HOSTFORD DECELOPMENT LTD AND OTHERS v. TOWN PLANNING BOARD

HCAL 2260/2023

[2024] HKCFI 2219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2260 OF 2023

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J U D G M E N T

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A.  Introduction

1.  If a person considers that a point made to her is irrelevant to the decision to be made, the question which may arise is whether (1) she has taken that point into consideration but has given no weight to it because she thinks it is irrelevant, or (2) she has excluded that point from her consideration because she thinks it is irrelevant.

2.  This judicial review application concerns a site at 31-36 Sau Wa Fong and 8-12 St Francis Street (“Site”) located to the south of Queen’s Road East and bounded by St Francis Street to its west and Sau Wa Fong to its east. The Site is currently zoned in 3 different zonings under the Approved Wan Chai Outline Zoning Plan Number S/H5/31, namely: Residential (Group A) (“R(A)”) – 29.1%; Residential (Group C) (“R(C)”) – 44.9%; and the remaining ‘Road’ area (“Road”) – 26%.

3.  The Interested Parties are the owners of the Site. On 17 November 2022, they made an application (“Section 12A Application”) to the Town Planning Board (“TPB”) under section 12A of the pre-amended Town Planning Ordinance Cap 133 (“Pre-amended TPO”) (see details below) to rezone the Site from R(A), R(C) and Road to Residential (Group A) 9 (“R(A)9”).

4.  The 1^st Applicant (“Hostford”) is the owner of the residential development at 3, 5, 7 St Francis Street and 61 Queen’s Road East (“Hostford Site”), and made three rounds of public comments in December 2022, March 2023 and July 2023 in opposition to the Section 12A Application.

5.  The 2^nd Applicant (“DIDF”) is a charitable organisation established with objects including promotion, support and enhancement of advancement of education for correct understanding and acceptance of the visually impaired in Hong Kong, and raising public awareness and tolerance of the visually impaired or people with other disabilities in Hong Kong, and submitted one round of public comments in May 2023 in opposition to the Section 12A Application.

6.  The 3^rd Applicant (“Ivan Wong”) was the then Chairman of the Wan Chai District Council and member of the District Works and Facilities Management Committee, the Development, Planning and Transport Committee, Community Building and Housing Affairs Committee and Working Group on Community Safety in Wan Chai District. He provided three rounds of public comments on 12 December 2022, 10 March 2023 and 19 July 2023 in opposition to the Section 12A Application.

7.  The Metro Planning Committee (“MPC”) of the TPB – which was set up under section 2(3) of the Pre-amended TPO and is delegated with some of the powers and functions of the TPB pursuant to section 2(5)(a) of the same ordinance – considered and heard the Section 12A Application at the 727^th MPC Meeting held on 22 September 2023 (“MPC Meeting”). The MPC decided to “partially agree” to the Section 12A Application (“Decision”), as recorded at §34 of the Minutes (“MPC Minutes”) of the MPC Meeting.

8.  By Form 86 dated 15 December 2023, the Applicants sought leave to apply for judicial review of the Decision. I granted leave on the papers on 19 December 2023.

9.  At the substantive hearing, the Applicants were represented by Mr Jenkin Suen SC leading Mr Justin Lam, and the TPB was represented by Mr Anthony Chan SC leading Ms Bonnie YK Cheng. The Interested Parties were represented by Mr Anthony Ismail.

10.  At the end of the hearing, I reserved my decision.

11.  This is my Judgment.

B.  Background

12.  To consider the grounds of review in proper context, it is necessary to set out the background relevant to this application, which is itself not controversial, and which has been helpfully summarised by the parties in their skeleton submissions broadly as follows.

B.1  The Site

13.  The Site is accessible from St Francis Street, which is a one-way southbound local road ascending in a steep 1:6 gradient from Queen’s Road East to Star Street, with vehicular traffic going uphill. The Site is a sloping site with its western portion abutting St Francis Street at a level of about 12 metres above Principal Datum (“mPD”) and its eastern portion on building platform at 19.5mPD in a terraced area, namely Sau Wa Fong.

14.  The eastern side of St Francis Street has no pedestrian pavement towards the foot of the slope. Further upwards, the pedestrian pavement comprises alternating steep stairs and flat surfaces. As it has been described in this application, St Francis Street is not a disability friendly slope, and there is no formal road-crossing facility along it. The Hostford Site is opposite to the Site along St Francis Street, and also abuts Queen’s Road East.

B.2  Section 12A Application

15.  The amendment to the TPO was made in 2023 and the current version of the TPO came into force from 1 September 2023. Pursuant to section 29(15) of the TPO, section 12A of the Pre-amended TPO applies to applications made under section 12A before 1 September 2023. The provisions in section 12A of the Pre-amended TPO continue to apply in the present case.

16.  Upon submission of a section 12A application, the procedure for public inspection, public comment and decision made by the TPB applies: sections 12A(6), 12A(9), 12A(14), 12A(16), 12A(22), 12A(23) and 12A(24) of the Pre-amended TPO.

17.  For each section 12A application, a paper, which summarises the relevant background, the comments from relevant government departments and the public comments and sets out the planning assessment and views of the Planning Department (“PlanD”) on the application, would be prepared by PlanD, as the executive arm of the TPB, for the latter’s consideration. The TPB members would attend a meeting to consider the application. Discussion including the deliberation of the members would be recorded in the minutes of the meeting.

18.  In this case, the Interested Parties submitted the Section 12A Application to the TPB for rezoning the Site to R(A)9 with a building height restriction (“BHR”) of 110mPD, to facilitate a residential development with arts facilities (“Indicative Scheme”), a setback from St Francis Street and a public passage from St Francis Street to Sau Wa Fong.

19.  The Section 12A Application is predicated on the amalgamation of several different lots of land, and riding on the opportunity arising from site amalgamation such that the Site would abut St Francis Street with direct vehicular and pedestrian access from that street.

20.  Under the Section 12A Application, the Interested Parties proposed to specify in the Notes and Explanatory Statement (“ES”) of the Wan Chai Outline Zoning Plan (“OZP”) covering the Site, the provision of a 24-hour barrier-free passage with a width of not less than 4.5m and, and in the ES of the Wan Chai OZP the provision of arts facilities for the zone.

21.  The Indicative Scheme and various technical assessments were submitted by the Interested Parties to support the Section 12A Application. In particular, the Indicative Scheme stated that:

(1)  The Site would be developed into one 28-storey block (with 216 residential units on the upper 24 floors, and other facilities on the lower 4 floors);

(2)  The main entrance would be at ground floor of St Francis Street. A turntable, which would be included in the proposed transport area (“PTA”) for pick-up / drop-off and loading / unloading activities, was proposed in the Interested Parties’ 3^rd set of further information (“FI”) dated 27 June 2023 to replace the initial proposal of a public layby in order to address the pedestrian road safety concerns raised by the Transport Department (“TD”) and the public.

(3)  There would be a setback from St Francis Street which is approximately 10m wide at the maximum. Within the setback area, there would be no building structure except a lift and stairs along the northern boundary to form a barrier-free public passage, which would not be less than 4.5m wide and was proposed to be open to the public on a 24-hour basis, linking St Francis Street (at 12mPD) and Sau Wa Fong (at 19.5mPD) for the benefit of visitors and surrounding residents, including persons with disability or those who are physically challenged.

(4)  But it can be noted that though the Indicative Scheme proposes an elevator and walkway connecting St Francis Street and Sau Wa Fong, there is no proposed levelled walkway to Queen’s Road East, and still approximately 29m from that point to Queen’s Road East.

22.  One of the subjects covered by the technical assessments included a traffic impact assessment (“TIA”) to demonstrate that the proposed amendments would not have adverse traffic impact on the surrounding areas.

B.3.  Consultation and Opposing Public Comments

23.  In accordance with sections 12A(6)-(9) of the Pre-amended TPO, the TPB published the Section 12A Application for public inspection and comment, and sought comments from government departments. A total of five FIs were submitted by the Interested Parties on the Section 12A Application.

24.  The public comments included topics like traffic impact, road safety impact and Hostford’s proposal to extend the Interested Parties’ barrier-free public access to Queen’s Road East by a connecting footbridge over St Francis Street to Hostford’s development under construction (i.e. Hostford Site) (“Alternative Proposal”) and zoned under the Wan Chai OZP. With the further proposed benefit also of a Queen’s Museum and Extension, Hostford’s Alternative Proposal is said to cater for the “missing link” for pedestrian traffic to go from Queen’s Road East to connect to the lift in the Indicative Scheme connecting to Sau Wa Fong. Hence, the Alternative Proposal seeks to take advantage of the opportunity to create a comprehensive barrier-free and extensive pedestrian network, where the construction, operational and maintenance cost of the proposed footbridge would be paid for by Hostford.

25.  I accept that Hostford has put forward the Alternative Proposal not merely in pursuing its own commercial interests, but with the genuine good faith intention of linking proposed projects for wider public benefit, including through promotion of cultural heritage and the arts, as well as barrier-free access to a greater extent than might perhaps otherwise occur.

26.  The main concern of the Applicants is pedestrian safety arising from the increase in residents arising from the proposed redevelopment of the Site, who will use St Francis Street as the means of access and egress. The Applicants also point to the Government’s commitment and policy to make the city accessible for all, with reference to the Convention on the Rights of Persons with Disability, and under the Disability Discrimination Ordinance. Hence, the Alternative Proposal is to put forward an accessible footbridge permitting ready access from Queen’s Road East to Sau Wa Fong.

27.  As mentioned above, Hostford submitted 3 rounds of objection in December 2022 (including inter alia the Alternative Proposal), March 2023 and July 2023 respectively. It can usefully be noted here that the second objection recorded that the Interested Parties had not engaged in discussions relating to the footbridge proposed by the Alternative Proposal (and the invited inference was that no such future engagement might eventuate).

28.  DIDF submitted its public comments in about May 2023 from the perspective of disability inclusion and accessibility.

29.  From December 2022 to July 2023, Ivan Wong submitted 3 rounds of objection.

30.  Concerns on pedestrian safety along St Francis Street were also received from other members of the public between December 2022 and July 2023. All these comments will be referred to as the “Relevant Objecting Comments”. Public comments in support of the Alternative Proposal (and also the proposed art corridor) came from, for example, Jao Tsung-I Petite Ecole, The University of Hong Kong, Lam Kin Chung Morning Charity Fund and DunHuang Academy.

31.  Government departments’ comments included those of the TD, i.e. (1) raising questions; (2) providing input on the traffic aspect covering the assumptions and calculations of the TIA, adequacy of parking spaces in the vicinity, details on and additional traffic analysis and measures to support the proposal; and (3) requiring the Interested Parties to respond to specific public comments including the Alternative Proposal.

B.4  MPC Paper and the Decision

32.  Based on the Section 12A Application, FIs and consultation, PlanD prepared the MPC Paper No. Y/H5/7 dated September 2023 (“MPC Paper”) for the MPC’s consideration on 22 September 2023.

33.  The Section 12A Application was considered by the MPC at the MPC Meeting, with the benefit of (1) the MPC Paper, (2) PlanD’s presentation on the background to the Section 12A Application, the Interested Parties’ proposal, comments from government departments, public comments and PlanD’s views, assessment and recommendations; and (3) attendance of the Interested Parties to make oral submissions and respond to questions.

34.  The TPB made the following Decision of partial agreement to the Section 12A Application, as recorded at §34 of the MPC Minutes (emphasis in original):

After deliberation, the Committee [i.e. MPC] decided to partially agree to the application. The proposed amendments to the Wan Chai OZP, together with the revised Notes and ES, would be submitted to the Committee for consideration prior to gazetting under the Town Planning Ordinance.

C.  The Intended Grounds of Review

35.  As set out in the Form 86 and Mr Suen’s Skeleton Submissions dated 12 August 2024, the Applicant’s proposed Grounds are as follows:

(1)  In failing to even specify which part of the application it was agreeing to, the TPB acted ultra vires, made an uncertain decision and/or failed to give any adequate reasons for coming to such decision (“Ground 1”).

(2)  Alternatively, if the TPB intended to leave it to PlanD to formulate the proposed amendments, the TPB unlawfully delegated to PlanD its own statutory power to decide which part of the Section 12A Application to accept (“Ground 2”).

(3)  In respect of the Objecting Relevant Comments submitted by the Applicants and other members of the public concerning the safety to pedestrians and the Alternative Proposal to resolve this issue, (i) the TPB failed to take them into account in breach of its express statutory obligation under section 12A(22) of the Pre-amended TPO, (ii) the MPC Paper submitted to the TPB failed fairly to present such objecting comments to the TPB and/or the TPB failed to give or any adequate reasons for rejecting these comments (“Ground 3”).

36.  In his Skeleton Submissions, Mr Suen puts forward his argument for Grounds 1 and 2 together and separately sets out his contention for Ground 3.

37.  I will also address Grounds 1 and 2 first, and then Ground 3.

D.  Grounds 1 and 2 – Undefined Partial Agreement and Unlawful Delegation

38.  In his combined analysis of Grounds 1 and 2, as regards the complaint about lack of particulars in or uncertainty of the Decision, Mr Suen contends that:

(1)  For the TPB to accept only part of an application under Section 12A(23) of the Pre-amended TPO, the TPB has a fundamental duty to at least specify which part of the Section 12A Application it is accepting or what specific requirements/conditions it is imposing.

(2)  As shown in §34 of the MPC Minutes, prima facie, the TPB completely failed to define the scope of its partial agreement to the Section 12A Application or additional requirement(s) it sought to impose, which is particularly problematic where the Section 12A Application is complex.

(3)  Examples of other TPB decisions to partially agree to rezoning applications do specify the additional requirements it sought to impose.

(4)  A failure to specify the additional requirement(s) that the TPB sought to impose could lead to abuse because:

(a)  members of the MPC were not specifically called upon or asked to apply their mind and deliberate on the additional requirement(s) they would impose, let alone express any consensus;

(b)  undesirable consequences would result from such defect, including (i) uncertainty and unnecessary speculation as to the additional requirement(s) and the parameters imposed or sought to be imposed, (ii) potentially different interpretations and the possibility of abuse by PlanD to substitute its view for that of the MPC, and (iii) leaving room for modification, tailor-making or adaptation by PlanD and/or TPB on their views and decisions subsequently or on an ex post facto basis;

(c)  the integrity of further steps and consultation process in the plan-making process of the TPB, including further consultation and public comments, would be prejudiced by the uncertainty and lack of particulars in the Decision.

(5)  By the affirmation dated 15 March 2024 (“Yip’s Affirmation”) made by Mr Yip Chi Kwai, who wears two hats, namely PlanD’s Deputy Director and the Secretary to the TPB, the TPB’s case is advanced on an ex post facto basis. There is a real risk that Mr Yip is advancing and substituting PlanD’s views as that of the TPB.

39.  Mr Suen further submits that:

(1)  The TPB claims (in Yip’s Affirmation at §47) that the MPC actually decided to include:

(a)  two planning controls recommended by PlanD (as summarised in Yip’s Affirmation at §45) for the reasons set out by PlanD in the MPC Paper, i.e. (i) “provision of direct vehicular access and internal transport facilities, e.g. a PTA with a turntable as included in the indicative development scheme” (“PlanD’s 1^st Control”) and (ii) “provision of NBA [i.e. Non-building Area] at Sau Wa Fong, i.e. the area within the Site shown as ‘Road’ on the approved OZP” (“PlanD’s 2^nd Control”).

(b)  the requirement of a 10m setback from St Francis Street (as mentioned in Yip’s Affirmation at §46) (“Setback Requirement”).

(2)  The inclusion of the PlanD Controls and Setback Requirement as part of the Decision is purportedly based upon:

(a)  PlanD’s recommendation in the MPC Paper that the MPC should partially agree to the Section 12A Application subject to PlanD’s Controls (see Yip’s Affirmation at §§45-46 and 49); and

(b)  discussion of the MPC on the need to implement the Setback Requirement as recorded in §§31-32 of the MPC Minutes (see Yip’s Affirmation at §§46 and 49).

(3)  In respect of the Setback Requirement:

(a)  It is “astonishing” (Mr Suen’s word) that the TPB could even consider the Setback Requirement to have formed part of the Decision. §§31-32 of the MPC Minutes relied upon by the TPB merely recorded the Secretary mentioned the Setback Requirement as something which “could be explored” and the Chairman briefly commented on it, and there was nothing more. In particular, §31 of the MPC Minutes merely recorded the view of the Secretary that (i) a setback requirement and (ii) provision of 24-hour public passageway could be “explored” at the stage of proposed OZP amendment, and alternatively, if these matters were to be included as part of the partial agreement, it is instructive to note that the Secretary referred not only to the Setback Requirement but also the provision of a 24-hour passageway – hence it is wrong and inconsistent for the TPB to include the Setback Requirement but not the latter canvassed by the partial agreement.

(b)  Not much weight ought to be given to the summary of the discussions of the members, let alone the views expressed by one member only: Hysan Development Co Ltd v Town Planning Board (unreported, CACV 232 and 233/2012, 13 November 2024) at §§191-192, and it is important to examine how the reasons for the Decision were articulated by the TPB.

(c)  It is clear on any fair reading of the MPC Minutes that the Setback Requirement was not decided in the MPC Meeting involving 13 members and cannot form part of the Decision. It is fundamentally wrong for the TPB to argue that the Setback Requirement was agreed by all of the MPC members simply because there was no objection raised by the Chairman and the Secretary.

(4)  Regarding PlanD Controls:

(a)  It is “astonishing” that PlanD’s 1^st Control as mentioned in Yip’s Affirmation is different from the original formulation in the MPC Paper: see §§12.1 and 11.3 of the MPC Paper and Yip’s Affirmation at §45(1), i.e. the reference to “internal transport facilities” never featured as part of the recommendation for partial agreement in the MPC Paper. It appears that an additional requirement of “internal transport facilities” was included, through the evidence of the TPB, as part of the scope of the Decision.

(b)  Even taking the PlanD Controls as originally formulated in the MPC Paper, the MPC Minutes fail to demonstrate that the MPC members deliberated upon and decided to impose the PlanD Controls as part of the Decision.

(c)  PlanD’s recommendation that the TPB should partially agree to the Section 12A Application by stipulating appropriate control to ensure provision of direct vehicular access for future development and designate non-building area at Sau Wa Fong was recorded at §6 of the MPC Minutes, but this was only in the presentation session. There is no reference to these matters in the TPB’s deliberation session. No particulars are provided as to what would be the “appropriate control”.

(d)  The assumption that when the committee has followed the officer’s recommendation they have adopted the reasoning on which that recommendation was based only applies when there is no evidence to the contrary: R (Whitley Parish Council) v North Yorkshire CC [2023] EWCA Civ 92 at §36. The MPC Minutes, as available in the present case specifically identify the deliberation process of the members of the TPB, and clearly demonstrate that no specific consideration was given as to the scope of the partial agreement to the Section 12A Application, let alone any decision to adopt the PlanD Controls as recommended in the MPC Paper.

40.  With respect, I am not persuaded by Mr Suen’s submissions above, which seem to adopt a decontextualized approach to interpretation of the Decision.

41.  To understand the factors, issues, comments from the public and government departments, and planning considerations and assessments considered in the decision-making process in proper context, it is convenient to set out the relevant paragraphs of the MPC Paper and MPC Minutes as follows.

42.  The MPC Paper included the following (underlining in original, bold emphasis added):

2. Justifications from the Applicants

The justifications put forward forth by the applicants in support of the application are detailed in Section 6 of the consolidated supporting statement at Appendix Ia. They are summarised as follows:

…

Provide a Public Passage and Transport Facilities and Maintain the Character of Sau Wa Fong

2.2 Sau Wa Fong is a terraced area accessible by steps/ramp only. To enhance the connectivity and accessibility between St. Francis Street and Sau Wa Fong for the public and in the event of an emergency, the proposed “R(A)9” requires the provision of a 24-hour public passage of not less than 4.5m wide with barrier-free facilities connecting St. Francis Street and Sau Wa Fong. Such requirement would also maintain the local character and terraced streetscape of Sau Wa Fong which is in line with recommendation of the ‘Review of Stepped Street Sites’, as well as respecting the original planning intention of the area shown as ‘Road’ on the OZP.

2.3 The proposed development amalgamates seven private lots and makes the provision of pick-up/drop-off and L/UL facilities within the Site possible. Visitors and residents could make use of the proposed Transport Area at the north-western portion of the Site and barrier-free facility to access Sau Wa Fong which would enhance the public convenience significantly.

Improve Pedestrian Wind Environment and Visual Permeability

2.4 Taking into consideration St. Francis Street is a narrow one-way single lane access road, the proposed setback area would help to promote desirable passage of air, daylight and to provide visual relief, as well as to fulfil the requirement under Practice Note for Authorised Persons, Registered Structural Engineers and Registered Geotechnical Engineers (PNAP) APP-152 Sustainable Building Design Guidelines (SBDG).

…

Technically Feasible

2.8 The findings of Traffic Impact Assessment (TIA), Sewage Impact Assessment (SIA), Environmental Assessment (EA), Air Ventilation Assessment – Expert Evaluation (AVA-EE) and Geotechnical Planning Review Report (GPRR) (Appendices 5 to 9 of Appendix Ia) demonstrate that the proposed development would be technically feasible in terms of traffic, sewage, environmental, air ventilation and geotechnical.

…

9. Comments from Relevant Government Departments

9.1 The following government bureaux/departments have been consulted, their views on the application/public comments received are summarised as follows:

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Traffic

9.1.2 Comments of the Commissioner for Transport (C for T):

(a) no objection to the application subject to the following comments:

(i) it is noted that a proposed Transport Area comprising a turntable is proposed within the Site for passenger pick-up/drop-off and goods deliveries. The proposed off-street L/UL arrangement is supported from traffic engineering point of view;

(ii) the applicants should propose and implement appropriate traffic management measures to manage the use of the turntable and ensure road safety at the run-in/out of the proposed Transport Area;

(iii) proper ingress/egress should be provided, and the turntable within the proposed Transport Area should be properly maintained and utilised;

(iv) the proposed 24-hour decided public passage with provision of a lift for barrier-free access connecting St. Francis Street with Sau Wa Fong is supported from traffic engineering point of view. It is also noted that the applicants will be responsible for the implementation at their own cost;

(v) appropriate planning tool to scrutinise the implementation of the traffic improvement proposal should be established/adopted; and

(vi) in view of the severe site constraints with only one frontage at St. Francis Street, the applicants should submit the proposed access arrangement for construction vehicles and construction traffic impact assessment at the detailed design stage with the consideration of other known projects in the vicinity during demolition and construction stages. Construction traffic generated should preferably be limited to non-peak hours to minimise the adverse traffic impact, including the impact to pedestrians on St. Francis Street.

…

11. Planning Considerations and Assessments

11.1 The application is to rezone the Site from “R(A)” (subject to BHR of 110mPD), “R(c)” (subject to PR of 5 and BHR of 12 storeys) and area shown as ‘Road’ to a new “R(A)” subzone (i.e. the proposed “R(A)9”) to facilitate the proposed residential development with commercial uses (including arts facilities). The proposal involves provision of arts facilities (proposed to be specified in the ES) and a 24-hour public passage of not less than 4.5m wide with barrier-free facilities (i.e. a lift) connecting St. Francis Street and Sau Wa Fong (proposed to be specified in the Notes and ES of the “R(A)9” zone). BHR of 110Mpd for “R(A)9” zone is also proposed to be stipulated on the OZP. According to the applicants’ indicative scheme (Drawings Z-1 to Z-7), the proposed development comprises a residential building of 28-storey (including a 3-storey non-domestic portion and a 1-storey refuge floor com podium garden). Arts facilities are proposed on 1/F and 2/F.

Land Use and Development Intensity

11.2 It is noted that the proposed rezoning shows some non-domestic uses, such as shop and devices, eating place, on the lowest three floors of a building. As the Site is mainly surrounded by “R(A)” zone with some commercial uses on the lower floors (Plan Z-2), it is considered that the land use of the proposed rezoning is not incompatible with the surrounding land uses. The planning intention for residential development on the “R(A)” and “R(C)” portions of the Site is not affected by the rezoning proposal. The development restrictions of the “R(A)” portion of the Site will also remain unchanged.

11.3 Regarding the proposal to rezone part of the Sau Wa Fong (the “R(C)” portion) to “R(A)9”, it is noted that there are significant level differences between the Sau Wa Fong area (+19.5mPD) and the nearby access roads (St. Francis Street (+12mPD) and Queen’s Road East (+5.4mPD), and that “R(C)” portion is inaccessible by vehicular traffic. It was the recommendation of the ‘Study on Redevelopment along Stepped Streets’ (1991) to rezone the concerned area from “R(A)” to “R(C)” mainly due to the lack of vehicular access. In the current application, the applicants propose to amalgamate the Lots in Sau Wa Fong (i.e. the “R(C)” portion and the area shown as ‘Road’) with the Lots fronting St. Francis Street (i.e. the “R(A)” portion) to form the Site. With direct vehicular access to the Site, the applicants propose to increase the maximum PR of the “R(C)” zone from 5 to the level permitted under B(P)R. The proposed increase in development intensity is considered not incompatible with the surrounding developments, and not unacceptable by relevant government departments provided that there will be a direct vehicular access from St. Francis Street and L/UL facilities within the Site. Noting that the Applicants are not the sole owners of the Site, piecemeal/standalone development at Sau Wa Fong portion cannot be precluded should the Committee agree to the amendments as proposed by the applicants. To avoid having a higher intensity development at Sau Wa Fong portion without any direct vehicular access, it considered necessary to impose appropriate planning control in the Notes.

11.4 Regarding the proposal to rezone the area shown as ‘Road’ to “R(A)9”, as mentioned om paragraph 4.2, part of the Site (i.e. Sau Wa Fong) was rezoned from “R(A)” to area shown as ‘Road’ as per the recommendation of the ‘Review of Stepped Street Site’ (2012) with a view to preventing Sau Wa Fong from being built over upon redevelopment and to preserve the existing character of the area. To respect the unique character of Sau Wa Fong, the applicants propose no building on the area shown as ‘Road’ (which was the same as the approved s.16 application), which will serve as a 24-hour public passage. To ensure the ambience and environment of Sau Wa Fong would be preserved, it is considered necessary to designate the area shown ‘Road’ as non-building area (NBA) to avoid the terrace of Sau Wa Fong from being built over upon redevelopment should the Committee agree to rezone the Site. Details of the proposed amendments to the OZP will be submitted to the Committee for consideration should the Committee agree to rezone the Site.

…

Pedestrian Connectivity and Transport Facilities

11.6 The Site is located between St. Francis Street and Sau Wa Fong, which has a significant level difference from about 12mPD to 19.5mPD. Sau Wa Fong is a terraced area accessible by steps/ramp only. To enhance the pedestrian connectivity and accessibility between St. Francis Street and Sau Wa Fong for the public and in the event of an emergency, the applicants propose to impose the requirement to provide a 24-hour public passage of not less than 4.5m wide with barrier-free facilities connecting St. Francis Street and Sau Wa Fong under the proposed “R(A)9” zone. The 24-hour passage would offer a more direct, convenient and barrier-free route for the public to access Sau Wa Fong. C for T supports the proposed public passage from traffic engineering point.

11.7 According to the indicative scheme, the Site would be served by vehicular access at St. Francis Street. The proposed Transport Area including an open area for passenger pick-up/drop-off and L/UL with a turntable in the indicative scheme (Drawings Z-1 and Z-8) will serve private cars, taxis and LGV. The submitted TIA demonstrated that the proposed development (with the proposed planning parameters under the indicative scheme) would induce no significant traffic impact on the adjacent road and pedestrian networks. C for T supports the proposed off-street L/UL arrangement and has no objection to the application subject to the adoption of appropriate planning tool to scrutinise the implementation of the traffic improvement proposal. As mentioned in paragraph 11.3 above, appropriate planning control is considered necessary to be imposed to ensure a comprehensive development with direct vehicular access and internal transport within the Site, should the Committee agree to rezone the Site.

…

Public Comments

11.9 The supporting public comments are noted. Regarding the opposing public comments and submissions providing views received as mentioned in paragraphs 10.3 to 10.5 above, the planning assessments in paragraphs 11.2 to 11.8 above and departmental comments in paragraph 9 above are relevant.

…

11.11 With regard to the alternative proposals, including footbridge connection to the neighbouring lots and development of a corridor related to arts in Admiralty and Wan Chai, and the lack of details of the proposed arts facilities in the indicative scheme, it should be noted that the main consideration of the rezoning proposal is the proposed zoning, land uses and development intensity, detailed uses of the proposed development would be subjected to the applicants’ decision at the detailed design stage. Regarding the suggestion of public housing at the Site, it should be noted that the Site is a private lot.

12. Planning Department’s Views

12.1 Based on the assessments made in paragraph 11 and having taken into account the public comments in paragraph 10 above, PlanD has no in-principle objection to the proposed rezoning and recommends the Committee to partially agree to the application to rezone the application site to allow the development intensity on par of “Residential (Group A)” with stipulation of appropriate control to ensure provision of direct vehicular access for future development and designation of NBA at Sau Wa Fong.

12.2 Should the Committee decide to agree/partially agree to the application, the proposed amendments to the Wan Chai Outline Zoning Plan, together with the revised Notes and Explanatory Statement, will be submitted to the Committee for consideration prior to gazetting under the Town Planning Ordinance.

12.3 Alternatively, should the Committee decide not to agree to the application, the following reason is suggested for Members’ consideration:

the applicants failed to provide strong justification to demonstrate the proposed rezoning of the Site from “R(A)”, R(C)” and area shown as ‘Road’ to “R(A)9” with increased development intensity is technically feasible and acceptable.

…

43.  Mr Suen refers to §12.3, and submits that it is obviously open to the MPC to consider whether there is strong justification in the absence of the proposed footbridge under the Alternative Proposal, and whilst it is not for the Court to assess that justification, the point is that the MPC erred in failing to consider it. However, §12.3 is not really relevant where the Decision was not made to reject the application, but rather was made partially to agree to it.

44.  The MPC Minutes included the following (underlining in original, bold emphasis added):

6. With the aid of a PowerPoint presentation, Ms Floria Y.T. Tsang, STP/HK, briefed Members on the background of the application, the proposed rezoning to facilitate a private residential development with commercial uses (including art facilities) at the Site, departmental and public comments, and the planning considerations and assessments as detailed in the Paper. PlanD had no in-principle objection to the application and recommend the Committee to partially agree to the application by rezoning the Site to “Residential (Group A)9” (“R(A)9”) to allow the development intensity on a par with “Residential (Group A)” (“R(A)”) zone, stipulate appropriate control to ensure provision of direct vehicular access for future development and designate non-building area at Sau Wa Fong (SWF).

7. The Chairman then invited the applicants’ representatives to elaborate on the application. With the aid of a PowerPoint presentation, Ms Pauline Lam, the applicants’ representative, made the following main points:

(a) lacking vehicular access was the major consideration due to which several sites in SWF area, including part of the Site, were rezoned from “R(A)” to “Residential (Group C)” (“R(C)”) on the draft Wan Chai Outline Zoning Plan (OZP) No. S/H5/8. Under the current proposal, the amalgamation of the seven lots at the Site would enable a single comprehensive development with direct vehicular access from St. Francis Street (SFS). The proposal with appropriate planning and design layout would also improve the visual and air permeability as well as the streetscape in the area;

(b) the current pedestrian access between SWF and Queen’s Road East (QRE) was via staircase/ramps at SFS without any barrier-free access, and part of the pavement was within private lots and partially obstructed. The current proposal would provide a 24-hour barrier-free public passageway with a lift and staircase to enhance the connectivity between SWF, SFS and QRE for the local residents and visitors in the neighbourhood;

(c) comparing with the existing pavement of about 1.9m at SFS and the requirement of 1m setback under the OZP, the proposed setback of 10m from SFS under the current proposal would greatly improve the pedestrian environment as well as the wind and visual permeability of the area;

(d) the existing right of way within the Site at SWF would be re-provided and enhanced with greenery and landscape design;

(e) an open turntable for pick-up/drop-off and loading/unloading activities would be provided at the frontage of SFS for the use future residents and visitors, which would help minimise the interruption to the through traffic on SFS; and

(f) retail shops and/or art facilities would be provided on G/F, 1/F and 2/F of the proposed development with a view to strengthening the local character of SWF.

8. As the presentations of PlanD’s representative and the applicants’ representative were completed, the Chairman invited questions from Members.

…

Proposed Pedestrian Connections

12. Some Members raised the following questions:

(a) whether the proposed public passageway including the lift, staircase and open-air portion (an area currently shown as ‘Road’) would be open to the public on a 24-hour basis, and which party would be responsible for the management and maintenance of the public passageway;

(b) the design of the proposed 24-hour public passageway noting that it might offer an opportunity for beautification with outdoor art installations; and

(c) how to ensure that the proposed 24-hour public passageway could be duly implemented.

13. In response, Mr Kenneth To, the applicants’ representative, made the following points:

(a) the public passageway, including the lift, staircase and open-air portion within the Site would be open to the public on a 24-hour basis. It would be designed and constructed by the applicants, and managed and maintained as part of the non-domestic portion of the proposed development in future;

(b) the lift and staircase would not only form part of the 24-hour public passageway but would also serve the non-domestic portion of the proposed development, in particular for the proposed art facility, namely Asia Art Archive (AAA). Hence, the design of the 24-hour public passageway as a whole was very important for the proposed development and the applicants would make effort to achieve a design that would be in keeping with the local character, especially the cultural ambience of the locality. Although the existing right of way to the southeast of the Site adjacent to Sau Wa Court was not owned by the applicants, the proposed development with the enhanced public passageway, in terms of both connectivity and visual quality, might create an incentive for the adjacent lot owners to improve the design of the right of way within their lots; and

(c) the applicants had proposed to stipulate the provision of the 24-hour public passageway in the Notes of the proposed “R(A)9” zone and with the stipulation of which, it would not be possible for the Site being developed in a piecemeal manner or otherwise, such statutory requirement could not be fulfilled.

14. To supplement, Mr Mann M.H. Chow, DPO/HK, said that as the leases of the lots of the Site of were virtually unrestricted, it might not be possible to impose the requirement of the provision of a 24-hour public passageway as a condition under the leases. Nevertheless, the applicants had proposed to incorporate the requirement for the provision of a 24-hour public passageway in the Notes of the proposed “R(A)9” zone, and such provision would have to be reflected in the building plan submission during the detailed design stage.

15. The Chairman supplemented that once the requirement for the provision of a 24-hour passageway was included in the Notes of the OZP, as proposed by the applicants, such requirement would be statutory that the applicants would have to comply with for carrying out development at the Site. The provision would be reflected in the building plan submission which would be scrutinised by relevant government departments.

Planning and Design

16. Some Members raised the following questions:

(a) If amalgamation of the lots within the Site could not be completely achieved, whether the individual lot owners would be able to develop their own lots as long as the statutory requirements in the Notes could be complied with;

(b) whether more stringent building height restriction (BHR) would be imposed on the portion of the Site fronting SFS in order to ensure that a low-rise building frontage, which would be created;

(c) the increase in population arising from the proposed development; and

(d) the proposed average flat size.

17. In response, Mr Mann M.H. Chow, DPO/HK, made the following points:

(a) given that the applicants were not the sole owners of the Site, piecemeal/standalone development could not be precluded should the Committee agree to the amendments as proposed by the applicants. As such, PlanD would impose appropriate planning control/development restrictions in the Notes at OZP amendment stage;

(b) BHR for the proposed “R(A)9” zone as a whole would be 110mPD and the plot ratio would follow the restrictions under the Building (Planning) Regulations, which would be the same as the adjoining “R(A)” zone; and

(c) according to the applicants’ submission, the estimated population from the proposed development would be about 562. However, as most of the flats were vacant, it would not be possible to estimate the net increase in population within the Site due to the proposed development.

18. Merrs Kenneth To and Tommy Ng, the applicants’ representatives, made the following points:

(a) the applicants intended to develop the Site as a whole. The three current owners of the lots within the Site were all subsidiaries of the same company and there was only a minor ownership issue left to be resolved before they could proceed with the comprehensive redevelopment. They had also consulted various government departments including the Buildings Department on the proposed scheme, and the intended comprehensive development of the Site would be reflected in the building plan submission during the detailed design stage;

(b) the layout design under the current proposal echoed with Members’ views of having the high-rise block in the inner portion of the Site at SWF while placing the low-rise structures of the 24-hour public passageway and pick-up/drop-off area at SFS in order to allow for a more inviting design and open view for the public; and

(c) the average flat size of the proposed development would be about 42m².

Traffic and Transport

19. Some Members raised the following questions:

(a) upon completion of Hopewell Centre II, a large-scale development in the vicinity of the Site under construction, whether QRE would still have sufficient capacity for the additional traffic generated by the proposed development, and whether the Transport Department (TD) had any plan to ensure the overall through traffic of the area;

(b) whether the turntable on G/F of the proposed development was mainly designed to serve shops at lower floors of the development, and the types of vehicles that would use the turntable; and

(c) whether the pick-up/drop-off activities at the Site would affect the through traffic on SFS which was of a steep gradient.

20. Concerning the traffic capacity of QRE, Mr Mann M.H. Chow, DPO/HK, said that Hopewell Centre II had been taken into account in the Traffic Impact Assessment (TIA) conducted for the proposed development as submitted by the applicants, and the junctions analysed (including QRE) were expected to operate with sufficient capacities with the proposed development for design year 2029. Moreover, as the Site was well served by public transport with Admiralty and Wan Chai MTR Stations located nearby, TD agreed that there was no need to provide private car parking spaces within the proposed development.

21. Regarding the internal transport facilities, Messrs Kenneth To and Kim Chin, the applicants’ representatives, made the following points:

(a) the turntable and the open area for passenger pick-up/drop-off and loading/unloading activities were intended to serve the future residents and visitors of the proposed development, and the types of vehicles using such facilities include private cars, taxis and light goods vehicles; and

(b) the open area with a turntable on G/F was proposed to be located within the Site, taking into account the need for passenger pick-up/drop-off and loading/unloading activities of light goods vehicle without interrupting the through traffic on SFS. Moreover, it was unlikely for on-street kerbside activities to be taken place in front of the Site on SFS in light of the steep gradient of that part of the road. Adverse impact on the through traffic on SFS was not anticipated.

…

Deliberation Session

28. The Chairman remarked that as recommended in the “Study on Redevelopment along Stepped Streets’, part of the Site in SWF [i.e. Sau Wa Fong] without vehicle access was rezoned to “R(C)” with lower development intensity mainly due to fire safety concern. Under the current application, with the Applicants’ proposal to amalgamate the lots in SWF and those on SFS [i.e. St Francis Street] where vehicular access would be available, the main aforementioned concerns could be addressed. Besides, detailed fire service installations would need to be provided to the satisfaction of the Building Authority and the D of FS at building plan submission stage. In terms of planning and design merits, a 24-hour passageway and a setback of 10m from SFS were proposed. The applicants also intended to cooperate with AAA to provide arts and cultural facilities within the Site. Should the Committee agree to the rezoning proposal, PlanD would discuss with relevant government departments the appropriate control to ensure the comprehensive development of the Site and the provision of the 24-hour public passageway.

29. Members in general had no objection to rezoning the Site for proposed residential development with commercial uses, including art facilities. Members supported the redevelopment of buildings on the stepped street and the applicants’ proposal to amalgamate the lots with stepped height frontage as such a design would be more desirable than piecemeal developments of individual lots.

…

31. A Member expressed concern about the lack of control on the provision of the setback from SFS and suggested that consideration could be given to imposing more stringent BHR for the concerned portion of the Site fronting SFS so as to ensure that a low-rise entrance at SFS could be achieved. A few Members were concerned about the landscaping or design of the 24-hour public passageway. In relation to Members’ concerns, the Secretary clarified that, considering part of the Site fronting SFS was currently zoned “R(A)”, a more stringent BHR would affect the development potential of the lots. In fact, the applicants proposed a setback of 10m fronting SFS, which would allow more space between buildings and achieve a low-rise entrance with stepped height development. It should be noted that the proposed lift and staircase of the 24-hour public passageway would be located at the setback area. Considering that it was the applicants’ proposal to provide a 10m setback at SFS, a setback requirement in the Notes and/or ES of the “R(A)9” zone, rather than BHR, together with the provision of 24-hour public passageway could be explored in stage of proposed in stage of proposed OZP amendment, subject to discussion with relevant government departments.

32. The Chairman added that stipulating a setback requirement could help ensure a low-rise frontage at the SFS entrance. As to how such requirement could be specified in the Notes and/or ES of the “R(A)9” zone, it would be further considered by PlanD. PlanD could also follow up with the applicants regarding the provision of art facilities at the Site.

…

45.  Against those materials, I see the force in Mr Chan’s submissions in response to Ground 1, which are in summary that:

(1)  The Applicants’ criticism that §34 of the MPC Minutes prima facie failed to define the imposed additional planning controls is misconceived. It is wrong as a matter of law for the Applicants to pinpoint a single paragraph in the MPC Paper in complete disregard of the proper context and relevant contemporaneous documents including the MPC Paper and other representations made: see Jonnex International Ltd v Town Planning Board [2018] 1 HKLRD 577 at §31-33. The MPC Minutes have to be read in context and using common sense.

(2)  Each planning decision turns on its own facts, and whether a particular decision is sufficiently clear depends on the relevant context. The Applicants’ comparing and contrasting the Decision with other previous examples represent precisely the non-pragmatic and excessively legalistic approach to planning processes and decisions against which the Courts caution.

(3)  The Applicants’ complaint of abuse, i.e. that the Decision would be open to different interpretations and PlanD is exploiting the situation by ex post facto suggesting a new planning control, is unfair, unfounded and premised on a deliberate misreading of the contemporaneous records. A fair reading of the evidence shows that PlanD has not ‘moved the goalposts’ in terms of the planning control in question. It is common sense that where there is a direct vehicular access to a site, there must be internal transport facilities in the site for vehicles after their access. The requirement on internal transport facilities is in tandem with the provision of vehicular access.

(4)  As regards the Applicants’ claim that it is “astonishing” for the TPB to consider the Setback Requirement to form part of the Decision, as it was merely suggested by the Secretary and commented by the Chairman, without any express consensus amongst the body of the MPC, there was nothing “astonishing” when the concern about the lack of control to ensure a low-rise entrance at St Francis Street was expressly raised by a member, and addressed by the Secretary and the Chairman, whose proposal received no adverse comment, which is what deliberation and collective decision are about. The Applicants’ query as to whether the members had applied their mind is without foundation and their insistence on each member being specifically called upon is wholly artificial: see Join Smart Ltd v Town Planning Board [2021] 4 HKLRD at §82.

(5)  The Applicants’ assertion on lack of adequate reasons could not be established because:

(a)  the reasons for the planning controls recommended by PlanD, which were accepted by the MPC, were adequately explained in the MPC Paper and considered by the members, and it is fair to assume that the members adopted PlanD’s reasoning as there is no evidence to the contrary;

(b)  in respect of the need to stipulate the Setback Requirement in the Notes and/or ES, that was expressly discussed and agreed at the MPC Meeting (with the reason plainly recorded in the MPC Minutes).

46.  In addition to adopting the submissions and evidence of the TPB as for Ground 1, Mr Ismail also submits that:

(1)  A reasonable reader would understand that the agreement was partial, because the MPC did not just accept or adopt the Section 12A Application in full but decided to include (a) the two recommended PlanD Controls and (b) the Setback Requirement to be made at a later stage: see Yip’s Affirmation at §47.

(2)  The knowledge of planning law and practice, with which a reasonable reader must be treated as being equipped, includes knowledge that:

(a)  planning is a holistic process involving balancing numerous factors in which draft OZPs, and individual planning restrictions within them, are determined by the machinery created by statute and designed to ensure consideration of competing views after consultation with the public and with the parties affected with the benefit of input from relevant experts;

(b)  planning decisions are made with entire districts, and not just the parties’ sites, in view;

(c)  the TPB has to be satisfied that the proposed rezoning would not result in any insurmountable or unacceptable impact on the local community;

(d)  the practice is that the TPB’s decision in a section 12A application is a decision in part when the application is accepted but the rezoning appeal agreed by the Board is not exactly the same as that proposed by an applicant;

(e)  the TPB does not have power to agree to a rezoning application on condition that planning controls recommended by PlanD are included (see Royal Billion Investment Ltd v Town Planning Board [2021] HKCI 1093 at §87) and consequently, the only option available to the TPB is to make a partial decision in circumstances where it agrees with the proposed new rezoning but wishes to include other measures that it considers are appropriate and acceptable from a planning point of view, and desirable in the public interest, such as the PlanD Controls and the Setback Requirement in the present case; and

(f)  the MPC tasked the PlanD to follow up to work out the details of the amendments to be made to the approved OZP based on the scope of the Decision for the MPC’s consideration before amending the OZP: see Yip’s Affirmation at §48.

(3)  Accordingly, there can be no genuine or substantial doubt as to what the TPB decided and why; and at it its highest, the “doubt” in the Decision is a forensic doubt with which the Court will not interfere, rather than a genuine doubt.

47.  The gist of Mr Chan’s argument against the Applicants’ allegation of unlawful delegation under Ground 2 is as follows:

(1)  It is undeniable that Ground 2 and Ground 1 stand or fall together, as is evident from the Form 86 at §39, acknowledging Ground 2 is predicated on the assumption that the MPC did not in fact intend to define the scope of its partial agreement but intended to leave it to PlanD to formulate the proposed amendments to the OZP together with the revised Notes and ES for its consideration. For the reasons set out in reply to Ground 1 above, this assumption is obviously false, and Ground 2 then fails.

(2)  The alternative argument advanced by the Applicants for Ground 2 is circular and tautological, as it was said that the MPC did not actually define the scope (because it only purported to do so) and hence it did not set out adequate parameters and/or particulars for the partial agreement.

(3)  It is telling that the Applicants did not develop Ground 2 separately from Ground 1 in their Skeleton Submissions.

(4)  The contention that the MPC is responsible for articulating and working out every last detail of the planning controls or requirements to be stipulated in the draft OZP, or its Notes or ES, does not accord with the statutory role of the TPB and the established practice that PlanD as the executive arm of the TPB would be tasked with the follow-up work on the details of the amendments to be made to the OZP on the basis of the scope decided by the MPC and for the MPC’s consideration before amending the OZP (section 12A(24) of the Pre-amended TPO). There is no evidence to suggest that the decision-making was delegated to or shared with PlanD illegally.

48.  In concert with Mr Chan’s submissions on Ground 2, Mr Ismail contends that:

(1)  The option of leaving it to PlanD was never recommended by PlanD (MPC Paper at §§12.1-12.3) and not raised at the MPC Meeting.

(2)  From an objective and liberal reading of the MPC Minutes and in context and not divorced from the reality of the matter and by a reasonable reader, it is clear that there was never any intention to delegate the decision to PlanD.

49.  As a matter of general principle, not everything mentioned in the deliberation discussion must lead to or become part of the MPC’s reasons in making the Decision; and whether certain matters mentioned or discussed in the deliberation became part of the reasons for the Decision is a matter of reading and understanding them in proper context and looking at the general tenor of the deliberation: see Jonnex at §31.

50.  To understand the matter raised and discussion at the deliberation session in the present case, the proper contexts are the MPC Paper and the MPC Minutes (also setting out the various representations made at the MPC Meeting). In consideration of the relevant parts of the MPC Paper, MPC Minutes and also the PowerPoint presentations used by PlanD and the Applicants’ representatives at the MPC Meeting, it is clear that:

(1)  The issues, factors, planning considerations and assessments, government departments’ comments and PlanD’s views (concerning the proposed provision of direct vehicular access, the NBA and a 24-hour public passageway) were fairly and comprehensively presented to the MPC members.

(2)  The MPC was fully aware of the contents of the MPC Paper and the representations made by PlanD and the Interested Parties at the MPC Meeting.

51.  When read against the above context, it is clear that the MPC decided to adopt PlanD’s recommendation for partial agreement to the rezoning application with stipulation of appropriate controls. There is no undefined scope or lack of particulars in the partial agreement.

52.  Ground 1 is therefore rejected.

53.  I accept the submission made by Mr Chan that Grounds 1 and 2 stand or fall together. As Ground 1 fails, Ground 2 cannot succeed too. It is not necessary to delve into discussion on the alleged unlawful delegation as raised in Ground 2.

E.  Ground 3 – Failure to Take Into Account Public Comments and/or Give Reasons

54.  Regarding the materiality of the Relevant Objecting Comments, Mr Suen submits that they are (1) material to the consideration by the TPB on whether to accede to the Section 12A Application, and (2) of substance, i.e. not simply voicing out a general objection to the Section 12A Application without particulars, and that the TPB was under a duty to take them into account under Section 12A(22) of the Pre-amended TPO, for the following two reasons.

55.  First, in relation to the concern over pedestrian safety arising from the proposed redevelopment and the proposed vehicle turntable:

(1)  This directly relates to whether the Site should be rezoned to R(A)9, as such rezoning would effectively lead to a substantial increase in the development intensity of the Site and an increase in the number of pedestrians who may use St Francis Street. Any rezoning application should not be allowed unless and until the Interested Parties can demonstrate that the issue of pedestrian safety can be satisfactorily addressed.

(2)  The issue of pedestrian safety is a relevant and crucial issue, which the TPB should take into account in coming to the view as to whether the proposed new zoning of the Site was appropriate and acceptable from a planning point of view.

(3)  Those comments, which include the Hostford’s third objection enclosing the Traffic Note prepared by a professional traffic consultancy firm and also comments from other persons, are substantial and of weight.

(4)  It should be emphasised that the TPB mischaracterises the Applicants’ case, which is that the “substance” of the pedestrian safety issues, particularly the safety concerns of pedestrian with disabilities posed by increased development intensity and/or when accessing public facilities within the proposed development, were not considered (whether in the summary of the MPC Paper or the MPC Minutes).

56.  Second, in relation to the Alternative Proposal including the proposed footbridge connecting the Site and the Hostford Site, linking Queen’s Road East to the proposed redevelopment and Sau Wa Fong without requiring access through the steep slope at St Francis Street:

(1)  It directly relates to whether the Site should be rezoned as proposed by the Interested Parties. Without the proposed footbridge, the concern on pedestrian safety remains unresolved, especially for persons with disabilities.

(2)  In contrast to the position under applications for planning permission under section 16 of the TPO, alternative uses of the Site may be relevant for applications for rezoning under section 12A of the TPO: see Join Smart at §49.

(3)  The public comments from the 2^nd Applicant, a well-established charity for the support of persons with disabilities, effectively supports the Alternative Proposal, but the MPC Minutes show that PlanD failed to bring the MPC members’ attention to the concern of accessibility for persons with disabilities.

(4)  There is nothing legally or practically to prevent the TPB from imposing a requirement through partial agreement to the Section 12A Application on the Site to be connected to the Hostford Site by a footbridge and barrier-free access from Queen’s Road East as envisaged under the Alternative Proposal, which occupy and straddle part of the Site.

(5)  The reasoning for the TPB’s contention that the Alternative Proposal is not relevant is erroneous:

(a)  It is incorrect to suggest that the Alternative Proposal was only to improve the existing pedestrian environment of St Francis Street rather than mitigation of any traffic impact caused by the proposed development, because safety concerns to pedestrian with disabilities are posed by the proposed development due to (i) increased development intensity and pedestrian traffic and (ii) the proposed public facilities, including the 24-hour passageway and art facilities, within the proposed development allowing access by the public (including pedestrian with disabilities). The Alternative Proposal would mitigate such concerns caused by the proposed redevelopment. In addition, there is no dispute that the 24-hour public passageway is a planning consideration, and indeed the Interested Parties proposed to stipulate it in both the Notes and the ES. As the proposed footbridge is an extension of the 24-hour public passageway, there is no reason why the extended portion of public passageway is not capable of being a planning consideration.

(b)  The TPB’s submission that a footbridge was always permitted under the proposed zoning is of no relevance, because the point is whether the MPC should partially agree to the Section 12A Application subject to the alternative use of part of the Site for the proposed footbridge.

(c)  The suggestion that the Interested Parties were open to have further discussions with the Hostford only in the detailed design stage, rather than at the zoning, is misconceived, as this only reinforces PlanD and TPB’s erroneous views that the Alternative Proposal is not relevant to the Section 12A Application.

(6)  In respect of the TPB’s claim that the Alternative Proposal was properly considered as an “off-site” proposal, there is no sound reason as to why requirements pertaining to mitigation measures undertaken partly onsite and partly offsite cannot be imposed as a condition of partial agreement of rezoning.

(7)  The TPB never gives any reason for being unable to consider the Alternative Proposal because of the alleged lack of particulars, which, at best, is an ex post facto reason given to ignore the Alternative Proposal.

57.  As to the complaint about the TPB’s failure in taking into account the Relevant Objecting Comments, Mr Suen contends that:

(1)  What is important is to examine “how the decision-maker articulated the reasons for the decision” (see Hysan Development at §191). As shown in the MPC Minutes, the issues of pedestrian safety and the Alternative Proposal were not mentioned, let alone discussed, at the MPC Meeting.

(2)  The TPB’s relied on §§19(b)-(c) of the MPC Minutes, as referred to in Yip’s Affirmation at §57, to support its claim that “[taking] all the relevant information into account, there is and was no proper basis for the Applicants to claim that the proposed development would cause insurmountable impact on road safety”, which could not be substantiated because those paragraphs in the MPC Minutes merely concerned the use of the proposed turntable and its impact on the traffic on St Francis Street and did not relate to the issue of pedestrian safety on St Francis Street.

(3)  In the circumstances, it is clear that, in breach of its duty under section 12A(22) of the Pre-amended TPO, the TPB failed to take account of the Relevant Objecting Comments and/or to give any or any adequate reasons for rejecting those comments.

58.  Mr Suen further submits that there is no merit in the TPB’s reliance on parts of the MPC Paper and even the Interested Parties’ responses to the Government department comments, to show that the TPB took into account the Relevant Objecting Comments, because the MPC Paper actually does not address any of the pedestrian safety issues and, even assuming that the MPC Paper did address them, it shows that the TPB did not have those matters in mind despite having been allegedly flagged up. In support of his contention, he provided 5 examples of comparing and contrasting the affirmation evidence with the MPC Paper, which need not be repeated.

59.  As regards the manner in which PlanD prepared the PowerPoint presentation for the MPC Meeting, Mr Suen contends that the concerns on pedestrian safety raised in the Relevant Objecting Comments were never fairly presented to the TPB for the following reasons:

(1)  The slide entitled “Public Comments” failed to convey the objections in respect of pedestrian safety along St Francis Street arising from the proposed redevelopment.

(2)  In respect of the slide entitled “Major Departmental Comments and Planning Considerations & Assessments”, TD’s response merely focused on the accessibility of the 24-hour passage between St Francis Street and Sau Wa Fong, without addressing the pedestrian safety issue on St Francis Street.

60.  In response, Mr Chan submits that the key issue under Ground 3 is whether the MPC did take into account the two material considerations, i.e. (1) pedestrian safety and (2) the Alternative Proposal, which is a factual question, and that the issue of whether the MPC adequately considered the two material considerations or the correctness of the view it took on those considerations is not relevant. He relies on the Court’s observation in Join Smart at §82, stating that it cannot be the case that the MPC must ask questions, or discuss all the issues in an application, at a meeting in order to demonstrate that it has given due consideration to the relevant factors. It would be unrealistic and impose an intolerable burden on the MPC to require it, in every case, to demonstrate by “objective” evidence that it has engaged in “an active intellectual process” in respect of all issues which may arise for its consideration.

61.  As regards the pedestrian safety issue, the gist of Mr Chan’s submissions is as follows:

(1)  Both PlanD and TD were alive to this issue, and actively sought response from the Interested Parties, who provided their responses both in the FIs and by way of TIA Report. A major change to the original indicative scheme, i.e. the replacement of the proposed public layby with the turntable was to address the pedestrian road safety concerns raised by TD and the public including the 1^st and 3^rd Applicants.

(2)  The TIA Final Report, produced in August 2023 after all the public comments, considered the point that pedestrian facilities were provided in the vicinity of the Site and its surroundings, and together with the responses stated in the FIs supported the view of the Interested Parties that the traffic technical aspect including both motorists and pedestrian issues did not create any insurmountable impact.

(3)  These materials had been annexed to the MPC Paper, which were submitted to and considered by the MPC. The main body of the MPC Paper mentioned and discussed traffic issues (including pedestrian safety) and the views of TD and PlanD. It is clear that both departments agreed with the analysis of the Interested Parties that the traffic technical aspect (including pedestrian safety) did not pose any insurmountable impact.

(4)  The apparent consensus (including the 1^st and 3^rd Applicants) is relevant in that if there was no real dispute that any technical issue concerning traffic (including pedestrian safety issue) would not pose an insurmountable impact, one can readily see why the MPC might have thought it unnecessary to dwell on the issue extensively, as these technical matters could be resolved at the subsequent design stage.

(5)  From the presentation of the Interested Parties to the MPC at the MPC Meeting, it is clear that one of the benefits of the proposed design, especially the proposed setback, would be to improve the present state of pedestrian circulation and to “improve pedestrian wind environmental and visual permeability”, which would improve pedestrian safety in St Francis Street.

(6)  A shown in the MPC Minutes, it is apparent that, during the Q&A session, the members of the MPC did ask the Interested Parties questions on planning issues including the proposed pedestrian connections and traffic, transport and road safety issues. During the deliberation session, one of the main points discussed was how to ensure a low-rise entrance at St Francis Street could be achieved through planning control measures, and this was clearly related to pedestrian safety.

(7)  Given the obvious connection between pedestrian safety and traffic flow or capacity, the argument advanced by the Applicants that discussions on traffic matters did not concern or address the issue of pedestrian safety should strike any objective person as extremely artificial and unreasonable.

(8)  It defies common sense that the Applicants discount the relevance of considerations on the management of traffic flow, service capacity of the proposed turntable, traffic impact on pedestrian networks and the availability of alternative pedestrian routes either because the exact words “pedestrian safety” were not used in the written materials or because the Interested Parties had envisaged the use of the eastern side of St Francis Street.

(9)  For the above reasons, there is no proper basis for the Applicants to assert that (a) it was “misleading” for PlanD to indicate in the MPC Paper at §11.9 that the Relevant Objecting Comments were addressed by the planning assessments and departmental comments in the MPC Paper at §§9, 11.2-11.8; and (2) that the MPC Paper failed to present fairly those comments or that the MPC did not properly take into consideration of the objections raised based on the issues of pedestrian safety.

62.  In respect of the Alternative Proposal, the arguments advanced by Mr Chan are in summary that:

(1)  The Alternative Proposal was not directly related to whether the Site should be rezoned as per the Section 12A Application, as it formed no part of the Interested Parties’ Indicative Scheme and did not fall for the MPC’s decision.

(2)  The Alternative Proposal covers largely areas outside the Site, which was properly considered as an “off-site” proposal.

(3)  As there was only a set of preliminary layout plans submitted as part of the Hostford’s objection with no technical details of the proposed footbridge, the relevant government departments were not able to provide any meaningful comments such as to its technical feasibility and impact on the Site’s development prospect.

(4)  The Alternative Proposal was expressly considered in the MPC Paper, as PlanD noted that the “main consideration of the rezoning is the proposed rezoning, land uses and development intensity, detailed uses of the proposed development would be subjected to the [Interested Parties’] decision at the detailed design stage”, which point MPC did have regard to and agreed.

(5)  The Alternative Proposal was put forward as a suggestion for improvement of the overall pedestrian and barrier-free network in the neighbourhood, and not as a necessary or the only solution to any demonstrated insurmountable impact caused by the Section 12A Application.

(6)  If the proposed footbridge is authorised under the Roads (Works, Uses and Compensation) Ordinance Cap 370, it shall be deemed to be approved under section 13A of the TPO, with no planning permission under section 16 of the TPO required. Subject to technical feasibility and consent from the relevant government departments, the choice of connecting the Site and the Hostford Site – two private lots – by the proposed footbridge is ultimately the decision of the Interested Parties and the Applicants. In their 1^st FI, the Interested Parties already stated that they were open to have further discussions with adjacent owners on possible proposals that could enhance the street environment at the detail design stage.

63.  The core issue in respect of Ground 3 is whether the Relevant Objecting Comments have been fairly presented to the MPC for consideration in the decision-making process.

64.  It is convenient to set out the relevant paragraphs of the MPC Paper concerning the public comments as follows (underlining in original, bold emphasis added):

10. Public comments Received During Statutory Publication Periods

…

10.3 The objecting comments were submitted by the Chairman of Wan Chai District (WCDC), the Chairman of the Institute of Advanced Motorists Hong Kong, the Property Manager of Hoover Towers 1 & 2 representing the Incorporated Owners of the two residential towers, the developer of 3, 5, 7 St. Francis Street and 61 Queen’s Road East and locals/individuals. The major grounds of objection/main concerns raised are summarised below:

(a) St. Francis Street is the only vehicular access to the Site and the service capacity is limited. Whilst no parking facilities (2 motorcycle parking spaces are proposed in the latest indicative scheme) will be provided, the proposed development would increase the development intensity and local population. It will also increase the traffic flow and reduce the efficiency of the emergency services.

(b) the service capacity of the proposed turntable is limited and longer time will be required for ingress/egress with the use of the proposed turntable;

…

(d) development density of the proposed development is not compatible with the local character which are mainly low to medium rise residential developments, and contravenes the planning intention and BHR of the “R(C)” zone in the Wan Chai OZP;

…

10.4 The objecting comments from the developer of 3, 5, 7 St. Francis Street and 61 Queen’s Road East (i.e. a site to the northwest of the Site across St. Francis Street (Plan Z-2) which is under construction) also provided an alternative proposal involving the Site and the residential development at 3, 5, 7 St. Francis Street and 61 Queen’s Road East. The alternative proposal comprises (1) a museum at 3, 5, 7 St. Francis Street and 61 Queen’s Road East; (2) a connecting footbridge over St Francis Street; and (3) an extension of the museum at the Site.

…

11. Planning Considerations and Assessments

Public Comments

…

11.11 With regard to the alternative proposals, including footbridge connection to the neighbouring lots and development of a corridor related to arts in Admiralty and Wan Chai, and the lack of details of the proposed arts facilities in the indicative scheme, it should be noted that the main consideration of the rezoning proposal is the proposed zoning, land uses and development intensity, detailed uses of the proposed development would be subjected to the applicants’ decision at the detailed design stage. Regarding the suggestion of public housing at the Site, it should be noted that the Site is a private lot.

…

65.  As traversed above, the Relevant Objecting Comments were fairly presented to the MPC by the MPC Paper. The MPC members were fully aware of the Relevant Objecting Comments. At the MPC Meeting, they also had the benefit of (1) hearing the PowerPoint presentations by PlanD and the Applicants’ representatives, and (2) having a Question-and-Answer session covering a variety of topics related to pedestrian safety issues such as the proposed 24-hour public passageway and traffic and transport issues such as the proposed turntable, pick-up/drop-off activities at the Site and internal transport facilities.

66.  Therefore, I do not accept the arguments advanced by Mr Suen for Ground 3. There is no basis for saying that the TPB failed in taking into account the Relevant Objecting Comments. I do not think they were simply brushed aside, and instead I think they were looked at but not thought to be of any prime importance at the then stage of consideration, and so were given little weight.

67.  I also accept Mr Ismail’s submissions for Ground 3, which may be summarised as follows:

(1)  The true complaint of the Applicants is that inadequate or insufficient weight was given by the TPB to the Relevant Objecting Comments, rather than it failed to take them into account and/or give reasons. Assessment of weight is an exercise of planning judgment which is for the TPB: see Hong Kong Resort v TPB [2020] HKCFI 1956 at §22. The Court must be astute to ensure such challenge to the Decision is not a cloak for a rerun of the arguments on the planning merits: see R (Newsmith Stainless Limited) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 at §6.

(2)  This Ground lacks merit as (a) the TPB did not fail to take into account the Relevant Objecting Comments; and (b) the pedestrian safety and/or the Alternative Proposal involve qualitative assessments and/or the exercise of planning judgment which are for the TPB and not for the Court to make, and the TPB had to decide whether the Section 12A Application would give rise to some insurmountable or unacceptable impact on the local community and not any adverse impact.

(3)  The Applicant’s argument that there is no merit in the TPB’s reliance on the MPC Paper itself has no merit because (a) it is not necessary for the TPB to rehearse every argument relating to each matter in every paragraph (see South Somerset District Council v Secretary for State for the Environment at §10(b)); and (b) the MPC Paper, the FIs and the MPC Minutes are relevant, to be read liberally and in context and not as statutory instruments, not to be divorced from reality and common sense, not to be read as reasoned judgments, and omissions are not conclusive.

(4)  The statutory duty of the TPB duty to properly “consider” a rezoning application made under section 12A depends on, inter alia, the completeness of the analysis in the MPC Paper: Join Smart at §82.

68.  As to the alleged duty of providing reasons, the relevant principles in relation to the giving of reasons for administrative decisions are well known and have been considered by me in previous cases, where I have offered the following summary of the principles as follows: - though I note that the TPB did not say it could not give the Alternative Proposal and consideration because of a lack of particulars.

(1)  There is no general duty to give reasons for administrative decisions, but the nature or circumstances of an adjudication might indicate a necessity for giving reasons.

(2)  If and when a duty to give reasons arises, what is regarded as adequate depends on the particular facts of each case.

(3)  The Court should consider a reasons challenge with practical reality in order to prevent an application for judicial review from being turned into a merits review, and to avoid treating day-to-day administrative decision-making processes as if they were judgment-writing.

(4)  The reasons given should show that the decision-maker has addressed the substantial issues and show why the decision-maker has come to its decision.

(5)  The reasons should show that the issues that arise for serious consideration have been considered.

(6)  But the reasons in any given case may not require great elaboration, and they may be brief.

(7)  Sufficient reasons may be required so as to enable the affected individual to exercise effectively any right to appeal or review.

(8)  The giving of reasons in any individual case must be viewed in the context of that case.

(9)  Hence, it may be that the Court can have regard to the prior interaction or exchange between the parties to determine whether the reasons given are sufficient to meet the requirements of the principles.

(10)  Where the decision-maker purports to have given reasons, the reasons should be subject to the same level of scrutiny as if there was an express duty to give reasons.

(11)  A reasons challenge will only succeed if the party aggrieved can satisfy the Court that he has genuinely been substantially prejudiced by the failure of the decision-maker to provide an adequately reasoned decision.

69.  In present case, the Decision is the TPB’s partial agreement to the Interested Parties’ Section 12A Application for rezoning. As discussed, there is no evidence to suggest that the TPB disregarded the Relevant Objecting Comments. So, there is no issue on whether the TPB has any duty of giving reasons for rejecting those comments.

70.  Ground 3 is therefore also rejected.

F.  Result

71.  I have acknowledged that the Alternative Proposal was put forward by Hostford in good faith, with the genuine intention to take advantage of the possibility of providing a greater link in the access available. I also acknowledge that, as yet, the Interested Parties have not really engaged with Hostford as to seeking to agree between them any potential link as might be made between their respective development sites, which could go towards forwarding that intention.

72.  On the other hand, both developers are private parties who may or may not reach agreement, and whose agreement may or may not be favourably considered by the relevant government departments if put forward. I also have serious doubt as to imposing as a condition on any rezoning a requirement for two private owners to reach agreement on something, which if they cannot agree might for all practical purposes stymie any development, which is otherwise thought to be generally beneficial and without insurmountable obstacle.

73.  Further, even if there is room for thinking that the Alternative Proposal is of additional benefit to the benefits identified in the Indicative Scheme, that does not seem to me to be the determinative issue in these proceedings. Planning cases should not permit the best, or the perfect, to be treated as the enemy of the good – not least in the appropriate multi-factorial, holistic assessment which comes into play.

74.  In the circumstances outlined above, the Applicants’ application for judicial review is dismissed.

75.  At present, I see no reason why costs should not follow the event. Therefore, I order the TPB’s and the Interested Parties’ costs to be paid by the Applicants, to be taxed if not agreed. However, as I have not heard argument on the question of costs, I make that order in the first instance on a nisi basis. The costs order nisi will become absolute after 14 days if no application for variation is issued. Any such application for variation will be dealt with on paper.