IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 386 OF 2005
(ON APPEAL FROM HCAL 51 OF 2004)
||CAPITAL RICH DEVELOPMENT LIMITED
||WELL UNICORN DEVELOPMENT LIMITED
||TOWN PLANNING BOARD
||URBAN RENEWAL AUTHORITY
Before : Hon Stock JA, Cheung JA and Chung J in Court
Dates of Hearing : 15 to 17 November 2006
Date of Judgment : 18 January 2007
J U D G M E N T
Hon Cheung JA :
1. The area surrounding Staunton Street, Wing Lee Street and Aberdeen Street (‘the area’) is located in an older part of Hong Kong. In the earlier years of Hong Kong this was one of the most prestigious residential areas, dominated by the mansions of rich merchants. Later on it became an important middle-class residential district populated by Chinese businessmen and Portuguese middle-class residents.
2. It is also located in a historical area. It is near the Tai Ping Shan area where the bubonic plague in Hong Kong occurred in 1894 which resulted in massive death and hospitalization of the population. It was in this area that Dr. Sun Yat-sen the founder of modern China spent some early years of his life. He was baptized at the American Congressional Mission Preaching House (Kung Lei Tong 公理堂) in 1883 and studied at the Queen’s College formerly known as the Central School between 1884 and 1886. The former sites of these buildings were located in the area and in its vicinity respectively.
3. Many of the big mansions were replaced in the 1950’s and 1960’s by tenement buildings ranging between single to six storeys high. By the 21 st century the former glory of the area has faded. The buildings are now in a deteriorated state. Many have illegal extensions and roof-top structures. The area lacks community facilitates and public open space. It is in poor hygienic condition. Apart from some ground floor shops the area is residential in nature. Pedestrian access to most of the residential buildings is difficult and dangerous because the back lanes are narrow and not well lit at night and are enclosed by buildings.
The Development Scheme
4. On 21 March 2003 the Urban Renewal Authority published in the gazette that it would implement a Development Scheme of the area prepared under section 25 of the Urban Renewal Authority Ordinance (‘URAO’). Two podium blocks will be built upon which high rise residential buildings will be erected. One of the existing lanes will be eliminated and becomes part of the site. There will be areas of open space and a Dr. Sun Yat-sen Memorial Garden will be built.
5. The history of the Development Scheme, which was also known as H19 project, began in 1997 when on 30 December 1997 the then Secretary for Planning, Environment and Lands gave approval to the now defunct Land Development Corporation (‘LDC’) to prepare the Development Scheme.
6. In January 1998, the LDC announced its intention to pursue the Development Scheme. This, however, was not done before its eventual dissolution. It was one of the 25 uncompleted LDC projects.
7. In November 2001, the Government announced that priority would be given to the implementation of the 25 projects. In March 2003, the Financial Secretary approved the implementation of the Development Scheme. The development would be by way of a Comprehensive Development Area (‘CDA’) zoning which covered a total area of about 4,400 sq. m. It is bound by Staunton Street, Wing Lee Street and Aberdeen Street. A number of internal streets are found inside the boundary including Shing Wong Street, Wa In Fong West, Wa In Fong East and Chung Wo Lane.
8. On the same day of the publication in the gazette a draft plan for the Development Scheme (‘DSP’) was submitted by the URA to the Town Planning Board (‘TPB’) for consideration pursuant to section 25(5) of the URAO. The TPB was required to consider the plan because the area was previously covered by the Sai Ying Pun and Sheung Wan Outline Zoning Plan (‘OZP’) (Plan No. S/H3/18). The area was previously zoned R(A), R(C) and GIC in the OZP.
9. On 11 July 2003 TPB deemed the draft DSP as being suitable for publication under section 25(6)(a) of URAO. This plan in accordance with section 25(7) of the URAO was deemed to be a draft plan prepared by TPB and the provisions of the Town Planning Ordinance (‘TPO’) are applicable in relation to the plan. In accordance with section 5 of TPO the plan was exhibited from 11 July 2003 for public inspection for a period of two months.
10. By virtue of section 25(9) of the URA the DSP has from that date replaced or amended the draft OZP in respect of the area affected.
11. Representations and objections to the DSP were received.
12. Among the objections was the one lodged by the two applicants in this appeal. The applicants are companies under the Henderson Development Limited group of companies. Since 1997 they became the owners of Nos. 70-72 Staunton Street, Nos. 9-12 Wa In Fong East and Nos. 5, 7, 9-21 Chung Wo Lane. They have also entered into an agreement in principle with the owner of No. 3 Chung Wo Lane to jointly develop the site they own. The applicants acquired No. 7 Chung Wo Lane after the commencements of the present set of proceedings in the Court of First Instance. On 4 January 2002 TPB granted planning permission to the applicants to redevelop their site into a tower block of 27 storeys. Building plans conforming to the planning permission had been approved by the Building Authority.
13. The applicants wished to have their site to be excluded from the CDA designation.
The hearings before TPB
14. The TPB first conducted a preliminary enquiry to the objection. It refused to amend the DSP. It then convened two meetings on 6 February 2004 and 19 March 2004 respectively to hear objections. After hearing the objections, it chose not to amend the DSP.
15. The applicants challenged the decision by way of judicial review before Chu J. She dismissed the application.
16. The applicants now appeal to this Court.
Urban Renewal Authority
17. The URA is a statutory body created by the URAO. Its function is to ‘improve the standard of housing and the built environment of Hong Kong and the lay-out of built-up areas by replacing old and dilapidated areas with new development which is properly planned and, where appropriate, provided with adequate transport and other infrastructure and community facilities’ : section 5(b) of the URAO. URA replaced the function of the LDC.
Urban Renewal Strategy
18. Under section 20 of URAO the Secretary for Housing, Planning and Lands (‘the Secretary’) is required to prepare an Urban Renewal Strategy (‘the Strategy’) for the purpose of carrying out urban renewal. Clause 3 of the Strategy prepared by the Secretary provides that
‘ a people centred approach should be used to carry out urban renewal. The purpose is to improve the quality of life for residents in the urban area. The government has to balance the interests and needs of all sectors of the community without sacrificing the lawful rights of any particular group. The aim is to reduce the number of inadequately housed people.’
19. Clause 22 of the Strategy states that
‘ in order to expertise the urban renewal programme the URA may implement a project by way of development project or a development scheme. Public can lodge objections to a development project under the Urban Renewal Authority Ordinance or a development scheme under the Town Planning Ordinance.’
20. Paragraph 35 further provides that the objective is to encourage private sector participation and a self-financing urban renewal programme in the long run.
21. The URA can implement urban renewal by way of a ‘development project’ or a ‘development scheme’. Without going into the technical details, a ‘development project’ does not need to be considered by the TPB whereas a ‘development scheme’ has to be approved by it because this either involves an amendment to an existing lay-out plan or where such a plan provides for the grant of permission for any purpose. An application for the grant of such permission is required to be made to the TPB.
Town Planning Ordinance
22. The long title of the Town Planning Ordinance (‘TPO’), Cap. 131 is :
‘ To promote the health, safety, convenience and general welfare of the community by making provision for the systematic preparation and approval of plans for the lay-out of areas of Hong Kong as well as for the types of building suitable for erection therein and for the preparation and approval of plans for areas within which permission is required for development.’
23. Section 3(1) provides that with a view to the promotion of the health, safety, convenience and general welfare of community, the TPB shall undertake the systematic preparation of, among other things, draft plans for the lay-out of such areas of Hong Kong as the Chief Executive may direct. These plans may make provisions for zones or districts set apart for use for residential, commercial, industrial or other specified uses and comprehensive development areas (sections 4(1)(b) and (f)).
24. Section 5 provides that a draft plan which the TPB deems suitable for publication shall be exhibited by it for public inspection for a period of two months. Any person affected by the plan shall within that period submit an objection to anything appearing in the draft plan (section 6(1)).
25. Upon receipt of the written statement of objection, the TPB may give preliminary consideration to the objection. In the absence of the objector it may propose amendment to the draft plan to meet...