Capital Rich Development Ltd and Another v. Town Planning Board and Another

HCAL51/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 51 OF 2004

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BETWEEN

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Before : Hon Chu J in Chambers

Date of Decision :  31 October 2006

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DECISION ON COSTS

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1.On 9 November 2005, I handed down the Judgment (“the Judgment”) on the application to judicial review the decision of the Town Planning Board not to propose any amendment to the Draft Staunton Street/ Wing Lee Street Development Scheme Plan No. S/H3/URA1/1 to meet the applicants’ objection to it.  I refused the application and made an order nisi for costs in favour of the Board against the applicants.  I reserved the costs of the Interested Party, the Urban Renewal Authority (“URA”), and directed for written submissions to be served. 

2.The applicant and the URA had since put in their written submissions.  In summary, the URA seeks to have its costs paid by the applicants.  The applicants oppose the application and ask that there be no order in respect of the costs of the URA. 

3.Costs is a matter of the court’s discretion.  The general rule is that the unsuccessful applicant will not be required to pay more than one set of costs if there were two or more respondents appearing: see Hong Kong Civil Procedure 2004 vol.1 para.53/14/59. 

4.The general rule, however, may be displaced in some circumstances.  In Bolton Metropolitan District Council & Others v. Secretary of State for the Environment [1995] 1 WLR 1176, the House of Lords held that a second set of costs may be ordered where there was likely to be a separate issue on which the party is entitled to be heard, being an issue not covered by the other party or parties in the proceedings, or where the party has an interest which requires separate representation.  In that case, which was a planning appeal involving multiple representations, the House of Lords awarded two sets of costs to the Secretary of State and the developer because there were difficult questions of principle, on which the interests of the Secretary of State and the developer diverged and also because the applicants were financed by a consortium of major commercial interests.

5.Bolton was applied by the Court of Appeal in Shiu Wing Steel Ltd v. Director of Environmental Protection & Airport Authority, unreported, CACV 350/2003 (18 March 2005) at para.158.  In that case, the Court of Appeal considered that the Interested Party’s interests coincided with those of the Respondent and there was substantial overlap between the counsel’s submissions.  The Court of Appeal reversed the order on costs made in the Court of First Instance and made no order in relation to the costs of the Interested Party.  The Court of Appeal noted (at para.158) that the mere fact that a person has the necessary locus standi to appear does not by itself entitle that person to an order for costs should the outcome be successful.

6.In this costs application, the issue for determination is whether the URA has a separate interest or whether the judicial review involves a separate issue, which entitles the URA to be separately represented and heard.

7.I accept that the fact that the plan in issue originated from the URA and is one that relates to an urban renewal project undertaken by the URA, is by itself insufficient to entitle the URA to costs.  However, there are other circumstances that justify awarding a second set of costs in favour of the URA.

8.Firstly, the URA has a separate interest that requires separate representation at the hearing.  The URA is a public body entrusted with the tasks of undertaking, promoting, encouraging and facilitating urban renewal in Hong Kong.  It has specific statutory role and functions that include improving the standard of housing and the built environment, achieving better utilisation of land in dilapidated areas of the built environment and making land available to meet various development needs: see section 5 of the Urban Renewal Authority Ordinance, cap.563 and paragraphs 7-9 of the Judgment.  The outcome of the applicants’ challenge to the development scheme plan would have serious consequences not only for the urban renewal programme for the Staunton Street/ Wing Lee Street area, but also for urban renewal programmes in other urban areas because of the potential effect on the overall financial balance of the URA Corporate Plan: see paragraphs 87-89 of the Judgment. 

9.As for the Board, its statutory duty is to undertake the systematic preparations of draft plans.  Its overriding objective is the promotion of the health, safety, convenience and general welfare of the community: section 3 of the Town Planning Ordinance, cap.131.  In dealing with the applicants’ objection to the development scheme, it proceeded on planning merits and considerations.  A major focus of the Board in meeting this judicial review application is also the respective planning merits and considerations of the development scheme plan and the applicants’ objection and proposed development.  The other major and critical aspect of the judicial review turns on the role and function of the Board in dealing with objections to draft plans: see the grounds for judicial review summarized in paragraph 51 of the Judgment.

10.Accordingly, while both the Board and the URA stand to be affected by the direct outcome of the present judicial review, the decision also has serious ramifications for the URA in terms of the effective discharge of its overall duties.  Separate representation for the URA is thus justified.

11.Secondly, the applicants had included in their grounds for judicial review an attack on the legality of the development scheme.  It is the applicants’ contention that the development scheme failed to comply with section 25(3)(b) of URAO and was illegal. This is in substance an attack on the decision of the URA, who alone is responsible for the preparation of the development scheme.  However, no relief was sought against the URA and it was not made a respondent to the judicial review proceedings.  Nevertheless, the outcome of this attack would have grave consequences for the URA, bearing also in mind that the subject matter of the development scheme is a project that the URA is required to afford priority under the Urban Renewal Strategy. 

12.The legality of the development scheme raises a separate issue that the URA has a separate and distinct interest and is entitled to be heard.  The URA’s submissions at the judicial review hearing are directed solely to this ground of challenge.

13.The applicants argue that this ground of challenge had been covered and comprehensively dealt with by the Board in its submissions.   As accepted by the URA, both the Board and the URA had addressed this ground in their submissions.  However, they had dealt with it from different perspectives and had raised different arguments.  For the Board, its point was that in deciding whether to adopt the draft plan prepared for the development scheme, it did not have to be concerned with the implementation details.  As for the URA, in defending the lawfulness of the development scheme, it had put in evidence on and made reference to the historical background of the development scheme and the adverse effect and implications on the public if the development scheme was delayed or frustrated.  These matters are important as they enable the applicants’ challenge to be viewed and considered in context.  It is both proper and necessary for the URA to participate in the proceedings to put forward these matters and submissions.  There is also, as the URA argued, no overlapping in the Board’s and its submissions at the judicial review hearing.

14.For these reasons, I consider the URA should be paid its costs of the proceedings.  Accordingly, there is an order that the applicants pay the Interested Party the costs of these proceedings, including the costs of the hearing on 4 November 2004, to be taxed if not agreed.

Mr Benjamin Yu SC and Mr Anthony Ismail instructed by Messrs Fairbairn Catley Low & Kong for the 1^st and 2^nd Applicants.

Mr Philip Dykes SC instructed by Messrs Lovells for the Interested Party.