Anderson Asphalt Ltd. V.The Lands Department

HCAL 28/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 28 OF 2006

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Before : Hon Reyes J in Court

Date of Hearing : 21 April 2006

Date of Decision : 25 April 2006

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D E C I S I O N

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I. Introduction

1.The Applicants are Hong Kong asphalt producers and operators.  They are members of the Asphalt and Macadam Association of Hong Kong (the Association). 

2.The Applicants seek leave to apply for judicial review of a decision of the Director of Lands.  By the decision, the Director allowed certain agricultural land at Lung Kwu Tan in Tuen Mun to be used temporarily for an asphalt production plant.

3.The Applicants say that the decision was unreasonable because in reaching it the Director:-

(1)	gave no or no adequate reasons;
(2)	failed to consider all relevant planning considerations; and,
(3)	took into account irrelevant considerations.

4.In my view, the Applicants are not entitled to leave.  I do not think that they have sufficient locus to challenge the decision.  Nor do I believe that the grounds for review advanced by them are arguable.

II. Background

5.The relevant agricultural land comprises Lots 51, 53, 54A, 56 and 58B and portions of Lots 62, 63, 68, 70 and 72, all of DD 134.  All lots (including portions of lots) are subject to a Block Crown Lease.

6.That lease contains a restrictive covenant.  The covenant prohibits lessees from using the lots for non-agricultural purposes.  If a lessee wishes to use a lot for non-agricultural purposes, he must first obtain the Government’s permission to do so.  If he proceeds without permission, the Government can re-enter the land.

7.By the decision challenged, the Director granted a temporary waiver of the restrictive covenant to enable relevant lessees to operate an asphalt plant on the lots.  The decision was made during a Tuen Mun District Lands Conference of 24 January 2005. 

8.The minute of the Lands Conference records the following:-

“

However, an objection letter was received from [the Association] and their grounds of objection are described in paragraph 2.5(i), (ii) and (iii) of the notes.  Members noted that the grant of a waiver was of temporary nature and it would neither indicate a permanent land use nor frustrate the long term planning intention of land use of the area concerned.  Members were also not aware of any agreement or legal precedent which prohibited the Government from granting a licence/ waiver for temporary land use on private lots for which Government had granted licenses/ waivers to other parties before.  Moreover, the proposed waivers would be charged at FMR [Full Market Rate] as indicated in the recommendation.  Conference did not find the objection acceptable.”

9.The objection letter mentioned in the minute was dated 1 November 2005 and came from the Association’s solicitors (JSM).

10.The letter referred (among other things) to an earlier submission dated 23 September 2005 by JSM to the Director in respect of Lot 185 in DD 134.  At the time the Association believed that the lessees of Lot 185 had applied for permission to operate an asphalt plant on that piece of land.

11.The September letter argued that a waiver of the restrictive covenant in the Block Lease for Lot 185 would amount to a “blatant contravention of intended user”.  By this the Association meant that DD 134 had been earmarked for “Beach Recreation Area” and “Recreation Orientation Development” in long-term Government plans.  Allowing asphalt production on DD 134 (the Association argued) would be contrary to that intention.

12.The Association claimed to discern Government’s intended user from:-

(1)	the Tuen Mun New Town Western Extension Area -- Planning Guide (Plan No.D/TM2/11) (the Planning Guide), signed by the Secretary for Lands and Works (SLW) on 7 November 1985; and,
(2)	the North Western New Territories Sub-Region Use Plan (Plan Ref. No. SRNW - ST86/1A) (the SRP), signed by SLW on 17 July 1987.

13.DD 134 (the Association asserted in the September letter) “should be conserved and remain non-industrial”.  Allowing an asphalt plant in DD 134 through waiver of the restrictive covenant would mean that “the community at large ... will be deprived of the precious recreation/ green belt/ conservation area”.

14.A waiver (the Association alleged in the September letter) “unfairly prejudices the position of all asphalt operators in Hong Kong, which the Asphalt Association represents”.  This is because hitherto members of the Association have restricted themselves to leasing industrial sites for their plants.  This has involved payment of high premium rentals to Government.

15.In contrast, now (the September letter continued):-

“

the Lands Department is adopting inconsistent standards/ practices in its policies on the granting of land for asphalt plant erection.  Members of [the Association] cannot help but question whether they should simply refrain from tendering for short term tenancies for their asphalt plants but instead, occupy lands which, objectively, should not be used for industrial undertakings and seek the Lands Department to issue to them similar waivers.  Commercially, this appears to be the right course to take bearing in mind that factoring in the substantial premium rental payable to the Government, the operating costs of members of [the Association] will be significantly higher than those that are allowed to operate their asphalt plants on land meant for agricultural. non-industrial purposes since they do not have to bear such high rental overheads.”

16.The September letter concluded by inviting the Director to refuse a waiver for Lot 185.

17.By letter to JSM dated 28 September 2005, the Director pointed out that there was no pending application from Lot 185.  The Government was instead processing an application for a short-term waiver in respect of “other lots” in DD 134.  The Director later wrote to JSM (on 7 October 2005) identifying the lots which are the subject of these proceedings as the “other lots” to which he was referring.

18.JSM’s November 2005 letter, adopting the arguments advanced by the September letter, urged that a waiver be refused for the lots in these proceedings.  JSM wrote:-

“

The transformation of the lots into incompatible industrial uses not only defies the Government’s planning intention but is also devoid of any justification from a planning perspective.  Members of our client maintain the view that for the Government to grant the waiver application which disregards all environmental and town planning concerns, not to mention the fact that it is in blatant defiance of the Planning Guide, the SRP and the user provision of the Lease, is unreasonable and unjustifiable.

In the circumstances, we urge you to decline the granting of any waiver to the applicant allowing them to transform lands which have been intended for recreational, conservatory uses into non-compatible industrial uses.  Any decision to the contrary in our view is improper and fails to take into account, inter alia, the relevant and important considerations set out in our letter of 23 July and in the paragraphs above.  On these bases, we shall be grateful if you will exercise caution with respect to the present matter and refrain from granting the waiver in question.”

19.In response to JSM’s November letter, on 7 December 2005 the Director wrote to the Association as follows:-

“	Having considered various aspects, including planning, environmental and grounds for objection, etc., Conference decided that it is in order to approve the subject proposal [for a proposed asphalt production plant in DD 134].”

20.The Lands Conference minute refers to similar waivers having been granted before to lots in DD 134.  Examples of such permissions are as follows:-

(1)	Waiver Letter STW No.553 dated 6 January 1998: permission to use Lot 182 for storage of compressed industrial and medical gasses and parking of vehicle fleet for 14 months, the waiver to be deemed renewed in the absence of notice of determination or resumption from either party.  The licence remains valid.
(2)	Waiver Letter STW No.753 dated 6 February 2003: permission to use Lot 176 for concrete production for 12 months, the waiver to be deemed renewed in the absence of notice of determination or resumption from either party.  The licence remains valid.
(3)	Waiver Letter STW No.754 dated 6 February 2003:  permission to use Lot 177 for concrete production for 12 months, the waiver to be deemed renewed in the absence of notice of determination or resumption from either party.  The licence remains valid.

21.Apart from the Lands Conference minute, the Applicants have not received any other document articulating reasons for the Director’s decision.

III. Discussion

A. Preliminary Issue: Locus standi

22.The Applicants claim locus because (they say) the decision affects their commercial interests.  The Applicants contend that they are aggrieved because they have “refrained from setting up asphalt operations on non-industrial land such as the Relevant Lots only to see the Government departing from its stated intention”.  The Applicants rely on R v. Poole Borough Council, ex p. Beebee [1991] 2 PLR 27 and R v. Canterbury City Council, ex p. Sringimage Ltd. [1993] 3 PLR 58.

23.In Beebee the Worldwide Fund for Nature (UK) (WWF) and the British Herpetological Society (BHS) applied for judicial review of the Poole council.  The council had granted planning permission for a development on land of special scientific interest (SSI) (the land being a habitat for smooth snakes, sand lizards, Dartford warblers, nightjars and hobbies). 

24.Schiemann J held that, by itself, the WWF did not have sufficient locus.  This was because it had no legal interest in the land affected by the permission or in any neighbouring land. Further, since Parliament had assigned the work of preserving SSIs to a Nature Conservancy Council (NCC), the Court ought to be slow in finding that another body had locus to enforce the NCC’s duties.

25.Schiemann J came to this conclusion despite the fact that the WWF having been “involved in the conservation of the Dorset heathlands for over 15 years” and despite the WWF having “made grade grants to the BHS since 1971 to assist them in carrying out their works on habitats for sand lizards and smooth snakes”. 

26.On the other hand, Schiemann J thought that the BHS had sufficient interest.  He stated:-

“

The BHS has a long-established association with the subject sites; much of its work in the field has been funded by the NCC and it has carried out work at [the area in question].  It has had a continuing and genuine interest in the subject site for years, which has been recognized by the [Poole] council.  Indeed the sixth condition of the planning permission which the council granted themselves provides ‘that prior to any development starting on the site a full season’s notice shall be given to the BHS to enable the catching and relocation of rare species known to inhabit the site’.  This is a condition said to be imposed in the interests of conservation and to conform with the Wildlife and Countryside Act....”

27.Given then that the WWF was proceeding not alone but with the BHS, Schiemann J allowed the WWF to continue in its judicial review application.

28.In Springimage the Canterbury Council granted permission to Bretts for a retail and residential development in Canterbury. Springimage had an option to purchase land in the vicinity of the development for the purposes of a retail business.  It claimed to be commercially affected by the council’s decision and applied for judicial review.

29.On the question of Springimage’s locus, Deputy Judge Keene QC said:-

“	The principle put forward by Mr. Barnes is that someone who is or may be commercially affected by a development for which permission has purportedly been given does have a sufficient interest above that of the generality of citizens to enable him to bring judicial review.  I accept that proposition, so long as there is a real possibility of such an effect and not merely a theoretical one.  That commercial effect may be of many kinds but would include an effect on the prospects of obtaining planning permission for a development or on the prospects of the development itself being successful....
	....
	In light of those matters, I accept Mr. Barnes’ submission that the anticipated cumulative adverse impact of both the Brett retail scheme and a retail development proposed by [Springimage] on the shopping vitality of the town centre could well make permission for the latter less likely than if it had stood alone as a proposal without the Brett development.  Permission for the Brett scheme would also mean that any chance of advancing an argument as to retail need, either to the local planning authority or on an appeal, would become more difficult.  Those are not inferences which can properly be drawn as a matter of common sense from the evidence already before the court.  I can see that there might again be implications for the turnover of any retail development promoted by Springimage, but I attach less weight to that because it represents a more remote stage off into the future.
	In the event, I am satisfied that this applicant does have a particular interest in the decision of February 2 1993, which raises it above the level of interest possessed by the general public and which amounts to a sufficient interest for the purpose of these proceedings.  I therefore conclude that the applicant does have locus standi to seek judicial review of the council’s decision.”

30.The scope of Springimage has recently been clarified by Blackburne J in Morbaine Ltd. v. First Secretary of State [2004] EWHC 1708 (Admin). 

31.Morbaine sought judicial review of the grant of planning permission for a site.  It had previously lodged no objection to the planning application, had taken no part in the planning enquiry, and held no proprietary interest in any land affected by the proposed development.  But, between the time of an interim decision letter (IDL) (wherein the Government indicated that it was minded to grant planning permission) and the actual decision letter granting permission, Morbaine had entered into an understanding, subject to contract, for the development of the nearby Helical site.

32.Blackburne J distinguished Springimage as follows (at §15):-

“

Here by contrast [with Springimage] Morbaine, a complete stranger to the application site and to the area affected by Lear’s development proposals, happened by chance upon the Helical site at about the time or shortly after the IDL was published, which, of necessity, was long after the planning inquiry into Lear’s development proposals had ended and the inspector had produced her report.  Without any commitment to, let alone any proprietary or other enforceable interest in, any land affected by a grant of permission for the application site, Morbaine sees an opportunity to further its own commercial interests through the acquisition of another site if, by means of a successful challenge under s.288, it can upset the grant of planning permission for the application site.  In my judgment, commercial opportunism of that nature falls short of the interest (the ‘real or genuine interest in obtaining relief’ which the Court of Appeal had in mind in Kides [[2003] JPL 431]) which must be shown to give it standing to complain.  It is remote from any denial of or affront to a person’s expectations or rights to which Lord Rodger referred in the Lardner decision [[1997] SLT 1027].  It follows that Morbaine does not qualify as a person ‘aggrieved’ by the decision of the Secretary of State to grant planning permission for Lear’s proposals for the application site.”

33.In the present case we are miles away from the situations in Beebee and Springimage which justified locus.  If anything, the Applicants’ alleged particular interest is even more remote here than that claimed by Morbaine before Blackburne J.

34.The Applicants do not have any proprietary interest in any land in or around Lung Kwu Tan.  Nor have the Applicants shown any significant connection (whether or not long-standing) with Long Kwu Tan. 

35.The thrust of the Applicants’ objections to the Director’s decision concern:-

(1)	an alleged contravention of the Government’s long-term intention to turn Long Kwu Tan into an area for the recreational use of the community at large; and,
(2)	the alleged adverse environmental impact to Long Kwu Tan prospects of serving as a key conservation site for “diverse butterfly assemblages”.

36.As far as those 2 latter matters are concerned, the Applicants’ asserted interest is neither more nor less than that of the general public. 

37.Except possibly where there is “grave abuse of power” (which can hardly be the case here), Beebee and Springimage both stress that a general public interest is not enough to give locus for judicial review.

38.The Applicants, however, also assert a particular commercial interest.  It is thus necessary to examine just what that interest is supposed to be.

39.The particular interest asserted is in effect the right to hinder competition by:-

(1)	preventing others from using agricultural land for asphalt plants; and,
(2)	compelling others to operate from industrial sites (as the Applicants decided to do) and incur the rentals and overheads to which the Applicants have subjected themselves as a result of their free decision.

40.To put it bluntly, the Applicants’ grievance is that, by the Director’s decision, persons occupying the relevant lots may conceivably be able in the short term to produce asphalt more cheaply than the Applicants.

41.The Applicants suggest that in the past they deliberately refrained from taking out agricultural tenancies for their asphalt plants in deference to Government’s intended uses for the area and out of respect for the environment.  While that might make the Applicants good citizens who should be commended for their civic spirit, I do not think such conduct is itself enough to found locus.

42.The Applicants’ choice to use industrial land was one made of their own volition.  Nothing prevented the Applicants in the past and nothing hinders them now or in the future from themselves leasing agricultural land and applying for waivers similar to those granted here. 

43.Of course, necessary permissions may or may not be given by the Government.  Even if permissions are granted, the Government may as landlord also impose temporal or other conditions to the waiver that might render an asphalt plant economically unviable.  This is because a mere short term investment of (say) the capital needed to start an asphalt plant may or may not make financial sense. 

44.But these are ordinary commercial risks which the Applicants as every other entrepreneur (including the occupiers of the lots here) can decide whether or not to undertake. 

45.There can be no unfairness to the Applicants.  The course that the occupiers of the relevant lots have taken and the risks inherent in that course, were, are, and remain open to the Applicants.

46.It seems to me that, much as Morbaine was attempting to use judicial review in a commercially opportunistic manner, so are the Applicants here.  As Blackburne J stresses, mere opportunism falls far short of the interest which is needed to ground a judicial review application.

47.It is instructive to contrast the English Court of Appeal’s decision in R v. Department of Transport, ex p. Presvac Engineering ltd., transcript (25 June 1991).

48.Presvac complained that the Department had wrongly applied standards enacted by the Merchant Shipping (Cargo Construction and Survey) regulations.  Presvac said that, as a result, the Department had certified a competitor’s valves as meeting the standard, when in fact those valves were sub-standard.

49.At first instance, Phillips J held that Presvac did not have a sufficient interest on which to base its application for judicial review.  The Court of Appeal disagreed.

50.There was obvious unfairness if Presvac was right in its allegations.  In applying a statutory standard inconsistently, the Department would have been giving an unfair advantage to Presvac’s competitor.  The competitors’ products would have been made to appear to be better than they actually were.

51.But this is not the situation here.  The course taken by the occupiers of the DD 134 Lots was and is available to the Applicants.  They, too, can search for a suitable agricultural tenancy and make out a case to the Director for a waiver.

52.This is not in fact the first judicial review application of this nature mounted by the Applicants.

53.In Anderson Asphalt Ltd. and others v. Town Planning Board and Man Fai Tai Enterprise Ltd. HCAL No. 61 of 2003 (22 March 2006), the Applicants sought judicial review of a decision of the Board.  They claimed that the Board had wrongly approved Man Fai’s application to use agricultural land in Sha Ling temporarily (3 years) for the purposes of asphalt production.

54.Much as here, the Applicants contended that the Board erred because it failed to consider whether the usage permitted was truly temporary.  It was also alleged that the Board’s permission frustrated planning intention.  In the case of Sha Ling, that intention was said to be manifest from an “Agricultural” zoning in an Outline Zoning Plan (OZP).

55.After considering the cases on locus (including Springimage), Chung J (at §50) dismissed the Applicant’s judicial review on the ground (among others) that they lacked sufficient commercial interest to justify their judicial review.  For the reasons discussed above, I respectfully agree with Chung J.

56.By way of alternative, it was argued before Chung J that Applicants had locus because they “have been allowed by the Board to take part in the application before the Board”.  Before Chung J, Patmor Ltd. v. Edinburgh District Licensing Board [1987] SLT 492 was cited in support of the Applicants’ fallback position on locus.

57.Chung J (at §51) rejected the submission.  He pointed out that “[m]ere participation in an earlier proceedings which leads to this application cannot confer such interest”.  Chung J found nothing in Patmor that made good the Applicants’ proposition.

58.Here, by way of fallback position, the Applicants similarly claim a sufficient interest:-

“	since the Applicants have been allowed by the Director, through the Asphalt Association, to participate and make written submissions against the subject Waiver Application”.

59.As before Chung J, the submission is problematic here.  It is a bootstrap argument.

60.The Applicants are in essence “busybodies”.  Just because the Director allowed them to raise objections and took account of their objections before coming to a decision, cannot bestow a sufficient particular interest where there was none in the first place.

61.Before me, the Applicants cite Beebee and Patmor in support of their fallback submission.  But I can find nothing in either that assists them.

62.In Beebee, even though WWF could show more connection with the subject matter of the review than the Applicants appear to be able to do here, that was not enough to confer locus on WWF.

63.In Patmor, the question was whether a licensing board had rightly granted a gaming licence to a petitioner.  Existing holders of licences within the board’s area objected.  Later, some objectors applied for judicial review.  Lord Jauncey held that the objectors had title to seek judicial review.

64.But I doubt that Lord Jauncey would have held as he did if the objectors had come from outside the licensing board’s area.  The objectors’ argument was that the gaming market in the area was saturated.  The board’s decision to grant an extra licence would have directly affected the commercial interests of all existing licence-holders.  That is different from here.

65.In summary, I do not think that the Applicants have made out an arguable case on locus.  They are plainly not directly affected by the decision sought to be impugned.  The consequence is that I should refuse leave.

66.Nonetheless, for the sake of completeness, I shall proceed to examine the Applicants’ substantive grounds of review.

B. Substantive Ground 1: Alleged failure to give reasons

67.This ground is another way of saying that the Applicants have locus.

68.Given the Applicants are mere busybodies, one asks rhetorically why the Director should provide them with any more explanation for the decision than he has already done. 

69.The Applicants are strangers to the transaction impugned which is between the Government as landlord and the lessees of the lots.  On what basis is the Director obliged to divulge detailed information about the transaction to outsiders such as the Applicants?  Indeed, Government could risk infringing the confidentiality between itself and its lessees if it too freely dispensed information.

70.Mr. Manzoni (appearing for the Applicants) points me to no ordinance or regulation requiring the Director to disclose information to persons in the Applicants’ position. 

71.Mr Manzoni instead relies on Ward v. Secretary of State for the Environment (1989) 59 P & CR 486.  There Lord Woolf said (at 487):-

“

With regard to the requirement to give reasons it suffices to say that the reasons must be ones which are understandable to those who will receive those reasons.  In particular they have to be reasons which are understandable to the applicant (in this case the developer who wished to develop the site), and also those who objected to the proposed development, which includes the present appellant.  However, the court in a series of authorities has made it clear that a decision letter of an inspector must be approached with due allowance for the fact that the document is not now normally drafted with any legal assistance; it must not be construed in the same way as one would construe a statute, and above all it must be looked at as a whole and judged on the basis of the impression created when the decision letter is looked at as a whole, rather than concentrating on a particular sentence or paragraph in the letter.”

72.I make 2 observations on Lord Woolf’s dictum.

73.First, I do not think that the dictum is relevant here.

74.In Ward the person seeking judicial review was a villager living in a conservation area.  He objected to a development in his village.  But he failed.  The inspector granted permission.  The villager mounted a judicial review.  There was no doubt that the villager was directly affected by the inspector’s decision and had locus.  The villager was thus entitled to be told clearly why his objection failed.

75.That is not the situation here.  For reasons already mentioned, the Applicants are outsiders without locus.

76.Second, even if Lord Woolf’s dictum were apposite, I do not think that it helps the Applicants.

77.Obviously, reasons for a decision should be adequately articulated by a document.  But (as Lord Woolf stresses) a decision letter is to be construed (and its adequacy evaluated) by reference to the context in which it is produced. 

78.A letter of explanation to persons directly affected by a decision may have to be fuller in its articulation of reasons, than a letter to a stranger who, without reference to any enforceable legal right, has simply written unsolicited to complain about a particular decision. 

79.On this principle, the Lands Conference minute and the Director’s 7 December 2005 letter to JSM are together plainly adequate in their context.

80.Consequently, I do not believe that this 1st ground of review is sustainable.

C. Substantive Ground 2: Alleged failure to consider relevant matters

81.The Applicants submit that the Director ignored the following:-

(1)	the Planning Guide and SRP;
(2)	the de facto long-term nature of the waiver; and,
(3)	the potential adverse environmental impacts, including the effect on the butterflies of Lung Kwu Tan.

C.1 The Planning Guide and SRP

82.The Applicants’ Notice for judicial review describes the Planning Guide and SRP as follows:-

“	The non-statutory administrative plans prepared by the Planning Department can be of different scales, examples of which are set out below:-
	...
	(iii)	At a higher level are Planning Guides and [SRPs] which bring together wide areas, such as the whole of the North Western New Territories including Yuen Long and the Tuen Mun districts.  These plans will generally be followed in land transactions where the Government is in a position to determine the user of lands by way of lease modification or the drafting of lease documents for the sale of Government land.  These approved plans are available for the public to inspect and purchase.  The Lung Kwu Tan area is covered by such approved administrative plans.”

83.According to the Applicants, under the Planning Guide:-

“	the area within which the relevant Lots are located and its vicinity have been earmarked for public recreational use”.

84.The Applicants point out that, in the SRP, Long Kwu Tan falls within a Countryside Conservation Area (CCA).  The Applicants note that CCA designations in the SRP for certain nearby plots actually resulted in those plots being zoned as Conservation Areas in the Ping Shan, Tai Tong and Kam Tin South OZPs.  The Applicants infer from this that the CCA designation for Long Kwu Tan is a strong indicator of Government intention.

85.The Applicants claim that the Director’s decision contravenes this indication.

86.Neither the Planning Guide nor the SRP have legal force.

87.In addition, the Planning Guide bears the following Note 1:-

“

The zoning shown on the face of this plan has no statutory effect.  It will, however, generally be followed in land transactions when Government is in a position to determine the user of land by way of lease modification or sales of Government land.  Where this zoning conflicts with the use permitted under existing ease conditions, then the zoning on the plan cannot be used other than as a guide to the development or redevelopment which Government wishes to encourage.”

88.A Note 3 to the Planning Guide further provides:-

“	The size and location of the various major community facilities listed above to be determined in the light of detailed studies.”

89.The Planning Guide is chopped “Subject to Alteration without Notice”.

90.Notes 1 and 3 and the chop to the Planning Guide make it plain that the Planning Guide (as its name suggests), is meant to be a long-term guide to intended future uses of the Lung Kwu Tan area.  Much remains tentative.  Nothing has been finally decided and even the size and location of community facilities (including recreational facilities) are subject to further detailed study.

91.In that context, I am unable to see how the Director’s decision to allow temporary use of the relevant lots for an asphalt plant can be said to contravene any long-term intention manifested by the Planning Guide and SRP.

92.JSM’s September and November 2005 letters specifically drew the Planning Guide and SRP to the Director’s attention.  They were clearly considered by the Lands Conference.  The minutes say so. 

93.If, having been directed to the Planning Guide and its Notes, the Director decided to exercise his discretion temporarily to waive the restrictive covenant, I do not think that he can be said to have acted irrationally or unreasonably. 

94.There is nothing (apart from the Applicants’ assertion) to indicate otherwise.  I include in this observation the environmental impacts which are raised by the Applicants and which I will consider below.

95.As far as I can see, the “intention” indicated by the Planning Guide can still be carried out at some future time. The temporary use of the lots for an asphalt plant should not prevent the “intention” from one day becoming a reality (if and to the extent justified by further detailed study).

C.2 True nature of waiver

96.The Applicants say that an asphalt plant requires a heavy initial capital investment.  That level of investment means that short term use of plant will not normally be financially viable.

97.The Applicants also note that the waivers granted in respect of Lots 176, 177 and 182 mentioned above have continued to this day.

98.From these 2 slim premises, the Applicants deduce that any waiver granted to the lots in these proceedings would in reality be long term.  The waivers (the Applicants allege) will simply be automatically renewed year after year.  The Director (the Applicants contend) failed to take this into account.

99.The Applicants’ conclusion of a de facto long-term waiver is pure speculation.  It does not follow logically from the premises postulated. 

100.On Lots 176, 177 and 182, all that has happened is that Government has not seen fit to determine its permission.  Neither side has given notice to end the temporary arrangement reached.

101.But this does not alter the fact that, when he deems appropriate, the Director may give notice to end the waiver previously granted.  If (despite notice of termination) the occupiers persist in a user which has become prohibited, the Government may re-enter.  There can be no suggestion that, without more, the occupiers of Lots 176, 177 and 182 have some “legitimate expectation” of enjoying their waiver for as long as they want.

102.One cannot deduce from the proposition that an asphalt operator needs years to pay off his initial investment, that the Government’s waiver here must (contrary to what the Director has said) be long-term. 

103.The asphalt operator decides whether to take a risk that his investment will not be recouped in whatever short-term period he is allowed by the Director.  The return on the operator’s investment is not a matter of concern to the Director of Lands.  Simply because an operator has taken the plunge and invests money in an asphalt plant, does not entitle him to claim a long-term waiver.

104.Consequently, I do not accept that the Director failed to consider that the waiver granted would actually be long-term.  The fact is that the Director granted a short-term waiver.  As landlord, he may or may not decide to terminate the waiver at the end of the period for which it was granted.  That is a subsequent decision for him in the exercise of his discretion.

C.3 Potential adverse environmental impacts

105.As already noted, the Applicants’ interest in environmental matters is not enough by itself to confer locus.  The Applicant having no connection with Lung Kwu Tan, the interest being asserted could only be that of a general member of the public.

106.The Applicants essentially assert that the Director took no account of environmental impacts.  In their Form 86A Notice, the Applicants suggest possible impacts, based on certain assumptions, and then state that the Director failed to take such impacts into account.  No evidence is provided in the Form 86A Notice or in any affidavits to back up the bold assertion of non-consideration by the Director.

107.In particular, the Applicants say in their Form 86A Notice that the Director failed to consider that the relevant lots were in an area identified by the Agriculture, Fisheries and Conservation Department as a key conservation site for butterflies.  This specific point about butterflies had not previously been raised by the Applicants in any objection letters.

108.In the absence of anything other than assertion, the Applicants cannot be said to have shown an arguable or prima facie case of judicial review in relation to environmental impacts.

109.Mr. Manzoni suggests that the Applicants are not in a position to do more than assert unless the Director articulates his reasons and makes discovery of relevant documents. 

110.Such submission amounts to saying that this judicial review application is little more than a fishing exercise. 

111.The point of a liminal leave stage in judicial review is to filter out applications which do not meet the low threshold of presenting a coherent case.  I do not think that, in general, mere assertion in the hope that something may turn up on discovery later can amount to a coherent case.

112.There are, of course, situations where the general rule of thumb just mentioned may be displaced.  Where, for example, a person has a right to receive fuller reasons for a rejection, then (if denied such fuller reasons) he may be granted judicial review.  Otherwise, that person’s particular rights may be frustrated by an authority’s lack of frankness and candour.

113.But that is not the case here.  As discussed, the Applicants as mere busybodies are not entitled to more reasons than they have already been given.

114.There is a further point.

115.The objection letters expressed (albeit vaguely) the Association’s concerns about potential environmental impacts from running asphalt plants in Lung Kwu Tan.  In the circumstances, the Association’s environmental concerns would have been in the Director’s mind and would have been borne in mind in the ordinary course of events. 

116.The Director says that the environment was indeed taken into account.  The Lands Conference minute and the Director’s letter of 7 December 2005 unequivocally state that environmental matters were canvassed.  There is no evidence or suggestion from the Applicants that such statements have been made in bad faith.

117.In those circumstances, it cannot simply be asserted that the Director failed to take relevant environmental considerations into account.

C.4 Conclusion on Substantive Ground 2

118.The Applicants’ case on this ground is untenable.

D. Substantive Ground 3: Alleged consideration of irrelevant matter

119.The Applicants contend that it was unreasonable for the Director to take into account the fact that previous waivers had been granted for Lots 176, 177 and 182.

120.This can be quickly disposed of as a ground.

121.It must be relevant that there have been precedents for the grant of waivers.  The weight to be attached to such precedents is a matter for the Director’s discretion.  He may accord it much or little weight.  But he cannot ignore the precedents.

122.Indeed, to ignore the precedents could be said to be unreasonable.  If permission has been granted to others in relation to a concrete plant and a strong facility for compressed gasses, why (the lessees of the relevant lots might ask) should permission be denied one here?  The lessees would probably be entitled to some explanation for their different treatment.

123.The Applicants may think that the grant of a short-term waiver previously “would militate” against the grant of another waiver in the present case.  But how does that possibility make the Director’s exercise of his discretion unreasonable or irrational?

124.In short, if the Applicants are saying that the Director was wrong to refer to previous waivers, that would be an extreme view which cannot be right.  If the Applicants are saying that they disagree with the weight which the Director accorded to the grant of previous waivers, that is not enough to establish that the Director acted unreasonably.

125.This ground thus also seems to me untenable.

IV. Conclusion

126.The Applicants lack the requisite locus to bring a judicial review.  In any event, their alleged grounds are unarguable.  Leave to bring judicial review is therefore refused.

127.In this Judgment, I have simply assumed (without deciding) that the granting of a short-term waiver by the Director to lessees is susceptible to judicial review. 

128.There is an argument that in granting a waiver Government was simply acting as a commercial landlord.  It could be said that such act was not administrative in nature and consequently not susceptible to judicial review by the Courts.  I stress that this Judgment should not be taken as having determined that the waiver of the leasehold covenant here was in law amenable to being reviewed judicially.

Mr. Charles Manzoni instructed by Messrs Johnson, Stokes & Master, for the Applicants