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Hero Ltd And Others v The Director Of Planning

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date03 October 2011
Year2011
Judgement NumberHCAL3/2011
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL3/2011 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

____________

BETWEEN

HERO LIMITED 1st Applicant
882 HK LIMITED 2nd Applicant
GOOD DAY LIMITED 3rd Applicant
CHEERFUL YEAR LIMITED 4th Applicant
CIVIC LIMITED 5th Applicant
LOYAL TRUTH CORPORATION LIMITED 6th Applicant

and

THE DIRECTOR OF PLANNING Respondent

_____________

Before: Hon Lam J in Court

Dates of Hearing: 26 July 2011

Date of Judgment: 3 October 2011

______________

J U D G M E N T

______________

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...

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