YAU KA PO v. CHIEF EXECUTIVE IN COUNCIL

HCAL 221/2015

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 221 OF 2015

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D E C I S I O N
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Index

A. INTRODUCTION

B. BACKGROUND

C. APPLICATION FOR LEAVE

D. INTERIM INJUNCTION

E. INTERIM STAY

F. THE AMENDMENT APPLICATION

G. CONCLUSION AND DIRECTIONS

A. INTRODUCTION

1.  There are 3 applications by the Applicant:

(1) For leave to apply for judicial review (“the leave application”);

(2) For interim relief (“the interim relief application”); and

(3) To add a prayer to Form 86 (“the amendment application”).

2.  The subject matter of the leave application was a decision by the CEIC to approve a draft outline zoning plan submitted to him by the Town Planning Board (“TPB”).  This leave application is made by the same Applicant in another set of judicial review proceedings against the related decision of TPB in respect of that draft outline zoning plan.

3.  The putative respondent (“CEIC”) and proposed interested party (“the Director of Lands”) oppose all applications on the ground of lack of merits, and object to the grant of interim leave also on the ground of delay.

B.  BACKGROUND

4.  On 13 February 2015, TPB made a decision rezoning the Green Belt (“GB”) sites under draft Tai Po OZP No.2/TP/25 (“TPB’s Decision”).  It covered the lot at Tai Po Town Lot No. 221 (“the Lot”).

5.  On 13 May 2015, the Applicant lodged the prior set of judicial review proceedings in HCAL 67/2015 (“Yau Ka Po (No.1)”).  The subject matter was TPB’s Decision.  Form 86 (“Form 86 (No. 1)”) was amended on 4 September 2015.  Seven days after the papers were placed before me, leave to apply for judicial review was granted on 14 October 2015 upon consideration of the papers only.

6.  On 12 June 2015, TPB amended the draft Tai Po OZP No.2/TP/25  and renumbered it as Tai Po OZP No.2/TP/25A (“DOZP”).

7.  On 8 September 2015, CEIC approved the DOZP (“CEIC’s Decision”). The DOZP was renumbered as S/TP/26 upon approval (“the Approved Plan”), which was gazetted on 18 September 2015.  It has the effect of rezoning a number of GB sites in Tai Po OZP for residential development in accordance with TPB’s amendment.

8.  On 9 October 2015, the Lands Department issued a press release announcing that tender invitation for the Lot (“the Tender Invitation”) would commence on 16 October 2015 and close on 27 November 2015.

9.  On 16 October 2015 (2 days after leave was granted in Yau Ka Po (No. 1)), the Tender Invitation commenced as scheduled, and the relevant Government Gazette Notice was publicized.

10.  On 17 November 2015, more than 2 months after the CEIC’s Decision and 10 days before the scheduled tender closing date, the Applicant issued this leave application (“Yau Ka Po (No.2)”).  It adopted the contents of the Form 86 (No. 1).  CEIC’s Decision forms the subject matter of Yau Ka Po (No.2).

C.  APPLICATION FOR LEAVE

C1.  Standing of the Applicant

11.  In seeking leave, the Applicant has to show that he has a sufficient interest in the matter to which the application relates: s.21K(3) of the High Court Ordinance, Cap 4; Order 53, r.3(7) of the Rules of the High Court.

12.  The threshold for standing at the leave stage is only set at the height necessary to prevent abuse, ie to exclude meddlesome busybodies and troublemakers: Kwok Cheuk Kin v Secretary for Transport and Housing & Ors, HCAL 136/2015, 4 January 2016, at §83, Zervos J. 

13.  The court should caution itself against the susceptibility of judicial review to abuse: Kwok Cheuk Kin, at §81.  If a claimant has no sufficient private interest to support a claim to standing, then he should not be accorded standing merely because he raises an issue in which there is, objectively speaking, a public interest.  But a person may have genuine concern who is prepared to take up an issue that affects the general public in circumstances where it would be difficult or unusual for an individual with a direct and obvious interest to apply for judicial review: Kwok Cheuk Kin, at §83.

14.  The Applicant does not live in Tai Po, but studies in an institute (HKIED) there which is within 50 metres from the Green Belt.  The Green Belt in Lo Fai Road has been serving members of HKIED for decades.  The Applicant is a signatory of the Petition for Protection of the forested Green Belt of Tai Po organized by the Environmental Conversation Society of HKIED and member of the concern group for the Green Belt site at Lo Fai Road.  He has expressed his views to the TPB regarding his opposition to rezoning. 

15.  Mr Mok SC, counsel for CEIC and the Director of Lands, points out that the Applicant’s self-proclaimed interest relates primarily to the GB site at Lo Fai Road.  He has not referred to the Lot at all to justify his standing and sufficient interest.  He has not identified personal interest involved. Although his application is based on legitimate expectation, he has not explained how he relies on any alleged representation by the Government to his detriment (if any).  He has also not adduced any evidence to illustrate any substantive benefits he may have in reliance of the so-called legitimate expectation.

16.  In my view, the Applicant should not be regarded as a meddlesome busybody or trouble maker. It is arguable that he has sufficient interest to bring a claim in respect of CEIC’s Decision.

C2.  Delay

17.  There was no delay on the part of the Applicant as he filed Form 86 within 3 months of CEIC’s Decision.  The question of delay, however, is relevant to whether or not interim relief should be granted to him, which I will come to in section D6 below.

C3.  Threshold for leave

18.  The test for granting leave is reasonable arguability and the burden is on the Applicant: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, at §§14-17.

19.  This is not a particularly high threshold. It is a test designed to screen out unmeritorious, frivolous, vexatious and purported challenges that are not reasonably arguable.  The test does not mean that leave should be refused if there appears, on the materials before the Court, respectable counter-arguments to those relied on by the applicant.  Re Cheng Kar Shun & anor, HCAL 79/2009, 14 July 2009, A Cheung J (as he then was), at §§3-4.

20.  The court should not entertain extensive arguments on the merits.  A contested leave hearing should not become anything remotely like the hearing which would ensue if leave were granted: Sky Wide Development Ltd & ors v Building Authority [2009] 1 HKC 450, 452G.

C4.  The intended grounds for judicial review

21.  The Applicant relies on 2 broad grounds:

(1) That the CEIC’s Decision breached legitimate expectation;

(2) That the CEIC’s Decision is tainted given that the TPB’s Decision was unlawful.

C5.  Ground 1 – breach of legitimate expectation

C5(1)  Legal principles on legitimate expectation

22.  In Ng Siu Tung & ors v Director of Immigration (2002) 5 HKCFAR 1, §§91-99, Li CJ laid down the principles on legitimate expectation.  They have been summarized by Au J in Hong Kong Television Network Ltd v Chief Executive in Council [2015] 2 HKLRD 1035, §69:

“(1) Generally speaking, a legitimate expectation arises as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of the Government (at paragraph 92).

(2) While it is essential that the Government and the relevant government agency remain free to change its policy, the adoption of a new policy does not relieve a decision‑maker from his duty to take account of a legitimate expectation (at paragraph 93).

(3) The law requires that a legitimate expectation arising from a promise or representation be properly taken into account in the decision‑making process so long as to do so falls within the power, statutory or otherwise, of the decision‑maker (at paragraph 94).

(4) Unless there are reasons recognised by law for not giving effect to legitimate expectations, then effect should be given to them; fairness also requires that, if effect is not given to the expectation, then the decision‑maker should express its reasons so that they may be tested by the court when the decision is challenged (at paragraph 95).

(5) Even if the decision involves the making of a political choice by reference to policy considerations, the decision‑maker must make the choice in the light of the legitimate expectation (at paragraph 96).

(6) If the decision‑maker fails to do so, the decision will be vitiated by reason of a failure to take into account a relevant consideration; the failure to take account of the legitimate expectation constitutes an abuse of power and once the court has established such an abuse, it may ask the decision‑maker to exercise his discretion by taking the legitimate expectation into account (at paragraph 97).”

23.  To establish legitimate expectation, a representation must be clear, unambiguous and devoid of relevant qualification: Ng Siu Tung, at§103; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453 at §60, per Lord Hoffmann.

24.  A “contextual analysis” should be adopted, and the words used by the public authority have to be understood in the context in which the representation is expressed and the circumstances leading to the making of the representation: Lam Yuet Mei v Permanent Secretary for Education and Manpower [2004] 3 HKLRD 524 at §§74 and 80, per Chu J (as she then was). 

25.  A representation will be construed objectively, and is not based on knowledge or state of mind of the individual concerned: Ng Siu Tung, at §355, per Bokhary PJ. 

26.  Where a representation as to government policy is reasonably susceptible of competing constructions, the correct approach is to accept the interpretation applied by the public authority, subject to the application of the Wednesbury unreasonableness test: Ng Siu Tung, at §§102-104.

27.  An applicant must show that a promise or representation has induced a legitimate expectation, or that he is expected to be given or allowed to keep some substantive thing himself: Ng Siu Tung, supra at §§335 and 351.

28.  The more the decision challenged lies in what may inelegantly be called the “macro-political” field, the less intrusive will the court’s supervision be: R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115, 1131 C-D.

29.  To be legitimate, an expectation must be reasonable: Ng Siu Tung, at §§101 and 360. An expectation is not reasonable or legitimate if an applicant could have foreseen that the subject matter of the representation was likely to alter, or that it would not have been respected by the relevant agency, or that the applicant knew that the representor did not intend his statements to create an expectation: Lam Yuet Mei, supra at §75 per Chu J.

30.  In a planning context, a rigorous standard is to be applied when a substantive legitimate expectation is claimed on the basis of a representation or promise by a public authority. The duty of public authorities to exercise powers in the public interest must be kept in mind.  Only when the failure to give effect to the promise would be so unfair as to amount to an abuse of power, should it override other considerations. R (Godfrey) v The London Borough Southwark  [2012] EWCA Civ 500, § 51, CA.

31.  The concept of legitimate expectation in planning operates in exceptional circumstances. As remarked in Henry Boot Home Ltd v Bassetlaw District Council  [2002] EWCA Civ 983 at §56:

“It is possible that circumstances might arise where it was clear that there was no third party or public interest in the matter and a court might take the view that a legitimate expectation could then arise from the local planning authority’s conduct or representations. But, …, one suspects that such cases will be very rare ...” (emphasis added)

C5(2) Applicant’s case on legitimate expectation

32.  The alleged legitimate expectation was described as having formed over some years.  Amongst the many documents referred to, the Applicant relies on Policy Addresses of the Government for the years 2011-2012, 2013 and 2014; various statements by Government officials and press releases.  Specifically, the Legitimate Expectation was said to have risen in this way in the written submission:

“that over the years, the Government has made representations to the effect that (emphasis added) only those Green Belt sites that are ‘devegetated, deserted or formed’ will be reviewed for the purpose of rezoning them for housing development. This has given rise to a legitimate expectation that ‘only devegetated, deserted or formed Green Belts may be rezoned to residential use’ (“the Legitimate Expectation”).”

“Between 2012 and 2014, the Government made various statements regarding its Green Belt review initiative with a consistent emphasis on reviewing “devegetated, deserted or formed” Green Belt sites only Although there were references to a second-stage review of Green Belt sites, the Government has given the impression that the focus would remain on “devegetated, deserted or formed” sites. (emphasis added)

The repeated emphasis on the “devegetated, deserted or formed” characteristics of the Green Belt sites to be reviewed amounted to a representation that, as a matter of policy, the Government would not try to develop Green Belt sites except in cases of “devegetated, deserted or formed” plots. This gave rise to the Legitimate Expectation.

When it came to the so-called Stage 2 review, the policy shifted to one of reviewing Green Belt “sites located on the fringe of urban or new development areas, with relatively lower value as conservation or buffer zones” but the change had never been communicated to the public. This shift was only made clear to the public for the first time by the Secretary for Development in his blog post on 6^th July 2014. ... This constituted the Government’s resiling from its previous representations and hence the frustration of the Legitimate Expectation.

33.  Mr Dykes SC submits that a witting or unwittingchange of policy by the Government, insofar as it frustrates a legitimate expectation can be unlawful: Hong Kong Television Network Ltd at §§68-78.

34.  He submits that it is reasonably arguable that (i) the position taken by CEIC means that CEIC did not consider the representations identified in Yau Ka Po (No. 1) as giving rise to the Legitimate Expectation; and (ii) it follows that CEIC could not have properly taken into account the Legitimate Expectation in the decision-making process.

35.  As the grounds of review in Yau Ka Po (No.2) are basically the same as those in Yau Ka Po (No. 1), Mr Dykes SC contends that the issue of merits should not be re-opened in this leave application unless CEIC or Director of Lands can deliver one or more “knock out” points that demolish entirely the Applicant’s case.

C5(3)  CEIC and Director of Lands’ Initial Response

36.  Mr Mok SC disputes the existence of the alleged representation of the Government or that it amounted to legitimate expectation.  He asserts (but the Initial Response does not mention) that the Applicant was guilty of material non-disclosure of important statements.  Whilst it is apparent that the Applicant has not disclosed some material documents, I refrain from finding that it was deliberate at this stage.

C5(4)  Alleged representation by the Government

37.  I disagree with Mr Dykes SC that the issue of merits should not be reopened.  CEIC was not a party to Yau Ka Po (No. 1) and hence not bound by the ruling on leave there.  All the more so since leave was granted on the papers only in that case.

38.  Further, the subject decisions of Yau Ka Po (No. 1) and (No.2) were made by different public bodies under different provisions of the Ordinance.  The Approved Plan superseded the DOZP.  Yau Ka Po (No. 1) is liable to be dismissed on the ground that it is academic and that continuous pursuit of it is might be an abuse of process: Kwan Kong Co Ltd v Town Planning Board [1996] 2 HKLR 363, per Liu JA at 380 G-I.

39.  Accordingly, it is open to this court to consider the question of reasonable arguability on the merits in Yau Ka Po (No.2).

40.  It will be useful to review the Policy Addresses of the Government which gave rise to the Legitimate Expectation.

41.  The 2011-2012 Policy Address stated that the Government had to innovate to expand the land resources.  One of the measures was:

“To look into the use of green belt areas in the New Territories that are devegetated, deserted or formed, thus no longer performing their original functions, and convert them into housing sites. The first phase will cover an area of 50 hectares, mainly consisting of government land.” (§43(iv), underline added)

42.  It was clear that in terms of its policy initiative to identify GB sites suitable for rezoning for residential use, the Government had drawn a distinction between “devegetated, deserted or formed” Green Belt sites (“ddf-sites”) and non-ddf-sites.  The mention of a first phase reflected a staged approach,  clearly anticipating other stages.

43.  The phrase “devegetated, deserted or formed” GB area has repeatedly been used by government officials, eg in

(a) The “Initiatives of Development Bureau in the 2011-12 Policy Address and Policy Agenda dated 12 October 2011”;

(b) The response of Mrs Carrie Lam (then Secretary for Development) to legislators’ questions on 22 February 2012 and 6 June 2012;

(c) The responses of Mr Anthony Cheung (Secretary for Transport and Housing) to a legislator’s question on 11 July 2012. 

44.  The 2013 Policy Address stated as follows in §73(ii):

“There are 13 sites in Green Belt areas, measuring 57 hectares in total, which are devegetated, deserted or formed and considered suitable for rezoning for residential use. Town planning process will commence in phases. For seven of the sites, the rezoning process will be completed by 2017 to provide some 13 500 units. The remaining six sites will be rezoned subsequently within a few years to provide some 9500 units. I will ask the PlanD to expedite the rezoning process. Meanwhile, the PlanD is engaged in the next stage of GB review, with the purpose of releasing more sites for housing development.” (emphasis added)

45.  In §53 of the “Legislative Council Panel on Development - 2013 Policy Address – Policy Initiatives of Development Bureau”:

“PlanD has been reviewing sites in "Green Belt” (GB) areas that are no longer serving the intended function with a view to identifying those that are suitable for housing development. In its Stage 1 review, PlanD has reviewed GB areas that are devegetated, deserted or formed in the New Territories. 13 sites with a total area of 57 ha are considered suitable for residential development. The rezoning of seven sites, which could produce about 13 500 units, is expected to be completed by 2017. The remaining six sites will be rezoned within the subsequent few years to produce some 9 500 flats. PlanD is carrying out the next stage of GB review to identify more suitable GB sites for residential development.” (underline added)

46.  There is a difference in view on this statement.  In Form 86 (No.1), the words “more suitable” in the last sentence have been highlighted by the Applicant.  Mr Mok SC queries such highlight – more suitable than what?  He submits, rather, that it is the word “more” that should be highlighted.  He submits that if Stage 1 was to review ddf-sites, Stage 2 may include non-ddf-sites. 

47.  But however one reads the statement in the 2013 Policy Address, the effect of it is that Stage 1 review has been completed.  The next stage was on-going. The features in the “more suitable” GB sites have not been identified.  But if there were still devegetated, deserted or formed sites not reviewed, one queries why it was necessary to move to a Stage 2, especially since Stage 1 was not defined by time.

48.  Then came the blog post of the Secretary for Development (“SDev”) dated 24 November 2013:

“The GB review mentioned above has entered its second stage. We are reviewing GB sites in the fringe of built-up areas that are closer to existing urban areas and new towns. These sites are close to supporting infrastructure facilities, including those related to transport, water supply and sewerage. As these sites, though vegetated, have an insignificant buffering effect and relatively low conservation value, they are considered suitable for urban expansion.” (emphasis added)

49.  In another blog post dated 6 July 2014, SDev stated: 

“The blueprint of land supply as announced in the Policy Address

As announced in the Policy Address last year [ie 2013], the Planning Department had at that time completed the first stage of the GB review, which focused on devegetated, deserted or formed GB sites. As a result, 13 GB sites measuring 57 hectares in total were found suitable for rezoning for residential purposes. The Policy Address also announced that the next stage of the GB review would be carried out soon to release more sites for housing development. With the completion of the first stage of the GB review, which focused on devegetated lands, it is only natural to consider those vegetated GB areas in the next stage of the review. (emphasis added)

Two stages of GB review

In response to LegCo members’ questions on land supply on June 26 and October 16 last year, I replied that the second stage of the GB review was already underway, and would focus on sites located on the fringe of urban or new development areas, with relatively lower value as conservation or buffer zones, including sites which are close to developed areas with existing infrastructure and potential for further development.

On November 24 last year, I also wrote in “My Blog” that the second stage of the GB review was underway. …

How to choose GB sites to rezone for housing purpose

As I have reiterated many times in the past, sites zoned as GB mainly fall on slopes and hillsides on the fringe of urban or developed areas.  The locations and conditions of these sites are varied.  Some are located on devegetated hillsides, while others are on vegetated lands close to existing developed areas or may even be densely vegetated areas, which serve as buffer zones for Country Parks or Conservation Areas.  As mentioned above, the Government’s GB review is conducted in an orderly manner.  We began with devegetated, deserted or formed GB sites in the first stage of the review, and then progressed to sites located on the fringe of urban areas or new development areas with a relatively lower buffer or conservation value, including those which are close to developed areas or public roads, in the second stage.  As the latter sites are close to existing transport infrastructure and supporting facilities such as water supply and sewerage, they have good potential for residential use and it is natural to consider them for further developments.”

50.  Contents of these blog posts were not referred to in Form 86 (No.1)although they fell within the period of 2012-2014 during which the Government allegedly made the representation. 

51.  In footnote 10 of his written submission, Mr Dykes SC regarded the blog post of 6 July 2014 as untrue: the Secretary for Development said nothing to that effect on 26 June 2013, when he only mentioned a “second stage review on GB sites to review those low-value GB sites in the fringe of urban areas and [New Development Areas]” on 16 October 2013.

52.  In §125 of the 2014 Policy Address, it is stated that,

“We are taking steps to rezone for residential use sites in GB areas which are devegetated, deserted or formed, as well as suitable industrial sites.”

53.  In the 2015 Policy Address, §77 also referred to “the two stages of the GB review.  I announced in my last Policy Address that some 150 sites had been identified. …” 

54.  Despite Mr Dykes SC’ submission, the undeniable fact was that even without the blog posts, the Policy Addresses (necessarily in broad terms) referred to 2 stages of the review and that the Stage 2 sites have different features from those in Stage 1.  The blog posts explained the policy further and was consistent with the staged approach in the Policy Addresses. 

55.  Whilst it may be correct to say that the Government focused on sites with features A in Stage 1, it is erroneous to say that the Government ever stated that it would only review GB sites with features A but not sites with features B.

56.  In Re Ho Chun Yan Albert (2012) 15 HKCFAR 686,  L (then a candidate for CE’s office) made some statement about unauthorized building works at the home of T, another candidate.  It was held that there was no real prospect that a reasonable person would understand that statement to mean that L was asserting the absence of unauthorized building works in his own properties.  (§37-40)

57.  On the Applicant’s own case, any shift in policy was made clear to the public on 6 July 2014, well within the period of 2012-2014 relied on by him to establish the Legitimate Expectation. 

58.  I note that Mr Dykes SC has to use the words “to the effect that” to describe the alleged representation (§22(1), skeleton submission) and a subjective “impression” that was created (§32 above).  The alleged representation falls short of being one that was clear, unambiguous and devoid of relevant qualification: Ng Siu Tung. 

59.  In any case, the alleged representation was reasonably susceptible of competing constructions.  The one suggested by Mr Mok SC was not untenable and the interpretation applied by the public authority should be accepted: Ng Siu Tung, §§102-104.

C5(5) A contextual approach

60.  One has to consider the context of town planning in which the alleged representation was made. 

61.  Proper town planning is to ensure that land (a scarce resource) is appropriately used.  GB zones define the limits of urban and sub-urban development areas by natural features, containing urban sprawl as well as providing passive recreational outlets with a presumption against development. GB zones mainly fall on slopes and hillsides near the fringe of urban or developed areas and vary in location and condition.  Some GBs are located on devegetated hillsides; others are on vegetated lands close to existing developed areas.

62.  Town planning is an on-going process, based on prevailing circumstances, balancing competing interests and the overriding public interests.  The Government is obliged to review zonings of different sites from time to time to provide land to meet the needs of the society.  Land designated for one use has been rezoned to another use.  There has to be flexibility in the planning system in response to changing circumstances and the needs of the society. 

63.  TPB is to prepare town plans with statutory land use zones under s.4(1)(g) of the Ordinance for “country parks, coastal protection areas, sites of special scientific interest, green belts or other specified uses” that promote conservation or protection of the environment.  TPB can consider rezoning through a transparent consultation process.

64.  Inadequate housing has for years been a social problem because of the high property prices and rental.  In December 2014, the Government promulgated the Long Term Housing Strategy.  There was a policy shift in adopting a supply-led strategy to avert the supply-demand imbalance.  The Strategy seeks to maintain flexibility by introducing an annual review of the long term demand projections.  It was a determination to step up efforts to increase land supply. 

65.  Construed in context, the Government could hardly have made a representation that it would review (not sell or develop) only ddf-sites for residential use; or to cause zoning of any GB sites to remain static.

66.  Further, the alleged representation was made by the Government to the public at large and was plainly in the macro-political field. The Applicant has failed to identify any substantive benefit to himself.  It is not for the Court to intervene in decisions of such nature.  

67.  Further, the following had been disclosed to members of the TPB: the 2 stages of review, the fact that Stage 2 covered GB sites with vegetation, the selection criteria for the Stage 2 GB sites, that only about 150 hectares (1% of zoned GB area) were selected for assessment of their potential for zoning, and that there was no change in planning policy towards GB zone.  See §§112, 114, 115 of the Minutes of Meeting of TPB dated 7 November 2014 regarding the draft Tuen Mun OZP No.  S/TM/32. 

68.  Still further, as shown in the “LegCo brief, Approved Tai Po Outline Zoning Plan No. S/TP/26” dated September 2015, at the meetings before the TPB, there had been adverse representations to the effect that the proposed rezoning sites were richly covered with vegetation and dense woodlands rather than devegetated, deserted or formed.  The rezoning proposals were said not to be in line with the Policy Address and indicated a vital change in government policy without public consultation.  Hence, if there had been any Legitimate Expectation, that would have been taken into account by the TPB and in turn the CEIC.

69.  In my view, the Legitimate Expectation ground is not reasonably arguable.

C6.  Ground 2– CEIC’s Decision being tainted

70.  The Applicant’s case is that TPB’s Decision was unlawful in that TPB had an erroneous understanding towards the planning intent of GB zones and the relevant principles, failed to take into account relevant considerations and took irrelevant matters into consideration.  There were also various heads of alleged procedural unfairness, including (i) failure of some members of the TPB to declare their interests; (ii) that not all TPB members who participated in making the decision were adequately apprised of the representations; (iii) that TPB failed to make sufficient enquires, that material factors were not disclosed to enable an objector to speak to them; (iv) taking into account local open space which is not within short walking distance from the residents.  These are questions of fact which are at least arguable.  Accordingly, leave was granted in Yau Ka Po (No. 1).  

71.  Mr Dykes SC submits that it is also reasonably arguable that the CEIC’s Decision was “tainted” by the faults in the TPB’s decision-making process.  It was possible that the CEIC was not alive to the errors or unfairness in the TPB’s Decision or he was aware of them but nevertheless approved the DOZP.  The latter possibility would have constituted special circumstance requiring the CEIC to provide reasons, which he failed to.  See Smart Gain Investment Ltd v Town Planning Board, HCAL 12/2006 & HCAL 12/2007, 6 November 2007, at §§117-127, per A Cheung J (as he then was).

72.  Mr Mok SC disputes the contentions, (i) seeking to distinguish Smart Gain; and (ii) relying on the statutory scheme in the Ordinance under which the CEIC came to his decision.

73.  In Smart Gain, TPB made factual errors which were not insignificant or insubstantial and CEIC relied on the wrong factual basis to come to his decision.  The present case is distinguishable.  I agree with Mr Mok SC that the alleged errors of fact/unsustainable conclusion of fact appearing in Section (M) of the Form 86 (No.1) were not really errors of fact.  They were merely recitals of Guidelines and provisions, and responses of officials to them at a meeting.  Whether the proposed development would, as alleged, overstrain the overall provision of public facilities, or whether it was wrong to take into account local open space sites not within short walking distance, were matters of judgment, which were beyond the scope for judicial review.

74.  Be that as it may, I agree with Mr Dykes SC that it is arguable that Smart Gain may not apply only to cases with errors of fact. 

75.  With regard to the statutory scheme for the CEIC’s approval of a draft outline zoning plan, ss.8 and 9 of the Ordinance are applicable:

“8 (1) Before the expiration of the period specified in subsection (2) in relation to a draft plan, the Board shall submit the draft plan to the Chief Executive in Council for approval.

(1A) The Board shall submit a draft plan to the Chief Executive in Council under subsection (1) together with-

(a) a schedule of the representations (if any) made under section 6(1) in respect of the draft plan (whether with or without any amendments made under this Ordinance) or any of the amendments made under section 7 to the draft plan (whether with or without any amendments made under this Ordinance), and the comments (if any) made under section 6A(1) in respect of any of such representations;

(b) a schedule of the further representations (if any) made under section 6D(1) in respect of any proposed amendments to the draft plan (whether with or without any amendments made under this Ordinance); and

(c) a schedule of the amendments (if any) made by the Board under this Ordinance to the draft plan (whether with or without any amendments made under this Ordinance).

…

9 (1) Upon submission of a draft plan the Chief Executive in Council may-

(a) approve it;

(b) refuse to approve it;

(c) refer it to the Board for further consideration and amendment.

(2) The Chief Executive in Council may approve a draft plan notwithstanding that any requirements of this Ordinance applicable thereto have not been complied with.

…”

76.  Hence, the draft plan submitted to CEIC for approval must be accompanied by the documents set out in s.8(1A), which should include all adverse representations.  The purpose is to enable the CEIC to consider the draft plan in substance. See the Harbour case ie Society for Protection of the Harbour Ltd v Chief Executive in Council & Ors (No.2) [2004] 2 HKLRD 902, §§57(viii) and 62, Hartmann J (as he then was).

77.  CEIC is not required to consider, eg how many meetings there were, who said what in the minutes of meeting of TPB, who declared interest at a meeting and who did not, when a member left a meeting and for how long, how many people went in and out of a meeting. 

78.  Whilst the Board's decision is decisive on the question whether the draft plan should go to CEIC, the decision on the final form of the outline zoning plan is for CEIC.  CEIC’s Decision is independent of TPB’s. Even if there were any error in the administrative process of the TPB, it does not necessarily vitiate CEIC's Decision.  See the Harbour case, at §§57‑65, in particular:

“68. … Put simply, the Board may adopt a wrong approach in law but nevertheless create a draft plan which, after it has been approved, is demonstrated nevertheless to accord with a correct approach. It was, I think, Ms Cheng who said during the course of submissions that there may be a right road and a wrong road but both may reach the same desired destination. In looking to administrative decisions, that seems to me to be an apt analogy.”  (emphasis added)

79.  Mr Mok SC has made respectable submission on each item of alleged unlawfulness in TPB’s decision-making process.  However, what causes me concern is that some months before CEIC’s Decision was made, Yau Ka Po (No.1) has been served.  CEIC would have been alerted to the alleged unlawfulness. It is arguable that one of the 2 possibilities in Smart Gain applied (paragraph 71 above). 

80.  I find Ground 2 to be reasonably arguable and I grant leave to apply for judicial review on this Ground.

D.  INTERIM INJUNCTION

D1.  The interim injunction sought

81.  The Applicant seeks to restrain the Director of Lands from awarding the tender for the Lot pending determination of Yau Ka Po (No.1) and (No.2).  His case is that the interim relief will preserve the status quo and prevent irreversible harm to the environment.

D2.  Legal principles for the grant of interim injunction

82.  The granting of interim injunctive relief by an administrative court preserves the status quo. It ensures that, so far as is possible, a applicant for judicial review will not be denied the benefit of his success. The Harbour case [2003] 3 HKLRD 960, §8.

83.  I am told that this application, against a third party and not the putative respondent, is the first of its kind in Hong Kong.  The applicant may in appropriate cases seek interim relief against an interested party. He will not have to establish a private law cause of action against the interested party. In judicial review proceedings, it is sufficient if he is challenging a public law measure and it is appropriate, in all the circumstances, to grant interim relief preventing the interested party from acting in reliance on that measure.  Sir Clive Lewis, Judicial Remedies in Public Law, 5^th ed, §8-035.

84.  For an interim injunction, the court must apply a threshold test, consider the risk of damage and the balance of convenience.

85.  There is dispute as to the threshold test.  Mr Dykes SC submits that the Applicant needs only to show serious issues to be tried. 

86.  Mr Mok SC, however, submits that a higher test of “strong prima facie case on the merits” is applicable:

(a) Where a party challenges the validity of a law and an interim injunction is sought to restrain a government authority against what is prima facie the law of the land: Cheung Tak Wing v Communications Authority & Anor, HCAL 60/2015, 12 June 2015,  Au J, at §§26-27.

(b) Where interim injunction is identical to the final injunction relief sought, and the grant of the interim injunction would effectively dispose of what an applicant essentially seeks to achieve by way of the action.  This position is to be more so in the context of judicial review: Cheung Tak Wing, §28.

87.  The rationale is explained by Lord Goff in R v Secretary of State for Transport ex parte Factortame Ltd & ors (No 2) [1991] 1 AC 603 at 674B-D as follows:-

“… the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.”

88.  This is an important threshold principle to which the court that is being asked to consider interim relief must direct its attention in the first instance: R v Secretary of State for Trade and Industry ex parte Trades Union Congress [2001] 1 CMLR 8 at §25, Buxton LJ.

89.  By way of example, the English Court of Appeal granted an injunction against a local authority’s reorganization of schools because the authority had not followed the statutory procedure.  The House of Lords granted an interim injunction forbidding a minister from obeying an Act of Parliament that was in conflict with EU law. See Wade & Forsyth, Administrative Law,11^th Ed, p479.

90.  In the present case, once the DOZP was approved by CEIC, it became an approved plan under s.9(3) of the Ordinance.  The DOZP was superseded and ceased to have any force and effect: Kwan Kong Co Ltd v Town Planning Board [1996] 2 HKLR 363; Turbo Top Ltd v Town Planning Board, CACV 255/2011 and CACV 256/2011, 18 January 2012, §5. 

91.  An approved plan has effect as part of the laws of Hong Kong:  Yin Shuen Enterprises Ltd v Director of Lands [2002] 1 HKC 304, at p.325B; Anderson Asphalt Ltd v The Secretary for Justice [2010] 5 HKLRD 490, at §33. 

92.  Mr Dykes SC submits that an approved plan has statutory backing but is not a statute. It only binds government officials. With respect, such submission is contrary to Court of Appeal authorities in paragraphs 90 and 91that are binding on this court. 

93.  As the Applicant is seeking to challenge the law of Hong Kong and the interim injunction is identical to the final relief, I hold that the Applicant has to show strong prima facie case on the merits.

94.  Overall, the court should take whatever course that appears to carry the lower risk of injustice or cause the least irremediable prejudice to one party or the other: PCCW-HKT Telephone Ltd v Telecommunications Authority, HCAL 63/2004,13 August 2004, at §§26-27, per Hartmann J (as he then was); National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] 1 WLR 1405, at §17, per Lord Hoffmann.

D3.  Application of the threshold test

95.  The Applicant is unable to demonstrate strong prima facie case on the merits in view of the doubt over his standing, and the fact that Ground 2 remains merely reasonably arguable.  That is the end of the injunction application. 

96.  If I am wrong about the threshold test, there certainly are serious issues to be tried.  I proceed to consider the risk of damage and balance of convenience.

D4.  Risk of damage

97.  The Applicant claims that there is real risk of irreversible harm to the environment if the Tender Invitation were to proceed.  The purchaser of the Lot may try to speed things up and commence construction so as to create a fait accompli.  It would harm the environment and make it difficult to restore the Lot to its current state.  The Government may inhibit development of the Lot but not prevent it.  Nor can the Government get back the Lot from the purchaser.

98.  With respect, this is speculation, compared to the evidence on Mr Mok SC’s side.  Evidence (based on data of past land sales by the Government) was given as to the usual time frame from award of tender to approval of general building plans.  The process would take an estimated 16 months, covering the grant of approval for felling of trees, drainage impact assessment and site formation plans.  The time frame may be longer for sites over 2.6 hectares (and the Lot is 3.7 hectares).  In the meantime the site topography of the Lot will remain unchanged. 

99.  This sort of time frame may be sufficient for disposal of Yau Ka Po (No.2) before any environmental harm is done to the Lot.

100.  Further, prospective purchasers of the Lot have been warned in the Information Statement of the tender document about judicial review proceedings relating to the Lot; and that the Government shall not be responsible for any loss or damage sustained by the purchaser or any person attributable to any judicial review proceedings or court order in relation to the Lot.  The successful purchaser should do his own commercial risk assessment before taking steps to develop the Lot. 

101.  The Applicant contends that land surveying, soil investigation might involve the use of heavy machines on the Lot and that such work would affect the topography of the Lot.  The evidentiary basis is lacking.  In any case, Form 86 (No. 1) only refers to tree felling and not other impact on the Lot. 

102.  The Applicant further submits that the tree preservation clause only protects “trees” (defined as a plant with a trunk diameter of 95mm or more at a height of 1.3m above ground level).  However, trees are not the only plants that are worthy of protection in a Green Belt.  Any damage to any kind of vegetation in the Lot may disturb its natural habitats.  With respect, it is the Applicant’s case that the Lot is in fully wooded area.  Approval would be required for tree felling.

103.  The Applicant also submits that in the event the judicial review is decided in his favour, the purchaser of the Lot will then find itself having bought a GB site at the price of a residential site, whereas the Government will have received an unwarranted “windfall”.  It is simply not in the nature of good government to harm innocent people unnecessarily like that: Jumbo Gold Investment Ltd v Yuen Cheong Leung & Another (2000) 3 HKCFAR 52, at 61A-B, Bokhary PJ.

104.  With respect to Mr Dykes SC, Jumbo Gold involved a different scenario.  There the government had failed, for 42 years since issue of the occupation permit, to enforce a restrictive covenant in a land grant.  That was quite unlike the present circumstances where the TPB and the CEIC purportedly followed the statutory procedure before making the Tender Invitation and the Information Statement has given a warning to the purchaser.  Commercial risk can hardly be dressed up as a risk of injustice in this balance of convenience exercise.

105.  I am not satisfied that the risk of irreversible harm to the environment is a weighty consideration in this application.

D5.  Balance of Convenience

106.  In the balancing exercise, stress should be placed upon the importance of upholding the law of the land: Cheung Tak Wing, § 30, Au J, relying on the dicta of Lord Goff in Factortame, 673D-E:

“In this context, particular stress should be placed upon the importance of upholding the law of the land, in the public interest, bearing in mind the need for stability in our society, and the duty placed upon certain authorities to enforce the law in the public interest. This is of itself an important factor to be weighed in the balance when assessing the balance of convenience. So if a public authority seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity of that law, matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on its face the law, and so to justify the refusal of an interim injunction in favour of the authority, or to render it just or convenient to restrain the authority for the time being from enforcing the law.”

107.  The adequacy of damages as an alternative remedy will invariably be less relevant and where public works of great costs are being challenged, will effectively be irrelevant. The balance of convenience in public law cases must take account of the wider public interest and cannot be measured simply in terms of the financial consequences to the parties.  That does not mean that financial consequences are to be ignored entirely, simply that in public law cases they are not to be employed as the sole measure in assessing the balance of convenience.  The Harbour case, [2003] 3 HKLRD 960, Hartmann J, at §§11-12.

108.  Shortage of housing has always been a social problem in Hong Kong.  In the “Long Term Housing Strategy December 2014” published by the Transport and Housing Bureau, it is stated,

“Housing stands out as one of the most challenging social issues Hong Kong is facing today. Our housing challenge is characterized by a serious supply-demand imbalance, housing prices and rents at a level beyond the affordability of the general public and out of line with our economic fundamentals, the proliferation of subdivided units, and long queues for public rental housing (PRH). Many of our youths feel aggrieved when they fail to see a future in housing.”

109.  The Approved Plan has the force of law and the Government should uphold it.  This is particularly important to tackle the housing problem.  The tender process has started and the Government should honour it.

110.  Under the Conditions of Sale, the developer has about 6 years from award of tender of the Lot to complete the development. To the public, the injunction will cause delay in the supply of private housing by about 1,785 flats.  The applicationfor interim relief has already caused the closing date for the tender to be postponed by 2 months, to 5 February 2016.  The Government has undertaken not to award any tender before 12 February 2016.  If a replacement site has to be put up for sale, there will be another delay of 8-15 weeks for a fresh tender process.   

111.  The tender of 2 other sites covered by the Approved Plan have been put on hold, similarly delaying the supply of private housing by about 600 flats. The Government has got a site in replacement.  However, replacement sites are put up at the expense of future land sale capacity and affect the supply-led strategy.  Any delay will affect the Government’s strategy to tackle the housing problem.

112.  Further, the injunction will cause loss in public revenue.  The Lot is estimated to be worth about HK$5.2 billion.  The property price has been falling and the stock market volatile.  See “Hong Kong’s Recent Economic Situation and Near-term Outlook” issued by the Financial Secretary’s Office in November 2015.  Any economic downturn may have impact on the tender price. A small change in 1% already amounts to loss of $52,000,000 in public revenue.  Delay may cause loss of interest on proceeds of sale.  The costs for the current tender exercise will also be wasted.

113.  It cannot be said that potential negative impact on the Government was created by the Government’s own fault.  The fault is not yet established.

114.  The Applicant is plainly unable to provide any undertaking as to damages and even if he does, he is unable to honour it.  On the other hand, the alleged harm to the environment he alleges is manageable with the 16 month time frame alluded to in paragraph 98 above.

115.  On balance, an injunction will do greater harm to the Government and the public than to the Applicant. 

D6.  Delay in seeking injunction

116.  An application for an interim injunction must be made promptly. Failure to make a timely application for interlocutory injunction may be taken into account in considering whether it would be oppressive to the respondent to grant an injunction: see Hong Kong Civil Procedure (2016 ed), Vol.1, §29/1/31.

117.  It is not sufficient to show that an applicant for an interim injunction has delayed unreasonably.  It must be shown that because of that delay, it would be unreasonable to grant the remedy; that it has become practically unjust to do so.  What is important is not so much the length of the delay per se, but whether the delay has in some ways made it unjust to grant the injunction claimed.  Abbot GmbH & Co KG v Pharmareg Consulting Co Ltd [2009] 3 HKLRD 524, §94, Sakrani J.

118.  Mr Mok SC submits that the Applicant has never sought any interim relief in Yau Ka Po (No. 1) to prevent the TPB from submitting the DOZP to the CEIC for approval.  That amounted to “delay”. 

119.  I agree with Mr Dykes SC that each of TPB’s Decision and CEIC's Decision is amenable to judicial review in its own right.  The Applicant was at liberty to wait (as he did) for the “curative” decision of the CEIC under s.9 of the Ordinance.  He also has a right but no obligation to apply for an injunction in between the 2 Decisions.

120.  However, it was reasonably anticipated that the TPB’s Decision would be submitted to the CEIC for approval.  Sale of the Lot could have been foreseen by the Applicant in February 2015 when the SDev announced the Government’s 2015-16 Land Sale Program.  The Applicant had standing to apply for interim relief after TPB’s Decision was announced.

121.  The Director of Lands has demonstrated that if objections had been raised earlier, she had the ability to find a replacement site so that supply to housing and the tender process would not be disrupted. 

122.  I find that there was delay in making this application. It would be oppressive to grant the injunction given the impact on the Government and the public. But even if there was no delay, paragraphs 106-115 still hold good.

D7.  The alternative for injunction

123.  CEIC and Director of Lands have suggested giving reasonable advance notice to the Applicant prior to grant of the relevant approval for tree felling or drainage impact assessment, so that the Applicant can consider the need for any injunctive relief in future.  This, in my view, is the better alternative.  A direction that there be liberty to apply will afford protection to the Applicant.

D8.  Refusal of interim injunction

124.  The Applicant is unable to show strong prima facie case on the merits.  Even if the lower standard of showing serious issues to be tried can be met, the risk of irreversible harm to the environment weighs little in the context of this case.  The Government should uphold the law and enforce the Approved Plan to tackle the housing problem.  An injunction will do greater harm to the Government and the public than to the Applicant.  The Applicant has delayed in making the application.  Balancing all factors, refusing the injunction carries with it lower risk of injustice and least irremediable prejudice to both parties.  I therefore dismiss the application for injunction but adopt the alternative in paragraph 123.

E.  INTERIM STAY

125.  The Applicant seeks an interim stay of CEIC’s Decision, insofar as it has the effect of rezoning the Lot for residential use, pending determination of Yau Ka Po (No.2). 

126.  Under Order 53, r.3(10)(a), Rules of the High Court, if relief sought is certiorari, the grant shall operate as a stay of the proceedings to which the application relates until determination of the application or until the court otherwise orders.

127.  In the Harbour case [2003] 3 HKLRD 960, §8, Hartmann J,  citing R (on the application of H) v Ashworth Hospital Authority [2003] 1 WLR 127 at p134, said:

“The Administrative Court routinely grants a stay to prevent the implementation of a decision that has been made but not yet carried into effect, or fully carried into effect. A good example is where a planning authority grants planning permission and an objector seeks permission to apply for judicial review. It is not, I believe, controversial that, if the court grants permission, it may order a stay of the carrying into effect of the planning permission.”

128.  Applying Order 53, r.3(10)(a), I agree with Mr Mok SC that there are no “proceedings to which the application relates”.  The Approved Plans have completely superseded the DOZP. 

129.  A stay of CEIC's Decision would not revive any previous plans.  It would create a lacuna in the law as there would be no plans to govern the relevant zone. 

130.  There is no authority for partial stay of CEIC’s Decision.  The Stage 1 review yielded 13 sites and Stage 2 yielded 57.  A stay would affect the other 56 pieces of land. The prejudice to the public is impossible to measure.

131.  The present case is distinguishable from Baynham Paul & anor v The Municipal Services Appeals Board, HCAL 38/2010, 28 August 2010, Reyes J.   There, the stay involved a license affecting one person and has no knock-on effect on other license holders. 

132.  The Applicant’s limited interest in Lo Fai Road and his questionable standing hardly justifies a stay of such wide implication.  Mr Dykes SC also acknowledges that there are more problems in applying for a stay than for an injunction.

133.  I dismiss the application for a stay.

F.  THE AMENDMENT APPLICATION

134.  Mr Dykes SC seeks to include a prayer for “a declaration, with precise terms to be formulated, reflecting the findings of the Court in respect of the unlawfulness of the CEIC’s Decision”.  This is opposed by Mr Mok SC.

135.  In my view, this prayer lacks substance.  The court may make findings on CEIC’s Decision or TPB’s Decision but I cannot see what declarations need to be made if it were to quash CEIC's Decision.  The application to amend is more akin to an attempt to salvage Yau Ka Po (No. 1).   I dismiss the amendment application.

G.  CONCLUSION AND DIRECTIONS

136.  I order as follows:

(1) There be leave to apply for judicial review on Ground 2;

(2) The application for an injunction or a stay is dismissed. CEIC will give notice to the Applicant in accordance with paragraph 123 above. There be liberty to apply;

(3) The application for leave to amend Form 86 is dismissed;

(4) I make an order nisi that 40% of the costs be in the cause of the judicial review; and 60% of the costs be to the CEIC and Director of Lands to be summarily assessed on 3 February 2016 on the papers without attendance; there shall be certificates for 2 counsel on both sides. Department of Justice should file and serve an updated costs statement.

137.  I give directions as follows for hearing of Yau Ka Po (No.2):

(5) Leave to the Respondent and Interested Party to file and serve an affirmation in opposition within 56 days from today;

(6) Leave to the Applicant to file and serve his affirmation in reply within 21 days thereafter;

(7) No further affirmation shall be filed without leave of the court;

(8) The hearing is adjourned to a date to be heard on a date before 31 August 2016, as far as possible, in consultation with the diaries of Mr Dykes SC and Mr Mok SC.

(9) 7 days before listing, solicitors shall provide a joint letter to me setting out the estimated time for submission by each party.

138.  It appears to be an abuse of process to continue with the judicial review in Yau Ka Po (No.1): Kwan Kong.  The fact that leave was granted on Ground 1 does not change the position.

139.  As a matter of case management, the Applicant shall indicate within 7 days whether or not he intends to proceed with Yau Ka Po (No. 1), failing which there shall be a directions hearing on 24 February 2016 at 9:30 am for the Applicant to show cause why that case should proceed.  However, it must be borne in mind that if Yau Ka Po (No. 1) do proceed, it would be heard with Yau Ka Po (No.2) and the timetable set out in paragraph 137 shall apply.

140.  I am most grateful to counsel for their assistance.