Hong Kong Sheng Kung Hui Foundation v. Town Planning Board

HCAL 475/2020

[2020] HKCFI 597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 475 OF 2020

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BETWEEN

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Before:  Hon Chow J in Chambers

Date of Hearing:  7 April 2020

Date of Decision:  16 April 2020

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D E C I S I O N

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INTRODUCTION

1.This is an application for an interim stay of the proceedings before the Town Planning Board (“the Board”) regarding certain proposed amendments to a draft OZP to amend the approved Central District Outline Zoning Plan No S/H4/16 (“the Approved OZP”).

2.In what follows, references to “Section” or “s” shall be to the Town Planning Ordinance, Cap 131 (“the Ordinance”).

BACKGROUND FACTS

3.The Applicant, a body corporate, is the registered owner of the site known as Inland Lot No 7360 (“the Site”), colloquially known as “Bishop Hill”, which abuts on Glenealy, Upper Albert Road and Lower Albert Road in Central.  There are eleven buildings on the Site, including the Bishop’s House, St Paul’s Church, the former Hong Kong Central Hospital and other buildings which were used for ecclesiastical, educational and social welfare purposes.  Four of the buildings are graded historic buildings (comprising three Grade 1 buildings and one Grade 2 building) located in the Southern, Western and Northern parts of the Site respectively.

4.Currently, the approved outline zoning plan applicable to the Site is the Approved OZP, which was approved by the Chief Executive in Council on 1 November 2016.  Under the Approved OZP, the Site is zoned “GIC” and there is no restriction on plot ratio, building height or site coverage applicable to the Site.

5.In or around 2013, the Applicant proposed to redevelop a part of the Site into a 25-storey, single-block, private hospital with a height of 138.8mPD and a gross floor area of 36,228m², while preserving the four graded historic buildings in situ, with the three Grade 1 buildings being wholly preserved and the remaining Grade 2 building being retained and its interior altered.

6.In 2018, “the Government Hill Concern Group” made an application to the Board under s 12A to amend the Approved OZP to rezone the Site to “OU (Heritage Precinct)” or “G/IC(1)” with a building height restriction (“BHR”) equivalent to that of the existing buildings on the Site (ie no higher than 80mPD).  That application was rejected by the Board in August 2018.  However, the Board also expressed concern about the urban design of the Applicant’s proposed development, particularly the massive size of the building proposed to be erected on the Site which the Board considered was not, or might not be, harmonious with the surrounding areas, and requested the Planning Department to consider suitable amendments to the Approved OZP to ensure that the urban design aspect of any redevelopment on the Site would be subject to the scrutiny of the Board.

7.Following the Board’s request, on 30 April 2019, the Chief Executive in Council referred the Approved OZP to the Board for amendment under s 12(1)(b)(ii).

8.On 10 May 2019, the Board proposed to adopt certain amendments of the Approved OZP, namely, (i) rezoning the Northern and Southern parts of the Site to “G/IC(1)”, and (ii) imposing specific BRHs of 135mPD for the Northern part and 80mPD for the Southern part of the Site.  On 24 May 2019, the Draft Central District Outline Zoning Plan No S/H4/17 (“the Draft OZP”) incorporating the aforesaid amendments was exhibited for public inspection pursuant to s 5 of the Ordinance.

9.Pursuant to ss 6 and 6A, a total of thirty three valid representations on the Draft OZP (including a representation by the Applicant, namely, R31) and twenty two valid comments on the representations were received.  All those who made representations opposed the proposed amendments to the Approved OZP, except R33 (who only provided views).  The Applicant’s position was that the zoning of the Site should be reverted back to G/IC without any BHR, or the BHR for the Northern part of the Site should be increased to 150mPD.

10.The representations and comments were considered at a meeting of the Board held pursuant to s 6B on 6 December 2019 (“the December 2019 Meeting”).  After giving consideration to the representations and comments, the Board decided to partially uphold representations R1 to R30 and propose to amend the Draft OZP under s 6B(8) (“the 1^st Decision”) by:

(1)  changing the BRH of the Northern part of Site from 135mPD to 80mPD; and

(2)  adding to the Remarks of the Notes for the “G/IC(1)” zone the following -

“On land designated ‘Government, Institution or Community (1)’, any new development or redevelopment of existing building(s) requires planning permission from the Town Planning Board under section 16 of the Town Planning Ordinance”,

to ensure that any new development or redevelopment of the Site would be compatible, in urban design terms, with the historical buildings upon the Site and the surrounding areas.

11.The 1^st Decision was published through the publication of the minutes of the December 2019 Meeting on the Board’s website on 23 December 2019.  The Board informed the Applicant of the 1^st Decision by a letter dated 27 December 2019, which letter the Applicant received on 30 December 2019.

12.On 10 January 2020, the Board considered and approved the proposed amendments of the Draft OZP (“the Proposed Amendments”) prepared by the Planning Department regarding the precise wording of the 1^st Decision and agreed that they were suitable to be made available for public inspection under s 6C(1) (“the 2^nd Decision”).  The 1^st and 2^nd Decisions shall hereinafter collectively be referred to as “the Decisions”.

13.On 13 March 2020, notice that the Proposed Amendments were available for public inspection was given under s 6C(2).

14.There are further prescribed steps to be taken under the Ordinance before the Draft OZP (as amended by the Proposed Amendments under s 6B(8), or further amended under s 6F(8)) can be submitted to the Chief Executive in Council for approval under s 8.  In particular:

(1)  Under s 6D(1), further representation in respect of the Proposed Amendments may be made by any person (other than one who has made representation or comment after consideration of which the Proposed Amendments are proposed under s 6B(8)).

(2)  Under s 6F(1), the Board is required to hold a meeting to consider the further representations.  At the s 6F(1) meeting, those persons who have made further representations, as well as those who have previously made representations or comments after consideration of which the Proposed Amendments are proposed under s 6B(8), are entitled to attend and to be heard, either in person or by an authorized representative.

(3)  Under s 6F(8), upon consideration of any further representations, the Board shall decide whether or not to amend the draft plan in question, either by the proposed amendments in question, or by the proposed amendments as further varied in such manner as it considers appropriate.

15.The time for further representations to be made under s 6D(1) expired on 3 April 2020, and over 20 further representations were received by the Board.  Subject to the court’s decision on the present application for an interim stay of the proceedings, the Board intends to hold the further meeting under s 6F(1) about 2 months from now.

16.According to the evidence filed on behalf of the Board, under s 8(2), the original deadline for the Board to submit the Draft OZP (as amended by the Proposed Amendments under s 6B(8), or further amended under s 6F(8)) to the Chief Executive in Council for approval under s 8(1) was 24 April 2020 (on the basis that there will be no amendments under s 7).  Given that the Board had agreed to the Proposed Amendments to partially meet some of the representations, and that the Proposed Amendments (whether the Board ultimately adopted them or not) would have to undergo further procedures prescribed in the Ordinance (as mentioned above), the Board considered that it was unlikely that the Draft OZP (as amended by the Proposed Amendments under s 6B(8), or further amended under s 6F(8)) could be submitted to the Chief Executive in Council for approval before the statutory deadline.  Therefore, the Board applied for and obtained from the Chief Executive in Council an extension of time of 6 months up to 24 October 2020 to complete the statutory process.

APPLICATIONS FOR JUDICIAL REVIEW AND INTERIM RELIEF

17.On 26 March 2020, the Applicant filed the present application for leave to apply for judicial review of the Decisions. The Applicant’s grounds for judicial review are summarized in §13 of the Form 86, as follows:

(1)  The Board has acted outside the powers conferred by the Ordinance in seeking to take over or usurp the heritage conservation functions of other public authorities, and targeted the Site in the absence of any underlying planning purpose.

(2)  The 1^st Decision was Wednesbury unreasonable in that the reasoning of the Board was internally inconsistent and also inconsistent with the previous position of the Board with respect to the Site where there had not been any relevant or material change in circumstances.

(3)  In considering that there was an alleged practice of imposing a requirement to seek the Board’s approval under s 16, the Board has taken into account an irrelevant consideration.

(4)  The 1^st Decision, which engages the constitutional rights of the Applicant under Articles 6 and 105 of the Basic Law, fails the proportionality analysis.

(5)  There was a breach of procedural fairness, in that a material consideration that the Board took into account in its deliberation was not made known to the Applicant (ie the alleged practice referred to in (3) above) prior to the Board’s deliberation at the December 2019 Meeting, such that the Applicant was deprived of the opportunity to address the Board on the same.

18.In the Form 86, the Applicant also applied for an interim order to stay the 1^st and 2^nd Decisions, alternatively a stay of the steps to be taken by the Board to fix and proceed with the meeting under s 6F with respect to the amendments the subject matter of the 1^st and 2^nd Decisions, pending the final determination of the present application for judicial review.

19.On 1 April 2020, this court granted the Applicant (i) an extension of time to apply for leave to apply for judicial review in respect of the 1^st Decision (if required), without prejudice to the Board to apply to set aside the order granting extension of time (if so advised), and (ii) leave to apply for judicial review of the 1^st and 2^nd Decisions.  The court also directed an oral hearing of the application for interim relief to take place on 7 April 2020.

DISCUSSION

20.The parties are agreed on the principles governing the grant of interim relief in public law cases, which this court summarized in Re Leung Chung Hang Sixtus [2018] 5 HKC 138, at §§12-13:

“[12]  In The Chief Executive of the Hong Kong Special Administrative Region and Another v The President of the Legislative Council, HCAL 185/2016 and HCMP 2819/2016, 18 October 2016, Au J confirmed that, for the purpose of deciding whether to grant interim injunctive relief in public law cases, the American Cyanamid principles governing the grant of interlocutory injunction, subject to necessary modifications, remained applicable. Under the traditional American Cyanamid principles, the court should consider:-

(1)  whether there is a serious issue to be tried in the action;

(2)  if the plaintiff were to succeed at the trial, whether he would be adequately compensated by an award of damages for any loss caused by a refusal to grant an interlocutory injunction;

(3)  if damages would not be an adequate remedy to the plaintiff, whether, if the injunction were granted, the defendant would be adequately compensated under the plaintiff’s undertaking as to damages; and

(4)  if there is doubt as to the adequacy of the respective remedies in damages, whether the balance of convenience lies in favour of granting or refusing the interim injunction sought.

[13]  In the public law context, the above principles have to be modified in, inter alia, the following aspects.

(1)  Where an interim injunction is sought to restrain a government authority from enforcing what is prima facie the law of the land, the applicant has normally to go further than merely showing a serious issue to be tried. Generally speaking, he will need to establish a ‘strong prima facie case’ that the law is invalid, although exceptionally an applicant may suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just and convenient to restrain its enforcement by an interim injunction even though he is unable to discharge such a heavy burden (see R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603, at 674B-D per Lord Goff and 678G-679C per Lord Jauncey; R v Secretary of State for Trade and Industry, ex parte Trades Union Congress [2001] 1 CMLR 8, at paragraphs 24-26 per Buxton LJ; and Cheung Tak Wing v Communications Authority, HCAL 60/2015, 12 June 2015, at paragraph 26 per Au J).

(2)  In relation to the question of balance of convenience, the court takes a wider view than just the interests of the immediate parties to the application. The court must take into account the public interest in the balancing exercise (see Cheung Tak Wing, ante, at paragraph 29; Smith v Inner London Education Authority [1978] 1 All ER 411 at 422, per Browne LJ). The degree of importance that may be attached to the element of public interest would depend on the nature of the decision under challenge, eg very different considerations may apply in a public law challenge against (i) a disciplinary process affecting the employment of an applicant or his employment benefits, and (ii) a decision by a public body to carry out large scale public works based on environmental grounds.

(3)  The relevance of damages as an alternative remedy will also vary depending on the nature of the decision under challenge. For example, it has been said that where public works of great costs are being challenged, the adequacy of damages will effectively be irrelevant, for the simple reason that the applicant will, in the vast majority of cases, simply not be in any position to pay the damages which may be occasioned by a delay of the public works for any appreciable period of time (see Society for Protection of the Harbour v Chief Executive-in-Council [2003] 3 HKLRD 960, at paragraph 11 per Hartmann J (as he then was)). The present case is, I consider, of a similar nature.

(4)  This does not mean that financial consequences are to be ignored. They remain relevant to a consideration of the balance of convenience, but should not be regarded as the sole measure in assessing the balance of convenience (see Society for Protection of the Harbour, ante, at paragraph 13).

(5)  As commented by the authors of De Smith, Woolf & Jowell’s Principles of Judicial Review, at p593 (quoted by Hartmann J in Society for Protection of the Harbour, ante, at paragraph 11):

‘… in case involving the public interest, for example, where a party is a public body performing public duties, the decision to grant or withhold interim injunctive relief will usually be made not on the basis of adequacy of damages but on the balance of convenience test’.

(6)  Ultimately, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial), or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial (see Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, at 680 per Hoffmann J (as he then was), an approach endorsed by Lord Jauncey in Factortame, at 683).”

21.In the present case, the court granted the Applicant leave to apply for judicial review of the 1^st and 2^nd Decisions, meaning that the court was satisfied that the application was reasonably arguable with a realistic prospect of success.  I remain of that view.  The question of whether the court should grant interim relief to the Applicant boils down, therefore, to a consideration of the balance of convenience, or balance of justice.

22.On behalf of the Applicant, Ms Eva Sit, SC advances four principal points in support of the application for interim relief in this case.

23.First, she says that the Applicant has a “strong prima facie case” that the Decisions cannot stand on grounds of illegality, Wednesbury unreasonableness, lack of proportionality, or breach of natural justice.  Since the court granted leave to apply for judicial review on consideration of the materials provided by the Applicant only, and did not have the benefit of considering any counter evidence or submission from the Board at that stage, the court’s view on the merits of the application was necessarily a provisional one only.  For the purpose of the present application, Mr Anthony Chan (on behalf of the Board) accepts[1] that there is a serious issue to be tried, and has not contended that the application is not reasonably arguable.  I remain of the view, having considered the additional materials now before me (including the Affirmation of Lung Siu Yuk dated 6 April 2020 and the parties’ respective submissions), that the application is reasonably arguable with a realistic prospect of success, but no more than that.  I do not accept that the Applicant has a strong prima facie case as submitted by Ms Sit.

24.Ms Sit says that there is no basis to suggest that the Board should be allowed to proceed with the TPO process because, amongst other things, that is contrary to the statutory scheme for plan-making under the Ordinance.  As I understand it, this argument arises as a result of the difference of views between the parties on whether the Applicant, being one of the persons who has made representation under s 6, is entitled to make further representation under s 6F.  The Board considers that the Applicant is so entitled, while the Applicant considers that it is not. The Applicant has nevertheless asked the Board to treat the papers filed in this application as its further representation in case it should have taken a wrong view of the matter.  On its part, the Board has confirmed that it will convene a meeting under s 6F(1), and give the Applicant an opportunity to amplify its case at the hearing.  The Board has also made it clear that it will adopt an open mind in its consideration of the Applicant’s “further representation” at the meeting.

25.My provisional view is that Ms Sit is correct in her submission that the Applicant is not entitled to make further representation under s 6D(1).  Nevertheless, the Applicant is entitled to attend the further meeting convened under s 6F(1) to consider the further representations and make submissions at that meeting (see s 6F(3)).  I do not accept Ms Sit’s argument that the Board cannot reverse what it has decided at the meeting under s 6B(8), or abandon the Proposed Amendments, or is limited to “either adopting the [Proposed Amendments], or to vary them[2]”. Under s 6F(8), the Board has wide powers, upon consideration of the further representations, to decide “whether or not to amend the draft plan in question, either by the proposed amendments in question, or by the proposed amendments as further varied in such manner as it considers appropriate”.  Prima facie, this must include the power to adopt or not to adopt the Proposed Amendments, or to vary the Proposed Amendments in such manner as the Board thinks fit.  In any event, even if Ms Sit is correct in her submission that the Board has no power not to adopt the Proposed Amendments or reverse its decision made under s 6B(8), I do not see why the Board cannot proceed with the statutory process under the Ordinance, or should be stopped from carrying on with the statutory process.  Further, the Applicant’s position is, I understand, that the Board should either revert the zoning of the Site back to G/IC without any BHR, or increase the BHR for the Northern part of the Site to 150mPD (see §9 above).  In other words, the Applicant will be advocating a variation of the Proposed Amendments (which the Applicant says the Board has power to do), instead of non-adoption of the Proposed Amendments (which the Applicant says the Board has no power to do).

26.At §20(2) of her Skeleton Submissions, Ms Sit submits that in the planning context, a decision in principle or a preliminary or provisional decision, which can still be revoked or varied at any time prior to the grant of the actual planning permission, can be challenged by way of judicial review.  This proposition is not disputed by Mr Chan.  This having been said, the Proposed Amendments have no legal or binding force or effect.  The plan which currently has legal force or effect is the Draft OZP.  While it is debatable whether the Proposed Amendments should be regarded as (i) constituting a decision in principle, or a preliminary or provisional decision, or (ii) being simply a set of proposals for further consideration at the s 6F(1) meeting, the issue before the court now is not whether judicial review lies against the Decisions.

27.At §20(3) of her Skeleton Submissions, Ms Sit further submits that it would be exceptional for a court not to quash a decision which is found to be ultra vires.  Again, this proposition is not disputed by Mr Chan, but the court is not now concerned with the question of whether to grant final relief for any decision which may found to be ultra vires in this case.  In my view, neither of the propositions in §20(2) or (3) of Ms Sit’s Skeleton Submissions is material to, or determinative of, the Applicant’s application for interim relief.

28.It is then submitted, at §20(4) of Ms Sit’s Skeleton Submissions, that in planning cases where planning permission is granted and an objector seeks permission to apply for judicial review, if the court grants permission, it routinely grants a stay of the carrying into effect of the planning permission.  In support of this proposition, reliance is placed on Society for Protection of the Harbour Ltd v Chief Executive-in-Council [2003] 3 HKLRD 960, at §8.  In that paragraph of the judgment of Hartmann J (as he then was), the learned judge referred to the observation of Dyson LJ in R (on application of H) v Ashworth Hospital Authority [2003] 1 WLR 127, at 134:

“The Administrative Court routinely grants a stay to prevent the implementation of a decision that has been made but not yet carried into effect, or fully carried into effect. A good example is where a planning authority grants planning permission and an objector seeks permission to apply for judicial review. It is not, I believe, controversial that, if the court grants permission, it may order a stay of the carrying into effect of the planning permission.” [emphasis added]

29.Properly read, this statement of Dyson LJ, endorsed by Hartmann J, does not support Ms Sit’s proposition that the court routinely grants a stay of the carrying into effect of a planning permission where leave to apply for judicial review of the planning permission is granted to an objector.  In my view, planning cases do not constitute an exceptional category of cases to the court’s general approach for determining whether interim relief ought to be granted in the public law context.

30.Second, Ms Sit argues that the stay sought by the Applicant would occasion no prejudice to the Board, or any third party, or the public interest.  I do not agree.  It is plainly in the public interest that the plan making process under the Ordinance works smoothly and in accordance with the timetable laid down in the Ordinance.  In this regard, a relevant, but by no means conclusive, consideration is the Board’s heavy workload[3].  I consider that the Board ought, in general, be permitted to discharge its important function of systemic preparation of draft plans and perform its statutory duties in accordance with law.  Although leave to apply for judicial review has been granted in this case, the Decisions are, nevertheless, lawful decisions at this stage. Any delay in the progress of amending the Approved OZP necessarily causes prejudice to the Board and the public interest.

31.Third, Ms Sit says that the balance of convenience lies in favour of granting interim relief as, without a stay, the Applicant will have to incur further time and expenses in participating in the further meeting under s 6F, and may have to amend the Form 86 to challenge any approval to the eventual draft plan which may be given by the Chief Executive in Council under s 9, and there will be further delay to the Applicant’s entitlement to utilize its private property for the purpose of providing services to the community.  It is also said that the time and efforts of the Board, which include public resources and taxpayers’ money used to fund the Board and its work, will also be wasted by the continuance of the statutory procedure, should the Decisions ultimately be quashed, and that the Board can apply for another extension of time to make a submission to the Chief Executive in Council under s 8.  In my view:

(1)  Given the work already done by the Applicant, it is unlikely that much more time and costs will have to be spent or incurred by the Applicant to participate in the forthcoming s 6F(1) meeting.  In any event, in the scale of things, the costs involved would unlikely be significant, compared to the value, in monetary terms, of the planning restriction at stake.

(2)  At the moment, the outcome of the s 6F(1) is uncertain. Whether the Board will refuse to vary the Proposed Amendments in a manner acceptable to the Applicant is unknown.  It is also unknown whether the Board’s submission to the Chief Executive in Council under s 8 will be approved.  Should the Board eventually decide to confirm the Proposed Amendments without any variation and should the Chief Executive in Council decide to approve the Board’s submission, the Applicant may well have to apply to amend the Form 86 appropriately.  Again, having regard to the costs already incurred in this application, the costs of and occasioned by the amendments are unlikely to be very substantial.

(3)  I do not see how a refusal of the interim stay sought by the Applicant would cause any delay, or further delay, to the Applicant’s entitlement to utilize the Site for its purposes.  The progress of the judicial review proceedings is not dependent on the progress of the proceedings before the Board.  On the other hand, should the court in this application for judicial review (or a higher court on appeal) eventually hold against the Applicant, an interim stay of the proceedings before the Board would, or might, cause further delay to the Applicant’s utilization of the Site.

(4)  In so far as the use of public resources and funds by the Board to continue the statutory process is concerned, the Board is, I consider, in a better position than the court to assess whether the public interest would be better served by a timeous conclusion of the statutory process notwithstanding the public resources and funds required to be expended.

(5)  Lastly, my reading of s 8(2) is that no further extension may be granted by the Chief Executive in Council for the Board to make a submission of the draft plan in the present case.  This having been said, it is not in dispute that the statutory timetable could not be observed should the court grant an interim stay of the proceedings before the Board.

32.Fourth, Ms Sit says that given the General Adjournment Period announced by the Judiciary as a result of public health concerns and the lack of clarity as to whether the public health situation will improve in the near future, it is extremely unlikely that there will be an early hearing date for the substantive judicial review application.  Having regard to the fact that the High Court has now started to conduct “remote” hearings where necessary or appropriate, I see no reason why there should be any unreasonable delay in the substantive hearing of the application for judicial review.

33.Overall, I am not satisfied that the Applicant will suffer any significant or substantial prejudice, still less serious and irreparable harm, should the Board be permitted to continue the statutory process of amendment of the Approved OZP.  The court should not, I consider, lightly grant an order which prevents the Board from carrying out its public function of systemic preparation of draft plans in accordance with the timetable laid down by statute.  The timeous performance of the Board’s statutory duties and functions is itself a matter of significant public interest.  The balance of justice in this case lies in refusing to grant the interim stay sought by the Applicant.

DISPOSITION

34.For the foregoing reasons, the application for interim relief is dismissed, with costs to the Board, to be taxed if not agreed.

Ms Eva Sit, SC and Ms Julia Au, instructed by P C Woo & Co, for the Applicant

Mr Anthony Chan, instructed by Department of Justice, for the Respondent