Tam Hoi Pong v. Town Planning Board
Read the full judgment text of HCAL 20/2014 on BabelCite. This High Court CFI judgment was delivered on 4 September 2020.
1. This judicial review concerns the applicant’s challenge against the decision (“the Decision”) made by the Town Planning Board (“TPB”) [1] to approve with conditions an application (“the Application”) made by Mutual Luck Investment Ltd (the interested party herein) under section 16 of the Town Planning Ordinance (Cap 131) (“the TPO”). The applicant is the chief executive of Green Sense, an environmental concern group.
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HCAL 20/2014 [2020] HKCFI 2265 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 20 OF 2014 ________________ BETWEEN
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________________ J U D G M E N T ________________ A. INTRODUCTION 1.This judicial review concerns the applicant’s challenge against the decision (“the Decision”) made by the Town Planning Board (“TPB”)[1] to approve with conditions an application (“the Application”) made by Mutual Luck Investment Ltd (the interested party herein) under section 16 of the Town Planning Ordinance (Cap 131) (“the TPO”). The applicant is the chief executive of Green Sense, an environmental concern group. 2.In the Application, the interested party applied for planning permission in relation to a development project at Lot 1457 RP in DD 123 and Adjoining Government Land at Fung Lok Wai, Lau Fau Shan, Yuen Long (“the Development Site”). The Development Site is in the Deep Bay Area, which is an internationally renowned wetland habitat, and is of recognised high conservation value. 3.In this judicial review, the applicant is represented by Mr Jeffrey Tam, and the TPB by Mr Johnny Mok SC, leading Ms Eva Sit. 4.Although the applicant has raised four grounds of challenge in the Amended Form 86, Mr Tam has confirmed at the hearing that he would only pursue the following three grounds[2]:
5.Before I deal with these grounds in detail, in order to properly understand them and the issues arising therefrom, it is necessary to set out the relevant background in some details. The following background facts are in all material aspects uncontroversial[6]. B. BACKGROUND B1. The Development Site 6.The town planning of the Development Site was governed by the Lau Fau Shan and Tsim Bei Tsui Outline Zoning Plan No S/YL-LSF/7 (“the OZP”) approved in June 2001. The Development Site is designated in the OZP for “Other Specified Uses (Comprehensive Development and Wetland Enhancement Area)” (“OU(CDWEA)”). 7.The Development Site comes within the Deep Bay Area and the Mai Po Nature Reserve (“MPNR”). Deep Bay is an internationally renowned wetland habitat for a variety of species of waterfowls and a stopover point for thousands of migratory birds. The Inner Deep Bay, Mai Po Marshes and its adjacent area have been listed as a “Wetland of International Importance” (“Ramsar Site”) under the Convention on Wetlands of International Importance especially as Waterfowl Habitat (also known as the Ramsar Convention) since 1995. 8.Given the ecological importance and significance of the Deep Bay Area and the MPNR, the TPB has over the time devised its own guidelines for considering applications for planning permissions for development in these areas. Separately, the Government has also announced a nature conservation policy generally for Hong Kong, which also covers the areas. 9.Relevant for the present purposes, the respective promulgations of the TPB guidelines and the Government’s nature conservation policy are as follows. B2. The TPB guidelines for planning applications in the Deep Bay Area 10.Even before the designation of the Ramsar Site, the TPB had already designated two buffer zones in the Deep Bay Area and promulgated guidelines (TPB PG-No 12A) for considering planning application there. 11.In 1997, a consultancy study commissioned by the Government on the fish ponds in the Deep Bay Area was completed, which confirmed the ecological value of the fish ponds in the Deep Bay Area and made various recommendations on conservation and land planning strategy for the same (“the Fish Pond Study”). 12.The Fish Pond Study has provided the scientific basis to confirm the intrinsic value of fish ponds which is fundamentally linked with Mai Po as a wildlife habitat. The Fish Pond Study recommends the continued adoption of the “precautionary principle” and a new “no-net-loss in wetland” principle. Buffer Zones 1 and 2 were replaced with Wetland Conservation Area (“WCA”) and Wetland Buffer Area (“WBA”) respectively. All existing and contiguous active or abandoned fish ponds should be conserved within the WCA where no new development would be permitted unless it is required to support the conservation of the area or it is an essential infrastructure project with overriding public interest. A buffer area of about 500m along the landward boundary of the WCA is designated as WBA within which developments are possible but would require an ecological impact assessment (“EcoIA”) to be carried out[7]. 13.In taking forward the recommendations of the Fish Pond Study, the TPB adopted the Planning Department (“the PlanD”)’s “Modified Option” as proposed in the TPB Paper No 5022 considered by the TPB on 18 December 1998. The boundaries of the WCA and WBA were modified. Under this option, instead of blanket conservation of all fish ponds (as one of the proposals made in the Fish Pond Study), an alternative private-public partnership approach (“the PPP Approach”) permitting limited development in the WCA areas, adopting a “precautionary approach” and “no-net-loss in wetland principle”, in exchange for a long-term and better management for the conservation of fish ponds was accepted. These were explained at paragraphs 30 and 31 of the TPB Paper No 5022[8]:
14.The TPB has then incorporated the PPP Approach, the “precautionary approach” and the “no-net-loss in wetland principle” into the revised TPB PG-No 12B (“the TPB Guidelines”) it adopted on 19 March 1999[9]. This laid down the cornerstone for development control in the Deep Bay Area and has since represented the TPB’s policy for considering planning permission applications concerning developments in the area. 15.Relevantly, in the TPB Guidelines:
16.The TPB’s said policy relating to the PPP Approach, the “precautionary approach” and the “no-net-loss in wetland” was later reflected in and incorporated into the OZP in the Note to the OZP (“the Note”) and the Explanatory Statement of the OZP (“the Explanatory Statement”). 17.Insofar as the Note is concerned:
18.In the Explanatory Statement, they have been set out at paragraphs 9.8.1 - 9.8.3:
B3. The Government’s nature conservation policy 19.Separately, the Government has a nature conservation policy which applies to Hong Kong as a whole. Following a public consultation exercise in 2003, the Government revised its nature conservation policy which became the New Nature Conservation Policy (“the NNCP”) in 2004. In November 2004, the NNCP was presented to the Legislative Council Panel on Environmental Affairs in the paper entitled: LC Paper CB(1) 214/04-05 (01) (“the NNCP LC Paper”) prepared by the Environment, Transport and Works Bureau. 20.In the NNCP LC Paper, the policy statement of the NNCP is stated at paragraph 10 as follows:
21.It is further stated at paragraphs 36 and 37 of the NNCP LC Paper that:
22.In short:
23.In June 2011, the Environmental Protection Department (“the EPD”) set up a funding and land management framework under the NNCP PPP Scheme to sustain the long-term management of the ecologically sensitive portion of the priority sites (“the 2011 NNCP Arrangements”). These were presented and explained to members of the Legislative Council in a paper prepared by the EPD in May 2011[10]. As stated in the paper (“the ECF Paper”), the arrangements specifically applied to Fung Lok Wai, which covered the Development Site, and the relevant funding arrangement that should be set up under the 2011 NNCP Arrangements was further stated at paragraphs 6 and 7 as follows:
24.The 2011 NNCP Arrangements were then presented to the TPB by way of the TPB Paper 8869[11] and at the TPB meeting held on 15 July 2011. At the meeting, the Deputy Director of the EPD explained the background and essence of the 2011 NNCP Arrangements as follows[12]:
25.At the end of the presentation, the TPB expressed their support of the arrangements[13]. B4. The Application
26.As stated in the Schedule of Uses in the Note for the “OU(CDWEA)” zone, any development and filling of land/pond or excavation of land require planning permission from the TPB under the PPP Approach and the “no-net-loss in wetland” principle. 27.The Development Site covers an area of 80 hectares and the proposed development involves conversion of about 76 hectares of fish ponds (95% of the Development Site) into a Wetland Nature Reserve (“WNR”) and 4 hectares (5% of the Development Site) into a residential development. The proposed residential development under the Application comprises 19 blocks for 1,958 units with a gross floor area of 147,985m2 located at the southern landward fringe of the Development Site. The WNR comprises an area of 61.6 hectares retained and ecologically enhanced fish ponds and a created freshwater marsh habitat of about 14.4 hectares. The existing 31 ponds will be consolidated to form 18 large ponds. The interested party proposes to enhance the ecological values and functions through reprofiling pond bunds to form larger ponds with shallow sloping and irregular margin to increase feeding opportunities for water birds as well as active ongoing management. A potential alternative egretry (a nesting colony for egrets and other birds) of approximately 2,000m2 to replace an abandoned egretry near Shing Uk Tsuen is also proposed.
28.The interested party first submitted the Application to the TPB on 4 August 2011, together with a supplementary planning statement, technical appendices including an EcoIA[14], Further Analysis of the Ecological Impacts of the Refined Development Layout, draft Habitat Creation[15] and Management Plan (“Draft HCMP”) for the WNR, Management Proposal for the Wetland Nature Reserve, Traffic Impact Assessment, Tree Survey and Master Landscape Submission, Environmental Monitoring and Audit (“EM&A”) Manual, Visual Impact Assessment, Environmental Assessment (“EA”) and Sewerage and Drainage Impact Assessment. 29.The documents were submitted in accordance with the requirements in Remark (a) in the Schedule of Uses and paragraph 9.8.3 of the Explanatory Statement. 30.From August 2011 to November 2013, the interested party requested the TPB to defer consideration of its application on four occasions and submitted further information providing clarification, revised or updated technical assessments, and responses to departmental comments on 20 occasions. More notably, a revised EcoIA and revised Draft HCMP for the WNR were received on 8 February 2013 and a consolidated paper on Hong Kong Bent-winged Firefly (Pteroptyx maipo) on 11 November 2013[16]. 31.The Application was circulated to relevant government departments for comment. It was also published for public inspection and comment on nine occasions between September 2011 and September 2013. All of the further information submitted by the interested party had also been made available for public inspection[17]. 32.A total of 745 public comments were received, with 663 objecting to and 82 in support of the Application. 33.The interested party’s submissions, the departments’ views, public views as well as the PlanD’s views were then consolidated into a RNTPC Paper No A/YL-LFS/224F (“the RNTPC Paper”) prepared by the PlanD for the TPB’s consideration at the Meeting.
34.As set out in the RNTPC Paper, most of the departments circulated with the Application were satisfied with the technical details therein and had no objection to it. 35.But relevant for the present purposes, and more importantly, the Director of Environmental Protection (“DEP”) and the Director of Agriculture, Fisheries and Conservation (“DAFC”) had the following comments. 36.The DEP confirmed that the environmental issues and findings mentioned in the environmental assessment were in line with the EcoIA Report approved under the EIAO in 2009. However, she pointed out that the implementation arrangement for the WNR proposed by the interested party did not comply with the funding and land arrangement under the 2011 NNCP Arrangements. This is so as under the 2011 NNCP Arrangements, funding of the conservation plan is to be arranged through the ECF established pursuant to the Environment and Conservation Fund Ordinance (Cap 450) (“the ECFO”). The DEP took the view that proposed long-term maintenance and management plan proposed by the interested party using a private trust arrangement did not provide for a comparable assurance on long-term viability of the conservation plan as compared to the use of the ECF, and hence from the point of view of nature conservation policy, she had reservation on this aspect of the application. 37.Despite the above concern, the DEP however made it clear that she would have no objection if the interested party was to follow the land and funding arrangement in the 2011 NNCP Arrangements. The DEP therefore recommended two planning conditions (ie, Conditions (o) and (p) (see below at [42])), which she believed would be sufficient to address this aspect, for TPB’s consideration in case it was to approve the Application[18]. 38.As for the DAFC:
39.The Application was considered by the TPB at the Meeting. Detailed presentation was made by the Senior Town Planner/Tuen Mun and Yuen Long on (among other things) the proposal and the departmental comments, and the members raised questions with representatives of the PlanD, the AFCD and the EPD on issues including the NNCP PPP Scheme and the EPD’s views on the proposed funding arrangement of the interested party, the meaning of the “no-net-loss in wetland” principle, the meaning of minimum pond filling and why it was considered that the interested party’s proposal was acceptable, the advantages of the proposed freshwater marsh compared to the retained fish ponds, opening arrangement of the WNR, the environmental impact assessment and also the revised EcoIA reports. 40.At the deliberation of the Meeting:
41.In the end, the Application was approved with 17 planning conditions (including those proposed by the DEP) (ie, the Decision). 42.Relevantly, the imposed conditions (o) and (p) (“respectively “Condition (o)” and “Condition (p)”) state as follows:
43.Thus, Condition (o) requires the interested party to submit and implement a funding management proposal for ensuring the long term maintenance and management of the WNR to the satisfaction of the DEP and the DAFC, or the TPB. 44.The applicant later applied to judicially review the Decision. C. THIS JUDICIAL REVIEW C1. Ground 1 – the Illegality Ground 45.It is common ground that for the Development Site, the TPB may consider granting planning permission for limited development thereat with conservation objectives under (a) the PPP Approach, (b) the “precautionary approach” and (c) the “no-net-loss in wetland” principle. 46.Under this ground, Mr Tam contends that the Decision is tainted with illegality on three different bases, which relate respectively to the PPP Approach, the “precautionary approach” and the “no-net-loss in wetland” principle. All these bases are effectively premised principally on the complaint that it is unlawful for the TPB to approve the Application by way of imposition of Condition (o). 47.I will look at each of them in turn.
48.Under this basis of the challenge, Mr Tam says the TPB in approving the Application by imposing, among others, Condition (o) has exceeded the extent shown or provided for or specified in the OZP. Thus, the TPB in making the Decision had acted ultra vires. Mr Tam’s arguments run as follows. 49.Section 16(4) of the TPO provides that the TPB may grant permission only to the extent shown or provided for or specified in the relevant OZP. 50.As mentioned above, in the TPB’s own policy, which has been incorporated into the planning intention as set out in the Note and the Explanatory Statement, it is clear that in considering the Application, the TPB was required to see if the development proposal satisfied, among others, the PPP Approach. Hence, under section 16(4), the TPB can only lawfully approve the Application if it itself is satisfied, among others, that the PPP Approach was met. 51.In this respect, Mr Tam contends that the PPP Approach adopted by the TPB includes the 2011 NNCP Arrangements, under which there are two key elements that are required to ensure sustainable long-term management of the ecologically sensitive portion of the priority sites in the private-public partnership approach. They are that:
52.However, the Application did not meet the Funding Requirement and the Conservation Agent Requirements:
53.Mr Tam therefore says the TPB could not be satisfied that the Application met the required PPP Approach. 54.However, the TPB sought to side-step this issue by imposing Condition (o) in approving the Application, which is effectively asking the DEP and the DAFC (instead of the TPB itself) to decide whether the Application satisfied the PPP Approach. This is not permissible and thus ultra vires. 55.In this respect, Mr Tam further relies on Town Planning Board v Town Planning Appeal Board [2014] 1 HKLRD 1056 at [76] per G Lam J on the observation that the TPB has no legal basis to defer part of the consideration and decision of a planning permission application to a subsequent stage after an initial decision, or to delegate or share the responsibility with Government departments. 56.In response, Mr Johnny Mok SC (together with Ms Eva Sit) for the TPB submits that the applicant’s contentions are misconceived. 57.Mr Mok’s forefront and principle argument is this: the applicant’s contentions have confused the TPB’s PPP Approach with the NNCP PPP Scheme under the Government’s NNCP. 58.Mr Mok refers the court to the above undisputed background leading to the respective promulgations of the TPB policy adopting the PPP Approach and the NNCP PPP Scheme under the NNCP adopted by the Government, and says they are two separate and distinct policies. The 2011 NNCP Arrangements are part of the Government’s NNCP PPP Scheme but not the PPP Approach as adopted by the TPB. It is only under the NNCP PPP Scheme, but not the PPP Approach, which has the Funding Arrangement and Conservation Agent Requirements. For those two requirements, it is the DEP and the DAFC within the Government that are vested with the specific responsibilities in vetting those requirements. The TPB was therefore entitled to take into account their views on these and impose the necessary conditions which the DEP and the DAFC had specifically said that they would have no objection to the Application if these conditions were imposed. 59.Second, and alternatively, Mr Mok says whether or not the 2011 NNCP Arrangements form part of the PPP Approach, they only relate to the implementation details of the management scheme and thus can be dealt with by conditions imposed for the planning permission. Mr Mok’s contentions in this respect run as follows. 60.Counsel submits that, properly construed in context, the PPP Approach as explained under paragraph 6.3 of the TPB Guidelines[25] only requires the private developer to put forward an environmental impact assessment to demonstrate that the proposed management scheme would not result in any loss of the total ecological function and that any impact can be mitigated. Thus, the TPB policy requires only that there is a mechanism to ensure that the management could be practically implemented and monitored. In this respect, the funding arrangement of the long-term management is but only a part of the function of that mechanism because it takes years and years to continue the scheme. However, the TPB policy does not say or require specifically what that mechanism must be. Hence, under the PPP Approach, all that the TPB needs to be satisfied is that there is a mechanism with sufficient details which the TPB can be satisfied could be used practically to implement and monitor the proposed scheme. 61.In the present case, Mr Mok submits that the TPB was already satisfied that the PPP Approach was met by way of the detailed mechanism proposed in the EcoIA and the Draft HCMP (including their respective revised versions). The rest relates to the implementation details of the scheme which can be dealt with by conditions imposed for the planning permission. In support, counsel relies on Delight World Ltd v Town Planning Appeal Board [1997] HKLRD 1106, where Keith J observed at 1115D that there is a “well-settled distinction in planning law between the grant of planning permission and its implementation”. 62.Mr Mok further points out that under section 16(5) of the TPO, the TPB is expressly given the authority to grant permission subject to such conditions as it thinks fit. In the premises, the TPB cannot be regarded as having acted ultra vires in imposing Condition (o) in making the Decision. 63.With respect to Mr Mok, for the following reasons, I am unable to accept his submissions. 64.There are two principal issues that arise from the contentions raised by Mr Tam and Mr Mok. They are:
65.Both issues relate to a proper construction of the TPB policy and the planning intention. 66.There is no dispute that the construction of a government or administrative policy is a question for the court, which should be considered in its proper contexts, background and with common sense. In carrying out the exercise, noting that this is in relation to an administrative policy, the court should not adopt an overly technical approach as in interpreting statutes or legal or constitutional documents. See: Hong Kong Television Network Ltd v Chief Executive in Council [2016] 2 HKLRD 1005 at [55] per A Cheung CJHC (as he then was). 67.Bearing this approach in mind, for the purpose of construing the TPB policy and the planning intention, it is obvious (as supported by the undisputed background set out above) that the relevant context is that the Deep Bay Area is of recognised important ecological and conservation value, and thus it is of significant public interest that it should be protected and conserved on a long-term basis. 68.Considered against this context, and coupled with the plain words of the TPB Guidelines, the Note and the Explanatory Statement (as highlighted in bold as quoted above), two objectives are clearly intended to be achieved in the TPB policy and the relevant planning intention. 69.The first one is the objective to conserve and enhance the ecological value and functions of the existing fish ponds or wetland on a long-term basis, which is to be achieved through the consideration of application for development in the Deep Bay Area under the PPP Approach. The PPP Approach is specifically adopted to enable a long-term conservation and management of the remaining ponds or wetland within a development site. The PPP Approach therefore constitutes an important element of the policy and the planning intention regarding application for development in the Deep Bay Area. 70.In this respect, the relevant funding and monitoring programme in a development proposal is in my view plainly an essential facet of the PPP Approach, as it is only through the funding and monitoring programme which could ensure the long-term management of the wetland, and that it could be practically implemented and monitored. See: paragraph 6.3 of the TPB Guidelines and paragraphs 9.8.2 and 9.8.3 of the Explanatory Statement as quoted above (in particular the words in bold). 71.The second objective is that the proposal for development under the PPP Approach is to be subject to close scrutiny through the planning application process. Thus, it is expressly stated at paragraph 6.3 of the TPB Guidelines that a development proposal of this kind would be “carefully scrutinized either through the objection consideration process or by way of a request to rezone the site to [OU(CDWEA)]” (emphasis added). Similarly, at paragraph 9.8.3 of the Explanatory Statement, it is stated that the applicant for development should submit a wetland conservation and enhancement scheme, including “…a maintenance and management plan with implementation details, arrangements of funding and monitoring programme to ensure the long-term management of the wetland” (emphasis added). This objective is also consistent with the context that, given the recognised high ecological and conservation value of the Deep Bay Area, it is in the public interest that development proposals relating to the area must be subject to stringent assessment to see if it be able to achieve the long-term conservation objective. 72.In order to be able to properly and practically assess whether a development proposal submitted could meet these objectives, viewed objectively, it must also be part of the requirements under the TPB policy and the planning intention that a proposed development application at a site governed by the OZP should be coupled with sufficient and necessary details of the funding arrangements. This is so as it is only with those details that a practical and useful exercise of close scrutiny (both by the public and the TPB) can be properly conducted in the application process to ensure that the proposal is able to sustain and achieve the objective of long-term conservation and management of the subject protected site. 73.Bearing these objectives and requirements, I am of the view that when the TPB expressed its support of the 2011 NNCP Arrangements when they were presented to the TPB by the EB, objectively it must have adopted those arrangements to constitute part of the requirements under the PPP Approach. This is particularly so as the both PPP Approach adopted in the TPB policy and the NNCP PPP Scheme (which includes the 2011 NNCP Arrangements) are to serve the same objective to secure the long-term conservation and enhancement of the ecological value and functions of the protected sites. 74.Alternatively, at the least, the TPB must have adopted the 2011 NNCP Arrangements as part of the requirements under the PPP Approach for the specific purpose of considering development planning application at Fung Lok Wai, which included the Development Site. As mentioned at [23] above, when the 2011 NNCP Arrangements were presented to the TPB in 2011, the EB specifically stated that the arrangements were promulgated for the development proposal at Fung Lok Wai (and Sha Lo Tung). In these circumstances and in such context, objectively viewed, when the TPB expressed support for the 2011 NNCP Arrangements, the TPB must have adopted these as part of requirements for the purpose of its own PPP Approach for considering planning permission application in relation to the Development Site[26]. 75.Hence, as the 2011 NNCP Arrangements constitute part of the requirements under the PPP Approach either generally or specifically for application in relation to the Fung Lok Wai, the TPB in considering whether to approve the Application had to satisfy itself that they had been so met. 76.As indicated above, Mr Mok then further contends that the details of the funding arrangement in the development proposal (whether in the form of the 2011 NNCP Arrangements or otherwise) are only implementation details of the scheme and thus can be properly dealt with by the TPB by way of conditions attached to the planning permission. 77.I also do not agree. 78.First, as explained above, in my view the funding arrangement is an essential facet of the PPP Approach, which in turn is a fundamental planning consideration required for assessing a planning application at the Development Site. Further, sufficient and necessary details of the funding arrangement are required to enable any meaningful and useful scrutiny can be carried out as expressly required under the policy and the planning intention. In the premises, they are essential details that are important to the decision as to whether the relevant planning permission should be granted, and cannot be regarded as mere implementation details of a planning permission that can be disposed of by way of conditions. 79.Second, it is in any event expressly stated at paragraph 9.8.3 of the Explanatory Statement that the applicant for development should submit a wetland conservation and enhancement scheme, including “…a maintenance and management plan with implementation details, arrangements of funding and monitoring programme to ensure the long-term management of the wetland.” (emphasis added). 80.When paragraph 9.8.3 is understood in the context and policy that the development proposal is to be “carefully scrutinized” through the objection consideration process, it seems clear to me that the “implementation details of the maintenance and management plan” and the “funding and monitoring arrangements” of the conservation and enhancement scheme constitute part of the planning considerations which, before planning permission is granted for the development, (a) must be subject to proper scrutiny under the objection process, and (b) the TPB (after taking into account any objections) has to satisfy itself that they are workable to ensure that the scheme could achieve the long-term conservation of the Development Site. 81.In the premises, the 2011 NNCP Arrangements plainly constitute the essential details of “the funding and monitoring programme” that needed to be included in the Application. Alternatively, even if, as Mr Mok has submitted above, the 2011 NNCP Arrangement only relates to “implementation details” of the scheme itself, they must therefore similarly be required to be included for the TPB’s considerations as expressly stated at paragraph 9.8.3 as the implementation details of “the maintenance and management plan”. 82.Finally, it should also be noted that the TPB serves as an important statutory body independent of the Government to determine planning matters. For a proper discharge of that independent duty, it is an important and essential part of the statutory regime that the public has an opportunity to make proper presentations (whether in support or in opposition) in relation to an application for planning permission, and the TPB shall only properly determine a planning permission application after taking into account the relevant public comments and presentations. Hence, the relevant statutory provisions require the TPB to publish the relevant application materials for public inspection and mandate the holding of public meetings to determine those applications. For example, for a section 16 application, sections 16 (2C) - (2I) provide for making the application available for public inspection and for the public to submit comments, and section 16(3) mandates the TPB to consider the application at a public meeting. 83.This is particularly so in the present context since, as mentioned above, it is part of the TPB policy and the planning intention that the development proposal with the PPP Approach has to be accompanied with “… a maintenance and management plan with implementation details, arrangements of funding and monitoring programme to ensure the long-term management of the wetland” and be subject to “close scrutiny” in the objection consideration process. 84.In the premises, the statutory regime generally and the OZP specifically have prescribed that, before approving a development application in the Development Site, the TPB has to allow the public to have a proper opportunity to closely scrutinise such an application to assess if it has met all the requirements under the TPB policy and planning intention. 85.However, by imposing Condition (o) in approving the Application, the public will be deprived of a proper opportunity to comment and make presentations on the details (if and when they later become available) of the funding arrangements proposed under the Development Site which are said to be in compliance with the 2011 NNCP Arrangements. Viewed against this context of the statutory regime and the OZP, it cannot be a proper discharge of the TPB’s obligation in deferring to the DEP to decide whether or not such requirements are met. 86.It must however be emphasized that the TPB is of course legitimately entitled to take into account and give weight to the final views of the DEP and the AFCD as to whether a proposed funding arrangement with the necessary details does satisfy the 2011 NNCP Arrangements. However, that should only be done after the DEP and the AFCD have already formed a conclusion based on the details that have in fact been provided, and that the public has had an opportunity to present to the TPB their comments on those details and the DEP and AFCD’s conclusions. 87.Indeed, the inability to properly scrutinize the proposal without the details of the funding arrangement in the present case is highlighted by the comments expressed by a TPB member at the Meeting, recorded at paragraph 64 of the Minutes as follows:
88.In this respect, Delight World does not assist Mr Mok, as it is clearly distinguishable from the present case for all the reasons I have explained above. Quite to the contrary, it is pertinent to note that, similar to the present case, on the facts of Delight World, the court indeed concluded at 1116D-G that the conditions proposed by the applicant (and the planning department) to be attached to the granting of planning permission related to details which “were critical to the decision as to whether planning permission should be granted at all”, and thus was rightly rejected by the Town Planning Appeal Board. 89.Mr Mok’s reliance on section 16(5) also does not help. On a proper construction, the TPB’s authority to impose condition in making a decision can only be related to matters or issues that do not constitute essential requirements under the relevant planning intention and policy which the TPB has a statutory obligation to make decision on its own. 90.For all the above reasons, I agree that the TPB had acted ultra vires in approving the Application by imposing Condition (o) as it had deferred its own duty to satisfy itself that the Application met the PPP Approach (with the 2011 NNCP Arrangements) to the DEP and DAFC.
91.Under this basis, Mr Tam says the TPB had also misinterpreted or misapplied the “precautionary approach” in granting the approval to the Application. Counsel’s contentions run as follows. 92.The “precautionary approach” has been set out in the TPB policy at paragraph 4 of the TPB Guidelines. The approach is an essential element of the policy to conserve the ecological value of fish ponds in Deep Bay Area and the Ramsar Site. 93.Mr Tam submits that in construing the meaning of this approach, the following relevant international instruments should form part of the relevant context for that purpose[27]:
94.In the present case, Mr Tam says the TPB misinterpreted or misapplied the “precautionary approach” in that it granted the planning permission despite the following uncertainties:
95.With respect, I am not persuaded by Mr Tam’s above submissions. 96.Bearing in mind the approach on the construction of a policy set out in [66], I agree with Mr Mok’s following submissions that the applicant’s challenge under this basis is without merit. 97.First, the meaning of the words (in this case, the meaning of “precautionary approach”) must be gleaned from the instrument in which it is deployed and the context in which it is used. In this case, the TPB Guidelines provides relevantly as follows:
98.As submitted by Mr Mok, properly read objectively, the TPB Guidelines has made it clear that the precautionary approach it refers to has already been embodied in and manifests itself in the “no-net-loss in wetland” principle:
99.In any event, the applicant’s argument does not work, as the applicant has not even purported to give a meaning to his rendition of the precautionary approach in the context of the TPB approval process. The mere recitation of the IUCN Guidelines and the use of “uncertainties” in it[29] does not even begin to articulate how the TPB should have acted in its decision-making process had these principles been relevant or applicable, in particular when the underlying threats or risks had already been identified and mitigation measures had been proposed and found to be acceptable by the AFCD. 100.Second, I also agree with Mr Mok that the applicant’s contention fails also on the facts. The documentary and unchallenged evidence is that (a) the relevant EcoIA, Draft HCMP, EM&A Manual and Master Layout and other Plans had all been submitted and considered acceptable; (b) the further information submitted had also been found to be acceptable and insofar as updating of the reports and assessment to reflect these materials. In these circumstances, there is therefore no question of any uncertainties. In any event, as pointed out by Mr Mok, it makes good sense to require that Draft HCMP and EM&A Manual to be updated closer to the time of the actual implementation given the development process usually spans a very long period of time and the Draft HCMP and EM&A which concern the actual operation of the project should reflect the situation on the ground at the time when it comes into operation[30]. 101.I therefore reject this basis of challenge.
102.Finally, Mr Tam says the TPB also misinterpreted or misapplied the “no-net-loss in wetland” principle under the TPB policy. 103.The “no-net-loss in wetland” principle is set out in the TPB Guidelines at paragraph 5:
104.Central to counsel’s contention is that the principle properly construed requires that there be no loss both in the area and ecological function in the existing fish ponds in a proposed development. However, in the Application, it is only said that the proposed recreation of fish ponds after the filling up of some of the fish ponds in the Development Site would have resulted in no loss in “ecological function” of the fish ponds. There will therefore be net loss in the area of fish ponds. This therefore cannot satisfy the principle and the TPB in accepting this part of the proposal erred in misconstruing or applying the principle. 105.In any event, Mr Tam says the proposal indeed involves net loss in both the area and the ecological functions of the fish ponds. He explains as follows. 106.In respect of wetland area, Mr Tam points out that although the interested party has claimed that there will be no net loss of water body area, its approach seems to have excluded pond bunds in the calculation of wetland areas. For instance, paragraph 3.12.11 of the EcoIA Report states that:
107.The approach of excluding pond bunds in the calculation of wetland areas is not a correct approach. A similar approach had indeed been rejected by the DAFC in relation to a proposed Comprehensive Development with Wetland Enhancement of Nam Sang Wai and Lut Chau, Yuen Loi. This has been explained in the relevant Minutes of the 1051st meeting of the TPB on 14 February 2014 discussing (TPB Paper No 9545) as follows:
108.Therefore, the “no-net-loss in wetland” principle could not be achieved because the bunds were disregarded in the calculation of the wetland area. 109.In respect of the loss of ecological function, Mr Tam says the interested party has claimed that there will be no loss of ecological function as it has considered the bund habitats to be of low ecological value and will replace them with wetland area and shallow. 110.However, Mr Tam contends that the bunds form an integral part of the wetland ecosystem because of the following reasons:
111.Since the functions served by the bund habitats have not been fully compensated, Mr Tam submits that there is also a net loss in the ecological functions. 112.I am also unable to accept these contentions. 113.First, I agree with Mr Mok that the construction proposed by Mr Tam is untenable:
114.I therefore reject Mr Tam’s proposed construction and conclude that, on a proper construction, the “no-net-loss in wetland” principle refers to there being no net loss in either the total area or ecological functions of the original ponds in the site. 115.Second, as pointed out by Mr Mok, the evidence of the DAFC is that the loss of the bunds had been taken into account and the DAFC considered that the proposed removal and reprofiling of the bunds would enhance the ecological value of the wetland[33]. Where the existence or non-existence of the fact is left to the judgment of a public body, it is the duty of the court to leave the decision of that fact to the public body to whom the legislature has entrusted the decision-making power, save in a case where it is obvious that the public body (consciously or unconsciously) is acting perversely[34]. 116.Finally, Mr Tam’s third argument concerns the alleged failure to appreciate that impact assessment and planning permission that must be done and obtained prior to the actual development of the site. This is misconceived. The assessment in this case was conducted on the basis of the factual situation of the site as known and the proposed development thereon, measuring the different impacts between the two scenarios, accompanied by proposed mitigation or compensation measures that would reduce the impacts (if any) identified. The decision-maker’s task was to assess the information pertaining to such scenarios to see if they are adequate and feasible. The approval was granted on the premise that the proposed mitigation or compensation measures would be implemented (by way of approval conditions in the context of the TPO and conditions in the environmental permit in the context of the EIAO). There is nothing wrong with the TPB accepting (on the recommendation of the DAFC) that the proposed development and the proposed measures in the Draft HCMP would be sufficient to ensure that there would be “no-net-loss in wetland” function in this case. 117.In the premises, I will also reject this basis of the challenge[35]. C2. Ground 2 – The Legitimate Expectation Ground 118.Under this ground, the applicant says he had a legitimate expectation that the TPB would ensure that the PPP Approach with the 2011 NNCP Arrangements would be taken into account and that the requirements therein be met. Based on the same submissions he made under the Illegality Ground concerning the PPP Approach, the applicant says the TPB in making the Decision by imposing Condition (o) had breached the legitimate expectation in not requiring the 2011 NNCP Arrangements be met. 119.In opposition, Mr Mok submits, as the 2011 NNCP Arrangements do not form part of the TPB policy, the contended legitimate expectation simply does not arise, as all that the applicant can legitimately expect is that the TPB would take into account those arrangements when considering the Application. As the TPB did take into account the 2011 NNCP Arrangements, this ground must fail. 120.Given that I have accepted above that the TPB has adopted the 2011 NNCP Arrangements as part of the requirements under the PPP Approach, I must reject Mr Mok’s submissions. In the premises, as the TPB in making the Decision did not proceed on the basis that those requirements had been satisfied, I would also allow this ground of challenge. C3. Ground 3 – The Procedural Irregularity Ground – Circumvention of public consultation 121.Under this ground, the applicant says the Decision is tainted with procedural irregularity as the TPB has circumvented the requirement for public consultation. 122.Mr Tam’s submissions are these. 123.The TPB is required to conduct public consultation in relation to a section 16 application. The statutory requirements of public consultation under the TPO are as follows:
124.The requirement of public inspection is also explained by the TPB in the TPB Guidelines on Publication of Applications for Amendment of Plan, Planning Permission and Review and Submission of Comments on Various Applications under the TPO published in April 2005 (TPB PG-No 30) at paragraph 3:
125.Further, it is trite that the consultation must be conducted properly and fairly[36]. 126.In this respect, the TPB may, upon consideration of a request or of its own volition, decide to defer a decision on the applications if there is a need to consult other relevant government departments, or provision of important supplementary information, or awaiting recommendations of major government planning related study or infrastructure proposal. See paragraph 3 of the TPB Guidelines on Deferment of Decision on Representations, Comments, Further Representations and Applications made under the TPO published in April 2005 (TPB PG-No 33). 127.Given the above requirements to conduct a proper and fair public consultation, Mr Tam submits that, in relation to the Application, the TPB should have deferred consideration of the Application on its own volition since important supplementary information, eg, the funding arrangement proposal, should have been supplied before the TPB could properly come to a decision. Had the TPB done so, upon submission of further information regarding the funding arrangement proposal, the TPB would have to consider whether the funding arrangement proposal resulted in a material change of the Application, and whether to grant exemption from publication for public comments. 128.In this situation, the TPB ought not to grant exemption from publication for public comments. This is because there is a significant change in circumstances, ie, the withdrawal of WWF leading to not satisfying both the Funding Requirement and Conservation Agent Requirement. Fairness requires there to be a further consultation by the TPB so that the public can deal with the change in circumstances. 129.By purporting to resolve the issue of non-compliance with the Funding Requirement and Conservation Agent Requirement by way of approval Conditions (o) and (p), the TPB circumvented the requirement for further public consultation. 130.With respect, I am unable to accept these submissions. 131.Under this ground, what the applicant is saying is in substance that the TPB should have deferred the consideration of the Application pending the interested party to supply further information on the funding arrangement which would be said to be complying with the 2011 NNCP Arrangements, and when such information is indeed provided, the TPB should have to make it available for further public inspection. 132.In my view, this ground of challenge is misconceived. In the present application, the challenge is made against the Decision. In making the Decision, there was in fact no further submission of such information which needed to be made available for inspection. There is thus also no question of granting exemption as contended by the applicant. The TPB proceeded to deal with the Application on the (mis)understanding that it itself did not have to be satisfied that the requirements under the 2011 NNCP Arrangements were complied with. Even though that basis is liable to be challenged under other grounds as discussed above, it does not mean that the TPB had committed a procedural irregularity by granting an exemption from publication for public comments. 133.I therefore reject this ground. D. CONCLUSION 134.For all the above reasons, I will allow this judicial review on part of the Illegality Ground and the Legitimate Expectation Ground as explained above. I will reject all the other bases of challenge. 135.I will therefore quash the Decision and remit the matter to the TPB to be reconsidered in accordance with the findings of the court. 136.There is no reason why costs should not follow the event. I will therefore make an order nisi that costs of this application be to the applicant, to be taxed if not agreed. The applicant’s own costs will also be taxed in accordance with legal aid regulations. 137.I thank counsel for their assistance in the matter.
Mr Jeffrey Tam, instructed by Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid, for the applicant Mr Johnny Mok SC and Ms Eva Sit, instructed by Department of Justice, for the respondent [1] To be precise, the Decision was made by the Rural and New Town Planning Committee (“the RNTPC”) of the TPB. [2] Mr Tam has decided not to pursue the fourth ground raised in the Amended Form 86, which is that the Decision is irrational as the TPB failed to make relevant sufficient inquiry in approving the Application. See Amended Form 86, paragraphs 80 - 84. [3] See Amended Form 86, paragraphs 25 - 69. [4] See Amended Form 86, paragraphs 70 - 71. [5] See Amended Form 86, paragraphs 72 - 79. [6] I have taken them mostly from the Amended Form 86, Mr Mok’s skeleton and the Affidavit of Ophelia Wong filed by the TPB. [7] See the TPB Paper No 4211 with a copy of the Executive Summary of the Fish Pond Study considered by the TPB on 30 May 1997 [BE3/24/641-674]. [8] TPB Paper No 5022 [BE3/25/676, 685-6] at paragraphs 30 - 32. [9] [BE2/15/259-266]. The TPB Guidelines was further revised in 2014 (version 12C), which mainly involved the amendment to the WCA and WBA boundaries to cover the fish ponds and associated wetland and the landward vegetated land in Hoo Hok Wai. The substance of the TPB Guidelines remains unchanged, and both parties for the present purpose refer to the TPB Guidelines as the relevant guidelines for considering the Application. [10] See the LegCo paper: ECF Paper 14/2011-12 entitled “Arrangements to Implement Conservation and Development Proposals Involving the Priority Sites for Enhanced Conservation and Review of the Management Agreement Scheme” prepared by the EPD in May 2011, intended for discussion on 9 June 2011 [BE(1)/10/122-130] at paragraph 6. [11] See TPB Paper 8869 prepared by the EPD in June 2011 [BE1/11/131-136]. [12] See Minutes of that meeting at paragraphs 22 [BE1/12/165-167]. [13] See paragraphs 23 - 28 of minutes of the meeting. [14] Given that the proposed development at the Development falls within the definition of “designated project” under the EIAO, an environmental impact assessment was required to be carried out. See: the Affidavit of Ophelia Wong, paragraph 21. [15] In the RNTPC Paper and Minutes, it was termed as “Conservation”. [16] Hong Kong Bent-winged Firefly, a species new to science, was only discovered in the Mai Po area in 2009, after completion of the EIAO process. The interested party therefore made these further submissions to address questions raised by the AFCD concerning this species. [17] See Affidavit of Ophelia Wong, paragraph 63. [18] See paragraphs 10.1.2(a) - (c) of the RNTPC Paper. [19] See the details as set out at paragraph 10.1.3(a) of the RNTPC Paper; and also Affidavit of Kwok Pik Wan at paragraphs 22, 24 - 26. [20] See paragraphs 10.1.3(b) - (e), and also Affidavit of Kwok Pik Wan at paragraph 17. [21] It is pertinent to note that the applicant (whether by himself or through Green Sense) was not one of the objectors and had not submitted any comments to the RNTPC during the first three weeks of the application publication period. The letter was sent to the TPB outside the statutory period. [22] In that letter, the applicant objected to the Application mainly on the grounds that the 2011 NNCP Arrangements had not been complied with (in that the World Wide Fund for Nature — Hong Kong had withdrawn from the partnership with the Project Proponent and no green group would participate in wetland management), the public did not have the opportunity to comment on the further information provided by the interested party recently, the alleged non-compliance with the “no-net-loss in wetland” principle, that Hong Kong Bent-winged Firefly should be protected, and the nature should not be privatized. These grounds are similar to what are now raised as grounds of challenge in this judicial review. [23] See Affidavit of Ophelia Wong, paragraph 30, and Affidavit of Au Wai Kwong, Elvis, paragraphs 6 - 12; and Minutes, paragraph 49(c)(i). [24] See [BE3/23/638-640]. [25] In that “…The proposal should also include a mechanism to ensure that the long-term management of the wetland could be practically implemented and monitored…” [26] It is pertinent to note when the EB referred to the development proposal in Fung Lok Wai made to the Advisory Council on Environment, it was indeed referring to the interested party’s proposed development plan at the Development Site as by then the interested party had already commenced the environment impact assessment required under the EIAO. See paragraphs 3 to 6 of the ACE Paper annexed to the TPB 8869 Paper [BE1/11/133-134]. [27] Mr Tam relies on R (MP) v Secretary of State for Justice [2012] EWHC 214 (Admin) at [170]. [28] See the Fish Pond Study at page 9 under the heading “Towards A Landuse Planning Strategy for the Fish Ponds”. [BE3/24/662] [29] See Amended Form 86 paragraph 54. [30] See Affidavit of Ophelia Wong at paragraph 53. [31] As mentioned at [13] above, paragraphs 41 - 43 of the minutes of the 18 December 1998 TPB meeting [BE3/25/741-741] further show that, in adopting the “Modified Option”, the TPB envisaged some limited loss of wetland area for development in exchange for long-term management of the wetland, and project proponents were required to submit wetland management and enhancement scheme to demonstrate that the loss could be compensated. [32] Referring to the 5 - 10% of filling up of the fish ponds as discussed in the TPB meeting based on the Fish Pond Study. See the quote at [13] above. [33] See Affidavit of Kwok Pik Wan at paragraphs 23 - 26, 28. [34] See Ho Loy v Director of Environmental Protection & Anor [2016] 2 HKLRD 417, at [39] per Kwan JA, applying Reg v Hillingdon LBC, ex parte Puhlhofer [1986] AC 484, 518 per Lord Brightman. This is a fortiori when the decision involves findings of fact of a technical nature which requires specialised knowledge: see Popular Signs Ltd v Radiation Board, HCAL 53/2008 (unreported, 12 January 2010), per A Cheung J (as he then was); Presho v Insurance Officer [1984] AC 310, 318F-H per Lord Brandon. [35] In his skeleton at paragraphs 52 - 56, Mr Tam has sought to advance arguments saying that the TPB had also breached its Tameside duty in relation to the “no-net-loss in wetland” principle. I agree with Mr Mok that it is not open to the applicant to pursue this argument as this is simply not pleaded in the Amended Form 86 as a basis of challenge, in respect of which no leave has been granted. There is not even an application for leave to amend the Amended Form 86 to include this ground. See: Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, at 339H-340H per Litton PJ. I will therefore not deal with this argument. [36] See R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, at [108], R (Edwards) v Environment Agency [2006] EWCA Civ 877 (affirmed on appeal reported in [2008] UKHL 22; [2008] 1 WLR 1587) at [103] per Auld LJ, with whom Rix and Maurice Kay LJJ agreed. | |||||||||||||||||||||||||||||
Cases cited in this judgment