differing in height from other buildings in the immediate neighbourhood. The precise nature of the relief sought in that case is not clear from the judgment which was given after argument in chambers.

13. What is clear is that the ground for refusal referring to Section 16(1) (d) was challenged in the court proceedings and the ground under Section 16(1) (g) was not so challenged. It was regarded as "a matter for other proceedings before a different tribunal". The different tribunal must, I consider, have been an appeal tribunal set up under Section 43 of the Buildings Ordinance "for the purpose of determining appeals by persons prejudiced by a decision of the Building Authority in the exercise of his discretion". That the action of the plaintiffs in bringing one aspect of the refusal before the court and another aspect of the same refusal before that other tribunal was not the subject of criticism indicates that the one ground was regarded as a matter in which the Building Authority was not entitled to exercise discretion and the other as a matter in which he was so entitled. A question as to the validity of the town plan arose in the case but not, it would appear, for the reasons canvassed before me, so I need say no more about it at this stage.

14. Mr. Widdicombe in the course of his lengthy and most helpful argument challenging the validity of the draft plan suggests firstly that the "permission system", as he termed the provisions in the notes to the plan, was ultra vires, relying on the maxim expressio unius exclusio alterius; secondly he argued that the "permission system" as worded in the plan itself was void for uncertainty; thirdly that it was void because it involved taking into consideration irrelevant matter; fourthly that it was void for unreasonableness and fifthly that that part of the plan which was bad could not properly be severed from that which was good. In joining issue with him on the first point Mr. Somerville, for the Crown, did not seek to contend that the Ordinance enabled the Planning Board to carry out its functions and powers by means of a permission system. He argued that notwithstanding the use of the words "may be permitted" in the notes to the plan a detailed dissection of the plan showed a clear and logical explanation in keeping with the Ordinance. In considering this first point, therefore, it is necessary for me firstly to consider whether or not the plan has created a permission system. If it has, it is as Mr. Somerville would, I gather, agree, invalid. If it has not, it may still be invalid if the system it did establish is ultra vires the Ordinance on its true construction.

15. From any consideration of the plan one conclusion emerges at once. That is that by the notes the Board sought to give flexibility to what otherwise would be an inflexible plan. What then is created by the notes? Can it truly be said to be a "permission system" or is it something less? If something less is that something less still too broad to be considered within the powers contained in Sections 3 and 4?

16. It should be noted that, as was agreed between the parties, the present standard mode of presentation with notes containing the expressions "may be permitted" and "such as" commenced in the late 1950s. Section 9B was inserted into the Buildings Ordinance of 1955 by the Buildings (Amendment) Ordinance of 1959 which came into force on 1st January 1960 and it was as Subsection 3 of Section 9B that Section 16(1) (d) was first born. Notes containing the phrases "may be permitted" and "such as" were therefore in common use while approved plans were no more than "standards for guidance" for public officers and draft plans had virtually no legal effect. In these circumstances I find it difficult to believe that the Planning Board were seeking to set up a permission system similar to that prevailing in England by the use of these words. No trouble which could not be solved on a consultative basis could arise from their use as "standards for guidance". It was when the draft plans acquired a subsidiary legislative effect by virtue of Section 9B of the Buildings (Amendment) Ordinance 1959 that the slavish adherence to earlier precedents became liable to cause trouble. To put it another way it was only from 1st January 1960 that a draft plan could affect, directly, the private owner of land. Hence the reason for the prohibition enacted in the Town Planning Ordinance in 1939 against payment of compensation to persons interested in a holding "by reason of the fact that it lies within or is affected by a zone or district set apart in a draft plan", if it was not inserted ex abundantia cautela, is difficult to appreciate, because between 1939 and 1960 only an approved plan could affect landowners and then only indirectly. To my mind in using the expressions complained of "may be permitted" and "such as" the Planning Board was seeking to establish not a permission system but if I may coin a phrase "control by consultation." So long as the plans were to be used only as "standards for guidance" this was an eminently sensible approach and one which would, I am persuaded, have commended itself to officials in the 1950s. Of this I consider I may take judicial notice for it is notorious (and I use the term in no pejorative sense) that at that time officials strove to find a (perhaps paternal) solution to problems affecting development in pragmatic agreement amongst all public officers concerned.

17. When plan No. LH5/34 was published in 1971 the Town Planning Ordinance was because of Section 16(1) (d) of the Buildings Ordinance, an effective binding instrument of planning control. It is in the light of that change in the effectiveness of the Town Planning Ordinance that I consider the validity of this town plan. For while in the late 50s the Town Planning Board was preparing its plans to give standards for guidance to public officers with "control by consultation" in mind, today by them it obliges the Building Authority to reject building plans if they do not conform to draft town plans and the time for control by consultation has passed, - abolished by Section 16(1) (d) of the Building Ordinance. It is in that light that I ask myself "can the Legislature have ever intended to give authority to make such a plan as this". "Did the Legislature, on a true construction of the words used, give such authority". I must assume the Legislature, when enacting that the Building Authority should refuse approval of plans conflicting with draft town plans, to have known that draft town plans already existed and, perhaps, even the form in which such draft town plans had been couched before the coming into force of the Buildings Ordinance 1959 but I must also assume that the Legislature expected the Town Planning Board when making future plans to have in mind the effect which such future draft plans would have. Admittedly, the section when obliging the Building Authority to refuse to give approval to plans of building works where they would contravene any approved or draft plan "prepared" under the Town Planning Ordinance, must be taken to apply to all plans whether prepared prior to 1st January 1960 or prepared after 1st January 1960, (there is no reference to earlier town plans contained in the Savings or Application Sections of the Buildings (Amendment) Ordinance 1959), but it is only after 1st January 1960 that a draft town plan could properly be regarded as "subsidiary legislation" i.e. as having legislative effect. Once town plans became subsidiary legislation a challenge to the validity of a draft town plan made before 1st January 1960 might be made as readily (or as ineffectually) as a challenge to a draft plan made after 1960. Be that as it may in considering the validity of a town plan in the light of the intention of the Legislature one is as much entitled to look to the position of the Colony in 1960 as to its position in 1939. As the Chief Justice observed in Crozet's case the provisions of Section 16 (1) d of the Buildings Ordinance were "necessary in order for the Town Planning Ordinance" (passed 20 years earlier) "to be effective". In such circumstances I must, I am persuaded, have regard to the entirety of the Town Planning Ordinance as rendered effective on the 1st January 1960 by Section 16(1) (d) of the Buildings Ordinance and seek to ascertain by use of the expressio unius rule and such other aids to construction as may be available whether the scheme contemplated by this particular plan be it labelled a "permission system" or "control by consultation" - call it what you will - is shown to be within the powers conferred by the Legislature.

18. In enlarging his argument on the questions of uncertainty, unreasonableness and the suggestion that the Planning Board in preparing this plan took into consideration irrelevant matters Mr. Widdicombe referred to a passage in the judgment of Diplock, L.J. in Mixnam's Properties Ltd. v. Chertsey Urban District Council⁽¹⁾ which reads:

"The variojs special grounds upon which subordinate legislation has sometimes been said to be void - for example, because it is unreasonable; because it is uncertain; because it is repugnant to the general law or to some other statute - can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus, the kind of unreasonableness which invalidates a by-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to give such rules: they are unreasonable and ultra vires."

He nevertheless suggested that while the second, third and fourth of his objections could be considered as essentially one the first was a separate and independent one obtaining no support from those following, his contention being that it was only if I found that against him on the argument arising from the expressio unius rule that I should look to the other grounds upon which he attacked the plan.

19. Nevertheless I consider that this dictum of Diplock L.J. in the Mixnam's case⁽¹⁾ is of particular value even when dealing with his objection under the expressio unius rule for it serves as an emphatic reminder that all grounds of invalidity are dependant on the general rule that subordinate legislation to be valid must be shown to be within the powers conferred by the statute.

20. In determining whether the subordinate legislation has been shown to be within the powers conferred by the Statute it appears to be well settled law that the subordinate legislation must be given a benevolent construction. Indeed in Crozet's case the learned Chief Justice went so far as to say:

"The powers of the Planning Board are widely drawn in the Ordinance and must be liberally construed."

Certainly the plan itself should be liberally construed. In Hall & Co. Ltd. v. Shoreham-by-sea Urban District Council⁽²⁾ at page 245 Willmer L.J. said:

"I do not think that the words words used by a local authority in imposing conditions are to be scrutinised in the same way as the words used by a parliamentary draftsman. It seems to me that conditions imposed by a local authority, like by-laws, should be benevolently construed."

In this he followed Lord Russell of Killowen C.J. in Kruse v. Johnson⁽³⁾ at page 98. Later in the same judgment at page 251 having considered the question of the unreasonableness of a condition in a planning permission Lord Willmer cites with approval a dictum of Lord Warrington of Clyffe, in delivering the judgment of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Melbourne Harbour Trust Commissioners⁽⁴⁾:

"In considering the construction and effect of this Act, the board is guided by the well-known principle that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous words."

Willmer L.J. goes on to say:

"I can certainly find no clear and unambiguous words in the Town and Country Planning Act, 1947, authorising the defendants in effect to take away the plaintiffs' rights of property without compensation by the imposition of conditions shch as those sought to be imposed."

His distinction would then appear to be between the approach to the Act itself and that to the instrument made under it. From these somewhat conflicting passages I would gather that the Town Planning Ordinance read in the light of Section 16(1) (d) of the Buildings Ordinance should be looked at with strictness when one considers their construction and effect and the draft town plan with benevolence. Harman L.J. appears also to have difficulty in reconciling the principles when he says at page 255 of the same report:

"It is well settled that by-laws ought to be construed, as is said, 'benevolently', that is to say, the court ought to be anxious to hold them good if it can; see Lord Russell of Killowen C.J. 's observations in Kruse v. Johnson. On the other hand, these are powers to take away the right of the subject to deal with his own land as he thinks fit, and therefore they should be reasonably clear in so far as they deprive the landowner of his property."

The effect of the draft town plan in this case will be to prevent the plaintiff from obtaining approval to his building plans which in its turn will have the effect of preventing him from developing his own land as he thinks fit. However, the purpose of this Ordinance is to promote the health, safety, convenience and general welfare of the community and I am therefore satisfied that if I should err it would be better for me to err on the side of benevolence and to hold this plan good if I can. Section 19 of the Interpretation Ordinance encourages me in this belief notwithstanding a difficulty I have in understanding the final seven words of that Section.

21. My approach to the plan in this case must not only be made benevolently in an attempt to keep it alive if I can but also with sympathy for the wholly natural desire of the Planning Board today to use a system of planning which is flexible in its nature. Undoubtedly there are various ways in which it can do this with propriety. It can set apart zones or districts for specified uses thus for example in plan No. LH5/34B an area is set aside for "tramway depot/car parks/shops/supermarkets/department stores/showrooms/offices but excluding any form of residential accommodation including an hotel." Again it may set apart zones or districts for undetermined uses and finally I do not consider that any objection could reasonably be taken to its setting aside zones or districts for a combination of uses. No objection was taken before me to the designation of an area as "commercial/residential". Such, however, is the construction of Sections 3 and 4 of the Ordinance that I think that try as I may to preserve the plans I am driven to the conclusion that the expressio unius rule must apply to Section 4(1). The rubric: "Functions of the Board" for Section 3 is I consider well chosen while I appreciate that I may not use it for the purposes of construction. The purpose of Section 3 os to define the duties of the Board. Those duties are to undertake the systematic preparation of draft plans for the future layout of existing and potential urban areas as the Governor may direct as well as for the types of building suitable for erection therein. A subsidiary duty is to make such enquiries and arrangements including the taking of a census as the Board may consider necessary for the preparation of its drafts. Section 4(1) says that the Board's draft plans for the layout of any such area may show or make provision for five separate things. It enumerates five only. There are no general words. As recently as 1969 the Legislature thought fit to add the fifth of the matters for which the draft plans might make provision namely zones or districts set apart for undetermined uses. That the Legislature considered it necessary to add this fifth class of matters which the plans might show or make provision for is of course not conclusive that they could not have made provision for uses not mentioned in the other four paragraphs before the amendment was made, but I cannot ignore the fact that it was considered necessary to amend the Ordinance to include undetermined uses. What is even more important is that at the time the amendment was made no general words were added. Since Section 3 concerns itself with duties and Section 4 with powers, that is the powers to define an area in the draft plan as suitable for a particular purpose, I consider that the matters which their plans may show or make provision for must be regarded as being exclusive. Their plans may show or make provision for those matters and for no others. By reason of Section 16(1) (d) of the Buildings Ordinance if the plans show or make provision for any matters mentioned in paragraphs (a), (b), (c) and (d) of Section 4(1) then the Building Authority must refuse to give its apprval of plans of building works where they would contravene the town plan. [I do not consider he could refuse his approval on the ground of contravention if the zone or district in question had been set apart for undetermined uses.] Once it is accepted that the expressio unius rule applies the next question for determination is whether by using the notes the Board has done something more than set apart a zone or district for residential use. It is argued on behalf of the Crown that they do not; that they grant concessions. If the notes have validity, the zones or districts can, with difficulty, be said to be "set apart" for the designation shown on the plan. The suggestion that the notes grant a concession does not I consider bear examination. They grant the possibility of an exception. They seek to give flexibility but it is a flexibility of a kind not included in or contemplated by Section 4(1). Furthermore what exceptions may, possibly, be granted are not defined. Some non-industrial uses may be permitted but only non-industrial uses "such as" shops, hotels, open spaces, petrol filling stations etc. In the first note to plan LH5/34, that in force at the time of the original submission, it seems that offices would not be regarded as being included in the non-industrial uses mentioned because offices are expressly mentioned in the second paragraph - that relating to commercial/residential. If the notes only contain concessions therefore they contain concessions that are doubtful in their nature. To my mind however it is clear that their purpose is to preserve flexibility not to grant concessions. The manner in which the flexibility is sought is not a manner permitted by the Ordinance. The insertion of the notes is therefore in my opinion ultra vires.

22. A further ground on which the plan is attacked is that because of the notes it is uncertain in its operation. Uncertainty as a ground of attack on subsidiary legislation has always been recognised. A Legislature when delegating powers of legislation cannot anticipate that they will be exercised in such a manner as to cause so great an uncertainty that they will be unenferceably, as appears from such cases as Fawcett Properties Ltd. v. Buckingham County Council⁽⁵⁾ and Hall & Co. Ltd. v. Shoreham-by-sea Urban District Council⁽²⁾. In the Fawcett's case⁽⁵⁾ the respondent counsel acting under Sections 14 and 36 of the Town and Country Planning Act 1947 granted a permission to develop an area by building a pair of cottages subject to a condition that

"the occupation of the houses should be limited to persons whose employment or latest employment is or was employment in agriculture as defined by Section 119(1) of the Town and Country Planning Act 1947, or in forestry or in an industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid."

This condition was held not to be void for uncertainty. Lord Cohon was at pains to point out that while the condition was not a statutory provision but a condition imposed in a planning permission its language

"is taken from the definition of agricultural population in Section 34 of the Housing Act 1930. See also Section 115(2) of the Housing Act 1936. It is true that the context in which the expression under consideration is used in those Acts is different from that in which it is used in the condition imposed under the Town and Country Planning Act 1947. But I agree with the Master of the Rolls that it is 'inescapable that, if Mr. Megarry's arguments that the language in the condition to which I have referred is void for uncertainty in the context of the condition, it is no less void for uncertainty in the context of the Housing Acts.' .... In the present case the words which are alleged to create the uncertainty are not added to restrict the land-owner's enjoyment of his land but to mitigate the severity of the restriction which the respondents are imposing on that enjoyment."

[I would remark in passing that at first sight this last sentence has some relevance to the matter before me. The notes are not added to restrict the landowner's enjoyment of his land. Equally however it is not their purpose to mitigate the severity of the restriction which the respondents are imposing on that enjoyment. Their purpose is to give flexibility. If valid they may well mitigate the severity of the restriction on the landowner's enjoyment of his property. But the plan of which they form part creates the restriction.] The following passages on the question of uncertainty appear in Lord Denning's speech in Fawcett's case⁽⁵⁾:

It will be noted, then, that the approach in Fawcett's case⁽⁵⁾ to the question of construction was on the basis that the condition was in the wording of a statute. The uncertainty complained of in Hall & Co. Ltd. v. Shoreham-by-sea Urban District Council⁽²⁾ arose from two conditions: one requiring the applicants to construct an ancillary road over the frontage of their site "as and when required" and to give a right of passage over it to and from "such ancillary roads" as might be constructed on the adjoining land and the second stating that the new access should be temporary for a period of five years "initially" but that the local authority "will not enforce its closure until the ancillary roads ... shall have been constructed ..." Counsel in that case sought to show that it was impossible for the developers to know exactly what they would be required to do and when. It was held that the test is not whether the developer was left uncertain but whether the language of the condition makes sense, that is was capable of a reasonable construction. Willmer L.J. held that the meaning of the words was plain enough:

"The plaintiff must construct their ancillary road as the authority may require and when the authority may require it."

There was, he suggested, no uncertainty there, for while it might be difficult to know in advance how extensive the roads might be, there was not any uncertainty as to what the words meant. The conditions in that case were held to be bad because of their unreasonableness. The uncertainty put forward in that case however was uncertainty in the sense of there being an ambiguity, not a difficulty of constriction. On the other hand, Harman L.J. "with the best ill in the world" found himself

"quite unable to make up my mind what the intention is and what is the extent of the obligation of the appellants if they accept condition 3."

He was prepared to hold that the condition was bad for uncertainty. Pearson L.J. put it like this:

"The first question to be considered in respect of each condition is whether it is void for uncertainty. Mere ambiguity would not render a condition void, because it is the duty of the court to resolve any ambiguity if it can be resolved. On the other hand, if the wording of a condition is so vague that no precise meaning can be attributed to it, such a condition is void for uncertainty."

That this second kind of uncertainty, that arising from vagueness (rather than ambiguity), can properly be used to impugn subsidiary legislation is also quite clear from McEldowney v. Forde⁽⁶⁾. In that case all five Law Lords accept that a regulation which is too vague and uncertain is ultra vires. In the result three of the Law Lords held that the regulation in question was not too vague and uncertain while the other two held that it was. The degree of vagueness and uncertainty required before a condition can be said to be ultra vires would appear to be very high judging from that case but in the case of the draft plan in question here the notes are clearly vague and purposely vague. In the first and second notes the use to which "such as" are applied have nothing in common. It is impossible to say with regard to the second note what non-domestic uses would be permitted. It may be possible to deduce from the first note that offices would not be included in the non-industrial uses there envisaged because they are specifically referred to in the second note and are not in the first note. But be that as it may the use of the words "such as" creates a very high degree of vagueness. In Prestcold (Central) Ltd. v. The Minister of Labour⁽⁷⁾ Lord Diplock said at page 98:

"Before you include in the expression introduced by 'such as', an activity which is not expressly described you must first discover from the context in which the expression appears what are the relevant common characteristics of the activities expressly described, and then decide whether the undescribed activity shares those characteristics."

I can discover no common characteristics of the uses expressly described in either paragraph one or paragraph two of the notes. Winn L.J. at page 99 of the same report and said:

"any such suggested implication could be compared to a contention that the expression 'animals of the forest such as tigers' might comprise elephants."

I consider that if there is no common characteristics in the words following "such as" the whole is meaningless. Again in my view the words "may be permitted" introduce a wholly unacceptable degree of uncertainty. When the permission is to be granted and by whom, how it may be sought - none of these is provided for. Mr. Somerville suggested that any uncertainty could readily be resolved by consultation between the Building Authority and the Town Planning Board. But the draft plans do not exist only for those bodies. They are no longer mere "standards for guidance". They must be so certainly expressed that if a member of the public wishes to object to them he can know to what he is objecting. I consider that the uncertainty is so great that the notes are invalid.

23. The next objection by the plaintiff in its attack on the notes was that they were void because they took into account or indicated that the Town Planning Board was taking into account matters not related to its purposes. This objection was based on the proviso in the first and second notes; that is, the proviso that the uses should not infringe the conditions of Crown Leases or other enactments. If I understood it correctly it went something like this. The only body which could give any permission required by the notes must necessarily be the Town Planning Board; that Board must concern itself with matters limited to its purposes - namely planning. The note indicates that it will look at two extrinsic matters - namely to the Crown Leases and other enactments. I do not consider that this is a valid objection. The reference to Crown Leases and other enactments I regard as no more than a warning that if permission is given that permission would not override the provisions of the Crown Leases or other enactments.

24. The next ground upon which the notes were attacked was that of unreasonableness. Because of my finding as to uncertainty it is not necessary for me to decide this point, Because of the interesting argument of counsel and since this case may go further I will deal with it. On the premise that the Building Authority if confronted by a question as to whether a non-industrial use might be permitted on land designated "residential" would consult either the Planning Officer or the Planning Board for a decision, the notes were unreasonable, it was contended, because in such event there was no provision that the landowner interested should be heard and no provision for appeal against the refusal of a permission. In the instant case it was clear that the Building Authority after refusing approval and on receiving representation from the plaintiff had consulted the Planning Officer and had been advised that he was correct in refusing approval of the building plans. The plaintiff had not been given an opportunity to be heard when this decision was taken. In Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation⁽⁸⁾ a condition was attached by a local authority to a licence given to the plaintiff for Sunday performances that no children under 15 years of age should be admitted with or without an adult. This condition was attacked on the ground that the local authority had acted unreasonably in imposing it. It was decided that the unreasonableness on which a court is entitled to act in regard to conditions prima facie within the power of the local authority is unreasonableness of such a nature that no reasonable, no sensible, person could ever dream that it lay within the powers of the authority acting within the four corners of its jurisdiction to impose such conditions. Once the local authority had properly taken into consideration a matter of public interest the court could not interfere because it took a different view as to what was in the public interest. "The power of the court to interfere in each case is not as an appellate authority to override a decision on of the local authority, but as a judicial authority which is concerned and concerned only to see whether the local authority have contravened the law by acting in excess of the powers which Parliament have confided in them." Considerable reliance was placed upon a passage in the judgment of Lord Greene in this case in which he said:

"In the result this appeal must be dismissed. I do not wish to repeat myself but I will summarize once again the principle applicable. The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account."

In Mixnam's Properties v. Chertsey Urban District Council⁽¹⁾ certain conditions attached to a caravan site licence were attacked as unreasonable. At page 226 Willmer L.J. said:

"The conditions must not be unreasonable, that is, such as Parliament clearly cannot have intended should be imposed."

Considerable stress was laid on a passage from the judgment of Diplock L.J. in which he said:

"Thus the kind of unreasonableness which invalidates a by-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say 'Parliament mever intended to give authority to make such rules.'"

This, counsel for the plaintiff regarded as a gloss on the quotation from Lord Greene which I set out above. The Legislature he suggested could never have intended the powers under the Ordinance to be used so as to prevent, or fail to cater for parties interested in obtaining a permission appealing or being heard. The Mixnam's case⁽¹⁾ went to the House of Lords. Viscount Radcliffe says (1965 A.C. 735 at page 753):

"I agree, therefore, with the view expressed by Diplock L.J. in the Court of Appeal when he says that such supposed grounds of invalidity in subordinate legislation as unreasonableness, repugnancy, arbitrariness or in justice must be regarded as particular application of 'the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute.' If they cannot be brought within the contemplation of that general rule they are not, in my opinion, valid grounds of invalidity at all, for it is the local authority, not the law court, that is ontrusted with responsibility for making the conditions that it thinks the circumstances require."

It is clear from the agreed bundle of documents and from the evidence of Mr. Rowley that prior to the rejection of these building plans as being in conflict with plan No. LH5/34 the Building Authority did not consult with the Town Planning Board nor with any Planning Officer. It is equally clear that the practice of consultation was not unknown for a minute on the Government file shows that Mr. O'Sullivan consulted with Mr. Wigglesworth, the Chief Planning Officer. I consider that I may take it as established then that a practice existed following which the Building Authority might from time to time consult with the Planning Officer, if not the Town Planning Board, as to whether permission would be granted in one of the "border line" cases contemplated by the notes. The notes do not provide any opportunity of appeal against a decision that one of these "border line" cases may not be permitted. They do not contain machinery whereby the person aggrieved by the refusal of permission can be heard before a decision as to whether permission be granted or refused is made. Therefore, argues the plaintiff, they are unreasonable. I cannot see how the absence of a right of appeal of itself constitutes unreasonableness. Since it is the Town Planning Board that has the right to set aside zones assuming the notes to be otherwise valid it must be that body which has the right to decide whether any departure from the zones set aside should be permitted. Their decision would necessarily be a decision as to whether a departure from a general rule laid down by them should be allowed. This would be a matter of policy which the Board would be best fitted to decide and I should not have thought that the Legislature must necessarily have been taken to require them to set up an appellate tribunal from their decision. I cannot see any "manifest arbitrariness, injustice or partiality" in the failure of the notes to provide for any system of appeal.

25. It has also been argued that the absence of a right to be heard is fatal; that the Legislature could never have intended the power to refuse permission to be used without both parties being heard; that this right, summed up in the maxim "audi alteram partem" is not limited to judicial proceedings is well established see Cooper v. Wandsworth Board of Works⁽⁹⁾; Reg. v. Gaming Board⁽¹⁰⁾ at page 430 and Ridge v. Baldwin⁽¹¹⁾. However as Lord Denning M.R. Said in Reg. v. Gaming Board⁽¹⁰⁾ at page 430:

"It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter:"

In Durayappah v. Fernando⁽¹²⁾ Lord Upjohn in delivering the reasons for the report of the Judicial Committee said at page 349:

"Their Lordships were of course referred to the recent case of Ridge v. Baldwin (1964) A. C. 40 where this principle was very closely and carefully examined. In that case no attempt was made to give an exhaustive classification of the cases where the principle audi alteram partem should be applied. In their Lordships' opinion it would be wrong to do so. Outside well-known cases such as dismissal from office, deprivation of property and expulsion from clubs, there is a vast area where the principle can only be applied upon most general considerations. .... Outside the well-known classes of cases, no general rule can be laid down as to the application of the general principle in addition to the language of the provision. In their Lordships' opinion there are three matters which must always be borne in mind when considering whether the principle should be applied or not. These three matters are: first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. It is only upon a consideration of all these matters that the question of the application of the principle can properly be determined."

The nature of the property held by the complainant of injustice in a case to which the notes applied would be land situated in an area or zone the development of which was restricted by the draft town plan. The circumstances in which the Board would be entitled to intervene would be where permission is sought to depart from the general rule. The sanction to be imposed is refusal of permission to depart from the general rule. I cannot see that these are circumstances in which I am driven irresistibly to the conclusion that the Legislature could never have intended the powers to be used without both parties being heard. In Taylor v. Brighton Borough Council⁽¹³⁾ the insertion in a town planning scheme of a provision that the use of land in the area affected by the scheme for a fun fair was not to be commenced without the consent of the local authority was called in question. The following passages occurred in the judgment of Lord Greene M.R.:

"The question whether or not such a provision can lawfully be included in a planning scheme under the relevant Act, which is the Town and Country Planning Act 1932, depends, of course, on the true construction of that Act ... It becames necessary to look and see what are the limits laid down by Parliament as to the extent and scope of a planning scheme under the Act of 1932. The Act starts off with a most comprehensive power. The rubric, which includes only s.1, is 'Scope of planning schemes' and this section is as follows:

As was pointed out by the Lord Chief Justice in the Divisional Court, those words are extremely wide. It is a legislative permission to make a scheme with the general objects of controlling the development of the land comprised in the area to which the scheme applies. The word 'development' is defined by s.53 as including 'any building operations or rebuilding operations, and any use of the land or any building thereon for a purpose which is different from the purpose for which the land or building was last being used.' This particular land and building was being used as a garage before it was converted into a fun fair. If the enabling provisions of the Act had finished there, I cannot entertain any doubt that the restriction proposed to be imposed in this case would have fallen within the words 'general object of controlling the development of the land'. It seems to me that you can control user of land just as much by prohibiting a particular user by saying: 'It shall only be used in a certain way in certain conditions,' or by saying: 'It shall not be used for a particular purpose without the consent of the authority.' It is a pure matter of English. To prohibit use without consent is a manner of controlling development, just as much as an absolute prohibition."

Having concerned himself at some length in an examination of the detailed provisions of the Act, Lord Greene M.R. went on to say:

He summed up as follows:

"My opinion is this case is based on the broad consideration that Parliament has chosen to use language comprehensive enough to include a provision of this kind, and has not indicated expressly or impliedly any intention that that language should be cut down in the manner for which the appellant contends. It was said that some restriction ought to be read into the language of the Act prohibiting this particular provision on some principle of what is called reasonableness and that a delegated power such as this must be used reasonably rather on the same principle as the power to make a by-law. In my judgment, the analogy of the by-law, even if it could carry the appellant as far as suggested, is quite out of place in the present circumstances."

It is pointed out by counsel for the plaintiff that the decision in this case depended entirely on the true construction of the Town and Country Planning Act 1932. The terms of that Act were vastly different from the terms of our Ordinance and the arguments advanced would have been vastly different had our Ordinance been under consideration there. Nevertheless the observations of Lord Greene which I have quoted above appear to me (while not affecting my approach to the interpretation of Section 4(1) of our Ordinance or the question of the uncertainty of the notes) to go a long way in establishing that the provisions of the notes cannot be attacked on the ground of unreasonableness alone. Had the Board power to achieve flexibility in the manner sought by the notes and had the notes been sufficiently certain in their language I could not have regarded them as invalid because of the absence in them of a right to appeal or because of their failure to observe the maxim audi alteram partom. I regard them as invalid only because they are not within the powers of the Board as laid down in Section 4(1) of the Ordinance because of the expression unius rule and because they are so uncertain in their application as to be unacceptable and hence are ultra vires. Even bearing in mind Diplock L.J. 's suggestion that the various special grounds such as "uncertainty" and "unreasonableness" are particular aspects of one general rule I do not consider that breach of that general rule is the more readily made out by the "unreasonableness" of which complaint is made here. Perhaps it would have been more equable if provision had been made for an appeal and a hearing of the party affected but that omission I can regard as neither unreasonable nor as assisting in showing breach.

26. The next question which I have been asked to consider is the question whether the notes can be severed so that the rest of the plan remains good. Counsel for the Crown has urged me to regard the notes as a "blot" on the plan and to hold that the plan would be good without them in the same way as the scheme was made good by the Minister of Health in the Minister of Health v. The King ex parte Yaffe⁽¹⁴⁾. The scheme in that case was made under the Housing Act 1925 which enabled local authorities to make an improvement scheme for an unhealthy area; such a scheme was to be "for the re-arrangement and re-construction of the streets and houses within the area." As soon as such a scheme was prepared it was to be published and served on persons immediately interested. Thereupon the local authority was obliged to present a petition to the Minister praying that an order might be made confirming the scheme. A document purporting to be a scheme was in due course submitted to the Minister of Health for confirmation. The first part of this document after defining the area proposed to be dealt with empowered the corporation in general terms to make and widen and stop up or deviate any street in the area, directed them to appropriate other parts of the land to the erection of dwelling houses for the working classes and provided that any lands not required for these purposes might be disposed of as the corporation might think fit. The Minister, after holding a public local inquiry, made an order modifying the scheme by providing that the whole of the lands in the area should be used for the purposes of rehousing, and confirmed the scheme. His order so doing was attacked as being made without jurisdiction inasmuch as the scheme which the order purported to modify and confirm was not an improvement scheme in that it provided that some of the land within the area might be disposed of as the corporation might think fit. In The King v. Minister of Health ex parte Davis⁽¹⁵⁾ a scheme had been held bad on the ground that it provided for clearing the unhealthy area only and did not provide for its improvement but left the disposition of the land contained in it at the disposal of the local authority concerned. In the course of his judgment in Yaffe's case⁽¹⁴⁾ Viscount Dunedin said:

"My Lords, the last words of limitation seem to me to show that otherwise the Minister is unfettered in the conditions which he may impose, or modifications he may make. I do not, of course, suggest that if there was something sent up which was really not a scheme at all, the Minister could confirm it. He is not the author of the scheme; he is the critic and the finisher of it. In particular he may, I think, remove any blot which he finds in it as presented, and in the word 'blot' I include any provision which, if left untouched, would not be in conformity with the Act."

My position in considering the possible validity of the plan LH5/34 does not approximate to that of the Minister whose action is administrative. I am not the critic or finisher of the scheme and cannot rewrite it or the notes attached to it. My function is to decide whether the draft plan LH5/34 is or is not good. I cannot sever the good from the bad if by doing so the essential character of the plan would be altered. That was the test applied in the Potato Marketing Board v. Merricks⁽¹⁶⁾ at page 333 where Devlin J., as he then was, said:

"In all these cases the question to be asked is whether the bad part can be effectively severed from the good. I think that the demand ... can be struck out from the form without altering the character of the rest of it."

In Kingsway Investments (Kent) Ltd. v. Kent County Council⁽¹⁷⁾ at page 113 Lord Upjohn approved that test saying:

"By 'effectively severed' I think that the learned judge meant effectively severed without making nonsense of that which remained. Certainly this has been the interpretation placed upon the principle in the by-law cases."

He went on to say:

"There have been recent cases under the 1947 Act where the invalid condition was held to bring down the whole permission. In the first - Pyx Granite Ltd. v. Ministry of Housing and Local Government (1958) 1 Q.B. 554, 578-579 Hodson L.J. said it was 'impossible to mutilate the Minister's decision by removing one or more of the conditions.' Another example was Hall & Co. Ltd. v. Shoreham-by-sea Urban District Council (1964) 1 W.L.R. 240 where, applying the observations of Hodson L.J. in the Pyx Granite case (1958) 1 Q.B. 554, the Court of Appeal held that the invalid condition brought down the whole permission. Pearson L.J. at page 261, thought that only unimportant or trivial conditions could be rejected, leaving the remainder standing. In these two cases (clearly correctly decided on this point), however, it is of cardinal importance to note that the invalid conditions went to the root of the planning permission itself and severely restricted the permission applied for and the observations of Hodson & Pearson L.JJ. respectively must be read in that light."

The whole purpose of these notes is I have held to enable the Planning Board to preserve flexibility. Without them the whole character of the plan would be changed. It would become a rigid system of control. I have no doubt whatsoever that had the Planning Board appreciated that they could not provide for flexibility by means of the notes they would have provided for it in another way either by setting aside zones for indeterminate uses (in which cases the Building Authority would have no jurisdiction under Section 16(1) (d) of the Buildings Ordinance over those areas) or by providing for specified uses. To do otherwise would not be good planning. An inflexible plan was not what was intended to be created by this document (plan LH5/34) and therefore I think it must go in its entirety.

27. It was suggested for the plaintiff that if the plan was valid the carrying out of the building plans submitted would not be a contravention of it if the notes are allowed to stand. While I am not called on to decide this point in view of my earlier findings I consider that the intention of the notes was almost certainly that offices should not be erected in an area which had been designated as residential. The first note was neither certain nor exhaustive but the reference to offices in the second note strongly suggests that the word could not be read into the first note.

28. When the proceedings commenced before me, the Crown contended, on the pleadings, that the refusal of the Building Authority to approve the building plans on one ground only, namely, that they contravened the town plan, was good. In the course of the hearing, the Crown applied for leave to amend its statement of defence so as to include a second ground for refusal namely that under Section 4(1) (g) of the Buildings Ordinance. Mr. Somerville claimed to be entitled so to do because of Section 15(2) of the Ordinance which reads:

"(2) The grounds set out for any refusal to approve plans shall not be treated as being exhaustive, and no such refusal shall be construed as applying any approval of any part of such plans."

Mr. Widdicombe argued that this amendment should not be allowed since the Crown all along had placed reliance on the non-compliance with the town plan. The application came too late and would have the effect of depriving the plaintiff of a right to appeal against the refusal of the draft plan which right of appeal was conferred by Section 44 of the Buildings Ordinance.

29. Having heard the evidence of Mr. Rowley to the effect that the Building Authority had Section 16(1) (g) in mind from the outset, that it had not seemed necessary to quote grounds other than provided by Section 16(1) (d) and having been satisfied that the plaintiff's right of appeal to a tribunal under Section 43 of the Buildings Ordinance would in any event be preserved, I allowed the amendment and the defence was amended accordingly. Mr. Widdicombe nevertheless argued that, before an additional ground of refusal could be added under Section 15(2), there had to be a valid refusal to which to attach it - that is to say there had to be one valid ground of refusal in the document before Section 15(2) could take effect. I do not think Section 15(2) can be interpreted in that way. What it is intended to convey is, that, provided the fact of refusal is notified the plans are not deemed to be approved if a valid ground for their rejection is available. Since this additional ground of refusal was one within the discretion of the Building Authority and since I was not satisfied that that discretion was improperly exercised and was satisfied that it was exercised because, in the opinion of Mr. Rowley, the proposed development was not suited to the area and since the plaintiff is still free to appeal to a tribunal under Section 43 by reason of the Crown's undertaking, I am of the opinion that the building plans cannot be deemed to have been approved.

30. To sum up, I find that the Outline Zoning Plan No. LH5/34 and LH5/34A were invalid ab initio and therefore cannot confer on the Building Authority the power or the duty to refuse approval of the building plans under Section 16(1) (d) of the Buildings Ordinance: if the Outline Zoning Plans had been held to be valid I should have held that the building plans contravened them; the plaintiffs do not have deemed approval for their building plans because of the existence of the valid ground of refusal under Section 16(1) (g) of the Buildings Ordinance. This is a "discretionary" ground of refusal against which an appeal to another tribunal lies under Sections 43 and 44 of the Buildings Ordinance.

31. The plaintiff is accordingly entitled to a declaration that the alleged draft Outline Zoning Plans Nos. LH5/34 and LH5/34A are invalid, void and of no effect but to no further relief.

32. The plaintiff is entitled to the costs of these proceedings.

Representation:

Mr. Widdicombe, Q.C. & Mr. Arculli (Woo, J. wan, Lee & Lo) for the plaintiff.

Mr. Somervilled, c.c. for the Crown/Defendant.

(1) (1964) 1 Q.B. 214.

(2) (1964) 1 W.L.R. 240.

(3) (1898) 2 Q.B. 91.

(4) (1927) A.C. 343.

(5) (1961) A.C. 636.

(6) (1971) A.C. 632.

(7) (1969) 1 W.L.R. 89.

(8) (1948) 1 K.B. 223.

(9) (1863) 14 C.B.N.S. 180.

(10) (1970) 2 Q.B. 417.

(11) (1964) A.C. 40.

(12) (1967) 2 A.C. 337.

(13) (1947) 1 K.D. 736.

(14) (1931) A.C. 494.

(15) (1929) 1 K.B. 619.

(16) (1958) 2 Q.B. 316.

(17) (1971) A.C. 72.