Hero Ltd and Others v. The Director of Planning

HCAL 3/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3 OF 2011

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BETWEEN

and

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Before:  Hon Lam J in Court

Dates of Hearing:  26 July 2011

Date of Judgment: 3 October 2011

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J U D G M E N T

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1.In this application for judicial review, the Applicants challenge the decisions of the Director of Planning [“the Director”] in issuing several enforcement notices [“the Notices”] on 22 October 2010 under section 23(1) of the Town Planning Ordinance Cap. 131 [“TPO”].  Pursuant to the statutory power granted under this section, the Director as the Authority defined in the TPO may by notice served on one or more of a land owner, an occupier or a person who is responsible to require the discontinuation of matters which constituted unauthorized development by a specified date.  Generally speaking, unauthorized development means a development of the land which is not authorized by the relevant Outline Zoning Plan.

2.The Notices were issued in respect of development on certain lots of land at Demarcation District 104, Ngau Tam Mei, Yuen Long as identified in the Form 86.  They were issued to the Applicants and three other persons.  I shall refer to the lots collectively as the Land.  The unauthorized uses set out in Schedule 2 to the Notices are,

(a)  Columbarium use;

(b)  Storage use.

3.The Notices required the Applicants to discontinue the unauthorized development by 22 April 2011.  The Applicants did not accept that the development carried out on the Land is unauthorized.  Their case, put in a nutshell, is that the development is within the permitted development under the relevant Outline Zoning Plan, viz. Ngau Tam Mei Outline Zoning Plan No. S/YL-NTM12 [“the OZP”].  They say that the development falls within the meaning of “shrine” which is permitted for village type development [“V zone”] under the OZP.  The Land is within a V zone. 

4.Though there is a fence wall enclosing the Land, the building which housed the disputed development actually situated on Lot Nos. 2059, 2065 and 2072 only.  At the outset of the hearing, Mr Chang SC on behalf of the Applicants informed this court that whilst he reserved his clients’ position in other proceedings, in the present proceedings no point is taken as to the absence of actual building on the other lots.

5.The building in question covers an area of about 2,180 square feet.  In May 2010, the building was renovated with the construction of a new façade.  Inside it, about 1,560 small cupboards/caskets (which the Director regarded as columbarium niches) were constructed.  According to the Applicants’ evidence, 1,020 of them are designed for single occupancy and 540 of them are double-sized which can serve the “worship” purposes of two deceased persons.  The Applicants say they can be characterized as shrines for 2,100 deceased persons. 

6.Currently, only 14 cupboards/caskets are being occupied by licensees of a company associated with the Applicants.  Altogether 190 licence agreements and 9 charity licence agreements have been signed for the facilities at the Land, which is marketed in the name of “The Shrine (明月山)”.  The Applicants described it as a shrine business.

The relevant plans

7.The OZP was approved on 5 December 2006.  Before that date, the Land was subject to the Ngau Tam Mei Development Permission Area Plan No. DPA/YL-NTM/2 of 22 March 1994 and DPA/YL-NTM/1 of 12 July 1991 [“the DPAs”].  Earlier than that, there was a Ngau Tam Mei Interim Development Permission Area Plan No. IDPA/YL-NTM/1 [“IDPA”] which was gazetted on 14 September 1990.

8.In the Notes to the OZP (which form part of the OZP), Paragraph (9)(b) provides “shrine” as one of the uses or developments that are always permitted on land falling within the boundaries of the Plan except,

“(a) where the users or developments are specified in Column 2 of the Notes of individual zones or (b) as provided in paragraph (10) in relation to areas zoned ‘Conservation Area’.”

In the present context, neither the Applicants nor the Director suggested the disputed use falls within one of the exceptions. 

9.Further, paragraph (13) of  the Notes read,

“Unless otherwise specified, all building, engineering and other operations incidental to and all users directly related and ancillary to the permitted uses and developments within the same zone are always permitted and no separate permission is required.”

10.In respect of Village Type Development, the Notes provides as follows,

“ VILLAGE TYPE DEVELOPMENT

Column 1 Uses always permitted	Column 2 Uses that may be permitted with or without conditions on application to the Town Planning Board
Agricultural Use Government Use (Police Reporting Centre, Post Office only) House (New Territories Exempted House only) On-Farm Domestic Structure Religious Institution (Ancestral Hall only) Rural Committee/Village Office	Burial Ground Eating Place Flat Government Refuse Collection Point Government Use (not elsewhere specified) # House (not elsewhere specified) Institutional use (not elsewhere specified) # Market Petrol Filling Station Place of Recreation, Sports or Culture Private Club Public Clinic Public Convenience Public Transport Terminus or Station Public Utility Installation # Public Vehicle Park (excluding container vehicle) Religious Institution (not elsewhere specified) # Residential Institution # School # Shop and Services Social Welfare Facility # Utility Installation for Private Project
In addition, the following uses are always permitted on the ground floor of a New Territories Exempted House:
Eating Place Library School Shop and Services”

11.The Planning Intention for the V zones is stated as follows in the Notes,

“ VILLAGE TYPE DEVELOPMENT (con’d)

Planning Intention

The planning intention of this zone is to designate both existing recognized villages and areas of land considered suitable for village expansion. Land within this zone is primarily intended for development of Small Houses by indigenous villagers.  It is also intended to concentrate village type development within this zone for a more orderly development pattern, efficient use of land and provision of infrastructures and services.  Selected commercial and community uses serving the needs of the villagers and in support of the village development are always permitted on the ground floor of a New Territories Exempted House.  Other commercial, community and recreational uses may be permitted on application to the Town Planning Board.”

12.Though there is no reference to “columbarium” under the Notes for the V zones, it is listed under column 2 (viz. uses that may be permitted with or without conditions on applications to the Town Planning Board) in the Notes for the following zones: Government, Institution or Community; Green Belt.  In respect of the Green Belt, the notes under column 2 further qualify that columbarium use could only be permitted if it is within “a Religious Institution or extension of existing Columbarium only”.

13.In the Explanatory Statement attached to the OZP (though it does not form part of the plan), para. 9.4.1 repeats the planning intention for the V zones.  Para. 9.4.2 adds,

“The boundaries of the ‘V’ zones are drawn up having regard to the existing village ‘environs’, outstanding Small House demands for the next ten years, topography and site constraints. Areas of difficult terrain, dense vegetation, stream courses and burial grounds have been avoided. …”

14.As explained below, the issue in the present case focuses on the interpretation of the word “shrine” in Paragraph (9)(b) of the Notes.  Historically, under the DPAs, shrine was not referred to under the general notes though it was invariably specified as one of the uses always permitted under column 1 in the appendix/annex B.  Thus, for the V zone, shrine was listed under column 1 and there was no reference to columbarium either under column 1 or column 2[1]. 

15.The only reference to Columbarium use in the DPAs was in respect of the Green Belt where it was listed under column 2.  As mentioned, shrine was listed under column 1 in the same table. 

16.In the IDPA, shrine was listed under Annex A as one of the uses always permitted except at Sites of Special Scientific Interest.  There was no reference to columbarium use in the IDPA.

17.Though the Notices referred to storage use, based on the arguments advanced before this court, neither party suggested that the primary use of the Land is storage.  It suffices to note at this stage that storage is not a permitted use for the V zones.

The issue and the proper approach to construction

18.The crucial issue is whether the developments on the Land come within the meaning of “shrine” under Paragraph (9)(b) of the OZP which is a use always permitted.  The Director contended that the developments of “The Shrine” are primarily “columbarium” use instead of “shrine” use notwithstanding the name of the establishment.  On the other hand, Mr Chang SC for the Applicants submitted that “The Shrine” is properly within the scope of “shrine” under Paragraph (9)(b) and it does not matter even if it may also be regarded as a “columbarium”.

19.On the proper approach to construction of an expression used in the Notes to an OZP, the case of Wah Yick Enterprises Ltd v Building Authority [1999] 1 HKLRD 840 provides good guidance.  Before I come to the judgment of the Court of Final Appeal, it is also useful to refer to the judgments of the Court of First Instance at [1997] HKLRD 1177 and the Court of Appeal at [1999] 1 HKRD 237.  The case concerned a plaintiff who wished to erect a 33-storey block of flats comprising of 99 flats in Yuen Long.  Under the relevant Outline Zoning Plan, the site was zoned for village type of development.  The Building Authority refused to give approval for the development on the ground that it contravened that OZP.  The plaintiff argued that since “house” was a permitted use, the intended development fell within such permitted use.  The main issue in the case was the meaning of the word “house” according to the proper construction of the OZP. 

20.The headnotes in the law report provides a good summary of the decision of Deputy Judge Whaley and set out some relevant guidance for present purposes.  I can simply quoted from holdings (1) to (10),

“(1) In interpreting the meaning and ambit of the word ‘house’, it was very important to give the description of the zone in which the use ‘house’ appeared, its full weight. The fact that the zone in question had been specifically set apart for ‘village type development’ as opposed to any of the other zones must be a vitally important consideration in construing the meaning of ‘house’ in its context.

(2) The ordinary meaning of ‘village type development’ connoted low-rise and low-density as opposed to high-rise and high-density development; it would not naturally accommodate P’s proposed development.

(3) OZPs were not subsidiary legislation. The basis upon which the court once held that the draft plans acquired a subsidiary legislative effect - namely, that on a proper construction s. 16(1)(d) of the Buildings Ordinance did not confer a discretion upon the Building Authority, but obliged it to refuse permission for building plans which contravened any of the draft plans - was no longer good law (Kwan Kong Co Ltd v Town Planning Board [1995] 3 HKC 254 (see [1995] HKLY 43) and Building Authority v Head Step Ltd (1996) 6 HKPLR 87 (see [1995] HKLY 87) referred to). Also, s. 34(1) of the Interpretation and General Clauses Ordinance provided that subsidiary legislation was required to be tabled before the Legislative Council and draft OZPs were not so tabled.

(4) Accordingly the strict rules relating to statutory interpretation did not apply.

(5) Furthermore, the considerations, which in England militated against having regard to the application for planning permission and other extrinsic material in interpreting the terms of the planning permission, had no application to the interpretation of Column 1 uses provided for in the OZPs, which came into being under a different statutory scheme.

(6) It was both legitimate and sensible to have regard to the ‘Definition of Terms Used in the Statutory Plans’ (the Definitions) published by the Planning Department and the ‘Explanatory Statement’ accompanying the OZP in question. Although both these documents were prepared by the Planning Department, they were both considered and approved by the Town Planning Board as documents to be published in order to provide assistance to members of the public to interpret and understand the provisions of the various OZPs. The Explanatory Statement was physically attached to the Notes of the OZP, so that anybody who obtained a copy of the OZP would know of its existence and the relevance of it.

(7) The Definitions were clearly relevant and useful in showing the construction that was put upon various terms used in the OZP, and the Explanatory Statement was also clearly relevant in disclosing the planning intentions and considerations that were applied in the formulation of the OZP.

(8) In the definition of ‘house’ in the Definitions, examples given in the ‘remarks’ column of what structures were included under the use ‘house’, were all low-rise and low-density. Nothing in this definition suggested or contemplated that a high-rise 33-storey block of flats qualified under the use ‘house’.

(9) The fact that the Explanatory Statement could be amended from time to time did not render it objectionable to refer to it as an aid to construing the OZP: the point was that in whatever terms it was constituted at the material time, it provided a great deal of information about the planning intentions and considerations that lay behind the formulation of the OZP.

(10) The provisions in para. 8.8 of the Explanatory Statement that ‘land within the zoning is primarily intended for development of small houses by indigenous villagers’ were not so uncertain as to render them invalid, since what this paragraph did was to give a very clear indication of the planning intention to retain in the ‘V’ zone existing villages and to reserve land for village expansion purposes.  Any exceptions impliedly reserved by the use of the word ‘primarily’ would not include the erection of a 33-storey block of flats, which would be strikingly out of character and incongruous with a village environment.”

21.Adopting the approach of Lawrence J in Annicola Investments Ltd v Minister of Housing and Local Government [1968] 1 QB 631 at 640, Deputy Judge Whaley held that the word “house” had a distinct fluidity of meaning and it was best construed in relation to the context in which it was found, and in relation to the objects and purposes of the OZP. 

22.The plaintiff appealed unsuccessfully to the Court of Appeal.  Nazareth V-P dealt with the objection as to the use of Definitions by the judge at p. 245C to I,

“The definition of terms that the Judge referred to appear in a Town Planning Board paper that it considered in July 1979. It was submitted in response to Singway Co Ltd v A-G [1974] HKLR 275 and proposed a revised form of ‘notes’ which noted, inter alia, that in an attempt to provide proper guidance for the general public, definitions for some of the terms used in the schedule to the paper had been produced; a list was attached. It is apparent that thereafter the Town Planning Board must have considered outline zoning plans with the definitions in mind. …

The admissibility of the schedule of definitions, and the explanatory statement for that matter, are disputed by the appellant.  Although not a formal part of an outline zoning plan under the Town Planning Ordinance (Cap. 131) and subsidiary legislation, if the word ‘house’ is assumed to be unclear, then in my view the definition and the explanatory statement must be admissible and of substantial weight as part of the matrix and in particular a definition and explanatory statement borne in mind or to which express reference would have been made in the very making of outline zone plans.  It means to me therefore that the Judge cannot be faulted in the secondary use he made of the definition of terms and the explanatory statement.”

23.On the question whether the OZP should be regarded as subsidiary legislation and as such the Explanatory Statement was only admissible in case of ambiguity, the learned V-P said at p. 247A to C,

“The point does not seem to me to be of sufficient significance to review those authorities. Suffice it to say that I am not persuaded that the OZP is subsidiary legislation. In any case Mr Wong submitted that even so, it should be treated as subsidiary legislation whether technically so or not. I am equally not persuaded that this is right in the present context particularly when the object of doing so would be to exclude evidence that could be particularly valuable, given the nature of the OZP, which is far removed from the precise nature of the drafting and formulation of subsidiary legislation. Moreover, it is difficult to see why the OZP and its explanatory statement (not to mention the definition) should rate for assistance in construction so very differently.”

24.Further appeal to the Court of Final Appeal by the plaintiff was also dismissed.  The leading judgment was delivered by Litton PJ.  His Lordship referred to the explanatory statement published with the relevant OZP at p. 844C to F and the Definitions at p. 849A to D.  As regards the latter, Litton PJ said,

“The Building Authority would also be guided, in the exercise of its judgment, by the published definition of terms, approved by the Town Planning Board in July 1979. These definitions, well-known to practitioners in the town planning field, are referred to in the explanatory statement of the Yuen Long OZP as follows:

3.2    For the guidance of the general public, a set of definitions which explains some of the terms used in the notes may be obtained from the Planning Information and Technical Administration Unit of the Planning Department.  The set of definitions does not form part of the notes.”

25.Pausing here, similar reference is made in the OZP to the Definitions at para. 4.2 of the Explanatory Statement.  It does not have the last sentence.  Further, it refers to the option of downloading the Definitions from the Town Planning Board’s website.

26.Litton PJ’s approach on construction can be summarized as follows,

(a)  The word “house” has a fluidity of meaning, “it takes its flavor from the context in which it is used” (p. 845F to 846B);

(b)  The relevant context was the use of that word as a permitted use for village type development and the purpose for the designation of a rural area as a zone for village type development had to be considered (p. 846E to 848C).  The broad intention of such a zoning was identified at p. 848C by reference to the Explanatory Statement, “That development in ‘V’ zones must be viewed in a rural setting; the object of the designation being to preserve the character of existing villages and to allow for the expansion of such villages.  In this context, a 33-storey block of flats is wholly out of character”;

(c)  Litton PJ concluded that the lower courts were correct in considering the meaning of “house” in the context of village type development and rejected the submission that such a test was vague and uncertain, see p. 847H to I.  At p. 849A, the same test was reiterated;

(d)  His Lordship regarded this conclusion as sufficient for the disposal of the arguments as to the meaning of “house” as he held at p. 848G that the proposed development was clearly in contravention of the OZP, see p. 848G;

(e)  As mentioned, Litton PJ further held that it was permissible to refer to the Definitions (including the remarks) as aid of construction, see p. 849B to F;

(f)  There is an element of flexibility in the concept of a house under village type development and if there is a reasonable doubt, the developer must be given the benefit of doubt in accordance with the 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 terms, see p. 849I to 850B.  This was also emphasized by Bokhary PJ at p. 851E to 852D.  Based on the name of the authority[2] from which this principle is derived, I shall call this the Westminster Bank principle.

The Definitions

27.In respect of the usage identified as “shrine”, the Definitions of Terms published by the Town Planning Board said it “means a place or structure, other than building, for worship”.  In the remarks (which are deemed to be part of the definitions and should be read in conjunction with the definitions) for “shrine”, the following notes appear,

“It is usually of small-scale and excludes buildings for religious purpose such as mosque, chapel, Tsz Tong, church, nunnery, monastery, temple, pavilion and convent.”

28.Then in the notes within square brackets, shrine is remarked as “subsumed under ‘Religious Institution’ except where separately permitted under the covering Notes.”

29.For the usage identified as “columbarium”, the Definitions said it “means any place or vault with niches or urns that contain the ashes of cremated bodies.” In the remarks within square brackets, it is cross-referenced with the notes that “Garden of Remembrance” and “Funeral Services Centre” subsumed under this item and under “Crematorium”.

The submission of the Applicants on the meaning of “shrine”

30.Mr Chang, in his written submissions, contended that the ordinary meaning of the word “shrine” is clear and can be gathered from dictionaries.  Counsel made references to the Shorter Oxford English Dictionary 6^th Edn., The Oxford Dictionary of English 2^nd Edn. and The Oxford English Dictionary 2^nd Edn.  For present purposes, I do not think it is necessary to quote all the dictionary meanings for the word.  It suffices to refer to the following meanings set out in the Shorter Oxford English Dictionary,

“†1. gen. A box, a cabinet, a chest.”

“2. A reliquary, esp. one encased in a decorated structure resembling a tomb. Also, the part of a church or other building in which this stands.”

A subsense of this meaning is also given,

“transf. A receptacle for any sacred object; a niche for sacred images.”

“3. Orig., a coffin. Later, an elaborate tomb or monument.”

“6. A place of worship or devotion to a saint or deity; a temple, a church.”

31.Pausing here, I note that on the first meaning, the symbol “†” indicates that it is an obsolete use. Further, the notation by its side:    “OE–M17” indicates that the meaning was used up to the mid 17^th century.  Thus, it is not relevant for present purposes.

32.Counsel submitted that in its ordinary meaning, a shrine should include an ancestral shrine, shrine for beloved and/or revered ones as well as shrine for deity.  Applying this to the facts of the present case, it is submitted that effectively each of small cupboard and/or casket in the Building is to be used as a shrine.  The fact that niches or urns containing cremated ashes are to be found in such cupboards/caskets does not alter the fact that they are shrines.  Amongst Chinese people in Hong Kong, counsel said, the object of worship or devotion or veneration in a shrine is not confined to a saint or deity but may also include an ancestor.

33.In his oral submissions, counsel contended that if on its true construction, the use comes within the meaning of “shrine” it does not matter that incidentally it could also be regarded as “columbarium”. 

34.Counsel further submitted that as there is no ambiguity in the meaning of the word “shrine” no reference should be made to the Definitions.  In any event, the meaning contained in the Definitions is not certain.  Mr Chang asked rhetorically how one should define whether a structure is small and whether the use would be classified as a shrine if the Applicants were to confine the business of The Shrine to the existing use by the 14 licensees.

35.Praying in aid the Westminster Bank principle, Mr Chang submitted if there is doubt as to the scope of “shrine” use in the OZP, the Applicants should have the benefit of the same.    

Meaning of “shrine” in the context of village type development

36.The meaning of “shrine” advocated by Mr Mok SC is a place of worship for a deity or a saint whilst the meaning advocated by Mr Chang is a receptacle for revered objects, including cremated ashes.  In a broad sense, each of the two meanings can arguably be within the dictionary meanings of the word.  However, in order to ascertain its proper meaning in the OZP, it is necessary to have regard to the purpose and context of the OZP.

37.In my judgment, one relevant matter in the context of the OZP is that “columbarium” use may only be permitted on application to the Town Planning Board for land in a Government, Institution or Community zone or a Green Belt zone (with further qualification as mentioned above).  In contrast, in these zones (as in other zones within the OZP) “shrine” use is always permitted.  Even though the Land is situated in a V zone, the OZP has to be construed as a whole and the meaning of the word “shrine” should be the same throughout the whole plan.  This strongly indicates that a use which should properly be classified as “columbarium” cannot at the same time be classified as “shrine”.  Otherwise, the references to “columbarium” in GIC and GB zones would be in conflict with the general permission given for “shrine” use.    

38.Further, as I see it, even assuming for a moment that in the context of land use in the New Territories a shrine could include a place of worship for one’s ancestor, the more important question is whether, in the context of the OZP, a building accommodating a business of providing cupboards/caskets facilities can properly be regarded as a composite structure of many shrines and as such always be permitted without any need for an application to the Town Planning Board.     

39.To answer that question, one must have regard to the planning intention for the V zone.  According to the Notes to the OZP, the planning intention of this zone is to designate both existing recognized villages and areas of land considered suitable for village expansion.  Thus, land within the zone is primarily intended for development of Small Houses by indigenous villagers.  Selected commercial and community uses serving the needs of the villagers and in support of the village development are always permitted on the ground floor of a New Territories Exempted House.   For other commercial, community and recreational uses, they may be permitted on application to the Town Planning Board. 

40.Thus, the primary purpose of designating an area to be a V zone is to reserve the land in question for village type of development.  This is reflected in the uses set out under column 1.  Further, a clear distinction is drawn between uses serving the needs of the villagers and in support of the village development on the ground floor of an Exempted House and other commercial, community and recreational uses.  In respect of the latter, the Town Planning Board has to consider an application on its merits (in terms of, inter alias, the consistency of the proposed use with the planning intention of a V zone) and may impose conditions if permission were to be granted.   

41.Bearing in mind such planning intention and the context of the OZP, I am of the view that the use of the Land by “The Shrine” plainly falls outside the scope of a use serving the needs of the villagers and in support of the village development.  In this connection, as deposed by Ophelia Wong in her affidavit, a columbarium may attract hundreds of visitors at different times of the year and is likely to be used in conjunction with a range of cultural practices such as incense burning and chanting.  I agree that such a development is inconsistent with the planning intention for a V zone. Hence, if the word “shrine” under Paragraph (9)(b) is construed in the manner suggested by Mr Chang, there would be a conflict between it and the planning intention for the V zone. 

42.In conclusion, construing Paragraph (9)(b) in the context of the OZP, the word “shrine” in that paragraph should not be given a meaning that would encompass a use which, in essence, involves the operation of a columbarium.  The existing use of the Land by “The Shrine” is not authorized by Paragraph (9)(b).

The policy history

43.This conclusion is reinforced by the policy history leading to the inclusion of “shrine” as a use always permitted under Paragraph (9)(b).  I refer to policy history instead of legislative history because it is accepted by the parties before me that the OZP is not a piece of subsidiary legislation.  As mentioned, Nazareth V-P came to the same view in Wah Yick. 

44.I have referred to the DPAs where “shrine” was specified as one of the uses always permitted under column 1 in the appendix/annex B.  Further, in those DPAs, in respect of the Green Belt zones, “columbarium” was listed under column 2.  Thus, historically in the context of the DPAs, prima facie at least, the word “shrine” was given a meaning which could not cover uses which should properly be described as “columbarium”.

45.In the Affidavit of Ophelia Wong, the Deputy Director of the Planning Department, she gave an account as to how “shrine” was incorporated into Paragraph (9)(b).  At para. 18 of her affidavit, she said,

“18. Moreover, to obviate the need for planning permission for uses which have very little planning implication, the scope of uses or developments that are always permitted under the provisions of the covering Notes was expanded in 2003. As such, uses like ‘shrine’, together with the likes of ‘plant nursery, amenity planting, open space, rain shelter, refreshment kiosk, footpath, bus/public light bus stop or lay-by, cycle track, taxi rank, public utility pipeline, electricity mast, lamp pole, telephone booth, telecommunications radio base station, automatic teller machine’, which are all by nature considered as small scale and minor uses without substantial building works, are permitted in all zones except in some environmentally sensitive zones. In contrast, for large scale and obnoxious uses such as ‘Columbarium’ which may generate impacts on traffic, environment and infrastructure, they should generally be zoned ‘Other Specified Uses’ annotated for specific uses to reflect the specific planning intention. Under the ‘Other Specified Uses’, the specified use(s) would be always permitted.”

46.In support of her account, she produced a Town Planning Board Paper No. 6376. The paper was tabled before the Board in June 2002 in a review of the Master Schedule of Notes to OZPs.  Paragraphs 4.6 and 4.7 are relevant,

“4.6 To obviate the need for planning permission for uses which have very little planning implication, it is proposed to expand the scope of uses or developments that are always permitted under the provisions of the covering Notes. These include the addition of ‘park and garden’, ‘playground/playing field’, ‘telecommunications radio base station’ within specified dimensions to the always permitted list for all zones, except in such sensitive areas as ‘Coastal Protection Area’ (‘CPA’), ‘Conservation Area’ (‘CA’), ‘Site of Special Scientific Interest’ (‘SSSI’) and ‘OU(CDWEA)’ zones.

4.7    In the same vein, the user schedules for various zones have been comprehensively reviewed and uses are added to Column 1, or transferred from Column 2 to Column 1 wherever appropriate.  On the other hand, some uses considered to be incompatible with the zoned uses or not in line with the planning intention, such as ‘Columbarium’ in a number of residential zones and some large-scale installations like ‘Electric Power Station’ and ‘Gas Works’ in the ‘Industrial (Group D)’ (‘I(D)’) zone, would be deleted from the Notes of the relevant zones.  …”

47.As a result, “columbarium” was removed from the list in column 2 for V zones in the Master Schedule of Notes.  In respect of the DPAs governing the Land, I have already referred to the fact that columbarium had not been included in column 2 for V zones.

48.The significance of these evidence for present purposes is,

(a)  Historically, in planning and OZP context, shrine has always been given a meaning which does not encompass a use which can be described as columbarium;

(b)  In such context, “shrine” should be confined to a use which, as in other uses added by way of Paragraph (9)(b) after the review in 2002, have very little planning implications.

49.The whole Paragraph (9)(b) reads,

“provision, maintenance or repair of plant nursery, amenity planting, open space, rain shelter, refreshment kiosk, footpath, bus/public light bus stop or lay-by, cycle track, taxi rank, public utility pipeline, electricity mast, lamp pole, telephone booth, telecommunications radio base station, automatic teller machine and shrine;”

50.Mr Chang objected to reference being made to the Town Planning Board paper.  Counsel submitted that the paper is not publicly available and members of the public could not refer to it in ascertaining the meaning of the expressions used in the OZP.  Counsel further emphasized that the paper and the Master Schedule of Notes do not form part of the OZP.

51.Counsel did not refer this court to any cases on the admissibility of internal documents in aid of construction of a policy document and the issue was not argued fully before me. I shall therefore confine my observations on this question to the present situation and my analysis is as follows.  No matter how one sees it, there cannot be any objection to the reference to the other parts of Paragraph (9)(b) in construing the word “shrine” in the same paragraph.  Mr Chang however sought to argue that the ejusdem generis principle is not applicable because the word “shrine” had been used in a particular sense before Paragraph (9)(b) was added to the OZP and the past usage gave the word “shrine” a meaning wider than one which one may derive from the application of such principle.  In the light of such submission, one must examine how the word had been used in past and the circumstances under which Paragraph (9)(b) came into existence.

52.In my judgment, the evidence of Ophelia Wong that I have referred to in this section (including the Town Planning Board paper) falls within the permissible scope of admissible evidence for refuting Mr Chang’s submission. 

53.The evidence clearly shows that in planning context past usage had consistently distinguished between “shrine” and “columbarium” and the proper meaning of “shrine” did not extend to a structure with great planning implications like a columbarium.   

Construction with reference to the Definitions

54.Further, the conclusion as to the meaning of “shrine” in its planning context is also confirmed by the Definitions.  First, the definition for “shrine” is “a place or structure, other than building, for worship”.  Thus, it excludes structure in the scale of a building.  Second, the remarks provide that it is usually of small-scale. 

55.Mr Chang submitted there is uncertainty as to what is small-scale and what is large-scale.  The remarks actually provide some guide to that: buildings for religious purpose such as mosque, chapel, Tsz Tong, church, nunnery, monastery, temple, pavilion and convent are excluded.  Thus, Tsz Tong and chapel are regarded as large-scale for this purpose.  In my judgment, in this context, there is no doubt that a columbarium in the size of “The Shrine” is a large-scale building.

56.In this connection, the response of Bokhary PJ at p. 851D to E in Wah Yick to a similar argument (which His Lordship called a “where do you draw the line?” argument) is apposite,

“This argument is untenable. Precision is a good thing. But just because a court cannot pronounce in a vacuum precisely where a line is to be drawn, it does not mean that the court cannot say on which side of the line something necessarily falls. All that lack of precision means is this --- where there is a doubt, the decision must go in favour of the party entitled to the benefit of the doubt.”

57.On the facts of the present case, I have no doubt.  To the contrary, the position seems to me to be crystal clear: “The Shrine” is not a shrine within the meaning of Paragraph (9)(b).  Rather, it is a columbarium.  The Applicants’ challenge to the Enforcement Notices must therefore fail.

Result

58.In the circumstances, the Applicants’ application must be dismissed.  I also make an order nisi that the Applicants shall pay the Respondent’s costs of the proceedings, such costs to be taxed if not agreed.

59.I thank counsel for their assistance in the matter.

Mr Dennis Chang, SC, Mr Kent Yee and Mr Tony Chow, instructed by Messrs Benson Li & Co., for the Applicants

Mr Johnny Mok, SC and Mr Abraham Chan, instructed by the Department of Justice, for the Respondent

Please refer to CACV231/2011 for the relevant appeal(s) to the Court of Appeal.