Hysan Development Co Ltd and Others v. Town Planning Board

FAMV Nos 28 - 31 of 2015
& FAMV No 17 of 2015

FAMV Nos 28 & 30 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS 28 & 30 OF 2015 (CIVIL)

(ON APPLICATIONS FOR LEAVE TO APPEAL
FROM CACV NO 232 OF 2012)

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FAMV Nos 29 & 31 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS 29 & 31 OF 2015 (CIVIL)

(ON APPLICATIONS FOR LEAVE TO APPEAL
FROM CACV NO 233 OF 2012)

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FAMV No 17 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 17 OF 2015 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NOS 127 AND 129 OF 2012)

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ:

1.FAMV 17/2015 is concerned with the Kai Tak Mansion (KTM) in Kowloon Bay and the judicial review by certain interested persons[1] against 3 restrictions imposed on KTM by OZP 26.  These judicial review proceedings[2] were determined by Reyes J by judgment dated 11 May 2012.  That was followed by appeals and cross appeals by the parties.[3]  The Court of Appeal [4] dismissed Town Planning Board (“TPB”)’s appeal but made no order in the applicant’s appeal because it was not necessary to do so.  By judgment dated 31 March 2015, the Court of Appeal refused leave to TPB to appeal.  By FAMV 17/2015, TPB applied to us for leave to appeal from the Court of Appeal.

2.FAMV 28 & 29 and 30 & 31 are concerned with the draft OZPs for Causeway Bay and Wanchai.  Hysan is the lead company in the judicial review proceedings concerning these plans.[5]  The applications were heard by Reyes J whose judgment dated 14 September 2012 was the subject of appeals and cross appeal.[6]  The parties were not satisfied with the judgment of the Court of Appeal[7] dated 13 November 2014 and applied for leave to appeal to this court.  By its decision dated 29 June 2015, the Court of Appeal granted leave to appeal to Hysan in respect of one question only in each of CACV 232 & 233/2012, but dismissed TPB’s applications for leave in their entirety.  FAMV 28 & 29/2015 are Hysan’s applications for leave to appeal from the judgment of the Court of Appeal in CACV 232 & 233/2012.  FAMV 30 & 31/2015 are the TPB’s applications for leave to appeal from the same judgment.

3.We heard these two sets of applications together because some common issues were involved.  At the conclusion of the hearing we dismissed TPB’s application in FAMV 17/2015.  With two exceptions we dismissed the applications of Hysan and the TPB in their respective applications.

4.The questions in respect of which leave were sought are long and they are set out below:[8]

TPB’s application in FAMV 17/2015

Question 1: In considering a height restriction to preserve a visual corridor to a landmark geographical/cultural feature, whether the Court is entitled to intervene in respect of the Board’s choice of starting point of the visual corridor, including its decision not to commission a public consultation exercise for the purpose of selecting the same, on anything other than the Wednesbury basis.

Question 2: Whether it is a general legal principle derived from the Town Planning Ordinance (Cap 131) or otherwise that no town planning control can be imposed unless the full development potential of sites subject to such control is preserved.

Question 3: Whether it is lawful at the representation stage for the Board to proceed on the premise that a disputed restriction would not prevent development of a site to its maximum development potential absent detailed calculations confirming this, provided that the Board’s premise is (i) open to it as a body possessing the relevant expertise to assess such matters (ii) objectively defensible and (iii) can be shown to be such in judicial review proceedings.

Question 4: In considering the location of a non-building area (“NBA”) on a statutory plan, whether the Board is required in law to consider and if possible decide upon alternative layout options by which the effect of the NBA is “shared” by adjoining sites rather than concentrated within a single existing site, and whether the Board is required to commission a visual impact assessment before it can lawfully exercise its planning judgment to determine the location of the NBA on a statutory plan.

Question 5: In considering the imposition of a building gap or similar feature for visibility/aesthetic  or  ventilation reasons, whether the Board is required in law to carry out its own visual impact/permeability study before it can disagree with the representations of a representer including the conclusions of a visual impact/permeability study commissioned by that representer.

Question 6: Whether it is relevant for the Board in considering the imposition of a general planning restriction such as a restriction on the height of buildings to have regard to the possibility of a minor relaxation of that restriction at a later date when particular proposals for a building with exact details are brought forward.

Question 7: In relation to requirements of procedural fairness in the context of the Board’s proceedings:-

(a) To what extent (if at all) does the audi alteram partem principle apply in the context of representation hearings before an administrative body with the characteristics of the Board.

(b) Whether in the absence of clear contrary evidence the Court should presume that individual members of a specialist public body such as the Board took adequate steps to acquaint themselves with any materials (including submissions) essential to a decision that they partook in.

(c) Whether on a proper construction the true legislative intention of section 6B of the Town Planning Ordinance (Cap 131) is to permit the making of a collective decision by a quorate group of the Board’s members who have seen and heard all matters relevant to the decision notwithstanding that certain other members not so apprised also participated in the making of that decision.

(d) Whether the requirements of natural justice mandate that every individual member of an administrative body such as the Board who are present at the making of a collective decision by fully apprised of all the matters relevant to that decision.

(e) Where an administrative decision-making procedure is challenged as unfair, whether considerations as to the practicality and other advantages of that procedure (including advantages to other affected parties) should be taken into account as part of the Court’s overall consideration as to fairness.

TPB’s applications in FAMV 30 & 31/2015

Question 1:   Similar in effect toQuestion 1 above.

Question 2:   Similar in effect toQuestion 3 above.

Question 3:   Whether the Board is legally required to have regard to the Sustainable Building Design Guidelines of the Building Authority under the Buildings Ordinance in considering the alleged impact of a planning restriction on development intensity for a specific site in the absence of any specific development design in respect of that site.

Question 4:   Whether (as the Board contends) the standard to apply in determining whether there has been a breach of the Tameside duty in the context of town planning is no more and no less than the Wednesbury irrationality standard, i.e. the Court may only intervene where it finds that it was Wednesbury irrational for the Board to have reached its conclusion without further inquiry having regard to the nature of the Board and its membership and the fact that under section 3(2) of the Town Planning Ordinance (“TPO”) the decision to carry out further inquires is that of the Board.

Question 5:   Similar in effect to Question 6 above.

Question 6:   Similar in effect to Question 7 above. 

Question 7:   Whether the Board in fixing the exact scale of a Non-building Area for a specific area or site:

(1) Is required in law to determine the dimensions of a Non-building Area for a site by reference to some general or generic set of planning standards or guidelines for sites in Hong Kong.

(2) Is required in law to conduct a comparative exercise over a range of possible Non-building Areas for the specific area or site or whether it is sufficient that the particular dimensions chosen have a rational basis.

(3) Is entitled to determine the dimensions of a Non-building Area for a site by reference to the site-specific dimensions of an existing Non-building Area voluntarily adopted by the developer of an existing development at the site.

Hysan’s applicationsin FAMV 28& 29/2015

Question 1:   Whether the Respondent has the power in preparing draft plans under sections 3(1)(a) and 4 of the Town Planning Ordinance (Cap. 131) to impose restrictions which pertain only to a particular part of a site, such as the imposition of a podium height restriction, a setback or non-building area on a part of one particular site.

Question 2:Whether in the determination of the lawfulness and validity of any restriction imposed by the Respondent by way of planning, Article 6 and/or Article 105 of the Basic Law are engaged, and if so, whether such restriction must satisfy the requirement of proportionality, and whether the Hong Kong Court should adopt the European jurisprudence on Article 1 of the First Protocol of the European Convention on Human Rights or some other test of proportionality, and if so, what.

Question 3:Whether the imposition of restrictions by way of setback and non-building area in the Causeway Bay draft Outline Zoning Plan are void for uncertainty.

Question 4:Whether the imposition of a restriction of setback or a restriction of non-building area in the Causeway Bay draft Outline Zoning Plan on the Applicants’ properties for footpath widening was irrational, disproportionate and/or an abuse of power given the following:

(1)   Any requirement for road widening should be pursued by way of the exercise of powers under the Road (Works, Use and Compensation) Ordinance (Cap. 370) to resume land or create easements including for the purposes of pedestrian footpath widening, the exercise of which would require compensation to be paid to the landowner;

(2)   A building setback or non-building area is not effective or appropriate for pedestrian footpath widening, since the land affected remains the property of the landowner, who remains free to obstruct that land from use by pedestrians; and/or

(3)   Pedestrian footpath widening could only justify a restriction operating at ground floor level, rather than one affecting the entire height of a building.

Question 5:Whether it was lawful to impose a burden on a person objecting to the imposition of a building height restriction on his property to satisfy the Respondent that an alternative building height profile should be adopted in preference to that put forward by the Planning Department.

Our Determination

5.It is unnecessary to deal with the questions set out above individually.  However, Question 7 in TPB’s application in FAMV 30/2015 was not amongst the questions put before the Court of Appeal.  In relation to this question we granted leave on the “or otherwise” ground.  This question relates to para 1 of the order of Reyes J dated 14 September 2012 in HCAL 38/2011 whereby he quashed the 5-metre non building area imposed on the Hysan Place site by the Draft Causeway Bay OZP No S/H6/15, on the ground that it was arbitrary.[9] This was the subject of a cross appeal by the TPB.[10]  However, the cross-appeal was not determined and the order was left undisturbed by the Court of Appeal, because they thought it had become academic, although they could see the force of TPB’s counsel’s argument.  However, given that para 1 of Reyes J’s order had been left undisturbed, the matter is not academic.  Nor would counsel for Hysan accept that it was academic.  That being the case, we believe we should grant leave on the “or otherwise” basis.   

6.In relation to the Question 2 in Hysan’s application, the Court of Appeal granted leave to appeal, saying that it “is a GPI point and it is not an easy point.”[11] Because, the Court of Appeal had refused leave to appeal on the other grounds, Hysan applied to us for leave to appeal in respect of the other questions as well as Question 2.[12]  Given the views expressed by the Court of Appeal, we granted leave to appeal on this ground without considering whether the appeal committee could revoke leave granted by the Court of Appeal in respect of this question.

7.In respect of the other questions, with respect, we refused leave for the reasons given by the Court of Appeal when it refused leave.[13]

8.We would however comment briefly on two broad matters.  The first relates to Questions 2 and 3 in FAMV 17/2015 and Questions 1 and 2 in FAMV 30 & 31/2015.  The Court of Appeal called these phantom questions because they did not relate to any issue in the proceedings.  The parties proceeded below on the basis that it was the policy of the TPB that no town planning control would be imposed unless the full development potential of sites subject to such control is preserved. Thus, the question whether in principle they were required so to proceed was never in issue.

9.The other general question[14] relates to the procedure adopted by the TPB in respect of s 6B and 6F of the Town Planning Ordinance Cap 131.  In Oriental Generation’s proceedings, the Court of Appeal decided that whilst it was not necessary for every board member to be present during the representations, any member who took part in the deliberation and the decision should be adequately informed of the contents of any representation before such deliberation and decision.  On the evidence they were not satisfied that all the members had been adequately informed.  And in the Hysan proceedings, the Court of Appeal concluded on the evidence that they were not satisfied that the members of the TPB who participated in the decision had had an opportunity to properly consider the materials presented by Hysan in its representation.  These are questions of fact and no important questions of principle are involved.  

10.Lastly, we note that in relation to Question 5 in FAMV 30 & 31/2015, the Court of Appeal made it perfectly clear when refusing leave that it was not their decision that the TPB could never rely on a minor relaxation but that on the facts, “minor relaxation could not be the answer”.[15]

Mr Benjamin Yu SC and Mr Alexander Stock, instructed by Mayer Brown JSM, for the applicants in FAMV 28 & 29/2015

Mr Michael Barnes QC, Mr Jat Sew-tong SC and Mr Abraham Chan, instructed by the Department of Justice, for the applicant in FAMV 30 & 31/2015

Mr Michael Barnes QC, Mr Ambrose Ho SC and Mr Abraham Chan, instructed by the Department of Justice, for the applicant in FAMV 17/2015

Mr Nigel Pleming QC, Ms Audrey Eu SC and Mr Jonathan Lee, instructed by Philip T F Wong & Co, for the respondent in FAMV 17/2015