LAM KIN CHUNG MORNING SUN CHARITY FUND v. TOWN PLANNING BOARD AND ANOTHER

HCAL 517/2026

[2026] HKCFI 3739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 517 OF 2026

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D E C I S I O N

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A. Introduction

1.  The Applicant (“LKC Fund”)  is a tax-exempt charitable organisation, a company limited by guarantee.  Its sole director is Dr Lam Kin Chung. The LKC Fund is described as the contractor of the ‘Queen’s Museum’, situate at 61 Queens Road East and 3-5 St. Francis Street, Wan Chai, Hong Kong.  Dr Lam is also a director of Hostford Development Ltd (“Hostford”), the applicant in Hostford Development Limited v Town Planning Board [2024] HKCFI 2219, [2024] 5 HKLRD 520 (“Hostford”).  Hostford is the owner of the residential development at 3, 5, 7 St. Francis Street and 61 Queen’s Road East (“Hostford Site”).

2.  Part of the argument in this case is whether it is largely a re-run of the argument in an earlier case and/or therefore an abuse or a collateral attack on my judgment in Hostford.

3.  By Form 86 dated 4 March 2026, the LKC Fund seeks leave to apply for judicial review against the 14 November 2025 decision (“TPB Decision”)  made by the Town Planning Board (“TPB”), not to amend the draft Wan Chai Outline Zoning Plan No. S/H5/32 (“Draft OZP”)  despite the opposing representations in respect of the Draft OZP, but to submit it to the Chief Executive in Council (“CEIC”)  under the Town Planning Ordinance Cap 131 (“TPO”).

4.  Further, by summons dated 15 May 2026 (“Amendment Summons”), the Applicant seeks leave to amend the Form 86 to introduce a challenge to the 14 April 2026 decision (“CEIC Decision”)  made by the CEIC, approving the Draft OZP.  The approved OZP (“Approved OZP”)  was gazetted and announced on 24 April 2026, and renumbered S/H5/33.

5.  The LKC Fund now accepts that, as a result of the CEIC Decision, it is that decision which must be the primary target of the intended challenge, but asserts that it remains necessary to look back at the TPB Decision, because if there were to be reasons for that to be quashed, the CEIC Decision would also be tainted.

6.  The primary ground of judicial review advanced by the LKC Fund is “process irrationality”, but there are additional grounds also advanced.  Though the oral argument was relatively succinct, I have not overlooked the exhortation to re-read the detail of the arguments set out for the LKC Fund in the Form 86 (and its proposed amended form).

7.  I gave directions for there to be an oral hearing of the application for leave.  At that hearing: (1) the LKC Fund was represented by Mr Justin Lam and Ms Phoebe Lee of Counsel; (2) the TPB and CEIC were represented by Ms Bonnie Cheng SC leading Mr Sampson Siu of Counsel; and (3) the Putative Interested Parties (together, “PIPs”)  were represented by Mr Anthony Ismail of Counsel.  Ms Cheng and Mr Ismail each opposed the grant of leave for various procedural and other reasons, which I shall address.

8.  At the end of the hearing, I reserved my decision to be handed down later.  This is my Decision.

B.   Background

9.  Much of the background is not controversial and can be conveniently summarised as follows.  I take it from the parties’ skeleton submissions, the affirmation evidence, the TPB Paper (as defined below)  prepared for the representation hearing, the minutes of that representation hearing (“TPB Minutes”), and my own judgment in Hostford.

10.  The 1^st to 3^rd PIPs own the land at 31-36 Sau Wa Fong and 8-12 St Francis Street (“Item A Site”), which was previously zoned in 3 different zonings under the Approved Wan Chai Outline Zoning Plan Number S/H5/31, namely: Residential (Group A)  (“R(A)”)  – 29.1%; Residential (Group C)  (“R(C)”)  – 44.9%; and the remaining ‘Road’ area (“Road”)  – 26%.

11.  The Item A Site is accessible from St Francis Street (SFS”), which is a one-way southbound local road ascending in a steep 1:6 gradient from Queen’s Road East to Star Street, with vehicular traffic going uphill.  The Item A Site is a sloping site with its western portion abutting SFS at a level of about 12 metres above Principal Datum (“mPD”)  and its eastern portion on building platform at 19.5mPD in a terraced area, namely Sau Wa Fong.

12.  The eastern side of SFS has no pedestrian pavement towards the foot of the slope (“SFS Foot”).  Further upwards, the pedestrian pavement comprises alternating steep stairs and flat surfaces.  As it has been described in this application, SFS is not a disability friendly slope, and there is no formal road-crossing facility along it.  The Hostford Site is opposite to the Item A Site along SFS, and also abuts Queen’s Road East.

13.  On 17 November 2022, the 1^st to 3^rd PIPs made an application (“Section 12A Application”)  to the TPB under section 12A of the pre-amended Town Planning Ordinance Cap 133 (“Pre-amended TPO”)  to rezone the Item A Site from R(A), R(C)  and Road to Residential (Group A) 9 (“R(A)9”), with a building height restriction of 110mPD, to facilitate a residential development with arts facilities (“Indicative Scheme”). The proposal included direct vehicular access, an internal transport area with a turntable, a setback of about 10 metres from SFS, and a 24-hour barrier-free public passageway, not less than 4.5 metres wide, linking SFS and Sau Wa Fong.  Though the Indicative Scheme proposed an elevator and walkway connecting SFS and Sau Wa Fong, there was no proposed levelled walkway to Queen’s Road East, and still approximately 29 metres from that point to Queen’s Road East.

14.  Public inspection and comments were invited on the Section 12A Application.  The public comments received included addressing topics like traffic impact, road safety impact and Hostford’s proposal to extend the 1^st to 3^rd PIPs’ barrier-free public access to Queen’s Road East by a connecting footbridge over SFS to Hostford’s development then under construction at the Hostford Site (“Alternative Proposal”).

15.  In Hostford, I accepted that Hostford had put forward the Alternative Proposal not merely in pursuing its own commercial interests, but with the genuine good faith intention of linking proposed projects for wider public benefit, including through promotion of cultural heritage and the arts, as well as barrier-free access to a greater extent than might perhaps otherwise occur.  The main concern was pedestrian safety arising from the increase in residents from the proposed redevelopment of the Item A Site, who will use SFS as the means of access and egress.  As will be seen, and as it not surprising given Dr Lam’s involvement with both Hostford and the LKC Fund, the LKC Fund has similar concerns.

16.  The Section 12A Application was considered by the Metro Planning Committee (“MPC”)  of the TPB, with the benefit of (1) a paper (“MPC Paper”)  prepared by the Planning Department (“PlanD”), (2) PlanD’s presentation on the background to the Section 12A Application, the 1^st to 3^rd PIPs’ proposal, comments from government departments, public comments and PlanD’s views, assessment and recommendations; and (3) attendance of the 1^st to 3^rd PIPs to make oral submissions and respond to questions.

17.  On 22 September 2023, the MPC partially agreed to the Section 12A Application (“2023 Decision”).

18.  In December 2023, Hostford commenced judicial review proceedings so as to challenge the 2023 Decision.  In November 2024, that application was dismissed by my judgment in Hostford.

19.  Shortly before that, on 21 October 2024, the 4^th PIP – the developer of land at 1, 1A, 2 and 3 Hill Side Terrace and Nam Koo Terrace (“Item B Site”)  – made a further section 12A application for the Item B Site to be rezoned for residential development with historical building conserved.

20.  It can be noted that the indicative figures put on the two developments at the Item A Site and the Item B Site were about 216 units and 312 units respectively.

21.  In January 2025, the MPC partially allowed the 4^th PIP’s application.  Together with the partial agreement relating to the Item A Site, the two partial agreements were carried into a single draft plan for public scrutiny, i.e. the Draft OZP.  The aim was to carry the matters forward.

22.  On 6 June 2025, the MPC agreed that the Draft OZP was suitable for exhibition, and it was exhibited for public inspection between 27 June and 27 August 2025.

23.  During that period the LKC Fund made a representation (“R12”)  opposing the Draft OZP, on the grounds directed principally to pedestrian safety and accessibility at the SFS Foot.  It can also be noted that Hostford also made a representation (“R11”)  opposing the Draft OZP, on substantially similar and overlapping grounds as were advanced by the LKC Fund in R12.

24.  In September 2025, the TPB decided to consider all valid representations together.  The PlanD prepared a paper no. 11026 (“TPB Paper”), to provide the TPB with information relevant to its consideration of the representations.

25.  The TPB Paper, at §5.3.2, set out a broad summary of the major grounds and views of the parties making representations, as well as the responses, in relation to ‘Traffic Aspect and Barrier-free Access’.  As this formed a major part of the intended judicial review challenge, I can set out the main parts as follows:

5.3.2  Traffic Aspect and Barrier-free Access

Major Grounds/Views		Representation No.
(1)	The increase in PR for the Item A site will raise both pedestrian and vehicular traffic, thereby aggravating road-safety concerns on St. Francis Street (a steep, one-way street serving a dense neighbourhood with schools and residential developments)  by adding traffic flow on St. Francis Street and at its junction with Queen’s Road East.	R7, R8, R11, R15, R17 to R32
(2)	The submitted TIA does not include: •  a junction-operational performance analysis for the St. Francis Street/ Star Street intersection; •  a pedestrian TIA; •  a construction TIA; and •  a detailed description of pedestrian facilities in the vicinity, nor does it identify shortcomings on St. Francis Street. Since St. Francis Street is inherently limited in its capacity to provide suitable pedestrian facilities, vehicular capacity, and universal access, these omissions indicate that the Item A site is not an appropriate location for high-density development.	R11, R12
(4)	The footpath along St. Francis Street is narrow, steep and discontinuous, posing significant risks to people with special needs (e.g. the disabled, the elderly, pregnant women, etc.)  and forcing many of them to use the carriageway to reach the Item A site. The increase in PR for the Item A site and the corresponding population growth have not adequately considered the need for a comprehensive network of universal, barrier-free access in the area as: (i)  the proposed 10m setback would only improve the pedestrian environment at the frontage of the Item A site.  It would not benefit other sites along St. Francis Street; and (ii)  the capacity of the 24-hour barrier-free passageway is inadequate to meet the needs of new residents from both the Items A and B1 developments.	R6, R11, R12, R14, R15
(5)	The proposed development at the Item A site does not take the special needs into account and therefore infringes on their right to safe and equal use of city resources.  Such considerations should be addressed comprehensively at the planning stage.  By neglecting the requirement for a comprehensive, barrier-free pedestrian network in light of the disproportionate increase in development intensity, the proposal contravenes the government’s commitments under the United Nations Convention on the Rights of Persons with Disabilities, the Disability Discrimination Ordinance, and Chapter 8 of the HKPSG.	R6, R11, R12, R14, R15
Responses
(a)	In response to (1)  and (2): According to C for T, the scope of the TIA submitted with the s.12A application No. Y/H5/7 is acceptable given that junction operational performance assessments for eleven critical junctions near the Item A site (including the intersection of St. Francis Street / Queen’s Road East)  are conducted in the TIA.  The assessment shows that all examined junctions can operate with capacities during peak periods with the proposed development. The intersection between St. Francis Street and Star Street acts primarily as a one-way street from St. Francis Street turning right onto Star Street with a short cul-de-sac leading to St. Francis’ Canossian School.  Apart from school pick-up/drop-off services around school starting and dismissal time, limited vehicles will enter the cul-de-sac or obstruct the traffic from St. Francis Street to Star Street.  In view that the southern portion of St. Francis Street is a cul-de-sac and leads only to one development, i.e., St. Francis’ Canossian School, not including this location as one of the critical junctions for assessing its junction performance is considered acceptable.  Notwithstanding the above, the junction performance analysis in the vicinity, including that of St. Francis Street and St. Francis Yard, had demonstrated that junctions on or near St. Francis Street would be performing with adequate capacity after the commissioning of the proposed development. To address the concern on pedestrian safety, the widening of footpath along the whole St. Francis Street was duly considered but assessed to be infeasible by the applicant given that the widening of footpath will either involve acquisition of other private land or obstruct the manoeuvring of emergency vehicles entering St. Francis Street from Queen’s Road East.  Alternatively, the proposed development will provide a 10m setback from St. Francis Street with off-street L/UL arrangement within the Item A site for passenger pick-up/drop-off and goods deliveries, as well as a 24-hour public passageway with provision of a lift for barrier-free access connecting St. Francis Street with Sau Wa Fong.  This 24-hour passageway is an improvement to the existing conditions in the neighbourhood providing a barrier-free connection to the public and shortening their walking distance uphill to reach the upper part of Sau Wa Fong. Based on the submitted pedestrian traffic analysis of the s.12A application No. Y/H5/7, there will be a maximum increase of 2-way traffic by 3 to 6 pedestrians per minute after the commissioning of the proposed development, and nearly all interviewees agreed to the proposed provision of 24-hour barrier-free connection according to the interview conducted by the applicants.  Considering that (i) the majority of pedestrian travelling between St. Francis Street and Sau Wa Fong would make use of the 24-hour barrier-free access instead of walking up St. Francis Street; (ii) some residents are expected to travel by motor vehicles such as motorcycles and taxis; and (iii) the current proposal with the 10m setback with internal L/UL facilities and 24-hour barrier-free connection within the site has no impact on the existing width of the carriageway but improves the footpath portion at frontage and the overall connectivity of the neighbourhood, the proposed development at the Item A site is considered to contribute positively to the pedestrian walking environment on St. Francis Street. With the completion of barrier-free access provided by the s.12A application No. Y/H5/8, changes to the existing pedestrian walking pattern are anticipated as residents from the Item A site and the vicinity would then have barrier-free access to the Wan Chai MTR Station.  Moreover, the Level-of services (LOS)  of the adjacent footpaths, including those on Sau Wa Fong, St. Francis Street and Star Street have been assessed in the s.12A application No. Y/H5/8 taking into account the future general growth rate.  The pedestrian TIA indicated that the LOS of the footpath will remain at an acceptable level. TD also advised the applicants of the s.12A application No. Y/H5/7to submit a construction-traffic impact assessment including access arrangement for demolition and construction at the detailed-design stage, taking into account other known projects in the vicinity. Construction traffic should, wherever practicable, be confined to off-peak hours to minimise the impacts to traffic flow and pedestrian safety on St. Francis Street.  These submissions will be reviewed when the applicants submit their general building plans at the detailed design stage.
(c)	In response to (4)  and (5): The existing pedestrian route linking Sau Wa Fong, St. Francis Street and Queen’s Road East consists of staircases and ramps that are not barrier-free, and parts of the pavement lie within private lots and are partially obstructed. As mentioned in response (a)  above, the widening of footpath along the whole St. Francis Street was duly considered and assessed but found to be infeasible.  To take forward the proposed comprehensive development at the Item A site, the current internal transport design and arrangement as required under the Notes has reasonably catered for the need of the residents of the development, addressed the safety concern on St. Francis Street, as well as improved the walking condition of St. Francis Street and enhancing the connectivity of the Sau Wa Fong area.   By integrating this barrier-free passageway via the Item B1 site that connects St. Francis Street to Sau Wa Fong to Queen’s Road East and Ship Street Garden or Hopewell Hotel, pedestrian connectivity and walkability in the Wan Chai South area will be further enhanced for residents and visitors (Plan H-6).  The proposed barrier-free public passage way is an improvement to the existing conditions in the neighbourhood and TD supports this proposal from a traffic engineering perspective. It is government policy to provide a barrier-free environment for persons with disabilities with a view to enabling them to access premises and use facilities and services on an equal basis with others, thereby facilitating independent living and fully community integration.  All new private buildings and any alterations or additions to existing private buildings are required to comply with the barrier-free design requirements as set out in the prevailing B(P)R and the Design Manual: Barrier Free Access 2008, unless exempted. For pedestrian traffic impact, response (a)  in paragraph 5.3.2 above is relevant.  Regarding enhanced pedestrian linkages in the Wan Chai South area, response (b)  in paragraph 5.3.6 below is relevant.

26.  Reference should also be made to the TPB Paper at §5.3.6, headed ‘Traffic Aspect and Barrier-free Access’:

5.3.6  Traffic Aspect and Barrier-free Access

Major Grounds/Views		Representation No.
(1)	The TIA underestimates these impacts: Pedestrian traffic (i)  the assumption that pedestrian volumes on St. Francis Street will not increase due to the undesirable walking environment; (ii)  the assumption that only 5 % of future pedestrian generation will use Star Street underestimates demand since Star Street is the main route to Admiralty MTR Station; (iii)  the claim that the LOS on St. Francis Street in 2031 shows no difference between “no development” and “development” scenarios is incorrect, given that the proposed development at the Item A site is scheduled for completion by 2026; (iv)  the southern kerb of Star Street is projected to deteriorate from LOS B to LOS C by 2031, which will aggravate the existing constraints on St. Francis Street; and (v)  the capacity of the barrier-free link connecting Sau Wa Fong with St. Francis Street (through the Item A site)  to serve both new residents and planned patronage has not been demonstrated. Vehicular traffic (i)  no quantitative assessment is provided for existing or future conditions on St. Francis Street and Star Street, despite the significant increase in development intensity at the Item B1 site; (ii)  assuming generated traffic follows current distribution patterns is inappropriate; and (iii)  the evaluation of the two lay‑bys on Star Street relies on current availability and fails to account for impacts from the proposed development at the Item A site.	R11
(2)	The increase in PR from 5 to 9 at the Item B1 site, with exits onto St. Francis Street, will exacerbate traffic chaos and create pedestrian safety risks.	R17 to R29, R31, R32
(3)	Without dedicated vehicular access to the Item B1 site, daily operational traffic (including L/UL for residential, retail, and refuse)  will adversely affect traffic flow on Queen’s Road East.	R33
(4)	The NKT preservation and redevelopment scheme is commended for improving barrier‑free facilities. However, only one lift is provided between Ship Street Garden and the Queen’s Road East, which is insufficient to serve the increased number of residents and tourists. Alternative routes are either indirect and poorly signposted (via Hopewell Mall and Hopewell Hotel)  or unsafe (St. Francis Street).  The Board and the developer should provide additional direct barrier-free routes between NKT and Queen’s Road East to ensure a safe, convenient, and resilient network.	R9, R10, R15
(5)	The effectiveness of the proposed barrier‑free route from Ship Street (a typical inner street in Wan Chai)  to NKT is doubtful.  A direct link from NKT to St. Francis Street, and therefore connecting to the commercial and cultural areas of the Star Street District and Admiralty, would be more effective and offer an alternative travel experience.	R9
(6)	Converting 18 Sau Wa Fong into a public passage will channel pedestrians from Sau Wa Fong to St. Francis Street en route to Admiralty MTR Station, likely causing traffic chaos during school‑peak hours.	R30
(7)	The developer should come up with a proposal to (i) enhance barrier‑free universal access between Sau Wa Fong and St. Francis Street near Hoover Tower 2; and (ii) resolve pedestrian, vehicular, universal access issues on St. Francis Street between the Sau Wa Fong stairs and Star Street.  Undertakings should be provided by the applicant to construct and complete these enhancements before the new zoning takes effect.	R11
(8)	The impact of the proposed development on the disabled community cannot be fully assessed due to the absence of an institutionalised framework for evaluating barrier‑free access and accessibility with a Social Impact Assessment.  The Board should require a specific assessment of barrier‑free connectivity, set clear standards, and consult relevant organisations when reviewing planning applications.	R10
(9)	The proposed refuse transfer by trolley to the Star Street Refuse Collection Point will conflict with pedestrian flow and compromise sanitation.	R11, R14
(10)	The Board should refrain from increasing PR at the Item B1 site until the footbridge proposal over St. Francis Street, which provides universal access between Queen’s Road East and Sau Wa Fong via the planned museum at 61 3-7 St. Francis Street and 61 Queen’s Road East, is fully considered.	R13
Responses
(a)	In response to (1)  and (3): According to the TIA submitted with the s.12A application No. Y/H5/8, residents and visitors of the proposed development will primarily use public transport, and with the provision of barrier free access via Ship Street Garden newly constructed under HCII project, the majority of pedestrian traffic from Item B1 are expected to travel to Queen’s Road East and Wan Chai MTR Station via the more direct and user friendly routes including (I via Ship Street Garden and Ship Street; (ii) via Ship Street Garden and Hopewell Hotel; and (iii) via Sik On Street, which has a more desirable walking environment.  For Admiralty MTR Station, pedestrian could travel via (i) Sik On Street to Queen’s Road East; or (ii) via Sau Wa Fong and Star Street.  Taking into account the walking environment of all alternative routes, insignificant amount of pedestrian traffic from the Item B1 site will be induced to use St. Francis Street.  Besides, considering residents of Sau Wa Fong could make use of the 24‑hour barrier‑free access in the Item A site to travel between St. Francis Street and Sau Wa Fong as required under the Notes for “R(A)9” zone pertinent to Item A site, the pedestrian condition of St. Francis Street is expected to improve after the implementation of the proposed development at the Item A site by diverting some existing pedestrian traffic between those two streets rather than overwhelming St. Francis Street.  The modest increase of pedestrian traffic to Star Street with a Level “C” LOS remains acceptable and TD has no in-principle objection to the assessment. For vehicular traffic, it is noted that vehicular access is impractical due to site constraints.  The TIA presents that additional car parking and L/UL demand can be met by existing car parking spaces in nearby developments and adjacent L/UL facilities in the vicinity primarily along Queen’s Road East or Kennedy Road, and significant traffic volume or impact adding onto St. Francis Street and Star Street from the Item B1 site is not expected.  In particular, to meet the operational L/UL need arising from the proposed development, the lot owner of the adjacent Hopewell Mall and Hopewell Hotel has provided an undertaking at the s.12A application stage to allow L/UL and related access through their internal transport facilities, lifts and access in Hopewell Mall and Hopewell Hotel to meet the operational L/UL needs arising from the proposed development.  As the proposed development at the Item A site is equipped with internal pick‑up/drop‑off and L/UL facilities, traffic arose from the Item A site is not expected to materially affect the utilisation rate of the two lay‑bys on Star Street, which are available for use about 37 % of the time surveyed. The TIA also includes a junction‑capacity assessment for the signalised junctions of Queen’s Road East/Spring Garden Lane and Queen’s Road East/Kennedy Road.  The assessment shows that both junctions retain sufficient reserve capacities during peak hours after completion of proposed development under s.12A application No. Y/H5/8.
(b)	In response to (4)  and (7): A comprehensive barrier-free pedestrian network will be established in Wan Chai South through new accesses to be implemented at Items B1 and B2 sites (Plan H-6).  Barrier-free accesses via Lifts A and B, and the new Lift C within the Item B1 site, combined with the new elevated walkway at the Item B2 site connecting to Hopewell Mall and Hopewell Hotel with comprehensive signage scheme, will address level differences between Kennedy Road (+63.63mPD)  and Queen’s Road East via Schooner Street (+19mPD)  and Ship Street (+7mPD).  These will serve as critical nodes in the comprehensive barrier-free pedestrian network. Currently, pedestrians must navigate narrow alleys between buildings in Sau Wa Fong to reach St. Francis Street.  With the demolition of the existing building and the introduction of an open space at 18 Sau Wa Fong (which is designated as a NBA on the OZP for the “OU(RDHBP)” zone), a wider pedestrian passageway will be created.  Combined with the 3m ground floor setback from Schooner Street, this will enhance east-west pedestrian circulation across Star Street, St Francis Street, Sau Wa Fong, Schooner Street, the Items A and B1 sites, and Hopewell Mall and Hopewell Hotel. The pedestrian TIA conducted for the s.12A application No. Y/H5/8 assesses the LOS of nine footpaths adjacent to the Item B1 site, including the kerbs of Ship Street and Star Street. Considering that the walking environment of barrier-free access to Queen’s Road East via Ship Street or Hopewell Hotel is more desirable, the TIA assumed that only 5% of the generated pedestrian traffic would be directed to Star Street via Sau Wa Fong and the result indicates that the LOS of the footpath on Star Street with the highest pedestrian traffic will remain at an acceptable level of Level “C”.  Noting also that the school starting and dismissal time is staggered with the working population of the residential or commercial developments, it is therefore considered acceptable to conclude that the proposed development will not cause significant impact to the nearby pedestrian network.  TD has no comment on the pedestrian TIA.
(c)	In response to (8): At the Items B1 and B2 sites, apart from the preservation of the historic building of NKT, the scheme also proposes to provide at least 2,800m2 of new open space for the public. Barrier-free pedestrian access within the Items B1 and B2 sites will complement that at the Item A site, forming an improved comprehensive network linking Queen’s Road East, NKT, Kennedy Road, Ship Street and St. Francis Street.  These planning merits and societal benefits have been agreed by the relevant B/Ds and considered by the Board at the s.12A application stage.
(d)	In response to (9): The applicant of the s.12A application No. Y/H5/8 proposes daily refuse transfer to the Star Street Refuse Collection Point via trolley on Star Street, conducted once daily during off-peak hours.  The Food and Environmental Hygiene Department (FEHD)  has no comment on the proposed refuse collection method, provided that no environmental nuisance is generated to the surrounding area, and would closely monitor the cleansing condition and take appropriate action if necessary.
(e)	In response to (10): The response (f)  in paragraph 5.3.2 above is relevant.

27.  On 14 November 2025, the TPB held a meeting (“TPB Meeting”), at which it considered the various representations – some supporting, and some in opposition to, the Draft OZP.  At the TPB Meeting, both Hostford and the LKC Fund made oral presentations (with a PowerPoint or video)  to explain their opposition to the Draft OZP.  Amongst the points made by Hostford was the stated need to set a cap on the number of units for the Item A Site and the Item B Site.  Amongst the points made by the LKC Fund was the proposal for a bridge over SFS, i.e. the repetition of the Alternative Proposal.

28.  The various matters considered at the TPB Meeting were recorded in minutes (“TPB Minutes”), which were later published on 28 November 2025.

29.  The TPB Decision can be found in §§ 58-61 of the TPB Minutes, as follows (underlining in original):

58.  The Chairperson concluded that Members supported the amendments on the draft OZP, and agreed that the draft OZP should not be amended to meet the adverse representations.  All grounds of the representations had been addressed through the departmental responses as detailed in the Paper, as well as the presentations and responses made by the government representatives at the meeting.

59.  The Chairperson acknowledged Members’ concerns regarding pedestrian facilities at Item A site, suggesting the applicants of Item A site to explore the feasibility of providing an additional lift and enhancing lift capacity.  PlanD could convey the suggestions to the applicants.

60.  After deliberation, the Town Planning Board (the Board)  noted the supportive views of R1 on Item A, R2 to R4 on Items B1 and/or B2, and R5 on Item A, B1 and B2, and decided not to uphold R6 to R38 and considered that the draft Wan Chai Outline Zoning Plan (OZP)  should not be amended to meet the representations for the following reasons:

“(a)  Items A, B1 and B2 are to take forward two section 12A (s.12A)  applications which were agreed by the Metro Planning Committee of the Board taking into consideration the compatibility of the proposed developments with the surrounding areas in terms of land use and development intensity, findings of relevant technical assessments and comments from the relevant government bureaux/departments (B/Ds). The amendment items are considered appropriate (R6 to R38);

(b)  relevant technical assessments on traffic, environmental, visual, air ventilation, landscape, heritage, geotechnical, drainage, sewerage, and water supply aspects have been conducted under the two s.12A applications and confirmed that there are no insurmountable technical impacts arising from the proposed developments with the implementation of appropriate mitigation/ improvement measures. The development details and other technical aspects of the proposed developments would be subject to the scrutiny of concerned government departments in the subsequent development stage of building plan submissions and/or land exchange application (R6 to R38);

(c)  with the completion of proposed developments at Items A, B1 and B2 sites, there will be a new barrier-free pedestrian network connecting Queen’s Road East to St. Francis Street through Sau Wa Fong serving the local residents and visitors of the area (R6, R9 to R15, R30 and R33); and

(d)  the overall provision of open space is considered generally adequate to meet the demand of planned population, and new open space open to the public would also be provided in the proposed development at Item B1 site to meet the needs of the local residents in the area.  The existing and planned provisions of government, institution and community (GIC)  facilities are generally sufficient to meet the demand of the planned population in Wan Chai District Council Area in accordance with the requirements of the Hong Kong Planning Standard and Guidelines, except for child care centre, community care services facilities, residential care homes for the elderly, day rehabilitation services and residential care services.  These services/facilities will be carefully planned/reviewed by relevant B/Ds, and premises-based GIC facilities could be incorporated in future development/ redevelopment when opportunities arise.  The provision of GIC facilities will be closely monitored by the relevant B/Ds (R15 and R33 to R37).”

61.  The Board also agreed that the draft OZP, together with its Notes and updated Explanatory Statement, was suitable for submission under section 8(1)(a)  of the Town Planning Ordinance to the Chief Executive in Council for approval.

30.  The TPB Decision was communicated to the LKC Fund on 5 December 2025.

31.  The Draft OZP was duly submitted to the CEIC for review, and approval was given on 14 April 2026 under section 9 of the TPO, i.e. the CEIC Decision, leading to the Approved OZP.  The CEIC Decision, as announced in a press release and gazetted on 24 April 2024, itself gives no reasons.

C.  The Intended Grounds of Review

32.  Together with the proposed amendment so as to challenge the CEIC Decision, the LKC Fund advances five intended grounds of judicial review – four against the TPB Decision and one against the CEIC Decision:

(1)  Ground 1:  In its treatment of pedestrian safety at the SFS Foot, the TPB decision is Wednesbury unreasonable by reason of process irrationality, and as a result of the breach of Tameside duty of inquiry.

(2)  Ground 2:  The TPB acted unlawfully and breached its duty of inquiry, in failing to oppose any limit on the number of residential units for Item A and Item B.

(3)  Ground 3:  The TPB breached his duty of inquiry by failing to investigate the credibility of the developers’ account of discussions about the Alternative Proposal, on which the reliability of promised public benefits was said to depend.

(4)  Ground 4:  The TPB breached its own practice and the rule against a person being a judge in his own cause, by permitting Mr Horace Wong to answer questions at the representation hearing and then to remain for deliberation.

(5)  Ground 5:  The CEIC Decision is tainted by the grounds which should render the TPB Decision liable to be quashed. Further, independently, the CEIC breached his duty by not providing reasons.

33.  It is settled that, in order to obtain leave to apply for judicial review, an applicant must show public law grounds of review which are reasonably arguable and with a realistic prospect of success.  I am not sure it is helpful to say, as Mr Lam sought to emphasise, that that is a relatively “low hurdle”.  It is enough to recognise that the leave stage is to filter out cases which are not reasonably arguable, but is not the occasion to seek to resolve matters which are shown to be reasonably arguable; that is for substantive hearing.  But it may help to remember that leave is not to be granted merely because the underlying merits of a decision can be expressed again using public law labels and language.

34.  I can deal with the intended grounds of review, each in turn.  It is fair to say that the main focus in Mr Lam’s submissions was on Ground 1.  I shall address the merits of Ground 5, in part in the context of the assessment as to whether to permit the amendment proposed by the Amendment Summons.

35.  But it is helpful first to consider some preliminary matters, comprising various procedural objections advanced by Ms Cheng and Mr Ismail – perhaps understandably characterised by Mr Lam as a “kitchen sink of technical objections”.

D.  Standing

36.  The first technical objection is the PIPs’ challenge to the LKC Fund’s standing.  I think the point can be dealt with fairly shortly.

37.  The relevant legal test as to standing is whether the applicant has “sufficient interest in the matter to which the application relates” within the meaning of section 21K(3)  of the High Court Ordinance Cap 4 and Order 53 rule 3(7)  of the Rules of the High Court (“RHC”).

38.  In Kwok Cheuk Kin v Chief Executive in Council [2023] HKCFI 3074 at §112, I offered a summary of the applicable principles, as follows:

(1)  Where the decision affects the applicant’s personal right or interest over and above that of the general public or a section of the public, the applicant should have little difficulty in showing a sufficient interest in the matter to which the application relates.

(2)  Where, however, the decision does not have such effect and the applicant is effectively pursuing the application as a representative of the public interest, the Court adopts a holistic approach by taking into account a host of relevant considerations including the merits of the application, the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challengers who have a greater interest in the matter, and the nature of the breach of duty against which relief is sought.

(3)  In such a situation the applicant is not to be regarded as having a sufficient interest merely because the issue raised by him is of public interest.

(4)  Equally, the applicant should not be regarded as having a sufficient interest merely because of the strong merits of the proposed challenge.

(5)  Although there has undoubtedly been a trend to liberalise the requirement of standing in judicial review, the need to show a sufficient interest in the matter to which the application relates remains an important filter to keep judicial review within its proper bounds and to prevent abuse of the Court’s process.  This is particularly so having regard to the explosive increase in the number of applications for judicial review and the complexities of the applications seen in recent years in Hong Kong.

(6)  Where the applicant does not have a personal right or interest in the subject matter of the judicial review but claims to make the application in a representative capacity, the Court ought to be vigilant in examining whether he is genuinely advancing a public interest in making the application or is motivated by other reasons.

39.  Mr Ismail submitted that the LKC Fund, whose sole director is Dr Lam, should not be regarded as having sufficient interest simply because it is the contractor and “sponsor” of the Queen’s Museum, and as a charitable company limited by guarantee.  Indeed, its main object is to “promote education, teaching, education about culture, cultural exchange, learning, and education about art and science in Hong Kong and other parts of the world”.  Mr Ismail sought to emphasise that the LKC Fund has no objects relating to town planning, accessibility design, heritage or the Wan Chai community.  Hence, he said, there is no logical connection between the LKC Fund’s charitable mission and planning or land-use matters.

40.  However, Mr Lam relied on the fact that section 6 of the TPO permits “any person” to make representations in the planning process as regards a draft OZP.  The LKC Fund made representations in the very planning process now under intended challenge in these proceedings.  Its representation was considered by the TPB, and is referenced and addressed in the TPB Minutes. The LKC Fund’s representations were rejected (at least in the sense that no amendment was made to the Draft OZP), so that it was affected by that rejection. Indeed, I think it is correct that a person who has expressed opposition in the planning process to a proposed rezoning is ordinarily not to be regarded as a mere busybody.  Nor is a person disqualified, merely because his interest is in part commercial or local.

41.  Looking at matters in the round, and on balance, I would not refuse leave to apply for judicial review on the basis that the LKC Fund lacks sufficient standing.

42.  On the same basis, it might be thought that Hostford would also have had standing to bring a similar challenge as is made in these proceedings, but presumably a conscious decision has been made not to do so (perhaps in light of the failure of its previous application in Hostford). Therefore, it may remain relevant to keep in mind the connection between Dr Lam, the LKC Fund, Hostford and the Queen’s Museum in the context of other aspects of these proceedings, in particular the complaint of abuse of process or collateral attack.

E.  Delay

43.  Ms Cheng and Mr Ismail also submitted that the intended challenges to the TPB Decision and the CEIC Decision are out of time.

44.  In doing so, Mr Ismail reminded me that I have previously stressed – see, for example, the same Kwok Cheuk Kin case at §§122-124 – that:

(1)  The rules impose an obligation on an applicant for judicial review to make the application promptly and in any event within three months from the date when grounds for the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2)  Filing an application within three months is not in and of itself sufficient to satisfy the requirement of promptitude.

(3)  Public law decisions typically affect a broad range of parties, and there is a significant public interest in ensuring that any challenges to such decisions are brought expeditiously.

(4)  Full weight must be given to all aspects of the public interest, including the respect which must be paid to the time limits laid down by the rules.

(5)  Indeed, unless a disciplined approach for granting extension is of time is taken, there is a real risk that public administration will be unduly disrupted, and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(6)  Therefore, whether an application has in fact been “made promptly” will depend upon the particular circumstances in each case.

(7)  The circumstances to be taken into consideration include, but are not limited to (a) the nature of the relevant statutory or regulatory framework, (b) the reasonableness or unreasonableness of the applicant’s conduct, and (c) the impact of any delay on interested parties.

45.  Ms Cheng stressed that the three-month time limit starts to run, not from the date when an applicant knows of the grounds, but from the time when the grounds for challenge arise.  Further, where the relief sought is an order for certiorari to quash a decision, the date when the grounds for the application first arose shall be taken to be the date of the specific judgment, order, conviction or proceeding which is under attack.

46.  She also emphasised, correctly, that there must be a “good reason” for extending time, if an extension of time is required. Here, she said, not only was the Form 86 filed out of time, the LKC Fund has not even made any application for extension of time, and no explanation for any delay has been provided.

47.  The submission is based upon the fact that the TPB Decision was made on 14 November 2025, and it is said – albeit there was no actual evidence on the point – that the gist of that decision was published on the TPB’s website on the same day.  Hence, it was submitted, time began to run on that day, and not the date when the LKC Fund came to know of its grounds.  Because the Form 86 was filed on 4 March 2026, that was about three weeks after the expiry of time on 14 February 2026. The date of the publication of the TPB Minutes, it was argued, might be relevant only to the exercise of discretion for an extension of time.

48.  In response, Mr Lam submitted that the LKC Fund’s intended challenge, and the main ground, depends upon the reasoning of the TPB Decision, and not merely its result.  Therefore, time could not sensibly run until the TPB Minutes were published, since it is those minutes which identify and permit formulation of the reasoning-based challenge, not possible from the bare gist.

49.  I have proceeded on the basis that, insofar as it might be necessary, Mr Lam was making an oral application for extension of time, on the basis (which it is common ground would be relevant to the exercise of discretion)  that the proper formulation of the intended challenge was only possible after the publication of the TPB Minutes.  I do not think it is necessary for me to decide whether the Form 86 was not issued in time, where it seems to me that I would in principle accede to a request for the relatively short extension of time needed if the application for leave to apply for judicial review in this case had sufficient merit.

50.  I can, therefore, return to this point after considering the merits (see below).

51.  I can also note, albeit without comment at this stage, that the TPB, CEIC and PIPs all argue that the intended challenge to the TPB Decision has become academic, as a result of the making of the CEIC Decision. Obviously, the CEIC Decision was made much later, even after the date of the Form 86, though that may give rise to its own procedural issues.

F.  Abuse of Process / Collateral Attack

52.  Perhaps the technical objection most forcefully advanced on behalf of the TPB and CEIC as well as the PIPs is that the present application pursued by the LKC Fund is an abuse of process and/or an impermissible collateral attack on the judgment in Hostford.  It can be noted that my decision in Hostford is final, because Hostford’s appeal from it was dismissed by the Court of Appeal by consent, with costs to the TPB and the relevant interested parties.

53.  Ms Cheng drew attention to Hostford’s Ground 3 in the Hostford case which was summarised at §35(3)  of the judgment as follows:

In respect of the Objecting Relevant Comments submitted by the Applicants and other members of the public concerning the safety to pedestrians and the Alternative Proposal to resolve this issue, (i) the TPB failed to take them into account in breach of its express statutory obligation under section 12A(22)  of the Pre-amended TPO, (ii) the MPC Paper submitted to the TPB failed fairly to present such objecting comments to the TPB and/or the TPB failed to give or any adequate reasons for rejecting these comments.

54.  Indeed, she said, at the heart of Hostford was the issue of whether the TPB (by the MPC)  fairly considered the Relevant Objecting Comments and gave adequate reasons for rejecting them.

55.  Ms Cheng drew attention to the close connections between the LKC Fund, Dr Lam and Hostford – which the LKC Fund failed to draw to the attention of the court, in suggested breach of its duties of full and frank disclosure (see below).  She pointed out that, in these proceedings, Ground 1 is directed that the TPB’s assessment of pedestrian safety, where it is plain that the LKC Fund relies on substantially the same material facts as those raised in Hostford.  In that case, I held at §67 that the true complaint of the applicants was that inadequate weight had been given to the concerns on pedestrian safety, but I pointed out that the assessment of weight is an exercise of planning judgment which is for the TPB, and that the Court must be astute to ensure that such a challenge is not a cloak for a rerun of the arguments on the planning merits.  The ground was rejected because (1) the MPC/TPB did not fail to take into account the Relevant Objecting Comments, which had been fairly presented to the MPC, and (2) pedestrian safety and the Alternative Proposal involved qualitative assessment and/or the exercise of planning judgment which were for the TPB and not the Court.  The question which the TPB had to decide was whether the Section 12A Application would give rise to some insurmountable or unacceptable impact on the local community and not any adverse impact.

56.  Ms Cheng submitted that, whilst the LKC Fund has sought to re-characterise the pedestrian safety issue as a Wednesbury unreasonableness challenge rather than as a failure to consider public comments or to provide reasons, the evidential basis upon which the LKC Fund relies – namely the TPB Paper §§ 5.3.2 and 5.3.6, and the TPB Minutes §§34(c)  and 53 – comprise matters already considered in Hostford.  Further, in Hostford, I concluded at §50 that the issues, factors, planning consideration and assessments, including the comments of government departments and PlanD’s views concerning the proposed provision of direct vehicular access, the designation of a non-building area, and the requirement for a 24-hour public passageway, as recorded in the MPC Paper and the MPC Minutes, had been fairly and comprehensively presented to MPC members.

57.  Ms Cheng submitted that Ground 2 in the present proceedings, relating to the failure to impose a limit of residential units, was also the expression of concern about an expected increase in traffic volume, which was again an issue fully scrutinised in Hostford.

58.  Ms Cheng also submitted that Ground 3, relating to the discussions about the Alternative Proposal, was a non-starter because of the findings I made in Hostford at §§72 and 73.  Overall, she submitted, it is evident that the present application is an attempt to raise the same complaints through a different entity.

59.  For his part, Mr Ismail pointed out that the LKC Fund had also made representations or comments in the context of the previous Section 12A Application relating to the Item A Site, including in support of the Alternative Proposal proposed by Hostford – a fact I recorded at §30 of Hostford.  Those comments were rejected by the MPC and in the Hostford judgment, so that the LKC Fund is abusing the process just as Hostford would be abusing the process if it was an applicant in these proceedings.  Mr Ismail criticised the LKC Fund is essentially asking for a ‘second bite at the cherry’ to challenge the 2023 Decision in the name or guise of a challenge to the TPB Decision which took forward the 2023 Decision.

60.  Mr Ismail relied on the decision in John Gardiner v Mayo County Council [2024] IEHC 5, where it was held that the essence of the concept of a collateral challenge is that a party who has the benefit of an administrative decision, which has not been challenged within the prescribed time-limit, should not be exposed to the risk of having the validity of that decision challenged in later proceedings which seek to quash a subsequent decision on the basis that the earlier decision was invalid.  In that case, all the grounds pleaded sought to question the validity of the underlying decision to grant planning permission, hence the judicial review proceedings was held to involve an impermissible collateral challenge to an earlier decision in respect of which the time limit had already expired.

61.  Mr Lam emphasised, however, that the LKC Fund does not challenge the 2023 Decision, and none of the grounds of the present application are premised upon the 2023 Decision being invalid or erroneous.  Instead, the intended challenge is to the TPB Decision and the CEIC Decisions, as stand-alone decisions based on independent reviewable errors concerning their decision-making and reasoning process in 2025 and 2026 respectively.  Indeed, it would have been impossible to have challenged those decisions at the time of the challenge made in Hostford. Hence, the principles on Henderson abuse are inapplicable, and there is also no basis to suggest that the legality and validity of the TPB Decision and CEIC Decision should have been determined in Hostford.

62.  Mr Lam submitted that the John Gardiner case is inapplicable, precisely because in that case all of the grounds pleaded in the judicial review were directed to the validity of the underlying decision to grant planning permission, and it would not have been possible for a Court to rule in favour of the applicant without implicitly finding that the decision to grant was invalid.  I agree the case can be distinguished.  The facts of the present case are rather different.

63.  Mr Lam also pointed to the facts that: (1) there were other applicants in Hostford, which it was not suggested were controlled by Dr Lam; (2) the Item B Site was not the subject of the 2023 Decision nor the challenge in Hostford; and (3) the 2023 Decision was made by the MPC, whereas the TPB Decision was made by the TPB.

64.  It seems to me that there is some genuine overlap between grounds advanced in these proceedings and the grounds advanced in Hostford.  It might be said that it would be necessary for the Court to ask whether the present grounds identify materially new areas of public law, or whether they repeat in substance (albeit in a later procedural setting)  objections that I have already held to be matters for planning judgment.

65.  Indeed, I think it fair to say that there is some flavour of possible abuse.  Ground 1, which is perhaps the main thrust of the application, depends on the same essential concern considered in Hostford, namely whether the planning decision or solution dealt adequately with pedestrian safety in the relevant environment.  There is also overlap on other grounds.  Further, where Hostford and the LKC Fund made similar and overlapping representations to the TPB, and where Hostford was one of the applicants last time, and the LKC Fund is the applicant this time, it is easy to be left with the impression that the current proceedings have been brought by the LKC Fund and not Hostford so as to overcome or side-step anticipated potential problems of the likely criticisms of abuse of process or collateral attack.

66.  But, I think Mr Lam is ultimately likely correct when he points out the chronology, and the simple fact that the TPB Decision and the CEIC Decision – and the precise reasoning for them – did not exist when Hostford was litigated.  It is fair to say that the precise complaints now made, including the focus on alleged process irrationality, as regards the later decisions could not have been raised before.

67.  Further, though I do not think the point was raised by Mr Lam, it seems to me that I should proceed on the basis that the TPB’s consideration of the representations made to it, and the process of deciding whether to submit the Draft OZP with or without amendments to the CEIC for possible approval, was a genuine process not necessarily resulting in the same views previously expressed by the MPC (not least in the circumstances of the additional Item B Site).

68.  On balance, therefore, I would not shut out the present application on the basis of abuse of process or collateral attack.

G.  Whether Challenge to the TPB Decision Has Become Academic

69.  Ms Cheng and Mr Ismail submitted that, following the CEIC Decision, the TPB Decision became wholly academic because the Draft OZP had been superseded by the Approved Plan.  Hence, the continued intended challenge to the TPB Decision is an abuse of process.  Both relied in particular on the decision of Au-Yeung J in Yau Ka Po v TPB (unreported, HCAL 67/2015, 14 June 2016)  at §§61-62, 68 and 78.

70.  In that case, the two distinct stages under the TPO were identified.  At the first stage, the TPB does not make a final determination of the rights of anybody, but conducts an administrative consultative process, during which it may entertain objections.  Its decision is decisive of whether the draft plan should go to the CEIC, whether amended or unamended, but it is not decisive of the question of the final form of the OZP. At the second stage, the CEIC may approve the draft plan notwithstanding that any requirements under the TPO have not been complied with.  The accompanying documents submitted by the TPB are to enable the CEIC to consider the draft plan in substance, independent of the TPB’s own consultation process.  Any errors in the administrative process of the TPB would not necessarily vitiate the CEIC’s decision.  Reliance on Smart Gain Investment Ltd v TPB (unreported, HCAL 12/2006, HCAL 12/2007, 6 November 2007)  at §128 – where both the TPB and CEIC’s decisions were quashed – should not be followed, because that is inconsistent with the binding decision of the Court of Appeal in Kwan Kong Co Ltd v TPB [1996] 2 HKLR 363 at 369J and 380I, in which it was held that the subsequent gazetting of the CEIC’s decision approving the plan meant that the draft plan ceased to have any effect and the challenge to the TPB’s decision was academic.

71.  Reliance was also placed on the decision in Society for Protection of the Harbour Ltd v CEIC [2004] 2 HKLRD 902 at §§57-65, which also emphasised the independence of the CEIC’s decision from that of the TPB.

72.  Indeed, I accept that once a draft OZP has been approved by the CEIC under section 9 of the TPO, it becomes an approved plan under section 1A(2)(b).  Hence, that draft OZP is superseded and ceases to have any force and effect.

73.  Mr Lam’s response was to argue that the TPB Decision remains relevant, because the CEIC’s approval of the Draft OZP may be tainted by it.  I accept that as a possibility, even if the main focus or target – as I have already noted Mr Lam agreed – has become the CEIC Decision.  As a matter of principle, if the TPB process was arguably unlawful, and the CEIC approval is said to rest upon or be infected by it, the earlier process may remain live: see Chan Ka Lam v CEIC (unreported, HCAL 28/2015, 24 November 2017)  at §§34-36.  This does not require, and I have worked on the basis that Mr Lam was not really pressing, a continued freestanding challenge to the TPB Decision as such.  Rather, he was saying that the errors in process which led to that decision would have tainted the CEIC Decision.

74.  Hence, it remains necessary to consider the grounds advanced.  I do so in the particular circumstances of this case, and I am not intending to make a more general decision as to the circumstances in which it might remain open to continue to look at the process leading to a decision by the TPB after a draft OZP has been submitted to and approved by the CEIC.

H.  Ground 1: Process Irrationality and Breach of Tameside Duty

75.  The legal basis for judicial review on the ground of irrationality or Wednesbury unreasonableness has two aspects:

(1)  The first aspect is concerned with whether the decision under review is capable of being justified, typically whether it is so unreasonable that no reasonable authority could ever have come to it – or, to put it more simply, whether the decision is outside the range of reasonable decisions open to the decision-maker.  This can be termed “outcome rationality”.

(2)  The second aspect is concerned with the process by which the decision was reached.  A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it.  Examples would include where there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error.  This can be termed the requirement for “process rationality”.

76.  Process rationality requires the decision-maker to have regard to all mandatory relevant considerations and no irrelevant ones, but it goes further than that.  The process of reasoning should contain no logical error or critical gap.  An impugnable decision might be one that “does not add up”, perhaps because there is an error of reasoning which robs the decision of logic, or because there is an unexplained evidential gap or a leap in reasoning which fails to justify the conclusion.

77.  In this case, the LKC Fund submitted that there was process irrationality in reaching the TPB Decision.  Mr Lam emphasised, for the avoidance of doubt, that the LKC Fund does not assert outcome irrationality, nor does it seek to argue that the only reasonable outcome was to accede to the opposing representations.

78.  Mr Lam submitted that there was a serious logical flaw for the TPB to reason that the proposed measures – for example, the 10 metre setback at Item A Site, the proposed barrier-free access and footbridge between SFS and Sau Wa Fong, and the internal transport design within the Item A Site – would address the objecting representations insofar as the SFS Foot is concerned.  As he put it, pedestrians still need to traverse the SFS Foot to access or egress the Item A Site, so that it is illogical to suggest that an improvement to another area, excluding the SFS Foot, would address any safety at the SFS Foot.  Put more shortly, the criticism advanced by Mr Lam was that the logical connection between the problem and the solution is missing.

79.  The LKC Fund also sought to place reliance on a traffic report by Mr Edmund Chu.  In that report, the expert opined that the barrier-free access route from the Item A Site to Wan Chai would take around one minute longer, and the route to Admiralty would take around 4½ minutes longer, compared with traversing SFS including the SFS Foot.  He also stated – notwithstanding his acceptance that the proposed public passageway offers a safer passageway for pedestrians to access the various redevelopments as well as existing developments in SFS – it can be commonly observed that pedestrians have a tendency to use the shortest or fastest route or more convenient route for travel, so that some pedestrians would still use the existing access even with the provision of the safer passageway.  That is said by Mr Lam in submission to identify an evidential gap in the planning assessment that changes to the existing pedestrian walking patterns are anticipated.

80.  However, the traffic report by Mr Chu was not put before the TPB, and the LKC Fund filed no traffic impact assessment of its own.  This was not part of its representations to the TPB, and this material was produced only for the purposes of these proceedings.  On that basis alone, it cannot found a complaint that the TPB failed to consider it, though it may be that certain aspects of the report can be taken to have some bearing on whether the TPB’s anticipation about walking patterns was rationally founded.

81.  I have set out above the part of the TPB Minutes comprising the TPB’s reasoning.  The reasoning included that the relevant technical assessment on traffic had been previously conducted under the two section 12A applications, and the view was that it had been confirmed that there were no insurmountable technical impacts arising from the proposed developments with the implementation of appropriate mitigation/improvement measures.  Further, the development details and other technical aspects would remain subject to the scrutiny of concerned Government departments in the subsequent development stage of building plan submissions and/or land exchange application.  Reference was also made to the fact that, upon completion of the proposed developments, there would be the new barrier-free pedestrian network connecting Queen’s Road East to SFS through Sau Wa Fong.

82.  Though expressed in overall or compendious terms, there was a readily identifiable and proper basis for the conclusion reached.  As Ms Cheng correctly identified, pedestrian routing and safety were addressed in the TPB Paper at §§5.3.2 and 5.3.6 – see above.  Further, the TPB Minutes at §§28-40 evidence the discussion of the traffic and pedestrian aspects, including the various representations made.  It seems to me that, with the materials being addressed, the conclusions of the TPB sufficiently evidence its reasoning, and the explanation as to why this particular controversial issue was decided as it was.

83.  As to whether there was any logical flaw or the like, it should be borne in mind that the TPB was concerned with whether the increase in residential units would produce an impact which was not insurmountable once mitigated.  It was not concerned with whether all use of the SFS Foot would cease, or whether there remained any adverse impact.  As I previously held in Hostford at §67, I think it correct that the TPB’s task was to decide whether the proposals, or later the Draft OZP, would give rise to some insurmountable or unacceptable impact on the local community and not any adverse impact.  A conclusion that the residual impact is acceptable once mitigated is not an assumption that no impact remains.  It is the exercise of planning judgment, and it does not identify a logical gap in the reasoning.

84.  Indeed, the question is not whether the mitigation was the best answer to the condition at the SFS Foot, but whether the overall arrangements which would come from the proposed developments were rationally connected to the question of acceptability.  It seems to me plainly that they were.  It may be correct that the 24-hour barrier-free passageway and lift connections do not of themselves alter the SFS Foot, but they provide alternative ways for pedestrians to travel to and from Wan Chai and Admiralty. As Mr Chu stated, those routes are safer.  It seems to be understandable common ground that that is the point.  Those who take the safer route can avoid the SFS Foot, and the use of the SFS Foot would thereby also be reduced. Mitigation which provides an alternative and/or reduces the use of an existing hazard is rationally connected to that hazard.  The TPB was not required to eliminate the risk before it could rely on the overall proposals identified in the Draft OZP.

85.  Further, that some individuals may choose not to take the safer route does not seem to me to identify any leap of logic in the reasoning of the TPB.  In any event, the traffic impact assessments canvassed in the TPB Paper – and the evidence of consideration in, for example, §28 and other paragraphs of the TPB Minutes – show that the TPB found the arrangements acceptable, including as a result of anticipated changes to the existing pedestrian walking patterns which would logically flow from additional, safer routes being made available.

86.  Though the intended challenge is framed as one of process irrationality, it comes at least close to criticism of the weight given to the various matters recorded by the TPB in its assessment.  At bottom, the LKC Fund’s case is that a more full barrier-free connection, such as the Alternative Proposal footbridge, would have been better to address the issue of the SFS Foot.  However, that is a planning argument, and a planning authority is not bound to adopt the best or most comprehensive solution if it lawfully accepts another.  In any event, on the materials in this case, I do not think there was any reasonably arguable process irrationality.

87.  Mr Lam also submitted, as a further or alternative submission, that the TPB failed to acquaint itself with the facts pertaining to the prospect of pedestrian use of the barrier-free routes as compared to the SFS route, which amounted to a breach of the Tameside duty.

88.  It is trite that a decision-maker has a Tameside duty to take reasonable steps to acquaint itself with the relevant information to enable it properly to perform the function in question.  It is, however, for the decision-maker and not the Court to decide upon the manner, extent and intensity of the inquiry, though its position could be challenged if it is Wednesbury unreasonable.  Indeed, as I have held elsewhere, an alleged breach of Tameside duty is not an allegation of procedural unfairness; it is merely an element potentially within a Wednesbury unreasonableness challenge.

89.  The Court should not intervene merely because it considers that further enquiries would have been sensible or desirable.  It should intervene only if no reasonable decision-maker could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision.  Therefore, the Court should establish what material was before the decision-maker and should only strike down the decision not to make further enquiries if no reasonable decision-maker possessed of that material could suppose that the enquiries it had made were sufficient.

90.  Here, the suggestion of a Tameside breach adds nothing to the analysis.  Whilst the LKC Fund has argued that the TPB should have itself commissioned predictive modelling of how many pedestrians would in fact divert to the alternative safer route, the LKC Fund does not suggest that there was no traffic impact assessments covering pedestrian conditions.  I have referenced them already.  It was essentially a matter for the TPB to assess whether that material was sufficient, in the planning context, for it to be able to exercise its own judgment.  I do not think it is reasonably arguable to suggest that the approach adopted by the TPB was Wednesbury unreasonable or irrational for breach of any Tameside duty, or otherwise.

I.  Ground 2: Unlawful Failure to Impose Residential Units Limit

91.  The LKC Fund argued that the failure to impose a limit on the number of units for the development sites would affect its estimate of how great the increase of population would be in the redeveloped area.  In particular, Mr Lam submitted that the TPB failed to consider how the traffic impact assessment submitted by the PIPs would no longer be accurate if the number of units exceeds the estimate adopted for that assessment. Hence, he submitted that it was process irrational for the TPB to ignore the fact of such a major variable, freely changeable by the PIPs.

92.  It seems to me that the underlying premise of that submission is that, unless there is an express unit, the scale of development is left uncontrolled, such that the pedestrian and other traffic might be significantly greater than considered in the assessments.  However, that premise is mistaken.  Whilst the indicative proposals do not fix or cap the number of units, which depends on the size of each unit, the scale of the development is not for that reason uncontrolled.  The land is subject to various redevelopment restrictions, such as building height restriction, plot ratio control (capping the gross floor area), all of which impose constraints on what ultimately can be built.

93.  The LKC Fund has not demonstrated that the indicative figures for the residential units, as placed before the TPB, or the various building controls, would somehow permit the new residential population to so far exceed the assumed scale as to make reliance on the individual assessments arguably irrational.  Nor has it been demonstrated how a different subdivision of the permitted building space – whether to larger or smaller units – would materially alter the traffic or pedestrian aspects as presented to the TPB.

94.  Nor does it avail the LKC Fund to seek to draw a distinction between the Item A Site and the Item B Site.  Mr Lam submitted that the TPB’s reasoning that concerns can be addressed at the land exchange process could only apply to the latter, not the former, because the government lease for the Item A Site is virtually unrestricted and hence no land exchange process is needed.  But, it seems to me that there may be various ways to control development scale, and there is no reasonably arguable basis to suggest that control must be through a stipulated number of or cap on units, rather than through the adoption of plot ratio and other building constraints. I also note that the issue of the control of unit numbers for the Item B Site was discussed at the TPB hearing, as evidenced for example at §27 of the TPB Minutes.

J.  Ground 3: Credibility of Discussions about Alternative Proposal

95.  This intended ground, as originally advanced, was that the TPB breached its duty of inquiry by failing to investigate a conflict of evidence.  The conflict was between what was said by the representative of the Item A PIPs at the representations hearing before the TPB (i.e. that the developers had approached Dr Lam in November 2023 to explore a footbridge), when Dr Lam had said that those PIPs were simply unwilling to discuss this with him at all, despite his effort to travel to London specifically to meet the partner.

96.  Mr Lam submitted that this was material because the PIPs relied heavily on the maintenance of a 24-hour public passageway to support the rezoning application.   In his written and oral submissions for the hearing, Mr Lam put the concern as to one of future maintenance (rather than the initial provision of the passageway etc)  where, without any legal means to ensure such operations would be maintained in the future, the credibility of the PIPs becomes material.

97.  As to the first point, this seems to me to be on its face a clear re-run of the same argument which I dismissed in Hostford. Indeed, Mr Lam referred to the rezoning application, namely the very subject matter of the challenge made in that earlier case, where this dispute as to any discussion about the Alternative Proposal was specifically raised.

98.  In any event, it does not seem to me to be remotely material to the exercise being conducted by the TPB.  The conflict concerned only the Alternative Proposal, which was not part of the Draft OZP, and which would in any event depend upon cooperation between separate private landowners, which may or may not but probably did not exist.  The TPB Minutes at §37 record that there was no agreement between the private landowners, which is obviously correct.  As Mr Ismail submitted, the credibility of the persons making representations about the Alternative Proposal was of little consequence, precisely because there was no agreement. I already recognised at §§72-73 of Hostford the practical difficulty of making such a private arrangement any condition of rezoning.

99.  Further, an administrative body is not required to resolve every conflict of submissions or recollection between those making representations.  I agree with Ms Cheng’s submission that the TPB’s role was not to determine the truth or falsity of every factual claim made by any one or more of those making representations.  Its task was to consider the representations, and to decide whether to propose any amendment to the Draft OZP to meet or partially to meet any particular representation.

100.  Further, I do not think the various aspects of the barrier-free access and internal transport arrangements were advanced as, or treated as, some form of informal assurances resting on the developers’ good faith.  There is nothing in the underlying materials which suggests that the TPB Decision was predicated on relying on the developers’ word, rather than on the various planning materials, technical assessments and the proposed implementation framework.  On the materials, the Draft OZP was assessed, after taking into account the various representations, on its planning merits.

K.  Ground 4: Unjustified Departure from TPB’s Own Policy

101.  This intended ground of review is based on the submission that the participation of Mr Horace Hong in the TPB hearing was both (1) a breach of the TPB’s practice, and (2) a breach of the principle that no judge should be an advocate for his own cause.  This is asserted on the basis that, during the hearing, Mr Hong provided his views, but then stayed behind for the deliberation of the TPB Decision.

102.  Mr Hong is noted in the TPB Minutes as having attended the representation hearing on 14 November 2025 as Chief Traffic Engineer/ Hong Kong, Transport Department (“TD”)  – as a Member of the TPB.  He was one of the official Members (or their alternates)  from relevant Government bureaux and departments, appointed by the Chief Executive under section 2 of the TPO to attend TPB meetings and representation hearings, so as to provide professional input within their areas of expertise. Mr Hong’s role was obviously to assist the TPB on traffic-related matters from the TD’s perspective.  He was fully entitled, as an official Member, to sit and deliberate.

103.  When considering the traffic aspects, the TPB Minutes record Mr Hong as having made several comments: see §§ 28, 30 and 37. Having looked at those comments, I accept Ms Cheng’s submission that Mr Hong did not play the role of an “advocate/witness” as was asserted in the Form 86. First, it seems to me clear that the comments simply reflect Mr Hong’s role in assisting the TPB on traffic-related matters from the TD’s perspective, and he was not giving “evidence”, in what was in any event an administrative process of assessment.  Secondly, what he said was descriptive and factual, and none of the comments are in any way argumentative.

104.  Whether making comments or being engaged in the deliberations, Mr Hong was not acting in furtherance of some private interests of himself or the TD or any other Government department.  He was simply serving the public interest in putting his knowledge and expertise at the service of all Members of the TPB.  It is certainly unreal to regard his presence on the TPB, and making the comments he made, as importing any systemic bias.

105.  Indeed, what the TPB Minutes recorded Mr Hong to have said:

(1)  in §28, was merely pointing to where the findings of the various submissions and proposed measures to improve pedestrian connectivity and the walking environment had been covered in the MPC Paper and the TPB Paper;

(2)  in §30, was merely to explain the nature of SFS, and the discussions held between the developers and the TD as regards the request to provide an off-street loading and unloading bay with turntable, and what that would permit;

(3)  in §37, was merely to identify that the Government was open to private footbridge proposals that would be open for public use and improve pedestrian connectivity, but that there was no concrete scheme with technical details for the proposed footbridge (i.e. under the Alternative Proposal), and further that the proposal would involve private land and private investment where there was no agreement between the landowners so that it would be difficult for the Government to intervene for implementation of the proposed footbridge.

106.  With respect, none of that is remotely arguably objectionable on any public law basis.

107.  The TPB’s own practice does not assist the LKC Fund on this ground.  The particular provision relied upon, at §§5.12(f)  to (h)  of the TPB’s published Procedure and Practice, states that the representatives of PlanD and other Government departments who answer Members’ questions will then leave the meeting, after which the TPB will deliberate on the representations in private.  It seems to me that the provision is aimed at non-member departmental representatives, who attend to assist and then withdraw.  The provision is not directed at an official Member, or his alternate, and the provision does not preclude such a person from answering any question from other Members during the session – not least on the area of his expertise, which is why he has been included as a Member in the first place.

108.  In short, Mr Hong attended, and remained, as a Member.  That is actually consistent with §2.17(d)  of the Practice and Procedure (as was then applicable), providing that a Government department’s tendering of professional advice, or statement of Government policy, does not give rise to a conflict of interest, as it is incumbent upon the official Member to tender advice consistent with the official views of the Government departments or Government policy.

L.  The Amendment Summons

109.  Before turning to the substance of the intended Ground 5, it is appropriate to consider the preliminary objections made to the Amendment Summons.

110.  Under RHC Order 53 rule 3(6), the Court hearing an application for leave may allow the applicant’s statement to be amended, whether by specifying different or additional grounds or relief “or otherwise”, on such terms if any as the Court thinks fit.  However, Ms Cheng submitted that an amendment under that rule may not be used to add an intended challenge to a reviewable decision which did not exist when the original Form 86 was filed – and this is so notwithstanding the more flexible approach to amendment of pleading since the Civil Justice Reform.  Therefore, she said, what the LKC Fund should have done was to have issued a fresh Form 86.

111.  Ms Cheng submitted that the present case is a fortiori, when the original TPB Decision approving the Draft OZP has been superseded by the Approved OZP, making the original Form 86 otiose.  The proposed amendment does not seek to introduce merely a different or additional grounds of relief relating to the originally impugned decision, but instead seeks to challenge a new impugned decision.  In previous cases, applicants have taken out a second application for leave to apply for judicial review, even if that has then been consolidated with the prior proceedings.

112.  Ms Cheng also cautioned against the possible abusive use of the power to amend Form 86 to circumvent the time limits, or to permit challenges ‘slipped in’ under the guise of amendments. Further, nothing should be done which might lessen encouragement to parties to exhaust all avenues of appeal or alternative remedies.  There is, of course, some force in these points.

113.  However, Mr Lam relied on the more flexible modern approach to amendment, in particular in circumstances where a later decision closely connected with the original challenge may be substituted or added.  He referred to Qianhai Xinhuakang Financial Holdings (Shenzhen)  Ltd v Chen Jiarong [2020] 2 HKLRD 1320 at §§46-61 – applying Chan Mei Lin v Lee Hong (unreported, CACV 44/2015, 3 December 2015)  at §28.  The Qianhai case – which referenced the modern approach to litigation emphasising case management and efficient disposal of cases – was also cited with apparent approval by the Court of Appeal in Tasty Catering Group Ltd v Cheng Hung Kit [2021] HKCA 1211 at §24.  Mr Lam also referred to R v Secretary of State for the Home Department, ex p Turgut [2001] 1 All ER 719 at 736a-b.

114.  In Kwok Cheuk Kin v Secretary for Health [2022] 5 HKLRD 348 at §131, I stated the relevant principles for deciding whether to grant leave to amend a Form 86 after leave to apply for judicial review has been granted.  I think those principles are also applicable in circumstances where an amendment is sought prior to, and in order to pursue, the grant of leave to apply for judicial review.  Ultimately, whether or not to grant leave depends on what is fair and appropriate in all the circumstances, so that the real dispute between the parties can be determined.  Nevertheless, the reason for the lateness is a relevant factor.  Also relevant are the nature and substance of the amendment (including whether it is a pure point of law or a mixed point of fact and law, or if there are factual points), the merit of the amendment, the relevance or significance of the amendment to the key issue of the judicial review, and the existence of an alternative procedure to deal with the matter.

115.  In this particular case, the proposed amendment is to identify and make challenge to a later decision which forms part of the same statutory chain of decisions in the overall approval process of an OZP.  I see no prejudice arising from permitting the amendment in this case.  There is no question of cynically using the amendment to get around a timing issue (not least where the further decision to be impugned post-dated the Form 86); nothing untoward is being ‘slipped in’, where the CEIC Decision is sought to be impugned largely on the basis of the intended challenge to the TPB Decision; and nothing is being done which might lessen encouragement to parties in other cases to exhaust all avenues of appeal or alternative remedies.

116.  Were I to have formed the view that Ground 5 has sufficient merit otherwise for the grant of leave to apply for judicial review, therefore, I would have allowed the amendment.  However, the point is essentially academic where I do not think Ground 5 identifies any reasonably arguable public law ground of review with any realistic prospect of success (see below).

M.  Ground 5: Tainted CEIC Decision, Failure to Provide Reasons

117.  As already noted, the intended challenge to the CEIC is brought on two bases.  First, there is the derivative point that the CEIC Decision is tainted because it approved the Draft OZP on the basis of a legally flawed TPB process.  That aspect depends entirely on the existence of an arguable public law error in that process.  However, I have found that Grounds 1 to 4 do not meet the leave threshold, and any derivative challenge falls with it.

118.  Secondly, Mr Lam submitted that – assuming the CEIC had his own reasoning – it breached its duty by not providing the reasons.  He relied on the following propositions, in my summary of them (omitting references to authority):

(1)  Where permission is granted despite substantial public opposition, such decisions call for public explanation.

(2)  In this case, out of the total of 38 representations (as numbered in the TPB Paper), an “overwhelming majority” opposed the Draft OZP being approved without amendments.

(3)  Also relevant is that the proposed development is a large-scale project that would have a significant impact on the body of residents already living near the redevelopment sites.

(4)  The mere provision of minutes might not be sufficient, and the onus of justification cannot be satisfied by a paperchase.

(5)  As a matter of fairness, the person adversely affected should be entitled to know whether the decision-maker has addressed his grievance.

(6)  Adequate and clear reasons are more likely to promote confidence in public administration.

119.  Ms Cheng submitted – correctly – that the CEIC is not under an independent duty to give reasons, if the decision itself is not aberrant or if such a duty is not required on the grounds of fairness.

120.  It is trite that what fairness requires is context-specific, and I accept that any duty to give reasons did not arise, and reasons were unnecessary, in the particular context.  For example, this is not a case where the decision was likely to have lasting relevance for the application of policy and any future cases.  Instead, the CEIC approved a draft OZP submitted under section 9 of the TPO as part of, and at the end of, the ordinary statutory process of preparation, exhibition, receipt of representations, consideration by the TPB, and submission for approval.  The Approved OZP which resulted from that process came from site-specific amendments.

121.  It is correct that the Draft OZP attracted opposition, as well as some support.  I do not think the number or percentage of representations in opposition is necessarily relevant to the question of fairness in this case.  Public opposition or controversy is not of itself to be treated as sufficient, without more, to impose an independent duty to give reasons.

122.  Further, the materials provided to the CEIC – including the TPB Paper, the representations, the TPB’s consideration of them reflected in the TPB Minutes, and the TPB’s reasoning for the TPB Decision also shown in the TPB Minutes – identified the planning basis on which approval was sought, and granted.  They specifically identified the representations made in opposition to the Draft OZP, and the considerations taken into account leading to the TPB Decision.  There is no reason to think that the CEIC did not engage with those points.  Where there was no arguable flaw in the TPB process, there was nothing which the CEIC was required to explain, or somehow to cure if reaching the same decision albeit for different reasons.

N.  Material Non-Disclosure

123.  Ms Cheng submitted that, though the TPB and CEIC had been invited to make submissions, the application for leave to apply for judicial review remained ex parte in nature, so that the LKC Fund bore the burden to make full and frank disclosure.  Ms Cheng suggested that the factual matters underpinning the submissions on abuse of process / collateral attack and delay, in particular, ought to have been drawn to the attention of the Court, but were not – in breach of the duty of full and frank disclosure.

124.  In light of my above findings, I do not think it necessary to address this point in any detail.  I would simply say that it might have been preferable had the LKC Fund drawn attention to the various close links between itself and Hostford and Dr Lam, and perhaps to the similarity of arguments in the two sets of proceedings, so as to address them – if only to get in some ‘retaliation in advance’.  To be fair, however, significant extracts of the TBP Minutes were quoted verbatim in the Form 86, from which it was readily apparent where the potential similarity or overlap of points with the earlier parts of the planning process (and the decision in Hostford)  arose.  Those would have been, and were in fact, apparent to me as the same Judge dealing with both sets of proceedings.

O.  Result

125.  I accept that questions of pedestrian safety and barrier-free accessibility are important matters.  I have kept in mind that the TPO itself identifies safety as one of its purposes or aims.

126.  However, after careful consideration, I have concluded that the LKC Fund has failed to identify any reasonably arguable public law ground of review with any realistic prospect of success.  For that reason, the application for leave to apply for judicial review falls to be dismissed.  I so order.

127.  As the proposed amendment to the Form 86 was to introduce a further target of challenge, where the intended ground of review also had insufficient merit for the grant of leave, I also formally dismiss the Amendment Summons.

128.  In light of the above views, it is probably unnecessary to go back to the question of – or to resolve – the possible delay in the commencement of these proceedings.  Such a delay, if it existed, is either (1)  de minimis and excusable in the circumstances, (2) academic, or (3) irrelevant, where there is no point in granting any necessary extension of time to bring an application which has insufficient merit for the grant of leave.

129.  As to costs, I see no reason at present why costs should not follow the event.  Therefore, I order the TPB’s and CEIC’s costs of these proceedings to be paid by the LKC Fund, to be taxed if not agreed, with certificate for two Counsel.  I also order the PIPs’ costs of these proceedings to be paid by the LKC Fund, to be taxed if not agreed.

130.  However, I shall in the first instance make those orders on a nisi basis, absolute if no variation application is made within 14 days.  Any such variation application shall be dealt with on paper.