Case Document

100%Judiciary

CACV 356/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 356 OF 2006

(ON APPEAL FROM HIGH COURT CONSTITUTIONAL & ADMINISTRATIVE LAW LIST NO. 61 OF 2006)

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BETWEEN
	FINE TOWER ASSOCIATES LIMITED	Applicant/Appellant
	and
	TOWN PLANNING BOARD	Respondent/Respondent

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Before: Hon Ma CJHC, Stock JA and Chung J in Court

Date of Hearing: 8 April 2008

Date of Judgment: 8 April 2008

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J U D G M E N T

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Hon Stock JA:

1.On 27 July 2007 this Court dismissed an appeal from a judgment in an application for judicial review. The issue in the case was “whether the effect of an outline zoning plan that sets apart a zone for a specified use which is inconsistent with the use permitted by conditions of grant or exchange to an owner of property within the zone, amounts to a deprivation of that owner’s property, entitling him therefore to compensation.”

2.By Notice of Motion, the appellant now seeks this Court’s leave under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, contending that the following questions are involved in the appeal and are of great general or public importance:

“(i)	in considering whether the effects of an Outline Zoning Plan (‘OZP’) have resulted in a de facto deprivation of land, the Respondent is entitled to take into account any ‘hope value’ in the land as affected by the OZP.
(ii)	in considering whether an OZP has resulted in a de facto deprivation of land, whether a relevant legal consideration for the Respondent is the deprivation of the only permitted use of the land brought about the effect of the OZP.
(iii)	in considering whether, as a result of an OZP, a landowner has been denied all economically viable use of his land, the Respondent is entitled to take into account any other possible use of the land under the policy of the Government, in its capacity as a landlord, to accept modifications of a lease upon payment of a premium, irrespective of the fact that:-
	(1)	the Government is not bound by that policy;
	(2)	in considering terms upon which it would be willing to modify a lease, the Government is entitled to be wholly unreasonable; and
	(3)	any decision of the Government in accepting or refusing modification of lease and the terms upon which it would be willing to modify are not subject to any judicial or other control.
(iv)	in considering whether, as a result of the OZP, there has been a de facto deprivation of a landowner of his property, the Respondent may disregard:-
	(1)	the fact that the only permitted use of his land under the Government lease has been taken away; and
	(2)	the landowner may not lawfully use his land for any purpose consistent with those permitted under the OZP and, to so do, to pay for such use upon terms and conditions at the mercy of the Government as his landlord.”

3.As for the first question, I do not consider as arguable the contention that “hope” value is irrelevant to the question of economically viable use.

4.The answer to the second question is, in my judgment, too obvious to warrant a certificate. No one suggested other than that the change in permitted use was a relevant consideration.

5.The third question is circular. If someone has been denied all economically viable use of his land, he is entitled to compensation. The true issue is whether on the facts of a particular case such use has been denied. I do not think it arguable that other possible use is irrelevant to that issue.

6.The fourth question is, in its effect, a regurgitation of the first.

7.In short, I am of the opinion that none of the questions posed is one that ought to be submitted to the Court of Final Appeal and, accordingly, I would refuse leave.

Hon Ma CJHC:

8.I agree.

Hon Chung J:

9.I agree and have nothing to add.

Hon Ma CJHC:

10.The application is dismissed with costs.

(Geoffrey Ma)
Chief Judge, High Court

(Frank Stock)
Justice of Appeal

(Andrew Chung)
Judge of the Court of First Instance

Mr Philip Dykes SC instructed by Messrs Chui & Lau for the Applicant/Appellant

Mr Jat Sew-Tong SC and Mr Abraham Chan instructed by the Department of Justice for the Respondent/Respondent

Cited by 1 case