Tung Chun Co Ltd v. Town Planning Board
Read the full judgment text of HCAL 9/2013 on BabelCite. This High Court CFI judgment was delivered on 28 June 2018.
1. At the heart of these three applications for judicial review is the decision of the Town Planning Board (“TPB”) to impose a building height restriction of 120mPD at Kwai Chung Town Lot No 432 (“120mPD BHR”) under Kwai Chung Outline Zoning Plan No. S/KC/26 (“OZP 26”) gazetted on 20 April 2012.
Cited by 1 case · Cites 6 cases
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HCAL 9/2013, [2018] HKCFI 1447 HCAL 9/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 9 OF 2013 ________________________
________________________ and HCAL 91/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 91 OF 2014 ________________________
________________________ and HCAL 288/2018 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 288 OF 2018 ________________________
________________________ JUDGMENT ________________________ INTRODUCTION 1.At the heart of these three applications for judicial review is the decision of the Town Planning Board (“TPB”) to impose a building height restriction of 120mPD at Kwai Chung Town Lot No 432 (“120mPD BHR”) under Kwai Chung Outline Zoning Plan No. S/KC/26 (“OZP 26”) gazetted on 20 April 2012. 2.A total of 9 grounds of judicial review are relied upon by the Applicant to challenge the TPB’s decision not to propose amendments to OZP 26 to meet the Applicant’s objection to the 120mPD BHR, namely:-
3.In the Amended Notice of Application for Leave to Apply for Judicial Review filed on 7 February 2018 in HCAL 9/2013, there was also an additional ground of judicial review raised on the basis of procedural impropriety - apparent bias. However, as I understand from the submissions of Ms Audrey Eu, SC (for the Applicant), this ground of judicial review is reserved for consideration by the Court of Final Appeal should this matter eventually end up in that court. Accordingly, it will not be further considered in this judgment. 4.For reasons which I shall explain below, I find in favour of the Applicant in respect of Grounds 1, 6 and 7, but reject the rest of the grounds relied upon by it. BACKGROUND FACTS 5.The Applicant was, until the land exchange in 1990 more particularly described below, the owner of the lands known as Kwai Chung Town Lot Nos 8 and 10 (“KCTL 8” and “KCTL 10” respectively, and the “Old Site” collectively) at Nos 1-7, Cheung Wing Road, Kwai Chung, New Territories, on which was erected a 3-storey sauce factory operated by the Applicant. 6.Under the relevant Government leases, KCTL 8 was restricted to be used as a food factory or for the purpose of a distillery, while KCTL 10 could be used for general industrial/godown/open storage purposes. There was no plot ratio restriction imposed at the two lots by the Government leases. 7.Prior to 1989, the Government already had plans for the construction of a link road between Tai Yuen Street (at that time a cul-de-sac) and Cheung Wing Road, the entirety of which would encroach on KCTL 10, but there was no firm programme for its construction. On the other hand, it was the Applicant’s wish to apply for a modification of the user of KCTL 8 from food factory and distillery to general industrial use. 8.At the District Lands Conference held on 19 July 1989, a proposed in-situ land exchange was agreed upon, under which the Applicant would be granted a new lot, to be known as KCTL No 432 (the “Site”) for general industrial/godown use with a maximum plot ratio of 15, in return for the surrender of the Old Site (thereby releasing the land for the construction of Road 27E). The basic terms of the land exchange were offered to the Applicant on 27 April 1990, and accepted by the Applicant on 25 May 1990 (“Land Exchange Agreement”). The relevant premium was paid by the Applicant on 29 September 1990. 9.On 19 October 1990, Kwai Chung Outline Zoning Plan No. S/KC/7 (“OZP 7”) was gazetted. It imposed a plot ratio restriction of 9.5 at the Old Site, which was zoned “Industrial”. 10.On 27 October 1990, the Government made a New Grant No 6787 of the Site (with an area of about 12,340 sq m) in favour of the Applicant in exchange for the surrender of the Old Site (with a total area of about 13,350.1 sq m, the difference being the land reserved for Road 27E). Under the New Grant:-
11.On 21 November 1990, the Applicant lodged an objection (“Objection No 3”) to the TPB against the imposition of the plot ratio restriction of 9.5 at the Site by OZP 7. 12.On 13 March 1991, the Applicant made an application to the TPB for permission to redevelop the Site with a plot ratio 15. 13.On 14 February 1992, the TPB upheld the Applicant’s Objection No 3 on the ground of the planning gains arising from the Applicant’s proposed development and the special circumstances of the Site. 14.On 3 July 1992, the TPB gazetted Kwai Chung Outline Zoning Plan No. S/KC/8 (“OZP 8”) removing the plot ratio restriction of 9.5 at the Site and amending the zoning of the Site from “I” (Industrial) to “CDA” (Comprehensive Development Area) with a view to maintaining control over the future industrial development at the Site in traffic and environment terms. 15.The consequences of the Site being zoned as “CDA” are that:-
16.On 4 June 1993, the TPB approved the Applicant’s Master Layout Plan (“MLP”) for a proposed factory/godown development (“Application 127”). 17.On 26 January 1996, the TPB approved another MLP submitted by the Applicant for essentially the same development with some minor modifications relating to fire safety matters (“Application 197”). The proposed developments under Applications 127 and 197 had a building height of 169.75mPD and a plot ratio of 15. 18.On 2 September 1996, the Building Authority (“BA”) gave consent for piling works at the Site which were required for the construction of Road 27E. 19.On 19 December 1997, the BA approved general building plans (“GBPs”) submitted by the Applicant for the proposed development under Application 197. 20.On 17 March 2000, the TPB approved a further MLP submitted by the Applicant for a proposed hotel/service apartment development at the Site with a building height of 95.5mPD for the hotel and 169mPD for the service apartment and a plot ratio of 6.36 (“Application 241”). It was an express condition of the approval that “the permission shall cease to have effect on 17.3.2003 unless prior to the said date either the development hereby permitted is commenced or this permission is renewed”. 21.On 27 April 2000, the Chairman of the TPB certified the approved MLP under Application 241, and the same was deposited in the Land Registry pursuant to Section 4A(3) of the TPO. 22.On 20 February 2003, the BA approved GBPs submitted by the Applicant for the proposed hotel/service apartment development under Application 241. With such approval, the proposed development under Application 241 was deemed to have been commenced under the TPB’s Practice Guide No.35B. 23.On 26 September 2003, the TPB gazetted Kwai Chung Outline Zoning Plan No. S/KC/20 imposing a plot ratio restriction of 6.36 at the Site. The Applicant did not lodge any objection to this plot ratio restriction. 24.On 19 January 2005, the TPB approved Application 298 submitted by the Applicant which related to essentially the same proposed development under Application 241 except the relocation of a refuge floor. 25.GBPs relating to the proposed development under Application 298 were approved by the BA on 5 February 2005 and 31 January 2007 respectively, with the latter ones being the latest approved GBPs for the proposed development. 26.On 31 May 2011, Kwai Chung Outline Zoning Plan No. S/KC/25 (“OZP 25”) was approved by the Chief Executive in Council (“CE in C”) under Section 9(1)(a) of the TPO. On 4 October 2011, the CE in C referred OZP 25 to the TPB for amendment under Section 12(1)(b)(ii) of the TPO. 27.In response to the CE in C’s reference mentioned above, on 30 March 2012, the Metro Planning Committee (“MPC”) of the TPB convened a meeting to consider various amendments to OZP 25 proposed by the Planning Department as set out in MPC Paper No 6/12. Subject to certain matters which are not relevant for the present purposes, the MPC endorsed the amendments as proposed by the Planning Department. On 20 April 2012, OZP 26 was gazetted. It imposed a building height restriction of 120mPD and plot ratio restriction of 6.36 at the Site. 28.On 20 June 2012, the Applicant submitted “Representation No 9” to the TPB seeking, inter alia, to remove the 120mPD BHR or increase the maximum building height to 169mPD at the Site. 29.On 12 October 2012, the TPB held a meeting (“the October Meeting”) under Section 6B(1) of the TPO to consider, inter alia, the Applicant’s representation. 30.By a letter dated 2 November 2012 (“the Decision Letter”), the TPB informed the Applicant that its representation was rejected (“the Decision”). In that letter, the following was stated:-
31.On 11 January 2013, the Applicant commenced HCAL 9/2013 to challenge the Decision by way of judicial review. On 5 February 2013, leave to apply for judicial review was granted by Lam JA, who also granted an interim stay of submission of OZP 26 to the CE in C pending the determination of the application for judicial review. 32.On 9 May 2014, Kwai Chung Outline Zoning Plan No. S/KC/27 (“OZP 27”) was gazetted. The proposed amendments to OZP 26 did not concern the Site. 33.On 13 June 2014, Kwai Chung Outline Zoning Plan No. S/KC/28 (“OZP 28”) was gazetted. The proposed amendments to OZP 27 did not concern the Site. 34.On 8 August 2014, the Applicant commenced HCAL 91/2014 to challenge the TPB’s decisions to gazette OZP 27 and OZP 28 by way of judicial review. On 12 August 2014, leave to apply for judicial review was granted by Au J, who also granted an interim stay of submission of OZP 27 and OZP 28 to the CE in C pending the determination of the application for judicial review. 35.The substantive hearing of the applications in HCAL 9/2013 and HCAL 91/2014, which had been ordered by Au J to be heard together, came before Ng J on 6 May 2015. Prior to that hearing, the TPB took out a summons seeking leave to file a new affidavit of Ms Ophelia Wong (“the April 2015 Affidavit”). Ng J granted leave to the TPB to file the April 2015 Affidavit and adjourned the hearing of the applications for judicial review to another date to be fixed. 36.On 22 June 2015, Ng J granted leave to the TPB to withdraw the April 2015 Affidavit. 37.On 22 December 2017, Kwai Chung Outline Zoning Plan No. S/KC/29 (“OZP 29”) was gazetted. The proposed amendments to OZP 28 did not concern the Site. 38.On 23 February 2018, the Applicant commenced HCAL 288/2018 to challenge the TPB’s decision to gazette OZP 29. On 26 February 2018, this court granted leave to the Applicant to apply for judicial review. 39.The three applications for judicial review came before this court on 6 March 2018. The parties were agreed that all three applications should be heard together. 40.In what follows, I shall first consider Grounds 1, 6 and 7, before I consider the rest of the grounds relied upon by the Applicant in these applications for judicial review. GROUND 1: ERROR OF LAW/ULTRA VIRES 41.In the Decision Letter, one of the reasons given by the TPB for rejecting the Applicant’s objection to the imposition of the 120mPD BHR was that the previous development proposals which had already obtained building plan approval would not be affected by the amendment to the zoning restriction, and the Applicant could proceed with its previously approved development proposal notwithstanding the newly imposed 120mPD BHR. 42.That view was, apparently, based on what was said at paragraph 5.3(a) of TPB Paper No 9206 dated October 2012 (“TPB Paper No 9206”):-
43.The “practice” referred to in paragraph 5.3(a) of TPB Paper No 9206 is a reference to the Practice Note for Professional Persons No 3/2001 (“Practice Note No 3”) issued by the Director of Planning dated 13 December 2001, which states as follows:-
44.In the present case, the latest GBPs relating to the Applicant’s proposed development for a hotel/service apartment at the Site under Application 298 were approved by the BA on 31 January 2007. Should the Applicant wish to make any amendments to those approved GBPs, the Applicant could benefit under Practice Note No 3 in that the Director of Planning would not recommend the BA to reject the amended GBPs pursuant to Section 16(1)(d) or (da) of the Buildings Ordinance, Cap 123 (the “BO”) on the ground that they would contravene an extant statutory plan, provided that the amendments are “minor” in nature and “immaterial” in planning terms as mentioned in paragraphs 2 and 3 of that practice note. 45.It does not follow, however, that the Applicant will, or will necessarily, be able to proceed with the proposed development under Application 298 (even in the form under the currently approved GBPs without any amendments). This is because under Section 16(3)(d) of the BO, the BA may refuse to give his consent to the commencement of any building works where “a period exceeding 2 years has elapsed since the approval of any of the prescribed plans in respect of the building works”. Whether the BA would exercise his discretion to give his consent to the commencement of buildings works in such circumstances is a matter for the BA and not for the Director of Planning, and Practice Note No 3 has no application to such exercise of discretion by the BA. 46.The Planning Department was well aware of the fact that the BA might refuse to give consent to the commencement of building works in respect of the proposed development under Application 298 under Section 16(3)(d) because “certain provisions of the Building Ordinance and the allied regulations have been revised (e.g. Barrier Free Code 2008) since the last approval” (see paragraph 5.12 of TPB Paper No 9206). This was repeated by Ms M L Leung, Senior Town Planner/Special Duties of the Planning Department, at the October Meeting (see paragraphs 113(g) of the minutes of that meeting). That being so, I consider it to be wrong in law for the TPB to state, in unqualified terms, in sub-paragraph (d) of the Decision Letter that:-
47.It also seems to me that the TPB is wrong in law to say that “[s]ubsequent amendments to the approved building plans would not need to conform to an extant statutory plan unless they involved a change of use, an increase in development intensity or substantial amendments”. The correct legal position is that when the BA decides whether to approve amendments to approved building plans, he ought to have regard to the extant statutory plan, although he does have a discretion under Section 16(1)(d) of the BO to give his approval of the amended plans even if they are inconsistent with the extant statutory plan (see Head Step Limited v Building Authority, CACV 131/1995, 25 October 1995, at pages 10-11; and Attorney General v Firebird [1983] 1 HKC 1, at 6-7). 48.On behalf of the TPB, Mr Ambrose Ho, SC argues that the TPB “did not proceed on the basis that Tung Chun would necessarily be able to execute the Latest GBP given the time which had elapsed since the BD’s approval. This was simply a possibility – not a certainty – which the TPB was entitled to and did take into account in the exercise of its broad discretionary planning judgment” (see paragraph 13 of Mr Ho’s original skeletons submissions dated 28 April 2015). Had this been what the TPB stated in the Decision Letter, I would have found it difficult to take issue with it. However, this was not what the TPB said in the Decision Letter. Instead, the TPB stated, simply, that “[the Applicant] can proceed with the building development in accordance with the approved building plans”. 49.Mr Ho also argues that there is nothing wrong with the statement in sub-paragraph (d) of the Decision Letter from “the planning point of view”. While it is correct that the statement reflects, in large measure, the effect of Practice Note No 3, that statement, in the context of the Decision Letter as a whole, does not appear to be limited to stating the position of the Planning Department only. 50.In all, I am of the view that the Applicant’s complaint that the TPB made an error of law in coming to the Decision is valid. GROUND 6: IRRATIONALITY – MINOR RELAXATION 51.The Applicant complains that one of the reasons given by the TPB for rejecting the Applicant’s objection to the imposition of the 120mPD BHR was the possibility of minor relaxation which the Applicant says is an irrelevant consideration (see sub-paragraph (i) of that letter). 52.A similar complaint was upheld by the Court of Appeal in Hysan Development Co Ltd v Town Planning Board (CACV 232 and 233/2012), and in Town Planning Board v Oriental Generation Ltd (CACV 127 and 129/2012), both handed down on 13 November 2014. 53.In Hysan, at paragraph 164, Lam VP (giving the judgment of the Court of Appeal) stated the following:-
54.The Court of Appeal in Oriental Generation, at paragraph 120, agreed with the aforesaid analysis in Hysan. 55.Mr Ho does not dispute that the possibility of minor relaxation cannot be used as a justification for imposing the 120mPD BHR, or rejecting the Applicant’s objection to the building height restriction, but submits that the TPB did not rely on the possibility of minor relaxation as a substantive justification for either purpose. Mr Ho says that the building height restriction was maintained on separate substantive grounds primarily concerning compatibility with the planning context and other aesthetic/ventilation considerations, and the TPB only referred to minor relaxation in answer to the specific contention by the Applicant that the building height restriction would reduce “greening opportunities” at the Site which Mr Ho says the TPB correctly considered to be “an entirely irrelevant reason from Tung Chun for not maintaining the 120mPD BHR” (see paragraph 44(1) and (4) of Mr Ho’s Skeleton Submissions dated 28 April 2015). In support of this submission, Mr Ho refers the court to the following materials:-
56.It does appear that the Planning Department’s intention in referring to the possibility of minor relaxation was in answer to the specific contention by the Applicant that the 120mPD BHR would reduce “greening opportunities” at the Site. 57.It is, however, by no means clear that the TPB referred to and relied on the possibility of minor relaxation for this limited purpose only. At paragraph 147 of the minutes of the October Meeting, the Chairman of the TPB summarised, or purported to summarise, the views of Members, in the following manner –
58.I should add that, in determining the basis of the TPB’s decision, one ought to focus on the letter sent by the TPB to the Applicant giving its reasons for the decision. In Hysan, at paragraph 192, Lam VP referred to and agreed with what was said by Cheung JA in Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, at paragraph 87:
59.In the Decision Letter, sub-paragraph (i) thereof (which referred to the possibility of minor relaxation) appears as one of the substantive reasons for the TPB’s decision not to propose amendments to OZP 26 to meet the Applicant’s representation, and not as an answer to an “irrelevant” contention raised by the Applicant that the building height restriction would reduce “greening opportunities” at the Site. 60.In my view, if the TPB had intended to impose and/or maintain the building height restriction on other substantive grounds excluding minor relaxation and refer to the possibility of minor relaxation only in answer to the Applicant’s contention that the building height restriction would reduce “greening opportunities” at the Site (or, as suggested by the Court of Appeal, as a reminder to the Applicant that there could be scope for “minor” relaxation of the building height restriction where the planning and design merits of a development scheme would justify such relaxation), it ought to have spelt these out expressly in the reasons for its decision. This was not done, possibly because the TPB decided to adopt wholesale the reasons suggested by the Planning Department for rejecting the Applicant’s representation. As has been said by the courts on many occasions in the past, this is an unsatisfactory practice (see Smart Gain Investment Ltd v Town Planning Board, HCAL 12/2006, 6 November 2007, at paragraph 105 per A Cheung J (as he then was); Hysan, at paragraph 200 per Lam VP; and Oriental Generation, at paragraph 150). An additional reason why the practice is unsatisfactory is that the Planning Department’s reasons normally come at the end of a long TPB paper summarising its views on many issues discussed in detail in the paper. The true meaning and intent of those reasons may be obscured or lost if they appear in isolation, which would happen when the TPB simply adopts those reasons in its decision without more. It would, I consider, be more satisfactory for the TPB to briefly state, in its own words, the reason(s) for rejecting the applicant’s representation, dealing with each of the substantive grounds relied upon by the applicant individually (if that is what the TPB decides to do), instead of lumping all the reasons together. 61.The circumstances in the present case are, I believe, practically indistinguishable from those in Hysan. I consider that I am bound by the decision of the Court of Appeal in that case to hold that the TPB took into account an irrelevant consideration, namely, the possibility of minor relaxation, in reaching its decision not to propose amendments to OZP 26 to meet the Applicant’s representation. GROUND 7: PROCEDURAL IMPROPRIETY – ATTENDANCE AT TPB MEETING 62.The Applicant’s Representation No 9 against the 120mPD BHR imposed by OZP 26 was considered by the TPB at the October Meeting. 63.As can be seen from the minutes of the October Meeting:-
64.Both Mr Timothy Ma and Miss Anita Ma apparently were present during the deliberation session of the meeting, but it is not clear from the minutes whether they spoke at the meeting. 65.The question of whether the absence of one or more members who participated in the TPB’s decision-making process but who were not present throughout the representation hearing would vitiate the TPB’s decision on the ground of procedural unfairness was considered by the Court of Appeal in Hysan and Oriental Generation Ltd. 66.In Hysan, Lam VP stated the following:-
67.In Oriental Generation, the following was stated by the Court of Appeal:-
68.Leave to appeal to the Court of Final Appeal against the above determinations of the Court of Appeal was refused by the Appeal Committee of the Court of Final Appeal in FAMV 17 and 28-31 of 2015 (18 November 2015). 69.It would appear from the decisions of the Court of Appeal in Hysan and Oriental Generation that there is no strict requirement that all members of the TPB who participated in the decision-making process must be present throughout the representation hearing, provided that those who were absent during a part of the representative hearing had been fully apprised of the evidence and representations presented while they were absent before they participated in the deliberation process. 70.In the present case, there is no evidence to show that Miss Anita Ma was apprised of the oral representations made on behalf of the Applicant in her absence at the October Meeting. Equally, there is no evidence to show that Mr Timothy Ma was apprised of what was said during the period of time when he was absent from the October Meeting. 71.Again, I consider that I am bound by the decisions of the Court of Appeal in Hysan and Oriental Generation to hold that the TPB’s decision to reject the Applicant’s Representation No 9 is tainted by procedural unfairness. GROUND 2: FAILURE TO HONOUR LEGITIMATE EXPECTATION 72.The Applicant relies on both “substantive” and “procedural” legitimate expectation. In so far as substantive legitimate expectation is concerned, the Applicant argues that it has the following expectation:-
See paragraph C.4 of Ms Eu’s Supplemental Skeleton Submissions dated 27 February 2018. 73.There are three well established principles which are relevant to a consideration of the Applicant’s complaints based on legitimate expectation. First, generally speaking, any representation relied upon to support a legitimate expectation must be “clear and unambiguous”. Second, to qualify as a legitimate expectation, it must be objectively reasonable and legitimate; in particular, “an expectation of a benefit which cannot legally be accorded … is not a legitimate expectation”. Third, a legitimate expectation will not be given effect when doing so means that the decision-maker must act contrary to his legal duties or would have to exercise his statutory discretion in a way which undermines the relevant statutory purpose. See Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1, at paragraphs 101, 103-104, 112 and 360. 74.In relation to (1) above, the Applicant has not been able to identify any clear or unambiguous representation made by the Government or TPB that there would be no building height restriction at the Site. An examination of the circumstances leading to the Land Exchange Agreement in 1990 and the TPB’s decision to remove the plot ratio restriction of 9.5 at the Site by gazetting OZP 8 on 3 July 1992 shows clearly that the parties at that time were concerned with the Applicant’s objection to the imposition of the plot ratio restriction of 9.5 at the Site and not with any building height restriction which might be imposed at the Site. 75.In relation to (2) above, as submitted by Mr Ho which I consider to be correct, the TPB’s approval of Applications 127, 197, 241 and 298 was, in each instance, an approval of a specific development scheme incorporating a whole host of parameters including building height, site coverage, plot ratio, number of floors of the proposed building(s), provision of parking and loading spaces, etc. It is, in my view, wrong in principle to permit the Applicant to isolate one particular parameter (in this case, a building height of 169mPD) out of a whole host of parameters included in a previously approved development scheme and contend that it has a stand-alone legitimate expectation in respect of that parameter which it should be permitted to incorporate in any development scheme at the Site which it may wish to pursue in future. Subject to the discussion in paragraph 76 below, the Applicant would at most have a legitimate expectation that it would be allowed to pursue the specific development scheme which has been approved by the TPB. 76.In relation to (3) above, any legitimate expectation arising from the approval of a specific development scheme by the TPB must be subject to two inherent limitations: (i) the lawful exercise of the TPB’s powers in furtherance of its on-going statutory functions and duties to prepare and amend plans to promote “the health, safety, convenience and general welfare of the community” under Section 3(1) of the TPO, and (ii) the limit of the TPB’s powers such that, for example, it would not be able to control the BA’s exercise of his statutory discretion under the BO or give any assurance that the BA would exercise his discretion in any particular way or manner. While the Applicant can legitimately expect that the TPB would act in accordance with its published policies (including Practice Note No 3 mentioned above), I do not consider that the Applicant is entitled to any legitimate expectation that it “can proceed with the Approved Scheme and the TPB would not take steps to affect, jeopardize or frustrate the Approved Scheme” in the general or unqualified terms contended for. 77.In relation to procedural legitimate expectation, the Applicant argues that it has a legitimate expectation that the TPB would not circumvent the MLP process and directly impose a building height restriction at the Site by means of amending an existing OZP. As earlier mentioned, the TPB may prohibit the undertaking of any building works at a CDA except with its permission, which permission may be granted by reference to a plan approved by the TPB under Section 4A(1)(b) of the TPO. According to Ms Eu, “the Applicant is entitled to expect an opportunity to be heard before disapproval of any particular BHR for any building on the CDA” via the MLP process (see paragraph E.10 of Ms Eu’s original Skeleton Submissions dated 27 April 2015). 78.In my view, the Applicant’s argument conflates or confuses two different powers of the TPB, namely, (i) the preparation of draft plans under Section 3, and (ii) the approval of MLPs under Section 4A of the TPO. While the exercise of such powers or functions may, in relation to a particular site, being about the same effect or consequence, these powers are separate and may be exercised in parallel at any particular time. The exercise of the power to prepare a draft plan under Section 3 relates, generally speaking, to a large area or district covering many sites for the purpose of promoting the health, safety, convenience and general welfare of the community as a whole, whereas the exercise of the power to approve a MLP under Section 4A(1) is normally in the context of a specific application for undertaking building works in a site or sites falling within a CDA and such power is exercised to give effect to the planning intention behind the designation of the CDA, namely, to facilitate urban restructuring and to phase out incompatible development and non-conforming uses (see paragraphs 1.1 and 3.1 of Town Planning Board Guidelines for Designation of “Comprehensive Development Area” (“CDA”) Zones and Monitoring the Progress of “CDA” Developments dated May 1999). I see no reason why the existence of the power by the TPB to approve a MLP which may be submitted by an applicant for undertaking building works at a site zoned “CDA” under Section 4A(1) should preclude the exercise its power to prepare a draft plan under Section 3 affecting the whole CDA (and possibly other areas). 79.Since I do not consider the legitimate expectation contended for by the Applicant to be well-founded, it is not necessary for me to consider whether there has been any failure to honour such expectation, or whether such failure can be justified. GROUND 3: IRRATIONALITY – OUT OF CONTEXT 80.In paragraph (c) of the Decision Letter, it is stated that “the imposition of BHR of 120mPD for the site is to avoid excessively tall and out-of-context buildings which adversely affected the overall valley-like and foothill setting of the Area. It helps to maintain the integrity of the stepped height concept and is more appropriate for the site to be congruous with the overall BH profile exemplifying the natural valley-like topography”. 81.The Applicant complains that it is irrational for the TPB to take the view that permitting a building with a height of 169mPD to be erected on the Site would be “out of context”. In support of this ground of judicial review, the Applicant takes issue with the TPB on a number of matters, including:-
82.As a general comment on this ground of judicial review, it is important to recognize that questions such as whether a building or proposed building is in harmony or “out of context” with other buildings in the neighbourhood (in terms of building height or other physical features), what type of buildings and which buildings in the neighbourhood should be taken into account for the purpose of such evaluation, whether and how an area under study should be divided into sub-areas for the purpose of setting building height restrictions, and what building height restrictions should be imposed on the sub-areas, etc are matters involving broad planning considerations and aesthetic judgment. Generally speaking, the TPB is in a much better position than the court to assess and balance such considerations and exercise such judgment. Accordingly, it is well established that the court must accord a wide margin of appreciation to the TPB in its decision on the permissible building height at any particular site and should not interfere in such decision on Wednesbury unreasonableness ground save in a compelling case. 83.As mentioned by Reyes J in Hysan [2012] 5 HKC 432, at paragraphs 55 and 139, “[p]lanning involves looking at a district in a broad-brush way and determining what features or restrictions should be imposed in which areas (including specific sites) for the betterment of the district as a whole”, and restrictions are generally imposed in a “rough-and-ready manner”. 84.In relation to the specific matter of building height restriction, Reyes J stated in Oriental Generation [2012] 3 HKC 369 the following:-
85.The above statements of principle by Reyes J were expressly approved by the Court of Appeal in Hysan, at paragraph 135. And in Oriental Generation, the Court of Appeal further stated as follows:-
86.Applying above principles to the Applicant’s specific complaints under this ground, my views are as follows:-
87.In all, I do not accept the Applicant’s complaint of “irrationality – out of context” under Ground 3. GROUND 4: IRRATIONALITY – AIR VENTILATION ASSESSMENT 88.Under the ground of “irrationality – air ventilation assessment”, the Applicant complains that the air ventilation assessment by expert evaluation conducted by ENVIRON Hong Kong Limited, whose report dated March 2012 (“the ENVIRON Report”) was annexed to the MPC Paper No 3/12 and considered by the Metro Planning Committee at the meeting held on 30 March 2012, was flawed because (i) it was directed at the air ventilation scenario involving a building height restriction of 120mPD at the site, and (ii) it did not consider the air ventilation position were the building height restriction to be 169mPD, as the Applicant had proposed. 89.In relation to the assessment actually carried out by ENVIRON, the Applicant also complains that ENVIRON assumes, in its report, that the Site has a “committed development” with a building height of 120mPD and a “building-to-building width [of] over 40m” from “an industrial building” at the “opposite side of Cheung Wing Road”, but (i) there is no committed development scheme with a building height of 120mPD at the Site and (ii) there is no information in the ENVIRON Report as to the design of the 120mPD scheme and how it calculates the said width of over 40m. According to the Applicant, ENVIRON should, instead, have tested the Applicant’s scheme with a building height of 169mPD as it is committed and has precise building parameters (see paragraph G.2 of Ms Eu’s original Skeleton Submissions dated 27 April 2015). 90.Mr Ho’s answer to this ground of judicial review, which I consider to be correct, is that :-
91.That air ventilation consideration was not the reason for imposing the 120mPD BHR is clear from the Decision Letter itself. In paragraph (a) of that letter, the TPB stated that, in formulating the building height restrictions for the Area, all relevant factors including “… the wind performance of the existing condition and the recommendations of the Air Ventilation Assessment by Expert Evaluation” had been taken into consideration. As for the specific reasons for imposing the 120mPD BHR at the Site, they were set out in paragraph (c) of the letter which I shall not repeat here. 92.Neither was air ventilation consideration the reason for not relaxing the building height restriction at the Site to 169mPD. In paragraph (c) of the Decision Letter, the TPB stated that “[d]eletion of BHR or relaxation of BHR to not less than 169mPD at the representation site would jeopardise the integrity of the stepped BH concept and result in a development out of context with the surrounding area”. 93.It seems clear that what happened was that the TPB, having determined, provisionally, that a building height restriction of 120mPD should be imposed at the Site, an air ventilation assessment, based on an “initial planned scenario” which assumed, inter alia, that buildings up to that height would be erected on the Site, was carried out by ENVIRON to identify the major problem areas and make recommendations for improvement of the initial planned scenario from an air ventilation standpoint and for further study to be carried out. That being the purpose of the air ventilation assessment, there was no point in carrying out an air ventilation assessment based on the Applicant’s proposed scheme with a building height of 169mPD at the Site. 94.In so far as the Applicant’s complaint relates to the basic parameters of the 120mPD building scheme at the Site adopted by ENVIRON for the purpose of carrying out its air ventilation assessment, those parameters were part of an “initial planned scenario” which, by definition, had to be based on certain assumptions (see paragraphs 1.2.1, 4.1.7 and 4.1.20 of, and Figure 22 in, the ENVIRON Report). There is no ground, or sufficient ground, to show that the assumed parameters used by ENVIRON are unreasonable. 95.In all, I do not accept the Applicant’s complaint of irrationality in relation to air ventilation assessment. GROUND 5: IRRATIONALITY – VISUAL ASSESSMENT 96.The Applicant raises two major complaints under this ground:-
97.In respect of the first complaint, although the UDA does not contain a specific visual assessment of the Site by reference to different possible building height restrictions, it should be noted that the main objective of the UDA is to analyse the key spatial and visual attributes that define and shape the whole Kwai Chung Planning Scheme Area (covered by OZP 26), provide principles and considerations for guiding the formulation of building height restrictions from urban design perspectives, and assess the visual impacts of the proposed building height restrictions (see paragraph 1.2 of the UDA). The purpose of the UDA is not to micro-analyse each and every site within the Area and determine the visual impact of different possible building height restrictions at each and every such site. It is, in my view, nothing to the point that there is no specific mention of the Site in the UDA. Furthermore, the UDA has evaluated the visual impact on the business/industrial buildings along Wo Yi Hop Road as viewed from Shek Yam Lei Muk Road Park based on the assumption of a 120mPD development at the Site (see paragraph 7.7 of the UDA and Plan 8J attached to MPC Paper No 6/12). The following is stated in paragraph 7.7 of the UDA:-
98.The view as expressed in this paragraph cannot be said to be unreasonable in the Wednesbury sense. Allowing a development of 169mPD to be erected on the Site could lead to precisely what is considered to be objectionable, ie proliferation of excessively tall buildings which are not congruent with the building height profile of most of the buildings in the surrounding areas. 99.As for the choice of Shek Yam Lei Muk Road Park as a local vantage point, it is made because the park is a popular park at the Eastern Sub-Area where the Wo Yi Hop Road business/industrial area is visible (see paragraph 78 of Mr Chan Wai Shun’s Affirmation filed on 3 June 2013). The choice is consistent with paragraph 4.5 of Town Planning Board Guidelines TPB PG-No 41, which states as follows:-
100.Neither paragraph 9.1.6 of the UDG Study nor the judgment of the Court of Appeal in Oriental Generation should, in my view, be read as laying down a principle of law that a public consultation must be carried out in every case before the TPB can adopt a local vantage point for the purpose of a visual assessment, or that a local vantage point must be “agreed” before it could be used. In this regard, it should be noted that:-
101.In the present case, the adoption of Shek Yam Lei Muk Road Park as a local viewing point by reason of its popularity in the Eastern Sub-Area cannot, in my view, be said to be unreasonable in the public law sense. 102.In all, I do not accept the Applicant’s complaint of “irrationality – visual assessment” under Ground 5. GROUND 8: PROCEDURAL IMPROPRIETY – INADEQUATE REASONS 103.Under this ground, the Applicant complains that:-
See paragraphs I.1 and I.4 of Ms Eu’s original Skeleton Submissions dated 27 April 2015. 104.In both Hysan (at paragraph 198) and Oriental Generation (at paragraph 150), the Court of Appeal considered that the mere reproduction by the TPB of the same reasons that had been given by the Planning Department for not supporting or upholding a representation prior to the actual meeting did not of itself prove that the TPB failed to properly or independently address its mind to the questions before it, and in particular the representations that had been made to it. However, it is a relevant matter to be taken into account on the overall fairness of the process. 105.In Hysan, the applicant put in a large volume of materials at the TPB meeting (paragraphs 165 and 187), and there was no discussion by the members of the TPB of the additional materials tabled and presentations made at the meeting (paragraph 202). There was also no evidence in the reasons given by the TPB to dispel the doubt as to whether the members had properly considered the Hysan materials tabled at the meeting (paragraph 203). The Court of Appeal concluded that the Hysan materials tabled at the meeting had not received proper consideration before the TPB made the decision to reject Hysan’s representation (paragraph 204). In coming to that conclusion, the Court of Appeal took into account two significant factors, namely, (i) the large volume of materials tabled by Hysan only at the meeting, which meant that the members of the TPB had no opportunity to consider them prior to the meeting, and (ii) the length and complexity of the meeting. These factors are absent in the present case. 106.On the other hand, in Oriental Generation, although the TPB also adopted wholesale the reasons given by the Planning Department prior to the meeting, the Court of Appeal concluded, by reference to the minutes of the meeting, that the TPB had given independent and genuine consideration to the applicant’s representations before coming to its decision (paragraph 151). 107.In the present case, there is evidence that the members of the TPB did consider the Applicant’s materials and representations at the October Hearing, both during (i) the presentation and question session, as shown by the interaction between the Chairman/members of the TPB and the representatives of the Applicant (see paragraphs 121, 122, 123, 127, 128, 129, 130, 131, 132 and 134 of the minutes of the October Meeting), and (ii) the deliberation session, as shown by the questions raised by the Chairman/members of the TPB (see paragraphs 141 to 146 of the minutes of the October Meeting). The whole meeting took place in the afternoon of 12 October 2012 and lasted less than 3 hours. Further, at paragraph 148 of the minutes of the October Meeting, it is stated that “Members then went through the reasons for not upholding the representation as stated in paragraph 8 of the Paper and considered that they were appropriate”. This indicates that the members of the TPB had given some thoughts to the appropriateness of the Planning Department’s reasons for not upholding the Applicant’s Representation No 9 before those reasons were adopted. 108.In relation to the complaint that in the deliberation session, there was no mention of the Applicant’s visual impact assessment and why it was not accepted, it is of note that the Chairman expressly raised the issue of visual impact during the presentation and question session and sought the Planning Department’s response to the point raised by the Applicant that “the BH profile was an aerial view and could not be perceived by people at street level”. Mr Wilson Chan, District Planning Officer/Tsuen Wan & West Kowloon of the Planning Department, responded to the Chairman’s query, and Mr Christopher Foot of ADI (the Applicant’s Visual Impact Consultant) was given an opportunity to comment on Mr Wilson Chan’s response (see paragraphs 133 and 134 of the minutes of the October Meeting). These exchanges must be read in the context of Mr Foot having made a representation on the issue of visual impact in the course of the presentation and question session (see pages 118 to 119 of the minutes of the October Meeting). Further, ADI’s Visual Impact Assessment Report dated 27 October 2011 was annexed to the Applicant’s Representation Statement dated June 2012 and was therefore available to the members prior to the October Meeting. In these circumstances, I do not consider the mere fact that there was no express mention of the Applicant’s visual impact assessment during the deliberation session shows that it was not considered by the members of the TPB. The reasons for not accepting the Applicant’s visual impact assessment were set out in sub-paragraph (h) of the Decision Letter. 109.In relation to the complaint that there was no reference to the fact that the Site was not even discussed in the UDA, I repeat the analysis in paragraph 97 above. 110.In all, I consider that the materials before the court show that the members of the TPB did give independent and genuine consideration to the Applicant’s representation, including the submissions made on behalf of the Applicant at the October Meeting, and there is no sufficient basis to challenge the Decision under the ground of “procedural impropriety – inadequate reasons”. GROUND 9: VIOLATION OF BASIC LAW – PROPORTIONALITY 111.Ms Eu argues, in reliance upon the judgment of the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, that the imposition of the 120mPD BHR infringes the Applicant’s property rights under Articles 6 and 105 of the Basic Law because it fails the last 2 steps of the proportionality analysis. 112.In respect of the third step, the proper threshold question is whether the imposition of the building height restriction at the Site is “manifestly without reasonably foundation”, and not whether it is “no more than necessary” as suggested by Ms Eu (see the CFA’s judgment in Hysan, at paragraphs 129 and 142). The threshold is a very high one. As stated by Ribeiro PJ at paragraph 142:-
113.In this case, the purpose of imposing the building height restriction at the Site by the TPB is, as stated in sub-paragraph (c) the Decision Letter, “to avoid excessively tall and out-of-context buildings which adversely affected the overall valley-like and foothill setting of the Area. It helps to maintain the integrity of the stepped height concept and is more appropriate for the site to be congruous with the overall BH profile exemplifying the natural valley-like topography. Deletion of BHR or relaxation of BHR to not less than 169mPD at the representation site would jeopardise the integrity of the stepped BH concept and result in a development out of context with the surrounding area”. I am unable to see how it can be said that the measure adopted is manifestly without reasonable foundation, or “exceptionally unreasonable”. 114.In respect of the fourth step, the relevant question is “whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual” (see the CFA’s judgment in Hysan, at paragraph 135). The threshold for finding that a governmental measure pursued in the interest of the society as a whole fails the fourth step of the proportionality analysis is likewise a high one. As stated by Ribeiro PJ, at paragraph 73:-
115.Whether a “reasonable balance” has been struck in any given case is, ultimately, a “value judgment” which the court has to make (see the CFA’s judgment in Hysan, at paragraph 78). In this regard, it is of relevance that the imposition of the 120mPD BHR would not diminish the overall development intensity of the Site, in the sense that the Applicant can still pursue developments up to the maximum plot ratio of 6.36. On the other hand, the societal interest in imposing the building height control at the Site for the reasons given in sub-paragraph (c) of the Decision Letter is, I consider, a matter of considerable importance from the overall urban planning perspective. For my part, I have little difficulty in coming to the conclusion that the pursuit of the societal interest cannot be said to inflict an unacceptably harsh burden on the Applicant in the present case. DISPOSITION 116.In relation to HCAL 9/2013, I make an order of certiori to quash the Decision and remit the Applicant’s Representation No 9 to the TPB for fresh consideration in accordance with this judgment. Having regard to the issues which the Applicant has succeeded and those which it has failed, the time spent on the various issues, and the outcome of the application, I make an order that the TPB shall pay the Applicant 70% of its costs incurred in this application, including all costs reserved, to be taxed if not agreed with certificate for two counsel. 117.In relation to HCAL 91/2014 and HCAL 288/2018, what (if any) substantive relief should be granted in view of the findings in this judgment may be open to argument. I shall leave it to the parties to agree on the appropriate form of the order, including the order as to costs, that should be made to give effect to this judgment, with liberty to the parties to apply for further directions if necessary. 118.Lastly, it remains for me to thank counsel for their assistance rendered to the court.
Ms Audrey Eu, SC and Mr Jonathan Lee, instructed by Philip T F Wong & Co., for the Applicant Mr Ambrose Ho, SC and Mr Mike Lui, instructed by Department of Justice, for the Respondent | |||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
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Further hearings and rulings under HCAL 9/2013