The Real Estate Developers Association of Hong Kong v. Town Planning Board

HCAL 58 of 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 58 OF 2011

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J U D G M E N T

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A. INTRODUCTION

1.This is the judicial review brought by the Real Estate Developers Association of Hong Kong (the applicant) against the Town Planning Board (“the Board”) in relation to its four decisions (collectively “the four decisions”) not to propose amendments respectively to four draft Outline Zoning Plans (“the Four DOZPs”) respectively for Wan Chai (“the WC DOZP”), Mong Kok (“the MK DOZP”), Yau Ma Tei (“the YMT DOZP”) and Ngau Tau Kok and Kowloon Bay (“the NTKKB DOZP”).

2.Under the DOZPs, the Board has imposed various restrictions in the subject matter districts or zones for property developments.  These restrictions include building height restrictions (“BHR”), building gaps (“BG”), non-building areas (“NBA”) and set backs (“SB”).

3.The applicant (and various other individual developers and concerned parties) had raised objections to these restrictions and asked the Board to amend the DOZPs in light of their objections.  These objections were raised firstly in writing and then later in public hearings held by the Board concerning the DOZPs.

4.In substance, the Board rejected the objections and refused to make the suggested amendments to the plans.  Those are the decisions now under challenge.

5.The applicant seeks to challenge the four decisions. The challenges are mounted on multiple grounds.  It is contended that the four decisions are unlawful as they were made ultra vires the statutory powers of the Board; that the decisions are tainted with systemic (or case specific) procedural unfairness and are not supported by adequate reasons; that they are also flawed in relation to the conclusion made on certain specific facts or issues as the Board had failed to give independent and proper considerations to them, and that the Board had failed to take into account of a relevant consideration.  I would elaborate on these grounds later.

6.The applicant asks for orders to quash the decisions, various declarations relating to procedural fairness, and for orders of mandamus to direct the Board to reconsider the decisions in accordance with the law and the said various declarations.

B. THE RELEVANT BACKGROUND

The Town Planning Ordinance

7.For the present purposes, the Town Planning Ordinance (Cap 131) (“TPO”) provides relevantly as follows:

(1) The Board is tasked to systemically prepare draft plans for the lay‑out of such areas of Hong Kong as well as for the types of building suitable for erection therein.  In the course of preparing such plans, the Board shall make such inquiries and arrangements necessary for the said preparation (s 3).

(2) The Board shall (as it deems suitable) publish and exhibit these plans for public inspection for a period of 2 months (s 5).

(3) Within the said 2 months of exhibition of a draft plan, any person may make representations to the Board in respect of the draft plan.  The representation shall indicate, inter alia, the nature and reasons for the representation.  The person shall also indicate in the representation any amendments (if any) he proposes to be made to the draft plan (ss 6(1) and (2)).

(4) After the 2-month exhibition period, the Board shall as soon as practicable make all those representations available for public inspection and shall continue to do so until the Chief Executive in Council (“CEIC”) has made a decision (“the CEIC decision”) of the draft plan under s 9 (s 6(4)).

(5) Any person may make comment to the Board of those representations that have been made available for public inspection within 3 weeks of that period of inspection (s 6A).

(6) After the expiration of those 3 weeks, the Board shall as soon as reasonably practicable make those comments available for public inspection until the CEIC decision (s 6A(4)).

(7) The Board shall also as soon as reasonably practicable after the said 3 weeks hold a meeting to consider those representations and comments.  Those persons making the presentations or the comments are entitled to attend and be heard (s 6B(1), (2), (3)).

(8) After considering the representations and comments at the meeting, the Board shall decide whether or not to propose any amendments to the draft plan in the manner proposed in the representations (s 6B(8)).

(9) If the Board does decide to make any such proposed amendments, the draft amended plans shall effectively have to go through the above process again (ss 6C-6G).

(10) The Board may also on its own make amendments to draft plans and the amended draft plans shall go through the above process as well (s 7).

(11) The Board shall submit the draft plan to the CEIC for approval:

(a) where there have been no amendments under section 7, be made before the expiration of a period of 9 months after the expiration of the period of 2 months mentioned in section 5; and

(b) where there have been amendments under section 7, be made before the expiration of a period of 9 months after the expiration both, of the period of 2 months mentioned in section 5 and of the period of 2 months mentioned in section 7.

(12) The CEIC may approve, refuse to approve the draft plan as submitted, or refer it back to the Board for further consideration and amendment (s 9).

The Four DOZPs

8.In 2010, the Board gazetted the Four DOZPs.  In these draft plans, various restrictions were imposed on specific sites or part of a site within the relevant district or zone.  They were imposed for environmental considerations to improve essentially the overall air ventilation and pedestrian flows in the relevant zones.  The applicant in this application referred to these types of restrictions as “spot” restrictions.  For convenience only but not otherwise, I would also generally refer to them as spot restrictions.

9.In general terms, these spot restrictions are:

(1) BHRs: these restrictions are imposed on a single site or part of a site which limit the height the building that could be built on that site (often by reference to the height of an existing building or part of an existing building).

(2) NBAs, SBs and BGs: under these restrictions, a zero height limit (or in the case of building gaps and setbacks a low height limit) is applied to a designated area within a particular site.

(3) Detailed specifications as to permissible and required uses and building characteristics within a single site, often reflecting the existing situation at the site (for example a maximum GFA for any new building construction on site, or for specific types of use on site, or a required minimum area of public open space on site, which matches the existing situation on site).

10.The Board thereafter published those DOZPs respectively for public inspection.

11.The applicant made various written representations to the Board regarding each of the DOZPs within the 2-month statutory period.

12.Thereafter, the applicant attended each of the respective public hearings for the four DOZPs (“the Four Meetings”) and made oral representations thereat to oppose the various spot restrictions proposed to be imposed in those plans.  For convenience, I would refer the Four Meetings, as necessary, specifically as the WC Meeting (the meeting for the WC DOZP), the MK Meeting (for the MK DOZP), the YMT Meeting (for the YMT DOZP) and the NTKKB Meeting (for the NTKKB DOZP).

13.The Board published its decisions in April and May 2011 effectively rejecting those objections and upholding the Four DOZPs.

14.The applicant brought the present judicial review against the four decisions.

C THIS JUDICIAL REVIEW

C1. Procedural matters after the hearing - Court of Appeal Judgments relevant to this judicial review

15.It is pertinent to note that most of the grounds relied on by the applicant in this judicial review had previously been advanced by other parties, and been dealt with by Reyes J in four separate judgments, namely: Turbo Top Ltd v Town Planning Board (unreported, HCAL 23 and 52/2011, 21 November 2011) (“the Turbo Top Judgment”), Oriental Generation Ltd v TPB [2012] 3 HKC 369 (“the Oriental Generation Judgment”), Lindenford Ltd v TPB [2012] 6 HKC 105 (“the Lindenford Judgment”) and Hysan Development Ltd v TPB [2012] 5 HKC 432 (“the Hysan Judgment”).

16.In the Oriental Generation, Lindenford and Hysan Judgments, specific developers whose sites were affected respectively by the relevant DOZPs sought to judicial review each of the Board’s decisions in upholding the relevant plans and rejecting the developers’ objections and representations.  The developers’ objections and representations were to a large extent similar to those also relied on by the applicant at the various Board meetings.  In the developers’ judicial reviews, they had therefore raised similar arguments now relied on also by the applicant to challenge the Board’s various decisions.  Reyes J rejected most of these arguments with detailed reasons (and incorporating some of the reasons the learned judge has expounded in the Turbo Top Judgment).

17.It is thus natural that Reyes J’s said judgments and the submissions on the correctness of them have featured largely in this judicial review.  In particular, Mr Drabble QC for the Board relied generally on Reyes J’s reasons in those judgments to ask this court to reject the applicant’s judicial review, while Mr Yu SC for the applicant contended that those judgments were incorrectly decided.

18.After the completion of the hearing of this judicial review, as the matter developed, the appeals (and where appropriate, the cross‑appeals) of the Hysan Judgment and the Oriental Generation Judgment were respectively heard by two differently constituted divisions of the Court of Appeal.  I was also asked to sit in the division hearing the Hysan Judgment appeals.

19.Given the likely important effect of these appeals on this judicial review, and the fact that I sat in one of those appeals, I have therefore decided to only hand down the judgment in this judicial review after the Court of Appeal has handed down its judgments in those appeals.

20.The Court of Appeal’s judgments in the Hysan Judgment appeals (“the Hysan Appeals Judgment”) and the Oriental Generation Judgment appeals (“the Oriental Generation Appeals Judgment”) were both handed down on 13 November 2014[1]. In both appeals, the Court of Appeal allowed the developers’ appeals (on some of the grounds raised) and quashed the relevant Board’s decisions in upholding the relevant DZOPs.

21.At the invitation of this court, the parties in this judicial review then submitted their supplemental written submissions on the impact of these Court of Appeal judgments on this judicial review on 10 December 2014.

22.Having set out the procedural developments that have an impact on this judicial review, I now turn to look at the specific grounds raised in this application

C2. Ultra vires

23.Under this ground, it is in essence the applicant’s contention that under ss 3 and 4 of the TPO, the Board is only empowered to make planning restrictions in a “broad brush” manner, which should generally apply across the broad in the relevant district or zone.  It is however not entitled to make those spot restrictions which are site specific within the district and affect (or restrict) the design of a specific building that is to be built on that site.  Thus, in imposing these spot restrictions, the Board has gone outside its statutory authority.  The decisions in upholding the DOZPs are therefore ultra vires.

24.In order to understand Mr Yu’s arguments, it is necessary to first set out ss 3 and 4 of the TPO, which provide as follows:

“3. Functions of the Board

(1) With a view to the promotion of the health, safety, convenience and general welfare of the community, the Board shall undertake the systematic preparation of –

(a) draft plans for the lay-out of such areas of Hong Kong as the Chief Executive may direct, as well as for the types of building suitable for erection therein; and

(b) draft development permission area plans of such areas of Hong Kong as the Chief Executive may direct. (Amended 62 of 2000 s. 3)

(2) In the course of preparation of the plans referred to in subsection (1), the Board shall make such inquiries and arrangements (including, if it thinks fit, the taking of any census of the occupants of any buildings or of the users of any thoroughfares or spaces) as it may consider necessary for the preparation of such drafts.

4. Contents of lay-out plans and powers of the Board

(1) The Board's draft plans prepared under section 3(1)(a) for the lay-out of any such area may show or make provision for- (Amended 4 of 1991 s. 6)

(a) streets, railways and other main communications;

(b) zones or districts set apart for use for residential, commercial, industrial or other specified uses;

(c) reserves for Government, institution or community purposes;

(d) parks, recreation grounds and similar open spaces;

(e) zones or districts set apart for undetermined uses;

(f) comprehensive development areas; (Added 2 of 1988 s. 2)

*(g) country parks, coastal protection areas, sites of special scientific interest, green belts or other specified uses that promote conservation or protection of the environment; (Added 4 of 1991 s. 6)

*(h) zones or districts set apart for use for village type development, agriculture or other specified rural uses; (Added 4 of 1991 s. 6)

*(i) zones or districts set apart for use for open storage, (Added 4 of 1991 s. 6)

and any matter whatsoever may be shown or provided for or specified in or in respect of the plans by means of such diagrams, illustrations, notes or descriptive matter as the Board thinks appropriate; and any such diagrams, illustrations, notes and descriptive matter shall be part of the plans. (Replaced 59 of 1974 s. 2)

(2) The Board may recommend to the Chief Executive in Council the resumption of any land that interferes with the lay‑out of an area shown on a draft or approved plan or on a master lay-out plan approved under section 4A; and resumption to avoid such interference shall be deemed to be resumption for a public purpose within the meaning of the Lands Resumption Ordinance (Cap 124). (Amended 2 of 1988 s. 2; 29 of 1998 s. 44; 62 of 2000 s. 3)

(3) Except in the case of resumption under the said Ordinance no compensation shall be paid to the proprietor or any person interested in any holding by reason of the fact that it lies within or is affected by any zone or district set apart under subsection (1)(b).”

25.Mr Yu’s arguments run in summary as follows.

26.First, it has been decided in a number of authorities in Hong Kong that the Board is only to make broad brush planning judgments in the preparation of the layout plans:

(1) Crozet v Attorney General [1973-1976] HKC 97 at 100E-f where Briggs CJ said: ‘The powers of the Planning Board are widely drawn in the Ordinance and must be liberally construed.  They do not include such matters as the proportions, height and design of buildings.  That is left to the Building Authority under the Building Ordinance.’

(2) Attorney General v CC Tse [1982] HKLR 7 at 14 and 15.  The Court of Appeal considered the two limbs in section 3(1), viz. preparation of draft plans for “the future lay‑out of such existing and potential urban areas” and “for the types of building suitable for erection thereon”.  Cons JA considered that “types of building” means “classes of buildings sharing common architectural characteristics” (p 14I) and that plot ratio restriction was of the ‘broad brush’ kind (p 15G).

(3) Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432 at 438C-I.  Godfrey J expressly approved the dicta of the Appeal Tribunal (Buildings) to the effect that whereas the Board is concerned with planning considerations for a particular zone or area, the Building Authority and the Building Appeal Tribunal are concerned with a particular site or specific building development.

27.Mr Yu submits that these authorities show that the power of the Board in preparing draft OZPs are for the “lay-out areas of Hong Kong” and “for the types of buildings” in such zones or area. Thus, both on a reading of the plain meaning of the words under ss 3 and 4 of the TPO and under these authorities, the Board’s statutory power is to define broad brush parameters in the planning of the area, but not a power to impose restrictions on a particular building.

28.Mr Yu further says it is trite in the construction of statutes that they should not be construed to take away private property rights without compensation unless it is clearly and expressly provided in the statute to be so[2].

29.At the same time, it is leading counsel’s contentions that by way of these spot restrictions, the development intensity and flexibility of a site within these DZOPs are clearly affected or restricted.  This would affect the development intensity and thus the value of the site.  Therefore, the Board by way of the spot restrictions has “taken away” private property rights.  This is not permitted given that ss 3 and 4 of the TPO clearly do not provide expressly the power to do so.

30.Similar arguments had been raised by Mr Yu (as counsel in that case) before Reyes J in the Turbo Top case.  That case concerned some spot restrictions imposed by way of the OZP in Central where the relevant building owned by Turbo Top was sited.  The learned judge rejected the above arguments in a detailed analysis at paragraphs 51‑113 of the judgment.  The learned judge later adopted the same reasons in the Hysan, Lindenford and Oriental Generation Judgments to reject the developers’ similar arguments.

31.The Court of Appeal then in the Hysan Appeals Judgment at paragraphs 18‑42 and the Oriental Generation Appeals at paragraph 42 has similarly rejected these arguments[3]. The Court of Appeal held that the Board has power to impose BHRs, NBAs or SBs as a matter of vires.

32.The Court of Appeal decisions are binding on this court, and I would therefore similarly reject this challenge on the ground of ultra vires.

C3. Procedural unfairness – systemic and specific

33.Under this challenge, Mr Yu attacks the fairness of the procedures adopted by the Board for the purposes of the public hearings at two levels: systemically at the general level regarding the procedures generally adopted by the Board in holding such meetings; and specifically in relation to the actual circumstances particular to each of the Four Meetings.

34.It is the applicant’s case the following features relating to the public hearing held by the Board under s 6B of the TPO amount to systemic procedural unfairness:

(1) The Board’s practice of refusing to accept written representations submitted by a person after the 2-month statutory period (collectively “the supplementary representations”), even the supplementary representations are only to explain and elaborate on the written representation made by the same person filed with the 2-month period under s 6 of the TPO.  This practice has been set out in the Board’s guidelines No 29(A) (“the Guidelines”) (“the supplementary materials complaint”)[4].

(2) The Board’s practice of only circulating the supplementary representations among the Board members on the day of the hearing, and at the same time allowing the Planning Department (“PlanD”) to rely on new materials at the hearing (“the circulation of materials complaint”).

(3) The Board’s practice of not adjourning a hearing generally unless there are exceptional circumstances and with the consent of all the parties, as stated in the Guidelines, coupled with the Board’s practice of “squeezing” the consideration of all the representations in relating to a draft OZP by holding the hearing at long hours (from early morning until late night) in order to complete it within one hearing (“the workload and scheduling complaint” and “the non-adjournment complaint”).

(4) The fact that not all the members who form the final quorum of the Board to make the final decision of a hearing may have heard all the oral representations made at the hearing because members of the Board would come in and out of the hearing (sometimes for a long period of time) while the hearing is still on going (“the members leaving complaint”).

(5) The Board has reversed the burden of proof at the hearing (“the burden of proof complaint”).

35.Mr Yu emphasizes that the above procedural unfairness operates at a systemic level as well as (and at least) specifically at the Four Meetings in the present case.  Leading counsel also reiterates that the applicant relies on the combined effect or consequence of all the above identified features to support a case of procedural unfairness.  It is further contended that the unfairness is underlined by the Board’s failure to make sufficient inquiries (under s 3(2) of the TPO), particularly in light of its consultative role and statutory scheme stipulated by the TPO[5].

36.Before dealing with these complaints, I would make a few preliminary observations first.

C3.1 Preliminary observations

37.As a start, it is important to note that the Board is performing an administrative but not judicial function.  At common law and in the absence of inconsistent legislative intervention, administrative and domestic tribunals are generally regarded as masters of their own procedure possessing a flexible discretion to take whatever procedural course may be dictated by the requirement of fairness: Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237, at paragraph 138 per Ribeiro PJ.

38.Further, what fairness demands insofar as procedure is concerned must be dependent on the particular circumstances of each case.  There can be no hard and fast rule.  As noted in Sheridan v Stanley Cole (Wainfleet) Ltd [2003] 4 All ER 1181 at paragraph 33:

“It is… impossible to lay down a rigid rule as to where the boundaries of procedural irregularity lie, or when the principles of natural justice are to apply, or what makes a hearing unfair. Everything depends on the subject matter and the facts and circumstances of each case.”

39.Bearing these general principles in mind, I now turn to look at first the systemic challenge.

C3.2 Systemic challenge

C3.2.1 The supplementary materials complaint

40.The applicant’s arguments under this complaint can be summarised as follows.

41.The Guidelines provide relevantly as follows:

“Any representation/ comment/ further representation must be made within the statutory time limit for submission. Representations/ comments/ further representations which are made after the expiration of their respective statutory time limits set out in paragraph 3.3 below shall be treated as not having been made. It is the duty of the representers/ commenters/ further representers to provide sufficient information when making the submission to the Board. Since a clear sequence of procedural requirements has to be followed within the statutory time frame, there is no provision under the Ordinance for submission of further information to supplement a representation/ comment/ further representation after their respective statutory time limits.”

42.It is also the applicant’s understanding (which is not disputed by the Board) that, in cases where the Board does not accept the supplementary materials submitted by the representers after the 2-month statutory period, the Board does not circulate those materials to its members until usually the day of the relevant meeting itself.

43.Further, the Board’s own evidence[6] confirms that it is not permissible for representers and commenters to present at the hearing “new materials”, while “elaboration and substantiation” of information already submitted could be presented “at the hearing”.

44.Under the Board’s above procedures in treating the supplementary materials, its members simply would not (contended Mr Yu) have sufficient time to digest and understand these materials (which are there to explain and elaborate on the representations).  This results in unfairness at a systemic level to the representers and commenters generally and the applicant in particular.

45.I disagree.

46.S 6 of TPO provides:

“(1) Within the period of 2 months during which a draft plan is exhibited under section 5, any person may make representation to the Board in respect of the draft plan.

(2) A representation referred to in subsection (1) shall—

(a) indicate—

(i)the particular matter in the draft plan to which the representation relates;

(ii) the nature of and reasons for the representation; and

(iii) the amendments (if any) proposed by the person to the draft plan; and

(b) be made in such manner as the Board requires.

(3) Where a representation referred to in subsection (1)—

(a) is made to the Board after the expiration of the period of 2 months referred to in subsection (1), it shall be treated as not having been made; or

(b) does not comply with any of the requirements specified in or made under subsection (2), it may be treated as not having been made.

(4) The Board shall, as soon as reasonably practicable after the expiration of the period of 2 months referred to in subsection (1), make all representations made to it under that subsection available for public inspection at reasonable hours, and shall continue to do so until the Chief Executive in Council has made a decision in respect of the draft plan in question under section 9.

(5) In respect of any representations which are available for public inspection under subsection (4), the Board shall cause a notice that complies with subsection (6) to be published in 2 daily Chinese language local newspapers and 1 daily English language local newspaper once a week during the first 3 weeks of the period during which the representations are so available for public inspection.

(6) A notice referred to in subsection (5) shall—

(a) specify the place and hours at which the representations to which the notice relates are available for public inspection under subsection (4); and

(b) indicate that comments may be made to the Board in respect of the representations under section 6A(1) and specify the place and hours at which any comments so made will be available for public inspection under section 6A(4).”

47.As submitted by Mr Drabble QC (for the Board), the wording of the Guidelines essentially follows and gives effect to the requirement under s 6 that the representations must be made to the Board within the 2‑month statutory period.  Further, under this provision, such representation has to be made available for public inspection after that two-month period.  Given the latter requirement, I accept the Board’s submission that if information is permitted to be submitted outside that statutory period, there is a real risk that members of the public will be deprived of their statutory entitlement to consider and respond to it.  It must also be borne in mind that members of the public may disagree with the representers’ views or objections and would want to respond to those further representations if allowed to come in as part of the representations[7].

48.In the circumstances, there is nothing unlawful, inherently wrong or unfair for the Board to refuse accepting any “further” representations from the representers or commenters.  It is pertinent to note that the applicant does not challenge the legality (in the sense of vires) of the Guidelines or practice.

49.The Board in only circulating the supplementary materials at the hearing has in effect treated them as part of the oral representations to be made at the hearing.  There is also nothing systemically wrong in that treatment, since it is the applicant’s own case that they are materials to elaborate on and explain the original representations.

50.What the complaint really therefore boils down to is that the supplementary materials are only circulated to the members at the day of the hearing and thus it is practically unlikely that the members would have sufficient time to digest and understand them.

51.Whether the members do understand the supplementary materials must be a matter of fact dependent on the circumstances of each case.  This challenge on its own cannot in my view show any systemic defect of the procedure.

52.There is no systemic unfairness demonstrated in this procedure in relation to the supplementary materials.  I reject this complaint.

53.As to whether factually in relation to the Four Meetings, the members did understand the supplementary materials, I will deal with them in the latter part of this judgment when I look at the specific challenge on procedural unfairness.

C3.2.2 The PlanD new materials complaint

54.The applicant’s complaint is that it is its “experience” that at the Board’s hearings for representations, fresh materials are “sometimes” presented by the PlanD.  The representers and commenters have not seen these materials prior to the meeting.  Alternatively, the materials are shown very briefly at the meeting.  They therefore have not had any or adequate opportunity to consider and respond to them.

55.In its Form 86, in support of the above complaint, the applicant refers to (a) a table (“the MK table”) produced by PlanD’s representatives at the hearing for the MK DOZP and (b) an email from the Transport Department (“the WC New Material”) which was received by the PlanD during the WC DOZP meeting and presented to the Board, to support the above complaint[8].

56.I am not persuaded that there is any systemic procedural fairness established under this ground.

57.Similar to the supplementary materials complaint, the substance of this complaint is whether there is prejudice caused to the representers or commenters by reasons of the presentation of new materials by the PlanD, and that they do not have sufficient time to understand or properly respond to these materials.

58.The answer to that question must be dependent on the circumstances of each case, such as (a) what is the nature of the “new” materials produced, (b) whether these materials are relevant to the representations of which representers or commenters, and (c) whether in fact a particular representer or commenter affected by these materials could understand and properly respond to them.

59.Thus, the applicant cannot establish systemic unfairness in the procedures (a) as even on its own case, this only “sometimes” happens, and (b) for the reasons set out at paragraph 58 above.  The fact that in the Four DOZPs, the applicant only manages to cite the MK Table and the WC New Material as examples of the complaint shows that this does not necessary occur systemically affecting all OZP hearings.

60.No systemic unfairness is established under this complaint.

C3.2.3 The scheduling and workload complaint and non-adjournment complaint

61.These two complaints can be conveniently considered together as they are related.

62.Under the scheduling and workload complaint[9], the substance of the complaint is that the Board does not generally in the statutory meetings have sufficient time to fully and fairly consider the presentations and comments. This so because of the following procedural problems concerning the scheduling and workload of the meetings:

(1) The Board frequently sits for very long hours with no or few breaks;

(2) The Board needs to in such meetings consider numerous detailed and complicated representations and comments;

(3) The Board would group large numbers of representations and comments together for considerations, with the consequence that the Q&A and deliberations sessions occurred only after hearing from all of the representations and commenters in a particular group, which would usually take many hours.

63.The above results in (says Mr Yu) systemic procedural unfairness, in particular in light of (a) the fact that the Board is making decisions of high importance to representers, commenters and the community, and (b) the other procedural fairness identified under the supplementary materials complaint and the PlanD new materials complaint.

64.Under the no adjournment complaint[10], it is said that the Board has adopted a policy that it will only consider deferring its consideration of the representations if (a) other concerned parties give consent; and (b) there are “very strong” reasons to do so.  The policy further stipulates for adjournment only where it is “absolutely unavoidable”, and prohibits adjournment for more than 4 weeks.  This policy is expressed in the Guideline No 33 as follows:

“According to the Ordinance, the Board shall submit a draft plan to the CE in C within a statutory time limit of nine months (or with an extension of up to six months granted by the CE) from the expiration of the exhibition period of the draft plan. Deferment of consideration of representations, comments and/or further representations may affect the submission of the plan to CE in C and other parties involved in the hearing. Hence, such request would not be entertained unless with the consent of the other concerned parties and there are very strong reasons to do so. If it is absolutely unavoidable, the Board may only adjourn the meeting for a period up to a maximum of 4 weeks …” [emphasis added].

65.The applicant says this policy amounts to an unlawful fetter on the Board’s discretion to defer consideration of representations. This is so because these restrictions on the situations in which deferral will be considered, are extreme, unreasonable, and incompatible with fairness and with the Board’s duty to inquire.  The policy prevents the Board from giving proper consideration, and keeping its mind open, and acquainting itself with all relevant facts by pursuing proper inquiries, which may warrant deferral even if the criteria are not fulfilled, and for over 4 weeks if there are circumstances which justify this.  Mr Yu therefore submits that policy is an unlawful fetter on the Board’s discretion to defer consideration of representations[11].

66.I am not convinced that the applicant has established any systemic procedural unfairness under these complaints.

67.As with the other complaints considered above, the substance of these two complaints is that, by reason of the long sitting hours and generally heavy workload coupled with the policy on adjournment, members of the Board are systemically not able to fully understand and grasp the representations and comments made by representers and commenters generally.

68.However, whether it can be shown that the Board is unable to understand and grasp the representations and comments made at a meeting must be dependent on the evidence advanced in each case (such as looking at the nature and kind of representations made, the transcripts of the hearing and the deliberation to see whether they show that the members could not understand or are confused about the representations).  In particular, this must be considered in the context that these members are mostly professional people experienced in the area of urban planning.  One cannot generally infer (as Mr Yu seems to suggest) that, given the long hours and heavy workload and the policy on adjournment, the Board would generally not able to digest the elaborated representations.  

69.As observed by Court of Appeal at paragraph 172 of the Hysan Appeals Judgment (at p 67M-R) in relation to the complaint of long sitting hours:

“…But there are limits to human capacity, and it has to be recognized that there would come a point when members’ level of concentration would drop. Having said so, we do not think one should adopt a rigid and mechanistic approach and prescribe that a continuous sitting hour of more than a certain number of hours will result in procedural unfairness. That is a wrong approach. But the excessive length of a hearing is a factor when one assesses the overall fairness of the proceedings…” (emphasis added)

70.Moreover, it must be noted that the policy is not that the Board would never grant any adjournments.  Quite to the contrary, the Board has provided unchallenged evidence[12] that there are examples where the Board deferred its decision making on request or on its own motion.  This contradicts any suggestion of systemic unfairness based on the policy.

71.I therefore do not accept that the applicant has established systemic unfairness in these complaints.

C3.2.4 Members leaving and joining meetings complaint

72.The applicant’s complaint under this head[13] is this.

73.It is its experience that at the Board’s meetings at which representations and comments are considered, the Board’s members frequently leave and join the meeting throughout, with the consequence that some members who hear representations (or parts of them) do not participate in the deliberations and decision-making, and some members who participate in deliberations and decision-making, do not hear representations or parts of them.

74.Mr Yu submits that this contributes to systemic procedural unfairness under the well established rule that “he who decides must hear”.

75.I disagree.  There is no hard and fast rule on how the notion of “he who decides must hear” is achieved, as it is ultimately a question of fairness, and fairness depends on the facts and context of each case.[14]

76.As observed by the Court of Appeal in the Hysan Appeals Judgment after reviewing various authorities at paragraphs 174-185, in relation to procedures adopted in administrative bodies, such as the Board, subject to the paramount requirement that planning judgment must be exercised by those who are fully apprised of the relevant representations, the Board may determine its own procedures.  The mere fact that certain members may have left the hearing in between but are involved in the final deliberation and decision does not necessarily by itself alone lead to any procedural unfairness.  The crucial question is still whether, given a particular set of circumstances, it can be shown by the Board that those members who are involved in the final deliberation and decision making are so apprised of all the relevant representations.  This is not systemic unfairness.

77.I therefore reject the submissions that, simply because there is a general occurrence that there are members who have left the meetings but are later involved in the deliberations and decision making, it is systemically or inherently unfair in the Board’s hearings.

C3.2.5 Burden of proof complaint

78.The gist of this complaint is that the Board in the relevant meetings have effectively treated the representers having the burden to show and prove why the PlanD’s formulated amendments to the relevant OZP (which form the subject matter of the hearing) be wrong or incorrect and thus should not be imposed.

79.This is illustrated by the fact (the applicant says) that PlanD and the Board often reasons that representers have provided “no strong justification” for a change to proposed planning restrictions.  The applicant has set out the relevant extracts from the relevant transcripts of the Four Meetings in its Schedule C8 (attached to the Form 86)[15] what it says to be examples and incidents of such onus approach of the Board.

80.Mr Yu submits that this approach by putting the onus on the representers is flawed.  He further submits that the correct question for the Board is simply whether the planning restrictions in the relevant DOZPs should be imposed in the first place, including in light of the contents of the representations and comments before it.  Representers do not have any onus to discharge, let alone any onus to provide “strong” justification for a change to proposed restrictions.  Mr Yu underlines the well established non-adversarial and administrative and consultative nature of the Board[16].

81.To further support his contentions, leading counsel emphasizes this.  He says it is important to note at the outset that the amendments to the OZPs were prepared in secret by the PlanD without any prior consultation.  Those amendments were formulated by PlanD after months (if not years) of preparation.  The Board members will inevitably be provided with the TPB Paper which sets out the position of the PlanD; and PlanD would almost invariably recommend to the Board that the objections by representers should not be upheld.

82.In these circumstances (Mr Yu continues), it is perhaps not surprising that when members of the Board had a packed agenda and had very little time to hear each representation, the tendency was for the Board to require the representers to satisfy the Board why the restrictions should not be imposed.  This is wrong Mr Yu argues.  The imposition of any restriction on the property rights of an owner, resulting in control over his use of his property without compensation, should be required to be justified – not the other way around.

83.I am also not with Mr Yu’s submissions under this complaint.  My reasons are as follows.

84.As I said above, it is trite that questions of procedural propriety are highly contextual dependent.

85.The Board serves as an administrative body and not a judicial or quasi-judicial one.  It is not a body constituted to hear appeals against decisions made by PlanD.  The relevant “decisions” are in fact decisions of the Board itself.

86.Thus, as said by Reyes J in the town planning context, “what amounts to a reasonable and fair hearing before [the Board] must take account of the administrative context in which it acts”: see Oriental Generation Judgment at paragraph 93.

87.And in that respect, the Board in performing its function under the TPO is to promote the public good through town planning[17] but not to determine the rights of any person.  There is not “a dispute” as such as between the PlanD and representors that is to be determined by the Board.

88.The administrative and non-adversarial nature of the Board in discharging its function is well established.  See: R v Town Planning Board, ex parte the Real Estate Developers Association of Hong Kong [1996] 2 HKLR 267 at 275D-277D and 292F per Leonard J; adopted by Litton VP (as he then was) in Kwan Kong Company Ltd v Town Planning Board [1996] 2 HKLR 363, at 373.

89.In this process, under the legislative regime:

(1) There would first be various amendments proposed to be made to a draft zoning plan by PlanD suggested by the metropolitan planning committee, with reasons.

(2) This would be incorporated in the DZOP, which is then exhibited to the public for representations.

(3) The Board then receives representations from representaters and comments within the 2-month statutory period.

(4) It was only after receiving these presentations and the reasons from PlanD that the relevant hearing takes place.

90.Given this statutory timetabling regime, it is natural that the Board members would have to read the reasons put forward by PlanD and the representations made by the representers before each of these hearings.  It is equally natural, and perhaps even frequent, that the Board members may after reading these materials from PlanD and the representers form a preliminary view as to which of the representations from PlanD and the representers they may think are more appealing or convincing. 

91.It is thus also natural that, if members who has form a preliminary view favouring PlanD’s reasons for the proposed amendments would focus on seeing whether and how the representations could show at the hearing that PlanD’s reasons are incorrect or flawed.  Similarly, if some members who hold a preliminary view to prefer some of the objections raised by the representers may also focus at the meeting more on PlanD’s answers.

92.The above is only a natural phenomenon in light of the statutory regime and timetabling of the preparation of the draft plans and the submission of reasons and representation for the statutory hearing.  By itself, it does not therefore demonstrates that the Board has systemically put the burden of proof on the representers.

93.Therefore, the fact that members may form a preliminary view one way or the other regarding PlanD’s reasons after reading those reasons and the objecting representations before the hearing does not (without more) mean that the members have (as alleged) placed on the representers any so-called burden of proof.  It certainly also does not (without more) shows that there is any procedural unfairness in the process or hearing itself.

94.The applicant’s “examples” set out above therefore do not take the matter any further.  There is thus no question of misplaced onus of proof resulting in systemic procedural unfairness. 

95.I would reject this complaint.

C3.2.6 Conclusion under the systemic challenge

96.For the above reasons, I reject all of the applicant’s challenges to say that there is systemic procedural unfairness in the procedures adopted by the Board for the purpose of the statutory hearing. 

97.I would now look at the applicant’s specific procedural challenges targeted at the actual circumstances of the Four Meetings.

C3.3 Specific procedural unfairness

98.As I mentioned above, the applicant relies on the same complaints under the systemic challenge to support a case of factual procedural unfairness specific to the Four Meetings.  In substance, it is the applicant’s case that, because of the various procedural matters adopted or occurred at each of the Four Meetings, members of the Board had not been able to properly, independently and adequately considered the applicant’s representations.  The four decisions are therefore tainted with procedural unfairness.  The complained procedural matters are:

(1) A large amount of the applicant’s materials (which included various substantial and technical expert reports on air flow and passenger flow analyses, as well as architectural designs and calculations) were only circulated to the members at the day of the meetings.  The members therefore did not have time to digest and read these materials before the meetings.

(2) The meetings lasted for very long hours and there were members who had left the meetings in between when the applicant’s representations were made, but who later participated in the decision making.

(3) The Board simply adopted all the reasons from the PlanD prepared before those meetings as their reasons to reject the applicant’s representations.

99.As I said above, the Court of Appeal has said in the Hysan Appeals Judgment that, in light of these procedural complaints, the crucial question for the court to determine is whether the Board has shown all the members involved in the decision making in each of the Four Meetings were fully apprised of the applicant’s representations.

100.In relation to the present case, with the evidence presented before this court, I am also driven to conclude that the Board had failed to demonstrate that all the members involved in the decision making in each of the Four Meetings were so fully apprised of the oral representations made by the applicant.  I will explain why.

101.First, in the present case, the evidence[18] shows that in each of the Four Meetings, there was at least one member (and sometimes more than one) of the Board who was present for the decision making but had been absent for all or part of the applicant’s representations.  Thus, it would be incumbent upon the Board to show by evidence that such members were also apprised of the applicant’s representation made at the meeting.

102.Second, in each of these Four Meetings, the applicant relied on substantial and technical expert reports and materials to support or aid its representations.  These materials were however only circulated by the Board to the members of these meetings on the day of the meetings.  There was thus objectively very little time for the members to read and digest these materials.  Further, each of these meetings had lasted for long hours with very short breaks in between[19]. It is only natural that members would get tired and might become less sharp in their concentration as the meeting went on to later hours. These features when considered together would put some doubts as to whether the members could properly focus and understand the applicant’s representations.

103.Finally, the Board had adopted the PlanD’s reasons prepared before each of these meetings as its reasons for rejecting the applicant’s representations.  Although it has been repeatedly said that the adoption of reasons by itself may not support a case of procedural unfairness[20], when this is looked at together in the present circumstances of those specific matters as listed above, I am convinced the Board cannot show by evidence that all the members involved in the decision making in each of the Four Meetings were fully apprised of the applicant’s detailed representation (backed by the materials circulated at the meetings) and had considered them adequately before rejecting them[21].

104.These amount to procedural unfairness which tainted each of the Four Decisions.

105.On this ground alone, I would quash these Decisions and remit them back to the Board for reconsideration.

C3.4  Failure to make sufficient inquiries under the Tameside duty and the duty under s 3(2) of the TPO

106.The Court of Appeal has in the Hysan Appeals Judgment at paragraphs 90-94 confirmed that the Board owes a duty to make sufficient inquiries both under the Tameside principles and s 3(2) of the TPO.

107.Mr Yu submits that the Board in relation to the Four Decisions had failed to make sufficient inquiries and thus failed in its said duty.  Leading counsel makes specific reference to the Board’s dealings with two issues to illustrate the complaint.

108.First, in upholding the Four DOZPs, he says the Board had simply accepted the PlanD’s assertion that the restrictions imposed on those relevant sites in the plans would not adversely affect the development potential of the sites.  It had not made any sufficient inquiries as to those various difficulties presented by the applicant at the hearings seeking to show the adverse impact on the designs of potential development on those sites and the difficulty, if not impossibility, in obtaining the full development potential thereof when compared without the restrictions.  In this respect, the applicant had also presented expert evidence and materials to show that the improvements in air ventilation and pedestrian flow that said to be achieved by the proposed restrictions could be achieved by restrictions of a lesser extent which would not affect so much of the development potential.

109.Second, similarly in relation to the question of development potential, the Board had also simply disregarded the combined effect of, and the interaction between, the proposed restrictions and the Sustainable Building Design Guidelines (“SBDG”).

110.The SBDG are a set of measures promulgated by the Building Authority to promote a quality and sustainable built environment, and include a regime of requirements which are to be applied by the Building Authority when exempting or disregarding green or amenity and certain other specified features from GFA and/or site coverage calculations under the Building (Planning) Regulations (Cap 123F).  The objectives of the SBDG are to achieve better ventilation, enhance the environmental quality of living space, particularly at pedestrian level, provide more greenery and mitigate the heat island effect.  It is not disputed that before the promulgation of the SBDG, the Building Authority routinely allowed GFA concessions for matters such as air conditioning plant room, air handling unit room, refuse storage chambers and various other features.  However, after the promulgation, a developer would need to comply with the requirements in the SBDG before such concessions could be granted.  This includes compliance with requirements as to building set back and building separations:

(1) The building set back requirement is imposed in order to improve air ventilation, enhance the environmental quality at pedestrian level and mitigate deep street canyon effect.  The requirement includes that buildings abutting a narrow street less than 15m wide shall be set back, such that no part of the building up to a level of 15m above the street level shall be within 7.5m from the centerline of the street. 

(2) The building separation requirement provides that in order to improve air ventilation, enhance the environmental quality at pedestrian level and mitigate heat island effect arising from the undesirable walling effect of “long buildings”, buildings in large development sites are to be separated by intervening spaces.  For sites to which the building separation requirement applies, amongst other things, the façade length (Lp) of a building or a group of buildings along its long side shall not exceed the maximum permissible Lp, which is obtained by the formula: 5 x U (where U is the mean width of the street canyon). 

111.The applicant had been urging the Board to take into account the effect of SBDG in assessing whether the proposed restrictions in the DZOPs would, contrary to PlanD’s otherwise suggestion, adversely affect the development potential of the various sites affected by the restrictions[22].  The Board in his reasons had however refused to take into account the SBDG on the basis that it was irrelevant since the guidelines represented a different control regime and was subject to voluntary compliance by the developers[23].

112.The applicant submits that, in simply adopting PlanD’s assertions in relation to the development potential of the sites affected by the restrictions and at the same time disregarding the relevance of the SBDG to this question of development potential, the Board had failed to make sufficient inquiries in relation to this question.  There is no dispute that the effect on the development potential of the sites affected by the proposed restrictions was a relevant question that the Board should consider in deciding whether to uphold the DOZPs.

113.The Court of Appeal in the Hysan Appeals Judgment accepted a similar complaint made by Hysan and concluded that the Board had failed to discharge its duty in making sufficient enquiries in relation to this question[24]. In particular, the Court of Appeal concluded that the Board should take into account the possible impact of SBDG in combination with the proposed restrictions under the relevant DOZP[25]. The Court of Appeal also accepted that the Board had failed to pay sufficient regard to various representations made by Hysan in questioning PlanD’s model and calculations to say that there was no adverse impact on the development potential[26]. Coupled with its conclusion on the procedural unfairness, whereby the Board had not shown with satisfactory evidence that all the members making the decision were fully apprised of Hysan’s representation at the hearings, the Court of Appeal was of the view that the Board had failed to discharge its duty to make sufficient inquiries under this question.

114.The Court of Appeal’s above reasons apply equally in the present case regarding the applicant’s complaint:

(1) As mentioned above, the Board simply did not take into account the potential combined effect of SBDG and the proposed restrictions to examine the question of whether there would be adverse impact on the development potential of the affected sites.

(2) For the reasons explained above and as concluded, there is also no sufficient evidence in the present case to show that all the Board members involved in the decision making in each of the Four Meetings were fully apprised of the applicant’s representation, which representation also related to the question of development potential.  This by itself adds to the failure to make sufficient inquiries.

115.I therefore also conclude that the Board had failed in its duty to make sufficient inquires regarding the question of whether the development potential of the sites would be adversely affected by the proposed restrictions in each of the Four DOZPs.  The four decisions should therefore be also quashed and remitted back for reconsideration.

C3.5  Specific individual illustrations of the above procedural unfairness and breach of duty to make inquiries

116.Mr Yu has in this application also advanced detailed arguments in respect of three matters considered in the Four Meetings to further illustrate his complaints that the Board had failed to independently and properly consider the applicant’s representations.  These three matters are: minor relaxation, air ventilation and building height profiles.

117.But as accepted by Mr Yu (in his supplemental skeleton at paragraph 48), given that the court is to remit the four decisions to the Board for reconsideration on the basis of procedural unfairness and the Board’s failure to discharge its duty to make sufficient inquiries as concluded above, these matters would in any event have to be reconsidered by the Board. In the premises, purely for the sake of completeness, I would only briefly deal with Mr Yu’s complaints relating to these matters as follows.

C3.5.1 Minor relaxation

118.In each of the four decisions, the Board also relied on the availability of minor relaxation under s 16 of the TPO as a justification for imposing the proposed planning restrictions in the relevant DZOP.  This was also a reason given by the Board to answer the applicant’s representation in each of the Four DZOPs, which is stated as follows[27]:

“To cater for spite specific circumstances and schemes with planning and design merits, there was provision for application for minor relaxation of the BHRs under the OZP. Each application would be considered by the Board on its individual merits.”

119.Although Mr Yu couched his contentions in various elaborate ways, in essence I believe counsel’s principal contention is that the Board’s said reliance on minor relaxation as a reason to answer the applicant’s representation constituted an error, as it is an irrelevant consideration[28].

120.This argument was similarly relied on by Mr Yu for Hysan in the Hysan appeals, and accepted by the Court of Appeal at paragraphs 156‑164 of its judgment.  In particular, the Court of Appeal said this at paragraph 164:

“164. Whilst it is not objectionable for the TPB to refer to the mechanism for minor relaxation after they had rejected the representations on other substantive grounds by way of reminder to an applicant of such mechanism, it is not open to the TPB to rely on that mechanism as one of the substantive reasons for rejecting representations.  In the latter scenario, the TPB would have taken an irrelevant consideration into account.  Even though it may only be one reason out of several reasons given in dealing with the representations, Hysan is entitled to say that it could not know whether the TPB would reach the same conclusion in the balancing exercise if such reason had not been relied upon.  In our judgment, the decision of the TPB is tainted by its reliance on the possibility of applying for minor relaxation.”

121.I fully adopt the Court of Appeal’s reasons and also conclude that the four decisions were tainted by this error.

C3.5.2 Air ventilation

122.At the Four Meetings, the Board considered and imposed various restrictions (such as BHRs, NBAs, and building gaps and setbacks) on the basis of air ventilation justifications.  The Board relied on an Air Ventilation Assessment by expert evaluation (“EE Report”) conducted in respect of each of the zones covered by the Four DOZPs.

123.The applicant had made detailed written and oral representations (supported by its own expert reports) to try to show that the air ventilation considerations relied upon by PlanD (as supported by the EE Reports) to justify the restrictions were flawed and insufficient.

124.It is Mr Yu’s contentions that the applicant’s said representations had not received the necessary adequate consideration by the Board.  In relation to this, Mr Yu says his submissions are intended as a further illustration of the procedural unfairness he complained of and the Board’s failure to make sufficient inquiries.

125.Again, similar arguments were run and relied on in the Hysan appeals, which were accepted by the Court of Appeal as part of its conclusion finding procedural unfairness and the Board’s failure to discharge its Tameside duty.  See paragraphs 194-197 of the Hysan Appeals Judgment.

126.Given my conclusion above, I would also accept that (by reason of the procedural unfairness and the failure to discharge its duty to make sufficient inquiries) the Board had failed to give adequate consideration to the applicant’s representations on the question of air ventilation as a justification to impose the proposed restrictions in each of the Four DOZPs.

C3.5.3. Building Height Profile

127.Similarly under this item, it is Mr Yu’s submissions that the Board had failed to give proper and independent consideration to the applicant’s elaborate representations on alternative building height profiles.  These submissions are again intended to be a further illustration of the applicant’s submissions (which I have accepted above) on procedural unfairness regarding the Four Meetings and the Board’s failure to discharge its duty to make sufficient inquiries.

128.It follows naturally that I accept the applicant’s contentions that, in relation to the question of building height profile, the Board had also (by reason of the said procedural unfairness and failure to discharge its duty to make inquiries) failed to properly and independently consider the applicant’s representations.

C4. Constitutional and proportionality challenge

129.In three paragraphs of its Form 86[29], the applicant vaguely seeks to challenge the decisions on the basis that, since the constitutional rights under Articles 6 and 105 of the Basic Law are engaged, the procedures leading to the decisions, and the decisions themselves do not meet the necessary proportionality requirement.

130.These arguments do not feature much in or are not in the forefront of the applicant’s submissions made in this judicial review application.

131.However, similar and more elaborated arguments relating to these were advanced by Mr Yu for Hysan in the Hysan appeals.  The Court of Appeal has rejected them at paragraphs 54-89 of the Hysan Appeals Judgment.  I will therefore also reject this ground in this application.

D. CONCLUSION

132.For the above reasons, I would allow the judicial review only on the grounds of specific procedural unfairness and the Board’s failure to make sufficient inquiries in relation to the applicant’s representations made in each of the Four Meetings.

133.I would therefore quash the four decisions and remit them back to the Board for reconsideration.

134.I would also make an order nisi that costs of this application be to the applicant, to be taxed if not agreed, with certificate for two counsel.  Unless any of the parties applies to vary it by summons, the order shall become absolute 21 days from today.

135.Lastly, I must thank counsel and their legal teams for the helpful assistance rendered to this court.

Mr Benjamin Yu SC leading Mr Alexander Stock, instructed by Mayer Brown JSM, for the applicant

Mr Richard Drabble QC, Mr Anderson Chow SC and Mr Abraham Chan, instructed by Department of Justice, for the respondent

[1]   Respectively, Hysan Development Co Ltd v TPB (unreported, CACV 232 & 233/2012, Lam VP, Chu JA and Au J, 13 November 2014) and TPB v Oriental Generation Ltd(unreported, CACV 127 & 129/2012, Lam VP, Barma JA and Poon J, 13 November 2014).

[2]   Colonial Sugar Refining Co v Melbourne Harbour Trust Commissioners [1927] AC 345, 359; Wah Yick Enterprises Co Ltd v Building Authority (1990) 2 HKCFAR 179, 183 per Bohkary PJ.

[3]   In addition to its own analysis, the Court of Appeal has also endorsed Reyes J’s reasoning in the Turbo Top Judgment.

[4]   See paragraphs 42-47 of Form 86.

[5]   See in particular paragraph 41 of the Form 86.

[6]   See Ophelia Wong at paragraphs 35-45.

[7]   See also Kwan Kong Co Ltd v TPB [1996] 2 HKLRD 363 at 371G-H, where Litton VP (as he then was) observed that s 6 of the TPO provided a complete statutory scheme for objections.

[8]   See Schedule C3 of the Form 86 (hearing bundle [A1(1)/C3/77]).

[9]   See Part C5 of Form 86; 1^st Affidavit of Brownlee, paragraphs 47, 52, 59 to 61.

[10]   See Form 86, paragraphs 64 and 65; 2^nd Affidavit of Brownlee, at paragraphs 27 to 33.

[11]   The applicant refers to the following authorities in support of the submissions: Rowse v Secretary for the Civil Service (2008) HKPLR 545 per Hartmann J, at paragraph 129; R v Newham LBC, ex parte Sacupima (1999) 33 HLR 1, at paragraph 42 per Dyson J (upheld on this point [2001] 1 WLR 563); R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 130D-131C and 142G; and R v Hampshire Education Authority, ex parte J (1985) 84 LGR 547 per Taylor J at pp 558-561, and R v Home Secretary ex parte Venables [1998] AC 407, 497B-C.

[12]   Ophelia Wong’s affidavit, paragraphs 46 to 51.

[13]   Part C4, Form 86; 1^st Affidavit of Brownlee, paragraph 51.

[14]   Dr Nkasu Michael Mmaama v Engineers Registration Board (unreported, HCAL67/2006, 11 September 2006) at paragraph 48.

[15]   See bundle A1(1)/C8/151.

[16]   Proceedings in front of the Board are not in the nature of an adversarial contest between a representer/commenter and PlanD, or between a representer/commenter and the Board: see Kwan Kong Co Ltd v Town Planning Board, supra, at 373J‑374A Further, the Board has an active duty to make inquiries under s 3(2) of the TPO.  The Board must consider the appropriateness of a proposed planning justification in light of the factors referred to in s 3(1) of the TPO.

[17]   See also: Lord Greene MR in B Johnson & Co (Builders) Ltd v Minister of Health [1947] 2 All ER 395, also noted in particular that in the planning context it is not just the objectors or developers who must be considered; “there is [also] a third party who is not present, viz, the public, and it is the function of the minister [the administrative decision-maker] to consider the rights and interests of the public.”

[18]   See the attachments to the applicant’s main skeleton, summarizing the parts of representations (including certain parts of the representations made by the applicant) specific to each of the Four Meetings, which some members who later participated in the decision making had missed.  The Board has not challenged the accuracy of the summary.

[19]   The WC Meeting lasted from around 9 am to 10:25 pm.  The MK Meeting lasted from around 9am to 5pm without apparently any lunch break but with only one 5 mins break in the afternoon.  The YMT Meeting lasted from 9 am to 7 pm with one 2 mins break and a 30-min lunch break.  The NTKKB Meeting on 27 May 2011 lasted from 9 am to 12:30 am the next morning.  It was resumed on 1 June 2011 at 1 pm with no clear record as to how long that meeting lasted.  See Schedule C5 [hearing bundle A1/(1)/Tab C5].

[20]   See Hysan Appeals Judgment, paragraphs 198-199.

[21]   Cf: Hysan Appeals Judgment, paragraphs 201-203.

[22]   See: the applicant’s letter dated 7 March 2011 to the Board; also Brownlee 1^st, paragraphs 41-42, 44, 53, 64, 67 and 82-88.

[23]   See: Ophelia Wong, paragraph 94, Brenda Au, paragraphs 72-74, the Mong Kok Minutes at paragraph 90; also the Board’s letter dated 9 May 2011 to the applicant.

[24]   See paragraphs 99-120.

[25]   See paragraph 112.

[26]   See paragraphs 100-101, 113-115.  See also the Court of Appeal’s observation under procedural unfairness as mentioned above.

[27]   See: Wan Chai Minutes, paragraph 80(f), Mong Kok Minutes, paragraph 121(e), Yau Ma Tei Minutes paragraph 136(e) and NTKKB Minutes, paragraph 87(d).

[28]   See paragraphs 122-123 of the applicant’s main skeleton.

[29]   See paras102-104 of Section D5 of the Form 86.