ROYAL BILLION INVESTMENT LTD v. THE TOWN PLANNING BOARD

HCAL 1916/2018

[2021] HKCFI 1093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1916 OF 2018

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J U D G M E N T

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INTRODUCTION

1.  This is an application for judicial review of the decision (“the Decision”) of the Town Planning Board (“the Board”) made on 15 June 2018 not to amend the Approved Sha Tin Outline Zoning Plan No S/ST/34[1] (“the Subject OZP”) under s 12A of the Town Planning Ordinance, Cap 131 (“the Ordinance”), which decision was communicated to the Applicant by a letter dated 6 July 2018 (“the Decision Letter”).  In what follows, unless the context indicates otherwise, references to “Section” or “s” shall be to the Ordinance.

BASIC FACTS

(i) The Site

2.  The Applicant is the registered owner of Lots 379 and 380RP in DD 186, Tung Lo Wan Hill Road, Shatin (“the Site”).

3.  The Site, of about 15,410m² in size, is located at To Fung Shan, Shatin.  It sits on sloping ground with the existing site level ranging from 77mPD to 130mPD.  It occupies a quiet, secluded, spot in a scenic setting on a high topographic point, with the Needle Hill ridgeline forming the backdrop.  The Site is mostly covered with dense vegetation and trees, with a minor formed portion on the southern part of the Site[2].  The immediate surroundings of the Site are primarily hill slopes densely covered with vegetation and mature trees.

4.  To the immediate south of the Site is Sha Tin North Service Reservoir (“the Reservoir”), to its east is To Fung Shan Christian Centre, and to its north is Lutheran Theological Seminary.

5.  There are some private housing developments to the further south and south-east of the Reservoir, including Peak One and Pristine Villa, which are about 160m to 200m away from the Site.

6.  The only road access to the Site is via Tung Lo Wan Hill Road (“the Road”), a narrow road of 3.5m - 5.5m in width (which can only permit one lane of traffic) with a steep gradient of 1 in 6, which exceeds the maximum gradient specified in the Transport Department’s Transport Planning and Design Manual (“TPDM”) and does not comply with TPDM requirements[3].

(ii)     The Site’s zoning

7.  The Site was previously zoned “Residential (Group B)” (“R(B)”) on Draft Sha Tin Outline Zoning Plan No LST/69 gazetted on 25 August 1978, but was rezoned to “Green Belt” (“GB”) on Draft Sha Tin Outline Zoning Plan No LST/69E gazetted on 6 May 1983.  This change was made pursuant to the findings of a detailed planning and engineering investigations of a Government inter-departmental working group for possible development of To Fung Shan, which concluded that the To Fung Shan woodland should be preserved and enhanced, the major part of To Fung Shan would not be suitable for large scale residential development (on both accessibility and landscaping grounds), and any massive residential development would involve substantial cut and fill operations which would destroy the existing fine vegetation and good quality woodland.

8.  Pausing here, it may be noted that:

(1) The planning intention of “GB” zone is primarily for defining the 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 a “GB” zone[4].

(2) The planning intention of “R(B)” zone is primarily for medium-density residential developments where commercial uses serving the residential neighbourhood may be permitted on application to the Board[5].

9.  The “GB” zoning of the Site has remained unchanged, and there has been no major change in the condition of the Site, since 1983.  There were two previous rezoning requests made in November 2006 and May 2007 in respect of the Site.  The first one was withdrawn.  The second one, for rezoning the Site to “Comprehensive Development Area (2)”, was rejected by the Board on 1 February 2008 on the ground (inter alia) that the Site, together with the surrounding “GB” areas, were covered with dense vegetation and mature trees which served as a backdrop to the area.  There were also 9 pervious s 16 applications for residential development on the Site, all of which were either withdrawn or rejected except one for a single house of three storeys over one storey of carport, with a proposed GFA of 518.17m², which was approved with conditions in 2008.  The relevant permission, however, lapsed on 8 November 2016.

10.  Since May 1983, the Site, together with the major part of To Fung Shan, serve as a green buffer between Shing Mun Country Park on the north-western side of the Site and the major developments in Sha Tin New Town on the south-eastern side of the Site.

11.  For the sake of completeness, I should mention that there is a small portion of the Site (0.9% of the Site area) which is zoned “Government, Institution or Community” (“G/IC”), under the Subject OZP.  However, that small portion of the Site zoned “G/IC” is not material for the purpose of the present discussion.

(iii)    The s 12A application

12.  By an application No Y/ST/38 (“the Application”) dated 19 December 2017, the Applicant applied to the Board under s 12A to rezone the Site from “GB” and “GIC” to “R(B)4” with a maximum plot ratio of 2.1 and maximum building height of 165mPD.  The Application was received by the Board on 27 December 2017.  As indicated in the Supplementary Planning Statement submitted by the Applicant’s consultant, Llewelyn Davies HK Ltd, dated March 2018 (“the Supplementary Planning Statement”), the Applicant proposed to develop the Site for a residential development (“the Proposed Development”) consisting of four towers of up to 25 storeys (20 domestic floors over 1 level of clubhouse, 1 level of lobby and 3 levels of carports) and six 2-unit houses, to provide approximately 390 residential units (housing about 1,170 people) and 132 car parking spaces.

13.  The Applicant’s submissions, the comments of various Government Departments, including the Director of Agriculture, Fisheries and Conservation (“DAFC”), the Chief Architect/Central Management Division 2, Architectural Services Department (“CA/CMD2, ArchSD”), the Chief Town Planner/Urban Design and Landscape of Plan D (“CTP/UD&L”), the Head of Geotechnical Engineering Office of Civil Engineering and Development Department (“H(GEO) of CEDD”), the Commissioner of Transport (“C for T”) and the Director of Leisure and Cultural Services (“DLCS”), public comments as well as the views of the Planning Department (“PlanD”) on the Application were consolidated into a RNTPC Paper No Y/ST/38A (“the RNTPC Paper”).

14.  The RNTPC Paper was provided to the Applicant on 8 June 2018.  At §12.1 of the RNTPC Paper, PlanD stated that it did not support the Application for the following reasons:

“(a) the Site together with the surrounding ‘GB’ zone was covered with dense vegetation and mature trees, which serves as a green backdrop to the area. The current zoning is considered appropriate and there is no strong justification to rezone the Site from ‘GB’ to ‘R(B)4’ from land use planning point of view;

(b) the applicant fails to demonstrate that the proposed rezoning would not have adverse visual, landscape and nature conservation impacts on the surrounding areas;

(c) the applicant fails to demonstrate the feasibility of the proposed road widening works; and

(d) the approval of the subject application will set an undesirable precedent for other similar development proposals in the ‘GB’ zone.  The cumulative impact would result in further degradation of natural environment, and compromise the integrity of the ‘GB’ buffer between the Shing Mun Country Park and Sha Tin New Town.”

I shall come back to PlanD’s detailed justification for the above views later in this judgment.

15.  The Application was considered by the Board’s Rural and New Town Planning Committee at a meeting on 15 June 2018 (“the Meeting”). At the Meeting, the Senior Town Planner/Sha Tin, Tai Po and North of PlanD gave a presentation of, among other matters, the background to the Application, the Applicant’s proposal, the Departmental comments, the public’s comments and PlanD’s views as detailed in the RNTPC Paper.  The Board also received an oral presentation by the Applicant’s representatives (Ms Winne Wu and Mr Richard Kan).

16.  After the presentations, the Board members raised questions with PlanD and the Applicant’s representatives on issues including the proposed road widening works, the planning intention of the Site, the visual impact of the Proposed Development, the ecological and landscape impact assessments, the associated site formation works, and the principles adopted by the Government when reviewing “GB” sites.

17.  After the question and answer session (the open session), the Board members deliberated on the Application in a close session. Eventually, the Board decided to reject the Application.  In the Decision Letter dated 6 July 2018, the following reasons were given by the Board for the Decision:

“After giving consideration to the application, the TPB decided not to agree to your application and the reasons are:

(a) the site together with the surrounding ‘Green Belt’ (‘GB’) zone is covered with dense vegetation and mature trees, which serves as a green backdrop to the area. The current zoning is considered appropriate and there is no strong justification to rezone the site from ‘GB’ to ‘Residential (Group B) 4’ from land use planning point of view;

(b) your fail to demonstrate that the proposed rezoning would not have adverse visual, landscape and nature conservation impacts on the surrounding areas;

(c) you fail to demonstrate the feasibility of the proposed road widening works and that it would not cause adverse landscape impact; and

(d) the approval of the subject application will set an undesirable precedent for other similar development proposals in the ‘GB’ zone.  The cumulative impact would result in further degradation of the natural environment, and compromise the integrity of the ‘GB’ buffer between the Shing Mun Country Park and Sha Tin New Town.”

APPLICATION FOR JUDICIAL REVIEW

18.  On 12 September 2018, the Applicant made the present application for leave to apply for judicial review of the Decision. 7 grounds of judicial review are raised in the Form 86, at §38:

(1) breach of principle of equality and failure to give proper reasons (“Ground 1”);

(2) taking into account an irrelevant consideration (“Ground 2”);

(3) failure to take into account or give weight to relevant matters (“Ground 3”);

(4) breach of Tameside duty (“Ground 4”);

(5) procedural unfairness (“Ground 5”);

(6) erroneous understanding of relevant planning principles (“Ground 6”); and

(7) Wednesbury unreasonableness or irrationality (“Ground 7”).

19.  On 21 September 2018, the court granted the Applicant leave to apply for judicial review.

20.  On 29 May 2020, the Applicant applied for leave to amend the Form 86 in order to raise the following additional argument as part of Ground 7 (Wednesbury unreasonableness or irrationality):

“The Board’s almost wholesale adoption of the proposed reasons in the RNTPC Paper and its failure to give adequate reasons as to why it is said that the Applicant fails … to demonstrate [that the proposed rezoning would not have adverse visual, landscape and nature conservation impacts on the surrounding areas] is itself also Wednesbury unreasonable.”[6]

For the sake of convenience, I shall refer to this argument as “Ground 8” of judicial review.

GOVERNMENT’S GREEN BELT REVIEW

21.  Since 2011, PlanD has been undertaking land use reviews of Government land, including “GB” sites (“GB Review”).  Between 2013 and 2017, some 318ha of land zone “GB” was rezoned to other uses, including 33 sites (of about 73ha) which were rezoned for residential development.

22.  For this purpose, a two-stage review of “GB” sites was carried out.  The two stages of “GB” Review (“Stage 1” and “Stage 2” respectively) are described in the 1^st Affirmation of Woo Jacinta Kit Ching (“Woo 1”), Deputy Director of Planning/District and Secretary to the Rural and New Town Planning Committee of the Board, filed on 18 January 2019, at §§10-11:

“[10] These rezoned ‘GB’ sites were identified through a two-stage review and other land use reviews by PlanD. The first stage of the ‘GB’ review mainly covered ‘GB’ areas which were formed, deserted, or de-vegetated, and possessed potential for residential development. The second stage of the ‘GB’ review covered ‘GB’ zones on the fringe of built-up areas close to existing urban areas and new towns with transport and infrastructure facilities such as public roads, and those vegetated areas with relatively low buffering effect and conservation values … As with other sites rezoned for housing purposes, in proposing rezoning of ‘GB’ sites, the Government will, according to the established mechanism and criteria, assess a host of factors including transport and infrastructure capacity, provision of community facilities, development constraints, potential impact on the local environment, landscape, visual and air ventilation impacts, etc. to ensure that there will not be an insurmountable or unacceptable impact on the local community.

[11] In the process of identifying suitable ‘GB’ sites for rezoning, relevant departments such as the Civil Engineering and Development Department (CEDD), the Transport Department (TD), the Housing Department (HD), the Drainage Services Department (DSD), the Environmental Protection Department (EPD), the Agriculture, Fisheries and Conservation Department (AFCD), the Water Supplies Department (WSD), and the Lands Department (LandsD), etc. would be consulted to ascertain the technical feasibility of these sites for housing development and to establish that the rezoning would not cause an unacceptable or insurmountable impact from traffic, environment, visual and other points of view.  Depending on the facts of the individual case and the advice of the departments concerned, preparation of impact assessment and/or proposal of mitigation measures (to address any problems) may be required.”

23.  As further explained by the Secretary for Development in answer to Legislative Council Questions on 18 March 2015, the sites identified by PlanD in Stage 2 of GB Review relate to sites -

“on the fringe of ‘GBs’ or are close to developed areas or public roads. These ‘GB’ sites, through vegetated, have relatively less buffering effect and lower conservation value. As these sites are close to supporting infrastructure facilities (e.g. those related to transport, water supply and sewerage, etc.), they are considered having good potential to be rezoned for housing purpose and suitable for urban expansion.”

CONSIDERATION OF REZONING PROPOSALS BY GOVERNMENT AND PRIVATE DEVELOPERS

24.  Section 12A permits an application to be made to the Board to amend an approved plan, and gives the Board power to either accept the application, in whole or in part, or refuse it.

25.  According to Ms Woo, regardless of whether a rezoning proposal is made by the Government or the private sector, the application goes through the same statutory planning procedures under s 12A. Amongst other matters, an applicant is required to demonstrate to the Board that the relevant proposal would not result in any insurmountable or unacceptable impact on the local community.  The Board would consider whether all relevant Government departments have been consulted and agreed to the proposal, whether any technical assessments required by those departments have been carried out, and whether appropriate mitigation measures have been proposed to address any identified adverse impact that would arise from the proposal.

26.  As further explained in Woo 1:

“[12] … In the course of obtaining departmental support for a proposal, depending on the precise facts of any particular case, technical assessments may (or may not) be necessary for one or more aspects; they may (or may not) be required prior to the grant of a department’s support or for the purpose of securing such support; they may (or may not) be required to be carried out for the purpose of identifying measures to mitigate a possible adverse impact of the proposal; and they may (or may not) be required to be carried out as part of the implementation of a proposal after its approval. Where mitigation measures have been identified as being necessary, the relevant departments may seek to address these by way of stipulation in the conditions of a future lease. What is required in any one case really all depends on the facts and circumstances of each particular case. The same process applies to proposals submitted by private developers.

[13] In considering any such proposal to rezone a ‘GB’ site for housing development, the Board would consider a host of factors, including land use compatibility, proposed development parameters, accessibility, potential impact (from various aspects such as traffic and transport, ecological, visual, air ventilation, landscape, etc), effectiveness of mitigation measures (if proposed), adequacy of infrastructure support, and social welfare and community facilities. Comments from relevant Government departments would also be taken into consideration by the Board.  If the Board is satisfied that the rezoning proposal is acceptable and agrees to amend the relevant OZP, the amendments would be gazetted under ss 5 or 7 of the Ordinance for public inspection…”

THE APPLICATION WAS FUNDAMENTALLY OBJECTIONABLE FROM A PLANNING POINT OF VIEW

27.  The discussion in this section should be read bearing in mind that the Application was not for specific approval of, or permission to proceed with, the Proposed Development, but to rezone the Site from “GB” to “R(B)4”.  The Proposed Development was “an indicative development scheme” put forward by the Applicant before the Board for consideration of the Application.  If the Application was successful, the new zoning of the Site would not be tied to the Proposed Development, and the Applicant would, subject to other relevant constraints imposed by law and/or the Government lease, be free to pursue other forms of residential development as permitted by the proposed “R(B)4” zoning.

28.  Nevertheless, the Proposed Development was not irrelevant to the consideration of the acceptability of the Application from a planning point of view.  This is because the Application was to rezone the Site from “GB” to “R(B)4” for “a medium-density private residential development subject to a maximum PR of 2.1 and a maximum building height of 165mPD”[7].  The Proposed Development was put forward by the Applicant to “demonstrate the technical feasibility of the proposed rezoning”[8], and reflected the likely form and intensity of the resulting development should the Application be approved.  At §4.1.2 of the Supplementary Planning Statement, the Applicant’s consultant stated that “[i]t is estimated that the proposed development on the site would generate a GFA of not more than 32,361m² capable of providing about 390 units to accommodate a population of about 1,170”, housed in 4 mid-rise tower blocks and 4 low-rise houses with a maximum building height of not more than 165mPD.  Tin my view, the Board was entitled to consider and assess the acceptability of the Application from a planning point of view by reference to the parameters and broad scheme of the Proposed Development.

29.  It is PlanD’s position that the Application was fundamentally objectionable from a planning point of view in the following aspects:

(1) The Proposed Development and/or rezoning of the Site would undermine the function and integrity of the “GB” zone in question, and is inconsistent with the planning concept for Sha Tin New Town.

(2) The visual impact of the Proposed Development would not be in line with the local context.

(3) The Applicant failed to demonstrate that the Proposed Development would not bring about unacceptable adverse landscape and nature conservation impact.

(4) The Applicant failed to demonstrate the feasibility of the proposed road widening works.

(5) The approval of the Application would or might set an undesirable precedent.

30.  In respect of (1): undermining the function and integrity of the “GB” zone as a whole, the following is stated in the RNTPC Paper:

“[11.2] The planning intention of the ‘GB’ zone is primarily for defining the 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. The Site serves the function as a buffer between the urban areas of Sha Tin New Town and the Shing Mun Country Park. In fact, the Site and its surrounding area was rezoned from ‘R(B)’ to ‘GB’ in 1983 as it is considered not suitable for large scale residential developments on accessibility and landscaping grounds. Any massive residential development would involve substantial cut and fill operations which would destroy the existing fine natural vegetation and good quality woodland. The ‘GB’ zoning of the Site remains unchanged and there is no major change in planning circumstances since then.

[11.3] While medium-density residential developments including Peak One, Sky One, Pristine Villa and The Great Hill with BHs reaching 44mPD to 108mPD are located to the south of the Site, these developments are located on much lower platforms and are separated from the Site by the existing Sha Tin North Water Reservoir zoned ‘G/IC’ … The Site, which is located on a relatively higher topographical level than the existing medium-density residential developments, currently forms an integral part of a large piece of ‘GB’ zone to the north of the existing Sha Tin North Water Reservoir zoned ‘G/IC’”.

31.  As explained by Ms Woo, the planning concept for Sha Tin New Town inherent in the Subject OZP is that development should be concentrated on the two banks of Shing Mun River, with the hillslopes on the three sides of the New Town serving as green and scenic background[9].  Further, as mentioned by Ms Lung Siu Yuk, Deputy Director of Planning/District, at §21 of her Affirmation (“Lung 1”), this planning concept is reflected in the existing land use zonings of the area in question.  Ms Jessica Chu (District Planning Officer/Sha Tin, Tai Po and North) also explained at the Meeting that:

“… the planning of Sha Tin as a first-generation new town, and the concept that has been praised by all is that there are one river, two promenades, three sides surrounded by mountains and all four sides surrounded by country parks. We wish to concentrate developments around the two promenades. And we have also reserved some open space. For these two axes, higher density developments are permitted; when it comes to the foot of the mountains, some can be permitted, but as we go up the mountains, we would like to preserve the green and natural environment and the skyline. No matter how high density an area one is living in, one only has to walk to the mountains to see the beautiful landscape. This is our planning concept for Sha Tin New Town.”[10]

32.  The Applicant’s consultant, Mr Kan Wing Ching, claims, in his 2^nd Affirmation (“Kan 2”), that in his 29 years of experience in the planning industry, he has not heard of this planning concept for Sha Tin New Town and it cannot be found in the RNTPC Paper or other public planning documents.  I see no sufficient reason or ground to disbelieve or reject the evidence of PlanD on this issue.  Anyhow, even if one were to disregard the said planning concept for Sha Tin New Town, it remains clear that the Proposed Development and/or rezoning of the Site to “R(B)4” would run contrary to the function and integrity of the “GB” zone in question, and make a significant inroad into the buffer between Sha Tin New Town and Shing Mun Country Park.

33.  In respect of (2): visual impact, the following is stated in the RNTPC Paper:

“Urban Design and Visual

[11.4] The Site, situated on a sloping ground covered with dense vegetation, trees and vacant structures, is located on a high topographic level in a scenic setting with the Needle Hill ridgeline as a backdrop overlooking the Sha Tin New Town development and Shing Mun River where the immediate surroundings are densely vegetated and predominantly natural in character. The subject ‘GB’ zone where the Site is located also serves as a ‘GB’ buffer between Shing Mun Country Park and developments in Sha Tin. While the major residential developments including Peak One, Sky One, Pristine Villa and The Great Hill with BHs reaching 44mPD to 108mPD are located to the south further down Tung Lo Wan Hill Road towards the Sha Tin New Town … CTP/UD&L, PlanD considers that the proposed development with a maximum BH of 165mPD is not responsive to the local context as the proposed BH is substantially taller than other existing residential developments located at a lower site level.

[11.5]   The proposed development is anticipated to affect the landscape and aesthetic value of To Fung Shan area.  In particular, it will block majority of the existing view towards the Sha Tin New Town from the walking trail.  However, for the VIA submitted, CTP/UD&L, PlanD considers that some of the photomontages are inaccurate and fails to effectively reflect the potential visual impact of the proposed development.  CA/CMD2, ArchSD also considers that the proposed development is undesirable from visual impact point of view and may not be compatible to the adjacent developments.”

34.  As further explained by Ms Woo, the Proposed Development, with a building height of 165mPD, would not be in line with the local context.  It would be substantially higher than the nearest existing buildings, which have about half the number of storeys and building heights ranging from about 44 to 108mPD.  In addition, the Site is on a higher topographic level (ranging from 77mPD to 130mPD) and further up the slope than the nearby developments, namely, Peak One and Pristine Villa.  The visual impact of the Proposed Development would be significant.  PlanD did not accept the Applicant’s argument that the visual impact would only be “moderate”, or the adequacy of mitigation measures proposed by the Applicant (such as providing a 15m-wide breezeway, or reducing the plot ratio from 2.3 to 2.1 and building height from 27 to 25 storeys, or setting the residential blocks back and retaining the “northwestern portion of tree group”).  In respect of these mitigation measures, PlanD’s comments were:

“[2.18] The ‘GB’ zone along with the mountain backdrop of Needle Hill provides greenery sustaining the visual amenity of the area. Given that the site falls within the ‘GB’ buffer between the Shing Mun Country Park and Sha Tin New Town, there allows visual access between the Sha Tin Town Centre and the undulating hillslopes towards the distant backdrop, which are currently visual resources enjoyed by public viewers in the vicinity. From the photomontages provided in the VIA, the proposed scheme would partially obstruct such visual linkage and openness. Although the 15m wide visual corridor/breezeway formed by the residential towers offers some visual permeability, it cannot compensate for intruding the ridgeline view from the Sha Tin Town Centre (VP6) and blockage of views from the villages at its immediate north (VP8). The proposed development still appears as a cluster of buildings monotonous in height and disrupts the ridgeline in the photomontages where the proposed development is viewable.

[2.19] Besides the minimum 15m building separation, it is also doubted whether other mitigation measures can be justifiably effective in alleviating the visual impacts induced by the proposal… The proposal should have paid due respect to the topography of the site and minimized the use of tall and massive retaining walls to make it more visually compatible/integrated with the surrounding environment. We cannot concur that the mitigation measures could make up for the visual impacts induced.”[11]

35.  At the hearing of the present application, there was some substantial debate on the visual impact of the Proposed Development from the point of view of a person at a particular point (“viewpoint 8”) located to the north of the Site on a walking trail (“the Walking Trail”) off To Fung Shan Road, as illustrated by (i) a photomontage (“VP8”) prepared by the Applicant’s landscape consultant, Axxa Group Ltd (“Axxa”), which PlanD considered to be inaccurate and fail to correctly reflect the significant visual impact of the Proposed Development, and (ii) a “corrected” photomontage (“the New Photomontage”) produced by PlanD at the Meeting. I shall come back to these photomontages when I consider Ground 5 of judicial review (procedural unfairness).

36.  In respect of (3): landscape and nature conservation impact, the following is stated in the RNTPC Paper:

“[11.6] CTP/UD&L, PlanD has reservation on the application from the landscape planning perspective as the proposed walking trail and seating decks at the north-western part of the Site fail to take into consideration the preservation of existing trees and would have conflicts with the tree protection zone. There is also no detailed assessment on the proposed widening of Tung Lo Wan Hill Road to assess the potential impact on existing trees and landscape resources. DLCS also considers that other alternatives maybe explored so as to minimize the number of LCSD’s trees to be affected.

[11.7]   H(GEO), CEDD considers that geotechnical features within and immediately adjacent to the Site may be affected by the proposed development.  As such, the applicant’s claim that the extent of any slope works will not extend further beyond the compensatory planting area is doubtful.  DAFC considers that the overall impact on the native secondary woodland, which is of moderate ecological value, resulted from the proposed development cannot be ascertained at this stage. Besides, considering that the development proposal is indicative in nature, the inclusion of the secondary woodland in the rezoning application, where ‘Flat’ and ‘House’ uses would be permitted as of right in the proposed ‘R(B)4’ zone, might not guarantee the preservation of this piece of woodland.”

37.  Ms Woo summarises the position as follows:

(1) The extent of woodland loss was uncertain, the merits of the compensatory planting scheme were questionable, and the (Applicant’s) conclusion that the overall residual impact of the Proposed Development would be reduced to an acceptable level was ungrounded.

(2) Further, the proposed walking trail and seating decks at the north-western part of the Site failed to take into consideration the preservation of existing trees and would conflict with the tree preservation zone.  There was also absence of detailed assessment of the potential impact on the existing trees and landscape resources arising from the proposed widening of the Road.[12]

38.  In respect of (4): feasibility of the proposed road widening works, the following is stated in the RNTPC Paper, at §11.8:

“As a traffic improvement measure, the applicant proposed to widen a section of Tung Lo Wan Hill Road which falls outside the Site. C for T considers that the proposed widening of Tung Lo Wan Hill Road is the critical traffic issue of the application, and the applicant should seek confirmation from the relevant departments that the proposed road works is both technical[ly] feasible and acceptable to these departments. In this regard, the applicant fails to prove that relevant departments have confirmed that the proposed road widening is both [technically feasible] and acceptable to them. Whilst the applicant undertakes to design and construct the road widening works to the satisfaction of the TD and HyD, and be responsible for the future management and maintenance before relevant Government departments take up such responsibilities, C for T considers that the proposed access road does not comply with the TPDM requirements and will not take up the traffic management of the concerned road. Besides H(GEO), CEDD also considers that there is insufficient information provided by the applicant to demonstrate the geotechnical feasibility of the proposed road widening works at this stage. In this regard, it is premature to conclude that the proposed road works is technically feasible and acceptable to relevant departments, and the prospect of the implementation of the proposed road works is doubtful. Given that no Government department has agreed to take up the management and maintenance of the concerned road and the management and maintenance responsibility of the concerned road upon its completion has not been resolved, the scenario that the future flat owners being required to take up such responsibility may not be a desirable arrangement as it might lead to potential implications and create legal disputes in long term.”

39.  As earlier mentioned, the only means of road access to the Site is via the Road, a substandard road with a gradient of 1 in 6 which exceeds the maximum gradient specified in TPDM.  It is a narrow road which permits only a single lane of traffic.  PlanD considers that without a feasible and proper means of access, it would not be justifiable to rezone the Site for residential development as proposed by the Applicant.  Thus, the availability of a proper road access to the Site is critical to whether a development of the magnitude proposed by the Applicant could be supported.

40.  PlanD further considers that the Applicant failed to show that the fundamental access problem could be addressed or overcome.  The Geotechnical Planning Review Report (the main body of which comprised less than 3 pages[13]) produced by the Applicant did not provide any real technical details of substance[14], and amounted to “at best … a statement that a study should be carried out at a later stage.  There was no real feasibility study available or put before the Board”[15].

41.  Given the lack of substance of the Geotechnical Planning Review Report, the Commissioner for Transport considered that it was premature to conclude that the proposed road widening works were technically feasible[16], and the Civil Engineering and Development Department stated that no geotechnical comments on the proposed road widening works could be provided because the Applicant’s report did not give any technical details[17].  The Commissioner for Transport also asked the Applicant to obtain confirmation from the relevant Government departments that the works were technically feasible, but the Applicant failed to do so.

42.  Lastly, in respect of (5): undesirable precedent, the following is stated in the RNTPC Paper, at §11.10:

“Given the planning intention of the ‘GB’ zone, and that the Site falls within the ‘GB’ buffer between the Shing Mun Country Park and Sha Tin New Town which allows visual access between the Sha Tin Town Centre and the green backdrop of Needle Hill, the approval of application would set an undesirable precedent for other similar rezoning applications in the area for other residential developments. The cumulative effect of approving these applications would result in further degradation of natural environment, and compromise the integrity of the ‘GB’ buffer between the Shing Mun Country Park and Sha Tin New Town.”

43.  At the Meeting, the Applicant argued that the Application, if approved, should not be considered as creating an undesirable precedent because there had already been 33 other rezoning proposals initiated by the Government between 2013 and 2017, including 3 sites in the Sha Tin area in 2015.  PlanD did not accept this argument, because the question was not simply whether there had been other cases of rezoning in the past, but whether the approval of the Application, with a proposed development which would be very incongruous in its setting, would provide a bad example encouraging similar incongruous applications[18]. In respect of the 3 successful rezoning applications in the Sha Tin area in 2015, as pointed out by Ms Woo, they, unlike the Site, did not fall within the “GB” buffer between Shing Mun Country Park and Sha Tin New Town[19].

44.  The Board accepted the views of PlanD that the Application was objectionable, and rejected the Application.  In respect of PlanD’s views accepted and adopted by the Board, the well-established approach of the court in an application for judicial review of the Board’s decision is that it should not attempt to take on the role of a fact finding tribunal, or become bogged down in minutiae, or undertake a detailed assessment of their merits.  Instead, the court should evaluate them in a broad manner, and be vigilant against excessive legalism creeping in.

45.  In Cran v Camden London Borough Council [1995] RTR 346 concerning a challenge to the decision of a local authority to introduce a controlled parking zone, McCullough J explained the court’s approach in an application for judicial review in relation to matters of detail which had already been considered by the decision-maker, as follows (at 365G-366A):

“It is not the function of this court to evaluate such matters in detail. Many of the statements made by the council's officers which have been questioned in these proceedings are expressions of professional judgment which the court is not equipped to evaluate. Even in relation to what one might call bare statements of fact in a report, what can at first appear to the layman to be unwarranted may, on inquiry and after reference to a number of other documents, be shown to be tenable, or even demonstrably sound. To spend half an hour looking at two paragraphs in a report which the committee members to whom it was addressed probably considered in a minute risks turning an application to quash a decision on the ground that it was taken unlawfully into a retrial of its merits.

The court must approach these questions broadly, bearing in mind the well known observations of Lord Brightman in Reg. v Hillingdon London Borough Council, Ex parte Puhlhofer [1986] 1 AC 484 , 518, albeit in the context of a different subject matter, and those of Griffiths LJ in Reg. v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] QB 227 , 260F about the importance of the court not becoming bogged down in minutiae or led into the error of taking over the role of a fact finding tribunal.

In virtually every administrative decision of any complexity it will be possible to point to some factors which arguably were wrongly taken into account or left out of account, but it does not necessarily follow that the court should conclude that the decision was not lawfully taken, let alone that relief should be granted.”

46.  In R (Mansell) v Tonbridge and Malling BC [2019] PTSR 1452 concerning a challenge to a planning decision, Lindblom LJ also observed at §41 that:

“The Planning Court - and this court too - must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court … The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but - at local level - to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and - on appeal - to the Secretary of State and his inspectors. They should remember too that the making of planning policy is not an end in itself, but a means to achieving reasonably predictable decision-making, consistent with the aims of the policy-maker. Though the interpretation of planning policy is, ultimately, a matter for the court, planning policies do not normally require intricate discussion of their meaning. A particular policy, or even a particular phrase or word in a policy, will sometimes provide planning lawyers with a ‘doctrinal controversy’. But even when the higher courts disagree as to the meaning of the words in dispute, and even when the policy-maker’s own understanding of the policy has not been accepted, the debate in which lawyers have engaged may turn out to have been in vain - because, when a planning decision has to be made, the effect of the relevant policies, taken together, may be exactly the same whichever construction is right: see para 22 of my judgment in the East Staffordshire case [2018] PTSR 88. That of course may not always be so. One thing, however, is certain, and ought to be stressed. Planning officers and inspectors are entitled to expect that both national and local planning policy is as simply and clearly stated as it can be, and also - however well or badly a policy is expressed - that the court’s interpretation of it will be straightforward, without undue or elaborate exposition. Equally, they are entitled to expect - in every case - good sense and fairness in the court’s review of a planning decision, not the hypercritical approach the court is often urged to adopt.”

47.  PlanD’s views regarding as the importance of maintaining the “GB” buffer between Shing Mun Country Park and Sha Tin New Town, the potential adverse visual, landscape and nature conservation impacts arising from the Proposed Development, the feasibility of the proposed road widening works, and the undesirability of setting a bad precedent, are matters of judgment requiring the application of specialist knowledge, skill, expertise and experience.  PlanD is much better placed than the court to assess those matters.  PlanD was entitled to come to, and the Board was entitled to accept, those views.  The court should not interfere with their assessments on these matters in the absence of manifest error or Wednesbury unreasonableness.  Subject to the discussion below relating to the specific challenges raised by the Applicant, I consider that the Board was entitled to reach the conclusion that the Application was objectionable from a planning point of view, and on that basis reject the Application.

48.  I shall now deal with the Applicant’s 8 grounds of judicial review in the same order in which they are raised, save that I shall consider Ground 5 (concerning the Board’s failure to provide the Applicant with a reasonable opportunity to address the New Photomontage produced by PlanD at the meeting) after I have considered Grounds 6 and 7 which both concern the issue of the visual impact of the Proposed Development.

GROUND 1 - BREACH OF PRINCIPLE OF EQUALITY AND FAILURE TO GIVE PROPER REASONS

49.  Under Ground 1, the Applicant argues that the Board failed to apply the law consistently and even-handedly as between (i) the Applicant in respect of the Application for rezoning of the Site and (ii) the Government in respect of similar proposals for rezoning of Government sites. Further or alternatively, the Board failed to give reasons for not affording similar or equal treatment to the Application for rezoning of the Site and similar proposals for rezoning of Government sites[20].

50.  In particular, it is argued that:

(1) The Board failed to apply the same approach and standard to the Application that the Board applied to the proposals by the Government in respect of 4 other sites (“Site 2”, “Site 3”, “Site 4” and “Site 5” respectively, and collectively “the Comparable Sites”) between 2015 and 2018, details of which are set out in Appendix 3 to the Form 86.

(2) The Board failed to consider and/or give proper reasons for distinguishing the Sites from the Comparable Site without even going into their specific features and the criteria or approach adopted in their rezoning proposals[21].

(i) The argument about inequality of treatment or approach

51.  Sites 2 to 4 are in Sha Tin, while the remaining one, Site 5, is in Tai Po.

(1) For Site 2 (Lai Ping Road, Kau To), the Board approved the Government’s application to rezone it from “GB” to “R(B)2” with an approved plot ratio of 3.6 and approved building height of 140mPD (approximately 20 storeys).

(2) For Site 3 (North of To Shek Service Reservoir, near To Shek Street), the Board approved the Government’s application to rezone it from “GB” to “R(B)2” with an approved plot ratio of 3.6 and approved building height of 120mPD (approximately 20 storeys).

(3) For Site 4 (Tai Po Road, near Sha Tin Heights), the Board approved the Government’s application to rezone it from “GB” to “R(B)3” with an approved plot ratio of 2.5 and approved building height of 160mPD (approximately 12-13 storeys).

(4) For Site 5 (Ma Wo Road, Tai Po), the Board approved the Government’s application to rezone it from “GB” to “R(B)10” with an approved plot ratio of 4.0 and approved building height of 110mPD (approximately 13 storeys).

52.  The Applicant argues that the Board adopted a more favourable approach towards the Government’s rezoning applications in respect of the Comparable Sites:

(1) The Board did not require detailed or technical assessments for the Comparable Sites on (i) landscape impact, (ii) tree preservation/compensation, (iii) ecology, (iv) geotechnical aspects, and/or (v) feasibility and landscape impact of proposed road works, but was prepared to leave various areas of concern to be addressed by appropriate lease conditions (to be imposed), or accept the Government’s assertions that there would be no insurmountable or unacceptable problems without requiring detailed or technical assessments to be presented before the Board.

(2) The Board should have adopted a similar approach in relation to the Application, at least in relation to landscape, tree preservation/compensation, ecological assessment and traffic aspects.

(3) Insofar as the Board was satisfied with the assessments in respect of the Comparable Sites, including landscape impact assessment, nature conservation impact assessment, and geotechnical or natural terrain hazard studies, the Board should also have been satisfied with those for the Site.

(4) The Board should have done no more than require a tree preservation clause, or covenant to carry out road widening, to be incorporated in a future lease for the Site[22].

(ii)     The Site and Comparable Sites are not relevantly similar

53.  The principle that, prima facie, broad statutory powers ought to be exercised with regard to the principle of equality is not, I understand, to be disputed.  I do not therefore propose to examine the authorities referred to in §40 of the Form 86.  However, the mere fact that the Board has approved the Government’s rezoning applications in respect of the Comparable Sites, even if they share some superficial similarities to the Site, is not, by itself, a sufficient ground to challenge the Board’s Decision in the present case.  As cogently submitted by Ms Yvonne Cheng, SC (for the Board), the Site and the Comparable Sites were not truly or relevantly similar or indistinguishable[23]. Generally:

(1) the Comparable Sites were close to existing developed areas, and some were right next to established roads, while the Site was situated in a relatively secluded location[24]; and

(2) the Comparable Sites were on the fringe of built-up areas and had less buffering effect and lower conservation value[25].

54.  Specific relevant features of Site 2 included[26]:

(1) it was situated on Lai Ping Road (a 2-lane carriageway);

(2) at the time of the application, most of Site 2 had been paved and was being used as CEED’s work area and site office[27]; and

(3) the proposed plot ratio of 3.6 and maximum building height of 140mPD were well within the ranges of developments in the vicinity[28].

55.  Specific relevant features of Site 3 included[29]:

(1) it was at the fringe of a “GB” zone;

(2) at the time of the application, part of Site 3 had been formed and used as WSD’s work area[30];

(3) close by Site 3 were large residential developments, including Shui Chuen O Estate (a public housing estate then under construction, comprising 10,700 flats with a designated population of about 30,000, in buildings with a plot ratio of about 5 and building heights ranging from 150 to 205mPD);

(4) the proposed plot ratio of 3.6 and maximum building height of 120mPD were well within the ranges of the neighbouring public housing estate; and

(5) while the road next to Site 3 would need to be widened, there was no concern with technical feasibility.

56.  Specific relevant features of Site 4 included[31]:

(1) it was situated on Tai Po Road;

(2) there were residential developments in the vicinity, including one immediately across the road, and Tsing Sha Control Area Toll Plaza on Tsing Sha Highway (a 3-lane dual carriageway) just beyond that; and

(3) there were other low to medium density developments along that section of Tai Po Road.

57.  Specific relevant features of Site 5, which was in a different district (Tai Po), included[32]:

(1) it was located on Ma Wo Road and adjacent to Tolo Highway;

(2) it was at the urban fringe of Tai Po, near Tai Po Market Station[33];

(3) it had less buffering effect, being visible only from a few points in the vicinity, with minimal effect on public views[34];

(4) it was located immediately next to a number of residential developments, including Classical Gardens I, Classical Gardens II, Dynasty View, Grant Dynasty View and The Balmoral in various R(B) zones all along Ma Wo Road[35]; and

(5) the proposed maximum building height of 110mPD was the same as that of another public housing estate (Wan Tau Tong Estate) at the other end of Ma Wo Road.

58.  On the other hand, the Site was not a formed, deserted or de-vegetated site, and was not close to a public road which could support the type of development contemplated.  There was no means of access to the Site which could support the number of flats and population of the Proposed Development.  While the Applicant claimed that the Road could be widened, it failed to show that the proposed road widening works were technically feasible.  The Site also formed an integral part of the “GB” zone between Shing Mun Country Park and Sha Tin New Town, and had high buffering and conservation value.  The Proposed Development had a height of 165mPD, which would be up to twice as tall as the nearby developments (ranging from 44mPD to 108mPD)[36].

59.  In view of the above differences, I consider that there can be no true comparison between the Site and the Comparable Sites.  It is nothing to the point that the Board had previously approved the Government’s rezoning applications in respect of the Comparable Sites, but rejected the Application in respect of the Site.

(iii) No difference of approach or treatment

60.  As explained by Ms Woo, the Board’s general practice when considering a rezoning application under s 12A is that the applicant is required to “demonstrate to the Board that the proposals would not result in any insurmountable or unacceptable impact on the local community.  For each such proposal, the [applicant] would need to show that all relevant departments had been consulted and agreed to the proposal, that any technical assessments required by those departments had been carried out, and that appropriate mitigation measures had been proposed to address any adverse impact identified”[37]. This approach is adopted by the Board regardless of whether the applicant is a private developer or the Government.

61.  Where the applicant is a private developer, it may not know in advance whether its proposal would be regarded by relevant Government departments as giving rise to some insurmountable or unacceptable impact on the local community, or whether its proposed mitigation measures would be accepted by the Government departments concerned.  Nevertheless, the statutory process under s 12A does allow an applicant an opportunity to address the concerns in respect of the application raised by relevant Government departments prior to the meeting before the Board (as demonstrated on the facts of the present case).

62.  Before the Board can exercise its discretion under s 12A to amend a plan, it must be satisfied that the application is a proper and acceptable one.  What materials are required to satisfy the Board that a given application is proper and acceptable and would not give rise to some insurmountable or unacceptable impact on the local community, and whether some technical assessments or reports are required to demonstrate that potential areas of concern could be appropriately addressed, must depend on the facts and circumstances of the case in question.  Decisions on these matters call for the exercise of professional judgment, and depend on, amongst other things, the seriousness of the relevant concern, the ease or difficulty of overcoming it, and its likely impact on the local community.  There cannot be a fixed rule that is applicable to all circumstances.

63.  When deciding whether to accept a rezoning application, the Board is entitled to have regard to the views of PlanD (incorporating the comments of various Government departments which have relevant knowledge and expertise on the matters).  The weight that the Board is prepared to accord to such views is generally a matter for the Board to decide.

64.  When the matter comes before the court in an application for judicial review, the court should not lightly interfere with the Board’s decision, unless the views adopted or accepted by the Board are manifestly unreasonable (ie Wednesbury unreasonable).

65.  In the present case, it was the Applicant who submitted to the Board various studies or assessments, including landscape design and tree preservation proposals, visual impact assessment, traffic impact assessment, ecological impact assessment, environmental assessment and geotechnical planning review report which were annexed to the Supplementary Planning Statement in support of the Application.  Plainly, the Applicant must have appreciated that those studies or assessments would be examined by the relevant Government departments, and can hardly complain that inadequacies were discovered and concerns raised.  It was then up to the Applicant to address those inadequacies and concerns, whether by providing additional or more detailed studies or assessments, or proposing appropriate mitigation measures.

66.  When considering the validity of the Applicant’s argument about unequal treatment or approach, it is important to bear in mind that:

(1) It has not been suggested, or shown, that the approval of the Government’s rezoning applications in respect of the Comparable Sites would actually give rise to insurmountable or unacceptable impact on the local community, or that PlanD and other relevant Government departments acted wrongly or improperly in not requiring detailed or technical assessments in respect of various issues such as landscape impact, tree preservation/compensation, ecology, geotechnical aspects, or feasibility and landscape impact of proposed road works, or in some cases accepting that possible areas of concern could be addressed by the imposition of appropriate lease conditions.  It has also not been suggested, or shown, that the Board acted improperly in accepting the views of PlanD in those cases.  I do not therefore consider it necessary to examine in detail how the Board actually assessed and disposed of various issues concerning landscape, tree preservation/compensation, ecology, geotechnical aspects, and feasibility and landscape impact of proposed road works in those cases.

(2) On the other hand, it has also not been suggested that PlanD and other relevant Government departments acted in bad faith, or otherwise improperly, in raising various issues of concern in relation to the Application.  It was, in the circumstances, a matter for the Applicant to persuade them that their concerns were satisfactorily addressed, and a matter for the Board to decide whether, having regard to the materials put before it by the Applicant and PlanD, the Applicant’s proposals would not result in any insurmountable or unacceptable impact on the local community. While the Applicant may not agree with the conclusions of the Board, the pertinent question is whether it was open to the Board to come to those conclusions.  In my view, the conclusions reached by the Board were rational and reasonable conclusions which it was open to the Board to come to on the materials before it.

67.  In all, I do not consider that the Applicant has made out its complaint of unequal treatment or approach by the Board.

(iv)    The feasibility of the proposed road widening works

68.  One of the matters which the parties have spent some considerable time at the hearing concerns the feasibility of the proposed road widening works in respect of the Road, and the alleged difference of treatment or approach of the same issue in relation to the rezoning application for Site 3.

69.  The Applicant points out that in respect of Site 3, which also required road widening works to be carried out, the Board did not require the Government to demonstrate the feasibility of the proposed works, or produce any geotechnical planning review report, landscape impact assessment, or tree preservation/compensation proposal in respect of those works.  Instead, the Transport Department merely stated, or commented, that “the future developer should be required to upgrade the section of the road leading to the site to a standard 7.3m wide road with footpath on one side for the proposed private housing development”[38]. It is important to note, however, that there was no suggestion or indication that there was, or might be, any issue over the feasibility of widening the road in question.  Whether some such issues might arise was a matter of professional judgment and expertise which the relevant Government departments were in a much better position than the court to assess.  At the meeting of the Board on 27 March 2015, the Chairman expressly raised the issue of the feasibility of the access road widening, and was told by Mr C K Tsang (Senior Town Planner) that the existing local road would be ungraded from 4-5m wide to 7.3m wide with footpaths and the future developer of the site would be required to carry out the works.  The Board was, in my view, entitled to proceed on the basis that the proposed road widening works were feasible in the absence of any suggestion or indication to the contrary.

70.  On the other hand, the existing access road to the Site, ie the Road, with a width of about 3.5m to 5.5m which could permit only one lane of traffic, was accepted by the Applicant to be “substandard” and insufficient for the Proposed Development, and thus the Applicant proposed to widen the road to “a standard 7.3m wide single 2-lane carriageway with 2m footpath at one side together with a cul-de-sac at the end of the road”[39].  The Applicant’s stance throughout was that the proposed road widening works were straightforward or not difficult[40], and were technically feasible[41]. This was, however, an assertion which the Applicant failed to support by any technical or engineering study or assessment.

71.  The Government departments’ comments on the proposed road widening works were made known to the Applicant prior to the Meeting.  Those comments and the Applicant’s response thereto were set out in the Table of Responses to Departmental Comments annexed to the Applicant’s Supplementary Planning Statement as “Annex A”:

	Departmental Comments	Responses to Comments
2	Urban Design & Landscape Unit, PlanD
2.15	Access Road Outside Site
	The potential landscape impact arising from the proposed local road widening to 7.3m carriageway with 2m footpath at Tung Lo Wan Hill Road cannot be ascertained at this stage as there is no tree information/survey undertaken in the likely affected road works area.	Upon approval of the subject s.12A planning application, the Applicant will proceed to the land exchange application to facilitate the implementation of the proposed development and its associated road widening works … Tree felling approval will be required under lease prior to the commencement of the road widening works.  Tree information/survey and compensatory proposal for the affected area due to the road widening works will be undertaken by the Applicant during the subsequent stage.
3	Civil Engineering and Development Department
	Geotechnical Planning Review Report (GRPP)
3.3	The applicant should examine whether the proposed road widening works at Tung Lo Wan Hill Road would be affected by potential natural terrain hazards. The potential natural terrain landslide hazards affecting the road portion should also be addressed in the GPRR.	Please note that the road widening works is located at downslope of the proposed site.  Any landslide debris from natural terrain … will reach the proposed site before affecting Tung Lo Wan Hill Road. Also, upon approval of the subject planning application, the widened section of Tung Lo Wan Hill Road will be reviewed … Please note that the natural terrain hazard to the widened road will be reviewed in later stage, and based on the up-to-date layout in the NTHS Report Submission to GEO.
7	Transport Department
7.2	… TD would not fund, construct and manage the proposed access which would mainly serve … the development.  The applicant should confirm the proposed management and maintenance responsibilities, and seek comments from the current management authority on the proposed arrangement.  The gradient of 1:6 in the proposed access road is sub-standard from the angle of public road.  TD would not take over it upon its completion.  A lay-by should be provided at the turnaround end for use as a possible GMB stand in future.	The Applicant will construct the proposed access road at his own cost.  The Applicant will manage and maintain the proposed widened section of Tung Lo Wan Hill Road before the relevant government take up such responsibilities.  If no Government department would manage and maintain the access road, the proposed road will be managed and maintained by the developer.  Relevant departmental comments on the proposed access road arrangement have been sought.  Formal application to WSD for using the WSD access road and prior approval of WSD will be sought.  Prior agreement with LCSD will also be sought…
11	Leisure and Cultural Services Department
11.1	The widening of the existing Tung Lo Wan Hill Road would most likely affect the trees and facilities at Tung Lo Wan Hill Road Garden and the entrance of Sha Tin North Fresh Water Service Reservoir Archery Ground. The applicant should provide detailed layout, information and compensation proposal for further comment.	Since the road widening works will be included in the lease as a coloured area in future, the detail layout, information and proposals will be submitted to relevant government departments for comments.  Comment from LCSD regarding the possible impacts from the proposed road works to the Tung Lo Wan Hill Road Garden and the entrance of Sha Tin North Fresh Water Service Reservoir Archery Ground will be sought at the detailed design stage upon approval of the subject s12A planning application, the detailed layout and information will be provided, and compensation proposal will be submitted if required. If the trees in the Tung Lo Wan Hill Road Garden were affected by the proposal road widening works, the Applicant is willing to replace the affected trees, mainly Acacia confuse, with various plant species which could blossom, offering a higher ecological and aesthetic value to the Tung Lo Wan Hill Road Garden.

72.  It can be seen that by and large, other than promising to undertake the management and maintenance responsibilities of the Road after completion of the road widening works, the Applicant’s basic position regarding other concerns raised by the Government departments was that those matters would be dealt with at a later stage after the Application had been approved by the Board.  There was no real attempt to address the concerns of the Government departments, whether by way of further technical studies or proposed mitigation measures.

73.  Prior to the Meeting, the Board sent to the Applicant a copy of the RNTPC Paper on 8 June 2018, in which the concerns raised by the relevant Government departments were repeated.  In the RNTPC Paper, the following was stated in respect of the proposed road widening works:

“[9] Comments from Relevant Government Bureaux/Departments

Traffic

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

(a) Whilst TD has no in-principle objection to the application, the critical traffic issue of this application is the proposed widening at Tung Lo Wan Hill Road. The applicant shall seek confirmation from the relevant departments (e.g. CEDD, WSD, LandsD, etc.) that the proposed widening is both [technically] feasible and acceptable to these departments. Unless the applicant could provide any documents to prove that relevant departments have confirmed that the proposed road widening is both [technically feasible] and acceptable to them, it would be premature to conclude that the proposed road widening at Tung Lo Wan Hill road is technically feasible at this stage.

(b) it is noted that the developer proposes to take up the construction, management and maintenance responsibility of the proposed widening of Tung Lo Wan Hill Road … which is currently not managed by TD. In this regard, the proposed access road with a gradient of 1 in 6 has exceeded the absolute maximum gradient specified in Transport Planning and Design Manual (TPDM) and does not comply with the TPDM requirements. TD will only consider taking up the traffic management of the concerned road provided that it would comply with TPDM requirements….

[9.1.3] Comments of Head of Geotechnical Engineering Office, Civil Engineering and Development Department (H(GEO), CEDD):

(a) for the proposed road widening works outside the Site, the Geotechnical Planning Review Report submitted by the applicant does not provide any technical details. He is therefore unable to provide any geotechnical comments on the proposed road widening works at this stage; and

(b) the GEO shall provide geotechnical comments on the detailed design of the works upon receipt of the submissions via referral from the relevant authorities.

[9.1.4] Comments of the Director of Leisure and Cultural Services (DLCS):

(a) the proposed road widening works of Tung Lo Wan Hill Road will likely affect a number of trees within the Tung Lo Wan Hill Garden. The local residents and public may express their concerns on this matter. From tree preservation point of view, the works proponent may explore other alternatives if practicable so as to minimize the number of LCSD’s trees to be affected;

(b) subject to genuine need with full justifications for carrying out the works, the applicant should refer to the DEVB Technical Circular (Works) No 7/2015 for proper submission of tree removal application if necessary. Upon receiving the details of the affected trees including tree photos and the tree survey report, further comments will be provided …

Urban Design and Landscape

[9.1.9] Comments of Chief Town Planner/Urban Design & Landscape, Planning Department (CTP/UD&L, PlanD)

Landscape

(g) there is no detailed tree survey on the proposed widening of Tung Lo Wan Hill Road to assess the potential impact on existing trees and no landscape impact assessment on other landscape resources where applicable. For the affected trees, prior agreement on tree felling and compensatory tree planting proposals should be sought from the relevant tree management department(s) and copy of such agreement should be provided in the application;

[11] Planning Considerations and Assessments

…

Landscape

[11.6] CTP/UD&L … There is also no detailed assessment on the proposed widening of Tung Lo Wan Hill Road to assess the potential impact on the existing trees and landscape resources. DLCS also considers that other alternatives may be explored so as to minimize the number of LCSD’s trees to be affected.

Traffic

[11.8]   As a traffic improvement measure, the applicant proposed to widen a section of Tung Lo Wan Hill Road which falls outside the Site.  C for T considers that the proposed widening of Tung Lo Wan Hill Road is the critical traffic issue of the application, and the applicant should seek confirmation from the relevant departments that the proposed road works is both technical[ly] feasible and acceptable to these departments.  In this regard, the applicant fails to prove that relevant departments have confirmed that the proposed road widening is both [technically feasible] and acceptable to them.  Whilst the applicant undertakes to design and construct the road widening works to the satisfaction of the TD and HyD, and be responsible for the future management and maintenance before relevant Government departments take up such responsibilities, C for T considers that the proposed access road does not comply with the TPDM requirements and will not take up the traffic management of the concerned road.  Besides, H(GEO), CEDD also considers that there is insufficient information provided by the applicant to demonstrate the geotechnical feasibility of the proposed road widening works at this stage.  In this regard, it is premature to conclude that the proposed road works is technically feasible and acceptable to relevant departments, and the prospect of the implementation of the proposed road works is doubtful.  Given that no Government department has agreed to take up the management and maintenance of the concerned road and the management and maintenance responsibility of the concerned road upon its completion has not been resolved, the scenario that the future flat owners being required to take up such responsibility may not be a desirable arrangement as it might lead to potential implications and create legal disputes in long term.”

74.  It must have been clear to the Applicant that various Government departments were not yet satisfied about the feasibility of the proposed road widening works and required the Applicant to demonstrate the same by technical evidence.  In particular, the Transport Department expressly raised the issue of feasibility of the proposed road widening works, and asked the Applicant to seek confirmation from relevant departments (including CEDD, WSD and LandsD) that the proposed widening works were both technically feasible and acceptable to those departments.  The Transport Department also made it clear that unless the applicant could provide documents to show that the relevant departments had confirmed that the proposed road widening was both technically feasible and acceptable to them, it would be premature to conclude that the same was technically feasible.  As it was, the Applicant failed to obtain the requisite confirmation from the relevant departments.  The Applicant also failed to produce technical evidence to show that the proposed widening of the Road was feasible.  As earlier noted, the Geotechnical Planning Review Report produced by the Applicant and relied upon to show that there would be “no foreseeable major problem”[42] did not in fact study the technical feasibility of the proposed road widening.  The report stated, instead, that “[a]ssessment on the effect of natural terrain to the proposed road widening works at Tung Lo Wan Hill Road shall be reviewed in later stage”[43].  At the Meeting, the Applicant essentially maintained its position as set out in the Table of Responses to Departmental Comments.  In the circumstance, the Applicant can hardly complain about the Board’s conclusion that it had failed to demonstrate the feasibility of the proposed road widening works, and the consequent rejection of the Application on, inter alia, that ground.

75.  In passing, I should mention that there is a dispute on whether the Road is substandard because its gradient (1 in 6) exceeds the absolute maximum gradient specified in the TPDM and does not comply with the TPDM requirements (as stated in §58 of Woo 1).  The Applicant’s position is that the TPDM requirements are not applicable to the Road because it is an “access road” as defined under the Buildings Ordinance (Cap 123) and, as such, unless it is open to public use and forms part of the overall public road system, or where public transport is to be provided, it does not have to be designed and constructed to standards in the TPDM and the requirements of Highways Department.  Since the Applicant has proposed to take up the management and maintenance responsibilities of the Road, the TPDM requirements are not applicable[44]. PlanD accepts that if the Applicant were to be responsible for designing and carrying out the road widening works and also the further management and maintenance of the Road, it would be regarded as a “private road” and therefore the TPDM requirements would not be applicable[45]. It will be recalled, however, that the Applicant’s position was that it “will manage and maintain the proposed widened section of Tung Lo Wan Hill Road before the relevant government departments take up such responsibilities” and if “no Government department would manage and maintain the access road, the proposed road will be managed and maintained by the developer”[46].  The TPDM requirements were therefore not irrelevant, although they might be overcome by the Applicant’s proposal to manage and maintain it (by itself and/or the future developer). Anyhow, PlanD did not object to the Application because the Road was too steep and did not meet the TPDM requirements.  As pointed out by Ms Lung, leaving aside any issue concerning the gradient requirement of the Road under the TPDM, the Applicant had still failed to demonstrate the feasibility of the proposed road widening works[47]. In all, I do not consider the dispute regarding the applicability of the TPDM requirements to be material to the outcome of present case.

(v)     The Application was rejected on its merits

76.  The Board rejected the Application on the 4 grounds mentioned in the Decision Letter.  They were proper grounds for rejecting the Application on its own merits.

77.  If an application is fundamentally objectionable, it would be an improper exercise of the Board’s statutory discretion to allow it even if, for the sake of argument, the Board previously approached other rezoning applications made by the Government on an erroneous basis.  The need to act with regard to the principle of equality cannot, in my view, be taken so far as to compel a public body to make a wrong decision in order to be seen to act consistently with previous, wrong, decisions.  In my view, the objections in respect of the Application cannot be overcome by the alleged unequal treatment or approach adopted by the Board in respect of the rezoning applications for the Comparable Sites, still less by the mere fact that the Board approved the rezoning applications in respect those sites.

(vi)    No duty on the Board to explain why it approved the rezoning applications for the Comparable Sites

78.  The Applicant argues that the Board failed to give reasons for not affording similar or equal treatment to the Application for rezoning of the Site by the Applicant and similar proposals for rezoning of the Comparable Sites by the Government, and argues that the Board was duty bound to give proper and adequate reasons for distinguishing the Site from the Comparable Sites.[48]

79.  I do not accept this argument, because (i) I consider that the Board applied the same approach to the Applicant’s application for the Site and the Government’s application for the Comparable Sites, and (ii) as earlier mentioned, I consider the Sites and the Comparable Sites were not relevantly similar.  In my view, the Board was under no duty to compare the Site and the Comparable Sites, or explain why the previous applications were accepted, at any rate where they were not relevantly similar to the Site.  Where reasons are given for a decision rejecting an application (as in this case), what is required of the Board is to explain, briefly and succinctly, why it decided to reject the application so that the applicant would know the essential reasons for the Board’s decision.  The reasons given by the Board in the Decision Letter in the present case were clear and intelligible, and would enable the Applicant to understand why the Application was rejected.

GROUND 2 - TAKING INTO ACCOUNT IRRELEVANT CONSIDERATION

80.  Under Ground 2, it is argued that the Board ignored the well-settled distinction in planning law between “planning permission” and its “implementation”.  In determining whether to amend the Subject OZP, the Board should only be concerned with what should be the zoning for the Site.  Further or alternatively, the Board misdirected itself in refusing to amend the Subject OZP on the basis of its not having been satisfied with the feasibility of the Applicant’s proposed road widening of the Road[49].

81.  In support of the distinction between planning permission and its implementation, Mr Benjamin Yu, SC refers the court to British Railways Board v Secretary of State for the Environment [1994] JPL 32, and Merritt v Secretary of Statement for the Environment and Mendip District Council [2000] JPL 371.

82.  In British Railways Board, the Secretary refused to grant planning permission subject to certain conditions as recommended by an inspector because those conditions appeared to the Secretary to have no reasonable prospect of fulfilment within the five-year life of the permission.  The question in that case was whether the Secretary was correct in that view of the law.  The House of Lords held that the Secretary had misdirected himself in law.  Mr Yu relies, in particular, on the following statement by Lord Keith of Kinkel at pp 38-39:

“… The function of the planning authority was to decide whether or not the proposed development was desirable in the public interest… But there is no absolute rule that the existence of difficulties, even if apparently insuperable, must necessarily lead to refusal of planning permission for a desirable development. A would be developer may be faced with difficulties of many different kinds, in the way of site assembly or securing the discharge of restrictive covenants. If he considers that it is in his interests to secure planning permission notwithstanding the existence of such difficulties, it is not for the planning authority to refuse it simply on their view of how serious the difficulties are.

… If the condition is of a negative character and appropriate in the light of sound planning principles the fact that it appeared to have no reasonable prospects of being implemented did not mean that the grant of planning permission subject to it would be irrational in the Wednesbury sense so that it would be unlawful to grant it. If it is irrational to grant planning permission subject to a condition which has no reasonable prospects of being implemented then it must be no less irrational to refuse planning permission on the ground that a desirable condition has no reasonable prospects of implementation and therefore cannot be imposed. In truth, neither course is irrational. What is appropriate depends on the circumstances and is to be determined in the exercise of the discretion of the planning authority. But the mere fact that a desirable condition appears to have no reasonable prospects of fulfilment does not mean that planning permission must necessarily be refused. Something more is required before that can be the correct result.”

83.  In Merritt, where an inspector rejected a Grampian condition as to the provision of access on the ground that he was not convinced that there was a reasonable prospect that the condition would be fulfilled in the time limit imposed on the permission, Mr Robin Purchas QC (sitting as a Deputy Judge) referred to the aforesaid judgment of Lord Keith, and said at p 382:

“As Lord Keith indicated, the structure of planning legislation is such as to concern itself with the acceptability of the development of the land in the public interest. It is not generally concerned with the ownership of land interest or, for that matter, implementation. The benefit of permission will generally run with the land, subject to whatever conditions are imposed and, thus, a permission will only be capable of commencement within the specified period. If a Grampian condition is imposed, precluding development until the condition is met, development will not be able to commence until, and if, that occurs.”

84.  The distinction between planning permission and its implementation was also expressly recognized by Keith J (as he then was) in Delight World Ltd v The Town Planning Appeal Board [1997] HKLRD 1106, at 1115.

85.  Mr Yu goes on to argue that the Board’s duties and functions is plan making, and rezoning is inquisitorial.  The Board should, in any rezoning application, ask itself the question: what, in the public interest, is the best land use for the site in question.  It should not be constrained by the application or any indicative scheme.  In the instant case, the Board should not have refused the Application simply on the basis that the Applicant had not demonstrated that the proposed road widening works would be technically feasible.  Hence, the Board took into account an irrelevant consideration, ie the feasibility or otherwise of the proposed road widening works[50].

86.  Ms Cheng argues that “Merritt is a case of planning permission.  In Hong Kong, an application for planning permission under s.16 would be to carry out a development which, under the OZP, is a permitted use (under Notes Column 2) but subject to planning permission.  But the Applicant is not simply asking for planning permission for a use which is prima facie allowed under Column 2.  It is asking for a fundamental amendment of the OZP to enable development, on its proposed parameters, to be made a Column 1 use (use always permitted).  It simply cannot be the case that [the] Board is prohibited from considering the technical feasibility of road access to the Site when deciding whether to allow such a fundamental change”[51].

87.  There is undoubtedly a difference between an application under s 16 for “permission” as provided for in a plan in order to pursue a proposed development, and an application under s 12A to amend a plan. In the former case, any grant of permission by the Board may be subject to such conditions as the Board thinks fit under s 16(5).  On the other hand, in a rezoning application under s 12A, the Board has no power to impose conditions. The Board’s powers are limited to (a) accepting, in whole or in part, the application, or (b) refusing the application under s 12A(23).  In other words, the Board has no power to rezone the Site to “R(B)4” subject to a condition that the Applicant (or any developer) is required to provide adequate vehicular access to the Site before any development can take place.

88.  Nevertheless, as a matter of principle, it seems to me that the distinction between “planning permission” and “implementation” is still relevant in the context of an application under s 12A, bearing in mind that if a site is successfully rezoned pursuant to such application, the new zoning is not tied to any particular development.  As I see it, the focus of an application under s 12A should be whether the proposed new zoning is appropriate and acceptable from a planning point of view, and desirable in the public interest.  This having been said, the feasibility of the development proposal put forward in support of a rezoning application under s 12A is not irrelevant in considering its acceptability.  As is clear from the above quoted judgment of Lord Keith in British Railways Board, the prospect of fulfilment of a desirable condition is a relevant, albeit non-conclusive, factor which the decision-maker is entitled to take into account when deciding whether to grant a planning permission.  Moreover, as mentioned in §28 above, I consider the Board was entitled to consider, and assess, the acceptability of the Application from a planning point of view by reference to the parameters and broad scheme of the Proposed Development.

89.  On the basis that one should not concentrate on the actual form of the Proposed Development but should focus on the Application itself, which was to rezone the Site to “R(B)4” to permit “a medium-density private residential development subject to a maximum PR of 2.1 [which would translate to some 32,361m² of gfa] and a maximum building height of 165mPD”, the permissible and probable development intensity would plainly require that there be adequate road access to the substantial future development on the Site.  The availability of such road access was, in my view, clearly relevant to the question of whether the proposed new zoning of the Site was appropriate and acceptable from a planning point of view, and desirable in the public interest: see Stringer v Ministry of Housing and Local Government [1970] 1 WLR 1281, at 1294 per Cooke J (“In principle, … any consideration which relates to the use and development of land is capable of being a planning consideration”).  I do not consider that the feasibility or otherwise of the proposed road widening works was an irrelevant consideration which the Board was not entitled to take into account when determining the Application.

90.  As for the argument that the Board misdirected itself in refusing to amend the Subject OZP on the basis of its not having been satisfied with the feasibility of the Applicant’s proposed road widening of the Road, I refer to the discussion at §§68-74 above, and consider that the Board was entitled to conclude, on the materials before it, that the Applicant had failed to “demonstrate the feasibility of the proposed road widening works and that it would not cause adverse landscape impact”.  The failure of the Applicant to demonstrate the feasibility of the proposed road widening works, being a critical issue of the Application to rezone the Site, is a matter which the Board was entitled to take into account to come to the view that the proposed new zoning of the Site was not appropriate and acceptable from a planning point of view, and thus to reject the Application.

91.  In all, Ground 2 is rejected.

GROUND 3 - FAILURE TO TAKE INTO ACCOUNT OR GIVE WEIGHT TO RELEVANT MATTERS

92.  Under Ground 3, it is argued that the Board failed to take into account or attribute any or any appropriate weight to (i) the Government’s housing policy to increase housing supply by rezoning “GB” sites satisfying the criteria of Stage 1 Review and/or Stage 2 Review; and (ii) the Board’s previous decisions in respect of similar sites[52].

93.  This ground can be dealt with briefly.  In so far as the Government’s policy to increase housing supply is concerned, it is not a mandatory consideration which the Board must, as a matter of law, take into account (see BH v Director of Immigration, HCAL 105/2014 (14 April 2015), at §§63-65).  It is, at best, a discretionary consideration which the Board may give such weight to it as its thinks fit (see Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, at F-G per Lord Hoffmann; Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, at §97 per Ma CJ).  In any event, there is no basis to contend that the board did not did take into account the Government’s said policy.  This aspect was referred to in §2(a) of the RNTPC Paper, and by both PlanD and the Applicant at the Meeting[53].  As shown in the Minutes of the Meeting, at §27, the Members of the Board expressly agreed that the criteria adopted in the “GB” Review should be adhered to in the consideration of similar rezoning proposals.  The fact that in the Decision Letter, the Government’s policy was not referred to is neither here nor there.  Where reasons are given by the Board for a decision, it is only required to state the essential reasons for the decision.  The Board is under no duty to set out and deal with every point raised by either party for or against the application, or every matter considered in reaching its decision.

94.  The Applicant’s further argument that the Board failed to take into account or attribute any or any appropriate weight to the Board’s previous decisions in respect of similar sites does not anything to Ground 1, which has already been dealt with above.

GROUND 4 - BREACH OF TAMESIDE DUTY

95.  Under Ground 4, it is argued that if (contrary to Grounds 1 and 2), it was relevant for the Board to consider the technical feasibility of road widening and other technical assessments including ecological impact assessment and landscape impact assessment, the Board failed to make further (or adequate) inquiries about those matters, nor were they (adequately) discussed during the deliberation session.  Likewise, the Board failed to make further inquiries regarding the purported differences between the Site and other similar sites for each of the reasons for the Decision[54].

96.  Mr Yu argues that the Board breached the Tameside duty in the respect of the following matters:

(1) Insofar as it concerns the proper approach in requiring detailed or technical assessments on landscape, nature conservation and feasibility of road widening, it was incumbent on the Board to ask questions about the Comparable Sites and make further inquiry in order to decide the proper approach without discriminating or employing double standards against the Applicant[55].

(2) Insofar as the feasibility and landscape impacts of the proposed road widening works were relevant, no questions were asked of the technical feasibility or the landscape impact assessment of the proposed road widening works, notwithstanding the Applicant’s contentions at the meeting that the Transport Department had no in-principle objection to the traffic issues including the road widening works, the proposed development was considered technically feasible, and details of the woodland compensation plan would be submitted under lease compliance stage.  Given that the concerns over technical feasibility and landscape impact assessment of the proposed road widening works was one of the reasons for the Decision, it was incumbent upon the Board to inquire into the proposed works and satisfy itself of the following:

(a) there were genuine and substantial concerns or doubts over the technical feasibility or landscape impact assessment of the proposed road widening works so as to warrant the submission of detailed or technical assessments; and

(b) such concerns or doubts were irremediable, and could not be properly or adequately addressed by the Applicant’s proposal to incorporate technical assessments and requirements into the lease conditions[56].

(3) As regards the methodology adopted in the Ecological Impact Assessment (EcoIA) Report, the concept of the woodland compensation plan and the impact of the slope works on the tree compensation area, if and insofar as the Board considered it relevant to consider those matters, it was incumbent on the Board to inquire into the ecological and landscape impact assessment and the proposed woodland compensation plan and satisfy itself of the following:

(a) there were genuine and substantial concerns or doubts over the methodology of the EcoIA Report, the ecological or landscape impact assessment, and the technical feasibility and assessments of the proposed woodland compensation plan so as to warrant the submission of (further) detailed or technical assessments; and

(b) such concerns or doubts were irremediable, and could not be properly or adequately addressed by the Applicant’s proposal to incorporate technical assessment and requirements into the lease conditions[57].

97.  The first point to note when considering this ground of judicial review is that there is no general duty on the part of a decision-maker to make inquiries on matters which may be relevant to the decision to be made by him.  As this court pointed out in Ho Loy v Director of Environmental Protection, HCAL 21 & 22/2015 (22 December 2016), at §§50-51 the so-called Tameside duty is based on the conventional administrative law principle that a decision-maker exercising a statutory power must ask himself the right questions and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly (ie Wednesbury reasonableness).

98.  In Deng Suet Yan v Hong Kong Housing Authority [2017] 4 HKLRD 73, at §19, the Court of Appeal endorsed the summary of principles set out by Hallett LJ in R (Plantagenet Alliance) v Secretary of State for Justice [2015] 3 All E R 261, at §100, in relation to the Tameside Duty:

“1. The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable.

2. Subject to a Wednesbury challenge, it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken (R (Khatun) v Newham LBC [2005] QB 37 at paragraph [35], per Laws LJ).

3. The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision (per Neill LJ in R (Bayani) v. Kensington and Chelsea Royal LBC (1990) 22 HLR 406 ).

4. The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient (per Schiemann J in R (Costello) v Nottingham City Council (1989) 21 HLR 301; cited with approval by Laws LJ in (R(Khatun) v Newham LBC (supra) at paragraph [35])).

5. The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion (per Laws LJ in (R (London Borough of Southwark) v Secretary of State for Education (supra) at page 323D).

6. The wider the discretion conferred on the Secretary of State, the more important it must be that he has all relevant material to enable him properly to exercise it (R (Venables) v Secretary of State for the Home Department [1998] AC 407 at 466G).”

99.  Absent any specific statutory requirement, it is generally a matter for the decision-maker to decide what steps to take to collect the relevant information for the purpose of answering the right question: see Smart Gain Investment Limited v Town Planning Board, HCAL 12/2006 (6 November 2007), at §87 per A Cheung J (as he then was):

“It is of course true to say, as has been pointed out by Laws LJ in R (Khatun) v Newham London Borough Council [2005] QB 37, 55 (para 35), that it is for the decision-maker and not the courts, subject to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. His Lordship further approved an observation made by Schiemann J in R v Nottingham City Council, ex parte Costello (1989) 21 HLR 301, 309, where the judge said that the court should only strike down a decision by the authority not to make further inquiries ‘if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient’…”

100.  Importantly for the purpose of the present discussion, the scope and content of the duty to make inquiries, should it arise in any given case, is context specific.  In Flintshire County Council v R (on the application of Anthony Jayes) [2018] EWCA Civ 1089, at §14, the following was stated by Hickinbottom LJ:

“Although any administrative decision-maker is under a duty to take all reasonable steps to acquaint himself with information relevant to the decision he is making in order to be able to make a properly informed decision (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014), the scope and content of that duty is context specific; and it is for the decision-maker (and not the court) to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor (R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 ; [2005] QB 37 at [35]). That applies to planning decision-making as much as any other (see, e.g., R (Hayes) v Wychavon District Council) [2014] EWHC 1987 (Admin) at [31] per Lang J, and R (Plant) v Lambeth London Borough Council [2016] EWHC 3324 (Admin); [2017] PTSR 453 at [69]-[70] per Holgate J). Therefore, a decision by a local planning authority as to the extent to which it considers it necessary to investigate relevant matters is challengeable only on conventional public law grounds.”

101.  In respect of the first matter which Mr Yu argues the Board ought to have made inquiries or further inquiries (namely, about the Comparable Sites), I have already concluded that they were not relevantly similar to the Site.  I do not therefore see that the Board was under any duty to ask further questions or make further inquiries about the Comparable Sites.

102.  In respect of the second matter which Mr Yu argues the Board ought to have made inquiries or further inquiries (namely, about the feasibility and landscape impacts of the proposed road widening works), I have already set out in §§71 to 74 above the comments or concerns which PlanD and other Government departments had on the proposed road widening works, and the Applicant’s responses to those comments or concerns, both prior to and at the Meeting.  Essentially, the Applicant’s stance was that those matters could be addressed at a later stage, after the Application had been approved by the Board.  The Applicant was the proponent of the Application, and it was for the Applicant to satisfy the Board that the proposed rezoning of the Site was appropriate and acceptable from a planning point of view, and desirable in the public interest.  The Applicant had the benefit of a team of experts in different disciplines to assist it in the pursuit of the Application, and had been given ample opportunities to address the concerns raised by PlanD and other relevant Government departments regarding the feasibility and landscape impacts of the proposed road widening works, but chose to maintain the stance that it was not necessary to address them prior to the approval of the Application.  The Board had before it the rivalling contentions of the parties, and came to the conclusion that the Applicant had failed to demonstrate the feasibility of the proposed road widening works and that they would not cause adverse landscape impact.  I do not consider that, in the circumstances of this case, it was incumbent on the Board to make further inquiries on those matters as suggested by Mr Yu.  To impose such duty on the Board would, in my view, be neither fair nor reasonable on the facts of this case.

103.  In respect of the third matter which Mr Yu argues the Board ought to have made inquiries or further inquiries (namely, about the methodology adopted in the EcoIA Report, the concept of the woodland compensation plan, and the impact of the slope works on the tree compensation area), again comments and concerns on those matters had been raised by, inter alia, the Director of Agriculture, Fisheries and Conservation (“DAFC”), and those comments and concerns had been responded to by the Applicant.

104.  DAFC’s relevant comments and the Applicant’s responses thereto were set out in the Table of Responses to Departmental Comments, as follows:

	Departmental Comments	Responses to Comments
8	Agricultural, Fisheries and Conservation Department
8.2	Ecological Impacts
	Unlike previous s.16 applications at the subject site, the current rezoning application to “R(B)4” entails a residential development of much larger scale in a wooded area which forms part of a larger secondary woodland in the locality.  According to the Indicative Master Layout Plan … with the Habitat Map …, the proposed residential towers would be located on fairly steep slopes covered with secondary woodland.  The applicant, however, failed to provide information on any slope stabilization, slope cutting or filling works required.  The extent of secondary woodland to be lost to the proposed development, including any necessary slope works, is therefore unknown and likely to be greater than currently portrayed.  As the development proposal is only indicative in nature, inclusion of the secondary woodland in the western part of the site in the rezoning application, though currently proposed to be preserved, might not guarantee the preservation of this piece of woodland.	Whilst the scale of the proposed development has increased in the current application, the total loss of woodland of 0.86 ha is relatively minor compared to the rest of the woodland in the locality.  Given the small area and generally low ecological value of the woodland to be [lost], the overall ecological impact of loss of woodland is considered as low.  Further, a compensatory planting area will also be established as reprovision of woodland habitat and as buffer for the residential area. Detailed design and extent of the slope stabilization, cutting or filling works are not available at this stage.  However, as shown in Fig. 2a and the latest Landscape Master Plan, the platform of the residential development will be buffered by the compensatory [planting] area (which is also included when calculating the total woodland loss).  The extent of any slope works will not [extend] further beyond the compensatory planting area, therefore, loss of woodland further than the extent currently portrayed is not anticipated.
8.3	Mitigation for Ecological Impacts
	Similar to the uncertainties described above, S.6.3.1 of Appendix D (Ecological Impact Assessment) states that the extent of woodland to be preserved is “yet to be confirmed”.  S.6.2.2 of Appendix D states that loss of secondary woodland would be compensated but details would not be available until a Woodland Compensation Plan is drawn up in the later detailed design stage.  With the lack of information on both the extent of woodland to be lost and how the loss is to be mitigated, the conclusion that “the overall residual impact will be reduced to an acceptable level” (S.7.1.2 of Appendix D) is ungrounded.	Referring to the latest Master Layout Plan and Landscape Master Plan, the exact extent and area of secondary woodland to be preserved have been confirmed.  Consequently, the impact evaluation has been revised based on the actual loss of woodland of 0.86 ha (compared to 1.24 ha assuming complete loss of woodland habitat of within Application Site in the latest submission). Section 6.2 of the revised EcoIA in Appendix D has also been amended to provide further details on the mitigation.  A new figure (Figure 3) has been provided to illustrate the extent of the preserved woodland and the proposed compensatory planting area.  For details, please refer to the revised EcoIA in Appendix D.
8.4	Tree Compensation
	While the Woodland Compensation Plan is not available, there is mention of the compensatory tree planting in Appendix A2 (Tree Survey and Preservation Report).  Nevertheless, much of the area west of the proposed Tower 1, is identified as “woodland’ in the Ecological Impact Assessment (Appendix D) and is densely vegetated as seen from recent aerial photographs.  Although the two areas mentioned above are shown as sparsely covered with trees in the tree survey (Drawing A2-4-1), their vegetated nature (dense shrubs / young trees) render the appropriateness and feasibility of the proposed compensatory planting questionable.  In addition, many of the species proposed to be planted in compensation are exotic species with limited ecological value. The ratio of native and exotic trees to be planted is also unknown.  It is uncertain how the proposed compensatory tree planting can compensate for the loss of chiefly native trees affected by the proposed development.	Under the revised impact evaluation, the loss of the 0.86 ha of secondary woodland within the Application Site is considered to be of low ecological significance; hence dedicated mitigation measures for the loss are not required.  As mentioned, the area designated for compensatory planting is young secondary woodland, in which the vegetation is dominated by shrubs and young trees, with lower diversity, maturity and structural complexity than the remaining woodland in the western part of the Application Site. Native tree species, such as Alangium chinense, Bischofia javanica, Celtis sinensis, Cinnamomum camphora, Cinnamomum burmannii, Liquidambar formosana, and Mallotus paniculatus, will be included in the compensatory planting; these are also stated in Sections 6.2.3 and 6.2.4 of the revised EcoIA report in Appendix D.

105.  DAFC remained dissatisfied with the Applicant’s responses to his comments on the ecological impacts of the Proposed Development, the mitigation measures proposed by the Applicant, and the issue of tree compensation.  In the RNTPC Paper, the following was stated under the sub-heading “nature conservation”:

“[9.1.6] Comments of the Director of Agriculture, Fisheries and Conservation (DAFC):

General Comments

(a) the applicant stated that the detailed design and extent of the slope stabilization, cutting or filling works are not available at this stage. Indeed, noting from the comments of GEO, CEDD, geotechnical features within and immediately adjacent to the Site may be affected by the proposed development and the extent of mitigation works is subject [to] detailed investigation and stability assessment at later stage. As such, the applicant’s claim that ‘the extent of any slope works will not extend further beyond the compensatory planting area’ seems doubtful and thus the overall impact on native secondary woodland cannot be ascertained.

(b) the ecological value of the secondary woodland in the Site was rated moderate in the Ecological Impact Assessment (EcoIA) submitted by the applicant (Appendix Ic) and it was proposed in the EcoIA that the western part of the secondary woodland [would] be preserved. Nevertheless, the detailed design and extent of slope works are yet available. Considering that the development proposal is only indicative in nature, the inclusion of the secondary woodland in the rezoning application might not guarantee the preservation of this piece of woodland as proposed in the EcoIA;

(c) in addition, the compensatory planting area appears to be a reserved area for future slope works and could be dissolved subsequently. The applicant should clarify his claim that the ‘extent of any slope works will not extend further beyond the compensatory planting area’;

(d) in the Response-to-Comments table in Appendix Ic, the compensatory planting area has been counted towards the reprovisioning of woodland loss. The applicant is advised that the approach of removing a piece of native secondary woodland to provide for a compensatory planting area is considered unacceptable;

(e) in view of the uncertainty of the exact extent of woodland loss and the questionable compensatory planting, the conclusion that the overall residual impact will be reduced to an acceptable level[58] is ungrounded;

Specific comments on the EcoIA:

Response to Comments Table

(f) the applicant has mistakenly referred the woodland to be lost as low ecological value in the Response-to-Comments table in Appendix Ic, which should be moderate ecological value;

…

[11] Planning Considerations and Assessments

Landscape

[11.7]   H(GEO), CEDD considers that geotechnical features within and immediately adjacent to the Site may be affected by the proposed development.  As such, the applicant’s claim that the extent of any slope works will not extend further beyond the compensatory planting area is doubtful, DAFC considers that the overall impact on the native secondary woodland, which is of moderate ecological value, resulted from the proposed development cannot be ascertained at this stage. Besides, considering that the development proposal is indicative in nature, the inclusion of the secondary woodland in the rezoning application, where ‘Flat’ and ‘House’ uses would be permitted as of right in the proposed ‘R(B)4’ zone, might not guarantee the preservation of this piece of woodland.”

106.  The Board members discussed the Applicant’s ecological impact assessment with the Applicant’s representatives at the Meeting, including (a) details of the tree preservation proposal and whether the trees to be affected by the proposed road widening works had been taken into consideration, (b) whether the baseline review for the assessment, which was based on data gathered in 4 months (from August to November) was adequate to cover both the dry and wet seasons, and whether literature review had been conducted to supplement the lack of information for other seasons, (c) the concept of the proposed woodland compensation plan, and (d) whether the slope works and retaining walls would affect the proposed compensatory planting areas in the northern portion of the Site.  The answers given by the Applicant’s representatives revealed or confirmed that: (i) the tree preservation proposal had not taken into account those trees along the proposed access road which fell outside the Site boundary, (ii) no literature review had been conducted to support the Applicant’s assertion that a 4-month study could nevertheless represent 12 months’ conditions, (iii) no woodland compensation plan had been carried out, and (iv) the scope of the proposed slope works and how the slope works might affect the woodland compensation plan were not clear [59].  In respect of the last matter, after much questioning, the Applicant’s representative (Ms Winnie Wu) referred to and relied upon the Geotechnical Planning Review Report, and said that H(GEO) CEDD had no in-principle objection to the report.  However, the Geotechnical Planning Review Report did not in fact provide details of the scope of slope work, but mentioned that relevant studies would be done later (“Detailed investigation and stability assessment on the existing geotechnical features, which may affect or be affected by the proposed development, shall be carried out in detailed design stage.  Any sub-standard geotechnical features shall be modified or upgraded, if necessary.”)[60]

107.  During the close session of the Meeting when the members of the Board deliberated on the Application, the members generally considered, inter alia, that:

“(c) the methodology adopted in the EcoIA was not agreeable and the concept of the woodland compensation plan was unclear. The applicant failed to demonstrate that the proposed development would not have adverse landscape and nature conservation impacts on the surrounding environment; and

(d) the impact of the slope works on the tree compensation area could not be ascertained.”[61]

108.  The Government departments’ comments and the Applicant’s responses on the methodology adopted in the EcoIA Report, the concept of the woodland compensation plan, and the impact of the slope works on the tree compensation area were matters for the Board’s evaluation and assessment.  As in relation to the proposed road widening works, I do not consider that, in the circumstances of this case, it was incumbent on the Board to make further inquiries on those issues.  The Board was entitled, on the materials before it, to come to the view that the Applicant had failed to demonstrate that the proposed rezoning would not have (inter alia) adverse nature conservation impacts on the surrounding areas.

GROUND 6 - ERRONEOUS UNDERSTANDING OF RELEVANT PLANNING PRINCIPLES

109.  Under Ground 6, it is argued that the Board misconstrued and/or misapplied Town Planning Board Guidelines No 41 - Guidelines on Submission of Visual Impact Assessment for Planning Applications to the Town Planning Board (“the VIA Guidelines”)[62].

110.  The VIA Guidelines stated, inter alia, as follows:

“1 Introduction

1.1 From time to time, section 16 planning applications or section 12A applications for amendments of statutory plans or compliance with approval conditions under the Town Planning Ordinance (the Ordinance) may involve submission of visual impact assessment (VIA). The main aim of VIA is to assess the potential visual impact of the proposed development to the surrounding areas, and to present sufficient information in a structured manner to facilitate the Town Planning Board (TPB) to visualize the three-dimensional relationship of the proposed development with the surrounding context and to consider the visual effects in making a decision. The purpose of the Guidelines is to provide guidance to encourage the best results in preparing VIA submissions under the Ordinance in support of applications to the TPB or compliance with approval conditions.

2 Scope and Application of VIA

2.3 In general, these Guidelines are applicable when:

(f) the proposal involves upzoning or rezoning of a site from non-development use to development use which will result in loss of visual openness on-site or off-site from key public viewing points;

…

3 Primary Consideration of VIA

3.1 The primary town planning consideration of visual impact is not so much on the architectural design, façade treatment, colour, texture, materials and finishes of a building per se, which are matters for the individual architects. The emphasis is on the impact of the overall site layout, development scale, form, massing, disposition and character of the development and its spatial relationship with the overall townscape or surrounding landscape.

3.2 The foremost underlying principle of VIA would be, balancing other relevant factors, to avoid developments that will likely result in major adverse visual impact within the existing and planning development context, especially where visual sensitive areas, visual amenities, visual resources and/or public viewers are affected.

4 Contents of VIA

Evaluation of Overall Visual Impact

4.11 The applicant should evaluate the overall visual impact of a proposed development, taking into account the sensitivity of the key public viewers, visual resources and visual amenities likely to be affected, the magnitude, extent and duration of impact and any resultant improvement or degradation in the visual quality and character of the surrounding area, and the planning intention and known planned developments of the area … The resultant overall impact may be concluded and classified with a range of threshold:

(a) enhanced …

(b) partly enhanced/partly adverse …

(c) negligible …

(d) slightly adverse - if the proposed development will, with or without mitigation measures, result in overall term some negative visual effects to most of the identified key public viewing points;

(e) moderately adverse - if the proposed development will, with or without mitigation measures, result in overall term negative visual effects to most of the identified key public viewing points; and

(f) significantly adverse - if the proposed development will in overall term cause serious and detrimental visual effects to most of the identified key public viewing points even with mitigation measures.”

111.  The Applicant’s argument under this ground is that the Board, in giving as one of the reasons for the Decision that the Applicant had failed “to demonstrate that the proposed rezoning would not have adverse visual … impacts on the surrounding areas”, erred by raising the threshold to “no adverse visual impact”, whereas under §3.2 of the VIA Guidelines the relevant threshold should be whether the proposed development would result in any “major adverse visual impact” within the existing and planning development context.  The Board thereby adopted a standard above and beyond that which was implemented by the VIA Guidelines.  Accordingly, the Board adopted an erroneous understanding of the VIA Guidelines and misconstrued and/or failed to apply the same[63].

112.  As submitted by Ms Cheng, the reasons given by the Board for the Decision must be read with reality and contextual common sense (see Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, at §98 per Stock JA).  An important context here would be the relevant discussion in the RNTPC Paper.  Further, the general tenor of the deliberation at the Meeting should be considered (see Jonnex International Ltd v Town Planning Board [2018] 1 HKLRD 577, at §31 per Au J (as he then was)).

113.  In this case, the Applicant’s position was that the visual impact of the Proposed Development would be “slightly adverse to moderately adverse” with mitigation measures[64]. On the other hand, the Chief Architect/CMD2, Architectural Services Department took the view that the Proposed Development would be “undesirable from visual impact point of view and may not be compatible with the adjacent developments”[65], and the Chief Town Planner/Urban Design & Landscape, Planning Department was of the view that “the proposed development will block majority of the existing view towards the Sha Tin New Town from the walking trail at viewpoint 8 (Drawing Z-19).  Even with mitigation measures, the proposed development at 165mPD will remain tall as the walking trail is located in a close distance with the proposed development. Therefore, the visual impact at VP8 is considered to be significantly adverse”[66].  At §11.5 of the RNTPC Paper, PlanD stated that:

“The proposed development is anticipated to affect the landscape and aesthetic value of To Fung Shan area. In particular, it will block majority of the existing view towards the Sha Tin New Town from the walking trail. However, for the VIA submitted, CTP/UD&L, PlanD considers that some of the photomontages are inaccurate and fails to effectively reflect the potential visual impact of the proposed development. CA/CMD2, ArchSD also considers that the proposed development is undesirable from visual impact point of view and may not be compatible to the adjacent developments.”

114.  It can be seen that the Chief Architect/CMD2 and Chief Town Planner/Urban Design & Landscape’s comments regarding the visual impact of the Proposed Development related to two different aspects, one concerned the incongruence or incompatibility of the Proposed Development with the immediate surrounding greenery landscape and the existing developments at lower topographic levels to the south of the Site, and the other concerned the blocking of the view of Sha Tin New Town.  The former impact would be felt from the point of view of a person looking towards the Proposed Development from a distant, lower, point such as the town centre area, while the latter impact would be felt from the point of view of a person at viewpoint 8 on the Walking Trail looking towards Sha Tin Town Centre.

115.  During the open session of the Meeting, the members of the Board discussed the visual impact of the Proposed Development with PlanD and the Applicant’s representatives[67]. During the close session of the meeting, the members of the Board generally considered that “the proposed developments to be built on a high level site would be substantially higher than the nearby existing buildings.  The visual impact of the proposed development from the town centre area would be substantial”[68]. This view of the Board members related to the first aspect of the visual impact mentioned above.  The Minutes of the Meeting, in which the above matters were recorded, were enclosed with the Decision Letter.

116.  Reading the Decision Letter in its proper context, it seems to me to be clear that when the Board stated that the Applicant had failed “to demonstrate that the proposed rezoning would not have adverse visual … impacts on the surrounding areas”, it was saying that the Applicant had failed to demonstrate that the proposed rezoning would not have “substantial” adverse visual impact, not simply that the Applicant had failed to show no adverse visual impact whatsoever.

117.  The VIA Guidelines are not mandatory.  They are merely guidelines which do not have to be rigidly adhered to, and should not be read like a statutory instrument.  The Board is not required to adopt exactly the same terminologies used in the VIA Guidelines when stating its reasons for the Decision.  The difference between “substantial” and “major” is largely semantic.  In all, Ground 6 is rejected.

GROUND 7 - WEDNESBURY UNREASONABLENESS OR IRRATIONALITY

118.  Under Ground 7, it is argued that the Board’s conclusions that:

(1) the visual impact of the proposed development from the town centre area would be “substantial”;

(2) the Applicant failed to demonstrate that the proposed rezoning would not have adverse visual, landscape and nature conservation impacts on the surrounding areas; and

(3) it would set an undesirable precedent to accede to the Application,

are Wednesbury unreasonable or irrational[69].

119.  In relation to the first point under this ground, Mr Yu argues that (i) the photomontages for VP 3, 4, 7 and 10 produced in the Applicant’s VIA Report showed that there was no substantial obstruction to the view from the town centre area, (ii) the New Photomontage produced by PlanD at the Meeting was taken from viewpoint 8, which was located on the Walking Trail looking towards the Sha Tin Town Centre (as opposed to looking from the town centre area), (iii) the Minutes of the Meeting did not record any discussion of the visual impact from the town centre area, and the Board did not pose any question to the Applicant during the Meeting on that matter.  Accordingly, in the absence of any material or relevant evidence before the Board that the visual impact of the Proposed Development from the town centre area would be substantial, the Board’s view to such effect was unsupported by evidence, and was thereby Wednesbury unreasonable or irrational[70].

120.  This argument fails to take into account that one of the fundamental objections raised by PlanD to the Application was the incongruence or incompatibility of the Proposed Development with the immediate surrounding greenery landscape and the existing developments at lower topographic levels to the south of the Site.  I refer to PlanD’s views as noted in (i) §§2.18 and 2.19 of the Table of Responses to Departmental Comments, and (ii) §§11.4 and 11.5 of the RNTPC Paper, which have already been set out in §§33-34 above, and shall not repeat the same here.  In the RNTPC Paper, the following was also stated as part of the comments of the Chief Town Planner/Urban Design & Landscape, Planning Department, under the sub-heading “Urban Design and Visual”, at §9.1.9:

“(c) the Site is located on a high topographic level in a scenic setting with the Needle Hill ridgeline as a backdrop overlooking the Sha Tin New Town development and Shing Mun River Channel. The Site is on sloping ground in a secluded area near Sha Tin North Service Reservoir where the immediate surroundings are densely vegetated and predominantly natural in character… In view that the site topography and context is characterized with natural greenery landscape with a few residential developments along Tung Lo Wan Hill Road, the proposed development at a higher site level with maximum BH of 20 storeys (equivalent to 165mPD) is considered not responsive to the local context as its BH is still substantially taller than other existing residential developments including Pristine Villa, Great Hill and Peak One, etc. which are located at a lower site level.

(d)  the ‘GB’ zone along the mountain backdrop of Needle Hill provides greenery sustaining the visual amenity of the area.  Given that the Site falls within the ‘GB’ buffer between the Shing Mun Country Park and Sha Tin New Town, there allows visual access between the Sha Tin Town Centre and the undulating hillslopes toward the distant backdrop, which are currently visual resources enjoyed by public views in the vicinity …”

121.  At the meeting, the adverse visual impact of the Proposed Development resulting from the incongruence or incompatibility of the Proposed Development with surrounding areas was discussed[71].  It was a matter for the Board members to evaluate, and decide whether to accept, the views of PlanD.  In my view, the Board members were well entitled to come to the view that the visual impact of the Proposed Development from the Sha Tin Town Centre would be substantial.

122.  In relation to the second point under this ground, Mr Yu argues that in light of the evidence on visual, landscape and nature conservation impacts of the Proposed Development put before the Board (including but not limited to the VIA Report, the Landscape Design Proposal, the Tree Preservation Report, the EcoIA Report, the PowerPoint Presentation and the Further Slides), the Board’s finding that the Applicant had failed to demonstrate that the proposed rezoning of the Site would not have adverse visual, landscape and nature conservation impacts on the surrounding areas is Wednesbury unreasonable or irrational[72].  For this purpose, Mr Yu relies on the comparison with the rezoning of Sites 2 to 4[73], and the detailed matters raised in §§8-68 of Kan 2.

123.  In respect of the former (ie rezoning of Sites 2 to 4), I have already concluded that they were not relevantly similar to the Site, and do not see that it could lead to the conclusion that it was Wednesbury unreasonable of the Board to find that the Applicant had failed to demonstrate that the proposed rezoning of the Site would not have adverse visual, landscape and nature conservation impacts on the surrounding areas.  In respect of the latter (ie the detailed matters raised in §§8-68 of Kan 2), the Applicant’s submission is tantamount to re-arguing the entire Application before the court.  This cannot be the right approach in an application for judicial review of a decision of the Board refusing to accede to a rezoning application under s 12A.  As earlier noted in §44-47 above, the court ought to approach such decision broadly, and should not be bogged down in minutiae or led into the error of taking over the role of a fact finding tribunal.  I agree with Ms Cheng’s submission that on the totality of the materials before the Board, there was ample basis for it to find that the Applicant had failed to demonstrate that the proposed rezoning of the Site would not have an adverse visual, landscape and nature conservation impact.

124.  Lastly, in respect of the third point under this ground, Mr Yu argues that the Board’s finding that the granting of the Application would set an undesirable precedent is Wednesbury unreasonable when the Board has approved similar proposals by the Government, as exemplified by the rezoning applications of Sites 2 to 5.  Further, without the Board having first discharged the Tameside duty of looking closer into the other proposals which the Board had granted approval for rezoning, to conclude that approving the rezoning proposal on the Site would set an undesirable precedent would be premature.  In any event, the Board’s reasoning is flawed and is putting the cart before the horse because if a proposed development is very incongruous in its setting as alleged, it should not have been approved by the Board on the ground of incongruity in the first place.  In other words, either there are planning merits and the rezoning application should be allowed, in which case there could not and should not be any question of setting an undesirable precedent; or else if there are insufficient planning merits, the rezoning application would have been refused.  The argument of undesirable precedent is thus circular, as it very much turns on the planning merits of the application itself[74].

125.  I have already dealt with the Applicant’s complaints based on (i) a comparison with the rezoning of Sites 2 to 5, and (ii) the alleged breach of the Tameside duty.  In relation to the Applicant’s complaint that the argument of undesirable precedent is circular, it may of course be said that a planning application should be granted if there are planning merits, and rejected if there are insufficient planning merits.  In other words, the argument of undesirable precedent would not add anything, or make any difference, to the actual decision in any given case.  However, it is a well-recognized principle of planning law that the decision-maker may into account what consequences, or side-effects, of granting permission may be (see Collis Radio Ltd v Secretary of State for the Environment (1975) 29 P & CR 390, at 395 to 396 per Lord Widgery CJ: “This is a problem which has appeared in the administration of planning law since its inception.  There is no doubt whatever that, human nature being what it is, if permission is granted for a particular form of development on Site A it is very difficult to refuse similar development on site B if the circumstances are the same.  It must happen constantly in practice that a local planning authority refuses planning permission in respect of site A because of the consequences which it fears might flow in respect of sites B, C and D.  No court has so far said that that is not a proper consideration to be adopted by a planning authority …”).

126.  If an application is granted even where there are fundamental objections to it, eg where the proposed development would be very incongruous with the surrounding areas and/or would significantly affect the integrity of a “GB” buffer (as in this case), the success of the application may be relied upon by a future applicant as justifying another similar proposal.  It was thus, in my view, open to the Board to give as one of its reasons for rejecting the Application in the instant case that its approval would set an undesirable precedent for other similar developments in the “GB” zone, leading to further degradation of the natural environment and compromising the integrity of the “GB” buffer between Shing Mun Country Park and Sha Tin New Town.

GROUND 5 - PROCEDURAL UNFAIRNESS

127.  Under Ground 5, it is argued that the Board failed to provide the Applicant with a reasonable opportunity to present its case and address the New Photomontage which was only produced by PlanD for the first time at the Meeting[75].

128.  As earlier mentioned, one of the issues in dispute between the parties concerned the visual impact of the Proposed Development.  The Applicant’s position was that the visual impact of the Proposed Development would be “slightly adverse to moderately adverse” with mitigation measures.  In support of this position, the Applicant put forward, inter alia, a photomontage (VP8) of what the Applicant contended the Proposed Development would look like when viewed from viewpoint 8.  In Axxa’s Visual Impact Assessment, the following was stated in respect of VP8 (at p 6):

“VP 8: View from Walking Trail Off To Fung Shan Road - This VP is located directly north of the Proposed Development along a secluded dirt trail off To Fung Shan Road. This view is composed of existing vegetation in the foreground, natural ridgeline and a group of high to medium-rise residential developments in the background. In terms of existing visual elements, this VP contains Lion Rock mountain ridgeline (positive elements) in the foreground and a group of high to medium-high rise residential developments (neutral elements) at the foot hills of Lion Rock. The dense vegetation along To Fung Shan Road partially screen views of the lower parts of the Proposed Development. Various mitigation measures such as the introduction of a 15m-wide breezeway serves to create a visually permeable development frontage and allows visual access to the landscape from northwest to southeast of the Subject Site. The adoption of articulated building façade and vertical green walls/edge planting adds visual interest, scale and character to the environment. The choice of finishes will seek to reduce the visual prominence of the Proposed Development and provide for the visual integration of the structures within the existing urban context. In addition, variation in building height would provide some visual relief and improve permeability. Given the transient nature of the recreational users, the visual sensitivity of this VP is considered moderate.”

129.  CTP/UD&L, PlanD considered that VP8 failed to accurately reflect the visual impact of Proposed Development from the point of view of a person at viewpoint 8 on the Walking Trail.  This was because the height of the Proposed Development was to be 165mPD, the Walking Trail was just some 48m away, and the height of viewpoint 8 was about 120mPD[76], some 45m lower than the top of the Proposed Development.  The Proposed Development would therefore constitute a substantial visual obstruction for anyone at viewpoint 8[77].

130.  §9.1.9 of the RNTPC Paper set out the following comment of CTP/UD&L, PlanD on VP8:

“Urban Design and Visual

(a) the applicant should accurately reflect the proposed development in the photomontages of the VIA. However, it is considered that some of these photomontages are not in a right scale, particularly viewpoint 8 (Drawing Z-19), in which the visual impacts of the proposed development are underestimated. The visualization materials (i.e. photomontages) should be accurate and clear to demonstrate the three-dimensional relationship of the proposed development with the surrounding context in supporting the VIA;

(b) she considers that the proposed development will block majority of the existing view towards the Sha Tin New Town from the walking trail at viewpoint 8 (Drawing Z-19).  Even with mitigation measures, the proposed development at 165mPD will remain tall as the walking trail is located in a close distance with the proposed development.  Therefore, the visual impact at VP8 is considered to be significantly adverse.  The photomontage of the VIA at VP8 therefore could not effectively reflect the potential visual impact of the proposed development.”

131.  PlanD further expressed the following view at §11.5 of the RNTPC Paper:

“The proposed development is anticipated to affect the landscape and aesthetic value of To Fung Shan area. In particular, it will block majority of the existing view towards the Sha Tin New Town from the walking trail. However, for the VIA submitted, CTP/UD&L, PlanD considers that some of the photomontages are inaccurate and fails to effectively reflect the potential visual impact of the proposed development. CA/CMD2, ArchSD also considers that the proposed development is undesirable from visual impact point of view and may not be compatible to the adjacent developments.”

132.  For the purpose of illustrating or explaining the point about the inaccurate scale of VP8, PlanD prepared the New Photomontage and produced it at the Meeting for consideration by the Board members.  The difference of visual impact between VP 8 and the New Photomontage was stark.

133.  As recorded in the Office Transcript of the Meeting, the following explanation was given by Ms Jessica Yu of PlanD on why VP8 failed to correctly reflect the blocking of view of Sha Tin New Town by the Proposed Development from viewpoint 8:

“… It is exactly this VP8 that we have an issue with. This VP8 refers to the view look down from the walking trail on Tao Fong Shan, that is in the north of the Application Site, to Sha Tin New Town. One can also see long ranges of mountains in the background. From this photomontage, you will think that one can see most of the Sha Tin New Town when looking down, as you can see. However, the Chief Town Planner/Landscape Design of PlanD and myself have visited the walking trail by ourselves, and the view that we have seen is the photomontage on the right[78]. When we stand on the walking trail, the ‘spot level’ is 125.7, and as said before, the building height reaches 165mPD, and we are standing between the trail and the 3^rd tower, i.e. a horizontal distance of 48 metres. Therefore even if I stand there, assuming that I am 1.5 metres of height, I will be at around 127mPD. If the building is as tall as 165mPD, one must look up. If we use the photomontage prepared by the Landscape Unit, most of the beautiful Sha Tin landscape as planned, namely one river, two promenades and surrounded by mountains on three sides, in fact [are blocked] on the walking trail, one could only see these few building blocks.”

134.  The Applicant’s representative, Ms Wu, complained about the late production of the New Photomontage. The following is recorded in §§17-18 of the Minutes of the Meeting:

“[17] A Member sought clarification from PlanD regarding CTP/UD&L’s comments that some of the photomontages provided by the applicant were out of scale. Ms Jessica H.F. Chu, with the aid of a photomontage prepared by PlanD, responded that viewpoint 8 was taken from the existing walking trail at To Fung Shan Road with a spot level of 125.7mPD. Given that the horizontal distance between the nearest Tower 3 of the proposed development and viewpoint 8 was only about 48m, the view from viewpoint 8 towards Sha Tin New Town should be substantially blocked by the proposed development. However, the photomontage prepared by the applicant showed that majority of the Sha Tin New Town could still be seen from viewpoint 8.

[18]  In response, Ms Winne Wu, the applicant’s representative, said that as the photomontage prepared by PlanD had not been provided to the applicant before the meeting, she was unable to provide comment.  Yet, she reiterated that the photomontages submitted by the applicant were prepared by professionals based on 3D simulation and the photos taken at the vicinity of the site.  The Chairman enquired and Ms Wu responded that the photo from the concerned viewpoint 8 was taken from a footpath outside the site boundary as indicated on Drawing Z-6 of the Paper and the spot height of the viewpoint was about 120mPD.”

135.  On behalf of the Applicant, Mr Yu argues that notwithstanding the Applicant’s complaint that it had not had a reasonable opportunity to review and comment on the New Photomontage, the Board allowed the New Photomontage to be produced for assessing the visual impact of the Proposed Development.  Mr Yu further says that the Applicant was deprived of a reasonable opportunity to respond to the following aspects of the New Photomontage:

(1) whether the New Photomontage is correct (eg in terms of its scale or rendition of the proposed residential development);

(2) whether the New Photomontage constitutes proof that the Applicant’s photomontage is incorrect (and if not, how could the two be reconciled);

(3) whether as a result of the New Photomontage, the Applicant could respond further to the prominence and weight to be attached to VP8 including, for instance, the popularity of the Walking Trail (which affects the strategic importance or popularity of VP8), the distance of VP8 from the Proposed Development (eg the visual impact at a more distant viewpoint on the Walking Trail would be different).[79]

136.  Mr Yu concludes that the Decision was arrived at by the Board in breach of procedural fairness in two material respects, namely:

(1) the Board failed to direct PlanD to provide a copy of the New Photomontage to the Applicant for consideration, whether during or after the Meeting; and

(2) the Board failed to provide a reasonable opportunity to the Applicant to review and respond to the New Photomontage which it relied upon in arriving at the Decision.[80]

137.  I consider that, as a matter of procedural fairness, the Board ought to have given the Applicant a reasonable opportunity to consider and deal with the New Photomontage produced by PlanD at the Meeting, eg by permitting the Applicant to put in further evidence or written submissions after the Meeting and, if necessary, hearing further oral representations from the Applicant.  The question now is whether the court should allow the application for judicial review, or grant relief, by reason of this procedural breach.  Having given this matter anxious consideration, I do not think it would be right to do so, for the following reasons.

138.  First, even though the Applicant has now had a full opportunity to consider the New Photomontage and produced an expert report from Axxa dated July 2010, the Applicant’s consultant has not suggested that the New Photomontage is wrong or inaccurate, or wrongly depicts the obstruction that would be caused by the Proposed Development from the point of view of a person at viewpoint 8.  At best, the Applicant’s answer is that visual impact assessment is a qualitative assessment, and the photomontages derived from any given viewpoint “may vary depending on a number of factors such as the exact location, angle, distance from the proposed development where the original photo was taken and the technical specifications of the camera used for shooting the photographs”[81]. At §37 of Kan 2, Mr Kan further states that “[g]iven the qualitative nature of the whole exercise, even if the image of the Applicant’s VP8 Photomontage and that of the PlanD’s VP8 Photomontage were different, that does not necessarily mean that the one produced by the Applicant was inaccurate as alleged.  For the reasons explained above, the Applicant maintains that the Applicant’s VP8 Photomontage was not inaccurate as alleged.”  This is far from saying that the New Photomontage is wrong or inaccurate.

139.  Second, as noted in §115 above, the Board members ultimately took the view that “the visual impact of the proposed development from the town centre area would be substantial”, that being a reference to the visual impact from the point of view of a person looking towards the Proposed Development from a distant, lower, point such as Sha Tin Town Centre, instead of the visual impact from the point of view of a person at viewpoint 8 on the Walking Trail close to the Site looking towards Sha Tin Town Centre.  VP8 and the New Photomontage are both concerned with the latter aspect of the visual impact of the Proposed Development, and have no bearing on the view taken by the Board members in respect of the former aspect of the visual impact of the Proposed Development.

140.  Third, having regard to the other substantive reasons given by the Board for the Decision, I consider that even if the issue of visual impact is to be remitted to the Board for fresh consideration and the Applicant is given an opportunity to adduce the new expert report from Axxa and make further representations regarding VP8 and the New Photomontage (along the lines contained in §§33-43 of Kan 2), I do not see that the Board will come to any different conclusion, namely, that the Application ought to be rejected. It is trite that judicial review is discretionary, and the court may refuse to grant relief even if the decision-maker has acted in breach of the principle of procedural fairness if the court is satisfied that the applicant has not suffered real prejudice and the substantive outcome will inevitably be the same (see Leung Fuk Wah Oil v Commissioner of Police [2002] 3 HKLRD 653).  I recognize that this is a strong course to take, and the court should not readily come to the conclusion that an outcome is inevitable.  Nevertheless, I believe the present is such a case.

GROUND 8 - COPYING OF REASONS

141.  Under Ground 8, it is argued that the Board’s almost wholesale adoption of the proposed reasons in the RNTPC Paper and its failure to give adequate reasons as to why it is said that the Applicant failed to demonstrate that the proposed rezoning would not have adverse visual, landscape and nature conservation impacts on the surrounding areas is itself also Wednesbury unreasonable.

142.  That it is desirable that the Board should express its reasons for a decision in its own words, and not copy the reasons provided by PlanD, is undoubted, and has been said by the court on many occasions in the past (see, for example, Hysan Development Company Ltd v Town Planning Board, CACV 232 & 233/2012, 13 November 2014, §§198-200 (per Lam VP); and Town Planning Board v Oriental Generation Ltd, CACV 127 & 129/2012, 13 November 2014, at §§150-151).

143.  Nevertheless, the court, when considering the adequacy or sufficiency of reasons given for a decision in an application for judicial review, is ultimately concerned with the overall fairness of the process before the Board.  An important consideration is whether the Board has independently addressed its mind to the questions before it, in particular, whether it has addressed its mind to the representations that have been made to it by the applicant.  In the present case, I have carefully read the Minutes of the Meeting.  It is apparent that the members of the Board did, during the open and close sessions, consider the issues arising in the Application, and the representations raised on behalf of the Applicant (including the proposed road widening works, the planning intention of the Site, the visual impact of the Proposed Development, the principles adopted by the Government in the “GB” Review, and the ecological and landscape impact assessments) carefully, and address their minds to those matters.  The reasons given by the Board for the Decision were clear and intelligible, and would enable the Applicant to properly understand the reasons why the Board rejected the Application.  Also, the Board did not simply adopt and copy the reasons given by PlanD in the RNTPC Paper for rejecting the Application.  As can be seen from §31 of the Minutes, the Board decided that rejection reason (c) should be amended by the inclusion of “the potential landscape impact of the proposed road widening works”[82].  This clearly demonstrates that the Board did not merely copy the reasons of PlanD, but gave independent consideration of the Application before it.  I do not consider that the overall fairness of the process before the Board was compromised by the fact that the Board adopted much of the reasons of PlanD in the Decision.

144.  Having regard to the contents of the RNTPC Paper, in particular §§11.4-11.7 thereof (with which the Decision Letter must be read together), I also do not accept that the Board failed to give adequate reasons as to why it concluded that the Applicant had failed to demonstrate that the proposed rezoning would not have adverse visual, landscape and nature conservation impacts on the surrounding areas.

145.  For all of the above reasons, the 8 grounds of judicial review raised by the Applicant in the present case are rejected.

DISPOSITION

146.  The summons to amend the Form 86 dated 29 May 2020, and the Originating Summons for judicial review of the Decision dated 28 September 2018 are dismissed with costs to the Respondent, to be taxed if not agreed, with certificate for 2 counsel.