Lo Chan Wan v. Appeal Board and Another
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IN THE COURT OF APPEAL 1995, No. 150 BETWEEN
__________________ Coram: Power VP and Bokhary & Ching JJA Dates of Hearing: 12-15 December 1995 Date of handing down of Judgment: 24January 1996__________________ JUDGMENT __________________ Bokhary JA : INTRODUCTION 1. This case concerns a vast tract of unbuilt land in the New Territories. Planning permission for the development of such land had been sought from the Town Planning Board ("the Planning Board"). The Planning Board refused such permission. Dissatisfied, the developers appealed to the Town Planning Appeal Board (“the Appeal Board”). Allowing that appeal, the Appeal Board granted such permission. Whereupon the Planning Board took the developers and the Appeal Board to the High Court seeking judicial review of the Appeal Board's decision. The High Court refused judicial review. And now the Planning Board appeals to this Court against the High Court's refusal of judicial review. 2. We have heard counsel for the Planning Board and counsel for the developers. The Appeal Board was represented in the court below but has not attended before us. It leaves the matter in our hands on the basis of the arguments presented on behalf of the other parties. The land 3. Most of the land concerned is in Nam Sang Wai, and consists essentially of fish-farming ponds, most of them abandoned. The remainder is to the north, being Lut Chau, essentially an uninhabited island. Further to the north-east is Deep Bay. And further to the north-west is the Mai Po Nature Reserve. The proposed development 4. The proposed development (to be known as Sunnyville Estate) is on a large scale. It would comprise an 18-hole golf course integrated with 2,550 residential units. 1,080 of those units would be accommodated in 25 blocks ranging from seven to eight storeys in height. The golf course and buildings would be arranged so that the fairways snake their way between clumps of buildings. 5. Sunnyville Estate would be in Nam Sang Wai. It would occupy 98.3 hectares. Of those 98.3 hectares, the developers own 76.4 hectares. They hope to obtain the remaining 21.9 hectares from the Government. And they hope to obtain the same in exchange under an arrangement whereby they would build a 45-hectare nature reserve in Lut Chau partly on Government land and partly on 21.9 hectares of their own, and then surrender to the Government the whole nature reserve, the future maintenance of which would be funded by a levy on future Sunnyville Estate owners. That is the exchange arrangement which the developers hope to persuade the Government to enter into with them. The application for planning permission 6. The application for planning permission for the Sunnyville development was under section 16 of the Town Planning Ordinance, Cap. 131. In this judgment, all references to sections will be to sections of that Ordinance. Section 16 provides, among other things, that where "a draft plan or approved plan provides for the grant of permission for any purpose, any application for the grant of such permission shall be made to the [Planning] Board." 7. The application was necessary because the land on which the developers proposed to build Sunnyvil1e Estate ("the Sunnyville site") fell within an area covered by a draft plan making permission necessary for such a development. 8. That came about in this way. The draft Nam Sang Wai DPA plan 9. The area had been designated a development permission area (commonly called a "DPA"). It had been so designated in a draft development permission area plan made by the Planning Board under section 3(1)(b), namely Draft Nam Sang Wai Development Permission Area Plan No.OPAIYL-NSW/1. (I will refer to that area as "the Nam Sang Wai OPA" and to that plan as "the draft Nam Sang Wai DPA plan".) 10. Notice of the draft Nam Sang Wai DPA plan was first published in the Gazette pursuant to section 5 on July 12, 1991. Section 20(5) provides that draft plans prepared under section 3(1)(b), whether or not they become approved plans, are effective for three years after such publication subject to a one-year extension by the Governor in Council on the Planning Board's application. 11. The draft Nam Sang Wai DPA plan sets out, in notes general to the area as a whole and also in notes pertaining to particular parts thereof, the types of development - all of a modest kind - for which permission need not be obtained since permission for such developments within the Nam Sang Wai DPA is given by the plan itself. For all other developments within the area, permission must, the plan provides, be obtained from the Planning Board under section 16. 12. Of the area covered by the draft Nam Sang Wai DPA plan: 1.34, 2.77, 0.46, 5:52 and 2.24% respectively are scheduled-for "Village Type Development", "Residential (Group C)", "Govemment/Institution/Community", "Open Storage" and "Major Road etc" respectively; while 87.67% is scheduled as of "Unspecified Use". By looking at the plan, you can see how each part of the area is so scheduled. The Sunnyville site within that plan 13. The Sunnyville site is partly on Residential (Group C) land and partly on Unspecified Use land. 14. Development on Residential (Group C) land is restricted by the draft Nam Sang Wai DPA plan to, subject to such minor relaxation as the Planning Board may permit, a maximum plot ratio of 0.4, a maximum site coverage of 20% and a maximum building height of two storeys over one level of carport. To avoid any problem which any of those maxima may pose, the Sunnyville Estate buildings would, save for some single family town houses, be located outside Residential (Group C) land. 15. But that would put them on Unspecified Use land. And on such land, the draft Nam Sang Wai DPA plan makes the permission of the Planning Board under section 16 necessary for any development beyond the following uses: "Agricultural Use", "Ancestral Hall", "Burial Ground", "Plant Nursery", "Police Post/Police Reporting Centre", "Post Office", "Rural Committee Building", "Shrine" and "Tree Plantation". Obviously, the Sunnyville Estate development would go well beyond those uses. APPLICATION TO THE PLANNING BOARD FOR PLANNING PERMISSION 16. It is common ground, therefore, that the Sunnyville Estate development requires the permission of the Planning Board under section 16. Paper refusal 17. The developers' application for such permission was lodged on August 1, 1992. By a letter dated November 25, 1992, the Planning Board refused permission. And by a letter dated December 12, 1992, the developers applied under section 17 for a review of such refusal. 18. Section 16 applications are dealt with on paper. Still refused after oral review 19. In a section 17 review, however, the applicant is entitled to attend before the Planning Board to make oral representations. 20. That happened here. The hearing before the Planning Board took place on June 11, 1993. 21. The result of the review was communicated to the developers by a letter dated July 9, 1993, from the Planning Board's Secretary: the Planning Board continued to withhold permission. APPEAL TO THE APPEAL BOARD AGAINST THE PLANNING BOARD'S REFUSAL OF PLANNING PERMISSION 22. Anyone aggrieved by a decision of the Planning Board in a section 17 review has, by virtue of section 17B, a right of appeal against such decision to the Appeal Board. And the Appeal Board may "confirm, reverse or vary the decision appealed against". 23. So the respective functions of the two boards and their inter-relationship may be shortly stated thus. The Planning Board makes plans and entertains applications for planning permission required under such plans. The Appeal Board hears appeals against decisions of the Planning Board refusing such permission. 24. Exercising their section 17B right of appeal against the Planning Board's July 9, 1993, refusal of permission, the developers lodged a notice of appeal to the Appeal Board on September 4, 1993. 25. That appeal was heard by an Appeal Board presided over by its Deputy Chairman, Mr Robert Tang QC, who sat with three members. 26. It was heard over a number of sessions from mid March to late May 1994. The draft Nam Sang Wai OZP 27. On June 3, 1994 - between the last hearing before the Appeal Board in May and the Appeal Board's decision in August - the Planning Board published, under section 5, Draft Nam Sang Wai Outline Zoning Plan No. S/YL/NSW/1 ("the draft Nam Sang Wai OZP"). The draft Nam Sang Wai OZP replaced the draft Nam Sang Wai DPA plan, and introduced "Recreation" zoning. What had been Unspecified Use land under that draft DPA plan became Recreation land under that draft OZP. (What had been Residential (Group C) land under the former remained such land under the latter.) 28. Outline zoning plans are prepared under section 3(1)(a), being "draft plans for the lay-out of such areas of Hong Kong as the Governor may direct, as well as for the types of building suitable for erection therein". 29. When a DPA plan is replaced by an OZP plan, the former ceases to be effective. But that is subject to section 20(6A), which provides that notwithstanding that a plan so ceases to be effective
30. The Appeal Board had heard argument in anticipation of the draft Nam Sang Wai OZP. A copy of the same was sent to it on June 22, 1994. And it dealt with the same in its decision. Background 31. At this stage, it may be useful to note certain notorious background facts. 32. By 1990, considerable concern was widely felt over the alarming extent to which land in the New Territories was being used for open storage. That particular mischief was symptomatic of a more general mischief: namely an unacceptable lack of planning control in the New Territories. 33. A bill was introduced for the purpose of providing a remedy. It was a bill to amend the Town Planning Ordinance by the addition of provisions for such planning control. 34. At the second reading of the bill on November 7, 1990, the Secretary for Planning, Environment and Lands made a statement in the Legislative Council neatly outlining the legislative scheme of planning control which became law when the proposed legislation was enacted. He said:
The accuracy of that statement in general and of the reference to "an interim measure" in particular is borne out by the sections to which I have earlier made reference, particularly sections 3 and 20. Appeal Board allows the developers' appeal 35. Coming back to what the Appeal Board did in the present case, on August 26, 1994, it gave its decision allowing the developers' appeal. That decision was by a majority of three to one. The majority's written decision allowing that appeal is accompanied by a written dissent prepared by the dissenting member who favoured dismissing the appeal. Upon a number of planning conditions 36. In allowing that appeal, the majority did so upon a number of planning conditions. These are set out in a seven-page document headed "Planning Conditions" forming an appendix to their decision. Those conditions come under the headings of: "Master Layout"; "Master Landscaping"; "Partitioning of Nam Sang Wai Site"; "Density and height"; "Environmental Impact"; "Conservation Plan"; "Off-site pollution control"; "Drainage"; "Traffic"; "Water Supply' and "Schools". 37. By the penultimate paragraph of such appendix, it is stated that: "The permission of the application shall cease to have effect 5 years from the date of giving of planning permission unless prior to the said date either the permitted development is commenced or the permission is renewed." 38. The final paragraph of the appendix reads: "There shall be liberty to apply to this Appeal Board for directions as to the carrying the aforesaid conditions into effect". APPLICATION TO THE HIGH COURT FOR .JUDICIAL REVIEW OF THE APPEAL BOARD'S DECISION REVERSING THE PLANNING BOARD'S REFUSAL OF PLANNING PERMISSION 39. No appeal lies against decisions of the Appeal Board. But such decisions are open to judicial review. 40. The Planning Board sought judicial review of the Appeal Board's decision, seeking :
The five conditions originally attacked 41. I will set out the five planning conditions which the Planning Board originally singled out for such specific attack. 42. The two under the heading "Conservation Plan" call for the submission and implementation of the following to the satisfaction of the Director of Lands or of the Planning Board :
Lut Chau is within another development permission area, having been so designated in Draft Mai Po and Fairview Park Development Permission Area Plan No.DPA/YL-MP/1. (I will refer to that area as "the Mai Po DPA" and to that plan as "the draft Mai Po DPA plan".) Like notice of the draft Nam Sang Wai DPA plan, notice of the draft Mai Po DPA plan was first published on July 12, 1991. 43. Simply for the sake of completeness, it might be mentioned that both of those draft plans were eventually approved by the Governor in Council under section 9 in May 1994: the Nam Sang Wai one on the 6th of that month and the Mai Po one on the 20th thereof. I say "simply for the sake of completeness" because even draft plans have statutory force under the Town Planning Ordinance. 44. Even as the draft Nam Sang Wai DPA plan was replaced by the draft Nam Sang Wai OZP published on June 3, 1994, so the draft Mai Po DPA plan was replaced by Draft Mai Po and Fairview Park Outline Zoning Plan No. S/YL/-MP/1 (“the draft Mai Po OZP") published on the same day. But, unlike the draft Nam Sang Wai OZP, the draft Mai Po OZP does not matter for the purpose of the present case. 45. Turning to the three planning conditions under the heading "Off-site pollution control", they call for the submission and implementation of the following to the satisfaction of the Director of Environmental Protection or of the Planning Board :
That treatment system and screening plant would be outside of the Sunnyville site. Leave to apply for judicial review obtained 46. Leave to apply for judicial review was obtained on November 23, 1994. Judicial review refused 47. The application itself was heard before Mr Justice Yam over five days from early to mid April 1995. Judgment was given on the 28th of that month, dismissing the Planning Board's application for judicial review of the Appeal Board's decision. APPEAL TO THIS COURT AGAINST THE HIGH COURT'S REFUSAL OF JUDICIAL REVIEW 48. And now the Planning Board appeals to this Court against that judgment. It is all about certiorari now. Nobody still believes that any formal declaration is necessary. ON TWO BASIC GROUNDS 49. The Planning Board contends that the Appeal Board's decision must be quashed by an order of certiorari and that, it necessarily follows, the judge's refusal so to quash it must be reversed. So it really boils down to whether or not the Appeal Board's decision must be quashed. And two basic grounds on which it must be quashed have been advanced before us by the Planning Board. (We refused leave to amend the notice of appeal to add a third such ground because the point was new and the course of the evidence might have been different if it had been taken earlier.) 50. The decision-making body here is a statutory body. It functions under a statutory scheme. And that function is to grant or withhold planning permission under statutory plans. Both of the basic grounds advanced go, as we shall see, to the process by which the impugned decision was made. So the challenge under each ground is a classic judicial review challenge. FIRST GROUND: THAT THE APPEAL BOARD MISUNDERSTOOD THE PLANNING INTENTION 51. Shortly stated, the first ground is that the Appeal Board misunderstood the planning intention underlying the draft Nam Sang Wai DPA plan. Four documents 52. Here the Planning Board's case includes the argument that the Appeal Board laboured under a misunderstanding as to certain documents, namely:
53. Those documents, "the Planning Board contends, contain material which shed light on the planning intention here. 54. The concept of "planning intention" in the present case is, in my view, to be equated with the concept of "policy" addressed by Mr Justice Woolf (as he then was) in Gransden & Co. Ltd v. Environment Secretary (1985) 54 P & CR 86 when he said (at p. 94) that:
Getting the message 55. So if a document contains material which sheds light on the planning intention here, the question is not simply whether the Appeal Board looked at the document. Rather it is whether the Appeal Board appreciated that the document contains such material and, appreciating that, properly understood such material. In short, did the Appeal Board get the planning intention message to be found in the document? 56. The Planning Board contends that the Appeal Board did not get the planning intention message to be found in those four documents and each of them. What the Planning Board contends is the planning intention 57. That message, the Planning Board contends, is that the planning intention underlying the draft Nam Sang Wai DPA plan properly understood is essentially to preserve the Nam Sang Wai DPA's "wetland" characteristics against large-scale development: because such characteristics are valued in themselves; and also because they are what make that DPA an appropriate buffer to the Mai Po Nature Reserve. 58. However, the Planning Board contends, the Appeal Board did not get the message. So it failed to perceive that planning intention. And it therefore proceeded to a decision in ignorance of that highly relevant consideration which ought to have informed its decision. 59. That is how the Planning Board puts matters under the first basic ground on which it says that the Appeal Board's decision must be quashed. The developers' position on the four documents 60. As to whether the Explanatory Statement, the 1992 Guidelines, the 1993 Guidelines and the draft Nam Sang Wai OZP contain material which shed light on the planning intention here, the developers' position comes to this. First, the Explanatory Statement does shed such light but to an extent which deserves, in the words of Mr Thomas for the developers, "less respect". Secondly, the 1992 Guidelines do shed such light but, again in Mr Thomas's words, "queiy whether they have been superseded by the 1993 Guidelines". Thirdly, the 1993 Guidelines do shed such light. And finally, the draft Nam Sang Wai OZP does not. What the developers contend is the planning intention 61. And as to the planning intention here, the developers contend that, to the extent that one can ascertain such intention, it is (quoting my note of Mr Thomas's submission) to:
Explanatory Statements and Guidelines 62. Essentially and putting semantics to one side, I think that Mr Thomas is right about the Explanatory Statement, the 1992 Guidelines and the 1993 Guidelines. The Explanatory Statement although attached to the draft DPA plan - and by "plan" I mean the map and the notes - does not form part of the plan. Also, explanatory statements are issued by the Planning Department and not by the Planning Board which prepares plans and guidelines. As for the guidelines, it must be right that if and to the extent that earlier guidelines have been departed from in later guidelines by the time a matter comes to be considered, the later guidelines must, for the purpose of such consideration, prevail over the earlier guidelines. Outline Zoning Plans 63. That leaves the draft Nam Sang Wai OZP. As to that, Mr Thomas is plainly right in saying that it "cannot move the goalposts" against the developers. It cannot curtail the scope of the power to grant the developers planning permission under the draft Nam Sang Wai DPA plan. Nor can it be resorted to against the developers for the purpose of erecting any planning intention which is not to be gleaned from the sources accepted by Mr Thomas. 64. OZPs can, on the other hand, be used by developers who apply for planning permission under DPA plans. If an OZP were to contradict any planning intention asserted against them, such developers could pray it in aid for the purpose of meeting that assertion. 65. The relevance, such as it is, of OZPs to applications for planning permission under DPA plans lies in OZPs being part of a scheme of things under which DPA plans are only interim measures. That might well make a difference in some cases. But I do not think that it matters at all in the present case. The planning intention is the one contended for by the Planning Board 66. Looking only at the material which Mr Thomas accepts as relevant and only to the degree which he so accepts the same, giving all of it a fair reading as a whole and doing so in the context of the actual situation on the ground at all material times, I have come to the clear conclusion that the planning intention here is the one asserted by the Planning Board. Because of 67. Having said that I have read the relevant material as a whole, I do not propose to do too much by way of singling out particular parts of the same for mention. But I will illustrate my conclusion by some particular references. The draft DPA plan itself and the actual situation on the ground 68. Before doing that, I will say simply this about what I have referred to as the actual situation on the ground. I have already described the nature and location of the Sunnyville site including its proximity to Deep Bay and the Mai Po Nature Reserve. None of that needs repeating. 69. I have also already" said what the draft Nam Sang Wai DPA plan's map shows, and what that plan's notes say, in regard to uses. None of that needs repeating either. 70. From all of those matters, this much is plain. The Sunnyville site "is part of an area having wetland characteristics. These characteristics make the area inherently suitable for service as a buffer to the nearby Mai Po Nature Reserve, a local1y prized and internationally recognized wetland wildlife habitat. It is axiomatic that large-scale development in an area having wetland characteristics would, to say the least, jeopardize those characteristics. And in the area concerned, the planning scheme is such that any large-scale development would require permission. 71. Even on the strength of the foregoing alone, it may well be right to deduce a planning intention along the lines of the one asserted by the Planning Board. 72. In any event, the matter does not rest on the foregoing alone. The 1992 Guidelines 73. The 1992 Guidelines begins with a reference to "the need to preserve the Mai Po Nature Reserve ... which includes wetland habitats of worldwide ecological significance." Those guidelines then go on to lay down the two buffer zones which protect the Mai Po Nature Reserve. The Sunnyville site is in the secondary buffer zone i.e. Buffer Zone 2. And the 1993 Guidelines 74. None of that is departed from in the 1993 Guidelines, the introduction to which reads:
75. The 1993 Guidelines preserve the buffer zones laid down in the 1992 Guidelines. The alignment of the two buffer zones is not exactly the same in 1993 Guidelines as it was in the 1992 Guidelines. But what is constant is that Lut Chau is in Buffer Zone 1 throughout; while the Sunnyville site is in Buffer Zone 2 throughout. As to Buffer Zone 2, the 1993 Guidelines say in terms that the "conservation of natural resources such as water bodies and landscape features should continue to be the planning intention". And "existing fish ponds" are specifically mentioned as one of the features which "should be retained as far as possible." As to residential developments, it is said that: "Individual houses and/or low-density residential development may be considered in selected locations." Clearly, that does not mean large-scale development. 76. So, as I have indicated, I am of the view that the planning intention here is the one asserted by the Planning Board, namely to preserve the Nam Sang Wai DPA's wetland characteristics against large-scale development: because such characteristics are valued in themselves; and also because they are what make that OPA an appropriate buffer to the Mai Po Nature Reserve. The Appeal Board failed to get the right message 77. Mr Thomas has not conceded that if that is the planning intention, then the Appeal Board has failed to get the right message. At the same time, he has not advanced any argument to the effect that the Appeal Board can be taken to have got the right message even if the planning intention is the one asserted by the Planning Board. I find the absence of such an argument understandable because such an argument would, in my view, be untenable. On a fair reading 78. In forming that view, I have of course given the Appeal Board's decision a fair reading as a whole. 79. Mr Ouseley for the Planning Board has, in the present connection, focused on certain things said by the Appeal Board in its written decision. Mr Thomas has drawn attention to Lord Bridge of Harwich's reminder in South Lakeland District Council v. Environment Secretary [1992] AC 141 at p. 148H that: "Excessively legalistic textual criticism of planning decision letters is something the courts should strongly discourage." I whole-heartedly agree. But nothing said by Mr Ouseley falls in any way foul of that reminder. Plant nurseries 80. One of the things said by the Appeal Board on which Mr Ouseley has focused is to be found first in paragraph 29 and then in paragraphs 57 to 60 of its decision. In those four paragraphs, the Appeal Board says that since the fish ponds can be converted into plant nurseries without filling or excavation and can therefore be so converted without having to seek permission, it follows that the planning intention cannot be to preserve fish ponds. 81. I will assume that plant nurseries are viable in unfilled fish ponds. Even then, there is no justification for saying that the planning intention cannot have been to preserve wetland characteristics against the real threat of large-scale development simply because those characteristics could be destroyed by an imagined threat of plant nurseries conjured up for the sake of argument. 82. What is to the point in the present connection is that the Appeal Board has shown itself, in those four paragraphs, setting its face against the true planning intention. Diagram misunderstood 83. Looking at paragraphs 35, 36 and 44 of its decision, one sees the Appeal Board doing that even more firmly. In paragraph 35 the Appeal Board says that "a development in accordance with [the 1993 Guidelines] will involve the disappearance of most of the existing fish ponds in Buffer Zone 2." And in paragraph 44, it says that those guidelines "indicated quite clearly that disappearance of almost all the fish ponds in Buffer Zone 2 was envisaged." 84. It is by looking at paragraph 36 that one sees how the Appeal Board came to form that belief as to the disappearance of most or almost all of the fish ponds. The Appeal Board formed that belief by looking at a diagram given in the 1993 Guidelines. Mr Ouseley said that the Appeal Board had "grievously misunderstood" that diagram. 85. I do not take iv1r Ouseley to be using the word "grievously" in any pejorative sense. He was, I apprehend, using it to emphasise the serious nature of the misunderstanding. On that basis, I agree with him. There is only one way in which anyone could have formed that belief by looking at that diagram. And that is by treating the diagram as if it were drawn to scale. But it is manifest, as the developers accept, that the diagram is not drawn to scale. 86. The misunderstanding was indeed serious. It was so by its nature since it was so basic. And it was even more so in its consequences since it caused or contributed to the Appeal Board's misapprehension of the planning intention which it had to take into account in the process of making its decision. 87. More can be said in the same vein. But I do not consider it necessary to do so. The point has been made. It need not be laboured. SECOND GROUND: THAT TWO OF THE PLANNING CONDITIONS SUBJECT TO WHICH THE APPEAL BOARD GAVE PLANNING PERMISSION ARE UNWORKABLE 88. I turn now to the second basic ground on which the Planning Board says that the Appeal Board's decision must be quashed. It has to do with the planning conditions subject to which the Appeal Board gave planning permission. Both conditions concerning levies 89. Before us, the Planning Board confines its attack to only two of those conditions: one under the heading "Conservation Plan" and one under the heading "Off-site pollution control". 90. The former is the one calling for the submission and implementation to the satisfaction of the Director of Lands or of the Planning Board of "a detailed management plan for the Lut Chau Nature Reserve, including the enforcement arrangements for the Lut Chau Nature Reserve Levy on owners for the time being of the Nam Sang Wai Development". 91. And the latter is the one calling for the submission and implementation to the satisfaction of the Director of Environmental Protection or of the Planning Board of "management plans for [the Kam Tin River Reed Bed Treatment System and the Yuen Long Nullah Screening Plant], including arrangements for a management levy on owners for the time being of the Nam Sang Wai Development, terms of operation, and re-instatement upon removal". 92. Those two conditions, the Planning Board contends, are unworkable and are therefore irrational and indeed unlawful. The Planning Board's argument continues along these lines. Those conditions went into the Appeal Board's thinking while it was in the process of making its decision. And so they vitiate that decision. Three broad points taken by the Appeal Board as to why the "levy" conditions are unworkable 93. As to why those two conditions are unworkable, the Planning Board takes three broad points. Other points of criticism, while perhaps available, the Planning Board forbears to develop for present purposes. 94. The three broad points, as I understand them, may be summarized thus. First, no viable arrangement for the enforcement of any of the levies concerned can be devised. Secondly, even if such an arrangement could be devised, the Government, which would be a necessary party, has shown itself unwilling to enter into any such arrangement of its own free will, and cannot be forced into the same against its will. Thirdly, even if such an arrangement could be devised and the Government were to enter into the same, it is plain, looking at things realistically, that the arrangement would probably soon run into recurring difficulties so grave as to leave the conditions bereft of any planning gain or utility. The developers' response to those three points 95. The first two points have been effectively answered by the developers. 96. I accept Mr Thomas's submission that it would be possible to devise a viable arrangement saddling the Sunnyville land with levy covenants for the benefit of the Lut Chau land, the treatment system land and the screening plant land. So much for the first point. 97. As to the second, I accept Mr Thomas's submission along these lines. The whole thing is in any event dependent on the land exchange which the developers hope to achieve. And if the Government were to go for such exchange, it would be unlikely to set its face against any arrangement, whether for covenants or anything else, which would be a feature of such exchange. 98. The third point, however, is one which Mr Thomas deflected rather than answered. He deflected it by getting away from levy conditions altogether. And he did that by raising the question of the developers assuming an obligation of their own, backed by a performance bond, to fund the Lut Chau Nature Reserve, the treatment centre and the screening plant. 99. The certainty of a performance bond arrangement is to be contrasted with the uncertainty or worse of a levy arrangement. 100. If I were not of the view that the Appeal Board's decision had to be quashed on the "planning intention" ground anyway, I would have been disposed to invite further argument on the question of replacing the levy conditions with performance bond conditions (the precise terms of which I would have wanted to see). 101. As things stand, however, I would simply quash the Appeal Board's decision on the planning intention ground alone, saying nothing further on the "planning conditions" ground. Since that decision must be quashed, the judge's refusal of certiorari to quash it must be reversed. RESULT 102. In the result, I would allow the appeal; set aside the judge's Order; make an order of certiorari quashing the Appeal Board's decision; and make an order nisi that the developers pay the Planning Board's costs here and in the High Court to be taxed if not agreed. 103. At the moment, I do not see that any further order or direction is necessary. Nevertheless, I would - just in case something unforeseen happens - give the developers liberty to apply to this Court for any order or direction which they may wish us to make for the disposal of their appeal to the Appeal Board in respect of which appeal there is now no decision. 104. Finally, I wish to echo the thanks expressed at the conclusion of the hearing by my Lord, the Vice President, to counsel on both sides for their extremely helpful arguments. Power VP: 105. I agree and have nothing to add. Ching JA: 106. I have had the advantage of reading in draft the judgment of Bokhary JA, and I am in agreement with him that this appeal is to be allowed. It is clear to me that the intention of the Town Planning Board was that the area in which the 2nd Respondent's development is proposed was to remain not only as a buffer zone to the much treasured Mai Po Nature Reserve but a buffer zone generally in its present undeveloped state. The intention was misunderstood by the Appeal Board and the misunderstanding vitiates its decision.
Mr Duncan Ouseley QC & Mr Nicholas Cooney (instructed by the Attorney General's Chambers) for the appellant, the Town Planning Board Mr Neville Thomas QC, Mr Robert Kotewall QC & Mr Valentine Yim (instructed by Messrs Bernard Wong & Co.) for the second respondent, Henderson Real Estate Agency Ltd (The 1st respondent, the Town Planning Appeal Board, absent) |