XN000022-1995-11-15 — Page 24

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The Appeal Board panel was created in 1991 by way of an amendment to the Town Planning Ordinance. When the amendment was debated in this Council in July 1991, the ad hoc group studying the bill expressed the view that the Chairman of the Appeal Board panel should be drawn from the judiciary. However, due to the shortage of judges, a senior lawyer was appointed by the Governor to be its Chairman when the Appeal Board panel was first constituted. He was however subsequently appointed as a judge in the Court of Appeal and has continued to serve as Chairman of the Appeal Board panel. The validity of his appointment and the validity of the decisions made by the Appeal Boards under his chairmanship is currently subject to legal challenge on the ground that a judge is a public officer. Legal advice obtained by the Administration is that 'public officer', viewed in the context of the Ordinance, does not include a judge. However, if the court challenge is successful, any decisions of the Appeal Boards made under his chairmanship subsequent to the validity of his appointment first being raised would be affected. The validity of his appointment was first raised in May 1995, so there are a number of such decisions. As it is the intention of the Administration that the Chairman of the Appeal Board panel would continue to be able to be drawn from the judiciary, the problem will continue.

To put it beyond doubt that a judge may be appointed to the Appeal Board panel, it is proposed that a new subsection should be added to the Ordinance to define that "public officer" does not include a judge. In addition, a new section is proposed

to validate decisions made by an Appeal Board of which a judge was a member unless the validity of the judge's appointment was challenged in court on or before 31 October 1995. The latter exception ensures that proceedings currently before the court will not be interfered with.

To clarify the nature of a continuing offence under section 23 of the Ordinance. the Bill provides for a daily fine to be charged for continuing offence on each day after the date in a notice served under section 23, during which the convicted offender continues to fail to comply with the requirements of such notice.

The Bill will improve the efficiency and operation of the Town Planning Board and Town Planning Appeal Board. I recommend it to Members.

Thank you, Mr President.

End/Wednesday, November 15, 1995