Read the full judgment text of HCAL 000087/2007 on BabelCite. This High Court CFI judgment was delivered on 10 August 2007 before M H Lam.
Constitutional and administrative law – judicial review – Antiquities and Monuments Ordinance (Cap.53) – section 3 declaration of monument – Queen's Pier – whether the Authority fettered his discretion by adopting a 'high threshold' of 'indisputable significance' and effectively limiting the exercise of his power to pre-war buildings – whether the Authority's decision was Wednesbury unreasonable in overriding the Antiquities Advisory Board's Grade I classification – scope of the Board's advisory role under section 18 of the Ordinance – distinction between the condition precedent for the exercise of the section 3 power and the sufficient condition for making a declaration – relevance and weight of the Board's non-statutory grading classification. The court held that the Authority's decision was neither Wednesbury unreasonable nor based on the wrong test. The grading regime is an internal administrative mechanism and a classification by the Board is not binding on the Authority. The Board was not asked at its 9 May 2007 meeting to advise on whether a section 3 declaration should be made and the AMO was entitled to put forward an independent professional assessment. Setting a high threshold for declaration under section 3 is a legitimate exercise of the wide statutory discretion given the serious consequences under section 6 and the availability of other preservation options. The application was dismissed. The question of costs was reserved; the court noted that the Applicants were on legal aid and the matter potentially fell within the public-interest exception in Lo Siu Lan v Hong Kong Housing Authority CACV 378/2004 and Ho Choi Wan v Hong Kong Housing Authority FACV 1/2005, but directed written submissions on costs unless parties reached agreement by 15 August 2007.
Legal issues: Wednesbury unreasonableness in overriding the Board's Grade I classification · Application of wrong test / pre-war building criterion and high threshold under section 3
Outcome: Application for judicial review dismissed; both Wrong Test challenge and Wednesbury challenge fail.
Cited by 1 case · Cites 3 cases