ATTORNEY GENERAL v. C.C. TSE (ESTATES) LTD

bjbj CACV000102/1981 Headnote Interpretation of Sections 3 and 4 of the Town Planning Ordinance "Types of buildings" Draft Town Plans may legitimately prescribe a plot ratio for buildings in plans for the types of buildings suitable for erection in existing and potential urban areas. Civil Appeal No. 102 of 1981 IN THE COURT OF APPEAL BETWEEN The Attorney General Appellant/Defendant C.C. Tse (Estates) Ltd. Respondent/Plaintiff ----------------- Coram: Hon. Leonard, V.P., Cons & Zimmern, JJ.A. Date of judgment: 10th December, 1981. ----------------- JUDGMENT ----------------- This is an appeal by the Attorney General against the granting of declarations to the effect that a maximum plot ratio of 0.6 for new buildings on Draft Plans prepared by the Town Planning Board is void. The respondent company owns Inland Lot 6 in Tai Po district a class A site (that is a site abutting on a single road). On 23rd October 1980 it submitted plans for development of the site by the erection on it of two blocks of residential flats of five storeys each. On that date the permitted plot ratio for a class A site under the Building (Planning) Regulations may be accepted as having considerably exceeded 3.3 which was the plot ratio on which the submitted plans were based. On the 12th December 1980 while the respondents' plans were under consideration the Draft Plan in question was exhibited and gazetted. On it the respondent's site was outlined and designated "Residential (Group C)". From the notes to the Draft Plan, which form part of it, it is clear that the Town Planning Board wished to limit the development of areas or zones so designated. In the notes it set out "uses always permitted" as including houses flats, open spaces and private swimming pools etc. It also set out a list of further uses which might be permitted on application to the Board and in a remarks column the following stipulation appears "On land designated 'Residential (Group C)' the plot ratio of new buildings will not exceed 0.6". One week later on the 19th December 1980 the Building Authority refused to approve the respondent's building plans (submitted almost two months earlier) on, inter alia, the following ground - "under Section 16(1)(d) of the Buildings Ordinance on the grounds that the plot ratio of the proposed buildings is in excess of the plot ratio of 0.6 permitted in the Notes attached to the Draft Tai Po Outline Zoning Plan No. LTP/47 prepared under the Town Planning Ordinance". I pause to remark that below and before us this refusal was not the subject of attack. The sole question for my consideration then is whether the Town Planning Board may provide by its Draft Plans for plot ratio. It was tacitly assumed before us that "Plot ratio" is a term of art and has the meaning assigned to it by the Building Planning Regulations. There is no definition of it to be found in those regulations. Regulation 21(3) however tells us how to obtain the plot ratio of a building although admittedly only "for the purposes of this Regulation and of Regulations 19,20 and 22" - not for the purposes of the Town Planning Ordinance nor the plans made under it, we obtain it by dividing the gross floor area of the building by the area of the site on which the building is erected. If the gross floor area, for example, is 3,000 square metres and the site area is 500 square metres the plot ratio will be 6. If the stipulated plot ratio is only 0.6 the gross floor area on the same site could not exceed 300 square metres. One could in such a case erect a bungalow with a floor area of 300 square metres or a six storey building each floor of which was 50 square metres - in which case of course a large area of the site would be left vacant. Plot ratio then, I assume, means the relation between floor area and site area. Once the plot ratio for a given site is provided the architect is controlled as to the floor area for which his plans may cater and no design no matter how brilliant may cater for a greater floor area. The Attorney General in considering the effect of assigning a low plot ratio to a site or zone suggested it would result in "low density building". This may be a term of art. I must confess that unless it is I do not fully understand it. If the notion of density is applied to the number of persons to occupy the site or zone I can envisage a large number being closely compacted on a small floor area ("high" density) or a small number occupying a large floor area ("Low" density). If one applies the notion to the buildings themselves then, in determining whether their density is high or low, planners would not be assisted save very indirectly by the notion of plot ratio. A large number of bungalows would be densely packed together; a small number of skyscrapers having the same plot ratio be less compacted. I do not find the concept of "low density building" of great assistance in determining the effect of plot ratio. I can nevertheless appreciate that planners when determining how to control the development of, for example, a suburb would find it desirable to stipulate that buildings in it should have a low plot ratio. It is probable that less people will live in the suburb if the houses in it have a low plot ratio. This may be the meaning of the phrase "low density building" used as term of art. Certainly the buildings erected will, if they have the same plot ratio, have one common factor - the floor area of all, be they a "little boxes" to house beetles or belfries to house bats, will have the same relationship to site area. If one site is large and that adjacent small the buildings may have little else in common - which may, perhaps, be as well. Precisely the same question which faces us in this appeal arose in M.P. 409/73 Crozet Ltd. & ors. v. The Attorney General. That case is unreported. Briggs C.J. there said "One way to control this" (i.e. density of population) "is to lay down the permitted plot ratio" and I am prepared to accept that this may be an indirect effect and it may be that the phrase "low density housing" is intended to convey the idea of "an area in which the people living live less closely packed together" than they would in "high density housing". Any urban or suburban planner, if permitted by enabling legislation will wish to make provision for density of population in the particular zone or area with which he is concerned, balancing the needs of the particular zone with the needs of the community generally. Plot ratio may indirectly assist him to do so. The desirability then is established granted the necessity for Town Planning. Does the legislation permit it? The only relevant sections are Section 3 and 4(1) of the Town Planning Ordinance - "3. 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 draft plans for the future lay-out of such existing and potential urban areas as the Governor may direct as well as for the types of building suitable for erection therein. In the course of preparation of such plans the Board shall make such inquiries and arrangements (including, if it thinks fit, the taking of any census of the occupants of any buildings or of the users of any thoroughfares or spaces) as it may consider necessary for the preparation of such drafts. 4(1) The Board's draft plans for the lay-out of any such area may show or make provision for - streets, railways and other main communications; zones or districts set apart for use for residential, commercial, industrial or other specified uses; reserves for Government, institution or community purposes; parks, recreation grounds and similar open spaces; zones or districts set apart for undetermined uses, and any matter whatsoever may be shown or provided for or specified in or in respect of the plans by means of such diagrams, illustrations, notes or descriptive matter as the Board thinks appropriate; and any such diagrams, illustrations, notes and descriptive matter shall be part of the plans." As to canons of construction it has been suggested that this Court should strive to hold the Draft Plan good if it can. That was the approach which I took in Singway Co. Ltd. v. The Attorney General(1) where I endeavoured so to construe the Town Plan as to keep it alive. There, however, I was called upon to construe the plans. I was asked for a declaration that they were not draft plans within the meaning of the Ordinance. Notes in the plans called for construction. That is not the position here. Here the plan is abundantly clear and certain. What is in issue is whether the plan may prescribe plot ratio. To determine that issue I am concerned only with construction of Sections 3 and 4(1). Those Sections of themselves do not take away private rights of property. The Town Planning Ordinance of itself does not do so. It is Section 16(1)(d) of the Building Ordinance that does so by empowering the Building Authority to refuse approval to building plans where the proposed building would contravene a plan prepared under the Town Planning Ordinance. Nevertheless in construing the two sections I consider that I should seek the intention of the legislature "from express words but it may also appear by irresistible inference from the statute read as a whole. But if there is a reasonable doubt, the subject should be given the benefit of the doubt" (Per Lord Reid in Westminister Bank v. Beverly B.G.(2) In Singway Co. Ltd. v. Attorney General I noted (at page 285) when discussing Section 4(1) of the Ordinance that it was "silent concerning plans of the types of building suitable for erection in existing and potential urban areas. I have been unable to attribute any significance to this omission in considering the interpretation of the two sections". So far as I can recollect the plan in question and the arguments arising did not deal with "types of building" as such but rather with user. I must now consider what is the effect of Section 4(1) being silent concerning plans for "the types of building suitable for erection" because of the course which the argument before us has taken. The Attorney General contends that Section 3 imposes on the Board a duty to undertake the systematic preparation of plans for two separate things i.e. (i) for future layout of areas and (ii) "as well as for the types of building suitable for erection therein". Section 4(1) gives power to enable the Board to include certain matters in Draft Plans for layout only. Since Section 3 imposes that duty, he continues, a power to carry it out must necessarily be implied since none is conferred in Section 4(1) or elsewhere. Mr. Swaine on the other hand contends that the words "as well as" mean no more than "including" and that the list of powers in Section 4(1)(a) to (e) inclusive are exhaustive of the powers of the Board. I can not so regard the words "as well as". In ordinary parlance they mean "in addition to". I see no reason to regard them as meaning anything else in Section 3. I therefore consider that the Board has power to make plans for types of buildings suitable for erection in existing and potential urban areas and utter a "mea culpa" if Singway suggests otherwise. I think it would be wrong to hold that plans catering for types of buildings must be separate from those catering for layout and it was not so argued. The Attorney General urged that by requiring premises to be of 0.6 plot ratio the Board was calling for "low density housing" and achieving certainty. I have already expressed my views and difficulties as to the concept of low density housing but agree that certainty is achieved. He argued that there were many characteristics that could be used to typify a building and would have us include in them its plot ratio. Mr. Swaine's defence of the judgment in the Court below was as he put it two pronged. His first contention was that on the true construction of Sections 3 and 4(1) the powers conferred by Section 4(1) were intended to enable the Board to fulfil all the functions provided for in Section 3 so that one cannot look beyond Section 4(1) to ascertain its powers. For reasons already given I do not consider this valid. His second contention was that if he was wrong as to the interpretation of Sections 3 and 4(1) one could not, merely by providing a maximum plot ratio, create buildings of a type. He supports his argument that the declarations should be granted by suggesting that plot ratio in 1962 was an unknown characteristic and that power to stipulate a maximum plot ratio could therefore not be implied. He further suggested that the "key element" in prescribing "type" is user. I cannot accept these contentions. To fix plot ratio is to do no more and no less than to fix the relationship of floor area to site area. This was not an unknown relationship in 1962 nor indeed since multistoried buildings were first thought of. User may be a method of characterization or of typing. It is not the sole method. If a number of buildings have a plot ratio of 0.6 they have that in common. It is in my opinion an attribute sufficient to make them fall into a type. Indeed, unless the sites differ greatly in size, buildings erected on them having the same plot ratio as one another will almost certainly not differ greatly in other attributes. The effect of fixing a low plot ratio is in practice well nigh inevitable. I would allow this appeal and order that the declarations given be set aside, with costs. Cons, J.A. : C.C. Tse (Estates) Ltd., whom I shall call "the company" for short, is the registered owner of Tai Po Inland Lot No. 6, a piece of land of some 4,000 sq. metres in Tai Po Kau not far from the Tai Po Railway Station. In 1978 the company wished to redevelop the lot and submitted plans of an ambitious scheme to the Building Authority. The plans were rejected as out of keeping with the vicinity. In October last year the company tried again and submitted a more modest scheme of only two apartment buildings each rising to only five stories. This scheme was also rejected, in December, this time as contravening a draft plan prepared by the Town Planning Board. Inland Lot No. 6 falls upon that plan within a zone marked "Residential (Group C)". The uses to which that zone may be put are set out in a schedule to the plan. Those permitted in any event are few and include, for example, flats, houses and a Police Reporting Centre. Uses that may be permitted, with or without conditions, on application to the Board are more widely drawn and include, for example, banks, community centres, hotels and supermarkets. In the "Remarks" column of the schedule appear the words : "On land designated 'Residential (Group C)' the plot ratio of new buildings will not exceed 0.6." The plans submitted by the company were based on a plot ratio of 3.3. It was in this way that they were said to contravene the Board's draft plan. The company was not satisfied with the reason given for the rejection. It thought that the Board had exceeded its powers. So the company took the matter to Court, asking for three declarations, all to much the same effect, that in so far as the draft plan prescribed a plot ratio it was null and void and of no effect. There is an unreported case, Crozet Ltd. v. The Attorney General(1), which is direct authority for the proposition that the Board does have power to decide such matters. However when the action came on for hearing before Liu, J. in July this year Counsel for the Crown did not seek to rely upon that decision but instead asked Liu, J. to approach the matter de novo. The Judge did so and came to the conclusion that the company was right. He granted the three declarations sought and the Attorney General now appeals. Mr. Swaine appeared on behalf of the company before us, as he did in the Court below. To understand his main argument, which was accepted by the Judge, it is necessary to read Sections 3 & 4 of the Town Planning Ordinance Cap. 131 : 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 draft plans for the future lay-out of such existing and potential urban areas as the Governor may direct as well as for the types of building suitable for erection therein. In the course of preparation of such plans the Board shall make such inquiries and arrangements (including, if it thinks fit, the taking of any census of the occupants of any buildings or of the users of any thoroughfares or spaces) as it may consider necessary for the preparation of such drafts. The Board's draft plans for the lay-out of any such area may show or make provision for - streets, railways and other main communications; zones or districts set apart for use for residential, commercial, industrial or other specified uses; reserves for Government, institution or community purposes; parks, recreation grounds and similar open spaces; zones or districts set apart for undetermined uses, and any matter whatsoever may be shown or provided for or specified in or in respect of the plans by means of such diagrams, illustrations, notes or descriptive matter as the Board thinks appropriate; and any such diagrams, illustrations, notes and descriptive matter shall be part of the plans. The Board may recommend to the Governor in Council the resumption of any land interfering with its plans for the lay-out of any area; and resumption to avoid such interference shall be deemed to be resumption for a public purpose within the meaning of the Crown Lands Resumption Ordinance. Except in the case of resumption under the said Ordinance no compensation shall be paid to the proprietor or any person interested in any holding by reason of the fact that it lies within or is affected by any zone or district set apart under subsection (1) (b)." I understand the argument to run as follows : By the application of the well known rule of construction, expressio unius exclusio alterius, the Town Planning Board in the exercise of its duty to prepare draft plans for the future layout of such existing and potential urban areas as the Governor may direct, may make provision only by way of those matters specifically mentioned in Section 4(1). (ii) Preparation of plans "for the types of building suitable for erection" in the particular areas is part and parcel of the preparation of plans "for the future layout" thereof and can have no separate existence. (iii) Therefore by reason of (i) above and the further application of the same rule of construction, if any particular criterion for setting buildings into type is mentioned in Section 4(1), the Board's power to make provision "for types of building" is limited by reference to that criterion and that criterion alone. (iv) One way in which buildings may be set into type is by reference to their use. Use is specifically mentioned in Section 4(1)(b). (vi) Therefore the Board has no power to make provision by reference to any other criterion as, for example, plot ratio. There is good authority for stage (i) in Singway Co. Ltd. v. The Attorney General(2). But it is immediately apparent that stage (ii) requires us to ignore the words "as well as for the types of building suitable for erection therein" or to treat them as having been put in ex abundanti cautela. Alternatively, Mr. Swaine asked us to read "as well as for" as "including", which word, he submits, could have been equally easily used by the draftsman of the Ordinance. I discern no reason why we should do any of these things other than to support the argument put forward and that I see as an inherent weakness in it. Furthermore, for reasons which I shall give later, I am not satisfied that reference to user is a suitable criterion for setting buildings into "types suitable for erection" in the designated areas. That, I think, is fatal to the remaining stages of the argument. Mr. Swaine urged upon us that it is more probable than not that the legislature intended Section 4(1) to govern and restrict all aspects of Section 3 and not just part thereof; that it is highly unlikely that it would deal specifically with matters of "layout" but leave "types of building" at large; and that the use of the words "layout of any such area" in the introductory words of Section 4(1) are a form of shorthand meant to include all matters mentioned in the previous section. For my part I am not persuaded. I find the words of Section 3, taken as they stand, clear and unambiguous. I see no reason to go behind them or to assume that, merely because the word "future" is not repeated before "layout" in Section 4, the latter word somehow becomes shorthand for "layout and types of building". It is then necessary to consider Mr. Swaine's alternative argument, which also found favour with the Judge below, that the power of the Board to prepare plans for the types of building does not include a power to specify any particular plot ratio; or as he put it quite simply, plot ratio cannot be equated with a type of building. I should first comment upon the arguments directed to the general approach that we ought to adopt in construing this particular legislation. The Attorney General has asked us to adopt a benevolent attitude, to keep the plan alive if we possibly can. That is a proper approach to subsidiary legislation, as appears from the judgment in Singway(3), where the authorities are conveniently set out. The Attorney General stressed the community benefit aspect of the legislation, clearly illustrated by the opening words of Section 3 and emphasied by their repetition in the Preamble to the Ordinance. It may sometimes be necessary, he suggested, that a few individuals make sacrifices for the benefit of the population as a whole. If that is so, said Mr. Swaine, the sacrifice demanded from the company is too much. A plot ratio of only 0.6 would reduce permissible development on the site to less than one fifth of even the present very modes scheme. He asked us to adopt a strict approach "guided by the well known 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"(4). There are similar dicta in Westminster Bank v. Beverley B.C.(5): Both approaches have their attraction. The Judge below considered the meaning of the words "types of building" : "Given its ordinary meaning, "types of building" means classes of buildings sharing common characteristics. Buildings may be cast into types or classified by their uses (eg. industrial, commercial, domestic, undetermined etc.), their purposes (eg. private, communal, public, governmental, military etc.), their functions (eg. hall, mess, greenhouse, etc.), their design (eg. oriental, Renaissance, baroque, etc.), their configuration (eg. castle, bungalow, etc.), their dimensions (eg. high-rise, low etc.), their methods of construction (eg. pre-fabricated, brick R.C.C., wood etc.), their durability (eg. temporary, permanent, etc.) or their status (eg. low-cost, resettlement etc.). The list of common characteristics is never exhaustive." The Attorney General was content to accept the approach of the Judge but with some reservation as to "use". He thought that the use of a building would not necessarily put that building into a particular type as, for example, where a house was used as a home for elderly ladies. In other cases it might do so. He instanced a fire station or a cinema, where the use resulted in particular and recognizable physical characteristics. The discussion before us turned only on the question of use, which was important for the first argument. For my part I would add to it the next two criteria mentioned by the Judge, i.e. the purpose and function of buildings. To my mind, they are merely different expressions of the same idea, i.e. that the type to which a building belongs may be deduced from what is done or intended to be done therein. The importance of physical features becomes apparent when one consider circumstances that are not uncommon, for example, in England, where buildings such as windmills, Martello towers, or even unwanted churches are converted into private homes. To my mind it stretches language too far to say that thereby they have changed in type. They have not. They still retain the distinctive features by which their type was originally recognizable, even though the use to which they are now put is different from before. I pause here to remark that in this instance we are considering the words "types of building" in the context of town planning. Different considerations might apply in the context of say public health. It seems to me that what is done inside a building is not a satisfactory characteristic for determining the type of that building, which is more a question of design. This could be introduced into the Judge's definition by the addition of the word "architectural", so that it would then read: "'types of building' means classes of buildings sharing common architectural characteristics". Or to put it in other way, when we wish to know into which type or types of building a particular building falls, we must look at the building as a building. The question then is whether plot ratio is an architectural characteristic. In my opinion it is. As I understand the term it means the relationship between the floor area of the building and the ground on which it could be built. This is confirmed by the only statutory definition of which I am aware. It is to be found in Regulation 21(3) of the Building (Planning) Regulations and provides that for the purposes of that Regulation and three others "the plot ratio of a building shall be obtained by dividing the gross floor area of the building by the area of the site on which the building is erected". It is thus not a rigid feature. It is a matter of proportion which leaves the architect considerable latitude, in theory at least. He may design la pancake or la pencil, or somewhere between those two extremes. Nonetheless, the resultant buildings will all have something in common. All will have the same relationship of floor area to site area. That is something which relates to the building as a building and in my view is an architectural characteristic as much as an auditorium or a garage. It may not be as readily discernable to the untrained eye, but it is there all the same, and its effect would, I feel confident, be immediately discernable to anyone were he faced with buildings of plot ratios as widely varied as those we are concerned with here. Mr. Swaine objected that in 1939, when the Town Planning Ordinance was drafted, plot ratio was a concept not yet recognised by the architectural world of Hong Kong and could not therefore have been in the mind of the legislature. That may be, although I think there is no evidence either way. However it makes no difference. The position is the same whether the legislature could not have anticipated the situation that subsequently occurred or merely failed to do so. It is the words of the statute that matter; see McIntyre v. Hard Castle(6) where Tucker L.J. said : "I do not think that the legislature really contemplated this situation when this paragraph was framed. Therefore, I feel driven to interpret it merely in the light of the actual language used." A further objection was that the legislature cannot have intended the Town Planning Ordinance to deal with a matter of this kind because it is fully and specifically dealt with in Regulations made under the Buildings Ordinance Cap. 123; the Town Planning Ordinance was meant to give guidance only of the "broad brush" kind, not to deal with fine particulars of this nature. It seems to me however that the restriction imposed in the present instance is of the "broad brush" kind. The question was whether the legislation permitted the Board to use the particular colour that it had chosen. The Attorney General had two or perhaps three further arguments based upon the last paragraph of Section 4(1) or upon Crozet's case. I venture to think that all were doubtful starters but express no concluded opinion. For the reasons I have already given I would allow the appeal and set aside the declarations given below. Zimmern, J.A. : The respondent in this appeal is the owner of a valuable piece of land in Tai Po in the New Territories. Its area is about 4,046.86 square metres and under Regulation 2 of the Building (Planning) Regulations made under the Buildings Ordinance it is common ground that the site is a Class A site by reason that it abuts on one street not less than 4.5 metres wide. After an unsuccessful application to the Building Authority for approval of plans for development of the site in 1978, the respondent on 23rd October, 1980 made a fresh application submitting for approval plans for the intended re-development of the site consisting of 2 blocks of 5-storeys each. By a letter dated 19th December, 1980 the Building Authority refused to give his approval of the plans on three grounds of which only one is relevant for the purpose of this appeal namely : Under Section (1)(d) of the Building Ordinance that the plot ratio of the proposed buildings is in excess of the plot ratio of 0.6 permitted to the Notes attached to the Draft Tai Po Outline Zoning Plan No. LTP/47 prepared under the Town Planning Ordinance. On 8th May, 1981 the respondent issued an Originating Summons naming the Attorney General as defendant claiming, inter alia, the following reliefs. A declaration that the Draft Plan in so far it prescribes any plot ratio for Tai Po Inland Lot No. 6 is and was null and void, invalid and of no effect whatsoever. A declaration that that part of the Draft Plan which provides that on land designated "Residential (Group C)" the plot ratio of new buildings will not exceed 0.6, is and was null and void, invalid and of no effect whatsoever. A declaration that development on Tai Po Inland Lot No.6 is and was not limited by any plot ratio prescribed in the Draft Plan. The matter was heard before Liu J. who in a reserved judgment granted the 3 declarations sought. The Attorney General appearing personally before us appeals from that judgment on the grounds that the judge had erred in law in his three findings. The issue in this case is whether or not, under the Town Planning Ordinance, the Board can control gross permitted floor area of buildings on sites laid out under the Ordinance. The Town Planning Ordinance was passed in 1939 but it was then only for the guidance of officials and there was no statutory power of enforcement till an amendment to Section 16 of the Buildings Ordinance in 1960 which changed the position. The respondent's application was refused under that section. The introduction to the Town Planning Ordinance reads :- "To promote the health, safety, convenience and general welfare of the community by making provision for the systematic preparation and approval of plans for the future lay-out of existing and potential urban areas as well as for the types of building suitable for erection therein." and this is repeated in Section 3 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 draft plans for the future lay-out of such existing and potential urban areas as the Governor may direct as well as for the types of building suitable for erection therein. In the course of preparation of such plans the Board shall make such inquiries and arrangements (including, if it thinks fit, the taking of any census of the occupants of any buildings or of the users of any thoroughfares or spaces) as it may consider necessary for the preparation of such drafts." Section 4(1) reads as follows and the final phrase set out hereunder in inverted commas was introduced by amendment in 1974 after the judgment of Leonard J. (as he then was) in Singway Co. v. Attorney General(1) :- 4.(1) The Board's draft plans for the lay-out of any such area may show or make provision for - streets, railways and other main communications; zones or districts set apart for use for residential, commercial, industrial or other specified uses; reserves for Government, institution or community purposes; parks, recreation grounds and similar open spaces; zones or districts set apart for undetermined uses, "and any matter whatsoever may be shown or provided for or specified in or in respect of the plans by means of such diagrams, illustrations, notes or descriptive matter as the Board thinks appropriate; and any such diagrams, illustrations, notes and descriptive matter shall be part of the plans." At pp.295 and 296 the learned judge said :- "Since section 3 concerns itself with duties and section 4 with powers, that is the powers to define an area in the draft plan as suitable for a particular purpose, I consider that the matters which their plans may show or make provision for must be regarded as being exclusive. Their plans may show or make provision for those matters and for no others. By reason of section 16(1)(d) of the Buildings Ordinance if the plans show or make provision for any matters mentioned in paragraphs (a), (b), (c) and (d) of section 4(1) then the Building Authority must refuse to give its approval of plans of building works where they would contravene the town plan." In instant case we are more concerned with the construction of Section 3. The learned judge earlier in his judgment had this to say :- "The first section gives the short title to the Ordinance and the second enables the Governor to appoint the Town Planning Board and fixes its quorum. The third section, the rubric to which is "Functions of the Board", obliges the board "with a view to the promotion of the health, safety, convenience and general welfare of the community", to "undertake the systematic preparation of draft plans for the future layout of such existing and potential urban areas as the Governor may direct as well as for the types of building suitable for erection therein'. In the course of preparation of such plans the Board shall make such enquiries and arrangements (including, if it will think fit, the taking of any census of the occupants of any building or of the users of any thoroughfares or spaces) as it may consider necessary for the preparation of such drafts.' The section thus envisages two types of plans: plans for the layout of areas and plans for "types" of building suitable for erection in areas. The rubric for section 4 reads : "Contents of layout plans and powers of the Board." The portions of the section with which I must concern myself read as follows :- "4(1) The Board's draft plans for the layout of any such area may show or make provision for - streets, railways and other main communications; zones or districts set apart for use for residential, commercial, industrial or other specified uses; reserves for Government purposes; parks, recreation grounds and similar open space; zones or districts set apart for undetermined uses." (This sub-paragraph was added as recently as 1969). The section is silent concerning plans for the types of building suitable for erection in existing and potential urban areas. I have been unable to attribute any significance to this omission in considering the interpretation of the two sections." Mr. Swaine for the respondent tries to pursuade us that the phrase "as well as" in Section 3 means "including" and that the draft plans for the future layout include the plans for the types of buildings therefore both draft plans are covered by Section 4(1). This is contrary to any normal use of the phrase. It is a conjunction and means "in addition". In my view the Attorney General was right when he said the draft plans referred to in Section 3 are really schemes of arrangement and not confined to diagrams. That Section empowers the Board with a view to the promotion of the health, safety, convenience and general welfare of the community to prepare schemes for first, the future layout for existing and potential urban areas as the Governor may direct and second, for the types of buildings suitable for erection therein. Express provisions for the first are made under Section 4(1) but since the 1974 amendments the Board have been able to incorporate anything formulated in the second into the diagrams, illustrations, notes and descriptive matters formulated for the first scheme. In the draft plan No. LTP/47 exhibited under Section 5 of the Ordinance on the 12th December, 1980, it is common ground that the respondent's site is shown and marked R/C. In the Notation, R/C means Residential (Group) C. It is stated on the plan that the attached notes also form part of the plan. In the notes attached there appears the following in part under the heading Residential (Group) " Remarks On land designated "Residential (Group C) the plot ratio of new building will not exceed 0.6." The Attorney General contends that the Board by that note decided under the second scheme that buildings to be erected in future in areas designated for Residential (Group) C will not exceed a plot ratio of 0.6. It is clear from the judgment that the plot ratio controls the maximum gross floor area of a building erected on a site for plot ratio times the area of the site gives that maximum gross floor area. The respondent's plans in its unsuccessful application to the Building Authority was based on a plot ratio of over 3. By planning plot ratio as low as 0.6 for future buildings in the designated Residential Zone (Group C) within an area of some 49 hectares as set out in plan it is clear that the Board's intention is to keep low the number of people who can in future be accommodated within that residential zone Group C. The question is whether the limitation of gross floor area of buildings by means of plot ratio be within the powers of the Board under the second scheme under Section 3, i.e. whether buildings so limited are a type of buildings. There is no argument between the parties that in this context "types of buildings" means buildings with common characteristics but Mr. Swaine contends that a limitation on the plot ratio of buildings within a zone cannot amount to an exercise of the power to control as suitable the types of buildings within that zone. For example, he says given the same gross floor area a building may be shaped like a pencil and another a pancake. That may be so and it means they do not have a common characteristic of form which however in no way affects the common characteristic of limitation of gross floor area. In Hong Kong one often hears and reads of high or low density housing or area. The Attorney General used the word density on a few occasions in the course of his submissions and indeed the Board has used the term "low-density residential developments" in the Explanatory Statement which does not constitute a part of the draft plan. Strictly, that is a misuse of the word "density" for a tin of sardines of 200 grams will be as densely packed as a similar tin of 400 grams. They will have the same density but only half the contents of the bigger tin can be packed in the smaller and the word "density" is used in that sense. The 200 grams tins then have the common characteristic being able to contain only a similar weight or number of sardines. In my view the Attorney General is right on this issue. The purpose of the limitation on the plot ratio is to limit the number of people who can be accommodated in such types of buildings in the zone and is within the powers of the Board under the second scheme in Section 3 and the Board has so exercised those powers. Mr. Swaine's first argument was that private rights are not to be taken away lightly relying on the speech of Lord Warrington in Colonial Sugar Refining Co. Ltd. v. Melbourne Harbour Trust Commissioner(2) "In considering the construction and effect of this Act, the Board is guided by the well known 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." cited and commented on by Lord Reid in Westminster Bank v. Beverly B.C.(3) in terms : "It flows from the fact that Parliament seldom intends to do that and therefore before attributing such an intention to Parliament we should be sure that that was really intended. I would only query the last words of the quotation. When we are seeking the intention of Parliament that may appear from express words but it may also appear by irresistible inference from the statute read as a whole. But I would agree that, if there is reasonable doubt, the subject should be given the benefit of the doubt." He said that under the Crown Lease the respondent's right to develop the site was unrestricted and it had submitted plans for an intended development giving a gross floor area of 13.354 square metres whereas if the limitation of plot ratio of 0.6 were to prevail a development could only give a gross floor area of 2,427 square metres. Parliament is supreme and the legislature has passed the Town Planning Ordinance the intention of which is clear. It is to promote the health, safety, convenience and general welfare of the community in certain areas. The intention was carried into effect by the appointment of a Board and charging the Board to undertake the functions set out in Section 3. This being an enabling ordinance the law gives the power to the Board (see 7th Edition Craies on Statute Law) and Section 3 imposes a duty on the Board to carry out its functions. It has so carried out this function directed by the Governor. The Building Authority was bound to reject the respondent's plans because they were based on a plot ratio exceeding the limit imposed i.e. 0.6. The respondent may not find solace that the potential of its property has to be sacrified to such a large extent, without compensation, to the general welfare of the community but that is the law. It is with no disrespect to the learned judge that I have not gone into his judgment in detail for in my view he made the fundamental error in deciding to the effect that both the schemes under Section 3 were caught by Section 4. For the above reasons, I would allow the appeal with costs. (P.F.X. Leonard) (D. Cons) (A. Zimmern) Vice-President Justice of Appeal Justice of Appeal Representation: John Griffiths Q.C. and P. Graham (Legal Department) for Appellant. John Swaine Q.C. and A. Li (Deacons) for Respondent. (1) [1974] H.K.L.R. 275 (2) (1971) A.C. 508, 529 (1) April 1974 M.P. 409/73 (2) (1974) H.K.L.R. 275 (3) at 292-4 (4) Colonial Sugar Refining Co. Ltd. v. Melbourne Harbour Trust Commissioners 1927 Appeal Cases 343 at 359 (5) 1971 A.C. 508 at 529 (6) (1948) 2 K.B. 82 at 90 (1) [1974] H.K.L.R. 275 (2) [1927] A.C. 343 (3) [1971] A.C. 508 - PAGE - CACV000102/1981 THE ATTORNEY GENERAL v. C.C. TSE (ESTATES) LTD. Normal Kodak Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACV000102/1981 THE ATTORNEY GENERAL v. C.C. TSE (ESTATES) LTD. Title Microsoft Word Document MSWordDoc Word.Document.8 CACV000102/1981 THE ATTORNEY GENERAL v. C.C. TSE (ESTATES) LTD. Normal Kodak Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACV000102/1981 THE ATTORNEY GENERAL v. C.C. TSE (ESTATES) LTD. Title