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

5th Applicant

MONDSEE LIMITED

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)

_______________________

-2FAMV 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
LEE THEATRE REALTY LIMITED

1st Applicant
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

-3Appeal 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
proceedings2 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 applicants 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
1

2
3
4
5

The applicant Oriental Generation Ltd has entered into an agreement to acquire over 80% of the
undivided shares in KTM.
HCAL 62/2011, HCAL109/2011 and HCAL 34/2012.
CACV127/2012 was the appeal by TPB and CACV129/2012, appeal by Oriental Generation Ltd.
LamVP, Barma JA and Poon J on 13 November 2014.
Namely, HCAL 38/2011 and HCAL 57/2011.

-4heard 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 Appeal7 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 TPBs applications for
leave in their entirety. FAMV 28 & 29/2015 are Hysans applications for
leave to appeal from the judgment of the Court of Appeal in CACV 232 &
233/2012. FAMV 30 & 31/2015 are the TPBs 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 TPBs 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

TPBs 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 Boards choice of
starting point of the visual corridor, including its decision not to
commission a public consultation exercise for the purpose of
6

7
8

CACV 232 & 233/2012 were appeals by Hysan. TPB cross-appealed by respondents notice in CACV
232/2012.
Lam VP, Chu JA and Au J.
Some questions in TPBs application in FAMV17/2015 and FAMV 30 & 31/2015 covered the same
ground, although expressed differently. The difference in language is unimportant, we will give one
version of those questions.

-5selecting 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 Boards 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

-6the 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 Boards 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 Boards members who have seen
and

heard

all

matters

relevant

to

the

decision

-7notwithstanding 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 Courts overall
consideration as to fairness.
TPBs applications in FAMV 30 & 31/2015
Question 1: Similar in effect to Question 1 above.
Question 2: Similar in effect to Question 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 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

-8than 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 section 3(2) of the Town
Planning Ordinance (TPO) the decision to carry out further
inquires is that of the Board.
Question 5: Similar in effect to Question 6 above.
Question 6: Similar in effect to Question 7 above.
Question 7: Whether the Board in fixing the exact scale of a Non-building
Area for a specific area or site:
(1) Is required in law to determine the dimensions of a Nonbuilding Area for a site by reference to some general or
generic set of planning standards or guidelines for sites in
Hong Kong.
(2) Is required in law to conduct a comparative exercise over
a range of possible Non-building Areas for the specific
area or site or whether it is sufficient that the particular
dimensions chosen have a rational basis.
(3) Is entitled to determine the dimensions of a Non-building
Area for a site by reference to the site-specific
dimensions of an existing Non-building Area voluntarily
adopted by the developer of an existing development at

-9the site.
Hysans applications in FAMV 28 & 29/2015
Question 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.
Question 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.
Question 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.
Question 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:

- 10 (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.
Question 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.

Our Determination
5.

It is unnecessary to deal with the questions set out above

individually. However, Question 7 in TPBs application in FAMV 30/2015

- 11 was not amongst the questions put before the Court of Appeal. In relation
to this question we granted leave on the or otherwise ground. This
question relates to para 1 of the order of Reyes J dated 14 September 2012
in HCAL 38/2011 whereby he quashed the 5-metre non building area
imposed on the Hysan Place site by the Draft Causeway Bay OZP No
S/H6/15, on the ground that it was arbitrary.9 This was the subject of a
cross appeal by the TPB.10 However, the cross-appeal was not determined
and the order was left undisturbed by the Court of Appeal, because they
thought it had become academic, although they could see the force of TPBs
counsels argument. However, given that para 1 of Reyes Js order had
been left undisturbed, the matter is not academic. Nor would counsel for
Hysan accept that it was academic. That being the case, we believe we
should grant leave on the or otherwise basis.
6.

In relation to the Question 2 in Hysans application, the Court

of Appeal granted leave to appeal, saying that it is a GPI point and it is not
an easy point.11 Because, the Court of Appeal had refused leave to appeal
on the other grounds, Hysan applied to us for leave to appeal in respect of
the other questions as well as Question 2.12 Given the views expressed by
the Court of Appeal, we granted leave to appeal on this ground without
considering whether the appeal committee could revoke leave granted by
the Court of Appeal in respect of this question.
7.

In respect of the other questions, with respect, we refused leave

for the reasons given by the Court of Appeal when it refused leave.13

9
10
11
12

13

Reyes J para 149.

Respondents notice dated 28 November 2012.
CACV 232/2012 and CACV 233/2012 (heard together) 29 June 2015 para 17.
Hong Kong Island Development Ltd v World Food Fair Ltd & Another (2006) 9 HKCFAR 162 at
169D-E.
CACV 232/2012 and CACV 233/2012 (Heard together) 29 June 2015.

- 12 8.

We would however comment briefly on two broad matters.

The first relates to Questions 2 and 3 in FAMV 17/2015 and Questions 1

and 2 in FAMV 30 & 31/2015. The Court of Appeal called these phantom
questions because they did not relate to any issue in the proceedings. The
parties proceeded below on the basis that it was the policy of the TPB that
no town planning control would be imposed unless the full development
potential of sites subject to such control is preserved. Thus, the question
whether in principle they were required so to proceed was never in issue.
The other general question14 relates to the procedure adopted

9.

by the TPB in respect of s 6B and 6F of the Town Planning Ordinance Cap

131. In Oriental Generations proceedings, the Court of Appeal decided
that whilst it was not necessary for every board member to be present
during the representations, any member who took part in the deliberation
and the decision should be adequately informed of the contents of any
representation before such deliberation and decision. On the evidence they
were not satisfied that all the members had been adequately informed. And
in the Hysan proceedings, the Court of Appeal concluded on the evidence
that they were not satisfied that the members of the TPB who participated in
the decision had had an opportunity to properly consider the materials
presented by Hysan in its representation. These are questions of fact and no
important questions of principle are involved.
10.

Lastly, we note that in relation to Question 5 in FAMV 30 &

31/2015, the Court of Appeal made it perfectly clear when refusing leave
that it was not their decision that the TPB could never rely on a minor
relaxation but that on the facts, minor relaxation could not be the
answer.15
14
15

Question 7 in FAMV 17/2015 and Question 6 in FAMV 30 & 31/2015.

CACV 232/2012 and CACV 233/2012 (heard together) 29 June 2015 para 7.

- 13 -

(Robert Tang)
Permanent Judge

(Joseph Fok)
Permanent Judge

(Patrick Chan)
Non-Permanent Judge

Mr Benjamin Yu SC and Mr Alexander Stock, instructed by Mayer Brown

JSM, for the applicants in FAMV 28 & 29/2015
Mr Michael Barnes QC, Mr Jat Sew-tong SC and Mr Abraham Chan,
instructed by the Department of Justice, for the applicant in
FAMV 30 & 31/2015
Mr Michael Barnes QC, Mr Ambrose Ho SC and Mr Abraham Chan,
instructed by the Department of Justice, for the applicant in
FAMV 17/2015
Mr Nigel Pleming QC, Ms Audrey Eu SC and Mr Jonathan Lee, instructed
by Philip T F Wong & Co, for the respondent in FAMV 17/2015