Town Planning Board v Town Planning Appeal Board

Court of Appeal
Civil Appeal No. 25 of 2014
Lam V-P, Kwan JA and Jeremy Poon J
Town Planning
18 June 2015

Decision on compliance of conditions under planning permission not “decision” of Board under s. 16 – not reviewable under s. 17

Xs applied to the Town Planning Board (the “Board”) for planning permission for a proposed development scheme, which was eventually granted by the Town Planning Appeal Board (the “Appeal Board”) subject to conditions. Xs submitted plans and reports pursuant to the said conditions, but the Board opined that they deviated substantially from the approved scheme and that a fresh planning application would be required (the “Decision”). On Xs’ application for a review of the Decision under s. 17 of the Town Planning Ordinance (Cap. 131) (the “TPO”), the Board declined as it concluded that it had no power to do so. Xs appealed to the Appeal Board, which held that the Decision was reviewable by the Board itself under s. 17. On the Board’s successful application for judicial review of the Appeal Board’s decision, the Judge held that on a true construction, the Decision was not “a decision of the Board under s. 16” within the meaning of s. 17 such that the Board had no power to review it under s. 17. Xs appealed. The relevant provisions were the pre-2004 version of ss. 16 and 17 of the TPO introduced in 1991.

Held, dismissing the appeal, that:

  • Until the amendments to the TPO in 1991, the decision of the Board liable to be reviewed was limited to a refusal to grant planning permission under s. 16 and no more. Section 17(6) provided for an appeal of the Board’s decision made on that limited scope of review. It was impermissible to read into the pre-1991 s. 17(1) a power to review a decision taken in relation to an approval or satisfaction with details under a planning condition.
  • By 1991 and before 2004, within the statutory scheme of ss. 16 and 17, the Board might make three primary decisions under s. 16: (a) grant the application for planning permission without conditions; (b) refuse the application; and (c) grant the application with conditions. Where the primary decision was either a refusal or grant of permission with conditions, and if the applicant was aggrieved, he could apply for a review of that primary decision under s. 17(1). For the purpose of s. 17(1), “a decision made by the Board under s. 16” embraced such a primary decision only. It did not include any incidental decision that the Board might make in the discharge of its functions under s. 16, irrespective of whether the underlying power to do so was derived from any statutory provision or from the common law.

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