Chan Ka Lam v. The Country and Marine Parks Authority
Read the full judgment text of HCAL 54/2014 on BabelCite. This High Court CFI judgment was delivered on 27 April 2017.
1. In around December 2013, the Country and Marine Parks Authority (“the Authority”) decided not to recommend designating the enclaves of Hoi Ha, Pak Lap, To Kwa Peng, Pak Tam Au, So Lo Pun and Tin Fu Tsai as country parks by incorporating them respectively into the surrounding existing country parks. [1] For convenience, these six enclaves will be referred to collectively as “the 6 Enclaves” in this judgment.
Cited by 8 cases · Cites 5 cases
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HCAL 54/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 54 OF 2014 _______________
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_______________ J U D G M E N T _______________ A. INTRODUCTION 1.In around December 2013, the Country and Marine Parks Authority (“the Authority”) decided not to recommend designating the enclaves of Hoi Ha, Pak Lap, To Kwa Peng, Pak Tam Au, So Lo Pun and Tin Fu Tsai as country parks by incorporating them respectively into the surrounding existing country parks.[1] For convenience, these six enclaves will be referred to collectively as “the 6 Enclaves” in this judgment. 2.In this judicial review, the applicant effectively challenges the Authority’s above non-recommendation decision by challenging:
3.Briefly, the applicant in this judicial review says:
4.The applicant therefore asks for the reliefs of quashing Decisions 1 and 2, and an order of mandamus requiring the Authority to put before the Board for its consideration and advice an assessment of the suitability of incorporating each of the 6 Enclave, and to consider the Board’s advice in formulating his recommendations to the Chief Executive (“CE”) for designation of areas as country parks. 5.Before I deal with the grounds of judicial review in detail, it is necessary to set out briefly the background leading to these decisions to put things in proper context. B. BACKGROUND B1. The Authority and the Board under the CPO 6.Relevant for the present purposes, the CPO is enacted to provide for the designation, control and management of country parks.[2] 7.Under the CPO:
B2. Enclaves and the designation of country parks[3] 8.Many of Hong Kong’s country parks were designated in the 1970s. Over the years, the number of country parks has been increased to 24 and they now cover some 40% of Hong Kong’s land areas. 9.Historically, the suitability of a site for designation as a country park follows established principles and criteria, which include among other things, landscape quality, recreational potential, conservation value, size, land status, and management effectiveness of the site. Details of the then principles and criteria were set out in the paper endorsed by the Planning and Management Committee, Country Parks Board in 1989. Under these formerly established criteria, considerations need to be given to the land status of the site proposed to be designated as a country park. 10.It was the then prevailing policy that Government land is to be preferred when a country park is designated, as there may be traditional rights associated with private lots held by indigenous villagers within village environs and hence may create country park management problems. Landowners may even object to designating these areas as country parks. As a result, private land together with some surrounding government land is usually excluded from country park boundaries and it forms the country park enclave. There are a total of 77 country park enclaves with a total area of 2,076 hectares. Notwithstanding this, there are some pockets of private land within designated country park areas because no objection had been filed by their owners during the designation process. About 460 ha of private land have been included in various country parks. 11.In June 2010, unauthorised excavation works were detected on both private land and government land within the country park enclave of Sai Wan (“the Sai Wan Incident”). This triggered significant public concerns on the protection of country park enclaves in Hong Kong. At that time, 54 of the 77 country park enclaves had not been covered by Outline Zoning Plans (“OZPs”) under the Town Planning Ordinance (Cap 131) (“TPO”), meaning that developments on private land within the enclaves were not subject to any restrictions apart from any conditions in the land lease, which might in turn affect the natural environment and the country park contiguous to the enclave. 12.As an urgent measure to protect Sai Wan from further development activities, on 26 July 2010, Sai Wan was designated as a Development Permission Area (“DPA”) under the TPO, which prohibited new development activities there unless with the approval of the Town Planning Board (“TPB”) or permitted as specified in the DPA plan. 13.The unauthorised excavation works at Sai Wan were also discussed at the joint meeting of the Legislative Council (“LegCo”) Panel on Development and Panel on Environmental Affairs on 28 July 2010. The Government made clear at that meeting that, notwithstanding the designation of Sai Wan as a DPA, it would “critically assess” as to the most appropriate measure to protect the natural environment of Sai Wan. 14.In light of the Sai Wan Incident, the then CE in the 2010 Policy Address pledged to either include the enclaves into country parks, or determine their proper uses through statutory planning to meet conservation and social development needs as soon as possible (“the 2010 Policy”).[4] 15.Pursuant to the 2010 Policy and in light of the Sai Wan Incident and the public’s increased awareness and demands for conservation of the nature landscape quality of the country parks and their surrounding areas, as well as expectation of the Government to safeguard against any development that would undermine public enjoyment of natural environment, the Authority (together with the Agriculture, Fisheries and Conservation Department (“AFCD”)) conducted a comprehensive review of the then existing principles and criteria for designating new country parks or extending existing country parks. 16.In May 2011, they submitted a working paper (“the 2011 Working Paper”) to the Board seeking their views and advices on the proposed revised and updated principles and criteria (as set out in the paper) for designating new country parks or extending existing country parks. In the 2011 Working Paper, the Authority set out the history and background of (a) the then existing guidelines and criteria for designating country parks; and (b) the existence of enclaves because of the presence of private lands. It also referred to the Sai Wan Incident and the 2010 Policy as the underlying context and reasons for the need to update and revise those criteria and principles. 17.The Board at its meeting on 24 May 2011 endorsed these proposed revised principles and criteria (“the 2011 Criteria”). B3. Consideration and designation of the 6 Enclaves 18.Since then, the Authority has commenced the process of assessing the 54 enclaves with reference to the 2011 Criteria in batches. 19.The first batch of three enclaves, ie, Sai Wan, Kam Shan and Yuen Tun, were assessed and considered to be suitable for inclusion in country parks. 20.The second batch consisted of nine enclaves: Fan Kei Tok, Sai Lau Kong and the site near Nam Shan and the 6 Enclaves. After assessments, the Authority considered Fan Kei Tok, Sai Lau Kong and the site near Nam Shan to be suitable for recommendation to be designated as country parks by incorporating them into the surrounding country parks for protection under the CPO. The Authority thereafter gave detailed deliberation of these proposals at the Country Parks Committee (“CPC”)[5] and the Board meetings. 21.As to the 6 Enclaves, the Authority’s assessments (carried out with the AFCD) were that they were unsuitable for incorporation into the surrounding country parks. He therefore decided not to recommend them to be so designated as country parks. 22.As mentioned above, the Authority had sought the view and advice of the Board on the Authority’s proposal and recommendation to designate Fan Kei Tok, Sai Lau Kong and the site near Nam Shan as country parks by incorporating them into the surrounding existing country parks.[6] 23.On the other hand, for the 6 Enclaves not recommended for incorporation into country parks, the Authority did not seek to consult the views of the Board. It is the Authority’s position that he is under no legal obligation under the CPO to consult the Board for a decision not to recommend an area to be designated as country park. However, it is also the Authority’s case that he did provide on a voluntary basis a gist of considerations on each of the 6 Enclaves to the CPC members at a meeting on 12 February 2014 and agreed at the Board meeting on 24 February 2014 to provide the same to the Board for information.[7] 24.In this respect, the Authority has emphasized that although he has decided not to recommend the 6 Enclaves to be designated as country parks by incorporation, these enclaves have since been subject to the respective draft OZPs, which would offer effective protection and conservation of these enclaves under the TPO.[8] C. THIS JUDICIAL REVIEW 25.The applicant’s respective grounds for challenging Decision 1 and 2 are different. I would look at them separately. C1. Decision 1 26.Section 5(1) of the CPO relevantly provides as follows:
27.The applicant contends that the Authority is obliged under section 5(1)(b) of the CPO, when properly construed, to refer his assessments and proposed non-recommendation decision of the 6 Enclaves to the Board for advice. This is so as these are in effect policy or programmes prepared by the Authority in respect of the existing country parks respectively surrounding the 6 Enclaves so as to protect those existing country parks. The applicant therefore says in deciding not to so refer (ie, Decision 1), the Authority misdirected himself on the law or was in breach of this obligation. 28.The Authority disagrees. Mr Wong for the Authority submits that:
29.The Authority was therefore free not to refer the assessments and the proposed non-recommendation decision to the Board for advice. 30.The contentions therefore raise the following two principal questions:
31.In relation to the first question, on a proper and purposive construction in context,[9] I accept that section 5(1)(b) imposes an obligation on the Authority to refer his policy and programmes in respect of country parks (including proposed country parks) to the Board for consideration and advice. My reasons are these. 32.Under section 5(1)(a), the Board is required to advise the Authority on any matter that is “referred to it by the Authority”. In other words, it is for the Authority on a voluntary basis to decide what matters he wishes to refer to the Board for consultation, and the Board must so consider those matters once they are referred to it by the Authority. 33.If section 5(1)(b) is to be construed, as suggested by Mr Wong, to only provide that the Board must consider any policy and programmes that the Authority wishes, also on a voluntary basis, to refer to the Board for advice, this subsection would serve no useful purposes and is superfluous, since the Authority could already do so under section 5(1)(a) if and when he so wishes. Under section 5(1)(a), the Board also has a duty (and thus must) consider and advice any matters referred to it by the Authority. 34.Therefore, when considered together with section 5(1)(a), and noting the absence of the use of the words “referred to it by the Authority” in section 5(1)(b) (which are expressly used in section 5(1)(a)), I am of the view that it is the objective implied intention of section 5(1)(b) that the Authority has a reciprocal obligation to refer his policy and programmes in respect of country parks and proposed country parks to the Board for consideration and advice. 35.This construction is further supported and reinforced when considered in the following relevant context:
36.I therefore conclude that as a matter of proper construction, the Authority has an obligation implied under section 5(1)(b) to refer to the Board for consideration and advice his proposed policy and programmes in respect of country parks and proposed country parks. 37.However, in relation to the second question, I agree with Mr Wong that the Authority’s non-recommendation assessments and decision do not fall within the meaning of “policy and programmes” in respect of “country parks” or “proposed country parks” under section 5(1)(b). I will explain why. 38.First, I accept that the usual meaning of “policy” and “programme” refers to or denotes respectively a course or set of general principles to guide the conducts and plan or scheme that is of general and broad nature. Such meaning is also consistent respectively with the usual meaning of the Chinese words “政策” and “計劃”. These words therefore are not intended to include or cover individual one-off decision made in respect of country parks. 39.Understood as such, I would regard the 2011 Criteria, which represent a set of general principles and criteria to guide the assessment for designating an area as country park, could be regarded as a “policy” in respect of country parks or proposed country parks. In this respect, the Authority did refer those proposed revised principles and criteria to the Board for advice, and the Board has endorsed them. 40.However, the individual specific assessment conducted under the 2011 Criteria and decision made not to designate an area as country park are not and cannot be regarded as a “policy” or “programme”. 41.Second, I agree that the assessment and decision not to designate an enclave as a country park cannot be a matter “in respect of country parks” or “in respect of proposed country parks”. The assessment and decision do not involve a country park or a proposed country park as the enclave involved is by definition not a country park or a proposed park.[10] 42.In this respect, Mr Kat argues that the assessment and decision not to designate an enclave to be part of the adjoining existing country park are indeed matters relating to that existing country park. This is so since whether or not to incorporate the enclave into that existing country park affects and impacts on the “integrity, the aesthetic and landscape quality” of that existing country park, and thus such a decision is a matter which concerns the protection of the existing country park, and therefore “in respect of country parks”. This, Mr Kat further submits, is in fact accepted by the Authority as set out in paragraph 2.2 of 2011 Working Paper (in proposing the 2011 Criteria), which reads as follows:
43.I am unable to agree with Mr Kat. 44.Whether a matter is one which is in respect of country parks should be determined by looking at the underlying principal or primary purpose and objective of that matter. It is clear from the background context (as set out above under section B2) that the principal purpose and objective for the Authority to assess and decide whether or not to incorporate any of the 54 enclaves (including the 6 Enclaves) into any surrounding existing country parks is to protect and preserve the subject enclaves themselves. That is a matter in respect of whether to best protect the natural landscape of the enclave by designating it as a country park by incorporating it into the adjacent country park. The fact that the assessment and decision made thereof (one way or the other) may have consequential corresponding effect on the surrounding existing country park (as observed in paragraph 2.2 of the 2011 Working Paper) does not then make those matters in respect of that country park. 45.In further support of his contentions, Mr Kat has also referred this court to the statutory purpose (“Statutory Purpose”) of the CPO[11] to provide for country parks for public enjoyment as places of recreation and tourism, in which the vegetation and wildlife are protected, and buildings and sites of historical and cultural significance are preserved and maintained. Leading counsel then submits that, to further the Statutory Purpose, the meaning of “policy or programmes” in respect of “country parks” or “proposed country parks” should be construed to include the Authority’s assessments (carried out under the guiding 2011 Criteria endorsed by the Board) and decisions on whether or not the enclaves are suitable or not for inclusion. 46.With respect, I am unable to see how the reference to the Statutory Purpose could assist Mr Kat. The construction the court has arrived at above is equally consistent with the furtherance of the Statutory Purpose. The Board serves its consultative and advisory functions and duties under section 5(1)(b) by advising at a general level the Authority’s proposed policy and programmes so as to guide the Authority on how to assess and designate country parks under section 4(1), and further discharge his duties under section 4(2) once a country park has been designated. 47.For these reasons, the Authority’s assessments and non-recommendation decision relating to the 6 Enclaves are not policy or programmes in respect of country parks, or proposed country parks. He was therefore not obliged to refer these conclusions to the Board for consideration and advice. The Authority had not misdirected himself on the law or was not in breach of any legal obligation in not referring them to the Board for advice. 48.The applicant fails in her challenge against Decision 1. C2. Decision 2 49.The applicant’s challenge against Decision 2 is premised on his complaints on the way the respective assessments of the 6 Enclaves were done. The applicant argues that the assessments were unlawful as they were carried out not in accordance with the statutory duties or purposes of the CPO, they did not comply with the policy as reflected in the 2010 Policy and the 2011 Criteria, and they were Wednesbury unreasonable in that they failed to take into account relevant matters, took into account irrelevant matters (including mistakes of fact) and were in any event irrational. These grounds therefore would require the court to look at and examine the contents and the reasoning set out in these assessments. 50.However, before I can consider these grounds of challenge in detail, I have to first deal with the preliminary question as to what were the actual assessments that Authority had relied on in deciding not to recommend the designation of the 6 Enclaves as country parks. This question arises in the following way. C2.1 A preliminary question – which were the actual assessments relied on by the Authority 51.The Authority prepared the Summary Report of the Country Parks Committee (Working Paper: WP/CMPB/2/2014) (“the Summary Report”) to inform members of the Board issues discussed at the CPC meeting held on 12 February 2014. At paragraph 3.2 of this paper, it is stated that members of the CPC were briefed about the 6 Enclaves which “had been assessed to be not suitable for incorporating into country parks. Members were also informed that these 6 enclaves had already been protected by statutory plans under the Town Planning Ordinance.” 52.By a letter dated 10 April 2014, the applicant on behalf of the Save Our Country Parks wrote to the Authority and the Chairman of the Board seeking, among others, copies of the assessment of the 6 Enclaves referred to in paragraph 3.2 of the Summary Report and copies of the reasons for the decision not to incorporate the 6 Enclaves into surrounding country parks as revealed at the CPC meeting. 53.In relation to the above requests for copies of the assessments and the reasons as revealed at the CPC meeting, the Board by a letter dated 30 April 2014 replied as follows:
54.The six assessments attached to this letter have since been exhibited as “CKL-5” to the applicant’s 1st affirmation. I would collectively refer to these six assessments as the “CKL-5 Assessments”. 55.Each of the CKL-5 Assessments is about two pages long (excluding the copies of the figures attached to it) with five to six paragraphs setting out the assessments and the reasons why the Director/Authority concluded that subject enclave was not compatible with the surrounding country park area and was not recommended for incorporation. 56.In challenging Decision 2 for unlawfulness and unreasonableness in the Form 86 when the applicant applied for leave, the grounds of challenge were focused only on the reasons and assessments set out in the CKL-5 Assessments, since as far as the applicant was aware of, the assessments relied on by the Authority were the CKL-5 Assessments. 57.However, when the Authority filed his evidence in opposition in these proceedings, at paragraph 47 of Sham Chun Hung’s affidavit dated 26 January 2015, Mr Sham explained the assessments of the 6 Enclaves carried out by the Director as follows:
58.Hence, Mr Sham has exhibited “SCH-4” as the actual assessments carried out for the 6 Enclaves. For convenience, I would refer to these assessments as “SCH-4 Assessments”. Each of the SCH-4 Assessments is of seven to eight pages long and with some 20 or more paragraphs together with tables. Each of them is therefore significantly longer than each of the CKL-5 Assessments and contains much fuller, more detailed, more comprehensive assessments and reasons than those as stated in the CKL-5 Assessments leading to the conclusion that the subject enclave was not suitable for incorporation into country parks. 59.The effect of Mr Sham’s above evidence is thus that the CKL-5 Assessments are only the summaries of the actual assessments of the 6 Enclaves on the suitability of incorporating them as country parks. The actual assessments carried out by the Director and relied on by the Authority were in fact the full assessments as shown in the SCH-4 Assessments. 60.In light of how the evidence regarding the assessments has evolved as summarised above, at the applicant’s application, I gave leave to the applicant to cross-examine Mr Sham at the hearing on the limited scope as to whether the SCH-4 Assessments (but not the CKL-5 Assessments) reflect and represent the actual assessments relied on by the Authority at the material time to decide not to recommend the incorporation of the 6 Enclaves into the surrounding country parks. 61.Mr Sham’s relevant evidence given under cross-examination and re-examination is in summary this:
62.With respect, for the following reasons, I am unable to accept Mr Sham’s evidence that the SCH-4 Assessments represent or reflect the contents of the respective assessments actually relied on by the Authority in making the non-recommendation decision. 63.First, it is inherently incredible and illogical that the CKL-5 Assessments are summaries based on the SCH-4 Assessments. The objective contemporaneous documents show that the CKL-5 Assessments were prepared before 7 February 2014 (see Mr Sham’s email dated 7 February 2014 to the Environmental Protection Department seeking comments on the CKL-5 Assessments).[13] At the same time, it is the Authority’s own case and evidence that the SCH-4 Assessments were only prepared and produced after 7 February 2014.[14] The Authority’s own submissions through counsel also accept that the SCH-4 Assessments were prepared and produced after the CKL-5 Assessments. As pointed out by Mr Kat to Mr Sham under cross-examination, it could not be correct that the summaries could be based on something which were only produced later. In reply, Mr Sham simply disagreed with this proposition but could not offer any credible explanations as to how and why that could be case. The illogicality of this chronology becomes even more significant when Mr Sham accepted in evidence (and Mr Wong in submissions also fairly accepted) that the Authority had reached a decision based on the assessments by December 2013 that the 6 Enclaves were not suitable to be incorporated into the surrounding country parks. In other words, the actual assessments had already been completed before 13 December 2013 (see footnote 12 above). As such, it is unexplainable as to why the fuller, more detailed and comprehensive SCH-4 Assessments were not and could not be prepared and produced well before the purported summaries recorded in the CKL-5 Assessments were produced sometime in February 2014. 64.Second, it is Mr Sham’s own evidence that the AFCD and the Director (as the Authority) regarded the assessments of the nine enclaves of importance. He even said that the Director himself had at various meetings given his opinions and guidance as to how the assessments should move forward and be carried on. In the premises, it is also inherently incredible that there are no minutes or any contemporaneous records of all these high level meetings within the Government department as to what were discussed and even agreed upon in the meetings. It is also important to note that none of the drafts and working papers or emails mentioned by Mr Sham have been produced in evidence. Without copies of the records of the meetings, or these purported working draft papers or emails, the Authority has also failed to satisfy the court that the subsequently prepared but much fuller, more detailed and comprehensive SCH-4 Assessments accurately recorded and thus represent the actual assessments said to be carried out well before then. It is simply not believable, if this is to be so suggested, that the detailed and comprehensive SCH-4 Assessments could be accurately prepared and produced purely by the drafter’s memory and recollection. 65.Mr Wong for the Authority however submits that the fact that the AFCD had carried out the actual detailed assessments of the 6 Enclaves as recorded in the SCH-4 Assessments is credible as it is consistent with the objective and undisputable facts that:
66.With respect to Mr Wong, I do not think these matters could explain and answer the problems the court has identified in the above paragraphs regarding the Authority’s failure to prove on a balance of probabilities that the subsequently prepared and produced SCH-4 Assessments represent and reflect accurately the actual assessments of the 6 Enclaves that had been carried out by the AFCD. If anything, I am of the view that the fact that all the nine enclave assessments were indeed carried out at the same time makes it even more puzzling as to why the AFCD did not prepare and produce the written full assessments for the three recommended enclaves at the same time with the assessment for the 6 Enclaves, but instead prepared and produced their “summaries” first. It must be noted that there is no evidence to suggest that there was insufficient time to do so for all the nine assessments. 67.For all the above reasons, the Authority has failed to prove that the SCH-4 Assessments reflect and represent accurately the actual assessments that were carried out at that time in respect of the 6 Enclaves. The Authority therefore also in turn fails to show that he in fact relied on the SCH-4 Assessments (but not the CKL-5 Assessments) to make the non-recommendation decision. 68.In the premises, I would only proceed to consider the grounds of challenge raised against Decision 2 by looking at the CKL-5 Assessments. This is what I would now turn to.
69.To better understand the complaints raised under this ground, it is useful to quote in full say the assessment of “Hoi Ha” as an example of the CKL-5 Assessments below. 70.The assessment of “Hoi Ha” is set out as follows:
71.All the other assessments are set out in the similar way and fashion, and each of the CKL-5 Assessments proceeded in summary in the following way:
72.Mr Kat contends that in relying on the assessment in way as set out above, the Authority had failed to consider his duties prescribed under section 4 of the CPO, which provides as follows:
73.Mr Kat submits that under section 4, it would be the statutory purpose and duties of the Authority to consider recommending the designation of country parks to develop and manage them by protecting the vegetation and wildlife within them, and to encourage their use and development of recreation and tourism. 74.In the premises, Mr Kat further says, in deciding whether to recommend or not to incorporate the subject enclaves to become part of the surrounding parks (and thus in turn in deciding whether or not to recommend the designation of those enclaves as country parks), the Authority in discharging those duties, must assess the conservation and preservation value of the subject enclaves to decide whether it is worth recommending for designation. In other words, in properly discharging his statutory duties and the Tameside duty, the Authority must carry out sufficient inquiries as to the conservation and preservation value of a potential site (such as an enclave) for designation in his assessment. The scope of such sufficient inquiries is also informed by the criteria provided in the 2011 Criteria concerning the assessment of the conversation value and the landscape and aesthetic value of an area considered for designation. 75.Mr Kat says the Authority had however failed to discharge these duties in relying on the CKL-5 Assessments. This is so since in all those assessments, there are simply no or no proper assessments of the conservation and preservation values of the vegetation and wildlife in the subject enclaves. There is also no conclusion one way or the other on these values of the subject enclave in each of these assessments. 76.I agree. 77.As demonstrated above, in each of the CKL-5 Assessments, there was only a very general description of the types of vegetation found in the enclaves, but there was no assessment and conclusion on the conservation and preservation value of the vegetation or wildlife in each of the 6 Enclaves. Clearly, there was no assessment of these values to the extent as prescribed by sections IA and IB of the 2011 Criteria (see paragraph 80 below). As such, I am not satisfied that the Authority had in discharge of his Tameside duty and statutory duties properly made sufficient inquires as to the conservation and preservation values of each of the 6 Enclaves before deciding not to recommend them to be designated as country parks.[16] 78.For this reason, I agree that Decision 2 is unlawful as the Authority in relying on the CKL-5 Assessments to make the non-recommendation decision was in breach of his statutory duties and Tameside duty.
79.In substance, the policy that the applicant refers to is the 2011 Criteria, which was formulated in light of and pursuant to the 2010 Policy. 80.To properly consider this challenge, it is necessary to set out the 2011 Criteria in full as follows:
81.The 2011 Criteria therefore provide a set of detail guiding principles and criteria which the Authority must apply in assessing whether any of the 54 enclaves should be recommended for designation as country parks. 82.The applicant under this ground raises a number of complaints to say why the CKL-5 Assessments were not in compliance with the policy reflected by the 2011 Criteria. 83.The applicant’s first two complaints can be conveniently considered together. The applicant submits that a principal policy change underlying the 2011 Criteria as compared with the hitherto principles and criteria is that it would include an enclave even containing private land in the country parks where the use of that land is compatible with that park. See paragraph 3.2 of the 2011 Working Paper[18] and paragraphs 8 - 17 above. 84.Mr Kat submits that the CKL-5 Assessments however did not comply with or were contrary to that policy change as:
85.With respect, I am unable to agree. 86.Notwithstanding the change of policy as mentioned above, the 2011 Criteria provide clearly that the Authority should still take into account the land status of the enclave (ie, the existence of private land within the enclave) and management difficulties in the weighing and assessment exercise to decide whether or not the enclave is compatible with the surrounding country park and suitable for designation as country park by incorporation (see sections IIB, C and D). Although the 2011 Criteria (reflecting the policy change) no longer recognise the presence of private land as a key factor for not recommending the enclave to be designated as country park (as was the position under the pre-2011 guiding principles and criteria), they also do not make the presence and the extent of the presence of private land a non-factor. It is still a factor relevant for the Authority to consider the questions of compatibility and management difficulties in the assessment. 87.In the CKL-5 Assessments, the Director (and hence also the Authority) took into account the presence of private land (together with the extent and location of their presence) as a factor to consider whether there would be significant management difficulties and compatibility concerns if the enclave was incorporated into the surrounding country parks. For the above reasons, it is legitimate for him to so consider under the 2011 Criteria and the underlying policy. In the premises, I am not persuaded that the Director and the Authority had failed to consider or implement the said policy change or wrongly elevated the presence of private land as a determining factor in the CKL-5 Assessments. 88.I therefore reject these complaints. 89.The applicant next complains that none of the CKL-5 Assessments specifically addressed “the conservation value” and “the landscape and aesthetic value” criteria as respectively set out under section IA and IB of the 2011 Criteria. The assessments are therefore carried out not in compliance or consistent with the 2011 Criteria. 90.I agree. 91.As demonstrated in the example of the assessment of “Hoi Ha” above, although there was a description of the landscape and vegetation types in a general way in each of the CKL-5 Assessments, there was no or no proper assessment and conclusion as to the conversation value and aesthetic value of subject enclave’s vegetation, wildlife and landscape. 92.In particular, section IA and IB of the 2011 Criteria have set out in great details the factors that the Authority shall assess respectively under each of these two criteria. For example, for conversation value, it is specifically identified under section IA that the conservation value is to be determined by looking at factors such as species diversity, degree of naturalness, rarity, fragility, representativeness, intrinsic appeal, historical records, position in an ecological or geological unit and potential value. Under section IB, again specific factors listed under subsections (a) to (e) have been set out for the Authority to assess qualitatively the landscape and aesthetic value of the subject enclave. Most if not all of these factors and criteria have not been referred to or mentioned for assessment in the CKL-5 Assessments, and there was also no explanation in these assessments to say why it was not necessary to assess these or some of these factors in relation to the circumstances of each of the subject enclaves. 93.In the premises, I agree that the CKL-5 Assessments were not carried out in accordance with sections IA and IB of the 2011 Criteria. It was therefore unlawful for the Authority to rely on them to decide not to recommend the designation of the 6 Enclaves as country parks. Decision 2 is therefore unlawful and should be quashed. 94.The applicant’s 4th to 6th complaints under this ground again can be considered together. The complaints are these:
95.With respect, there is nothing in these complaints. As I explained above, under the 2011 Criteria, even read in the context of the 2010 Policy and the August 2010 Statement, the Authority is entitled to and should take into account management difficulties and land use compatibility by considering the private land presence (and the extent of its presence) in the subject enclave to assess whether the enclave should be designated as country park to conserve and protect its natural landscape. This was what the CKL-5 Assessments sought to do in looking at the factor of private land presence and development demand (under the factor of land use)[20] within the 6 Enclaves. 96.In this respect, it should be noted that the 2011 Working Paper has at paragraph 4.1 set out three different measures of protecting the enclaves against incompatible uses, which included (a) incorporating them as part of country parks; or (b) statutory planning under the TPO to control the uses of the enclaves. Paragraph 5.3 of the 2011 Working Paper also stated that the Authority would, in conjunction with departments concerned, “consider whether the enclave is suitable for designation as part of a country park according to the ‘2011 Criteria’, or is more suitable to be protected by including the area into DPA plan followed by an OZP under the TPO”. This is consistent with the 2010 Policy, where the CE has expressly said that to meet conservation and social development needs, “we will either include them into country parks, or determine their proper uses through statutory planning” (emphasis added). It is under this understanding and basis that the 2011 Criteria was prepared and endorsed. 97.Thus, although I accept Mr Kat’s submissions that the 2011 Working Paper at paragraph 4.5[21] and the 2011 Criteria at paragraph IIIB when properly read may suggest that country park designation may offer a more comprehensive protection of the enclaves than by way of statutory planning under the TPO, it does not mean that as a matter of policy, country park designation is to be treated as the only means of protection envisaged by the Government. The urgent needs to protect the enclaves from unauthorised works and activities have always and repeatedly been expressed in the public statements and policy to be addressed by protection through either country park designation or statutory planning under the TPO. Clearly bearing these alternative protective measures and their relative pros and cons in mind, the Board endorsed the 2011 Criteria to guide the Authority to assess whether an enclave is suitable to be protected by way of country park designation or by way of statutory protection. As rightly submitted by Mr Wong, it is not about whether there is or there is no protection for the enclaves, but a question of which is the more appropriate measures of protection in the circumstances of each of the subject enclaves. It is a matter of professional judgment entrusted to the Authority to make by section 4 of the CPO in applying the 2011 Criteria. 98.Hence, it cannot be said that once the Authority has come to the conclusion that a particular enclave is not suitable to be designated as a country park and should be protected by way of statutory planning, the Authority must have carried out the assessments not in accordance with the 2011 Criteria or the 2010 Policy as complained by the applicant above. 99.I therefore reject the applicant’s 4th to 6th complaints. 100.The applicant’s last complaint under this ground is that none of the CKL-5 Assessments took into account the requirements of the Convention on Biological Diversity (“the Convention”), which was extended to Hong Kong on 9 May 2011. It is the applicant’s contention that it is Government policy to protect biodiversity in Hong Kong in ways consistent with the principles of the Convention. 101.There is no merit in this complaint. As far as I can see from the evidence and submissions, there is nothing to suggest that the Government must implement the Convention principles by way of designating areas as country parks. As stated by Mr Sham at paragraphs 50 and 51 of his affidavit, parties to the Convention are required to adopt measures with regard to the Convention’s provisions as far as possible and as appropriate in the light of its special circumstances for protecting biological diversity, and the proper protection of land to meet conservation needs through either designation of country parks or conservation zonings of statutory plans are in line with the Convention principles.[22] 102.In the premises, the mere fact that the CKL-5 Assessments do not recommend the designation of the 6 Enclaves does not mean there is contravention of the Convention principles. As repeatedly pointed out by the Authority in this application, the 6 Enclaves are now protected by statutory planning under the TPO through the relevant OZPs. I therefore also reject this complaint. 103.For all the above reasons, the applicant is only successful under this ground in relation to the 3rd complaint but not under the other complaints. C2.4 Legitimate expectation[23] 104.Under this ground, the applicant contends that there is a legitimate expectation that the Authority would comply with and act in accordance with the relevant policy and the 2011 Criteria in assessing the suitability of the enclaves to be incorporated as country parks. This ground is in effect a flip side of the above ground. 105.In light of the 2010 Policy, the August 2010 Statement and the Board’s endorsement of the 2011 Criteria, I accept that the applicant has a legitimate expectation that the Authority should comply with the 2011 Criteria when assessing the suitability of the 6 Enclaves for designation as country parks. 106.In the premises, insofar as I have concluded above that the CKL-5 Assessments failed to comply with sections IA and IB of the 2011 Criteria in failing to assess or properly assess the conservation value and landscape and aesthetic value of the 6 Enclaves, there is a breach of the legitimate expectation and so I conclude. 107.The applicant is therefore also successful under this ground to this limited extent. C2.5 The CKL-5 Assessments are unlawful as they failed to take into account relevant consideration or they took into account irrelevant considerations, or they were irrational in public law sense[24] 108.Before I consider the complaints under this ground, it is pertinent to set out the principles applicable to a relevancy challenge in judicial review. C2.5.1 Relevant principles 109.As this court has stated in Pagtama v Director of Immigration (HCAL 13, 45 and 56/2014, 12 January 2016) at paragraph 194,[25] it is now well established that when it is alleged that a decision-maker failed to take into account a relevant consideration in the exercise of a statutory discretion, it is important to distinguish between:
110.Further, in relation to the discretionary considerations to the extent that the decision-maker has decided to take into account any particular factor as being relevant to the exercise of his discretion, the weight that should be given to that factor is likewise a matter for him, not for the court, subject to Wednesbury irrationality: Fok Chun Wa (2012) 15 HKCFAR 409 at paragraph 97, per Ma CJ, citing with approval Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at 780F - G; R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB at paragraph 131, per Laws LJ; BH, supra, at paragraph 65. 111.The Court of Appeal in BI v Director of Immigration [2016] 2 HKLRD 520 at paragraph 47 has also approved these principles in agreeing with Chow J’s judgments in BH v Director of Immigration, supra, at first instance at paragraphs 64 and 65, which are as follows:
112.Hence, under these principles, save for what have been prescribed by statute, it is for the decision-maker to decide what are the relevant or irrelevant considerations subject only to Wednesbury unreasonableness challenge. 113.Mr Kat however argues that these principles on relevancy are only limited to the immigration cases. For other cases concerning administrative decision, such as the present one, especially in environmental contexts, it is for the court to decide what are and what are not relevant considerations. 114.I disagree. 115.It is clear that the principles set out at paragraphs 109 ‑ 112 above are not limited only to immigration cases. The same principles have long been adopted by the courts in other administrative law case such Wing On v Building Authority and Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 cited above. These authorities have also been relied on by Chow J in setting these principles, which in turn have been approved by the Court of Appeal in BI. 116.In the premises, these principles are similarly applicable to the present case, and I would bear them in mind in dealing with the applicant’s complaints of the Authority’s failure to take into account relevant considerations and his taking into account irrelevant considerations in the CKL-5 Assessments. C2.5.2 The assessments failed to take into account relevant considerations 117.As pleaded at paragraph 106(1)(a) - (d) and (f) - (i) of the RRAF86,[26] the applicant says the CKL-5 Assessments failed to take into account the following relevant considerations:
118.For factor (1), for the reasons I have given above at paragraphs 77 - 78 in concluding that the Authority had failed to discharge his statutory duties in relying on the CKL-5 Assessments, I agree that it can also be said that he had therefore failed to take into account this factor in relying on the CKL-5 Assessments. The applicant therefore is successful in this complaint. 119.For factor (2), as I have explained above, the 2011 Criteria in their formulation have already taken into account the relevant pros and cons of the protection offered by country park designation and those offered by statutory planning. There is no separate requirement under the 2011 Criteria to require the Authority to consider the “ineffectiveness” of the protection offered by statutory planning. To that extent, and subject to my conclusion that the assessment failed to comply with sections IA and IB of the 2011 Criteria, there is no question that the CKL-5 Assessments failed to take into account this factor separately as a relevant factor. I therefore reject this complaint. 120.For factor (3), the assessments did look into the recreational use of each of the 6 Enclaves to determine whether it was compatible with the surrounding country park. There is thus no question of failing to take that consideration into account. As rightly submitted by Mr Wong, this complaint in substance is more an assertion of what the conclusion on compatibility the applicant said should have been reached by the Authority. This is a question concerning what weight of this factor should be attached to in the relevant assessment, which was a multi-faceted and qualitative exercise. In this context, it clearly cannot be said that it is Wednesbury unreasonable for the Authority to come to the view that the existing recreational uses of these 6 Enclaves, when considered in the context of all the other factors and qualities of the enclaves and the surrounding country parks, were incompatible with the surrounding country parks. I would reject this complaint. 121.For factor (4), the Authority considered that there would be management difficulties of the Hoi Ha enclave because of the extent of the existence of private land. At the same time, there is nothing the applicant has shown or demonstrated by any evidence (let alone clear evidence) or otherwise that the fact that the AFCD is also managing the Marine Park would or should have rendered less so the prospective management difficulties as envisaged by the Authority. In the premises, the applicant has failed to show that it was Wednesbury unreasonable for the Authority not to take that into account. I similarly dismiss this complaint. 122.For factor (5), it is in substance a complaint that the Authority in his assessment should have regarded the unauthorised development or land formation activities as supporting protection by country park designation. The Authority noted this factor in paragraph 1 of the assessment[27] (as accepted by the applicant herself). It is only that the Authority did not give this factor such weight as the applicant wished the Authority should have to support protection of the enclave by way of designation instead of statutory planning. This is not a complaint about the failure to take into account this factor, but a complaint of the weight the Authority attached to this in the assessment. Given the multi-faceted and qualitative nature of the assessment exercise, in light of all the other factors identified by the Authority in the assessment pointing to the incompatibility of the enclave with the surrounding country park, it is clear to me that it cannot be said that it was Wednesbury unreasonable for the Authority not to give this factor an overwhelming weight to tip his assessment that the enclave was not suitable for incorporation for protection. As it is repeatedly emphasized, the Authority’s non-recommendation does not mean that the enclave would not be protected. It is only that it would be protected by way of statutory planning through the OZP. I must therefore dismiss this complaint. 123.For factor (6), again this is not a complaint about the failure to take into account relevant considerations. It is a complaint that the Authority had no evidential basis to say there was a “small house demand” in the Pak Tam Au enclave. The reference to the “small house demand” is at paragraph 1.2 of the Pak Tam Au assessment, which states as follows:
124.The “small house demand” was thus based on the figure adopted in the relevant Town Planning Board Paper on the draft OZP. There was clearly evidential basis for the Authority to refer to this. This complaint is without merit and should be rejected. 125.Factors (7) and (8) are again in substance the applicant’s disagreement with the Authority’s conclusion respectively in the So Lo Pun assessment and the Tin Fu Tsai assessment that, after looking at the all the factors, they were not compatible with the surrounding country park and thus should not be incorporated into them. For the same reasons I have explained above, the court is far from satisfied that it can be said that the Authority’s said professional conclusion reached after a multi-faceted and qualitative assessment is Wednesbury unreasonable. I would also dismiss these complaints. C2.5.3 The CKL-5 Assessments took into account irrelevant considerations[28] 126.Under this ground, the applicant complains that the CKL-5 Assessments took into account the irrelevant considerations of “development potential” and “management difficulties” said to be due to land use or distribution. Mr Kat submits that these are irrelevant as neither of which was a criterion in the 2011 Criteria and neither of which was supported by any evidence. 127.There is nothing in this complaint. 128.Given the criteria set out at sections IIB, C and D in the 2011 Criteria, which expressly ask the Authority to take into account management difficulties, land status and private land use compatibility with country park uses in assessing the enclaves’ suitability for incorporation, it is clearly relevant for the Authority to take these factors into account. In any event, it certainly cannot be said that it was Wednesbury unreasonable for him to do so. 129.The contention that neither of these factors was supported by evidence is also without merits. The Authority principally relied on the fact of the extent of the existence of the private land in each of these enclaves to come to the professional view that there would be management difficulties if the enclaves were incorporated. The applicant has provided nothing to suggest that the description of the extent of the existence of private land within the 6 Enclaves in each of the assessments is factually wrong. Similarly, the Authority looked at the development potential factor by reference to the forecasted small house demand figures for the next 10 years provided by the relevant District Lands Office. This is clearly relevant evidence to support the factor. 130.I will dismiss this ground. 131.Third, the applicant says the CKL-5 Assessments wrongly took into account the following error of facts:
132.As submitted by Mr Wong, where “error of fact” is asserted, the law is that, for the court to properly intervene on the basis of an alleged mistake as to fact: (a) there must be shown a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; (b) the fact must have been “established” in the sense that it was uncontentious and objectively verifiable, ie, plainly wrong or established and unassailable; (c) the applicant must not have been responsible for the mistake; and (d) the mistake must have played a material (not necessarily decisive) part in the decision-maker’s reasoning. Ultimately the touchstone is that of substantive unfairness as a result of the error. See E v Secretary of State for the Home Department [2004] QB 1044 at paragraphs 61 - 67, per Carnwath LJ; Smart Gain at paragraphs 90 - 99, per A Cheung J. 133.I agree with Mr Wong that the applicant has simply not adduced any evidence to show clearly that there are the above errors of fact as alleged. This ground must also be dismissed. 134.Lastly, at paragraph 106(4) of the RRAF86, the applicant also pleaded that as a complaint under this ground that “the So Lung Pun, Pak Lap, Pak Tam Au, Tin Fu Tsai and To Kwa Peng assessments were illogical in their reasoning and thus irrational in public law sense. Further particulars will be provided following the grant of leave”. It is obviously inappropriate for an applicant to plead a ground of judicial review without providing the necessary particulars in support of that ground. On the mere lack of particulars to support a case of irrationality in public law, this ground should be dismissed right away. Insofar as the applicant is relying on all the other complaints previously relied on to say, as a catch all complaint, that the assessments were irrational, I would dismiss the same for the reasons I have explained above. D. WHETHER THE COURT SHOULD ALSO DETERMINE THE CHALLENGES MADE AGAINST THE SCH-4 ASSESSMENTS 135.I have in the above concluded that the CKL-5 Assessments are defective as they did not provide the necessary assessments on the conversation and preservation values of the 6 Enclaves. They are therefore also defective as they were not done in compliance with sections IA and B of the 2011 Criteria. 136.However, it is Mr Wong’s submissions that, even if I do conclude that the Authority relied on the CKL-5 Assessments (instead of the SCH-4 Assessments) to make the non-recommendation decision, and that the CKL-5 Assessments were defective, I should still refuse to grant any reliefs under this judicial review. This is so as he said the Authority has now provided the detailed SCH-4 Assessments, which he says would answer all the applicant’s complaints made against the assessments, including those that I have upheld in relation to the CKL-5 Assessments. As such, there is no point in quashing Decision 2 and remitting the matters back to the Authority to re-assess since the Authority would inevitably come back with the same conclusion as now reflected in the SCH-4 Assessments. 137.In response, Mr Kat of course also argues that the SCH-4 Assessments are also defective, and he has set out at paragraphs 106B(1)-(5) of the RRAF86 extensive further complaints against the SCH-4 Assessments (premised again on the conventional Wednesbury unreasonable ground and relevancy challenges). These complaints are extensive and, as pleaded, spread over some four pages and comprise of some 13 paragraphs and subparagraphs. 138.The parties therefore submit that I should also consider and determine on these multiple complaints made against the SCH-4 Assessments in this judicial review. 139.With respect, I do not think it is either necessary or appropriate for me to go through this exercise. I will explain why. 140.I have already concluded above that I find as a matter of fact that the Authority proceeded and relied on the CKL-5 Assessments to make the non-recommendation decision. I have also concluded that those assessments were defective in law. It is well established that in a judicial review, the court generally should not look at post justifications or reasons given after the challenged decision to determine whether the decision should be set aside. The court should approach that very cautiously and should only do so in exceptional circumstances and where the subsequent reasons or justification could really be regarded as mere elucidation of the original reasons or justification.[29] 141.Hutchison LJ in Westminster City Council, ex parte Ermakov [1996] 2 ALL ER 302 (CA) explained some of the policy reasons behind the court’s above cautious approach at p 316 c - e as follows:
142.In my view, these policy reasons apply a fortiori in the present consideration, where I have concluded that the CKL-5 Assessments were not compliant with the 2011 Criteria and it was wrong for the Authority to rely on them to make the non-recommendation decision. It would thus be in principle wrong for me to allow the Authority to now rely on additional, post-decision-making assessments (which purport to assess those criteria found to have been left out in the CKL-5 Assessments) to meet and defeat the judicial review challenge. If this is permitted, it would encourage, instead of discourage, sloppy decision making. 143.In any event, given my conclusion that the SCH-4 Assessments do not represent and reflect the actual assessments made at the material time for the Authority to make the non-recommendation decision, there is a possibility that the subsequently produced SCH-4 Assessments were prepared with the objective (consciously or subconsciously) to justify and confirm the conclusions already made in the CKL-5 Assessments. In other words, the court cannot be certain as to whether the SCH-4 Assessments represent actual, fair and properly conducted assessments of the 6 Enclaves. As such, it would be entirely artificial for the court to proceed in this judicial review to examine these assessments against the complaints made against them. 144.For the same reasons, I also do not accept Mr Wong’s submissions that, in light of the SCH-4 Assessments, the results would be inevitable if the court is to refer the matters back to the Authority for re-assessments. On remittance, the court would expect the Authority and the Director to properly and fairly conduct the assessments again of the 6 Enclaves in accordance with the 2011 Criteria and the statutory duties under the CPO, with no reference in mind to the conclusion previously made under the CKL-5 Assessments. 145.In the premises, I would not further consider the SCH-4 Assessments and the grounds of challenges proposed to be made against them.[30] E. CONCLUSION 146.The applicant is successful in this judicial review in his challenge against Decision 2 only on the grounds explained at paragraphs 77 - 78, 91 - 93, 105 - 107, and 118 above. On the other hand, I would dismiss the judicial review against Decision 1. 147.I would therefore quash Decision 2 and remit the same to the Authority for reconsideration in light of my ruling above. 148.The applicant is only successful in part in this application. After considering the extent of her success, and the scope of the arguments raised therein, I think it is fair and just in all the circumstances to make order nisi that she should have half of her costs in this application, to be taxed if not agreed, with certificate for two counsel. The applicant’s own costs be also taxed in accordance with legal aid regulations.
Mr Nigel Kat SC and Mr Jose d’Almada Remedios, instructed by Vidler & Co, assigned by Director of Legal Aid, for the applicant Mr Stewart Wong SC and Mr Abraham Chan, instructed by Department of Justice, for the respondent [1] Being the Sai Kung East and West Country Parks, Plover Cove Country Park and Tai Lam Country Park. [2] See its Long Title. [3] These are largely taken out from the introductory paragraphs of the 2011 Working (as defined at paragraph 16 below) and paragraphs 11 - 16 and 21 of the Affidavit of Sham Chun Hung, which are not controversial. [4] See paragraphs 122 and 123 of the 2010 Policy Address. [5] Formed under the Board. [6] See Working Paper No WP/CMPB/1/2014 for meeting of the Country Park Committee of the Board on 12 February 2014. [7] See the Affidavit of Sham Chun Hung, paragraph 65. [8] See the Affidavit of Sham Chun Hung, paragraph 44. [9] See: HKSAR v Cheung Kwan-yin (2009) 12 HKCFAR 568 at 574; Fully Profit (Asia) Ltd v Secretary for Justice (2013) 16 HKCFAR 351 at 361, paragraph 15, per Ma CJ. [10] Country park is defined under the CPO as any area that is designated as country park under section 14. Proposed country park, although not defined, must in its context mean any area that the Authority has recommended to the CE to be designated as country park and set out that area in a draft map: sections 8 - 10 of the CPO. [11] See the Long Title and section 4(b) of the CPO. See paragraphs 6 and 7(1) above. [12] In the Development Bureau’s written tabulated reply dated 13 December 2013 to Mr Baretto SC’s written queries concerning the Hoi Ha enclave protection at item 16, it was stated that the AFCD had “recently completed the assessment of the suitability of incorporating Hoi Hai into the Sai Kung West Country Park in accordance with [the 2011 Criteria]. We considered that Hoi Ha, which has a relatively large human settlement, easy access and great development pressure, should more appropriately be protected by OZP.” When shown this document, Mr Sham agreed that the assessments for all the nine enclaves should be completed around the same time and that the Authority formed the view that, basing on the assessments, the 6 Enclaves were not suitable for incorporation into the surrounding country parks. [13] See Exhibit “LCC-1” to the Affirmation of Lai Chuen Chi. [14] There is no direct evidence to show actually when the SCH-4 Assessments were prepared and produced. But the cover page of the exhibit SCH-4 stated the date of these assessments as 12 February 2014. [15] See paragraphs 104(a)(i) - (ii) of the Re-Re-Amended Form 86 (“RRAF86”). [16] As a stark contrast, in each of the assessments of the three recommended enclaves (ie, Fan Kei Tok, Sai Lau Kong and the Site near Nam Shan), there are extensive and detail records of the species of vegetation identified in the each of the enclaves and an analysis and conclusion on the grading of the conversation, landscape and aesthetic values of the vegetation and landscape of the enclave made in accordance with the 2011 Criteria. [17] See paragraphs 104(b)(i) ‑ (vii) of the RRAF86. [18] Paragraph 3.2 states: “Under the updated criteria, conservation value, landscape and aesthetic value, and recreation potential remain as the three main themes of the intrinsic criteria in identifying suitable area for country park designation. Other factors such as size, proximity to existing country parks, and status and existing land use are those criteria in demarcating a boundary of a country park. The mere existence of private land will not be automatically taken as a determining factor for exclusion from the boundary of a country park. Other factors as to whether the land should be considered as part of a country park from the perspectives of landscape and aesthetic value, conservation value and function would also need to be taken into account. The use of a site will be assessed if it is compatible with the country park setting. For example, where a site comprises mainly agricultural land and scattered village houses, it could be considered as forming an integral part of landscape of country parks and thus be in harmony with the entire country park setting. However, where there have been extensive and active human settlements, the site would be considered less suitable for designating as part of a country park.” [19] This refers to the statement made by the Government in July and August 2010 to the LegCo that the Administration agreed that there was an “urgent need to enhance the protection of country park enclaves against incompatible uses which may adversely affect the overall beauty and integrity of our country parks”. See paragraph 14 of the RRAF86. [20] It is noted that it is specifically stated under the “Land use compatibility” criterion at Section IID that “…Where the site comprises mainly village houses and fallow agricultural land, it could be considered as forming an integral part of landscape of country parks and thus be in harmony with the entire country park setting. As such, it should be considered to be included in a country park to protect the overall scenic beauty and integrity of the country park. However, where there has been extensive and active human settlements, the site would be considered less suitable for designation as part of a country park.” [21] “Pursuant to TPO, a DPA plan will only be effective for 3 years subject to a period up to one additional year as may be extended by the CE in Council. It can be replaced by an OZP if the enforcement power of the Planning Authority in the area is to be retained. In such a case, the same plan-making process will have to be repeated. The merits of a DPA plan are that, it can be prepared expeditiously to put the area under threat under immediate control and in the course of preparing the OZP, specific land uses of the enclaves will be worked out, consultations will be held and the conservation needs as well as the development aspirations of the areas can be considered by the TPB. A suitable balance will be struck in the process and the OZP will provide a basis for development control as well as a guide for future development. However, this arrangement is not free of problems. As in the case of country park designation, indigenous villagers will see their rights to develop small houses within DPA plans adversely affected as they would have to overcome one more hurdle of seeking and obtaining TPB’s prior approval before they could build new small houses or rebuild existing ones. Also, there is provision for compensation under TPO and some owners may object. Moreover, unlike designation of country parks for which there will be public consultation, no public consultation will be carried out for making of DPA plans, and this arrangement often attracts criticisms of disrespect for landowners. Furthermore, its effectiveness in achieving the nature conservation objective is not as strong as that under CPO, for example, it cannot curb eco-vandalism and may not be favoured by those who advocate absolute integrity of country parks. Besides, any development or uses that have existed before the gazettal of the DPA plan, though may not be compatible with the surrounding environment, will be regarded as ‘existing use’ including those and tolerated under TPO.” [22] It should also be noted that Mr Sham has made it clear that Hong Kong is not a Convention party per se, although the Government has embarked on an exercise to develop city-level Biodiversity Strategy and Action Plan as encouraged under the Convention. [23] See paragraph 105 of the RRAF86. [24] See paragraph 106 of the RRAF86. [25] Citing Wing on Co Ltd v Building Authority (1996) 6 HKPLR 432 at 439, per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037; recently referred to in BH v Director of Immigration [2015] 4 HKC 107 at paragraph 64, per Chow J. [26] At the hearing, Mr Kat confirms that he would not pursue the complaint pleaded at paragraph 106(1)(e) of the RRAF86. [27] It is stated at the last sentence the paragraph 1.1 of the Pak Lap assessment that “…The abandoned agricultural land and a small part of woodland have been excavated and the stream has been modified.” [28] See paragraph 106(2) of the RRAF86. [29] See for example: R (CD & Another) v Secretary for State for the Home Department [2003] EWHC 155 (Admin) at paragraph 18, per Maurice Kay J; R (Hereford Waste Watchers Ltd) v Hereford Council [2005] EWHC 191 (Admin) at paragraph 48, per Elias J; R (London Fire and Emergency Planning Authority) v Secretary of State for Communities and Local Government [2007] LGR 591 at paragraph 66, per Stanley Burnton J. [30] The applicant at the hearing applies for leave to re-re-amend the Form 86 in the form of the draft RRAF86. The substantial parts of the amendments are about the proposed grounds of challenge made against the SCH-4 Assessments. The parties have agreed to refer to it at the hearing on a de bene esse basis. Although I have now decided not to entertain these challenges, for completeness sake and in case the matter goes further, I think it is right to formally grant leave to the applicant to re-re-amend the Form 86 and file the RRAF86. I so order. | ||||||||||||||||||||
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