Wah Yick Enterprises Co Ltd v Building Authority

Cited as:[1999] 1 HKLRD 840; (1999) 2 HKCFAR 170
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FACV12/1998
Judgment Date:01 Mar 1999
FACV000012/1998 WAH YICK ENTERPRISES CO LTD v. BUILDING AUTHORITY

FACV No. 12 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 210 OF 1997)

_____________________

Between:

WAH YICK ENTERPRISES COMPANY LIMITED Appellant
AND
BUILDING AUTHORITY Respondent

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Court: Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Sir Anthony Mason NPJ

Date of Hearing: 3 and 4 February 1999

Date of Judgment: 1 March 1999

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J U D G M E N T

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Chief Justice Li:

1. I agree with Mr Justice Litton PJ's judgment.

Mr Justice Litton PJ:

Introduction

2. The appellant is the owner of land in the New Territories. The land falls within an area zoned for "Village Type Development" in the draft Yuen Long Outline Zoning Plan S/YL/2 ("OZP") published by the Town Planning Board on 3 November 1995. In the Notes to the OZP, forming part of the plan, under the column "uses always permitted", the word "House" appears. No other words qualify that designation of use. On 29 January 1997 the appellant submitted to the Building Authority plans for the erection of a 33-storey block of flats comprising a total of 99 flats on a portion of its land. The Building Authority, pursuant to s.16(1)(d) of the Buildings Ordinance, Cap. 123, refused to give approval to the plans on the ground that the carrying out of the building works shown thereon would contravene the OZP. The appellant, being dissatisfied, took out an originating summons to challenge the Building Authority's decision. This was heard by Deputy Judge Whaley in September 1997 and by his judgment dated 24 September 1997 the appellant's application was dismissed. The appellant then appealed to the Court of Appeal. By its judgment dated 1 April 1998 the Court of Appeal dismissed the appeal and affirmed Deputy Judge Whaley's judgment. Pursuant to leave granted by the Court of Appeal on 5 May 1998 the appellant now appeals to this Court.

The Outline Zoning Plan

3. The OZP was prepared by the Town Planning Board under the provisions of s.3(1) of the Town Planning Ordinance, Cap. 131, which provides:

"With a view to the promotion of the health, safety, convenience and general welfare of the community, the Board shall undertake the systematic preparation of-

(a) 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 ...."

4. Section 4 which is headed "Contents of Lay-out Plans and Powers of the Board" says:

"(1) the Board's draft plans ... may make provision for -

....

(b) zones or districts set apart for use for residential, commercial, industrial or other specified uses

....

(e) zones or districts set apart for undetermined uses

....

(h) zones or districts set apart for use for village type development, agriculture or other specified rural uses."

5. The OZP covers an area of about 562 hectares of which land zoned for village type development (represented by the symbol "V") covers about 99 hectares or 17.6%.

6. In the Explanatory Statement published with the OZP one finds the following broad statements concerning the general planning intentions for the area:

"5. Population

The estimated total population of the Area was about 124,000 persons in March 1994. Upon full development, the total population will be about 165,000 persons. This estimate is based on an assumption that the land use capacity as shown on the Plan would be fully realised.

....

8.8. Village Type Development (V): Total Area 99.35 ha

There are many well-established recognized villages within the Area, such as Shap Pat Heung. The zoning is intended to provide for the retention of existing villages and the reservation of land for village expansion purpose. It should be noted that land within the zoning is primarily intended for development of small houses by indigenous villagers. Village expansion areas and other infrastructural improvements will be guided by more detailed layout plans."

The appellant's case

7. As mentioned earlier, in the Notes to the OZP, under the column "uses always permitted" for the "V" zone, the word "House" appears. It is the appellant's case that the proposed 33-storey block of flats falls within the meaning of House; that it is entitled as of right to use the land for the purpose of building a high-rise house; and that the Building Authority was accordingly not authorized to reject the plans on the ground that the carrying out of the building works shown thereon would contravene the OZP. The appellant points to the fact that in some other OZPs covering other parts of the New Territories, where "House" appears in column 1 under village type development, the Notes restrict development or re-development to buildings of three storeys (8.23 metres) or the height of the existing buildings, whichever is the greater; the absence of such restriction indicates, so the appellant contends, that no such restriction was intended in the Yuen Long OZP. Further, in the "V" zones in some other OZPs, while there is no "House" use listed in column 1 in the Notes, "New Territories exempted House" (a building of not more than 3 storeys under the Buildings Ordinance (Application to the New Territories) Ordinance, Cap. 121) is so listed, and "House" comes under column 2, the "Remarks" in the Notes making it clear that any such "House" cannot exceed a height of 3 storeys (8.23 metres) or the height of the existing buildings, whichever is the greater. Thus, whether the proposed development falls under column 1 ("uses always permitted") or under column 2 ("uses that may be permitted ... on application to the Town Planning Board"), so the argument goes, the Town Planning Board has taken pains in other instances to specify a height restriction for House use; this reinforces the point that in the Yuen Long OZP no height restriction was intended for "House" development. It is unnecessary to enumerate all the evidence relied on by the appellant in this regard. The effect of the evidence, as the appellant contends, is that in the Yuen Long OZP "House" development is unrestricted in height; that the Building Authority is bound to give effect to this, and that any domestic building falling within the general meaning of House is consistent with the OZP, thus giving the appellant the right to construct a 33-storey block of flats, so long as that block has only one main entrance. The appellant concedes that if the block of flats has more than one main entrance it would not qualify as a house: see Wong Bei-nei v. A.G. [1973] HKLR 582 at 593, citing among other cases Kimber v. Admans...

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