Read the full judgment text of HCAL 28/2006 on BabelCite. This High Court CFI judgment was delivered on 16 March 2009 before Hon A Cheung J.
Administrative law – judicial review – amenability – District Lands Conference – short-term waivers – lease modification – Hang Wah Chong principle – public/private law distinction – town planning – non-statutory administrative plans – standing – delay. The applicants were asphalt producers and members of the Asphalt Association who challenged the Director of Lands' decisions to grant short-term waivers permitting an asphalt plant on agricultural lots in Lung Kwu Tan covered by non-statutory administrative plans, and to refuse to terminate the waivers. The lots were not subject to any statutory town plan. The court reviewed the Hang Wah Chong principle and its application, holding that the Director of Lands' decisions on short-term waivers, like those on lease modifications, are private law decisions of the Government acting as landlord and are not amenable to judicial review. The mere presence of planning considerations, or of non-statutory administrative plans like the Tuen Mun New Town Western Extension Area Planning Guide (1985) and the North Western New Territories Sub-region Land Use Plan, is insufficient to render the decision a public law one, particularly given that the administrative plans have no statutory force, are subject to change without notice, and were not subject to public consultation. Whether the applicants had standing – Whether the Director failed to consider relevant matters including planning intention, the non-temporary nature of the plant, and environmental impact – the court held that all such matters were considered by the District Lands Conference and addressed in the conference minutes. Whether the Director took into account irrelevant matters – held that the temporary nature of the waivers was a material consideration given the Government's right to terminate at three months' notice, and the absence of any prohibition on granting waivers merely reflected the private landlord position. Whether the Director failed to give adequate or intelligible reasons – held that the brief reasons given in the conference minutes were adequate and intelligible in context, and there was no general duty to give reasons. Whether the Director made a decision to refuse to terminate the waivers – held on the factual evidence of an Assistant Director that no such decision was made; the letter merely conveyed disagreement with the applicants' contentions. Whether the applicants had sufficient standing – held that even assuming the decisions were amenable to review, the applicants' pure commercial and economic interests as competitors were too remote and indirect, with no proprietary or local connection to the land; the case was distinguishable from the Sha Ling proceedings concerning a Town Planning Board s.16 permission. Whether s.21K(6) of the High Court Ordinance (Cap 4) applies to delay in prosecuting an appeal from refusal of leave – held that the rationale for denying relief for undue delay applies to every step in the judicial review procedure including prosecution of an appeal from refusal of leave, following Lord Goff's flexible construction in Caswell. Both applications dismissed with costs nisi to the respondent, two counsel certified.
Legal issues: Amenability of Director of Lands' decisions on short-term waivers to judicial review · Whether the Director failed to consider relevant matters in granting the short-term waivers · Whether the Director took into account irrelevant matters · Whether the Director failed to give adequate or intelligible reasons · Whether the Director made a decision to refuse to terminate the short-term waivers · Whether the applicants have sufficient standing to bring the judicial review · Application of s.21K(6) of the High Court Ordinance to delay in prosecuting appeal against refusal of leave
Outcome: Both applications for judicial review dismissed. HCAL 28/2006 (challenge to grant of short-term waivers) and HCAL 98/2007 (challenge to refusal to terminate waivers) both fail on the basis that the decisions are not amenable to judicial review, and in any event fail on the merits, standing, and delay.
Cited by 3 cases · Cites 7 cases