Chan Ka Lam v. Chief Executive in Council and Another
Read the full judgment text of HCAL 28/2015 on BabelCite. This High Court CFI judgment was delivered on 24 November 2017.
1. The applicant is an environmental and conservation activist. This is her judicial review seeking to challenge:
Cited by 2 cases · Cites 10 cases
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HCAL 28/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 28 OF 2015 _______________
Before: Hon Au J in Court Dates of Hearing: 17 - 20 October 2016 Date of Further Submissions: 1 November 2016 Date of Judgment: 24 November 2017 _______________ J U D G M E N T _______________ A. INTRODUCTION 1.The applicant is an environmental and conservation activist. This is her judicial review seeking to challenge:
2.The grounds of challenge are in gist that (a) the TPB Decision is tainted by various public law wrongs, made by the TPB inconsistently with the stated planning intention, and is in breach of the applicant’s legitimate expectation; and (b) the CEIC Decision is similarly tainted with the same wrongs of the TPB Decision, and is unlawful for want of reasons in the circumstances of this case. The applicant asks for the reliefs of quashing both Decisions and an order of Mandamus requiring the TPB to further consider and amend the Draft OZPs in accordance with law or to replace them with new plans. 3.As with most judicial reviews challenging the TPB decision on draft OZPs, context is important for the understanding of the complaints. I will therefore first set out the relevant background leading to this judicial review. B. THE BACKGROUND B1. The three enclaves and the events leading to the preparation of the OZPs for them 4.Hoi Ha, Pak Lap, and So Lo Pun are respectively three country park enclaves, which mean that each of them is land consists of some private land together with Government land, surrounded by or contiguous to a designated country park. For historic reasons, country park enclaves were excluded from being part of the country park as it was the then prevailing policy that Government land was preferred in designating country parks. Hoi Ha, So Lo Pun, and Pak Lap are respectively next to the country parks of Sai Kung West, Plover Cove and Sai Kung. 5.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. 6.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 TPB or permitted as specified in the DPA plan. 7.In light of the Sai Wan Incident, the then Chief Executive (“CE”) in his 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”).[1] At paragraph 123 of the Policy Address, the CE stated that, in respect of the enclaves not yet covered by statutory plans:
8.Hoi Ha, So Lo Pun, and Pak Lap are three of the 54 country park enclaves for which the DPA Plans were prepared by the TPB. On 1 September 2010, the Secretary for Development (“SDEV”), under the delegated authority of the CE, directed the TPB to designate the three enclaves as DPAs and to prepare draft DPA plans for them. The draft DPA Plans were subsequently gazetted on 30 September 2010. After going through the due process of consideration of representations and comments, the draft DPA plans were approved by the CEIC on 4 October 2011 (for Hoi Ha and Pak Lap), and 8 November 2011 (for So Lo Pun). 9.Pursuant to section 20(5) of the TPO, the DPA plans are effective for three years, ie, until 30 September 2013. On 11 January 2013, the SDEV, under delegated authority of the CE, directed the TPB to prepare OZPs for these enclaves. 10.Before looking at the events concerning the preparation of the draft OZPs for the three enclaves and to put them in proper context, it is convenient to first look at the various relevant meaning of the zoning categories of these OZPs. B2. The relevant zoning categories in gist 11.The stated planning intention of the respective zoning categories as stated in the Notes to the relevant Draft OZPs relevant for the present purposes is as follows. 12.A Conservation Area (“CA”) zone is intended to protect and retain the existing natural landscape, ecological or topographical features of the area for conservation, educational and research purposes and to separate sensitive natural environment such as country park from the adverse effects of the development. There is general presumption against development in this zone. In general, only developments that are needed to support the conservation of the existing natural landscape or scenic quality of the area or are essential infrastructure projects with overriding public interest may be permitted. It does not permit Small House development (under the Small House Policy), and only redevelopment of existing houses may be permitted with or without conditions on application to the TPB. 13.A Coastal Protection Area (“CPA”) is intended to conserve, protect and retain the natural coastlines and the sensitive costal natural environment, including attractive geological features, physical landform or area of high landscape, scenic or ecological value, with a minimum of built development. It may also cover areas which serve as natural protection areas sheltering nearby developments against the effects of coastal erosion. There is a general presumption against development. In general, only developments that are needed to support the conservation of the existing natural landscape or scenic quality of the area or are essential infrastructure projects with overriding public interest may be permitted. No Small House development is permitted, and only redevelopment of existing houses may be permitted with or without conditions on application to the TPB. 14.A Green Belt (1) (“GB(1)”) zone is intended primarily for defining the limits of urban and sub-urban development areas by natural features and to contain urban sprawl. There is a general presumption against development with zone. Development of Small House is not permitted in this zone, while only redevelopment of houses already there may be permitted with or without conditions on application to the TPB. 15.A Green Belt (“GB”) zone is primarily for defining limits of urban and sub-urban development areas by natural features and to contain urban sprawl as well as to provide passive recreational outlets. There is a general presumption against development within this zone. Development of house (other than rebuilding of Small House or replacement of existing domestic building by Small House permitted under the Notes) may be permitted with or without conditions on application to the TPB. 16.An Agriculture (“AGR”) zone is intended primarily to retain and safeguard good quality agricultural land, farm, fish ponds for agricultural purposes. It is also intended to retain fallow arable land with good potential for cultivation and other agricultural purposes. Development of house (other than rebuilding of Small House or replacement of existing domestic building by Small House permitted under the Notes) may be permitted with or without conditions on application to the TPB. 17.A Village Type Development (“V”) zone is primarily intended for development of Small House and always permits development of Small Houses without an application for planning permission. The planning intention is to designate both existing recognised villages and areas of land considered suitable for village expansion. It is also intended to concentrate village type development within this zone for a more orderly development pattern, efficient use of land and provision of infrastructure and services. Selected commercial and community uses serving the needs of villagers and in support of the village development are always permitted on the ground floor of a Small House. Other commercial, community, and recreational uses may be permitted on application to the TPB. B3. The preparation of the Draft OZPs and the representations made against them leading to the TPB Decision and CEIC Decision 18.After carrying out extensive consultation with stakeholders and site inspections and various studies, the Planning Department (“PlanD”) drafted the preliminary draft OZPs for Hoi Ha, So Lo Pun, and Pak Lap for the TPB’s consideration. After considering the preliminary drafts and having further consultations with various stakeholders, the Rural Councils and the District Councils, and after further amendments proposed having been made to these preliminary drafts, the TPB found the then draft OZPs suitable for exhibition for public consultation under section 5 of the TPO. On 27 September 2013, those draft OZPs were gazetted and exhibited for public consultation. 19.In those draft OZPs, the PlanD proposed rezoning certain identified parts of the land within Hoi Ha, So Lo Pun, and Pak Lap for V zone. Respectively, the V zone as identified in these drafts was of 2.6 hectares for Hoi Ha, 4.12 hectares for So Lo Pun, and 2.37 hectares for Pak Lap. 20.Since the gazettal, over 10,600 valid written representations and 3,600 valid written comments were received in respect of each of the draft OZPs.[2] They were mainly from two broadly opposing groups. The first group comprised villagers, Rural Councils and individuals, objecting to the insufficient V zones to satisfy demand for Small House development and inclusion of private land within the CA zone. They all requested for an expansion of the V zones. 21.The second group made up of Legislative Councillors, District Council members, green groups, other organizations and individuals who mainly objected to the V zones on the ground that they were drawn up based on unrealistic Small House demand figures without verification. Excessive V zone would pose a threat to the important habitat and species of the area given the current sewage treatment arrangement by means of the septic tanks. In particular, they were concerned about the impacts on the marine life of Hoi Ha Wan Marine Park (“HHW Marine Park”) and Pak Lap Wan. They proposed that the “V” zone should be confined to the existing village cluster. More specifically, they requested the GB zone in Hoi Ha where the wet abandoned agriculture land was found, and the upper section of So Lo Pun stream and its riparian zone be rezoned to CA. 22.From 28 April to 4 June 2014, the TPB met in two half day sessions and four full day sessions in holding its meeting pursuant to section 6 of the TPO to hear the extensive representations and comments and to deliberate on them.[3] As usual before the meeting, the PlanD had submitted to the TPB the TPB papers,[4] summarising the written representations and its responses to them. For convenience, I would refer to these rounds of hearing as the “First Rounds of Hearing” and all the representations made for and at these hearings as “the Representations”. 23.At the conclusion of the First Rounds of Hearing, the TPB decided to propose amendments to the then draft OZPs pursuant to section 6B(8) of the TPO, in part to meet those representors’ points by trimming the size of the V zones in the then draft OZPs. More specifically, these amendments were:
24.The remaining V zones were however still extending beyond the existing villages. 25.The proposed amendments to the draft OZPs were again gazetted for public inspection on 25 July 2014. A total of 36 valid further representations for Hoi Ha, 21 for So Lo Pun and 11 for Pak Lap were received (collectively “the Further Representations”). Apart from a few who expressed support to the reduction of the V zones, the majority opposed the proposed amendments in the sense that they considered the V zones still excessive. They expressed concern on the Small House demand figures and requested for the adoption of the Tai Long Wan approach[6] for the enclaves. They also considered the current sewage treatment arrangements in the concerned villages inadequate to protect the water bodies in the surroundings and there was a lack of assessment on the cumulative impacts (such as ecology, landscape and water pollution) of Small House development on the enclaves and their carrying capacity. For Hoi Ha and So Lo Pun, the Further Representations expressed concern on the inadequacy of the GB(1) and GB zones to protect the local habitats respectively. 26.The TPB meeting to hear the Further Representations and comments was held on 21 November 2014. The PlanD’s prepared TPB Papers[7] summarizing the Further Representations with its responses were again provided to the TPB before the meeting for its consideration. 27.At the end of the meeting, having considered the Further Representations and the oral representations, and having deliberated on them, the TPB reaffirmed that an incremental approach should be adopted in the designation of the V zone to meet the Small House demand. It further concluded that there was no strong justification or any significant change in planning circumstances to warrant a departure from the TPB’s previous decision made on 4 June 2014. It therefore decided not to amend further the Hoi Ha and Pak Lap draft OZPs exhibited in July 2014 as asked for by the representors, but decided to uphold part of the Further Representations and rezone parts of its V zone at So Lo Pun to AGR and GB use. These are the Draft OZPs that were later submitted to the CEIC for approval. 28.The TPB’s decisions were conveyed to the representors, commenters and further representors through its letters dated 12 December 2014. 29.On 3 February 2015, the CEIC, under section 9(1)(a) of the TPO, approved the three Draft OZPs. On 13 February 2015, the three approved OZPs were exhibited for public inspection under section 9(5) of the TPO. 30.By a letter dated 16 February 2015, the TPB advised the applicant and other representors that the plans, together with schedules of representations, comments thereon and further representations had been submitted to the CEIC for approval in accordance with sections 8(1) and (2) of the TPO. The letter also advised that on 3 February 2015, the CEIC had approved the draft plans under section 9(1)(a) of the TPO (ie, the CEIC Decision), and that the approved plans had been gazetted under section 9(5) of the TPO on 13 February 2015. 31.On 18 February 2015, with the assistance of her legal representatives acting on pro bono basis, the applicant brought the leave application seeking to challenge both the CEIC and TPB Decisions (collectively “the Decisions”). Following the grant of legal aid in early June and pursuant to a series of orders and directions by the court, the Amended Form 86 was filed on 26 October 2015. Leave to apply for judicial review was granted on 20 October 2015. 32.At this hearing, the applicant has further asked for leave to re-amend the Amended Form 86 in the form of the draft Re-Amended Form 86 (“RAF86”) to add further grounds challenging the CEIC Decision. It is the applicant’s position that the additional grounds are added in light of the evidence filed by the CEIC. For the present purposes, I would consider the judicial review on the grounds based on the draft RAF86. I would at the end deal with the question of whether leave should be granted for the re-amendments. C. THE GROUNDS OF JUDICIAL REVIEW 33.The applicant raises a number of grounds of judicial review challenging the Decisions. 34.In this respect, it is noted that it has been said by the Court of Appeal in Kwan Kong Co Ltd v Town Planning Board [1996] 2 HKLRD 363 at 369I - J (per Litton VP, as he then was) that once the CEIC has approved a draft OZP submitted by the TPB, the TPB decision on the draft OZP has been superseded by the CEIC decision, and the draft OZP ceased to have any force and effect. In other words, it may be said that no useful purposes would be served by seeking to challenge the TPB Decision in the present case as that decision concerns only the Draft OZPs, which no longer has any force and effect now, as the Draft OZPs have already been approved by the CEIC. 35.However, the applicant’s grounds raised in challenging the CEIC Decision are predominantly premised on the contentions (which will be elaborated below) that the CEIC Decision is unlawful by reasons of the legal errors or wrongs that are said to have tainted the TPB Decision because:
36.In the premises, I think it is still most convenient and appropriate for me to first consider the grounds raised in this judicial review contending that the TPB Decision is unlawful. 37.I would deal with them in turns. C1. The TPB Decision
38.As mentioned above, the stated planning intention for the V zone is designated areas of land considered suitable for village expansion. Further, the land so zoned is intended for development of Small Houses by indigenous villagers for their needs. 39.Further, the 2010 Policy also states specifically that it is a matter of policy that the enclaves (which are not to be included as country parks) should be eventually subject to conservation protection through OZPs which should strike a balance between conservation and social development needs in determining their proper use. 40.It is common ground that the representors, including the applicant, had made extensive representations in the Representations and the Further Representations before the TPB raising various issues questioning whether, given the planning intention for conservation and meeting development needs, the proposed designation of the V zones and the related GB and AGR zones in the draft OZPs were (a) suitable in light of various adverse environmental and ecological effects that could be caused to the areas and their surrounding habitat; and (b) were validly based on genuine needs of indigenous villagers for Small House Development. 41.Mr Kat SC (together with Mr Remedios) for the applicant submit that in carrying out its duties under sections 3 and 6 of the TPO,[8] the TPB in considering the Draft OZPs and in conducting the public hearings must discharge its statutory duty of inquiries in familiarizing and dealing with these issues raised in the representations, and must plan in accordance with its own stated planning intention. Leading counsel also submits that the TPB is similarly under the Tameside duty to do so. 42.It is the applicant’s case that the TPB failed to make proper inquiry under each of those issues raised in the representations and determine them accordingly in upholding the Draft OZPs and making the TPB Decision. Hence, the TPB had failed its statutory and Tameside duties to make proper inquiry. 43.Further, in light of its failure to properly inquire into and determine these issues, the TPB in deciding to adopt the Draft OZPs and submit them to CEIC for approval acted inconsistently or contrary to its own planning intention as stated in the Explanatory Statements and Notes relevant to each of the draft plans. 44.These contentions require me to look at each of the specific complaints individually. This is what I do now.
45.It is not disputed that the TPB sets out its planning intention in the relevant Explanatory Statement attached to the relevant Draft OZP. For example, in relation to the draft OZP for Hoi Ha, the general planning intention is set out at paragraphs 8.1 and 8.2 as follows:
46.Similar general planning intention is also set out at the Explanatory Statement for the approved Draft OZP for Pak Lap. 47.There was no general planning intention for village expansion by further Small House development at So Lo Pun. Instead, as stated at paragraphs 8.1 and 8.2 of its Explanatory Statement, the general planning intention is “to protect its high conservation and landscape value which complements the overall naturalness and the landscape beauty of the surrounding Plover Cove Country Park” and “to consolidate village so as to avoid undesirable disturbances to the natural environment and overtaxing the limited infrastructure in the Area”. 48.At the same time, the specific planning intention specific to the V zoning has also been set out at the relevant Notes to the approved Draft OZP (the Notes forming part of the plan) for all three enclaves as follows:
49.Moreover, the 2010 Policy also focuses on imposing planning control for country park enclaves “to meet conservation and social development needs”. 50.The applicant submits all the above show that the planning intention for any V zoning of the three enclaves is based on meeting the needs of the indigenous villages to build and develop Small Houses in the existing village. Needs of the indigenous villages must mean justified genuine needs. 51.On the other hand, the PlanD has only based on the 10-year forecast figures provided by the respective village representatives on the potential number of male descendants who might apply for building Small Houses in the existing villages. There is no dispute that these figures are not verified or verifiable, and are based on looking at the relevant genealogies relating to the villages. 52.Under the Draft OZPs’ V zoning for the three enclaves, the TPB planned for an increase in the size of the village population at Hoi Ha from 100 to 430 (an increase of some 30 existing houses to 40), at So Lo Pun from 0 to 460 people in 68 new houses, and at Pak Lap from under 50 to 120 people in each case “mainly attributable to village expansion”. 53.The representors had however emphasized in the Further Representations to the TPB that these figures were highly speculative and could not prove or show the genuine needs of the indigenous villagers. This was particularly so when the number of past or pending existing Small House applications for these areas in the past had been very small or nil.[9] 54.Moreover, the representors also submitted that the demand figures should and could not be treated as proof of the genuine needs of the indigenous villagers for Small Houses. They said this was so because:
55.There is no dispute that the TPB was fully aware of these representations. 56.In its deliberation, the members agreed to adopt an “incremental approach” in designating the V zones after taking into account the village environs, local topography, settlement pattern, Small House demand forecast, areas of ecological importance, site-specific characteristics of individual country park enclaves and other relevant considerations. See paragraph 119 of the Minutes of the TPB’s Meeting held on 21 November 2014 (“the Minutes”). 57.In its reasons for not upholding the representors’ objection to the proposed V zoning in the Draft OZPs, it explains relevantly in the Minutes as follows:
58.In light of the above deliberations and reasons, Mr Kat submits that this part of the TPB decision is tainted with the following errors. 59.First, the TPB failed to make proper inquiry into and determine the very issue raised by the representations: in that there were no proven genuine needs of the indigenous villagers for Small Houses in the existing villages to support the proposed sizes of the V zones. 60.In particular, Mr Kat says from the deliberations and reasons, it can be seen that:
61.In the premises, it is contended that not only had the TPB failed to address the matters (as summarised above) raised concerning the unverified and unverifiable (and thus unjustified) demands for building Small Houses by indigenous villagers to support the proposed size of the “V’ zoning, it had also ignored the representors’ emphasis on the fundamental difference between “genuine needs” and “demands”. 62.Quite to the contrary (says Mr Kat), the TPB had in those reasons appeared to have treated “demands” (which was based simply on those forecast figures) to be the same as “needs” (see for example paragraphs 151(a) and (d), 181(a), (d), (h) and 194(a) and (c) of the Minutes quoted above). Moreover, the TPB wrongly regarded (in contrast to the representors’ submissions on the law, which has not been said to be incorrect) that the indigenous villagers had the “right” to build Small Houses (see paragraph 181(h) of the Minutes quoted above). The TPB had also totally failed to address the representations on the developer’s principal ownership of the land in its reasons for Hoi Ha and Pak Lap and only paid a lip-service to this matter for the reason for So Lo Pun (at paragraph 181(i) as quoted above) without actually dealing with it. 63.Second, Mr Kat further says, in failing to address and determine this core issue on needs, the TPB’s planning decision regarding the V zoning is made not in accordance with the planning intention which is to strike a balance in the planning between meeting the needs of the indigenous villagers and conservation. 64.I agree with Mr Kat that the TPB had failed to properly inquire into the matters raised by the above representations as to whether the proposed V zoning was based on the genuine needs of the indigenous villagers. 65.The question of the needs of the indigenous villagers for Small House development relates to one of the very bases upon which the respective sizes of the V zones were planned. It is also related to the expressed planning intention (both generally and specifically under the V zoning) to meet the needs of the indigenous villagers to further expand the existing villages. In the premises, I accept that the issue concerning whether there are established “needs” of the indigenous villagers to expand the existing villages in the three enclaves to justify the V zones as planned is a valid and proper issue that the TPB in discharge of its statutory duty and Tameside duty should inquire into and properly deal with. 66.The representors had made extensive submissions under this issue as summarized above. In this respect, having looked at the relevant parts of the deliberations and reasons as also summarized and quoted above, I am driven to conclude that it has not been shown that the TPB had properly addressed this issue by dealing with those representations. In not upholding those objections, if they had found those submissions and representations to be invalid or not supported, there is nothing in the deliberation and reasons to explain why so. If they had in fact accepted those representations, there is also nothing in the deliberation and reasons to explain why then the TPB had still decided not to further scale down the size of the V zones in the Draft OZPs after hearing the Further Representations. There is therefore nothing in the evidence to demonstrate that the TPB had properly inquired into those representations and determined them. The TPB had therefore failed to properly discharge its duty of inquiry in making the relevant planning decision. 67.Mr Wong SC (together with Mr Abraham Chan) however submits that the TPB was clearly fully aware of the contentions and submissions under this issue. Mr Wong then emphasizes it must be noted that planning decision is in all aspects a multi-faceted balancing broad-brush judgment call to be made by the TPB. It is not an exact science. Hence, even in properly discharging its duty of inquiry, it is not realistic and practical to require the TPB to explain in detail its views on every aspects of the representations as long as it can be demonstrated that the TPB had taken those representations into account in its overall multi-faceted planning decision in a broad brush manner. This is particularly so as it is trite that the court in judicial review is not to engage in a merits review of the TPB’s decision and to substitute its own view with that of the TPB. 68.Mr Wong further submits that in the present case, conscious of these representations on the unverified nature of the demands figures and the other aspects of the concerns raised by the representors, the TPB did not simply rely on and adopt those forecast figures as the sole basis to plan. Instead it had only used those figures in a broad brush manner for the purpose of considering the plans and made a judgment call on what should be the appropriate size of the V zones after taking into account all relevant factors (including the representations). 69.This is demonstrated (says Mr Wong) by the facts that (a) the TPB had decided to adopt an “incremental approach” in fixing the sizes of the V zones; and (b) in adopting that approach, the TPB had proposed to amend the preliminary plans to scale down significantly the originally proposed V zones (which were then based entirely on those demand forecast figures) after the First Rounds of Hearing. These show that the TPB had properly taken those representations into account in making the broad brush planning decision. It had therefore properly engaged itself with the issue and those representations and decided that on a multi-faceted consideration the present V zones strike the right balance for meeting the development needs of the indigenous villagers. It has properly carried out its duty of inquiry. 70.With respect, I am not persuaded by Mr Wong’s submissions. 71.It is now well established that the Tameside duty of inquiry requires the TPB to ask itself the right question and take reasonable steps to acquaint itself with the relevant information to enable it to answer it correctly. However, it is generally for the TPB in discharge of such duty to decide whether sufficient inquiries have already been made, subject only to a Wednesbury unreasonableness challenge, bearing in mind of the TPB’s consultative role and the statutory scheme of the TPO in assessing that question. See: Hysan Development Co Ltd v Town Planning Board (CACV 232 & 233/2012, 13 November 2014, Lam VP, Chu JA and Au J) (“Hysan (CA)”) at paragraphs 90 - 95. 72.In the present context, the core question raised by the representors’ extensive representations as summarised above is whether, by way of the forecast figures, there were proven genuine needs of the indigenous villagers to build Small Houses within the existing villages in these enclaves. 73.In the premises, in proper discharge of the duty of inquiry, the TPB should ask itself the above question and properly answer it. However, as seen from the reasons above, the TPB had not explained even in a broad brush manner on what basis it had treated the forecast demand figures to provide support for showing the needs to support the V zoning. The TPB had not in any way explained whether and why it had accepted or rejected the validity of those (or any of those) extensive representations made under this question and how they had affected its view on planning the size of the V zones. In light of the lack of any explanations, the court cannot be satisfied that the TPB had asked itself the right question in relation to the relevant contentions raised in the representations, and answered it properly. 74.I therefore accept the applicant’s submissions that in making the TPB Decision, the TPB had failed to carry out its duty of inquiry in relation to this issue. 75.However, the failure to properly inquire into this issue does not mean as a matter of principle that the TPB Decision (insofar as V zoning is concerned) is not made in accordance with the planning intention. It is clear from the deliberation and reasons that the TPB did seek to plan in accordance with what it regarded as the needs of the indigenous villagers.[17] However, it is only that in seeking to do so, as I have concluded above, the TPB had failed to make proper inquiry into the question raised by representations concerning needs.
76.Before the TPB, the representors had made extensive presentations (together with expert and scientific evidence by geologist, ecologist, marine biologist and hydrologist) of the following concerns on various adverse environmental impact on the surrounding nature and ecosystem in relation to the V zones (together with the permitted expansion of Small Houses therein) as planned in the Draft OZPs:
77.The TPB had also heard evidence that the cumulative effect of the permitted amount of further village type development in each draft amended plan would cause adverse impacts on the enclaves themselves and on the landscape, natural character and environment of all the Parks in which they stand and on their infrastructure. 78.It is not at issue that there was no study or “holistic” evaluation of these effects before the TPB.[18] 79.In response, it is the evidence of the Lands Department (“the LandsD”) and the EPD before the TPB that under the Small House grant application system administered by the LandsD, an applicant for Small House needs to engage an Authorized Person to conduct percolation test and submit the test results to the LandsD (who in turn would pass it to the EPD for vetting) to demonstrate that the application site is suitable for installation of STS system pit. A number of site-specific conditions would be taken into account including the percolation test results, proximity of rivers and streams, depth of water table, topography and flooding risks. The design and construction of the on‑site STS system would need to comply with the relevant standards and regulations including that provided in the Hong Kong Planning Standards and Guidelines (“HKPSG”) and the ProPECC PN. If the applicant fails to demonstrate that the site is suitable for installation of the STS system, the application for Small House grant will be rejected unless a suitable site for the STS system or other feasible sewage treatment system can be identified. 80.In relation to the concerns raised in the Further Representations, the TPB dealt with them in its reasons as follows:
81.The TPB was therefore saying that it could suitably zone these areas for village development as in the plans, since (as the evidence of the LandsD and EPD showed) each application for Small House with the LandsD when made would only be approved if it could satisfy the EPD that it could comply with the STS system installation licensing regime and would not have unacceptable adverse impact on the natural environment. The said administrative Small House licensing system thus provided a sufficient control to ensure that the development would not cause unacceptable environmental impacts. 82.Mr Kat submits that the TPB in so deciding was abdicating its duty to make proper inquiry into the question of “suitability” of the land to be so zoned, and to plan in accordance with the planning intention that the land zone V has to be “suitable” for such development. In particular, Mr Kat says the TPB even failed entirely to address the question on the cumulative impact of the environment as presented by the representors. 83.In support of his contentions, Mr Kat says for example, there was a difference in the opinions between the representors’ experts evidence and that of the EPD in relation to whether an increase in the number of Small House at Hoi Ha (on top of the exiting 40 Small Houses) would result in significant adverse impacts on the quality of the water body of the marine park. It was also the EPD officer’s evidence that given an increase on the population in So Lo Pun and Pak Lap “would be contained within acceptable limits”. 84.In light of this conflict of evidence, in proper discharge of its duty of inquiry, the TPB had to resolve the difference by examining the assumptions of the EPD and explain why (if that was the case) it preferred the EPD’s evidence to the representors experts’.[19] The TPB however had, in breach of its duty, failed to do so. 85.Further, Mr Kat draws the court’s attention to the fact that it was the representations that experiences showed enforcement of the WPCO and EPD’s licence conditions was non-existent, or at best, very poor. Even the EPD’s own evidence was that there was “difficulty” in enforcement, and that “not all individual case problems are satisfactorily dealt with”. In light of this enforcement concerns, the TPB could not have properly and logically regarded the Small House application system as a sufficient control to ensure that the development would not cause unacceptable environmental impacts. This also shows that the TPB had not properly and sufficiently inquired into the issues raised. 86.With respect, I am unable to agree. 87.The duty of inquiry must be considered in the proper context that the TPB is tasked to make broad planning decisions. The “suitability” issue is thus whether the land and areas concerned is “suitable” for planning purposes for village development, taking into account the intention to strike a balance between that development needs and conserving the general natural environment of the enclaves. 88.The TPB was obviously conscious of the issue (as raised by the representors’ submissions and presentations) that if the areas concerned were so zoned for village house development with the proposed permitted number of houses and population, there would be significant pollution, flooding and adverse impact on the areas themselves, the surrounding natural habitat, and (insofar as Hoi Ha is concerned) the HHW Marine Park, resulted from the STS system installations and effluents effect of wastes discharge. However, it was satisfied that, for planning purposes, the administrative licensing system for Small House in providing control over septic tanks installation in Small House development would properly address the adverse environmental impact (specifically or in cumulatively) raised by the representors.[20] 89.Thus, the TPB had acquainted itself with the question before it, and determined them by accepting the LandsD’s position. The sufficiency of the inquiry so made and the decision itself in my view are also ones which were clearly reasonably open to the TPB to make:
90.Mr Kat’s reliance on Hysan and Popular Star to support his complaint of the TPB’s failure to resolve the difference between expert opinions and to explain why it had preferred the EPD’s evidence is in my view misplaced. 91.On the facts of each of those two cases, the conflict of the subject “expert” evidence or assumptions made had to be resolved by the relevant decision making body before it could properly determine the relevant issue raised therein. In the present case, the TPB accepted that the Small House application scheme could validly and sufficient address the adverse environmental impacts caused by the STS system installation as identified by the representors. It was therefore not necessary for the TPB to inquire into and resolve the expert evidence on these matters for the purpose of making the planning decision. 92.Mr Kat’s reference to the evidence on difficult enforcement is with respect similarly misplaced. Those difficulties were related to the lack of or the difficulty of enforcement for breaches of the licensing conditions and the regulations provided under the WPCO. This is different from the Small House application system consideration where, if the applicant could not satisfy the LandsD and EPD that the STS system to be installed there would not cause unacceptable adverse environmental impact, the application would not be approved, and no STS system would then be installed. In this respect, it is pertinent to note that the TPB had specifically asked for the Director of Lands’ reassurance that her department would liaise vigilantly with all relevant government departments including the EPD to vet the Small House applications (see footnote 21 above). 93.In the premises, there is no breach of its duty of inquiry by the TPB under these matters in making the TPB Decision. 94.For the same reason, there is no abdication of its duty to make inquiry or to plan in accordance with the planning intention.
95.This complaint relates only to the Hoi Ha Draft OZP. 96.It is said that the maps and plans used by the TPB to decide upon the Draft OZP for Hoi Ha were shown by the representors at the hearing to be inaccurate in a number of material and important aspects. 97.There were extensive oral representations in this respect made by Mr David Newbury,[25] Mrs Nicola Newbery,[26] and Professor Gordon Maxwell,[27] which were aided by PowerPoint presentations. The presentations sought to demonstrate to the TPB that:
98.It is the representors’ position that these material mapping inaccuracies and deficiencies would affect the TPB’s consideration of:
99.Mr Kat submits that the accuracy of the maps and plans must be important for and relevant to the TPB in considering the draft OZPs for the following reasons. 100.First, in order to plan, the planner must possess accurate information in relation to the area the subject of the exercise. Planning and zoning must be done in accordance with reality and the facts of a site’s topography. Moreover, the necessity of accurate topographical information was heightened in the present case by the fact that HHW Marine Park is a gazetted Marine Park, the conservation of which is a primary statutory duty. Hence, accurate maps and plans must be required by:
101.Second, as the TPB recognised, the threat to the HHW Marine Park was (and remains) from Small House STS system and other man-made discharges from the village area zoned to the south of the coastline. The protection of the delicate coastal ecology of the HHW Marine Park from effluent pollution caused by village developments was therefore an objective of paramount importance to the TPB and the representors. 102.Mr Kat therefore emphasizes that there was clearly an issue before the TPB as to the sufficient width of the CPA buffer zone at Hoi Ha and as to what the TPB should intended for the width of that buffer zone. 103.In this respect, the PlanD had described the width of the intended CPA zone to the TPB as being between 25 and 35m,[31] and then between 25 and 40m.[32] However, the oral, visual and photographic evidence put before the TPB by the representors demonstrated that the sea at Hoi Ha Wan, the beach and the coastline are in fact further south and nearer the village than appears on the maps and plans put before the TPB by the PlanD and as shown on the draft amended Hoi Ha OZP put before the TPB for adoption.[33] Then “buffer zone” shown on the draft plan would in turn be considerably narrower and the protection to HHW Marine Park and its beach correspondingly reduced. 104.In the premises, having heard the representations of Mr David Newbery, Mrs Nicola Newbery and Dr Gordon Maxwell, Mr Kat submits it was incumbent upon the TPB to:
105.In relation to the TPB’s disposal of the representations based on the inaccuracy and deficiencies of the maps and plans, it must be noted that similar representations based on the inaccurate mapping and information were made in the First Rounds of Hearing leading to the decision of the TPB on 4 June 2014 to amend the then draft OZPs.[34] The TPB was aware of these presentations in the deliberation. 106.The TPB however did not uphold these representations for the reasons stated at paragraphs 26(h) and (j) of the minutes of meeting on 4 June 2014 as follows:
107.Hence, no amendments were proposed to the then draft OZP for Hoi Ha in the 4 June 2014 decision in this respect. 108.Similar further representations were made again at the hearing on 21 November 2014. However, that hearing was only concerned the proposed amendments to the draft OZP. The TPB therefore noted but treated these representations as irrelevant as they did not relate to any of the amendments in the draft amended plan for Hoi Ha proposed on 4 June 2014. It therefore did not make any decision in relation to these representations. See paragraphs 26(l) and 151(g) of the Minutes. 109.Mr Kat now points out that neither the reasons resolved upon by the TPB nor the approved plans disclose any inquiry into or resolution of this issue. Nor do they suggest or disclose that the TPB had given proper, adequate or fair consideration to the issue. 110.Mr Kat therefore submits that this part of the TPB Decision is also unlawful since:
111.Mr Wong for the TPB however contends otherwise as follows. 112.The court will accord “a great deal of respect and latitude” to the decision-maker as regards its methodology, key assumptions and ultimate preferences for a particular expert view: see Popular Signs Ltd, supra, particularly at paragraphs 34 - 37. 113.Where factual error is suggested (directly or indirectly), the legal position is that, for the court to properly intervene: (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 i.e. plainly wrong or established and unassailable; (d) the applicant must not have been responsible for the mistake; (e) 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 Investment Limited v Chief Executive in Council (HCAL 12/2006, 6 November 2008, A Cheung J) at paragraphs 90 - 99. 114.The applicant’s claims as to the inaccuracy and deficiency of the maps and boundaries used in the draft OZPs and her allegations of inadequacy of inquiry and consideration and irrationality in that regard are however untenable in the light of these legal principles:
115.In this respect, the evidence of Ophelia Wong at paragraphs 42 - 48 of her affidavit referred to by Mr Wong is as follows:
116.The underlined parts of Ophelia Wong’s above evidence is objected to by Mr Kat, on the basis that these are post-justification reasons not discernible from the TPB’s reasons under these issues. 117.Paragraph 18 of Chan Kin Fung’s Affirmation says as follows (footnote omitted):
118.I agree with Mr Kat that, in rejecting these representations based on inaccurate mapping and information, the TPB had failed to make proper inquiry. I will explain why. 119.The TPB’s reasons set out in the 4 June 2014 Minutes (as quoted above) referred to the PlanD’s position (and apparently accepted by the TPB) that the survey maps (which were said to be inaccurate in depicting the coastline and in failing to identify the location of some streams and ponds) were not used to prepare for the draft plan other than as a base map. However, the TPB did not provide any explanations as to, if the survey maps were not used to prepare the plan in zoning the CPA, (a) why it had also rejected the representations on the narrowed width of the “buffer” between the V zone and the coastline as identified in the representations; and (b) how and whether it had taken into account the adverse environmental impact on the HHW Marine Park given the factual existence of the other streams and ponds not shown on the survey maps as also identified by the representors. 120.Without such explanations, the court cannot be satisfied that the TPB had properly inquired into and answered these valid questions raised in the representations. This is particularly so given that there was no finding or conclusion by the TPB to contradict the representations that the survey maps per se were indeed inaccurate or partly inaccurate as identified by the representors.[37] 121.In this respect, I also accept Mr Kat’s objection to the underlined parts of Ms Wong’s explanations set out at paragraphs 44 and 47 of her affidavit. These parts of the “explanations” could not in any way be discerned from the TPB’s above quoted reasons, even read together with the relevant parts of the deliberations and PlanD papers submitted to the TPB. They therefore could not be regarded as mere elucidation of the reasons of the TPB. These parts of the evidence therefore should not be admitted and the court would not refer to them for the present purposes. 122.I therefore agree that the TPB failed to make proper inquiry in relation to the matters stated at paragraph 119 above based on inaccurate information. 123.However, given that there was the reason adopted by the TPB that the plan was not prepared based on the inaccurate survey maps, I do not accept the ground of challenge that it was irrational for them to submit the Draft OZP of Hoi Ha basing on maps that were or might have been inaccurate in relation to material aspects of the proposed zoning.
124.Under this complaint, the applicant says that the TPB in upholding the Draft OZPs had failed to make sufficient inquiry into the cumulative impact on conservation of the various areas of the three enclaves involving technical, aesthetic and policy assessments.[38] 125.Again, extensive representations had been made on these various matters before the TPB both at the First Rounds of Hearing and at the 21 November 2014 hearing.[39] The TPB was fully conscious of these representations, and had taken them into account when making a planning judgment in proposing the amendments which resulted in the Draft OZPs in the decision made on 4 June 2014 and in upholding those plans after hearing the Further Representations at the 21 November 2014 hearing.[40] 126.In the premises, I am not satisfied that there is any substance in this challenge on inadequacy of inquiry:
127.I must also mention here Mr Kat’s submissions that the court should adopt the higher level of anxious scrutiny instead of the standard Wednesbury test in this judicial review since this application concerns the important matter of environmental protection and town planning. Leading counsel cites in aid Society for Protection of the Harbour Ltd v CEIC (No 2) [2004] 2 HKLRD 902 at paragraphs 74 - 79, per Hartmann J (as he then was) and Hysan Development Co Ltd and Others v Town Planning Board (2016) 19 HKCFAR 372 (“Hysan (CFA)”). 128.I do not accept this submission. 129.The two authorities are clearly distinguishable. In Society for the Protection of Harbour (No 2), Hartmann J agreed to adopt an anxious scrutiny in assessing the challenge against the CEIC’s decision because of, as he has pointed out at paragraph 79, the unique legal status of the harbour (being protected specifically by the Protection of the Harbour Ordinance). Hysan (CFA)deals with the specific question of whether the subject TPB decision engaged (and thus interfered) the applicant’s constitutional right to the use of property, and hence the need to adopt a heightened level of scrutiny in reviewing that decision. These authorities do not support the sweeping and general proposition that in a judicial review challenge against decisions concerning environmental protection in the context of town planning, the court should adopt a higher level of scrutiny. I would not therefore adopt a heightened level of scrutiny in the present application.
130.For all the above reasons:
131.Under this ground, the applicant complains that the Draft OZPs demonstrate inconsistent zoning, and thus the decision to uphold them by the TPB should be quashed as it is irrational.[43] 132.In support, Mr Kat says the inconsistencies, as represented before the TPB, are as follows. 133.The TPB failed to zone consistently as between areas with common situations and characteristics and in accordance with its stated intentions for such areas. In particular, the TPB recognised and recorded in the Explanatory Statement for So Lo Pun that the woodlands of So Lo Pun form a continuous stretch of well-established woodlands contiguous with those in the adjoining Plover Cove Country Park,[44] and that the entire area of the plan forms “an integral part of the natural system of natural woodlands in the adjoining Plover Cove Country Park which … should be preserved and protected”.[45] 134.However, although this stated intention for those woodlands was to preserve and protect them and they were integral with the Country Park, the TPB zoned the parts as GB. The TPB’s stated intention for the GB zone in the Explanatory Statement is that such an area is to be a buffer between an area of development and area to be protected and conserved. 135.Representations were made that areas of woodland similarly contiguous and in character with the adjoining Country Parks in Hoi Ha and Pak Lap were properly zoned as CA, the most restrictive and protected zoning, on the draft Hoi Ha and Pak Lap plans. In the premises, on its face, the GB zoning for these woodlands on the So Lo Pun draft plan was inconsistent and illogical and thus irrational in the public law sense, or unreasonable. 136.The TPB had considerable evidence before it of recent deliberate felling of trees and destruction of vegetation by villagers in So Lo Pun[46] but did not zone to protect the enclave and to preserve its woodland so as to forestall such human damage. 137.Further, the TPB’s zoned part of these So Lo Pun woodlands as GB automatically permits agricultural use in which the (further) clearance of vegetation is allowed.[47] The zoning did not therefore “protect” and “preserve” the woodlands as intended in the Explanatory Statement. 138.Representations were also made that similar, unreasoned inconsistencies appear in the zonings of comparable areas as GB(1) in Hoi Ha but only as the lesser protected zone of GB in So Lo Pun,[48] and as to the use of agricultural zoning for such land in Pak Lap.[49] 139.The latter zoning was further inconsistent and illogical as part of the land zoned AGR in Pak Lap included a stream draining into Pak Lap Wan,[50] which the TPB’s express intention in the Explanatory Statement was to “protect and conserve” and which the representations indicated would be at risk from toxic fertiliser run-off if put to agricultural use.[51] 140.Mr Kat therefore submits that each of these inconsistent zonings on the plans was illogical in the public law sense, unreasonable and hence unlawful.[52] 141.As seen above, under this ground, Mr Kat emphasizes that the zoning of GB in So Lo Pun and its woodlands is inconsistent because (a) conservation being the General Planning Intention for the Area; and (b) the identically described woodlands in Hoi Ha and So Lo Pun being zoned as Conservation Area; and to expose a stream in Pak Lap to further risk of toxic pollution by zoning it for agriculture (AGR) contrary to the TPB’s stated intention in the Explanatory Statement being to protect and conserve the Area and that stream at Hoi Ha, and although a similar stream had been zoned GB(1) to effect that same purpose. 142.This ground of inconsistency therefore hinges principally upon the representations that the wooded character of the zoned GB area of So Lo Pun is “identical” to those parts zoned CA or AGR in Hoi Ha and Pak Lap. 143.The TPB was clearly aware of such contentions but it was however conscious of and had accepted the differing characteristics of these areas as presented by the relevant government departments. This can be shown at the deliberation and decision of the TPB as reflected at the following paragraphs of the Minutes:
144.The TPB thus decided to zone these areas differently with different degrees of conservation protection by reference to their different characteristics. See also paragraphs 71 - 73 of Ophelia Wong’s Affidavit (which evidence has not been objected to by Mr Kat) which further sets out the TPB’s consideration of these different characteristics. 145.In this respect, the court appreciates that each of the determined zonings is essentially the result of balancing and accommodation between various factors which may themselves be in conflict or tension. 146.That is an unavoidable feature of most planning judgments. Where the overall balance of factors as between one area and another results in a different zoning as in the present case, I am not satisfied that it can be characterised as “inconsistency” in public law sense. 147.In the premises, I do not accept that there is inconsistency in the said zoning. This ground of challenge therefore fails.
148.Other than the above principal grounds of challenge advanced by Mr Kat at the hearing and through his skeleton, there are other related grounds that are stated in the RAF86 which Mr Kat says the applicant would also rely on. 149.First, the applicant also says the TPB had failed to take into account certain relevant matters in the decision making process. In particular, they were:
150.Conversely, the applicant says the TPB had taken into account the irrelevant matter of the Small House development “rights” of indigenous villagers or their forecasted demands.[55] 151.I agree with Mr Wong that there are also no merits in these complaints. 152.In assessing the applicant’s claims on based relevancy or irrelevancy challenge, the principles summarised by this court in Pagtama v Director of Immigration (HCAL 13, 45 and 56/2014, 12 January 2016, Au J) at paragraphs 194 - 195 and adopted in Chan Ka Lam, supra, apply. In short, absent specific statutory compulsion or prohibition (which is not suggested in this case), the factors that a decision-maker takes account of (or not) is a matter for its discretionary judgment. The court will not interfere absent Wednesbury irrationality. 153.I accept Mr Wong’s submissions that the applicant’s complaints based on relevancy or irrelevance of specific matters falls far short of the legal threshold. 154.The Affidavit of Sun Wai Choi of the EPD[56] explains the relevant regime under the WPCO in some detail and shows the applicant’s reliance on the WPCO to be entirely untenable on the facts.[57] 155.Shortly put, the WPCO has no application to the instant case, not least because there is nothing to suggest the introduction of “new effluent” in the circumstances of the relevant (Hoi Ha) draft OZP. 156.In relation to each application to build a Small House, the applicant would have to satisfy the requirement of having a proper STS system in compliance with Government requirements. See Affidavit of Ophelia Wong at paragraphs 38 and 59. 157.As mentioned above, this is a fact known to the TPB. The TPB was satisfied as to the sufficiency of the Government requirements in this aspect as a safeguard to any possible pollution effect of the construction of Small Houses in the proposed V zones as an answer to the concerns expressed by the representors (including the expert evidence). The reference by the TPB to “sufficient control” in its reasons must be read in the context of the representations made to it regarding such requirements presented to the TPB, and the implicit acceptance of the reasons submitted by the Government experts on this aspect. The applicant’s contentions amount to inviting this court to go through the detailed evidence and in effect to come to a view of its own de novo, which must be rejected. 158.Insofar as the Small House development rights is concerned, it must be reasonable for the TPB for planning purposes to start off by looking at the right of the indigenous villagers to apply for building Small House on the side of the scale of development needs. Put it another way, it is only because indigenous villagers have a right to apply for building Small House under the Small House Policy (subject to the availability of relevant piece of land) that potentially there is a need for development. The same applies to the forecasted demands based on this potential right to apply for building Small House. It thus cannot be said to be wholly irrational or Wednesbury unreasonable for the TPB to regard that as a relevant factor to be taken into account. 159.What the applicant’s real complaint is, after taking into account the potential demands, in making the planning judgment to strike a balance, the TPB (as I have concluded above) had failed to properly inquire into the representors’ complaints that the forecasted demand figures cannot be simply adopted to find the justified needs (as opposed to the theoretical potential demands) for development by indigenous villagers. This however does not then render the consideration of the villagers’ right to apply for Small House in the above context as irrational. 160.The applicant also argues that the TPB failed to take into account landownership right (in the sense that a lot of the lands in the proposed V zones are owned by developers) in its planning decisions. 161.In this respect, the respondents’ case as submitted by Mr Wong is this. 162.There is simply nothing indicating that the TPB misunderstood or irrationally considered the significance of any land ownership and rights in respect of village development in the context of this case. The mere fact that some land in the proposed V zones might be owned by developers is neither here nor there: as the TPB considered, ownership could change and it could not proceed on the basis that the Small House Policy would be abused: if anything it ought to plan in tandem with such the said Policy. 163.In my view, given the way the TPB considered the issue of land ownership as Mr Wong has submitted, the real complaint is that the TPB had failed to properly inquire into it by failing to understand the representors’ case under this. As I mentioned above, the representors’ case was the fact that most of the lands were owned by developers showed that there was no extant sufficient proof of genuine needs for development by and for the indigenous villagers. On this, I have already accepted the applicant’s ground of challenge that the TPB had failed to make proper inquiry into this issue. The complaint of failing to take into account a relevant matter for consideration is neither here nor there. 164.Second, the applicant also says the TPB and the CEIC had failed to take into account the 2010 Policy. In this respect, the applicant says the 2010 Policy requires the TPB to plan the three enclaves by striking a balance between conservation and development needs. However, by reason of all the complaints the applicant has advanced above, she says the TPB had not planned by looking at the justified genuine needs of the indigenous villagers for Small House and by finding the environmentally and ecologically suitable land for such zoning. 165.For the reasons set out at paragraph 75 above, I would similarly reject this complaint. The TPB did seek to plan by striking a balance between conservation and development needs. The fact that, as I have concluded above, it had in the process failed to make proper inquiry into certain matters raised by the representations when seeking to strike the said balance does not mean that it did not seek to plan in accordance with that. 166.Finally, the applicant also says the TPB Decision had breached her legitimate expectation that they would follow the 2010 Policy in planning the concerned areas in the three enclaves. The 2010 Policy adds nothing further to the planning intention argument. Thus, for the same above reasons, I would reject this ground. 167.The applicant also says she had a legitimate expectation that the TPB Decision also breached her legitimate expectation that the planning decision on the Draft OZPs should conform with Government’s commitment to her obligations under the Convention on Biological Diversity (“the Convention”), which was extended to Hong Kong on 9 May 2011. Article 8(e) of the Convention specifically deals with places such as the enclaves. It commits the promotion of “environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas.” It is the applicant’s case that the Decisions breached this legitimate expectation as the OZPs for the three enclaves are not planned to promote the purpose of conservation of the environment with sustainable development for all the above grounds she has advanced in this judicial review. 168.In my view, the applicant’s case of legitimate expectation based on the Convention is in substance the same as her case based on the 2010 Policy. For the same reasons, I would also reject this ground. C2. CEIC Decision[58] 169.The applicant’s principal challenge against the CEIC Decision is that the decision to approve the Draft OZPs is unlawful as it is tainted with the same wrongs of the TPB Decision. 170.Mr Wong however submits that, as said in the Kwan Kwong, the CEIC in exercising his power under section 9 of the TPO to approve the Draft OZPs is making his own independent planning decision based on the materials provided to him as set out at section 8(1A) of the TPO[59] and with the assistance and advices of other relevant Government officials.[60] 171.Section 8(1A) provides as follows:
172.In the premises, even if the TPB did in fact commit any errors or wrongs recognised in public law in upholding the Draft OZPs, it cannot be said that the same errors or wrongs have been “incorporated” into the CEIC’s own independent decision, which was exercised after considering the materials placed before him. Therefore, even if the applicant can demonstrate that the TPB had committed any errors or wrongs in upholding the Draft OZPs, by that alone, she cannot succeed in challenging the CEIC Decision, unless and until she could also show positively that the CEIC in his decision making process had also made the same or other errors or wrong. 173.Further, says Mr Wong, the mere fact that the CEIC has not provided reasons for the decision should not by itself support the contentions that the same wrongs and errors committed by the TPB in upholding the Draft OZPs must have tainted the CEIC Decision. This is so as it is well established that generally the CEIC is not required to give reasons for his decision unless the decision is aberrant or obviously erroneous on its face. See: Lister Assets Ltd v The Chief Executive in Council (CACV 172/2012, 25 April 2013, Fok, Barma JJA and McWalters J) at paragraph 21. 174.This is particularly so as, Mr Wong further submits, section 9(2) of the TPO has expressly provided that the CEIC could approve the draft plan submitted to him by the TPB even though that is non-compliance with the requirements under the TPO. 175.In the premises, Mr Wong says there is nothing in the present case that could show that the CEIC had made the same errors or wrong as committed by the TPB in making the CEIC Decision. 176.With respect to Mr Wong, I am unable to agree. 177.It is correct to say that, in approving the Draft OZPs, the CEIC is making his own independent planning decision by reference to all the materials presented before him. It is also correct to say that the CEIC is generally not required to give reasons for his decision. 178.However, when it can now be demonstrated that the Draft OZPs submitted to him by the TPB for consideration and approval were tainted with the wrongs and errors as the court has found above, the court has to be satisfied with evidence that the same errors have in fact been corrected in or have not affected the CEIC decision making process. How and whether that can be shown must be dependent on the circumstances and the nature and types of the errors that tainted the draft plans in the first place. Cf: Smart Gain, supra, at paragraphs 117 - 127. 179.In the present case, I have found above that the TPB had not properly inquired into the issues and representations made relating to (a) the lack of established genuine needs for development by indigenous villagers for all the Draft OZPs; and (b) the planning concerns identified in the representations on inaccurate and deficient maps and plans regarding the CPA zoning of the Hoi Ha Draft OZP. As such, the Draft OZPs were thus made and upheld without proper inquiries having been made on these valid and legitimate matters relating to proper planning. 180.In these circumstances, as observed in Smart Gain at paragraphs 124 and 125, given that the CEIC has not provided any reasons in approving the same Draft OZPs, there can only be two possibilities, even though the CEIC was provided with the schedules and summarises of all the representations and with the decisions of the TPB in making the CEIC Decision. 181.First, the CEIC was not alive to the TPB’s failure to make proper inquiry into these relevant issues and simply approved the draft OZPs on the same basis as the TPB. In that case, the decision must be similarly tainted with the errors and be disturbed. 182.Second, and alternatively, the CEIC had in fact considered the representations on these issues on his own but for some reasons of his own decided not to accept those representations and approve the same Draft OZPs. This would constitute special circumstances requiring the CEIC to provide reasons for his decision to approve the Draft OZPs despite the errors committed by the TPB. This is so because, unless reasons are supplied to explain the decision to approve, it must appear aberrant given the errors committed by the TPB which tainted the very Draft OZPs. In the present case, however, no reasons have been provided for the CEIC Decision. The decision must therefore be also disturbed. 183.Mr Wong’s reliance on section 9(2) does not assist him in the present case. As observed by Hartmann J in Society for the Protection of the Harbour (No 2), at paragraph 58, section 9(2) only relates to non-compliance with procedural requirements provided under the TPO. This therefore has nothing to do with the TPB’s errors which have tainted the Draft OZPs in the present case. 184.For the above reasons, I am satisfied that the CEIC Decision is either tainted with the same errors of the TPB Decision, or alternatively is unlawful for want of reasons in the particular circumstances of the present case. 185.Finally, as I mentioned above, the applicant has sought to add additional grounds to challenge the CEIC Decision by way of re-amendments to the Amended Form 86. These proposed grounds are set out at paragraphs 58A - C, 61A and 62 of the RAF86. 186.These amendments are triggered, says the applicant, by the Affirmation of Ji Sang Jerry filed for the CEIC, where she deposed at paragraph 5 that, among others, Summary of Representations, Comments, and Responses/Decisions of the TPB with Proposals of Representors and Summary of Further Representations, Responses and Decisions of the TPB (with Proposals of Further Representations) were provided to the CEIC for his making of the CEIC Decision. 187.Mr Kat’s case under these amendments is that the CEIC Decision is also tainted with procedural unfairness and impropriety as:
188.I am not persuaded. 189.First, as a matter of proper construction, to give the provision meaningful purposes, the schedules referred to by section 8(1A) must include summaries of the presentations and responses made to those representations heard by the TPB. These schedules are intended to be provided to the CEIC to facilitate his consideration of the draft plans submitted to him by the TPB to make his own independent planning decision. It does not provide any usefulness to the CEIC if these schedules are only intended to be limited to mere schedules listing out as indexes the representations and responses without any substance. 190.In any event, section 8(1A) does not say the CEIC can only take into account materials set out therein. In exercising his power to make the substantive planning decision, he must be entitled to take into account other materials which he considers to be relevant. This is particular so as, as observed by Hartmann J in Society for the Protection of Harbour (No 2) at paragraphs 64 - 65, the CEIC would be assisted in making the decision by other public officers who are best positioned to advise him. It is therefore open and reasonable for him to look at the responses to the representations. 191.Second, I cannot draw the adverse inference of unfair summaries as suggested by Mr Kat. If there are proper bases for the applicant to allege unfairness of the summaries in the first place, it is open to him to make a discovery application to the court for disclosure of these summaries. This is particularly so as the CEIC filed the Affirmation of Ji Sang Jerry on 3 February 2016 deposing that such summaries were provided to the CEIC for him to make the CEIC Decision. There was still adequate time before the substantive hearing for the applicant to make the discovery application, if justified. In the premises, I am not prepared to draw any inference that the summaries were unfair ones. 192.There are therefore no merits in this ground. I also do not think it is even reasonably arguable for the same reasons. I would not grant leave for the applicant to so re-amend. D. OBJECTION TO EVIDENCE 193.Finally, Mr Kat objects to certain parts of the evidence of Ms Ophelia Wong’s Affidavit (in particular paragraphs 44 (save for the first sentence), 47 (save for the first sentence and the sentence which reads “The OZPs were not prepared based on the survey maps”, 55, 60, 62, 66 and 67), Mr Sun Wai Choi’s Affidavit (paragraph 18), Mr Chan Kin Fung’s Affirmation (in particular paragraphs 23, the last two sentences of 25, 28, the penultimate sentence in paragraph 29, paragraph 30, the penultimate sentence of paragraph 31, paragraph 41 and the last sentence of paragraph 43). The principal basis of the objection is that this evidence is not to elucidate but seeks to add reasons to the TPB Decision. This is not permitted: Smart Gain, paragraph 5. 194.Mr Kat also objects to paragraph 8 of Ms Ji Sang Jerry’s 1st Affirmation where she deposes that the members of Executive Committee “carefully considered” the plans and papers submitted to the CEIC without stating the source of her knowledge. 195.I do not propose to go through each of these objected paragraphs to determine if they should be admitted. Suffice to say there is some force in the objections. But as shown above, I have not referred to or relied on any of these objected paragraphs for the purpose of this judgment. It is therefore not necessary for me to rule on their admissibility. However, if necessary, I would be inclined to refuse to admit them. E. OUTCOME 196.The applicant is successful in this judicial review in relation to the grounds set out at paragraphs 64, 74, 119 and 120 above. 197.Considering the circumstances of the present case, and the nature and extent of the representations made concerning the issues (“the Issues”) identified at paragraph 130 above, in my view, the most appropriate order and relief is to grant an order of certiorari to bring up and quash the TPB Decision and the CEIC Decision, with a direction that the Draft OZPs be remitted to the TPB for reconsideration of the Issues. 198.I would also make an order nisi that costs of this application be to the applicant, to be taxed if not agreed, with certificate for two counsel. The applicant’s own costs shall also be taxed in accordance with legal aid regulations. 199.Lastly, I thank counsel for their assistance in this matter.
Mr Nigel Kat SC, leading Mr Jose 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 1st and 2nd respondents [1] See paragraphs 122 and 123 of the 2010 Policy Address. [2] Hoi Ha OZP – 10,824 valid representations and 3,671 valid comments were received; So Lo Pun OZP – 10,748 valid representations and 3,673 valid comments were received; Pak Lap OZP – 10,665 valid representations and 3,665 valid comments were received. Many of the representations raised objections to all three OZPs. [3] See the TPB minutes dated 28 April, 8 May, 12 May, 19 May, 20 May and 4 June 2014. [4] TPB Papers No 9644, 9645 and 9646. [5] The GB(1) zone, comprising the western part of the Hoi Ha area which consists of the relatively undisturbed woodland and a stream, is intended to better protect the existing natural environment including the woodland, wetland, stream and Hoi Ha Wan. Whilst redevelopment of existing New Territories Exempted House and domestic structures may be permitted through the planning application system, no new Small Houses are permitted in this zone. The TPB decided not to accept the PlanD’s recommendation to rezone a piece of Government land to the east of the village cluster of Hoi Ha (Item C) from “CA” to GB. [6] Under the planning approach for Tai Long Wan, the size of the “V” zone had been delineated to cover only the existing village settlement, and planning permission from the TPB was required for Small House and for demolition of or any addition, alteration and/or modification to or redevelopment of any existing building within “V”zones. This approach was adopted based on the consideration that the village settlement in Tai Long Wan was of high heritage value as a group. [7] Nos 9786, 9787 and 9788. [8] In particular, section 3(2) provides that “In the course of preparation of the plans …, the [TPB] shall make such inquiries and arrangements … as it may consider necessary for the preparation of such drafts.” [9] Those “forecasts” were retailed by the Director of Lands who, at the meeting on 4 June 2014, also told the TPB that Small House Demand in Hoi Ha Village was [in fact] low. The Director of Lands told the TPB that, during the past three years, no Small House grant applications had been approved in Hoi Ha Village and that only 10 applications were under processing. See: Minutes of 4 June 2014 meeting (CKL-15) at paragraph 9 [E9/2102]. [10] See Re Thomas Lai [2014] 6 HKC 1 and Madam Chung Mui Tek & Others v Hang Tak Buddhist Hall Association Ltd & Another [2001] 2 HKLRD 471 at paragraphs 5 - 6. [11] See for example the 21 November 2014 Minutes at paragraphs 31(a); M70(e), (f). [12] See for example the 21 November 2014 Minutes at paragraphs 31(a), M62(h) for Hoi Ha. The Minutes of 8 May 2014 at paragraph 15(d), 16(b) and the Minutes of 4 June 2014 at paragraphs 30, 35 and 37 for So Lo Pun; and paragraph 54 for Pak Lap. [13] Hoi Ha see for example the 21 November 2014 Minutes at pp20 - 25; the 4 June 2014 Minutes at paragraph 11. Pak Lap see for example the19 May 2014 Minutes at paragraph 74. See also 12 May 2014 Minutes at paragraph 11(b), 12(g) and 27(b), and 8 May 2014 Minutes at paragraph 28(d). [14] See paragraph 10 of the Minutes of the Meeting on 20 May 2014, paragraphs 70(e), (f) and 119 of the Minutes. [15] See paragraph 119 of the Minutes where, in deliberation, Members noted that the indigenous villager’s right to build Small Houses should be respected. See also the Minutes of the meeting on 20 May 2014 at paragraph 70 where, in deliberation, Members noted that representations had been made that the Tai Long Sai Wan judicial review (Thomas Lai) should be taken into account but Members considered that the Thomas Lai judgment should not be directly applicable to the draft OZPs for the three enclaves. [16] 4 June 2014 Minutes at paragraph 3(a). [17] See also Mr Kat’s fair acceptance at paragraph 75 of his skeleton that, from the reasons, the TPB understood its duty to plan or determine the proper uses for V zones in seeking to meet the needs of the villagers for Small House development primarily intended for development of Small Houses by indigenous villagers. [18] The Minutes at E10/47/ 2281, 2294, 2311. [19] In support, Mr Kat relies on Hysan, supra, paragraphs 100 - 103; Popular Signs v Radiation Board (HCAL 53/2008, 12 January 2010, A Cheung J) at paragraph 77. [20] See: paragraphs 120 - 121 and 131 - 133 of the Minutes and members’ deliberations under these matters. See similarly also paragraphs 26 - 27 of the Minutes of the Meeting held on 4 June 2014 (in relation to the decision to amend the preliminary draft OZPs to the Draft Amended OZPs) on members’ deliberation on the question of cumulative adverse impact on the environment. [21] For example, members in the deliberations had emphasized to the Director of Lands and the representatives from EPD that they should ensure compliance by small house applicants in the applications with the relevant guidelines and requirements on the STS system, carefully examine the feasibility and acceptability of any alternative sewage treatment proposals. The Director of Lands in response had also reiterated that the LandsD in processing the small house applications would diligently work with the concerned government departments to ensure that all relevant requirements, including arrangement of sewage treatment and disposal, had been satisfactorily complied with. See: paragraphs 131 - 133 of the Minutes. [22] See for example, paragraph 9.1.5 of the Hoi Ha Explanatory Statement. [23] See paragraphs 33 - 42 of the Minutes of 20 May 2014 [BE9/39/1768-2134]. [24] See RAF86, paragraphs 47N - T, 47Z and 85 - 87. [25] See: paragraphs 42(b) - (f), (j) - (l) and (u) of the Minutes of the meeting on 19 May 2014, and paragraphs 34 of the Minutes. [26] See paragraphs 30(d) of the Minutes of the meeting on 19 May 2014, and paragraph 62(f) and (i)(iii) of the Minutes. [27] See paragraph 35 of the Minutes. [28] Paragraph 9.6.2 of the Explanatory Statement of the Approved Hoi Ha OZP. [29] See paragraphs 25F - 25G of the RAF86. [30] In particular paragraph 5.1, 5.2.8, 5.3.1 - 5.3.2; and 5.3.14 - 5.3.15. [31] Minutes of 28 April 2014 [BE9/TAB 39/p1805] at (iv). [32] Minutes of 19 May 2014 at paragraph 15 [BE9/TAB 39/p2013]. [33] [BE10/TAB 47/pp2280 - 2281]; [BE10/TAB 48/pp2381 - 2385]; and [BE8/TAB 38/pp1743 - 1748]. [34] See for example, paragraph 42(a) - (d) of the Minutes of the Meeting on 19 May 2014 on Mr David Newbery’s representations. [35] See: RAF86 at paragraphs 82, 85 and 87; Opening at paragraph 130. [36] See: “Consideration of Representations and Comments in Respect of Draft Hoi Ha Outline Zoning Plan” (TPB Paper No 9644 for 28 April 2014) (exhibit “CKL-29” [BE8/35]) at paragraphs 2.6(t), 5.34(a) - (d), 7.3(h) - (i); TPB Minutes for 28 April 2014 at paragraphs 9(f)(xx), (aa)(xxiii) ‑ (xxiv), (bb)(iii) - (iv) [BE9/39/1788, 1803, 1805]; TPB Minutes for 19 May 2014 at paragraphs 15, 65 - 67 [BE9/39/2069]; TPB Minutes for 4 June 2014 at paragraphs 20(b) and (e), 26(h) - (i) and (k) [BE9/39/2106 - 2107, 2111-2112]. [37] See for example paragraph 47 of Ophelia Wong’s Affidavit in saying that she did not propose to argue whether the survey maps are “completely accurate or not from a strict survey perspective”. [38] See RAF86, paragraphs 100 - 107. [39] See: “Draft So Lo Pun Outline Zoning Plan: Further Consideration of a New Plan” (TPB Paper No 9423 for 9 August 2013) (exhibit “WYSO-2” [BE4/29]) at paragraphs 3.2(g), 4.1(d); “Consideration of Representations and Comments in Respect of Draft Hoi Ha Outline Zoning Plan” (TPB Paper No 9644 for 28 April 2014) (exhibit “CKL-29” [BE8/35]) at paragraphs 2.6(n) - (o), 5.31 - 5.32; “Consideration of Representations and Comments in Respect of Draft So Lo Pun Outline Zoning Plan” (TPB Paper No 9645 for 28 April 2014) (exhibit “CKL-30” [BE8/36]) at paragraphs 2.4(j) - (k), 5.12(l) - (m), 7.1(g); “Consideration of Representations and Comments in Respect of Draft Pak Lap Outline Zoning Plan” (TPB Paper No 9646 for 28 April 2014) (exhibit “CKL-31” [BE8/37]) at paragraphs 2.5(n) - (o), 5.14(k) ‑ (l); “Considerations of Further Representations on Proposed Amendments to the Draft Hoi Ha Outline Zoning Plan” (TPB Paper No 9786 for 21 November 2014) (exhibit “CKL-19” [BE10/44]) at paragraphs 2.2(d), 3.15, 5.2(e); “Considerations of Further Representations on Proposed Amendments to the Draft So Lo Pun Outline Zoning Plan” (TPB Paper No 9787 for 21 November 2014) (exhibit “CKL-20” [BE10/45]) at paragraphs 2.2(d), 3.15, 5.2(d); “Considerations of Further Representations on Proposed Amendments to the Draft Pak Lap Outline Zoning Plan” (TPB Paper No 9788 for 21 November 2014) (exhibit “CKL-21” [BE10/45]) at paragraphs 2.2(d), 3.14, 5.2(d). [40] TPB Minutes for 28 April 2014 at paragraphs 9(f)(xiv) - (xv), (aa)(xv) - (xvi), 10(d)(x) - (xi), (x)(xi) - (xii), 11(e)(xiv) - (xv), (w)(x) - (xi) [BE9/39/1786-1787, 1800-1801, 1810, 1822, 1833, 1842-1843]; TPB Minutes for 8 May 2014 at paragraph 56 [BE9/39/1951]; TPB Minutes for 20 May 2014 at paragraphs 26 - 27, 39, 44 [BE9/39/2073, 2087, 2089]; TPB Minutes for 21 November 2014 at paragraphs 121, 151(e), 181(e), 194(d) [BE10/47/2349-2350, 2358, 2368, 2373]. [41] See the respective Explanatory Statements at paragraph 8 for Hoi Ha, So Lo Pun and Pak Lap. [42] See RAF86 at paragraph 118. [43] See International Trader Ltd v Town Planning Appeal Board [2009] 3 HKLRD 339 at paragraph 70; R (Chisnell) v London Borough of Richmond Upon Thames [2005] EWHC 134 (Admin) at paragraphs 19 - 20. [44] So Lo Pun Plan Explanatory Statement at paragraph 5.3. [45] So Lo Pun Plan Explanatory Statement at paragraph 8.1. [46] See the Minutes at paragraphs 37(d) and 81. [47] See the Minutes at paragraph M21(b). [48] The Minutes, at paragraph 32(d). [49] The Minutes, at paragraph M32(d). [50] The 4 June 2014 Minutes at paragraph 51. [51] The Minutes at paragraphs 32(d) and 34(e). [52] Capital Rich v Town Planning Board [2007] 2 HKLRD 155 at paragraph 93; R(Khatun) v LB Newham [2015] QB 37, at paragraph 27. [53] See RAF86 at paragraph 73. [54] See RAF86 at paragraph 94(4). [55] See RAF86, paragraphs 93, 94(3) - (4) and 97 - 98. [56] I would however not refer to paragraph 18 of this Affidavit for the reasons set out at paragraphs 193 ‑ 195 below. [57] See also Ophelia Wong’s Affidavit at paragraphs 40 - 41. [58] Mr Wong submits that the court should defer dealing with the challenge against the CEIC Decision after it has handed down its judgment concerning the TPB Decision. I do not find it appropriate or necessary to do so. Given that full arguments have been canvassed, the court is in a position to also decide on this challenge. [59] See also: Society for the Protection of Harbour (No 2), supra, at paragraphs 60 - 64. [60] See Society for the Protection of Harbour (No 2) at paragraphs 64 - 65. | ||||||||||||||||||||||||
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