HYSAN DEVELOPMENT CO LTD AND OTHERS v. TOWN PLANNING

HCAL 38/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 38 OF 2011

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BETWEEN

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J U D G M E N T

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I.  INTRODUCTION

1.  By these 2 judicial reviews Hysan challenges the Board’s decision to approve Draft OZPs for Causeway Bay and Wanchai.  The Draft OZPs imposed building height restrictions (BHRs), non-building areas (NBAs) and setbacks on 10 properties owned by companies within the Hysan group.

2.  In imposing the restrictions, the Board rejected most of Hysan’s representations to the contrary.  Hysan’s representations were made initially in writing and then orally at meetings of the Board in March 2011 (for Causeway Bay) and April 2011 (for Wanchai).

3.  The 10 Hysan properties are listed in the table appended to this Judgment.  The table is taken from Hysan’s written submissions in these proceedings.  The table is largely self-explanatory.

4.  The table’s 6th column (“OZP Zoning”) summarises the changes in zoning designations which the Board made by the Draft OZPs.  For example, the area where Hysan Place is situated was changed from a “C/R” (Commercial/Residential) to a “C” (Commercial) zone.

5.  The BHRs imposed are set out in the table’s 8th column.  In relation to Sunning Court, Sunning Plaza, 18 Hysan Avenue and 111 Leighton Road, the Board partially accepted Hysan’s representations and changed the height limit which it had originally intended to impose from 100 to 130 mPD.  In respect of Lee Gardens I and II the Board imposed restrictions of 32 and 20 mPD on podiums to be built on those sites respectively.  The podium restrictions are more or less the same as the heights of the current podiums at Lee Gardens I and II.

6.  The table’s 9th column identifies the 4 properties for which there exist building plans which were approved by the Building Authority prior to the Board’s gazettal of the Draft OZPs.  The approved plans for those properties (Sunning Court, One Hysan Avenue, Hysan Place and Leighton Centre) have heights in excess of the limits imposed by the Draft OZPs.  But the Board accepts that redevelopment may proceed on the 4 sites in accordance with those plans insofar as the approvals previously given have not expired.

7.  The table’s 10th column summarises the NBAs and setbacks which the Board decided to impose in relation to Lee Gardens I and II, One Hysan Avenue and Hysan Place.

8.  An NBA means that building is not allowed above ground, although development is permitted below ground.  The reason is that NBAs are typically imposed for air ventilation purposes.  Structures over the NBA area would block air ventilation.

9.  A setback refers to the “setting back” of a building from the boundary of a lot.  Where a setback is imposed, a property owner may still build below ground.  Whether or not an owner can build above ground depends on the reason for the setback.  If the setback is for air ventilation purposes, the owner may not build above ground, much as in the case of an NBA.  Where the setback is solely to improve pedestrian flow, the owner may not build at ground level.  But above ground level the owner may put up structures overhanging the setback area.  Normally, setbacks are imposed for pedestrian circulation purposes, although they may also be imposed to improve air ventilation.

10.  It is Hysan’s case that the restrictions summarised in the table were either beyond the Board’s powers; unreasonable; irrational; arbitrary; based on erroneous appreciation of fact;  the result of procedural unfairness; or an abdication by the Board of the proper exercise of its statutory duties.

11.  In the next section, I will focus on Hysan’s grounds of objection as summarised by its counsel (Mr. Benjamin Yu SC) in oral submission before me.  In the course of exposition, I shall also deal with some of the written submissions which Mr. Yu made prior to the oral hearing.

12.  Mr. Yu’s written submissions run for nearly 100 pages in what is (uncharacteristically for Mr. Yu) a jumbled, rambling and repetitive manner.  In practical terms, it is impossible to deal with every one of the myriad tiny points to be found in Mr. Yu’s written submissions.  I therefore hope that it will not be taken as a discourtesy if, in this Judgment, I shall concentrate on what I believe to be Mr. Yu’s key points and if I do not dwell on what I regard as minor arguments of no substance or merit.

II.  DISCUSSION

A.  Ground 1:  No power to impose spot restrictions

13.  Mr. Yu’s written submissions argue that the Board does not have power under the Town Planning Ordinance (Cap.131) (TPO) to impose restrictions (such as BHRs, NBAs or setbacks) on particular sites.

14.  I have held otherwise in Turbo Top Ltd. v. Town Planning Board HCAL Nos. 23 and 52 of 2011 (21 November 2011).  I have followed that decision in Oriental Generation Ltd. v. Town Planning Board HCAL No. 62 of 2011 (11 May 2012) and Lindenford Ltd. v. Town Planning Board HCAL No. 59 of 2011 (5 September 2011).

15.  For the reasons stated in Turbo Top, this ground fails.

16.  Mr. Yu suggests that this case is distinguishable from Turbo Top.  He submits that the restrictions here are of a “different character” from those in Turbo Top.  The restrictions in Turbo Top limited redevelopment to a maximum Gross Floor Area (GFA) and stipulated that there should be a minimum number of public car parking spaces within a redevelopment.  In contrast here, the restrictions (it is alleged) are different in that they “severely constrain design”.

17.  I do not accept that there is a distinction.  My analysis of the TPO in Turbo Top related to restrictions of whatever nature imposed by the Board on a site.  On this basis, I have since applied the reasoning in Turbo Top to cases such as Oriental Generation and Lindenford involving BHRs, NBAs and building gaps.

18.  I add that whether restrictions “severely constrain design” is not a question appropriate to a judicial review.  The question is subjective in nature.  It is for the Board, to the extent needed for a planning decision, to assess whether a restriction which it intends to impose will or will not unduly constrain design.  The Court can claim no expertise on matters of design and must accord all due deference to the Board’s assessment of such question.

B.  Ground 2:  Unable to achieve maximum development intensity

19.  Hysan contends that the BHRs imposed by the Board would not allow Hysan to achieve the maximum plot ratio (or GFA) permissible under the Draft OZPs at relevant sites.

20.  For example, according to evidence which Hysan presented to the Board, in a redevelopment of Lee Gardens II pursuant to the Board’s restrictions and the existing Building Ordinance and Regulations, Hysan might achieve 97% of the plot ratio permitted by the Draft OZP.  But that would only be if Hysan built offices with a floor-to-floor height (FTFH) of 3.6 m. That would be well short of the 4.5 m FTFH which (Hysan suggests) is now widely accepted as the standard for Grade A offices.  Thus, Hysan says that it can only achieve anything close to the permissible development intensity at Lee Gardens II if it built sub-standard offices.

21.  This result (Mr. Yu submits) contradicts the express “assurance” which Planning Department gave to the Board.  That “assurance” (Mr. Yu suggests) is to be found in the briefing paper (TPB Paper No. 8762) which Planning Department prepared for the Board in respect of the restrictions which eventually were incorporated in the Draft OZP.

22.  The briefing paper stated the following:-

(1)    “As a general principle, the BHRs would not adversely affect the GFA achievable under the OZP for the relevant sites…”

(2)    “[I]t has been ensured that upon incorporation of the restrictions (BHR), the development sites would generally be able to accommodate the development intensity as permitted on the OZP.”

(3)    “The imposition of BHRs would not result in decrease in development intensity permitted on the OZP, and hence would not jeopardize the incentive for private development.”

(4)    “In general, for sites subject to BHRs of 110 mPD and 130 mPD, a floor-to-floor height of about 4 m to 4.5 m would be possible for the typical floors.  The BHRs do not preclude the provision of quality office buildings.”

23.  It is apparent from the minutes of its deliberations in March and April 2011 (Mr. Yu says) that the Board took Planning Department’s “assurance” at face value and accepted that it was possible, despite the restrictions, more or less to build to the maximum development intensity permissible under the Draft OZPs.

24.  We now know (Mr. Yu continues) that Planning Department did not actually carry out an assessment of specific Hysan sites (as opposed to other sites within the Draft OZPs).  That means that, in respect of the Hysan sites (especially Lee Gardens II), Planning Department’s “assurance” (namely, that building to the requisite development intensity was still possible) had no empirical backing.

25.  To the extent then that the Board solely relied on Planning Department’s hollow “assurance”, the Board’s decision to impose restrictions would (Mr. Yu concludes) have been seriously flawed.  The Board would have been basing its decision on a misapprehension of the real situation.  Ironically, the Board’s decision (Mr. Yu stresses) was made even though Hysan had warned that, in relation to Lee Gardens II, Hysan’s architects and consultants could not come up with a design which complied with the restrictions and also enabled the permissible development intensity to be attained.

26.  In response, Mr. Jat Sew Tong SC (appearing for the Board) submits that there is no legal principle which guarantees to a developer (such as Hysan) the ability both to exploit the maximum permitted intensity of a piece of land and to build a Grade A office building.

27.  Nothing (Mr. Jat points out) prevents Hysan from building Grade A offices having storeys with FTFHs of 4.5 m or more, if Hysan wishes.  It is true that, in light of the restrictions imposed by the Draft OZP, Hysan may not then be able to achieve the maximum development intensity permitted on the land.  But it is open to Hysan to settle for offices with a lesser FTFH of (say) 3.6 m.  In that case, as Hysan’s own evidence to the Board demonstrates, it would be possible to build to more or less (about 97% on Hysan’s calculation) the permissible development intensity.

28.  Mr. Jat observes that there is nothing in Hysan’s evidence to suggest that an office building with a FTFH of 3.6 m would be unfit for human occupation.  On the contrary, Mr. Jat has drawn my attention to a number of recent prestigious office developments having FTFHs of less than 4.5 m.  For instance, Three Pacific Place in Wanchai has an FTFH of 3.95 m.  In this connection, I note in passing that, in Orient Generation (admittedly dealing with the different situation of a residential property), the parties proceeded on the basis of storeys having FTFHs of about 3.15 m.

29.  The reality (Mr. Jat bluntly states) is that a developer has no legally protected right always to have the best of everything.  The Board in its March 2011 deliberations found that Hysan “had not provided strong reasons why a 4.5 m floor-to-floor height had to be adopted in their development schemes”.  Like any developer, Hysan has to balance a range of competing design and profit-maximisation concerns with legal and physical constraints operating on a site.  Precisely how Hysan strikes that balance is a matter of its own commercial decision.

30.  In my judgment, Mr. Jat is right.  For the reasons which he has given (and which I have just summarised), I am unable to accept Mr. Yu’s criticism.

31.  Hysan complains that the Board decided as it did in relation to Lee Gardens II, despite evidence that site coverage under the restrictions was (even on the most generous reckoning) only likely to be 53% (that is, less than the permissible site coverage of 62.5%).  But the answer to this complaint is similar.

32.  There is no guarantee that a developer will be able to achieve both the maximum permissible site coverage and the maximum plot ratio at the same time.  If restrictions such as NBAs and setbacks are imposed, then almost by definition one will not have 100% site coverage.  With an NBA, for instance, some of the site will not be capable of being built upon.

33.  Further, Mr. Yu has unjustifiably elevated the quoted passages from the briefing paper into a near sacred assurance.  Fairly read in context, the words simply mean that Planning Department has satisfied itself that, in general, the proposed restrictions (especially the BHRs) will still allow owners within the areas covered by the Draft OZPs to develop their properties to more or less the permitted level of intensity.

34.  Insofar as buildings upon which BHRs of 110 or 130 mPD have been imposed (that is, not including Lee Gardens II), Planning Department is merely saying in those passages that in its view the permissible intensity can be attained even with office FTFHs of between 4 to 4.5 m.

35.  It is true that the word “ensure” is used in at least one instance.  But I do not read that as connoting a “guarantee” that in all cases, for every building within the Draft OZP areas, one can have FTFHs of between 4 to 4.5 m and still manage to obtain the requisite intensity.

36.  As Mr. Jat comments, it would have been impractical for Planning Department to have surveyed every single building within the Draft OZP area as a pre-requisite to making the statements which it did.  It is thus highly doubtful that the Board would have regarded Planning Department as having undertaken such survey or as making more than a general observation.

37.  It is also true that not every statement uses the words “in general”.  Mr. Yu infers from this that, in specific cases (including Lee Gardens II), the Board must have relied on Planning Department’s “assurance” that the relevant development intensity could be achieved.

38.  But such an approach is to read the briefing paper and the minutes of the Board’s deliberations very much as one would read a statute.  The paper and minutes are not legal documents.  They are an expression (frequently, a mere summary expression) of views.  They should be read liberally and in context.

39.  Hence, I am unable to infer much from the failure to use “in general” in a given instance.  The Board would have realised that all Planning Department was speaking about was the situation “in general”. The Board would then have come to its decision on that understanding.

40.  Hysan criticises the Planning Department for not having disclosed the assumptions upon which it relied when arguing before the Board that the restrictions would not impact on Hysan’s ability to achieve the maximum permissible plot ratio or GFA of a relevant site.  In my view, this complaint has little substance.

41.  As seen above, from Hysan’s own presentations to the Board, it would have been self-evident that, even as far as Hysan was concerned, the maximum plot ratio or GFA could be achieved, but only with storeys having FTFHs of 3.6 m.  Thus, Hysan’s own evidence established that it was possible to achieve close to the maximum development intensity, albeit not necessarily at Hysan’s desired FTFH of 4.5 m.

42.  In the course of oral submission, Mr. Jat presented a back-of-the envelope calculation to illustrate how it might be possible to obtain the permissible plot ratio plus a notional 15% GFA concession at the Lee Gardens II site despite the BHR, NBA and setback imposed by the Board.  Having only been produced by Mr. Jat in aid of his submissions, the calculation was self-evidently not before the Board at the time of its deliberation.

43.  Mr. Yu suggested that the calculation failed to take into account operative building regulations and should be ignored.  Mr. Yu might be right.  Nonetheless, the calculation is not meant to be anything more than rough-and-ready.

44.  All the calculation shows (and all Mr. Jat was trying to show by the calculation) is that, in general, it may be possible to attain the permissible plot ratio at the Lee Gardens II site even with a FTFH of 4.5.  The calculation merely supports Mr. Jat’s submission that there was nothing misconceived or misleading about what Planning Department represented to the Board through the briefing paper.

45.  This ground fails.

C.   Ground 3:  No account taken of Sustainable Building Design Guidelines (SBDG)

46.  The SBDG were issued by the Buildings Department in January 2011.  They set out the criteria which the Buildings Department will take into account in deciding whether or not to exempt or disregard certain features in new developments from GFA calculations.

47.  Those features primarily concern amenities for the improvement of air ventilation and environmental quality in buildings.  In the past, GFA concessions were routinely granted for such features.  Following the issue of the SBDG, GFA concessions will now only be granted where the stipulated criteria have been met.

48.  Mr. Yu argues that the Board ought to have taken the SBDG into account when considering whether the Hysan sites could achieve their respective permitted development intensities despite the restrictions imposed on them.

49.  The Board (Mr. Yu says) wrongly treated the SBDG as irrelevant.  Had the Board had regard to the SBDG, it ought to have realised that there was no way that Hysan could comply with the restrictions in the OZP and the SBDG and still achieve the permissible plot ratio within its sites (especially at Lee Gardens II).  Planning Department’s “assurance” that development intensity would not be compromised by the restrictions could (Mr. Yu says) just not be the case.

50.  The Board in its deliberations reasoned instead that the SBDG were for the purpose of granting GFA concessions under the Buildings Ordinance (Cap.123).  Developers did not have to follow the SBDG if they did not wish to apply for GFA concessions for their particular sites.  The SBDG (the Board thought) are optional.

51.  The Board believed, in contrast, that an OZP dealt with large areas, not just specific sites within an area.  Restrictions in an OZP were imposed on various areas or specific sites within a district in order to achieve urban design and planning objectives in such district as a whole.  For this reason, the Board concluded that it was not relevant to take account of the SBDG when considering whether to impose restrictions over particular areas or sites covered by a Draft OZP.

52.  I have already dealt with Mr. Yu’s submission that Planning Department gave some “assurance”.

53.  I am unable to fault the Board’s decision to ignore the SBDG in deciding whether to impose restrictions by a Draft OZP.

54.  As Mr. Jat observes, the SBDG concern matters of detailed building design for a specific site.  There are a near infinite ways in which a site may be designed.  I therefore find it difficult to see how Planning Department or the Board can reasonably be expected to cater for the infinite varieties of feasible design which a developer might wish to put up on a given site to qualify for concessions within the SBDG.

55.  Planning involves looking at a district in a broad-brush way and determining what features or restrictions should be imposed in which areas (including specific sites) for the betterment of the district as a whole.  There is no way in which the Board can realistically take planning decisions in respect of an entire district by examining in relation to any particular lot whether and (if so) in what ways a building can be designed on the lot so as to obtain maximal GFA concessions under the SBDG.

56.  At best, Planning Department can do a back of the envelope calculation (of the nature that Mr. Jat handed up to the Court in the course of his oral submissions) to satisfy itself or the Board that, in general, buildings in a district can still enjoy GFA concessions even if proposed restrictions are imposed.  This is typically done by assuming a 15% to 20% GFA concession into one’s rough-and-ready calculation of the intensity possible with a notional development complying with the restrictions being imposed.

57.  It may be that, at a detailed design stage of a development, individual sites will encounter problems in fully complying with the SBDG and in obtaining maximal concessions within the terms of that document.  But that may be for a whole variety of reasons, not least of which could be the peculiarities of a particular lot.  For instance, any development on the site of Lee Gardens II would naturally be constrained (regardless of restrictions imposed) by the lot’s irregular shape and narrowness.

58.  The precise impact of the restrictions on developers’ abilities to comply (if they so wished) with the SBDG in light of the existing physical constraints of every given site within an OZP area would not be something which the Board could practically take into account when determining what planning controls to impose for the good of the district as a whole.

59.  This ground fails.

D.  Ground 4:  Inadequate justification of NBAs, setbacks and BHRs imposed

D.1  General comments

60.  The essence of Hysan’s complaint is that the NBAs and setbacks imposed by the Board are arbitrary or irrational.  There was insufficient evidence (Hysan argues) to justify those measures, especially in light of the material which Hysan presented to the Board.

61.  Air ventilation was one of the major considerations underlying the Draft OZP.  In March 2010 the Planning Department commissioned a consultant (CO2) to undertake an Air Ventilation Assessment (AVA) in the form of an expert evaluation of the Causeway Bay area.  The AVA was intended to provide a qualitative assessment of the wind environment within the latter area, to identify problems and propose mitigation measures.

62.  The AVA process was iterative.

63.  Planning Department provided CO2 with an initial scenario of the BHRs which it was proposing for the area.  CO2 then carried out a study and recommended a number of possible measures (including adjustments to the proposed BHRs and the imposition of NBAs, setbacks and building gaps in specific locations) to improve upon the air ventilation found in the initial scenario.  The measures suggested by CO2 were in some cases expressed generally (that is, without giving specific dimensions).  For example, CO2 advised that “set-backs should be introduced on both side of … Lee Garden Road”.  At other times, the measures were specific.  For example, CO2 proposed to “[w]iden pavements to at least 3.5 m by building set-backs fronting … Lan Fong Road … and Lee Garden Road”.

64.  Planning Department prepared a revised scenario incorporating some (but not all) of the measures proposed by CO2.  In so doing, Planning Department itself proposed specific dimensions for some of the NBAs and setbacks incorporated into the revised scenario.

65.  Thereafter, CO2 considered whether as a whole the revised scenario was better than the initial scenario from the viewpoint of mitigating adverse air ventilation impacts.  Based on its consideration of the revised scenario, CO2 produced a Final Report.

66.  A similar procedure was followed for the proposals incorporated into the Draft OZP for Wanchai, except that there the expert evaluation was done by Professor Edward Ng of the School of Architecture at Chinese University.

67.  The iterative process just described may be contrasted with the more rudimentary process followed in Oriental Generation (described in paras. 39-43, 66-71, and 79 of my Judgment in that case).  Planning Department had also engaged CO2 as consultant to prepare an AVA there.

68.  In Oriental Generation,CO2 was asked to compare a baseline option (which did not have an NBA or building gap) against an alternative option (which had an NBA of 10 m and a building gap of 20 m).  CO2 found that the alternative option provided better ventilation than the baseline option.  On that basis, Planning Department recommended (and the Board accepted) that there should be an NBA of 10 m and building gap of 20 m in the proposed development.

69.  In those circumstances, I held in Oriental Generation that all there was evidence of was that, from an air ventilation point-of-view, a 10 m NBA was better than no NBA and a 20 m building gap was better than none at all.  But, even allowing a wide margin of deference to the Board, there was no evidence or reasoning to indicate why a 10 m NBA and a 20 m building gap were no more than what might reasonably be regarded as necessary to improve ventilation in the relevant site.  Those initial “givens” appeared to have been randomly chosen by Planning Department.  More pertinently, there was no standard, guideline or other empirical measure to justify a 10 m NBA or 20 m building gap as opposed to some other width.

D.2  Hysan’s critique of methodology

70.  Mr. Yu submits that the process followed in respect of the NBA and setback restrictions here suffer from the same flaw which I identified in Oriental Generation. I am unable to agree.

71.  In Oriental Generation, the AVA process might be described as static.

72.  One started and ended with 2 options (a baseline and an alternative) proposed by Planning Department.  CO2 merely compared the 2 options and determined which of the 2 was better for air ventilation.

73.  Here, on the other hand, the process was dynamic.

74.  Thus, for instance, CO2 was provided with an initial scenario which included BHRs, but which did not stipulate NBAs, setbacks or building gaps.  Based on its findings, CO2 recommended the imposition of NBAs, setbacks and building gaps to mitigate adverse air ventilation effects which it found around specific locations.

75.  Planning Department prepared a revised scenario incorporating some, but not all of CO2’s recommendations.  In some cases, CO2’s suggested measures (such as breaking up the podium of Lee Garden II) were regarded by Planning Department as too drastic in their commercial implications and hence rejected as impractical.  At other times, Planning Department would recommend a compromise as opposed to the measure put forward by CO2.

76.  CO2 then evaluated the revised scenario to see whether it was an improvement upon the initial scenario.  On the basis of that assessment, CO2 prepared its Final Report which was put before the Board.

77.  Consequently, it seems to me that in practical terms we are in a different situation from that in Oriental Generation. We do not merely begin and end with the “givens” of the Planning Department. Instead, the procedure employed here had the benefit of input from independent experts as to what measures should be imposed where in order to improve air ventilation.

78.  It is true that, following CO2’s recommendations for individual locations, Planning Department came back with some specific measures which CO2 then tested.  But that, by itself, does not mean (contrary to what Mr. Yu’s written submissions assert) that I should straightaway reject the specific dimensions suggested by Planning Department (and eventually accepted by the Board) as irrational, arbitrary or disproportionate.

79.  One needs to examine each specific restriction (BHR, NBA or setback) to see whether, according a wide degree of deference to the Board, there is sufficient justification for the specific dimensions adopted.  In this respect, a specific dimension may be justifiable to the extent that it is based on some standard, some generally accepted guideline, or some comparison conducted over a range of different dimensions.

80.  I therefore propose to run quickly through the BHRs, setbacks and NBAs imposed by the Draft OZPs to consider whether there is substance in Mr. Yu’s submission that they are each irrational or inadequate.

D.3  NBA of 2 m along Yun Ping Road (affecting Lee Gardens I and II)

81.  Having looked at the initial scenario, CO2 found that air ventilation in Kai Chiu Road, Lan Fong Road and Pak Sha Road (all roughly perpendicular to Yun Ping Road) “will deteriorate, as these are sandwiched between the 200 mPD development [Hysan Place] at Hennessy Road and Lee Garden Road Junction, as well as the 210 mPD Manulife Plaza [former name of Lee Gardens I]”.  CO2 recommended a setback at ground level.  But it did not give dimensions.

82.  For the revised scenario, Planning Department proposed building gaps for Lee Gardens I and II and “setbacks” of 2 m on both sides of Yun Ping Road.  CO2 concluded that this will “encourage wind movement in the vicinity of these large-scale developments [that is, Lee Gardens I and II].  Note that CO2 appears to have treated the terms “NBA” and “setback” as synonymous.

83.  The briefing paper which Planning Department prepared for the Board following CO2’s AVA, justified the 2 m NBA on Yun Ping Road on air ventilation and footpath widening (that is, pedestrian circulation) grounds.

84.  Hysan provided the Board with an AVA Expert Review by Arup.

85.  There Arup’s Dr. Yin Rumin argued that the 2 m NBA was “questionable and may be negligible on its intention to improve local ventilation at Yun Ping Road”.  The reasons for this were that Yun Ping Road had not been identified as a wind corridor by CO2 and “widening the street gives little contribution of surrounding wind environment of concerned areas”. The NBA “potentially induces bottle neck effect that sudden changes in width of street may eliminate wind penetration”.  Further, Yun Ping Road “is not leading to the Hennessy Road and can be deem as dead end”.

86.  Dr. Yin’s preferred solution was that, instead, the podiums of Lee Gardens I and II “should be designed to have sufficient height variation to its surrounding in order to catch more downwash towards the pedestrian level and improve the air ventilation along Yun Ping Road”.

87.  Hysan also produced an MVA Report on pedestrian circulation.  That argued that the level of service (LOS) along Yun Ping Road would be acceptable until 2021 without need for further widening of pedestrian footpaths.

88.  From the minutes of its deliberations, the Board disagreed with MVA’s assessment of the likely future pedestrian flows along Yun Ping Road.  Basing itself on a 2006 study, the MVA Report had posited that pedestrian use of Yun Ping Road would decline slightly between the present and 2021.  In contrast, the Board “noted that the Causeway Bay area was transforming into a commercial and entertainment district with increasing loading and unloading activities on street levels and pedestrian activities which had given rise to vehicular and pedestrian conflicts”.  The Board concluded as a result that the footpaths in the area were “not up to the required standard of … 3.5 m wide for the commercial areas under the HKPSG [Hong Kong Planning Standard Guidelines]”.

89.  Insofar as an NBA was concerned, the Board thought that it would not only “facilitate footpath widening,” but it would also help to address problems with air ventilation.  The Board’s minutes do not expressly refer to Dr. Yin’s views.  Nonetheless, on any reading of those minutes, the Board plainly disagreed with Dr. Yin’s assessment.

90.  I am unable to see in what respect the Board acted arbitrarily or disproportionately in imposing a 2 m NBA on each side of Yun Ping Road.

91.  Planning Department recommended certain specific measures to the Board in light of CO2’s observations.  Hysan’s representatives then had an opportunity to make representations opposing the same.  However, far from the picture that Mr. Yu paints in his written submissions, the thrust of Hysan’s evidence was far from overwhelming.

92.  The MVA Report was based on a 2006 study which the Board on the basis of its experience regarded as outmoded and inconsistent with the present development of Causeway Bay as a commercial and entertainment hub.

93.  On the other hand, although Dr. Yin expressed doubts as to the utility of the setback, his views were expressed tentatively in his Expert Review.  He does not actually say that there would be no contribution to air ventilation.  He only believed that the contribution might be “little”.  It is also far from apparent why his preferred solution would produce a significantly better solution to the air ventilation problems along Yun Ping Road.  Nor does Dr. Yin appear to have addressed the difficulty which CO2 identified in relation to Pak Sha Street.

94.  In those circumstances, the Board was entitled to prefer the Planning Department’s views and regard Hysan’s evidence as insufficient to displace those views.  The Board’s conclusion on setback along Yun Ping Road is well within the wide margin of deference that I should be according to its decisions.

95.  Mr. Yu complains that the Board has not explained why there should be a 2 m NBA as opposed to (say) some lesser dimension.

96.  But the HKPSG recommends a minimum footpath width of 4.5 m (plus an additional 1.5 m where (as in Yun Ping Road) there is street furniture (such as lamps) and plus a further 0.5 m to take account of shop frontages (as in the case of Lee Gardens I and II).

97.  However, footpaths of 6.5 m (that is. 4.5 m + 1.5 m + 0.5 m) were thought by Planning Department to be impractical in the narrow confines of Yun Ping Road.  Accordingly, the Planning and Transport Departments agreed as a compromise between them that a more modest footpath width of 3.5 m (ignoring any allowances for street furniture and building frontage) should be put forward to the Board as a suitable standard to deal with anticipated pedestrian flows through Yun Ping Road.

98.  Currently, Yun Ping Road has a footpath of some 3.3 m on its eastern side and 2.3 m on its western side with a taxi stand on the eastern side.  The footpaths are below what the HKPSG recommends as a guideline for commercial areas.  They are also below the compromise figure agreed by the Planning and Transport Departments.

99.  If we add 2 m (the width of the NBA being imposed) to the widths of the eastern and western sides of Yun Ping Road, we obtain 5.3 m and 4.3 m respectively for those sides.  That is closer to the HKPSG recommended standard of 6 m for commercial areas.

100.  I accept that the HKPSG are (as the name implies) only guidelines which are to be applied with flexibility in the light of circumstances.  But the HKPSG are nonetheless widely accepted in Hong Kong as providing a standard at which to aim.

101.  In such circumstance, the Board must have been entitled to conclude (as it did), by reference to the HKPSG, that a 2 m NBA on either side of the street was reasonably necessary to facilitate the widening of the existing footpaths and thereby better approximate the 3.5 m compromise footpath width.

102.  Mr. Yu suggests that the NBA of 2 m is irrational insofar as it was imposed for pedestrian flow purposes because the land over which the NBA has been imposed remains private property.  Hysan (Mr. Yu says) may prohibit pedestrians from walking over the NBA area.

103.  But this argument is difficult to understand as a practical proposition.

104.  The ground floor levels of Lee Gardens I and II along Yun Ping Road consist of shop fronts.  There are also entrances to the office towers of both developments.  A significant proportion of the pedestrian flow through Yun Ping Road would presumably be due to the existence of the shops and offices in both developments.

105.  It is hard to see how in practical terms Hysan is going to distinguish between pedestrians passing through Yun Ping Road to visit shops or offices in Lee Gardens I or II, from persons who are just walking through Yun Ping Road.  It is unclear to me how Hysan would prohibit only the latter, but allow the former to pass through the NBA area.  To the contrary, it appears to me, as a matter of first impression, that an NBA of 2 m would “facilitate” pedestrian flow precisely as the Board envisaged.  I cannot say that the Board’s thinking on the subject was irrational.

106.  Mr. Yu also submits that the NBA of 2 m is discriminatory.  That is because (Mr. Yu says) the NBA is only imposed on Lee Gardens I and II.  There are other lots along Yun Ping Road.  But the Board has not imposed a 2 m NBA on those lots.

107.  Ms. Brenda Au on behalf of the Board has explained that the remaining lots on Yun Ping Road are “relatively small in size”.  No NBA was designated for those lots as it was felt that such a measure “would impose undue constraints on future development of these small lots and may affect the development intensity of the site”.  In contrast, the sites of Lee Gardens I and II are “larger in size and should have greater scope to accommodate the NBA, without adversely affecting the permissible development intensity”.

108.  I do not think that Ms. Au’s explanation can be described as irrational.  Reasonable persons may reasonably disagree over whether her explanation is a valid justification for the differential treatment of lots.  I therefore do not think that the NBA of 2 m is discriminatory.

D.4  BHRs of 32 m and 20 m respectively on podiums of Lee Gardens I and II

109.  Reference has been made to CO2’s finding of poor ventilation along Pak Sha Road.  To deal with this, CO2 recommended “setbacks” (as we have seen) at Lee Gardens I and II.  It also recommended that the site coverage of the podiums be “minimised”.  This is because CO2 thought that, in principle, podiums with large site coverage were inimical to air ventilation.  But if podiums were regarded as “a must,” CO2 believed that they should be “designed with permeability”.

110.  Although not wholly clear, the evidence is that CO2 had initially suggested to Planning Department that the long podium of Lee Gardens II be broken up to facilitate air ventilation.  Planning Department did not adopt this because it thought that the proposal “might unduly constrain the development/ redevelopment on the site”.  CO2’s initial proposal was considered too radical.

111.  Planning Department instead thought that it would be more appropriate to “minimise” the existing height of the podium for the purposes of air ventilation.  Given that the Causeway Bay Area had “a very low wind speed,” but was “a busy commercial area with heavy pedestrian flow at street level,” Planning Department reasoned that “[t]o further increase building heights would cause more negative ventilation effect to the area”.

112.  In response to Planning Department’s comments, CO2 then appears to have recommended that the existing podiums at Lee Gardens be “retained to maintain the existing air path in Yun Ping Road”.

113.  Following evaluation of the revised scenario by CO2, Planning Department proposed the imposition of BHRs for the podiums of Lee Gardens I and II along with the NBA of 2 m already discussed above.  The effect of those measures would be to freeze the height of the podiums at Lee Gardens I and II to more or less what they are now.

114.  The briefing paper for the Board recommended adopting the podium height limits on air ventilation grounds.  This was to “preserve the existing major building gaps above the podium to facilitate air ventilation”.

115.  On Hysan’s behalf, Dr. Yin argued in his Expert Review that “the actual merits of … reducing podium height … [was] questionable”. He reasoned that, because the podiums were surrounded by buildings with height of 130 mPD or more, keeping podiums to 20 mPD was “unlikely to improve local ventilation or wind permeability towards Hennessy Road”.  The “prevailing winds from any directions have already been blocked and there is no wind corridors proposed above this podium in the [CO2] report”.

116.  Dr. Yin continued:-

“Take Podium B [Lee Gardens II] as example, the existing residential buildings of 130 mPD located at the north-east of the Lee Gardens Two has blocked the northeast prevailing wind. Reducing the height of podium B to 20 mPD can not foresee any contribution to ventilation performance of this area.

Based on the draft OZP, a wake zone may be expected in Yun Ping Road ….  Therefore, instead of reducing the podia B and C [Lee Gardens I] to 20 mPD, they should be kept to certain height with profile to catch downwash toward the pedestrian level of Yun Ping Road.  For example, the height of Podium B could be higher than the  adjacent low-rise residential buildings (130 mPD), located at the southwest of the Lee Gardens Two in order to catch the downwash to the pedestrian level of Yun Ping Road … where heavy pedestrian flow is expected.”

117.  In its deliberations, the Board preferred Planning Department’s views.  It agreed that a podium BHR of 32 mPD for Lee Gardens I would help address the air ventilation problem in the area.  It felt that the 20 m BHR for podium of Lee Gardens II would similarly assist with air ventilation, including in the Pak Sha Road area.

118.  I am unable to see anything arbitrary or disproportionate in the controls imposed upon podiums on the sites of Lee Gardens I and II.

119.  It appears that, having rejected CO2’s initial proposal of breaking up the podium of Lee Gardens II, Planning Department instead proposed “minimising” the heights of the podiums at Lee Gardens I and II.  This (Planning Department thought) would at least not worsen the low wind speed problem in the area.

120.  CO2 seems to have responded that it would be best in that case simply to “retain” the podiums (that is, keep to the existing podium heights) at Lee Gardens I and II in order at least to maintain the existing air path along Yun Ping Road and not risk worsening an already bad situation.  That air path (I note) appears to have been designated in red by Dr. Yin at Figure 11 of his Expert Review.

121.  Dr. Yin does offer an alternative solution, namely, building a higher podium at Lee Garden II.  But it is unclear from Dr. Yin’s report whether this will generally improve, worsen or maintain whatever air path there may be along Yun Ping Road.  Dr. Yin appears from Figure 12 of his Expert Review to be addressing a different and more specific question of how to catch the downwash from a southwesterly wind and channel the same down to Yun Ping Road.

122.  I am therefore unable to say that Dr. Yin’s solution is clearly superior in dealing with the air ventilation problem which Planning Department and the Board were concerned about.  In my view, the Board’s decision in relation to the podiums of Lee Gardens I and II was prompted by CO2’s recommendation and the desire at least to maintain the status quo rather than risk jeopardising the difficult air ventilation situation along Yun Ping Road. That is a judgment call which is well within the margin of deference that should be accorded to the Board.

D.5   Setback of 0.5 m on Lee Garden Road (affecting One Hysan Avenue)

123.  The Board imposed this setback purely for the purpose of footpath widening.

124.  The briefing paper for the Board noted that the footpath in front of One Hysan Avenue along Lee Garden Road had a width of only about 3.3 m.  That was below the compromise of 3.5 m agreed by the Planning and Transport Departments as described above.

125.  The Board in its deliberations considered that Hysan “had not provided sufficient justification to support [the deletion of the setback]”.  Instead, the Board hoped that the setback would “improve the pedestrian environment and cope with the increasing demand for loading/ unloading activities in the area”.  In its reasons for rejecting Hysan’s request for deletion, the Board added that it was appropriate to have the setback in order “to meet the minimum standard in HKPSG”.

126.  I am unable to fault the Board’s reasoning.  Given that the compromise of 3.5 m was already much less than that of 4.5 m recommended by the HKPSG for commercial areas and given what the Board’s briefing paper described as “the rapid increase in the pedestrian flow in the area,” I do not think that the Board’s decision can be described as arbitrary. The decision was essentially based on the HKPSG.

127.  Hysan criticises the Board for coming to its conclusion without first commissioning a study of pedestrian circulation along Lee Garden Road.  In contrast, Hysan notes that the MVA Report indicated that Lee Garden Road would be adequate for anticipated pedestrian flows up to 2021.

128.  However, we have seen that the Board was not persuaded by the pedestrian flows anticipated in the MVA Report.  The latter based its conclusions on a 2006 study which the Board regarded as outmoded. The rejuvenation of the Causeway Bay area by developers (including Hysan) has led in more recent times to a rapid increase in pedestrian flows in the area.

129.  Admittedly, the Board would only have had a qualitative feel for this renaissance in the Causeway Bay area and would be without hard empirical evidence.  But I am unable to say that the Board was not entitled to act upon that feel, especially in the light of the standards in the HKPSG for commercial areas.

130.  Ironically, when arguing about its entitlement to develop up to the maximum intensity permitted by a Draft OZP, Hysan has been insistent that its offices should comply with a Grade A standard of 4.5 m FTFHs and cannot make do with anything less.  By contrast, when arguing about footpath widening for the better convenience of the general public that passes in front of its shops and uses its offices, Hysan is insistent that something less than the HKPSG standard or the compromise width of 3.5 m will do.

131.  At the end of the day, what this suggests is that Hysan (as it is entitled to do) is simply balancing its commercial interests against those of the public in one way, while the Board is carrying out that same balance in a different way.  The Board is there to make tough decisions that may not be to the liking of every person.  If the way that the Board has struck a balance in the public interest is really all that Hysan is complaining about, I cannot say that the Board has drawn the balance in a way that is inappropriate.

D.6   Setback of 1.5 m along Lan Fong Road (affecting Lee Garden I)

132.  The Board appears to have imposed this setback for both air ventilation and footpath widening purposes.  Nonetheless, the evidence suggests that the latter was the primary motivation behind the measure.

133.  According to the briefing paper for the Board, the footpaths on Lan Fong Road are between 2.1 and 2.4 m wide.  This situation is well below the compromise width of 3.5 m mentioned above.

134.  The MVA Report accepted that, even on its projections, the southern footpath on Lan Fong Road was “slightly over-crowded during the evening peak period due to the passenger queue for the mini-bus stops [located there]”.  To cater for this, the MVA Report suggested relocating the mini-bus stops to the Caroline Hill area.  The MVA Report noted that, according to a Government study, Planning Department was in any event planning to re-locate the mini-bus services currently at Lan Fong Road to a public transport interchange in Caroline Hill.

135.  Another option proposed by the MVA Report was to delete the loading and unloading area currently at Lan Fong Road.

136.  Planning Department responded that there was no present programme for a providing a public transport interchange at Caroline Hill.  The proposal for such an interchange had yet to be finalised.  On the other hand, the deletion of the loading and unloading area was “infeasible from a traffic management point of view”.  This was because there was a “huge loading/ unloading demand in the area”.  It was also noted that there were on-street facilities (lamp poles, electricity masts, mini-bus stops) on Lan Fong Road.

137.  Transport Department accepted that it “had not carried out any studies to assess the pedestrian volume in the area and the improvement measures required”.  But it took the view that the footpaths along Lan Fong Road were nonetheless “definitely insufficient” by reference to the HKPSG.

138.  The Board was concerned that the footpaths along Lan Fong Road were significantly less than even the compromise width of 3.5 m, despite the street being in a prime commercial area.  For this reason, the setback of 1.5 m was imposed.  The setback would thus take the footpath width to between 3.6 m to 3.9 m.

139.  Again I am unable to fault the Board for basing its decision on the 3.5 m compromise width.  It is true that when added to the existing widths of footpath along Lan Fong Road one arrives at something a little more than 3.5 m.  But 3.5 m is still less than what the HKPSG actually recommends for commercial areas.  Accordingly, in a rough-and-ready manner, the resulting footpath widths after taking into the setback of 1.5 m would (I think) be well within the margin of deference to be accorded to the Board.

140.  Mr. Yu criticises the setback as more than reasonably necessary in light of the alternative solutions proposed in the MVA Report.  It is no answer (Mr. Yu says) that the public transport interchange has not yet been finalised or that traffic flows resulting from (say) the removal of the loading and unloading area have not yet been studied.

141.  It is not (Mr. Yu points out) as if Lan Fong Road will change overnight following the imposition of the setback restriction.  There is more than enough time for the Board to commission a study of the traffic flows and to investigate the possibility of having a Caroline Hill transport interchange, before reaching a decision on how to deal with pedestrian circulation along Land Fong Road.  If the Board is to impose a restriction with serious repercussions on Hysan’s property rights, it is incumbent on the Board (Mr. Yu submits) first to conduct all relevant studies, so that the Board can make an informed decision as to the necessity of imposing the restriction.

142.  I am not persuaded by Mr. Yu’s argument.

143.  The Board must be entitled to decide that, in light of Lan Fong Road’s being in a commercial area, it should (as much as possible) have footpaths corresponding to the HKPSG .  That would be regardless of whether or not traffic flows will allow the deletion of the loading and unloading area on the street and regardless of whether or not there will be a transport interchange in Caroline Hill.

144.  It is not apparent to me why the setback restriction and the solutions proposed by the MVA Report have to be treated as “either-or but not both”.

145.  The MVA Report asserts that, if its solutions are adopted, then Lan Fong Road will just about cope with anticipated pedestrian circulation.  But we have already seen that the Board regarded MVA’s pedestrian flow assumptions as unreliable in light of the rapid development of the Causeway Bay area.  Further, the Board would be entitled to query why it should leave Lan Fong Road in a state where it can just about cope with MVA’s anticipated pedestrian flows.

146.  In my view, the Board was entitled to consider that the public is entitled to a greater compliance (to the extent practical) with the HKPSG along Lan Fong Road.  The extent to which there should be compliance with the HKPSG, even in the face of alternative options (whether or not feasible), seems to me a decision within the wide margin of deference which should be accorded to the Board.  The mere existence of alternative options does not invalidate the Board’s decision or render it irrational.

D.7   NBA of 5 m on Hysan Place

147.  The Board imposed this restriction to improve air ventilation along Lee Garden Road.  CO2, for example, had identified an air flow problem along Lee Garden Road.

148.  The question, however, is why 5 m?  In the course of oral submissions, Mr. Jat fairly accepted that the only reason for 5 m appears to be that, when building Hysan Place, Hysan voluntarily incorporated a 5 m NBA into the design of that development.  Thus, 5 m was chosen because there currently is a 5 m NBA at Hysan Place.

149.  That does not seem to me to be sufficient reason.  On the contrary, it appears to be arbitrary.  The 5 m is not based on a particular standard or guideline.  Nor is the 5 m based on a comparative exercise carried out over a range of possible NBAs for the specific area.  Nor (in contrast to the BHRs on the podium heights of Lee Gardens I and II) has the 5 m been imposed in order to preserve a status quo so as not to worsen some already very bad situation.  There is no mention of any such rationale in the evidence at all.

150.  For this reason, Hysan’s challenge against the 5 m NBA at Hysan Place succeeds.

D.8   BHRs of 130 mPD (as opposed to 150 mPD) (especially affecting Sunning Plaza and Sunning Court)

151.  Mr. Yu submits that a BHR of 130 mPD stifles design “flexibility”.  I have already dealt with this argument.  The Court is not in a position to evaluate in a judicial review whether design “flexibility” has been “stifled”.  That is a subjective assessment for which the Court will normally defer to the Board.

152.  The BHR of 130 mPD was imposed on the basis of the Board’s view that there should be a “stepped” profile among developments in the Causeway Bay area.  I do not think anyone challenges the benefits of a stepped profile as a matter of principle.  The dispute appears to be over the appropriate heights of any given “step”.

153.  The precise details of any stepped profile are within the aesthetic sensibility of the Board.  No doubt there are many possible variations.  For example, one can have a cluster of buildings of 100 mpD next to a cluster of buildings of 130 mPD next to an iconic building or node of 200 mPD.  Alternatively, one might interpose buildings of 150 mPD between the 130 mPD buildings and the 200 mPD node.  Which profile possibility is deemed appropriate must be within the Board’s subjective appreciation.  The Court must accord that subjective evaluation a wide margin of deference.

D.9   Summary

154.  In short, save as to the 5 m NBA at Hysan Place, this ground fails.

E.   Ground 5:  Problems with the Board’s reasoning

155.  This ground comprises miscellaneous complaints which Mr. Yu has made of the Board’s reasons. Most complaints have been dealt with in the course of the discussion above.  I simply focus here on those criticisms not previously considered.

156.  Mr. Yu suggests that the Board relied on the possibility of a developer applying for minor relaxation of the restrictions as a basis for imposing restrictions.  I disagree that the Board so acted.

157.  It is true that, on a number of occasions, the Board in its deliberations refers to the possibility of minor relaxation.  But it does not follow from this that the Board regarded minor relaxation as a reason for imposing restrictions.  The Board considered individual restrictions on their own merits, regardless of the possibility of minor relaxation in meritorious cases.

158.  Mr. Yu suggests that the Board wrongly treated Hysan as automatically “entitled” to bonus GFA under the Building (Planning) Regulations (Cap.123) if Hysan dedicated land to public passage or surrendered land for street widening.  The Building Authority (Mr. Yu says) will consider granting bonus GFA where there has been a dedication or surrender of private land.  But the grant of bonus GFA is not automatic.

159.  Fairly read, I do not think that the Board regarded developers as automatically “entitled” to bonus GFA.  That is because in the next half of the sentence relied on by Mr. Yu, it says: “[A]nd any such claim [for bonus GFA] would be duly considered by the Building Authority in accordance with the normal practice”.  If the Board regarded the grant of bonus GFA as an automatic entitlement, why would it also state the half sentence just quoted?

160.  One must be careful about reading minutes as if they were statutes.  By use of the word “entitled” the Board must only have meant that a developer “would be entitled” to lodge a claim for bonus GFA.

F.   Ground 6: Procedural unfairness

161.  The essence of the complaint here is that the Board had little time fully to absorb Hysan’s written representations.

162.  Much of the material in support of those representations was only submitted very shortly before the Bard’s March 2011 meeting, apparently because Hysan needed time to prepare the evidence to back up its submissions.  The Board then met non-stop for a little over a whole day.  After hearing representations from affected parties, members deliberated among themselves until 15 minutes past midnight.

163.  There was (Mr. Yu says) only so much of the voluminous material which Hysan had provided that the Board could have understood within the limited time available.  Aside from Hysan, many other representees had made submissions to the Board on day.  Hysan had requested an adjournment of the meeting to another day.  But the Board decided to press on.

164.  As a result, Hysan (Mr. Yu submits) was prejudiced by the Board’s refusal to take a rest and give itself more time in which to grasp Hysan’s material.  The Board’s failure fully to apprehend Hysan’s argument is demonstrated by the Board’s failure to mention or adequately deal with Hysan’s points in the Board’s deliberations and reasons.

165.  There is nothing in this point.

166.  First, it is within the Board’s discretion whether to adjourn a meeting.  There is nothing to suggest that the Board was wrong in exercising its discretion to refuse an adjournment.

167.  Second, it is true that Hysan bombarded the Board with a lot of material shortly before the meeting on March 2011.  That is unfortunate.  But I shall assume that Hysan did so because (as Hysan contends) it did not have much time beforehand to deal comprehensively with the issues raised by the Draft OZP.

168.  That does not mean that the Board failed properly to appreciate the import of Hysan’s arguments.  On the contrary, it is readily apparent from the minutes of its deliberations that the Board fully understood what Hysan was trying to argue.

169.  The Board initially had notice of Hysan’s arguments when Hysan had initially sent its representations.  A substantial part of Hysan’s evidence followed later.  Much (if not all) of that bulky evidence has also been put before this Court for the purposes of this judicial review.  If the materials before this Court in this judicial review are anything to go by, it can be seen that a large proportion of Hysan’s bulky evidence was repetitive.

170.  In any event, the gist of Hysan’s points were summarised to the Board before it heard detailed oral presentations from Hysan representatives.  After the detailed oral presentations, there was a question and answer period.

171.  In my view, it is speculation to say that the Board did not fully understand Hysan’s points despite both the gist and detail of those points being put to the Board in writing or orally before and during the meeting.  The Board is composed of professionals, civil servants and academics with experience of town planning and related disciplines.  The likelihood is that such individuals would quickly grasp just what points Hysan was trying to make.  There is nothing to suggest otherwise.

172.  Third, Mr. Yu makes great play of this or that argument made by Hysan not having been specifically mentioned in the Board’s deliberations or in its reasons.  The inference that Mr. Yu draws from this is that the Board ignored or did not understand what Hysan was saying.

173.  There is no warrant for such inference.  The Board is performing an administrative (as opposed to a judicial) function.  It does not in its reasons have to respond to every single point that Hysan made. All the Board needs to communicate is the gist of its reasons for deciding to impose some particular planning control.

174.  A more natural inference to draw from the Board’s silence on a particular matter is not that it overlooked the point or failed to comprehend the same, but that the Board was not impressed at all by the argument and felt there was no need to dwell on it.

175.  Further, in an administrative matter where subtle balances have to be struck between public and private interests, it may not always be possible for the Board comprehensively to articulate the nuances which motivate a decision.  Instead, the non-verbal dynamics of a meeting (including, for example, body language of members; intonations used; and ironic smiles incapable of being captured in minutes of the Board’s deliberations) may lead to a tacit consensus being reached among all present that a representor’s point is untenable and time need not be further wasted discussing it.

176.  In a judicial review, the Court must be wary of drawing inferences merely because something appears from the minutes or a recording to have been left unsaid.  That something may well have been obvious to everyone concerned and left unsaid for that reason.

177.  In any event, as can be seen from the discussion above, the Board appears to have adequately stated its reasons in respect of every restriction imposed, apart from the 5 m NBA at Hysan Place.

178.  Fourth, Planning Department recommended that the Board reject Hysan’s representations for particular reasons.  The Board accepted many of the reasons suggested by Planning Department.  When informing Hysan of its decision, the Board adopted the same or similar wording to that which Planning Department had used to formulate the particular reasons accepted by the Board.  Mr. Yu suggests that this is the Board mechanically repeating what Planning Department recommended, regardless of whether Planning Department’s formulations adequately responded to Hysan’s representations.

179.  I am unable to accept this characterisation.

180.  As pointed out in other judicial reviews, it is commonplace for the Board in giving reasons to adopt wording recommended by Planning Department.  This does not mean that the Board failed to give serious consideration to a representor’s arguments.

181.  Nor does this mean that the Board rubber-stamped whatever Planning Department proposed.  On the contrary, a glance at the minutes of the Board’s deliberations in a matter will often (as here) reveal that there was vigorous discussion among members on the key points made by a representor.

182.  Fifth, the hearing bundle contains a detailed analysis of which Board member wandered out or walked into a meeting at what time.  The object of this analysis is to show that some member or another who participated in the Board’s deliberations was not present at all times and so may have missed out on some important point made by a representor.

183.  This type of analysis is of little help to the Court.

184.  In an ideal world, Board members should certainly attempt to prepare in advance for, and hear as much as possible of, a presentation.  But in practice members may need to come in or go out at different times for perfectly valid reasons.

185.  Nevertheless, there are many ways in which a member could have apprised himself or herself of a relevant point (for instance, by reading material before or during presentations or by listening to presentations or by doing both).

186.  Points are usually made in writing before a Board meeting.  Then the points are summarised before detailed representations.  Then (especially if contentious) the points are discussed further during a question and answer period.  Given all that, it cannot be assumed that a member who was absent when some point was orally made, failed to appreciate the point.

187.  There has been no procedural unfairness.  The test is essentially for the Court to ask whether an applicant had a reasonable opportunity to present its case (“a fair crack at the whip”) before the Board. Here Hysan had a reasonable opportunity to put forward its case.  In a judicial review, the Court must be careful when evaluating the fairness of a hearing before the Board not to impose requirements which would turn what is supposed to be an administrative process into the equivalent of a judicial trial.

G.   Ground 7:  Disproportionate interference with property rights

188.  Hysan argues that the restrictions are not a “legitimate and proportionate limitation of its constitutional rights”.

189.  Hysan argues that the various restrictions imposed cannot reasonably be regarded as necessary, and no more than reasonably necessary, to achieve an objective.  In support, Hysan relies on Oriental Generation (at para.76).  There I stated that, if the Board is to impose a restriction, its decision to do so “must be backed up by cogent evidence that the measure can reasonably be regarded as necessary to achieve a particular planning objective”.  I also said that “the greater the restriction of property rights proposed [by the Board], the greater must be the cogency of the evidence required to justify the Board’s decision”.

190.  Hysan stresses that it is not contending that the restrictions imposed on its sites constitute a deprivation of property contrary to Arts. 6 and 105 of the Basic Law.  But one might be forgiven for thinking that, contrary to what it asserts, Hysan is so contending.

191.  For example, in its written submissions, Hysan has also highlighted the presentation by its consultant (Mr. Ian Brownlee) before the Board.  Mr. Brownlee told the Board that the restrictions applied to the Hysan sites would have a negative impact of billions of dollars on the value of those sites.  Mr. Brownlee estimated that the 2 m NBA imposed on Lee Gardens II alone would deprive Hysan of floor space to a value of more than $1 billion.

192.  Having referred to Mr. Brownlee’s presentation, Hysan then repeatedly accuses the Board of having “irrationally parroted” in its reasons for rejecting Hysan’s representations that there “would not be adverse impacts on the development intensity permitted under the OZP and property value in general”.

193.  Insofar as there is complaint that the Board ignored Hysan’s evidence as to the potential impact of the restrictions on the property values of Hysan’s sites, I am unable to deduce that the Board did so. Plainly, the Board took Hysan’s property value projections into account.

194.  But the Board had to carry out a difficult balancing exercise.  Thus, for instance, the minutes of the Board’s March 2011 deliberations refer to the Board considering that the BHRs were based on “various factors, including the recommendations of the AVA, the overall building height concept, urban design principles, compatibility with the surrounding areas, and the need to balance between public aspirations for a better living environment and private development right”.  It would appear that, like it or not, the Board disagreed that Hysan’s potential losses in property value outweighed the aspirations of the general public for a better living environment.

195.  Insofar as there is complaint that by the Board’s decision Hysan may lose “billions” in property value, the law is clear.  As I stated in Turbo Top (at para. 105), the mere fact that zoning restrictions imposed in the public interest will lead to a diminution of property values will not, without more, amount to an unlawful deprivation of property contrary to the Basic Law.  A landowner takes property subject to an implied condition that, for the public good, the Government may by regulation (including OZPs) limit the uses to which such land can be put in the future.

196.  Insofar as Hysan’s complaint is that the restrictions are more than what may be regarded as reasonably necessary to achieve the Board’s planning objectives, such criticism repeats the individual grounds discussed above.  The 5 m NBA at Hysan Place apart, those grounds have been rejected.

III.  CONCLUSION

197.  The judicial review in relation to the Wanchai Draft OZP fails.  It is dismissed.  The judicial review in relation to the Causeway Bay Draft OZP succeeds insofar as the 5 m NBA at Hysan Place is concerned.  The NBA 5 m restriction is quashed.  All other grounds of challenge in relation to the latter Draft OZP for Causeway Bay are dismissed.

198.  I shall now hear counsel on costs and consequential orders.  But, before doing so, I will indicate my thinking on the question of costs.

199.  In my view, insufficient attention was paid to the preparation of hearing bundles.  The bundles contained a large number of pages which, by any reckoning, were irrelevant or unnecessary to these proceedings.  For example, in relation to the Causeway Bay Draft OZP, the first 7 of the 8 evidence bundles for this hearing contain the exhibits to the Affidavit of Wendy Yung filed in support of Hysan’s application for leave for judicial review.  Those first 7 bundles could readily have been pared down through the inclusion only of relevant extracts of documents to no more than 2 or possibly 3 bundles.

200.  Judicial review applications must pass an initial leave stage where the Court has to be satisfied that an applicant has an arguable case with a reasonable prospect of success.  It is difficult for a judge to determine whether leave should be granted where the evidence filed in support of a judicial review has been inflated by inclusion of irrelevant or unnecessary pages of documents.  At that early stage, a judge faced with a volume of paper would understandably be hard-pressed to see the wood for all the trees.

201.  Leave for judicial review is sought ex parte. Because the application is made unilaterally, an applicant and its lawyers are under a duty to make full and frank disclosure of the strengths and weaknesses of one’s case as well as draw the Court’s attention to all relevant evidentiary material.

202.  One does not comply with that duty if one throws together into bundles every single page of every single document involved with the gazettal of a Draft OZP.  That practice obscures what is relevant and makes it difficult for the Court in its perusal of the papers to understand what a case is really about and to assess whether leave should be granted.  The judge is also hindered from determining whether leave should only be given to argue certain (but not all) grounds raised by a leave application.

203.  The duty of full and frank disclosure instead requires discrimination and discernment in the preparation of the evidence accompanying a leave application.  By signing a judicial review leave application lawyers (solicitors and counsel) are assuring the Court that the pages which have been included with the application are no more than what is necessary for the Court fairly to understand the facts and issues in a case.

204.  The duty of full and frank disclosure is a continuing one.  It does not stop because leave is granted and the proceedings are thereafter heard inter partes.  The difference is that both sides come under a duty to assist the Court (pursuant to RHC Order 1A) to understand the real issues in a case and to resolve the dispute in an expeditious manner. Both sides are under a duty to present their sides of a case in a fair, succinct and rigorous manner.

205.  As noted earlier, Hysan’s written submissions in this case were long and rambling.  I did not find them helpful in crystallising the true issues between the parties.  The written submissions seemed to be inviting the Court in effect to re-hear and re-assess the representations made to the Board.  That is not the function of a judicial review.

206.  Hysan submitted 8 lever-arch files of authorities.  That was excessive.  Most of the legal principles relied upon by both parties were not in dispute.  In addition, judges dealing with judicial reviews in the Constitutional and Administrative Law List can be expected to be familiar with the authorities.  It would probably have been sufficient for the purposes of assisting the Court in its understanding of the law for each party to have relied on no more than 2 bundles of authorities.

207.  It was not until Mr. Yu’s oral submissions that the real issues and arguments were narrowed down and became clear. Mr. Yu’s oral submissions were masterful in the way that they focused on what was truly in dispute and sought to present Hysan’s key points fairly and succinctly.  I found those oral submissions (which took no more than about 2 hours) to be extremely helpful.  I only wish that the written submissions had been done in the same way.

208.  In the future, the Court will expect parties and their lawyers (solicitors and barristers) closely to monitor what goes into bundles for town planning judicial reviews in order to ensure that bundles are kept as trim as possible.  There should not be so much waste of paper.

209.  Written submissions will be expected to focus on a fair and succinct presentation of the strengths and weaknesses of a case.  It will not help the Court for the same points to be re-stated in numerous ways. No amount of repetition or re-packaging will improve invalid points.  Nor will it help for arguments (such as the copying of reasons by the Board) to be mechanically added to one’s submissions even where there is little or no substance to the argument on the actual facts.

210.  Consequently, in the normal course of events, I would have considered that this case possibly merited costs to be imposed on a more stringent scale.  I am painfully aware that, where billions may be at stake from an applicant’s point-of-view, the mere prospect of indemnity costs may not be sufficient to deter bad practice.  But I stress that, whatever the amount of money at stake, lawyers (counsel and solicitors) are under a paramount duty to the Court to assist in the manner which I have described.  That duty to the Court trumps any duty owed to one’s client.

211.  I say “in the normal course of events”.  I bear in mind that the Court has only recently (last week in Lindenford) warned of a real possibility of indemnity costs being ordered where bad practice has been followed in town planning judicial reviews.  Now may be too soon then to act upon what the Court has only just indicated.

212.  Taking all that into account, I am not minded in this case to award costs on a higher scale.  Subject to counsel’s submissions, I would simply award to the Board 100% of its costs in the judicial review relating to the Wanchai Draft OZP and 95% of its costs in the judicial review relating to the Causeway Bay Draft OZP.