HKCFI 2726
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1549 OF 2020
||JOIN SMART LIMITED
||TOWN PLANNING BOARD
Before: Hon Chow JA (sitting as an additional judge of the Court of First Instance) in Court
Dates of Hearing: 16-18 June 2021
Date of Judgment: 15 September 2021
J U D G M E N T
1. This is the rolled-up hearing of an application for judicial review of the decision of the Rural and New Town Planning Committee (“the Committee”) of the Town Planning Board (“the TPB”) made on 24 April 2020 rejecting the Applicant’s application (“the Rezoning Application”) to amend two approved outline zoning plans by re-zoning a site (“the Application Site”) from “Residential (Group E)” (“R(E)”), “Residential (Group E)1” (“R(E)1”) and an area shown as “Road” to “Residential (Group A)” (“R(A)”) in order to increase the plot ratio of an intended residential development on the Application Site.
2. In what follows, unless the context indicates otherwise, references to “Section” or “s” shall be to the Town Planning Ordinance, Cap 131 (“the Ordinance”).
(i) The Application Site
3. The Application Site is made up of Lots 212 RP, 232, 233, 234, 235, 236 RP, 237, 238, 239, 243, 244, 245, 246 SA, 246 SB, 246 RP, 247, 365 RP, 366, 367 and 368 RP all in Demarcation District 130 (“the 20 Private Lots”) and some adjoining Government land (“the Government Land”) in Lam Tei, Tuen Mun, New Territories. The Application Site has a total area of about 21,333 m2. The Applicant is the owner of all but 2 of the 20 Private Lots comprised in the Application Site. The Applicant’s lots have a total area of about 16,191 m2. The remaining 2 Private lots (namely, Lots 245 and 366) have a total area of about 3,941 m2. The Government Land, which makes up the rest of the Application Site, has an area of about 1,201 m2.
4. The Application Site is located at the northern fringe of Tuen Mun New Town to the immediate north of Hong Po Road. It is accessible from (i) Hong Po Road (on the southern side), and (ii) San Hing Road via San Tat Lane (on the eastern side).
5. The Application Site is currently fenced-off and largely vacant with a portion at the centre of the site used for storage / open storage of construction materials. The surrounding areas of the Application Site are “brownfield” in nature, including orchards, metal workshops, car repairing workshops, recycling workshops, warehouse, godowns, open storage of construction materials, and open storage yards intermixed with residential dwellings and cultivated agricultural land.
6. The Application Site is situated in an area surrounded by a number of high-rise housing estates, including Yan Tin Estate which has 5 domestic blocks ranging from 33 to 38 storeys high, Fu Tai Estate which has 12 domestic blocks, and Siu Hong Court which has about 20 domestic blocks.
7. Under the existing zoning:
(1) 91% of the Application Site lies within the “R(E)” zone in the Approved Lam Tei and Yick Yuen Outline Zoning Plan No S/TM-LTYY/10 (“the LTYY OZP”), which was approved by the Chief Executive in Council on 16 October 2018. The planning intention for a site zoned “R(E)” in the LTYY OZP is primarily for phasing out of existing industrial uses through redevelopment for residential use on application to the TPB. While existing industrial uses will be tolerated, new industrial developments are not permitted in order to avoid perpetuation of industrial/residential interface problem. Under the LTYY OZP, for a site zoned “R(E)”, no new development (except for New Territories Exempted House) shall exceed a maximum plot ratio of 1.0, a maximum site coverage of 40%, and a maximum building height of 4 storeys over a single-storey car park (15 m).
(2) 8% of the Application Site lies within the “R(E)1” zone in the Approved Tuen Mun Outline Zone Plan No S/TM/35 (“the TM OZP”), which was approved by the Chief Executive in Council on 11 December 2018. The planning intention for a site zoned “R(E)1” in the TM OZP is essential the same as that for a site zoned “R(E)” in the LTYY OZP. Under the TM OZP, for a site zoned “R(E)1”, no new development (except for New Territories Exempted House) shall exceed a maximum plot ratio of 1, a maximum site coverage of 40%, and a maximum building height of 5 storeys including a one-storey car park.
(3) 1% of the Application Site lies within an area shown as “Road” in the TM OZP.
In what follows, unless the context indicates otherwise, the LTYY OZP and TM OZP will collectively be referred to as “the OZPs”.
(ii) Government’s proposal for public housing developments in the area including the Application Site
8. Since the Chief Executive’s 2011-2012 Policy Address, the Government has been trying to expand the land resources and increase housing land supply, including building up land reserve with a view to meeting housing and other development needs.
9. On 29 January 2014, the Government announced to the Legislative Council that it had identified around 150 sites across Hong Kong for residential developments in different districts including, relevantly for the present purpose, 3 sites at (i) San Hing Road (“SHR”), (ii) the nearby SHR Extension, and (iii) Hong Po Road (“HPR”).
10. On 2 September 2014, the Government consulted Tuen Mun District Council on a proposed public housing development scheme at the SHR site (which covered the majority of the Application Site) with an area of about 8.7 ha and a plot ratio of not more than 5. Notwithstanding doubts expressed by the Tuen Mun District Council relating to traffic, rural industries, relocation, compensation and other issues, the Government continued to work on the proposed housing development scheme at SHR.
11. On 6 January 2015, the Government (Development Bureau and Planning Department) briefed the Tuen Mun District Council on the housing sites that were expected to be made available in the Tuen Mun District, including proposed public housing developments at the SHR, SHR Extension and HPR sites under on-going feasibility studies (“the 2014 Studies”). Similar to other public housing projects, these studies were engineering studies to ascertain the technical feasibility of the proposed public housing developments at the SHR, SHR Extension and HPR sites.
12. On 29 September 2016, the Government issued a press release titled “Government response to media inquiries on public housing development at San Hing Road”. In the press release, the Government stated that government departments concerned had adjusted the scope of the proposed public housing development at the SHR site with the target that public housing production would not be diminished. The related technical study had been revised so that the sites along SHR and HPR with development potential would be taken into account as a whole for public housing development. A rezoning application to amend the related outline zoning plan would be submitted to the TPB after completion of the study. It was also stated that the Government had been studying ways to adjust its plan to build public housing at the SHR site and nearby sites, the Government was still formulating the development plan at SHR, and the study on the proposal for public housing development at SHR had not yet been completed.
13. On 1 November 2016, the Housing Department briefed the Tuen Mun District Council on the latest progress of the proposed public housing developments in Tuen Mun, including those at the SHR, SHR Extension and HPR sites.
14. In 2017, in view of the public’s demand for public housing, the Government decided to combine the SHR, SHR Extension and HPR sites into a single development site (“the Combined Site”) with an area of about 29 ha for integrated and comprehensive public housing development with Government, institution and community uses (“GIC”) and associated infrastructural works (“the Proposed SHR and HPR Development”) in order to fully utilize the development potential and maximize the production of housing units in the area. The Combined Site included the sites of two private residential developments approved under s 16 as well as the Application Site. Under the Proposed SHR and HPR Development, no private housing component was contemplated.
15. The Proposed SHR and HPR Development involved a much larger site area and a higher density development when compared with the individual sites examined under the 2014 Studies. A new consultancy study (“the New Study”), commenced in February 2018 (see §18 below), was necessary to ascertain the technical feasibility of the Proposed SHR and HPR Development. The New Study was to be based on the findings of the 2014 Studies, of which the technical assessments were substantially completed in 2017. As the Combined Site exceeded 20 ha in area, the requirements under the Environmental Impact Assessment Ordinance, Cap 499 (“EIAO”) were triggered. Under the EIAO, an environmental impact assessment (“EIA”) report was required to be prepared by the project proponent and approved by the Director of Environmental Protection. The focus of the New Study was on the technical feasibility (including requirements under the EIAO) of the proposed land uses of the Combined Site, namely, comprehensive public housing development together with associated GIC, retail and infrastructure facilities. The scope of the New Study did not cover any private housing development.
16. In June 2017, the Civil Engineering and Development Department (“CEDD”) submitted a project profile (“the Project Profile”) for the Proposed SHR and HRP Development to the Director...