Lee Keng Wai and Another v. Town Planning Appeal Board

HCAL 393/2024

[2025] HKCFI 582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 393 OF 2024

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J U D G M E N T

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A.  Introduction

1.The Applicants are brothers and indigenous villagers with the entitlement to apply for permission to erect a ‘New Territories Exempted House’(“NTEH”). Having found and purchased two adjoining lots of land, the Applicants applied for new planning permissions to erect the NTEHs. However, the Town Planning Board (“TPB”) rejected that application, and that decision was upheld by the decision (“Decision”) of the Town Planning Appeals Board (“TPAB”).

2.In these proceedings, the Applicants seek leave to apply for judicial review so as to challenge the Decision, and ultimately to seek orders quashing the Decision and to direct the TPAB to allow the appeals from the TPB, alternatively to reconsider those appeals.

3.I fixed a rolled-up hearing on a date subsequently re-fixed to 18 November 2024 at the request of the parties. At that hearing, the Applicants were represented by Ms Audrey Eu SC leading Mr Andrew Tse of Counsel, and the TPB (as interested party) was represented by Mr Stanley Ng of Counsel. As would be expected, the TPAB took no part in the proceedings, and was excused from attendance.

4.At the end of the hearing, I reserved my decision to be handed down later. This is my Judgment.

B.  Background

5.The Applicants and their Father are indigenous villagers of Ping Chau Chau Mei Village, Tung Ping Chau, an island located in Sai Kung North Heung. By virtue of their status, and the fact that they are males, each Applicant is entitled to apply for the permission to erect, for once in a lifetime, a NTEH on a suitable site within the ‘village environs’ (“VE”) of a recognised village located in Sai Kung North Heung. The VE refers to an area encompassed by a 300-foot radius radiating from the edge of the last village type house built in a recognised village before the formalisation of the Small House Policy on 1 December 1972.

6.Tung Ping Chau is an island in Mirs Bay, off the coast of Sai Kung but closer to Dapeng Peninsula, Guangdong, Mainland China. The island is a protected marine park and part of the Hong Kong UNESCO Global Geopark. Amongst other things, owing to the island’s lack of infrastructure, geographical location, and its relatively small size, it was near impossible to obtain permission to build a NTEH on it.

7.This forced the Applicants to look elsewhere for suitable land within Sai Kung North Heung, if they were to exercise their right to build an NTEH. They asked their Father to look for such land. In around 2010, the Father met a certain Mr Lee, and asked him whether there was available land for the Applicants’ purposes. In or around 2016 to 2017, Mr Lee introduced the Father and the Applicants to two lots of land (together, “Lots”) owned by two other people (“Original Owners”).

8.The Original Owners had already obtained planning permissions granted by the TPB in 2015 for the erection of NTEHs on the Lots (“Planning Permissions”). The Planning Permissions were, however, to run only until 10 April 2019. But, for reasons not touching upon this case, the Original Owners withdrew their applications made to the Lands Department (“LandsD”) to build NTEHs on the Lots. They wished to sell them instead.

9.Although the evidence does not indicate who assured the Applicants, they were apparently told that a change of ownership would not affect the Planning Permissions. As such, they went ahead and acquired both Lots for HK$6 million and became its new owners on 28 April 2017.

10.The Lots (respectively “Lot A” and “Lot B”) are neighbouring pieces of land. Lot A is around 77.7 m², whilst Lot B is around 136.5 m². They were old schedule lots held under a Block Government Lease, wherein it was covenanted that they were to be used for agricultural purposes. Together the Lots are partly within and partly touching the border of Che Ha in Sham Sz Heung, Sai Kung North Heung. The main village area can be termed the “V-zone”. The V-zone of Che Ha is located within the VE that surrounds the village. To put it another way, the VE is an outer layer that encircles the V-zone.

11.The Lots are entirely within the VE of Che Ha, with 11% of Lot B falling within Che Ha’s V-zone.

12.The Lots are therefore suitable for the erection of an NTEH under the Small House Policy. If built, that would not affect any local tracks or other infrastructure. Indeed, the Lots are right next to a vehicular track leading to Sai Sha Road. Therefore, there would have been no issue of disrupting the orderly development of Che Ha. Instead, the NTEHs would have been compatible with the surrounding area and environment.

13.The Lots fall within the Shap Sz Heung Outline Zoning Plan (“OZP”). Lot A falls entirely within an area zoned ‘Comprehensive Development Area’ (“CDA”) under the OZP. This zone is suitable for residential, commercial and recreational uses for development in accordance with a ‘Master Lay Out Plan’ (“MLP”) approved by the TPB. Lot B had 89% of its surface area falling within the CDA and 11% falling within the area zoned ‘Village Type Development, i.e. the V-zone of Che Ha.

14.In the OZP’s notes, “House (NTEH only)” was a Column 1 use that is always permitted within the V-zone. However, in respect of the CDA zone, a “House (other than rebuilding of NTEH or replacement of existing domestic buildings by NTEH permitted under the covering Notes)” is a Column 2 use for which planning permission from the TPB is required.

15.Though both Lots A and B were predominately situated within the CDA, the Lots were nonetheless outside the scope of the MLPs for the CDA zone. The latest MLP application approved in 2019 involved a proposed development of nearly fifty multi-storey residential towers with commercial and club facilities. The Lots were located at the fringe of this development and were annotated as “land to be secured by the applicant” in the MLP. Therefore, any NTEHs built on the Lots would not frustrate the planning intentions of the OZP, CDA and relevant MLPs.

16.The Applicants acquired the Lots for the sole purpose of building one NTEH on each of the Lots. To do so, the Applicants were intending to exercise their rights as indigenous villagers under the Small House Policy (“Ding Rights”).

17.Ding Rights and the Small House Policy were briefly described by the Court of Final Appeal in Kwok Cheuk Kin v Director of Lands (No. 2) (2024) 24 HKCFAR 349 at §3 as follows:

The beneficiaries of the [Small House Policy] are “indigenous villagers” of the New Territories. This means adult males descended through the male line from a resident in 1898 of a recognised village. Recognised villages are villages included in a list approved by the Director of Lands. There are currently 642 recognised villages. The Policy relates to land in the village or its immediate environs which are not affected by any impending development or future planning or development proposals. Its object is to enable an eligible villager to build, once in his lifetime, a small house in his own village for his own occupation. […] Over the years, benefits under the Policy have come to be known as ‘Ding rights’.

18.There is no dispute that the Applicants comply with the eligibility criteria under the Small House Policy.

19.As already mentioned, the Applicants were unable to exercise their Ding Rights in Tung Ping Chau, thus forcing them to look elsewhere within Sai Kung North Heung. Despite being asked to look for suitable land in 2010, it still took Mr Lee 6 to 7 years of searching before he came across the Lots. In addition to Mr Lee, the Applicants engaged estate agents specialising in the New Territories, none of whom were able to locate suitable land. The Applicants also ran adverts on newspapers on three occasions from 28 to 30 October 2021, to no avail. In October 2021, solicitors were also instructed to write to various landowners of Che Ha Village (“Che Ha”), where the Lots are located, to ascertain whether any one of them would be willing to sell his own land to the Applicants. None were willing. After at least half a decade of searching, the Lots were the only available pieces of land that the Applicants were able to find.

20.The Father, on behalf of the Applicants, requested the help of a Mr Hung for the necessary applications to build the proposed NTEH. Mr Hung was fit for the task for two reasons. First, he was a retired civil servant who had worked at the LandsD prior to retirement. Second, and more importantly to the Applicants, he was instrumental in obtaining the Planning Permissions for the Original Owners in 2015.

21.On around 10 May 2017 – within two weeks after the Applicants became owners of the Lots – Mr Hung, on behalf of the Applicants, submitted applications to the District Lands Office in Tai Po, which sought building licenses for the construction of an NTEH over the Lots. In January 2019, the Applicants made enquiries with LandsD over their progress. During the period, LandsD had sought various pieces of information from the Applicants, such as declarations verifying their status as indigenous villagers. It suffices to say that the Applicants complied with each query made. In spite of that, no approval for the applications was received. The Applicants were informed that the processing could not be completed before the expiration of the Planning Permissions on 10 April 2019. The Applicants would thus have to seek an extension of the Planning Permissions.

22.After their January 2019 enquiries, the Applicants believed that any application for extension should be made 6 weeks before the date of expiration. Despite this, it seems that the deadline for extending the Planning Permissions fell on 27 March 2019. Mr Hung promptly applied for extending both Planning Permissions on 23 January 2019, more than two months before the deadline. As I understand, that was intended to allow more time for a decision to be made before the expiration of the Planning Permissions.

23.About a week later, the TPB informed Mr Hung that the extension applications were rejected because there was a change of ownership since the Planning Permissions were first granted. He was also advised to submit fresh applications under section 16 of the Town Planning Ordinance Cap 131 (“TPO”). This went against Mr Hung’s understanding of the process based on his previous experience as a LandsD civil servant. He nonetheless went ahead and submitted fresh applications.

24.The fresh applications were only made some time later on 20 February 2019, given that the Applicants were abroad. These applications were considered by the Rural and New Town Planning Committee (“RNTPC”) and the TPB.

25.Meanwhile, on 28 March 2019, the TPB pointed Mr Hung to the possibility of proceeding with the extension applications if the Applicants authorised the Original Owners to act on their behalf in those applications. The TPB would rectify those applications if the authorisation was made before 10 April 2019.

26.However, due to the fact that the Applicants and the Original Owners were all outside Hong Kong during this period, it was impossible to obtain the necessary authorisation within the time permitted by the TPB. This forced the Applicants to continue with their applications, whilst expecting that they would be approved since they were in essence applications to extend or renew the Planning Permissions, albeit as “fresh” permissions.

27.On 3 May 2019, after having considered them the RNTPC rejected the Applications. The TPB then reviewed and rejected them on 23 August 2019. The TPB shared the same reasons as the RNTPC verbatim, namely:

(a)  the proposed Small House Development does not comply with the Interim Criteria for Consideration of Application for New Territories Exempted House/Small House in New Territories in that there is no general shortage of land in meeting the demand for Small House development in the [V-zone] of Che Ha; and

(b)  land is still available within the [V-zone] of Che Ha which is primarily intended for Small House development. It is considered more appropriate to concentrate the proposed Small House development within the [V-zone] for more orderly development pattern, efficient use of land and provision of infrastructure and services.

C.  The Decision

28.The Applicants appealed to the TPAB. Although their notice of appeal contained numerous grounds, the Applicants in their written opening submissions raised or focused on – and the TPAB therefore addressed – four grounds of appeal, being:

(1)  The TPB’s decision was inconsistent with the Planning Permissions

(2)  The TPB erred in finding that there was no shortage of land within the V-zone of Che Ha

(3)  The TPB erred in finding that the proposed NTEH would be contrary to orderly development, efficient use of land and provision of infrastructure and services

(4)  The TPB erred by failing to sufficiently consider the sympathetic considerations applicable to the Applicants

29.These four grounds did not include a constitutional challenge originally canvassed in the notice of appeal. I shall be returning to this point later on, as it is a point of contention between the parties whether the Applicants ought to be allowed to raise it in the present proceedings.

30.In their written Decision on 6 December 2023, the TPAB rejected all four grounds.

31.The TPAB dealt with the second and third grounds first. As to the second ground, the Board was unanimous in holding that there was no general shortage of land in the V-zone of Che Ha. As to the third ground, the Board also unanimously held that the TPB was not required to establish that building NTEHs would be contrary to orderly development pattern, efficient use of land, and provision of infrastructure and services.

32.As to the first and fourth grounds, the TPAB unanimously held that the TPB was wrong in not considering the Planning Permissions when it rejected the Applications, primarily because there was no change of circumstances between the initial grant of the permissions and the applications. However, a majority of 3 members against 2 were of the view that the permissions should not have been given in the first place. The majority saw the general availability of land in the V-zone as “a most important” consideration, and without a general shortage of land there was little to justify the TPB’s decision to grant the Planning Permissions back in 2015. The minority, meanwhile, saw otherwise. To them, given that there was no change in circumstances, including the fact that all relevant rules and criteria were also unchanged, the applications ought to be granted in order to preserve consistency. This would have had the added benefit of preserving public confidence in Hong Kong’s town planning system. Because, by virtue of the majority, the fourth ground failed, so did the first.

D.  The Grounds of Review

33.In the Form 86, there are 5 grounds of review identified by reference to the following headings:

(1)  Ground 1: Illegality – Failure to Adhere to Published Policy;

(2)  Ground 2: Failure to take into account Material Considerations;

(3)  Ground 3: Legitimate Expectation;

(4)  Ground 4: Unreasonableness/Irrationality; and

(5)  Ground 5: Breach of Basic Law Articles 6, 40 and 105.

34.I can deal with each of them in turn, as necessary, but it is perhaps helpful first to look at the relevant policy.

E.  The Policy

35.As is evident from what was said in the impugned Decision itself, the material applicable policy was the same when the TPB granted the Planning Permissions in 2015 and when the TPB rejected the applications for “fresh” planning permission in 2019 (and also still at the time of the Decision in 2023).

36.The policy has two components: (1) the ‘Interim Criteria for Consideration of Application for NTEH/SH in New Territories’ (“Interim Criteria”), and (2) the Cautious Approach.

37.The Interim Criteria – which featured a significant, if not dominant, role in the decisions of the RNTPC, TPB and TPAB – was drawn up by the TPB for the purpose of consistency in approach. First promulgated in 2000, it was subsequently amended several times. The 2007 version is the applicable version for present purposes.

38.The Interim Criteria is divided into two parts, entitled:

(1)  ‘(A) Explanatory Notes on NTEH/Small House Development Exempted from Planning Application’, and

(2)  ‘(B) Assessment Criteria for Planning Application’ (“Part B”).

39.Part B materially provides (“Criterion (a)”, “Criterion (d)”, etc):

(a)  sympathetic consideration may be given if not less than 50% of the proposed NTEH/ Small House footprint falls within the [VE] of a recognized village and there is a general shortage of land in meeting the demand for Small House development in the ‘Village Type Development” [V-zone] of the village;

…

(d)  application for NTEH/ Small House with previous planning permission lapsed will be considered on its own merits. In general, proposed development which is not in line with the criteria would normally not be allowed. However, sympathetic consideration may be given if there are specific circumstances to justify the case, such as the site is an infill site among existing NTEHs/ Small Houses, the processing of the Small House grant is already at an advance stage;

…

(f)  the proposed development should not frustrate the planning intention of the particular zone in which the application site is located;

(g)  the proposed development should be compatible in terms of land use, scale, design and layout, with the surrounding area/development;

(h)  the proposed development should not encroach onto the planned road network and should not cause adverse traffic, environmental, landscape, drainage, sewerage and geotechnical impacts on the surrounding areas. Any such potential impacts should be mitigated to the satisfaction of relevant Government departments;

…

(j)  the provision of fire service installations and emergency vehicular access, if required, should be appropriate with the scale of the development and in compliance with relevant standards; and

(k)  all other statutory or non-statutory requirements of relevant Government departments must be met. Depending on the specific land use zoning of the application site, other Town Planning Board guidelines should be observed, as appropriate.

40.It seems that the Interim Criteria have not yet been considered by the Courts, but the effects of the Interim Criteria have been considered in various TPAB decisions. Mr Chan had the benefit of citing one of his own decisions sitting on the TPAB, in Christopher Yau Garr Leung v TPB (unreported, Town Planning Appeal No 2 of 2004, Mr Edward Chan SC, 6 January 2005), and I can also refer to Lam Justin Chun Lan v TPB (unreported, Town Planning Appeal No 7 of 2014, Mr Chan Chi Hung SC, 29 June 2016). With the benefit of those decisions, I think the following propositions can be set out:

(1)  The Interim Criteria were formulated and adopted by the TPB, having due regard to all relevant planning considerations and having balanced all interests concerned.

(2)  Part of their purpose was for the Interim Criteria to promote a measure of consistency in the grant or refusal of permission for NTEHs or Small Houses.

(3)  Therefore, weight should be given to the Interim Criteria in the assessment of planning applications, and on appeals to the TPAB.

(4)  Indeed, planning permission applicants would generally have a legitimate expectation that their applications would be considered in light of the Interim Criteria.

(5)  But, because they have no statutory basis, the Interim Criteria can only be of weight in so far as they do not conflict with the relevant statutory provisions – such as the TPO or OZP – and any stated planning intentions for the particular zoning.

(6)  Further, as policy guidelines, the Interim Criteria should be considered and construed with common sense and flexibility.

(7)  Arguments as to the precise interpretation or ambit of particular words, phrases, or paragraphs in the Interim criteria are not helpful.

(8)  Rather, there should be the adoption of a broad common sense understanding of the Interim Criteria as a whole, in their proper context.

41.At a meeting on 14 August 2015, the TPB discussed the application of the Interim Criteria, and agreed to adopt an approach more favourable to applicants, i.e. the Cautious Approach, which was recorded as being in the following terms (“Observation (a)”, “Observation (b)” etc):

While adopting the Interim Criteria, the Board/Committee has been more cautious in approving applications for Small House development in recent years. Some general observations are summarised as follows:

(a)  in considering if there was a general shortage of land in meeting the demand for Small House development, more waiting had been put on the number of outstanding Small House applications provided by the Lands Department;

(b)  factors such as the implementation progress of the approved Small House applications, location pattern of previously granted planning permissions for Small House development, and the amount of land still available within the “Village Type Development” [i.e. the V-zone] had duly been taken into account;

(c)  due consideration would be given to Small House applications located close to the existing village clusters for an orderly development pattern, as well as for more efficient use of land and provision of infrastructures and services;

(d)  due consideration would be given to sites with previous planning approvals for Small House development; and

(e)  all assessment criteria in the Interim Criteria were still relevant criteria in the consideration of Small House applications.

42.As the record identifies, the Cautious Approach had been adopted by the TPB for a number of years prior to its meeting in 2015. Both the Interim Criteria and the Cautious Approach are published and available to the general public.

F.  Ground 1: Illegality – Failure to Adhere to Policy

Ground 2: Failure to take into account Material Consideration

43.These two Grounds can be taken together, as they were argued together on behalf of the Applicants. The allegation of the failure to adhere to the published policy is based upon the allegation that the TPAB failed to take into account material considerations under the published policy.

44.It is trite that departmental policies are ordinarily formulated to promote consistency of approach, and indeed the particular policy material to this case was obviously formulated for that purpose. It is also trite that where there is such a policy, it should generally be followed, and departed from only for good reason. This is related to the doctrine of legitimate expectation, but is free-standing; it is a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public in accordance with the practice which has been identified as the way in which that public body proposes to act in the given area.

45.Ms Eu submitted that, in dismissing the appeals, the TPAB failed properly to apply the Interim Criteria and/or the Cautious Approach because the TPAB applied Criterion (a) to the exclusion of all other criteria, which the TPAB in essence simply failed to consider at all.

46.Ms Eu pointed in particular to:

(1)  §100 of the Decision, where the majority of the TPAB stated that “Criterion (a) is a most important consideration. Since there is no general shortage of land in Che Ha, they consider that there is insufficient justification for planning permission to be granted for NTEHs to be built on Lots A and B”; and

(2)  §86 of the Decision, where it was stated that “where there is no general shortage of land in the V zone of the village to meet the demand of SH development, it is TPB’s policy to require the SH to be built in the V zone”, which is a reference back to Criterion (a) of Part B.

47.Ms Eu therefore submitted that the effect of the majority decision is that Criterion (a) a has become the overriding condition, or condition precedent. In other words, even if an application were to tick all the boxes and fulfil all the other Criteria, it would fail for failing Criterion (a).

48.Ms Eu also submitted that, whilst Criteria (d) and (f) were referenced at §26 of the Decision, what was stated at §§86 and 100 shows that the TPAB has not taken those Criteria into consideration, when both are in the Applicants’ favour. Indeed, the TPAB (she said) has looked at this from the reverse, holding that the TPB was not required to establish that the planning permission applications were contrary to the “orderly development pattern, efficient use of land etc”, in effect acknowledging that those applications were in accordance with such planning intention.

49.Ms Eu also said that the failure to consider the Cautious Approach led to the TPAB’s failure to give due consideration, under Observation (d), to the Planning Permissions. Hence, the failure to consider the Cautious Approach has led the TPAB into error in that parts of the Decision are contrary to the Cautious Approach.

50.In her oral submissions, supported by her speaking notes, Ms Eu sought to emphasise that this was a matter of incorrect interpretation of the Policy, not merely a matter of the weight to be given to the elements potentially applicable for consideration under the Policy. She emphasised that all Criteria must be looked at in the round, with an overall balance, and the Interim Criteria document does not say that anyone criterion is all-important, overriding, or a condition precedent. Hence, she submitted that the TPAB is not entitled to view Criterion (a) as the overriding factor such that failure to meet this criterion alone does not just mean that no sympathetic consideration is given on this aspect, but that it doomed the application to failure irrespective of whether it meets all other criteria.

51.Ms Eu also identified the following factors which ought to have afforded the Applicants sympathetic consideration:

(1)  the Applicants’ efforts in searching for and acquiring suitable land;

(2)  the Lots being within the VE of Che Ha village: see Observation (c);

(3)  the Applicants having paid HK$6 million for the Lot;

(4)  the chronology of the application process, including that the Applicants would have proceeded to authorise the Original Owners to apply for extension of the Planning Missions, had they known of that possibility earlier;

(5)  the applications were at an advanced stage;

(6)  Criteria (f) to (k) were satisfied; and

(7)  there were the previous Planning Permissions over the Lots: see Observation (d).

52.That list seems to me to identify a complaint about the weight given, rather than necessarily pointing to an incorrect interpretation of the policy. But I think Ms Eu’s submission was that because these matters were not properly weighed at all, and the focus instead was on Criterion (a), the policy was in reality simply misinterpreted.

53.I think it fair to say that, whilst the Interim Criteria must be looked at as a whole, the key rationale underpinning the policy is evident in Criterion (a). It seeks to concentrate small houses in the V-zone of a recognised village, in order to ensure orderly development in the vicinity. The remaining criteria also reflect that in various ways, some more specifically than others.

54.Further, Criterion (a) has two inter-dependant limbs. If one limb is not satisfied, then the sympathetic consideration may not be given. But nevertheless, the other Criteria, if applicable, would permit the TPB/TPAB to give sympathetic consideration if that is thought fit to the circumstances. I also accept that the use of some apparently mandatory language in the Cautious Approach – see Observations (c) and (d) – identify matters which must be taken into account in the assessment process. But none of these matters go so far as to suggest, or to dictate, the amount of weight that should be placed on any one factor in the particular circumstances, or indeed whether any weight at all should be given to any of them. Those are weighing matters within the discretion of the decision-maker.

55.Mr Ng submitted that it is clear from the Decision that the TPAB was clearly cognisant of the various factors relied upon by the Applicants. Hence, he said that the current complaint is essentially really a complaint about the weight which was accorded to each of the factors by the TPAB, as well as an argument that the TPAB should have dealt expressly with every point raised in argument by the Applicants.

56.I think a fair reading of the Decision as a whole identifies that Mr Ng is correct. For example:

(1)  At §85 of the Decision, the TPAB considered the close proximity of the Lots to the V-zone of Che Ha, specifically that the Lots bordered small houses already there.

(2)  At §§92 and 95, the TPAB correctly held that previous Planning Permissions were to be considered in order to preserve consistency, barring a change in circumstances.

(3)  However, at §100 the TPAB disagreed with the TPB’s grant of the Planning Permissions in 2015, for the same reasons it upheld that TPB’s rejection of the Applications in 2019. The TPAB did not go so far as to replace its opinion with that of the TPB’s in respect of the 2015 grant, but instead placed little to no weight upon it.

(4)  At §97, the TPAB explicitly pointed to §§8 to 17 of the Decision, paragraphs that recounted (a) the grant of the Planning Permissions; (b) the fact that they were granted despite Criterion (a) not being satisfied; (c) the events leading up to the Lots’ acquisition; and (d) the events leading up to the lodging and rejection of the applications.

(5)  At §98, the TPAB recounted factors submitted by the Applicants which they argued warranted sympathetic considerations: (a) their efforts in seeking suitable land in Che Ha; (b) that the Lots were entirely within Che Ha’s VE; (c) that most of the Lots’ surface area was located in the CDA; (d) that the Lots were not included in the land grant approved for development under the CDA, and therefore would not frustrate it; and (e) that the proposed NTEH was compatible with the surrounding area and environment.

57.These paragraphs more or less reflect the factors which Ms Eu submitted were not taken into account. Perhaps the one exception is that the suggestion that the TPAB did not have proper regard to the fact that the Applicants’ NTEH applications to the District Lands Office were at an advanced stage. Ms Eu submitted that the TPAB expressly declined to decide whether the applications were in such a stage, and as a result ignored an express factor in Criterion (d), which stipulates that this factor is an example that may justify sympathetic consideration. Mr Ng on the other hand submitted that (1) the Applicants never made such a submission to the TPAB, and even if they did (2) the TPAB was not obliged to consider that, or (3) necessarily to confer sympathetic consideration. Ultimately, he says, by not determining the issue, the TPAB considered the answer immaterial to their discretion in conferring any sympathy.

58.There is some force in both submissions. First, I think Mr Ng was wrong to justify the TPAB’s approach to this point. I accept Ms Eu’s submission that whether or not a small house application is at an advanced stage is a relevant consideration, expressly set out in Criterion (d). Therefore, it ought to have been considered and weighed by the TPAB. By not doing so, the TPAB never arrived at the preliminary stage of whether the point was relevant to begin with, preventing itself from ever reaching the stage of according it appropriate weight. On the other hand, the Applicants’ arguments ignore the permissive language of Criterion (d). It says sympathy may be conferred if there are circumstances justifying it. Thus, even if the TPAB had considered it, it is apparent (and I accept what Mr Ng said in this respect) that it would have accorded it little to no weight in the circumstances. Hence, I do not find any error to be of sufficient gravity to interfere on this basis.

59.Further, with that small exception, the TPAB clearly in fact considered the relevant factors which the Applicants submitted should have been considered. I do not think the TPAB misunderstood or misapplied the policy, and it did not confine itself to consideration of Criterion (a) alone. The weight to be given to the various aspects was a matter for the TPAB, to be interfered with only if the conclusion was irrational or unreasonable in the public law sense – the question posed by Ground 4.

G.  Ground 3: Legitimate Expectation

60.As recognised by Ms Eu in her submissions, this Ground 3 essentially stands or falls with the conclusion on Grounds 1 and 2. This is because the argument is that the Applicants had a legitimate expectation that the TPAB would adhere to the Interim Criteria and/or the Cautious Approach when determining the appeals.

61.In light of my conclusion on Ground 1 and 2, which was that the TPAB had properly understood and adhered to the policy identified in the Interim Criteria and the Cautious Approach, this Ground 3 must fall away.

H.  Ground 4: Irrationality

62.It is trite that a decision is Wednesbury unreasonable or irrational in circumstances which include that the decision is so unreasonable that no reasonable authority could ever have come to it. It is also trite that establishing irrationality is a high hurdle for a judicial review applicant to overcome.

63.Nevertheless, I am satisfied that the Applicants in this case have overcome that hurdle, and that the Decision is properly to be regarded as irrational. I accept that there is a proper basis for seeing irrationality by reference to the underlying matters, which include that:

(1)  the Lots were subject to the previous Planning Permissions, and – except as to the identity of the owners of the Lots – there had been no change of circumstances since the previous Planning Permissions were granted;

(2)  whilst it is correct that the applications for planning permission were, as a matter of form, fresh applications, it is also correct that the substance of them was for an extension of time to the previous Planning Permissions already granted;

(3)  the form of the applications – being ‘fresh’ rather than for an extension – was the result of inadvertence on the part of Mr Hung;

(4)  the Lots are wholly within the VE, and partially within the V-zone, and are immediately contiguous to the V-zone and to existing NTEHs;

(5)  hence, the proposed NTEHs are consistent with an orderly development pattern;

(6)  development of the Lots would not affect any local tracks or other infrastructure, and would not frustrate the planning intention of the CDA zone;

(7)  the DLO and planning applications were made promptly, and had reached an advanced stage;

(8)  indeed, on the evidence, there was nothing more the Applicants could have done to advance those applications; and

(9)  the Applicants paid HK$6 million to purchase the Lots, on the basis of the prior Planning Permissions granted.

64.As to the point of availability of other land within the V-zone, the argument is perhaps more fine. The TPAB held that it would be contrary to principle and reality to consider the actual, as opposed to general, supply of land in the V-zones of recognised villages. Reference was made at §44 of the Decision to Isaac Lam v TPB (unreported, Town Planning Appeal No 5 of 2020, Mr Simon Lam Ken-chung, 27 September 2022), where support was given to the Planning Department’s approach that when estimating the amount of land available for the construction of NTEHs, the ease or difficulty with which land may be acquired from individual non-government owners ought to be disregarded, so long as such acquisition is physically and legally possible. This is because, where it otherwise, the Planning Department would be required to conduct an almost impossible inquiry into whether individual owners of land were willing to sell their land, which is in reality a matter of market negotiation between the landowners and the individuals desirous of building and NTEH, which should not be relevant consideration from the town planning point of view.

65.I see force in that general principle. But that does not seem to me to mean that real available evidence of actual shortage of land must be regarded, in favour of some assumption as to the general supply of land in the V-zone. Of course, it would not be correct to require the Planning Department to make its own enquiries into whether individual owners of land are or would be willing to sell the land. But the present case differs because the Applicants were able to place before the TPAB significant evidence as to the actual situation. They could demonstrate that (1) it took years for any suitable land to be identified, not only in Che Ha but in other areas within the Sai Kung North Heung, (2) the Applicants had run advertisements in newspapers and sought help from estate agents specialising in New Territories land to no avail. There was no contrary evidence that there was in reality land actually available entirely within Che Ha’s V-zone, which might lead in this case to the conclusion that there was ample supply.

66.Though it is not possible, and not necessary, to go back to the precise reasoning for the grant of the Planning Permissions in 2015, and though the majority of the TPAB in this case think that they would have taken a different view, I do not think it can be suggested that the TPB which granted the Planning Permissions was acting outside the policy when it apparently placed less weight on Criterion (a) and more weight on the other factors, as it then saw fit.

67.I have already recognised that Criterion (a) is designed to concentrate small house development within a recognised village’s V-zone for orderly development. But as that Criterion implicitly acknowledges, the implication must be that this is achievable on the facts of a given case. If not, the Criterion might operate irrationally. In any event, however important, Criterion (a) is but one of the factors to weigh in the overall approach. The factor provides for one example where sympathetic consideration may be given, but the failure to meet that one criterion obviously does not mandate that the application must be rejected irrespective of the other criteria, which are to be looked at in the round. I also accept Ms Eu’s submission that even the element of concentration intention is a matter of degree, and the plans and photographs in this particular case show that the Lots are touching each other and adjacent lots where there are village houses. Further, the Lots are partially within the V-zone, and they fall entirely within the VE zone, which by agreement between the Government and the Heung Yee Kuk is the intended permitted area for direction of captain houses. Hence, putting NTEHs on the Lots can be said to be consistent with the stated policy properly viewed in context.

68.In my view, no TPAB acting reasonably could rationally have come to the Decision, by reference to all of the factors to be weighed in the particular circumstances of this case.

I.  Ground 5: Breach of Basic Law Articles 6, 40 and 105

69.First, the particular Articles of the Basic Law can be identified, being:

(1)  Article 6: “The Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law.”

(2)  Article 40: “The lawful traditional rights and interests of the indigenous inhabitants of the ‘New Territories’ shall be protected by the Hong Kong Special Administrative Region.”

(3)  Article 105: “The Hong Kong Special Administrative Region shall, in accordance with law, protect the rights of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property. …”

70.Second, the question arises as to whether the point should be permitted to be run at all. Mr Ng submitted that it should not be allowed, because all Basic Law points which might have been taken at the appeal hearing before the TPAB had been abandoned, the Applicant never challenged the lawfulness of the Interim Criteria, and the appeal proceeded all along on the basis that the Interim Criteria was lawful. Indeed, I note from §22 of the Decision, it is clear that the TPAB proceeded on the basis that the Basic Law point was dropped.

71.On the other hand, Ms Eu submitted that the Basic Law point was in the notice of appeal to the TPAB, and the opening submissions of the Applicants in that appeal only stated that they would “focus” on the grounds put forward in submissions, but did not abandon the Basic Law point. She further submitted that the Applicants have all along relied on the difficulty in acquiring other land to exercise their Ding rights, and the Basic Law point is of importance and general application in similar cases before the TPB and TPAB, meriting guidance from the Court.

72.The constitutional challenge, as raised by Ground 5, therefore needs to be properly understood. In her speaking notes, Ms Eu emphasised that the Applicants are not saying that the Interim Criteria or the Cautious Approach is/are contrary to the Basic Law. She recognised that the policies are drafted wide enough and flexibly enough for the appropriate considerations to be taken into account. However, as she put it, the Applicants are merely saying that the majority of the TPAB had a blinkered one track approach and only looked at one point, namely whether there was a general shortage of land. That was wrong, and if they had looked at all the other favourable circumstances, there could only be one outcome, namely that the applications should have been approved. Ms Eu submitted that it would be perverse or irrational for the Applicants’ substantive right (having satisfied the Eligibility Criteria for Ding rights) to be robbed by a procedural process – not least where the eligibility criteria included that the land should be in V-zone or within the VE.

73.However, put that way, that seems to me to identify that this is not in reality a constitutional challenge at all, but is an argument as to the irrationality of the Decision. For that reason, I do not think this issue is of any general importance, and I do not think the other factors to which the Court had regard in Chee Fei Ming v Director of Food and Environmental Hygiene [2016] 3 HKLRD 412 point to the grant of leave to raise this argument in these proceedings. I also accept Mr Ng’s submission, in any event, that had the Basic Law argument been pursued properly at the TPAB then the TPB might or would have embarked on a totally different course of forensic conduct.

74.In any event, the simple answer to the point seems to me to be that the rejection of the planning applications was not an absolute bar to the Applicants exercising their Ding rights, though it would undoubtedly have been significant inconvenience. Further, where necessary to have done so, I think I would be bound to accept that the proportion analysis would be satisfied.

J.  Result

75.At this stage, it is probably unnecessary to consider on which grounds leave to apply for judicial review would not have been granted. At least, leave would have been granted on Ground 4 – the irrationality ground – because I have decided that the ground is made out on the substantive application for judicial review.

76.For that reason, it seems to me in the exercise of my discretion that the Applicants are entitled to an order quashing the Decision. I make that order.

77.In light of my reasoning leading to that conclusion, I also accept that the only option open to the TPAB if the matter were remitted to it would be to grant the planning applications. Hence – whilst emphasising that I am deciding this case on its particular facts, which seem to me to be rather exceptional, and based upon undisputed evidence adduced by the Applicants before the TPAB – I also grant the order of mandamus requiring the TPAB (or TPB) to grant the relevant permissions.

78.I also make a costs order nisi that the costs of this application should follow the event, and therefore be payable by the TPB to the Applicants, to be taxed if not agreed, with certificate for two Counsel. That order will become absolute, unless an application for variation is made within 14 days. Any such application will be dealt with on the papers.

Ms Audrey Eu SC and Mr Andrew Tse, instructed by Messrs Zebra HY Kwan & Partners, for the applicants

The putative respondent was excused

Mr Stanley Ng, instructed by the Department of Justice, for the putative interested party