10 October 2011
On 3 October 2011, the Court of First Instance handed down a judgment in Hero Limited and others v. The Director of Planning (HCAL 3/2011) which concerned the interpretation of the term "shrine" used in the Outline Zoning Plan ("OZP"): is a shrine confined to a place of worship for a deity or saint or can it also include a receptacle for revered objects including cremated ashes of deceased people? The Court held that a "shrine" cannot be interpreted to include a place which, in substance, is a columbarium. This is relevant in the context of compliance with the permitted user provisions in the relevant OZP.
This is a judicial review application to challenge the decision of the Director of Planning ("Director") to issue enforcement notices to require the Applicants to discontinue the unauthorised development of a building erected on the land.
The building includes about 1,500 small cupboards/caskets which are used to contain cremated ashes of deceased people. The Applicants marketed the facilities as "The Shrine (???)" and described it as a shrine business.
However, the Director regarded the cupboards/caskets as columbarium niches and issued enforcement notices to require the discontinuation of the business on the basis that columbarium use is not permitted by the relevant OZP.
The relevant OZP is Ngau Tam Mei OZP. The land in question is zoned as "Village Type Development" ("V zone"). The Notes to the OZP for V zone describe a "shrine" as one of the uses that are always permitted on land, i.e. it does not require any application to the Town Planning Board ("TPB") for planning permission.
There is no reference to "columbarium" under the Notes for V zones. Instead, columbarium is listed under column 2 in the Notes for other zones such as Green Belt ("GB") and Government, Institution or Community ("GIC"). Accordingly, such a use does require planning permission from the TPB.
The issue before the Court is whether the development on the land came within the meaning of "shrine" which is always permitted under the Notes to the OZP.
The Applicants contended that the development falls within the meaning of "shrine" because a shrine should also include an ancestral shrine, shrine for beloved and revered ones. Further, according to local customs and traditions, the object of worship or devotion or veneration in a shrine is not confined to a saint or deity but may also include an ancestor. Accordingly, if the use comes within the meaning of "shrine", then it does not matter that incidentally it could also be regarded as "columbarium".
The Court rejected the Applicants' arguments on the following basis.
Meaning of "shrine" in the context of village type developments
The Notes to the OZP provide a clear distinction between "shrine" and "columbarium" uses: the former does not require planning permission but the latter does require such permission from the TPB. Accordingly, a use which should properly be classified as "columbarium" cannot at the same time be classified as "shrine", otherwise the references to "columbarium" in GB and GIC zones which require planning permission would be rendered meaningless.
Further, the Notes also describe the planning intention for a "V zone" for both existing recognised villages and areas of land considered suitable for village expansion. Land within the V zone is primarily intended for development of small houses by indigenous villagers and, accordingly, only selected commercial uses serving the needs of villagers and in support of village developments, are always permitted. With such planning intentions, the large-scale nature of "The Shrine" clearly falls outside the scope of a use to serve the needs of the villagers and in support of the village development.
Before the OZP, the land was subject to the Ngau Tam Mei Development Permission Area Plan ("DAP"). Under the DAP, "shrine" was specified as one of the uses always permitted under column 1 but "columbarium" was listed under column 2. This shows that, historically in the context of DAP, the word "shrine" was given a meaning which could not cover uses which should properly be described as "columbarium".
Further, the Court referred to internal documents of the TPB in 2002 (in review of the Master Schedule of Notes to the OZP) to ascertain the reason behind the removal of certain uses (including "columbarium" use) from column 2 for V zones. In reliance on these internal documents, the Court held that, historically, "shrine" has always been given a narrow meaning which does not encompass a use which can also be described as columbarium.
Reference to the "Definition of Terms Used in the Statutory Plans" (the "Definitions")
The Definitions are prepared and published by the Planning Department to provide assistance to the public to interpret and understand the meaning of different terms and uses in OZPs. In the Definitions, "shrine" is defined to mean a "place or structure, other than building, for worship" and the remarks provide that it is usually of small scale and list out that certain buildings for religious purpose such as a Tsz Tong and chapel are excluded. The Court therefore held that a columbarium on the scale of "The Shrine" is a large-scale building with great planning implications and thus cannot be a "shrine" within the meaning of the Notes to the OZP.
The decision once again re-confirmed the significance of ascertaining the planning intention behind a particular zone to determine whether a particular type of development is permitted. In considering these planning intentions, it is necessary to take into account the OZP as a whole.
The Court also re-confirmed the principles established by the Court of Final Appeal in an earlier case Wah Yick Enterprises Ltd  1 HKLRD 840 that although the Definitions are prepared and published by the Planning Department only and do not form part of the OZP, they are clearly relevant and useful in showing the construction of various terms used in the OZP.
The Court in this case referred to certain internal documents of the TPB to ascertain the policy history behind the removal of "columbarium" use from the V zones. The Applicants objected to a reference being made to internal documents because, unlike the Definitions which can be found in the TPB's webpage, members of the public could not refer to the internal documents in ascertaining the meaning of the expressions used in OZPs. The Court held that because the parties did not refer any cases on the admissibility of internal documents in aid of construction of a policy document and the issue was not argued fully before the Court, the Court confined its finding on those internal documents and only used them to refute the Appellants' arguments that the past usage of the term "shrine" was given a wider meaning. It remains to be seen in future cases as to whether and to what extent the Court will refer to internal documents of the TPB and/or other Government departments for the purpose of ascertaining the planning intention and meaning of the terms used in OZPs.
For inquiries related to this Legal Update, please contact Alan Yip or your usual contacts with our firm.
Learn more about our Hong Kong office, Real Estate and Litigation & Dispute Resolution practices.