Anderson Asphalt Ltd and Others v. Town Planning Board and Another

HCAL 61/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO. 61 OF 2003

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BETWEEN

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Before:  Hon Chung J in Court

Dates of Hearing:  14 to 16 December 2004 and 7 October 2005

Date of Handing Down Judgment:  22 March 2006

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J U D G M E N T

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Introduction

1.This is an application for judicial review against the decision of the Rural and New Town Planning Committee of the Town Planning Board (“the Board”) made on 4 April 2003.  The Board approved an application by Man Fai Tai Enterprise Ltd. (“Man Fai Tai”) to use a piece of land in Sha Ling for an asphalt production plant (“the said plant”).  Leave was given to Man Fai Tai to join as a respondent to this application.

2.The grounds of this application, as set out in the “Notice of Application for leave to apply for Judicial Review” (“Form 86A”) are:-

(a)     the Board failed to consider all relevant planning considerations;

(b)    the said plant is not temporary;

(c)     the Board misdirected itself in law;

(d)    the approval was not in line with the planning intention of the Outline Zoning Plan (“OZP”) of the locality;

(e)     the said plant is incompatible with the surrounding land uses;

(f)     the approval sets an undesirable precedent;

(g)     the Board acted ultra vires in approving the said plant;

(h)     the approval was Wednesbury unreasonable;

(i)      the Board made a mistake of fact.

Some of the said grounds are in fact different aspects of the same point, others may be inter-related points.

3.By the time of the hearing of this application, the applicants have focused their arguments on essentially 2 grounds.  To facilitate discussion below, these 2 grounds are set out below (adopting the wordings used in the headings in the applicants’ skeleton submissions):-

(1)     the Board erred in law and/or exceeded its powers;

(2)     the Board failed to inquire or to take relevant matter into account.

Further, the respondents dispute the applicants’ locus standi to commence this application.  All these will be examined below. 

Background Facts

4.The following background is undisputed.

5.The applicants are four of the asphalt producers and operators in Hong Kong.  Their operations are all located on non-agricultural lots of land which were obtained by tender and on payment of a substantial annual rent.  It is not contended that their businesses are located near the said plant or that the said plant impacts on them from a geographically or environmental perspective.

6.One of the methods by which the Government provides land for asphalt production is as follows.  The Lands Department would allocate pieces of land considered to be suitable for asphalt production.  The public would then be invited to submit tenders.  Results of successful tenders would be published in the Gazette.  The related tenancies are short-term.

7.The piece of land referred to in para. 1 above (“the subject lot”) is about 2,600 square metres in size and registered in the name of Man Fai Tai.  The surrounding land uses are predominantly rural in character.

8.The District Lands Office has granted short term waiver to operate a concrete batching plant on the subject lot from 1988 to 2002 by way of short term waivers.  Further, the subject lot (and its adjoining land en bloc) has been approved by the Director for operating a concrete casting factory in July 1991.

9.The subject lot is within an area which has been zoned “Agricultural” in the Fu Tei Au and Sha Ling OZP.  According to the Note (vi)(b) of the OZP, temporary use or development of any land or building not exceeding a period of 3 years requires the permission of Board notwithstanding the use or development is not provided in terms of the OZP.

10.Man Fai Tai put forward an application to change the use of the subject from a concrete batching plant into an asphalt production plant.  The Director of Planning (“the Director”) considered the proposal could be tolerated for a period of 3 years and so recommended to the Board.  The application was approved on 4 April 2003 by the Board on a temporary basis for a period of 3 years.

The Application before the Board

11.Man Fai Tai’s application to the Board was made pursuant to s. 16, Town Planning Ordinance (Cap. 131).

12.Man Fai Tai put forth the following reasons to support its application before the Board:-

(a)     the subject lot had in the past been used as a concrete batching plant for more than 15 years, being covered by short term waivers granted by the Lands Department for such purpose;

(b)    to meet changing market conditions, the scale of the concrete batching plant had been reduced.  Part of it was changed into the said plant (also covered by a short term waiver);

(c)     the proposed new use was a minor amendment to the existing concrete batching plant and would impose no adverse impact on local environment or infrastructure;

(d)    the subject lot was currently surrounded by unpleasant neighbours such as the Sand Ridge Cemetery and Sha Ling Livestock Waste Control Centre;

(e)     the said plant was considered compatible with the surrounding land uses;

(f)     the Board had in the past approved the use for open storage/workshops within the same Agricultural zone;

(g)     the subject lot was well connected to road networks.  No particular traffic problems were foreseen;

(h)     there were no adverse drainage implications.  The said plant satisfied the technical requirements of the Environmental Protection Department.

Further to the above, the Director drew the Board’s attention to the following:-

(1)     immediate to the east and west of the subject lot was a concrete batching plant;

(2)     further to the west were some domestic structures;

(3)     further to the east was a yard for storage of tyres;

(4)     to the north was a cemetery.

13.Other Government departments were also consulted and their views on the following aspects were considered:-

(a)     agriculture;

(b)    land administration;

(c)     traffic;

(d)    environmental;

(e)     drainage;

(f)     water supply;

(g)     landscaping;

(h)     building;

(i)      local reaction.

14.The reasons given by the Board for permitting the said plant were:-

(a)     the production of asphalt was considered to be similar in nature to the concrete brick casting factory which use had earlier been approved by the Director;

(b)    the said plant was not incompatible with the surrounding land uses which comprised a concrete batching plant, an open storage of tyres, a cemetery and some vacant land;

(c)     the said plant was unlikely to adversely impact on traffic, environment, drainage and landscaping significantly.

15.It should also be noted this was the first time Man Fai Tai applied for permission and it has not indicated it would apply for further permission later.

16.Before turning to consider the grounds in support of this application, it is necessary to mention one particular part of the hearing before the Board.

17.This arises from the applicants’ submission to the effect that the Board failed to consider 2 matters (according to the applicants, inter-related matters), that is, whether:-

(1)     the said plant was temporary;

(2)     the grant of permission for such use would frustrate the planning intention.

18.In support of the above submissions, the applicants refer to the following passages.  In the Planning Department’s paper to the Board for the purpose of the meeting, it was said:-

“With regard to the objection raised by [the applicants] … Regarding the second point on the power of the Board to grant temporary planning permission … D of J confirmed that the Board had power to grant such permission as the matter of temporary use or development not exceeding 3 years was provided for … ” (para. 8.2 thereof).

Further, the secretary of the Board has filed an affirmation in this application.  The applicants also rely on the following part of her affirmation:-

“… Whether the proposed development is a genuine temporary use according to the subjective intentions of [Man Fai Tai] is immaterial as the permission granted … is on a temporary basis for a period of three years only.  If [Man Fai Tai] wishes to continue the asphalt production plant use after the expiry of the planning permission … a fresh application will have to be submitted … I wish to state that financial or commercial viability and return on financial investment for a proposed development are not material considerations for the Board … ” (emphasis supplied) (para. 40, affirmation of Ophelia Yuen Sheung Wong).

19.On the other hand, Man Fai Tai contends that the above passages should be considered in the light of the applicants’ submissions before the Board.  The following passages of their “Submission to the Town Planning Board” are referred to:-

“[The applicants] submit that the Board has no power to grant permission for the Asphalt Production Plant as a temporary use because an asphalt production plant is neither a Column 1 use nor a Column 2 use and is not shown or provided for or specified in the OZP … ” (para. 54 thereof)

(under the heading “Temporary use”);

“The Asphalt Production Plant is designed and constructed to be a permanent installation at considerable cost.  The granting of planning permission would only encourage a long term use of [the subject lot] as an Asphalt Production Plant” (para. 57 thereof)

(under the heading “The asphalt production plant is not temporary”).

Ground (1)  The Board Erred in Law and/or Exceeded Its Powers

20.The gist of the applicants’ complaint here is that the Board has failed to satisfy itself the said plant was indeed temporary.  It is submitted, pursuant to the Notes to the OZP, the Board only has power to grant permission for temporary use.

21.In this application (but not at the time of the application to the Board), the applicants have adduced evidence regarding why the said plant was designed and constructed to be a permanent installation:-

(1)     the said plant was not a mobile plant but would take more than 4 months to construct;

(2)     the shear size of the said plant;

(3)     the said plant’s need for a sophisticated underground aggregate feed system to convey aggregate to the feed hoppers;

(4)     substantial foundation works were required for installing the said plant;

(5)     “direct wiring” rather than “plug-in” electrical connections was used;

(6)     the capital cost of the asphalt production depot would be about $25 million.  Part of those costs would have to be spent on items which need to be written off.  The cost involved would be more consistent with a plant of 10 years’ lifespan;

(7)     to make the said plant commercially viable, Man Fai Tai would need to secure contracts for the supply of asphalt to major works.  These contracts involve a commitment to supply asphalt for more than 3 years;

(8)     supply of asphalt to the sundry market (which does not involve any long-term commitment) is unrealistic because of the said plant’s remote location.

22.The Form 86A also complains that:-

(a)     the waiver agreement was not for a fixed period of time;

(b)    Man Fai Tai would have to provide drainage facilities to the satisfaction of the Director of Drainage Services within 9 months from 4 April 2003.

23.The Board accepts that it has to consider whether the proposed use is truly temporary if there is any basis for thinking that it is not genuine.  However, the Board submits, there is no material before it for so thinking.  All that has been placed before it was the assertion that the asphalt production plant:-

“…is designed and constructed to be a permanent installation at considerable cost … ” (see para. 19 above).

24.In this connection, the Board relies on the following observation in Miller-Mead v. Minister of Housing and Local Government and Another [1963] 2 QB 196 (an authority cited by the applicants):-

“I personally think … that somebody, who is intending to use permanently his land or develop his land without permission as a caravan site, cannot avail himself of the purely temporary permission granted to him under the Order of 1950.  In my judgment, the test is not entirely objective; it is subjective to the extent that a man, intending to use a site permanently for a development without permission, cannot claim user for 28 days in every year to excuse and permit that user … ” (at p. 231).

The Miller-Mead case was concerned with the permission to use land “for the parking of caravans”.  The landowner used the caravans for human habitation purposes.

25.The applicants also cite the Town Planning Appeal Board’s decisions in Town Planning Appeal Nos. 16 of 1996, 4 of 1997 and 15 of 1996 in support.  The Board points out that those decisions are distinguishable on the facts.  Appeal No. 16 of 1996 involved the unauthorized use of land for open storage of scrap metal and construction materials for several years (a period long enough to indicate permanent use).  In Appeal No. 4 of 1997, there was an admission from the applicant that the permission would be sought as

“a long term arrangement whereby the permission would be renewed annually” (para. 14 thereof). 

Appeal No. 15 of 1996 concerned an application allegedly for permission of intensification of an existing use; that was rejected by the Appeal Board.

26.Man Fai Tai disagrees with the applicants based essentially on the same reasons put forth by the Board above.  Emphasis has been placed on the manner in which the matter was argued before the Board and the absence at the time of the evidence now adduced by the applicants.

27.I agree with the Board and Man Fai Tai.  The manner in which the Board should take into account matters depends on the circumstances of each case.  Where there was merely an assertion without the necessary factual basis, it would be imposing on the Board too high a duty to say that it must enquire into the assertion.

28.The applicants’ case before the Board regarding this aspect was in effect a mere assertion that it would not be commercially viable for a plant

“designed and constructed … at considerable costs”

to be used for a period of 3 years only.  The Board was quite entitled to disregard a complaint like that.  If anything, the Board, being a statutory body vested with the powers and duties to consider matters from a town planning perspective, is not equipped to consider

“financial or commercial viability and return on financial investment”.

This is especially so when no proper material has been presented to the Board in support.

Ground (2)  The Board Failed to Enquire or Consider Matters

29.The applicants complain that the Board failed to enquire or consider 2 very relevant (and related) matters:-

(1)     whether the said plant was going to be temporary or permanent;

(2)     whether the grant of permission would frustrate the planning intention for an area zoned “Agricultural”.

30.I consider this argument to be closely related to the one examined under the previous heading.  For the reasons set out thereunder, I also find that there is no merit as regards this complaint.  The Notes to the OZP confer on the Board a discretionary power.  A proper exercise of that power cannot be viewed as an act to frustrate the planning intention.

Locus Standi of the Applicants

31.S. 21K(3), High Court Ordinance (Cap. 4) provides:-

“No application for judicial review shall be made unless the leave of the Court of First Instance has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates” (emphasis supplied).

The emphasised parts of that provision are mirrored in RHC Ord. 53 r. 3(7).

32.The applicants submit that the current state of law is such that locus standi is by itself effectively no longer a bar to an application for judicial review.  Not only is the matter to be approached liberally, subsequent to the leave application stage, the locus standi issue is to be determined as a matter of discretion, and not as a matter of jurisdiction.  In other words, after the leave application stage, the court no longer has power to refuse leave on the ground that the applicant lacks locus standi to commence the application.  The court can at most refuse to grant relief by way of the exercise of its discretion.

33.The applicants say that such a state of law is consistent with both s. 21K(3), Cap.4 and Ord. 53 r.3(7) both of which

“specifically relate to the leave stage” (para. 33, applicants’ reply submission).

I disagree with the applicants regarding this submission. 

34.The actual words used in the provisions are:-

“… the court shall not grant leave to make such an application … ” (s. 21K(3));

and

“The Court shall not grant leave … ” (Ord. 53 r. 3(7))

unless it considers that sufficient interest has been shown.  They do not provide, for example, that:-

“the court shall not grant leave [to make such an application] unless at the time of the application for such leave … ”

(or other similar wordings), it considers that sufficient interest has been shown.

35.The actual wordings used by the provisions show that the legislature must have intended the matter to relate to the court’s jurisdiction.  On the other hand, the wordings appearing in the example given in para. 34 above may arguably intend that the court should have different powers at different stages of the proceedings.

36.Even in Hong Kong, where the rules permit leave applications to be heard inter partes, the usual practice is that leave applications are determined on ex parte basis.  The commentaries in Hong Kong Civil Procedure 2006, para. 53/14/4 state that, where leave to apply has been granted ex parte it is open to a respondent to apply for the grant of leave to be set aside.  No authority has been referred to in support of the statement, but it is likely to be based, for example, on Ord. 32 r. 6.  There is no valid reason why, on the respondent’s inter partes application, leave can be discharged on other grounds but not on the ground of lack of sufficient interest.

37.The applicants submit that their contention is supported by textbooks and authorities.  The learned authors of de Smith, Woolf & Jowell: Judicial Review of Administrative Action (1995) 5^th Ed. state:-

“In summary, it can be said that today the court ought not to decline jurisdiction to hear an application for judicial review on the ground of lack of standing to any responsible person or group seeking, on reasonable grounds, to challenge the validity of governmental action” (para. 2-041 at p. 122).

The above passage was endorsed by the court of appeal in Association of Expatriate Civil Servants of Hong Kong v. Secretary for the Civil Service (1996) 6 HKPLR 333, 368H.

38.They also refer to the following passages in the House of Lords decision in R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617:-

“It would be very much to be regretted if, in consequence of the unfortunate form in which the instant appeal came before this House, anything that is said by your Lordships today were to be understood as suggesting that the new Ord. 53 r. 3(5) [which is the same as our Ord. 53 r. 3(7)] has the effect of reviving any of those technical rules of locus standi … that were applied by the judges up to and during the first half of the present century, but which have been so greatly liberalised by judicial decision over the last 30 years … ” (emphasis supplied) (p. 637G-H, per Lord Diplock);

“I agree in substance with what Lord Denning M.R. said, at p. 559 [of R. v. Greater London Council, ex parte Blackburn [1976] 1 WLR 550] … 

‘I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law in a way which offends or injures thousands of Her Majesty’s subjects, then any one of those offended or injured can draw it to the attention of the courts of law …  and the courts in their discretion can grant whatever remedy is appropriate’ …

The reference here is to flagrant and serious breaches of the law by persons and authorities exercising governmental functions which are continuing unchecked.  To revert to technical restrictions on locus standi to prevent this that were current 30 years or more would be to reverse that progress towards a comprehensive system of administrative law that I regard as having been the greatest achievement of the English courts … ” (p. 641A-D, per Lord Diplock);

“The procedure under the new Order 53 involves two stages: (1) the application for leave to apply for judicial review, and (2) if leave is granted, the hearing of the application itself.  The former, or ‘threshold,’ stage is regulated by rule 3. …

… at the threshold stage, for [the applicant in the judicial review] to make a prima facie case of reasonable suspicion … constituted what was in my view reason enough for the Divisional Court to consider that [the applicant] … had a sufficient interest to apply to have the question … reviewed by the court.  The whole purpose of requiring that leave should first be obtained … would be defeated if the court were to go into the matter in any depth at that stage …

It would, in my view, be a grave lacuna in our system of public law if a pressure group … or even a single public-spirited [applicant], were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. … ” (emphasis supplied) (pp. 642F, 643G-H and 644E-F, per Lord Diplock).

39.The applicants say that, the learned authors of Wade & Forsyth: Administrative Law (2004) 9^th Ed., when commenting on the effect of ex parte National Federation of Self-Employed and Small Businesses Ltd., opined that:-

“… [that decision] is tantamount to saying that standing has been abolished as a restrictive principle of public law” (at p. 693).

40.But insofar as Lord Diplock can be taken as saying that locus standi is no longer a point worth consideration, his view was not shared by the other law lords in ex parte National Federation of Self-Employed and Small Businesses Ltd.:-

“There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply …  But in other case this will not be so.  In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed.  In other words, the question of sufficient interest can not, in such cases, be considered in the abstract, or as an isolated point … ” (emphasis supplied) (p. 630C-E, per Lord Wilberforce);

“Looking at the matter as a whole, I am of opinion that the Divisional Court, while justified on the ex parte application in granting leave, ought, having regard to the nature of ‘the matter’ raised, to have held that the [applicant in the judicial review] had shown no sufficient interest in that matter to justify its application for relief … ” (emphasis supplied) (p. 636A, per Lord Wilberforce);

“But the question whether [the applicant in the judicial review has] a sufficient interest to make the application at all is a separate, and logically prior, question which has to be answered affirmatively before any question on the merits arises.  Refusal of the application on its merits therefore implies that the prior question has been answered affirmatively.  I recognise that in some cases … it may be impracticable to decide whether an applicant has a sufficient interest … without having evidence from both parties as to the matter to which the application relates, and that, in such cases, the court … cannot refuse leave to the applicant at the ex partes stage, under rule 3(5).  The court .. at that stage will [grant leave] on the footing that it makes a provisional finding of sufficient interest, subject to revisal later on, and it is therefore not necessarily to be criticised merely because the final decision is that the applicant did not have sufficient interest.  But where, after seeing evidence of both parties, the proper conclusion is that the applicant did not have a sufficient interest to make the application, the decision ought to be made on that ground … ” (emphasis supplied) (p. 645D-F, per Lord Fraser);

“Your Lordship’s attention was drawn to note 14/21 to order 53 of The Supreme Court Practice (1979), which your Lordships were told bore the authority of Master Sir Jack Jacob, Q.C.  The learned editor stated that that which was a ‘sufficient interest’

‘… appears to be a mixed question of fact and law; a question of fact and degree and the relationship between the applicant and the matter to which the application relates, having regard to all the circumstances of the case.’

With this admirable concise statement, I respectfully agree” (emphasis supplied) (pp. 658H-659B, per Lord Roskill);

“In my view the Divisional Court ought in the exercise of its discretion to have dismissed this application, not for want of jurisdiction to grant it, but because, on the evidence as a whole, first no ‘sufficient interest’ was shown and, secondly, because in any event the application could not possibly succeed” (emphasis supplied) (p. 664A-B, per Lord Roskill).

Lord Scarman appeared to agree that locus standi was a matter which needed to be determined in the manner set out by Lord Wilberforce, Lord Fraser and Lord Roskill (quoted above): see pp. 652H-653A, 653B, 653EF-H and 654H-655B.

41.The applicants admit (as they must in the factual context of this application) that their interest which has been affected is commercial in nature.  They frankly state:-

“The Board’s decision will assist [Man Fai Tai] to produce asphalt … at less cost than [the applicants] … the Board’s decision realistically affects [the applicants’] commercial interests … ” (para. 46, Form 86A);

A similar statement was made in the applicants’ supporting affirmation.

42.The respondents are clearly correct in contending that the Board should only be concerned with town planning matters.  Matters which are only relevant to commercial interests, or to ensuring a commercial “level playing field” among competitors and the like are totally beyond the Board’s powers and duties which are to make decisions in accordance with the relevant provisions of Cap. 131.

43.The applicants also argue that commercial interest is sufficient, relying on decisions such as:-

(a)     R. v. Attorney General ex parte Imperial Chemical Industries plc (1985) 60 TC1, 63-4;

(b)   R. v. Canterbury City Council and Robert Brett& Sons Ltd. ex parte Springimage Ltd. 68 P & CR 171, 174;

(c)     R. v. Somerset County Council ex parte Dixon 75 P & CR 175, 179-180;

(d)    R. V. Greater London Council ex parte Blackburn [1976] 1 WLR 550, 558-9;

(e)     R. v. HM Treasury ex parte Smedley [1985] 1 QB 657, 667, 669-670;

(f)     R. v. Secretary of State for Foreign and Commonwealth Affairs ex parte World Movement Ltd. [1995] 1 WLR 386, 39-5;

(g)     Patmor v. City of Edinburgh District Licensing Board 1987 SLT 492;

(h)     R v. Department of Transport ex parte Presvac Engineering Ltd. [1992] 4 Admin LR 121;

(i)      R. v. Inspectorate of Pollution ex parte Greenpeace [1994] 4 All ER 329;

(j)      R. v. Secretary of State for Social Services ex parte Child Poverty Action Group [1990] 2 QB 540;

44.It is unclear if the applicants are arguing that commercial interest confers the sufficient locus standi irrespective of the context with which the judicial review is concerned.  Insofar as they so argue, none of the decisions they rely on support such sweeping proposition (which proposition I find to be wrong).  The above decisions rather show that locus standi is very much an issue the court must decide because it pertains to jurisdiction: see, for example, ex parte Child Poverty Action Group, at p. 556E-G.  They also show that, where necessary, the issue has to be determined after considering the factual and statutory context as a whole.

45.The above decisions can be categorised into the following.

46.First, instances where the applicants’ locus standi arose out of their commercial interest.  They involved an allegation that the administrative decision under challenge unlawfully and unfairly favoured their competitors.  However, these were instances where the decision-makers ought reasonably, by virtue of the factual and statutory context, to have considered the unlawfulness and unfairness:-

(1)     in ex parte Springimage Ltd., objection was raised by an applicant who has an option to purchase land against a town planning decision;

(2)     in Patmor, objections were raised by existing gaming licence holders in relation to gaming licence;

(3)     in ex parte Presvac Engineering Ltd., objection was raised by a manufacturer for the improper certification of goods which it also manufactured;

(4)     in ex parte Imperial Chemical Industries plc, objection was raised by an oil company for the misapplication of tax statute which has the effect of unlawfully conferring state aid on its competitors.

47.Second, instances where the administrative act under challenged has a nation-wide effect (or at least an effect which was locality-wide) and as a result either everyone could become the applicant or no one could:-

(a)     in ex parte Blackburn, objections were raised regarding film censorship where the applicant was a citizen, a ratepayer’s husband and a parent;

(b)    in ex parte Dixon, objection was raised by a local resident, parish councillor and candidate for election of the locality against a permission to operate a quarry;

(c)     in ex parte Smedley, objection was raised by an elector and taxpayer against a decision to make payment to the European Community;

(d)    the issue involved in ex parte Greenpeace was environmental pollution;

(e)     the issue involved in ex parte World Movement Ltd. was the decision to fund the construction of a hydro-electric power plant which was described as economically “a very bad buy”;

(f)     the issue involved in ex parte Child Poverty Action Group was the administration of social welfare benefits.

48.In some of the instances referred to in para. 47 above, the applicants were bodies which have either a widely recognised status and/or reputation, and/or have a presence (although this may be through their supporters or members):-

(1)     in ex parte Greenpeace, the applicant was recognised as having “national and international standing … and … integrity” and “… an entirely responsible and respected body with a genuine concern for the environment” with “2,500 [supporters in the locality who were] concerned about … a danger to their health and safety”.  The applicant could “command the expertise” to make the application without which there would be “a less well-informed challenge”;

(2)     in ex parte World Movement Ltd., the applicant played “a prominent role … in giving advice, guidance and assistance with regard to aid”.

49.I regard the proper test for deciding the locus standi issue to have correctly been set out in the speeches of Lord Wilberforce, Lord Fraser and Lord Roskill (quoted in para. 40 above).  I do not consider anything said in de Smith, the decision in Association of Expatriate Civil Servants of Hong Kong or Wade & Forsyth (also quoted above) to be inconsistent with those speeches.

50.Applying that test to the factual and statutory context of this application, I conclude that the applicants do not have sufficient interest to make this application.

51.The applicants also contend they have sufficient interest in this application because they have been allowed by the Board to take part in the application before the Board: para. 47, Form 86A.  Locus standi in this application is a matter of law to be judged in accordance with the observations set out in para. 40 above.  Mere participation in an earlier proceeding which leads to this application cannot confer such interest.  Insofar as they should say that Patmor assist this contention, I disagree.

Conclusion

52.To conclude, this application is refused.

Costs Order Nisi

53.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application (including any reserved costs) be paid by the applicants to the respondents to be taxed if not agreed.

Mr Benjamin Yu, SC leading Mr Anthony Ismail, instructed by Messrs Johnson, Stokes & Master, for the Applicants

Mr Simon Westbrook, SC leading Mr Gregory Payne, SGC of Secretary for Justice, for the 1^st Respondent

Mr Alan Hoo, SC leading Mr Alfred H H Chan, instructed by Messrs Fred Kan & Co., for the 2^nd Respondent