The Methodist Church, Hong Kong v. Town Planning Board

HCAL 55/2011 & HCAL 64/2011
[2021] HKCFI 1060

HCAL 55/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 55 OF 2011

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AND

HCAL 64/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 64 OF 2011

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_________________

(Heard Together)

Before: Hon Lisa Wong J in Court

Date of Hearing: 14, 15 and 18 March 2019

Date of Judgment: 19 April 2021

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J U D G M E N T

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A.      APPLICATIONS BEFORE THE COURT

1.The applicant (“MCHK”) in both HCAL 55/2011 and HCAL 64/2011 is the owner of the following sites:

(1)  the Methodist International Church at 271 Queen’s Road East (“International Church Site”);

(2)  the Methodist House at 36 Hennessy Road (“Methodist House Site”);

(3)  the Wesley at 22 Hennessy Road (“Wesley Site”);

(4)  the Ward Memorial Methodist Church and the Yang Memorial Methodist Social Service Centre at 54 Waterloo Road (“Ward Church Site”);

(5)  the Chinese Methodist Church (Kowloon) at 40 Gascoigne Road (“Kowloon Church Site”);

(6)  the Chinese Methodist School at 40 Gascoigne Road (“School Site”); and

(7)  the Methodist College at 50 Gascoigne Road (“College Site”).

2.In HCAL 55/2011, MCHK challenges the decision (“Wanchai Decision”) made by the Town Planning Board (“Board”) at its 981^st meeting on 26 April 2011 (“Wanchai Board Meeting”)and communicated to MCHK by a letter dated 23 May 2011 (“23.5.2011 Letter”). 

3.By the Wanchai Decision, the Boardrefused to propose amendment to the Draft Wan Chai Outline Zoning Plan (“OZP”) S/H5/26 (“Draft Wanchai OZP”) to meet the representation numbered R90 (“Wanchai Representation”) made by MCHK.  By the Wanchai Representation, MCHK sought to have:

(1)  the building height restrictions (“BHR” / “BHRs”) imposed on the International Church Site, Methodist House Site and Wesley Site (collectively “Wanchai Sites”) removed or relaxed; and

(2)  the building setback[1] imposed on the Wesley Site removed.

4.In HCAL 64/2011, MCHK challenges the decision (“Yaumatei Decision”) made by the Board at its 983^rd meeting on 13 May 2011 (“Yaumatei Board Meeting”)and communicated to MCHK by a letter dated 2 June 2011 (“2.6.2011 Letter”). 

5.By the Yaumatei Decision, the Boardrefused to propose amendment to the Draft Yau Ma Tei Outline Zoning Plan S/K2/21 (“Draft Yaumatei OZP”) to meet the representation numbered R9 (“Yaumatei Representation”) made by MCHK.  By the Yaumatei Representation, MCHK sought to have the BHRs imposed on the Ward Church Site, Kowloon Church Site, School Site and College Site (collectively “Yaumatei Sites”) removed or relaxed.

6.Leave to apply for judicial review was granted by Mr Justice Reyes on 27 July 2011 (for HCAL 55/2011) and 15 August 2011 (for HCAL 64/2011).  Reyes J also subsequently ordered (1) an interim stay of the submission of the Draft Wanchai OZP and the Draft Yaumatei OZP to the Chief Executive in Council (“CE in C”) pending the determination of these proceedings or further order and (2) the 2 applications be heard together at the same time.  For reasons not made known to this court, no attempt was made to restore these applications until a notice of intention to proceed was issued on 27 July 2017.

7.I will deal with the 2 applications in turn, starting with HCAL 55/2011, which concerns the Wanchai Decision.

B.      BACKGROUND TO THE WANCHAI DECISION

8.The background to the Wanchai Decision is not controversial and can be summarised as follows.

B.1    MCHK

9.MCHK was incorporated under The Methodist Church, Hong Kong, Incorporation Ordinance (Cap 1133).  It was established in Hong Kong in 1844 as a non-profit making organisation.  It is recognised as an approved charitable institution and trust of a public character under s 88 of the Inland Revenue Ordinance (Cap 112).[2]

10.According to MCHK, it has been providing religious and community services at:[3]

(1)  the International Church Site since 1897;

(2)  the Methodist House Site since 1936; and

(3)  the Wesley site since 1929.

11.In addition, MCHK also operated various local churches, chapels, kindergartens, nurseries, schools, social service agencies and other charitable causes throughout Hong Kong.[4]

B.2    The Wan Chai Planning Scheme Area

12.The Wanchai Sites are all located within the Wan Chai Planning Scheme Area (“Wanchai Planning Area”).

13.As stated in paragraphs 3.2, 5.1 and 5.2 of the Paper No 17/10 (“Wanchai MPC Paper”) prepared by the Planning Department (“PD”) for consideration by the Metro Planning Committee[5] (“MPC”) at its meeting on 10 September 2010, the Wanchai Planning Area is located at the northern part of the Hong Kong Island, bounded by Percival Street in the east, Gloucester Road to the north, Leighton Road, Queen’s Road East and Kennedy Road to the south, and Arsenal Street and Monmouth Path to the west.

14.The Wanchai Planning Area is a well-established mixed commercial and residential area.  A conglomeration of “Government, Institution and Community” (“GIC”) uses is found in the Morrison Hill area.  Other GIC sites and open spaces can also be found at various locations within the area.  The Wanchai Sites are all zoned GIC.

15.The planning intention of GIC zones is the following:

“This zone is intended primarily for the provision of Government, institution or community facilities serving the needs of the local residents and/or a wider district, region or the territory. It is also intended to provide land for uses directly related to or in support of the work of the Government, organizations providing social services to meet community needs, and other institutional establishments.”

B.3    The Wanchai Sites

16.Originally, none of the Wanchai Sites was subject to any BHRs or building setbacks.

17.In respect of the International Church Site, an old building of 3 storeys was erected thereon from where the Methodist International Church (“MIC”) was operated.  Notably, on 26 August 2009, the Building Authority approved the building plans (“Approved GBP”) submitted by MCHK to redevelop at the International Church Site a 25-storey building excluding basement, with a height of 121.88mPD[6] (“New Church Building”).[7]

18.In the TPB Paper No 8765 (“Wanchai Board Paper”) prepared by the PD, the International Church Site is described as follows:

“4.1.3 [The International Church Site] (about 794m²) is currently occupied by Methodist International Church which is a 3-storey building over one level of basement … It is located at the junction of Kennedy Road and Queen’s Road East. It is adjacent to Lui Kee Education Service Centre (a 8-storey building) and Wan Chai Polytechnic (a 3-storey building with one level of basement). The access to [the International Church Site] is via Kennedy Road. A set of general building plans (GBPs) was approved on 26.8.2009 by the Building Authority for a 25-storey building excluding 1 basement with a BH of 121.88mPD (main roof).

…

4.2.3    [The International Church Site] comprises I.L. 1316 R.P. The lot is restricted under the lease for (i) a Wesleyan Chapel and Ministers’ residence or other religious and charitable purposes of the Wesleyan Missionary Society; and (ii) no alienation except with consent.  There is no restriction on plot ratio, site overage and height under the lease.”

19.To complete the picture, in June 2012 (i.e. after the Wanhai Decision was made and after this application was commenced), MCHK submitted to the PD its revised redevelopment proposal in respect of the International Church Site, whereupon the PD recommended the Board to (among other things) relax the BHRs of the site from 4 storeys to 110mPD (approximately 25 storeys).  That amendment has been implemented and the New Church Building (of 110mPD) has been erected on the International Church Site.[8]

20.As for the Methodist House Site, the basement to 9/F of the Methodist House are used as a church and offices of MCHK, while the 10/F to 22/F are used as commercial offices pursuant to a joint venture arrangement between MCHK and a third party.[9]  The height of the building is 94.4mPD.[10]

21.The Methodist House Site is described as follows by the PD in the Wanchai Board Paper:

“4.1.4 [The Methodist House Site] (about 470m²), an island site at a prominent location at the junction of Hennessy Road and Johnston Road, is currently occupied by Methodist House with a total GFA of 7,287m². It is a 23-storey church building complex over a basement with a BH of 94.4mPD, comprising a church, social welfare facilities, quarters … and office (with a GFA of 7,287m²). It is surrounded by areas zoned “C” to its north and east and by areas zoned “R(A)” to its south and west.

…

4.2.4  [The Methodist House Site] comprises I.L. 3775.  The lot is restricted under the lease for DD&H clause and non-offensive trade clause.  Modification letter was issued on 15.4.1994 for (i) the purpose of office not exceeding 3,837m² and such other accommodation as may be required for or in connection with the religious work of the Lessee; (ii) upon redevelopment, to provide an accommodation of not less than 200m² usable floor space for the purposes of social welfare facilities; (iii) restriction on alienation except the office accommodation; and (iv) tree preservation clause.  Additional premium was paid for the lease modification in 1994.”

22.In respect of the Wesley Site, the lower portion of the building erected thereon is partially used as a social services centre by MCHK, while the remaining portion of the building is used as a hostel known as “The Wesley”.  The hostel is operated by a hostel operator under a joint venture agreement with MCHK.  The proceeds of the joint venture agreement are used to fund some of the social services provided by MCHK for which the Government does not provide any subvention.[11] The height of the building is 75.3mPD.[12]

23.The PD described the Wesley Site as follows in the Wanchai Board Paper:

“4.1.5 [The Wesley Site] (about 926m²) is currently occupied by the Wesley, which is a 22-storey building over 2 levels of basement, comprising a hostel, a youth centre, a nursery and ancillary offices with a BH of 75.3mPD … The surrounding developments in the same street block bounded by Anton Street, Hennessy Road and Queen’s Road East are mainly commercial buildings.

…

4.2.5  [The Wesley Site] comprises I.L. 8686 and is governed by Conditions of Grant No. 12045.  The lot is restricted under the lease for a building or buildings comprising (i) non-profit making hostel of not more than 400 rooms together with domestic quarters for staff and workmen employed in the hostel and ancillary offices, (ii) accommodation for institution and community purposes comprising a children and youth centre, a nursery for 100 children and ancillary offices; for a non-profit making hostel, church, social and welfare purposes; total GFA be not less than 8,200m²; and DD&H clause.  Modification letter was issued on 19.4.1990 for the right of vehicular ingress and egress of the site from or to Anton Street.”

B.4    Imposition of BHRs & building setbacks on the Wanchai Sites

24.On 4 November 2008, pursuant to s 12(1)(b)(ii) of the Town Planning Ordinance (Cap 131) (“TPO”)[13], the CE in C referred the Approved Wan Chai Outline Zoning Plan S/H5/25[14] (“Approved Wanchai OZP”) to the Board for amendment.

25.The proposed amendments were set out in the Wanchai MPC Paper.  As made clear in paragraphs 3.1 and 4.1 of that paper, the main focus of the proposed amendments was to impose BHRs on those development zones within the Wanchai Planning Area which were hitherto not subject to such restrictions, including (among others) GIC zones.  In addition to the imposition of BHRs and building setbacks, the PD’s review also covered the rezoning of certain sites within the Wanchai Planning Area.

26.Insofar as the Wanchai Sites are concerned, it was proposed that:

(1)  the International Church Site be subject to a BHR of 4 storeys;

(2)  the Methodist House Site be subject to a BHR of 95 mPD; and

(3)  the Wesley Site be subject to a BHR of 75 mPD and a building-setback of 1 metre from the lot boundary facing Anton Road.

27.The PD dealt with these proposed amendments as follows in the Wanchai MPC Paper:

“11. Proposed [BHRs]

11.1 Taking account of the building height concept and in view of the various types and heights of developments and the topography of the Area, [BHRs] will be expressed in terms of metres above Principal Datum (mPD) for developments in the “C”, “R(A)” and “R(B)” zones, or some relatively higher “G/IC” and “OU” sites. For the low-rise “G/IC” and low-rise “OU” developments with building heights not taller than 13 storeys, they will be subject to restrictions in terms of number of storeys to allow design flexibility to cater for specific functional requirements unless there is special need to control the height level for visual or air ventilation purposes. Details of the proposed [BHRs] for the various zones are set out in paragraphs 11.5 to 11.20 below…

…

“G/IC” Sites (Plan 14)

11.16 As the Area has basically been developed, the “G/IC” sites are intended to provide the necessary GIC facilities as well as to provide some breathing space and visual relief in this crowded and built up area. Taking into consideration the recommendations of the AVA[15], redevelopment of GIC sites for more intensive development is generally not supported. To provide clarity on the building height profile and to ensure compatibility of future development/redevelopments with their surroundings, it is considered appropriate to impose [BHRs] for all the “G/IC” sites to contain their development scale and existing building heights.

11.17 There are a total of 55 “G/IC” sites in the Area comprising 65 developments. Of these, 13 sites have been or will be developed for non-G/IC uses… Of the remaining 42 “G/IC” sites, the largest conglomeration is the GIC cluster in the Morrison Hill Area with hospitals/clinics, swimming pool complex, schools, religious institutions and community facilities. This GIC cluster is rather unique in character. While a [BHR] of 8 storeys is adopted for school sites, the proposed building height for other GIC sites is mainly to reflect the height of the existing buildings.

11.18 In formulating the proposed height restrictions for these “G/IC” sites, due regard has been given to the nature of the existing facilities/uses on the sites, the existing building heights, the height restrictions on the land allocation/lease (if any), the need to meet the minimum height requirement for the designated GIC facilities and the need to maintain compatible building mass in the local setting. The proposed [BHRs] are mainly to reflect the existing building heights of the various GIC developments, or to accommodate any known or committed development proposals (e.g. the redevelopment of Tang Siu Kin Building to 90mPD). It should be noted that the GIC sites on the OZP cover a wide range of uses with different scales. For sites with unrestricted lease, redevelopment up to the level permissible under the Building (Planning) Regulations may not be possible under the proposed [BHRs]. Relaxation of the [BHR] on individual GIC site can be considered on a case by case basis through planning application or plan amendment procedures when specific redevelopment proposal is proposed…

…

For GIC sites outside the Morrison Hill area

(b) maximum building height of 1 storey, 3 to 5 storeys, 8 storeys, 10 storeys and 12 storeys: these mainly reflect the existing height of churches/ religious institutions, market, fire station, clinic, schools/educational institutions and social welfare facilities. 1 storey reflects the height of Pak Tai Temple (Site C6), which is a Grade I historic building, 3 storeys reflect the height of the Bowrington Road Market (Site G12), 4 storeys reflect the existing height of the Methodist International Church (Site C7), Wan Chai Fire Station (Site G13) and Wan Chai Polytechnic (Site G7)…

(c) maximum building height of 50mPD, 60mPD, 75mPD, 80mPD, 95mPD and 110mPD: these are applicable to the office type or residential type (hostel) developments such as the Duke of Windsor Social Service Building (Site C2), St. James Settlement (Site C5), the Wesley Hong Kong (Site O2), the PCCW Building (Site U1), Methodist House (Site C3) and the social welfare buildings (Site C1) at 3 Lockhart Road to reflect their existing building heights.

(emphasis and footnote added)

28.At its 426^th meeting held on 10 September 2010, the MPC approved, among others, the aforesaid amendments proposed by the PD.  In consequence, the amended plan (together with a schedule of amendments and an explanatory statement) was gazetted on 24 September 2010 and exhibited for public inspection starting from the same date for 2 months ending on 24 November 2010. 

B.5    Wanchai Representation

29.According to paragraph 8(a) of the minutes of the Wanchai Board Meeting (“Wanchai Board Minutes”), the Board received a total of 106 representations in respect of the Draft Wanchai OZP under s 6.

30.The Wanchai Representation was one of those representations.  By the Wanchai Representation, MCHK opposed the imposition of both the BHRs (on all of the Wanchai Sites) and building setback (on the Wesley Site).  MCHK summarised the grounds of its opposition as follows in paragraphs 1.3 and 6 of the Wanchai Representation:

“1.3 The Representer considers that such amendments adversely affect the private land ownership rights of the Representer in an unnecessary and disproportionate manner, and fall outside the range of matters which may be included in a draft plan under the TPO. In addition, such amendments are considered not to be in the best public interest and are fundamentally flawed from a planning perspective. This Representation raises a number of fundamental objections in relation to the amendments introduced to the Draft Plan.

…

6.1 The Representation is made in opposition to the proposed amendments. The Representation raises a number of fundamental objections in relation to the amendments introduced to the Draft Plan generally, and in particular those which affect the [Wanchai] Sites.

6.2 The Representer is of the view that the content of many of the amendments, and the effect of the amendments, are fundamentally flawed from a planning perspective and are contrary to the best interests of [MCHK], the community and Hong Kong.

6.3 The Representer is also of the view that some or all of the amendments have been made in a manner which is contrary to or outside the provisions of the TPO.  In this respect, the [Board] has exceeded, or has not acted in accordance with its statutory powers under the TPO.”

31.For present purposes, it is important to note that a key point[16] raised by MCHK in the Wanchai Representation is that the proposed amendments, by limiting the redevelopment potential of the Wanchai Sites (as well as other GIC sites), would reduce the provision of educational, social welfare and religious services within the community.  Specifically, the following was said in respect of each of the Wanchai Sites:

“3. The International Church Site

…

3.4 A copy of a section plan showing the uses of the proposed New Church Building is at Attachments C1 and C2. The proposed uses are:

• sanctuary, chapel and worship hall;

• office and facilities of [MIC], Hong Kong;

• Ministers’ residence;

• library, archives, meeting rooms and officers’ office of [MCHK];

• resource/training centre, library and office of different ministry divisions of [MCHK]; and

• office, counselling and training facilities of social services for youth, adults and families.

3.5 The development of the New [Church] Building will be financed primarily using [MCHK]’s own resources and donations from members of [MCHK] and the public, without Government subvention.

3.6 The New [Church] Building will provide much needed accommodation to support the charitable works of [MCHK], not only in Wanchai, but also elsewhere in Hong Kong. [MCHK] is looking at ways to improve the design of the New [Church] Building, including the possibility of incorporating a pedestrian plaza on the ground floor for the benefit of users of the New [Church] Building and members of the public. The imposition of the BHR will prevent [MCHK] from making any amendment to the Approved GBP which is not minor in nature and remove all flexibility in the design of the [New Church] Building. For example, if the BHR is to be imposed, the pedestrian plaza will no longer be a viable option.

4. The Methodist House Site

…

4.5 [MCHK] aims to serve the long-term needs of the community. [MCHK] would need to ensure that upon the redevelopment of Methodist House, it would be able to realise the full development potential of the site to provide the necessary accommodation to serve the expanding needs of the community. [MCHK] has a legitimate expectation that it would be put on at least an equal footing with the adjoining commercial buildings.

4.6 If the BHR is to be imposed:-

(a) [MCHK] will not be able to realise the full potential of the Methodist House Site upon redevelopment by providing modern offices with acceptable slab to slab height of at least 3.6m and a place of worship of at least existing ceiling height, without sacrificing valuable floor area.

(b) [MCHK] will not be able to adopt a design to reduce the size of the podium or to create any pedestrian plaza on the ground floor, without sacrificing valuable floor area.

5. The Wesley Site

…

5.4 The social services currently provided in the lower portion of the Wesley Site are:

• supporting service – central administration;

• bookroom service;

• green design – social enterprise;

• childcare and family support service – from age 1.5 to 3 and their parents;

• after school care service – P1 to P6 primary students and their parents;

• continuing education service – from Age 3 to adult (working youth);

• counselling service;

• employee retraining service;

• youth pre-employment training program and youth work experience & training scheme; and

• elderly service – enhanced home care and community care service

…

5.6 [MCHK] aims to serve the long-term needs of the community. [MCHK] would need to ensure that upon the redevelopment of The Wesley, it would be able to realise the full development potential of the site to provide the necessary accommodation to serve the expanding needs of the community. [MCHK] has a legitimate expectation that it would be put on at least an equal footing with the adjoining commercial building.

5.7 If the BHR and Building Set-back requirement along Anton Street are to be imposed:-

(a) [MCHK] will not be able to realise the full potential of the Wesley Site by redeveloping it to existing floor area.

(b) [MCHK] will not be able to adopt a design to reduce the existing site coverage or to create any pedestrian plaza on the ground floor, without sacrificing valuable floor area.

(emphasis by underlining added)

32.This point was reitereated in paragraph 9.5 of the Wanchai Representation, where MCHK claimed that the Board had given no or insufficient regard to the adverse impact that the proposed amendments would have on the general welfare or needs of the community:

“9.5 Balancing the Health, Safety Convenience and General Welfare of the Community

9.5.1 Section 3(1) of the TPO provides that the Board’s systematic preparation of draft plans is to be undertaken “with a view to the promotion of the health, safety, convenience and general welfare of the community” (emphasis added).

9.5.2 In making decisions concerning the Draft Plan, the MPC was, and the [Board] remains, under a statutory duty to take into consideration the factors referred to in s. 3(1) of the TPO. This would include:

(a) a full and proper assessment of the community’s needs for community facilities and social services, and the impact on those needs of the various BHRs and Building Set-backs which the Draft Plan proposes to apply to the “G/IC” Sites;

(b) a proper balancing of the factors mentioned at (a) above against other planning needs relevant to the health, safety, convenience and general welfare of the community, including the various urban design factors mentioned in the MPC Paper; and

(c) a duty to make inquiries and ascertain the information relevant to the above considerations and balancing exercise.

9.5.3 Given the impact of the proposed BHRs and Building Set-back upon [MCHK]’s long term operations …, the Representer suggests that the proper approach to be taken by the [Board]/MPC in deciding specifically whether to include the proposed BHRs and Building Set-back on the [Wanchai Sites] in the Draft Plan, or to remove them, is to balance:

(a) any adverse urban design effects of relaxing the proposed BHRs on the [Wanchai] Sites …, or removing those proposed BHRs and Building Set-back altogether; against

(b) the adverse effect on the community’s needs which would result from the proposed BHRs and Building Set-back on the [Wanchai] Sites.

…

9.5.5 Contrary to the suggestion in paragraph 11.18[17] that “due regard has been given to the nature of the existing facilities/uses on the sites”, the reality is that the [Wanchai] MPC Paper presents an entirely one-sided approach, which arbitrarily seeks to justify the wider moratorium which permanently freezes development of all “G/IC” sites, by reference to the misconceived notion that the function of “G/IC” sites is to serve as breathing space and visual/spatial relief…

…

9.5.7 No attempt whatsoever has been made by the [PD], in formulating the BHRs, commissioning the EE, and in preparing the [Wanchai] MPC Paper, to make inquiries or to carry out the kind of balancing exercise suggested in paragraphs 9.5.2 and 9.5.3 above. Neither was any such attempt made at the meeting at which the [Wanchai] MPC Papers was considered.

9.5.8 [MCHK] requests the [Board] to make the necessary inquiries and carry out the requisite balancing exercise in a fully open and transparent manner, as part of the consideration of this Representation.

(emphasis and footnote added)

33.MCHK concluded, in paragraph 14.1 of the Wanchai Representation, that the proposed amendments went much further than was necessary to achieve the objectives stated in the explanatory statement and that “[i]n particular, the BHRs imposed have not been clearly considered in relation to the wider needs and long term requirements for the provision of community and social services in Hong Kong”.

34.On 3 December 2010, the representations (including the Wanchai Representation) were published for 3 weeks for public comments.  A total of 293 comments were received.

B.6    Wanchai Board Paper

35.The representations and related comments were divided by the Board into 2 groups.  The Wanchai Representation was allocated to the second group.  In the Wanchai Board Paper, the PD provided the Board with its views on the representations and related comments under the second group.

36.Specifically, the PD responded to the Wanchai Representation (which was numbered R90) as follows in paragraph 4.4.1(l) of the Wanchai Board Paper:

“The Wesley, Methodist House and Methodist International Church

(l) R90 proposes to delete the building setback along Anton Street for The Wesley Site. According to the [Wanchai] AVA, there is a lack of north-south air paths for the southerly wind to Wan Chai North through the western part of the Area. Setback requirements are therefore imposed on a number of streets including Anton Street along both sides of Queen’s Road East to create north-south air paths in this part of the Area. As such, the deletion of the setback proposed by R90 is not supported. For the [International Church Site], the [Approved GBP] before the imposition of BHR would be allowed to proceed. However, as a matter of principle, the incorporation of the BHs of approved development schemes in building plan submissions for individual sites into the OZP would jeopardise the integrity of the overall BH concept. For Methodist House, it is located at a prominent island site at the junction of Hennessy Road and Johnston Road, relaxation of BHR may have visual impact on the surrounding development and would need to be assessed when there is concrete redevelopment proposal. As explained in sub-paragraph (i) above, there are provisions in the [TPO] and established channels for amending the BHRs of “G/IC” sites. As for the relaxation of the BHRs for the remaining two sites proposed by R90, the responses as stated in paragraph 4.4.1 (g) to (i) above are relevant.”

37.Paragraphs 4.4.1 (g) to (i), in turn, stated the following:

“Basis for BHRs for “G/IC” sites

(g)  As mentioned in paragraph 4.4.1 above, in formulating the BHRs for the “G/IC” sites, due regard has been given to the nature of the existing facilities/uses on the sites, the existing BHs, the height restrictions on the land allocation/lease (if any), and the need to maintain compatible building mass in the local setting, among other considerations.

(h)  The “G/IC” sites in the Area have been largely developed.  Unless there are committed proposals or known developments (e.g. the redevelopment of Tang Shiu Kin Building at Oi Kwan Road to 90mPD) or a need to meet the minimum height requirement (e.g. standard requirement of eight storeys for school development), the existing “G/IC” sites will broadly be kept to their existing heights to serve as breathing spaces and visual/spatial relief in the Area, as recommended by the [Wanchai] AVA.  In particular, the “G/IC” cluster at Morrison Hill is important for the southerly wind flowing across the open fields and race course in Happy Valley to penetrate into the Area.

(i)  If non-government organisations (NGOs) need to redevelop/ expand their facilities on “G/IC” sites and to amend the BHRs to meet the requirements of their facilities, they may submit a specific development scheme with relevant technical assessments to the Government and the Board for consideration.  If it is submitted in the form of a s.12A application, the s.12A application will be processed and considered by the Board in accordance with the provisions of the [TPO].  Alternatively, if their scheme is well justified and supported by the relevant Government bureau(x)/ departments, [the PD] may recommend to the Board to amend the BHR under section 5 or 7 of the [TPO].  In processing such applications/proposals, [the PD] will facilitate as far as possible.  The Development Opportunities Office under the Development Bureau has also been providing one-stop consultation and coordination services to land development projects proposed by NGOs meeting relevant criteria.”

38.Then, in paragraph 7 of the Wanchai Board Paper, the PD stated that it did not support (among others) the Wanchai Representation and that the Draft Wanchai OZP should not be amended to meet it. The PD set out the following 6 points (under paragraph 7) as their reasons for taking this stance:

“(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 Guidelines, existing topography, stepped BH concept, local characteristics, existing BH profile, site formation level and site constraints, the zoned land uses of the site concerned, development potential, the wind performance of the existing condition and the recommendations of the [Wanchai] AVA, have been taken into consideration. The BHRs have struck a balance between public aspirations for a better living environment and private development right.

(b) The planning intention of “G/IC” zoning is primarily for the provision of G/IC facilities serving the needs of the local residents and/or a wider district, region or the territory. Apart from providing G/IC facilities, the “G/IC” sites also serve to provide breathing space and visual relief in the densely built-up environment. According to the [Wanchai] AVA, it is important to maintain existing air paths over the low-rise G/IC sites, particularly the low-rise G/IC cluster in Morrison Hill and the row of 4 north-south aligned G/IC sites to the east of Fleming Road.

(c) Blanket relaxation of the BHRs is not supported as it would result in proliferation of high-rise developments, which is not in line with the intended planning control. Deletion or piecemeal relaxation of BHRs for individual sites would jeopardise the coherency of the stepped BH profile and could result in proliferation of high-rise developments, which is not in line with the intended planning control.

(d) 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 should have the power to impose BHRs on individual sites or for such areas within the boundaries of the OZP under sections 3 and 4 of the [TPO] if there are necessary and sufficient planning justifications. (R90 only)

(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 and a set of criteria for consideration of such applications has been set out in the Explanatory Statement of the OZP.

(f) There is lack of specific proposals for the concerned “G/IC” sites. Should there be specific proposals, they will be assessed on individual merits. There are provisions in the [TPO] and established channels for the Board to consider amending the BHRs for “G/IC” sites when there are concrete development/ redevelopment proposals.”

B.7    The Wanchai Board Meeting & the oral presentations thereat

39.The representations and comments on the Draft Wanchai OZP were considered at the Wanchai Board Meeting held on 26 April 2011, at which MCHK was present and represented.

40.MCHK’s representatives, with the aid of PowerPoint presentations, made a number of points in opposition to the proposed restrictions on the Wanchai Sites.  Among other things, as recorded in the Wanchai Board Minutes, MCHK reiterated that the proposed restrictions by reducing the supply of religious and social welfare services would adversely affect the community.  In particular, according to the Wanchai Board Minutes, MCHK’s representatives made the following points at the Wanchai Board Meeting:

(1)  The GIC zoning covered a wide variety of sites providing different types of uses involving a variety of organisations. MCHK was not just a church but also a NGO providing extensive services to the community without any Government subvention or funding.  If the redevelopment proposals of MCHK were thwarted, the existing services provided to the community would be affected as more space was needed for MCHK to improve its services.[18]

(2)  In respect of the International Church Site, the Methodist International Church was built in 1967 and provided seating capacity for 175 people.  There was a chronic shortage of space to serve the needs of the church.  Other than church services, the MIC also offered other community services including a shelter for displaced Filipino domestic workers, services for refugees, asylum seekers and street sleepers.[19]  MCHK had planned to redevelop the site to provide more space for worship, church administration, staff accommodation, meeting rooms and resource centres.  Although the Approved GBP would not be affected by the proposed imposition of the BHRs, such imposition would still represent an obstacle since constructions work had to commence within 2 years of the approval and MCHK would have difficulty amending the Approved GBP.[20]

(3)  In respect of the Methodist House Site, with the expansion of the services provided by MCHK, there was inadequate space in Methodist House for church service and MCHK had to rent additional floor space from its joint venture partner for its use. Further, the ground floor of Methodist House was open for the provision of public services including lunchtime seminars, choir performances, dance classes and services for the elderly, young people, teenagers and children.  A few years ago, when there was an outbreak of H1N1 in a nearby hotel, the Methodist House served as a support station for the police and the medical staff. [21]

(4)  The Wesley was a 251-room hostel and a social service agency. The services provided at the Wesley Site included childcare and family support services, after school care services, continuing education services, counselling services, employee retraining services, youth pre-employment training and home care and community care elderly services.[22]

(5)  The Board should consider the imposition of BHRs on each GIC site individually and take account of the community services they provided and the need to protect public interest.[23]

41.After the presentations from representers and commenters were completed, the Board held a Q&A session amongst the attendees.  At this point, it is noteworthy that one of the other representers echoed the community needs issue raised by MCHK by stating that the proposed restrictions would “affect the provision of new or expanded GIC facilities to meet the needs of the community”.[24]  Nevertheless, according to the Wanchai Board Minutes, none of the other Board members raised any questions or made any comments regarding how the proposed restrictions might affect the provision of community and welfare services in the community.

B.8    The Board’s deliberation & the Wanchai Decision

42.It was then recorded in paragraph 186 of the Wanchai Board Minutes that after further deliberation, the Board decided not to uphold the Wanchai Representation.  The reasons for the Wanchai Decision were noted in 9 sub-paragraphs under paragraph 186.

43.It is not necessary to recite all those reasons because:

(1)  The first 6 sub-paragraphs were adopted verbatim from the 6 points set out in paragraph 7 of the Wanchai Board Paper (see [38] above), except (1) the use of the past tense (instead of present tense) in the Wanchai Board Minutes; (2) in relation to the fourth reason, the Board changed the wording from “The Board should have the power to impose BHRs on individual sites…” to “The Board had the power to impose BHRs on individual sites…”.

(2)  The seventh sub-paragraph, which was lifted almost verbatim from paragraph 4.4.1(l) of the Wanchai Board Paper (see [36] above), read:

“while the [Approved GBP] would be allowed to proceed, the incorporation of the BHs of approved development scheme in building plan submissions for individual sites into the OZP would jeopardise the integrity of the overall stepped BH concept”.

(3)  The eighth sub-paragraph provided that “the deletion of the setback requirement for The Wesley site would affect the effectiveness of its planning intention”.

(4)  The ninth sub-paragraph, which was substantially similar to paragraph 4.4.1(a) and (d) of the Wanchai Board Paper, read:

“the two-month statutory exhibition period and provision for representations and comments formed part of the consultation process. Any premature release of the 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, NBA, building gap and setback requirements on the OZP including [Wanchai AVA] and visual analysis, is available for public inspection.”

44.The Board’s determination of the representations was preceded by 20 paragraphs (paragraphs 158 to 177) under the heading “Deliberation Session”.  It is again unnecessary to recite these paragraphs.  It suffices to note that based on what this court can see from the Wanchai Board Minutes, the Board focused its deliberation primarily on whether GIC sites should be used to provide visual and spatial relief and whether GIC landowners (or particular types of GIC landowners) were being discriminated against or unfairly treated.

45.The court cannot find from the Wanchai Board Minutes any deliberation on how the proposed restrictions might affect the provision of religious or other types of community services, except that:

(1)  According to paragraph 161, a member of the Board “enquired how the redevelopment needs of these NGOs[25], which were to improve the existing services and meet the changing needs of the community, could be accommodated”.  However, although this query mentioned the “needs of the community”, it is clear that the nub of the query concerned whether the proposed restrictions had taken into consideration the rights and interest of the GIC landowners (rather than the needs of the community).  Indeed, the answer given to this question, as recorded in paragraph 162, mentioned that the PD had considered the “development rights under the lease” in formulating the proposed restrictions; there was no suggestion that the PD or the Board had analysed or factored in the adequacy of, or the community’s needs for, GIC facilities.

(2)  According to paragraph 175, in the context of deliberating the proposed rezoning of certain sites within the Wanchai Planning Area, “[m]embers noted that there was already adequate GIC provision in the Wan Chai area and that the rezoning of the [Wan Chai Police Station] and the [Wan Chai Police Married Quarters] sites was appropriate”.

46.As stated in [2] above, the Board communicated the Wanchai Decision to MCHK by the 23.5.2011 Letter.  The reasons given in the 23.5.2011 Letter were identical to the ones set out in paragraph 186 of the Wanchai Board Minutes which, as mentioned in [43] above, were drawn almost word-for-word from the Wanchai Board Paper.

C.      WANCHAI DECISION – DISCUSSION

C.1    Procedural argument - Amendment of Form 86

47.Before discussing the substantive grounds of MCHK’s judicial review application in HCAL 55/2011, I should first deal with 2 procedural matters that are relevant to both judicial review applications.

48.The first procedural matter which requires my determination is the proposed amendments to the Form 86 in each of the applications.

49.Around a week before the hearing[26], MCHK sought to amend their Form 86 in each of the proceedings before this court and gave notice of their proposed amendments to the Board in accordance with Order 53, rule 6(3) of the Rules of the High Court (Cap 4A).

50.I have gone through the proposed amendments.  Their effect can be summarised as follows.  In HCAL 55/2011 (which concerns the Wanchai Decision), the proposed amendments sought to:

(1)  abandon the claim for a declaration that the Draft Wanchai OZP is ultra vires and void ab initio;[27]

(2)  abandon the argument that the proposed restrictions on the Wanchai Sites amounted to “spot” zoning and therefore outwith the Board’s statutory functions and powers under the TPO;[28]

(3)  abandon the argument that the imposition of the setback requirement on the Wesley Site was ultra vires and unlawful in that it involved the circumvention of the statutory scheme for road and footpath widening;[29] and

(4)  add the argument that the proposed restrictions failed to satisfy the proportionality test in that no reasonable balance had been struck between the societal benefits of the encroachment and the inroads made into the property rights of MCHK.[30]

51.The proposed amendments in HCAL 64/2011(which concerns the Yaumatei Decision) are essentially the same except that point (3) above did not come into play since the Board did not seek to impose any setback requirements on the Yaumatei Sites.

52.As I see it:

(1)  The first 3 sets of proposed amendments were clearly necessitated by the decisions[31] of the Court of Appeal in November 2014 holding that “spot” zoning was authorised under the TPO and that the Board had the power to impose setbacks as a matter of vires.

(2)  The fourth set of proposed amendments was obviously inspired by the Court of Final Appeal’s decision in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 holding that the court should henceforth adopt a four-step process (instead of a three-step process) when applying the proportionality test.

53.Having considered the parties’ submissions, I will allow the amendments with costs to the Board.  The first 3 sets of amendments simply drop points that have ceased to be arguable due to subsequent developments of the law.  As for the fourth set of amendment, while I accept it seeks to introduce a new point (i.e. the fourth limb of the proportionality test), I think that point is one which, in light of the Court of Final Appeal’s decision in Hysan, I would have been bound to consider anyway (should I find it necessary to determine MCHK’s constitutional challenge).  I should also add that I am not satisfied that the proposed amendments would cause the Board any serious prejudice or any prejudice which cannot be compensated by an appropriate cost order.

C.2    Procedural argument - Admissibility or weight of the Board’s affidavit evidence

54.The second matter is the admissibility or weight of the affidavit evidence filed by the Board.

55.In opposing each of the 2 judicial review applications, the Board in September 2018 filed 2 sets of affidavit/affirmation.  In HCAL 55/2011, one was made by the Secretary of the Board and consisted of 27 pages (excluding exhibits), while the other was made by the District Planning Officer/Hong Kong of the PD and consisted of 29 pages (excluding exhibits).  In HCAL 64/2011, one was made by the District Planning Officer/Tsuen Wan and West Kowloon of the PD and consisted of 23 pages (excluding exhibits), while the other was made by the Deputy Director of the PD and consisted of 30 pages (excluding exhibits).

56.      In broad terms, the evidence filed by the Board covered the background leading up to the Wanchai Decision, the subsequent events concerning the Wanchai Sites (e.g. the erection of the New Church Building on the International Church Site) and the Board’s responses to MCHK’s grounds of judicial review.

57.Mr Nigel Kat SC, leading Mr Earl Deng and appearing on behalf of MCHK, submitted that the Board should not be allowed to use the affidavit evidence to contradict or “plug the holes” in their earlier reasons as recorded in the contemporaneous documents such as the Wanchai Board Minutes.  In support of this position, he cited, among others, the judgment of A Cheung J (as the Chief Justice then was) in Smart Gain Investment Ltd v Town Planning Board, HCAL 12/2006, unreported, 6 November 2007, at [72] and Au J (as Au JA then was) in Chan Ka Lam v The Country and Marine Parks Authority, HCAL 54/2014, unreported, 27 April 2017, at [140]-[142], both of which referred to R v Westminster City Council, Ex parte Ermakov [1996] 2 All ER 302.  Mr Kat SC contended that various parts of the Board’s affidavit evidence are in violation of the principles set out in these passages and therefore should be inadmissible or disregarded.

58.In response, Mr Abraham Chan SC (and with him, Mr Harrison Miao) submitted on behalf of the Board that:

(1)  Although the deponents were not the decision-maker, they were both public officers who were intimate with the proceedings under challenge and are thus well placed to give sworn evidence as regards issues in dispute.

(2)  The argument that the deponents have stated the planning intention of the Board and/or expanded on its reasons is misplaced.  Other than the updates of the post-decision developments of the sites, the deponents never attempted to rely on further materials.  They relied on no more than contemporaneous materials before the Board in clarifying or explaining the decisions under scrutiny.  Evidence of such nature is entirely proper and admissible.

(3)  MCHK has invoked a constitutional challenge.  The question of whether the impugned decisions have in fact infringed MCHK’s constitutional rights must be assessed in light of the materials before the court in the judicial review, not only in light of those before the Board at the time of the decision under challenge.

(4)  It is not known why MCHK has not taken any objection to the admissibility of the evidence earlier.  MCHK’s objections could have been raised upon reading the affidavits.

59.In my view, having heard the parties’ submissions (particularly the Board’s point at [58(2)] above), I do not think there is actually any serious dispute that the Board should not in this case be allowed to use their affidavit evidence to alter or contradict the reasons or justifications given in respect of the Wanchai Decision or the Yaumatei Decision.  I believe this conclusion accords with common sense and is well supported by the authorities cited by Mr Kat SC.

60.Accordingly, in the course of analysing MCHK’s grounds of judicial review in both sets of proceedings, I shall give no weight to the affidavit evidence filed by the Board insofar as it seeks to alter or contradict (or otherwise goes beyond merely elucidating or confirming) the reasons or justifications stated in the official, contemporaneous records.

C.3    Grounds of judicial review and issues raised

61.MCHK’s grounds for judicial review were set out in the following shorthand “headings” in paragraph 2(2) of its Amended Form 86[32]:

(1)  Wrongful exercise of power;

(2)  Discrimination; inequality of treatment and inconsistency;

(3)  Illogicality and/or irrationality;

(4)  Disproportionate interference with property rights and setback;

(5)  Inadequate reasons.

62.The arguments in support of these grounds for judicial review are presented in an intertwined manner with a lot of repetitions.  However, Mr Chan SC has fairly summarised the core issues raised in this judicial review as follows:[33]

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

(2)  Did the Board violate the principle of equality in arriving at the Wanchai Decision?

(3)  Was the Wanchai Decision tainted by material errors of fact?

(4)  Were the proposed restrictions disproportionate interferences with MCHK’s property rights under Articles 6, 105 and 141 of the Basic Law?

(5)  Did the Board independently consider MCHK’s submissions before making the Wanchai Decision?

63.For the reasons that follow, it is clear to me that the first question should be answered in the affirmative in that the Board failed to consider (or adequately consider) the social welfare, community and religious needs of the community in formulating the proposed restrictions.

C.4    Relevant principles on duty to make inquiries

64.As provided in its Long Title, the TPO was enacted “to promote the health, safety, convenience and general welfare of the community”.  Under s 3(2), the Board has a duty to “make such inquiries…as it may consider necessary” for the preparation of draft plans.

65.Further, at common law, the Board has a duty to inquire into relevant considerations.  The principle was set out by Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1065:

“…the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

66.Subject to Wednesbury review, it is for the Board as a primary decision-maker, not the courts, to decide upon the manner and intensity of the inquiry to be undertaken into any factor accepted or demonstrated as relevant.  The court should only strike down a decision by the authority for not making further inquiries if no reasonable authority possessed of that material could suppose that the inquiries they had made were sufficient: Hysan Development Co Ltd v Town Planning Board, supra at [93] per Lam VP, citing Smart Gain, supra at [87] per A Cheung J (as he then was).

C.5    Breach of duty to make inquiries

67.Mr Chan SC did not dispute the relevance of the community needs issue but he submitted that the Board had clearly taken into account this matter in formulating the proposed restrictions.  In support, Mr Chan SC drew the court’s attention to the following passage in paragraph 4.4.2(c) of the Wanchai Board Paper (which was also replicated in paragraph 104(f)(xxii) of the Wanchai Board Minutes):

“Although the planned population of the Area would be increased from 72,100 to 83,540 persons, the existing and planned G/IC facilities will generally be adequate to meet the need of the plan population in the Area, except for two district-wide facilities, i.e. leisure swimming pool and sports centre which could not be accommodated within the [Wan Chai Police Married Quarters] site due to insufficient site area and the site is also not suitable for providing such facilities in terms of the predominantly commercial/office land use character in the local area.”

68.It should be noted that these views were not the PD’s responses to the Wanchai Representation.  Instead, they were the PD’s responses to other representations relating to the rezoning of (and the imposition of BHRs on) the sites occupied by the Wan Chai Police Station and the Wan Chai Police Married Quarters.

69.Nevertheless, Mr Chan SC submitted that (1) the quoted passage shows that according to the PD’s review, the only concerns for inadequate GIC facilities were with regard to leisure swimming pools and a sports centre serving district-wide needs; and (2) that the Board accepted the PD’s evidence and hence it concluded (at paragraph 175 of the Wanchai Board Minutes, as mentioned in [45(2)] above) that the GIC facilities in the Wan Chai area were “already adequate”.

70.With respect, I do not agree with these submissions.  

71.As submitted by Mr Kat SC, the PD’s assertion that the GIC facilities “will generally be adequate” did not appear to have been backed up by any concrete evidence.  

72.In so thinking, I have not overlooked Annex IIf entitled “Provision of Existing and Planned G/IC Facilities” to the Wanchai Board Paper.  However, Annex IIf is a 1-page document which did not show the community’s needs but only a comparison between the space available in Wanchai for certain services with the standards set out in the Hong Kong Planning Standards and Guidelines.  Further and in any event, the document was not sufficiently comprehensive in that it did not cover all of the services and provisions offered by MCHK at the Wanchai Sites.

73.In any case, I agree with Mr Kat SC that Annex IIf cannot assist the Board because the PD did not quite ask themselves the right question: the issue was not merely how the proposed restrictions might affect the provision of religious or other social welfare services in the Wanchai Planning Area, but also beyond Wanchai.  As made clear in the planning intention (see [14] above), the GIC sites in the Wan Chai Planning Area were supposed to serve not just that locality but also the “wider district, region or the territory”.

74.Further and to my mind most importantly, according to the Wanchai Board Minutes, the Board never discussed or explained why, on the issue of community needs, they decided to prefer the PD’s view over MCHK’s.  Nor did the Board deal with this matter at all in their reasons for rejecting the Wanchai Representation (whether as recorded in the Wanchai Board Minutes or in the 23.5.2011 Letter).  In this regard, I think the general remark at paragraph 175 of the Wanchai Board Minutes (see again [45(2)] above) undermines, rather than supports the Board’s position, because what it shows is that the Board apparently accepted the PD’s assertion as to the adequacy of GIC facilities without making any inquiry or investigation.

75.Mr Chan SC sought to support the PD’s conclusion as to the adequacy of GIC facilities with reference to the following matters:

(1)  First, there would be no net additional loss of GIC sites arising from the rezoning of some of these sites for other uses.  These other sites have either been already deployed or are proposed for non-GIC uses.  Their rezoning merely reflects their current or intended use, and does not mean that the overall supply of GIC sites or facilities have been further constricted.

(2)  Second, even after the rezoning, the remaining overall supply for GIC sites remain substantial.

(3)  Third, there are existing GIC facilities which have been specifically designed to meet particular future community needs.

(4)  Fourth, the legal and practical reality is that GIC facilities can in substance also be provided by sites zoned for other purposes.

(5)  Fifth, it remains possible for the BHRs applicable to the GIC sites to be relaxed pursuant to a minor relaxation or amendment of the OZP.

76.I am afraid I cannot accept these submissions.  The issue here is not whether the PD’s assertion could have been substantiated, but whether the Board should have investigated (or further investigated) into the community needs issue before making the Wanchai Decision.  The court is here concerned about the fairness of the process rather than the merits of the decision.  In this connection, there is no evidence that the matters set out by Mr Chan SC were drawn to the Board’s attention when considering the community needs issue.  There is also nothing to show that the Board had taken into account these matters in making the general remark recorded in paragraph 175 of the Wanchai Board Minutes.

77.In my view, the lack of reference to the community needs issue in the 23.5.2011 Letter is glaring and significant.  In Hysan, supra, at [192], Lam VP referred to and agreed with what was said by Cheung JA in Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155 at [87]:

“Personally, I do not consider that too much weight should be attached to the summary of the discussions by members of the [Board]. When a decision-maker deliberated on an issue there would be expression of ideas and views which may not be fully articulated or necessarily correct. But it does not mean that when the decision-maker finally decided on an issue it would necessarily have relied upon one or more of the matters that had been discussed. It is far more important to see how the decision-maker articulated the reasons for the decision.”

78.Lam VP also referred to the following observation made by Stock JA (as he then was) at [98] of Capital Rich:

“where a real issue arises as to whether an allegedly material issue was or was not taken into account, or what was at the end of the day made of that issue by the decision-maker, the courts are entitled to expect the answer to be sufficiently clear from the evidence before it without having to resort to guesswork.”

79.I think these principles and observations are squarely applicable to this case.  Not only was the community needs issue not addressed in the 23.5.2011 Letter, there is also no record of the Board investigating or discussing the issue during the deliberation session.  Accordingly, I have no hesitation in finding that the Board did not consider or adequately consider the community needs issue in arriving at the Wanchai Decision.

80.Furthermore, given how extensively MCHK had canvassed the community needs issue before the Board and the plain and obvious materiality of the issue to the Wanchai Decision, I am driven to the conclusion that the Board’s failure to consider the community needs issue was Wednesbury unreasonable and hence there had been a breach of the Board’s statutory and Tameside duties to make inquiries in relation to the Wanchai Decision.

81.I believe these conclusions are sufficient to dispose of the judicial review application in respect of the Wanchai Decision.

C.6    Relief

82.According to the Amended Form 86 in HCAL 55/2011, MCHK sought:

(1)  an order of certiorari to bring up and quash the Wanchai Decision; and

(2)  an order of mandamus to direct the Board to reconsider the Wanchai Decision in accordance with the law.

83.As submitted by Mr Chan SC, the court’s discretion in deciding whether to grant any remedy is a wide one.  It can take into account many considerations, including the needs of good administration, delay, the effect on third parties, the utility of granting the relevant remedy: Shiu Wing Steel Ltd v Director of Environmental Protection (No 2) (2006) 9 HKCFAR 478 at [90] per Sir Gerard Brennan NPJ, citing Crédit Suisse v Allerdale Borough Council [1997] QB 306 at 355 per Hobhouse LJ.

84.Here, a special feature is that as mentioned in [19] above, the Board has since relaxed the BHR for the International Church Site from 4 storeys to 110mPD and the New Church Building has been erected on the site.  In these circumstances, MCHK accepted (in paragraph 5(1) of its skeleton submissions) that the relief sought in respect of the International Church Site may no longer be necessary.

85.However, at the hearing, Mr Kat SC sought to withdraw such concession.

86.Despite the construction of the New Church Building on the International Church Site, the Wanchai Decision should be quashed.  If nothing else, MCHK is entitled to know where exactly it stands in respect of the Wanchai Decision insofar as the International Church Site is concerned, i.e. whether it is (or has ever been) lawfully bound by it or not.  Quashing the decision is also conducive to good administration in that it sends a message to the Board and helps to guide them in their future consideration of similar applications.

87.Mr Chan SC further submitted that the absence of redevelopment proposals from MCHK in respect of the two other sites in the past 8 years means that they have no intention to redevelop those sites.  With respect, this is a non sequitur. It does not follow from the lack of redevelopment proposal so far that MCHK will never redevelop the sites in the future.

88.Mr Chan SC also pointed out that if MCHK should decide to redevelop the sites and their proposals should receive departmental approval, the PD would proactively recommend amendments to the OZPs.  This may well be true but again it is not a proper reason for not quashing the Wanchai Decision.  If (as I have found) the Wanchai Decision was reached in breach of the Board’s duties, then MCHK ought not to be subject to this restriction. Besides, there is no guarantee that the PD would definitely recommend, or that the Board would definitely approve, amendments to the OZPs and it is not right for MCHK to be subject to this uncertainty.

89.In the premises, I will make an order of certiorari to bring up and quash the Wanchai Decision.

90.As for the order of mandamus, it is a different matter.  In particular, I have serious doubt as to whether it will serve any useful purpose to compel the Board to revisit the issue of whether to make certain amendments to the Draft Wanchai OZP when, 10 years having elapsed, things have obviously moved on and circumstances have changed.  Indeed, I am given to understand that at least 2 new draft OZPs for the Wanchai Planning Area (numbered S/H5/27 and S/H5/28 respectively)[34] have been prepared and exhibited after the commencement of HCAL 55/2011.   It does not appear to make sense to compel the Board to rethink whether to amend the Draft Wanchai OZP (which was much earlier in time and numbered S/H5/26).  Insofar as the Board seeks to impose or vary any BHRs or setbacks on the Wanchai Sites in the future, I trust that they will give due regard to this ruling and I do not think it is necessary for me to make any separate order to that end.

91.I will now turn to HCAL 64/2011, which concerns the Yaumatei Decision.

D.     BACKGROUND TO THE YAUMATEI DECISION

D.1    The Yamatei Planning Scheme Area

92.The Yaumatei Sites are all located within the Yaumatei Planning Scheme Area (“Yaumatei Planning Area”).

93.As stated in paragraph 4.1.1 of the Paper No 24/10 (“Yaumatei MPC Paper”), the Yaumatei Planning Area was an old urban area in West Kowloon and occupied a central part of the Yau Tsim Mong district, characterised by intensive development of composite commercial/ residential buildings.  It was sandwiched by the similar old districts of Mongkok and Jordan to the north and south respectively.

94.The Yaumatei Planning Area covered 122 hectares of land and was bounded by Jordan Road and Gascoigne Road to the south, the MTR East Rail Line to the east, Dundas Street to the north, and the West Kowloon Reclamation to the west.[35]

95.The Yaumatei Sites were all zoned GIC.  The planning intention of GIC zones in the Yaumatei Planning Area was the same as that quoted in [15] above.

96.According to paragraph 4.7.10 of the Yaumatei MPC Paper, there were 75 GIC sites in the Yaumatei Planning Area, including 12 community uses (e.g. churches, temples, hospitals, homes for the aged, etc.) and 19 educational uses.

D.2    The Yaumatei Sites

97.Except for the Ward Church Site (which had been subject to a BHR of 6 storeys and 300ftPD), the Yaumatei Sites were not originally subject to any BHRs.

98.The Yaumatei Sites were described as follows by the PD in the TPB Paper No 8808 (“Yaumatei Board Paper”).  In respect of the Ward Church Site:

“5.1.10  The site is zoned “G/IC” (about 1,276m²) and occupied by a church and a social service centre with an existing height of 5 storeys… It abuts Waterloo Road on the northwest and is surrounded by a cluster of low-rise GIC facilities on other sides.  To its east is the 7-storeys Kowloon Wah Yan College (BHR of 8 storeys), and to its south are the 6-storey True Light Girls’ College (BHR of 8 storeys).  To its southwest are the 3-storey ELCHK Truth Lutheran Church (BHR of 3 storeys), 8-storey ELCHK Lutheran Secondary School (BHR of 8 storeys) and 6-storey Truth Lutheran Buildings (BHR of 6 storeys)…”

99.In respect of the other three Yaumatei Sites:

“5.1.11 The 4-storey Methodist Kowloon Church (about 686.1m²) and the 6-storey Chinese Methodist School (about 1,316.9m²) are located on the same lot on a slope… The Methodist Kowloon Church is also a proposed Grade 3 historic building. The 7-storey Methodist College adjoining these two buildings on the east has an area of about 4,880.9m²…

5.1.12  To the immediate east and south of these sites are a number of GIC facilities, namely the Pui Ching Education Centre and Lands Tribunal (both with a BHR of 3 storeys) and Labour Tribunal (BHR of 4 storeys).  The Queen Elizabeth Hospital is located to the further east with a BHR of 65 mPD…”

D.3    Imposition of BHRs on the Yaumatei Sites

100.On 21 October 2008, pursuant to s 12(1)(b)(ii), the CE in C referred the Approved Yau Ma Tei Outline Zoning Plan NS/K2/20[36] (“Approved Yaumatei OZP”) to the Board for amendment.

101.The proposed amendments were set out in the Yaumatei MPC Paper.  As made clear in paragraph 3.3 of that paper, the PD’s review mainly focused on (1) the imposition of BHRs on those development zones which were hitherto not subject to such restrictions and (2) rezoning or amending the zoning boundaries of certain sites.

102.Insofar as the Yaumatei Sites are concerned, it was proposed that:

(1)  the Ward Church Site be subject to a BHR of 5 storeys;

(2)  the Kowloon Church Site be subject to a BHR of 4 storeys;

(3)  the School Site be subject to a BHR of 8 storeys;

(4)  the College Site be subject to a BHR of 8 storeys.

103.The PD dealt with these proposed amendments as follows in the Yaumatei MPC Paper:

“4.6.5 …The “G/IC” sites, apart from providing GIC facilities to the community, with their relatively low-rise nature, they also serve as a visual and spatial relief and breathing space for improving permeability in the midst of congested high-rise developments. The “G/IC” and “OU” sites in various parts of the Area have largely been developed. In general, the [BHRs] for low-rise developments on “G/IC” and “OU” sites, normally with a height of not more than 13 storeys, are specified in terms of number of storeys so as to allow more design flexibility, in particular for GIC and OU facilities with specific functional requirements, unless such developments fall within visually prominent locations and major breathing spaces where more stringent height controls are warranted, or there are committed proposals for known developments or the need to meet the minimum height requirement (e.g. standard requirement of eight storeys for school development) …

…

“G/IC” Sites and “OU” Sites (Plan 8C)

4.7.7    In this plan, the “G/IC” and “OU” sites, apart from providing facilities to serve the community or for specific purposes, also serve as breathing space and visual relief to the Area.  As such, it is considered appropriate to impose [BHRs] for all the “G/IC” and “OU” zones to limit their vertical profile and/or to reflect their existing building heights.   Imposition of [BHR] would also provide clarity on the building height profile and to ensure computability of future development/ redevelopment with the surrounding developments.

…

“G/IC” Sites

4.7.9    The proposed [BHRs] for “G/IC” sites are shown on the face of the OZP and summarised in Attachment IV.  The proposed restrictions are formulated in accordance with the following principles:

(a)  to reflect the existing building heights;

(b)  to accommodate the nature of the existing/planned facilities/uses on the sites;

(c)  to reflect the height restrictions on the land allocation/lease/approved planning scheme (if any), where appropriate;

(d)  to maintain compatible building mass in the local setting; and

(e)  to meet the height requirement for the designated GIC facilities, for instance, a [BHR] of 8 storeys is proposed for school sites which is in line with the general requirement for school development.”

(emphasis added)

104.At its 428^th meeting held on 15 October 2010, the MPC approved, among others, the aforesaid amendments proposed by the PD.  In consequence, the amended plan (together with a schedule of amendments and an explanatory statement) was gazetted and exhibited for public inspection from 29 October 2010 to 29 December 2010. 

D.4    Yaumatei Representation

105.According to paragraph 35(d) of the minutes of the Yaumatei Board Meeting (“Yaumatei Board Minutes”), upon the expiry of the public exhibition period, the Board received a total of 10 representations in respect of the Draft YMT OZP, including the Yaumatei Representation.

106.By the Yaumatei Representation, MCHK objected to the imposition of BHRs on all the Yaumatei Sites.  MCHK summarised the grounds of its opposition in paragraphs 1.3 and 7, which are materially identical to paragraphs 1.3 and 6 of the Wanchai Representation (as quoted in [30] above).

107.Similar to the Wanchai Representation, a key point[37] raised by MCHK in the Yaumatei Representation was the issue of community needs. Specifically, the following was said in respect of each Yaumatei Sites:[38]

(1)  The services provided at the Ward Church Site were church for worship; licensed place for wedding; venue for community purpose; pre-school service provided by the Yaumatei Yang Memorial Methodist Pre-School; elders ministry and support centre; the Yau Mong Home Care Centre; the Bradbury Day Activity Centre (integrated service for community support); service for ethnic minority; the Methodist Study Trust; employees retraining programme; and administration unit.

(2)  In respect of the Kowloon Church Site, in addition to religious services, the social services provided at the Chinese Methodist Church (Kowloon) were licensed place for wedding; public seminars and concerts; and ministries for young and elderly people living in the neighbourhood community.

(3)  In respect of the School Site, in addition to education services, the social services provided at the Chinese Methodist School included provision of seminars, training, concerts and sharing sessions that were open to the public and to other schools.

(4)  In respect of the College Site, in addition to education services, the social services provided there included provision of venue for religious functions and for programs of the Education Bureau and various NGOs.

108.Then, in paragraph 10.5 of the Yaumatei Representation (which is materially similar to paragraph 9.5 of the Wanchai Representation, as quoted in [32] above), MCHK argued that the Board had given no or insufficient regard to the adverse impact that the proposed amendments would have on the general welfare or needs of the community.

109.MCHK concluded, in paragraph 14.1 of the Yaumatei Representation, that the proposed amendments went much further than was necessary to achieve the objectives stated in the explanatory statement and that “[i]n particular, the BHRs imposed have not been clearly considered in relation to the wider needs and long term requirements for the provision of community and social services in Hong Kong”.

110.The representations in respect of the Draft YMT OZP were published for 3 weeks for public comments.  A total of 705 comments were received.[39]

D.6    Yaumatei Board Paper

111.The representations and comments on the Draft Yaumatei OZP were divided into two groups.  The Yaumatei Board Paper dealt with Group 1, which included the Yaumatei Representation.

112.At paragraph 4.3 of the Yaumatei Board Paper, the PD summarised the grounds of MCHK’s opposition.  In particular, at sub-paragraph (k), the PD noted that one of such grounds was that the imposition of BHRs would affect MCHK’s ability to “provide essential community and social services to the public” and that the Board should balance the community’s needs for social services against other planning needs.

113.According to paragraph 4.2 of the Yaumatei Board Paper, a total of 625 comments were received in relation to the Yaumatei Representation, all of which (except one) supported MCHK.  For present purposes, it is noteworthy that some of the commenters also echoed the community needs issue raised by MCHK.  Such comments were summarised by the PD in paragraph 4.5(e) of the Yaumatei Board Paper as follows:

“Many charitable institutions in the Area, including The Methodist (R9) and The Lutheran, require expanding their facilities to meet the growing demand of social, community and educational services in the Area, e.g. the requirements arising from New Senior Secondary curriculum. However, the imposition of low BHRs on “G/IC” zone limits the future development of charitable institutions and reduces their incentive to redevelop existing facilities. Imposing BHR on “G/IC” zone is not in line with the Board’s function stipulated in the [TPO], as R9 expressed in paragraph 4.3(k) above, and the planning intention of “G/IC” zone.”

114.Then, in paragraphs 5.3 and 5.4 of the Yaumatei Board Paper, the PD set out their response to the Yaumatei Representation.  Insofar as the community needs issue is concerned, the following was said:

(1)  At paragraph 5.3.1(d), the PD recognised that MCHK intended to expand and/or redevelop at least some of the Yaumatei Sites:

“According to [the Director of Social Welfare], the Methodist Church has indicated expanding their services which may necessitate the need for additional accommodations at the [Ward Church Site], but no detailed development plan has been received at present. The Secretary for Education (SED) also advises that although the Methodist College has indicated intention for in-situ redevelopment and to extend its premises to the [School Site] after the school’s relocation to Wylie Road, there is no concrete redevelopment plan of the college at present. Without any agreed redevelopment proposal, relaxation of BHRs of the Methodist sites is not justified at the present stage … ”

(2)  At paragraph 5.3.4, the PD responded to the community needs issue.  Apart from saying that MCHK could apply for minor relaxation under s 16, the following was said in sub-paragraph (a):

“The imposition of BHR is a response to public aspirations for a better living environment. Many low-rise “G/IC” sites serve as important visual relief, breathing space and air paths within the dense urban fabric. To achieve the planning objective of imposing appropriate BHRs for various development zones, it is considered that the planning process is duly done in which all relevant factors have been considered. A proper balance has been struck between efficient use of land to provide utility/community facilities and good urban design. Consideration has been given to the existing building height, (re)development plan (if any) and other relevant factors in determining the BHRs for the “G/IC” sites…” (emphasis added)

115.In paragraph 7.2, the PD stated that it did not support the Yaumatei Representation and that the Draft Yaumatei OZP should not be amended to meet it.  In Annex IVa, the PD set out the following as the “recommended rejection reasons” in respect of the Yaumatei Representation:

“26. Apart from providing G/IC facilities, “G/IC” sites in the built-up urban area also serve as breathing space as well as spatial and visual relief. Their BHs should be contained to ensure good air ventilation as recommended in the AVA Study. The development scale and intensity of “G/IC” sites should be considered on a case-by-case basis, having regard to the requirements, functions and nature of different GIC facilities.

27. Any relaxation of the BHRs must be justified by functional and operational needs with planning and design merits. There is provision under the [TPO] for a minor relaxation of the BHRs or for amendments to the OZP. In the absence of any redevelopment proposal, there is no strong justification to support the proposed relaxation of BHRs.

28.  Sections 3 and 4 of the Ordinance 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 on individual sites or for such areas within the boundaries of the OZP under sections 3 and 4 of the Ordinance if there are necessary and sufficient planning justifications.”

D.7    The Yaumatei Board Meeting & the oral presentations thereat

116.The representations and comments on the Draft YMT OZP were considered at the Yaumatei Board Meeting, at which MCHK was present and represented.

117.At the Yaumatei Board Meeting, according to the Yaumatei Board Minutes, MCHK’s representatives made (among others) the following points:

(1)  The Board had failed to consider all relevant factors and its approach was not in the interest of the community.  It was wrong to treat all GIC sites as similar in nature.  The GIC zoning covered a wide variety of sites providing different types of uses and involving a variety of organisations.[40]

(2)  In respect of the Ward Church Site, the church there had been serving the community since 1967.  A wide range of social services for the community was provided.  However, the building was designed in the 1950s and, due to insufficient floor space, many services provided by MCHK had to be conducted in other residential/commercial buildings in Yaumatei and Mongkok.  Redevelopment of the Ward Church Site was necessary to meet the increasing needs of the community and a conceptual redevelopment plan with a building height of about 100mPD had been worked out.[41]

(3)  In respect of the Kowloon Church Site, the church there was designed in the 1940s and completed in 1951.  It provided religious services for about 800 church members of different age groups.  It also worked with schools and other organisations in organising different social services/activities for the community.  However, its design and floor spaces were not compatible with the needs of a modern communal church.  MCHK planned to redevelop the church to provide more rooms for seminars, training and small group functions.[42]

(4)  In respect of the School Site, although the school had been relocated and reprovisioned to a new site at Wylie Road, MCHK planned to redevelop the site to its full development potential for provision of educational and social services to the community.[43]

(5)  In respect of the College Site, the college was already much smaller than a standard secondary school and had reached its full capacity.  Due to lack of space, the library, school hall, visual arts rooms and computer room had only ½ to two-thirds of the size of the standard provision.  Further, the college could not provide some standard school facilities, such as multi-purpose room, integrated science laboratories, language room, canteen etc.  There were also insufficient space and facilities to meet the requirements of the New Senior Secondary Curriculum.  Imposing a BHR of 8 storeys would rule out the possibility of redeveloping the site for a secondary school with better facilities.[44]

(6)  The imposition of BHRs on the Yaumatei Sites would severely affect MCHK’s ability to provide essential community and social services, including the services for the elderly and the disabled.  In formulating the proposed restrictions, the Board should take into consideration the needs of the community.[45]

(7)  In its reply to a Legislative Council question on 16 March 2011, the Government acknowledged that there was a lack of space for the provision of many welfare facilities.  The Government had also stated that the PD would review from time to time the land use of GIC sites to meet the changing needs of the community.  The proposed restrictions contradicted the Government’s social welfare policy.  The Board should consider whether the proposed restrictions would promote the health, safety, convenience and general welfare of the community.[46]

118.The representers and commenters’ presentations were followed by a Q&A session, of which the following is noteworthy:

(1)  According to paragraph 61 of the Yaumatei Board Minutes, in response to a question asked of the College Site, MCHK’s representatives stated that the proposed 8-storey BHR would render the provision of a standard secondary school on the site impossible and that the Board should relax the BHR from 8 storeys to 10 storeys.

(2)  According to paragraph 68, a member of the Board said that the Board was performing its duty of inquiry in examining the proposals submitted by the representers.  In response, one of MCHK’s representatives said that the Board “should have an inquiry on the demand and supply of social and community services, and whether there was any need to provide new services to meet changing needs”.

D.8     The Board’s deliberation & the Yaumatei Decision

119.After the Q&A session, the Board proceeded to the “deliberation session”.  For present purposes, it is pertinent to note what was recorded in paragraph 77 of the Yaumatei Board Minutes:

“Duty to Inquiry

77. In respect of R9’s comment that the Board had a duty to make an inquiry on the need for the provision of social and community services and consult the relevant stakeholders before the imposition of the BHRs for the “G/IC” sites, Members noted that in formulating the BHRs, all relevant considerations and assessments had been taken into consideration, including the existing topography, the local character, the existing townscape and building height profile, the AVA study, the compatibility in terms of building height with the surrounding areas, the need to balance between public aspirations for a better living environment and private development potential, the urban design principles, etc. A Member said that in considering the representations and comments, the Board had clarified, inquired and duly considered the submissions and comments made by the representers and commenters.”

120.It was then recorded in paragraph 90 of the Yaumatei Board Minutes that after further deliberation, the Board decided not to uphold the Yaumatei Representation.  The reasons for such decision were noted in 4 sub-paragraphs under paragraph 90.  The first three were adopted verbatim from the “recommended rejection reasons” set out in [115] above.  The last sub-paragraph was drawn from paragraphs 5.3.5(a)-(b) of the Yaumatei Board Paper and read as follows:

“the two-month statutory exhibition period and provision for representations 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 defeating the purpose of imposing the BHR.”

121.The Board communicated the Yaumatei Decision to MCHK by the 2.6.2011 Letter.  The reasons given therein were identical to the ones set out in paragraph 90 of the Yaumatei Board Minutes.

E.     YAUMATEI DECISION – DISCUSSION

122.MCHK’s grounds of challenging the Yaumatei Decision, and the key issues confronting this court in HCAL 64/2011, are essentially the same as those summarised in [61] and [62] above, except that the legality of setbacks did not arise in relation to the Yaumatei Decision.

123.Similar to the case of the Wanchai Decision, for the following reasons, I am of the view that in respect of the Yaumatei Decision, the Board again failed to consider or adequately consider the community needs issue, that such failure was Wednesbury unreasonable and that the Board had accordingly breached its statutory and Tameside duties to make inquiries.

124.First and foremost, there was no mention of the community needs issue in the 2.6.2011 Letter.  In my view, applying the principles and observations set out in [77] and [78] above, this strongly suggests that the Board did not consider at all or adequately the community needs issue in arriving at the Yaumatei Decision.

125.Further, there is no evidence that the Board (or the PD) had otherwise properly deliberated the community needs issue at or before the Yaumatei Meeting.  In this connection, I do not think the general remarks recorded in paragraph 5.3.4 of the Yaumatei Board Paper (see [114(2) above) or paragraph 77 of the Yaumatei Board Minutes (see [119] above) can assist the Board.  Given how extensive MCHK had canvassed the community needs issue (by way of the Yaumatei Representation and also the oral representations), the broad support from the commenters for MCHK, and the obvious materiality of the issue, it is not sufficient for the Board to simply assert that “all relevant considerations and assessments had been taken into consideration”.  The Board should at least have briefly explained why it rejected the views of MCHK or made some efforts to test the assertions of either the PD or MCHK.  There is nothing to show that the Board had done so.  In my judgment, such failure is Wednesbury unreasonable.

126.As to the question of relief, after the commencement of this application, MCHK submitted redevelopment proposals in respect of the Ward Church Site, which received departmental approval and corresponding amendments to the draft OZPs (e.g. relaxing the BHR from 5 storeys to 57mPD) have been made.  Nevertheless, for the same reasons discussed in Section C.6 above, it is appropriate to quash the Yaumatei Decision.

127.As to the order of mandamus sought by MCHK, since at least one new draft of the OZP for the Yaumatei Planning Area (numbered S/K2/22) has been prepared and exhibited since the commencement of this application, for the same reasons stated in [90] above, it is not appropriate to make such an order.

G.     DISPOSITION

128.For the reasons set out above, I make the following orders:

(1)  Leave be granted to MCHK to amend the Form 86 in each of HCAL 55/2011 and HCAL 64/2011 as per the drafts handed up by counsel for MCHK at the hearing on 15 March 2019, with costs to the Board;

(2)  Orders of certiorari to bring up and quash the Wanchai Decision and the Yaumatei Decision;

(3)  Subject to sub-paragraph (1) hereof, an order nisi that the Board should pay MCHK their costs in these applications (including all reserved costs) to be taxed on a party and party basis if not agreed, with certificate for two counsel.

129.Last but not least, I thank counsel’s for their able assistance.

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

Mr Abraham Chan SC and Mr Harrison Miao, instructed by the Department of Justice for the respondent

[1] As explained in [11] and [12] of the Court of Appeal’s decision in Hysan Development Co Ltd v Town Planning Board, CACV 232 & 233/2012, unreported, 13 November 2014, setbacks prohibit the construction of buildings in areas above the ground.  They are primarily imposed to improve pedestrian traffic and, for some cases, also to improve air ventilation.

[2] §2.2 of the Wanchai Representation.

[3]  §2.3 of the Wanchai Representation.

[4] §2.4 of the Wanchai Representation.

[5]  One of the Board’s 2 committees.

[6] That is, metres above Hong Kong Principal Datum.

[7]  Footnote 2 on page15 of the Wanchai MPC Paper.

[8] §§21-23 and §§32-37 of the affidavit of Kau Kin Hong made on 24 September 2018 (“Mr Kau’s affidavit”).

[9]  §4.1 of the Wanchai Representation.

[10]  Page 6 of Attachment V to the Wanchai MPC Paper.

[11] §§5.1-5.2 of the Wanchai Representation.

[12]Page 11 of Attachment V to the Wanchai MPC Paper.

[13] In this judgment, unless otherwise stated, all references to numbered sections and subsections are to those of the TPO.

[14]  Which was approved by the CE in C under s 9(1)(a) on 6 November 2007.

[15] This refers to the Air Ventilation Assessment undertaken by Professor Edward Ng, whose report was attached to the Wanchai MPC Paper and discussed in §7 of that paper (“Wanchai AVA”).

[16] Other main points made by MCHK included (1) the proposed amendments were gazetted without any prior public consultation; (2) the Board had ignored the Approved GBP; (3) there was a lack of consistency in that the BHRs imposed on the Wanchai Sites (or other GIC sites) were lower than the BHRs imposed on the commercial buildings situated in the immediate vicinity; (4) the imposition of specific BHRs on individual sites constituted a form of “spot zoning” which was impermissible under the TPO; (5) the Wanchai AVA, relied upon by the PD, was inadequate and unreliable.

[17] Of the Wanchai MPC Paper.

[18] §109(b) of the Wanchai Board Minutes.

[19] §110(a)-(b) of the Wanchai Board Minutes.

[20] §110(d)-(e) of the Wanchai Board Minutes.

[21] §112(c)-(d) of the Wanchai Board Minutes.

[22]  §109(g) of the Wanchai Board Minutes.

[23]  §117 of the Wanchai Board Minutes.

[24] §143 of the Wanchai Board Minutes.

[25] Referring to NGOs in the old urban areas which bought land in the open market and built their GIC facilities to serve the community.

[26] The draft amendments are dated 7 March 2019.

[27] §3 under “Relief Sought” in each Form 86.

[28] §§127-140, 143 of the Form 86 in HCAL 55/2011; and §§116-128, 131 of the Form 86 in HCAL 64/2011.

[29]  §§145-152 of the Form 86 in HCAL 55/2011.

[30]  §§156-158, 161 of the Form 86 in HCAL 55/2011; and §§135-138 of the Form 86 in HCAL 64/2011.

[31]  See e.g. Hysan Development Co Ltd v Town Planning Board, supra, at [18]-[42]; Town Planning Board v Oriental Generation Ltd, CACV 127/2012, unreported, 13 November 2014 at [42].

[32] Taking into account the proposed amendments to the Form 86 which I have allowed.

[33] These correspond to Sections E to I of the Board’s skeleton submissions.

[34] §§15-16 of Mr Kau’s affidavit.

[35] §5.1 of the explanatory statement.

[36] Which was approved by the CE in C under s 9(1)(a) on 6 May 2008.

[37] Other main points made by MCHK included (1) the proposed amendments were gazetted without any prior public consultation; (2) there was a lack of consistency in that the BHRs imposed on the Yaumatei Sites were lower than the BHRs imposed on the commercial buildings situated in the immediate vicinity; (3) the imposition of specific BHRs on individual sites constituted a form of “spot zoning” which was impermissible under the TPO; (4) the Air Ventilation Assessment relied upon by the PD was inadequate and unreliable; and (5) the Board had relied on an irrelevant consideration, namely the fact that the Kowloon Methodist Church was a proposed Grade III historic building and redevelopment of historic building was not encouraged, in formulating the BHRs on the Kowloon Church Site.

[38] §§3.2, 4.3, 5.3 and 6.3 of the Yaumatei Representation

[39] According to §1.1 of the Yaumatei Board Paper, 3 commenters subsequently wrote to the Board indicating that they had not submitted any comments.

[40] §28(b) of the Yaumatei Board Minutes.

[41] §§28(k) and 29 of the Yaumatei Board Minutes.

[42]  §§28(m) and 31 of the Yaumatei Board Minutes.

[43] §28(o) of the Yaumatei Board Minutes.

[44] §§28(q)-(r) and 32 of the Yaumatei Board Minutes.

[45] §30 of the Yaumatei Board Minutes.

[46] §33(a)-(b) of the Yaumatei Board Minutes.