UNITED GRAND LTD v. TOWN PLANNING BOARD

HCAL38/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 38 OF 2005

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J U D G M E N T

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1.  In these proceedings, the applicant applies to judicially review the decision of the Town Planning Board made on 25 February 2005 refusing to propose any amendment to Draft Tsuen Wan Outline Zoning Plan No.S/TW/20 (“DOZP No.20) dated 17 September 2004 to meet the applicant’s objection.  The applicant’s objection is directed at the re-zoning of the objection site from Residential (Group B) partly to Residential (Group C) with a maximum plot ratio of 0.4 and partly to Green Belt.

The applicant

2.  The applicant is a developer.  By a sale and purchase agreement dated 23 June 2004, the applicant contracted to purchase Lots Nos. 67A, 67RP, 68A, 68RP, 70A, 70B, 70RP, 71A, 71RP, 245RP, 246, 251A, 251B, 251C, 251D, 251E1, 251ERP, 251F1 and 251RP of DD354 at Yau Kom Tau (collectively “the Objection Site”) at the price of HK$40 million.  Under the agreement, completion was scheduled for 25 October 2004.  Subsequent to and as a result of the DOZP No.20, the applicant had not proceeded with completion as initially contracted for.  By a supplemental agreement of 10 November 2004, the applicant agreed with the vendor to postpone completion to 25 April 2005.  On or about 13 December 2005, it was further agreed that the completion date be extended indefinitely. 

3.  The respondent has taken no issue with the locus of the applicant to bring these proceedings.

The Town Planning Board (“the Board”)

4.  The Board is a public body established under the Town Planning Ordinance, cap. 131.  It consists of official and non-official members appointed by the Chief Executive.  As prescribed by section 3(1) of the Ordinance, the Board’s function is the systematic preparation of draft plans and draft development permission area plans of such areas as the Chief Executive may direct with a view to promoting the health, safety, convenience and general welfare of the community.

5.  Pursuant to section 2(3) of the Town Planning Ordinance, two committees had been set up under the Board.  They are the Metro Planning Committee (“MPC”) and the Rural and New Town Planning Committee.  Their main functions are to consider amendments to draft plans and planning applications in the metro area or rural and new town tow areas respectively.

The Town Planning Ordinance (“TPO”)

6.  Apart from prescribing the power of the Board, the TPO also provides the procedures that the Board must follow in dealing with a draft plan.  The provisions relating to, inter alia, plan making and planning approval process in the TPO was amended by the Town Planning (Amendment) Ordinance 2004, which came into effect on 10 June 2005.  As the present case was processed before June 2005, it remains to be governed by the plan making and objections handling procedures before the amendment.

7.  Under section 5 of the TPO, any draft plan prepared by the Board shall be exhibited for public inspection for two months.  Any person affected by a draft plan or an amendment to draft plan may lodge an objection to the Board within the two months exhibition period.  Section 6 sets out the objection procedure.  The Board may reject the objection or may propose amendments to the draft plan to meet the objection.  The Board’s decision and reasons for the decision will be given to the objector.  After considering all the objections, the Board shall forward the draft plan, with or without amendments, together with a schedule of unwithdrawn objections to the Chief Executive in Council for approval.   Under section 9, the Chief Executive may approve the draft plan or refer it to the Board for further consideration and amendment.

8.  Separately under section 7 of the TPO, the Board may at any time after exhibition of a draft plan under section 5 and before approval by the Chief Executive in Council under section 9, make amendments (otherwise than consequent upon an objection) to a draft plan.  Every such amendment shall be exhibited for public inspection for a period of three weeks, during which any person affected by the amendment may make objection and the objection procedures prescribed in section 6 shall apply accordingly.

9.  Upon approval by the Chief Executive in Council, a plan becomes an approved plan and has to be exhibited for public inspection.  Section 13 of the TPO provides that approved plans shall be used by all public officers and bodies as standards for guidance in the exercise of any power vested in them. 

The Objection Site

10.  The Objection Site is located at the upper hill slopes in the Yau Kom Tau area.  It is away from Castle Peak Road but is facing Tuen Mun Road.  The Objection Site and the surrounding areas are predominantly sloping areas covered with vegetation.  Most of the residential sites in Yau Kom Tau had been developed except two sites on the upper slopes, of which the Objection Site is one.

11.  The Objection Site comprises mainly agricultural lots.  Modification of the lease conditions with approval of the Lands Department is required to use the Objection Site for residential development.  There is currently no approved building plan, land exchange or planning permission for residential development in relation to the Objection Site.   

The relevant Outline Zoning Plans (OZPs) and Draft Outline Zoning Plans (DOZPs)

12.  The Objection Site was covered by the Tsuen Wan Outline Zoning Plan promulgated in 1981.  Between 1981 and December 2003, the Tsuen Wan Outline Zoning Plan had undergone successive revisions.  Of the various statutory plans, at least three are approved plans (i.e. OZP No.6, OZP No.11 and OZP No.16). 

13.  In these 19 versions of OZPs and DOZPs, the Objection Site was consistently zoned as Residential (Group B) (“R(B)”).  Until the promulgation of DOZP No.19 on 19 December 2003, no plot ratio control was specified in the Notes for R(B).  By the Notes to DOZP No.19, which forms part of the draft plan, development restrictions were incorporated for zones R(A) and R(B).  For R(B) zone, para.7.4 of the Notes prescribed that development within the zone is subject to a maximum plot ratio of 2.1.  In the Explanatory Statement, which does not form part of the plan, para.7.4.3 similarly provides that development within R(B) is subject to a maximum plot ratio of 2.1.

Adopted Internal Layout Plan

14.  In 1992, with the agreement of various relevant government departments, including the Lands Development, the then Development Progress Committee (now the Committee on Planning and Land Development), endorsed the Yau Kom Tau Internal Layout Plan No. L/TWN6/2 (“the Layout Plan”).  On 11 March 1992, the then Secretary for Housing, Planning and Lands adopted the Layout Plan.

15.  The Layout Plan is an internal layout plan prepared by the Planning Department after consultation with relevant government departments, including the Lands Department.  It shows the land use pattern and transport framework for future development in the Yau Kom Tau area. 

16.  Under the Layout Plan, the Objection site (referred to as site no.5) was partly zoned as Residential Zone 4 (“R4”) with a plot ratio of 0.4 and partly as Green Belt (“GB”), on which no development was generally allowed.

17.  The Layout Plan is available to the public and can be purchased at the map office of the Planning Department.

The applicant’s activities in relation to the Objection Site

18.  On 17 June 2004, a meeting was held between Mr Michael Ma, the District Planning Officer, and Mrs Margaret Brooke and Mr Eric Ho, representatives from two real estate consultancies, Professional Property Services Limited and Richard Ellis. The consultancies were acting for the applicant but they did not disclose the identity of their client at the meeting.  The meeting was set up at Mrs Brooke’s request to discuss the development restrictions of the private lots within DD354 at Yau Kom Tau.

19.  It is common ground that at the meeting, Mr Ma drew to the attention of Mrs Brooke and Mr Ho the existence of the Layout Plan and further informed them that development of the private lots within DD354 was guided by the Layout Plan, and that sites at the upper hill slope, including the Objection Site, were designated R4 subject to a maximum plot ratio of 0.4 and the maximum site coverage is 20%. 

20.  On 23 June 2004, the applicant entered into the sale and purchase agreement for the purchase of the Objection Site.

21.  On 13 August 2004, at the request of Mr Anthony Lee, the applicant’s director, Mr Ma met with Mr Lee and a Mr Yeung, said to be his client, to discuss aspects and questions of planning in Tsuen Wan.  Mr Lee did not indicate he was acting on behalf of the applicant.  During the meeting, Mr Ma tabled the Layout Plan and also pointed out that the Objection Site was designated as R4 and subject to a maximum plot ratio of 0.4 with maximum site coverage of 20% and other development restrictions.  Mr Ma also told Mr Lee that the Objection Site was mainly agricultural lots, thus there was no guarantee that the Lands Department would agree to a land exchange.

22.  By an application dated 19 August 2004, the applicant through Professional Property Services Limited explored with the Lands Department the possibility of a lease modification to enable residential development on the Objection Site.  On 31 August 2004, the Lands Department requested the applicant to provide details of the ownership and other information.  As no response was received, the Lands Department took no further action on the matter.  The applicant’s proposal had therefore not been circulated to other government department, including the Planning Department. 

DOZP No.20

23.  In the meantime and since late 2003, studies and preparations on further amendments to the Tsuen Wan OZP were undertaken.  After background research and preparatory work, the proposed amendments to DOZP No.19 were circulated to over 20 government departments for comment on about 16 July 2004.  The proposed amendments together with the comments received were set out in MPC Paper 20/04 and forwarded to the MPC for consideration.  On 27 August 2004, the MPC agreed to the proposed amendments.  The MPC decided to exhibit the draft OZP renumbered as DOZP No.20 for public inspection under section 7 of the TPO.

24.  On 17 September 2004, the Board gazetted and exhibited DOZP No.20 for public inspection, together with the Notes and Explanatory Statement. 

25.  The main amendments proposed in DOZP No.20 involved re-zoning four sites on the upper hill slopes at Yau Kom Tau, south of Tuen Mun Road, which were hitherto zoned as R(B).  It is the Board’s case that the re-zoning was to incorporate into the OZP the permitted low-rise and low-density characteristics adopted in the Layout Plan.  The Objection Site was among the amendments and was proposed to be re-zoned partly to Residential (Group C) (“R(C)”) with a maximum plot ratio of 0.4 and partly to GB.

26.  Para.7.5.2 of the Explanatory Statement states that due to: (a) topographical constraints, (b) capacity of local access and (c) existing landscape characteristics, development within the R(C) zone is subject to a maximum plot ration of 0.4 and a maximum site coverage of 20%.  Para.7.12.1 of the Explanatory Statement further states that the GB zoning is to conserve the existing natural environment.

The applicant’s objection

27.  During the exhibition period, a total of seven objections were received.  On 7 October 2004, the applicant through Masterplan Limited, submitted an objection.

28.  The Board gave preliminary consideration to the applicant’s objection on 26 November 2004.  As provided for under section 6(3) of the TPO, this was done in the absence of the applicant.  The Board decided not to propose amendment to meet the applicant’s objection.  The decision and the reasons for it were communicated to the applicant by letter dated 10 December 2004, enclosing also TPB Paper no.7161, which had been considered by the Board, and extracts of the minutes of the meeting on 26 November 2004. 

29.  The applicant did not withdraw its objection and asked to be heard.  On 14 December 2004, the applicant through Masterplan Limited requested for additional two weeks to submit further technical information.  By letter dated 17 December 2004, the Secretary to the Board advised the applicant to adhere to the four-week deadline for submitting further information. 

30.  On 11 January 2005, the applicant put in an objection statement, attaching technical assessments (viz. geotechnical report on slope stability, traffic impact assessment on nearby road network and environmental impact assessment on noise and air), correspondence with Environmental Protection Department on risk assessment and also the indicative development scheme and site access design.

31.  In summary, the applicant’s objection statement made the following points:

(1) There was no public benefit in making a lower density.

(2) There was no particular landscape feature that required conservation, thus justifying the GB zoning.

(3) The site formation works would be similar whether the Objection Site was zoned as R(B) or R(C).

(4) There had been significant changes in traffic infrastructure since 1992 when the Layout Plan was adopted.

(5) Notwithstanding any noise and air impact from the traffic on Tuen Mun Road, the adjacent sites had developed to the plot ratio of 2.1.

(6) The Environmental Protection Department was of the view that the R(B) zoning would not adversely affect the water treatment plant nearby.

(7) Most of the neighbourhood had developed into a high-quality medium-density residential area.

(8) Most of the adjacent lands were zoned as R(B) and the Objection Site was singled out for down-zoning.

(9) The Layout Plan had been in existence for a long time and had been ignored.  There was no significant change in planning circumstances warranting a massive down-zoning.

(10) Limiting the plot ratio of the Objection Site to 0.4 would render its development financially unviable.    

The Board’s decision

32.  On 25 February 2005, the Board heard the applicant’s representatives on the objection.  Other objectors were also heard at this meeting.  The applicant’s representatives included Mr Anthony Lee and Mr Ian Brownlee of Masterplan Limited.  They made detailed and comprehensive submissions to the Board on the applicant’s objection. 

33.  After deliberations, the Board decided not to propose amendment to the draft plan to meet the applicant’s objection.  By letter dated 11 March 2005, the Board advised the applicant of its decision and the reasons for it.  The applicant was also provided with TPB Paper no.7236 and extracts of the minutes of the meeting on 25 February 2005.   

34.  The Board gave the following reasons for rejecting the applicant’s objection:

(a) The Objection Site is situated at the upper hill slopes of the Yau Kom Tau areas beside Tuen Mun Road.  It is subject to development constraints including steep topography of the area, lack of standard access road as well as adverse noise and air impacts from the Tuen Mun Road.  It is more desirable to have a low-density development and the current R(C) zoning of the major part of the Objection Site is therefore considered appropriate.

(b) It is the planning intention to minimize the landscape impact of the future developments on the Objection Site and the surrounding areas which are predominantly sloping areas covered by dense vegetation.  The current GB zoning of the remaining part of the Objection Site is considered appropriate.

(c)     There is no information in the submission to demonstrate that the proposed R(B) zoning of the Objection Site would not have adverse impact on landscape and natural environment of the area.

The judicial review application

35.  On 22 April 2005, the applicant commenced these proceedings.  On 4 May 2005, Cheung J extended the time to apply for judicial review and granted leave to apply for judicial review.  The Notice of Motion was filed on 18 May 2005.

Grounds of judicial review

36.  The applicant put forward a number of grounds in the Form 86A, but only three were argued at the hearing of the substantive application.  Further, although the Form 86A also challenged the decision of the Board not to propose amendment to meet the applicant’s objection at the preliminary meeting on 26 November 2004, this was not pursued at the hearing.  The only decision sought to be impugned is that made at the objection hearing on 25 February 2005.

37.  The three grounds relied upon by the applicant are:

(1) Legitimate expectation

(2) Procedural unfairness

(3) Wednesbury unreasonableness

The 1^st ground: Legitimate expectation

38.  The applicant’s first ground of challenge is that the re-zoning of the Objection Site is contrary to its legitimate expectation.  The legitimate expectation claimed by the applicant, and as set out in paragraphs 17 and 18 of the Form 86A, is that the Objection Site should be zoned as R(B) with a plot ratio of 2.1, and that the Board would not retrospectively revive the Planning Department’s planning intention as stated in the Layout Plan whereby the Objection Site would be zoned partly as R(4) with a maximum plot ratio of 0.4 and partly as GB. 

39.  The legitimate expectation is said to be created by the fact that in the 14 successive draft plans promulgated by the Board since the adoption of the Layout Plan in 1992, the Objection Site was consistently zoned as R(B) with either no plot ratio stated or a plot ratio of 2.1.  This shows that the Board had consistently ignored the planning intention as stated in the Layout Plan, which has since its adoption in 1992 become obsolete.  The applicant therefore argues that in the absence of changes in the planning circumstances, the down-zoning of the Objection Site to R(C) and GB for the sole purpose of implementing the Planning Department’s planning decision in the Layout Plan is contrary to its legitimate expectation and has frustrated its development right.

40.  The Board denies that the applicant has any legitimate expectation.  It is submitted there is no development or guaranteed right to a plot ratio of 2.1 and that the documents do not bear out the representation relied upon by the applicant.  The Board further argues that the applicant’s expectation is unreasonable in that in the nature of things, draft plans and approved plans are subject to constant changes.  It is the Board’s case that the Layout Plan is not obsolete and that it is a relevant and lawful consideration for the Board to take into account in deciding to introduce the amendments to DOZP No.19 as contained in DOZP No.20. 

41.  There is no disagreement between counsel on the law of substantive legitimate expectation as set out by the Court of Final Appeal in Ng Siu Tung & Others v. Director of Immigration (2002) 5 HKCFAR 1. 

42.  To give rise to a legitimate expectation, the representation must be clear and unambiguous. Where it is reasonably susceptible of competing constructions, the correct approach is to accept the interpretation applied by the public authority, subject to the application of the Wednesbury reasonableness test.  To be legitimate, the expectation must be reasonable. This depends on the conduct of the public authority, what it had committed itself to as well as what the applicant factually expected and what he is entitled to expect: Ng Siu Tung & Others v. Director of Immigration at paras.101-104. 

43.  An expectation will not be regarded as reasonable or legitimate if the applicant could have foreseen that the subject matter of the representation was likely to alter: Craig, Administrative Law (5^th ed., 2003), p.651, see also R v. Gaming Board of Great Britain, ex p Kingsley (unreported) 16 October 1995 referred to in Lam Yuet Mei v. Permanent Secretary for Education and Manpower at para.75. 

44.  Central to the applicant’s case of legitimate expectation is that arising out of the R(B) zoning, it would be entitled to develop to a plot ratio of 2.1.  This is, however, not borne out by the facts and evidence before this Court.  Firstly, none of the OZPs and DOZPs before DOZP No.19 had specified the plot ratio for the Objection Site.  There is no evidence as to what R(B) zoning dictates in terms of plot ratio.  In this connection, I note that Mr Anthony Lee of the applicant had suggested in his affirmation that the plot ratio of 2.1 is at the lower end of a R(B) zoning.  Quite apart from the fact that the applicant’s expert, Mr Brownlee, had said nothing about this in his affirmations, the fact of the matter is that in the Notes to DOZP No.19, 2.1 was stated to be the maximum plot ratio for the R(B) zone.  Secondly, given that 2.1 was prescribed as the maximum plot ratio, the plot ratio for development as specified in DOZP No.19 was 2.1 or below.  In the context of legitimate expectation, it cannot be said that it is reasonably open to an owner or developer to expect a guaranteed plot ratio of 2.1.

45.  At the same time, it cannot be ignored that the Objection Site is mostly made up of agricultural lots.  There is no automatic development right, not to say a guaranteed right to a plot ratio of 2.1.  Mr McCoy SC submits that this is irrelevant as it is a matter for the Lands Department.  In any event, he submits that the Lands Department is bound to approve land exchange and could not have imposed by way of leasing condition a plot ratio that is less than 2.1.  This is because section 13 of the TPO obliges the Lands Department to follow the latest relevant approved plan, OZP No.16.     

46.  Although modification of lease or land exchange is a matter for the Lands Department, the fact that the Objection Site comprises mainly agricultural lots is relevant as to whether the applicant can reasonably expect any development right or a guaranteed right to develop to a plot ratio of 2.1.  It should also be noted that as late as December 2003, it was stated in the Notes to DOZP No.19 that any use which may be permitted with these Notes must also conform to any other relevant legislation and to the conditions of the government lease concerned. 

47.  Further, it is not the case that the Lands Department is bound to approve land exchange and any plot ratio imposed is bound to be no less than 2.1.  In Chan Lau Fong & Others v. Attorney General [1992] 2HKLR 203 at 205, the Court of Appeal referred to section 13 of the TPO and held that approved plans merely served as standards for guidance.  That aside, as far as OZP No.16 is concerned, no plot ratio was specified for R(B) zoning.

48.  Another major plank in the applicant’s challenge based on legitimate expectation is that after the adoption of the Layout Plan, the Board had by the promulgation of successive draft plans represented that it would ignore the planning intention stated in the Layout Plan and also because the Layout Plan has, in light of development and changes in the area, become obsolete.      

49.  In the Explanatory Statement of OZP No.6, the first approved plan after the adoption of the Layout Plan, para.9.2 states that the OZP provides a broad land use framework within which more detailed non-statutory plans are prepared, and that these detailed plans are used for public works planning and site reservation within the government.  The same statement appeared in para.11.2 of the Explanatory Statement of OZP No.16, the latest approved plan that was published in June 2002.  Para.11.3 further states that planning applications are assessed on individual merits, and the Board will take into account planning considerations, which may include, inter alia, the departmental outline development plans and layout plans.  These statements also appear as paras.11.2 and 11.3 in the Explanatory Statement of DOZP No.19.

50.  While the Explanatory Statement is not part of the statutory plan, it is published together with the plan and the Notes.  In Henderson Real Estate Agency Ltd v. Lo Chai Wan [1997] HKLRD 258 at 267, Lord Lloyd, giving the majority decision, pointed out that the Explanatory Statement is a material document and could not be disregarded. 

51.  Clearly, in promulgating the statutory plans, including the draft or approved plans mentioned above, the Board did not indicate that they were to operate to the exclusion of the Layout Plan.  On the contrary, it is evident that the statutory plans were intended to and did co-exist with the Layout Plan.  The Board had contemplated that reference would be made to and consideration given to the Layout Plan when implementing the statutory plans.

52.  The applicant and the Board disagree on the relative status of a layout plan and an OZP.  In particular, the applicant takes issue with the Board’s view that a layout plan is a more detailed large scale plan whereas an OZP is a small scale plan.  In my view, this is not a material point when there is no conflict between the Layout Plan and the statutory plans and when it is plain from the Explanatory Statements of the statutory plans that the two co-exist.  In any event, the Board’s view is not gratuitous. The Explanatory Statement of DOZP No.19, for example, did state that the plan was a small-scale plan, the object of which is to indicate the broad land use zonings and major road networks within which the development and redevelopment of land can be put under statutory control.  Further, as pointed out by Mr Cooney, Yau Kom Tau is only a small part of the Tsuen Wan district and, as can be seen from the Layout Plan, it is a more detailed plan. 

53.  That aside, what is not in dispute is that, in general, a layout plan provides guidance and recommendations for government departments.  Mr Brownlee of Masterplan Limited, who was previously the Tsuen Wan District Planning Officer and heavily involved in the preparation of the Layout Plan, also does not dispute that the Lands Department may refer to a layout plan and take into account the development controls indicated on it when considering lease conditions or land exchange applications.

54.  Under sections 3 and 4 of the TPO, the Board is empowered to undertake the preparation of draft plans for the health, safety and convenience and general welfare of the community and has been given wide discretion with regard to the contents of the draft plans.  The discretion should not be unduly fettered.  Although a layout plan does not have statutory status and is not binding on the Board, it must be a relevant consideration that the Board is entitled to take into account when undertaking the preparation of draft plans.  It is equally open to the Board to incorporate the planning intention shown on the layout plan, including the development controls.

55.  As to the applicant’s argument that the Layout Plan has become obsolete in that so much had changed and developed since 1992, it is not borne out by the evidence.  The evidence of Mr Fan Pak Chuen, the Estate Surveyor of the Tsuen Wan and Kwai Tsing District Lands Office, is that over the years when processing land exchange applications or lease modifications, the Lands Department would take into account the Layout Plan, including the development controls shown on it.  Specifically, he referred to the land exchange application for the Grandview Villa development in the vicinity of the Objection Site and pointed out that, notwithstanding the relevant OZP did not prescribe any plot ratio, a plot ratio in the New Grant was restricted to 0.4 in line with the Layout Plan.

56.  The Board had also taken note of the fact that the development set out in the Layout Plan had been followed in land exchanges in the Yau Kom Tau area and had also been taken into account when planning the access road lading from Yau Lai Road and the ongoing Castle peak Road improvement project.

57.  All these are illustrative of the fact that over the years, developments in the Yau Kom Tau area had been guided by the Layout Plan.  The Layout Plan is not obsolete.  They also highlight the relevance of the Layout Plan as a consideration for the Board in preparing draft plans for the Tsuen Wan District and the Yau Kom Tau area in particular.

58.  In my view, on reading the successive OZPs or DOZPs and looking at the matter in a round, there is no clear and unambiguous representation that there was a development right or guaranteed right to develop to a plot ratio of 2.1.  Neither can it be said the Board had clearly and unambiguously represented that the Layout Plan and the planning intentions stated on it would not be considered nor that they would be ignored.  There is, in short, no proper basis for the claimed expectation to arise.

59.  As to the reasonableness of the expectation claimed by the applicant, I agree with Mr Cooney’s submission that draft plans and even approved plans are expected to be subject to constant changes.  This is apparent from the power of the Board to make amendment to draft plans under section 7 of the TPO.  Indeed in the present case of the Tsuen Wan OZP, it had gone through three successive amendments within the 18 months between June 2002 when the last approved plan (OZP No.16) was exhibited and December 2003 when DOZP No.19 was exhibited.  This is indicative of the changing nature of things. 

60.  Mr McCoy SC in submission acknowledges that it is a fact of life and a matter of common to expect constant changes to daft plans.  He however argues that it is not permissible for an OZP to be overtaken by the obsolete internal Layout Plan. It is said that the previous decision of the Board is a material consideration for the Board and there has to be powerful and sustainable reasons for differing from its previous decision. As analysed in the preceding paragraphs, these arguments are not warranted both as a matter of fact and in the light of the statutory role and functions of the Board.

61.  In addition, before the applicant contracted for the purchase of the Objection Site on 23 June 2004, the representatives of the two real estate consultancies had met with Mr Ma, the District Land Officer on 17 June 2004.  The minutes of the meeting showed that the attention of these professionals, who had been advising the applicant, was drawn to the Layout Plan.  They were told that development in the area would be guided by the Layout Plan.  They were also alerted to the differences between the Objection Site and other sites in the area that had direct frontage on Castle Peak Road and with direct access to Yau Lai Road.  In the circumstances, the expectation claimed by the applicant cannot be reasonably held. 

62.  Given that there is no basis for the claimed legitimate expectation, it is not necessary to dwell into the applicant’s contention that the Layout Plan should not be revived in the absence of changes in planning circumstances.   It suffices to point out that on a proper consideration of the evidence, including TPB Paper Nos. 7161 and 7236, the amendments to DOZP No.19 as reflected in DOZP No.20, were intended to reflect the reality of the developments that have been occurring in the area in accordance with the Layout Plan.  Further, as a matter of principle, the Board’s power to effect amendments and changes should not in general be conditioned upon the occurrence of changes in planning circumstances.  

63.  For these reasons, the first ground of challenge fails.

The 2^nd Ground: Procedural unfairness

64.  The second ground of procedural unfairness hinges upon the applicant’s request to have an additional two weeks to put in further submissions for the objection hearing.  The request was not acceded to by the Secretary of the Board on the basis that as there were a number of objections, it was desirable that they be heard together and the Board would need time to process the further representations made by the objectors. 

65.  The crux of the applicant’s case on the Board’s refusal to allow an extension of two weeks is that it had not been able to put forward a tree survey for the Board’s consideration. In my view, the applicant’s complaint cannot be sustained for three reasons. 

66.  Firstly, the DOZP No.20 was exhibited in September 2004 and the applicant had put in its objection statement in October 2004.  After the preliminary consideration of the objection, the applicant was given four weeks to submit further representations for the objection hearing. There was much more than two weeks between the end of the four-week period and the objection hearing.  Although the Secretary to the Board did not accede to the two weeks extension, it was open to the applicant to proceed with the preparation of the tree survey and to table it at the objection hearing.  At the objection hearing, the applicant’s representatives had tabled and the Board had received additional materials, including a photomontage and schematic diagrams.  The refusal to allow an additional two weeks had therefore not inhibited the applicant from preparing additional materials for the Board’s consideration.

67.  Secondly, if the applicant had wanted to put in a tree survey and required more time to compile it, its representatives could have asked the Board for an adjournment of the hearing or to withhold the decision on the objection pending the submission of further materials.  Although the applicant’s representatives did complain about the Secretary’s refusal to allow more time for preparation of additional information, including the tree survey, at the objection hearing, they did not request the Board for more time or an adjournment.  As Mr Cooney submits, a conscious decision had been taken by the applicant to proceed with the hearing and determination of the objection without the tree survey.  Thus viewed, there is no unfairness.

68.  Thirdly, the non-availability of the tree survey does not occasion any substantial prejudice to the applicant.  As the deliberations of the Board show, the focus of the members’ consideration was the landscape on the upper slope and the visual impact of R(B) zoning.  The tree survey envisaged by the applicant would not have alleviated the members’ concerns.

69.  In Leung Fuk Wah Oil v. Commissioner of Police [2002] 3HKC 1, at 11-12, the Court of Appeal held that in the context of procedural improprieties, the court should look at the substance of the complaint.  Ultimately, it is a question of fairness.  Hence, absence of substantial prejudice to the applicant is a relevant factor in deciding whether to grant relief in a judicial review application.  The Court of Appeal went on to consider the circumstances of the case and concluded that the breach of the principle of fairness had not produced any difference to the applicant’s position. It held that since the applicant did not as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision.

70.  The same reasoning applies here.  Irrespective of whether the Secretary declined the two-week extension for a good reason, there is no unfairness to the applicant. Neither has the applicant suffered any prejudice as a matter of substance.  The second ground of challenge also fails.

71.  Before leaving this ground, I should mention that on the second day of the hearing of this application, the applicant had applied to amend the Form 86A to add the non-disclosure of the MPC Paper 20/04 as a second limb to the challenge on procedural unfairness.  In the end, the amendment was not pursued, partly because there is no evidence that this paper was provided to and considered by the whole Board.

The 3^rd ground: Wednesbury unreasonableness

72.  The third ground of challenge is that he Board’s decision and the reason for rejecting the applicant’s objection is Wednesbury unreasonable.  In support of this ground, the applicant makes the following broad points:

(1)     The Layout Plan was an irrelevant consideration for the Board.  Yet, the Board adopted the Layout Plan in its entirety without any critical examination and accepted it as providing overriding guidance.

(2)     The Board had not properly considered and examined the applicant’s objection.  The reasons given by the Board were a verbatim repetition of the reasons given on the preliminary consideration of the objection, and the reasons suggested by the Planning Department in TPB Paper No.7236.

(3)     Despite the technological assessment papers submitted by the applicant, the Board rejected the objection on considerations of topography, lack of access as well as adverse noise and air impact from Tuen Mun Road.  At the same time, the Board had not provided any information, assessments or studies to substantiate its comments and views on landscaping and visual impact. In failing to have regard to the information provided by the applicant, the Board had failed to take into relevant considerations.

73.  As I had said in Capital Rich Development Limited & Another v. Town Planning Board, unreported, HCAL 51/2004 (9 November 2005), in the context of a Wednesbury challenge, it is important to note the court’s limited supervisory role in judicial review proceedings.  The court is not concerned with merits of the decision, but whether it can be demonstrated that the decision-maker’s decision is so absurd or irrational that it is Wednesbury unreasonable.  As far as planning merits and decisions are concerned, they must be within the remit of the Board and are not for the court.  Further, in terms of planning considerations, it is for the Board to decide what weight to be attached to them.

74.  In respect of the status and relevance of the Layout Plan, this had already considered and dealt with under the first ground of challenge. I do not agree that the evidence demonstrates that the Board considered itself bound by the Layout Plan.  The Board had considered and deliberated on the suitability of the R(B) zoning for the Objection Site in terms of the visual impact and the preservation of existing low-rise setting and landscape at the upper slope.  It was not a thoughtless adoption of the Layout Plan.

75.  As to the reasons given by the Board for its decision, a comparison of them with those given on the preliminary consideration of the objection will show that the two are not exactly the same.  The concerns for slope stability, lack of information on adverse traffic impacts on local road network, mitigating measures to deal with adverse noise and air impacts, increased population and risk assessments on the nearby water treatment work underlying the earlier decision on the preliminary consideration did not feature in the final reasons given for the rejection of the objection.  These concerns had been addressed by the technological assessments produced by the applicant and the views expressed by the other government departments subsequent to the preliminary consideration.  This indicates that the Board had taken note of and had properly assessed the representations made by the applicant.  It is only that notwithstanding the removal of these concerns, the Board was not convinced by the objection having regard to other considerations as articulated in its reasons.

76.  It is also clear from the evidence that the applicant had made detailed and extensive submissions to the Board both on paper and at the objection hearing.  The points raised by the applicant had been evaluated in the paper prepared by the Planning Department for the consideration of the Board.  There is no reason to believe that members of the Board were not apprised of the applicant’s representations.  The questions and views stated by the members at the objection hearing demonstrated that they were aware of and had given due consideration to the applicant’s grounds of objection.

77.  In recommending rejection of the applicant’s objection and suggesting the reasons for the rejection in TPB Paper No.7236, the Planning Department had at the same time assessed and analysed the applicant’s submissions on the issues of, inter alia, compatibility with local urban design, geographical, landscaping and natural environment as well as traffic and environmental impact.  The indicative development scheme and the helical ramp proposed by the applicant had also been evaluated. It was pointed out that they covered areas outside the Objection Site and in part encroached upon GB zone and government land.  The matters identified by the Lands Department are relevant planning considerations that the Board was entitled to take heed of.  It was open to the Board to agree with, hence adopt, the views and recommendations of the Planning Department on the applicant’s objection.  The mere fact that the Board had adopted the reasons suggested in the TPB Paper No.7236 cannot be taken as indicative of the Board’s failure to properly examine the applicant’s objection.

78.  As for the technological assessment papers submitted by the applicant, although they served to remove some of the aspects of the Board’s concerns, the Board was not persuaded that they were sufficient to address the other development issues, such as the steep topography and the impacts on landscape and natural environment.  Mr McCoy SC argues that the Board’s view that R(C) zoning is “more desirable” is perverse as there is no overriding public need for it.  I do not agree.  There is no justification for requiring an overriding need.  The evidence shows that the Board had embarked upon a planning exercise and in their planning judgment concluded that R(C) and GB zonings were appropriate for the Objection Site.  That is a view that the Board is entitled to on the materials before it.  There is also no need for the Board to provide evidence and information to counteract those put forward by the applicant.

79.  In the circumstances, the third ground of challenge cannot be sustained.

Conclusion

80.  For the above reasons, the application for judicial review is dismissed.  Applying the normal rule of costs follow event, I make an order nisi that the applicant pays the respondent the costs of these proceedings, to be taxed if not agreed.