Read the full judgment text of HCAL 000051/2004 on BabelCite. This High Court CFI judgment was delivered on 9 November 2005 before Chu J.
Administrative law – judicial review – Town Planning Board – urban renewal – development scheme – objection – Comprehensive Development Area (CDA) zoning – role and function of the Board – planning merits – adjudication – bias – relevant and irrelevant considerations – Wednesbury unreasonableness – statutory interpretation of Town Planning Ordinance (Cap 131) and Urban Renewal Authority Ordinance (Cap 563) – private landowner's existing planning permissions – financial implications of excision on the URA – legality of the development scheme under s.25(3)(b) URAO – role of the Appeals Board under s.27 URAO – applicants owned the Objection Site of about 837 m² in Sheung Wan and held two planning permissions for 33 and 27 storey residential developments and approved building plans – the Objection Site was included within a CDA zoning in the Draft Staunton Street/Wing Lee Street Development Scheme Plan prepared by the URA under s.25 URAO – the Board decided not to propose any amendment to the DSP to meet the applicants' objection – the question whether the Board is under a duty to balance competing interests of the URA and private landowners and acts as an impartial tribunal, or whether its role is confined to planning merits – held that the Board conducts an administrative consultative process under s.6 TPO and not an adjudication of rights, following R v. Town Planning Board, ex p. Real Estate Developers Association of Hong Kong and Kwan Kong Company Limited v. Town Planning Board – the Board is distinguishable from the Appeals Board under s.27 URAO, which has a true adjudication role with powers of disclosure and evidence – the chairperson's statement at the hearing amounted to no more than requiring the objector to give reasons and did not constitute a presumption in favour of the URA – the applicants' planning permissions were material considerations only, per Wells v. Minister of Housing and Local Government and Spackman v. Secretary of State for the Environment – the question whether the Board failed to take into account relevant considerations or took into account an irrelevant consideration (URS recommendation on joint-venture partnership) – held that the objective evidence showed the Board was aware of the applicants' rights and submissions and reached a planning judgment it was entitled to make – the question whether the Board's decision was Wednesbury unreasonable – held that the decision was supported by the Planning Department's analysis in TPB Paper No. 6963 and was a planning judgment the court would not disturb – the financial implications of excision, including erosion of URA revenue by 33% to 60% under the notional scheme, were relevant given s.10(4) URAO requiring the URA to manage its finances prudently – the question whether the development scheme complied with s.25(3)(b) URAO – held that the Planning Report (paras 7 and 7.6) and Explanatory Statement (paras 8.2 and 8.6) set out the implementation details including the option of joint-venture partnership, and any non-compliance would not in any event vitiate the Board's decision under s.25(6) – the development scheme documents comprise more than the plan and Notes, and the section 6 TPO procedure does not permit objections to the method of implementation – application for judicial review refused with costs to the Board and costs of the URA reserved; appeal allowed by the Court of Appeal in CACV 386/2005 on 18 January 2007.
Legal issues: Role and function of the Town Planning Board when considering objections to a URA development scheme · Considerations taken into account by the Board on the applicants' objection · Wednesbury unreasonableness of the Board's decision · Legality of the development scheme under section 25(3)(b) URAO
Outcome: Application for judicial review refused at first instance; the applicants' appeal to the Court of Appeal in CACV 386/2005 was allowed on 18 January 2007.