The Trustees of the Church of England in the Diocese of Victoria, Hong Kong v. Town Planning Board

HCAL 26/2012

[2020] HKCFI 501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 26 OF 2012

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BETWEEN

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HCAL 27/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 27 OF 2012

________________________

BETWEEN

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J U D G M E N T

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A.  APPLICATIONS BEFORE THE COURT

1.The abovenamed applicants in HCAL 26/2012 and HCAL 27/2012 (“applicants”) are respectively (1) the owner of two 3-storey buildings named On Lee at 2 Mount Davis Road, Pok Fu Lam, Hong Kong (“On Lee”); and (2) a corporation constituted by the owners of the 3-storey buildings known as Mount Davis Village at 6 and 10 Mount Davis Road (“Mount Davis Village”). 

2.By these 2 applications for judicial review, the applicants challenge the decision (“Decision”) made by the Town Planning Board (“Board”) at its 998^th meeting on 25 November 2011 (“Board Meeting”) and communicated to the applicants by letters dated 21 December 2011 (“21.12.2011 Letters”). 

3.By the Decision, the Board refused to propose amendment to the Draft Kennedy Town and Mount Davis Outline Zoning Plan (“OZP”) S/H1/18 (“S/H1/18 Draft OZP”) to meet the representation numbered R2 (“REDA Representation”) made by the Real Estate Developers Association of Hong Kong (“REDA”), in respect of which the applicants had submitted the supportive comments numbered C11 and C12 (“Comments”).

4.By the Comments, the applicants sought to support REDA’s proposal for the removal/relaxation of the building height restrictions (“BHR”/”BHRs”) imposed on the sites of On Lee and Mount Davis Village (“On Lee Site” and “MDV Sites” respectively and “Sites” collectively).  The imposition of such BHRs effectively down zoned the Sites, thereby reducing their redevelopment values.

5.Mr Justice Reyes granted leave to the applicants to commence these applications and directed them to be heard together on 28 February 2012.  Reyes J also ordered an interim stay of the submission of the S/H1/18 Draft OZP and the Draft Kennedy Town and Mount Davis OZP S/H1/19 to the Chief Executive in Council (“CE in C”) pending the determination of these proceedings or further order.  For reasons not explained to this court, these applications were not prosecuted before yet another draft OZP had been considered by the Board.  On 18 April 2018, I ordered, by consent, an interim stay of the submission of the Draft Kennedy Town and Mount Davis OZP S/H1/20 to the CE in C pending the determination of these proceedings or further order.

B.  THE PLANNING PROCESS & THE COURT’S FUNCTION IN JUDICIAL REVIEW

6.Leading counsel for the Board, Mr Abraham Chan SC (with him Mr Anthony Chan) started off his skeleton submissions for the Board by reminding the court that planning is “a holistic process, involving balancing numerous factors” in which draft OZPs, and individual planning restrictions within them, are determined by the “machinery created by statute and designed to ensure consideration of competing views after consultation with the public and with the parties affected with the benefit of input from relevant experts” and that planning decisions are “made with entire districts, and not just the parties’ sites, in view”: per Ribeiro PJ in Hysan Development Company Ltd v Town Planning Board (2016) 19 HKCFAR 372 at [126].

7.Counsel found it necessary to issue such reminder because, they say, the 2 judicial review applications before this court “rest on propositions that are fundamentally at odds with the above position and unsustainable” and the applicants are “in truth seeking to draw this Court into a merits review, or a re-hearing, of the reasons for the re-zoning of their properties” and “effectively require this Court to agree with and endorse [their] particular interpretation of the primary features and facts in respect of the planning area” “which the [Board] had, in the exercise of its planning judgment, considered and rejected”.

C.  BACKGROUND

8.With these reminders and cautions in mind, I turn to the background to the Decision.  Such background is not really, or should not be, controversial.  I believe what follows under this heading is a fair summary.

C.1  The Kennedy Town and Mount Davis Planning Scheme Area

9.As stated in paragraphs 5.1, 5.2 and 5.4.5 of the Paper No 2/11 (“MPC Paper”) prepared by the Planning Department (“PD”) for consideration by the Metro Planning Committee[1] (“MPC”) at its meeting on 18 February 2011, the Kennedy Town and Mount Davis Planning Scheme Area (“Planning Area”) measures around 172 hectares and is located at the north-western end of the Hong Kong Island facing the western gateway to the Victoria Harbour, with Sai Ying Pun and Sheung Wan to the east, the Mid-levels West to the southeast and Pok Fu Lam to the south.  More particularly, the Planning Area is bounded by Hill Road to the east; Pok Fu Lam Road / Mount Davies Road to the southeast and south; and the Sulphur Channel as its western and northern edges.

10.The Planning Area is mainly residential in nature with concentration of residential developments in its north-eastern part.

C.2  The “Green Mountain Backdrop” Sub-area

11.The Planning Area can be divided into 7 sub-areas with different characteristics.  The Sites are located in the sub-area known as the “Green Mountain Backdrop” (“Sub-area”).  This sub-area was so described in the MPC Paper:

“This area mainly comprises of Mount Davis and its foothill area, which forms the green mountain backdrop of the Area. Some “G/IC”[2] sites are scattered in the area for school, service reservoir, wireless transmitting station and youth hostel uses. Some low to medium-rise residential developments are found on the southern side of this cluster along Mount Davis Road. Chiu Yuen Cemetery is in the east of the area.” (footnote added)

C.3  Existing building profile along Mount Davis Road

12.Mount Davis Road runs, in an east-west direction, along the southern foothill of Mount Davis, which rises to 260mPD[3] and provides a green mountain backdrop to the entire road.  There are residential and G/IC developments on both sides of Mount Davis Road.

13.Focusing for the time being on the even-numbered northern uphill side, there are 2 clusters of residential developments along this side of Mount Davis Road at each end of the road.

14.Dealing first with the eastern end near the junction with Pok Fu Lam Road and the Chiu Yuen Cemetery, as stated in [1] above, numbers 2, 6 and 10 accommodate several 3-storey residential buildings.  In this connection, both the Sites are held under Government leases dating back to 1920’s.  Insofar as it is material to the Decision, the lease of the On Lee Site provides for a maximum building height of 3 storeys and a maximum roofed over area of 25%.  As for the MDV Sites, as noted in paragraph 69 of the Board Minutes (as defined in [30] below), according to Mr Ronald Taylor (“Mr Taylor”) whose company, Wedgett Tree Limited (“Wedgett”), was the owner of House A6, Mount Davis Village, the MDV Sites and the site of Four Winds Apartments (to be mentioned in [15(2)] below) originally formed one single lot granted under the same Government lease which originally contained conditions of a maximum roofed over area of 30% for 2 storeys and 25% for 3 storeys.  Then, in the 1960’s, the owner of the lot sold the portion on which Four Winds Apartments were subsequently built.  The new owner procured a modification of the Government lease upon payment of a premium to enable Four Winds Apartments to be developed.  However, with the coming into force of the Pok Fu Lam Moratorium[4] (“PFL Moratorium”) in 1972, lease modification and redevelopment of the MDV Sites could not proceed.

15.Between the Sites are 2 notably much taller residential developments:

(1)  immediately to the west of On Lee, at number 2A, is Greenery Garden which comprises 4 connected 148.7mPD high 18-storey blocks including 1 level of garage podium; and

(2)  immediately to the east of Mount Davies Village, at number 4, is Four Winds Apartments, a 144.9mPD high single 13-storey block.

16.To complete the building profile of the cluster of developments at the eastern end of the uphill side of Mount Davis Road, at number 8 is another 3-storey house called The High House.

17.After one passes Mount Davis Village at number 10, there is no other building on the same side until one reaches number 50 where there stands the St Clare Girls’ School.  Although the school has only 5 storeys, it rises to 108mPD because it stands higher up the slope of Mount Davis than most other buildings.

18.Next to the school, towards the western end of the same side of Mount Davis Road near the junction with Victoria Road, at numbers 52-54 is Vista Mount Davis which is a 129.7mPD high 20-storey building above carport/entrance lobby; at numbers 56-62 are two 139.1mPD high blocks of 18-20 storeys above carport/entrance lobby called Cape Mansion; at numbers 64-66 is Villas Sorrento which comprises one 10-storeys building above 1 level of podium and 1 level of carport and 4 detached 4-storey houses; and at number 68 is another 10-storey building above 1 level of podium and 2 levels of carport[5].

19.It can be seen that On Lee, Mount Davis Village, The High House and the 4 houses of Villas Sorrento are the only low-rise structures on the northern uphill side of Mount Davis Road.  The other 10 or so buildings found on the same side[6] are all medium-rise with 10 to 20 storeys, some of which are above levels of carports and entrance podiums.  It is also noteworthy that these buildings are quite well spaced out.

20.In contrast, all the developments on the southern downhill side of Mount Davis Road are low-rise, of 3 storeys at most, hugging the slope at and below road level so that only 1 to 2 storeys are visible from the road.  This side of Mount Davis Road falls within the Pok Fu Lam OZP.

21.In summary, as described in paragraph 14 of the Form 86 filed by each of the applicants, “the developments along Mount Davis Road are therefore stepped, from low-rise below and up to the road then to medium-rise across the road and above, where they stand against the hill, with the exceptions of On Lee, Mount Davis Village and the High House” (and the Villas Sorrento houses).

C.4  Original zoning of the Sites

22.Originally, with the exception of the site of St Clare’s s School which is zoned “G/IC”, all the said sites along the northern uphill side of Mount Davis Road on which development had taken place (including the Sites) had since the gazettal of the first Kennedy Town and Mount Davis OZP in 1986 been zoned “Residential (Group B)” (“R(B)”), meaning that they were intended primarily for medium-density residential developments where commercial uses serving the residential neighbourhood may be permitted on application to the Board.  There was otherwise no restriction on building height, plot ratio or site coverage for these sites in the approved OZPs or notes thereto.

23.In contrast, the development sites on the southern downhill side of Mount Davis Road are and have always been zoned R(C)(3) in the approved Pok Fu Lam OZP, meaning that they are intended “primarily for low to medium-rise and low to medium-density residential developments where commercial uses serving the residential neighbourhood may be permitted on application to the [Board]”.

C.5  Proposed re-zoning of the Sites

24.Then, on 12 January 2010, pursuant to s 12(1)(b)(ii) of the Town Planning Ordinance (Cap 131) (“TPO”)[7], the CE in C referred the Approved Kennedy Town & Mount Davies OZP S/H1/16[8] to the Board for amendment.

C.5.1 Draft Kennedy Town & Mount Davies OZP S/H1/17

25.As a result, the Draft Kennedy Town & Mount Davies OZP S/H1/17 (“S/H1/17 Draft OZP”) was exhibited on 26 March 2010 pursuant to s 5.  It is noteworthy that no change was proposed to the zoning of the Sites in this earlier draft plan.

C.5.2 The MPC Paper - PD’s rezoning proposals

26.Then, in February 2011, the PD issued the MPC Paper, in which the PD proposed that the Sites be re-zoned from R(B) to “Residential (Group C)2” (“R(C)2”).  A site zoned as “R(C)” is intended primarily for low-rise, low-density residential developments where commercial uses serving the residential neighbourhood may be permitted on application to the Board.  Further, on land designated “R(C)2”, no new development, or addition, alteration and/or modification to or redevelopment of an existing building on such land shall result in a total development and/or redevelopment being in excess of a maximum plot ratio of 0.75, a maximum site coverage of 25%, and a maximum building height, in terms of number of storeys, as stipulated on the OZP, or the plot ratio, site coverage and height of the existing building, whichever is the greater.

27.The PD dealt with the developments within the Sub-area in general and the Sites, the Adjacent Sites as well as some of the other residential sites on the northern uphill side of Mount Davis Road in particular as follows in the MPC Paper:

“Green Mountain Backdrop

10.7 There is a great variation in the topography of the [Sub-area], ranging from about 60mPD in the northern foothill area to about 260mPD at [the] top of Mount Davis. Developments in this area mainly include low-rise houses and medium-rise buildings along Mount Davis Road, with site levels increase from about 40mPD at the northern part of Victoria Road to about 110mPD at the eastern end of Mount Davis Road. There are also some GIC uses at the top and foothill of Mount Davis. The area mainly falls within “Landscape Protection Area”, and partly falls within “Development Area of High Landscape Value” designated under the Metroplan Landscape Strategy. The southern part of the area along Mount Davis Road also falls within the [PFL] Moratorium area where land sale is deferred and no lease modification is allowed for more intensive development to avoid aggravating the traffic conditions. In view of the high landscape value and the predominantly low-rise neighbourhood on both sides of Mount Davis Road, the existing BH profile should be maintained.

…

“R(B)” Sites (Plan 13)

…

11.12 maximum BH of 140mPD[9] (ie about 64m/20 storeys) for the proposed rezoning of 52-62 Mount Davis Road from “R(B)” to “R(B)1”[10] to generally reflect the as-built conditions (B5, Plan 13).

…

11.14 maximum BH of 160mPD[11] (ie about 55m/17 storeys) for the proposed rezoning of 2A-4 Mount Davis Road from “R(B)” to “R(B)1” to generally reflect the as-built conditions (B4, Plan 13).

“R(C)” Sites (Plan 13)

11.15 maximum BH of 3 storeys for the proposed rezoning of 2 and 6-10 Mount Davis Road from “R(B)” to “R(C)” to reflect the as-built condition of 3-storey residential developments with open air car parks in general (B2 and B3, Plan 13).

…

11.17   maximum BH of 13 storeys including carports for the proposed amendment of the BH restriction for the “R(C)” sites at 64-64A and 68 Mount Davis Road (B1, Plan 13) to rationalize the BH restriction taking account of the Government’s latest policy to encourage the provision of car park in basement.

Rezoning Proposals

The following rezoning proposals (Plan 17) are to reflect the existing uses, to rationalize the boundaries and/or for more appropriate zoning:

…

Amending the BH restriction of the “R(C)” site at Mount Davis Road (Items B1, Plans B1a to B1d)

14.1   The “R(C)” zone at the western and (sic) of Mount Davis Road is subject to a BH restriction of 10 storeys over 1 level of podium and 2 levels of car park, maximum PR of 1.2 and maximum SC of 20% to avoid overloading local road network and to preserve the high landscape value as well as the character of the concerned area.  The site is currently occupied by a 10-storey residential building over podium and 1 level of car park and 4 4-storey houses at 64-64A Mount Davis Road, and a 10-storey residential building over podium and 2 level of carpark at 68 Mount Davis Road.  Taking into account the latest Government policy to encourage the provision of car park in basement, it is considered more appropriate to amend the BH restriction of the “R(C)” zone to 13 storeys including carports and to be shown on the face of the plan.

Rezoning two residential sites at Mount Davis Road from “R(B)” to “R(C)2” (Items B2 & B3, Plans B2a to B3d)

14.2   2 Mount Davis Road (On Lee) and 6-10 Mount Davis Road (Mount Davis Village and The High House) are mainly occupied by 3-storey residential buildings with open car park.  The sites fall within Residential Density Zone III, “Landscape Protection Area” designated under the Metroplan Landscape Strategy, as well as the Pok Fu Lam Moratorium area where no lease modification is allowed for more intensive development so as to avoid aggravating the traffic conditions.  The immediate neighbourhood to the south of Mount Davis Road is predominantly low-rise residential in nature and is zoned “R(C)3” with BH restriction of maximum 3 storeys including carports stipulated on the Pok Fu Lam OZP.  Besides, 2 Mount Davis Road is subject to a maximum BH of 3 storeys and a maximum roofed over area of 25% under the lease.  6-10 Mount Davis Road is subject to maximum roofed over area of 30% and 25% for 2-storey and 3-storey buildings respectively.  Given the high landscape value of the area, the lease restrictions and the local character, it is proposed to rezone the two sites from “R(B)” to “R(C)2” subject to a maximum PR of 0.75, site coverage of 25% and maximum BH of 3 storeys.”

Rezoning two residential sites at Mount Davis Road from “R(B)” to “R(B)1” (Items B4 & B5, Plans B4a to B5c)

14.3   2A Mount Davis Road (Greenery Garden) and 4 Mount Davis Road (Four Winds Apartments), which are located to the eastern end of Mount Davis Road, have already been developed into two 17-storey (148.7mPD) (excluding one basement car park) and a 13 storey (135.9mPD) residential buildings respectively.  The former is under unrestricted lease except non-offensive trade clause while the latter is subject to a maximum BH of 20 storeys over carports under the lease.  52-54 Mount Davis Road (Vista Mont Davis) (129.7mPD) and 56-62 Mount Davis Road (Cape Mansions) (139.1mPD), which are at the western end of Mount Davis Road, are occupied by 3 20-storey buildings above carport/entrance lobby.  These sites are subject to a maximum BH of 20 storeys over carports under the lease.  As all of the abovementioned sites fall within Residential Density Zone III, it is proposed to rezone the sites from “R(B)” to “R(B)1” with a maximum PR of 3, and maximum BHs of 160 mPD and 140mPD for the sites located at the eastern and western end of Mount Davis Road respectively.” (emphasis and footnote added)

C.5.3  The S/H1/18 Draft OZP

28.At its 436^th meeting held on 18 February 2011, the MPC approved, among others, the aforesaid re-zoning amendments of the S/H1/17 Draft OZP proposed by the PD.  In consequence, the amended plan in the form of the S/H1/18 Draft OZP (together with a schedule of amendments and an explanatory statement) was gazetted on 25 February 2011 and exhibited for public inspection starting from the same date for 2 months ending on 26 April 2011. 

29.To recap, the S/H1/18 Draft OZP proposed, inter alia, the following amendments:

(1)  Item B1 – Amendment to the BHR of the “R(C)” zone (i.e. 64-68 Mount Davis Road) from 10 storeys above 1 level of podium and 2 levels of car park to 13 storeys including carports and showing the restriction on the face of the plan;

(2)  Item B2 – Rezoning of the On Lee Site at 2 Mount David Road from “R(B)” (medium-rise) to “R(C)2” (low-rise), and stipulating the plot ratio, site coverage and BHRs for the zone;

(3)  Item B3 – Rezoning of the MDV Site and the site of The High House at 6, 8 and 10 Mount Davis Road from “R(B)” (medium-rise) to “R(C)2” (low-rise), and stipulating the plot ratio, site coverage and BHRs for the zones;

(4)  Item B4 – Rezoning of the Adjacent Sites from “R(B)” to “R(B)1”, and stipulating plot ratio and BHRs for the zone;

(5)  Item B5 – Rezoning of a site occupied by Vista Mount Davis at 52-54 Mount Davis Road and Cape Mansions at 56-62 Mount Davis Road from “R(B)” to “R(B)1”, and stipulating plot ratio and BHRs for the zone.

C.6  Representation of the Real Estate Developers Association of Hong Kong

30.According to paragraph 42(a) of the minutes of the Board Meeting (“Board Minutes”), the Board received a total of 638 representations in respect of the S/H1/18 Draft OZP under s 6.

31.One of the representers was REDA.  REDA does not own or have interest in any of the affected sites.  Paragraphs 2.1 and 2.2 of the REDA Representation clarified its nature and purpose:

“2.1 This Representation relates to general matters applicable to a wide range of issues which arise because of the inclusion of the building height limits and building gap requirement shown on the OZP. In other words, this representation objects to Items A, B1 to B5, C1, D1, E1, G1 to G4, J, and L shown on the Plan and Item (a) of Amendments to the Notes of the Plan.

2.2.  This submission is made in the broad interests of Hong Kong as a whole and in the interests of maintaining a fair, efficient and sustainable urban development system.”

32.The REDA Representation addressed the imposition of both BHRs (with which we are concerned insofar as they affected the Sites) and building gap requirement (with which we are not at all concerned) on the S/H1/18 Draft OZP.  With regard to the former restriction, REDA articulated the reasons for its general[12] opposition under paragraphs 3.1 and 3.2.  To put the 21.12.2011 Letters in context, I shall set out these paragraphs of the REDA Representation in full:

“3.1 Building Height Restrictions Set Too Low

Lack of Flexibility for Innovative and Quality Design

3.1.1 REDA as a general principle opposes to the setting of building height restrictions at levels which are so low as to unnecessarily constraint the provision of good quality development for the people of Hong Kong. This objective can only be achieved by providing flexibility for the design of development which provides a good internal space for people to live in and work in, with sufficient internal headroom. There [are] also needs to be flexibility (sic) for changing requirements over time and scope to meet market expectations.

Objectives for Height Limits

3.1.2 It appears from paragraph 7.1 of the Explanatory Statement that the reasons for the (sic) imposing building height limits are:

- to provide better control on development intensity and building height of development;

- to prevent out-of-context tall buildings; and

- to meet public aspirations for greater certainty and transparency in the statutory planning system.

3.1.3  No consideration has been given to building economics as well as the implications for the redevelopment of the area by the private sector.   There also appears to be no consideration of the effect of the height controls on the form of new buildings.  The imposition of low height limits has a direct negative impact on the provision of space around buildings, as it forces them to become lower and bulkier, with greater site coverage at lower levels than would be the case if the height limits were set at higher levels.  The consequences include less permeability of the urban environment, lowering of property values and reducing air ventilation at street level.

3.1.4  Imposition of building height restrictions is not considered an inappropriate means of controlling development intensity, but when used in a reasonable manner can help guide the development of a compatible urban form, which still permits variety.  It is also considered that most of the objectives for the building height restrictions can be achieved without height limits imposed at a level which generally permits a more reasonable form of development.

Control of out-of-context Tall Buildings

3.1.5  The recent public concern regarding out-of-context tall buildings appears to be basically about developments in the order of 60 storeys or taller in prominent positions.  High-rise developments in the order of 40 storeys have been in place in various parts of Hong Kong for years and they are acceptable to the public.

3.1.6  The OZP generally allows for an absolute height of only about 95m to 110m for many of the residential sites.  This is equivalent to about 30 to 35 storeys.  It is considered that the height restrictions have been set unreasonably low, lower than what is necessary to address the public concern.

3.1.7  The Planning Area is located outside the view fan of the 7 vantage points identified in the Urban Design Guidelines.   This indicates that the Planning Area is not a visually sensitive area.  Planning Department has adopted 2 local vantage points: ferry route in the western gateway to the Victoria Harbour and Harlech Road within the Lung Fu Shan Country Park.  Photomontages for the proposed building height restriction has been prepared using the above local vantage points and has revealed that there would not be significant visual impacts.  It can be seen that the taller existing and committed developments basically form the profile of the Planning Area.  A general increase of 20m to most [of] the development sites would not have adverse visual impact.

Building Height and Air Ventilation

3.1.8  A general misconception is that tall buildings block air ventilation.  However, the focus for improved ventilation at street level should be in identifying means for creating space around buildings at street level in critical locations.  This would appear to be contrary to the imposition of low building height limits as this tends to force developments down into a solid mass of building rather than encouraging the creation of space around buildings at street level.  The imposition of the height limit therefore tends to create a solid wall effect closer to ground level.

Need for Reasonable Building Height

3.1.9  The overall height profile of the Planning Areas is formed mainly by the Residential zones with Open Space and the G/IC zones as visual relief and breathing space.  However, the height restriction stipulated for the residential zones are generally too low.

3.1.10  Taking account of the building economics, technology for construction, visual considerations, ventilation and public aspirations, the height bands for the development zones should be increased.

3.1.11  Imposition of unreasonably low building height limit restraints the building bulk, making incorporation of innovative architectural design and void feature impossible. This directly affects streetscape, air ventilation and the life quality of the users of the development.

More relaxed Building Height Restrictions required for Sustainable Building Design (“SBD”)

3.1.12  The Building Department has issued new Practice notes on SBD Guidelines in January 2011.  The combined effect of the new Practice Notes and the very low building height restrictions imposed on the Kennedy Town and Mount Davies OZP in the following month has significant impact on property rights.

3.1.13  The SBD Guidelines have identified 3 key building design elements: building separation, building set back and site coverage of greenery. The objectives of putting forward the SBD Guidelines are to achieve better air ventilation, enhance the environmental quality of our living space, particularly at pedestrian level, and provide more greenery and mitigate the heat island effect.  However, REDA considers that the building height restrictions imposed on the OZP are set so low that the SBD Guidelines cannot be reasonably implemented.

3.1.14  Under the Joint Practice Note (JPN) 1 regarding Green and Innovative Buildings, sky gardens and podium gardens are encouraged. However, the JPN requires that the provision of sky garden should be subject to there being no contravention to restrictions on building height on the OZP, otherwise S.16 application for minor relaxation for the height restriction is needed. In view of the generally very low height restrictions being set on the OZP, the restrictions in effect discourage such desirable green features which require a high headroom of not less than 4.5m.

3.1.15  It is considered that the height restrictions should be reviewed and relaxed so that a holistic consideration of the regulations and Practice Notes issued by relevant government departments are taken into account.  The desirable SBD features should be encouraged and should be able to be accommodated within the height restrictions stipulated on the OZP without the need to submit S.16 application for minor relaxation.

3.1.16  There appears to be a contradiction between what the TPB is doing in these amendments and what the SBD Practice Notes are trying to achieve, yet both sets of measures appear to have the same or similar objectives.  The TPB should take the view that it needs to facilitate the implementation of the SBD Guidelines as they are to achieve a better over-all urban environment.

3.2  No Public Consultation

3.2.1  The building height restrictions and building gap requirements have been imposed on the OZP without any prior public consultation.  There has been no opportunity for the public, including the development industry and concerned property owners, to be informed of the justification for the need of the restrictions.  There has also been no explanation given to the public as to the reasons why the particular height limits and building gap requirements imposed have been adopted.  There has been no visual impact analysis made available to the public which indicates what the vision is for the long term development of the Planning Area.

3.2.2  It is strongly suggested that the Planning Department should carry out planning study for the Planning Area as in the case of Wong Chuk Hang and Kowloon Bay Business Districts.  The Department should present the public with the visual impact assessment and diagrams for consultation, in order that owners, stakeholders and the public, can be informed of the implication of the height restrictions and other amendments and submit their comments, as appropriate and before the restrictions become statutory.

3.2.3  Consultation should also have included a presentation of the assumptions that the Board has made in relation to fixing the height restrictions, especially the assumptions made in relation to building design, such as floor to floor height, allowances for non-accountable GFA, and allowances for innovative building design.  An indication as to how the restrictions would relate to the SBD Practice Notes and the revised Joint Practice Notes should also have been provided in advance of the height restrictions being imposed.”

33.REDA’s conclusions on the restrictions imposed on the S/H1/18 Draft OZP were that:

(1)  The proposed amendments (including the BHRs) imposed unreasonable restrictions on the use and development of private land. 

(2)  They would not result in a long term, better form of urban development for the Planning Area. 

(3)  They should be seriously reconsidered.

(4)  More specifically regarding the BHRs, they went much further than was necessary to achieve the stated objectives in the explanatory statement.

(5)  Incentive should be provided to encourage good development design that benefits the public.

See paragraphs 5.1 and 5.2.

34.REDA proposed, in paragraph 4.1, a general addition of 20 metres to the BHRs set to many of the development zones and the relaxation of the BHRs for sites at or near future transport nodes to free up more ground level space for pedestrians. 

35.The REDA Representation, together with all other representations received by the Board during the 2-month exhibition period ending on 26 April 2011, were published on 24 June 2011 for 3 weeks for public comments.

C.7  The applicants’ comments

36.In the meantime, in about mid-April 2011, the management office of Mount Davis Village received from the Central and Western District Office a poster advertising for a “consultation workshop” for the S/H1/18 Draft OZP to be held on 19 April 2011.   However, instead of the S/H1/18 Draft OZP, what was reproduced on that poster was the S/H1/17 Draft OZP on which the Sites were shown to remain to be zoned as “R(B)”.  The mistake was confirmed by the apology contained in the said district office’s letter dated 16 May 2011.  The applicant in HCAL 27/2012 was thus misled into thinking that the S/H1/18 Draft OZP did not affect their property and that they did not have to take any action regarding the same. When they became aware of the mistake, it was already too late to make representation on the S/H1/18 Draft OZP before the statutory deadline of 26 April 2011[13].

37.Notwithstanding that, on 15 July 2011, the applicants submitted the Comments under s 6A in support of the REDA Representation, particularly the principle enunciated in paragraph 2.2 thereof (see [31] above). According to paragraph 42(a) of the Board Minutes, a total of 12 comments were submitted in respect of the S/H1/18 Draft OZP.  The other 10 comments, all opposing the rezoning of the MDV Sites, were apparently submitted by the individual owners of Mount Davis Village including Wedgett, the corporate entity of which Mr Taylor was a director[14].

38.Since the Comments are materially identical, I shall take them together.  Leaving aside the since abandoned objection to the introduction of “spot zoning” to the 4 neighbouring sites (i.e. the Sites and the Adjacent Sites)[15], the applicants supported the REDA Representation on the following grounds.

39.First, the applicants defended the previous zoning as being logical and appropriate:

“3.1.2 The location of R(B) development on the up-hill side of roads such as Mt. Davis Road is a consistent approach long adopted by the Board in the southern part of Hong Kong Island, also on such roads as Pok Fu Lam and Repulse Bay Road. The down-hill side of such roads generally has low rise development so as to protect public views from these roads. The location of taller developments on the up-hill side of Mt. Davis Road is consistent with this approach and for the development to be set in front of a mountain backdrop to be visually compatible with the location. This situation should still apply.”

40.Second, the applicants did not see sufficient justification for re-zoning the Sites:

“3.3 Insufficient Justification for Rezoning

To Reflect the Existing Development and Lease Conditions

3.3.1 There is inadequate justification for the rezoning of the sites affected by amendment Items B2 and B3. In the MPC Paper No. 2/2011 proposing the amendments to the Outline Zoning Plan, the main justification appears to be to rezone the site to reflect the existing development on the site and existing lease (para 14.2). This is considered to be short sighted and lacking in long term vision for the development of the area. It is also unfair to the landowners within B2 and B3 as the redevelopment of their land has been frustrated by the existence of the Pok Fu Lam Moratorium which has prohibited processing of land exchanges. …

High Landscape Value

3.3.2  In paragraph 10.7 of the MPC Paper reference is made to the ‘High landscape value and the predominantly low-rise neighbourhood’ as reasons for retaining the existing building height profile.  The existing mid-rise buildings at 2A and 4 Mt Davis Road have already been developed to 17 and 13 storeys and are the dominant feature of the area.  In this respect the character of the area is established by the height, bulk and location of these buildings.  In terms of impact on the landscape quality of the area, the redevelopment of B2 and B3 to the same planning criteria as B4 would not adversely affect the quality of the landscape.  This is particularly so as in specific landscape terms any redevelopment of the site would only affect the landscaping within the existing private lots.  In more general landscape terms the locality immediately adjacent to the three amendments is zoned Green Belt and Cemetery and would continue to provide a green landscape background.  Redevelopment of the sites to R(B) standards would not have any significant negative impact on the landscape.”

41.Third, with regard to the PD’s argument that the Sites are subjected to the PFL Moratorium in any event, the applicants pointed out that:

(1)  The PFL Moratorium was not a planning measure but a temporary traffic and land administration measure introduced in the 1970’s to prevent leases, land sales, exchanges or modifications in the Po Fu Lam area until such time as adequate transport infrastructure was provided in the area to avoid aggravating the traffic condition.

(2)  Significant new transport infrastructure has since been provided in the area in terms of the MTR, the Hill Road flyover, the Aberdeen Tunnel and the link from Pok Fu Lam to Kennedy Town.

(3)  Recent traffic studies indicated there were no significant traffic issues in the Pok Fu Lam area to justify the continuing in force of the moratorium.

(4)  At its meeting on 7 September 2010, the Board considered that it should be provided with detailed assessment of the provision of transport infrastructure in the Pok Fu Lam area for the purpose of its review of the S/H1/17 Draft OZP.

(5)  Despite the PD’s position that the traffic aspect was one of the factors in considering land use planning, the MPC Paper did not include any traffic or transport study.

(6)  With the re-assessment of the continuing need for the PFL Moratorium after the completion of the West Island Line and the South Island Line (which were then still under construction), any zoning proposal that will result in a loss of potential development rights must be deferred until such time when the traffic or transport study is completed.

(7)  Further, against such background, the prospect of the moratorium being lifted was probably greater than it has ever been as the West Island Line and the South Island Line were proceeding towards construction.  

(8)  While the PFL Moratorium remains in place, the applicants have long had a reasonable and legitimate expectation for the eventual lifting of the moratorium.  In this connection, according to paragraph 20 of the Taylor Affidavit, the comment numbered C3 submitted by Wedgett referred to a letter dated 16 May 1999 to the applicant in HCAL 27/2012 in which the then Secretary for Transport said, “Barring unforeseen circumstances, the Pok Fu Lam Moratorium should be lifted well before the Cyberport is up and running.” 

(9)  It is also rather inequitable for smaller landowners to have been adversely affected by the PFL Moratorium whereas the Government has proceeded to implement the massive Cyberport development for which the moratorium had been partially lifted.

42.Fourth, there was no prior consultation with the landowners in relation to this significant change to the zoning of their properties.  The Board should be open and transparent in its dealings with the public, particularly where the effect of its decision is to reduce people’s legitimate expectations in terms of property value.  Before making such decision, adequate information, such as traffic studies, should be made available to the public so that they can understand the basis of any decision that is to be made.

C.8  TPB Paper No 8952

43.Prior to the Board Meeting, the PD prepared for the Board’s view and consideration the TPB Paper No 8952 (“Board Paper”). 

44.In the Board Paper, the PD responded to the representations, including the REDA Representation, in paragraph 4.4.  

45.Paragraph 5 of the Board Paper was devoted to the comments on the representations.  In particular, after setting out the physical descriptions and characteristics of the Sites in paragraph 5.2, the PD responded to the Comments in paragraphs 5.4.1 to 5.4.5 as follows:

“Rezoning of 2 and 6-10 Mount Davis Road to “R(C)2”

5.4.1   The concerned sites are located at the foothill of Mount Davis with a green natural setting.  Given the sites fall within “Landscape Protection Area” designated under the Metroplan Landscape Strategy, and the existing developments at Mount Davis Road are predominantly low-rise residential buildings (1 to 4 storeys), the planning intention is to maintain low-rise residential profile and development intensity along Mount Davis Road so as to preserve the high landscape value and the local character.

5.4.2  Apart from the above-mentioned considerations, the development intensity allowable under the lease has also been taken into account in formulating the development restrictions for the sites.  Rezoning of the sites to “R(C)2” with [plot ratio] restriction of 0.75, [site coverage] restriction of 25% and BHR of 3 storeys would not adversely affect the lease entitlements.  [The PFL Moratorium] is not one of the considerations in the imposition of the restrictions and so the commenter’s allegation that it is inappropriate to impose BHRs based on the temporary administrative measure of [the Pok Fu Lam Moratorium] is irrelevant. The rezoning of the sites to “R(C)2” reflects the planning intention to maintain a low-rise neighbourhood along Mount Davis Road so as to preserve the local character and high landscape value.  To cater for site-specific circumstances and schemes with planning and design merits, there is provision for minor relaxation of the BHR and each application will be considered on its individual merits.

5.4.3  With respect to the commenters’ proposal to rezone 2 and 6-10 Mount Davis Road to “R(B)1” with PR restriction of 3 and BHR of 160mPD, [the Transport Department] advises that higher development intensity at Mount Davis Road would have adverse traffic impact given the limited capacity of the narrow 2-way 2-lane single carriageway of Mount Davis Road and the busy junction at Pok Fu Lam Road/Smithfield.  Besides, it would affect the effectiveness of the planning intention to preserve the landscape value and low-rise character of the neighbourhood.

5.4.4  Regarding C1-C12’s comment that BH restrictions set too low would unnecessarily constrain the provision of good quality development, [PD]’s responses to the relevant representers’ proposals in paragraph 4.4.1 above are relevant.

Rezoning of 2A and 4 Mount Davis Road to “R(B)1”

5.4.5  2A and 4 Mount Davis Road have been developed into four 18-storey residential blocks and a 13-storey residential building (both including 1 storey of car park) by technical modification and lease modification in 1980s and 1960s respectively.  Rezoning of 2A and 4 Mount Davis Road to “R(B)1” with [plot ratio] restriction of 3 and BHR of 160mPD has taken account of the lease entitlements.”

46.In paragraph 7.2 of the Board Paper, the PD gave its overall view as regards the BHRs:

“General

(a) The purpose of imposing BHRs in the Area is to provide better planning control on the BH upon development/redevelopment and to meet public aspirations for greater certainty and transparency in the statutory planning system, to prevent excessively tall or out-of-context buildings, and to instigate control on the overall BH profile of the Area. In formulating the BHRs for the Area, all relevant factors including the Urban Design Appraisal and Urban Design Guidelines, existing topography, stepped BH concept, local characteristics, existing BH profile, site formation level, land uses, compatibility with surrounding developments, the wind performance of the existing condition and the recommendations of the [air ventilation assessment], have been taken into consideration.

(b) Sections 3 and 4 of the [TPO] and the scheme of the legislation are intended to give the Board comprehensive powers to control development in any part of Hong Kong. The Board has the power to impose BHRs and building gaps on individual sites or for such areas within the boundaries of the OZP where there are necessary and sufficient planning justifications (R2, C11 & C12).

(c) There would not be adverse impacts on the development intensity permitted under the OZP and property value in general. For an existing building which having already exceeded the BHRs, the rights of redeveloping the buildings to their existing heights would be respected on the OZP unless otherwise specified. The BHRs have struck a balance between public aspirations for a better living environment and private development rights. (R6, R7, R9-R11)

(d) The BHRs are formulated on the basis of reasonable assumptions with allowance for design flexibility to accommodate development intensity permissible under the OZP. The BHRs will not result in larger building bulk. The provision of better designed sustainable buildings is not guaranteed with more relaxed BH control (R2, R7, R12 & C1 – C12).

(e) To cater for site-specific circumstances and schemes with planning and design merits, there is provision for application for minor relaxation of the BHRs under the OZP. Each application will be considered by the Board on its individual merits.

(f) The measures on SBD Guidelines/JPN and the OZP restrictions are under two separate development control regimes, although they are complementary with each other. The SBD Guidelines and JPN are administrative measures with are complied on a voluntary basis without reference to specific district characteristics. OZP restrictions are statutory control to achieve planning objectives specific to the district (R2).

(g) Blanket relaxation of the BHRs by 20m is not supported as it would significantly increase the overall BH profile in the neighbourhood, create canyon effect, reduce the visible areas of the mountain backdrop and the waterbody of the harbour from the local vantage points and adversely affect the local character and cityscape, which is not in line with the intended planning control (R2).

…

Public Consultation

(o)  The two-month statutory exhibition period and provision for representation and comments formed part of the public consultation process.  Any premature release of information before exhibition of the amendments to the OZP might prompt an acceleration of submission of building plans, thus nullifying the effectiveness of imposing the BHRs.  All information supporting the BHR … requirements on the OZP including the AVA Report and Urban Design Appraisal, is available for public inspection (R2 and R4, C1 to C12).”

47.Insofar as it is material to the present applications, the PD also gave the following specific view as regards the Sites:

“(l)  Rezoning 2 and 6-10 Mount Davis Road to “R(B)1” would result in proliferation of high-rise developments in the low-rise neighbourhood, which is not in line with the planning intention to preserve the local character and landscape value of the area.  It would also result in adverse traffic impact at Mount Davis Road and the surrounding areas (C1 to C12).”

C.9    The Board Meeting & the oral presentations thereat

48.The representations and comments on the S/H1/18 Draft OZP, among other matters, were considered at the Board Meeting, at which Mr Ian Brownlee (“Mr Brownlee”) of Masterplan Limited[16] (“Masterplan”) represented REDA and the applicants.  In addition, the applicant in HCAL 27/2012 was further represented by Mr Taylor, who also spoke for the corporate owner of House A6 of Mount Davis Village.  They all opposed the proposed amendment items B1 – B3 and made detailed submissions to explain such opposition with the aid of photographs, plans and PowerPoint presentations.     

49.In his oral presentation on behalf of REDA, Mr Brownlee elaborated on the points made in the REDA Representation.  Mr Brownlee also specifically opposed the approach of imposing different BHRs on the Sites and their taller neighbours on the Adjacent Sites, for which there was no sufficient justifications.  The Board should adopt a broad and consistent planning approach in setting the development restrictions.

50.In speaking for the applicants, Mr Brownlee stated/reiterated that:

(1)  As reflected in most of the OZPs covering the southern part of the Hong Kong Island, the long-term planning intention for sites on the downhill side of major roads (including Mount Davis Road) was for low-rise developments whereas sites located on the uphill size was for medium density developments.

(2)  The uphill side of Mount Davis Road was zoned “R(B)” since the first Kennedy Town and Mount Davis OZP gazetted in 1986.  The planning intention of having taller buildings on the uphill side and lower buildings on the downhill side had been a development policy.  The rezoning of the Sites to “R(C)2” was not supported by adequate reason and was unfair and inconsistent with the requirements of the TPO that the Board should take a broad approach in zoning.

(3)  According to paragraph 10.7 and 14.2 of the MPC paper and paragraph 5.2.2 of the Board Paper, the PFL Moratorium was a relevant consideration in the zoning amendment affecting the Sites.  However, the moratorium was a temporary traffic and land administration measure whereas zoning on an OZP represented the long-term planning intention.

(4)  The owner of the Sites had a reasonable and legitimate expectation that the PFL Moratorium would eventually be lifted and that they would be able to proceed to redevelop the Sites as per the “R(B)” zoning.

(5)  It was inequitable that whilst redevelopment of the Sites was held up due to the PFL Moratorium, the moratorium had been partially lifted to allow the Cyberport development to proceed.

(6)  The PFL moratorium and the existing leases had been the determining factors that the existing old buildings on the Sites had not been redeveloped. The PD had taken the lease restrictions as the sole basis for imposing the development restrictions on the Sites.  However, the leases reflected the outdated historical situation on the Sites, rather that the long-term planning intention for the Sites, which was for a medium-density development under the previous OZP.

(7)  The Sites accommodated the only low-rise developments in the area.  The dominant form of development in the area was a medium size one of 10 to 21 storeys.

(8)  The Metroplan Landscape Strategy was an outdated proposal prepared in the 1980’s and was not a statutory document.

(9)  Anyway, the high landscape value of the area was derived from the green mountain backdrop of Mount Davis.  The rezoning of the Sites to “R(C)2” had no relevance to the landscape character of the area. 

(10)  Pok Fu Lam Road had no significant traffic issue as shown in the traffic impact assessment undertaken in support of the planning application in relation to the redevelopment of the Ebenezer School site.

(11)  It was unfair to impose different zonings and development restrictions on sites with similar characteristics.  The previous approach of having all uphill sites on Mount Davis Road zoned “R(B)”), with the same development rights and restrictions, was appropriate.  The imposition of a BHR of 3 storeys on the Sites was incompatible with the other medium-rise developments along Mount Davis Road.  Such zoning placed an unreasonable level of control on the private lots would result in the loss of high quality residential development, without any justifiable public benefits.

51.In representing the applicant in HCAL 27/2012 and the corporate owner of House A6 of Mount David Village, Mr Taylor (also with the aid of a PowerPoint presentation) pointed out that:

(1)  The MDV Sites were located in an area of high-rise development on the uphill side of Mount Davis Road.

(2)  The only justification for rezoning such sites from “R(B)” to “R(C)2” was to maintain the existing building heights in the immediate area.  No reason had been given as to how the “high landscape value” of Mount Davis Road would be adversely affected by a redevelopment on the MDV Sites under the “R(B)” zoning.

(3)  In contrast, a BHR of 160mPD allowed for the Adjacent Sites would result in an increase over the existing heights of Greenery Garden and Four Winds Apartments and was contrary to the PD’s express planning intention.

(4)  The traffic flow along Mount Davis Road was low.  There was no traffic assessment showing that Mount Davis Road could not accommodate the traffic generated by a “R(B)” development on the MDV Sites.

(5)  The design of the junction of Pok Fu Lam Road should have already taken into account the scale of development permitted before the rezoning proposal.

(6)  The PFL Moratorium was out of date and should have been lifted. The partial lifting for the Cyberport development had undermined the reasons for retaining the control.

(7)  In 1996, it was estimated that if Mount Davis Village could be re-developed to a plot ratio of 3, its value would be increased by 25% after the payment of land premium (for modification of the restrictive lease conditions).  Taking into account the significant rise in property values since 1996, the increase would have reached the order of $150 to $200 million.

(8)  There was no consultation on the rezoning amendment other than the invitation contained in the said Central and Western District Office poster, which was erroneous in a material aspect, in that it represented that no amendment had been made to the zoning of the Sites.

(9)  The MDV Sites should be restored to a “R(B)” zoning.

52.Likewise, according to the Mount Davis Village owners who lodged Comment C10, Mr Alexander Schrantz and Ms Jayne Kim Schrantz:

(1)  There were altogether 11 medium-rise residential blocks and towers along Mount David Road.  The character of the area should properly be described as medium-rise on the uphill side and low-rise on the downhill side of Mount Davis Road.  The area was therefore not a predominantly low-rise neighbourhood. 

(2)  Mount Davis Village was not visible in the view fan of the 7 strategic vantage points identified in the Metroplan Landscape Strategy.  They were also not visible from the two additional local vantage points selected by the PD for evaluating the visual impacts of the BHRs imposed on the OZP.  Retaining the “R(B)” zoning would not impair the landscape value and was not in conflict with the stated urban design principles.

(3)  The original “R(B)” zoning would not result in excessively tall buildings or buildings that would be incompatible with the surrounding environment so that the proposed “R(C)2” rezoning was not required for the prevention of such buildings.

(4)  The proposed rezoning would result in a reduction of the development intensity of the MDV Sites by 80%.

(5)  On the other hand, the Adjacent Sites and St Clare’s School[17] were allowed higher BHRs than their existing heights.

(6)  The lease of the MDV Sites was modified in the early 1970’s.  The PFL Moratorium followed in 1972.  Yet, the first Kennedy Town and Mount Davis OZP gazetted in 1986 zoned the Sites and the Adjacent Sites “R(B)” despite the different lease conditions.

(7)  The Metroplan Landscape Strategy was prepared in 1989.  Yet, the Sites continued to be zoned “R(B)” for 22 years thereafter until the S/H1/18 Draft OZP in February 2011.

(8)  There was no justification to support the retention of the existing as-built conditions.  Rezoning the MDV Sites to “R(C)2” seriously affect its redevelopment.  There should be other alternatives to allow suitable redevelopment of the site to a plot ratio of 3.

53.After the representers and commenters’ oral submissions, in answer to the Board’s Chairman’s question whether rezoning the Sites was mainly due to traffic concerns, Ms Brenda Au, District Planning Officer/Hong Kong, was recorded to have said the following in the Board Minutes:

“Rezoning of No. 2 and 6 -10 Mount Davis

66. … as set out in the TPB Paper, Pok Fu Lam Moratorium was not one of the considerations in the imposition of the restrictions and so the commenter’s allegation that it was inappropriate to impose BHRs based on the temporary administrative measures of Pok Fu Lam Moratorium was irrelevant. By referring to a photograph, Ms Au said that the rezoning of the sites to “R(C)2” mainly reflected the planning intention to maintain a low-rise neighbourhood along Mount Davis Road so as to preserve the local character and high landscape value. With respect to the commenters’ proposal to rezone No. 2 and 6-10 Mount Davis Road to “R(B)1” with plot ratio restriction of 3 and BHR of 160mPD, TD had advised that higher development intensity at Mount Davis Road would have adverse traffic impact given the limited capacity of the Mount Davis Road and the busy junction at Pok Fu Lam Road/Smithfield. Besides, it would affect the effectiveness of the planning intention to preserve the landscape value and low-rise character of the neighbourhood.

67. Ms. Brenda Au continued to state that apart from the planning intention, the development intensity allowable under the lease had also been taken into account in formulating the development restrictions for the sites. No.2 Mount Davis Road was subject to a maximum building height of 3 storeys and a maximum roofed area of 25 % under the lease. For No. 6-10 Mount Davis Road, development was subject to a maximum roofed over area of 30% for 2-storey and 25% for 3-storey buildings. Rezoning these two sites to “R(C)2” with PR restriction of 0.75, site coverage of 25% and BHR of 3 storeys would not adversely affect the lease entitlements. However, for the Greenery Garden, it had already been developed into four 18-storey residential blocks(148.7mPD) with an existing PR of about 5.93, whereas Four Winds Apartments was a 13-storey (144.9mPD) residential block. As such, these two sites were rezoned to “R(B)1” with a PR of 3. Given that these existing developments had a generally low floor-to-floor height, e.g. about 2.65m for Greenery Garden, a BHR of 160mPD which was slightly higher than the existing building height was imposed so as to allow a more reasonable floor-to-floor height upon future redevelopment.”

C.10  The Board’s deliberation & the Decision

54.It was then recorded in paragraph 86 of the Board Minutes that after deliberation, the Board decided not to uphold the REDA Representation.  The reasons for the Decision were noted in 8 sub-paragraphs under paragraph 86.  It is not necessary to recite those reasons.  It is sufficient to say that the Board’s reasons for the refusal of the BHRs replicated almost word-for-word paragraph 7.2(a), (b), (d), (e), (f), (g) and (o) of the TPB Paper prepared by the PD (see [46] above). The only differences that I can spot are (1) the use of the past, instead of the present, tense in the Board Minutes and (2) the addition of the words “under the Town Planning Ordinance” in paragraph 86(h) of the Board Minutes in dealing with the criticism of lack of public consultation.

55.The Board’s determination of the representations was preceded by 13 paragraphs (paragraphs 71 to 83) under the heading “Deliberation Session”.  With the exceptions of paragraphs 76, 77, 80 and 81, the other 8 paragraphs spanning over approximately a total of three A4 pages all dealt with the BHRs.  It is unnecessary to recite these paragraphs.  However, it is noteworthy that:

(1)  The Chairman of the Board opened the deliberation session by observing that as a general principle, the imposition of the BHRs would not adversely impact on the development intensity of the site permitted under the OZP and that it was not appropriate to consider the property value in formulating the BHRs.

(2)  This was followed by the Secretary of the Board (who was the Deputy Director of Planning/District) saying that where development intensity and property value might be affected, “this must be fully justified for the public good and in the wider interests of the community”.

(3)  Members were noted to have agreed that the BHRs imposed on the OZP were appropriate and would meet “the public aspiration for a better living environment and hence for public interest.  In formulating the BHRs, the Board had already struck a balance between community aspiration for a better living environment and private development right”.

(4)  The Secretary also made the following observations in respect of the comments:

“79. Regarding the comments of C10 on the Board’s refusal to accept the representation submitted from the owners of Mount Davis Village, the Secretary said that as stipulated in the Ordinance, representations submitted after the expiration of the specified public inspection period should be treated as not having been made. The Secretary said that R2 opposed the imposition of BHRs and building gap restrictions in general. Although C1 to C12 claimed that they supported R2’s representation, their comments were in fact related to the rezoning of No.2 and 6 – 10 Mount Davies Road to ‘R(C)2’ with imposition building height and plot ratio restrictions. Judging from the nature of the comments and the commenters’ proposals, they could have been submitted as representations within the statutory exhibition period. According to the TPO, representations were required to be published for public comments, but there was no requirement to publish comments on representations. Members noted.” (emphasis added)

(5)  The specific discussion on the Sites and the Adjacent Sites was recorded in paragraph 83:

“Four Sites at Mount Davis

A member said that the sites were located at the foothill of Mount Dais with a green natural setting. In view of the high landscape value and the predominant occupation of low-rise residential buildings in the area, the planning intention to maintain a low BH profile and development intensity along Mount Davis Road was appropriate. Hence, the “R(C)2” zoning for No. 2 and 6-10 Mount Davis was supported. It was also noted that rezoning of the sites to “R(C)” with PRC restriction of 0.75, SC restriction of 25% and BHR of 3 storeys would not adversely affect the lease entitlements. This Member opined that rezoning No. 2 and 6-10 Mount Davis Road to “R(B)1” with a plot ratio of 3 and a maximum BHR of 160mPD as proposed by the comments would result in in proliferation of high rise developments in the low-rise neighbourhood. Other Members agreed.”

56.As stated in [2] above, the Board communicated the Decision to the applicants by the 21.11.2011 Letters.  A letter of the same content (included in “21.11.2011 Letters”) was also sent to Masterplan as REDA’s representative.  The three 21.11.2011 Letters are identical and materially read as follows:

“After giving consideration to the representations and related comments, the Town Planning Board (TPB) decided on 25.11.2011 not to propose amendment to the above Plan to meet the Representation No.R2 for the following reasons:

(a) The purpose of imposing building height restriction (BHRs) in the Area is to provide better planning control on the building height (BH) upon development/redevelopment and to meet public aspirations for greater certainty and transparency in the statutory planning system, to prevent excessively tall or out-of-context buildings, and to instigate control on the overall BH profile of the Area. In formulating the BHRs for the Area, all relevant factors including the Urban Design Appraisal and Urban Design Guidelines, existing topography, stepped BH concept, local characteristics, existing BH profile, site formation level, land uses, compatibility with surrounding developments, the wind performance of the existing condition and the recommendations of the Air Ventilation Assessment (AVA), have been taken into consideration.

(b) Sections 3 & 4 of the Town Planning Ordinance and the scheme of the legislation are intended to give the TPB comprehensive powers to control development in any part of Hong Kong. The TPB has the power to impose BHRs and building gaps on individual sites or for such areas within the boundaries of the Outline Zoning Plan (OZP) where there are necessary and sufficient planning justifications.

(c) The BHRs are formulated on the basis of reasonable assumptions with allowance for design flexibility to accommodate development intensity permissible under the OZP. The BHRs would not result in larger building bulk. The provision of better designed sustainable buildings is not guaranteed with more relaxed BH control.

(d) To cater for site-specific circumstances and schemes with planning and design merits, there is provision for application for minor relaxation of the BHRs under the OZP. Each application would be considered by the TPB on its individual merits.

(e) The measures on Sustainable Building Design (SBD) Guidelines/Joint Practice Notes (JPN) and the OZP restrictions are under two separate development control regimes, although they are complementary with each other. The SBD Guidelines and JPN are administrative measures which are complied on a voluntary basis without reference to specific district characteristics. OZP restrictions are statutory control to achieve planning objectives specific to the district.

(f)  Blanket relaxation of the BHRs by 20m is not supported as it would significantly increase the overall BH profile in the neighbourhood, create canyon effect, reduce the visible areas of the mountain backdrop and the waterbody of the harbour from the local vantage points and adversely affect the local character and cityscape, which is not in line with the intended planning control.

…

(h)  The two-month statutory exhibition period and provision for representations and comments form part of the public consultation process under the Town Planning Ordinance.  Any premature release of information before exhibition of the amendments to the OZP may prompt an acceleration of submission of building plans, thus nullifying the effectiveness of imposing the BHRs.  All information supporting the BHR and building gap requirements on the OZP including the AVA Report and Urban Design Appraisal, is available for public inspection.”

57.Again, one cannot help but note that these paragraphs of the 21.11.2011 Letters repeated paragraph 86 of the Board Minutes that, in turn, regurgitated paragraph 7.2. of the TBP Paper.

D.  GROUNDS FOR JUDICIAL REVIEW

58.In challenging the Decision, each of the applicants filed a 56-page Form 86, which mirrors the other.  They relied on the same grounds for judicial review which were set out in the following shorthand “headings” in paragraph 2(2) of each applicant’s Form 86[18]:

(1)  “Misunderstanding a policy; Wrongful application of a blanket policy generally and in breach of the Board’s statutory duty under s 6B(8) of the Ordinance”;

(2)  “Failure to give reasons or inadequate reasons; “regurgitation””;

(3)  “Wrongful exercise of power; procedural irregularity and Wednesbury unreasonableness”;

(4)  “Discrimination, inequality of treatment and inconsistency; Khatun unreasonableness”;

(5)  “Illogicality, irrationality and material errors of fact”; and

(6)  “Disproportionate interference with property rights”.

59.The arguments in support of the said grounds for judicial review are presented in an intertwined manner with a lot of repetitions.  However, it is tolerably clear that they attack both the substantive and procedural aspects of the Decision.   I hope to be forgiven for not dealing with all or each of these grounds individually or in the order that they are set out in the Form 86 or the applicants’ written outline argument.  I believe it would do sufficient justice to the applicants’ case and the respondent Board’s answers by addressing the following questions:

(1)  Did the Board fail to consider or adequately consider the Comments and the oral submissions on behalf of the applicants at the Board Meeting or any relevant matters in arriving at the Decision?

(2)  Did the Board fail to give reasons or adequate reasons for the Decision?

(3)  Was the Decision Wednesbury unreasonable?

60.I, however, do not propose to take these questions one by one separately as they are in the present context obviously inter-related.  For instance, the absence of reasons for rejecting a relevant matter may indicate a failure to consider the same and may further render the decision Wednesbury unreasonable.

61.What I propose to do is to put together in a focal manner the factual case placed by the PD and the applicants before the Board at the Board Meeting and then to examine, with reference to the 21.11.2011 Letter and the deliberations and reasoning noted in the Board Minutes, to see whether and, if so, how the Board dealt with each and every material aspect of the case before it with a view to answering the 3 questions set out in [59] above.  In so approaching the matter, I am again mindful that the court is not concerned with the overall merits of the planning decision entrusted by the TPO to the Board.

E.  THE CASE BEFORE THE BOARD THAT APPEARED TO BE RELEVANT TO THE ZONING OF THE SITES

62.At the Board Meeting, the Board had before it: the Board Paper, the representations including the REDA Representation, the comments including the Comments, the PD’s oral briefings and responses to the representations and comments and the oral presentations from the representers and commenters including the Applicants and the visual aids used to assist such presentations.

63.The picture that the Board could get from such materials should, at least, be the following:

(1)  First, the Planning Area is located outside the view fan of the 7 vantage points identified in the Urban Design Guidelines as well as the 2 local vantage points (i.e. the ferry route in the western gateway to the Victoria Harbour and Harlech Road within the Lung Fu Shan Country Park) adopted by the PD.

(2)  Second, Mount Davis rises to 260mPD.  Mount Davis itself provides the “green mountain backdrop” to the entire Mount Davis Road and the buildings along it.

(3)  Third, Mount Davis Road runs along the foothill of Mount Davis between Po Fu Lam Road at the east end and Victoria Road at the west end.

(4)  Fourth, between these two ends, residential developments had taken place on both sides of the road.

(5)  Fifth, all the developments on the southern downhill side of Mount Davis Road are low-rise of 3 storeys at most, with just 1 or 2 storeys visible from the road.

(6)  Sixth, in contrast, the following 10 out of 13 residential sites along the northern uphill side of Mount Davis Road had, presumably prior to the coming into effect of the PFL Moratorium in 1972, been developed or redeveloped to the following extents:

Building	Street Number	Number of Blocks	Number of Storeys	mPD (if known)
Greenery Garden	2A	4	18-20	148.7mPD
Four Winds Apartments	4	1	13	144.9mPD
Vista Mount Davis	52-54	1	20 above carport/entrance podium	129.7mPD
Cape Mansion	56-62	2	18-20 above carport/entrance podium	139.1 mPD
Villas Sorrento	64-66	1	10 above 2 levels of carport/ entrance podium	_
_	68	1	10 above 3 levels of carport/ entrance podium	_

One should add to the list the St Clare Girls’ School which stands at 108mPD.  On Lee, Mount Davis Village, The High House and the 4 houses of Villas Sorrento are the only low-rise structures on the northern uphill side of Mount Davis Road.

(7)  Seventh, arising from the above, there was disagreement between the PD and the applicants as to the proper characterisation of the neighbourhood.  On one hand, the PD asserted that it is predominantly low-rise.  On the other hand, the applicants emphasised that the uphill side Mount Davis Road where the Sites are located is predominantly medium-rise with developments up to 20 storeys.  Even taking into account the downhill side, the neighbourhood should be regarded as mixed low and medium-rise.

(8)  Eighth, regardless of such debate, the location of low density developments on the downhill side of a road like Mount Davis Road and the location of medium density developments on the up-hill side had been a planning approach consistently adopted by the Board in relation to other roads in the southern part of the Hong Kong Island.

(9)  Ninth, photomontages using the abovementioned vantage points revealed that there would not be significant visual impacts if On Lee and Mount Davis Village and the High House were to be redeveloped to the permitted height of their immediate taller neighbours (i.e. 160mPD).

(10)  Tenth, the Government leases of the Sites capped the building heights to 2-3 storeys.

(11)  Eleventh, the PFL Moratorium would prevent a modification of these leases.

(12)  Twelfth, while on traffic concern, on one hand, the Transport Department had advised the PD that higher development density at Mount Davis Road would have adverse traffic impact given the limited capacity of the narrow 2-way 2-lane single carriageway of Mount Davis Road and the busy junction at Pok Fu Lam Road/Smithfield.  In contrast, Mr Taylor, presumably a daily or otherwise frequent user of the road, had informed the Board that the volume of traffic along Mount Davis Road was low.

(13)  Thirteenth, from the gazettal of the first Kennedy Town and Mount Davis OZP in 1986 up until the exhibition of the S/H1/17 Draft OZP on 26 March 2010, all the sites on the northern uphill side of Mount Davis Road (including the Sites) had always been zoned R(B) (allowing medium-rise, medium-density development).

(14)  Fourteenth, stunting the redevelopment potential of the Sites at 3 storeys would mean an estimated loss of redevelopment value to the tune of $150 to $200 million to the applicants.

(15)  Fifteenth, in contrast, the other taller buildings on the same side of Mount Davis Road were allowed even greater heights in order to provide room for more reasonable floor-to-floor height upon future redevelopment, which objective was obviously achievable by capping these existing taller buildings at their current heights but with fewer storeys.

F.  DISCUSSION

64.The proposed amendment to rezone the Sites to R(C)2 (permitting low-rise, low-density development) with plot ratio capped at 0.75, site coverage at 25% and building height at 3 storeys under the S/H1/18 Draft OZP represented a change in planning intention, an extremely significant change from the point of view of the applicants given the said estimated drop in redevelopment values of the Sites with the proposed BHRs which would make redevelopment somewhat not cost-effective.

65.A land owner’s right to redevelop his land is a part, an important part, of his private property rights which are “obviously substantial and of high constitutional significance, reflecting the general principle of safeguarding private property rights guaranteed by the Basic Law”: per Ribeiro PJ in Hysan, supra, at [125].  A proper consideration of the proposal for, and objections to, the imposition of BHRs on the Sites in the instant case would, in my opinion, require the Board to identify, and examine, the reasons for such a change in planning intention.

66.In this connection, the explanations for imposing BHRs on the Sites placed by the PD before the Board were:

(1)  It would provide better control on development intensity and building height of development.

(2)  It would meet public aspirations for greater certainty and transparency in the statutory planning system.

(3)  It would prevent out-of-context tall buildings.

(4)  The Sites are in the Sub-area falling within or partly within the “Landscape Protection Area” and the “Development Area of High Landscape Value” designated under the Metroplan Landscape Strategy of 1989.  The BHRs would preserve the high landscape value of the Sub-area.

(5)  It would also preserve the local character as a predominantly low-rise neighbourhood on both sides of Mount Davis Road.

(6)  It reflects the existing uses of the Sites.

(7)  It coincides with the development restrictions in the Government leases of the Sites.

(8)  It also reflects the restraint on development imposed by the PFL Moratorium.

(9)  It would avoid overloading the local road network.

67.On the other hand, the applicants had addressed these justifications or laid before the Board materials that might neutralise the PD’s justifications or put them in context.

(1)  The reference to the provision of better control on development intensity and building height of development may be thought to be begged the question of why the developments at the Sites should be controlled at 3 storeys.

(2)  Likewise, the open planning process itself and the publication of OZPs, rather than the imposition of BHRs, may be considered sufficient to satisfy the public’s aspirations for greater certainty and transparency in the statutory planning system.

(3)  The applicants’ quest was to restore the Sites to its previous R(B) zoning.  Such more relaxed zoning would result in medium density developments which would be congruous with the existing medium-rise buildings on the same side of the road and therefore not out of context.

(4)  As for preservation of the high landscape value, the argument had been made by Mr Brownlee that the high landscape value was derived from the green mountain backdrop of Mount Davis (see [50(9)] above).  The rezoning of the Sites to “R(C)2” had no relevance to the landscape character of the area.  In any event, it appears that Mount Davis was not visible from the material vantage points. In this connection, notwithstanding the publication of the Metroplan Landscape Strategy, which designated the Sub-area as a “Landscape Protection Area and “Development Area of High Landscape Value”, in 1989, the Sites remained to be zoned as a R(B) site until the publication of the S/H1/18 Draft OZP on 25 February 2011.

(5)  Whether the neighbourhood was predominantly low-rise was hotly debated between the PD and the applicants. 

(6)  The reliance on the existing uses of the Sites may, likewise be regarded as begging the question and not giving adequate weighting to the applicants’ private property rights as owners’ of the Sites, including the right to redevelop the Sites in a manner that is meaningful and beneficial to them.

(7)  The Government leases of the Sites dated back to the early 1920’s.  The restrictive lease conditions were not set in stone but could be modified on payment of a premium without the PFL Moratorium.  A case on point was the owner of the site of Four Winds Apartments did procure a lease modification to enable such development to take place before there was the PFL Moratorium.  The redevelopment of the MDV Site did not follow only because of the PFL Moratorium.

(8)  The PFL Moratorium appeared to be not immovable either.  It had been pointed out to the Board that it was in the first place implemented as a temporary traffic and land administration measure until the provision of adequate transport infrastructure in the Po Fu Lam area.  Significant new transport infrastructure had since been provided in the area.  The former Secretary for Transport had in May 1999 represented to the applicant in HCAL 27/2012 that barring unforeseen circumstances, the PFL Moratorium should be lifted well before the Cyberport was up and running.  Recent traffic studies undertaken in support of the planning application in relation to the redevelopment of the Ebenezer School site indicated there were no significant traffic issues in the Pok Fu Lam area to justify the continuing in force of the moratorium.  The Board itself had at a recent meeting in September 2010 called for a detailed assessment of the provision of transport infrastructure in the Pok Fu Lam area for the purpose of its review of the last version of the same OZP.  The moratorium was partially lifted to make way for the completion of the Cyberport project.  The applicants had questioned the fairness of having only small landowners subjected to the PFL Moratorium.

(9)  Despite the restrictions imposed by the Government leases and the PFL Moratorium, the Sites had persistently been assigned a R(B) zoning since 1986, i.e. for 25 years.

(10)  As for the burden on the local road network, the PD’s statement of the Transport Department’s advice was not backed up by any traffic or transport studies.  There was at least a conflict in the evidence before the Board in that Mr Taylor had informed the Board that the volume of traffic along Mount Davis Road was low.

In setting out these observations, this court is not trying to usurp the statutory function of the Board but is just collating the considerations that an independent and neutral board should, but appeared not to, have processed on the materials available to it in this case.

68.Turning then to the Board’s deliberation and reasoning, I have already mentioned in [54] that the Board’s reasons at the Board Meeting for the refusal to delete the BHRs was an almost wholesale adoption of paragraph 7.2(a), (b), (d), (e), (f), (g) and (o) of the TPB Paper prepared by the PD (quoted in [46] above).  The approach was carried over to the 21.12.2011 Letters. 

69.The Hong Kong courts have said, on multiple occasions in the context of town planning judicial reviews, that the wholesale and verbatim adoption by the Board of the PD’s reasons for a planning decision may point towards an unlawful failure to exercise the independent judgment required by s 6B(8)[19]: see Smart Gain Investment Ltd v Town Planning Board, HCAL 12/2006, 6 November 2007 at [29]-[30], [100]-[105] (per A Cheung J as he then was); Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155 at [82] (per A Cheung J), [104] and [105] (per Stock JA); Hysan Development Company Ltd v Town Planning Board, CACV 232 & 233/2012, 13 November 2013, [199]-[201] (per Lam VP); and Town Planning Board v Oriental Generation Ltd, CACV 127 & 129/2012, 13 November 2014, at [150]-[151].

70.More recently, in Tung Chun Co Ltd v Town Planning Board [2018] 3 HKLRD 466; [2018] HKCFI 1447, after citing the authorities mentioned in [69] above, Chow J said that:

“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.”

I gratefully adopt such a sensible suggestion.

71.I am afraid an examination of the Board’s deliberation and reasoning at paragraphs 71 to 75, 78, 79, 82, 83 and 86 of the Board Minutes for maintaining the BHRs imposed on the Sites and of the 21.12.2011 Letters does indicate a failure on the part of the Board to exercise the independent judgment required by s 6B(8). One cannot detect any hint that the Board had considered or adequately considered the case, or counter arguments to the PD’s reasoning, presented by the applicants.

72.Such a failure to give any or any adequate consideration to the Comments had inevitably given rise to a failure to give reasons or sufficient reasons in response to the Comments.

73.In these applications, Mr Chan SC submitted on behalf of the Board that:

(1)  The Board’s legal duty under s 6B(8) was to consider whether or not to propose amendments that would address a relevant representation.  The section did not require the Board to consider comments upon representations.  It was not the Board’s task to consider and respond to comments simpliciter.  Comments in this context were considerations which might inform the Board’s response to representation.  Hence, under the current statutory scheme, the representation and comment are of different nature.

(2)  In the present case, the true nature of the Comments was representations made out of the statutory time, which the Board was entitled to ignore.  The Decision rightly addressed only the REDA Representation as to whether to propose amendments in the face of it.

(3)  In reliance on Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority [1998] 2 HKLRD 857 at 865H-A, save and except it was required by the statute, there was no common law duty to give reason.

(4)  Duty to give reasons might arise as a matter of fairness, which was highly contextual.  Given the applicants failed to make representation within the statutory time, it could not be said to be unfair that their comments were ignored.

(5)  In any event, the TPB Paper and the Board Minutes contained sufficient materials that addressed the concerns raised by the applicants.   Hence, the applicants suffered no substantial prejudice by the failure to give adequate reasons.

74.With respect, I do not agree with such submissions.

75.First, regarding the nature of the Comments, s 6A (with the heading “Comments on representations”) does not give any definition, whether restrictive or otherwise, of what qualifies as a comment.  The Comments therefore do not fall outside any definition of “comment”.  Nor is there any evidence or suggestion that the Comments did not comply with any requirements prescribed by the Board pursuant to s 6A(2).  Further, notwithstanding what the Secretary of Board was noted in paragraph 79 of the Board Minutes to have said (see [55(4)] above), the Board neither made any ruling that the Comments were in substance representations made out of time, nor exercised its power under s 6(3)(a) to treat them as if they had not been made.  There is no suggestion that the applicants were not entitled to attend the Board Meeting under s 6B(3).  On the contrary, as mentioned in [48] to [52] above, the applicants’ representatives did in fact attend the Board Meeting and make detailed presentations thereat.  In short, the Board had never treated the Comments as representations out of time.

76.Second, there are forceful reasons why it is desirable for the administrative decision makers to give reasons for their decisions.  Li CJ gave 4 such reasons in Oriental Daily, supra, at 867D-G:

“First, it would impose desirable intellectual discipline and concentrate attention on the relevant issues. It would thus assist in ensuring that any decision is made on proper grounds and contribute to the effective disposal by the tribunal of its work. Secondly, reasons would assist in demonstrating to the parties that the tribunal has carried out its task properly and would enable them to decide on the appropriate course of action in the case at hand, including whether to appeal or apply for judicial review. It would also provide guidance in the future to the community and persons concerned in this area. Publishers as well as the law enforcement and prosecuting authorities would have a better understanding of the standards as applied by the tribunal and would be in a better position to make their own decisions accordingly. Thirdly, the reasons given by the tribunal will promote and enhance consistency in its decision making and assist the law enforcement and prosecuting authorities. I would observe that broad consistency in approach is important. Fourthly, the giving of reasons would demonstrate to the community that the tribunal is functioning properly and this would engender public confidence.”

77.While Mr Chan SC correctly pointed out that there is no general common law duty to give reasons, there is undoubtedly a trend towards an insistence towards a greater openness in decision making and the common law is likely to apply its characteristic of pragmatism and robustness in this area.  Indeed, Elias LJ has recently observed in R (Oakley) v South Cambridgeshire District Council [2017] 1 WLR 3765 (CA) at [29] – [30] that:

“29  It is firmly established that there is no general obligation to give reasons at common law, as confirmed by Lord Mustill in Ex p Doody [1994] 1 AC 531. However, the tendency increasingly is to require them rather than not. Indeed, almost 20 years ago, when giving judgment in Stefan v General Medical Council [1999] 1 WLR 1293, 1301, Lord Clyde observed:

“There is certainly a strong argument for the view that what was once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions.”

30  In view of this, it may be more accurate to say that the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so.”

78.I respectfully agree.  The time may have come for the courts in Hong Kong to recognise that there is a general duty for an administrative body to give reason, unless there is a proper justification for not doing so.

79.If so, it boils down to whether there was a proper justification for not giving reasons for rejecting the Comments. According to the Board, the justification rests on the statutory distinction between a representation and a comment in respect of a representation.  I beg to differ.

80.As Mr Chan SC rightly pointed out, a proper justification must be based on the test of fairness.  See Lister Assets Limited v Chief Executive in Council, CACV 172/2017, unreported, 19 April 2013, at [20].  See also Oriental Daily, supra, at 866F-G.

81.Insofar as fairness is concerned, substance should take precedence over form.  In my view, a major difference between a representation and a comment lies in s 6(2)(a)(ii) – whereas a representation must contain the nature and reasons therefor, there is no corresponding requirement in respect of a comment.  On one end of the spectrum, a comment can be very short.  It may contain only a general assertion of support (or opposition) in respect of a representation.  In such circumstances, it is understandable that no separate reason is given for accepting or rejecting a comment.

82.However, on the other end of the spectrum, a comment may be long and contain elaborate reasoning.  I am not aware of any provision in the TPO that prohibits such a comment.  According to s 6B(8), before deciding whether or not to propose amendments as per a representation, the Board should give consideration to the representation as well as the comments.   The word “consideration” was defined by Black CJ in Tickner v Chapman (1995) 57 FCR 451 at 462C, “Consideration of a document such as a representation or a submission … involves an active intellectual process directed at that representation or submission”.  Hence, a mere reading of the representation / comment and obtaining advice in respect thereof do not suffice – the decision maker must have to personally consider them rather than rely on an official’s consideration of them: Tickner v Chapman, supra, at 464D-E.  Li CJ also said in Oriental Daily, supra, at 868B that “the reasons should show that the issues that arise for serious consideration have been considered.”  In the same vein, Sales LJ opined in the Oakley case at [79] that

“Where the public interest in ensuring that the relevant decision-maker has considered matters properly is especially pressing, as in cases of grant of planning permission as a departure from the development plan or in cases of granting permission as a departure from the usual protective policy in respect of the Green Belt, that is a factor capable of generating an obligation to provide reason. This is because requiring the giving of reasons is a way of ensuring that the decision-maker has given careful consideration to such a sensitive matter. Similarly, where a person’s private interest is particularly directly affected by a decision, that may also provide a normative basis for imposition of a duty to give reason.”

83.I appreciate Mr Chan SC’s submissions during the hearing that there may be a large number of representations, and even more so given comments on top of that.  I note that it is the practice of the Board that reasons are always given in respect of representations.  I have also said earlier that whether to give reasons depends on the substance of the comments.  Accordingly, I am not persuaded that the mere large number of representations and/or comments could be a countervailing factor for not giving reasons to commenters.

84.It cannot be disputed that the private economic interests of the applicants were affected by the Decision. Accordingly, in my judgment, the Board should demonstrate with objective evidence that it had given due consideration of the Comments in compliance with s 6B(8).  It is especially so where the Comments contained elaborate reasoning, as fairness demands that the Board should demonstrate that it had engaged with such reasoning in its decision.  In the present case, it is hard to see how the Board can be said to have discharged such statutory duty if no or no adequate reasons were given.

85.For these reasons, the first and second questions posed in [59] above must be answered in the affirmative.

86.Such cumulative failures also, in my view, rendered the Decision Wednesbury unreasonable, particularly in view of the matters set out in [63] and [67] above.

87.I believe these conclusions are sufficient to dispose of the present judicial review applications.

G.  DISPOSITION

88.For the reasons set out above, I make an order of certiorari to bring up and quash the Decision with a direction that the REDA Representation, together with the comments thereon, be remitted to the Board for reconsideration. 

89.I also make an order nisi that the Board should pay the applicants their costs in these applications to be taxed on a party and party basis if not agreed.

Mr Nigel Kat SC, instructed by Mayer Brown JSM for the applicants

Mr Abraham Chan SC and Mr Anthony Chan, instructed by the Department of Justice for the Board