Read the full judgment text of FAMV 71/2024 on BabelCite. This Court of Final Appeal judgment was delivered on 19 August 2024 before Mr Justice Ribeiro PJ, Mr Justice Fok PJ and Mr Justice Lam PJ.
Administrative law – judicial review – leave to appeal – Director of Lands – land exchange application – Small House Policy – village environs – amenability to judicial review – irrationality – burden of proof – duty of candour – evidential threshold for exceptions to administrative policy – legitimate expectation – Town Planning Ordinance (Cap 131) s.13 – Director's refusal of land exchange application for land in Fanling Area 48 within village environs boundaries to preserve land for small house development under the Small House Policy – judicial review successful before Wilson Chan J – Court of Appeal reversed – applicant sought leave to appeal to Court of Final Appeal on five questions of great general or public importance – whether the application of the Policy is inherently illogical, irrational and perverse, given the restriction on future development of the land despite pre-existing use being permitted – whether to grant leave on amenability to judicial review of decisions of the Director of Lands in land exchange or lease modification applications – leave granted on reformulated question of general importance regarding the approach to such decisions – whether correct approach to inter-relationship between burden of proof and duty of candour in judicial review – leave refused as question was fact-specific and did not raise a point of general importance – whether evidential threshold for proving existence and operation of exceptions to administrative policy – leave refused as the Court of Appeal had found the Director duly considered the applicant's representations and genuinely exercised his discretion – whether s.13 of the Town Planning Ordinance (Cap 131) zoning gives rise to legitimate expectation barring inconsistent land use change under government lease – leave refused as the Notes to the Approved Fanling/Sheung Shui Outline Zoning Plan No. S/FSS/24 expressly require conformity with other legislation and Government lease conditions, and International Trader Ltd v Town Planning Appeal Board concerned s.16 TPO applications, not lease modifications – leave granted on reformulated Questions 1 and 3(2) – leave refused on Questions 2, 4, 5 and the 'or otherwise' limb – appeal listed for hearing on 1 April 2025.
Legal issues: Amenability to judicial review of Director of Lands decisions in land exchange/lease modification applications · Inter-relationship between burden of proof and duty of candour in judicial review · Whether the Policy is inherently illogical, irrational and perverse · Evidential threshold for proving existence and operation of exceptions to an administrative policy · Whether TPO s.13 zoning gives rise to legitimate expectation barring inconsistent land use change
Outcome: Leave to appeal granted on two reformulated questions (reformulated Question 1 and reformulated Question 3(2)); leave refused on Questions 2, 4, 5, and on the 'or otherwise' limb.
Cited by 15 cases · Cites 1 case