Law Wai Fong v. Town Planning Board
Read the full judgment text of HCAL 236/2015 on BabelCite. This High Court CFI judgment was delivered on 8 June 2018.
1. First, the proposed grounds of judicial review are not reasonably arguable for the following reasons.
Cites 2 cases
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HCAL236/2015 [2018] HKCFI 1271 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 236 of 2015 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by the Honourable Mr Justice Au: 1. Leave to apply for judicial review refused. 2. Costs of the leave application be to the Putative Respondent, to be taxed if not agreed. The Applicant’s own costs be taxed in accordance with legal aid regulations. Observations for the Applicant: Hon Au J’s reasons for refusing leave are as follows. 1.First, the proposed grounds of judicial review are not reasonably arguable for the following reasons. 2.In the proposed judicial review, the applicant (Ms Law) seeks to challenge the Town Planning Board’s decision (“the Decision”) in approving four applications (“the s.16 Applications”) made under s.16 of the Town Planning Ordinance (Cap 131) (“the TPO”) to build four separate small houses (under the Small House Policy). The four sites identified in the s.16 Applications partly fall on the Green Belt zone and hence the need to make the s.16 Applications. 3.Fundamental to the proposed challenge is the allegation that the four indigenous villagers who respectively made the s.16 Applications were suspected of having committed fraud in their respective underlying Small House applications (“the Four Small House Applications”) submitted under the Small House Policy, as they were only used as fronts by private developers in a scheme to build the four small houses. Ms Law says the said suspected criminality of the Four Small House Applications were raised and brought to the attention of the Town Planning Board (“the TPB”) by Designing Hong Kong Ltd (“DHK”) (an environmentalist) in opposing the s.16 Applications in its letter dated 14 August 2015.[1] DHK’s basis for alleging the suspected criminality of the Four Small House Applications is stated in the letter as follows:
4.However, Ms Law says the TPB had simply failed to take this into account and make the necessary enquiries before making the Decision. 5.Premised on the above, Mr Ng for Ms Law advances five formulated proposed grounds of judicial review, namely that, in failing to take into account the suspected criminality of the underlying four Small House applications, (1) the TPB abused its discretion in making the Decision; (2) the Decision is irrational or unlawful; (3) the Decision frustrated Ms Law’s legitimate expectation; (4) there is a breach of natural justice in the Decision making process; and (5) the Decision fails to satisfy the proportionality test. 6.Mr Ng accepts that all these proposed grounds of judicial review are premised upon the principal proposition that the TPB has a duty in law (whether under s.3 of the TPO or common law) to consider and make the necessary enquiries in relation to the allegation of the suspected criminality of the underlying Four Small House Applications before approving the s.16 Applications. Counsel fairly and rightly accepts that if this fundamental proposition is unarguable, all the proposed grounds of judicial review must also fail. 7.In my view, this fundamental proposition is clearly unarguable for the following reasons. 8.S.3(2) of the TPO provides that the TPB shall “make such inquiries and arrangements… as it may consider necessary for the preparation of the draft plans” provided under s.3(1). 9.S.3(1) provides that the TPB shall undertake the systematic preparation of draft plans with a view to “the promotion of the health, safety, convenience and general welfare of the community”. 10.Furthermore, the long title of the TPO provides that the objective of the TPO is “[t]o promote the health, safety, convenience and general welfare of the community by making provision for the systemic preparation and approval of plans for the lay-out of areas of Hong Kong as well as for the types of building suitable for erections therein and for the preparation and approval of plans for areas within which permission is required for development”. 11.Read objectively these provisions with the long title, it is clear that the statutory function of the TPB is to advise and prepare draft plans which for planning purposes would promote “the health, safety, convenience and general welfare of the community” of the zone under planning. As such it is plain that s.3(2) only requires the TPB to make enquiries with such matters which are necessary for and relevant to planning considerations. In my view, allegations of suspected criminality of specific underlying Small House applications is obviously not a planning matter. The TPB has no duty under s.3 to make enquiries with any representations made based on such allegations. 12.It therefore could not be the objective intention of s.3(2) of the TPO to require the TPB to make enquiries with matters raised by representations in the consultation which are not related to planning considerations. This would apply equally to the consideration of a s.16 application. 13.Further, any common law duty to make enquiry, including the Tameside duty, imposed on the TPB is only to require it to engage and make proper enquiry with issues and questions raised which are relevant to the planning functions it is tasked with. Hence, for the same reasons I have explained above, there cannot be any common law duty imposed on the TPB to make enquiry with allegations of suspected criminality of the underlying Four Small House Applications. This is particularly so since, as pointed out below at paragraph 19, the TPB has nothing to do with the approval or disapproval of a Small House application and it is not necessary to have a valid or approved Small House application before an applicant can make a s.16 application with the TPB. 14.In this respect, Mr Ng submits that there must be a common law duty that a Government department or branch cannot lend its weight to frauds or criminal activities. Counsel says it cannot turn a blind eye when faced with a real possibility of criminality in approving planning permission. In support, Mr Ng cites in aid Lazarus Estates Ltd v Beasley [1956] 1 QB 702, where Denning LJ said at page 712 that:
15.Mr Ng therefore says, a fortiori, as a statutory body, in making the Decision, the TPB cannot simply ignore the possibility of the Four Small House Applications having been tainted with criminality. 16.With respect, there is nothing in this submission:
17.Finally, Mr Ng also submits that in exercising its discretion under s.16 of the TPO, as a matter of relevance, the TPB should take into account the suspected criminality representation in considering whether to approve the s16 Applications. It however did not do so. 18.This is similarly unarguable. It is well established that, unless a matter is prescribed by statute or by law to be taken into account by the decision maker (which is not the case here), the decision maker in deciding not to take that matter into account is only subject to Wednesbury challenge in a judicial review.[3] 19.For the reasons I have explained above, the alleged suspected criminality of the underlying Four Small House Applications is not a relevant planning consideration. In the premises, it obviously cannot be said to be Wednesbury unreasonable for the TPB not to take it into account when making the Decision. This is particularly so in light of the following observations:
20.For all the above reasons, I reject Mr Ng’s contentions that the TPB has a duty in law to enquire with or take into account the allegation of the suspected criminality of the underlying Four Small House Applications in making the Decision. Once this fundamental proposition is rejected, as rightly accepted by Mr Ng, all the proposed grounds of judicial review are similarly not reasonably arguable and must fall away. 21.I therefore would refuse to grant leave for the reason that the intended judicial review is not reasonably arguable. 22.Second, I would also reject the leave application on the ground that Ms Law lacks the necessary sufficient interest in bringing the judicial review. My reasons are these. 23.Order 53, rule 3(7) of the Rules of the High Court provides that an applicant for leave must have “sufficient interest in the matter to which the application relates”. This is a jurisdictional requirement essential to prevent abuse of judicial review. 24.Lam VP in Re Wong Chi Kin (CACV 80/2014, 26 September 2014, Lam VP, Cheung and Yuen JJA) has further explained at paragraph 11 as to what may or may not amount to the requisite sufficient interest as follows:
25.Whether Ms Law has the necessary “sufficient interest” in bringing the proposed judicial review challenge against the Decision must be examined, among others, in the very context of the proposed grounds of challenge sought to be raised by her. 26.In this respect, as summarized above, all these grounds of challenge are premised on the complaint that the TPB had failed to take into account and make proper enquiry with DHK’s representation that the underlying Four Small House Applications were suspected of being tainted with criminality. However, Ms Law herself had never made any representation to the TPB based on this allegation of suspected criminality. Indeed, Ms Law does not live in the village concerned. She only comes back from time to time to visit her family, who still lives there. She and her family members (together with others from the village) had through a letter to the TPB made certain representations to oppose the s.16 Applications. Those representations however were only concerned with objection based on the purported adverse environmental impacts on the village if the applications were approved (which representations the TPB had taken into account in making the Decision). Hence, Ms Law herself had never raised any objection based on the allegations of suspected criminality of the Four Small House applications. 27.Once considered in the above context, it is clear to me that Ms Law does not have any interest to bring the judicial review based on the proposed grounds of complaint which have nothing to do with her. It is also pertinent to note that there also exists DHK which is an obvious challenger having a clearly much greater and direct interest in seeking to challenge the Decision based on these proposed grounds. In the premises, Ms Law is in my view a busybody in seeking to raise the proposed grounds as the basis to challenge the Decision. 28.I will therefore also refuse to grant leave on the basis that Ms Law lacks the necessary sufficient interest to bring the intended judicial review. Costs 29.Ms Lam for the TPB has asked for costs of the leave application if it is dismissed. 30.It is now well established in a failed contested leave application, the starting general position is still that there should be no order as to costs, unless there are exceptional or unusual circumstances with good reasons to justify a departure from this starting position. In considering whether there are such good reasons in all the circumstances, the court may consider factors such as “if an application was thoroughly ill-conceived or unmeritorious” and “where, as a result of the attendance of an opposing party, the hearing has proceeded with full argument and documentary evidence so that the applicant has, in effect, had a full substantive hearing of the judicial review challenge”. See: Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 at paragraph 17 per Ribeiro PJ. 31.In the present case, as I have explained above, the judicial review is clearly unarguable. Further, I also regard that Ms Law has in effect had a full substantive hearing, as the success of the challenge is fundamentally premised on the legal arguments as to whether the TPB has a duty to make inquiry of the allegations of suspected criminality of the underlying Four Small House Applications. The legal arguments have been substantially advanced and disposed of in the leave application. In light of these, and coupled with my conclusion that Ms Law clearly lacks the sufficient interest in bringing the judicial review based on those proposed grounds of challenge, I accept there are good reasons in all the circumstances of this case to justify a departure from the usual costs position. 32.I therefore order that costs of the leave application be to the TPB, to be taxed if not agreed. Ms Law’s own costs be taxed in accordance with legal aid regulations. Dated the 8th day of June 2018.
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Form CALL-1 [1] [B1/221-222, at 222]. [2] It is important to read Denning LJ’s statement cited by Mr Ng in context. In the sentence immediately following the cited quotation by Mr Ng, Denning LJ says (which is not cited by Mr Ng): “The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever.” (emphasis added) [3] See for example: LK v Director of Immigration (HCAL 77, 98 & 100/2014, 9 August 2016, Au J) at paragraph 44 and the authorities cited therein. [4] See for example: the pamphlet published by the Lands Department entitled “The New Territories Small House Policy – How to Apply For A Small House Grant” dated December 2014, section (D)(g), and Annex II. [5] Mr Ng confirms that Ms Law has not done so and there is no evidence as to whether DHK has done that. [6] Indeed, an applicant needs not be the current owner of the subject land before he or she can make a s.16 application. See s.16(2). [7] In the present four s.16 applications, it is a fact (as shown in the RNTPC Paper) that when the TPB considered those applications, the underlying Four Small House Applications were still being considered by the Lands Department and had not been approved. See Appendix V to the RNTPC Paper No A/FSS/237-240, paragraphs 1(b) and (e) [B2/391]. [8] Again, Mr Ng confirms that Ms Law has not done so. There is no evidence as to whether DHK has done that. |