AGRADE HOLDINGS LTD v. TOWN PLANNING BOARD

HCAL 824/2020

[2021] HKCFI 3559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 824 OF 2020

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J U D G M E N T

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A.  INTRODUCTION

1.  This is the applicant’s application for judicial review against the decision (“Decision”) of the respondent (“Board”) made in the meeting of 17 January 2020 (“Meeting”) to reject the applicant’s application No Y/TM/20 (“Application”) for rezoning of the Site (as defined below).  The Board’s two reasons for rejecting the Application were only communicated to the applicant by way of letter of 7 February 2020.

B.  BACKGROUND AND CONTEXT

B1.  The Application

2.  The applicant is the registered owner of Lot No 977 RP & the extension thereto in DD 131 at No 436 Castle Peak Road - Castle Peak Bay, Tuen Mun, New Territories (the “Site”).

3.  The Site is currently zoned as “Green Belt” (“GB”) (about 93%), with a minor portion as “Government Institution or Community” (“G/IC”) (about 6%) and a very small area as “Road” (about 1%) on the Approved Tuen Mun Outline Zoning Plan No S/TM/35 (the “Approved OZP”).

4.  By its application lodged with the Board on 1 March 2018 (ie the Application), the applicant applied to rezone the Site to “Residential (Group A) 27”.  It is proposed that the Site would have a domestic plot ratio (“PR”) of 6 or non-domestic PR of 9.5 and a maximum building height (“BH”) of 100mPD.

5.  The proposed rezoning of the Site under the Application and the pursuit of residential development thereunder (the “Proposed Development”) will provide 31 storeys mainly comprising 26 residential floors and 1 storey of sky garden over a podium, with social welfare facility on 1/F, residents’ clubhouse and podium garden on 2/F and carpark on basement and ground floor.

B2.  Government’s policy on land and housing supply

6.  In recent years, it has been the established policy of the Government to increase land supply with a view to addressing the shortage of housing supply in Hong Kong.  The Government’s housing policy emphasises the need to increase land supply for both public and private housing developments, and the intention to utilise (among others) certain areas within “GB” zoning in the New Territories to meet such housing demands.  Such prevailing policy of the Government is exemplified by the Policy Addresses and other relevant documents issued or endorsed by the Government.  In particular, in the reply of the Secretary for Development, Mr Michael Wong, to a LegCo question on 24 January 2018, it is the Government’s measure to rezone “GB” sites to increase land supply.

7.  Specifically, since around 2011, the Government has taken steps to review different “GB” sites that covered the whole territory of Hong Kong for rezoning in two stages (respectively the “Stage 1 Review” and the “Stage 2 Review”):

(1)  The Stage 1 Review covers “GB” sites that are devegetated, deserted or formed, and those that are closer to existing urban areas and new towns.

(2)  The Stage 2 Review covers “GB” zones in the fringe of built-up areas close to existing urban areas and new towns, and those vegetated areas with relatively less buffering effect and lower conversation value.

As a result, from 2013 to 2017, a total of about 318 ha of land zoned “GB” have been rezoned to other uses, 73 ha of which are rezoned for housing development.

B3.  The Site

B3.1  Planning history of the Site

8.  Since at least the 1950s ie before the gazettal date of the first Tuen Mun Outline Zoning Plan No L/TM/2 on 29 July 1983 (now superseded by the Approved OZP), the Site has been used as a housing site.  The Site was held under the New Grant No 418 and GN 364 of 1934 (as amended by GN 50 of 1940) and was designated for building and garden use with a building entitlement of one residential type house.

9.  From around 1999 to around 2009, two applications under section 16 of the Town Planning Ordinance, Cap 131 (the “Ordinance”) and two applications under section 16A of the Ordinance concerning house redevelopment on the Site were made and approved.

10.  At the time of Application, the Site has already undergone an approved site formation for residential development and the entirety of the Site has been formed.  At the said time, the Site was a piece of formed land with man-made slopes and some reinforced concrete foundations, and there were no trees within the construction site boundary of the Site.  Moreover, the Site shares the attributes/criteria of the Stage 1 Review and Stage 2 Review of “GB” sites.

11.  Hence, despite mostly zoned “GB”, the Site has always had building entitlement and a status as an existing housing site, and is not strictly “GB” in nature.

B3.2  Location and surroundings of the Site

12.  The area of the Site was about 2,364m².  The Site is located in Tuen Mun New Town, and is situated within a developed, urban, and predominately residential context of Tuen Mun Town Centre.  Its surrounding area along the eastern side of Castle Peak Road is characterised by approved, planned and/or completed high rise and high-density commercial/residential developments.  The Site is an integral part of Tuen Mun New Town and located at a well-connected and developed location in Tuen Mun Town Centre that is well served by existing infrastructure.

13.  The surrounding areas of the Site is characterised by “Residential (Group A)” zonings and high rise and high-density commercial/residential developments with predominately a maximum BH of about 100mPD and a maximum PR of 5 or above.  In particularly, there are:

(1)  within 400 metres of the Site, a site known as “Century Gateway” zoned “Residential (Group A) 4” with a maximum BH of 156mPD;

(2)  within 750 metres to the south of the Site (shortest distance being 300m), a site known as “Tseng Tau Sheung Tsuen South” zoned “Residential (Group A) 26” with a maximum PR of 6.5 and a maximum BH of 145mPD (“Tseng Tau Sheung Tsuen South Site”) for public housing development (under “Amendment Item A3”); and

(3)  within 750 metres to the south of the Site (shortest distance being 600m), a site known as “former Pui Oi School” (also referred to as the Hin Fat Lane site) zoned “Residential (Group A) 26” with a maximum PR of 6.5 and a maximum BH of 125mPD (“Former Pui Oi School Site”) for public housing development (under “Amendment Item A5”).

14.  To be more precise:

(1)  to the west of the Site across Castle Peak Road - Castle Peak Bay are high-rise commercial/residential developments mostly zoned “Residential (Group A)”.  These include Tuen Mun Town Plaza, the Trend Plaza and Waldorf Garden;

(2)  to the immediate south of the Site are areas zoned “GB” with building entitlements and to the further south is Villa Tiara which is just about 300 metres away from the Site within the “Residential (Group B) 10” zone with a PR of 3.3 and maximum BH of 70mPD, and Tseng Tau Sheung Tsuen South Site and Former Pui Oi School Site for public housing developments; and

(3)  to the immediate north of the Site (ie less than 10 metres away from the Site) is an area zoned “G/IC” which is currently occupied by low rise premises (the “Hoh Fuk Tong Site”).  The said area was previously approved by the Board to be developed into a comprehensive residential development of five 41-storey buildings at a total PR of 5 (Application Nos A/TM/241 and A/TM/256) under section 16 of the Ordinance.  However, after granting of planning permission, a building known as “Morrison Building” within the said area was designated a declared monument, rendering the redevelopment proposal not implementable.

15.  The Site is located in a well-connected location in Tuen Mun Town Centre.  It is well connected to public transportation and main road networks.  In particular, Light Rail Transit (LRT) Pui To Station and West Rail Tuen Mun Station are located about 120 metres and 500 metres to the west of the Site respectively.

16.  In paragraph 21(2) of the Affirmation of Lung Siu Yuk (“Lung Aff”), the Board stresses that to the east of Castle Peak Road - Castle Peak Bay is mostly hill-slope with a few scattered low-rise residential structures, schools and village settlements.  However, the Board omits to mention that the Site is located to the immediate east of Castle Peak Road - Castle Peak Bay.  It is situated within the Tuen Mun New Town and abuts a public highway (as recognised in §20(2) of the Lung Aff).  Its location is different from the land to the further east of the Site.

B3.3  Site formation works and vegetation on the Site

17.  The Site is primarily “formed” and/or “devegetated” (if not also “deserted”), or in the words of the Director of Agriculture, Fisheries and Conservation (the “DAFC”), “primarily disturbed”.  Photo 2.1 and Figure 3 in the Consolidated Supporting Planning Statement show the site photos of the Site (the “Site Photos”). In particular, the applicant highlighted the following:

(1)  The Site had already undergone an approved site formation for residential development, and was a piece of formed land with man-made slopes and some reinforced concrete foundations.  The site formation forms part of an approved general building plan (“GBP”) for a proposed residential redevelopment previously approved by the Board (No A/TM/370 approved on 15 August 2008);

(2)  As shown by the Site Photos and the “Landscape and Tree Preservation Proposal” (Appendix E to the Consolidated Supporting Planning Statement):

(a)   the entirety of the Site was formed and around 80% of the Site was covered by reinforced concrete foundations with piling;

(b)  there are no registered Old & Valuable Tree (“OVT”), and no trees of precious or rare species was recorded within the entire Site (see Landscape and Tree Preservation Proposal §5);

(c)   the 3 existing trees, tree clusters and mature vegetation referred to by the Board were not found within the Site but close to the boundary of the Site, and the proposed felling of these 3 existing trees is fully compensated both in terms of quantity and quality by the planting of 15 new heavy standard trees (see Landscape and Tree Preservation Proposal §7.1);

(d)  the “vegetation” referred to by the Board did not originally exist when the site formation works were undertaken.  Instead, they were mainly small patches of invasive species such as Pueraria lobata (葛) and Bidens Pilosa (鬼針草) found subsequently along the man-made slope on the Site (see Landscape and Tree Preservation Proposal §4).  They invaded the Site simply because it was left unattended for some time.  They are not considered to be “trees” for the purpose of landscape assessment and tree preservation proposal; and

(3)  As stated in §11.9 of the RNTPC Paper No Y/TM/20D (“RNTPC Paper”), “in view that the majority of the Site is primarily disturbed, and the applicant proposes to compensate the felling of 3 nos existing trees with 15 heavy standard trees, DAFC has no major comment on the application from nature conservation perspective.  CTP/UD&L also has no objection from landscape planning point of view considering that the Site has been formed with piling …”.

B3.4  The Site is suitable for Residential Development

18.  In light of the aforesaid, it is beyond dispute that the Site shares the attributes/criteria of the “GB” sites covered in the Stage 1 Review and the Stage 2 Review (save that it is primarily devegetated):

(1)  Stage 1 Review: The Site is a piece of formed land with man-made slopes and some reinforced concrete foundations.  The site formation forms part of an approved GBP for a proposed residential redevelopment previously approved by the Board.  It is also located close to the centre of an existing Tuen Mun New Town, as recognised in §11.4 of the RNTPC Paper.

(2)  Stage 2 Review: The Site is located in the fringe of built-up areas close to existing urban areas and new towns, and is primarily disturbed with low (if not nil) buffering effect and conservation value.

19.  In fact, not only did the concerned Government Departments, but also the Board itself, accepted that the Site could be developed for residential use (in line with the Stage 1 Review and the Stage 2 Review) notwithstanding the present zoning of the Site as a “GB” site:

(1)  As stated in §11.3 of the RNTPC Paper, relevant government departments including the DAFC and the Chief Town Planner/Urban Design and Landscape of the Planning Department (“CTP/UD&L”) have no objection to the Application from nature conservation and landscaping perspectives.  It was considered that “the significance and function of the original “GB” zone serving as landscape buffer has been reduced”.

(2)  In §11.4 of the RNTPC Paper, the Planning Department (“PlanD”) accepted, as part of the planning considerations and assessments, that:

“Although the Site is located at the eastern fringe of Tuen Mun New Town, it is adjacent to Tuen Mun Town Centre, West Rail (Tuen Mun Station) and developments to the west of the Site (ie Century Gateway, Tuen Mun Town Plaza, Waldorf Garden, the Trend Plaza) are mainly high-rise residential developments intermixed with G/IC uses (Plans Z-1, Z-2b and Z-4c). To the south of the Site, 2 sites including Tseng Tau Sheung Tsuen South and former Pui Oi School were rezoned from “GB” and “Residential (Group A) 22” to “Residential (Group A) 26” under Government’s initiation in 2018 for public housing development (Plan Z-1). In terms of land use, the Site is located in the Tuen Mun Town Centre and the rezoning proposal is considered not incompatible with the surroundings.” [Emphasis added]

(3)  As recorded in §14 of the minutes of the Meeting (“Minutes”), the Board accepted that the Site could be developed for residential use:

“Members generally considered that the site could be developed for residential use as the buffer function of the site as “GB” had diminished, the site had building entitlement and had previously been approved for residential development with PR of 0.4, its location was close to Tuen Mun Town Centre, and there was some “GB” sites rezoned for public housing developments with a higher PR and BH to its further south.” [Emphasis added]

B4.  Rezoning of similar “GB” sites

B4.1  Rezoning of similar “GB” sites across the whole territory of Hong Kong

20.  In a wider context, as mentioned in paragraphs 6 and 7 above, since about 2011, the Government has engaged in a series of land use review across the territory of Hong Kong.

21.  Subsequently, 210 potential housing sites across the territory have been identified.  Out of these 210 potential housing sites, 30 (about 14% of the total) of them are located in Tuen Mun.  Among them, 14 out of these 30 sites are either wholly or partly zoned “GB” or “G/IC” in the Approved OZP, and 10 of them have undergone rezoning for housing development at the initiative of the Government.

22.  Indeed, between 2013 and 2017 alone, some 318 ha of land zoned “GB” was rezoned to other uses, including 32 Government sites (of about 73 ha) which were rezoned for residential development at the initiation of the Government (as noted by Chow J (as Chow JA then was) in Royal Billion Investment Limited v Town Planning Board [2021] HKCFI 1093 at §21).  Among the said 32 Government sites, 19 of them were rezoned for private housing.  They are within or near the fringes of new towns or in close proximity to existing settlements; near or accessible to existing roads; either mostly vegetated or partly paved/previously disturbed and partly vegetated.

23.  In contrast, during the same period, there have been a total of 8 applications by private land owners for rezoning of 8 “GB” sites to “residential” use where the Board either rejected or did not agree to the application, or otherwise deferred the same.

24.  As the Vice-Chairman said during the Meeting, “the Board might need to adopt a consistent approach when considering private development proposal of similar nature”.

B4.2  Rezoning of similar “GB” sites within the Approved OZP

25.  Within the Approved OZP, although no application to rezone private land from “GB” to “Residential (Group A)” under section 12A of the Ordinance has ever been made to the Board, there have been increasing high-density and high-rise developments approved, planned and/or completed within the vicinity of the Site, under section 16 of the Ordinance and Government initiated rezoning/OZP amendments, including:

(1)  planning applications for high-rise and high-density residential developments to the immediate north of the Site under section 16 of the Ordinance was made to and approved by the Board, viz the Hoh Fuk Tong Site; and

(2)  amendments initiated by the Government to rezone sites in the close proximity to the Site from “GB” and “G/IC” to “Residential (Group A)” were made to and approved by the Board, for example,the Tseng Tau Sheung Tsuen South Site and the Former Pui Oi School Site.

26.  In respect of the Hoh Fuk Tong Site, it was previously approved by the Board to be developed into a comprehensive residential development of five 41-storey buildings at a total PR of 5 (Application Nos A/TM/241 and A/TM/256) under section 16 of the Ordinance.  Planning permission was granted on 19 November 1999 and extended until 19 May 2004 for a proposed development with a net domestic PR of 5.26 and a domestic GFA of 91,300m² (about 6.6 times that of the Site), with five proposed residential blocks of 41 storeys providing a total of about 1,600 units (about 2.7 times that of the Indicative Scheme of the Application).  However, after granting of planning permission, a building known as “Morrison Building” within the said area was designated a declared monument, rendering the redevelopment proposal not implementable.  Having said that, such previously approved development forms part of the planning context of the Site, and is a precedent of the land use compatibility of high-rise and high density residential development in the area.

27.  In respect of the Tseng Tau Sheung Tsuen South Site, it is within 750 metres to the south of the Site (shortest distance being 300 metres), and was previously approved by the Board to rezone from “GB” and “Residential (Group B) 10” to “Residential (Group A) 26” for public housing development in 2017.

28.  In respect of the Former Pui Oi School Site, it is within 750 metres to the south of the Site (shortest distance being 600 metres), and was previously approved by the Board to rezone from “GB” and “G/IC” to “Residential (Group A) 22” in 2004 and then from “GB”, “G/IC” and “Residential (Group A) 22” to “Residential (Group A) 26” for public housing development in 2017.

29.  Tuen Mun, therefore, is witnessing an intensification of development on sites originally zoned “GB” and “G/IC” to achieve higher PR and GFA, and precedents for high-density and high-rise residential developments are already being set in the same “GB” zone of the Approved OZP at the time of the Application.

30.  In particular, the aforesaid Hoh Fuk Tong Site, Tseng Tau Sheung Tsuen South Site and Former Pui Oi School Site (which are within the vicinity of the Site) share similar locations and contexts, and are comparable, with the Site in that they are (i) all located to the immediate east of Castle Peak Road - Castle Peak Bay, (ii) surrounded by “GB” zones, and (iii) have the ridgeline and country park as the visual backdrop.  In other words, planning approvals for these high-rise and high-density residential developments show that there are already precedents of the land use compatibility of high-rise and high-density residential development in the area alongside Castle Peak Road - Castle Peak Bay at the time of the Application.  Yet, the Board adopted a different approach when considering the Application.

B5.  Technical Assessments

31.  As part of its Application, the applicant submitted various technical assessment reports, including:

(1)  a Traffic Impact Assessment (Appendix C);

(2)  an Environmental Assessment Study (Appendix D);

(3)  a Landscape and Tree Preservation Proposal (Appendix E);

(4)  a Visual Impact Assessment (Appendix F);

(5)  an Air Ventilation Assessment (Appendix G);

(6)  a Geotechnical Planning Review Report (Appendix H); and

(7)  a Sewerage Impact Assessment (Appendix I).

32.  These technical assessment reports were prepared with close liaison with all concerned Government departments.  There were at least 6 rounds of departmental comments and responses thereto by the applicant submitted on diverse dates (viz 20 July 2018; 24 December 2018; 14 March 2019; 23 May 2019; 31 May 2019 and 2 September 2019).  They show that the Proposed Development will not result in adverse technical impacts on the surroundings of the Site.

33.  Significantly, this was an elaborate and interactive process which spanned a period of nearly 2 years from the submission of the Application on 1 March 2018 to the determination of the same on 17 January 2020.  Yet, throughout these multiple rounds of departmental comments and responses, no issue was ever taken or raised as to alleged cumulative impacts in respect of the three adjoining building lots (“Adjoining Building Lots”) (save and except traffic impact, which had been addressed).

34.  Insofar as traffic impact is concerned, at the request of PlanD and out of abundance of caution (but without accepting the need of doing so), the applicant submitted a traffic impact sensitivity test report (the “Traffic Impact Sensitivity Test”).  The Traffic Impact Sensitivity Test concludes, even on the assumption that the Adjoining Building Lots would develop into similar residential use, the Application together with such assumed potential residential development of the Adjoining Building Lots (the “Potential Developments”) would not generate any major negative impact on the surrounding road network based on the assumptions adopted.

B6.  Views of Government Departments

35.  The concerned Government departments had no objection to or no adverse comment on the Application.  Their comment on the Application has been set out in §7 of the Minutes (see also §§9 and 12.1 of the RNTPC Paper).  In particular:

(1)  Concerned Government departments had no objection to or no adverse comment on the Application (§7(c));

(2)  PlanD had no objection to the Application based on the assessments set out in §11 of the RNTPC Paper (§7(e));

(3)  Noting that the Site was “primarily disturbed”, the DAFC had no major comment on the Application (§7(e)).  This connotes an acceptance that the Site was primarily “formed” (if not also “devegetated” or “deserted”), thus falling within the first stage of Stage 1 Review (viz ““GB” areas which were formed, deserted or devegetated, but possessed potential for residential development”);

(4)  Considering that there were already a number of residential developments approved by the Board at and near the Site, the CTP/UD&L had no objection to the Application as the significance and function of the original “GB” zone serving as landscape buffer had been reduced (§7(e));

(5)  Located at the eastern fringe of Tuen Mun New Town and adjacent to Tuen Mun Town Centre, the proposed development was considered not incompatible with the surroundings (§7(e)).  The reference to the Site being located at the eastern fringe of Tuen Mun New Town (coupled with the above reference to the reduced buffer function) also connotes an acceptance that the Site fell within the second stage of “GB” review (viz ““GB” zones in the fringe of built-up areas close to existing urban areas and new towns, and those vegetated areas with relatively less buffering effect and lower conservation value”);

(6)  Compared to the permitted domestic PRs of other “Residential (Group A)” zones on the Approved OZP (which ranged from 5 to 6) and the permitted total maximum PR of 6.5 for “Residential (Group A) 26” zone, the proposed domestic PR of 6 was considered not unacceptable (§7(e));

(7)  The proposed development with a maximum BH of 100mPD was not incompatible with the permitted BH of the “Residential (Group A)” zones along Castle Peak Road - Castle Peak Bay and Castle Peak Road - San Hui, which ranged from 85mPD to 100mPD, including Tuen Mun Town Plaza, Waldorf Garden and Trend Plaza at 100mPD, whereas Century Gateway to the further west of the Site was at 156mPD.  The proposed BH of the two planned public housing sites at Tseng Tau Sheung Tsuen South and former Pui Oi School (also known as the Hin Fat Lane site) were 145mPD and 125mPD respectively (§7(e));

(8)  Various technical assessments had been submitted to demonstrate that the proposed development was technically feasible and relevant departments had no objection to or no adverse comment on the Application (§7(e)); and

(9)  The applicant had assessed the cumulative traffic impacts arising from the development under the proposed rezoning of the Site and the potential development of the Adjoining Building Lots and concluded that the proposed developments would not generate major negative traffic impact on the surrounding road network (§7(e)).

B7.  The Meeting of the Board

36.  A meeting of the Rural and New Town Planning Committee (“RNTPC”) of the Board was held on 17 January 2020 (ie the Meeting) to consider the Application.

37.  In January 2019, PlanD prepared the RNTPC Paper.  The consideration and assessments of PlanD were summarized at §11, and PlanD went on to state at §12.1 that it has no objection to the Application.

38.  During the Meeting, as recorded in §7 of the Minutes, Ms Jessica YC Ho, Senior Town Planner/Tuen Mun & Yuen Long West, presented the Application and emphasized the matters as already set out in paragraph 35(1) to (9) above.

39.  Thereafter, as recorded in §9 of the Minutes, the Chairman and some members of the Board raised the following questions, which are the only questions raised during the Meeting (aside from 2 minor queries recorded in §11):

(1)  the Site context and its spatial relationship with the surrounding areas as well as the proposed public housing sites rezoned in 2017 (§9(a));

(2)  when the Site was rezoned “GB” and its condition at that time (§9(b));

(3)  area of the Site and the Adjoining Building Lots, compared with the total area of “GB” zone on the Approved OZP (§9(c));

(4)  the BH difference and the distance between the Proposed Development and the existing residential tower of Tuen Mun Town Plaza Block 8 (§9(d));

(5)  possibility of setting a precedent for similar rezoning applications if the current application was agreed to (§9(e)); and

(6)  any similar applications to rezone “GB” sites for private residential development involving private lots (§9(f)).

40.  In response, as recorded in §10 of the Minutes, Mr David YM Ng, District Planning Officer/Tuen Mun & Yuen Long West stated, inter alia, that:

(1)  The Site was located adjacent to the Castle Peak Road - Castle Peak Bay and at the eastern fringe of the Tuen Mun New Town (§10(a));

(2)  The Site was currently covered by vegetation with site formation works suspended (§10(a));

(3)  To the west across Castle Peak Road were high-rise commercial/residential developments of Tuen Mun Town Centre which were mostly zoned “Residential (Group A)” with a domestic PR of 5/6 or non-domestic PR of 9.5 (§10(a));

(4)  To the east was a larger area zoned “GB” with a few scattered low-rise residential structures and Maclehose Trail and Tai Lam Country Park to its further east (§10(a));

(5)  To its immediate south was a house lot occupied by an existing single story house and two vacant house lots (§10(a));

(6)  To the further south was the “Residential (Group B)” zone for a residential development named Villa Tiara and two proposed public housing sites (“Residential (Group A) 26”) included in the 2017 rezoning exercise at Tseng Tau Sheung Tsuen South Site and the Former Pui Oi School Site.  Those sites were located to the eastern side of Castle Peak Road - Castle Peak Bay.  Compared with the Application, both public housing sites had slightly higher PR of 6.5 as well as higher BH restriction of 145mPD and 125mPD respectively (§10(a));

(7)  The area of the Site was about 2,364m², and together with the Adjoining Building Lots to the south, the area was about 6,658m².  The total area of “GB” zone on the Approved OZP was about 731 ha (§10(c));

(8)  The BH of the Tuen Mun Town Plaza Block 8 was 104.7mPD while the proposed maximum BH of the Application was 100mPD.  The distance between the said existing buildings and the Proposed Development would be about 50m (§10(d));

(9)  Under the Application, the applicant had submitted various technical assessments to demonstrate that the proposed development was technically feasible and no insurmountable impacts were anticipated (§10(e));

(10)  If the Adjoining Building Lots to the south also sought for rezoning at a later stage, each prospective applicant would need to submit technical assessments to demonstrate the technical feasibility of the proposed development and the Board would consider them based on their own circumstances and individual merits (§10(e)).

41.  Having heard such response, the Board did not raise further questions or follow-up with Mr David YM Ng; nor did the Board request the applicant’s representatives to respond further or supplement.  Rather, the Board had only raised 2 minor queries relating to (i) the flat size and (ii) the implantation programme of the Proposed Development, which the applicant’s representative (Ms Theresa Yeung) duly replied.  Thereafter, there were no further questions from the Board.

B8.  The Deliberation

42.  The Deliberation Session of the Meeting took place in the absence of the applicant’s representatives.

43.  As recorded in §14 of the Minutes, members of the Meeting generally considered that the Site could be developed for residential use:

“Members generally considered that the site could be developed for residential use as the buffer function of the site as “GB” had diminished, the site had building entitlement and had previously been approved for residential development with PR of 0.4, its location was close to Tuen Mun Town Centre, and there was some “GB” sites rezoned for public housing developments with a higher PR and BH to its further south.”

44.  However, as recorded in §19 of the Minutes, there were divergent views amongst members of the Meeting on whether to agree to the Application:

“Since there were divergent views among Members on whether to agree to the proposed rezoning application, a vote was taken. Slightly more Members considered that the approval of the application might set a precedent for the three adjoining building lots to submit similar rezoning applications for high density development which might result in adverse cumulative impacts on the surroundings area. There was a need for adopting a comprehensive planning approach of the site and the three adjoining lots so that a scheme with better design and layout could be formulated for the area. The application should be rejected on that basis.”

B9.  The Decision

45.  During the Deliberation Session of the Meeting, the Board made the Decision not to amend the Approved OZP. The Board rejected the Application for the following reasons (collectively, the “Reasons”):

(1)  “the proposed rezoning of the site may set an undesirable precedent for similar applications within the “Green Belt” zone, particularly the three adjoining building lots to its immediate south.  The cumulative effect of approving such similar applications would result in adverse impacts on the surrounding areas” (the “1^st Reason”); and

(2)  “the rezoning of the site alone for high density development is inappropriate and adopting a comprehensive planning approach for the site and the adjoining lots is required so that a scheme with better design and layout can be formulated to minimize the potential adverse impacts on the surrounding areas” (the “2^nd Reason”).

C.  GROUNDS OF REVIEW

46.  The applicant has advanced a total of 14 grounds of judicial review in the Form 86.  In this regard, the applicant fully acknowledges that in a judicial review against a planning decision, the court is not the primary decision-maker and should guard against excessive legalism infecting the planning system.  Nevertheless, in the present case, the applicant submits the planning merits of the Application over the Site are indeed not in issue - rather the crux of the matter is that the Board rejected the Application on account of something else, viz the Adjoining Building Lots.  Whilst the grounds advanced by the applicant may appear numerous, they all arise out of the Board’s wrongful reliance on the Adjoining Building Lots (under the 1^st and/or the 2^nd Reasons). They are interwoven and target the Board’s errors in the following aspects: (i) alleged cumulative effect (eg Grounds 1-5); (ii) comprehensive planning approach (eg Grounds 6-10); (iii) alleged undesirable precedent (eg Grounds 11-14); (iv) procedural unfairness (eg Grounds 5, 10); and (v) alleged similarity of the Adjoining Building Lots (eg Ground 14).  The unified theme is that the Board need not (and should not) take into account alleged cumulative impacts of the Adjoining Building Lots and insist upon the adoption of a comprehensive planning approach, still less without affording reasonable opportunity for the applicant to respond.

D.  DISCUSSION

47.  A central feature of the Application is that the PlanD and all concerned Government departments had no objection to the Application.  In particular, they were satisfied with the acceptability of the rezoning proposal in terms of (i) land use compatibility and (ii) technical aspects (viz the two criteria laid down in Lung Aff §15): see RNTPC Paper §§11.4-11.5, 11.7-11.11, 12.1; Minutes §§7(c), 7(e), 10(e).

48.  Fundamentally, the Board was also satisfied with (i) land use compatibility and (ii) technical aspects of the proposed rezoning of the Site.  The only reasons why the Board nevertheless rejected the Application relate solely to the Adjoining Building Lots (see: paragraph 45 above).

49.  On the 1^st Reason, the use of the word “would” means that the Board positively concluded that the cumulative effect of approving the Application and rezoning applications of the Adjoining Building Lots would result in adverse impacts (even though there was no such evidence).

50.  I agree with the applicant’s following submissions that the 1^st Reason is objectionable:

(1)  On the question of “undesirable precedent”, the Board has confused the 2 criteria of (i) “land use compatibility” and (ii) “technical aspects”.  In respect of “land use compatibility”, the Application relied on precedents, for example, existing high-rise and high-density residential buildings in the vicinity, previously approved applications for high-rise and high-density residential buildings in the surroundings of the Site, etc.  Hence, the approval of the Application itself would not set a new precedent, let alone an undesirable precedent, on land use compatibility (see eg Grounds 11-13).

(2)  Fundamentally, regardless of these precedents, the Board should consider each rezoning application based on its own merits and circumstances.  In particular, (i) it is necessary for the Board to be satisfied with the “technical aspects” of the Application; and (ii) it is equally necessary for the Board to be satisfied with the “technical aspects” of future application(s) (if any) of the Adjoining Building Lots (and indeed any other site in the vicinity).  Hence, it is not open to the applicant to rely on the above precedents per se without submitting technical assessments (for example, on sewerage impact, landscape impact, environmental impact, etc).  Equally, insofar as owners of the Adjoining Building Lots seek to rely on previously approved applications for high-rise and high-density residential buildings (as well as the Application, if approved) on “land use compatibility”, it remains necessary for those owners to submit technical assessments.  Inasmuch as the Board is not bound to approve the Application unless it is satisfied with the technical assessments submitted by the applicant, equally the Board is not bound to approve any alleged similar applications without being satisfied with the technical assessments submitted by prospective applicants in future.

(3)  It is important to bear in mind that planning considerations are evolving and constantly changing.  As remarked by Au-Yeung J in Yau Ka Po v Chief Executive in Council & Anor, HCAL 221/2015 (unrep, 29/01/2016) at §62:

“Town planning is an on-going process, based on prevailing circumstances, balancing competing interests and the overriding public interests. The Government is obliged to review zonings of different sites from time to time to provide land to meet the needs of the society. Land designated for one use has been rezoned to another use. There has to be flexibility in the planning system in response to changing circumstances and the needs of the society.” [Emphasis added]

(4)  At the time of considering the Application, there was no evidence of any submission, plan or even intention for rezoning the Adjoining Building Lots.  The Board should only consider technical assessments of the impacts of rezoning the Site amidst existing and/or planned developments, based on the prevailing circumstances at the time of considering the Application.  If rezoning application(s) of the Adjoining Building Lots (or indeed any other site) are made in future, those application(s) would be assessed by technical assessments of rezoning those land(s) amidst the then existing and/or planned developments, based on the then prevailing circumstances at that future point in time.  Depending on the state of affairs of the existing and/or planned developments, circumstances and needs of society at a particular point in time, the technical aspects and impacts of any proposed development may or may not be acceptable.  The Board need not (and should not) prejudge the matter, which is subject to the scrutiny of the Board as and when the occasion arises.

(5)  Simply put, if the proposed rezoning of the Site has planning merits, it should be approved.  Then, if in future, other sites apply for rezoning, they would still need to demonstrate that such rezoning would not result in unacceptable impacts (taking into account the Site as a planned development).  They can rely on the Site as a precedent to say that high-rise and high-density development is not incompatible with the surroundings, but that alone would not be sufficient, as they would still need to conduct all technical assessments.  So there will be no prejudice to the Board, and in fact the Board will not have its hands tied. This is just like the fact that there are similar sites to the north and to the south of the Site.  Whilst the applicant relied on them as precedents, it only means that the Board should consistently grant approval if they are satisfied with the technical assessments.  Of course if the Board is not satisfied with the technical assessments, then it would not suffice to rely on those sites as precedents.

(6)  In short, the Board’s objection on account of alleged cumulative effect is unnecessary.  Such consideration is irrelevant (and indeed premature) and irrational (see eg Grounds 2-3).

(7)  Further, apart from traffic impact, there is no (or no substantial) evidence before the Board as to the cumulative impacts caused by approving the Application and rezoning applications of the Adjoining Building Lots.  The Board did not take issue on the traffic impact.  As regards other technical aspects, the Board was entitled to proceed on the basis that the cumulative effect of rezoning the Site and the Adjoining Sites and technical assessments thereon were not in issue, and would not result in any insurmountable impact, in the absence of any suggestion or indication to the contrary: see Royal Billion Investment Limited v Town Planning Board [2021] HKCFI 1093 at §69. Moreover, there is no (or no substantial) evidential basis for the Board to positively conclude that the cumulative effect would result in adverse impacts on the surrounding areas, and the Board also failed to give proper reason for the same (see eg Grounds 1, 3-4).

(8)  The Board has never raised with the applicant the alleged cumulative impacts or other technical aspects whether before or during the Meeting.  Even if one assumes that this were raised at the Meeting, the Board plainly did not afford a reasonable opportunity for the applicant to respond.  The Board’s suggestion that the applicant can deal with such matter by way of oral submissions (Lung Aff §60) is plainly unfair and wrong. No doubt time and efforts would be required to prepare further information in response, and such further information would have to be published for public comments unless exempted by the Board (see Lung Aff §12).  The Board’s failure constitutes procedural unfairness (see eg Ground 5).

(9)  There are clearly distinguishable features between the Site and the Adjoining Building Lots anyway (see eg Ground 14).  Given the absence of any detailed analysis on the Site and the Adjoining Building Lots and their individual site characteristics, it is erroneous (and in any case premature) for the Board to conclude that accepting the Application would set an undesirable precedent for alleged similar applications of the Adjoining Building Lots.  When one talks about setting an undesirable precedent, one must compare like with like (Smart Gain Investment Ltd v Town Planning Board & Another, HCAL 12/2006 & 12/2007 (unrep, 6/11/2007) at §§109-111; Jonnex International Ltd v Town Planning Board [2018] 1 HKLRD 577 at §§63-67; Hong Kong Resort Company Limited v Town Planning Board [2020] 4 HKLRD 298 at §83).  Approving the Application would only set a precedent (on land use compatibility) for approving applications involving similar sites with similar characteristics in future.  It would not set a precedent for acceding to rezoning requests regarding sites of different characteristics.  Given the distinguishable characteristics of the Site from the Adjoining Building Lots, the Application would not set any precedent for acceding to a rezoning request in relation to the Adjoining Building Lots (let alone on technical aspects which necessitate the submissions of technical assessments to the Board’s satisfaction).

51.  On the 2^nd Reason, it provides that: “the rezoning of the site alone for high density development is inappropriate” and “adopting a comprehensive planning approach for the site and the adjoining lots is required”.

52.  The 2^nd Reason should be read in conjunction with §16 of the Minutes, where some members considered that “there was a need for comprehensive planning for the subject site and the three adjoining building lots instead of dealing with a series of piecemeal rezoning applications with its individual proposal.  By adopting a comprehensive planning approach, a better design and layout could be formulated which could minimize the potential visual and air ventilation impacts”, but “noted that the adoption of a comprehensive planning approach would be subject to the initiative of individual lot owners”.  The Board opted for such “comprehensive planning approach” in the 2^nd Reason.

53.  It is therefore clear that the Board rejected the Application on the ground that it is inappropriate to rezone the Site alone - hence it is not only a matter of requiring separate technical assessments covering the Adjoining Building Lots, but indeed a requirement that an application for rezoning be made for the amalgamated site (with indicative scheme over the Site and the Adjoining Building Lots), as the Board made it abundantly clear that it would not entertain piecemeal application to rezone the Site alone.  This is reflected both in the 2^nd Reason and §16 of the Minutes, and hence the Board recognised that such comprehensive planning approach would be subject to the initiative of individual lot owners (which could only be a reference to owners of the Site and the Adjoining Building Lots), as it requires a rezoning application for the amalgamated site.

54.  It was against such backdrop that a Member went further to suggest at §17 of the Minutes that the Government may as well take the initiative to rezone those sites to “Comprehensive Development Area” (“CDA”).  For present purposes, it suffices to note that, even without rezoning the Site and the Adjoining Building Lots to CDA, the comprehensive planning approach of not entertaining rezoning of the Site alone would necessitate a rezoning application of the amalgamated site which, to the Board’s express recognition, would be subject to the initiative of individual lot owners.

55.  Such reading of the 2^nd Reason is further reinforced by §18 of the Minutes where another member opined that it would be unnecessary to wait for the owners of the adjoining three sites to develop together as it would slow down the development process, but such view was rejected by the Board in favour of the comprehensive planning approach.

56.  In a nutshell, I agree with the applicant’s submission that the 2^nd Reason is objectionable:

(1)  There was no plan or intention of the Government for including the Site in a comprehensive planning project or a CDA zoning.  On top of that, the Site and the Adjoining Building Lots are under four different private ownerships.  It is impracticable (if not impossible) to adopt a comprehensive planning approach to require a rezoning application and submission of an indicative scheme and technical assessments for an amalgamated site comprising the Site and the Adjoining Building Lots.  Further, the planning justifications of adopting a comprehensive planning approach or a CDA zoning will entail very different considerations which have not been studied or inquired into.

(2)  As pointed out in paragraph 50(3) above, planning considerations are evolving and constantly changing.  There is no good reason to impose a precondition for a landowner to formulate a composite scheme and undertake separate technical assessments for nearby land. As and when there are applications for rezoning nearby land in future, the planning considerations and context may have changed.  This may mean that the same level of impacts will be considered more acceptable (or less acceptable) depending on the then prevailing context and circumstances.  Moreover, at such time in future, the nearby landowners would have to take into account not only the change in circumstances but also the Site as planned development (if approved).  There is simply no practical need or utility to impose the “comprehensive planning approach” as a precondition for rezoning.  Such approach is erroneous, and is contrary to well-established planning principles that each case should be determined on its own merits, based on prevailing circumstances which constantly change over time.

(3)  The above is compounded by the separate land ownership of the Site and the Adjoining Building Lots.  Even if rezoning is applied for (and approved) for the amalgamated site, the other owners of the land may or may not pursue redevelopment on the Adjoining Building Lots (whether individually or in conjunction with the Site).  It could result in “piecemeal” redevelopment on the Site (or indeed any part of the amalgamated site) anyway.  Moreover, the indicative scheme on the amalgamated site is not binding, particularly if at the end of the day redevelopment is to take place on the Site first.  There is thus no practical need or utility to adopt a comprehensive planning approach.

(4)  The Site, or indeed the amalgamated site comprising the Site and the Adjoining Building Lots, would, on the Board’s logic, be similar to nearby sites along the eastern side of Castle Peak Road - Castle Peak Bay, for example, the Hoh Fuk Tong site to the north; Villa Tiara, the Tseng Tau Sheung Tsuen South site, and the Former Pui Oi School Site to the south; or indeed any other site along the strip of land on the eastern side of Castle Peak Road - Castle Peak Bay.  Yet: (i) there is no suggestion or evidence that, during the previous planning approvals or amendments in respect of the Hoh Fuk Tong site, the Tseng Tau Sheung Tsuen South site and the Former Pui Oi School Site, the Board ever inquired into and took account of cumulative impact of approving similar developments on the Site and the Adjoining Building Lots (or indeed other sites along the aforesaid strip of land); and (ii) moreover, if the Board were right, the applicant would have to undertake technical assessments covering not only the Adjoining Building Lots but also all nearby sites along the aforesaid strip of land, because the rezoning of the Site (or the amalgamated site) would act as precedents for those sites (which would impose endless burdens, and simply cannot be right).  The above illustrates the fallacy of the Board’s stance.  The correct position is that the Board need not (and should not) go into such speculative exercise, as the matter would be subject to the scrutiny of the Board in any future application(s).

(5)  In effect, the applicant is wrongfully deprived of the opportunity to redevelop the Site alone and could only seek rezoning in conjunction with the Adjoining Building Lots.  It is a planning blight because it means that, even though the Site has planning merits and rezoning should be approved, the Board would not entertain it unless the applicant applies for rezoning of the amalgamated site.  Further, the applicant cannot succeed unless it can demonstrate acceptability of a scheme on the amalgamated site by separate technical assessments.  Such approach disproportionately restricts the applicant’s property rights.

(6)  Further, on the Board’s case, the applicant will need to formulate both (i) indicative scheme on the Site alone and (ii) indicative scheme on the amalgamated site comprising the Site and the Adjoining Building Lots, and then undertake impact assessments on visual, landscape, air ventilation, sewerage, etc under both schemes.  This would also result in duplicated rounds of technical assessments and responses to departmental comments, and subject the applicant to an excessive hardship.

(7)  As such, the adoption of such comprehensive planning approach is an irrelevant consideration; it is irrational; it constitutes a fettering of the Board’s discretion (to adopt a comprehensive planning approach only); and it will, in effect, lead to a planning blight of the Site caused by the withholding of piecemeal individual development of the Site and the Adjoining Building Lots and constitute a disproportionate restriction of the applicant’s property rights (see eg Grounds 6-9).

(8)  The Board did not make any inquiry with or give any adequate opportunity to the applicant to respond to the Board’s stance of not entertaining the rezoning of the Site alone and adoption of a requirement of the comprehensive planning approach for the Site and the Adjoining Building Lots.  In the circumstances, it is patently unfair for the Board to rule against the applicant without making inquiry nor affording the applicant a reasonable opportunity to respond.  Even if one assumes that the matter were raised, it is plainly unrealistic and unfair to expect the applicant to respond by oral submissions; and insofar as the matter has to be addressed by further information, such further information needs to be published unless exempted.  Hence, sufficient notice and time must be given (which the Board did not give) (see eg Ground 10).

57.  To conclude, the fundamental point is that the Board should not confuse planning precedents with adverse impacts on technical aspects.  The existing and/or planned high-rise and high-density developments serve as precedents to demonstrate that the proposed rezoning of the Site is consistent with the planning context, not incompatible with the surroundings, etc (ie land use compatibility).  In contrast, if the locality is a village setting and one proposes rezoning for high-rise and high-density residential developments in the absence of any precedents, the Board may reject rezoning on the ground of land use compatibility alone without even venturing into technical aspects.  On the other hand, in the present case, the precedents in the Tuen Mun New Town area mean that the proposed rezoning of the Site is compatible with existing planning context and surroundings (see eg RNTPC Paper §§2(d), 11.4), but that would not do away with the need of undertaking technical assessments to demonstrate that there would not be unacceptable adverse technical impacts. The latter is a separate planning justification.  Regardless of reliance on precedents, this is a hurdle which must be overcome.

58.  The same will apply to prospective rezoning (if any) of the Adjoining Building Lots.  Their landowners may rely on the Site (if approved) and other similar sites to the north and the south on “land use compatibility”, but that cannot do away with the need to undertake technical assessments on environment, landscape, visual, air ventilation, sewerage etc.  For instance, they could not say simply because the Site is rezoned, the Adjoining Building Lots must also be rezoned even if they cannot demonstrate that there would not be unacceptable adverse technical impacts.  This would be so even if all circumstances are to remain static but of course, in reality, the planned/existing developments, the prevailing circumstances and the needs of society keep on changing.  Therefore, there is no point to impose a precondition on the applicant to pursue rezoning of an amalgamated site (instead of the Site alone) and put the applicant to the additional time and expenses of devising an indicative scheme and undertaking technical assessments over an amalgamated site (or indeed all other nearby lots).  This is something to be undertaken, if any, in future as and when such application(s) ever arise, to be assessed based on the then existing and/or planned developments and prevailing circumstances and needs.  It is not a proper reason or hurdle for the Board to invoke to reject and sidestep the Application which is otherwise acceptable in terms of (i) land use compatibility and (ii) technical aspects.

E.  CONCLUSION AND DISPOSITION

59.  For all the reasons set out above, the applicant’s application for judicial review should be allowed.

60.  Accordingly, I order as follows:

(1)  An order of certiorari to bring up and quash the Decision, being the decision of the respondent dated 17 January 2020 not to agree to Application No Y/TM/20;

(2)  The matter be remitted to the respondent for reconsideration in the light of the Judgment in these proceedings;

(3)  The costs of these proceedings be paid by the respondent to the applicant, such costs are to be taxed if not agreed (with a Certificate for 2 Counsel for the applicant).

61.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

62.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.