HERO LTD AND OTHERS v. THE DIRECTOR OF PLANNING

CACV 231/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2011

(ON APPEAL FROM HCAL 3/2011)

____________

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 Cheung CJHC, Kwan and Chu JJA in Court

Date of Hearing: 10 October 2012

Date of Judgment: 10 October 2012

Date of Reasons for Judgment: 11 October 2012

______________________________

REASONS FOR JUDGMENT

______________________________

 

Hon Cheung CJHC (giving the judgment of the court):

1.  On 21 June 2012, we dismissed the applicants’ appeal from the judgment dated 3 October 2011 of Lam J (as he then was) whereby the applicants’ application for judicial review was dismissed with costs. We gave our reasons on 17 July 2012. On 10 October 2012, we dismissed the applicants’ application for leave to appeal from our judgment to the Court of Final Appeal. We now give our reasons.

2.  It is unnecessary to repeat the issues involved in the appeal or the reasons for our decision.  They have been set out fully in our reasons for judgment.

3.  The applicants rely on three grounds to seek leave.  First, they rely on the “as of right” limb under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  Mr Tim Kwok, for the applicants, argues that the issue of whether the applicants are entitled to develop a columbarium on the properties in question directly involves a claim or question to or respecting property or civil right within the meaning of the subsection as explained by the Court of Final Appeal in China Field Ltd v Appeal Tribunal (Buildings)(No 1) (2009) 12 HKCFAR 68, paras 23 and 24.  Counsel submits that the building in question houses around 2,000 caskets and since July 2010 the applicants’ business has entered into 190 licence agreements and 9 charity licence agreements for rights to use the facilities in the building.  The sum of $54,720 (plus management fee) is charged for each licence.  The value of the property right at stake is therefore $109,440,000 ($54,720 x 2,000), plus management fees.  Counsel submits that the order of the Court of Final Appeal upon disposing the appeal would immediately confer a financial benefit or detriment upon the applicants in the quantified amount.

4.  We reject this argument.  The application for judicial review concerns the Director of Planning’s decision to issue the enforcement notices all dated 22 October 2010.  The enforcement notices relate to the actual use of the building as a columbarium in contravention of the relevant Outline Zoning Plan.  According to the evidence filed by the applicants themselves, by June 2011, there were only 13 occupied cupboards or caskets in the building and that figure was increased to 14 in July 2011.  The number of occupied cupboards or caskets at the time of the enforcement notices must have been less.

5.  In the premises, there is no question of the application for judicial review involving property right of a value reaching the threshold amount of $1 million.

6.  As regards the alleged licence agreements, there are no factual findings regarding their making, nor is there any adjudication by the court as to the rights and obligations of the parties to the agreements, particularly in case where they cannot be performed due to contravention of the Outline Zoning Plan.  This is so because the agreements merely form part of the background against which the legality of the decision to issue the enforcement notices has to be examined.  At best, these agreements involve potential rights or interests which have “some connection” with the application for judicial review, which is the subject-matter of the appeal (China Field at para 23); but they do not constitute the subject-matter of the appeal.

7.  Secondly, the applicants rely on the discretionary limb under section 22(1)(b).  They argue that the intended appeal raises a question of great general or public importance, that is, whether the words “shrine” and “columbarium” occurring in planning documents in a non‑statutory context are mutually exclusive or whether a columbarium can also be a shrine.  Counsel submits that given the extremely limited supply of columbaria in Hong Kong, a final determination of this question would have “far reaching” implications.

8.  For reasons we gave for dismissing the appeal, the applicants’ arguments in support of their contention are not reasonably arguable.  We refuse to exercise our discretion to grant leave.

9.  Finally, the applicants rely on the “or otherwise” limb also found in section 22(1)(b).  Counsel submits that the value of the property right is significant and the intended appeal is not one which is so lacking in merit that leave should be refused.

10.  For reasons explained, we disagree with counsel on both points.

11.  The application for leave to appeal was accordingly refused with costs, together with a certificate for two counsel.

(Andrew Cheung) Chief Judge of the High Court

(Susan Kwan) Justice of Appeal

(Carlye Chu) Justice of Appeal

Mr Tim Kwok, instructed by Benson Li & Co for the applicants

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

CACV 231/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2011

(ON APPEAL FROM HCAL 3/2011)

____________

BETWEEN

	HERO LIMITED	1st Applicant (1st Appellant)
	882 HK LIMITED	2nd Applicant (2nd Appellant)
	GOOD DAY LIMITED	3rd Applicant (3rd Appellant)
	CHEERFUL YEAR LIMITED	4th Applicant (4th Appellant)
	CIVIC LIMITED	5th Applicant (5th Appellant)
	LOYAL TRUTH CORPORATION LIMITED	6th Applicant (6th Appellant)
	and
	THE DIRECTOR OF PLANNING	Respondent (Respondent)

____________

Before: Hon Cheung CJHC, Kwan and Chu JJA in Court

Date of Hearing: 21 June 2012

Date of Judgment: 21 June 2012

Date of Reasons for Judgment: 17 July 2012

_________________________________

REASONS FOR JUDGMENT

_________________________________

 

Hon Cheung CJHC:

1.  On 21 June 2012, we dismissed the applicants’ appeal from the judgment dated 3 October 2011 of Lam J whereby the applicants’ application for judicial review was dismissed with costs. We now give our reasons.

Facts

2.  The applicants are the registered owners of various lots of land situated at Demarcation District 104, Ngau Tam Mei, Yuen Long (“the Lots”) on which a columbarium known as “The Shrine (明月山)” is operated (“the Columbarium”).

3.  The Columbarium comprises a building covering an area of 2,180 square feet.  Inside the building, about 1,560 small cupboards or caskets, which the Director of Planning, the respondent in the proceedings, regards as columbarium niches, have been constructed.  According to 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 that they can be characterised as shrines for 2,100 deceased persons. Currently, only 14 cupboards/caskets are occupied by licensees of a company associated with the applicants.  Altogether 190 “licence agreements” and 9 “charity licence agreements” have been signed for using the facilities in the building. Understandably, the operation of the Columbarium at the Lots has aroused complaints from neighbours.  These have resulted in enforcement notices issued by the Director pursuant to section 23(1) of the Town Planning Ordinance (Cap 131).  By the notices, the applicants (and three other persons) are required to discontinue their “unauthorized uses” of the Lots, that is, columbarium use and storage use (storage use is no longer relevant in these proceedings).

4.  It is the Director’s case that under the relevant Outline Zoning Plan (“OZP”) governing the Lots, that is, Ngau Tam Mei Outline Zoning Plan No S/YL‑NTM/12 (“the OZP”), columbarium use is not a permitted use.

5.  The applicants disagree.  They contend that the cupboards or caskets housed inside the Columbarium are or are to be used as “shrines”, a permitted user under the OZP.  They therefore commenced judicial review proceedings to challenge the enforcement notices.

Decision below

6.  The judge dismissed the application for judicial review.  The judge took the view that under the OZP a “shrine” does not include a “columbarium”, which is not a use that the Lots can be put to.  He reached this conclusion after examining the OZP (including the Notes thereto), the Explanatory Statement attached to the OZP, the Definitions of Terms published by the Town Planning Board, the dictionary meanings of the words involved, as well as the policy history leading to the making of the OZP.  In particular, he noted that the Lots fall within an area zoned for “Village Type Development” (“V zone”) in the OZP.  He took the view that columbarium use “is inconsistent with the planning intention for a V zone” (paragraph 41).

Applicants’ arguments

7.  On appeal, Mr Philip Dykes SC, leading Mr Tim Kwok and Ms Stephanie Yan (none of whom have appeared before Lam J), based his arguments for the applicants essentially on the dictionary meanings of the words “shrine” and “columbarium”.  According to senior counsel, the issue in the appeal was whether the words “shrine” and “columbarium” occurring in planning documents in a non‑statutory context are mutually exclusive or whether a columbarium can also be a shrine.  Relying on The Oxford English Dictionary (2^nd ed), counsel argued that the word “shrine” has been commonly used to describe a box, casket or other repository of holy or revered relics and, by extension, it came to mean an object of religious veneration. It could also mean the case or casket for a dead body.  When the word “shrine” is used, there is usually a close association between veneration or worship and enclosed human cinerary or other remains or relics.  On the other hand, counsel pointed out, the word “columbarium”, according to the same dictionary, was applied to structures with niched recesses holding cinerary remains only relatively recently, from about the time when cremation became a widely used means of disposing of human and animal remains.  The word has no overtones of veneration or worship – it was ultimately derived from the Latinate word for a dove‑cote or home for pigeons.

8.  Mr Dykes argued that the two words are not mutually exclusive.  A shrine can be a columbarium and a columbarium can be a shrine, even though not all shrines are columbaria, and not all columbaria are shrines.  Only columbaria with a worshipping element would qualify as shrines.

9.  Counsel submitted that the thousand odd small cupboards or caskets housed inside the building in question are in fact columbaria with a worshipping element.  As such, they qualify as shrines.  No unauthorized use is therefore involved.  In case of doubt, the applicants should be given the benefit of the doubt.

Approach to construction

10.  With respect, I reject this approach.  The present case involves the proper construction of the two words “shrine” and “columbarium” as used in the OZP.  Whilst the two words are ordinary English words with general dictionary meanings, the issue of construction in the present case involves the discovery of their meanings as used in the OZP.  To this end, one cannot ignore the underlying planning purpose of the OZP and in particular, the V zoning, or the planning context in which the words are used.  Indeed, they are the most important matters to examine.  It is essential to remember that in town planning as in other areas, the same word may yield different meanings depending on the context in which it is used and the purpose for which it is used : Wah Yick Enterprises Co Ltd v Building Authority (1999) 2 HKCFAR 170;  Fully Profit (Asia) Ltd v Secretary for Justice [2012] 1 HKLRD 1003.  See more generally, Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912H‑913F (Lord Hoffmann); Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279, 296D/E‑I (Lord Hoffmann NPJ).

Notes to the OZP

11.  Turning to the OZP, paragraph (9) of the Notes to the OZP which form part of the OZP and apply generally to all zonings under the OZP sets out the “always‑permitted uses”.  It is instructive to look at what these always‑permitted uses are, amongst which, one finds the reference to a “shrine” :

“The following uses or developments are always permitted on land falling within the boundaries of the Plan except (a) where the uses 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’:

(a) maintenance, repair or demolition of a building;

(b) 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,

(c) maintenance or repair of road, railway track, watercourse, nullah, sewer and drain;

(d) geotechnical works, local public works, road works, sewerage works, drainage works, environmental improvement works, marine related facilities and waterworks (excluding works on service reservoir) and such other public works co‑ordinated or implemented by Government;

(e) rebuilding of New Territories Exempted House;

(f) replacement of an existing domestic building, i.e. a domestic building which was in existence on the date of the first publication in the Gazette of the notice of a draft plan including interim development permission area plan covering such building, by a New Territories Exempted House; and

(g) provision, maintenance or repair of a grave of an indigenous New Territories villager or a locally based fisherman and his family members for which permission has been obtained from Government.”

12.  Leaving aside for the time being the controversial user of “shrine”, it would not be difficult, even as a layman, to discern some commonsense underlying these always‑permitted uses, which by definition the land covered by the OZP can always be put to as of right.  Thus, for instance, the maintenance, repair or demolition of a building in (a); the maintenance or repair of a road or nullah in (c).  Focusing on (b), the provision, maintenance or repair of plant nursery, amenity planting, open space, rain shelter, refreshment kiosk, automatic teller machine, so on and so forth, are all matters that one can easily understand.  Amongst all these, one finds the word “shrine”.  If, as the applicants contend, a shrine can mean a columbarium – by which I do not mean a single columbarium but a purpose built, large‑scale commercial columbarium inside which over 1,000 niches are housed, such as the Columbarium which the applicants operate on the Lots, it would be difficult to discern the good sense behind granting it the status of an always‑permitted use.  It would be something very different from, say, a rain shelter or a telephone booth, both permitted under (b).

V zone

13.  But the difficulty with the applicants’ construction does not stop there.  As mentioned, the Notes are just general notes.  The OZP goes on to zone different areas covered by the OZP into different zones.  Under each zone, a Column 1 would tell a reader what uses are always permitted under that zone whereas a Column 2 would tell the same reader the uses that may be permitted with or without conditions on application to the Town Planning Board.  In case of conflict, Column 2 prevails over Note (9) in terms of what is or may be permitted.

14.  The OZP zones different areas into different zones, namely, Comprehensive Development Area, Residential (Group C), Residential (Group D), Village Type Development, Industrial (Group D), Open Storage, Government, Institution or Community (“GIC”), Recreation, Other Specified Uses, Green Belt (“GB”) and Conservation Area. As mentioned, the Lots fall within the V zone.  The relevant Columns 1 and 2 read 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”

15.  Note (9), it should be remembered, is always subject to the uses or developments specified in Column 2 of the Notes of individual zones.  But in the present case, it can be seen that under the V zone, no relevant Column 2 use affects the always permitted uses specified in Note (9).

16.  But importantly, the OZP goes on to set out the “planning intention” of the V zoning :

“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.”

17.  It is plain that the development of the Lots as a columbarium of the size and scale described is wholly inconsistent with the planning intention of the V zone in the OZP.  The planning intention set out in the OZP says specifically that the zoning is to designate both existing recognized villages and areas of land considered suitable for village expansion.  Land within the zone is primarily intended for development of small houses by indigenous villagers.  In other words, one is concerned with a predominantly village type neighbourhood.  The planning intention goes on to say that “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”, whereas “other commercial, community and recreational uses may be permitted on application to the Town Planning Board”.  The Columbarium is obviously not intended to serve the needs of the neighbouring villagers only.  Obviously, it is intended to attract business from others living elsewhere.  Moreover, in full operation, it is bound to attract hundreds if not thousands of visitors at different times of the year and is likely to be used in conjunction with a range of religious or cultural practices such as incense burning and chanting.  All this would have very little to do with supporting the village development of the neighbourhood. In this regard, it should be remembered that commercial and community uses serving the needs of the villagers and in support of the village development are only always permitted on the ground floor of a New Territories Exempted House.  Here, one is talking about an entire building used for the purposes of housing over 1,000 individual columbaria.

Other zonings

18.  So much for the planning intention of the V zoning.  But the OZP does not only deal with the V zone.  It deals with other zonings as well.  The OZP must be looked at as a whole in order to determine the meanings of the relevant words. In this regard, it is instructive to note that under both the GIC zoning and the GB zoning, columbarium is included in the respective Columns 2. This is, in my view, some indication that there is a distinction between a “shrine” and a “columbarium”, even though I would not go as far as the judge did to think that this is a “strong” indication that a columbarium cannot be a shrine (para 37).  It should be remembered that Note (9) is specifically subject to any Column 2 uses specified under individual zones.

Explanatory Statement

19.  In the proper construction of the words used in an OZP, one is not restricted only to the plan or the notes.  One should also have regard to the explanatory statement, although it does not form part of the plan : Henderson Real Estate Agency Ltd v Lo Chai Wan [1997] HKLRD 258, 267A‑E.  Paragraph 9.4.1 of the Explanatory Statement repeats the planning intention for the V zone.  Paragraph 9.4.2 adds that the boundaries of a V zone are drawn up “having regard to the existing village ‘environs’, outstanding Small House demands for the next ten years, topography and site constraints”.

20.  This, in my view, reinforces my earlier point that the operation of the Columbarium on the Lots is wholly incompatible with the planning intention of the V zoning.  In particular, it is quite inconsistent with the preservation of and respect for the existing village environs – given the kind and scale of activities that the Columbarium would generate.  As counsel for the Director submitted, the planning intention here is for the preservation of the village settings and the controlled development, appropriate to the rural environment, of the designated village related areas.  Small‑scale structures such as shrines and ancestral halls are very much part of the rural village scene.  But not so commercial, large‑scale columbaria which are markedly out of the character with such environment.

Definitions of Terms

21.  The Definitions of Terms published by the Town Planning Board may and should also be consulted : Wah Yick at page 180C/D‑G.  Under the Definitions of Terms, a “shrine” is defined to mean “a place or structure, other than building, for worship”.  According to the notes under the “Remarks” column which are deemed to be part of the definitions and should be read in conjunction with the definitions, a shrine is “usually of small‑scale and excludes buildings for religious purposes such as mosque, chapel, Tsz Tong, church, nunnery, monastery, temple, pavilion and convent.”  A “shrine” is subsumed under “Religious Institution” except where separately permitted under the covering Notes.

22.  On the other hand, a “columbarium” is defined to mean “any place or vault with niches or urns that contain the ashes of cremated bodies”.  The “Remarks” states that “Garden of Remembrance” and “Funeral Services Centre” are subsumed under the term “Columbarium” and under “Crematorium”.

23.  According to the Definitions, which are well‑known to town planners and the Town Planning Board which prepares the OZP, a “shrine” means a place or structure “other than building” for worship.  It is usually of “small‑scale and excludes buildings for religious purposes”.  It is therefore futile to debate whether a shrine can also be a columbarium and vice visa.  According to the Definitions, a shrine excludes a building.  In the present case, however, one is concerned with a huge columbarium.

Conclusion

24.  For all these reasons, it is plain that the reference to a “shrine” in Note (9) of the OZP does not include the type of use or development of the Lots which the Columbarium represents.  The use or development is not an always permitted use or development within the meaning of Note (9).  There is therefore no ground to challenge the enforcement notices.  In other words, the judge has rightly refused the application for judicial review.

25.  As mentioned, the appeal was accordingly dismissed with costs to the respondent, together with a certificate for two counsel.

Hon Kwan JA:

26.  I agree with the reasons for judgment of the Chief Judge.

Hon Chu JA:

27.  I agree.

(Andrew Cheung) Chief Judge of the High Court

(Susan Kwan) Justice of Appeal

(Carlye Chu) Justice of Appeal

Mr Philip Dykes SC, Mr Tim Kwok and Ms Stephanie Yan, instructed by Benson Li & Co, for the applicants (appellants)

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