Town Planning Board v. Oriental Generation Ltd

CACV 127 of 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO 127 OF 2012

(ON APPEAL FROM HCAL 62 OF 2011,

HCAL 109 OF 2011 AND HCAL 34 OF 2012)

_______________

_______________

CACV 129 of 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO 129 OF 2012

(ON APPEAL FROM HCAL 62 OF 2011,

HCAL 109 OF 2011 AND HCAL 34 OF 2012)

_______________

_______________

(Consolidated by Order of the Honourable Mr Justice Tang,

Vice President dated 6 July 2012)

Before : Hon Lam VP, Barma JA and Poon J in Court

Dates of Written Submissions: 4^th, 11^th and 15^th December 2014, 20^th January 2015, 10^th and 27^th February 2015

Date of Judgment: 31 March 2015

________________

JUDGMENT
________________

Hon Lam VP (giving the Judgment of the Court):

1.There are two applications before us:

(a) An application by OGL for the variation of our costs order nisi; and

(b) An application by the Board for leave to appeal to the Court of Final Appeal.

Variation of costs order nisi

2.We have made the following costs order nisi in our judgment of 13 November 2014:

(a) In respect of CACV 127 of 2012, we ordered that the Board shall pay the costs of OGL; and

(b) In respect of CACV 129 of 2012, we ordered that the Board shall pay ¼ of OGL’s costs.

3.OGL submitted that because of the consolidation of the two appeals by reason of the order of Tang VP (as he then was) of 6 July 2012 and the overlapping of the issues in the two appeals, OGL should have the full costs in CACV 129 of 2012 as well as CACV 127 of 2012.

4.The order of 6 July 2012 was an order made by consent.  It only provided for the two appeals to be consolidated without any other directions.  Apart from having the two appeals being heard together, it is not clear what the consolidation order has achieved.  The parties filed amended notices of appeal in the two appeals after the consolidation and there is no direction for the two appeals to be heard as one consolidated appeal.

5.As a matter of law, we doubt if Order 4 r 9 (which provides for consolidation of causes or matters) is applicable in respect of appeals.  The power under that rule is to be exercised by “the Court” which under Order 1 rule 4(2) is defined as the Court of First Instance [“CFI”] or any one of the CFI judges.

6.In any event, the Court of Appeal must have the power to direct two appeals to be heard together and in the present appeals, that appears to be the only effect of the order of 6 July 2012.

7.In such circumstances, it is open to us to make separate orders for costs in respect of the 2 appeals.  We do not think Ms Eu SC suggested otherwise.

8.The question is whether, as a matter of discretion, we should make different orders for costs in respect of the 2 appeals in view of the overlapping of issues between them.  Ms Eu submitted that orders for costs as per the orders nisi we made could give rise to problems in taxation and apportionment of costs on the same issue to the 2 appeals.

9.We have compared the Amended Notices of Appeal and the Respondent’s Notice filed in the 2 appeals.  There are indeed common issues.

10.Having considered the submissions of counsel, we come to the view that it would be just and clearer for us to make the same order for costs for both appeals to save any need for apportionment and the costs incidental to arguments on the same.

11.However, we do not accept Ms Eu’s submission that we should give OGL the full costs of both appeals.  We think quite significant portion of costs (and that is not confined to time spent at oral hearing because costs had also been incurred in pre-hearing preparations and research) has been incurred on issues on which OGL failed.  The position is similar (though not exactly the same) to that in Hysan Development Co Ltd v Town Planning Board CACV 232 and 233 of 2012, 19 January 2015.  In those appeals, we deprived the successful parties of some of the costs.

12.Likewise, we cannot agree with Ms Eu’s submission that in the present appeals, the rejected grounds did not lengthen the hearing or only involve examination of similar materials.  Certainly, the questions of law related to the rejected grounds are complicated and much preparation had to be involved in connection with the same, thus substantial costs had to be incurred on that account.  

13.As we said, the proportions of costs incurred on those failed issues in the present appeals might not be the same as in the Hysan appeals.  Confining ourselves to the present appeals, we think a fair order is to give OGL 75% of the costs in both appeals, with certificate for three counsel.  We also give OGL the costs of the application for variation of the costs order nisi. 

Leave to appeal to the Court of Final Appeal

14.By a Notice of Motion of 11 December 2014, the Board applied for leave to appeal to the Court of Final Appeal pursuant to s22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.  The following questions were formulated as questions of great general or public importance [“GPI”]:

“ 1. In considering the imposition of a building height restriction to preserve a visual corridor to a landmark geographical and/or cultural feature, whether the Court is entitled to intervene in respect of the Board’s choice of methodology in selecting the starting point of a visual corridor including its decision not to commission a public consultation exercise for the purpose of selecting the same.

2. Whether it is a general legal principle that no town planning control can be imposed unless the maximum development potential of a site is preserved.

3. Where it is contended before the Board at the representation stage that a building height or other restriction would prevent a land owner from developing its site to its maximum development potential, whether it is sufficient in law for the Board, as a body with expert and experienced members, to refuse the contention based on its understanding of the development parameters for any particular site and the availability of different possible development schemes.

4. In considering the placement of a non-building area (“NBA”) on a statutory plan, whether the Board is required in law to consider alternative layout options by which the effect of the NBA is “shared” by adjoining sites rather than concentrated within a single existing site, and whether the Board is required to commission a visual impact assessment before it can lawfully exercise its planning judgment to determine the location of the NBA on a statutory plan.

5. In considering the imposition of a building gap or similar feature for visibility/aesthetic or ventilation reasons, whether the Board is required in law to carry out its own visibility study before it can disagree with the representations of an objector including the conclusions of a visibility study commissioned by that objector.

6. Whether it is relevant for the Board in considering the imposition of a planning restriction to have regard to the possibility of a minor relaxation of that restriction at a later date.

7. In relation to requirements of procedural fairness in the context of the Board’s proceedings,

(a) To what extent (if at all) does the audi alteram partem principle apply in the context of representation hearings before administrative bodies in the nature of the Board?

(b) Whether in the absence of clear contrary evidence the Court should presume that individual members of a specialist public body such as the Board took adequate steps to acquaint themselves with any materials (including submissions) essential to a decision that they partook in.

(c) Whether on a proper construction the true legislative intention of section 6B of the Town Planning Ordinance (Cap 131) is to permit the making of a collective decision by a quorate group of the Board’s members who have seen and heard all matters relevant to the decision notwithstanding that certain other members not so apprised also participated in the making of that decision.

(d) Whether the requirements of natural justice mandate that every individual member of an administrative body such as the Board who are present at the making of a collective decision be fully apprised of all the matters relevant to that decision.

(e) Is it lawful for the task of reading materials and/or hearing submissions pertaining to a collective decision of an administrative body such as the Board to be delegated to or otherwise undertaken by a subset of members, with the final decision itself to be made by a wider set of members?

(f) Where an administrative decision-making procedure is challenged as unfair, whether considerations as to the practicality and other advantages of that procedure (including advantages to other affected parties) should be taken into account as part of the Court’s overall consideration as to fairness.

8. Whether it is necessary for the Court to exercise its discretion not to quash the relevant planning restrictions, in cases where the majority of the findings are in favour of the Board.”

15.The Board also relied on the “otherwise” limb in seeking leave.

16.In the submissions, the Board referred to the public importance of what it described as the ultimate question in the judicial review: whether the three restrictions are lawful in public law.  It went so far as suggesting this:

“ By their very nature such planning matters are of great general and public importance, as is any question of the legal validity of measures taken to address these matters such as the three restrictions in this case.”

17.We cannot accept this submission.  As highlighted by Mr Pleming QC, if we were to accept such a proposition, we are in effect saying that leave to appeal is bound to be given in every planning case.  The logic can be extended to other public law cases: cases concerning large public projects, cases concerning election of those occupying public offices, cases concerning government policies affecting the community in general, cases concerning legislation which applies to everyone in the society.  The list can go on.     

18.And the same criteria would be applicable irrespective of the identity of the party applying for leave.  In other words, if the Board is correct, even if the applicant is the party challenging the plans, he or she should also be able to get leave on similar basis. 

19.In his reply submissions, Mr Chan accepted that it would not be right that leave should be granted on every legal question as regards a planning decision.  He tried to support his earlier submissions by referring to the following features in the planning decisions in question:

“ Highly significant specific planning concerns, including the protection of historical and cultural landmarks and the promotion of a palatable height profile and air ventilation, are engaged.”

20.Counsel submitted that because of these features, the planning decisions are of great public importance. 

21.With respect, we do not think the identification of these features can take the matter further.  It is not difficult to identify some aspects of the subject decisions in any of the cases we cited as examples at §17 above which can be described as having great public importance.  In our judgment, that is not test laid down by s22(1)(b). 

22.Mr Chan then argued that it is a construction of the expression “the questions involved in the appeal” in s22(1)(b) and the section itself does not demand a particular level of specificity in that regard.  He submitted that in certain cases the nature of the broad question in dispute itself demonstrates that the great general and/or public importance of the question.  He gave the example of the legality of an important Government policy affecting Hong Kong at large.  Whilst the formulation of sub-questions and issues could assist the court in addressing the broad question, counsel said those sub-questions should not dictate whether the threshold laid down in s22(1)(b) is satisfied.

23.We agree that it is a matter of construction of that expression.  The Court of Final Appeal has repeatedly explained why this section should be given a narrow interpretation.  In our judgment, the approach of Mr Chan has conflated the concept of subject matter involved in the appeal with the concept of “the questions involved in the appeal”.  As a matter of practice, this court (and we understand likewise in the Appeal Committee of the Court of Final Appeal) has always applied the GPI test by reference to the specific questions formulated by a party applying for leave.  This was the reason why it has repeatedly been stressed  that these questions has to be precisely and properly formulated, see a recent example in the judgment of Fok PJ in Safder Tehseen v Permanent Secretary for Security FAMV 31 of 2014, 10 Oct 2014.

24.We must firmly reject Mr Chan’s submissions on “the ultimate question”.  As a matter of construction, we hold that the GPI test must be applied by reference to the specific questions arising for determination in the intended appeal.

25.Coming now to the specific questions, several questions formulated on behalf of the Board are what we shall call phantom questions.  We call them so because they were simply not argued before us or not decided by us in the way these questions suggested we did.  As an illustration, we can start with question (2).  As submitted by Mr Pleming, the case had been argued before Reyes J and this court on the basis that the policy of the Board was to preserve full development potential.  Thus, it had never been argued (until this application for leave to appeal) that this should not be a consideration.  It was actually the basis on which the Board itself made its decision.  If Mr Chan wants to argue that this policy should be reviewed, it would have to be in the context of another case with an appropriate decision from the Board based on the new policy before the court should examine the same in the context of a judicial review. 

26.Question (1) is also a phantom question.  We have no recollection that Mr Drabble has argued before us that the court should not embark on any consideration as to the choice of the view corridor from the footbridge based on public law challenges in terms of Wednesbury unreasonableness and Tameside duty.  As can be seen from our judgment, we have examined the issue primarily by reference to the facts and circumstances of the present case.  We do not think it is right to give leave to the Board to argue this point afresh in the Court of Final Appeal.

27.Questions (3), (4) and (5) are not capable of a simple yes or no answer and we have not laid down in our judgment a general proposition to such effect.  It depends on the facts of the case and we have decided the appeal by reference to the special facts of the case and the evidence before the Board.  On question (3), if the Board now seeks to contend that they could use their collective expertise to reject the evidence from a party without even articulating the same in their written decisions (so that one cannot even tell whether such “expert knowledge” was shared by all members of the Board who came from different professions), we find it a very difficult proposition to accept, especially when this so called collective expert opinion of all the members of the Board (contrasting with the expert evidence which the Board had sought to introduce in the appeal, but rejected by us for the reason set out at §§94 to 97 of our judgment) was not even alluded to in the evidence filed in the judicial review application. 

28.Likewise, as is apparent from our judgment, we have considered the question of the validity of the Board’s imposition NBA and building gap by reference to the specific facts and evidence before the Board in the present case.  And it was how the appeals were argued before us.  To turn our decision into one which decides in general what the Board must do in every case irrespective of the facts and evidence in that case is, with respect, a misreading of our judgment.   

29.There is a limit as to how one can recast one’s case on appeal.  Here, the Board has gone beyond that limit.

30.As for question (6), again we did not say in our judgment that the Board can never rely on minor relaxation.  We only said that in the context of the present case, for the reasons given in our judgment (§120 referred to the judgment in the Hysan appeal) it is not appropriate to rely on minor relaxation in relation to the restrictions in question. As recorded at §§ 118 and 119 of the judgment, the argument of the Board before us was that there had not been any reliance on minor relaxation which we rejected.

31.Question (7) concerns procedural fairness.  The proposition in questions (7)(b), (c) and (e) had not been argued before us. There is no evidence to support any case of sub-delegation as contended under (e).  It is not clear what other considerations as to practicality and other advantages the Board is referring to under (f).  In any event, the main propositions we relied upon in our judgment (at §127 of our judgment) was taken from the analysis in the judgment of the Hysan appeals in which the relevant jurisprudence were duly considered.  Mr Chan has not cited a single authority which cast doubt on that analysis.  Our application of the propositions to the facts of the present case is fact sensitive, not a GPI question.  Further, we do not think the challenge to our decision on procedural fairness is reasonably arguable. 

32.With respect, we do not understand question (8) and how it can be of assistance when other questions as formulated are rejected, as we did in the above discussion.

33.For these reasons, we shall dismiss the Notice of Motion and order the Board to pay the costs of OGL in respect of the application for leave to appeal, with certificate for 3 counsel.

Re : To vary costs order nisi

Written submissions by Ms Audrey Eu SC and Mr Jonathan Lee, instructed by Philip TF Wong & Co, for the respondent in CACV 127/2012 and the applicant in CACV 129/2012

Written submissions by Mr Richard Drabble QC and Mr Abraham Chan, instructed by Department of Justice, for the appellant in CACV 127/2012 and the respondent in CACV 129/2012

Re : Leave to appeal to the Court of Final Appeal

Written submissions by Mr Nigel Pleming QC, Ms Audrey Eu SC and Mr Jonathan Lee, instructed by Philip TF Wong & Co, for the respondent in CACV 127/2012 and the applicant in CACV 129/2012

Written submissions by Mr Abraham Chan, instructed by Department of Justice, for the appellant in CACV 127/2012 and the respondent in  CACV 129/2012