Royal Billion Investment Ltd v. The Town Planning Board
Read the full judgment text of HCAL 1916/2018 on BabelCite. This High Court CFI judgment was delivered on 30 April 2021.
1. This is an application for judicial review of the decision (“ the Decision ”) of the Town Planning Board (“ the Board ”) made on 15 June 2018 not to amend the Approved Sha Tin Outline Zoning Plan No S/ST/34 [1] (“ the Subject OZP ”) under s 12A of the Town Planning Ordinance, Cap 131 (“ the Ordinance ”), which decision was communicated to the Applicant by a letter dated 6 July 2018 (“ the Decision Letter ”). In what follows, unless the context indicates otherwise, references to “Section” or
Cited by 8 cases · Cites 8 cases
|
HCAL 1916/2018 [2021] HKCFI 1093 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1916 OF 2018 ________________________
________________ Before: Hon Chow J in Court Dates of Hearing: 27-28 & 31 August 2020 Date of Judgment: 30 April 2021 ____________________ J U D G M E N T ____________________ INTRODUCTION 1.This is an application for judicial review of the decision (“the Decision”) of the Town Planning Board (“the Board”) made on 15 June 2018 not to amend the Approved Sha Tin Outline Zoning Plan No S/ST/34[1] (“the Subject OZP”) under s 12A of the Town Planning Ordinance, Cap 131 (“the Ordinance”), which decision was communicated to the Applicant by a letter dated 6 July 2018 (“the Decision Letter”). In what follows, unless the context indicates otherwise, references to “Section” or “s” shall be to the Ordinance. BASIC FACTS
2.The Applicant is the registered owner of Lots 379 and 380RP in DD 186, Tung Lo Wan Hill Road, Shatin (“the Site”). 3.The Site, of about 15,410m2 in size, is located at To Fung Shan, Shatin. It sits on sloping ground with the existing site level ranging from 77mPD to 130mPD. It occupies a quiet, secluded, spot in a scenic setting on a high topographic point, with the Needle Hill ridgeline forming the backdrop. The Site is mostly covered with dense vegetation and trees, with a minor formed portion on the southern part of the Site[2]. The immediate surroundings of the Site are primarily hill slopes densely covered with vegetation and mature trees. 4.To the immediate south of the Site is Sha Tin North Service Reservoir (“the Reservoir”), to its east is To Fung Shan Christian Centre, and to its north is Lutheran Theological Seminary. 5.There are some private housing developments to the further south and south-east of the Reservoir, including Peak One and Pristine Villa, which are about 160m to 200m away from the Site. 6.The only road access to the Site is via Tung Lo Wan Hill Road (“the Road”), a narrow road of 3.5m - 5.5m in width (which can only permit one lane of traffic) with a steep gradient of 1 in 6, which exceeds the maximum gradient specified in the Transport Department’s Transport Planning and Design Manual (“TPDM”) and does not comply with TPDM requirements[3].
7.The Site was previously zoned “Residential (Group B)” (“R(B)”) on Draft Sha Tin Outline Zoning Plan No LST/69 gazetted on 25 August 1978, but was rezoned to “Green Belt” (“GB”) on Draft Sha Tin Outline Zoning Plan No LST/69E gazetted on 6 May 1983. This change was made pursuant to the findings of a detailed planning and engineering investigations of a Government inter-departmental working group for possible development of To Fung Shan, which concluded that the To Fung Shan woodland should be preserved and enhanced, the major part of To Fung Shan would not be suitable for large scale residential development (on both accessibility and landscaping grounds), and any massive residential development would involve substantial cut and fill operations which would destroy the existing fine vegetation and good quality woodland. 8.Pausing here, it may be noted that:
9.The “GB” zoning of the Site has remained unchanged, and there has been no major change in the condition of the Site, since 1983. There were two previous rezoning requests made in November 2006 and May 2007 in respect of the Site. The first one was withdrawn. The second one, for rezoning the Site to “Comprehensive Development Area (2)”, was rejected by the Board on 1 February 2008 on the ground (inter alia) that the Site, together with the surrounding “GB” areas, were covered with dense vegetation and mature trees which served as a backdrop to the area. There were also 9 pervious s 16 applications for residential development on the Site, all of which were either withdrawn or rejected except one for a single house of three storeys over one storey of carport, with a proposed GFA of 518.17m2, which was approved with conditions in 2008. The relevant permission, however, lapsed on 8 November 2016. 10.Since May 1983, the Site, together with the major part of To Fung Shan, serve as a green buffer between Shing Mun Country Park on the north-western side of the Site and the major developments in Sha Tin New Town on the south-eastern side of the Site. 11.For the sake of completeness, I should mention that there is a small portion of the Site (0.9% of the Site area) which is zoned “Government, Institution or Community” (“G/IC”), under the Subject OZP. However, that small portion of the Site zoned “G/IC” is not material for the purpose of the present discussion.
12.By an application No Y/ST/38 (“the Application”) dated 19 December 2017, the Applicant applied to the Board under s 12A to rezone the Site from “GB” and “GIC” to “R(B)4” with a maximum plot ratio of 2.1 and maximum building height of 165mPD. The Application was received by the Board on 27 December 2017. As indicated in the Supplementary Planning Statement submitted by the Applicant’s consultant, Llewelyn Davies HK Ltd, dated March 2018 (“the Supplementary Planning Statement”), the Applicant proposed to develop the Site for a residential development (“the Proposed Development”) consisting of four towers of up to 25 storeys (20 domestic floors over 1 level of clubhouse, 1 level of lobby and 3 levels of carports) and six 2-unit houses, to provide approximately 390 residential units (housing about 1,170 people) and 132 car parking spaces. 13.The Applicant’s submissions, the comments of various Government Departments, including the Director of Agriculture, Fisheries and Conservation (“DAFC”), the Chief Architect/Central Management Division 2, Architectural Services Department (“CA/CMD2, ArchSD”), the Chief Town Planner/Urban Design and Landscape of Plan D (“CTP/UD&L”), the Head of Geotechnical Engineering Office of Civil Engineering and Development Department (“H(GEO) of CEDD”), the Commissioner of Transport (“C for T”) and the Director of Leisure and Cultural Services (“DLCS”), public comments as well as the views of the Planning Department (“PlanD”) on the Application were consolidated into a RNTPC Paper No Y/ST/38A (“the RNTPC Paper”). 14.The RNTPC Paper was provided to the Applicant on 8 June 2018. At §12.1 of the RNTPC Paper, PlanD stated that it did not support the Application for the following reasons:
I shall come back to PlanD’s detailed justification for the above views later in this judgment. 15.The Application was considered by the Board’s Rural and New Town Planning Committee at a meeting on 15 June 2018 (“the Meeting”). At the Meeting, the Senior Town Planner/Sha Tin, Tai Po and North of PlanD gave a presentation of, among other matters, the background to the Application, the Applicant’s proposal, the Departmental comments, the public’s comments and PlanD’s views as detailed in the RNTPC Paper. The Board also received an oral presentation by the Applicant’s representatives (Ms Winne Wu and Mr Richard Kan). 16.After the presentations, the Board members raised questions with PlanD and the Applicant’s representatives on issues including the proposed road widening works, the planning intention of the Site, the visual impact of the Proposed Development, the ecological and landscape impact assessments, the associated site formation works, and the principles adopted by the Government when reviewing “GB” sites. 17.After the question and answer session (the open session), the Board members deliberated on the Application in a close session. Eventually, the Board decided to reject the Application. In the Decision Letter dated 6 July 2018, the following reasons were given by the Board for the Decision:
APPLICATION FOR JUDICIAL REVIEW 18.On 12 September 2018, the Applicant made the present application for leave to apply for judicial review of the Decision. 7 grounds of judicial review are raised in the Form 86, at §38:
19.On 21 September 2018, the court granted the Applicant leave to apply for judicial review. 20.On 29 May 2020, the Applicant applied for leave to amend the Form 86 in order to raise the following additional argument as part of Ground 7 (Wednesbury unreasonableness or irrationality):
For the sake of convenience, I shall refer to this argument as “Ground 8” of judicial review. GOVERNMENT’S GREEN BELT REVIEW 21.Since 2011, PlanD has been undertaking land use reviews of Government land, including “GB” sites (“GB Review”). Between 2013 and 2017, some 318ha of land zone “GB” was rezoned to other uses, including 33 sites (of about 73ha) which were rezoned for residential development. 22.For this purpose, a two-stage review of “GB” sites was carried out. The two stages of “GB” Review (“Stage 1” and “Stage 2” respectively) are described in the 1st Affirmation of Woo Jacinta Kit Ching (“Woo 1”), Deputy Director of Planning/District and Secretary to the Rural and New Town Planning Committee of the Board, filed on 18 January 2019, at §§10-11:
23.As further explained by the Secretary for Development in answer to Legislative Council Questions on 18 March 2015, the sites identified by PlanD in Stage 2 of GB Review relate to sites -
CONSIDERATION OF REZONING PROPOSALS BY GOVERNMENT AND PRIVATE DEVELOPERS 24.Section 12A permits an application to be made to the Board to amend an approved plan, and gives the Board power to either accept the application, in whole or in part, or refuse it. 25.According to Ms Woo, regardless of whether a rezoning proposal is made by the Government or the private sector, the application goes through the same statutory planning procedures under s 12A. Amongst other matters, an applicant is required to demonstrate to the Board that the relevant proposal would not result in any insurmountable or unacceptable impact on the local community. The Board would consider whether all relevant Government departments have been consulted and agreed to the proposal, whether any technical assessments required by those departments have been carried out, and whether appropriate mitigation measures have been proposed to address any identified adverse impact that would arise from the proposal. 26.As further explained in Woo 1:
THE APPLICATION WAS FUNDAMENTALLY OBJECTIONABLE FROM A PLANNING POINT OF VIEW 27.The discussion in this section should be read bearing in mind that the Application was not for specific approval of, or permission to proceed with, the Proposed Development, but to rezone the Site from “GB” to “R(B)4”. The Proposed Development was “an indicative development scheme” put forward by the Applicant before the Board for consideration of the Application. If the Application was successful, the new zoning of the Site would not be tied to the Proposed Development, and the Applicant would, subject to other relevant constraints imposed by law and/or the Government lease, be free to pursue other forms of residential development as permitted by the proposed “R(B)4” zoning. 28.Nevertheless, the Proposed Development was not irrelevant to the consideration of the acceptability of the Application from a planning point of view. This is because the Application was to rezone the Site from “GB” to “R(B)4” for “a medium-density private residential development subject to a maximum PR of 2.1 and a maximum building height of 165mPD”[7]. The Proposed Development was put forward by the Applicant to “demonstrate the technical feasibility of the proposed rezoning”[8], and reflected the likely form and intensity of the resulting development should the Application be approved. At §4.1.2 of the Supplementary Planning Statement, the Applicant’s consultant stated that “[i]t is estimated that the proposed development on the site would generate a GFA of not more than 32,361m2 capable of providing about 390 units to accommodate a population of about 1,170”, housed in 4 mid-rise tower blocks and 4 low-rise houses with a maximum building height of not more than 165mPD. Tin my view, the Board was entitled to consider and assess the acceptability of the Application from a planning point of view by reference to the parameters and broad scheme of the Proposed Development. 29.It is PlanD’s position that the Application was fundamentally objectionable from a planning point of view in the following aspects:
30.In respect of (1): undermining the function and integrity of the “GB” zone as a whole, the following is stated in the RNTPC Paper:
31.As explained by Ms Woo, the planning concept for Sha Tin New Town inherent in the Subject OZP is that development should be concentrated on the two banks of Shing Mun River, with the hillslopes on the three sides of the New Town serving as green and scenic background[9]. Further, as mentioned by Ms Lung Siu Yuk, Deputy Director of Planning/District, at §21 of her Affirmation (“Lung 1”), this planning concept is reflected in the existing land use zonings of the area in question. Ms Jessica Chu (District Planning Officer/Sha Tin, Tai Po and North) also explained at the Meeting that:
32.The Applicant’s consultant, Mr Kan Wing Ching, claims, in his 2nd Affirmation (“Kan 2”), that in his 29 years of experience in the planning industry, he has not heard of this planning concept for Sha Tin New Town and it cannot be found in the RNTPC Paper or other public planning documents. I see no sufficient reason or ground to disbelieve or reject the evidence of PlanD on this issue. Anyhow, even if one were to disregard the said planning concept for Sha Tin New Town, it remains clear that the Proposed Development and/or rezoning of the Site to “R(B)4” would run contrary to the function and integrity of the “GB” zone in question, and make a significant inroad into the buffer between Sha Tin New Town and Shing Mun Country Park. 33.In respect of (2): visual impact, the following is stated in the RNTPC Paper:
34.As further explained by Ms Woo, the Proposed Development, with a building height of 165mPD, would not be in line with the local context. It would be substantially higher than the nearest existing buildings, which have about half the number of storeys and building heights ranging from about 44 to 108mPD. In addition, the Site is on a higher topographic level (ranging from 77mPD to 130mPD) and further up the slope than the nearby developments, namely, Peak One and Pristine Villa. The visual impact of the Proposed Development would be significant. PlanD did not accept the Applicant’s argument that the visual impact would only be “moderate”, or the adequacy of mitigation measures proposed by the Applicant (such as providing a 15m-wide breezeway, or reducing the plot ratio from 2.3 to 2.1 and building height from 27 to 25 storeys, or setting the residential blocks back and retaining the “northwestern portion of tree group”). In respect of these mitigation measures, PlanD’s comments were:
35.At the hearing of the present application, there was some substantial debate on the visual impact of the Proposed Development from the point of view of a person at a particular point (“viewpoint 8”) located to the north of the Site on a walking trail (“the Walking Trail”) off To Fung Shan Road, as illustrated by (i) a photomontage (“VP8”) prepared by the Applicant’s landscape consultant, Axxa Group Ltd (“Axxa”), which PlanD considered to be inaccurate and fail to correctly reflect the significant visual impact of the Proposed Development, and (ii) a “corrected” photomontage (“the New Photomontage”) produced by PlanD at the Meeting. I shall come back to these photomontages when I consider Ground 5 of judicial review (procedural unfairness). 36.In respect of (3): landscape and nature conservation impact, the following is stated in the RNTPC Paper:
37.Ms Woo summarises the position as follows:
38.In respect of (4): feasibility of the proposed road widening works, the following is stated in the RNTPC Paper, at §11.8:
39.As earlier mentioned, the only means of road access to the Site is via the Road, a substandard road with a gradient of 1 in 6 which exceeds the maximum gradient specified in TPDM. It is a narrow road which permits only a single lane of traffic. PlanD considers that without a feasible and proper means of access, it would not be justifiable to rezone the Site for residential development as proposed by the Applicant. Thus, the availability of a proper road access to the Site is critical to whether a development of the magnitude proposed by the Applicant could be supported. 40.PlanD further considers that the Applicant failed to show that the fundamental access problem could be addressed or overcome. The Geotechnical Planning Review Report (the main body of which comprised less than 3 pages[13]) produced by the Applicant did not provide any real technical details of substance[14], and amounted to “at best … a statement that a study should be carried out at a later stage. There was no real feasibility study available or put before the Board”[15]. 41.Given the lack of substance of the Geotechnical Planning Review Report, the Commissioner for Transport considered that it was premature to conclude that the proposed road widening works were technically feasible[16], and the Civil Engineering and Development Department stated that no geotechnical comments on the proposed road widening works could be provided because the Applicant’s report did not give any technical details[17]. The Commissioner for Transport also asked the Applicant to obtain confirmation from the relevant Government departments that the works were technically feasible, but the Applicant failed to do so. 42.Lastly, in respect of (5): undesirable precedent, the following is stated in the RNTPC Paper, at §11.10:
43.At the Meeting, the Applicant argued that the Application, if approved, should not be considered as creating an undesirable precedent because there had already been 33 other rezoning proposals initiated by the Government between 2013 and 2017, including 3 sites in the Sha Tin area in 2015. PlanD did not accept this argument, because the question was not simply whether there had been other cases of rezoning in the past, but whether the approval of the Application, with a proposed development which would be very incongruous in its setting, would provide a bad example encouraging similar incongruous applications[18]. In respect of the 3 successful rezoning applications in the Sha Tin area in 2015, as pointed out by Ms Woo, they, unlike the Site, did not fall within the “GB” buffer between Shing Mun Country Park and Sha Tin New Town[19]. 44.The Board accepted the views of PlanD that the Application was objectionable, and rejected the Application. In respect of PlanD’s views accepted and adopted by the Board, the well-established approach of the court in an application for judicial review of the Board’s decision is that it should not attempt to take on the role of a fact finding tribunal, or become bogged down in minutiae, or undertake a detailed assessment of their merits. Instead, the court should evaluate them in a broad manner, and be vigilant against excessive legalism creeping in. 45.In Cran v Camden London Borough Council [1995] RTR 346 concerning a challenge to the decision of a local authority to introduce a controlled parking zone, McCullough J explained the court’s approach in an application for judicial review in relation to matters of detail which had already been considered by the decision-maker, as follows (at 365G-366A):
46.In R (Mansell) v Tonbridge and Malling BC [2019] PTSR 1452 concerning a challenge to a planning decision, Lindblom LJ also observed at §41 that:
47.PlanD’s views regarding as the importance of maintaining the “GB” buffer between Shing Mun Country Park and Sha Tin New Town, the potential adverse visual, landscape and nature conservation impacts arising from the Proposed Development, the feasibility of the proposed road widening works, and the undesirability of setting a bad precedent, are matters of judgment requiring the application of specialist knowledge, skill, expertise and experience. PlanD is much better placed than the court to assess those matters. PlanD was entitled to come to, and the Board was entitled to accept, those views. The court should not interfere with their assessments on these matters in the absence of manifest error or Wednesbury unreasonableness. Subject to the discussion below relating to the specific challenges raised by the Applicant, I consider that the Board was entitled to reach the conclusion that the Application was objectionable from a planning point of view, and on that basis reject the Application. 48.I shall now deal with the Applicant’s 8 grounds of judicial review in the same order in which they are raised, save that I shall consider Ground 5 (concerning the Board’s failure to provide the Applicant with a reasonable opportunity to address the New Photomontage produced by PlanD at the meeting) after I have considered Grounds 6 and 7 which both concern the issue of the visual impact of the Proposed Development. GROUND 1 - BREACH OF PRINCIPLE OF EQUALITY AND FAILURE TO GIVE PROPER REASONS 49.Under Ground 1, the Applicant argues that the Board failed to apply the law consistently and even-handedly as between (i) the Applicant in respect of the Application for rezoning of the Site and (ii) the Government in respect of similar proposals for rezoning of Government sites. Further or alternatively, the Board failed to give reasons for not affording similar or equal treatment to the Application for rezoning of the Site and similar proposals for rezoning of Government sites[20]. 50.In particular, it is argued that:
(i) The argument about inequality of treatment or approach 51.Sites 2 to 4 are in Sha Tin, while the remaining one, Site 5, is in Tai Po.
52.The Applicant argues that the Board adopted a more favourable approach towards the Government’s rezoning applications in respect of the Comparable Sites:
(ii) The Site and Comparable Sites are not relevantly similar 53.The principle that, prima facie, broad statutory powers ought to be exercised with regard to the principle of equality is not, I understand, to be disputed. I do not therefore propose to examine the authorities referred to in §40 of the Form 86. However, the mere fact that the Board has approved the Government’s rezoning applications in respect of the Comparable Sites, even if they share some superficial similarities to the Site, is not, by itself, a sufficient ground to challenge the Board’s Decision in the present case. As cogently submitted by Ms Yvonne Cheng, SC (for the Board), the Site and the Comparable Sites were not truly or relevantly similar or indistinguishable[23]. Generally:
54.Specific relevant features of Site 2 included[26]:
55.Specific relevant features of Site 3 included[29]:
56.Specific relevant features of Site 4 included[31]:
57.Specific relevant features of Site 5, which was in a different district (Tai Po), included[32]:
58.On the other hand, the Site was not a formed, deserted or de-vegetated site, and was not close to a public road which could support the type of development contemplated. There was no means of access to the Site which could support the number of flats and population of the Proposed Development. While the Applicant claimed that the Road could be widened, it failed to show that the proposed road widening works were technically feasible. The Site also formed an integral part of the “GB” zone between Shing Mun Country Park and Sha Tin New Town, and had high buffering and conservation value. The Proposed Development had a height of 165mPD, which would be up to twice as tall as the nearby developments (ranging from 44mPD to 108mPD)[36]. 59.In view of the above differences, I consider that there can be no true comparison between the Site and the Comparable Sites. It is nothing to the point that the Board had previously approved the Government’s rezoning applications in respect of the Comparable Sites, but rejected the Application in respect of the Site. (iii) No difference of approach or treatment 60.As explained by Ms Woo, the Board’s general practice when considering a rezoning application under s 12A is that the applicant is required to “demonstrate to the Board that the proposals would not result in any insurmountable or unacceptable impact on the local community. For each such proposal, the [applicant] would need to show that all relevant departments had been consulted and agreed to the proposal, that any technical assessments required by those departments had been carried out, and that appropriate mitigation measures had been proposed to address any adverse impact identified”[37]. This approach is adopted by the Board regardless of whether the applicant is a private developer or the Government. 61.Where the applicant is a private developer, it may not know in advance whether its proposal would be regarded by relevant Government departments as giving rise to some insurmountable or unacceptable impact on the local community, or whether its proposed mitigation measures would be accepted by the Government departments concerned. Nevertheless, the statutory process under s 12A does allow an applicant an opportunity to address the concerns in respect of the application raised by relevant Government departments prior to the meeting before the Board (as demonstrated on the facts of the present case). 62.Before the Board can exercise its discretion under s 12A to amend a plan, it must be satisfied that the application is a proper and acceptable one. What materials are required to satisfy the Board that a given application is proper and acceptable and would not give rise to some insurmountable or unacceptable impact on the local community, and whether some technical assessments or reports are required to demonstrate that potential areas of concern could be appropriately addressed, must depend on the facts and circumstances of the case in question. Decisions on these matters call for the exercise of professional judgment, and depend on, amongst other things, the seriousness of the relevant concern, the ease or difficulty of overcoming it, and its likely impact on the local community. There cannot be a fixed rule that is applicable to all circumstances. 63.When deciding whether to accept a rezoning application, the Board is entitled to have regard to the views of PlanD (incorporating the comments of various Government departments which have relevant knowledge and expertise on the matters). The weight that the Board is prepared to accord to such views is generally a matter for the Board to decide. 64.When the matter comes before the court in an application for judicial review, the court should not lightly interfere with the Board’s decision, unless the views adopted or accepted by the Board are manifestly unreasonable (ie Wednesbury unreasonable). 65.In the present case, it was the Applicant who submitted to the Board various studies or assessments, including landscape design and tree preservation proposals, visual impact assessment, traffic impact assessment, ecological impact assessment, environmental assessment and geotechnical planning review report which were annexed to the Supplementary Planning Statement in support of the Application. Plainly, the Applicant must have appreciated that those studies or assessments would be examined by the relevant Government departments, and can hardly complain that inadequacies were discovered and concerns raised. It was then up to the Applicant to address those inadequacies and concerns, whether by providing additional or more detailed studies or assessments, or proposing appropriate mitigation measures. 66.When considering the validity of the Applicant’s argument about unequal treatment or approach, it is important to bear in mind that:
67.In all, I do not consider that the Applicant has made out its complaint of unequal treatment or approach by the Board. (iv) The feasibility of the proposed road widening works 68.One of the matters which the parties have spent some considerable time at the hearing concerns the feasibility of the proposed road widening works in respect of the Road, and the alleged difference of treatment or approach of the same issue in relation to the rezoning application for Site 3. 69.The Applicant points out that in respect of Site 3, which also required road widening works to be carried out, the Board did not require the Government to demonstrate the feasibility of the proposed works, or produce any geotechnical planning review report, landscape impact assessment, or tree preservation/compensation proposal in respect of those works. Instead, the Transport Department merely stated, or commented, that “the future developer should be required to upgrade the section of the road leading to the site to a standard 7.3m wide road with footpath on one side for the proposed private housing development”[38]. It is important to note, however, that there was no suggestion or indication that there was, or might be, any issue over the feasibility of widening the road in question. Whether some such issues might arise was a matter of professional judgment and expertise which the relevant Government departments were in a much better position than the court to assess. At the meeting of the Board on 27 March 2015, the Chairman expressly raised the issue of the feasibility of the access road widening, and was told by Mr C K Tsang (Senior Town Planner) that the existing local road would be ungraded from 4-5m wide to 7.3m wide with footpaths and the future developer of the site would be required to carry out the works. The Board was, in my view, entitled to proceed on the basis that the proposed road widening works were feasible in the absence of any suggestion or indication to the contrary. 70.On the other hand, the existing access road to the Site, ie the Road, with a width of about 3.5m to 5.5m which could permit only one lane of traffic, was accepted by the Applicant to be “substandard” and insufficient for the Proposed Development, and thus the Applicant proposed to widen the road to “a standard 7.3m wide single 2-lane carriageway with 2m footpath at one side together with a cul-de-sac at the end of the road”[39]. The Applicant’s stance throughout was that the proposed road widening works were straightforward or not difficult[40], and were technically feasible[41]. This was, however, an assertion which the Applicant failed to support by any technical or engineering study or assessment. 71.The Government departments’ comments on the proposed road widening works were made known to the Applicant prior to the Meeting. Those comments and the Applicant’s response thereto were set out in the Table of Responses to Departmental Comments annexed to the Applicant’s Supplementary Planning Statement as “Annex A”:
72.It can be seen that by and large, other than promising to undertake the management and maintenance responsibilities of the Road after completion of the road widening works, the Applicant’s basic position regarding other concerns raised by the Government departments was that those matters would be dealt with at a later stage after the Application had been approved by the Board. There was no real attempt to address the concerns of the Government departments, whether by way of further technical studies or proposed mitigation measures. 73.Prior to the Meeting, the Board sent to the Applicant a copy of the RNTPC Paper on 8 June 2018, in which the concerns raised by the relevant Government departments were repeated. In the RNTPC Paper, the following was stated in respect of the proposed road widening works:
74.It must have been clear to the Applicant that various Government departments were not yet satisfied about the feasibility of the proposed road widening works and required the Applicant to demonstrate the same by technical evidence. In particular, the Transport Department expressly raised the issue of feasibility of the proposed road widening works, and asked the Applicant to seek confirmation from relevant departments (including CEDD, WSD and LandsD) that the proposed widening works were both technically feasible and acceptable to those departments. The Transport Department also made it clear that unless the applicant could provide documents to show that the relevant departments had confirmed that the proposed road widening was both technically feasible and acceptable to them, it would be premature to conclude that the same was technically feasible. As it was, the Applicant failed to obtain the requisite confirmation from the relevant departments. The Applicant also failed to produce technical evidence to show that the proposed widening of the Road was feasible. As earlier noted, the Geotechnical Planning Review Report produced by the Applicant and relied upon to show that there would be “no foreseeable major problem”[42] did not in fact study the technical feasibility of the proposed road widening. The report stated, instead, that “[a]ssessment on the effect of natural terrain to the proposed road widening works at Tung Lo Wan Hill Road shall be reviewed in later stage”[43]. At the Meeting, the Applicant essentially maintained its position as set out in the Table of Responses to Departmental Comments. In the circumstance, the Applicant can hardly complain about the Board’s conclusion that it had failed to demonstrate the feasibility of the proposed road widening works, and the consequent rejection of the Application on, inter alia, that ground. 75.In passing, I should mention that there is a dispute on whether the Road is substandard because its gradient (1 in 6) exceeds the absolute maximum gradient specified in the TPDM and does not comply with the TPDM requirements (as stated in §58 of Woo 1). The Applicant’s position is that the TPDM requirements are not applicable to the Road because it is an “access road” as defined under the Buildings Ordinance (Cap 123) and, as such, unless it is open to public use and forms part of the overall public road system, or where public transport is to be provided, it does not have to be designed and constructed to standards in the TPDM and the requirements of Highways Department. Since the Applicant has proposed to take up the management and maintenance responsibilities of the Road, the TPDM requirements are not applicable[44]. PlanD accepts that if the Applicant were to be responsible for designing and carrying out the road widening works and also the further management and maintenance of the Road, it would be regarded as a “private road” and therefore the TPDM requirements would not be applicable[45]. It will be recalled, however, that the Applicant’s position was that it “will manage and maintain the proposed widened section of Tung Lo Wan Hill Road before the relevant government departments take up such responsibilities” and if “no Government department would manage and maintain the access road, the proposed road will be managed and maintained by the developer”[46]. The TPDM requirements were therefore not irrelevant, although they might be overcome by the Applicant’s proposal to manage and maintain it (by itself and/or the future developer). Anyhow, PlanD did not object to the Application because the Road was too steep and did not meet the TPDM requirements. As pointed out by Ms Lung, leaving aside any issue concerning the gradient requirement of the Road under the TPDM, the Applicant had still failed to demonstrate the feasibility of the proposed road widening works[47]. In all, I do not consider the dispute regarding the applicability of the TPDM requirements to be material to the outcome of present case. (v) The Application was rejected on its merits 76.The Board rejected the Application on the 4 grounds mentioned in the Decision Letter. They were proper grounds for rejecting the Application on its own merits. 77.If an application is fundamentally objectionable, it would be an improper exercise of the Board’s statutory discretion to allow it even if, for the sake of argument, the Board previously approached other rezoning applications made by the Government on an erroneous basis. The need to act with regard to the principle of equality cannot, in my view, be taken so far as to compel a public body to make a wrong decision in order to be seen to act consistently with previous, wrong, decisions. In my view, the objections in respect of the Application cannot be overcome by the alleged unequal treatment or approach adopted by the Board in respect of the rezoning applications for the Comparable Sites, still less by the mere fact that the Board approved the rezoning applications in respect those sites. (vi) No duty on the Board to explain why it approved the rezoning applications for the Comparable Sites 78.The Applicant argues that the Board failed to give reasons for not affording similar or equal treatment to the Application for rezoning of the Site by the Applicant and similar proposals for rezoning of the Comparable Sites by the Government, and argues that the Board was duty bound to give proper and adequate reasons for distinguishing the Site from the Comparable Sites.[48] 79.I do not accept this argument, because (i) I consider that the Board applied the same approach to the Applicant’s application for the Site and the Government’s application for the Comparable Sites, and (ii) as earlier mentioned, I consider the Sites and the Comparable Sites were not relevantly similar. In my view, the Board was under no duty to compare the Site and the Comparable Sites, or explain why the previous applications were accepted, at any rate where they were not relevantly similar to the Site. Where reasons are given for a decision rejecting an application (as in this case), what is required of the Board is to explain, briefly and succinctly, why it decided to reject the application so that the applicant would know the essential reasons for the Board’s decision. The reasons given by the Board in the Decision Letter in the present case were clear and intelligible, and would enable the Applicant to understand why the Application was rejected. GROUND 2 - TAKING INTO ACCOUNT IRRELEVANT CONSIDERATION 80.Under Ground 2, it is argued that the Board ignored the well-settled distinction in planning law between “planning permission” and its “implementation”. In determining whether to amend the Subject OZP, the Board should only be concerned with what should be the zoning for the Site. Further or alternatively, the Board misdirected itself in refusing to amend the Subject OZP on the basis of its not having been satisfied with the feasibility of the Applicant’s proposed road widening of the Road[49]. 81.In support of the distinction between planning permission and its implementation, Mr Benjamin Yu, SC refers the court to British Railways Board v Secretary of State for the Environment [1994] JPL 32, and Merritt v Secretary of Statement for the Environment and Mendip District Council [2000] JPL 371. 82.In British Railways Board, the Secretary refused to grant planning permission subject to certain conditions as recommended by an inspector because those conditions appeared to the Secretary to have no reasonable prospect of fulfilment within the five-year life of the permission. The question in that case was whether the Secretary was correct in that view of the law. The House of Lords held that the Secretary had misdirected himself in law. Mr Yu relies, in particular, on the following statement by Lord Keith of Kinkel at pp 38-39:
83.In Merritt, where an inspector rejected a Grampian condition as to the provision of access on the ground that he was not convinced that there was a reasonable prospect that the condition would be fulfilled in the time limit imposed on the permission, Mr Robin Purchas QC (sitting as a Deputy Judge) referred to the aforesaid judgment of Lord Keith, and said at p 382:
84.The distinction between planning permission and its implementation was also expressly recognized by Keith J (as he then was) in Delight World Ltd v The Town Planning Appeal Board [1997] HKLRD 1106, at 1115. 85.Mr Yu goes on to argue that the Board’s duties and functions is plan making, and rezoning is inquisitorial. The Board should, in any rezoning application, ask itself the question: what, in the public interest, is the best land use for the site in question. It should not be constrained by the application or any indicative scheme. In the instant case, the Board should not have refused the Application simply on the basis that the Applicant had not demonstrated that the proposed road widening works would be technically feasible. Hence, the Board took into account an irrelevant consideration, ie the feasibility or otherwise of the proposed road widening works[50]. 86.Ms Cheng argues that “Merritt is a case of planning permission. In Hong Kong, an application for planning permission under s.16 would be to carry out a development which, under the OZP, is a permitted use (under Notes Column 2) but subject to planning permission. But the Applicant is not simply asking for planning permission for a use which is prima facie allowed under Column 2. It is asking for a fundamental amendment of the OZP to enable development, on its proposed parameters, to be made a Column 1 use (use always permitted). It simply cannot be the case that [the] Board is prohibited from considering the technical feasibility of road access to the Site when deciding whether to allow such a fundamental change”[51]. 87.There is undoubtedly a difference between an application under s 16 for “permission” as provided for in a plan in order to pursue a proposed development, and an application under s 12A to amend a plan. In the former case, any grant of permission by the Board may be subject to such conditions as the Board thinks fit under s 16(5). On the other hand, in a rezoning application under s 12A, the Board has no power to impose conditions. The Board’s powers are limited to (a) accepting, in whole or in part, the application, or (b) refusing the application under s 12A(23). In other words, the Board has no power to rezone the Site to “R(B)4” subject to a condition that the Applicant (or any developer) is required to provide adequate vehicular access to the Site before any development can take place. 88.Nevertheless, as a matter of principle, it seems to me that the distinction between “planning permission” and “implementation” is still relevant in the context of an application under s 12A, bearing in mind that if a site is successfully rezoned pursuant to such application, the new zoning is not tied to any particular development. As I see it, the focus of an application under s 12A should be whether the proposed new zoning is appropriate and acceptable from a planning point of view, and desirable in the public interest. This having been said, the feasibility of the development proposal put forward in support of a rezoning application under s 12A is not irrelevant in considering its acceptability. As is clear from the above quoted judgment of Lord Keith in British Railways Board, the prospect of fulfilment of a desirable condition is a relevant, albeit non-conclusive, factor which the decision-maker is entitled to take into account when deciding whether to grant a planning permission. Moreover, as mentioned in §28 above, I consider the Board was entitled to consider, and assess, the acceptability of the Application from a planning point of view by reference to the parameters and broad scheme of the Proposed Development. 89.On the basis that one should not concentrate on the actual form of the Proposed Development but should focus on the Application itself, which was to rezone the Site to “R(B)4” to permit “a medium-density private residential development subject to a maximum PR of 2.1 [which would translate to some 32,361m2 of gfa] and a maximum building height of 165mPD”, the permissible and probable development intensity would plainly require that there be adequate road access to the substantial future development on the Site. The availability of such road access was, in my view, clearly relevant to the question of whether the proposed new zoning of the Site was appropriate and acceptable from a planning point of view, and desirable in the public interest: see Stringer v Ministry of Housing and Local Government [1970] 1 WLR 1281, at 1294 per Cooke J (“In principle, … any consideration which relates to the use and development of land is capable of being a planning consideration”). I do not consider that the feasibility or otherwise of the proposed road widening works was an irrelevant consideration which the Board was not entitled to take into account when determining the Application. 90.As for the argument that the Board misdirected itself in refusing to amend the Subject OZP on the basis of its not having been satisfied with the feasibility of the Applicant’s proposed road widening of the Road, I refer to the discussion at §§68-74 above, and consider that the Board was entitled to conclude, on the materials before it, that the Applicant had failed to “demonstrate the feasibility of the proposed road widening works and that it would not cause adverse landscape impact”. The failure of the Applicant to demonstrate the feasibility of the proposed road widening works, being a critical issue of the Application to rezone the Site, is a matter which the Board was entitled to take into account to come to the view that the proposed new zoning of the Site was not appropriate and acceptable from a planning point of view, and thus to reject the Application. 91.In all, Ground 2 is rejected. GROUND 3 - FAILURE TO TAKE INTO ACCOUNT OR GIVE WEIGHT TO RELEVANT MATTERS 92.Under Ground 3, it is argued that the Board failed to take into account or attribute any or any appropriate weight to (i) the Government’s housing policy to increase housing supply by rezoning “GB” sites satisfying the criteria of Stage 1 Review and/or Stage 2 Review; and (ii) the Board’s previous decisions in respect of similar sites[52]. 93.This ground can be dealt with briefly. In so far as the Government’s policy to increase housing supply is concerned, it is not a mandatory consideration which the Board must, as a matter of law, take into account (see BH v Director of Immigration, HCAL 105/2014 (14 April 2015), at §§63-65). It is, at best, a discretionary consideration which the Board may give such weight to it as its thinks fit (see Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, at F-G per Lord Hoffmann; Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, at §97 per Ma CJ). In any event, there is no basis to contend that the board did not did take into account the Government’s said policy. This aspect was referred to in §2(a) of the RNTPC Paper, and by both PlanD and the Applicant at the Meeting[53]. As shown in the Minutes of the Meeting, at §27, the Members of the Board expressly agreed that the criteria adopted in the “GB” Review should be adhered to in the consideration of similar rezoning proposals. The fact that in the Decision Letter, the Government’s policy was not referred to is neither here nor there. Where reasons are given by the Board for a decision, it is only required to state the essential reasons for the decision. The Board is under no duty to set out and deal with every point raised by either party for or against the application, or every matter considered in reaching its decision. 94.The Applicant’s further argument that the Board failed to take into account or attribute any or any appropriate weight to the Board’s previous decisions in respect of similar sites does not anything to Ground 1, which has already been dealt with above. GROUND 4 - BREACH OF TAMESIDE DUTY 95.Under Ground 4, it is argued that if (contrary to Grounds 1 and 2), it was relevant for the Board to consider the technical feasibility of road widening and other technical assessments including ecological impact assessment and landscape impact assessment, the Board failed to make further (or adequate) inquiries about those matters, nor were they (adequately) discussed during the deliberation session. Likewise, the Board failed to make further inquiries regarding the purported differences between the Site and other similar sites for each of the reasons for the Decision[54]. 96.Mr Yu argues that the Board breached the Tameside duty in the respect of the following matters:
97.The first point to note when considering this ground of judicial review is that there is no general duty on the part of a decision-maker to make inquiries on matters which may be relevant to the decision to be made by him. As this court pointed out in Ho Loy v Director of Environmental Protection, HCAL 21 & 22/2015 (22 December 2016), at §§50-51 the so-called Tameside duty is based on the conventional administrative law principle that a decision-maker exercising a statutory power must ask himself the right questions and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly (ie Wednesbury reasonableness). 98.In Deng Suet Yan v Hong Kong Housing Authority [2017] 4 HKLRD 73, at §19, the Court of Appeal endorsed the summary of principles set out by Hallett LJ in R (Plantagenet Alliance) v Secretary of State for Justice [2015] 3 All E R 261, at §100, in relation to the Tameside Duty:
99.Absent any specific statutory requirement, it is generally a matter for the decision-maker to decide what steps to take to collect the relevant information for the purpose of answering the right question: see Smart Gain Investment Limited v Town Planning Board, HCAL 12/2006 (6 November 2007), at §87 per A Cheung J (as he then was):
100.Importantly for the purpose of the present discussion, the scope and content of the duty to make inquiries, should it arise in any given case, is context specific. In Flintshire County Council v R (on the application of Anthony Jayes) [2018] EWCA Civ 1089, at §14, the following was stated by Hickinbottom LJ:
101.In respect of the first matter which Mr Yu argues the Board ought to have made inquiries or further inquiries (namely, about the Comparable Sites), I have already concluded that they were not relevantly similar to the Site. I do not therefore see that the Board was under any duty to ask further questions or make further inquiries about the Comparable Sites. 102.In respect of the second matter which Mr Yu argues the Board ought to have made inquiries or further inquiries (namely, about the feasibility and landscape impacts of the proposed road widening works), I have already set out in §§71 to 74 above the comments or concerns which PlanD and other Government departments had on the proposed road widening works, and the Applicant’s responses to those comments or concerns, both prior to and at the Meeting. Essentially, the Applicant’s stance was that those matters could be addressed at a later stage, after the Application had been approved by the Board. The Applicant was the proponent of the Application, and it was for the Applicant to satisfy the Board that the proposed rezoning of the Site was appropriate and acceptable from a planning point of view, and desirable in the public interest. The Applicant had the benefit of a team of experts in different disciplines to assist it in the pursuit of the Application, and had been given ample opportunities to address the concerns raised by PlanD and other relevant Government departments regarding the feasibility and landscape impacts of the proposed road widening works, but chose to maintain the stance that it was not necessary to address them prior to the approval of the Application. The Board had before it the rivalling contentions of the parties, and came to the conclusion that the Applicant had failed to demonstrate the feasibility of the proposed road widening works and that they would not cause adverse landscape impact. I do not consider that, in the circumstances of this case, it was incumbent on the Board to make further inquiries on those matters as suggested by Mr Yu. To impose such duty on the Board would, in my view, be neither fair nor reasonable on the facts of this case. 103.In respect of the third matter which Mr Yu argues the Board ought to have made inquiries or further inquiries (namely, about the methodology adopted in the EcoIA Report, the concept of the woodland compensation plan, and the impact of the slope works on the tree compensation area), again comments and concerns on those matters had been raised by, inter alia, the Director of Agriculture, Fisheries and Conservation (“DAFC”), and those comments and concerns had been responded to by the Applicant. 104.DAFC’s relevant comments and the Applicant’s responses thereto were set out in the Table of Responses to Departmental Comments, as follows:
105.DAFC remained dissatisfied with the Applicant’s responses to his comments on the ecological impacts of the Proposed Development, the mitigation measures proposed by the Applicant, and the issue of tree compensation. In the RNTPC Paper, the following was stated under the sub-heading “nature conservation”:
106.The Board members discussed the Applicant’s ecological impact assessment with the Applicant’s representatives at the Meeting, including (a) details of the tree preservation proposal and whether the trees to be affected by the proposed road widening works had been taken into consideration, (b) whether the baseline review for the assessment, which was based on data gathered in 4 months (from August to November) was adequate to cover both the dry and wet seasons, and whether literature review had been conducted to supplement the lack of information for other seasons, (c) the concept of the proposed woodland compensation plan, and (d) whether the slope works and retaining walls would affect the proposed compensatory planting areas in the northern portion of the Site. The answers given by the Applicant’s representatives revealed or confirmed that: (i) the tree preservation proposal had not taken into account those trees along the proposed access road which fell outside the Site boundary, (ii) no literature review had been conducted to support the Applicant’s assertion that a 4-month study could nevertheless represent 12 months’ conditions, (iii) no woodland compensation plan had been carried out, and (iv) the scope of the proposed slope works and how the slope works might affect the woodland compensation plan were not clear [59]. In respect of the last matter, after much questioning, the Applicant’s representative (Ms Winnie Wu) referred to and relied upon the Geotechnical Planning Review Report, and said that H(GEO) CEDD had no in-principle objection to the report. However, the Geotechnical Planning Review Report did not in fact provide details of the scope of slope work, but mentioned that relevant studies would be done later (“Detailed investigation and stability assessment on the existing geotechnical features, which may affect or be affected by the proposed development, shall be carried out in detailed design stage. Any sub-standard geotechnical features shall be modified or upgraded, if necessary.”)[60] 107.During the close session of the Meeting when the members of the Board deliberated on the Application, the members generally considered, inter alia, that:
108.The Government departments’ comments and the Applicant’s responses on the methodology adopted in the EcoIA Report, the concept of the woodland compensation plan, and the impact of the slope works on the tree compensation area were matters for the Board’s evaluation and assessment. As in relation to the proposed road widening works, I do not consider that, in the circumstances of this case, it was incumbent on the Board to make further inquiries on those issues. The Board was entitled, on the materials before it, to come to the view that the Applicant had failed to demonstrate that the proposed rezoning would not have (inter alia) adverse nature conservation impacts on the surrounding areas. GROUND 6 - ERRONEOUS UNDERSTANDING OF RELEVANT PLANNING PRINCIPLES 109.Under Ground 6, it is argued that the Board misconstrued and/or misapplied Town Planning Board Guidelines No 41 - Guidelines on Submission of Visual Impact Assessment for Planning Applications to the Town Planning Board (“the VIA Guidelines”)[62]. 110.The VIA Guidelines stated, inter alia, as follows:
111.The Applicant’s argument under this ground is that the Board, in giving as one of the reasons for the Decision that the Applicant had failed “to demonstrate that the proposed rezoning would not have adverse visual … impacts on the surrounding areas”, erred by raising the threshold to “no adverse visual impact”, whereas under §3.2 of the VIA Guidelines the relevant threshold should be whether the proposed development would result in any “major adverse visual impact” within the existing and planning development context. The Board thereby adopted a standard above and beyond that which was implemented by the VIA Guidelines. Accordingly, the Board adopted an erroneous understanding of the VIA Guidelines and misconstrued and/or failed to apply the same[63]. 112.As submitted by Ms Cheng, the reasons given by the Board for the Decision must be read with reality and contextual common sense (see Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, at §98 per Stock JA). An important context here would be the relevant discussion in the RNTPC Paper. Further, the general tenor of the deliberation at the Meeting should be considered (see Jonnex International Ltd v Town Planning Board [2018] 1 HKLRD 577, at §31 per Au J (as he then was)). 113.In this case, the Applicant’s position was that the visual impact of the Proposed Development would be “slightly adverse to moderately adverse” with mitigation measures[64]. On the other hand, the Chief Architect/CMD2, Architectural Services Department took the view that the Proposed Development would be “undesirable from visual impact point of view and may not be compatible with the adjacent developments”[65], and the Chief Town Planner/Urban Design & Landscape, Planning Department was of the view that “the proposed development will block majority of the existing view towards the Sha Tin New Town from the walking trail at viewpoint 8 (Drawing Z-19). Even with mitigation measures, the proposed development at 165mPD will remain tall as the walking trail is located in a close distance with the proposed development. Therefore, the visual impact at VP8 is considered to be significantly adverse”[66]. At §11.5 of the RNTPC Paper, PlanD stated that:
114.It can be seen that the Chief Architect/CMD2 and Chief Town Planner/Urban Design & Landscape’s comments regarding the visual impact of the Proposed Development related to two different aspects, one concerned the incongruence or incompatibility of the Proposed Development with the immediate surrounding greenery landscape and the existing developments at lower topographic levels to the south of the Site, and the other concerned the blocking of the view of Sha Tin New Town. The former impact would be felt from the point of view of a person looking towards the Proposed Development from a distant, lower, point such as the town centre area, while the latter impact would be felt from the point of view of a person at viewpoint 8 on the Walking Trail looking towards Sha Tin Town Centre. 115.During the open session of the Meeting, the members of the Board discussed the visual impact of the Proposed Development with PlanD and the Applicant’s representatives[67]. During the close session of the meeting, the members of the Board generally considered that “the proposed developments to be built on a high level site would be substantially higher than the nearby existing buildings. The visual impact of the proposed development from the town centre area would be substantial”[68]. This view of the Board members related to the first aspect of the visual impact mentioned above. The Minutes of the Meeting, in which the above matters were recorded, were enclosed with the Decision Letter. 116.Reading the Decision Letter in its proper context, it seems to me to be clear that when the Board stated that the Applicant had failed “to demonstrate that the proposed rezoning would not have adverse visual … impacts on the surrounding areas”, it was saying that the Applicant had failed to demonstrate that the proposed rezoning would not have “substantial” adverse visual impact, not simply that the Applicant had failed to show no adverse visual impact whatsoever. 117.The VIA Guidelines are not mandatory. They are merely guidelines which do not have to be rigidly adhered to, and should not be read like a statutory instrument. The Board is not required to adopt exactly the same terminologies used in the VIA Guidelines when stating its reasons for the Decision. The difference between “substantial” and “major” is largely semantic. In all, Ground 6 is rejected. GROUND 7 - WEDNESBURY UNREASONABLENESS OR IRRATIONALITY 118.Under Ground 7, it is argued that the Board’s conclusions that:
are Wednesbury unreasonable or irrational[69]. 119.In relation to the first point under this ground, Mr Yu argues that (i) the photomontages for VP 3, 4, 7 and 10 produced in the Applicant’s VIA Report showed that there was no substantial obstruction to the view from the town centre area, (ii) the New Photomontage produced by PlanD at the Meeting was taken from viewpoint 8, which was located on the Walking Trail looking towards the Sha Tin Town Centre (as opposed to looking from the town centre area), (iii) the Minutes of the Meeting did not record any discussion of the visual impact from the town centre area, and the Board did not pose any question to the Applicant during the Meeting on that matter. Accordingly, in the absence of any material or relevant evidence before the Board that the visual impact of the Proposed Development from the town centre area would be substantial, the Board’s view to such effect was unsupported by evidence, and was thereby Wednesbury unreasonable or irrational[70]. 120.This argument fails to take into account that one of the fundamental objections raised by PlanD to the Application was the incongruence or incompatibility of the Proposed Development with the immediate surrounding greenery landscape and the existing developments at lower topographic levels to the south of the Site. I refer to PlanD’s views as noted in (i) §§2.18 and 2.19 of the Table of Responses to Departmental Comments, and (ii) §§11.4 and 11.5 of the RNTPC Paper, which have already been set out in §§33-34 above, and shall not repeat the same here. In the RNTPC Paper, the following was also stated as part of the comments of the Chief Town Planner/Urban Design & Landscape, Planning Department, under the sub-heading “Urban Design and Visual”, at §9.1.9:
121.At the meeting, the adverse visual impact of the Proposed Development resulting from the incongruence or incompatibility of the Proposed Development with surrounding areas was discussed[71]. It was a matter for the Board members to evaluate, and decide whether to accept, the views of PlanD. In my view, the Board members were well entitled to come to the view that the visual impact of the Proposed Development from the Sha Tin Town Centre would be substantial. 122.In relation to the second point under this ground, Mr Yu argues that in light of the evidence on visual, landscape and nature conservation impacts of the Proposed Development put before the Board (including but not limited to the VIA Report, the Landscape Design Proposal, the Tree Preservation Report, the EcoIA Report, the PowerPoint Presentation and the Further Slides), the Board’s finding that the Applicant had failed to demonstrate that the proposed rezoning of the Site would not have adverse visual, landscape and nature conservation impacts on the surrounding areas is Wednesbury unreasonable or irrational[72]. For this purpose, Mr Yu relies on the comparison with the rezoning of Sites 2 to 4[73], and the detailed matters raised in §§8-68 of Kan 2. 123.In respect of the former (ie rezoning of Sites 2 to 4), I have already concluded that they were not relevantly similar to the Site, and do not see that it could lead to the conclusion that it was Wednesbury unreasonable of the Board to find that the Applicant had failed to demonstrate that the proposed rezoning of the Site would not have adverse visual, landscape and nature conservation impacts on the surrounding areas. In respect of the latter (ie the detailed matters raised in §§8-68 of Kan 2), the Applicant’s submission is tantamount to re-arguing the entire Application before the court. This cannot be the right approach in an application for judicial review of a decision of the Board refusing to accede to a rezoning application under s 12A. As earlier noted in §44-47 above, the court ought to approach such decision broadly, and should not be bogged down in minutiae or led into the error of taking over the role of a fact finding tribunal. I agree with Ms Cheng’s submission that on the totality of the materials before the Board, there was ample basis for it to find that the Applicant had failed to demonstrate that the proposed rezoning of the Site would not have an adverse visual, landscape and nature conservation impact. 124.Lastly, in respect of the third point under this ground, Mr Yu argues that the Board’s finding that the granting of the Application would set an undesirable precedent is Wednesbury unreasonable when the Board has approved similar proposals by the Government, as exemplified by the rezoning applications of Sites 2 to 5. Further, without the Board having first discharged the Tameside duty of looking closer into the other proposals which the Board had granted approval for rezoning, to conclude that approving the rezoning proposal on the Site would set an undesirable precedent would be premature. In any event, the Board’s reasoning is flawed and is putting the cart before the horse because if a proposed development is very incongruous in its setting as alleged, it should not have been approved by the Board on the ground of incongruity in the first place. In other words, either there are planning merits and the rezoning application should be allowed, in which case there could not and should not be any question of setting an undesirable precedent; or else if there are insufficient planning merits, the rezoning application would have been refused. The argument of undesirable precedent is thus circular, as it very much turns on the planning merits of the application itself[74]. 125.I have already dealt with the Applicant’s complaints based on (i) a comparison with the rezoning of Sites 2 to 5, and (ii) the alleged breach of the Tameside duty. In relation to the Applicant’s complaint that the argument of undesirable precedent is circular, it may of course be said that a planning application should be granted if there are planning merits, and rejected if there are insufficient planning merits. In other words, the argument of undesirable precedent would not add anything, or make any difference, to the actual decision in any given case. However, it is a well-recognized principle of planning law that the decision-maker may into account what consequences, or side-effects, of granting permission may be (see Collis Radio Ltd v Secretary of State for the Environment (1975) 29 P & CR 390, at 395 to 396 per Lord Widgery CJ: “This is a problem which has appeared in the administration of planning law since its inception. There is no doubt whatever that, human nature being what it is, if permission is granted for a particular form of development on Site A it is very difficult to refuse similar development on site B if the circumstances are the same. It must happen constantly in practice that a local planning authority refuses planning permission in respect of site A because of the consequences which it fears might flow in respect of sites B, C and D. No court has so far said that that is not a proper consideration to be adopted by a planning authority …”). 126.If an application is granted even where there are fundamental objections to it, eg where the proposed development would be very incongruous with the surrounding areas and/or would significantly affect the integrity of a “GB” buffer (as in this case), the success of the application may be relied upon by a future applicant as justifying another similar proposal. It was thus, in my view, open to the Board to give as one of its reasons for rejecting the Application in the instant case that its approval would set an undesirable precedent for other similar developments in the “GB” zone, leading to further degradation of the natural environment and compromising the integrity of the “GB” buffer between Shing Mun Country Park and Sha Tin New Town. GROUND 5 - PROCEDURAL UNFAIRNESS 127.Under Ground 5, it is argued that the Board failed to provide the Applicant with a reasonable opportunity to present its case and address the New Photomontage which was only produced by PlanD for the first time at the Meeting[75]. 128.As earlier mentioned, one of the issues in dispute between the parties concerned the visual impact of the Proposed Development. The Applicant’s position was that the visual impact of the Proposed Development would be “slightly adverse to moderately adverse” with mitigation measures. In support of this position, the Applicant put forward, inter alia, a photomontage (VP8) of what the Applicant contended the Proposed Development would look like when viewed from viewpoint 8. In Axxa’s Visual Impact Assessment, the following was stated in respect of VP8 (at p 6):
129.CTP/UD&L, PlanD considered that VP8 failed to accurately reflect the visual impact of Proposed Development from the point of view of a person at viewpoint 8 on the Walking Trail. This was because the height of the Proposed Development was to be 165mPD, the Walking Trail was just some 48m away, and the height of viewpoint 8 was about 120mPD[76], some 45m lower than the top of the Proposed Development. The Proposed Development would therefore constitute a substantial visual obstruction for anyone at viewpoint 8[77]. 130.§9.1.9 of the RNTPC Paper set out the following comment of CTP/UD&L, PlanD on VP8:
131.PlanD further expressed the following view at §11.5 of the RNTPC Paper:
132.For the purpose of illustrating or explaining the point about the inaccurate scale of VP8, PlanD prepared the New Photomontage and produced it at the Meeting for consideration by the Board members. The difference of visual impact between VP 8 and the New Photomontage was stark. 133.As recorded in the Office Transcript of the Meeting, the following explanation was given by Ms Jessica Yu of PlanD on why VP8 failed to correctly reflect the blocking of view of Sha Tin New Town by the Proposed Development from viewpoint 8:
134.The Applicant’s representative, Ms Wu, complained about the late production of the New Photomontage. The following is recorded in §§17-18 of the Minutes of the Meeting:
135.On behalf of the Applicant, Mr Yu argues that notwithstanding the Applicant’s complaint that it had not had a reasonable opportunity to review and comment on the New Photomontage, the Board allowed the New Photomontage to be produced for assessing the visual impact of the Proposed Development. Mr Yu further says that the Applicant was deprived of a reasonable opportunity to respond to the following aspects of the New Photomontage:
136.Mr Yu concludes that the Decision was arrived at by the Board in breach of procedural fairness in two material respects, namely:
137.I consider that, as a matter of procedural fairness, the Board ought to have given the Applicant a reasonable opportunity to consider and deal with the New Photomontage produced by PlanD at the Meeting, eg by permitting the Applicant to put in further evidence or written submissions after the Meeting and, if necessary, hearing further oral representations from the Applicant. The question now is whether the court should allow the application for judicial review, or grant relief, by reason of this procedural breach. Having given this matter anxious consideration, I do not think it would be right to do so, for the following reasons. 138.First, even though the Applicant has now had a full opportunity to consider the New Photomontage and produced an expert report from Axxa dated July 2010, the Applicant’s consultant has not suggested that the New Photomontage is wrong or inaccurate, or wrongly depicts the obstruction that would be caused by the Proposed Development from the point of view of a person at viewpoint 8. At best, the Applicant’s answer is that visual impact assessment is a qualitative assessment, and the photomontages derived from any given viewpoint “may vary depending on a number of factors such as the exact location, angle, distance from the proposed development where the original photo was taken and the technical specifications of the camera used for shooting the photographs”[81]. At §37 of Kan 2, Mr Kan further states that “[g]iven the qualitative nature of the whole exercise, even if the image of the Applicant’s VP8 Photomontage and that of the PlanD’s VP8 Photomontage were different, that does not necessarily mean that the one produced by the Applicant was inaccurate as alleged. For the reasons explained above, the Applicant maintains that the Applicant’s VP8 Photomontage was not inaccurate as alleged.” This is far from saying that the New Photomontage is wrong or inaccurate. 139.Second, as noted in §115 above, the Board members ultimately took the view that “the visual impact of the proposed development from the town centre area would be substantial”, that being a reference to the visual impact from the point of view of a person looking towards the Proposed Development from a distant, lower, point such as Sha Tin Town Centre, instead of the visual impact from the point of view of a person at viewpoint 8 on the Walking Trail close to the Site looking towards Sha Tin Town Centre. VP8 and the New Photomontage are both concerned with the latter aspect of the visual impact of the Proposed Development, and have no bearing on the view taken by the Board members in respect of the former aspect of the visual impact of the Proposed Development. 140.Third, having regard to the other substantive reasons given by the Board for the Decision, I consider that even if the issue of visual impact is to be remitted to the Board for fresh consideration and the Applicant is given an opportunity to adduce the new expert report from Axxa and make further representations regarding VP8 and the New Photomontage (along the lines contained in §§33-43 of Kan 2), I do not see that the Board will come to any different conclusion, namely, that the Application ought to be rejected. It is trite that judicial review is discretionary, and the court may refuse to grant relief even if the decision-maker has acted in breach of the principle of procedural fairness if the court is satisfied that the applicant has not suffered real prejudice and the substantive outcome will inevitably be the same (see Leung Fuk Wah Oil v Commissioner of Police [2002] 3 HKLRD 653). I recognize that this is a strong course to take, and the court should not readily come to the conclusion that an outcome is inevitable. Nevertheless, I believe the present is such a case. GROUND 8 - COPYING OF REASONS 141.Under Ground 8, it is argued that the Board’s almost wholesale adoption of the proposed reasons in the RNTPC Paper and its failure to give adequate reasons as to why it is said that the Applicant failed to demonstrate that the proposed rezoning would not have adverse visual, landscape and nature conservation impacts on the surrounding areas is itself also Wednesbury unreasonable. 142.That it is desirable that the Board should express its reasons for a decision in its own words, and not copy the reasons provided by PlanD, is undoubted, and has been said by the court on many occasions in the past (see, for example, Hysan Development Company Ltd v Town Planning Board, CACV 232 & 233/2012, 13 November 2014, §§198-200 (per Lam VP); and Town Planning Board v Oriental Generation Ltd, CACV 127 & 129/2012, 13 November 2014, at §§150-151). 143.Nevertheless, the court, when considering the adequacy or sufficiency of reasons given for a decision in an application for judicial review, is ultimately concerned with the overall fairness of the process before the Board. An important consideration is whether the Board has independently addressed its mind to the questions before it, in particular, whether it has addressed its mind to the representations that have been made to it by the applicant. In the present case, I have carefully read the Minutes of the Meeting. It is apparent that the members of the Board did, during the open and close sessions, consider the issues arising in the Application, and the representations raised on behalf of the Applicant (including the proposed road widening works, the planning intention of the Site, the visual impact of the Proposed Development, the principles adopted by the Government in the “GB” Review, and the ecological and landscape impact assessments) carefully, and address their minds to those matters. The reasons given by the Board for the Decision were clear and intelligible, and would enable the Applicant to properly understand the reasons why the Board rejected the Application. Also, the Board did not simply adopt and copy the reasons given by PlanD in the RNTPC Paper for rejecting the Application. As can be seen from §31 of the Minutes, the Board decided that rejection reason (c) should be amended by the inclusion of “the potential landscape impact of the proposed road widening works”[82]. This clearly demonstrates that the Board did not merely copy the reasons of PlanD, but gave independent consideration of the Application before it. I do not consider that the overall fairness of the process before the Board was compromised by the fact that the Board adopted much of the reasons of PlanD in the Decision. 144.Having regard to the contents of the RNTPC Paper, in particular §§11.4-11.7 thereof (with which the Decision Letter must be read together), I also do not accept that the Board failed to give adequate reasons as to why it concluded that the Applicant had failed to demonstrate that the proposed rezoning would not have adverse visual, landscape and nature conservation impacts on the surrounding areas. 145.For all of the above reasons, the 8 grounds of judicial review raised by the Applicant in the present case are rejected. DISPOSITION 146.The summons to amend the Form 86 dated 29 May 2020, and the Originating Summons for judicial review of the Decision dated 28 September 2018 are dismissed with costs to the Respondent, to be taxed if not agreed, with certificate for 2 counsel.
Mr Benjamin Yu, SC & Mr Jenkin Suen, SC, instructed by Woo, Kwan, Lee & Lo, for the Applicant Ms Yvonne Cheng, SC & Mr John Leung, instructed by Department of Justice, for the Respondent [1] On 19 December 2017 when the Applicant applied to rezone the Site, Draft Sha Tin Outline Zoning Plan No S/ST/33, gazetted on 13 January 2017, was in force. On 28 May 2018, the Chief Executive in Council approved Sha Tin Outline Zoning Plan No S/ST/34. Hence, on 15 June 2018 when the Board met to consider the Applicant’s application, the version in force was the approved Sha Tin Outline Zoning Plan No S/ST/34. There was, however, no change in the zoning of the Site (namely, “GB” and “GIC”) in the two versions. [2] See the Aerial Photo, Plan Z-3a, in Appendix 4 to the Form 86. [3] See §14 of the Minutes of the Board’s Meeting on 16 June 2015. [4] See p 35 of the Schedule of Uses to Draft Sha Tin Outline Zoning Plan No S/ST/33. [5] See p 12 of the Schedule of Uses to Draft Sha Tin Outline Zoning Plan No S/ST/33. [6] See §95 of the draft Amended Form 86. [7] See p ES1 and §3.2.3 of the Supplementary Planning Statement. [8] See §4.1.1 of the Supplementary Planning Statement. [9] See §46 of Woo 1. [10] See Office Transcript of the Meeting, at [Bundle C10/2441]. [11] See p10 of Table of Responses to Departmental Comments, Annex A to the Supplementary Planning Statement. [12] See §§56-57 of Woo 1. [13] See Appendix I to the Supplementary Planning Statement. [14] See §§59-61 of Woo 1. [15] See §63 of Woo 1. [16] See §9.1.2(a) of the Paper. [17] See §9.1.3(a) of the Paper. [18] See ArchSD’s comment at §5.4 of the Table of Responses to Departmental Comments, and §70 of Woo 1. [19] See §74 of Woo 1. [20] See §38(a) of the Form 86. [21] See §92 of the Skeleton Submissions for the Applicant dated 14 February 2020. [22] See §§96-123 of the Skeleton Submissions for the Applicant. [23] See §83 of the Skeleton for the Town Planning Board dated 21 February 2020. [24] See §§88, 89, 90 and 96 of Woo 1, and aerial photos at Bundle C15/3531, 3536, 3542, 3538 and 3540 for the Site and Sites 2 to 5 respectively. [25] See §91 of Woo 1. [26] See §88 of Woo 1. [27] See §3.9 of RNTPC Paper No 4/15. [28] See §3.10 of RNTPC Paper No 4/15. [29] See §89 of Woo 1. [30] See §3.12 of RNTPC Paper No 4/15. [31] See §90 of Woo 1. [32] See §§95-96 of Woo 1. [33] See §3.20 of RNTPC Paper No 5/17. [34] See §3.24 of RNTPC Paper No 5/17. [35] See §3.20 of RNTPC Paper No 5/17. [36] See §32 of Woo 1. [37] See §12 of Woo 1. [38] See §4.9 of RNTPC Paper No 4/15. [39] See §5.2.2 of the Supplementary Planning Statement. [40] See §64 of Kan 2, and Ms Winnie Wu’s representation at the Meeting [Bundle C10/2428]. [41] See the Slide titled “Proposed Road Widening” produced at the Meeting [Bundle C10/2392]. [42] See §64 of Kan 2. [43] See p 2 of the Geotechnical Planning Review Report prepared by AECOM Asia Company Ltd dated March 2018. [44] See §61 of Kan 2. [45] See §49 of the Lung 1. [46] See Table of Responses to Departmental Comments, at §7.2. [47] See §49 Lung 1. [48] See §48 of the Form 86. [49] See §38(b) of the Form 86. [50] See §§140-142 of the Skeleton Submissions for the Applicant. [51] See §110 of the Skeleton for the Town Planning Board. [52] See §38(c) of the Form 86. [53] See Office Transcript of the Meeting, at [Bundle C10/2423 & 2432]. [54] See §38(d) of the Form 86. [55] See §173 of the Skeleton Submissions for the Applicant. [56] See §§175-177 of the Skeleton Submissions for the Applicant. [57] See §§179-182 of the Skeleton Submissions for the Applicant. [58] See §5.3.3 of the Supplemental Planning Statement. [59] See §§22-25 of the Minutes of the Meeting, and the Office Transcript of the Meeting [Bundle C10/2441-2449]. [60] See p 3 of the Geotechnical Planning Review Report. [61] See §30 of the Minutes of the Meeting. [62] See §38(f) of the Form 86. [63] See §§87-88 of the Form 86, and §194 of the Skeleton Submissions for the Applicant. [64] See §8 of the Visual Impact Assessment annexed to the Supplementary Planning Statement as “Appendix B”. [65] See §9.1.8(a) of the Paper. [66] See §9.1.9(b) of the Paper. [67] See §§16-19 of the Minutes of the Meeting. [68] See §§30(a) of the Minutes of the Meeting. [69] See §38(g) of the Form 86. [70] See §201 of the Skeleton Submissions for the Applicant. [71] See §§8(c) and (e) and 16 of the Minutes of the Meeting. [72] See §203 of the Skeleton Submissions for the Applicant. [73] As set out in Section B3 of the Skeleton Submissions for the Applicant. [74] See §204 of the Skeleton Submissions for the Applicant. [75] See §38(e) of the Form 86. [76] As confirmed by the Applicant (see §18 of the Minutes of the Meeting). [77] See §49 of Woo 1. [78] Ie the New Photomontage. [79] See §§186-187 of the Skeleton Submissions for the Applicant. [80] See §189 of the Skeleton Submissions for the Applicant. [81] See §36 of Kan 2. [82] See §§14 and 17 of this judgment. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case