JONNEX INTERNATIONAL LTD v. TOWN PLANNING BOARD

HCAL 130/2015
[2018] HKCFI 62

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 130 OF 2015

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J U D G M E N T

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A.   INTRODUCTION

1.  This judicial review application concerns a site (“the Site”) at Nos 1 - 7 Tak Sing Lane, Sai Ying Pun, Hong Kong.  Since 1970, the Site has been zoned as “O” (Open Space) under the Urban Renewal District Zoning Plan No LH 3/48 (“OZP LH 3/48”).

2.  The applicant is the registered owner of Nos 1 and 4 - 7 of Tak Sing Lane.  In about August 2014, the applicant and the other owners[1] of the Site made a joint application to the Town Planning Board (“TPB”) under section 12A of the Town Planning Ordinance (Cap 131) (“TPO”) to rezone the Site from “O” and “PPS” (Pedestrian Precinct/Street) to “R(A)23” (Residential (Class A)) (“the Section 12A Application”).

3.  The Section 12A Application was considered and heard by the Metro Planning Committee (“MPC”) (being delegated the relevant powers of the TPB under the TPO) at the MPC Meeting (“the Meeting”) held on 17 April 2015.  The MPC decided to reject the Section 12A Application (“the Decision”).

4.  In July 2015, the applicant applied for leave to judicially review the Decision, and leave was granted on papers by this court on 7 September 2015.

5.  The applicant is represented by Mr Denis Chang SC (leading Mr Lewis Law), and the TPB, in opposing this application, is represented by Mr John Litton (together with Ms Katherine Olley).

6.  I would consider the grounds of judicial review in detail later.  Before I do that, it is necessary to set out the uncontroversial background relevant to this application and the arguments to put the matter in proper context.

B.   BACKGROUND[2]

B1.   Retention of the Site as Open Space

7.  On 24 February 2005, the TPB asked the Planning Department (“PlanD”) to review those “O” zones on private land in the Sai Ying Pun and Sheung Wan OZP No S/H3/20 (“OZP S/H3/20”).  The objective was to identify those sites which were no longer intended for the long-term development of public open space, with a view to rezoning them for other more appropriate uses.  At that time there were 30 “O” sites shown on the prevailing OZP, 27 of them were in Government ownership and 3 were wholly or partly on private land.  The three on private land were at Yu Lok Lane, Ui On Lane and Tak Sing Lane (the Site).  All three had been zoned “O” since the first plan was gazetted in 1970.

8.  In 2006, the review of the “O” zones was completed (“the 2006 Review”).  The 2006 Review recommended that all 30 sites to remain as “O” zones.  The 27 sites in Government ownership had either been developed or would be.  The Yu Lok Lane site was to be re-zoned to “Comprehensive Development Area” (“CDA”).  However, it was recommended that the Ui On Lane site and the Site be retained as “O” sites for the following reasons:

“4.3 …

(a) There is a long-term planning intention for the sites to be used as POS, which have been zoned ‘O’ since the publication of the first OZP for the Sai Ying Pun & Sheung Wan area in 1970. The implementation of the open space development would depend on the programme of the LCSD [Leisure & Cultural Services Department];

(b) There is a severe shortage of local open space in the Sai Ying Pun & Sheung Wan area, which amounts to about 7.58 hectares.

(c) Surrounded by buildings and with no direct street frontages nor direct vehicular access, the 2 sites are essentially landlocked. Access to the sites is via stepped streets in the vicinity. They are considered not suitable for other types of uses other than an public open space (POS) so as to alleviate the congested living environment and meet the needs of local residents; and

(d) About 73% of the ‘O’zone at Ui On Lane is already under Government ownership ... Given that over 70% of the ‘O’ zone is under Government ownership, and previous applications for residential development at part of the site under private ownership were rejected on the ground of [the] more congested residential environment that would [result], the ‘O’ zoning of the site should be retained to facilitate implementation of the open space development by LCSD.” (emphasis added)

9.  Thus, the “O” zoning for, among others, the Site was specifically retained in order to facilitate the future provision of open space despite the known difficulty in bringing such spaces forward where the relevant land was privately owned.  Taking account of the recommendations of the 2006 Review, proposed amendments (which do not directly relate to the Site) to the OZP S/H3/20 were submitted to the MPC for consideration.  On 3 March 2006, the proposed amendments were agreed by the MPC.

B2.   Recommendations of the Air Ventilation Assessment: retention of all the “O” zones

10.  In May 2010, during the building height review of the Sai Ying Pun and Sheung Wan area, an Air Ventilation Assessment (“AVA”) report was completed.  It was noted (see “Executive Summary 0.2 Existing Conditions”) that the area has a high building volume and building site coverage with few large open spaces acting as “air spaces” and narrow streets.  The air ventilation on the whole was assessed as being poor with winds from the Harbour being obstructed from coming into the inland area by tall buildings occupying the full frontage along the waterfront and with few direct north-south air paths in the area.  The tall and densely packed buildings of the Central District obstruct winds from the east and, although the main streets and roads that are parallel to the easterly wind flow act as air paths, their efficacy as such is not great because of the pattern and narrow width of the streets.

11.  As the area is under great redevelopment pressure, the AVA report advised that care must be exercised so as not to worsen air ventilation in the area and that redevelopment would increase the building volume in the area resulting in a higher building height to street width ratio and further worsening the air ventilation of the area, such as to require mitigation measures for all new developments (see 0.3(a)).

12.  Figure 7.2 of the AVA report showed the Site as one of the “Pockets of Existing and Proposed ... Open Space ... as Breathing/Visual Space”.  The AVA report further recommended that all open spaces should be maintained.  Paragraph 5.6.6 recommended:

“(i) The ‘G/IC’ and ‘O’ zones in the Area should be respected. They provide useful ‘lungs’ of air spaces in the Area. They should not be further developed with tall buildings or re-zoned for bulky development.”

B3.   The Section 12A Application

13.  The applicant and the interested parties submitted the Section 12A Application on 25 August 2014, later asking for more time to provide further information by way of clarification, revised or updated technical assessments and responses to departmental comments.  The application came before the MPC on 17 April 2015.

14.  As summarised in the MPC paper No Y/H3/6A (“the MPC Paper”) prepared by the PlanD for consideration by the MPC, the applicant argued among others that the “O” zoning of the Site was outdated because the planning intention had not yet been implemented.  It was also asserted that the prevailing “O” zoning was jeopardising the development rights of the private land owners and that the severe shortage of local open space was not a strong reason to retain the Site for open space.  It was argued that the proposed development would not cause adverse air ventilation impacts on the local area.

15.  The MPC Paper also summarised the comments received from the relevant Government departments and the public.

16.  At the same time, the Director of Leisure and Cultural Services had advised that there was no programme for open space development on the Site and the land resumption matters needed to be resolved before the department could proceed with open space development.

17.  The Chief Town Planner/Urban Design and Landscape of the PlanD noted that the May 2010 AVA report had recommended that all the “O” zones should be maintained and not further developed with tall buildings or re-zoned for bulky developments. Although the applicant had supplied its own AVA report, this was considered unsatisfactory.  It said at paragraph 9.1.3(f) that the applicant had:

“... failed to provide sufficient information to demonstrate that the proposal would have no adverse air ventilation impact on the surrounding area.”

18.  The specific failings are set out in Appendix IIto the MPC Paper and include the fact that the prevailing wind directions mentioned in the applicant’s AVA report were different from those in the May 2010 AVA report.

19.  There were a total of 890 public comments made in relation to the application (covering the responses in relation to the first three weeks of the statutory public inspection period from 5 ‑ 26 September 2014, the publication of the first batch of further information on 28 November 2014 and the publication of the second batch of further information on 13 February 2015). 887 of the public comments objected to the proposed development.

20.  The objecting views are summarised at paragraph 10.2 of the MPC Paper and include that the Site is “... enclosed by residential buildings and the proposed development is too close to the surrounding buildings”, with the proposed BH of 120mPD considered “unreasonable resulting in infill of a tall building within a small site” (paragraph 10.2(b)).  Further, that the proposed development would “block the views of the nearby buildings ... and affect the living standard of the nearby residents” (paragraph 10.2(c)).

21.  The assessment of the PlanD is included in the MPC Paper at section 11.  It noted that the planning circumstances remained largely the same as at the time of the 2006 Review of the “O” zones in the Sai Ying Pun and Sheung Wan area (paragraph 11.2).  Under the sub-heading “Open Space Provision” it stated:

“11.3 … Despite the applicant argues that the loss of 495m²open space is negligible, the proposed rezoning would result in a permanent loss of open space as no reprovisioning site would be identified in the locality. Given the severe deficit in local open space in the area, the proposed rezoning would aggravate the shortfall of local open space in alleviating the congested living environment and meeting the needs of the local residents. Rezoning of the subject site for residential use is considered not appropriate.”

22.  Further, under the sub-heading of “Breathing Space and Visual Relief” it stated:

“11.4 In the old and densely built-up urban area in Sai Ying Pun and Sheung Wan, the pocket open spaces including the subject site are important to serve the local residents as breathing space and visual relief. The AVA EE Report ... (May 201 0) recommended that all the ‘O’ zones should be maintained and should not be further developed with tall buildings or rezoned for bulky developments as they provide useful ‘lungs’ of air spaces in the area. The proposed change from open space to residential use at the subject site would permanently deprive the built environment of the much needed spatial and visual reliefs.”

23.  The PlanD’s views on the application were as follows:

“12.1 Based on the assessment made in paragraph 11 above and having taken into account the public comment mentioned in paragraph 10, the Planning Department does not support the application for the following reasons:-

(a) given the site is surrounded by buildings and landlocked with no direct street frontages nor direct vehicular access, the ‘O’zoning for the site is considered appropriate to alleviate the congested living environment and meet the needs of local residents;

(b) rezoning of the site from ‘O’to residential use would result in a permanent loss of open space and further aggravate the shortfall of local open space provision in Sai Ying Pun and Sheung Wan area;

(c) there is no strong planning justification nor merit for rezoning of the site from ‘O’ and ‘PPS’to ‘R(A)23’; and

(d) the approval of the application would set an undesirable precedent for similar applications in the ‘O’zone and the cumulative effect of which would deprive the built environment of the much needed spatial and visual reliefs.”

B4.   Consideration of the application

24.  The application was considered by the MPC at the Meeting on 17 April 2015 and notification of the Decision to refuse the application was provided under cover of a letter dated 8 May 2015.  The following reasons for refusal were given:

“(a) given the nature and surroundings of the site, the ‘O’ zoning for the site is considered appropriate to alleviate the congested living environment and meet the needs of the local residents;

(b) rezoning of the site from ‘O’ to residential use would result in a permanent loss of open space and further aggravate the shortfall of local open space provision in Sai Ying Pun and Sheung Wan area;

(c) there is no strong planning justification nor merit for rezoning of the site from ‘O’ and ‘PPS’ to ‘R(A)23’; and

(d) the approval of the application would set an undesirable precedent for similar applications in the ‘O’ zone and the cumulative effect of which would deprive the built environment of the much needed spatial and visual reliefs.”

25.  For convenience, I would refer in this judgment these four reasons respectively as “Reason (a)”, “Reason (b)”, “Reason (c)” and “Reason (d)”.

C.   THIS JUDICIAL REVIEW

C1.   Ground 1: Taking into account irrelevant matters of “merging of sites” and “more comprehensive scheme” in making the Decision

26.  This ground is premised upon certain comments that were made by the Chairman of the MPC in the deliberation session of the Meeting.  The said comments were minuted at paragraphs 23 and 24 of the Minutes as follows:

“23. The Chairman said that the development pattern in Sai Ying Pun had long been characterised by rows of buildings within a street block. Such development pattern was not much a problem in the past as the buildings were usually 2 to 4 storeys high. In recent years, redevelopment projects in the surrounding areas usually involved the merging of sites in the middle row with those with street frontage in order to carry out redevelopment in a more comprehensive manner. The URA’s redevelopment project of Yu Lok lane/Centre Street was a good example. Considering that the Site was located in the middle row with no direct frontage on the main street, a more comprehensive redevelopment proposal by merging the Site with other sites with street frontage could result in a better scheme. Moreover, the development of a 25-storey residential tower at the Site in the midst of tall buildings would have adverse impacts on the surrounding area and was considered not acceptable. He suggested PlanD to continue to liaise with URA to explore the opportunity for comprehensive redevelopment of the Site with other sites and LCSD for implementation of open space at the Site.

24. The Chairman concluded that Members generally did not support the application. He then invited Members to go through the rejection reasons as suggested in the [MPC] Paper. Members generally considered that it was due to the nature and surroundings of the Site that rendered an ‘O’ zone more suitable for the Site, and agreed that rejection reason (a) should be suitably amended to reflect that.” (“emphasis added)

27.  Mr Chang submits that the Chairman’s remark about “merging of sites” and “more comprehensive scheme”, when read in proper context impliedly formed part of the MPC’s reasons in reaching the Decision.  Mr Chang then contends that the reliance on that remark as part of the reasons to reject the Section 12A Application is unlawful for two reasons.

28.  First, this remark is irrelevant and in any event Wednesbury unreasonable in the circumstances of this case because:

(1) The undisputed fact before the MPC was that the URA [the Urban Renewal Authority] had no plan to include the Site in a comprehensive project; and under their current policy, the URA would avoid developing sites which are largely zoned “O” unless there would be significant community or social gain in so doing.  The LCSD [Leisure and Cultural Services Department] had also allayed to the Secretary of the TPB the difficulty of open space development at the Site as it is under private ownership and land resumption would have to be resolved before they could take action.  See paragraphs 4.6 of the MPC Paper and paragraph 7(f) of the Minutes.

(2) In fact, in the consultation process of the Section 12A Application, both the URA and LCSD were just repeating their views expressed in 2006 at the planning stage of the URA’s Yu Lok Lane Project.  The undisputed evidence demonstrated that resorting to the route of CDA or Government resumption to implement the 1970 planning intention of “O” at the Site did not work, does not work, and will not work.  The oddity of having the Site zoned “O” whereas residential buildings remain in situis not going to be changed by a wishful thinking of the MPC.

29.  Second, even if this consideration is a relevant one, the reliance of it has resulted in procedural unfairness.  The Chairman’s observation about merging of the sites was not raised at the Meeting and thus the applicant’s representatives did not have a proper and fair opportunity to respond to it and hence the applicant has suffered prejudice.  Had this been raised, the applicant’s representatives would have made the following forceful points to show that the Chairman’s observation was incorrect[3]:

(1) The Site was surrounded by Yee Shun Mansion (built in 1984), Yue Sun Mansion (built in 1986) and Goodwill Garden (built in (1995) to the north, west and south respectively.  All these buildings are on “R(A)8” and have a larger street frontage than the Site.

(2) In view of the age and condition of these three buildings and the number of residents affected (high-rise developments relatively recently built), it is highly impracticable, if not virtually impossible, for the LCSD or URA, any other governmental/public bodies or the applicant to resume these private lots and merge them with the Site for a comprehensive development, either by means of land resumption, compulsory sale under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap 545) or otherwise.

(3) As to the two R(A)8 sites at the north-east and south-east to the Site (viz 48 - 56 Second Street and 63 - 73 Third Street), again no plan or even intention for any redevelopment has been heard of.  Furthermore, some of these sites contain 4 to 6-storeys residential buildings built in different times in 1950’s, 1970’s and 1980’s under private ownership.  There is great difficulty and lack of incentive for the URA to engage in a CDA exercise incorporating those sites, not to mention the LCSD will not possibly seek a resumption of those sites only for the purpose of implementing the “O” zoning at the Site.

(4) As to the site zoned G/IC abutting the Site to the east, there are four 2-storeys residential buildings under private ownership despite the zoning, and a temporary public toilet Again there was no plan/intention for redevelopment made known to the TPB/MPC, and even assuming it could be resumed for CDA purpose, the Government may not consider it worthwhile to pay full market value to the owners of the Site and Nos 1 - 4 David Lane (ie, the property under private ownership within the G/IC site).

(5) The matter will also involve further difficult considerations and greater complications (eg, public auction or application list system implications for the sale of public land owned by the Government) to be surmounted if the neighboring lot as zoned in “G/IC” is to be sold and redeveloped (which may result in loss of available amenities to the community) under a comprehensive scheme of redevelopment with the Site.

(6) Similarly, the planning justifications of developing the Site together with its neighboring sites on a “merged site basis” will entail very different considerations, proposals and consequences when compared with development of the Site on its own and will involve further assessment and separate evaluations.  They have not been studied.

(7) As such, in view of the particular circumstances of the Site, it would be impossible to consider a merger or more comprehensive development.  In fact, the URA had already considered this option in 2006 but the evidence has clearly demonstrated this has never been the URA’s plan.

30.  With respect, I am not persuaded that the Chairman’s remark as recorded at paragraph 23 of the Minutes constituted an implied reason for the Decision.

31.  Mr Chang fairly accepts that as a matter of general principle, not everything mentioned in the deliberation discussion must lead to or become part of the MPC’s reasons in making the Decision[4]. Whether certain matters mentioned or discussed in the deliberation became part of the reasons for the Decision is a matter of reading and understanding them in proper context and looking at the general tenor of the deliberation[5].

32.  In the present case, the proper contexts for understanding the matter raised and discussed at the deliberation sessions are the MPC Paper and the various representations made at the Meeting.  In relation to these, it is clear that:

(1) The PlanD had made no references or mention at all about the possibility of “merging of sites” and “more comprehensive scheme”. It was never part of the PlanD’s suggestions, comments and analysis in the MPC Paper in concluding that it did not support the Section 12A Application because the Site should or could be considered to be better developed into a more comprehensive scheme by merging with other sites.  The MPC was of course fully aware of the contents of the MPC Paper.

(2) Similarly, at the meeting, nothing had been raised by the applicant, the PlanD and members of the MPC about the possibility that the Site should or could be considered to be better developed into a more comprehensive scheme by merging with other sites.

33.  When read against the above context, coupled with the fact that the expressly stated reasons made no reference to the consideration of the “merging of sites” to develop the Site into a more comprehensive scheme, I am far from satisfied that, on balance of probabilities, it can be implied that the Chairman’s said remark had been taken on by the members of the MPC as part of the reasons or one of the bases for the stated reasons in rejecting the Section 12A Application.

34.  I therefore reject this ground.

C2.   Ground 2: Taking into account irrelevant matter of the “orientation of the proposed building” in reaching the Decision

35.  As with Ground 1, this ground is premised on the Vice-Chairman’s remark made in the deliberation as recorded at paragraph 21 of the Minutes as follows:

“21. The Vice-chairman said that for air ventilation purpose, the disposition of the proposed residential tower should better be north-south oriented. The east-west orientation of the residential tower currently proposed by the applicant would block the wind passage between Second Street and Third Street and create air ventilation problem in the area. He considered that the “O” zoning was appropriate for the Site.”  (emphasis added)

36.  Again, Mr Chang submits that this remark concerning the alleged “east-west” orientation of the proposed residential building in the indicative development scheme creating air ventilation problem, properly understood, impliedly formed part of Reason (c).  This is so, Mr Chang says, as the reason of there being “no strong planning justification nor merit” for rezoning the Site encompasses the MPC’s view that the applicant had failed to show that the indicative development scheme would not have adverse air ventilation impact on the surrounding area.

37.  However, Mr Chang contends that it is unlawful for the MPC to take this particular observation concerning air ventilation into account for the reaching the Decision for the following reasons.

38.  First, the orientation of the proposed building is irrelevant to air ventilation consideration or that it was irrational for the Vice-Chairman (and the MPC) to rely on this to reject the application because:

(1) It is an undisputed fact, as accepted by PlanD, that the Site did not fall within the location of any “air path” as defined in the 2010 AVA report (pages 3 and 23).  See paragraph 9 of the Minutes.

(2) The Site was also surrounded by its neighboring buildings whereas Yee Shun Building and Goodwill Garden were both “east-west oriented”.  The proposed building at the Site, if at “north-south oriented”, would have no difference with being “east-west oriented” in terms of air ventilation.

(3) In this regard, it also showed the MPC did not have sufficient inquiry on the opening in the proposed tower in the applicant’s indicative scheme.

(4) The applicant would also have addressed the MPC about the natural limitations of the shape and dimensions of the Site that it would be highly impracticable (if not impossible) to design and erect any “north-south” oriented building(s) within the Site which is of about 15.5m in width only.

See also: Mr To’s affirmation at paragraph 75.

39.  Second, and in any event, there is procedural irregularity in relying on this specific view on the orientation of the building affecting air ventilation, as the same had not been raised at the Meeting, and the applicant had no opportunity to respond to it with those representations as summarized at paragraph 38 above.

40.  Mr Litton on the other hand submits that, again, this remark did not become one of the stated reasons.  In particular, Mr Litton says Reason (c) is only to state the logical consequential conclusion flowing from Reasons (a) and (b), which had nothing to do with air ventilation.

41.  I agree with Mr Chang that, properly understood, this remark on the building orientation affecting air ventilation did constitute part of the basis for Reason (c).  I will explain why. 

42.  It is clear from the MPC Paper and the various representations made at the Meeting that the question of the effect on air ventilation in the area under the proposed development scheme and retaining of the planned “O” zone of the Site featured as one of the main issues considered in the application.  

43.  First, at paragraph 11 of the MPC Paper, the PlanD set out its respective planning considerations and assessments of the Section 12A Application under various issues. At paragraph 12, the PlanD relied on these assessments and set out the reasons for not supporting the application.  For convenience, these paragraphs are quoted in full as follows (footnote omitted):

“11. Planning Considerations and Assessment

11.1 The site falls within ‘O’ zone which is primarily intended to provide land for the provision of outdoor open-air public space for active and/or passive recreational uses serving the needs of local residents as well as the general public. The site is currently occupied by seven 3-storey private residential buildings on private lots. The residential buildings had existed since 1950s before the site was zoned ‘O’ on the first OZP covering the area, which was gazetted on 20.3.1970.

11.2 As mentioned in paragraph 4 above, a review of the ‘O’ zones in Sai Ying Pun and Sheung Wan area was completed in 2006, the Committee agreed at that time that the subject ‘O’ site at Tak Sing Lane should be retained for reasons, among others, that there was a severe shortage of local open space in the Sai Ying Pun and Sheung Wan area; the site was surrounded by buildings and essentially landlocked with no direct street frontages nor direct vehicular access; and it was considered not suitable for other types of uses other than public open space so as to alleviate the congested living environment and meet the needs of the local residents. Since then, the planning circumstances remain largely the same.

Open Space Provision

11.3 According to the requirements of the Hong Kong Planning Standards and Guidelines (HKPSG), there are deficits of 9.9ha and 9.3ha in the existing and planned provision of local open space respectively in the Central and Western District. The applicant proposes to rezone the site from ‘O’ and ‘PPS’ to ‘R(A)23’ for residential development. Despite the applicant argues that the loss of 495m² open space as no reprovisioning site would be identified in the locality. Given the severe deficit in local open space in the area, the proposed rezoning would aggravate the shortfall of local open space in alleviating the congested living environment and meeting the needs of the local residents. Rezoning of the subject site for residential use is considered not appropriate.

Breathing Space and Visual Relief

11.4 In the old and densely built-up urban area in Sai Ying Pun and Sheung Wan, the pocket open spaces including the subject site are important to serve the local residents as breathing space and visual relief. The AVA EE Report for the Sheung Wan & Sai Ying Pun Area (May 2010) recommended that all the ‘O’ zones should be maintained and should not be further developed with tall buildings or rezoned for bulky developments as they provide useful ‘lungs’ of air spaces in the area. The proposed change from open space to residential use at the subject site would permanently deprive the built environment of the much needed spatial and visual reliefs.

11.5 The applicant has submitted an AVA EE Report to substantiate the proposed development. However, CTP/UD&L of PlanD considers the applicant’s AVA EE Report unsatisfactory with many incorrect information and inconsistencies. In this regard, the applicant has failed to provide sufficient information to demonstrate that the proposal would have no adverse air ventilation impact on the surrounding area.

Other Technical Considerations

11.6 Moreover, the applicant fails to demonstrate that the proposed development would not have adverse tree preservation, sewerage and air quality impacts on the surrounding areas. The technical assessments including tree preservation report and sewerage impact assessment have yet to be accepted by the relevant government departments. Moreover, there is no information in the current submission to demonstrate the air quality implications of the proposal. DEP cannot lend support to whilst CTP/UD&L of PlanD has reservations on the application.

Planning Merits

11.7 The applicant offers public pedestrian access between G/F and 1/F of the proposed development through provision of a lift for public use, which is free from opening hours constraints (Drawing Z-14).There is no provision under the OZP or Town Planning Ordinance to cater for implementation and management issues of such proposal. Besides, as the lease governing the site is virtually unrestricted with non-offensive trades clause and rate & range clause, it is doubtful whether the requirement for the provision of public pedestrian access could be enforced under the lease.

11.8 Besides, there had been grave public concern and media coverage on the public accessibility and standards of provision in some public open spaces/public facilities within private developments, as well as the conflicting interests between public users and private owners especially those in private residential developments.

Undesirable Precedent

11.9 While the technical feasibility of the proposal is yet to be established, approval of the application would set an undesirable precedent for similar applications in the ‘O’ zone and the cumulative effect of which would result in a permanent loss of public open space and deprive the built environment of the much needed spatial and visual reliefs.

Implementation Issues

11.10 With respect to the applicant’s concern that the development right of the land owners is jeopardized as there is no programme for implementing the subject open space, DLCS advises that there is no programme for open space development and the laud resumption matters needs to be resolved before the department may proceed with open space development. For Members’ information, a s.16 planning application (No. A/H3/421) for proposed eating place on ground floor of the subject site submitted by the same applicant was approved with conditions on 23.5.2014.

Public Concerns

11.11 C&WDC and local residents have raised grave concern on the proposed rezoning and object to residential development at the subject site. The grounds of objection include the proposed development will increase the building density and is incompatible with the surrounding environment the site should be reserved for open space development, the proposed development would cause adverse traffic, visual, environmental, sunlight and air ventilation impacts on nearby buildings together with other concerns on fire safety, privacy and living quality. In this connection, the planning assessment and departments’ advices on these aspects in paragraphs 11.1 to 11.6 are relevant.

12. Planning Department’s Views

12.1 Based on the assessment made in paragraph 11 above and having taken into account the public comment mentioned in paragraph 10, the Planning Department does not support the application for the following reasons:

(a) given the site is surrounded by buildings and landlocked with no direct street frontages nor direct vehicular access, the ‘O’ zoning for the site is considered appropriate to alleviate the congested living environment and meet the needs of local residents;

(b) rezoning of the site from ‘O’ to residential use would result in a permanent loss of open space and further aggravate the shortfall of local open space provision in Sai Ying Pun and Sheung Wan area;

(c) there is no strong planning justification nor merit for rezoning of the site from ‘O’ and ‘PPS’ to ‘R(A)23’; and

(d) the approval of the application would set an undesirable precedent for similar applications in the ‘O’ zone and the cumulative effect of which would deprive the built environment of the much needed spatial and visual reliefs.

12.2 Should the Committee decide to agree or partially agree to the application, the proposed amendment to the approved Sheung Wan & Sai Ying Pun Outline Zoning Plan No. S/H3/29 would be submitted to the Committee for approval prior to gazetting under section 5 of the Town Planning Ordinance.” (emphasis added)

44.  Thus, the air ventilation assessment at paragraph 11.5 is one of the planning considerations and assessments made by the PlanD which it had relied on to conclude at paragraph 12 that the Section 12A Application should not be supported for the four stated reasons. 

45.  PlanD’s reasons (a), (b) and (d) (which effectively are also Reasons (a) and (b) of the Decision) do not (as submitted above by Mr Litton himself) relate to assessment on air ventilation, and reason (d) (which is the same as Reason (d) of the Decision) obviously also does not relate to air ventilation assessment. In the premises, PlanD’s air ventilation assessment that “the applicant had failed to provide sufficient information to demonstrate that the proposal would have no adverse air ventilation impact on the surrounding area” must have constituted part of the bases for PlanD’s reason (c) (which is the same as Reason (c) of the Decision).  Particularly, this should be understood against the department comments of the Section 12A Application concerning air ventilation as summarized by PlanD at paragraph 9.1.3(d) - (f) of the MPC Paper as follows:

“Air Ventilation

(d) the AVA EE Report for the Sai Ying Pun and Sheung Wan area (May 2010) (SYP&SW AVA Report) recommended that all the ‘O’ zones should be maintained and should not be further developed with tall buildings or rezoned for bulky developments as they provide useful ‘lungs’ of air spaces in the Area. With considerations to the recommendations of the SYP&SW AVA Report and the existing situation at and around the application site, adverse air ventilation impact is expected when comparing the current proposal with the existing and planned scenarios;

(e) for the current application, the applicant has included an AVA EE Report to substantiate the proposal. However, the applicant’s AVA EE Report has failed to address the air ventilation impact and to propose mitigation measures to alleviate such impact. Many of the submitted information are erroneous and there are also many inconsistencies throughout the applicant’s AVA EE Report. The overall analysis is not convincing. In this regard, the applicant’s AVA EE Report is considered unsatisfactory. The applicant should address the specific issues which are listed in Appendix II accordingly; and

(f) overall, for the reasons listed above, the applicant has failed to provide sufficient information to demonstrate that the proposal would have no adverse air ventilation impact on the surrounding area.”

46.  Second, at the Meeting, there had been various discussions and questions made concerning the AVA assessment and the impact on air-ventilation relating to the indicative development scheme and the application to rezone.  See: paragraphs 7(g), (i)(ii), 8(ii) and (in particular) 9 of the Minutes.

47.  In the premises, when the Vice-Chairman’s above remark concerning air ventilation is considered and understood in the above context, I am satisfied that this had formed one of the bases for the MPC to arrive at Reason (c) for the Decision.

48.  Further, I agree with Mr Chang that there is procedural irregularity in relying on this by the MPC to reject the Section 12A Application.  This is so as this purported concern on the orientation of the proposed building blocking air ventilation had never been raised in the MPC Paper or at the Meeting.  However, it must only be fair procedurally for the applicant to be able to respond to this concern before a decision was made.

49.  For these reasons, I agree that there is procedural irregularity for the MPC to take into account the Vice-Chairman’s above remark to arrive at the Decision. Reason (c) is thus tainted with such irregularity, and the Decision should be quashed.

50.  Given that the questions of whether and how the orientation of the building would affect air ventilation as remarked by the Vice-Chairman are questions of fact and expert views, and given that the applicant and MPC had not had a proper opportunity to address it, it is not for this court in this judicial review to conclude whether that remark or conclusion is irrational or not.  It is therefore unnecessary and inappropriate for me to deal with Mr Chang’s first argument that the reliance on this remark is irrational. 

C3.   Ground 3: Reason (b) of “permanent loss of open space” and “aggravating the shortfall” is irrelevant and irrational

51.  This ground is related to Reason (b) of the Decision, which stated that rezoning the Site from “O” to residential use “would result in permanent loss of open space and further aggravate the shortfall of local open space provision in Sai Ying Pun and Sheung Wan Area…”.

52.  Mr Chang submits that this reason is either irrelevant or irrational in public law sense, and is thus unlawful.  Leading counsel’s submissions can be elaborated as follows.

53.  Mr Chang emphasizes that it is an undisputed fact that the Site has always been occupied by the existing buildings since the time it was zoned “O” in 1970.  Hence, factually, it is not and has not been an open space.  It has been a de facto residential site.

54.  Moreover, recognising that the Site was occupied and privately owned, the express planning intention of the 1970 OZP in zoning the Site “O” is that it shall become a public open space by development through acquisition and urban renewal.  See paragraphs 3.1 and 3.2 of the Explanatory Statement to the 1970 OZP.

55.  However, it is a fact that by the time of the consideration of the Section 12A Application, 46 years had passed since 1970, and although most of the other sites zoned “O” in the prevailing OZP had been developed into the CDA by the URA, the Site is left as the only site in the area which is wholly privately owned and not developed.  Moreover, the PlanD had (under the request of the TPB in the 2006 Review and after the Decision in May 2015) written to the LCSD and URA to inquire whether they would explore possibility of a comprehensive redevelopment scheme merging the Site with other suitable sites in its surrounding.  The LCSD and URA replied in 2006 that they had no such plans, while they did not reply at all to the 2015 inquiry.  This means in reality there is unlikely to be any possibility to develop the Site by the LCSD or URA by resumption to achieve the planning intention.

56.  Finally, the Site’s coverage is only 476 sq m (0.0476 ha), whereas the PlanD’s stated deficit of open space was “9.9 ha and 9.3 ha in the existing and planned provision of local open space” in the subject area.  In other words, the Site occupies only a very small proportion of the existing and planned provision of open space.

57.  When all the above are considered together, which the MPC is fully aware of, in reality, says Mr Chang, there is practically very little prospect that the Site would be so developed through land resumption to realise the planning intention to become a public open space.  In the premises, it is irrational for the MPC to conclude that rezoning the Site to residential use would result in permanent loss of open space or that it would materially further aggravate the shortfall of open space in the area.

58.  With respect to Mr Chang, I am unable to accept his submissions.

59.  As rightly submitted by Mr Litton, it cannot be said that no reasonable person in the position of the MPC would form the above view in light of the following:

(1) The MPC members were clearly aware of the fact that the Site had always been occupied with existing buildings for the past 46 years.  They were also aware that the long term planning intention was to develop the Site through acquisition by the LCSD or URA.  This has been made clear in the MPC Paper, the applicant’s representations, and the 2006 Review.

(2) However, it is a matter of judgment for the planners to form the view as to whether there is practically no or very little likelihood for the Site to be resumed for redevelopment.  Given that it has always been stated to be a long term planning intention to have the Site developed as an open space, there must be a range of reasonable views to differ on how long the Site has not been resumed to conclude that practically and realistically the intention could not be achieved.  In my view, it clearly cannot be said that no reasonable persons in the position of the MPC in the present circumstances would regard it as still practically possible for the Site to be developed by public or statutory authorities into public open space despite the lapse of 46 years.  As pointed out by Mr Litton, after all, the nearby sites similarly zoned “O” at Yu Lok Lane were only resumed by the URA to develop into a CDA in around 2005, some 35 years after 1970.

60.  I therefore reject this ground.

C4.   Ground 4: Reason (d) of “undesirable precedent” is unlawful

61.  This ground relates to Reason (d), which rejects the Section 12A Application on the basis that “the approval of the application would set an undesirable precedent for similar applications in the ‘O’ zone and the cumulative effect of which would deprive the built environment of the much needed spatial and visual reliefs”.

62.  Mr Chang’s main complaint as advanced at the hearing is as I understand it two-fold.

63.  First, Mr Chang submits that the reliance on this reason is unlawful as there are clearly relevant and material differences in features between the Site and Ui On Lane (which is one of the other two undeveloped zoned “O” site in the OZP)[6], but the MPC had provided no evaluation of their differences to explain it would treat the two sites alike.  Without giving a proper evaluation of the differences of these two sites and explaining why they should be treated alike, this reason is Wednesbury unreasonable as it has no basis to support it.

64.  I accept Mr Chang’s submissions.  

65.  It is indeed fairly accepted by Mr Litton at the hearing that there are some differences between the Ui On Lane site and the Site.  However, counsel submits that there are at least sufficient similarities between them that, if an application for Ui On Lane is made, the MPC would necessarily have to at least take into account the decision about the Site.  It is not that the same decision has to be made for Ui On Lane, as that would have to be treated on its own merits.  But, Mr Litton says, it certainly cannot be suggested that the decision relating to the Site would not have any effect and impact on a similar application made for Ui On Lane.

66.  The difficulty I have with Mr Litton’s above submissions is that whether, despite the differences, there are “sufficient similarities” between the two sites to make this conclusion for planning purposes is a factual conclusion for the MPC to evaluate and explain. But it had not done so in the Decision, and I cannot say that must be obvious to an objective person.

67.  In the premises, I accept Mr Chang’s argument and find this reason Wednesbury unreasonable as the MPC has failed to explain on what basis, despite the differences between the two sites, it should treat them alike for considering rezoning applications.

68.  Second, Mr Chang also submits that this reason amounts to fettering the future exercise of MPC’s discretion by committing itself now as to the way in which it will exercise its power in the future.  Such discretion should be exercised on each occasion in light of the circumstances at that time.  In other words, it also amounts to a reverse fettering of the exercise of discretion in relation to the present Section 12A Application.

69.  With respect, I do not accept this contention.   This is so as I do not read Reason (d) as suggesting that the MPC regards it as bound to accept future similar applications regarding the other sites if it had accepted the Section 12A Application.  All that MPC is saying under this reason is only that if the Section 12A Application was approved, it would become a relevant decision that the MPC would have to take into account in considering future applications. There is nothing wrong in this in principle.   In fact, in the applicant’s own Supporting Planning Statement for the Section 12A Application, it has also relied on other examples of taking up “Open Space” for Other uses in Sai Ying Pun and Sheung Wan to support its own application[7].

70.  I therefore reject this argument.

71.  Finally, Mr Litton submits that, even if I come to the conclusion that this reason is unlawful, I still should not exercise my discretion to quash the Decision. This is so as Reason (d) is clearly a free-standing reason separate from Reasons (a) to (c) (which are reasons to reject the Section 12A Application on merits).  It is only what Mr Litton describes as a “throw away” reason. In the premises, Reasons (a) to (c) by themselves would be sufficient for the MPC to reach the Decision.  Therefore, the result of a reconsideration of the Section 12A Application by the MPC would no doubt be the same.  The court therefore should not quash the Decision even if Reason (d) is defective.  See: R(FDA) v Secretary of State for Work and Pensions [2012] EWCA Civ 332 at paragraphs 66-69.

72.  I am unable to agree.

73.  As submitted by Mr Chang, the Minutes shows that in the deliberation, there were members who had expressed sympathy to the applicant’s situation, and one member had in fact indicated his or her support for the Section 12A Application.  In the premises, I cannot exclude the possibility, as contended by Mr Chang, that the undesirable precedent reason might have “tipped the balance” among the members to ultimately decide to reject the Section 12 Application.

74.  In the premises, I accept this ground of challenge under the Wednesbury argument and would quash the Decision on this basis.

C5.   Ground 5: The MPC’s failure to properly inquire into the basis of comparison for assessing air ventilation

75.  Under this ground, the applicant argues that, in reaching Reason (c), it was unlawful for the MPC to rely on the 2010 AVA report (as adopted by the PlanD) to conclude that the applicant’s indicative development scheme would not result in adverse impact air ventilation in the area.   Mr Chang’s argument in support of this ground runs in gist as follows.

76.  At the open hearing session of the Meeting, a few members of the MPC indicated a need for enquiring into what comparison should be adopted for planning merit and AVA purposes: comparing (a) the Site with the existing building structure in it with the proposed scheme; or (b) the planned “open space” scenario as contemplated in the OZP with the proposed scheme.  PlanD admitted that comparison (a) had not been done, but then there was no clue in the Minutes that this issue had properly been evaluated and resolved before the Decision was made.

77.  Mr Chang submits that if the court accepts that AVA had played a material part in the Decision (as the court has now so held under Ground 2) and thus it was necessary to decide the basis comparison, then the applicant should succeed under this ground as there was no enquiry or evaluation by MPC as to which comparison should be adopted.  It had therefore failed to carry out a proper enquiry on this relevant issue in discharge of its duty.  It is not necessary for the court to decide which basis of comparison should prevail.

78.  I reject Mr Chang’s submissions.

79.  It is the unchallenged evidence that the Planning Officer had explained to the MPC Members at the hearing that as a matter of normal practice, the AVA should compare the proposed development at a site with a notional scheme based on the planning intention of the site, and it was not the general practice to request an AVA study to compare the proposed development at a site with the existing condition of the site[8].

80.  The fact that the MPC members did not discuss this basis of comparison question further at the deliberation session and decided at the end to agree with the PlanD’s air ventilation submissions in reaching the Decision shows that they had accepted PlanD’s above explanation on the normal practice. Such acceptance is clearly reasonable, as the normal practice is, in the court’s view, objectively plainly logical.  The Section 12A Application was to ask the MPC to rezone the Site from the planned zone “O” to residential use for the proposed development.  The MPC was therefore to consider whether it was justified to do so to change it from the planned “O” zone to residential use for planning purposes.  It is thus simply logical that one should compare the air ventilation scenarios between the originally planned “O” zone and the proposed development at the Site to evaluate what impact, if any, on air ventilation it would have if the MPC was to approve the rezoning application. 

81.  The applicant therefore fails under this ground.

C6.   Ground 6: copying of reasons

82.  Under this ground, Mr Chang complains that the MPC’s stated reasons for the Decision are almost identical as the PlanD’s reasons set out in the MPC Paper.

83.  In this respect, leading counsel accepts that the mere fact that the MPC had adopted PlanD’s reasons may not by itself be objectionable as long as it can be shown that the MPC had indeed properly considered the applicant’s representations made at the Meeting. See: Capital Rich v TPB [2007] 2 HKLRD 155 at paragraph 105.  Leading counsel indeed notes that, as reflected in the Minutes, the MPC members had considered the applicant’s representations in the deliberation and in fact decided to amend to a certain extent PlanD’s reason (a) to become the MPC’s Reason (a).

84.  Mr Chang however says he is advancing a different complaint under this ground.  He says as the MPC had copied the PlanD reasons, which were all drafted in general terms, these reasons were so vague that they do not amount to adequate reasons to enable the applicant to understand fully what were the MPC’s real bases for rejecting the Section 12A Application.  This inadequacy has been highlighted, says Mr Chang, in this judicial review in that the parties have to debate so much under the above grounds as to whether certain considerations constituted part of the basis for those stated Reasons.

85.  With respect, I do not agree.

86.  As demonstrated above, when the stated reasons are read and understood in their proper context of the parties’ representations at the Meeting, the MPC Paper and the deliberation, it is adequately clear to an objective person as to the basis upon which the MPC decided to reject the Section 12A Application.  They are adequate reasons.

87.  I would therefore also reject this ground.

D.   Conclusion

88.  For the above reasons, the applicant is successful in this judicial review under Grounds 2 and 4 (under the Wednesbury argument only).  I would however reject the other grounds of judicial review.

89.  In the premises, I would quash the Decision and remit it to the MPC for reconsideration in light of the court’s reasons set out under Grounds 2 and 4 (under the Wednesbury argument).

90.  I further make an order nisi that costs of this application be to the applicant, to be taxed if not agreed, with certificate for two counsel.

91.  Lastly, I thank counsel for their helpful assistance in this matter.