Join Smart Ltd v. Town Planning Board
Read the full judgment text of HCAL 1549/2020 on BabelCite. This High Court CFI judgment was delivered on 15 September 2021.
1. This is the rolled-up hearing of an application for judicial review of the decision of the Rural and New Town Planning Committee (“ the Committee ”) of the Town Planning Board (“ the TPB ”) made on 24 April 2020 rejecting the Applicant’s application (“ the Rezoning Application ”) to amend two approved outline zoning plans by re-zoning a site (“ the Application Site ”) from “Residential (Group E)” (“ R(E) ”), “Residential (Group E)1” (“ R(E)1 ”) and an area shown as “Road” to “Residential (Gro
Cited by 2 cases · Cites 5 cases
|
HCAL 1549/2020 [2021] HKCFI 2726 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1549 OF 2020 ________________________
________________________ Before: Hon Chow JA (sitting as an additional judge of the Court of First Instance) in Court Dates of Hearing: 16-18 June 2021 Date of Judgment: 15 September 2021 ____________________ J U D G M E N T ____________________ INTRODUCTION 1.This is the rolled-up hearing of an application for judicial review of the decision of the Rural and New Town Planning Committee (“the Committee”) of the Town Planning Board (“the TPB”) made on 24 April 2020 rejecting the Applicant’s application (“the Rezoning Application”) to amend two approved outline zoning plans by re-zoning a site (“the Application Site”) from “Residential (Group E)” (“R(E)”), “Residential (Group E)1” (“R(E)1”) and an area shown as “Road” to “Residential (Group A)” (“R(A)”) in order to increase the plot ratio of an intended residential development on the Application Site. 2.In what follows, unless the context indicates otherwise, references to “Section” or “s” shall be to the Town Planning Ordinance, Cap 131 (“the Ordinance”). BACKGROUND FACTS (i) The Application Site 3.The Application Site is made up of Lots 212 RP, 232, 233, 234, 235, 236 RP, 237, 238, 239, 243, 244, 245, 246 SA, 246 SB, 246 RP, 247, 365 RP, 366, 367 and 368 RP all in Demarcation District 130 (“the 20 Private Lots”) and some adjoining Government land (“the Government Land”) in Lam Tei, Tuen Mun, New Territories. The Application Site has a total area of about 21,333 m2. The Applicant is the owner of all but 2 of the 20 Private Lots comprised in the Application Site. The Applicant’s lots have a total area of about 16,191 m2. The remaining 2 Private lots (namely, Lots 245 and 366) have a total area of about 3,941 m2. The Government Land, which makes up the rest of the Application Site, has an area of about 1,201 m2. 4.The Application Site is located at the northern fringe of Tuen Mun New Town to the immediate north of Hong Po Road. It is accessible from (i) Hong Po Road (on the southern side), and (ii) San Hing Road via San Tat Lane (on the eastern side). 5.The Application Site is currently fenced-off and largely vacant with a portion at the centre of the site used for storage / open storage of construction materials. The surrounding areas of the Application Site are “brownfield” in nature, including orchards, metal workshops, car repairing workshops, recycling workshops, warehouse, godowns, open storage of construction materials, and open storage yards intermixed with residential dwellings and cultivated agricultural land. 6.The Application Site is situated in an area surrounded by a number of high-rise housing estates, including Yan Tin Estate which has 5 domestic blocks ranging from 33 to 38 storeys high, Fu Tai Estate which has 12 domestic blocks, and Siu Hong Court which has about 20 domestic blocks. 7.Under the existing zoning:
In what follows, unless the context indicates otherwise, the LTYY OZP and TM OZP will collectively be referred to as “the OZPs”. (ii) Government’s proposal for public housing developments in the area including the Application Site 8.Since the Chief Executive’s 2011-2012 Policy Address, the Government has been trying to expand the land resources and increase housing land supply, including building up land reserve with a view to meeting housing and other development needs. 9.On 29 January 2014, the Government announced to the Legislative Council that it had identified around 150 sites across Hong Kong for residential developments in different districts including, relevantly for the present purpose, 3 sites at (i) San Hing Road (“SHR”), (ii) the nearby SHR Extension, and (iii) Hong Po Road (“HPR”). 10.On 2 September 2014, the Government consulted Tuen Mun District Council on a proposed public housing development scheme at the SHR site (which covered the majority of the Application Site) with an area of about 8.7 ha and a plot ratio of not more than 5. Notwithstanding doubts expressed by the Tuen Mun District Council relating to traffic, rural industries, relocation, compensation and other issues, the Government continued to work on the proposed housing development scheme at SHR. 11.On 6 January 2015, the Government (Development Bureau and Planning Department) briefed the Tuen Mun District Council on the housing sites that were expected to be made available in the Tuen Mun District, including proposed public housing developments at the SHR, SHR Extension and HPR sites under on-going feasibility studies (“the 2014 Studies”). Similar to other public housing projects, these studies were engineering studies to ascertain the technical feasibility of the proposed public housing developments at the SHR, SHR Extension and HPR sites. 12.On 29 September 2016, the Government issued a press release titled “Government response to media inquiries on public housing development at San Hing Road”. In the press release, the Government stated that government departments concerned had adjusted the scope of the proposed public housing development at the SHR site with the target that public housing production would not be diminished. The related technical study had been revised so that the sites along SHR and HPR with development potential would be taken into account as a whole for public housing development. A rezoning application to amend the related outline zoning plan would be submitted to the TPB after completion of the study. It was also stated that the Government had been studying ways to adjust its plan to build public housing at the SHR site and nearby sites, the Government was still formulating the development plan at SHR, and the study on the proposal for public housing development at SHR had not yet been completed. 13.On 1 November 2016, the Housing Department briefed the Tuen Mun District Council on the latest progress of the proposed public housing developments in Tuen Mun, including those at the SHR, SHR Extension and HPR sites. 14.In 2017, in view of the public’s demand for public housing, the Government decided to combine the SHR, SHR Extension and HPR sites into a single development site (“the Combined Site”) with an area of about 29 ha for integrated and comprehensive public housing development with Government, institution and community uses (“GIC”) and associated infrastructural works (“the Proposed SHR and HPR Development”) in order to fully utilize the development potential and maximize the production of housing units in the area. The Combined Site included the sites of two private residential developments approved under s 16 as well as the Application Site. Under the Proposed SHR and HPR Development, no private housing component was contemplated. 15.The Proposed SHR and HPR Development involved a much larger site area and a higher density development when compared with the individual sites examined under the 2014 Studies. A new consultancy study (“the New Study”), commenced in February 2018 (see §18 below), was necessary to ascertain the technical feasibility of the Proposed SHR and HPR Development. The New Study was to be based on the findings of the 2014 Studies, of which the technical assessments were substantially completed in 2017. As the Combined Site exceeded 20 ha in area, the requirements under the Environmental Impact Assessment Ordinance, Cap 499 (“EIAO”) were triggered. Under the EIAO, an environmental impact assessment (“EIA”) report was required to be prepared by the project proponent and approved by the Director of Environmental Protection. The focus of the New Study was on the technical feasibility (including requirements under the EIAO) of the proposed land uses of the Combined Site, namely, comprehensive public housing development together with associated GIC, retail and infrastructure facilities. The scope of the New Study did not cover any private housing development. 16.In June 2017, the Civil Engineering and Development Department (“CEDD”) submitted a project profile (“the Project Profile”) for the Proposed SHR and HRP Development to the Director of Environmental Protection to apply for an EIA study brief under the EIAO. The Project Profile stated that the Proposed SHR and HRP Development site had been identified by the Government as potential long term public housing sites (§1.2.1). It fell within an area mainly zoned “Green Belt” and partly zoned “Residential (Group E)” on the OZPs (§1.4.2). The Proposed SHR and HRP Development had an area of about 27 ha, with an estimated population after its completion of about 63,000 (§1.5.1). The Project Profile identified possible environmental impacts arising from the Proposed SHR and HRP Development in different areas, including air quality, noise, water quality, solid waste, ecology, cultural heritage, land contamination, and landscape and visual. It was stated that the EIA study would investigate those environmental impacts and propose appropriate mitigation measures with the intention that all proposals would be environmentally acceptable and cost effective, and the residual impacts, if any, would be confined within the allowable limits (§5.1.1). The Project Profile also stated that the planning and engineering study including the EIA study was targeted to commence in the first quarter of 2018 for completion in the first quarter of 2020 (§2.2.1). Attached to the Project Profile was a drawing which indicated the boundary of the Proposed SHR and HRP Development and the locations of the “Proposed Indicative Housing Development Sites”, “Proposed Indicative School Sites”, “Proposed Indicative Sewage Pumping Station” and “Proposed Indicative Road L7”. It is not in dispute that the Application Site falls within the boundary of the Proposed SHR and HRP Development. 17.On 4 August 2017, the Director of Environmental Protection issued an EIA study brief in respect of the Proposed SHR and HRP Development (“the EIA Study Brief”). The EIA Study Brief set out the purposes and objective of the EIA study, the scope of environmental issues which should be addressed, the requirements that the EIA study would need to fulfil, and the necessary procedural and reporting requirements. For the purpose of this judgment, it is not necessary to set out the details of the EIA Study Brief, save to mention that the study required to be carried out is a detailed and exacting process with numerous environmental issues falling to be considered. 18.In February 2018, CEDD commissioned the New Study titled “Agreement No. CE 68/2018 (CE) - Site Formation and Infrastructural Works for the Development at San Hing Road and Hong Po Road, Tuen Mun - Feasibility Study” with a view to confirming the engineering feasibility of the Proposed SHR and HPR Development. The New Study included meeting the requirements under the EIAO and supporting any subsequent application for necessary amendments to the OZPs under the Ordinance. Pausing here, I should mention the New Study is also referred to as the “Feasibility Study” in the Form 86 and some other documents of the Applicant in these proceedings. 19.As at the date of the Decision on 24 April 2020, the New Study had not yet been completed, the Committee being told at that time that the New Study was scheduled for completion in 2020[1]. In these proceedings, the TPB has adduced some further evidence on the subsequent development of the New Study. The Applicant objects to the relevance and admissibility of evidence of events occurring after the date of the Decision. On behalf of the TPB, Mr John Litton confirms that the TPB does not rely on events post-dating the Decision dated 24 April 2020[2]. As a matter of principle, the rationality of the Committee’s decision should be determined by reference to the facts and matters before the Committee at the time of its decision, and events occurring after the date of the Decision should not be taken into account when considering the Applicant’s grounds of judicial review in this case. In some cases, events occurring after the date of the relevant decision may be relevant to the issue of relief. Nevertheless, the latest evidence from Mr Kelper Yuen (Deputy Director of the Planning Department) filed on 11 December 2020 was that the New Study had still not yet been completed, and it was targeted to be completed in the first quarter of 2021. I consider that the evidence contained in the Affidavit of Yuen Shing Yip Kepler and the Second Affirmation of Yuen Hok Lun (project manager of Sun Hung Kai Properties Limited) concerning post-Decision events should not be taken into account when considering the Applicant’s grounds of judicial review or the issue of relief in this case. Any reference to post-Decision events in this judgment is only for the sake of completeness. (iii) Previous s 16 applications 20.Prior to the Rezoning Application submitted by the Applicant on 21 August 2019, there had been a number of s 16 applications relating to the Application Site or a portion of it, including two s 16 applications made by the Applicant. 21.The first one (“the 273 Application”) was made by the Applicant in December 2013 in respect of a portion of the Application Site within the LTYY OZP with an area of about 14,553 m2. The application related to a proposed residential development comprising 96 flats with a plot ratio of 1.9. The application was approved by the Committee on 17 October 2014 on the basis that it was, at that time, consistent with the planning intention of zone “R(E)” applicable to the site, the proposed public housing development at San Hing Road then being still at a conceptual stage only. Subsequently, in February 2018, the Applicant applied for an extension of time to commence the proposed residential development for a period of 4 years until 17 October 2022. The application for extension was rejected by the Committee on 15 June 2018, and by the TPB upon review on 28 September 2018 on the basis that there had been a material change in planning circumstances, namely, that by then the Government was committed to a plan for comprehensive public housing development covering the site and action had been taken to pursue such development. On 16 October 2018, the Applicant lodged an appeal to the Appeal Board Panel (Town Planning) against the decision of the TPB refusing to grant the extension of time sought. As at the date of the Decision, the appeal had not yet been heard. It was scheduled for hearing in September/October 2020[3]. 22.The second one (“the 381 Application”) was made by the Applicant on 1 August 2019 in respect of the same portion of the Application Site within the LTYY OZP. The development parameters were generally the same as the 273 Application. By the time of the Decision in April 2020, the 381 Application had not yet been determined by the Committee[4]. (iv) The Rezoning Application 23.On 21 August 2019 in the midst of the Government’s consideration of the feasibility of the Proposed SHR and HPR Development, the Applicant, represented by Masterplan Limited (“Masterplan”), submitted the Rezoning Application to the TPB to amend the OZPs for the purpose of rezoning the Application Site to “R(A)” with a maximum plot ratio of 6, a maximum site coverage of 40%, and a maximum building height of 120 mPD, by reference to a proposed residential development on the Application Site (“the Proposed Scheme”) . The purpose of the application, as stated in the Executive Summary of the Rezoning Application, is as follows:
24.The Rezoning Application sets out the following Indicative Development Parameters of the Proposed Scheme:
25.Due to the different land ownerships within the Application Site, the Proposed Scheme is divided into 2 phases to facilitate early implementation of the development. Phase A, with a site area of 16,966 m2, would accommodate 7 residential blocks and 1 non-domestic block (Day Care Centre for the Elderly), while Phase B would accommodate 2 domestic blocks. The land for Phase A is generally owned by the Applicant, whereas the land for Phase B, in the middle of the Application Site, is generally owned by others at present. 26.The Rezoning Application was originally scheduled for consideration by the Committee on 15 November 2019, but was subsequently re-scheduled to 24 April 2020 upon the Applicant’s request. 27.Between 2 December 2019 and 14 April 2020, Masterplan submitted 5 sets of further information to the Committee providing responses to departmental comments and containing revised plans and assessments. 28.In April 2020, the Planning Department (“PlanD”) prepared RNTPC Paper No Y/TM-LTYY/8A (“the RNTPC Paper”) in respect of the Rezoning Application for consideration by the Committee. The RNTPC Paper set out, inter alia, the views and comments of various Government departments on the Rezoning Application, including objections expressed by five departments, namely (i) the Chief Engineer/Housing Project 2 of CEDD, (ii) the Director of Housing, (iii) the Chief Engineer/Construction of Water Supplies Department, (iv) the Executive Secretary (Antiquities and Monuments), Antiquities and Monument Office, and (v) the Commissioner for Transport. The RNTPC Paper also set out PlanD’s consideration and assessment of, and its views on, the Rezoning Application. At §12.1 of the RNTPC Paper, PlanD stated that it did not support the Rezoning Application. I shall come back to various aspects of the RNTPC Paper later in this judgment. (v) The Decision 29.The Committee held a meeting on 24 April 2020 (“the Meeting”) to consider the Rezoning Application. At the conclusion of the Meeting, the Committee decided to reject the Rezoning Application (“the Decision”). The Decision was communicated to Masterplan by a letter dated 15 May 2020. Two reasons were given for the Decision:
APPLICATION FOR JUDICIAL REVIEW 30.On 23 July 2020, the Applicant applied for leave to apply for judicial review of the Decision. In the Form 86, at §§3 and 4, the Applicant advances a total of 9 grounds of judicial review. 31.In respect of Reason (a), the grounds of judicial review are as follows:
32.In respect of Reason (b), the grounds of judicial review are as follows:
REASON (A): THE NEW STUDY 33.The first reason (Reason (a)) given by the Committee for rejecting the Rezoning Application was that the long term development of the general area covering the Application Site was under review by the Government for a possible comprehensive public housing development in the area, and the approval of the Rezoning Application would adversely affect the comprehensive planning of the area and jeopardise the implementation of the Government’s proposed public housing development. 4 grounds of judicial review have been advanced by the Applicant to challenge this reason:
34.In respect of the Government’s proposed comprehensive public housing development in the area including the Application Site and the New Study, PlanD informed the Committee of the following matters in the RNTPC Paper, at §4.4:
35.In the RNTPC Paper, PlanD set out the comments of the Chief Engineer/Housing Project 2 of CEDD and the Director of Housing regarding the long-term development of the area, as well as PlanD’s consideration, assessment and views in respect of this matter, as follows:
36.At the Meeting, there was also some discussion of the Government’s proposed public housing development in the area and the New Study:
37.Eventually, the Committed decided to reject the Rezoning Application for, inter alia, Reason (a), which was in materially the same terms as PlanD’s views as set out in §12.1(a) of the RNTPC Paper. (i) Ground 1 38.Mr Benjamin Yu, SC (on behalf of the Applicant) argues that the Government’s proposed comprehensive public housing development on the Combined Site (including the Application Site) was, at the time when the Committee considered the Rezoning Application, “remote” or “not imminent”, and it should either be regarded as an irrelevant consideration or, alternatively, should not be given any weight by the Committee. 39.In support of this ground, Mr Yu raises two main arguments, which are overlapping to some extent:
40.Mr Yu has referred the court to a number of authorities in support of these arguments. First, Mr Yu refers to the judgment of the English Court of Appeal in R (on the application of Mount Cook Land Ltd) v Westminster CC [2004] 2 P & CR 22. That case arose out of an application by a tenant (R) who held a 999-year lease of a building at Oxford Street (with 910 years still to run) for planning permission to make a number of relatively minor physical external alterations to the building. The application was objected to by the freehold owner (M), who had substantial property interests in the area and would have liked to acquire R’s lease in order to develop the building for its own purposes, on the ground that there were other, alternative planning proposals for the development of the building which were said to be preferable. R’s application was granted by the local council. M’s application for leave (or permission) to apply for judicial review of the local council’s decision was rejected at first instance. M appealed against the refusal of leave (or permission) to the Court of Appeal. Auld LJ (with whom Clarke and Jonathan Parker LJJ agreed) dismissed M’s appeal. On the question of the relevance of the alternative proposals, Auld LJ stated as follows:
41.Second, Mr Yu refers to Zipporah Lisle-Mainwaring v Niall Carroll [2016] EWHC 2462 (Admin), which endorsed and applied the principles set out by Auld LJ in the Mount Cook case. 42.Lastly, Mr Yu refers to Highland Bridgetown Pty Ltd v Western Australian Planning Commission (1997) 17 SR (WA) 198. That case concerned the refusal of the Western Australian Planning Commission to permit the applicant to subdivide a piece of land into (inter alia) 78 residential lots. The land in question adjoined the western boundary of a townsite. The Western Australian Planning Commission decided against the subdivision because the land was outside the townsite, and considered that it should await further planning studies. The Town Planning Appeal Tribunal allowed the applicant’s appeal, stating as follows, at pp 205-208:
43.Mr Litton does not disputes the principles stated by Auld LJ in the Mount Cook case quoted above. He distinguishes Mount Cook and Zipporah on three bases[7]:
44.Mr Litton argues, alternatively, that even if Mount Cook and Zipporah Lisle-Mainwaring were relevant to the present case, there are exceptional circumstances which entitled the Committee to take into account the proposed comprehensive public housing development having regard to the nature and importance of the Government’s plans and the considerable work already undertaken by the relevant departments[8]. 45.In respect of Highland Bridgetown, Mr Litton argues that the approach taken in that case was particular to its own facts, and is inconsistent with the regime in Hong Kong which was described in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 371, at §126, as an “holistic process, involving balancing numerous factors”. Moreover, in the Highland Bridgetown case, there was no prospective use for the site in even an “embryonic” form whereas in the present case there clearly was[9]. 46.I accept as correct in principle that for the purpose of considering the relevance of an alternative use, a distinction may properly be drawn between an application for amendment of an outline zoning plan under s 12A, and an application for permission under s 16. 47.As stated by Hartmann JA in International Trader Ltd v Town Planning Appeal Board [2009] 3 HKLRD 339, at §24, under the Ordinance, the TPB has two principal functions. The first is the systematic creation of draft plans, and the second is the consideration of applications by persons who seek some required permission under a plan, either a draft one or one already approved by the Chief Executive in Council. The consideration of an application for amendment of a plan under s 12A by the TPB forms part of its plan making function (ie the first of its two principal functions). Under s 12A(24), where the TPB accepts an application under s 12A(23), the proposed amendment will be incorporated into a draft plan and the normal plan-making process would follow. As this court recently held in Royal Billion Investment Ltd v The Town Planning Board [2021] HKCFI 1093, at §88, when considering a s 12A application, the focus of the TPB should be on whether the proposed new zoning for a given site is appropriate and acceptable from a planning point of view and desirable in the public interest. The inquiry is a general one, although it must, of course, be guided by the statutory purpose of planning making as stated in s 3(1), namely, “the promotion of the health, safety, convenience and general welfare of the community”. Plainly, an application under s 12A is not objectionable merely because the proposed amendment is inconsistent with the existing planning intention or policy as expressed or found in the outline zoning plan sought to be amended. 48.On the other hand, when considering an application for permission under s 16, the TPB would be performing the second of its two principal functions. In such an application, the TPB is confined by the parameters of the approved outline zoning plan (see International Trader Ltd, at §§33, 38, 42 and 45-51). In this regard, it should be noted that an application under s 16(1) may be made only where the plan itself provides for the grant of permission for any purpose. Although the TPB has a discretion under s 16(4) whether to grant the permission sought, the discretion is not to be exercised based on a general consideration of whether granting the permission would promote the health, safety, convenience and general welfare of the community, these being matters which have already guided the TPB in the preparation of the relevant plan in the first place. The discretion under s 16(4) is a narrower one when compared to the discretion under s 12A since it can only be exercised within the parameters of the relevant plan. The question of what is or is not a relevant matter to take into account when considering an application made pursuant to s 16 depends on the planning intention behind the plan, which is a matter of interpretation and a question of law (see International Trader Ltd, at §55). This having been said, when considering a s 16 application, the question for the TPB is not whether the development proposal put forward by the applicant is the best one, or whether there could be a better or preferable one for the use of the land in question. This is because, as explained by Auld LJ in Mount Cook in the passages quoted above, a person should be entitled to do what he wants with his land provided his use of it is acceptable in planning terms, and in the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites are normally irrelevant in planning terms save in exceptional circumstances. 49.I do not accept Mr Yu’s alternative use argument, for two main reasons:
50.Whether it was open to the Committee to reject the Rezoning Application on the basis referred to in §49(2) above is more properly to be considered as part of Mr Yu’s imminence argument. As a starting point, whether a proposed new zoning in an application to amend a plan is appropriate and acceptable from a planning point of view and desirable in the public interest ought to be determined by reference to the existing state of affairs, including all current and intended permissible uses of the site and its surrounding areas. The question which arises for consideration in this case is how far it is open to the TPB to take into account proposed future uses which are not currently permissible, or plans or policies announced by the Government regarding the future use or possible use of the site and its surrounding areas. Plainly, a line has to be drawn somewhere, beyond which it would fall into the realm of speculation or conjecture. 51.For the purpose of disposing of the imminence argument in this case, it is not necessary for me to decide whether the approach in Highland Bridgetown should be rejected as being inconsistent with the regime in Hong Kong as argued by Mr Litton. This is because even in Highland Bridgetown, the line of relevance/irrelevance, while not precise, seems to be drawn between (i) a “seriously entertained” proposal, or a plan the publication of which is “imminent”, or a scheme which has reached some “concrete form”, and (ii) an “idea” which has not yet been advanced sufficiently, or a proposal which is still in an “embryonic” form. On the facts of this case, I do not consider that the New Study could be said to be a mere “idea” or was still in an “embryonic” form at the time when the Committee made the Decision. The proposal for public housing development in the study area (including the original proposed developments at the SHR, SHR Extension and HPR sites under the 2014 Studies and the Proposed SHR and HPR Development at the Combined Site under the New Study) had been under consideration by the Government since 2014. The New Study was undoubtedly a seriously entertained proposal and had reached some concrete form by the time that the Committee met to consider the Rezoning Application in April 2020. Further, it was represented to the Committee that the New Study was at an advance stage and was scheduled for completion in 2020. It would not be unreasonable to regard the Proposed SHR and HPR Development as being “imminent”. 52.As for the relative merits of public vis-à-vis private housing, and the difference in the time required for the implementation of the two types of housing development, these are matters for the Committee to consider as and when the issues properly arise before it, not the court in an application for judicial review. 53.In my view, the Committee was entitled to regard the long-term development of the general area covering the Application Site under the New Study as a relevant consideration, it being a matter going to the “health, safety, convenience and general welfare of the community”, and give this factor significant weight on the facts of this case in deciding to refuse the Rezoning Application. 54.In all, Ground 1 of judicial review is rejected. (ii) Ground 2 55.Under this ground, Mr Yu submits that it was irrational for the Committee not to have made further enquiries on the following matters[10]:
56.Mr Yu says that the above inquiries ought to have been undertaken by the Committee having regard to the specific context of the present case, namely:
57.The relevant principles regarding the duty on the part of a decision-maker to make relevant inquiries (ie, the Tameside Duty) were set out by Hallett LJ in R (Plantagenet Alliance) v Secretary of State for Justice [2015] 3 All E R 261, at §100 (which the Court of Appeal endorsed in Deng Suet Yan v Hong Kong Housing Authority [2017] 4 HKLRD 73, at §19):
58.As pointed out by this court in Royal Billion, ante, at §§97, 99 and 100:
59.In respect of the matters which Mr Yu argues the Committee ought to have made further inquiries referred to in §55 above, my views are as follows. As for §55(1), the information before the Committee at the Meeting was that the New Study was at an advance stage and was targeted for completion in 2020. The Committee was also informed that upon completion of the New Study, PlanD would proceed to propose amendments to the OZPs based on the findings of the New Study, which would be submitted to the Committee for consideration prior to the gazettal of the draft OZPs for public inspection. As a matter of fact, the Applicant’s representative informed the Committee during the Meeting that the New Study appeared to have fallen well behind schedule[13]. Nevertheless, there was nothing to question the reasonableness of the revised targeted timeframe for the completion of the New Study mentioned in the RNTPC Paper (namely, in 2020). The Committee was entitled to proceed on that basis, and on the further basis that the application to amend the OZPs would follow upon the completion of the New Study. I do not see that the Committee acted unreasonably in not inquiring into whether there was some previous delay in the New Study, or the anticipated or likely time frame for the application to amend the OZPs in such circumstances. 60.In respect of §55(2), it cannot be disputed that permitting the Applicant’s proposed private residential development on the Application Site would be inconsistent with the Government’s Proposed SHR and HPR Development which is intended for public housing only, and in this sense would jeopardise the implementation of the Government’s proposed public housing development on the Combined Site. Further, in answer to the question about the implications on the New Study should the Rezoning Application be approved, PlanD informed the Committee that “should the s.12A application be approved, it would have implication on the timing of the completion of the Study as the layout and technical assessments would need to be reviewed or conducted again”[14]. Hence, approval of the Rezoning Application would also adversely affect the progress of the comprehensive planning of the area. 61.Mr Yu argues that the Government’s proposed public housing development on the Combined Site would not be jeopardized or adversely affected by the Applicant’s Proposed Scheme because the Government could reduce the number of public housing units to be built on the Combined Site, or may be able to achieve the same number of public housing units by constructing the public housing on the remainder of the Combined Site with a higher plot ratio. It needs to be emphasized, however, that whether there should be more public or private housing generally, or in any particular district or area, in Hong Kong, and whether any given area should be developed for public, or exclusively public, housing, are not just planning issues. They concern matters of general policy of which planning considerations only form a part. The Government, not the TPB, still less the court, is primarily responsible for making decisions on how the limited land resources in Hong Kong ought to be best deployed. Unlike the TPB, which is concerned only with planning considerations, the Government is entitled to take into account wider social, economic and political considerations when making land-use decisions. The aforesaid alternatives proposed by the Applicant raise issues beyond mere planning considerations. Even if, for the sake of argument, it is technically feasible and acceptable from a planning point of view to accommodate both public and private housing developments on the Combined Site and the number of public housing units intended to be built can be maintained by an appropriate increase in the plot ratio of the remainder of the Combined Site as suggested by the Applicant, there is still the policy question of whether the additional flats made possible thereby should consist of public or private housing or both. This is a matter for the Government, not the TPB/Committee, to decide. The Committee was aware that since 2014, the Government had been pursuing the option of public housing development only in the area[15]. The Committee also asked questions about “Public/Private Housing Mix” at the Meeting, and PlanD answered in no uncertain term that “the Study area was planned for public housing. A ratio of 70% public housing provision in the nearby area (i.e. Tuen Mun Area 54) and provision of public housing at the Study area were considered appropriate …”[16]. When asked whether development of private housing was considered in the Study, PlanD told the Committee that “the main objective of the New Study was to confirm the technical feasibility of public housing development within the Study area”[17]. 62.It was, in my view, open to the Committee to proceed on the basis that, under the on-going review of the long-term development of the study area (including the Application Site), the Government’s intention was to develop the Combined Site for public housing only (with supporting GIC and infrastructural facilities). For the avoidance of doubt, I should make it clear that this judgment should not be read as meaning that the court is of the view that the Committee is bound to accept the Government’s decision to use the Combined Site for public housing development only should such use be found technically feasible in the New Study. Any application by the Government to rezone the Combined Site in future will have to be considered on its own merits and in accordance with the usual procedures of the TPB. Whether, from the planning point of view, the Combined Site ought to be used for public housing only remains to be determined by the Committee as and when the question properly arises. The question for consideration now is a different one, namely, whether the Committee was under a duty to inquire into the possibility of accommodating the Applicant’s proposed private housing development on the Application Site alongside the Government’s proposed public housing development on the remainder of the Combined Site with either a reduction in the number of public housing units to be built or an increase of the plot ratio of the reminder of the Combined Site in order to maintain the same number of public housing units intended to be built. The answer to this question goes back to the questions of whether (i) the Government’s on-going study on the feasibility of its proposed public housing development in the area was a relevant consideration for the Committee to take into account when determining the Rezoning Application, and (ii) whether the Committee was entitled to come to the conclusion that the Rezoning Application ought not to be the accepted pending the conclusion of the on-going study. In view of my answers to these questions under Ground 1 above, I do not consider that the Committee was under any duty to inquire into the matters referred to in §55(2) above. 63.Finally, in respect of §55(3), as earlier mentioned, the Committee was aware that since 2014, the Government had been pursuing the option of public housing development only in the area, and that the main objective of the New Study was to confirm the technical feasibility of “public housing development within the Study area”. There was no purpose in the Committee asking whether the Government had commissioned any studies at all on the technical feasibility of private housing development within the study area. Even if there were some such studies, the option of private, or partly private and partly public, housing development on the Combined Site was not being pursued by the Government. 64.Mr Yu argues that a technical feasibility of private housing development within the study area was needed for comparing the pros and cons of a private housing development with those of a public housing development so that a fully informed decision could be reached. It should be noted, however, that the Committee did not decide to reject the Rezoning Application because it was thought that public housing development should be preferred to private housing development, nor because private housing development within the Study area was thought to be technically not feasible. Had these been the Committee’s reasons for the Decision, Mr Yu’s argument that the Committee ought to have inquired into whether the Government had undertaken studies on the technical feasibility of private housing development within the Study area would have been on firmer ground. 65.In any event, the clear evidence before the court is that since the completion of the 2014 Studies, the New Study is the only Government study undertaken for the Combined Site, and no other planning and engineering study, or study on private housing development, for the Combined Site has been undertaken by the Government (see §§22 and 42 of the Affidavit of Yuen Shing Yip Kelper). Thus, any such inquiries would not have made any difference to the Committee’s consideration of the Rezoning Application. 66.In all, I do not consider that it was unreasonable, in the public law sense, for the Committee not to pursue the lines of inquiry as suggested by the Applicant. (iii) Ground 3 67.Ground 3 complains that PlanD failed to fairly and adequately presented to the Committee relevant materials in breach of its public law duty. The matters which the Applicant complains PlanD failed to fairly and adequately presented to the Committee are identified in §52.1-52.7 of the Form 86. In his submissions, Mr Yu focuses on 2 matters, namely, (i) the fact that the New Study had been delayed and the reason(s) for the delay, and (ii) the fact that the Government had previously explored the issue of whether the proposed public housing development at the Combined Site could be adjusted to take into account two approved private housing developments with lower plot ratios in October 2014 and March 2015[18]. 68.In respect of (i), Mr Yu argues that (a) the New Study was originally targeted for completion in the first quarter of 2020 as mentioned in §11.2 of RNTPC Paper No A/TM-LTYY/381A (prepared by PlanD for the Committee’s consideration of the 381 Application, “the RNTPC Paper No 381A”), and (b) such information as well as the reason(s) for the delay were relevant because there could be further delay(s) if the reason(s) for the delay remained in which case the New Study would not be “near completion”[19]. Mr Yu says that this might well prompt the Committee to further ask what exactly did “near completion” mean. While maintaining the inadmissibility of evidence relating to post-Decision events, Mr Yu points out that the New Study has still not been completed more than a year since the Committee’s Decision on 24 April 2020. 69.As earlier mentioned, the present application should be determined on the basis of facts and matters before the Committee at the Meeting on 24 April 2020, and subsequent events should be excluded from consideration. The evidence shows that although the New Study was originally targeted to be completed in the first quarter of 2020, by April 2020, the targeted time for completion of the New Study had been revised to 2020. The statement in §4.4 of the RNTPC Paper that the New Study was “scheduled for completion in 2020” was “based on the best understanding of the Government on the progress of the New Study at that time”, and represented the “most up-to-date programme at that point of time” which superseded the previous targeted time for the completion of the New Study[20]. The Committee was also informed that the New Study was then at “an advance stage”[21]. At that point of time, the delay was a matter of months, which should be viewed in the context of an engineering and feasibility study relating to a proposed major public housing development. In the nature of things, the targeted time for completion of such study would be an estimate only instead of a precise one. Further, whatever might have been the cause of the delay, there was no doubt that the Government was seriously pursuing the Proposed SHR and HPR Development. I do not see that the fact of the delay, or the reason(s) for the delay, in the completion of the New Study would have any material bearing on the Committee’s consideration of whether the Rezoning Application should be rejected in view of the Government’s on-going review of the long-term development of the area (including the Application Site), and/or the view taken that, if the Rezoning Application were approved, it would adversely affect the comprehensive planning of the area, and jeopardise the implementation of the proposed public housing development in the area. 70.In respect of (ii), it is clear that since around 2017, the Government had decided, in view of the demand for public housing, to pursue the Proposed SHR and HPR Development on the Combined Site which did not include any element of private housing (see §42 of the Affidavit of Yuen Shing Yip Kepler). There was no purpose in PlanD informing the Committee of the historical fact that the Government had previously explored the possibility of whether the proposed public housing development in the area could be adjusted to take into account two approved private housing developments. Such matter seems to me to be irrelevant to the Committee’s consideration. 71.I have considered the other matters mentioned in §52.1-52.7 of the Form 86, but do not believe that they add anything of substance to this ground of judicial review. None of those other matters seems to me to be relevant to, or would affect, the Committee’s decision to reject the Rezoning Application for Reason (a). 72.In considering this ground of judicial review, the ultimate question to ask is whether the matters which the Applicant alleges were not fairly or adequately presented by PlanD to the Committee resulted, or might result, in the Committee proceeding on a material mistake of fact, or render the process before the Committee unfair, or make the Decision unreasonable in the public law sense. I am not satisfied that this is the case here. Accordingly, Ground 3 of judicial review is rejected. (iv) Ground 4 73.The complaint under Ground 4 that the Committee’s reliance on Reason (a) to reject the Rezoning Application was Wednesbury unreasonable or irrational is based essentially on the same arguments under Ground 1, which I have already dealt with above. In passing, I should mention that the Applicant also argues that the Committee ought, instead of dismissing the Rezoning Application, to have adjourned the application and demanded for more information from PlanD so as to be able to have an informed view on whether, and if so the extent to which, the grant of the application could prejudice a comprehensive planning of the area[22]. In my view, the materials before the Committee were sufficient for it to form a view on whether the Rezoning Application should not be accepted because of the on-going New Study regarding the long-term development of the area (including the Application Site). It was open to the Committee to proceed to determine the Rezoning Application on the basis of the information and materials before it, instead of adjourning the application to seek more information about the progress or implications of the New Study. In short, Ground 4 of judicial review is rejected. REASON (B): TECHNICAL ISSUES 74.Having reached the conclusion that the Committee was entitled to reject the Rezoning Application based on Reason (a), it is strictly unnecessary for me to consider the Applicant’s remaining grounds of judicial review in respect of Reason (b) relating to various technical issues (namely, water supply, archaeological and traffic issues). This is because Reason (a) was a fundamental reason for the Committee’s decision to reject the Rezoning Application. It seems to me to be clear that even if the Committee had accepted the Applicant’s contentions in respect of the technical issues, it would still have rejected the Rezoning Application based on Reason (a). Thus, even if the court were to find that the Committee’s Reason (b) for the Decision could be vitiated on some public law grounds, it should still not exercise its discretion to grant relief in this application and remit the Rezoning Application to the Committee for fresh consideration of the technical issues, because the outcome of the Rezoning Application would inevitably be the same. 75.For the sake of completeness, I shall briefly state my views and conclusions on the remaining grounds of judicial review. (i) The technical issues 76.The outstanding technical issues arising out the Applicant’s Proposed Scheme were set out in the RNTPC Paper, as follows:
77.PlanD set out its consideration and assessment of the aforesaid technical issues in §§11.6 to 11.8 of the RNTPC Paper:
78.PlanD concluded that “the applicant fails to demonstrate that the proposed rezoning would not generate adverse water supplies, archaeological and traffic impacts on the surrounding areas” (see §12.1(b) of the RNTPC Paper). 79.The Applicant’s responses to the outstanding technical issues were, in gist, as follows:
80.The Applicant’s overall position at the Meeting in respect of the outstanding technical issues was that they were “minor” issues and “could be addressed at the detailed design stage”[30]. (ii) Ground 5 81.Ground 5 complains that the Committee wrongfully failed to “consider” the technical aspects of the Rezoning Application in breach of its statutory duty under s 12A(22) and (23), as shown by the fact that the Members of the Committee did not ask any question in relation to the technical issues or discuss those issues at the Meeting, and adopted almost word for word PlanD’s view in §12.1(b) of the RNTPC Paper in Reason (b) of its Decision (see §56.1-56.5 of the Form 86). 82.Mr Yu relies on the judgment of Lisa Wong J in The Trustees of the Church of England in the Diocese of Victoria, Hong Kong v Town Planning Board [2020] HKCFI 501, at §82, to argue that a proper consideration of an application “involves an active intellectual process” directed at the relevant representations or submissions, and the duty of consideration requires “the decision maker … to personally consider them rather than rely on an official’s consideration of them”. In that case, the learned Judge found, at §§71 and 72 of her judgment, that the TPB had failed to exercise an independent judgment or give any or any adequate consideration to the “comments” under s 6B(8). At §84 of her judgment, the Judge concluded that “… the Board should demonstrate with objective evidence that it had given due consideration of the Comments in compliance with s 6B(8). It is especially so where the Comments contained elaborate reasoning, as fairness demands that the Board should demonstrate that it had engaged with such reasoning in its decision”. I do not believe that Lisa Wong J was intending to lay down any general principle of law as to how the TPB may demonstrate that it has given proper consideration of a town planning application before it. Her findings and conclusions in that case seem to me to be very much based on her analysis of the particular facts of the case (see §§66 to 67 of the judgment). It cannot be the case that the TPB must ask questions, or discuss all the issues in an application, at a meeting in order to demonstrate that it has given due consideration of the application. Much depends on the nature of the issues under consideration, the completeness of the analysis in the relevant paper prepared by PlanD, and the applicant’s responses. While there is no doubt that the TPB is under a statutory duty to properly “consider” a rezoning application made under s 12A, it would, I believe, be unrealistic and impose an intolerable burden on the TPB to require it, in every case, to demonstrate by “objective” evidence that it has engaged in “an active intellectual process” in respect of all issues which may arise for its consideration in a town planning application. 83.In this case, the Government departments/officials responsible for water supplies, traffic management and antiquities and monuments raised various concerns arising out of the Applicant’s Proposed Scheme and required the Applicant to address them. It was not suggested by the Applicant that those concerns were groundless or frivolous, or did not have to be addressed at all. It was also clear that the Applicant did not carry out the further assessments as required by the Commissioner for Transport and the Antiquities and Monuments Office. The contrary was not argued[31]. The suggested difficulty of complying with the requirement of the Antiquities and Monuments Office because the Applicant was not the owner of the relevant portion of the Applicant Site was plainly a bad excuse in view of the nature of a desktop study as explained in §9.1.12(b) of the RNTPC Paper. In so far as the water supply issue was concerned, whether the additional demands of 3.27% and 3.38% on the existing fresh and salt water supply systems would only give rise to a “minimal” impact was a matter of judgment for the Committee to consider. In any event, the Applicant’s contention about the limited additional demands for fresh and salt water by the Proposed Scheme did not address WSD’s concern that the existing fresh and salt water supply systems within the relevant supply zone had already been fully committed and did not have spare capacity for the Proposed Scheme, and that existing water infrastructures including service reservoirs and water pipes were not adequate to cater for the Proposed Scheme without affecting existing users. In respect of the Applicant’s suggestion that it was prepared to adjust the population intake year of the Proposed Scheme to tie in with the relevant water supply improvement works, as pointed out in §9.1.11(c) of the RNTPC Paper, the Applicant failed to provide information such as the programme of the water supply improvement works and the proposed postponed population intake year. It may also be noted that, at §14.1 of the Rezoning Application, it was stated that “[the Proposed Scheme] could be implemented and made available to the housing market at a much earlier date, compared to the program of the immediately adjacent H&S[32] public housing development”. The Applicant’s suggestion to delay the population intake of the Proposed Scheme was at odds with its position that the Proposed Scheme was preferable to the Government’s proposed public housing development because it could be implemented within a short timeframe (5 years vis-à-vis 10 years). 84.In the circumstances, I do not consider that there was much room for discussion as to whether the Applicant had failed “to demonstrate that the proposed rezoning would not generate adverse water supplies, archaeological and traffic impacts on the surrounding areas” [emphasis added]. The Applicant’s position at the Meeting that the outstanding technical issues could be addressed at a later stage was effectively an admission that the it had not yet demonstrated that the Proposed Scheme would not generate adverse water supplies, archaeological and traffic impacts in the surrounding areas. 85.In passing, I should mention that this ground of judicial review is not about whether the potential adverse water supplies, archaeological and/or traffic impacts arising from the Proposed Scheme would be “serious”, or were only “minor” issues as contended by the Applicant. In any event, I do not see how the potential water supply problems identified by WSD can reasonably be said to be a minor issue only. (iii) Ground 6 86.Ground 6 complains that the Committee failed to make sufficient inquiries. Mr Yu argues that, in view of WSD’s comment at §§9.1.11(b) and 11.6 of the RNTPC Paper, the Committee should have caused enquiries to be made:
87.As mentioned under Ground 2 above, the issue is one of rationality, or Wednesbury reasonableness.
88.In passing, I should mention that Mr Yu also relies on s 4(1) of the Waterworks Ordinance, Cap 102, which provides that the Director of Water Supplies has a statutory duty to supply water from the waterworks in accordance with the Ordinance. I am unable to see the relevance of s 4(1) of the Waterworks Ordinance in the context of the present discussion, namely, whether the Applicant has failed to demonstrate that its Proposed Scheme would not generate adverse impact on water supply in the surrounding areas. The purpose of the Meeting was to consider the acceptability of the Rezoning Application, under which it was proposed that the Application Site would be used for “high density private residential development” with 1,998 units and a designed population of 5,395. The issue of adequate fresh and salt water supply to the proposed development was plainly an important issue which should be satisfactorily addressed before it would be right for the Committee to approve the Rezoning Application. This is an issue to be resolved at the planning stage, not after the proposed private housing development has been constructed. On the other hand, the duty of the Director of Water Supplies to supply water from the waterworks under the Waterworks Ordinance would, it seems to me, only arise after the Rezoning Application has been approved and the Proposed Scheme materialised. (iv) Ground 7 89.Ground 7 complains that the Committee failed to adequately consider, and/or make an informed decision on, the Rezoning Application because relevant materials were not fairly and adequately presented by PlanD. In particular, the Applicant contends that PlanD failed to inform the Committee:
90.In respect of the first matter mentioned in §89(1) above, I accept Mr Litton’s submission that it does not add anything to the Applicant’s earlier grounds (in particular Ground 6), and do not see that PlanD was under a duty to inform the Committee about the source(s) of water supply for the Government’s proposed public housing development on the Combined Site (including the Application Site). 91.In respect of the second matter mentioned in §89(2) above, the 381 Application was an altogether different development proposal from the Proposed Scheme. The 381 Application concerned a proposed private residential development comprising 96 flats with a designed population of 259[34], while the Proposed Scheme comprised 1,998 units with a design population of 5,395. The demands on water supply under the two proposals were simply not comparable. In the circumstances, I do not consider that PlanD was under any duty to inform the Committee of the fact that WSD had no objection to the 381 Application from the water supply point of view. That matter was irrelevant to the question of whether the Applicant’s Proposed Scheme under the Rezoning Application would give rise to adverse water supply impact in the surrounding area. 92.The Applicant also complains that PlanD did not explain to the Committee various other matters referred to in §§59.1 - 59.3 of the Form 86. I do not see that the matters referred to in §§59.1 - 59.2 of the Form 86 were relevant to Committee’s consideration of whether the Applicant had demonstrated that the Proposed Scheme would not result in adverse water supplies, archaeological and traffic impacts in the surrounding areas. In an application for judicial review of a rezoning decision made by the TPB/Committee, it is not the court’s function to examine in microscopic detail what mattes were or were not brought to its attention by PlanD. The absence of reference by PlanD to the matters referred to by the Applicant did not lead to the Decision being irrational/Wednesbury unreasonable, or the process procedurally unfair. As for the suggestion that the outstanding technical issues were “minor” and could be addressed at the detailed design stage, that was a matter for the Committee to assess. Anyhow, as earlier mentioned, the question of water supply could not, on any view of the matter, be regarded as a minor technical issue. (v) Ground 8 93.Ground 8 complains that the rejection of the Rezoning Application was Wednesbury unreasonable or irrational. This ground largely overlaps with Grounds 5, 6 and 7, which have already been dealt with above. In so far as it is suggested that the Committee ought to have adjourned the Meeting to a later date to allow the Applicant to deal with the technical issues (see §60(a) of the Form 86), the Applicant had been sufficiently informed of the concerns raised by the Government departments in respect of the various outstanding technical issues prior to the Meeting. The Applicant chose to adopt the stance that they could be dealt with later at the detailed design stage. I do not consider the Committee’s decision to proceed with the determination of the Rezoning Application on the basis of the facts and materials before it at the Meeting to be Wednesbury unreasonable or procedurally unfair. In so far as it is suggested that the Committee failed to attach adequate weight on various matters referred to in §§61.2 and 61.2 of the Form 86, such complaint is effectively an impermissible merits challenge. (vi) Ground 9 94.Lastly, Ground 9 complains that the Committee’s reliance on a remark by a Member of the Committee was a procedural irregularity resulting in unfairness to the Applicant. It appears from §28 of the Confirmed Minutes that during the deliberation session of the Meeting, a Member of the Committee expressed the view that “from land use planning point of view, the proposed development at the Site should take account of its surrounding developments in a comprehensive manner. That aspect had not been properly addressed in the subject application”. The meaning of this remark is not entirely clear. The Applicant contends that it means that “the Applicant would also have to take into account the surrounding areas including developments thereon in a comprehensive manner” (ie the existing developments) in order to demonstrate that “the proposed rezoning would not generate adverse water supplies, archaeological and traffic impacts on the surrounding areas”, and argues that this point was not raised in the RNTPC Paper or in the presentation by PlanD at the Meeting and the Applicant was not given any opportunity to address it before the Decision was made. Thus there was a procedural irregularity resulting in unfairness to the Applicant (see §§63.2 and 64 of the Form 86). I do not accept this argument. The said remark of the Member did not feature in either of the two reasons given by the Committee for the Decision. The Applicant says that it is “related” to Reason (b) (see §63.2 of the Form 18). However, as earlier noted, Reason (b) was adopted from §12.1(b) of the RNTPC Paper. There cannot, in my view, be any real doubt that Reason (b), in its proper context, ought to be read as referring to the three technical issues identified in §§11.6 to 11.8 of the RNTPC Paper. I do not believe that the Applicant could be under any misapprehension about this matter. Ground 9 of judicial review is, in my view, purely opportunistic, and has no merit. 95.In all, Grounds 5 to 9 are rejected. DISPOSITION 96.Leave to apply for judicial review of the Decision is granted on the basis that the application for judicial review is reasonably arguable, but the substantive application for judicial review is refused upon full consideration of the merits. The Applicant shall pay the costs of the TPB, to be taxed if not agreed, with certificate for 2 counsel. For the avoidance of doubt, this costs order is not an order nisi, but is a final order.
Mr Benjamin Yu, SC & Mr Anthony Ismail, instructed by Mayer Brown, for the Applicant Mr John Litton, QC & Mr Anthony Chan, instructed by Department of Justice, for the Putative Respondent [1] See §4.4 of the RNTPC Paper No Y/TM-LTYY/8A. [2] See §6 of Skeleton Submissions on behalf of the Town Planning Board dated 2 June 2021. [3] The appeal was eventually heard on 2-4 September and 14 October 2020, and was allowed on 15 March 2021. [4] The 381 Application was approved by the Committee on 29 May 2020. [5] See §§21-25 of the Applicant’s Skeleton Submissions dated 18 May 2021. [6] See §§26-32 of the Applicant’s Skeleton Submissions. [7] See §§20-22 of Skeleton Submissions on behalf of the Town Planning Board. [8] See §23 of Skeleton Submissions on behalf of the Town Planning Board. [9] See §25 of Skeleton Submissions on behalf of the Town Planning Board. [10] See §37 of the Applicant’s Skeleton Submissions. [11] See §§18(f) and 19(f) of the Confirmed Minutes. [12] See §36 of the Applicant’s Skeleton Submissions. [13] See p 14 of the transcript of the Audio Recording of the Meeting (Exhibit “YHLG-2”). [14] See §§18(g) and 19(f) of the Confirmed Minutes. [15] See §19(b) of the Confirmed Minutes. [16] See §14(c) of the Confirmed Minutes. [17] See §§18(f) and 19(f) of the Confirmed Minutes. [18] See §§41-42 of the Applicant’s Skeleton Submissions. [19] During the deliberation session of the meeting on 24 April 2020, some Members of the Committee stated that the New Study was “near completion” (see §27(a) of the Confirmed Minutes). [20] See §40 of the Affidavit of Yuen Shing Yip Kepler. [21] See §11.4 of the RNTPC Paper. [22] See §55 of the Form 86. [23] Archaeological Impact Assessment. [24] Being a reference to the Further Information submitted by the Applicant on 3 April 2020. [25] Water Supply Impact Assessment. [26] See p 36 of the transcript of the Audio Recording of the Meeting. [27] See §2(l) of the RNTPC Paper. [28] See p 37 of the transcript of the Audio Recording of the Meeting. [29] See Further Information submitted on 4 February 2020 (note that the covering letter was mistakenly dated 4 February 2019). [30] See §12(j) of the Confirmed Minutes. [31] See pp 35-36 of the transcript of the Audio Recording of the Meeting. [32] Hong Po Road and San Hing Road. [33] See §71 of the Affirmation of Lung Siu Yuk. [34] See §1.4 of RNTPC Paper No 381A. | ||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case