NG NGAU CHAI v. THE TOWN PLANNING BOARD AND ANOTHER

HCAL 64/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 64 OF 2007

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D E C I S I O N

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1.  Mr. Ng is a resident of West Kowloon.  He seeks leave to apply for judicial review of:-

“[t]he decision of the Town Planning Board and/or Planning Department to designate all that piece of land situated at the west seashore of Tai Kok Tsui and registered in the Land Registry as KIL 11146 as residential use”.

2.  I shall assume (without necessarily accepting) that Mr. Ng has standing to bring his application.

3.  Mr. Ng says that the decision of which he complains was one whereby, despite objection from the Yau Tsim Mong District Council, “the Planning Department and Town Planning Board still determined to designate KIL 11146 as a piece of land for residential development without any height restriction”.

4.  The result (according to Mr. Ng) is that the living environment in West Kowloon has deteriorated.  Breezeways and view corridors have been cut off and public open spaces (especially for leisure activities) have been drastically reduced.

5.  But Mr. Ng nowhere identifies the particular regulations which he says have been flouted.

6.  Mr. Ng simply contends, vaguely, that the impugned decision is “[q]uite contrary to my understanding of the Urban Design Guidelines of the Planning Department for continuing development that is from time to time published by the Government”. 

7.  These Guidelines are said by Mr. Ng generally to “articulate the idea that the building being erected along the seaside shall be lower than the building inland and make special preservation for breezeways and view corridors”. 

8.  This means (Mr. Ng contends) that no “wall-like structures” should be built along the Tai Kok Tsui waterfront.

9.  Unfortunately, without knowing the precise text of the guidelines which (it is claimed) have been ignored, the Court cannot determine whether Mr. Ng’s understanding is or is not arguably correct.  In Court, Mr. Ng could only refer vaguely to some sort of document containing “131 guidelines”.  It is far from evident that these “guidelines” (whatever they may be) have legal force as opposed to providing mere guidance.

10.  Nor does Mr. Ng state in his application when and in what circumstances the relevant decision was made. 

11.  Decisions of the Town Planning Board, for example, do not normally come out of the blue.  They typically follow a period of public notice and consultation.  It is not apparent from Mr. Ng’s application whether there was or was not such period in relation to some relevant decision; whether or not Mr. Ng made his views known in any consultation; and (if so) what response or result there was to his representations.

12.  Mr. Ng accuses the Planning Department and Town Planning Board of exercising their statutory duties and obligations in an arbitrary manner, by adopting whatever planning guidelines “that may be found in [their] favour from time to time without consistence and any reasonable and objective standard”.

13.  He concludes by asking for mandamus against the Planning Department and Town Planning Board:-

“for reconsideration of its determination in relation to the user of piece of land known as KIL 11146 by consideration and contemplation of all the requisite Planning Guidelines in a consistent manner and with a objective and reasonable standard in full compliance with the spirit of the said Guidelines and the Town Planning Ordinance, particularly taking into consideration of the impact of the high risers erected on the north hand side and south hand side of KIL 11146 as a result of its previous determination in relation to these 2 pieces of land”.

14.  Applications for leave to apply for judicial review are ex parte applications. Consequently, as in all ex parte applications, there is a duty on an applicant to make full and frank disclosure of all relevant circumstances.

15.  An important aspect of such duty is to provide sufficient information to enable the Court to determine precisely what decision is complained of, when that decision was made, and (where some time has elapsed since such decision) why the applicant has not sought judicial review promptly.  An applicant must give enough information to assure the Court that he has a case which is susceptible of argument.

16.  Where it is said that some regulation has been transgressed, an applicant must condescend to specifics.  He cannot be vague.  He must identify the precise provisions which he says have been violated and explain exactly when, by what body and in what manner.

17.  It is not enough to state that in the applicant’s understanding some provisions have been ignored without giving chapter and verse as to what exactly the alleged provisions state.  Usually, the document containing the provision sought to be enforced is exhibited to the applicant’s supporting affidavit. This enables the Court to peruse the same and form a preliminary view at the leave stage.

18.  Here the information which Mr. Ng has provided in his supporting affidavit is far too sparse for the Court to come to any conclusion as to the appropriateness or otherwise of judicial review.

19.  Without knowing:-

(1)	just what decision is challenged, when it was made and in what circumstances; and,
(2)	precisely what provisions of which edition of “Urban Design Guidelines” are said to have been disregarded by the Planning Department or Town Planning Board,

I cannot say that this is a suitable case in which to grant leave for judicial review.

20.  At the end of hearing before me, Mr. Lam Ho Yeung (who was assisting Mr. Ng in his submissions) handed up (with Mr. Ng’s approval) an affirmation exhibiting further material. The new material consisted of newspaper clippings and some papers relating to a 29 April 2005 decision of the Metro Planning Committee (MPC) of the Town Planning Board.

21.  The newspaper clippings shed no light on the specific decision sought to be challenged by Mr. Ng and the precise grounds for his challenge.

22.  On the other hand, by its April 2005 decision, the MPC rejected a proposed amendment to South West Kowloon Outline Zoning Plan No. S/K20/16 (OZP).  The proposed amendment would have changed the classification of KIL 11146 from “Residential (Group A)1” to “Open Space” or “GIC”.

23.  It is unclear whether the latter decision by the MPC is what Mr. Ng seeks to challenge by these proceedings.  If so, his application is hopelessly out of time. Judicial review applications must be brought promptly and, in any event, within 3 months of a given decision.  No reasons have been provided for the delay of more than 2 years in challenging the MPC’s decision (if that is what is being attacked here).

24.  On the day after the oral hearing before, Mr. Ng submitted further similar material.

25.  One of these later documents appears to be a summary of “Urban Design Guidelines”.  It is unclear who prepared this summary and whether it is an accurate summary of a particular document or documents having legal force.  The summary itself cautions that it should not be read in isolation.  It states, for example:-

“It may be necessary to refer to other relevant sections in the HKPSG where appropriate in applying the urban design guidelines and striking a balance among various objectives to meet the needs of the community.”

26.  By itself then, the summary does not help the Court to form a preliminary opinion as to whether there is a potentially arguable case for judicial review.  I cannot discern from the material before me (including the summary) that, at some unspecified time within the last 3 months, the Town Planning Board or the Planning Department has possibly come to some unlawful (ultra vires) decision which irrationally “balances among various objectives to meet the needs of the community”.

27.  Accordingly, even taking account of the new material, there is an insufficiently particularised case for judicial review.  Leave to apply for judicial review is therefore refused.

28.  I fully sympathise with Mr Ng’s concerns about the deteriorating quality of the environment around Tai Kok Tsui, where he lives.  But the Court can only apply law.  The Judiciary cannot manage the environment.  That is the role of the Executive.  There is a limit to what can be done through the Court by way of judicial review.  In particular, the Court cannot proceed with a judicial review in the absence of information pinpointing an administrative decision made within the last 3 months and setting out the precise basis on which that decision is challenged.