ORIENTAL GENERATION LTD v. TOWN PLANNING BOARD

CACV 127/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 127 OF 2012

(ON APPEAL FROM HCAL NOS. 62, 109 OF 2011 AND 34 OF 2012)

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HCAL 62/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 62 OF 2011

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BETWEEN

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HCAL 109/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 109 OF 2011

________________________

BETWEEN

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HCAL 34/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 34 OF 2012

________________________

BETWEEN

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(Consolidated by Order of the Honourable Mr Justice Reyes

dated the 26^th day of March, 2012)

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J U D G M E N T

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Hon Kwan JA (giving the Judgment of the Court):

1.  This is an application by the Town Planning Board (“the Board”), the appellant in this appeal, for leave to adduce further evidence being the affidavits of Wong Yuen Sheung Ophelia, Yue Chi Kin and Professor Bernard Lim.

The background

2.  The application arose in this way.

3.  By his judgment on 11 May 2012, Reyes J allowed three applications for judicial review by Oriental Generation Limited (“OGL”).  Among other orders he made, the judge quashed the Board’s decision to refuse to consider raising the Building Height Restriction (“BHR”) placed on the site occupied by Kai Tak Mansion in Kwun Tong Road (“the Site”).  In so doing, the judge had accepted a ground of challenge of OGL, namely, that Emergency Vehicle Access (“EVA”) and road setback requirements on the Site were such that with a BHR of 130 mPD, OGL would not be able to make full use of the plot ratio and Gross Floor Area (“GFA”) available to the Site (at paras 58 to 61 of the judgment).

4.  This ground of challenge was not stated in OGL’s notices of application for leave to apply for judicial review in its three applications for judicial review.  These notices are very substantial documents.  The main notice is 32 pages long.  More than 20 grounds of challenge were raised by OGL.

5.  The ground of challenge upon which OGL succeeded in having the decision to refuse to raise the BHR quashed, though not stated in any of the notices in Form 86, was mentioned in a paragraph of its counsel’s skeleton submission dated 27 April 2012, served on the other party less than a week before the hearing on 3 May 2012.  The skeleton submission was amended on 30 April to put in additional references.  The relevant part of this paragraph reads:

“TPB is mistaken in saying that 130 mPD is sufficient to take account of all permissible GFA … As can be seen from the presentation at the further hearing, TPB failed to take account of the GFA displaced by the EVA and road set back. TPB admits this but argues that when originally setting the BHR at 110mPD there was already an allowance of 5 mPD. But even an allowance of 5 mPD is insufficient for the shortage by reason of the EVA and the road setback. …”.

6.  At the substantive hearing before the judge, OGL did not apply to amend its Form 86 to incorporate the above as an additional ground for seeking relief.  It argued this ground without objection by the Board.  And the Board did not seek an adjournment to enable it to deal with this additional ground or seek leave to file further evidence to address this ground.  Hence, the judge said in para 63 of his judgment:

“… as the question was explored at the substantive hearing without objection, I believe that the Court can treat the matter as implicitly part and parcel of Oriental’s complaint against the imposition of a BHR of 130 mPD.”

7.  The judge’s reasons for ruling in OGL’s favour on this ground were set out in paras 60 and 61 of the judgment:

“60. There was some suggestion at the hearing that Oriental could always accommodate the extra GFA from the EVA and road setback by building bulkier residential blocks covering a larger area than those in the Planning Department’s indicative schemes. But the practical feasibility of doing that, while still (say) maintaining two NBA [Non-Building Area] strips of 10 m and the central BG [Building Gap] of 20 m, has not been demonstrated in the evidence. Nor does that appear to have been demonstrated to the Board. Instead, it seems to have been merely assumed by the Board that the 5 mPD to tolerance in the indicative schemes was sufficient to cater for GFA generated by the EVA and road setback.

61. The Board’s refusal to raise the BHR beyond 130 mPD must consequently be treated as arbitrary. Given the accepted principle that a BHR should not prevent a developer from making full use of plot ratio and GFA available to a site, the Board could not have been satisfied on the material before it that the development rights associated with the KTM site could be fully utilised at a BHR of 130 mPD.”

(Italics supplied)

8.  One of the grounds of appeal in the appeal of the Board is that the judge erred in finding the Board’s refusal to relax the BHR was arbitrary.  Among other matters, complaint was made that the ground on which OGL succeeded was not stated in Form 86, that OGL did not seek to amend the form to incorporate the new ground, that the Board had filed no evidence to address this ground, that the judge should have invited the Board to file evidence instead of simply quashing the decision on the basis of a lack of evidence in support of the Board’s position, that the judge had failed to take into account that the two schemes prepared by the Planning Department were merely indicative schemes and do not represent the only possible or viable development schemes on the Site.

9.  The Board seeks leave from this court to adduce evidence on appeal to support its position that the extra GFA from the EVA and road setback requirements on the Site could in fact be accommodated under the BHR of 130 mPD.

10.  It is not in dispute that the requirements in Ladd v Marshall [1954] 1 WLR 1489 must be satisfied for new evidence to be admitted on appeal, and failing that, exceptional circumstances must be shown before the court would exercise its wider discretion to depart from the Ladd v Marshall principles (Dr Kwong Kwok Hay v Medical Council of Hong Kong (No 2) [2007] 4 HKC 446).

Three preliminary matters

11.  Before we turn to the Ladd v Marshall principles, we would first deal with three matters raised in the skeleton submission of Ms Audrey Eu, SC, who appeared for OGL with Mr Jonathan Lee.

12.  First, Ms Eu submitted that this application should be dismissed on the ground of delay.  Although delay was not a relevant matter in Ladd v Marshall, there is no reason why delay should not be brought into account in exercising the court’s discretion whether to admit fresh evidence, see Andrew Lifely v Nicholas Lifely [2008] EWCA Civ 904 para 38, per Ward LJ.  Here, the appeal was fixed for hearing in July 2012 with the original hearing dates of 9 and 10 May 2013.  The summons for leave to file further evidence was issued only on 22 March 2013, just 7 weeks prior to the original hearing.

13.  We agree there was delay in this case and the Board could have acted with greater expedition.  We note the explanation given by the Board that steps were taken to prepare the further affidavits only after advice was received from London counsel in December 2012.  We do not think there was undue delay.  As Ward LJ stated in paras 40 and 41 of the case cited, the interest in achieving a fair result is predominant and the most important factor is the interest in the administration of justice.  So it is better that the right result is obtained than a sanction be visited on the Board for failing to act with due expedition.

14.  The second matter Ms Eu raised is that there is no need for an application to amend Form 86.  She argued that by virtue of Order 53 rules 6(2) and (3), the judge may on the hearing of the substantive application allow OGL to amend Form 86 upon OGL giving notice of its intention to seek leave to amend and there is no prescribed form for giving notice.  We have quoted the relevant paragraph in the skeleton argument served by OGL.  Order 53 rule 6(3) requires notice to be given of the intention to seek leave to amend and of any proposed amendment.  We do not regard that part of the skeleton argument as amounting to proper notice under the rule, nor do we agree with her there is no need to amend Form 86 in this situation.

15.  The third matter she raised is that the summons to adduce further evidence should be dismissed on account of the Board’s failure to object to the new ground being argued or to seek an adjournment to deal with the new ground, citing Kelly v Fraser Autos Ltd, unreported, English Court of Appeal, 16 May 1974 mentioned in Phipson on Evidence, 17^th ed, page 389 at footnote 22.  The factual circumstances in that case were very different. In the same passage in Phipson, the author also recognised there is no hard and fast rule whether the court should exercise its discretion to refuse an application to adduce evidence on appeal simply because the party did not seek an adjournment to adduce evidence in the court below.

16.  In the circumstances of this case, we do not regard the fact that the Board did not seek an adjournment before the judge as a material or relevant factor in the exercise of our discretion in the present application.  The hearing before the judge took just one day, with a whole host of matters argued before him.  The new ground was not strictly open to OGL without an amendment of Form 86, see Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 340C to G, and a late application to amend Form 86 has a fairly high threshold to pass in the post-CJR era, see Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corporation, HCAL 12/2009, 21 September 2009, paras 2 and 11.  The Board’s counsel did what they could to address the judge’s apparent interest in the new ground on the available materials.  Mr Abraham Chan, who appeared for the Board today and in the court below with leading counsel, confirmed to us that the judge had not given any clear indication to them that the existing evidence was insufficient to support the Board’s position.  There was a need to resolve the judicial review expeditiously and counsel understandably had no wish to delay the matter.

1^st condition in Ladd v Marshall

17.  Under this condition, the Board is required to satisfy this court that the new evidence could not have been obtained with reasonable diligence for use in the court below.

18.  We take into account that the new ground was not raised in Form 86, that no proper notice was given to the Board of any intention on the part of OGL to seek leave to amend that form at the substantive hearing, that OGL did not apply at the substantive hearing to amend Form 86, and that a large number of issues was raised and argued in the one-day hearing.

19.  We agree with Mr Chan that it would be unrealistic and unfair to expect counsel for the Board to pay equal attention to each and every point raised by OGL in its Form 86 and its skeleton argument.

20.  We think the first condition has been met.

2^nd condition in Ladd v Marshall

21.  By this condition, it is required to be established that the further evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive.

22.  Ms Eu argued this requirement is not met because this is a judicial review of the decision-making process of the Board and fresh evidence which was not before it at the hearings of the Board cannot affect the outcome of the judicial review.

23.  The affidavit of Ophelia Wong seeks to provide information on the Board’s consideration at the representation hearings of the matters raised in the grounds of appeal that had not been included in the affidavits filed in the proceedings below.  She exhibited the minutes of the representation hearings on 27 May 2011 and 3 February 2012 which had been placed before the judge, gave an account of the relevant representations made by OGL and the explanation of Yue Chi Kin to the Board at the hearings, and other matters considered by the Board in its reasoning process concerning the BHR with focus on the road setback and EVA requirements.  The matters covered in this affidavit are matters before the Board at the hearings and we are satisfied they would probably have an important influence on the appeal.  We do not agree with Ms Eu the matters in this affidavit are inadmissible evidence.

24.  The next affidavit, that of Yue Chi Kin, seeks to provide details about the assumptions adopted by the Planning Department for imposing the BHR on the Site.  He referred to the original indicative scheme of the Planning Department, and exhibited the Metro Planning Committee Paper No 25/10 showing the proposed amendments to the approved Outline Zoning Plan (“OZP”) and their rationales of the BHR.  He gave an account of his explanations to the Board at the two representation hearings, and exhibited relevant documents apart from the minutes of the hearings, being TBP Paper No 8822 and the indicative scheme of the Planning Department which was revised to take into account the GFA arising from inclusion of the slope area, road setback and EVA requirements.  These matters were before the Board in its deliberations and they are admissible evidence.  We are satisfied of their probable importance to the outcome of the appeal.

25.  We appreciate that not all of the matters deposed to by Ms Wong and Mr Yue were recorded or reflected in the minutes of the representation hearings, but as Mr Chan submitted, the minutes are not a complete record of all that was said.  The proper weight that should be attached to evidence that was not reflected or fully reflected in the minutes would be a question to be determined in the appeal.

26.  The entirely new matter is the affidavit of Professor Lim who gives expert opinion why the Board would have reasonably concluded that with the requirements in the OZP (such as the BHR of 130 mPD, the 10 m wide Non-building Areas, the 20 m wide Building Gap and the road setback) and the statutory requirements (such as the site coverage, plot ratio, the EVA and the prescribed window requirements), OGL should be able to fully utilise the development potential of the Site.  In other words, he seeks to demonstrate that appropriate building design could enable the extra GFA generated by the EVA and road setback to be accommodated under a BHR of 130 mPD on the Site.

27.  This new evidence to be given by Professor Lim seeks to address the judge’s point that the practical feasibility of accommodating the extra GFA under a BHR of 130 mPD on the Site “has not been demonstrated in the evidence”.  We agree with Mr Chan whether this new evidence from Professor Lim is ex post facto justification of the Board’s reasoning is not to the point.  The real issue here is whether the position of the Board is factually supportable.  If this evidence is accepted, it may demonstrate that the extra GFA could be accommodated and therefore the Board’s decision to refuse to raise the BHR of 130 mPD could not be regarded as arbitrary.  We are satisfied this new evidence would probably have an important influence on the result of the appeal.

28.  Ms Eu sought to play down the importance of the new ground to the judgment because the judge dealt with the three restrictions including the BHR as a package and argued that the new evidence would not have an important impact on the appeal.  We do not agree with this.  The fact is in respect of the challenge on the BHR, OGL succeeded on the new ground for the reasons given in paras 60 and 61of the judgment, which were quoted above.

3^rd condition in Ladd v Marshall

29.  What is required by this condition is that the evidence must be such as is presumably to be believed, or in other words, that it is apparently credible, although it need not be incontrovertible.

30.  Ms Eu contended that this condition is not met in that the court only has Professor Lim’s expert evidence at this stage and it should not be accepted at face value.  She submitted his evidence involves subjective views open to challenge.  And if OGL should file expert evidence in response, the appeal would be turned into a merits battle over expert evidence.  We think Mr Chan has provided the answer here.  Once it is accepted that there is a factual question on which experts disagree, it cannot be said that the Board had acted arbitrarily in setting a BHR of 130 mPD having regard to the factual position as supported by the view of an expert.  In the context of a judicial review, the court’s function is not to determine differences in expert opinion and it will be slow to disturb the preference of an authority for one expert technical view over another, see Popular Signs Limited v Radiation Board, HCAL 53/2008, 12/1/2010, at paras 34 to 37.  There is nothing unusual in a judicial review for the court to be provided with conflicting evidence from experts of a technical nature.

Public interest

31.  We are of the view that all three requirements in Ladd v Marshall are satisfied.  It is not strictly necessary to consider whether exceptional circumstances are made out in this instance to depart from the Ladd v Marshall principles.

32.  In any event, if it were necessary to consider whether exceptional circumstances are made out, we are inclined to think there are exceptional circumstances here.

33.  Public interest is clearly involved.  The appeal does not only involve the Board and OGL.  The outcome of this appeal will have an important impact on the townscape in the general areas surrounding the Site.  The imposition of the BHR of 130 mPD would be important in terms of ensuring that the character of the neighbourhood with heritage features are respected and that the local living environment in terms of visibility and air ventilation is not adversely and irrevocably affected by any out-of-context developments.  The public and all the residents in the vicinity of the Site have a significant interest in the outcome of the appeal.

34.  Besides, the issues in the appeal focus on questions of arbitrariness, rationality and necessity of the decision-making process of the Board.  Information on the reasoning process and the matters taken into consideration by the Board are clearly of importance in resolving important legal issues in the present proceedings.  Justice demands that this court should be given the benefit of all highly relevant material particularly when one takes into account the public interest involved in the present litigation.

35.  Ms Eu urged upon us the prejudice that would be suffered by OGL in that there would be further delay with the admission of new evidence.  We are not persuaded that this should sway the balance in favour of OGL.  Nor do we think the stay of execution of the judgment pending appeal ordered by the judge is of any significance.

36.  In our view, the Board has made out an appropriate case for new evidence to be admitted on appeal.  The Board should have an opportunity to adduce the evidence it would have adduced on the new ground if it had been squarely and properly raised in the proceedings below.  We exercise our discretion to admit the further evidence as sought and will hear the parties on consequential directions.