1. In 1992, the Appellants, land developers, applied to the Town Planning Board (the “TPB”) for planning permission for a proposed development of land in the New Territories. The permission was eventually granted by the Town Planning Appeal Board (the “TPAB”) subject to certain conditions, including the submission of a master layout plan to be approved by the TPB. Pursuant to the said conditions, the Appellants submitted plans and reports but in 2010, the TPB concluded that the master layout plan submitted deviated substantially from the approved scheme and that the planning conditions had not been satisfactorily complied with (the “2010 Decision”). Approval was refused. 2. The Appellants applied to the TPB to review the 2010 Decision under section 17(1) of the Town Planning Ordinance, Cap 131 (the “Ordinance”) but the TPB declined to review on the ground that, on the wording of section 17(1), it had no power to do so. The Appellants appealed to the TPAB, which reversed the TPB’s ruling, holding instead that the TPB did have jurisdiction under section 17(1) to review its decision regarding the satisfaction of the planning conditions (the “TPAB Decision”). 3. The TPB applied for a judicial review of the TPAB Decision. Both the Court of First Instance and the Court of Appeal held that the 2010 Decision was not reviewable by the TPB as a matter of jurisdiction. The main issue on this appeal was the ambit of the jurisdiction of the TPB to review its own decisions under section 17(1) of the Ordinance. Specifically, what is meant by the words in that provision “a decision of the Board under section 16 ….” (the “Relevant Words”)? The issue before the Court was one of statutory construction. 4. The Appellants contend that the Relevant Words should be read to include any decisions which merely have a connection with section 16. However, the TPB contend that the Relevant Words cover only a decision refusing permission and a decision granting permission but with conditions. 5. As a starting point, both the majority and the minority agreed that the relevant provision to be considered was section 17(1) of the Ordinance as it stood prior to the amendments made to the Ordinance in 2004. 6. Construing the Relevant Words in the light of their context and purpose, the majority held that section 17(1) of the Ordinance should be read as confining the review mechanism only to decisions of the TPB refusing permission under section 16(3) and granting permission but with conditions imposed under section 16(5). The reasons are as follows: 7. First, looking at the statutory purpose, sections 16 and 17 formed a scheme to deal with applications for permission in respect of plans. Section 17 was intended to be parasitic on section 16 in that it deals with the right of review of a decision made under section 16. Since section 16 dealt with applications for permission, a decision made “under section 16” should not include decisions of whatever nature which merely have a connection with that section. 8. Prior to the wording of section 17(1) to be construed in the present case, which begins “Where an applicant is aggrieved by a decision of the Board under section 16 ….”, the previous version of section 17(1) began with “Where the Board refused to grant permission under section 16”. This wording made it clear that the section 17 review was a narrow one. The change in wording, which was introduced in 1991 (the “1991 Amendment”), was not intended to considerably widen the ambit of a section 17(1) review but rather only to cover one specific type of decision under section 16, being a grant of permission with conditions. 9. Second, in the context of the provisions of sections 16 and 17, section 16 is headed “Applications for permission in respect of plans” and that section deals with how such applications are processed and determined by the TPB. Therefore, as a matter of plain language, the relevant decision “under section 16” must be the decision of the TPB on applications for permission. 10. Further, section 16(6) directly refers to the right of review under section 17 only in relation to a refusal to grant permission and no other decision and this is another strong indication of the restrictive ambit of a section 17 review. Likewise, under section 17(6), which sets out the powers of TPB on review, reference is made specifically to the power to refuse or grant permission, or grant permission subject to conditions. In the majority’s view, this also reinforces the point that the relevant decision under section 16 relates to applications for permission. 11. Although section 17(6) was amended in 2004 such that the TPB can now “confirm or reverse the decision in question, or substitute for the decision in question any decision it could have made under section 16”, this change in wording does not have the effect of widening the scope of section 17 to include every decision connected with section 16. This would otherwise mean a radical change to a previously restrictive view of the effect of sections 16 and 17, which is not supported by the Explanatory Memorandum to the 2004 amendments or the relevant extracts from Hansard. Further, if the 2004 amendments had widened the scope of section 17 review to every decision connected with section 16, it would lead to a number of anomalous results. Dissenting judgment of Mr Justice Tang PJ: 12. Dissenting on the construction of section 17(1), the minority held that the Appellants were entitled to a review of the 2010 Decision. 13. First, the minority found that the words “a decision of the Board under section 16” literally would include decisions as to whether conditions imposed under section 16(5) have been satisfied, which are ancillary or incidental to its power to impose conditions. 14. Second, having regard to the context and purpose of section 17(1), the minority questioned the usefulness of sections 16(6) and 17(6) as an aid to the construction of the wording in section 17(1). When the 1991 Amendment was introduced, sections 16(6) and 17(6) were not amended to fall in line with the new language of section 17(1). Therefore, sections 16(6) and 17(6) should be read subject to the new language of section 17(1) and not to restrict the meaning of that provision. 15. Further, the establishment of the TPAB and its function as an independent arbiter on appeal in respect of planning decisions under section 16 also formed part of the context. Since on a section 16 application, the TPB does not have the final say on the merits of the application or the conditions imposed, the TPB should not have the final say on the merits in respect of the satisfaction of conditions either. 16. Finally, in the minority’s view, the 2004 amendments to section 17(6) were irrelevant to the construction of section 17(1). Although a right of review of every decision connected with section 16 is capable of abuse, the fear of abuse is unreal, nor should it deny a right to review when there is no abuse. In the event of actual and persistent abuse, the solution would be to tighten up the legislation rather than giving a restrictive interpretation to section 17(1). CONCLUSION: 17. Accordingly, the appeal was dismissed by a 4:1 majority.