LINDENFORD LTD v. TOWN PLANNING BOARD

HCAL 59/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 59 OF 2011

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J U D G M E N T

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I. INTRODUCTION

1.  Lindenford and Shell jointly own a site at Tai Kok Tsui.  The site is held under a lease which will expire in April 2041.  The site (which has an area of 2,670 sq. m.) is occupied by Skyway House, a 13 storey building with one level of basement car park and a petrol station at street level. Skyway House has a plot ratio of 10.568.

2.  In September 2010 the Board in a Draft Mongkok OZP designated the site as an Other Specified Uses (Business) zone.  By that zoning the Board imposed 2 restrictions on the site.  The first is a 13 m wide building gap above 20 mPD on that part of the site immediately in front of Ka Shin Street.  The second is a building height restriction of 80 mPD for the remainder of the site.

3.  The 13 m width of the building gap corresponds to (and is aligned with) the width of Ka Shin Street.  Ka Shin Street is roughly in front of the middle portion of the site.  Accordingly, the 2 restrictions imposed by the Board in the Draft OZP mean that the site has been divided into 3: a middle portion (35% of the site) with a limit of 20 mPD and 2 portions on either side (together comprising 65% of the site) with a limit of 80 mPD.

4.  Lindenford objected to the 2 restrictions.  It made written and oral representations to the Board in support of its objections.  However, by letter dated 18 May 2011, the Board rejected Lindenford’s objections.  By this judicial review, Lindenford challenges the vires of the Board’s rejection of its objections and the imposition of the 2 restrictions.  Lindenford relies on 9 grounds for its challenge.  Those grounds are discussed below.

II.      DISCUSSION

A.      Ground 1: Error of fact

5.  The Draft OZP allows a plot ratio of 12 for the site.  In rejecting Lindenford’s objections, the Board took the view (contrary to what Lindenford had argued before it) that the permitted plot ratio of 12 could be achieved on the site despite the 2 restrictions.  Lindenford submits that the Board was mistaken in so assuming and therefore the Board’s decision to impose the 2 restrictions was based on a serious error of fact.

6.  In the course of the April 2011 meeting at which the Board heard representations from Lindenford and other objectors to the Draft OZP, the Planning Department produced a one-page table.  The table summarised in a single column the assumptions which had led the Planning Department to conclude (and suggest to the Board) that it was possible to put up a building with a plot ratio of 12 on the site in spite of the 2 restrictions.  A copy of the table is annexed to this Judgment.

7.  From the table, it can be seen that the Planning Department first calculated the Gross Floor Area (GFA) of the site given a plot ratio of 12.  The calculation yielded a GFA of 38,448 sq. m. (that is, 2,670 sq m (the site area) times 12 (plot ratio) times 1.2 (to take into account the normal 20% GFA concession)).

8.  The Planning Department then postulated a structure consisting of 3 levels of basement; 3 storeys of podium; and 2 towers of 13 storeys each on either side of the 13 m gap.

9.  The putative basement (with 100% site coverage) would be below ground.  It would not use up the net building height of 75.4 mPD (that is, 80 mPD (height restriction) minus 4.6 mPD (the site level)) available above ground.

10.  The putative podium (with 100% site coverage) would have 3 storeys, each with an assumed floor height of 5 m.  That would leave the middle portion of the podium within the 20 mPD height restriction imposed on the site’s middle portion.

11.  The 2 towers (with 65% site coverage in total) would rest, at either side of the building gap, on top of the podium, with the 13 storeys of each tower having an assumed height of 4.64 m per floor.  That would produce towers with heights of 60.32 m each.  If one adds the 15 m of podium height and the 4.6 m of the site’s ground level to 60.32 m, one obtains a total height of 79.92 m, well within the 80 m height restriction.

12.  In terms of floor area, the putative basement would yield 8,010 sq m (3 levels x 2,670 sq m).  The putative podium would yield 8,010 sq m (3 storeys x 2,670 sq m).  The putative 2 towers would together yield 22,562 sq m (13 storeys x 2,670 sq m x 65% site coverage).  On the Planning Department’s assumptions as found in the table, it should then at least be possible to have a GFA of 38,582 sq m in spite of the restrictions. That is 134 sq m more than the total GFA of 38,448 sq m.

13.  Mr. Anthony Ismail (appearing for Lindenford) submits that the Planning Department’s table is inadequate as proof that it is possible to erect a feasible structure having the requisite GFA despite the restrictions.

14.  Mr. Ismail focuses in particular on the principle (upon which there is no disagreement) that car parking spaces should not be included in calculations of GFA.  Mr. Ismail argues that the Planning Department’s putative scheme only comes up with a GFA in excess of 38,448 sq m, because it assumes that almost the entire of the 3 basement levels will contribute towards the total GFA of any development.  In other words, with the exception of (say) 134 sq m, the 3 basement levels will not be used for car parking spaces.  But that (Mr. Ismail suggests) is not practically feasible.

15.  Mr. Ismail points out, for example, that under the present lease for Skyway House, the basement floors of any building on the site may only be used for the storage of petrol or diesel and the parking, loading and unloading of motor vehicles.  Further, in the event of redevelopment on the site, the present lease requires that there be a minimum number of car parking spaces.

16.  If one works out the requisite number of parking spaces to comply with such provision in the lease, it would not be possible (Mr. Ismail says) to accommodate that number within Planning Department’s putative scheme.  For good measure, Mr. Ismail observes that the lease conditions requiring the provision of a minimum number of car parking spaces are similar to the recommendations in the Hong Kong Planning Standards and Guidelines (HKPSG).

17.  Mr. John Litton (appearing for the Board) responds by noting that the present lease for Skyway House stipulates that total GFA and building height for any development on the site should not exceed 29,038 sq m (that is, a plot ratio of 10.87) and 51.5 mPD respectively. Accordingly, if Lindenford wishes (as it does) to erect a structure with a plot ratio of 12 and a height greater than 80 mPD, Lindenford would have to apply for modification of its lease conditions.

18.  It follows (Mr. Litton reasons) that Lindenford can hardly rely on the present lease conditions relating to car parking spaces as an argument against the feasibility of the Planning Department’s putative scheme. Those lease conditions would not allow Lindenford to build beyond 51.5 mPD. 

19.  However, the present lease conditions are neither final nor binding nor written in stone.  The lease conditions can themselves (Mr. Litton says) be the subject of a negotiation between Lindenford and the Government leading to any lease modification.  Thus, much in the same way that the Board cannot legitimately rely on an existing lease condition imposing a 51.5 mPD as a justification for the Draft OZP because that condition might change, so Lindenford must not be able to rely on the existing lease condition imposing a minimum number of car parking spaces.  That, too, can change and must be assumed to be capable of being changed.

20.  Mr. Litton further submits that, if car parking spaces are necessary, one can always build more basement levels to accommodate them.  Those additional levels being underground, the height restriction would not be breached.

21.  Mr. Ismail counters this last point of Mr. Litton’s by observing that Planning Department’s table only posited a scheme of 3 basement levels.  Insofar as more levels would be required to accommodate car parking, the Board could not properly have been satisfied by the table that only 3 basement levels where adequate to attain the total permissible GFA.

22.  More pertinently, Mr. Ismail refers to the evidence of Mr. Aaron Wong (a Lindenford director) who states that:-

“[A]s a matter of fact, increasing basement levels is not an economicallu viable option for a small site like the Site. As advised by P & T [Lindenford’s Architect], for 3 basement levels, smoke extraction system will be required and it has already taken up a significant amount of space. If more than 3 basement levels are required, the efficiency of the basement levels will actually be really low due to the additional requirement of individual fire escape, smoke vent for each additional level and additional smoke extraction system.”

23.  In a judicial review, the burden must be on Lindenford as Applicant to show that the Board’s appreciation of the material facts was so seriously wrong that its decision can only be regarded as untenable.  I am unable to come to such a conclusion.

24.  In my view, Mr. Litton is correct to query Lindenford’s reliance on the existing lease conditions requiring a minimum number of car parking spaces.  Those may be re-negotiated and changed in the future.  It is, therefore, hard to see why the Board should have had regard to them when imposing restrictions from a planning point-of-view.  As noted, the Board cannot have regard to existing restrictions in a lease to justify height limits imposed from a planning perspective.

25.  It is true that in a briefing paper before the Board it was suggested that the imposition of the restrictions would “be able to accommodate the maximum plot ratio/GFA permissible under the OZP, taking into account building design constraints and the development restrictions under the lease”.  But, in coming to its decision, the Board was entitled to have regard to relevant restrictions in the lease, that is, those not capable of being changed.  It is hard to see why it should be relevant for the Board to take account of something which could be varied in the future.  The HKPSG themselves are, as their name implies, only guidelines.  They must be applied in light of constraints, including planning constraints, on the ground.

26.  Even if one were to suppose that the site’s existing lease conditions were a relevant factor, the mere fact that it may be more expensive or less efficient (whatever that might mean) to build more basement levels does not mean that it is not possible to do so.  The fact that, because of planning restrictions, it may entail greater expense to build a development with some total permissible GFA, would not render it “impossible” to achieve the requisite GFA.

27.  It seems to me that Lindenford reads far too much into the table.  The latter was only intended as a “back of the envelope” calculation to indicate how the requisite GFA might be achieved.  It was not purporting to be the only way, nor was it claiming to deal with all the technical problems which one might encounter on the ground when one actually starts designing or building a particular structure.

28.  The Board is entitled to be robust.  That the table only referred to 3 basements (because it was envisaged that those would be contributing to GFA), should not preclude it from making in this judicial review the obvious point that, if more car parking spaces are actually required, more basement levels can be built (albeit at possibly greater cost).

29.  Consequently, I reject Lindenford’s first ground.  I am unable to find a serious misapprehension of fact.  I do not think that Lindenford has demonstrated that the requisite GFA cannot be achieved whether in theory or practice.

B.      Ground 2: Error of law

30.  Lindenford first argues that it was unfair for the Board to have regard to the table at all.  This is because the table is said to have included new information not previously disclosed to Lindenford. The table having been produced for only a few minutes at the April 2011 Board meeting, Lindenford did not have a fair opportunity to respond to the same.

31.  There is nothing in this point.

32.  The table was in effect an aide-memoire which the Planning Department produced when explaining why it believed that total GFA was attainable not just at the site but in other areas covered by the Draft OZP.

33.  Many of the figures in the table (for example, plot ratio of 12 and GFA of 38,488 sq m) would have been known by Lindenford prior to the meeting in any event.  The other details in the table could readily have been grasped.  It would have been obvious to Lindenford and its professional advisers from a glance at the table what Planning Department’s basic approach was.  There would have been little (if anything) in the table which could have taken Lindenford by surprise.

34.  Prior to the April 2011 meeting, Lindenford had not asked Planning Department to state what its assumptions were in relation to the attaining of a GFA of 38,448 sq m.  Nor did Lindenford object to the table when it was produced by Planning Department at the meeting.

35.  In its deliberations, the Board’s Chairman rightly concluded (in my view) that “the table showing the broad assumptions in formulating the BHR [Building Height Restrictions] for individual sites was presented at the meeting to clarify and respond to the points made by the representers only” and “there was no unfair treatment for the Board to accept the clarification”.

36.  Lindendford secondly argues that it was wrong for the Board to rely on the minor relaxation provision in the OZP to remedy any difficulties arising out of the restrictions imposed.

37.  I am unable to understand this point.  The Board did not so rely.

38.  The Explanatory Statement to the Draft OZP permits the minor relaxation of restrictions to cater for site-specific matters. What is a “minor” relaxation will depend on the context and circumstances of a given case.  It is impossible to give any definition of “minor” in advance and the Board has rightly declined to do that.  It will be for the Board to decide whether, in the light of all relevant matters in connection with a specific application, a relaxation sought is merely “minor” and a restriction imposed by the Draft OZP should be alleviated.

39.  Here the Board did not see any particular difficulty with the restrictions imposed on the site.  The Board thought that a plot ratio of 12 was achievable despite the restrictions.  It might be that Lindenford might wish to argue for some “minor” relaxation in the future in order to accommodate some design innovation in the site.  The Board would consider such application on its merits in the future.  But (contrary to Lindenford’s suggestion) the Board did not look to the “minor relaxation” clause as in any way allowing it to impose restrictions which made it impossible to achieve the permissible plot ratio of 12.

40.  Consequently, this ground fails.

C.      Ground 3: Spot zoning

41.  Lindenford argues that the Board exceeded its powers under the Town Planning Ordinance (Cap.131) by imposing the restrictions which it did.  This (Lindeford submits) is micro-managing a site and usurps the functions of the Building Authority.

42.  I have previously rejected similar arguments in Turbo Top Limited v. Town Planning Board HCAL Nos. 3 and 52 of 2011 (21 November 2011) and Oriental Generation Limited v. Town Planning Board HCal No. 62 of 2011 (11 May 2012).

43.  For the reasons which I have fully stated in Turbo Top, this third ground likewise fails.

D.      Ground 4: Procedural unfairness

44.  This is similar to Lindenford’s first argument in Ground 2.  It is said that Lindenford did not have time to respond to the table.  In my view, Lindenford had sufficient opportunity (“a fair crack at the whip”) to respond to the  table for the reasons set out in the discussion of Ground 2.

E.      Ground 5: Failure to acquaint itself with relevant information

45.  There are 2 criticisms advanced here.

46.  The first repeats Grounds 2 and 4 in connection with the table.  I have dealt with the criticism sufficiently in my discussion of those 2 grounds.  Lindenford describes the information in the table as “over‑generalised”.  But, as noted above, the table was not purporting to be any more than a one column summary of the Planning Department’s assumptions.  I do not think that rhetorically characterising the document as “over-generalised” advances anything.

47.  The second criticism is that, in imposing the building gap in the middle of the site, the Board failed to take into account the difference in nature between the Air Ventilation Assessment (AVA) prepared by the Planning Department’s consultant (Environ) and that prepared by Lindenford’s consultant (Arup).

48.  Mr. Ismail says that Environ’s AVA was technically an “expert evaluation study” while that of Arup was an “initial study”.  An “expert evalauation study” (Mr. Ismail submits) is a broad-brush and large-scale qualitative assessment, whereas an “initial study” is site specific and quantitative.  The latter is more accurate and reliable (Mr. Ismail suggests) and so should have been accepted by the Board in preference to the former.

49.  There is nothing in this second criticism.

50.  Environ found that the prevailing wind in the area of the site both annually and in the summer was westerly wind from the sea.  But Environ found that clusters of buildings were presently blocking this westerly wind from penetrating to areas to the east of that where the site is located.  Environ recommended the building gap at the site (which is to the west of Ka Shin Street) in order “to allow entry of westerly wind” down through Ka Shin Street and towards the eastern part of Mongkok.

51.  Arup in contrast reported that “easterly and northerly wind dominates the prevailing winds”.  Westerlies (Arup found) only had a wind frequency of 5.7% in total.  This implied that the “beneficial effect from the Suggested Wind Corridor [that is, proposed by Environ] to allow wind to the inland area may be limited”.

52.  Arup stated at the end of its AVA:-

“To conclude, the AVA study has proved that the ventilation performance of the Preferred Scheme [Lindenford’s desired development] and its surrounding will be better, or at least not worse, than the Baseline Scheme [a structure analogous to the Planning Department’s putative development] which is OZP compliant. Therefore it can be concluded that if proper design enhancement measures such as shifting building gap, chamfering building tower as described in this report are incorporated, the Development with building height at 96.05 mPD and 13-m wide building gap that shifted to the north of the site (i.e. Preferred Scheme) can be able to achieve the same or better air ventilation result as the settings prescribed in the OZP.”

53.  Note the single chamfered tower which Lindenford proposed in its Preferred Scheme would have partially obstructed the view down Ka Shin Street.  Under the Preferred Scheme the building gap would be relocated from the middle to the northern portion of the site.

54.  At the April 2011 meeting, in response to Lindenford’s presentation of Arup’s AVA findings, Planning Department voiced reservations on the validity of Arup’s results.  For instance, Environ did not accept that westerlies only occurred 5.7% of the time over a given year and were of merely limited benefit to the site area.

55.  Mr. Calvin Chiu of Environ is recorded in the minutes as having:-

“referred to [the Arup AVA] which indicated that the Site Spatial Average Velocity Ratio (SVR) of the preferred scheme (0.17) was slightly higher than that of the baseline scheme (0.16) whereas the Local Spatial Average Velocity Ratio (LVR) were the same under both the baseline scheme and preferred scheme (0.18). It was based on this assessment that [Lindenford] considered that the air ventilation performance of the preferred scheme was better than the baseline scheme. However, he [Mr. Calvin Chiu] pointed out that the result was mainly due to the difference in weighting assigned to the importance of the west wind. He referred to the specific velocity ratio of some monitoring test points (O20 to O29) along Ka Shin Street and Fuk Chak Street to the east of the Skyway House site as presented in [Lindeford’s] AVA submission. The data indicated that the air ventilation performance under the baseline scheme was much better than the preferred scheme in terms of velocity ratio of the south-west, west-south-west and west wind. In particular, the velocity ratio for one of the test points at Ka Shin Street was zero (O29) which indicated no inflow of wind under the preferred scheme by [Lindenford]. Therefore, he did not agree that the preferred scheme was better than the baseline case.”

56.  This was therefore a case where the experts appeared reasonably to differ as to the interpretation of the data, including the data relied upon by Arup.  As Mr. Chiu demonstrated, Arup’s interpretation of its data is not the only possible conclusion that might be drawn.

57.  Plainly, the Board was aware of and considered Arup’s AVA findings.  But, given especially that Arup’s AVA was only prepared to say that Lindenford’s Preferred Scheme would “be better, or at least not worse” and could “achieve the same or better” ventilation in the site area, I do not think that the Board can be faulted for acting on Environ’s recommendation in imposing the building gap in front of Ka Shin Street.  The evidence in favour of relactaing the gap was far from clearcut.

58.  Further, the Board was clearly entitled to conclude that Lindenford’s “proposed relocation of the building gap [as suggested in the Preferred Scheme] would worsen the visual permeability along Ka Shin Street”.  That would have been self-evident.  The chamfered tower put forward by Lindenford would partially block the view to the west from Ka Shin Street.

59.  At the end of the day, Lindenford’s complaint boils down to little more than that the Board preferred Environ’s views to those of Arup.  That is hardly the basis for a judicial review.  The Court has no expertise in the assessment of air ventilation and must accord a wide margin of deference to the Board in such matter.

F.      Ground 6: Abdication of responsibility

60.  Lindenford says that the Board abdicated its responsibility to come up with its own decision.  That is because the Board’s written reasons for rejecting Lindenford’s objections closely tracked (but were not identical to) the wording of the Planning Department’s criticisms of the same objections.

61.  There is nothing in this.

62.  As a matter of general practice, the Board (insofar as it is minded to agree with the Planning Department) often adopts the wording suggested by the latter in a briefing paper prepared for the Board.  However, it is evident from the minutes of the Board’s deliberations, that the Board did not simply rubber stamp what the Planning Department recommended.  On the contrary, there plainly was independent consideration and discussion of relevant matters by the individual members of the Board.

63.  I note that this is a ground routinely relied upon in judicial reviews brought by developers against the Board.  This is despite repeated pronouncements by the Court that the mere copying of some or most of the Planning Department’s recommended reasons for rejecting a developer’s representations is hardly evidence of an abdication of responsibility.

G.      Ground 7: Inconsistency

64.  There is no inconsistency between a plot ratio of 12 and the proposed restrictions.

H:      Ground 8: Failure to attach adequate weight

65.  There is nothing here.  The Board considered Lindenford’s objections and attached such weight to them as it deemed appropriate.

I.       Ground 9: Wednesbury unreasonableness

66.  There is no unreasonableness.

III.    CONCLUSION

67.  Lindenford’s grounds all fail.  The judicial review is dismissed.

68.  In the discussion of Lindenford’s submissions, I have repeatedly stated that there is nothing of substance in many of its grounds.  I have chosen my words carefully.  There is a worrying tendency for developers to treat judicial reviews against a draft OZP as a re-hashing of arguments run before (and rejected by) the Board.

69.  That only leads to inflated judicial review applications with much time and cost being wasted in the preparation by both sides of their cases in relation to points of little substance which have no place in a judicial review.  That seriously delays the hearing of a judicial review application in relation to draft OZPs.  Meanwhile, there is a stay of the presentation of the draft OZP to ExCo and the planning development of Hong Kong is held up.

70.  This practice cannot persist.  All parties involved (developers, their solicitors and their counsel) are reminded of their duty under Order 1A actively to assist the Court in the resolution of disputes.  In the case of judicial review, this underlying duty is coupled with an overriding duty of full and frank disclosure in making a judicial review leave application.

71.  The sum total of these duties is that applicants should only put forward genuinely viable grounds for judicial review.  Judicial reviews should not be treated as a continuation of the representation process before the Board.  Nor does it help for bad points to be couched in a myriad number of ways so as ostensibly to constitute numerous grounds.  A bad point is a bad point.  Lawyers need to be realistically frank.  Good points can and should be made shortly.  The points are no less valid because of brevity.

72.  I would add that it does not assist the Court to lard one’s arguments with tendentious adjectives in order to suggest (for example) that the Board “blatantly misconceived” this or that point.  A judicial review is not war by some other means.  It must be a fair and succinct presentation of the strengths and weaknesses of one’s case, no less, but also no more.

73.  I note further that bundles are getting out of hand.  Just about every document relating in some way to the process before the Board is now routinely inserted in its entirety in the hearing bundle.  That is despite only portions of documents being actually referred to in Court or only portions of documents being needed to give context to what is referred to in Court.  These hearing bundles are typically supplemented with just as many bundles of authorities, even where the legal principles relied upon are well-known or not really in dispute.  These practices, too, must be subjected to more rigorous discipline.

74.  Solicitors and counsel should ensure that no more than what is essential is included in hearing or authorities bundles.

75.  As much as possible with hearing bundles, extracts should be preferred to whole documents and only those parts of documents that will be referred to (or that are needed to give context to the latter parts) should be included.  As a rule of thumb, but no more than a rule of thumb, if there are more than 10 lever arch files of documents, one should probably be raising queries and examining the composition of the bundles more closely.

76.  Authorities bundles should be pared down to what is truly necessary to elucidate a disputed principle.  I accept that at times it may be helpful to the Court to include an authority in support of even a well‑known principle.  But one has to make sure that inclusions of this nature are kept within due proportion.

77.  In the future, the Court may have to consider making cost awards on an indemnity basis or depriving applicants of significant costs where hearings are unnecessarily protracted because one has thrown every conceivable argument or document (good and bad) into an indifferent amalgam and left the Court to sort things out in its preparation for a hearing.

78.  There is one more matter.  In instructing counsel for judicial reviews, applicants should make inquiries of their availability in advance.

79.  One source of delay to hearings has been that applicants’ preferred barristers are not available except on extremely limited days.  Unfortunately, the development of Hong Kong cannot be held up solely because of the convenience of counsel.  That must especially be the case where reviews against draft OZPs typically only relate to specific sites within a much larger plan.  Other areas covered by a draft OZP of which no complaint has been made should not have to await planning development for any longer than necessary while applications against restrictions on specific sites proceed in Court.

80.  In the future, the Court will likely grant the earliest possible days for the substantive hearing of judicial reviews in relation to draft OZPs.  Some leeway in timetabling (say) of a couple of weeks may be allowed, to the extent possible, where counsel of choice cannot be available at the dates when the Court is free.  But no more accommodation than this can be expected.

81.  I add for the avoidance of doubt that the general remarks which I have just made are based on the Court’s experience of recent judicial reviews of draft OZPs.  The remarks do not necessarily all apply to the instant case.

82.  I shall now hear counsel on consequential matters.

Annex