The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 54 of 1996

 

Henderson Real Estate Agency Limited Appellant

v.

Lo Chai Wan Respondent

 

FROM

 

THE COURT OF APPEAL OF HONG KONG

 

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 16th December 1996

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Present at the hearing:-

Lord Goff of Chieveley

Lord Lloyd of Berwick

Lord Nicholls of Birkenhead

Lord Cooke of Thorndon

Sir Ralph Gibson

[Majority Judgment delivered by Lord Lloyd of Berwick]

 

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1. On 1st August 1992 Henderson Real Estate Agency Limited applied for planning permission for a large scale residential development at Nam Sang Wai in the North West New Territories.  The development was to consist of 2,550 residential units, and was to include an eighteen hole golf course.  Just over 1,000 units were to be grouped in twenty-five blocks of seven or eight storeys. The remainder were to be in houses of between two and four storeys.  The population was expected to be about 9,100.

 

2. Nam Sang Wai lies due south of Mai Po, a nature reserve on the edge of the Inner Deep Bay. The reserve is of world-wide importance due to the abundance of dwarf mangroves.  Surrounding the nature reserve on the landward side there are two so-called buffer zones, an inner zone (buffer zone 1) and an outer zone (buffer zone 2).  Nam Sang Wai lies on the southern edge of buffer zone 2.

 

 

  On 18th September 1992 Henderson's application was considered by the Rural and New Town Planning Committee of the Town Planning Board ("TPB").  But the Committee deferred its decision pending the publication of "clear policy guidelines on land use control in areas around the Mai Po Nature Reserve". On 9th October 1992 the Committee reconsidered the application in the light of guidelines issued on 25th September ("the 1992 guidelines").  It rejected the application on the ground that the development was not in line with the planning intention for the area, which was primarily "to protect and conserve the landscape and ecological value of the area, and its scenic quality necessary to sustain Mai Po Nature Reserve".

 

3. The Committee's decision was affirmed by the full Town Planning Board on 25th November. The reasons given by the Board were identical to those given by the Committee.

 

4. There was then an appeal to the Town Planning Appeal Board.  On 26th August 1994 the Appeal Board allowed Henderson's appeal by a majority of 3 to 1.  Planning permission was granted subject to certain conditions.  On 28th November 1994 the Town Planning Board was granted leave to apply for judicial review.  Five of the ten grounds of application related to the conditions imposed by the Appeal Board.  These are no longer in issue.  In their other grounds, the Town Planning Board say that the decision of the Appeal Board was wrong in law, irrational and ultra vires, since it contravened the planning intention for the area in question.  The planning intention was said to be "to preserve the rural character of the area, to conserve the fish ponds and primarily to restrict developments to agricultural and recreational uses only in order to maintain it as a buffer zone for the Mai Po Nature Reserve and the Inner Deep Bay area".

 

5. The application for judicial review came before Yam J. on 28th April 1995.  He could find no reason to interfere with the decision of the Appeal Board.  Accordingly he dismissed the application.

 

6. There was then an appeal.  The Court of Appeal (Power V.-P. and Bokhary and Ching JJ.A.) allowed the appeal and quashed the decision of the Appeal Board, but made no further order save that Henderson's should have leave to apply.

 

The legislation.

Before coming to the reasoning of the Court of Appeal, it is necessary to fill in the background in greater detail.  The relevant legislation is to be found in the Town Planning Ordinance.  It is the function of the Town Planning Board under section 3(1)(b) of the Ordinance to prepare draft development permission area plans.  The  plans when  prepared  are exhibited  for  public inspection.

7. There is an opportunity for members of the public to lodge objections under section 6 of the Ordinance.  The draft plan is then submitted to the Governor in Council.

 

8. Draft plans have a life span of three years, plus one additional year.  In the course of the hearing they were described as "stop-gap" plans.  They were intended to be replaced by outline zoning plans prepared under section 3(1)(a) of the Ordinance. 

 

9. In addition to preparing draft plans, the Town Planning Board also considers applications for planning permission within areas covered by draft plans.  Under section 16(4) the Board may grant permission "only to the extent shown and provided for or specified in the plan". There is provision in section 17A-C for the hearing of appeals by an Appeal Board.  It is common ground that the Appeal Board, like the Town Planning Board, is bound by section 16(4).  Section 26A provides that if a development permission area plan ("DPA") is superseded by an outline zoning plan ("OZP"), applications for planning permission submitted during the lifetime of the DPA shall continue to be considered under that plan and not under the OZP.

 

The application site.

The application site is split into two.  The northern part, known as Lut Chao, lies within buffer zone 1.  The proposal is that Lut Chao should be turned into a nature reserve to complement Mai Po.  The larger area to the south, known as Nam Sang Wai, is about 100 hectares, and is the area proposed for development.  It lies immediately east of Yuen Long industrial estate.  To the north west is a large residential development known as Fair View Park.  The area is, for the most part, covered by man-made fish ponds now largely abandoned.

 

The planning documents.

The DPA plan covering Nam Sang Wai was issued on 12th July 1991.  It covers an area of just under 600 hectares.  525 hectares are designated "unspecified use", 33 hectares are designated "open storage", and 17 hectares are designated "residential".  Permission for a low density housing development in the 17 hectares was given as long ago as 1964.  But it has never been developed.

 

10. The DPA plan was accompanied by some Notes.  Paragraph 2 provides that no development within the area may be undertaken without permission of the Town Planning Board, unless  permitted  by the Notes.  The Notes then set out the types

of development for which, by way of exception, no planning permission was to be required. The present application does not fall within any of the exceptions.

 

The Explanatory Statement.

The DPA plan was also accompanied by an Explanatory Statement.  But in contrast to the Notes, it is expressly provided that the Explanatory Statement does not form part of the draft plan.  Moreover the Explanatory Statement was not issued by the Town Planning Board.  It was issued by the Planning Department.  The distinction is not so technical as it may seem.  Whereas the public can object to the DPA plan and the Notes under section 6 of the Ordinance, there appears to be no opportunity to lodge objections to the Explanatory Statement.

 

11. Paragraph 6 of the Explanatory Statement describes the various uses set out in the plan. Paragraph 6.2.3 provides that in the residential zone (17 hectares) the maximum plot ratio should not exceed 0.4, with maximum site coverage of 20% and maximum building height of three storeys.   Paragraph 6.2.5 covers the unspecified use area.  It is divided into three sub-areas.  The third sub-area includes Nam Sang Wai.  Paragraph 6.2.5(a)(iii) relates to the third sub-area.  It lies at the heart of the present dispute.  It provides:-

"This unspecified area is rural in character and mainly comprises fish ponds with some ancillary structures.  Since the area drains into Inner Deep Bay and its proximity to Mai Po Nature Reserve, the planning intention is primarily to protect and conserve the area's landscape, ecological value and its scenic qualities."

 

12. Paragraph 6.2.5(d) and (e) are also important.  They provide:-

"(d) There may be areas where private initiatives may wish to provide comprehensive low-rise, low density residential developments ... Application should be made to the Board. ... due regards should also be given to minimising the environmental drainage and traffic impact of these developments on the surrounding areas.

 

(e) For any developments within this zone the owners/developers must demonstrate that their proposals would have insignificant adverse impacts on the environment, traffic and drainage of the area or appropriate measures will be taken by the applicants to minimise such impacts."

 

 

 

1992 Guidelines.

The next event chronologically was Henderson's application for planning permission in August 1992, followed by the guidelines issued on 25th September 1992.  Although it is convenient to refer to them as guidelines it is to be noticed that the document specifically provides that it should not be construed as a set of guidelines for the preparation of section 16 applications, nor does it bind the Town Planning Board in considering such applications.

 

13. The document consists of four short sections.  Section I (Introduction) provides:-

"In recognition of the need to preserve the Mai Po Nature Reserve (MPNR) which include wetland habitats of world-wide ecological significance, the Town Planning Board (the Board) considered it necessary to carefully consider development proposals in the vicinity of Mai Po so as to avoid the adverse cumulative effect of these developments on the MPNR."

 

14. Section II (Background) provides:-

"The majority of the area around the MPNR is designated as `Unspecified Use' area in the draft Mai Po [and other] plans.  Any developments, except exempted under the Notes to the DPA plans, would require the approval of the Board.  The planning intention for most of this area is primarily to restrict developments to agriculture and recreational use only.  Any application for development should demonstrate that the proposed development would have insignificant adverse impact on the environment, traffic and drainage of the area, particularly the MPNR."

 

15. Section IV then sets out the Basic Principles, as follows:-

"(a)Deep Bay Buffer Zone 1 is the area of the immediate vicinity of Inner Deep Bay including the MPNR.  The planning intention is primarily to protect the special ecological value of these coastline areas and their surroundings, including intertidal biological community.  New development within this zone should not be allowed unless it is required to support the conservation of the area's natural features and scenic qualities.

 

(b)Deep Bay Buffer Zone 2 consists of a much wider areas which have a bearing on the overall amenity and water quality of MPNR and other SSSIs in the vicinity. The planning intention is primarily to restrict developments

to agricultural and recreational uses only.  New development within this zone would not be considered unless the applicant could demonstrate that the proposed development would have insignificant impact on environment, drainage and traffic in the area including the MPNR."

 

16. As already mentioned, Nam Sang Wai is on the southern edge of buffer zone 2.  The 17 hectares designated residential lie towards the centre of Nam Sang Wai.

 

1993 Guidelines.

The 1992 guidelines were replaced by a second set of guidelines issued in November 1993 ("the 1993 guidelines").  Paragraph 3 explains the purpose of the buffer zones as follows:-

"In order to give the MPNR and the areas around Inner Deep Bay added protection and to prevent them from becoming isolated islands of natural habitat encroached by urban type developments, the buffer zone concept is adopted.  Two buffer zones have been delineated with a view to protecting the ecological value of the MPNR and other sensitive areas in the vicinity."

 

17. The planning principles relating to Buffer Zone 1 are in the same terms as the 1992 guidelines.  But there is some relaxation, or at least clarification, in relation to Buffer Zone 2:-

"The planning intention for Buffer Zone 2 is primarily to give added protection for the conservation of MPNR and Inner Deep Bay and to enhance the visual appearance and landscape features within the Buffer Zone 2 area.  New development within this zone would not be considered unless the applicant could demonstrate that the proposed development would have insignificant impact on environment, ecology, drainage, sewerage and traffic in the area including the MPNR and Inner Deep Bay."

 

18. It will be noticed that the restriction to agricultural and recreational uses has been dropped.  This is confirmed by paragraphs 5 and 7.  Paragraph 5 provides:-

"The proposed uses and developments within Buffer Zone 2 should not impose adverse impacts on the sustainability of the ecosystem of the MPNR and Inner Deep Bay. The following criteria should be satisfied

...

(c)A gradation of intensity in land use and activities, built form, density and height away from Buffer Zone 1 should be achieved to minimise the likely impacts on the

natural environment.  A diagrammatic illustration of the development concept for Buffer Zone 2 is shown in Figure 2.

 

(d)The proposed use and development should be compatible with the conservation objective of MPNR and Inner Deep Bay.  It should be appropriate to the area's rural setting and enhance the visual appearance and landscape character of the area."

 

19. Paragraph 7 provides:-

"Within Buffer Zone 2, the following activities associated with the different types of land uses may be considered appropriate having regard to the criteria in Para. 5 above

 

(a)Conservation - conservation of natural resources such as water bodies and landscape features should continue to be the planning intention with Buffer Zone 2. More specifically, existing fish ponds and gei-wais, villages and woodlands should be retained as far as possible and a landscape buffers ... should be provided between any development and Buffer Zone 1.

...

(c)Residential - Individual houses and/or low-density residential development may be considered in selected locations.  Generally, residential development should be located to the eastern and southern edge of the buffer zone area where it accords with the gradation concept - to protect the MPNR and more importantly that there will be insignificant adverse impacts on the ecological, drainage, sewerage, traffic and environmental aspects of the MPNR and the Inner Deep Bay area."

 

20. Paragraph 8 sets out the factors which the Town Planning Board will take into account in considering development proposals.  These include environmental and ecological impact.  Finally in paragraph 9 it is stressed that the applicant for planning permission must be able to show that the proposals "would have insignificant adverse impacts on the MPNR and the Inner Deep Bay area".

 

21. Attached to the 1993 guidelines is Figure 2.  It shows, diagrammatically, the perimeters of buffer zone 1 and buffer zone 2, and the area between.  This area is divided into three equal strips.  The inner strip shows existing woodlands, fish ponds and villages which are to be retained.  The middle strip shows  recreation,    with  ancillary  low-density  residential

development, and the outer strip shows low-density residential development without any reference to fish ponds or recreation.

 

22. There is one last document to be mentioned, namely, the draft OZP issued in June 1994. But since, under section 26(a) of the Ordinance it is the DPA plan and not the draft OZP which is relevant for the purposes of the present application, their Lordships say no more about it.

 

Decision of Town Planning Board.

In their decision dated 25th November 1992 the Town Planning Board gave eleven separate reasons for the refusal of planning permission.  The most relevant are as follows:-

"(a)the proposed development is not in line with the planning intention for the area which is primarily to protect and conserve the landscape and ecological value of the area and its scenic quality necessary to sustain Mai Po Nature Reserve;

(b)the intensity of the proposed development is excessive for low-density residential development in the rural area;

...

(g)the drainage impact assessment of the proposed development, in particular the impact of the loss of fish ponds and its impact on wildlife, ... are inadequate to demonstrate that they do not have adverse impacts on the area."

 

23. Reason (a) seems to be a direct reflection of paragraph 6.2.5(a)(iii) of the Explanatory Statement.  Reason (b) seems to be a direct reflection of paragraph 6.2.5(d) except that the reference to "low-rise" has been omitted.  In this respect it anticipates paragraph 7(c) of the 1993 guidelines, which also omits any reference to low rise.

 

Decision of the Appeal Board.

When the case came before the Appeal Board in March 1994, it took a different turn. The emphasis was no longer on the protection and conservation of the landscape "necessary to sustain MPNR", but on the value of the fish ponds for their own sake.  According to paragraph 66 of the Appeal Board's decision, the reason for this shift of emphasis was that the Town Planning Board "found it difficult to object to the proposed development on the basis that it would adversely affect MPNR".  It may also have been due to a letter from Mr. Young of World-wide Fund for Nature dated 14th March 1994 in which he said that the value of the fish ponds to wildlife generally had been underestimated in the past, and that the academic study of fish ponds had only just begun.

 

24. Whatever the strength of these reasons, there can be no doubt as to the change of emphasis. It is apparent from Mr. K.W. Cheung's statement, Mr. M.K. Cheung's statement, and also from Mr. Ng's evidence in cross-examination, in which he described the issue before the Appeal Board as being the battle of the fish ponds.  "We are now fighting" he said "to preserve the ponds". It was put to him that the preservation of the fish ponds was not a central issue.  He replied that it was.  The same point also emerges from some questions which the Chairman of the Appeal Board asked Miss Patel, the Town Planning Board's counsel.  She was asked whether the Town Planning Board's case was that the fish ponds were important as a buffer or whether they were important in themselves.  She replied:-

"Well, I believe that the Town Planning Board's case is that they are important as a buffer for the Mai Po Nature Reserve, which is why you have Buffer Zones 1 and 2 and they are important in themselves due to the reasons given by Mr. Young."

 

25. How did the Appeal Board approach the case?  They dealt first with the planning intention:-

"We are of the view that it is not apparent from the DPA plan that the planning intention is that the fish ponds in Nam Sang Wai should be preserved ... rather we gather from the DPA plan, a clear intention, which is implicit from the buffer zone concept, that the areas must not be so used as to adversely affect MPNR."

 

26. The Appeal Board then dealt with the reasons given by the Town Planning Board for their decision.  As to (a) they said:-

"We have no difficulty in concluding that the proposal fully complies with the planning intention of the DPA Plan namely that any development at Nam Sang Wai must not have any adverse impact on MPNR."

 

27. The Appeal Board were, of course, entitled to disagree with the Town Planning Board. Their function was to exercise an independent planning judgment.

 

28. As to paragraph (b) the Appeal Board pointed out that the plot ratio of the proposed development, the site coverage and population per hectare were all less than those already permitted in the 17 hectares of low-density residential development.  It was argued that the golf course should be excluded from the calculation.  But the Appeal Board did not accept that.  Nor could they find anything objectionable in the 8 storey apartment blocks, or the mere number of residents.  All these were planning  judgments with  which the court should not interfere. Their Lordships have heard little or no argument in support of reason (b).

 

29. That left the fish ponds.  As already mentioned the Appeal Board could find no indication of a planning intention to retain the fish ponds.  But they went on to consider whether the fish ponds have an intrinsic importance which ought, nevertheless, to be preserved.  On this issue there was a great deal of evidence on both sides, to which the Appeal Board refers in paragraph 61-63.  Their conclusion is stated in paragraph 64 as follows:-

"Active management [of the fish ponds] for wildlife will require resources from Government which has not been made available.  But in any event, we must say that we are not convinced that the loss of the fish ponds in Nam Sang Wai will not be adequately compensated for by the Lut Chau Nature Reserve and the wildlife habitat at the Nam Sang Wai Development."

 

30. In paragraph 68 they say:-

"(i)In intrinsic landscape terms, the proposals represent a substantial improvement to both Nam Sang Wai and Lut Chau, in the light of the Kam Tin Floodway Scheme and the existence of the Yuen Long Industrial Estate right next door.

 

(ii)In intrinsic ecological terms, the proposals in Nam Sang Wai and Lut Chau do not represent a threat to MPNR or to Deep Bay.  They rather complement MPNR and enhance the habitats in the Deep Bay Area."

 

The Application for Judicial Review.

The main thrust of the Town Planning Board's case as set out in the grounds of application for judicial review was that the Appeal Board misinterpretated (1) the draft DPA plan and (2) the relevant planning intention contained in the plan and other documents to which their Lordships have just referred.

 

31. As to (1), the evident purpose of the plan and the Notes attached to the plan, was to ensure that development did not take place within the DPA without permission, save for uses for which no planning permission was required.  Henderson duly applied for and obtained planning permission from the Appeal Board on appeal.  Seeing that there was no specified use for the area included in the application site (other than the small area of residential use) it could not be said that the Appeal Board had misunderstood the plan.  There was nothing to misunderstand.

 

 

32. It was argued by Mr. Ouseley Q.C., on behalf of the Town Planning Board, that since the DPA plan was only intended to have a life span of three years, or four at the most, and was in that sense a "stop-gap" until it could be replaced by the OZP, it cannot have been intended that permission for permanent development on a large scale should be granted in the meantime.  But if that had been the intention, it would have been simple enough to impose a restriction in the Notes attached to the plan. No such restriction was imposed. Their Lordships do not see how such a restriction can be implied.  So far as the plan itself is concerned, and the Notes attached to the plan, the decision of the Appeal Board is unassailable.

 

33. Then what about the other documents on which the Town Planning Board rely?  At this point a preliminary question arises. The plan and the Notes attached to the plan are obviously material documents to which the Appeal Board were bound to have regard; indeed they are the most material documents in the case. But what about the Explanatory Statement, and the subsequent guidelines?  The Explanatory Statement is expressly stated not to be part of the plan. But it does not follow that it was not a material consideration for the Appeal Board to take into account, even though, as Mr. Read Q.C., for the appellants, pointed out, the Ordinance does not contain a provision, corresponding to section 72 of the Town and Country Planning Act 1990, or clause 38(2) of the new Town Planning Bill, requiring the Town Planning Board and the Appeal Board to have regard to material considerations.

 

34. By the same token, the 1992 and 1993 guidelines are also material considerations to be taken into account.  The Appeal Board was not bound to follow the Explanatory Statement or the guidelines. But they could not be disregarded.

 

35. What then would be the position if, as the Town Planning Board assert, the Appeal Board misunderstood the documents?  It seems obvious that in those circumstances they would not have had proper regard for a material consideration.  The decision would be open to attack by way of judicial review.  This was the view expressed by Woolf J., as he then was, in Gransden and Co. v. Secretary of State for the Environment [1986] J.P.L. 519, affirmed on appeal [1987] J.P.L. 365.  It was a view expressed by the Court of Appeal in the present case. Their Lordships see no reason to disagree.

 

36. The first of the documents (other than the DPA plan) on which the Town Planning Board rely is the Explanatory Statement, issued on the same day as the plan. Paragraph 6.2.5(a)(iii)  has  already been quoted.  The argument based on that

paragraph is that it refers to the whole of the area of 525 hectares, and not just that part of the area which is nearest to Mai Po Nature Reserve.  The primary planning intention for the whole area is to protect and conserve its landscape and ecological value, and its scenic qualities.  How, it is asked, can a development comprising 2550 residential units, including a number of 8 storey apartment blocks, possibly comply with that intention? The only rational explanation is that the Appeal Board misunderstood the Explanatory Statement.

 

37. But the question is not quite so simple as that would make it seem.  For paragraph 6.2.5(a)(iii) does not stand alone. Paragraph 6.2.5(d) and (e), which have already been quoted, show that comprehensive residential development is not ruled out altogether provided it is low-rise and low-density, and provided "appropriate measures" are taken to minimise the impact on the environment.  What is included in "low-rise low-density development" in the context of the North West New Territories, and whether appropriate measures have been taken to minimise the impact on the environment, are essentially questions for the planning judgment of the Appeal Board, and not for the court.

 

38. Next one comes to the 1992 guidelines, which introduced for the first time the concept of the buffer zones.  The purpose of the buffer zones was to preserve Mai Po Nature Reserve as section I makes clear.  The planning intention for most of the area is for agricultural and recreational uses only.  But once again residential development is not ruled out provided it has insignificant adverse impact on the environment within the area, particularly the MPNR. This approach is reflected in the Basic Principles applicable to the two buffer zones.  In Buffer Zone 1 new development is not to be allowed unless it is required, positively, to support the conservation of the environment.  In Buffer Zone 2, on the other hand, development may be allowed if it would not have a significant negative or adverse impact on the environment.  This distinction contains the germ of the "gradation concept" which was developed in the 1993 guidelines.

 

39. As for the 1993 guidelines, it has already been mentioned that the reference to agriculture and recreation uses is omitted.  The planning intention is to give added protection to the conservation of MPNR and Inner Deep Bay, and to enhance the visual appearance and landscape features of the area as a whole.  Paragraph 5(c) is particularly important since it makes provision for a "gradation of intensity in land use and activities, built form, density and height away from Buffer Zone 1" so as to "minimise the likely impacts on the natural environment".  Paragraph 7(c) is also important since it allows low-density residential development in selected  locations,  and further  provides that such development

should be located towards the eastern and southern edge, so as to accord with the "gradation concept", and thereby ensure insignificant adverse impact on the MPNR and the Inner Deep Bay area.

 

Decision of the Court of Appeal.

It was not argued in the Court of Appeal that the Appeal Board had misunderstood the plan, or the accompanying Notes.  For, as already pointed out, there was nothing to misunderstand.  The argument was that the Appeal Board had misunderstood the Explanatory Statement and the subsequent guidelines.  According to the Court of Appeal, the planning intention to be derived from these documents was that the existing landscape, including the fish ponds, were to be preserved more or less intact, and certainly that there was to be no large scale residential development.  Consequently, they allowed the appeal, and quashed the decision of the Appeal Board.

 

Conclusion.

Their Lordships are unable to accept that there was any misunderstanding on the part of the Appeal Board.  If it had been the intention to preserve the whole of Buffer Zone 2 in its existing condition, it would have been easy enough to say so by designating the whole area a conservation zone.  Not only was that not done, but part of the area, amounting to 18 hectares, had already been designated residential.  It is true that there is a reference to the retention of fish ponds in paragraph 7(a) of the 1993 guidelines.  But it is impossible to regard this as applying to the whole of Buffer Zone 2. Otherwise there would be no difference between Buffer Zone 2 and Buffer Zone 1, and there would be no room for the comprehensive low-rise low-density residential development contemplated in paragraph 6.2.5(d) of the Explanatory Statement and paragraph 7(c) of the 1993 guidelines.  The gradation concept which is foreshadowed in the 1992 guidelines and spelt out in the 1993 guidelines would mean nothing if the existing landscape was to be kept intact. As for the scale for any residential development, this was clearly a matter for planning judgment.  Their Lordships can find no basis for inferring any misunderstanding on the part of the Board.  They are unconvinced by the reasons of the Court of Appeal on this aspect of the case.

 

40. But even if there were some misunderstanding on the part of the Appeal Board, it cannot avail Mr. Ouseley.  The Appeal Board heard a great deal of evidence about the intrinsic landscape and ecological value of the fish ponds.  There can be no doubt that the Appeal Board understood the Town Planning Board's case.  They appreciated  the  importance of wetlands.  But they

were not bound to accept the guidance contained in the Explanatory Statement and the subsequent guidelines.  The Appeal Board has stated in the clearest terms in paragraph 68 that they regarded the proposed development as an improvement in landscape terms.  They dealt fully with every aspect of the Town Planning Board's appeal.  The Town Planning Board chose to fight the battle of the fish ponds.  They lost on planning grounds.  That is all there is to be said.

 

41. Mr. Ouseley argued that the Appeal Board's conclusion on the merits of the fish ponds was in some way vitiated by their misinterpretation of the planning intention. Their Lordships do not agree.

 

42. There remains one final matter on which Mr. Ouseley relied.  It is said that the Appeal Board misunderstood Figure 2 attached to the 1993 guidelines.  There is no other explanation, it is said, for the view expressed in paragraph 35 of the decision that most of the existing fish ponds in Buffer Zone 2 would disappear.  The Appeal Board must therefore have treated Figure 2 as having been drawn to scale.

 

43. It seems to their Lordships highly unlikely that there was any such misunderstanding. Figure 2 is obviously no more than a diagram.  It is so described in paragraph 5(c) of the 1993 guidelines.  It is clearly not to scale.  The decision of the Appeal Board shows every sign of having been carefully prepared. The suggestion that they must have made an elementary mistake in relation to the diagram is too far-fetched to be accepted.  Indeed so far from helping the Town Planning Board, the diagram is strong support for the appellants.  It shows conclusively that it was never the intention of the Town Planning Board, as planning authority, that the fish ponds, or the existing landscape within the Buffer Zone 2 should be preserved intact.  For the above reasons their Lordships will humbly advise Her Majesty that the appeal ought to be allowed, and the decision of the Appeal Board restored. The respondent must pay the appellant's costs in the Court of Appeal and before their Lordships' Board.

__________________________________

 

Dissenting Judgment delivered by

Lord Goff of Chieveley and Lord Nicholls of Birkenhead

 

44. We regret that we find ourselves constrained humbly to advise Her Majesty that this appeal should be dismissed.  The crucial question is whether the majority of the Appeal Board misunderstood the planning intention for the site and, in consequence, misdirected themselves. The Court of Appeal so held.  We agree with the Court of Appeal.

45. The consistent thread running through the material planning documents is that no large scale development was envisaged in this area, because this would defeat the purpose of the area as a buffer between developed areas and Mai Po nature reserve.  Thus, the Explanatory Statement issued in July 1991, in paragraph 6.2.5(a)(iii), described the area as rural in character and mainly comprising fish ponds with some ancillary structures. The planning intention was stated to be "primarily to protect and conserve the area's landscape, ecological value and its scenic qualities" (emphasis added).  The reasons given were that the area drained into Inner Deep Bay and its proximity to the nature reserve.

 

46. The 1992 Guidelines stated that the planning intention for Buffer Zone 2 was "primarily to restrict developments to agricultural and recreational uses only". New development would not be considered unless it would have "insignificant impact on environment, drainage and traffic in the area including the MPNR" (emphasis added). The 1993 Guidelines were expressed differently, but the underlying purpose was the same.  The primary planning intention was stated to be twofold: to give added protection for the conservation of MPNR and Inner Deep Bay, and to enhance the visual appearance and landscape features "within the Buffer Zone 2 area".  The bar on new developments was expressed in similar terms to the 1992 Guidelines.

 

47. When the Town Planning Board declined to approve the application in November 1992 and, on review, in June 1993, ground (a) for its decision was that the development was "not in line with the planning intention for the area which is primarily to protect and conserve the landscape and ecological value of the area and its scenic quality necessary to sustain Mai Po Nature Reserve" (emphasis added).  This is hardly a surprising decision, given that the proposal was for a major residential development, comprising 2,550 residential units covering almost 100ha. Over 1,000 of the residential units would be in 25 tower blocks of seven or eight storeys.  Whatever one may think of the scenic qualities of abandoned fish ponds, a residential development of this scale and nature must change the character of the area.

 

48. Against this background we turn to consider the majority decision of the Appeal Board. They said, in paragraph 67, regarding ground (a) of the Planning Board's reasons:-

"We have no difficulty in concluding that the proposal fully complies with the planning [intention] of the DPA plan namely that any development at Nam Sang Wai must not have any adverse impact on MPNR."

 

 

49. With all respect to the Planning Board, that is a misreading of the planning intention. This fails to take into account the intention that the area itself should remain substantially undeveloped and thereby protect the nature reserve.

 

50. In delivering the leading judgment in the Court of Appeal Bokhary J.A. said:-

"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 DPA an appropriate buffer to the Mai Po Nature Reserve.

 

[Counsel for the developer] 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."

 

Ching J.A. added:-

"... the intention of the Town Planning Board was that the area in which the ... 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."

 

We agree. At the very least the planning intention as expressed or clarified in the Explanatory Statement and the guidelines was a material consideration.  The Appeal Board failed to have regard to this.

 

51. We add only that this misunderstanding was not put right by the Appeal Board's consideration of the so-called battle of the ponds.  The majority of the Board approached this on the footing that they gathered from the DPA plan "a clear intention ... that the areas must not be so used as to adversely affect MPNR".  They then considered and rejected a case based on the intrinsic importance of the fish ponds.  But that was beside the point.  They did not consider the application against the background that in the interests of the nature reserve, the buffer zone 2 area was intended to remain substantially undeveloped.

 

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