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Hysan Development Co Ltd And Others v Town Planning Board

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date18 November 2015
CourtCourt of Final Appeal (Hong Kong)
Judgement NumberFAMV30/2015
Subject MatterMiscellaneous Proceedings (Civil)
FAMV30/2015 HYSAN DEVELOPMENT CO LTD AND OTHERS v. TOWN PLANNING BOARD

FAMV Nos 28 - 31 of 2015
& FAMV No 17 of 2015

FAMV Nos 28 & 30 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS 28 & 30 OF 2015 (CIVIL)

(ON APPLICATIONS FOR LEAVE TO APPEAL
FROM CACV NO 232 OF 2012)

________________________

BETWEEN
HYSAN DEVELOPMENT COMPANY LIMITED
 1st Applicant
BARROWGATE LIMITED
 2nd Applicant
EARN EXTRA INVESTMENTS LIMITED
 3rd Applicant
SILVER NICETY COMPANY LIMITED
 4th Applicant
MINSAL LIMITED

MONDSEE LIMITED
 5th Applicant

6th Applicant
PERFECT WIN PROPERTIES LIMITED
 7th Applicant
OHA PROPERTY COMPANY LIMITED
 8th Applicant
(Applicants in FAMV 28/2015)
and
TOWN PLANNING BOARD Respondent
(Applicant in FAMV 30/2015)

_______________________

FAMV Nos 29 & 31 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS 29 & 31 OF 2015 (CIVIL)

(ON APPLICATIONS FOR LEAVE TO APPEAL
FROM CACV NO 233 OF 2012)

________________________

BETWEEN
LEIGHTON PROPERTY COMPANY LIMITED
 1st Applicant
LEE THEATRE REALTY LIMITED 2nd Applicant
(Applicants in FAMV 29/2015)
and
TOWN PLANNING BOARD
 Respondent
(Applicant in FAMV 31/2015)

________________________

FAMV No 17 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 17 OF 2015 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NOS 127 AND 129 OF 2012)

________________________

BETWEEN
TOWN PLANNING BOARD Applicant
and

ORIENTAL GENERATION LIMITED
Respondent

_______________________

Appeal Committee:Mr Justice Tang PJ, Mr Justice Fok PJ and Mr Justice Chan NPJ
Date of Hearing and Determination: 6 November 2015
Date of Reasons for Determination: 18 November 2015

__________________________________________

REASONS FOR DETERMINATION

__________________________________________

Mr Justice Tang PJ:

1. FAMV 17/2015 is concerned with the Kai Tak Mansion (KTM) in Kowloon Bay and the judicial review by certain interested persons[1] against 3 restrictions imposed on KTM by OZP 26. These judicial review proceedings[2] were determined by Reyes J by judgment dated 11 May 2012. That was followed by appeals and cross appeals by the parties.[3] The Court of Appeal [4] dismissed Town Planning Board (“TPB”)’s appeal but made no order in the applicant’s appeal because it was not necessary to do so. By judgment dated 31 March 2015, the Court of Appeal refused leave to TPB to appeal. By FAMV 17/2015, TPB applied to us for leave to appeal from the Court of Appeal.

2. FAMV 28 & 29 and 30 & 31 are concerned with the draft OZPs for Causeway Bay and Wanchai. Hysan is the lead company in the judicial review proceedings concerning these plans.[5] The applications were heard by Reyes J whose judgment dated 14 September 2012 was the subject of appeals and cross appeal.[6] The parties were not satisfied with the judgment of the Court of Appeal[7] dated 13 November 2014 and applied for leave to appeal to this court. By its decision dated 29 June 2015, the Court of Appeal granted leave to appeal to Hysan in respect of one question only in each of CACV 232 & 233/2012, but dismissed TPB’s applications for leave in their entirety. FAMV 28 & 29/2015 are Hysan’s applications for leave to appeal from the judgment of the Court of Appeal in CACV 232 & 233/2012. FAMV 30 & 31/2015 are the TPB’s applications for leave to appeal from the same judgment.

3. We heard these two sets of applications together because some common issues were involved. At the conclusion of the hearing we dismissed TPB’s application in FAMV 17/2015. With two exceptions we dismissed the applications of Hysan and the TPB in their respective applications.

4. The questions in respect of which leave were sought are long and they are set out below:[8]

TPB’s application in FAMV 17/2015

Question 1: In considering a height restriction to preserve a visual corridor to a landmark geographical/cultural feature, whether the Court is entitled to intervene in respect of the Board’s choice of starting point of the visual corridor, including its decision not to commission a public consultation exercise for the purpose of selecting the same, on anything other than the Wednesbury basis.

Question 2: Whether it is a general legal principle derived from the Town Planning Ordinance (Cap 131) or otherwise that no town planning control can be imposed unless the full development potential of sites subject to such control is preserved.

Question 3: Whether it is lawful at the representation stage for the Board to proceed on the premise that a disputed restriction would not prevent development of a site to its maximum development potential absent detailed calculations confirming this, provided that the Board’s premise is (i) open to it as a body possessing the relevant expertise to assess such matters (ii) objectively defensible and (iii) can be shown to be such in judicial review proceedings.

Question 4: In considering the location of a non-building area (“NBA”) on a statutory plan, whether the Board is required in law to consider and if possible decide upon 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.

Question 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 visual impact/permeability study before it can disagree with the representations of a representer including the conclusions of a visual impact/permeability study commissioned by that representer.

Question 6: Whether it is relevant for the Board in considering the imposition of a general planning restriction such as a restriction on the height of buildings to have regard to the possibility of a minor relaxation of that restriction at a later date when particular proposals for a building with exact details are brought forward.

Question 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 an administrative body with the characteristics 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 by fully apprised of all the matters relevant to that decision.

(e) 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.

TPB’s applications in FAMV 30 & 31/2015

Question 1: Similar in effect toQuestion 1 above.

Question 2: Similar in effect toQuestion 3 above.

Question 3: Whether the Board is legally required to have regard to the Sustainable Building Design Guidelines of the Building Authority under the Buildings Ordinance in considering the alleged impact of a planning restriction on development intensity for a specific site in the absence of any specific development design in respect of that site.

Question 4: Whether (as the Board...

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