Leighton Property Company Ltd and Others v. Town Planning Board

CACV 232/2012 and CACV 233/2012
(Heard together)

CACV 232/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 232 OF 2012

(ON APPEAL FROM HCAL NO. 38 OF 2011)

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CACV 233/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 233 OF 2012

(ON APPEAL FROM HCAL NO. 57 OF 2011)

________________________

________________________

Heard together

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JUDGMENT
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Hon Lam VP (giving the judgment of the court):

1.We handed down our judgment in these appeals on 13 November 2014. Our order was finalized on 19 January 2015. Before us are four Notices of Motion: two by the TPB and two by Hysan, all of them seeking leave to appeal to the Court of Final Appeal. Pursuant to directions from the court, parties lodged written submissions for paper disposal of the applications. We have duly considered the same. The following are our decisions on these applications.

TPB’s Motions of 4 March 2015

2.Though 9 questions were formulated in the TPB’s Notices of Motion as questions of great, general and public importance [“GPI”], in light of this court’s decision in the Oriental Generation v TPB CACV 127 & 129 of 2012, 31 March 2015(“Oriental Generation leave judgment”), counsel for the TPB revised and reduced the questions in their submissions lodged on 9 April 2015 to the following six questions:

“ Q1. Whether it is a mandatory consideration for the Board in assessing a proposed planning restriction that the restriction can only be imposed if the Board is satisfied that any developer on any site subject to the restriction would be able, notwithstanding the restriction, to achieve an otherwise permissible development intensity.

Q2. Whether the Board is legally required to have regard to Sustainable Building Design Guidelines of the Building Authority under the Buildings Ordinance in considering the alleged impact of a planning restriction on development potential for a specific site in the absence of any specific development design in respect of that site.

Q3. Whether (as the Board contends) the standard to apply in determining whether there has been a breach of the Tameside duty in the context of town planning is no more and no less than the Wednesbury irrationality standard, i.e. the Court may only intervene where it finds that it was Wednesbury irrational for the Board to have reached its conclusion without further inquiry having regard to the nature of the Board and its membership and the fact that under s.3(2) of the TPO the decision to further inquire is that of the Board.

Q4. To the extent that the requirement of adequate consideration referred to in Section C of the Judgment differs from the Tameside duty, whether the standard to apply in determining whether there has been a breach of such a duty is anything other than the Wednesbury irrationality standard.

Q5. Whether it is lawful for the Board in considering the imposition of a numerical planning restriction in an OZP to take into account a provision in the plan which permits relaxation of that restriction in appropriate[3] circumstances.

Q6. 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 having regard, inter alia, to s.6B(3) of the Ordinance.

(b) Whether section 6B of the Ordinance permits the making of a collective decision by a quorate Board notwithstanding that some members may not have seen and heard all representations or materials adduced in support of representations at the hearing.

(c) Is the Court in judicial review required (as the Board submits it is) to accord a wide discretionary area of judgment to members of the Board in determining their own cognitive limits in the hearing of representations and the consideration of materials adduced in support of representations at the hearing.

(d) Insofar as the procedural complaint against the Board is that members failed to take time to read and digest certain materials for themselves, whether (as the Board submits) the legal threshold for intervention is Wednesbury irrationality, i.e. it must have been Wednesbury irrational for the relevant Board members to have considered it unnecessary to take additional time to read and digest the relevant materials.

(e) 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.

(f) Where an administrative decision-making procedure is challenged as unfair or inadequate, whether considerations as to the practicality and other advantages of that procedure (including the protection of the interests of other affected parties) should be taken into account as part of the Court’s overall consideration as to fairness (as Leonard J did in R v Town Planning Board Ex p REDA [1996] 2 HKLR 267 at 282G).”

3.We are surprised that the TPB deemed fit to raise Question 1.  We agree with the submissions of Mr Yu SC that Question 1 is a phantom question.  It must be clear from our judgment that we examined the merits of the application of the judicial review on the basis that the TPB itself adopted (and made known to Hysan it adopted) the policy that the restrictions to be imposed under the OZPs would ensure the accommodation of development intensity as permitted, see for example the minutes mentioned at paragraph 97 of the judgment and our observations at paragraphs 101 and 107 of the judgment.  We have not decided whether it is mandatory for the TPB to adopt such policy.  That was simply not an issue before us.  We only decided that with the adoption of such policy what the TPB needed to do in satisfaction of its Tameside duty and duty to act fairly in the public law context.  In the reply submissions of Mr Jat SC of 14 May 2015, counsel referred to the distinction over the intensity of review by the court.  But such distinction does not give rise to Question 1 and if it is relevant at all, it should be considered in the context of Question 3.  Thus, essentially for the same reason given at paragraph 25 in Oriental Generation leave judgment, we do not deem it appropriate to give leave to appeal for Question 1 to be argued.

4.The same observation can be made in respect of Question 2, see paragraph 107 of our judgment.

5.Turning to Question 3, we set out the standard of review by the court by reference to the cases and statutory provision cited at paragraphs 90 to 94 of our judgment.  We accepted it is for the decision-maker to decide upon the manner and intensity of inquiry to be undertaken.  However, there is another facet to the Tameside duty: it is for the court to decide whether a matter raised is a relevant consideration which should be investigated.  On the three specific areas identified at paragraph 96 of our judgment, for the reasons set out in our judgment, they are relevant matters and our criticism against the TPB was that they did not deem it necessary to investigate at all.  Hence, it is not a question of the intensity and manner of inquiry.  Rather, the objection is that TPB did not consider them to be relevant enough to warrant investigation.  Thus, Question 3 is a non-issue and we would not grant leave for that to be argued.

6.It is clear from the submissions of the parties that Question 4 iss simply a round-about way of arguing Question 3.

7.In respect of Question 5, we adopt what was said at paragraph 30 of the Oriental Generation leave judgment.  We did not say in our judgment that the TPB can never rely on minor relaxation.  Mr Jat in his submissions shifted to an argument as to when is it proper for the Board to rely on minor relaxation.  We did not decide that question.  At paragraphs 156 to 164 of our judgment, we only decided that in the context of the present case, in view of the nature of the representations by Hysan, minor relaxation could not be the answer.  As such we have not decided on a GPI point.  With respect, we do not accept the submission of Mr Jat that our judgment will make it extremely difficult for the TPB to rely on minor relaxation in other cases.  It all depends on the nature of the representations and the wording of the relevant restrictions and provision for minor relaxation.  We would not give leave on the basis of Question 5.

8.Question 6 concerns the fairness of the process.  Whilst we can see that the fairness of procedures generally adopted by the TPB could give rise to GPI questions, what we had decided in these appeals was not directed at any procedure generally adopted by the TPB.  It was not suggested that members not apprised of materials participating in decision-making was generally mandated by TPB procedure or that such was a frequent occurrence.  Neither was it suggested that there is a general guideline which mandated immediate determination on DOZPs notwithstanding substantial technical representations being presented at long TPB meetings.  We only applied well established public law principles on procedural fairness to the decisions in these particular cases on their specific circumstances.  Further, with respect to Mr Jat, we do not regard it reasonably arguable that practicality should override the other considerations canvassed in our judgment.  In any event, we are not persuaded that our judgment requires anything impracticable to be done.  Thus, essentially for reasons similar to those given at paragraph 31 of the Oriental Generation leave judgment, we decline to grant leave based on Question 6.

9.We do not see any ground for granting leave on GPI basis or otherwise.  It follows that we shall dismiss the Notices of Motion of the TPB.

Hysan’s Motion of 3 March 2015 in CACV 232 of 2012

10.In Hysan’s Motion filed in CACV 232 of 2012, 5 questions were raised as GPI.  In addition, leave to appeal is also sought on further grounds based on the “or otherwise” limb in s22 of the Hong Kong Court of Final Appeal Ordinance.

11.The 5 GPI questions are as follows:

“ Restrictions Affecting Part of a Site: see Court of Appeal Judgment §§18 to 42

1. Whether the Respondent has the power in preparing draft plans under sections 3(1)(a) and 4 of the Town Planning Ordinance (Cap. 131) to impose restrictions which pertain only to a particular part of a site, such as the imposition of a podium height restriction, a setback or non-building area on a part of one particular site.

Proportionality: see Court of Appeal Judgment §§43 to 89

2. Whether in the determination of the lawfulness and validity of any restriction imposed by the Respondent by way of planning, Article 6 and/or Article 105 of the Basic Law are engaged, and if so, whether such restriction must satisfy the requirement of proportionality, and whether the Hong Kong Court should adopt the European jurisprudence on Article 1 of the First Protocol of the European Convention on Human Rights or some other test of proportionality, and if so, what.

Lack of Certainty of Non-Building Areas and Setbacks: see Court of Appeal Judgment §§121 to 130

3. Whether the imposition of restrictions by way of setback and non-building area in the Causeway Bay draft Outline Zoning Plan are void for uncertainty.

Lawfulness of Setbacks and Non-Building Areas for Pedestrian Footpath Widening: see Court of Appeal Judgment §§131 to 155

4. Whether the imposition of a restriction of setback or a restriction of non-building area in the Causeway Bay draft Outline Zoning Plan on the Applicants’ properties for footpath widening was irrational, disproportionate and/or an abuse of power given the following:

(1) Any requirement for road widening should be pursued by way of the exercise of powers under the Road (Works, Use and Compensation) Ordinance (Cap. 370) to resume land or create easements including for the purposes of pedestrian footpath widening, the exercise of which would require compensation to be paid to the landowner;

(2) A building setback or non-building area is not effective or appropriate for pedestrian footpath widening, since the land affected remains the property of the landowner, who remains free to obstruct that land from use by pedestrians; and/or

(3) Pedestrian footpath widening could only justify a restriction operating at ground floor level, rather than one affecting the entire height of a building.

Onus and Approach in Respect of Building Height Profiles

5. Whether it was lawful to impose a burden on a person objecting to the imposition of a building height restriction on his property to satisfy the Respondent that an alternative building height profile should be adopted in preference to that put forward by the Planning Department.”

12.Whilst one cannot appeal against a reason set out in a judgment as opposed to the formal judgment or order, we are satisfied that Hysan’s intended appeal does not infringe that rule.

13.Though we granted orders of certiorari quashing the decisions of the TPB, we also directed the TPB to reconsider the matter in accordance with our judgment of 13 November 2014.  If there is no further appeal, the TPB would reconsider the matter on the bases that it has the power to impose what Hysan called “spot zoning measures”, our analysis of arts 6 and 105 in the town planning context, our holding on legality of NBAs and setbacks.  Hysan wishes to challenge our judgment in these respects.

14.Further, in the Form 86 and the Notice of Appeal, Hysan asked for declarations that the DOZPs were ultra vires and void ab initio on the bases of Hysan’s challenge on legality.  In light of our reasons set out in our main judgment, we did not grant such declarations.  Though there was no dismissal of such claims in the formal order as drawn up, in substance we had dismissed those claims.

15.In such circumstances, notwithstanding we granted the orders of certiorari, we accept that this court can grant leave to appeal if we are otherwise satisfied that the applications of Hysan are well-founded, see Curtis v London Rent Assessment Committee [1999] QB 92 at p.107-9.

16.Question 1 is what Mr Yu called the spot zoning point.  We dealt with that at paragraphs 18 to 42 of our main judgment.  With respect, notwithstanding Mr Yu’s able submissions in his reply, we do not think the point is reasonably arguable.  We agree with Mr Jat that leave should not be granted for this question to be considered by the Court of Final Appeal.

17.Question 2 is a GPI point and it is not an easy point.  Though the TPB currently adopts a policy of accommodation of development intensity as otherwise permitted, whether the approach that the TPL should adopt will be the same as it currently does may depend on whether Basic Law rights are engaged and how proportionality is to be considered.  And this may affect how TPB should reconsider the matter.  We would grant leave for this question to be considered by the Court of Final Appeal.

18.Question 3 as framed in the Notice of Motion challenges setback and NBAs on the ground of uncertainty.  We have explained the proper test for addressing that question at paragraphs 125 and 126 of our main judgment.  We held at paragraphs 129 and 130 that these expressions (which were commonly used in the planning field) were not void for uncertainty when considered together with the purpose for which they were imposed.  They were also understood by experts for Hysan.  In his submissions, Mr Yu addressed a rather different question, whether the meaning ascribed to these expressions by Reyes J were correct as a matter of construction.  We do not think the two questions should be conflated and as we said in our judgment, the unfortunate confusion at the hearing before Reyes J should not be relevant to the primary issue under this question.  We do not think it is reasonably arguable that our rejection of the challenge based on uncertainty is erroneous.  We refuse to grant leave in respect of this question.

19.Question 4 refers to 3 sub-issues.  At paragraphs 131 to 153 of our main judgment, we addressed the first sub-issue which is primarily a question of legality.  For the reasons we had already given there, we do not think this sub-issue is reasonably arguable.  Mr Yu’s submissions then re-directed the focus of the challenge to sub-issues (2) and (3) which are essentially questions on Wednesbury rationality.  We did not address those issues in our judgment in view of what we said at paragraphs 154 and 155 and our conclusion on procedural fairness.  The matter would have to be reconsidered by the TPB.  As far as sub-issues (2) and (3) are concerned, our judgment did not bar Hysan from advancing these arguments when the matter is so reconsidered.  Thus, we would not give leave for Question 4 to be raised at the Court of Final Appeal.

20.Question 5 was not addressed in our judgment.  We agree with Mr Jat that it is not a question we needed to address in view of our conclusions on other aspects of the case.  Like Question 4(2) and (3), we do not consider we should grant leave for this question to be considered by the Court of Final Appeal in such circumstances.

21.We take the view that in respect of issues not addressed in our judgment, it is more appropriate for the Court of Final Appeal to consider whether they should be entertained in the circumstances of these cases.  For this reason, we also refuse to grant leave on the questions identified at paragraph 6 of the Notice of Motion in seeking leave on the “or otherwise” limb.

22.As we have refused leave in the applications by the TPB, paragraph 7 of the Notice of Motion cannot afford a reason for granting leave.

Hysan’s Motion of 3 March 2015 in CACV 233 of 2012

23.In this Motion, Hysan only advanced 2 questions as GPI questions.  Question 1 is the same as Question 2 in Hysan’s Motion in CACV 232 of 2012.  We would grant leave for this question to be considered by the Court of Final Appeal.

24.Question 2 in CACV 233 of 2012 is the same as Question 5 in CACV 232 of 2012.  We would not grant leave in respect of this question.

25.Paragraph 3 of this Motion is the same as paragraph 7 of the Motion in CACV 232 of 2012.  For the same reason set out at paragraph 22 above, leave would not be granted on that basis.

Dispositions

26.We dismiss the two Notices of Motion issued by the TPB.  We order the TPB to pay the costs of Hysan in respect of those motions, such costs to be taxed if not agreed, with certificate for 2 counsel.

27.In respect of the two Notices of Motion issued by Hysan, we grant leave on Question 2 in CACV 232 of 2012 and Question 1 in CACV 233 of 2012.  We refuse leave in respect of the other questions.  We direct the parties to apply to the Court of Final Appeal in respect of the conditions for appealing.

28.We also order that the costs of Hysan’s Notices of Motion be in the cause of the appeal to the Court of Final Appeal.

Written Submissions by Mr Benjamin Yu SC leading Mr Alexander Stock, instructed by Mayer Brown JSM, for the applicants in both actions

Written Submissions by Mr Jat Sew-Tong SC leading Mr Abraham Chan, instructed by the Department of Justice, for the respondent in both actions