Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

The Real Estate Developers Association Of Hong Kong v Town Planning Board

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date03 February 2015
Year2015
Judgement NumberHCAL58/2011
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL58/2011 THE REAL ESTATE DEVELOPERS ASSOCIATION OF HONG KONG v. TOWN PLANNING BOARD

HCAL 58 of 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 58 OF 2011

------------------------

BETWEEN
THE REAL ESTATE DEVELOPERS ASSOCIATION OF HONG KONG Applicant
and
TOWN PLANNING BOARD Respondent

------------------------

Before : Hon Au J in Court
Dates of Hearing : 18 - 21 February 2013
Date of Supplemental Written Submissions : 10 December 2014
Date of Judgment : 3 February 2015

------------------------

J U D G M E N T

------------------------

A. INTRODUCTION

1. This is the judicial review brought by the Real Estate Developers Association of Hong Kong (the applicant) against the Town Planning Board (“the Board”) in relation to its four decisions (collectively “the four decisions”) not to propose amendments respectively to four draft Outline Zoning Plans (“the Four DOZPs”) respectively for Wan Chai (“the WC DOZP”), Mong Kok (“the MK DOZP”), Yau Ma Tei (“the YMT DOZP”) and Ngau Tau Kok and Kowloon Bay (“the NTKKB DOZP”).

2. Under the DOZPs, the Board has imposed various restrictions in the subject matter districts or zones for property developments. These restrictions include building height restrictions (“BHR”), building gaps (“BG”), non-building areas (“NBA”) and set backs (“SB”).

3. The applicant (and various other individual developers and concerned parties) had raised objections to these restrictions and asked the Board to amend the DOZPs in light of their objections. These objections were raised firstly in writing and then later in public hearings held by the Board concerning the DOZPs.

4. In substance, the Board rejected the objections and refused to make the suggested amendments to the plans. Those are the decisions now under challenge.

5. The applicant seeks to challenge the four decisions. The challenges are mounted on multiple grounds. It is contended that the four decisions are unlawful as they were made ultra vires the statutory powers of the Board; that the decisions are tainted with systemic (or case specific) procedural unfairness and are not supported by adequate reasons; that they are also flawed in relation to the conclusion made on certain specific facts or issues as the Board had failed to give independent and proper considerations to them, and that the Board had failed to take into account of a relevant consideration. I would elaborate on these grounds later.

6. The applicant asks for orders to quash the decisions, various declarations relating to procedural fairness, and for orders of mandamus to direct the Board to reconsider the decisions in accordance with the law and the said various declarations.

B. THE RELEVANT BACKGROUND

The Town Planning Ordinance

7. For the present purposes, the Town Planning Ordinance (Cap 131) (“TPO”) provides relevantly as follows:

(1) The Board is tasked to systemically prepare draft plans for the lay‑out of such areas of Hong Kong as well as for the types of building suitable for erection therein. In the course of preparing such plans, the Board shall make such inquiries and arrangements necessary for the said preparation (s 3).

(2) The Board shall (as it deems suitable) publish and exhibit these plans for public inspection for a period of 2 months (s 5).

(3) Within the said 2 months of exhibition of a draft plan, any person may make representations to the Board in respect of the draft plan. The representation shall indicate, inter alia, the nature and reasons for the representation. The person shall also indicate in the representation any amendments (if any) he proposes to be made to the draft plan (ss 6(1) and (2)).

(4) After the 2-month exhibition period, the Board shall as soon as practicable make all those representations available for public inspection and shall continue to do so until the Chief Executive in Council (“CEIC”) has made a decision (“the CEIC decision”) of the draft plan under s 9 (s 6(4)).

(5) Any person may make comment to the Board of those representations that have been made available for public inspection within 3 weeks of that period of inspection (s 6A).

(6) After the expiration of those 3 weeks, the Board shall as soon as reasonably practicable make those comments available for public inspection until the CEIC decision (s 6A(4)).

(7) The Board shall also as soon as reasonably practicable after the said 3 weeks hold a meeting to consider those representations and comments. Those persons making the presentations or the comments are entitled to attend and be heard (s 6B(1), (2), (3)).

(8) After considering the representations and comments at the meeting, the Board shall decide whether or not to propose any amendments to the draft plan in the manner proposed in the representations (s 6B(8)).

(9) If the Board does decide to make any such proposed amendments, the draft amended plans shall effectively have to go through the above process again (ss 6C-6G).

(10) The Board may also on its own make amendments to draft plans and the amended draft plans shall go through the above process as well (s 7).

(11) The Board shall submit the draft plan to the CEIC for approval:

(a) where there have been no amendments under section 7, be made before the expiration of a period of 9 months after the expiration of the period of 2 months mentioned in section 5; and

(b) where there have been amendments under section 7, be made before the expiration of a period of 9 months after the expiration both, of the period of 2 months mentioned in section 5 and of the period of 2 months mentioned in section 7.

(12) The CEIC may approve, refuse to approve the draft plan as submitted, or refer it back to the Board for further consideration and amendment (s 9).

The Four DOZPs

8. In 2010, the Board gazetted the Four DOZPs. In these draft plans, various restrictions were imposed on specific sites or part of a site within the relevant district or zone. They were imposed for environmental considerations to improve essentially the overall air ventilation and pedestrian flows in the relevant zones. The applicant in this application referred to these types of restrictions as “spot” restrictions. For convenience only but not otherwise, I would also generally refer to them as spot restrictions.

9. In general terms, these spot restrictions are:

(1) BHRs: these restrictions are imposed on a single site or part of a site which limit the height the building that could be built on that site (often by reference to the height of an existing building or part of an existing building).

(2) NBAs, SBs and BGs: under these restrictions, a zero height limit (or in the case of building gaps and setbacks a low height limit) is applied to a designated area within a particular site.

(3) Detailed specifications as to permissible and required uses and building characteristics within a single site, often reflecting the existing situation at the site (for example a maximum GFA for any new building construction on site, or for specific types of use on site, or a required minimum area of public open space on site, which matches the existing situation on site).

10. The Board thereafter published those DOZPs respectively for public inspection.

11. The applicant made various written representations to the Board regarding each of the DOZPs within the 2-month statutory period.

12. Thereafter, the applicant attended each of the respective public hearings for the four DOZPs (“the Four Meetings”) and made oral representations thereat to oppose the various spot restrictions proposed to be imposed in those plans. For convenience, I would refer the Four Meetings, as necessary, specifically as the WC Meeting (the meeting for the WC DOZP), the MK Meeting (for the MK DOZP), the YMT Meeting (for the YMT DOZP) and the NTKKB Meeting (for the NTKKB DOZP).

13. The Board published its decisions in April and May 2011 effectively rejecting those objections and upholding the Four DOZPs.

14. The applicant brought the present judicial review against the four decisions.

C THIS JUDICIAL REVIEW

C1. Procedural matters after the hearing - Court of Appeal Judgments relevant to this judicial review

15. It is pertinent to note that most of the grounds relied on by the applicant in this judicial review had previously been advanced by other parties, and been dealt with by Reyes J in four separate judgments, namely: Turbo Top Ltd v Town Planning Board (unreported, HCAL 23 and 52/2011, 21 November 2011) (“the Turbo Top Judgment”), Oriental Generation Ltd v TPB [2012] 3 HKC 369 (“the Oriental Generation Judgment”), Lindenford Ltd v TPB [2012] 6 HKC 105 (“the Lindenford Judgment”) and Hysan Development Ltd v TPB [2012] 5 HKC 432 (“the Hysan Judgment”).

16. In the Oriental Generation, Lindenford and Hysan Judgments, specific developers whose sites were affected respectively by the relevant DOZPs sought to judicial review each of the Board’s decisions in upholding the relevant plans and rejecting the developers’ objections and representations. The developers’ objections and representations were to a large extent similar to those also relied on by the applicant at the various Board meetings. In the developers’ judicial reviews, they had therefore raised similar arguments now relied on also by the applicant to challenge the Board’s various decisions. Reyes J rejected most of these arguments with detailed reasons (and incorporating some of the reasons the learned judge has expounded in the Turbo Top Judgment).

17. It is thus natural that Reyes J’s said judgments and the submissions on the correctness of them have featured largely in this judicial review. In particular, Mr...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT