CHAN KA LAM v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER

HCAL 28/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 28 OF 2015

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J U D G M E N T

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A.  INTRODUCTION

1.  The applicant is an environmental and conservation activist.  This is her judicial review seeking to challenge:

(1) The decision (“the CEIC Decision”) of the Chief Executive in Council (“CEIC”), made known to the applicant on 13 February 2015, to approve the draft Outline Zoning Plans (“the Draft OZPs”) respectively of Hoi Ha, Pak Lap, and So Lo Pun.

(2) The decision (“the TPB Decision”) of the Town Planning Board (“TPB”) made on 21 November 2014 and confirmed on 5 December 2014 to submit the Draft OZPs to the CEIC for approval.

2.  The grounds of challenge are in gist that (a) the TPB Decision is tainted by various public law wrongs, made by the TPB inconsistently with the stated planning intention, and is in breach of the applicant’s legitimate expectation; and (b) the CEIC Decision is similarly tainted with the same wrongs of the TPB Decision, and is unlawful for want of reasons in the circumstances of this case.  The applicant asks for the reliefs of quashing both Decisions and an order of Mandamus requiring the TPB to further consider and amend the Draft OZPs in accordance with law or to replace them with new plans.

3.  As with most judicial reviews challenging the TPB decision on draft OZPs, context is important for the understanding of the complaints.  I will therefore first set out the relevant background leading to this judicial review.

B.  THE BACKGROUND

B1.  The three enclaves and the events leading to the preparation of the OZPs for them

4.  Hoi Ha, Pak Lap, and So Lo Pun are respectively three country park enclaves, which mean that each of them is land consists of some private land together with Government land, surrounded by or contiguous to a designated country park.  For historic reasons, country park enclaves were excluded from being part of the country park as it was the then prevailing policy that Government land was preferred in designating country parks.  Hoi Ha, So Lo Pun, and Pak Lap are respectively next to the country parks of Sai Kung West, Plover Cove and Sai Kung.

5.  In June 2010, unauthorised excavation works were detected on both private land and Government land within the country park enclave of Sai Wan (“the Sai Wan Incident”).  This triggered significant public concerns on the protection of country park enclaves in Hong Kong.  At that time, 54 of the 77 country park enclaves had not been covered by Outline Zoning Plans (“OZPs”) under the Town Planning Ordinance (Cap 131) (“TPO”), meaning that developments on private land within the enclaves were not subject to any restrictions apart from any conditions in the land lease, which might in turn affect the natural environment and the country park contiguous to the enclave.

6.  As an urgent measure to protect Sai Wan from further development activities, on 26 July 2010, Sai Wan was designated as a Development Permission Area (“DPA”) under the TPO, which prohibited new development activities there unless with the approval of the TPB or permitted as specified in the DPA plan.

7.  In light of the Sai Wan Incident, the then Chief Executive (“CE”) in his 2010 Policy Address pledged to either include the enclaves into country parks, or determine their proper uses through statutory planning to meet conservation and social development needs as soon as possible (“the 2010 Policy”).[1] At paragraph 123 of the Policy Address, the CE stated that, in respect of the enclaves not yet covered by statutory plans:

“to meet conservation and social development needs, we will either include them into Country Park or determine their proper use through statutory planning.”

8.  Hoi Ha, So Lo Pun, and Pak Lap are three of the 54 country park enclaves for which the DPA Plans were prepared by the TPB.  On 1 September 2010, the Secretary for Development (“SDEV”), under the delegated authority of the CE, directed the TPB to designate the three enclaves as DPAs and to prepare draft DPA plans for them.  The draft DPA Plans were subsequently gazetted on 30 September 2010.  After going through the due process of consideration of representations and comments, the draft DPA plans were approved by the CEIC on 4 October 2011 (for Hoi Ha and Pak Lap), and 8 November 2011 (for So Lo Pun).

9.  Pursuant to section 20(5) of the TPO, the DPA plans are effective for three years, ie, until 30 September 2013.  On 11 January 2013, the SDEV, under delegated authority of the CE, directed the TPB to prepare OZPs for these enclaves.

10.  Before looking at the events concerning the preparation of the draft OZPs for the three enclaves and to put them in proper context, it is convenient to first look at the various relevant meaning of the zoning categories of these OZPs.

B2.  The relevant zoning categories in gist

11.  The stated planning intention of the respective zoning categories as stated in the Notes to the relevant Draft OZPs relevant for the present purposes is as follows.

12.  A Conservation Area (“CA”) zone is intended to protect and retain the existing natural landscape, ecological or topographical features of the area for conservation, educational and research purposes and to separate sensitive natural environment such as country park from the adverse effects of the development.  There is general presumption against development in this zone.  In general, only developments that are needed to support the conservation of the existing natural landscape or scenic quality of the area or are essential infrastructure projects with overriding public interest may be permitted.  It does not permit Small House development (under the Small House Policy), and only redevelopment of existing houses may be permitted with or without conditions on application to the TPB.

13.  A Coastal Protection Area (“CPA”) is intended to conserve, protect and retain the natural coastlines and the sensitive costal natural environment, including attractive geological features, physical landform or area of high landscape, scenic or ecological value, with a minimum of built development.  It may also cover areas which serve as natural protection areas sheltering nearby developments against the effects of coastal erosion.  There is a general presumption against development.  In general, only developments that are needed to support the conservation of the existing natural landscape or scenic quality of the area or are essential infrastructure projects with overriding public interest may be permitted.  No Small House development is permitted, and only redevelopment of existing houses may be permitted with or without conditions on application to the TPB.

14.  A Green Belt (1) (“GB(1)”) zone is intended primarily for defining the limits of urban and sub-urban development areas by natural features and to contain urban sprawl.  There is a general presumption against development with zone.  Development of Small House is not permitted in this zone, while only redevelopment of houses already there may be permitted with or without conditions on application to the TPB.

15.  A Green Belt (“GB”) zone is primarily for defining limits of urban and sub-urban development areas by natural features and to contain urban sprawl as well as to provide passive recreational outlets.  There is a general presumption against development within this zone. Development of house (other than rebuilding of Small House or replacement of existing domestic building by Small House permitted under the Notes) may be permitted with or without conditions on application to the TPB.

16.  An Agriculture (“AGR”) zone is intended primarily to retain and safeguard good quality agricultural land, farm, fish ponds for agricultural purposes.  It is also intended to retain fallow arable land with good potential for cultivation and other agricultural purposes. Development of house (other than rebuilding of Small House or replacement of existing domestic building by Small House permitted under the Notes) may be permitted with or without conditions on application to the TPB.

17.  A Village Type Development (“V”) zone is primarily intended for development of Small House and always permits development of Small Houses without an application for planning permission.  The planning intention is to designate both existing recognised villages and areas of land considered suitable for village expansion.  It is also intended to concentrate village type development within this zone for a more orderly development pattern, efficient use of land and provision of infrastructure and services.  Selected commercial and community uses serving the needs of villagers and in support of the village development are always permitted on the ground floor of a Small House.  Other commercial, community, and recreational uses may be permitted on application to the TPB.

B3.  The preparation of the Draft OZPs and the representations made against them leading to the TPB Decision and CEIC Decision

18.  After carrying out extensive consultation with stakeholders and site inspections and various studies, the Planning Department (“PlanD”) drafted the preliminary draft OZPs for Hoi Ha, So Lo Pun, and Pak Lap for the TPB’s consideration.  After considering the preliminary drafts and having further consultations with various stakeholders, the Rural Councils and the District Councils, and after further amendments proposed having been made to these preliminary drafts, the TPB found the then draft OZPs suitable for exhibition for public consultation under section 5 of the TPO.  On 27 September 2013, those draft OZPs were gazetted and exhibited for public consultation.

19.  In those draft OZPs, the PlanD proposed rezoning certain identified parts of the land within Hoi Ha, So Lo Pun, and Pak Lap for V zone.  Respectively, the V zone as identified in these drafts was of 2.6 hectares for Hoi Ha, 4.12 hectares for So Lo Pun, and 2.37 hectares for Pak Lap.

20.  Since the gazettal, over 10,600 valid written representations and 3,600 valid written comments were received in respect of each of the draft OZPs.[2] They were mainly from two broadly opposing groups.  The first group comprised villagers, Rural Councils and individuals, objecting to the insufficient V zones to satisfy demand for Small House development and inclusion of private land within the CA zone.  They all requested for an expansion of the V zones. 

21.  The second group made up of Legislative Councillors, District Council members, green groups, other organizations and individuals who mainly objected to the V zones on the ground that they were drawn up based on unrealistic Small House demand figures without verification.  Excessive V zone would pose a threat to the important habitat and species of the area given the current sewage treatment arrangement by means of the septic tanks.  In particular, they were concerned about the impacts on the marine life of Hoi Ha Wan Marine Park (“HHW Marine Park”) and Pak Lap Wan.  They proposed that the “V” zone should be confined to the existing village cluster.  More specifically, they requested the GB zone in Hoi Ha where the wet abandoned agriculture land was found, and the upper section of So Lo Pun stream and its riparian zone be rezoned to CA.

22.  From 28 April to 4 June 2014, the TPB met in two half day sessions and four full day sessions in holding its meeting pursuant to section 6 of the TPO to hear the extensive representations and comments and to deliberate on them.[3]  As usual before the meeting, the PlanD had submitted to the TPB the TPB papers,[4] summarising the written representations and its responses to them.  For convenience, I would refer to these rounds of hearing as the “First Rounds of Hearing” and all the representations made for and at these hearings as “the Representations”.

23.  At the conclusion of the First Rounds of Hearing, the TPB decided to propose amendments to the then draft OZPs pursuant to section 6B(8) of the TPO, in part to meet those representors’ points by trimming the size of the V zones in the then draft OZPs.  More specifically, these amendments were:

(1) to amend the draft Hoi Ha OZP by rezoning the western part of the V zone and the adjoining GB zone to GB(1);[5]

(2) to amend the draft So Lo Pun OZP by rezoning the northeastern and southwestern portions of the V zone to GB; and

(3) to amend the draft Pak Lap OZP by rezoning the eastern part of the V zone to the east of the stream to AGR.

24.  The remaining V zones were however still extending beyond the existing villages.

25.  The proposed amendments to the draft OZPs were again gazetted for public inspection on 25 July 2014.  A total of 36 valid further representations for Hoi Ha, 21 for So Lo Pun and 11 for Pak Lap were received (collectively “the Further Representations”).  Apart from a few who expressed support to the reduction of the V zones, the majority opposed the proposed amendments in the sense that they considered the V zones still excessive.  They expressed concern on the Small House demand figures and requested for the adoption of the Tai Long Wan approach[6] for the enclaves.  They also considered the current sewage treatment arrangements in the concerned villages inadequate to protect the water bodies in the surroundings and there was a lack of assessment on the cumulative impacts (such as ecology, landscape and water pollution) of Small House development on the enclaves and their carrying capacity.  For Hoi Ha and So Lo Pun, the Further Representations expressed concern on the inadequacy of the GB(1) and GB zones to protect the local habitats respectively.

26.  The TPB meeting to hear the Further Representations and comments was held on 21 November 2014.  The PlanD’s prepared TPB Papers[7] summarizing the Further Representations with its responses were again provided to the TPB before the meeting for its consideration.

27.  At the end of the meeting, having considered the Further Representations and the oral representations, and having deliberated on them, the TPB reaffirmed that an incremental approach should be adopted in the designation of the V zone to meet the Small House demand.  It further concluded that there was no strong justification or any significant change in planning circumstances to warrant a departure from the TPB’s previous decision made on 4 June 2014.  It therefore decided not to amend further the Hoi Ha and Pak Lap draft OZPs exhibited in July 2014 as asked for by the representors, but decided to uphold part of the Further Representations and rezone parts of its V zone at So Lo Pun to AGR and GB use. These are the Draft OZPs that were later submitted to the CEIC for approval.

28.  The TPB’s decisions were conveyed to the representors, commenters and further representors through its letters dated 12 December 2014.

29.  On 3 February 2015, the CEIC, under section 9(1)(a) of the TPO, approved the three Draft OZPs.  On 13 February 2015, the three approved OZPs were exhibited for public inspection under section 9(5) of the TPO.

30.  By a letter dated 16 February 2015, the TPB advised the applicant and other representors that the plans, together with schedules of representations, comments thereon and further representations had been submitted to the CEIC for approval in accordance with sections 8(1) and (2) of the TPO.  The letter also advised that on 3 February 2015, the CEIC had approved the draft plans under section 9(1)(a) of the TPO (ie, the CEIC Decision), and that the approved plans had been gazetted under section 9(5) of the TPO on 13 February 2015.

31.  On 18 February 2015, with the assistance of her legal representatives acting on pro bono basis, the applicant brought the leave application seeking to challenge both the CEIC and TPB Decisions (collectively “the Decisions”).  Following the grant of legal aid in early June and pursuant to a series of orders and directions by the court, the Amended Form 86 was filed on 26 October 2015.  Leave to apply for judicial review was granted on 20 October 2015.

32.  At this hearing, the applicant has further asked for leave to re-amend the Amended Form 86 in the form of the draft Re-Amended Form 86 (“RAF86”) to add further grounds challenging the CEIC Decision.  It is the applicant’s position that the additional grounds are added in light of the evidence filed by the CEIC.  For the present purposes, I would consider the judicial review on the grounds based on the draft RAF86.  I would at the end deal with the question of whether leave should be granted for the re-amendments. 

C.  THE GROUNDS OF JUDICIAL REVIEW

33.  The applicant raises a number of grounds of judicial review challenging the Decisions.

34.  In this respect, it is noted that it has been said by the Court of Appeal in Kwan Kong Co Ltd v Town Planning Board [1996] 2 HKLRD 363 at 369I - J (per Litton VP, as he then was) that once the CEIC has approved a draft OZP submitted by the TPB, the TPB decision on the draft OZP has been superseded by the CEIC decision, and the draft OZP ceased to have any force and effect.  In other words, it may be said that no useful purposes would be served by seeking to challenge the TPB Decision in the present case as that decision concerns only the Draft OZPs, which no longer has any force and effect now, as the Draft OZPs have already been approved by the CEIC.

35.  However, the applicant’s grounds raised in challenging the CEIC Decision are predominantly premised on the contentions (which will be elaborated below) that the CEIC Decision is unlawful by reasons of the legal errors or wrongs that are said to have tainted the TPB Decision because:

(1) The same errors and wrongs that tainted the TPB Decision had rendered the submissions of the Draft OZPs to the CEIC an unlawful one, as a result of which the CEIC could not have lawfully considered them.

(2) The CEIC Decision by itself is tainted or permeated with the same public law errors or wrongs as there is no evidence to show that he had corrected those errors in his own independent decision making process, in particular when the CEIC Decision is not supported by any reasons of his own.

36.  In the premises, I think it is still most convenient and appropriate for me to first consider the grounds raised in this judicial review contending that the TPB Decision is unlawful.

37.  I would deal with them in turns.

C1.  The TPB Decision

C1.1  The TPB failed to carry out its own statutory task and the Tameside duty in considering the size and location of the V zones

38.  As mentioned above, the stated planning intention for the V zone is designated areas of land considered suitable for village expansion.  Further, the land so zoned is intended for development of Small Houses by indigenous villagers for their needs.

39.  Further, the 2010 Policy also states specifically that it is a matter of policy that the enclaves (which are not to be included as country parks) should be eventually subject to conservation protection through OZPs which should strike a balance between conservation and social development needs in determining their proper use.

40.  It is common ground that the representors, including the applicant, had made extensive representations in the Representations and the Further Representations before the TPB raising various issues questioning whether, given the planning intention for conservation and meeting development needs, the proposed designation of the V zones and the related GB and AGR zones in the draft OZPs were (a) suitable in light of various adverse environmental and ecological effects that could be caused to the areas and their surrounding habitat; and (b) were validly based on genuine needs of indigenous villagers for Small House Development.

41.  Mr Kat SC (together with Mr Remedios) for the applicant submit that in carrying out its duties under sections 3 and 6 of the TPO,[8] the TPB in considering the Draft OZPs and in conducting the public hearings must discharge its statutory duty of inquiries in familiarizing and dealing with these issues raised in the representations, and must plan in accordance with its own stated planning intention.  Leading counsel also submits that the TPB is similarly under the Tameside duty to do so.

42.  It is the applicant’s case that the TPB failed to make proper inquiry under each of those issues raised in the representations and determine them accordingly in upholding the Draft OZPs and making the TPB Decision.  Hence, the TPB had failed its statutory and Tameside duties to make proper inquiry.

43.  Further, in light of its failure to properly inquire into and determine these issues, the TPB in deciding to adopt the Draft OZPs and submit them to CEIC for approval acted inconsistently or contrary to its own planning intention as stated in the Explanatory Statements and Notes relevant to each of the draft plans.

44.  These contentions require me to look at each of the specific complaints individually.  This is what I do now.

C1.1.1 The Draft OZP was not based on proven genuine need of indigenous villagers for Small House development

45.  It is not disputed that the TPB sets out its planning intention in the relevant Explanatory Statement attached to the relevant Draft OZP.  For example, in relation to the draft OZP for Hoi Ha, the general planning intention is set out at paragraphs 8.1 and 8.2 as follows:

“8. GENERAL PLANNING INTENTION

8.1 The general planning intention for the Area is to conserve its natural landscape and conservation value, to protect its natural and rural character, its cultural heritage, and to make provision for future Small House development for the indigenous village of Hoi Ha.

8.2   In the designation of various zones for the Area, considerations have been given to protect the ecological and landscape significance of the Area, which includes the Hoi Ha Fung Shui Woodland that forms the wider natural system of SKW Country Park and HHW Marine Park.  Considerations have also been given to delineate the area for future Small House development.”

46.  Similar general planning intention is also set out at the Explanatory Statement for the approved Draft OZP for Pak Lap.

47.  There was no general planning intention for village expansion by further Small House development at So Lo Pun.  Instead, as stated at paragraphs 8.1 and 8.2 of its Explanatory Statement, the general planning intention is “to protect its high conservation and landscape value which complements the overall naturalness and the landscape beauty of the surrounding Plover Cove Country Park” and “to consolidate village so as to avoid undesirable disturbances to the natural environment and overtaxing the limited infrastructure in the Area”.

48.  At the same time, the specific planning intention specific to the V zoning has also been set out at the relevant Notes to the approved Draft OZP (the Notes forming part of the plan) for all three enclaves as follows:

“Planning Intention

The planning intention of this zone is to designate both existing recognized villages and areas of land considered suitable for village expansion.  Land within this zone is primarily intended for development of Small Houses by indigenous villagers.  It is also intended to concentrate village type development within this zone for a more orderly development pattern, efficient use of land and provision of infrastructures and services.  Selected commercial and community uses serving the needs of the villagers and in support of the village development are always permitted on the ground floor of a New Territories Exempted House.  Other commercial, community and recreational uses may be permitted on application to the Town Planning Board.”

49.  Moreover, the 2010 Policy also focuses on imposing planning control for country park enclaves “to meet conservation and social development needs”.

50.  The applicant submits all the above show that the planning intention for any V zoning of the three enclaves is based on meeting the needs of the indigenous villages to build and develop Small Houses in the existing village.  Needs of the indigenous villages must mean justified genuine needs.

51.  On the other hand, the PlanD has only based on the 10-year forecast figures provided by the respective village representatives on the potential number of male descendants who might apply for building Small Houses in the existing villages.  There is no dispute that these figures are not verified or verifiable, and are based on looking at the relevant genealogies relating to the villages.

52.  Under the Draft OZPs’ V zoning for the three enclaves, the TPB planned for an increase in the size of the village population at Hoi Ha from 100 to 430 (an increase of some 30 existing houses to 40), at So Lo Pun from 0 to 460 people in 68 new houses, and at Pak Lap from under 50 to 120 people in each case “mainly attributable to village expansion”.

53.  The representors had however emphasized in the Further Representations to the TPB that these figures were highly speculative and could not prove or show the genuine needs of the indigenous villagers.  This was particularly so when the number of past or pending existing Small House applications for these areas in the past had been very small or nil.[9]

54.  Moreover, the representors also submitted that the demand figures should and could not be treated as proof of the genuine needs of the indigenous villagers for Small Houses.  They said this was so because:

(1) As a matter of law,[10] the only indigenous villagers with any “rights” to build a Small House in each of the enclaves were those whose applications which had been approved and granted under the Small House Policy.[11]  The evidence before the TPB was that those numbers were very small indeed (see paragraph 53 above).[12]

(2) As a matter of fact, most of the land proposed to be V zone was in fact owned by the developers but not any villagers; and there had been abuses of the Small House Policy in the past whereby Small Houses were built by property developers for sale.  Hence, the bulk of the development of the Small Houses in these zoned areas was not to be “by indigenous villagers” or to provide Small House for its indigenous villagers or their needs, as the TPB intended, but by development companies.[13]

55.  There is no dispute that the TPB was fully aware of these representations.

56.  In its deliberation, the members agreed to adopt an “incremental approach” in designating the V zones after taking into account the village environs, local topography, settlement pattern, Small House demand forecast, areas of ecological importance, site-specific characteristics of individual country park enclaves and other relevant considerations.  See paragraph 119 of the Minutes of the TPB’s Meeting held on 21 November 2014 (“the Minutes”).

57.  In its reasons for not upholding the representors’ objection to the proposed V zoning in the Draft OZPs, it explains relevantly in the Minutes as follows:

(1)  For Hoi Ha (at paragraph 151):

“Designation of ‘V’ and ‘GB(1)’ zones
(F3 to F5, F7 to F20, F33 to F35, F38 to F45 and F47)

(a) in order to minimise the adverse impacts on the natural environment, an incremental approach for designating the ‘Village Type Development’ (‘V’) zone for Small House development should be adopted to confine Small House developments at suitable locations within the village. Based on it and in view of the lack of infrastructural facilities in Hoi Ha and the need to designate ‘V’ zone at suitable locations to meet Small House demand of indigenous villagers, the rezoning of the area to the west of the existing village cluster from ‘V’ and ‘Green Belt’ (‘GB’) to ‘GB(1)’ is appropriate;

…

(d) taking into account all the relevant planning considerations, expert advice from concerned government departments, and views from relevant stakeholders, the draft Hoi Ha OZP incorporating the proposed amendments could strike a balance between enhancing nature conservation of the Hoi ha area and meeting the needs of villagers for Small House development;” (emphasis added)

(2) For So Lo Pun (at paragraph 181):

“Designation of ‘V’ and ‘GB’ Zones
(Fl to F7, F8 to F14 and F19 to F21)

(a) in order to minimise the adverse impacts on the natural environment, an incremental approach for designating the ‘Village Type Development’ (‘V’) zone for Small House development should be adopted to confine Small House developments at suitable locations of the village. Based on it and in view of the existing zero population, the lack of infrastructural facilities in So Lo Pun, the need to designate ‘V’ zone at suitable locations to meet Small House demand of indigenous villagers, the villagers’ strong aspiration to rehabilitate agriculture and the current conditions of the land concerned, the rezoning of two pieces of land at the north‑eastern end and south-western end of the ‘V’ zone to ‘Agriculture’ (‘AGR’) and ‘Green Belt’ (‘GB’) respectively is appropriate;

…

(d) taking into account all the relevant planning considerations, expert advice from concerned government departments and views from relevant stakeholders, the draft So Lo Pun OZP incorporating the proposed amendments could strike a balance between enhancing nature conservation of the So Lo Pun area and meeting the needs of villagers for Small House development;

…

Landowners’ Interests and Rights
(F8, F9, F11, F14, F16 to F19 and F21)

(g) all the building lots are covered by ‘V’ zone, in which ‘House (New Territories Exempted House only)’ is always permitted. As for agricultural lots, ‘Agricultural Use’ in general is always permitted on land within the boundary of the draft OZP. Therefore, there is no deprivation of landowners’ rights in using their land;

(h) the indigenous villagers’ right to build Small Houses should be duly respected and there is a need to designate ‘V’ zone at suitable locations to meet Small House demand of indigenous villagers in So Lo Pun;

(i) according to legal advice, the imposition of planning controls in the amended draft OZP would not be inconsistent with Articles 6, 40 and 105 of the Basic Law;

Private Land should be zoned for Village Type Development or Agricultural Use and/or Government Land should be zoned as ‘CA’ or ‘GB’

(F8 to F9, F11 to F13 and F15 to F18, F20 and F21)

(i) designation of the land use zones on the draft OZP including ‘V’ and ‘GB’ is considered appropriate taking into account all the relevant planning considerations. Landownership should not be the only factor for formulating the land use zones. Furthermore, ‘Agricultural Use’ in general is always permitted on land within the boundary of the draft OZP; and” (emphasis added)

(3) For Pak Lap (at paragraph 194):

“Designation of ‘V’ zone (Fl to Fl 1)

(a) in order to minimise the adverse impacts on the natural environment, an incremental approach for designating the ‘Village Type Development’ (‘V’) zone for Small House development should be adopted to confine Small House developments at suitable locations within the village. Based on it and in view of the existing low population, the lack of infrastructural facilities in Pak Lap and the need to designate ‘V’ zone at suitable locations to meet Small House demand of indigenous villagers, the rezoning of the piece of land at the central part of Pak Lap from ‘V’ to ‘Agriculture’ (‘AGR’) is appropriate;

…

(c) taking into account all the relevant planning considerations, expert advice from concerned government departments and views from relevant stakeholders, the draft Pak Lap OZP incorporating the proposed Amendment Item A could strike a balance between enhancing nature conservation of the Pak Lap area and meeting the needs of villagers for Small House development;” (emphasis added)

58.  In light of the above deliberations and reasons, Mr Kat submits that this part of the TPB decision is tainted with the following errors.

59.  First, the TPB failed to make proper inquiry into and determine the very issue raised by the representations: in that there were no proven genuine needs of the indigenous villagers for Small Houses in the existing villages to support the proposed sizes of the V zones.

60.  In particular, Mr Kat says from the deliberations and reasons, it can be seen that:

(1) The TPB did not take into account the representations that no reliance could be placed on the unverifiable “forecasts” or “estimates” of Small House “demand”.  The TPB also did not take into account at all the evidence and representations on the very small number of approved or pending Small House applications (see paragraph 53 above) when evaluating and quantifying Small House demand in order to delineate the V zones at Hoi Ha, So Lo Pun and Pak Lap.

(2) The TPB did not inquire into, investigate or find to the contrary the evidence in the representations that the bulk of the areas proposed to be zoned V were owned by developers and hence that the bulk of any Small House development in all three of the OZP areas was not to be “by indigenous villagers” or to provide Small House for its indigenous villagers or their needs, as the TPB intended, but by development companies.  The TPB also therefore failed to inquire into this matter at all.

(3) In considering the amount of land required to be zoned V to meet a “demand” for Small House development to the TPB did not direct itself in accordance with law (as summarised at paragraph 54(1) above) and misdirected itself in its construction of the 2010 Policy[14] as conferring “rights” on villagers whose eligibility had not been determined.  The TPB also wrongly refused to consider the decision in Thomas Lai, supra, on the point.[15]  It therefore erred in law, and consequentially erred in its assessment of “demand” and in the numbers of Small Houses for which it sought to plan.[16]

61.  In the premises, it is contended that not only had the TPB failed to address the matters (as summarised above) raised concerning the unverified and unverifiable (and thus unjustified) demands for building Small Houses by indigenous villagers to support the proposed size of the “V’ zoning, it had also ignored the representors’ emphasis on the fundamental difference between “genuine needs” and “demands”.

62.  Quite to the contrary (says Mr Kat), the TPB had in those reasons appeared to have treated “demands” (which was based simply on those forecast figures) to be the same as “needs” (see for example paragraphs 151(a) and (d), 181(a), (d), (h) and 194(a) and (c) of the Minutes quoted above).  Moreover, the TPB wrongly regarded (in contrast to the representors’ submissions on the law, which has not been said to be incorrect) that the indigenous villagers had the “right” to build Small Houses (see paragraph 181(h) of the Minutes quoted above).  The TPB had also totally failed to address the representations on the developer’s principal ownership of the land in its reasons for Hoi Ha and Pak Lap and only paid a lip-service to this matter for the reason for So Lo Pun (at paragraph 181(i) as quoted above) without actually dealing with it.

63.  Second, Mr Kat further says, in failing to address and determine this core issue on needs, the TPB’s planning decision regarding the V zoning is made not in accordance with the planning intention which is to strike a balance in the planning between meeting the needs of the indigenous villagers and conservation.

64.  I agree with Mr Kat that the TPB had failed to properly inquire into the matters raised by the above representations as to whether the proposed V zoning was based on the genuine needs of the indigenous villagers.

65.  The question of the needs of the indigenous villagers for Small House development relates to one of the very bases upon which the respective sizes of the V zones were planned.  It is also related to the expressed planning intention (both generally and specifically under the V zoning) to meet the needs of the indigenous villagers to further expand the existing villages.  In the premises, I accept that the issue concerning whether there are established “needs” of the indigenous villagers to expand the existing villages in the three enclaves to justify the V zones as planned is a valid and proper issue that the TPB in discharge of its statutory duty and Tameside duty should inquire into and properly deal with.

66.  The representors had made extensive submissions under this issue as summarized above.  In this respect, having looked at the relevant parts of the deliberations and reasons as also summarized and quoted above, I am driven to conclude that it has not been shown that the TPB had properly addressed this issue by dealing with those representations.  In not upholding those objections, if they had found those submissions and representations to be invalid or not supported, there is nothing in the deliberation and reasons to explain why so.  If they had in fact accepted those representations, there is also nothing in the deliberation and reasons to explain why then the TPB had still decided not to further scale down the size of the V zones in the Draft OZPs after hearing the Further Representations. There is therefore nothing in the evidence to demonstrate that the TPB had properly inquired into those representations and determined them.  The TPB had therefore failed to properly discharge its duty of inquiry in making the relevant planning decision.

67.  Mr Wong SC (together with Mr Abraham Chan) however submits that the TPB was clearly fully aware of the contentions and submissions under this issue.  Mr Wong then emphasizes it must be noted that planning decision is in all aspects a multi-faceted balancing broad-brush judgment call to be made by the TPB.  It is not an exact science.  Hence, even in properly discharging its duty of inquiry, it is not realistic and practical to require the TPB to explain in detail its views on every aspects of the representations as long as it can be demonstrated that the TPB had taken those representations into account in its overall multi-faceted planning decision in a broad brush manner.  This is particularly so as it is trite that the court in judicial review is not to engage in a merits review of the TPB’s decision and to substitute its own view with that of the TPB.

68.  Mr Wong further submits that in the present case, conscious of these representations on the unverified nature of the demands figures and the other aspects of the concerns raised by the representors, the TPB did not simply rely on and adopt those forecast figures as the sole basis to plan.  Instead it had only used those figures in a broad brush manner for the purpose of considering the plans and made a judgment call on what should be the appropriate size of the V zones after taking into account all relevant factors (including the representations).

69.  This is demonstrated (says Mr Wong) by the facts that (a) the TPB had decided to adopt an “incremental approach” in fixing the sizes of the V zones; and (b) in adopting that approach, the TPB had proposed to amend the preliminary plans to scale down significantly the originally proposed V zones (which were then based entirely on those demand forecast figures) after the First Rounds of Hearing.  These show that the TPB had properly taken those representations into account in making the broad brush planning decision.  It had therefore properly engaged itself with the issue and those representations and decided that on a multi-faceted consideration the present V zones strike the right balance for meeting the development needs of the indigenous villagers.  It has properly carried out its duty of inquiry.

70.  With respect, I am not persuaded by Mr Wong’s submissions.

71.  It is now well established that the Tameside duty of inquiry requires the TPB to ask itself the right question and take reasonable steps to acquaint itself with the relevant information to enable it to answer it correctly.  However, it is generally for the TPB in discharge of such duty to decide whether sufficient inquiries have already been made, subject only to a Wednesbury unreasonableness challenge, bearing in mind of the TPB’s consultative role and the statutory scheme of the TPO in assessing that question.  See: Hysan Development Co Ltd v Town Planning Board (CACV 232 & 233/2012, 13 November 2014, Lam VP, Chu JA and Au J) (“Hysan (CA)”) at paragraphs 90 - 95.

72.  In the present context, the core question raised by the representors’ extensive representations as summarised above is whether, by way of the forecast figures, there were proven genuine needs of the indigenous villagers to build Small Houses within the existing villages in these enclaves.

73.  In the premises, in proper discharge of the duty of inquiry, the TPB should ask itself the above question and properly answer it. However, as seen from the reasons above, the TPB had not explained even in a broad brush manner on what basis it had treated the forecast demand figures to provide support for showing the needs to support the V zoning.  The TPB had not in any way explained whether and why it had accepted or rejected the validity of those (or any of those) extensive representations made under this question and how they had affected its view on planning the size of the V zones.  In light of the lack of any explanations, the court cannot be satisfied that the TPB had asked itself the right question in relation to the relevant contentions raised in the representations, and answered it properly.

74.  I therefore accept the applicant’s submissions that in making the TPB Decision, the TPB had failed to carry out its duty of inquiry in relation to this issue.

75.  However, the failure to properly inquire into this issue does not mean as a matter of principle that the TPB Decision (insofar as V zoning is concerned) is not made in accordance with the planning intention. It is clear from the deliberation and reasons that the TPB did seek to plan in accordance with what it regarded as the needs of the indigenous villagers.[17]  However, it is only that in seeking to do so, as I have concluded above, the TPB had failed to make proper inquiry into the question raised by representations concerning needs.

C1.1.2 The failure to make proper inquiry as to the question of the “suitability” of the V zones and GB(1) zones as planned in light of the adverse environmental impact either singly or cumulatively on the sites themselves and the surrounding area

76.  Before the TPB, the representors had made extensive presentations (together with expert and scientific evidence by geologist, ecologist, marine biologist and hydrologist) of the following concerns on various adverse environmental impact on the surrounding nature and ecosystem in relation to the V zones (together with the permitted expansion of Small Houses therein) as planned in the Draft OZPs:

(1) The land in question in all three enclaves is not suitable for the further development of Small Houses, which would be served by septic tanks and soakaway system (“STS system”) for sewage (that being the only method of disposal contemplated on all sides for Small House developments) and other man-made effluent which would have an adverse impact on the surrounding environment by polluting the groundwater and streams and the adjoining coastline ecology in all three enclaves, including the sensitive Hoi Ha coastal zone, HHW Marine Park, and the beach at Pak Lap.

(2) The licensing of STS systems in accordance with the Water Pollution Control Ordinance (Cap 358) (“the WPCO”) and its Technical Memorandum (Cap 358AK) and the Environmental Protection Department (“EPD”)’s Practice Note for Professional Person (“ProPECC PN”) standards for installation and maintenance would not prevent such impacts, given the geology of these areas and their established propensity to flooding, and given the inadequate enforcement of those standards and the WPCO.

77.  The TPB had also heard evidence that the cumulative effect of the permitted amount of further village type development in each draft amended plan would cause adverse impacts on the enclaves themselves and on the landscape, natural character and environment of all the Parks in which they stand and on their infrastructure.

78.  It is not at issue that there was no study or “holistic” evaluation of these effects before the TPB.[18]

79.  In response, it is the evidence of the Lands Department (“the LandsD”) and the EPD before the TPB that under the Small House grant application system administered by the LandsD, an applicant for Small House needs to engage an Authorized Person to conduct percolation test and submit the test results to the LandsD (who in turn would pass it to the EPD for vetting) to demonstrate that the application site is suitable for installation of STS system pit.  A number of site-specific conditions would be taken into account including the percolation test results, proximity of rivers and streams, depth of water table, topography and flooding risks.  The design and construction of the on‑site STS system would need to comply with the relevant standards and regulations including that provided in the Hong Kong Planning Standards and Guidelines (“HKPSG”) and the ProPECC PN.  If the applicant fails to demonstrate that the site is suitable for installation of the STS system, the application for Small House grant will be rejected unless a suitable site for the STS system or other feasible sewage treatment system can be identified.

80.  In relation to the concerns raised in the Further Representations, the TPB dealt with them in its reasons as follows:

(1) For Hoi Hai (paragraph 151 of the Minutes):

“Adverse impacts of Small House development on surrounding environment (F4, F5, F7 to F20, F38 to F41, F44 and F48)

(e) the Lands Department, when processing Small House grant applications, will consult concerned government departments to ensure that all relevant departments would have an adequate opportunity to review and comment on the applications. There is sufficient control in the current administrative system to ensure that individual Small House development within the ‘V’ zone would not entail unacceptable impacts on the surrounding environment;”

(2) For So Lo Pun (paragraph 181 of the Minutes):

“Adverse Impacts of Small House Development on Surrounding Environment (F2 to F7)

(e) the Lands Department, when processing Small House grant applications, will consult concerned government departments to ensure that all relevant departments would have an adequate opportunity to review and comment on the applications. There is sufficient control in the current administrative system to ensure that individual Small House development within the ‘V’ zone would not entail unacceptable impacts on the surrounding environment;”

(3) For Pak Lap (paragraph 194 of the Minutes):

“Adverse Impacts of Small House Development on Surrounding Environment (F2 to F7)

(d) the Lands Department, when processing Small House grant applications, will consult concerned government departments to ensure that all relevant departments would have an adequate opportunity to review and comment on the applications. There is sufficient control in the current administrative system to ensure that individual Small House development within the ‘V’ zone would not entail unacceptable impacts on the surrounding environment;”

81.  The TPB was therefore saying that it could suitably zone these areas for village development as in the plans, since (as the evidence of the LandsD and EPD showed) each application for Small House with the LandsD when made would only be approved if it could satisfy the EPD that it could comply with the STS system installation licensing regime and would not have unacceptable adverse impact on the natural environment.  The said administrative Small House licensing system thus provided a sufficient control to ensure that the development would not cause unacceptable environmental impacts.

82.  Mr Kat submits that the TPB in so deciding was abdicating its duty to make proper inquiry into the question of “suitability” of the land to be so zoned, and to plan in accordance with the planning intention that the land zone V has to be “suitable” for such development.  In particular, Mr Kat says the TPB even failed entirely to address the question on the cumulative impact of the environment as presented by the representors.

83.  In support of his contentions, Mr Kat says for example, there was a difference in the opinions between the representors’ experts evidence and that of the EPD in relation to whether an increase in the number of Small House at Hoi Ha (on top of the exiting 40 Small Houses) would result in significant adverse impacts on the quality of the water body of the marine park.  It was also the EPD officer’s evidence that given an increase on the population in So Lo Pun and Pak Lap “would be contained within acceptable limits”.

84.  In light of this conflict of evidence, in proper discharge of its duty of inquiry, the TPB had to resolve the difference by examining the assumptions of the EPD and explain why (if that was the case) it preferred the EPD’s evidence to the representors experts’.[19]  The TPB however had, in breach of its duty, failed to do so.

85.  Further, Mr Kat draws the court’s attention to the fact that it was the representations that experiences showed enforcement of the WPCO and EPD’s licence conditions was non-existent, or at best, very poor.  Even the EPD’s own evidence was that there was “difficulty” in enforcement, and that “not all individual case problems are satisfactorily dealt with”.  In light of this enforcement concerns, the TPB could not have properly and logically regarded the Small House application system as a sufficient control to ensure that the development would not cause unacceptable environmental impacts.  This also shows that the TPB had not properly and sufficiently inquired into the issues raised.

86.  With respect, I am unable to agree.

87.  The duty of inquiry must be considered in the proper context that the TPB is tasked to make broad planning decisions.  The “suitability” issue is thus whether the land and areas concerned is “suitable” for planning purposes for village development, taking into account the intention to strike a balance between that development needs and conserving the general natural environment of the enclaves.

88.  The TPB was obviously conscious of the issue (as raised by the representors’ submissions and presentations) that if the areas concerned were so zoned for village house development with the proposed permitted number of houses and population, there would be significant pollution, flooding and adverse impact on the areas themselves, the surrounding natural habitat, and (insofar as Hoi Ha is concerned) the HHW Marine Park, resulted from the STS system installations and effluents effect of wastes discharge.  However, it was satisfied that, for planning purposes, the administrative licensing system for Small House in providing control over septic tanks installation in Small House development would properly address the adverse environmental impact (specifically or in cumulatively) raised by the representors.[20]

89.  Thus, the TPB had acquainted itself with the question before it, and determined them by accepting the LandsD’s position.  The sufficiency of the inquiry so made and the decision itself in my view are also ones which were clearly reasonably open to the TPB to make:

(1) The administrative Small House grant system does provide an alternative means to advert the pollution and flooding concerns that could be caused by “overcrowded” STS system installations in light of the soil conditions and river and stream locations as raised by the representors.  Even if the representors’ contentions are correct and valid, at the implementation stage of seeking to build the Small Houses in the numbers and extent as proposed to be permitted in the V zones, those applications (or some of those applications) would not be granted by the LandsD as they would not have satisfied the requirement.  The concerns raised were therefore already addressed by the TPB at this planning stage.[21] This has also been made plain expressly in the relevant Explanatory Statements.[22]

(2) Further, it would be unrealistic and unreasonable to require (as requested by some of the representors) the TPB (a consultative body to make broad-brush planning recommendations) to carry out its own percolation tests at the plan-making state to assess and ascertain the suitability of soil condition of individual sites within the V zones for erecting the STS system, hence the Small House.[23]

90.  Mr Kat’s reliance on Hysan and Popular Star to support his complaint of the TPB’s failure to resolve the difference between expert opinions and to explain why it had preferred the EPD’s evidence is in my view misplaced.

91.  On the facts of each of those two cases, the conflict of the subject “expert” evidence or assumptions made had to be resolved by the relevant decision making body before it could properly determine the relevant issue raised therein.  In the present case, the TPB accepted that the Small House application scheme could validly and sufficient address the adverse environmental impacts caused by the STS system installation as identified by the representors.  It was therefore not necessary for the TPB to inquire into and resolve the expert evidence on these matters for the purpose of making the planning decision.

92.  Mr Kat’s reference to the evidence on difficult enforcement is with respect similarly misplaced.  Those difficulties were related to the lack of or the difficulty of enforcement for breaches of the licensing conditions and the regulations provided under the WPCO.  This is different from the Small House application system consideration where, if the applicant could not satisfy the LandsD and EPD that the STS system to be installed there would not cause unacceptable adverse environmental impact, the application would not be approved, and no STS system would then be installed. In this respect, it is pertinent to note that the TPB had specifically asked for the Director of Lands’ reassurance that her department would liaise vigilantly with all relevant government departments including the EPD to vet the Small House applications (see footnote 21 above).

93.  In the premises, there is no breach of its duty of inquiry by the TPB under these matters in making the TPB Decision.

94.  For the same reason, there is no abdication of its duty to make inquiry or to plan in accordance with the planning intention.

C1.1.3 Deficient maps and plans[24]

95.  This complaint relates only to the Hoi Ha Draft OZP.

96.  It is said that the maps and plans used by the TPB to decide upon the Draft OZP for Hoi Ha were shown by the representors at the hearing to be inaccurate in a number of material and important aspects.

97.  There were extensive oral representations in this respect made by Mr David Newbury,[25] Mrs Nicola Newbery,[26] and Professor Gordon Maxwell,[27] which were aided by PowerPoint presentations.  The presentations sought to demonstrate to the TPB that:

(1) The shape and nature of the coastline to the front (north) of Hoi Ha village was not as depicted in the maps and plans before the TPB and in the TPB papers.

(2) The physical location of the sea, when the tide comes in, and the beach and hence the intertidal area of Hoi Ha were, in actual fact, much further inland than shown on the maps and plans used by the PlanD and the TPB;

(3) Streams running across private land in the river valley area of Hoi Ha were not shown on the maps.

98.  It is the representors’ position that these material mapping inaccuracies and deficiencies would affect the TPB’s consideration of:

(1) The amount and the impact of run-off and man-made effluent due to SH development in the V zone, into the groundwater, stream(s) and beach of Hoi Ha and the HHW Marine Park, and the application of the distance provisions of the WPCO, its Technical Memorandum and ProPECC PN in respect of those pollutants.

(2) The TPB’s intention to zone a CPA area as an effective buffer between the proposed V zone in which that effluent would be produced and the waters of Hoi Ha Wan.

99.  Mr Kat submits that the accuracy of the maps and plans must be important for and relevant to the TPB in considering the draft OZPs for the following reasons.

100.  First, in order to plan, the planner must possess accurate information in relation to the area the subject of the exercise.  Planning and zoning must be done in accordance with reality and the facts of a site’s topography.  Moreover, the necessity of accurate topographical information was heightened in the present case by the fact that HHW Marine Park is a gazetted Marine Park, the conservation of which is a primary statutory duty.  Hence, accurate maps and plans must be required by:

(1) The TPB’s own stated planning intention for the CPA zoning in that Notes and the Explanatory Statement to the draft Hoi Ha OZP, namely:

“This zoning is intended to conserve, protect and retain the natural coastlines and the sensitive coastal natural environment, including attractive geological features, physical landform or area of high landscape, scenic or ecological value, with a minimum of built development. It may also cover areas which serve as natural protection areas sheltering nearby developments against the effects of coastal erosion.”

and

“‘CPA’ zone is designated for the coastal area abutting HHW Marine Park. It consists of sandy beaches, rock features, estuarine, mangroves, mangrove-associated plants, backshore vegetation, shrubs and vegetated slopes. The ‘CPA’ zone serves as a buffer between the village area and HHW Marine Park, protecting the marine park from nearby developments.”[28] (emphasis added)

(2) Taking into account the restrictions imposed by the WPCO and its Technical Memorandum, in particular their distance restrictions for effluent.[29]

(3) Taking into account the EPD licensing regime under section 12 of the WPCO which imposes distance restrictions from groundwater, streams, beaches and water bodies for STS system sewage disposal (see Note 4 of Appendix D of ProPECC PN 5/93 relied upon by the TPB).  If the EPD approval and licences are to be granted under section 12 of the WPCO, as contemplated in the reasons resolved upon by the TPB, those distances are relevant.

(4) Chapter 9 of the HKPSG.[30]

101.  Second, as the TPB recognised, the threat to the HHW Marine Park was (and remains) from Small House STS system and other man-made discharges from the village area zoned to the south of the coastline.  The protection of the delicate coastal ecology of the HHW Marine Park from effluent pollution caused by village developments was therefore an objective of paramount importance to the TPB and the representors.

102.  Mr Kat therefore emphasizes that there was clearly an issue before the TPB as to the sufficient width of the CPA buffer zone at Hoi Ha and as to what the TPB should intended for the width of that buffer zone.

103.  In this respect, the PlanD had described the width of the intended CPA zone to the TPB as being between 25 and 35m,[31] and then between 25 and 40m.[32]  However, the oral, visual and photographic evidence put before the TPB by the representors demonstrated that the sea at Hoi Ha Wan, the beach and the coastline are in fact further south and nearer the village than appears on the maps and plans put before the TPB by the PlanD and as shown on the draft amended Hoi Ha OZP put before the TPB for adoption.[33]  Then “buffer zone” shown on the draft plan would in turn be considerably narrower and the protection to HHW Marine Park and its beach correspondingly reduced.

104.  In the premises, having heard the representations of Mr David Newbery, Mrs Nicola Newbery and Dr Gordon Maxwell, Mr Kat submits it was incumbent upon the TPB to:

(1) Make all necessary inquiries into this issue and the accuracy of the maps and plans.

(2) Grapple with the material evidence and carry out a proper and thorough analysis, resolving the issue as to the width of its intended buffer zone and satisfying itself as to the width provided in the plan.

(3) Not to adopt or submit the draft Amended Hoi Ha OZP until it had completed the tasks set out in (1) and (2) above.

105.  In relation to the TPB’s disposal of the representations based on the inaccuracy and deficiencies of the maps and plans, it must be noted that similar representations based on the inaccurate mapping and information were made in the First Rounds of Hearing leading to the decision of the TPB on 4 June 2014 to amend the then draft OZPs.[34]  The TPB was aware of these presentations in the deliberation.

106.  The TPB however did not uphold these representations for the reasons stated at paragraphs 26(h) and (j) of the minutes of meeting on 4 June 2014 as follows:

“Inadequate and misleading information

(h) the boundary of HHW Marine Park was drawn making reference to the high water mark and the gazetted boundary of the HHW Marine Park was approved under the Marine Parks Ordinance in 1996. The northern boundary of the draft Hoi ha OZP coincides with the HHW Marine Park boundary leaving no gap in between;

(j) in the drawing up of the draft Hoi Ha OZP… and its land use proposals, various factors including conservation and natural landscape, ecological significance, landscape character, transportation, infrastructure and utility services have been taken into account. Views and comments have also been sought from stakeholders and relevant government departments. The draft Hoi Ha OZP has not been prepared on the basis of the survey map which is just aa map base of the plan only;

Designation of ‘Comprehensive Development Area’ (‘CDA’)

(j) the current proposed zonings for the Hoi Ha area have been drawn up to provide clear planning intention and protection for different localities in accordance with their ecological and landscape significance, and suitability for Small House development. Designation of the Hoi Ha area as ‘CDA’ so as to enforce planning restrictions or protect the environment is not necessary;” (emphasis added)

107.  Hence, no amendments were proposed to the then draft OZP for Hoi Ha in the 4 June 2014 decision in this respect.

108.  Similar further representations were made again at the hearing on 21 November 2014.  However, that hearing was only concerned the proposed amendments to the draft OZP.  The TPB therefore noted but treated these representations as irrelevant as they did not relate to any of the amendments in the draft amended plan for Hoi Ha proposed on 4 June 2014.  It therefore did not make any decision in relation to these representations.  See paragraphs 26(l) and 151(g) of the Minutes.

109.  Mr Kat now points out that neither the reasons resolved upon by the TPB nor the approved plans disclose any inquiry into or resolution of this issue.  Nor do they suggest or disclose that the TPB had given proper, adequate or fair consideration to the issue.

110.  Mr Kat therefore submits that this part of the TPB Decision is also unlawful since:

(1) the TPB had breached its duty of inquiry to inquire into or give proper, adequate or fair consideration to the representations as to defective maps and plans; and

(2) it was in any event irrational to submit the Draft OZP of Hoi Ha to the CEIC for approval, as the draft plan was based on maps and plans which were or might have been inaccurate in relation to material aspects of the proposed zoning.

111.  Mr Wong for the TPB however contends otherwise as follows.

112.  The court will accord “a great deal of respect and latitude” to the decision-maker as regards its methodology, key assumptions and ultimate preferences for a particular expert view: see Popular Signs Ltd, supra, particularly at paragraphs 34 - 37.

113.  Where factual error is suggested (directly or indirectly), the legal position is that, for the court to properly intervene: (a) there must be shown a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; (b) the fact must have been “established” in the sense that it was uncontentious and objectively verifiable i.e. plainly wrong or established and unassailable; (d) the applicant must not have been responsible for the mistake; (e) the mistake must have played a material (not necessarily decisive) part in the decision-maker’s reasoning.  Ultimately the touchstone is that of substantive unfairness as a result of the error.  See E v Secretary of State for the Home Department [2004] QB 1044 at paragraphs 61 - 67, per Carnwath LJ; Smart Gain Investment Limited v Chief Executive in Council (HCAL 12/2006, 6 November 2008, A Cheung J) at paragraphs 90 - 99.

114.  The applicant’s claims as to the inaccuracy and deficiency of the maps and boundaries used in the draft OZPs and her allegations of inadequacy of inquiry and consideration and irrationality in that regard are however untenable in the light of these legal principles:

(1) The applicant accepts that the relevant questions as to adequacy and accuracy were raised in the representation process[35].  So the question is simply whether the TPB, and ultimately the CEIC, could lawfully take a differing view on the available materials.

(2) The applicant’s technical and factual positions are flatly refuted, or otherwise place in proper context, by the points made in Ophelia Wong’s Affidavit at paragraphs 42 - 48, and by Chan Kin Fung’s Affirmation at paragraph 18.

(3) The TPB did take into account the two points raised by the applicant as summarized at paragraph 98 above.[36]

(4) In the premises, there is no proper basis for judicial intervention bearing in mind the wide discretionary margin of judgment due to both the TPB and the CEIC.

115.  In this respect, the evidence of Ophelia Wong at paragraphs 42 - 48 of her affidavit referred to by Mr Wong is as follows:

“42. Another contentious point is the width of the ‘CPA zone. The Applicant alleges that the narrowest point of the ‘CPA’ zone adjacent to Hoi Ha Village and the ‘V’ zone is around 9 metres. The Board’s intention was to provide for a buffer of a width of 25 to 35 metres. As such, the Board’s decision was inconsistent with its own intention and thus irrational.

43. I have re-read the Explanatory Statement of the Hoi Ha OZP [CKL-23]. In paragraph 9.6.2, it is stated that the ‘CPA’ zone is to ‘serve as a buffer between the village area and HHW Marine Park’. However, there is no reference to a buffer width of 25 to 35 metres. As to the width of the ‘CPA’ zone, I refer to an aerial photo (now produced and shown to me marked as Exhibit ‘WYSO-6’) showing the distance of the ‘V’ zone to the boundary of the HHW Marine Park (ie. The northernmost boundary of the ‘CPA’ zone which is in alignment with the boundary of the Marine Park) and the distance to the High Water Mark. The distance from the Marine Park (thus the width of the ‘CPA’ zone) ranges from about 25 to 40 metres and the width from the High Water Mark (thus the distance to the beach) ranges from about 18.6m to 31m (paragraphs 15 and 65 of minutes of 19 May 2014 and paragraph 20(e) of minutes of 4 June 2014 [CKL-22]). Further extension of the ‘CPA’ zone inland would encroach onto the existing village.

44. Contrary to the Applicant’s allegation, the narrowest point between the ‘V’ zone and the High Water Mark is 18.6 metres, not 9 metres as alleged (see the aerial photo at Exhibit [WYSO-6]. The reason for fixing the boundary of the ‘V’ zone at 18.6metres at this point is due to the presence of several building lots and an existing village house which has a building lot status under the lease. In order to recognize the existing building right, the ‘V’ zone boundary was purposely delineated to include the lots at this location. There are now produced and shown to me marked as Exhibit ‘WYSO-7’ a plan and a photo showing the lots in question. In any event, there is no requirement to maintain a buffer distance of 25 to 30 metres. The concern on the impact on the water quality of Hoi Ha Wan stems from the effluent from septic tanks. As explained in paragraph [38] above, location of septic tanks is controlled by the LandsD upon advice by EPD under ProPECC PN 5/93 in that a minimum clearance distance of 30 metres from the water body is required. In other words, a village house can be located at a distance less than 30 metres from the water body as long as its STS system can pass the percolation test and is sited at least 30 metres away from the water body.

45. The Applicant also accuses the Board of failing to further inquire into the maps referred to in the preparation of the draft OZPs. He alleges that the maps are inaccurate (shoreline and the boundary of Hoi Ha Wan Marine Park) and suggests that, since some streams and ponds are omitted, the requirements in the Notes of the OZPs for no diversion of streams and filling of ponds without planning permission cannot be enforced.

46. The reason why the boundary of the ‘CPA’ does not tally totally with that of the High Water Mark was explained to the Board at its meeting on 19 May 2014 (paragraphs 65 and 67 of minutes of 19 May 2014 [CKL-15]). This was because the boundary of the ‘CPA’ zone needed to be aligned with that of the HHW Marine Park so that there would be continuous statutory control from Hoi Ha to the HHW Marine Park. The boundary of the Marine Park was purposely drawn to include the beaches and sand dunes in Hoi Ha for better protection of the coastal ecology. The northern boundary of the draft Hoi Ha OZP coincided with the boundary of the Marine Park leaving no gap in between (paragraphs 20(b) and 26(h) of minutes of 4 June 2014 [CKL-15]). The revision to the planning scheme boundary of the Hoi Ha OZP was directed by the SDEV under the delegated authority of the CE under section 3(l)(a) of the TPO.

47. As to the accuracy of the survey base, I do not propose to argue whether the survey maps are completely accurate or not from a strict survey perspective, which is outside the purview of the Board. Suffice it to say that the survey map was more than adequate for the particular purposes of the Board, namely as no more than a map base and a general reference for the preparation of OZPs. The OZPs were not prepared based on the survey maps. There were many other materials that had been taken into account, including land use survey records, lot boundaries records, geological maps, aerial photos, and most important of all, site inspections by survey officers and planners in PlanD, as well as officers in the AFCD, the EPD and other departments.

48. Furthermore, planning control is not exercised based on the map base of the OZP.  It is the physical features and activities on the ground that matter, i.e. diversion of streams and filling of ponds that are under control, irrespective of whether the streams or ponds are shown on the map base of an OZP or not.  A map base is to facilitate locational references and is not used for enforcement purpose. As such, the Applicant’s allegation that no enforcement of the restriction can be anticipated if the streams and ponds are not marked on the OZP is unfounded.”

116.  The underlined parts of Ophelia Wong’s above evidence is objected to by Mr Kat, on the basis that these are post-justification reasons not discernible from the TPB’s reasons under these issues.

117.  Paragraph 18 of Chan Kin Fung’s Affirmation says as follows (footnote omitted):

“18. The Applicant alleges that there is inaccuracy in the boundary of Hoi Ha Wan (‘HHW’) Marine Park (paragraphs 47O and 85(1) of the Amended Form 86). The allegation is unfounded. On 6 May 2013, under the power delegated by the Chief Executive, the Secretary for Development directed the TPB, under section 3(1)(a) of the TPO, to revise the planning scheme boundary of the proposed OZP by excluding the areas of the DPA Plan lying within the HHW marine Park, which is protected under the MPO, so as to avoid duplication of controlling authorities (i.e., the Country and Marine Parks Authority under MPO and the Planning Authority under TPO). Hence, the northern boundary of the OZP coincides with the HHW Marine Park boundary, which was established in the gazetted map approved by the Chief Executive in Council under the MPO in 1996. The boundary of the HHW Marine Park was drawn by making reference to the high water mark but was not exactly following the high water mark. As the coverage of the HHW marine Park would take into account the ecological characteristics of the shoreline, the boundary of the HHW marine park was purposely drawn to include the beaches and sand dunes at Hoi Ha for better protection of the coastal ecology there. The TPB is well aware of such issue.”

118.  I agree with Mr Kat that, in rejecting these representations based on inaccurate mapping and information, the TPB had failed to make proper inquiry.  I will explain why.

119.  The TPB’s reasons set out in the 4 June 2014 Minutes (as quoted above) referred to the PlanD’s position (and apparently accepted by the TPB) that the survey maps (which were said to be inaccurate in depicting the coastline and in failing to identify the location of some streams and ponds) were not used to prepare for the draft plan other than as a base map.  However, the TPB did not provide any explanations as to, if the survey maps were not used to prepare the plan in zoning the CPA, (a) why it had also rejected the representations on the narrowed width of the “buffer” between the V zone and the coastline as identified in the representations; and (b) how and whether it had taken into account the adverse environmental impact on the HHW Marine Park given the factual existence of the other streams and ponds not shown on the survey maps as also identified by the representors.

120.  Without such explanations, the court cannot be satisfied that the TPB had properly inquired into and answered these valid questions raised in the representations.  This is particularly so given that there was no finding or conclusion by the TPB to contradict the representations that the survey maps per se were indeed inaccurate or partly inaccurate as identified by the representors.[37]

121.  In this respect, I also accept Mr Kat’s objection to the underlined parts of Ms Wong’s explanations set out at paragraphs 44 and 47 of her affidavit.  These parts of the “explanations” could not in any way be discerned from the TPB’s above quoted reasons, even read together with the relevant parts of the deliberations and PlanD papers submitted to the TPB. They therefore could not be regarded as mere elucidation of the reasons of the TPB.  These parts of the evidence therefore should not be admitted and the court would not refer to them for the present purposes.

122.  I therefore agree that the TPB failed to make proper inquiry in relation to the matters stated at paragraph 119 above based on inaccurate information.

123.  However, given that there was the reason adopted by the TPB that the plan was not prepared based on the inaccurate survey maps, I do not accept the ground of challenge that it was irrational for them to submit the Draft OZP of Hoi Ha basing on maps that were or might have been inaccurate in relation to material aspects of the proposed zoning.

C1.1.4 Failure to make sufficient inquiry into the cumulative impact on conservation involving technical, aesthetic and policy assessments

124.  Under this complaint, the applicant says that the TPB in upholding the Draft OZPs had failed to make sufficient inquiry into the cumulative impact on conservation of the various areas of the three enclaves involving technical, aesthetic and policy assessments.[38]

125.  Again, extensive representations had been made on these various matters before the TPB both at the First Rounds of Hearing and at the 21 November 2014 hearing.[39] The TPB was fully conscious of these representations, and had taken them into account when making a planning judgment in proposing the amendments which resulted in the Draft OZPs in the decision made on 4 June 2014 and in upholding those plans after hearing the Further Representations at the 21 November 2014 hearing.[40]

126.  In the premises, I am not satisfied that there is any substance in this challenge on inadequacy of inquiry:

(1) The evidence identified at paragraph 125 above shows that the TPB was fully aware of the representations on these matters and had deliberated extensively on them before making the planning decision.  In the premises, the TPB was obviously conscious of the issues raised under these matters, and had taken them into account in making a planning judgment which was to strike a balance between conservation and compatible development.[41]

(2) As mentioned above, sufficiency of inquiry is a matter for the TPB subject only to Wednesbury challenge.

(3) Subject to stark Wednesbury unreasonableness or irrationality, the particular way in which these matters were approached and the particular weight accorded to such matters as against all other relevant factors was entirely a matter for the TPB and the CEIC.  See: Chan Ka Lam v The Country and Marine Parks Authority (HCAL 54/2014, 27 April 2017, Au J) at paragraphs 109 - 116.  The fact that there existed different views on such matters, both methodological and substantive, per se provides no basis for interference.

(4) In the circumstances, the applicant falls far short of discharging her burden of showing any manifest error of planning judgment in this case.

127.  I must also mention here Mr Kat’s submissions that the court should adopt the higher level of anxious scrutiny instead of the standard Wednesbury test in this judicial review since this application concerns the important matter of environmental protection and town planning.  Leading counsel cites in aid Society for Protection of the Harbour Ltd v CEIC (No 2) [2004] 2 HKLRD 902 at paragraphs 74 - 79, per Hartmann J (as he then was) and Hysan Development Co Ltd and Others v Town Planning Board (2016) 19 HKCFAR 372 (“Hysan (CFA)”).

128.  I do not accept this submission.

129.  The two authorities are clearly distinguishable.  In Society for the Protection of Harbour (No 2), Hartmann J agreed to adopt an anxious scrutiny in assessing the challenge against the CEIC’s decision because of, as he has pointed out at paragraph 79, the unique legal status of the harbour (being protected specifically by the Protection of the Harbour Ordinance).  Hysan (CFA)deals with the specific question of whether the subject TPB decision engaged (and thus interfered) the applicant’s constitutional right to the use of property, and hence the need to adopt a heightened level of scrutiny in reviewing that decision.  These authorities do not support the sweeping and general proposition that in a judicial review challenge against decisions concerning environmental protection in the context of town planning, the court should adopt a higher level of scrutiny.  I would not therefore adopt a heightened level of scrutiny in the present application.

C1.1.5 Conclusion on the ground of failure to make proper inquiry

130.  For all the above reasons:

(1) I accept that in upholding the Draft OZPs the TPB had failed to make proper inquiry into the issue raised by the Representations and Further Representations on the lack of proof on genuine needs for development by and for indigenous villagers.

(2) I accept that in upholding the Draft OZP for Hoi Ha, the TPB had failed to make proper inquiry into the issues set out at paragraph 119 above which were raised by the Representations and Further Representations on inaccurate and deficient maps and plans.

C1.2  Inconsistent Zoning[42]

131.  Under this ground, the applicant complains that the Draft OZPs demonstrate inconsistent zoning, and thus the decision to uphold them by the TPB should be quashed as it is irrational.[43]

132.  In support, Mr Kat says the inconsistencies, as represented before the TPB, are as follows.

133.  The TPB failed to zone consistently as between areas with common situations and characteristics and in accordance with its stated intentions for such areas.  In particular, the TPB recognised and recorded in the Explanatory Statement for So Lo Pun that the woodlands of So Lo Pun form a continuous stretch of well-established woodlands contiguous with those in the adjoining Plover Cove Country Park,[44] and that the entire area of the plan forms “an integral part of the natural system of natural woodlands in the adjoining Plover Cove Country Park which … should be preserved and protected”.[45]

134.  However, although this stated intention for those woodlands was to preserve and protect them and they were integral with the Country Park, the TPB zoned the parts as GB.  The TPB’s stated intention for the GB zone in the Explanatory Statement is that such an area is to be a buffer between an area of development and area to be protected and conserved.

135.  Representations were made that areas of woodland similarly contiguous and in character with the adjoining Country Parks in Hoi Ha and Pak Lap were properly zoned as CA, the most restrictive and protected zoning, on the draft Hoi Ha and Pak Lap plans.  In the premises, on its face, the GB zoning for these woodlands on the So Lo Pun draft plan was inconsistent and illogical and thus irrational in the public law sense, or unreasonable.

136.  The TPB had considerable evidence before it of recent deliberate felling of trees and destruction of vegetation by villagers in So Lo Pun[46] but did not zone to protect the enclave and to preserve its woodland so as to forestall such human damage.

137.  Further, the TPB’s zoned part of these So Lo Pun woodlands as GB automatically permits agricultural use in which the (further) clearance of vegetation is allowed.[47] The zoning did not therefore “protect” and “preserve” the woodlands as intended in the Explanatory Statement.

138.  Representations were also made that similar, unreasoned inconsistencies appear in the zonings of comparable areas as GB(1) in Hoi Ha but only as the lesser protected zone of GB in So Lo Pun,[48] and as to the use of agricultural zoning for such land in Pak Lap.[49]

139.  The latter zoning was further inconsistent and illogical as part of the land zoned AGR in Pak Lap included a stream draining into Pak Lap Wan,[50] which the TPB’s express intention in the Explanatory Statement was to “protect and conserve” and which the representations indicated would be at risk from toxic fertiliser run-off if put to agricultural use.[51]

140.  Mr Kat therefore submits that each of these inconsistent zonings on the plans was illogical in the public law sense, unreasonable and hence unlawful.[52]

141.  As seen above, under this ground, Mr Kat emphasizes that the zoning of GB in So Lo Pun and its woodlands is inconsistent because (a) conservation being the General Planning Intention for the Area; and (b) the identically described woodlands in Hoi Ha and So Lo Pun being zoned as Conservation Area; and to expose a stream in Pak Lap to further risk of toxic pollution by zoning it for agriculture (AGR) contrary to the TPB’s stated intention in the Explanatory Statement being to protect and conserve the Area and that stream at Hoi Ha, and although a similar stream had been zoned GB(1) to effect that same purpose.

142.  This ground of inconsistency therefore hinges principally upon the representations that the wooded character of the zoned GB area of So Lo Pun is “identical” to those parts zoned CA or AGR in Hoi Ha and Pak Lap.

143.  The TPB was clearly aware of such contentions but it was however conscious of and had accepted the differing characteristics of these areas as presented by the relevant government departments.  This can be shown at the deliberation and decision of the TPB as reflected at the following paragraphs of the Minutes:

“86. Noting that some further representers and representers had submitted further ecological information in respect of the Hoi Ha, So Lo Pun and Pak Lap areas, the Chairman asked AFCD’s representatives whether the zonings of the FR sites were appropriate. Mr Cary P.H. Ho, SNC/S of AFCD, said that in advising PlanD during the preparation of the draft OZPs, AFCD had emphasised more on the preservation of habitats with high conservation value rather than on records of individual species or specimens of conservation interest. Notwithstanding that, important habitats such as native woodlands, riparian zones as well as wetland areas, which could provide suitable habitats supporting a variety of species, were already covered by conservation zonings, such as ‘CA’, ‘CPA’ and ‘GB(1)’ in Hoi Ha for due protection. For example, the habitats of Chinese Pangolin, which were mainly associated with woodland areas, had been covered by conservation zonings. As for Pak Lap, the wooded areas at the periphery of the area formed a continuous stretch of well-established vegetation with those located in the adjoining Sai Kung East Country Park and were ecologically‑linked to the natural habitats therein. These woodland areas had been covered by the ‘CA’ zoning. Mr K.W. Cheung, SNC/N of AFCD, said that important habitats in So Lo Pun including the riparian zone of the EIS, mangrove and seagrass beds, reed ponds and freshwater marsh were covered by the ‘CA’ zoning. The hillslopes adjoining Plover Cove Country Park mainly consisted of relatively undisturbed and young woodland interspersed with shrubby grassland developed from abandoned agricultural land after the villagers moved out of So Lo Pun. The ‘GB’ zoning for those areas was therefore appropriate.

…

135. A Member considered that the current planning in Hoi Ha had already achieved a proper balance between village development and nature conservation. Given the significance of Hoi Ha as an ecological, educational and tourism asset and considering the potential adverse impact on water quality, any proposed increase in Small House developments, be they provided through further expansion of the ‘V’ zone or planning application within the ‘GB’ zone should not be permitted in Hoi Ha. This Member said that AFCD as the management authority of HHWMP should keep close monitoring of the water quality, and take appropriate measures to guard against any possible degradation. In this regard, the need to provide a public sewage treatment plant in Hoi Ha should also be considered by AFCD.

…

145. A Member said that it was indisputable that the HHWMP was of high ecological value and the natural stream flowing into HHW needed higher protection, and any development should be confined within the ‘V’ zone. The ‘GB(1)’ zoning was therefore considered appropriate and should be maintained in order not give false hope to the villagers. As no new evidence had been provided by the further representers to justify the proposed rezoning of the ‘GB(1)’ to ‘GB’, the Board's previous decision and the proposed amendments should be maintained. Members also agreed that there was no justification to raise the ‘GB(1)’ zoning to a tighter conservation zoning.

…

147. After further discussion, the Chairman summed up Members’ discussion that proposed Amendment Items A and B to rezone the area to the west of the existing village cluster of Hoi Ha from ‘GB’ and ‘V’ to ‘GB(1)’ respectively were considered appropriate to give added protection to the existing natural environment including the woodland, wetland, stream and HHW. An incremental approach should be adopted in the designation of ‘V’ zone to meet the Small House demand. There was neither strong justification nor change in planning circumstances for a departure from the Board’s previous decision.

…

174. Members generally considered that there was insufficient information to justify the rezoning of the south-western portion of the FR site from ‘GB’ to ‘CA’ or ‘GB(1)’ given that the site consisted of fallow agricultural land covered with grass and shrubs interspersed with trees. The designation of ‘GB’ zone could provide a buffer between the village development and the ‘CA’ and protect the existing green areas in the enclave. At the same time, the ‘GB’ zone could allow flexibility for suitable development to meet community needs or for Small House development adjoining the existing village cluster, if any, subject to the scrutiny of the Board.”

144.  The TPB thus decided to zone these areas differently with different degrees of conservation protection by reference to their different characteristics.  See also paragraphs 71 - 73 of Ophelia Wong’s Affidavit (which evidence has not been objected to by Mr Kat) which further sets out the TPB’s consideration of these different characteristics.

145.  In this respect, the court appreciates that each of the determined zonings is essentially the result of balancing and accommodation between various factors which may themselves be in conflict or tension.

146.  That is an unavoidable feature of most planning judgments.  Where the overall balance of factors as between one area and another results in a different zoning as in the present case, I am not satisfied that it can be characterised as “inconsistency” in public law sense.

147.  In the premises, I do not accept that there is inconsistency in the said zoning.  This ground of challenge therefore fails.

C1.3  Other related grounds

148.  Other than the above principal grounds of challenge advanced by Mr Kat at the hearing and through his skeleton, there are other related grounds that are stated in the RAF86 which Mr Kat says the applicant would also rely on.

149.  First, the applicant also says the TPB had failed to take into account certain relevant matters in the decision making process.  In particular, they were:

(1) The purpose and provisions of the WPCO and paragraphs 9.1 ‑ 9.2 of its Technical Memorandum for the purposes of the draft Hoi Ha plan.[53]

(2) The decision in Re Thomas Lai [2014] 6 HKC 1 for the purposes of assessing the level of Small House demand.[54]

150.  Conversely, the applicant says the TPB had taken into account the irrelevant matter of the Small House development “rights” of indigenous villagers or their forecasted demands.[55]

151.  I agree with Mr Wong that there are also no merits in these complaints.

152.  In assessing the applicant’s claims on based relevancy or irrelevancy challenge, the principles summarised by this court in Pagtama v Director of Immigration (HCAL 13, 45 and 56/2014, 12 January 2016, Au J) at paragraphs 194 - 195 and adopted in Chan Ka Lam, supra, apply.  In short, absent specific statutory compulsion or prohibition (which is not suggested in this case), the factors that a decision-maker takes account of (or not) is a matter for its discretionary judgment.  The court will not interfere absent Wednesbury irrationality.

153.  I accept Mr Wong’s submissions that the applicant’s complaints based on relevancy or irrelevance of specific matters falls far short of the legal threshold.

154.  The Affidavit of Sun Wai Choi of the EPD[56] explains the relevant regime under the WPCO in some detail and shows the applicant’s reliance on the WPCO to be entirely untenable on the facts.[57]

155.  Shortly put, the WPCO has no application to the instant case, not least because there is nothing to suggest the introduction of “new effluent” in the circumstances of the relevant (Hoi Ha) draft OZP.

156.  In relation to each application to build a Small House, the applicant would have to satisfy the requirement of having a proper STS system in compliance with Government requirements.  See Affidavit of Ophelia Wong at paragraphs 38 and 59.

157.  As mentioned above, this is a fact known to the TPB.  The TPB was satisfied as to the sufficiency of the Government requirements in this aspect as a safeguard to any possible pollution effect of the construction of Small Houses in the proposed V zones as an answer to the concerns expressed by the representors (including the expert evidence).  The reference by the TPB to “sufficient control” in its reasons must be read in the context of the representations made to it regarding such requirements presented to the TPB, and the implicit acceptance of the reasons submitted by the Government experts on this aspect. The applicant’s contentions amount to inviting this court to go through the detailed evidence and in effect to come to a view of its own de novo, which must be rejected.

158.  Insofar as the Small House development rights is concerned, it must be reasonable for the TPB for planning purposes to start off by looking at the right of the indigenous villagers to apply for building Small House on the side of the scale of development needs.  Put it another way, it is only because indigenous villagers have a right to apply for building Small House under the Small House Policy (subject to the availability of relevant piece of land) that potentially there is a need for development.  The same applies to the forecasted demands based on this potential right to apply for building Small House.  It thus cannot be said to be wholly irrational or Wednesbury unreasonable for the TPB to regard that as a relevant factor to be taken into account.

159.  What the applicant’s real complaint is, after taking into account the potential demands, in making the planning judgment to strike a balance, the TPB (as I have concluded above) had failed to properly inquire into the representors’ complaints that the forecasted demand figures cannot be simply adopted to find the justified needs (as opposed to the theoretical potential demands) for development by indigenous villagers.  This however does not then render the consideration of the villagers’ right to apply for Small House in the above context as irrational.

160.  The applicant also argues that the TPB failed to take into account landownership right (in the sense that a lot of the lands in the proposed V zones are owned by developers) in its planning decisions.

161.  In this respect, the respondents’ case as submitted by Mr Wong is this.

162.  There is simply nothing indicating that the TPB misunderstood or irrationally considered the significance of any land ownership and rights in respect of village development in the context of this case.  The mere fact that some land in the proposed V zones might be owned by developers is neither here nor there: as the TPB considered, ownership could change and it could not proceed on the basis that the Small House Policy would be abused: if anything it ought to plan in tandem with such the said Policy.

163.  In my view, given the way the TPB considered the issue of land ownership as Mr Wong has submitted, the real complaint is that the TPB had failed to properly inquire into it by failing to understand the representors’ case under this.  As I mentioned above, the representors’ case was the fact that most of the lands were owned by developers showed that there was no extant sufficient proof of genuine needs for development by and for the indigenous villagers. On this, I have already accepted the applicant’s ground of challenge that the TPB had failed to make proper inquiry into this issue.  The complaint of failing to take into account a relevant matter for consideration is neither here nor there.

164.  Second, the applicant also says the TPB and the CEIC had failed to take into account the 2010 Policy.  In this respect, the applicant says the 2010 Policy requires the TPB to plan the three enclaves by striking a balance between conservation and development needs.  However, by reason of all the complaints the applicant has advanced above, she says the TPB had not planned by looking at the justified genuine needs of the indigenous villagers for Small House and by finding the environmentally and ecologically suitable land for such zoning.

165.  For the reasons set out at paragraph 75 above, I would similarly reject this complaint.  The TPB did seek to plan by striking a balance between conservation and development needs.  The fact that, as I have concluded above, it had in the process failed to make proper inquiry into certain matters raised by the representations when seeking to strike the said balance does not mean that it did not seek to plan in accordance with that.

166.  Finally, the applicant also says the TPB Decision had breached her legitimate expectation that they would follow the 2010 Policy in planning the concerned areas in the three enclaves.  The 2010 Policy adds nothing further to the planning intention argument.  Thus, for the same above reasons, I would reject this ground.

167.  The applicant also says she had a legitimate expectation that the TPB Decision also breached her legitimate expectation that the planning decision on the Draft OZPs should conform with Government’s commitment to her obligations under the Convention on Biological Diversity (“the Convention”), which was extended to Hong Kong on 9 May 2011.  Article 8(e) of the Convention specifically deals with places such as the enclaves.  It commits the promotion of “environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas.”  It is the applicant’s case that the Decisions breached this legitimate expectation as the OZPs for the three enclaves are not planned to promote the purpose of conservation of the environment with sustainable development for all the above grounds she has advanced in this judicial review.

168.  In my view, the applicant’s case of legitimate expectation based on the Convention is in substance the same as her case based on the 2010 Policy.  For the same reasons, I would also reject this ground.

C2.  CEIC Decision[58]

169.  The applicant’s principal challenge against the CEIC Decision is that the decision to approve the Draft OZPs is unlawful as it is tainted with the same wrongs of the TPB Decision.

170.  Mr Wong however submits that, as said in the Kwan Kwong, the CEIC in exercising his power under section 9 of the TPO to approve the Draft OZPs is making his own independent planning decision based on the materials provided to him as set out at section 8(1A) of the TPO[59] and with the assistance and advices of other relevant Government officials.[60]

171.  Section 8(1A) provides as follows:

“(1A) The Board shall submit a draft plan to the Chief Executive in Council under subsection (1) together with-

(a) a schedule of the representations (if any) made under section 6(1) in respect of the draft plan (whether with or without any amendments made under this Ordinance) or any of the amendments made under section 7 to the draft plan (whether with or without any amendments made under this Ordinance), and the comments (if any) made under section 6A(1) in respect of any of such representations;

(b) a schedule of the further representations (if any) made under section 6D(1) in respect of any proposed amendments to the draft plan (whether with or without any amendments made under this Ordinance); and

(c) a schedule of the amendments (if any) made by the Board under this Ordinance to the draft plan (whether with or without any amendments made under this Ordinance).”

172.  In the premises, even if the TPB did in fact commit any errors or wrongs recognised in public law in upholding the Draft OZPs, it cannot be said that the same errors or wrongs have been “incorporated” into the CEIC’s own independent decision, which was exercised after considering the materials placed before him. Therefore, even if the applicant can demonstrate that the TPB had committed any errors or wrongs in upholding the Draft OZPs, by that alone, she cannot succeed in challenging the CEIC Decision, unless and until she could also show positively that the CEIC in his decision making process had also made the same or other errors or wrong.

173.  Further, says Mr Wong, the mere fact that the CEIC has not provided reasons for the decision should not by itself support the contentions that the same wrongs and errors committed by the TPB in upholding the Draft OZPs must have tainted the CEIC Decision.  This is so as it is well established that generally the CEIC is not required to give reasons for his decision unless the decision is aberrant or obviously erroneous on its face.  See: Lister Assets Ltd v The Chief Executive in Council (CACV 172/2012, 25 April 2013, Fok, Barma JJA and McWalters J) at paragraph 21.

174.  This is particularly so as, Mr Wong further submits, section 9(2) of the TPO has expressly provided that the CEIC could approve the draft plan submitted to him by the TPB even though that is non-compliance with the requirements under the TPO.

175.  In the premises, Mr Wong says there is nothing in the present case that could show that the CEIC had made the same errors or wrong as committed by the TPB in making the CEIC Decision.

176.  With respect to Mr Wong, I am unable to agree.

177.  It is correct to say that, in approving the Draft OZPs, the CEIC is making his own independent planning decision by reference to all the materials presented before him.  It is also correct to say that the CEIC is generally not required to give reasons for his decision.

178.  However, when it can now be demonstrated that the Draft OZPs submitted to him by the TPB for consideration and approval were tainted with the wrongs and errors as the court has found above, the court has to be satisfied with evidence that the same errors have in fact been corrected in or have not affected the CEIC decision making process.  How and whether that can be shown must be dependent on the circumstances and the nature and types of the errors that tainted the draft plans in the first place.  Cf: Smart Gain, supra, at paragraphs 117 - 127.

179.  In the present case, I have found above that the TPB had not properly inquired into the issues and representations made relating to (a) the lack of established genuine needs for development by indigenous villagers for all the Draft OZPs; and (b) the planning concerns identified in the representations on inaccurate and deficient maps and plans regarding the CPA zoning of the Hoi Ha Draft OZP.  As such, the Draft OZPs were thus made and upheld without proper inquiries having been made on these valid and legitimate matters relating to proper planning.

180.  In these circumstances, as observed in Smart Gain at paragraphs 124 and 125, given that the CEIC has not provided any reasons in approving the same Draft OZPs, there can only be two possibilities, even though the CEIC was provided with the schedules and summarises of all the representations and with the decisions of the TPB in making the CEIC Decision.

181.  First, the CEIC was not alive to the TPB’s failure to make proper inquiry into these relevant issues and simply approved the draft OZPs on the same basis as the TPB.  In that case, the decision must be similarly tainted with the errors and be disturbed.

182.  Second, and alternatively, the CEIC had in fact considered the representations on these issues on his own but for some reasons of his own decided not to accept those representations and approve the same Draft OZPs.  This would constitute special circumstances requiring the CEIC to provide reasons for his decision to approve the Draft OZPs despite the errors committed by the TPB.  This is so because, unless reasons are supplied to explain the decision to approve, it must appear aberrant given the errors committed by the TPB which tainted the very Draft OZPs.  In the present case, however, no reasons have been provided for the CEIC Decision.  The decision must therefore be also disturbed.

183.  Mr Wong’s reliance on section 9(2) does not assist him in the present case.  As observed by Hartmann J in Society for the Protection of the Harbour (No 2), at paragraph 58, section 9(2) only relates to non-compliance with procedural requirements provided under the TPO.  This therefore has nothing to do with the TPB’s errors which have tainted the Draft OZPs in the present case.

184.  For the above reasons, I am satisfied that the CEIC Decision is either tainted with the same errors of the TPB Decision, or alternatively is unlawful for want of reasons in the particular circumstances of the present case.

185.  Finally, as I mentioned above, the applicant has sought to add additional grounds to challenge the CEIC Decision by way of re-amendments to the Amended Form 86. These proposed grounds are set out at paragraphs 58A - C, 61A and 62 of the RAF86.

186.  These amendments are triggered, says the applicant, by the Affirmation of Ji Sang Jerry filed for the CEIC, where she deposed at paragraph 5 that, among others, Summary of Representations, Comments, and Responses/Decisions of the TPB with Proposals of Representors and Summary of Further Representations, Responses and Decisions of the TPB (with Proposals of Further Representations) were provided to the CEIC for his making of the CEIC Decision.

187.  Mr Kat’s case under these amendments is that the CEIC Decision is also tainted with procedural unfairness and impropriety as:

(1) The CEIC unfairly took into account the undisclosed Summaries and Responses, presumably complied by the TPB Secretariat, in reaching his decision.  There is however no provision in the TPO for such material to be presented to the CEIC, which is expected and required by the TPO to make its own planning decision on the materials put before him pursuant to section 8(1), and not on PlanD’s view of what the Responses should be.  This was procedurally improper, and vitiates the CEIC Decision.

(2) In any event, given that the TPB has not provided these Responses and Summaries to the applicant despite her requests, the court could draw the inference that one or both of these sets of documents did not fairly or properly present the Representations or the expert evidence called in support.  In the premises, the CEIC Decision, which was made by the CEIC by reference to these unfair materials, is also tainted by procedural unfairness.

188.  I am not persuaded.

189.  First, as a matter of proper construction, to give the provision meaningful purposes, the schedules referred to by section 8(1A) must include summaries of the presentations and responses made to those representations heard by the TPB.  These schedules are intended to be provided to the CEIC to facilitate his consideration of the draft plans submitted to him by the TPB to make his own independent planning decision.  It does not provide any usefulness to the CEIC if these schedules are only intended to be limited to mere schedules listing out as indexes the representations and responses without any substance.

190.  In any event, section 8(1A) does not say the CEIC can only take into account materials set out therein.  In exercising his power to make the substantive planning decision, he must be entitled to take into account other materials which he considers to be relevant.  This is particular so as, as observed by Hartmann J in Society for the Protection of Harbour (No 2) at paragraphs 64 - 65, the CEIC would be assisted in making the decision by other public officers who are best positioned to advise him.  It is therefore open and reasonable for him to look at the responses to the representations.

191.  Second, I cannot draw the adverse inference of unfair summaries as suggested by Mr Kat.  If there are proper bases for the applicant to allege unfairness of the summaries in the first place, it is open to him to make a discovery application to the court for disclosure of these summaries.  This is particularly so as the CEIC filed the Affirmation of Ji Sang Jerry on 3 February 2016 deposing that such summaries were provided to the CEIC for him to make the CEIC Decision.  There was still adequate time before the substantive hearing for the applicant to make the discovery application, if justified.  In the premises, I am not prepared to draw any inference that the summaries were unfair ones.

192.  There are therefore no merits in this ground.  I also do not think it is even reasonably arguable for the same reasons.  I would not grant leave for the applicant to so re-amend.

D.  OBJECTION TO EVIDENCE

193.  Finally, Mr Kat objects to certain parts of the evidence of Ms Ophelia Wong’s Affidavit (in particular paragraphs 44 (save for the first sentence), 47 (save for the first sentence and the sentence which reads “The OZPs were not prepared based on the survey maps”, 55, 60, 62, 66 and 67), Mr Sun Wai Choi’s Affidavit (paragraph 18), Mr Chan Kin Fung’s Affirmation (in particular paragraphs 23, the last two sentences of 25, 28, the penultimate sentence in paragraph 29, paragraph 30, the penultimate sentence of paragraph 31, paragraph 41 and the last sentence of paragraph 43).  The principal basis of the objection is that this evidence is not to elucidate but seeks to add reasons to the TPB Decision.  This is not permitted: Smart Gain, paragraph 5.

194.  Mr Kat also objects to paragraph 8 of Ms Ji Sang Jerry’s 1^st Affirmation where she deposes that the members of Executive Committee “carefully considered” the plans and papers submitted to the CEIC without stating the source of her knowledge.

195.  I do not propose to go through each of these objected paragraphs to determine if they should be admitted.  Suffice to say there is some force in the objections. But as shown above, I have not referred to or relied on any of these objected paragraphs for the purpose of this judgment.  It is therefore not necessary for me to rule on their admissibility.  However, if necessary, I would be inclined to refuse to admit them.

E.  OUTCOME

196.  The applicant is successful in this judicial review in relation to the grounds set out at paragraphs 64, 74, 119 and 120 above.

197.  Considering the circumstances of the present case, and the nature and extent of the representations made concerning the issues (“the Issues”) identified at paragraph 130 above, in my view, the most appropriate order and relief is to grant an order of certiorari to bring up and quash the TPB Decision and the CEIC Decision, with a direction that the Draft OZPs be remitted to the TPB for reconsideration of the Issues.

198.  I would also make an order nisi that costs of this application be to the applicant, to be taxed if not agreed, with certificate for two counsel.  The applicant’s own costs shall also be taxed in accordance with legal aid regulations.

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