TUNG CHUN CO LTD v. TOWN PLANNING BOARD

CACV 48/2019
CACV 49/2019
CACV 50/2019
(heard together)
[2021] HKCA 758

CACV 48/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 48 OF 2019

(ON APPEAL FROM HCAL NO 9 OF 2013)

_______________

_______________

AND

CACV 49/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 49 OF 2019

(ON APPEAL FROM HCAL NO 91 OF 2014)

_______________

_______________

AND

CACV 50/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 50 OF 2019

(ON APPEAL FROM HCAL NO 288 OF 2018)

_______________

_______________

(heard together)

_______________

J U D G M E N T

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Hon Au JA (giving judgment of the Court):

A.      INTRODUCTION

1.  This is the applicant’s appeal against the judgment of Chow J (“the Judge”) dated 28 June 2018 (“the Judgment”) in which the Judge allowed in part its applications for judicial review against four decisions of the Town Planning Board (“the TPB”) (“the Decisions”).

2.  The impugned Decisions all concern a building height restriction (“BHR”) of 120mPD which was imposed on Kwai Chung Town Lot No 432 (“the Site”) by the Kwai Chung Outline Zoning Plan No S/KC/26 (“OZP 26”) gazetted on 20 April 2012.  They are, in chronological order:

(1)   The TPB’s rejection of the applicant’s request dated 20 June 2012 seeking inter alia, to remove the 120mPD BHR or increase the maximum building height of the Site to 169mPD (“the Representation”) by way of its letter dated 2 November 2012 (“the Decision Letter”) (“the Rejection”) (HCAL 9/2013);

(2)   The TPB’s decisions on 9 May 2014 and 13 June 2014 to gazette Kwai Chung Outline Zoning Plan No S/KC/27 (“OZP 27”) and Kwai Chung Outline Zoning Plan No S/KC/28 (“OZP 28”), which proposed unrelated amendments to OZP 26 (HCAL 91/2014); and

(3)   The TPB’s decision on 19 January 2018 to gazette Kwai Chung Outline Zoning Plan No S/KC/29 (“OZP 29”), which proposed unrelated amendments to OZP 28 (HCAL 288/2018).

3.  The applicant relied upon nine grounds of judicial review before the Judge.  After a three‑day hearing, the Judge upheld the applicant’s complaints that the TPB had misdirected itself in law (Ground 1), took into account an irrelevant consideration in deciding to reject the Representation (Ground 6), and acted in a procedurally unfair manner in that not all members of the TPB who participated in the decision-making process were present during the representation hearing or otherwise apprised of the evidence (Ground 7).  He rejected the applicants’ challenges on legitimate expectation (Ground 2), irrationality and procedural impropriety in other aspects of the Rejection (Grounds 3 ‑ 5 and 8) and constitutionality (Ground 9).  In relation to HCAL 9/2013, he quashed the Rejection and ordered that the Representation be remitted to the TPB for fresh consideration in accordance with the Judgment. In relation to HCAL 91/2014 and HCAL 288/2018, following submissions from the parties as to the appropriate form of order, he declined to quash OZPs 27, 28 and 29, and instead made an order that the TPB shall not submit OZPs 26, 27, 28 and 29 to the Chief Executive in Council (“the CEIC”) for approval until after reconsideration of the Representation.

4.  As for costs, the Judge made an order that the TPB pay 70% of the applicant’s costs in HCAL 9/2013, and that there be no order as to costs between the parties in relation to HCAL 91/2014 and HCAL 288/2018.

5.  The applicant now appeals against the Judge’s conclusions in relation to Grounds 2 (legitimate expectations), 3 (irrationality – out of context), 5 (irrationality – visual assessment) and 9 (constitutionality) in order to provide guidance to the TPB when it reconsiders the Representations.  It also appeals against the Judge’s refusal to quash OZPs 27, 28 and 29, and his costs orders in relation to HCAL 91/2014 and HCAL 288/2014.

6.  The applicant is represented in the appeal by Ms Audrey Eu SC leading Mr Jonathan Lee.  The TPB is represented by Mr Ambrose Ho SC leading Mr Mike Lui.

B.      BACKGROUND

7.  The background facts have been comprehensively summarized by the Judge at paragraphs 5 - 40 of the Judgment.  It suffices to highlight the following for the purposes of these appeals.

8.  The applicant was granted the Site on 27 October 1990 (“the New Grant”) pursuant to a Land Exchange Agreement entered with the Government on 25 May 1990 (“the Land Exchange Agreement”).  The negotiations between the applicant and the Government proceeded on the basis that the Site would be subject to a maximum plot ratio (“PR”) of 15.

9.  On 19 October 1990, after the parties entered into the Land Exchange Agreement but before the New Grant was made, the TPB gazetted Kwai Chung Outline Zoning Plan No S/KC/7 (“OZP 7”), which imposed a maximum PR of 9.5 on the Site.  Following an objection lodged by the applicant under section 6(1) of the Town Planning Ordinance (Cap 131) (“the TPO”), the TPB agreed to raise the maximum PR to 15 and amend the zoning of the Site from “Industrial” to “Comprehensive Development Area” (“CDA”).  These amendments were gazetted by the TPB as Kwai Chung Outline Zoning Plan No S/KC/8 (“OZP 8”) on 3 July 1992.

10.  As the judge explained at [15] of his judgment, the effect of the Site being zoned as a CDA is that pursuant to section 4A(1) of the TPO, the TPB may prohibit the undertaking of any building works at the Site except with its permission.  If an applicant wishes to obtain such permission, it may be required by the TPB under section 4A(2) to prepare a master lay-out plan including information respecting building dimensions, floor area for each use, building development programmes and other matters the TPB may think appropriate (“MLP”), and submit it to the TPB for approval.  Under section 4A(1)(b), the TPB’s permission to undertake building works may be granted by reference to a MLP approved by the TPB under section 4A(2).

11.  On 4 June 1993, the TPB approved a MLP for a proposed factory/godown development (“Application 127”).  The proposed development had a building height of 169.75mPD and a PR of 15.  Application 127 was superseded by a further MLP approved by the TPB on 26 January 1996 which was for essentially the same development with minor modifications for fire safety matters (“Application 197”).

12.  On 19 December 1997, the Building Authority (“the BA”) approved general buildings plans (“GBPs”) filed by the applicant for the proposed development under Application 197.

13.  On 17 March 2000, the TPB approved another MLP for the proposed hotel/service department development with building heights of 95.5mPD for the hotel and 169mPD for the service apartment respectively for a total PR of 6.36 (“Application 241”).  The approval expressly provided that the permission granted shall cease to have effect on 17 March 2003 unless the development is commenced or the permission is renewed prior to that date.

14.  On 20 February 2003, the BA approved the GBPs for the proposed development under Application 241.  With such approval, the development was deemed to have been commenced under the TPB’s Practice Guide No 35B.

15.  On 26 September 2003, the TPB gazetted Kwai Chung Outline Zoning Plan No S/KC/20 (“OZP 20”) which imposed a PR restriction of 6.36 on the Site.  The applicant did not object to such restriction.

16.  On 19 January 2005, the TPB approved Application 298, which made minor adjustments to Application 241.  The latest approved GBPs for Application 298 were approved by the BA on 31 January 2007.  This is referred to as the “Approved Scheme” in the Judgment.

17.  On 30 March 2012, the CEIC referred Kwai Chung Outline Zoning Plan No S/KC/25 (“OZP 25”) to the TPB for amendment under Section 12(1)(b)(ii) of the TPO.  In response to this reference, the Metro Planning Committee (“the MPC”) of the TPB endorsed various amendments to OZP 25 proposed by the Planning Department, including, amongst others, the imposition of a 120mPD BHR and a PR to 6.36 on the Site.

18.  These amendments were gazetted by the TPB on 20 April 2012 in OZP 26.  The applicant made the Representation on 20 June 2012, which the TPB rejected in its Decision Letter on 2 November 2012 following a meeting on 12 October 2012.  The Decision Letter stated as follows:

“After giving consideration to the representations and related comments, the Town Planning Board (TPB) decided on 12.10.2012 not to propose amendments to the above Plan to meet your representation for the following reasons:

(a) the purpose of imposing building height restrictions (BHRs) in the Area is to provide better planning control on the building height (BH) upon development/redevelopment and to meet public aspirations for greater certainty and transparency in the statutory planning system, to prevent excessively tall or out-of-context buildings, and to instigate control on the overall BH profile of the Area. In formulating the BHRs for the Area, all relevant factors including the Urban Design Guidelines, the Urban Design Appraisal for the Area (UDA), existing topography, stepped BH concept, local characteristics, existing BH profile, site formation level and site constraints, the zoned land uses of the site concerned, compatibility with the surrounding developments, development potential, the wind performance of the existing condition and the recommendations of the Air Ventilation Assessment by Expert Evaluation, have been taken into consideration;

(b) the BHR is formulated on the basis of reasonable assumptions with allowance for design flexibility to accommodate development intensity permissible under the Kwai Chung Outline Zoning Plan (OZP). The proposed BHR would not affect the development intensity of the representation site permitted under the OZP and the incentive of redevelopment will not be jeopardised. Better designed and sustainable buildings are not guaranteed with more relaxed BH control;

(c) for the public good and in the interest of the community, the imposition of BHR of 120mPD for the site is to avoid excessively tall and out-of-context buildings which adversely affected the overall valley-like and foothill setting of the Area. It helps to maintain the integrity of the stepped height concept and is more appropriate for the site to be congruous with the overall BH profile exemplifying the natural valley-like topography. Deletion of BHR or relaxation of BHR to not less than 169mPD at the representation site would jeopardise the integrity of the stepped BH concept and result in a development out of context with the surrounding area.

(d) development proposals which have already obtained building plan approval would not be affected by an amendment to the zoning restriction. Subsequent amendments to the approved building plans would not need to conform to an extant statutory plan unless they involved a change of use, an increase in development intensity or substantial amendments. You can proceed with the building development in accordance with the approved building plans.

(e) the stipulation of BHR of 120mPD at the site on the OZP is to provide a clear planning intention in respect of the permissible BH at an early stage of the planning process, allowing the restriction to be more transparent and open to public scrutiny. The 120mPD BHR still allows a comprehensive development to be pursued at the site without compromising its comprehensiveness;

(f) the adjacent ‘Other Specified Uses’ annotated ‘Business’ (‘OU(B)’) and ‘Commercial (2)’ (‘C(2)’) zones are different from the subject ‘Comprehensive Development Area’ zone in terms of land use and development intensity. Hence, the BHRs of the ‘OU(B)’ and ‘C(2)’ zones should not be taken as a reference;

(g) the objective of Planning Department’s UDA is to assess the visual impacts of the BHRs and to examine whether they are acceptable from urban design and visual perspectives, as well as to visualise the future visual context upon imposition of the BHRs. The UDA is not supposed to, and not practicable to, exhaust all possible BHR options;

(h) the Visual Impact Assessment submitted by you have not demonstrated that the architectural design and the claimed visual effect cannot be achieved with the BHR stipulated on the OZP. As shown in the photomontages, the claimed visual benefit is not significant to outweigh the impact of the increased building height on the local character and visual openness. You fail to demonstrate that the proposed relaxation of BHR to 169mPD would present an improved stepped building height concept as compared with the BHR of 120mPD on the OZP;

(i) building design is determined by the interplay of various factors such as plot ratio, site coverage, BH, design and disposition of building, etc. BHRs per se would not result in bulkier buildings and impose undue constraint on the design flexibility of future redevelopments. The BHRs formulated based on reasonable assumptions allowed flexibility in designing the buildings and do not preclude the incorporation of green features and innovative architectural design to promote a good building design. Should there be any planning and design merits for a development scheme to exceed the BHR, it would be more appropriate to pursue the proposal by way of application for minor relaxation of the BHR; and

(j) whether a development would be pursued would be a commercial decision taking into account a host of factors, instead of the BHR alone. Even if the BHR to a certain extent reduces the number of possible development options, this does not necessarily amount to a material impact on the redevelopment incentive. The need to cater for greater design flexibility and redevelopment incentives have to be balanced against the community aspirations for a better living environment with more compatible building developments.”

19.  As described above, the 120mPD BHR in respect of the Site was maintained in OZPs 27, 28 and 29 which the TPB gazetted on 9 May 2014, 13 June 2014, and 22 December 2017 respectively.

20.  The applicant commenced the abovementioned proceedings to challenge the Decisions on 11 January 2013, 8 August 2014 and 23 February 2018 respectively.  It was granted leave to apply for judicial review in each of the three proceedings and obtained interim stays of the submission of OZPs 26, 27, 28 and 29 to the CEIC.

C.      THE JUDGMENT

21.  The three applications were heard together by the Judge on 6 ‑ 8 March 2018.  We need only concern ourselves with four of the nine grounds advanced before the Judge, as the Judge found in favour of the applicant in respect of Grounds 1[1], 6[2], 7[3] (which the TPB does not appeal), and the applicant is no longer pursuing Grounds 4 and 8.

22.  In gist, the applicant’s case before the Judge in respect of each ground was as follows:

(1)   Ground 2(a) (Substantive legitimate expectations): by reason of the circumstances leading to and including the land exchange agreement and the TPB’s decision of 3 July 1992 to remove the PR restriction on the Site, the applicant had a legitimate expectation that there would be no building height restriction on the Site.  Furthermore, by reason of the TPB’s approval of Applications 127, 197, 241 and 298, the applicant had a legitimate expectation that:

(a)   the BHR at the Site would be no less than 169mPD;

(b)   it would be able to proceed with the proposed development under Application 298; and

(c)   the TPB would not take steps to affect, jeopardize or frustrate this development.

(2)   Ground 2(b) (Procedural legitimate expectations): by reason of the rezoning of the Site as a CDA, the applicant had a legitimate expectation that the TPB would not circumvent the MLP process and directly impose a building height restriction by means of amending an existing OZP.

(3)   Ground 3 (Irrationality – out of context): it was irrational for the TPB to take the view (in paragraph (c) of the Decision Letter) that a building with a height of 169mPD would be “out of context” with other buildings in the neighbourhood, because, amongst others,

(a)   the TPB had arbitrarily excluded from consideration two nearby buildings called “Apex” (with a height of 188mPD) and “Yi Fung Court” (with a height of 223.7mPD); and

(b)   wrongly compared the absolute allowable height at the Site (107m) with the absolute height of Yi Fung Court (114m) instead of comparing their heights above the principal datum (mPD).

(4)   Ground 5 (Irrationality – visual assessment): it was irrational for the TPB to rely on an Urban Design Appraisal (“UDA”) report produced by the Planning Department in reaching its decision, because, amongst others, it selected Shek Yam Lei Muk Road Park (“the Park”) as a local vantage point for conducting a visual assessment of the Site without regard to the principles stated in paragraph 9.1.6 of the Planning Department’s Study on Urban Design Guidelines for Hong Kong completed in 2003 (“the UDG Study”).

(5)   Ground 9 (Basic Law): the imposition of the 120mPD BHR infringed the applicant’s property rights under Articles 6 and 105 of the Basic Law (“BL 6” and “BL 105”) because it failed the last two steps of proportionality test laid down by Court of Final Appeal in decision in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 (“Hysan CFA”).

23.  In respect of Ground 2, the Judge concluded that the applicant failed to prove that the existence of the various alleged legitimate expectations for the following reasons:

(1)   First, the applicant failed to identify a clear or unambiguous representation made by the Government or the TPB that there would not be a BHR in respect of the Site.  The discussions between the applicant and the Government at the time of the Land Exchange Agreement were only concerned with the PR of the Site and not any BHR.  See [74] of the Judgment.

(2)   Second, the TPB’s approval of Applications 127, 197, 241 and 298 was an approval of a specific development scheme incorporating a whole host of parameters including the 120mPD BHR.  As a matter of principle, it is wrong for the applicant to isolate one particular parameter and contend that it has a stand-alone legitimate expectation in respect thereof.  See [75] of the Judgment.

(3)   Third, any legitimate expectation arising from the TPB’s approval of the specific development project must have been subject to two limitations, namely, (a) the TPB’s lawful exercise of its powers under section 3(1) of the TPO and (b) the TPB’s inability to control the BA’s exercise of its statutory discretion under the Buildings Ordinance (Cap 123) (“the BO”).  See [76] of the Judgment.

(4)   As for the applicant’s alleged procedural legitimate expectation, the Judge reasoned that the applicant had conflated the powers of the TPB under sections 3 and 4A of the TPO.  The exercise of the power under section 3 of the TPO to prepare a draft plan generally relates to a large area or district covering many sites for the purpose of promoting the health, safety, convenience and general welfare of the community as a whole.  On the other hand, section 4A(1) gives the TPB the power to approve specific applications for building works in a site or sites within a CDA.  Although these two powers might have same effect or consequence for a particular site, they are separate and may be exercised in parallel at any particular time.  For this reason, the TPB’s designation of the Site as a CDA under section 4A did not prevent it from exercising its powers under section 3.  See [77] - [79] of the Judgment.

24.  As for Ground 3, the Judge held, following Hysan Development Co Ltd v Town Planning Board [2012] 5 HKC 432(“Hysan CFI”) and Town Planning Board v Oriental Generation Ltd [2012] 3 HKC 369 (“Oriental Generation CFI”) that questions of whether a proposed building is in harmony or “out ofcontext” with other buildings in the neighbourhood are matters involving broad planning considerations and aesthetic judgment.  The TPB was far better placed to assess and balance such considerations and exercise its judgment.  Accordingly, the court will grant a wide margin of appreciation to the TPB in its decision and should not interfere on basis of Wednesbury unreasonableness save in a compelling case.  On the facts, the Judge found that the TPB had sufficient basis in making such broad planning judgment in excluding Apex and Yi Fung Court from consideration of the neighbourhood and was thus not irrational: [86] of the Judgment.

25.  As for Ground 5, the Judge held that there is no inflexible rule that a viewing point must satisfy the three criteria mentioned in paragraph 9.1.6 of the UDG Study before it may be adopted for the purpose of a visual assessment.  On the facts of the case, the Park was a popular park in the Eastern Sub-area from which the business/industrial area in which the Site is located is visible.  It was not unreasonable in the public law sense for the TPB to adopt the Park as a local viewing point.  See [99] ‑ [101] of the Judgment.

26.  As for Ground 9, in relation to the 3^rd step of the proportionality analysis, the Judge held, following Hysan CFA,that the standard of review in respect of the TPB’s imposition of the 120mPD BHR on the Site was one of “manifestly without reasonable foundation”.  This threshold was not met on the facts, as the BHR helped maintain the integrity of the stepped-height concept and the overall building height profile of the area which exemplified its natural valley-like setting.  In relation to the 4^th step of the analysis, the Judge held that a reasonable balance between the applicant’s rights and the societal interest had been struck in that case, emphasising the imposition of the 120mPD BHR would not diminish the overall development intensity of the Site because the applicant could still pursue developments up to a maximum PR of 6.36, and the BHR was of considerable importance from the overall urban planning perspective.

D.     THE APPEAL

27.  We shall now deal with each ground in turn.

D1.    Ground 2: Substantive and procedural legitimate expectations

28.  Ms Eu SC submitted that the Judge erred in finding against the existence of any legitimate expectation.  In her submission, “the events prior to 1990 and up to 2009” squarely gave rise to an express or implied representation that there would be no BHR over the Site (or at least no BHR of less than 169mPD) and that the TPB would not frustrate the Approved Scheme.  She further contended that the Judge was also wrong to find that any legitimate expectation was subject to (a) the TPB’s exercise of its powers under section 3(1) of the TPO and (b) the BA’s exercise of its independent statutory discretion, since (a) the TPB’s powers should have been exercised with regard to the applicant’s legitimate expectations and (b) the applicant never contended that the TPB could control the BA’s exercise of discretion.  For these reasons, the Judge should have found that the TPB had failed to give effect to the applicant’s legitimate expectations and that it had no adequate justification for so doing.

29.  As for the applicant’s procedural legitimate expectations, Ms Eu SC submitted that the Notes to the OZPs and the TPB’s approval of the Approved Scheme gave rise to an express or implied representation that the applicant would have an opportunity to be heard before any BHR or a BHR lower than that in the Approved Scheme is imposed on the Site.  The Judge was wrong to point to section 3(1) of the TPO since, as above, any exercise of this power had to take into account the applicant’s legitimate expectations.

30.  We are unable to accept Ms Eu SC’s submissions in respect of the applicant’s alleged substantive legitimate expectations.

31.  As far as the alleged legitimate expectation with respect to the BHR of the Site is concerned, we agree with Mr Ho SC that the applicant’s case in this respect is overly vague and ill-defined.  It is not enough for one to say, as the applicant does, that “the events prior to 1990 and up to 2009” constituted an “express or implied” representation.  It is incumbent on applicants for judicial review to clearly set out their grounds of challenge in order for the respondent to know the case they have to meet.

32.  The applicant is unable to point to any specific statement in the voluminous bundles which were placed before this Court in which the TPB specifically assured the applicant that it would not impose a BHR (or a BHR lower than 169mPD) over the Site.  In these circumstances, it is plain that there was no express representation of the nature contended for by the applicant.

33.  Nor, in our judgment, was there any implied representation either:

(1)   Insofar as the applicant relies on (a) the discussions on the maximum PR of the Site between the applicant and the Government in the period leading up to the Land Exchange Agreement and (b) the TPB’s decision to raise the maximum PR of the Site from 9.5 to 15 in OZP 8 as the relevant conduct giving rise to an implied representation, the Judge was plainly right to note that these matters concerned only the maximum PR of the Site and not any BHR to be imposed.

(2)   The TPB’s approvals of Applications 127, 197, 241 and 298 are similarly insufficient.  As the Judge observed, the TPB conducts a holistic assessment of a proposed development scheme in deciding whether to grant approval to that scheme under section 4A(1)(b) of the TPO.  The applicant’s contention that it is entitled to a stand-alone legitimate expectation in respect of any specific parameter in an approved development scheme is blinkered to the extreme.  The suggestion that a landowner is entitled to cherry-pick those aspects of previously approved schemes which are most favourable to it and incorporate them in any subsequent development scheme in respect of the same land simply cannot be right.

34.  Given the difficulties identified above, Ms Eu SC indicated at the hearing that she no longer contended for an independent legitimate expectation as to the BHR in respect of the Site, and accepted that her case stood or fell on the alleged legitimate expectation that the TPB would not frustrate the Approved Scheme.  To this we shall now turn.

35.  As a preliminary point, this ground of challenge is nowhere to be found in the applicant’s Form 86.  However, given that the Judge went on to deal with the submission on its merits, we shall briefly set out our reasoning.

36.  Ms Eu SC’s submission essentially boils down to the proposition that when the TPB approves a proposed development scheme, it represents (and an applicant is thereby entitled to expect) that the TPB would not impose any further planning restrictions over the Site, for if the TPB were to do otherwise, there is a risk that the BA might refuse to give its consent to the commencement of building works under section 16(3)(d) of the BO on the basis that the plans no longer comply with the extant OZP over the site, thereby jeopardizing or “frustrating” the approved scheme.

37.  With respect, we do not think any representation to this effect can be inferred from the TPB’s approval of the Approved Scheme.  After all, the TPB’s own policies contemplated that the TPB might make amendments to its statutory plans in a manner which renders existing development proposals non-compliant with the latest zoning restrictions.  As stated in the Practice Note for Professional Persons No 3/2001 dated 13 December 2001 issued by the Director of Planning (“Practice Note No 3”):

“To keep abreast with changing circumstances, the planning intention of an area may change over time. This may necessitate amendments to the statutory plan covering the area. Some development proposals which have obtained building plan approval prior to the stipulation of a new zoning restriction (i.e. a new land use zone or a new development restriction) may thus become non-conforming when the restriction comes into effect.

Development proposals which have already obtained building plan approval will not be affected by an amendment to the zoning restriction.^[4] Any subsequent amendments to the approved building plans will need to conform to an extant statutory plan. […]

For building plans involving minor amendments to the approved building plans, […], no recommendation will be made to the Building Authority (BA) with respect to his exercise of the discretion under section 16(1)(d) or (da) of the BO. This Department will confine our comments to whether there are any adverse planning implications as a result of the amendments. However, for building plans involving a change of use or an increase in development intensity as compared with the approved building plans, these plans will be assessed in terms of the extant statutory plan. A recommendation will be made to the BA to reject the plans if the plans contravene the provisions of the extant statutory plan. The final decision rests with the BA.”

38.  We would add that insofar as the applicant expected that the TPB would not make any amendments to the statutory plan in respect of the Site, such an expectation would not have been legitimate and reasonable in the sense explained by the Court of Final Appeal in Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1.  The ramifications of the applicant’s contention, if it were to be accepted, are stark.  As Ms Eu SC submitted at the hearing, there is no time limit within which an applicant must proceed with its approved development scheme failing which the TPB’s approval will expire.  On the applicant’s case, therefore, the TPB’s approval of a scheme amounts to an agreement to bind itself to a particular set of planning restrictions in perpetuity.  This is entirely unthinkable when one bears in mind that urban planning necessarily involves the constant adaptation of existing plans to meet changing societal needs and conditions.  It is also inconsistent with the statutory policy of the TPO, which envisages the continual preparation and amendment of plans “with a view to the promotion of the health, safety, convenience and general welfare of the community”.

39.  In any event, we do not think the applicant is right when it says that the TPB’s decision to impose a 120mPD BHR over the Site frustrated the Approved Scheme.  The TPB has not raised any objection to the applicant proceeding with Approved Scheme by reason of its non‑compliance with the 120mPD BHR nor does it have any power to prevent the applicant from doing so.  Rather, as the Judge explained at [45] of the Judgment, the reason why the applicant might not necessarily be able to proceed with the Approved Scheme on the basis of the previously approved building plans is because the BA retains a discretion under section 16(3)(d) of the BO to refuse consent to the commencement of building works in respect of the Site.  However, as Ms Eu SC accepted in the hearing, the applicant has not in fact submitted its building plans to the BA for reapproval.  Nor is there any evidence suggesting that the BA would refuse consent to the commencement of building works because of the non‑compliance with the 120mPD BHR, as opposed to, for example, non‑compliance with provisions of the BO and allied regulations (eg, the Barrier Free Code 2008) revised since the last approval, a possibility alluded to in paragraph 5.12 of TPB Paper No 9206 (“the TPBPaper”)[5].

40.  We would add that, if and when, the applicant submits its building plans to the BA for reapproval, the BA would be obliged to take into account (a) the fact that the building plans were prepared on the basis of a development scheme approved by the TPB under section 4A of the TPO, and (b) the TPB has no objection to the applicant proceeding with the same notwithstanding its imposition of the 120mPD BHR, in the exercise of its discretion under section 16(3)(d) of the BO.  Depending on the outcome and the BA’s reasons for its decision, it would then be a matter for the applicant to see if it has ground to bring fresh judicial review proceedings to challenge the BA’s decision.  But it would be wrong for this Court to pre‑empt the BA when the applicant has yet to take steps to recommence the redevelopment according to the Approval Scheme.

41.  We therefore reject the applicant’s contention that the TPB had failed to honour the applicant’s substantive legitimate expectation.

42.  Finally, we also consider that the Judge was plainly right in rejecting the existence of a procedural legitimate expectation.  In our view, the wording of sections 3 and 4A of the TPO provides a complete answer to the applicant’s contention.

43.  Section 3 of the TPO provides as follows:

“3. Functions of the Board

(1) With a view to the promotion of the health, safety, convenience and general welfare of the community, the Board shall undertake the systematic preparation of

(a) draft plans for the lay-out of such areas of Hong Kong as the Chief Executive may direct, as well as for the types of building suitable for erection therein;

(b) draft development permission area plans of such areas of Hong Kong as the Chief Executive may direct.

(2)  In the course of preparation of the plans referred to in subsection (1), the Board shall make such inquiries and arrangements (including, if it thinks fit, the taking of any census of the occupants of any buildings or of the users of any thoroughfares or spaces) as it may consider necessary for the preparation of such drafts.”

44.  Section 4A(1) then provides that “without restricting what the [TPB] may, under sections 3 and 4, show or make provision for in a plan” the TPB may, by a note on the plan, in respect of a comprehensive development area, prohibit the undertaking of any building works except as specified in the note or with the permission of the TPB.

45.  As the Judge noted at [78] of his Judgment, sections 3 and 4A serve distinct purposes: section 3 imposes a positive duty on the TPB to undertake the “systematic” preparation of draft plans on a district level, whereas section 4A is concerned with the TPB’s scrutiny of specific development applications for individual sites.  The purpose of section 3 in ensuring the holistic assessment of planning considerations on a macroscopic level would be defeated if CDAs were excluded from consideration under that section and if zoning restrictions could only be imposed on such sites via the MLP process.

46.  More importantly, the TPB’s powers under section 4A are expressly subject to the TPB’s duty in section 3.  In these circumstances, we do not see how the TPB’s designation of the Site as a CDA gives rise to a legitimate expectation that the TPB shall not impose any zoning restrictions on the Site in the exercise of its powers under section 3.

47.  Ms Eu SC placed heavy reliance on a statement in the Notes to OZP 26 that “the heights of all buildings to be erected on [a site zoned as a CDA]” shall be approved by the TPB via the MLP process.  With respect, Ms Eu SC is reading the Notes out of context.  The relevant passage of the Notes is as follows:[6]

“(1) Pursuant to Section 4A(2) of the Town Planning Ordinance, and except as otherwise provided that it is not required by the Town Planning Board, an applicant for permission for development on land designated ‘Comprehensive Development Area’ shall prepare a Master Layout Plan for the approval of the Town Planning Board and include therein the following information:

(a)  the area of proposed land uses, the nature, position, dimensions, and heights of all buildings to be erected in the area;”

48.  All the Notes say is that the applicant must go through the MLP process when seeking approval for the dimensions of the buildings which it proposes to erect.  They do not purport to restrict the TPB’s powers to impose BHRs via other means.  It seems to us that the Notes to OZP 26 simply reflect what is stated in section 4A(1) itself.

49.  For these reasons, we dismiss the applicant’s appeal in relation to Ground 2.

D2.    Ground 3: Irrationality in finding 169mPD BHR out of context with surrounding area

50.  Ms Eu SC’s submissions under this heading were fourfold:

(1)   First, the TPB was not entitled to take into account the “growing general public concern” for out of context buildings as there was no evidence of any concern specific to the Site.

(2)   Second, the TPB arbitrarily disregarded Apex and Yi Fung Court in assessing whether a 169mPD BHR would be out of context.  The explanations given, namely that Apex sits on a site zoned as “Commercial” and that Yi Fung Court was 900m away at higher elevations, do not hold up to scrutiny.

(3)   Third, the TPB erred in comparing the absolute building height of Yi Fung Court with the maximum absolute building height at the Site, as BHRs are expressed in terms of mPD and not absolute building heights.

(4)   Fourth, the TPB acted irrationally in considering that a building of 169mPD would be out of context given its acknowledgement in the Decision Letter that the Approved Scheme (which involved a building of 169mPD) would not be affected.

51.  In her oral submissions, Ms Eu SC appeared also to rely on these arguments to support her complaint in Ground 2 that the TPB abused its power in failing to honour the applicant’s substantive legitimate expectations.  Given the reasons stated above in rejecting the applicant’s case on substantive legitimate expectation, these complaints do not add anything to Ground 2.

52.  Insofar as Ground 3 is relied on as a separate ground of challenge, we do not think there is any merit in this ground either.

53.  First, the applicant never suggested in its Form 86 that the “growing general public concern for out of context buildings”was an irrelevant consideration, nor was this point raised before the Judge.  We do not think that the applicant should be permitted to raise this point for the first time before this Court.  In any event, we agree with Mr Ho SC that the suggestion that the TPB is only entitled to take into account concerns specific to particular sites in deciding whether to impose planning restrictions on those sites is plainly absurd.  As Reyes J stated in Hysan CFI [55], the town planning exercise “involves looking at a district in a broad-brush way and determining what features or restrictions should be imposed in which areas (including specific sites) for the betterment of the district as a whole” (emphasis added).

54.  Second, we do not think that it was irrational for the TPB to exclude Apex and Yi Fung Court from consideration.  As the Judge correctly observed, the TPB must be accorded a wide margin of discretion in its exercise of planning judgment, and the Court should only interfere on grounds of Wednesbury unreasonableness in a compelling case.  In our view, Ms Eu SC’s criticisms of the TPB’s reasoning simply do not come close to meeting that high threshold:

(1)   We do not agree with Ms Eu SC’s submission that it was arbitrary for the TPB to disregard Apex on the basis that it stood on land zoned for a different use (“C(2)”).  It is self‑evident that the design of a building, and consequently its height, will depend on the purpose for which it is built.  From this it follows that the intended land use of a site must be relevant to the question of what BHR ought to be imposed on that site.  If it were otherwise, there would be a risk of the BHR frustrating the TPB’s original intention in zoning that site to be used for that particular purpose.  This cannot possibly be in the public interest.

(2)   We note, of course, that commercial buildings can be proposed within a CDA.  However, we do not think this means the BHR of a CDA need necessarily be the same as that of land zoned as “C(2)”.  As the name suggests, the scope of permissible uses for land zoned as a CDA is broader than for land zoned as “C(2)”.  The planning intention of these respective zones is also different.  As the Notes to OZP 26[7] demonstrate, land zoned as “Commercial” is intended “primarily for commercial developments, which may include uses such as office, shop, services, place of entertainment and eating place, functioning mainly as commercial and shopping centre(s).” On the other hand, land zoned as “CDA” is intended “for comprehensive development/redevelopment of the area for residential and/or commercial uses with the provision of open space and supporting facilities.” In light of these matters, we see no reason why the TPB may not impose a BHR on a CDA different from that imposed on an equivalent site zoned for commercial use only.

(3)   In any event, it is clear that the TPB did not distinguish Apex on the basis of its intended land use alone, but rather following a holistic assessment of the two different sites.  As the TPB noted at paragraph 5.3(c) of the TPB Paper:[8]

“…the imposition of…190mPD on “C(2)” zone of The Apex has taken into account a number of factors, including its planning intention for high-density industrial/business developments, its permitted development density stipulated in the OZP, the predominant height of existing buildings etc. … The C(2) zone of The Apex is to reflect an existing hotel/service apartment development with a GFA of about 74,340m² on a 0.78ha site (equivalent to a PR of about 9.5) which was completed in 2007 under an approved planning application.  The BHR of… ‘C(2)’ zones are of different land use and development intensity from the subject ‘CDA’ zone (PR 9.5 vs PR 6.36), and should not be taken as references.”

As this passage makes clear, the zoning of Apex was simply one of the reasons relied on by the TPB in distinguishing it from the Site, alongside (a) its different development density, and (b) the fact that it was a completed hotel/service development.

(4)   As for Yi Fung Court, the TPB was plainly entitled to distinguish it from the Site on the basis that it was “900m away” at “higher elevations”.  The TPB clearly explained why the geography of the area had to be considered in determining the appropriate BHR to be imposed. It had this to say in paragraph 3.2 of the TPB Paper:[9]

“3.2.2 The mountainous backdrop of the Area does not only provide visual interest to the cityscape, but are also valuable visual relief to the densely populated urban area. Besides, the low-rise developments in the coastal area provide visual corridor and breezeways to the area. Therefore, the BH control in the Area serves to safeguard the ridgeline from further urban intrusion and to ensure the ventilation in the hinterland. …

3.2.6    … A stepped height concept is generally adopted to exemplify the valley-like terrain, with lower height bands in the central urban core and gradually increasing height bands towards the foothill of Golden Hill on the east and the knoll at Kwai Shing on the west. … The BH bands help preserve views to the ridgelines and achieve a stepped height profile for visual permeability and wind penetration and circulation. The height profile is sympathetic and compatible in scale with the surrounding developments.”

In relation to the Eastern Sub-area (in which the Site is located) specifically, the TPB noted:[10]

“3.2.9 The Eastern Sub-area is situated at ascending terrain overlooking the Central Sub-area. The proposed height bands in this sub-area seek to respond to the upwardly sloping foothill. … Rings of progressively increasing height bands of 150mPD, 160mPD, 170mPD, 180mPD, 190mPD, 200mPD, 210mPD and 220mPD corresponding to the contours are assigned to the residential developments on stepper [sic] topography to the east of Wo Yi Hop Road.”

(5)   These passages make clear that the respective elevations of Yi Fung Court and the Site were taken into account so as to give effect to what the Judge referred to as the Stepped Height Building Concept in [86(4)] of his Judgment, namely the idea that building heights should roughly correspond to the natural topography of the area.  It will be noted that the applicant unsuccessfully challenged the TPB’s use of the Stepped Building Height Concept at first instance, and does not appeal from that aspect of the decision.  Given the matters stated above, there is no basis for finding that the TPB acted irrationally in distinguishing Yi Fung Court on the basis that it was situated at a higher elevation.

55.  Third, it does not follow from the fact that BHRs are expressed in terms of mPD that the TPB is not entitled to look at absolute building heights in deciding what BHR (if any) is to be imposed on a particular site.  That seems to us to be a non sequitur.  Furthermore, as the Judge noted at [86(2)] of his Judgment, the comparison of the absolute building height of Yi Fung Court and the maximum allowable building height on the Site was done as part of its consideration of the topography of the area, so to give effect to the Stepped Building Height Concept.  For the reasons explained in [54(5)] above, we consider that the TPB was entitled to do so.

56.  Fourth, we fail to see why the fact that the Approved Scheme (with a height of 169mPD) was unaffected by the TPB’s subsequent imposition of the 120mPD BHR on the Site meant that it was irrational for the TPB to do so.  The TPB is entitled (and to a degree indeed bound[11]) to adopt a forward-thinking approach and impose zoning restrictions with which subsequent developments (but not necessarily the currently approved development) must comply.  The fact that the TPB’s objectives (for example, the Stepped Height Building Concept, or the desire to avoid out‑of‑context buildings) can only be achieved at some future time does not render it irrational for the TPB to pursue these objectives.

57.  In the circumstances, we agree with the Judge that there is no basis for the Court to interfere with the TPB’s exercise of planning judgment.

D3.    Ground 4: Irrationality in conducting visual assessment

58.  Ms Eu SC’s primary argument under this heading was that the TPB should have but failed to follow the guidelines laid down in paragraph 9.1.6 of the UDG Study in identifying local vantage points.  She also contended the TPB’s visual assessment was flawed more generally in that (a) the views to the Site at street level were mostly blocked by tall buildings and flyovers in any event, and (b) the TPB failed to conduct any visual assessment of the difference between BHRs of 120mPD and 169mPD in respect of the Site.

59.  In this respect, we are in complete agreement with the Judge’s conclusions in relation to the UDG Study.  The relevant passages of the UDG Study are as follows:

“9.1.6 … While it is true that people do move around the city, there are still certain positions within the city that are of immense importance to locals and tourists alike. Provided such places are agreed as being very popular, it remains valid to consider views from these specific positions. The reason is that the same view is experienced by thousands of people from the same location, and it therefore becomes very significant. Three criteria should be applied to identify the significance that should be attached to a specific viewpoint:

(i) The viewing location should be agreed as being important either by public consensus or as demonstrated by public attendance.

(ii) The object of the view should be agreed as being intrinsically important.

(iii) It should be agreed that it is important to have a view from the viewpoint to the object.

9.1.7 If these three criteria are satisfied, then the view is of immense significance and arguments about being able to move to other viewing locations do not reduce the relevance of considering the view from this point. Conversely, a well-travelled route, such as an expressway or railway, offers its changing view to thousands of people and therefore is also important.

9.1.8 While one viewpoint may be considered of greater importance, it is also important to identify other publicly accessible viewpoints, preferably from different directions.”

60.  The effect of these guidelines was explained by a differently constituted division of this Court^[12] in Oriental Generation Ltd v Town Planning Board CACV 129/2012 (unreported, 13 November 2014) (“Oriental Generation CA”) [86], as follows:

“In our view, the approach proposed by the 2003 Study is sensible. It ensures that the choice of the viewing location is made only after proper consideration of the views of community concerned, thus preventing, as far as reasonably practicable, any random or arbitrary choice. We think the above approach should be adopted to determine the viewing location unless there are good reasons not to do so. For example, if the viewing location is well known and generally accepted by the community at large as important, a public consultation which will most probably yield the same result will not be necessary.”

61.  This passage quoted above makes clear that the UDG Study did not purport to lay down any mandatory process for the selection of local vantage points.  On the contrary, it clearly states that it is unnecessary for the TPB to conduct a public consultation where the viewing location is well‑known and generally accepted by the community at large.

62.  In the present case, there is no dispute that the Park was a popular park in the Eastern Sub-Area.  We were not shown any evidence casting doubt on this matter, and certainly we did not understand Ms Eu SC as suggesting otherwise.  In the circumstances, we consider that the TPB was amply justified in selecting the Park as a local vantage point.

63.  We also do not see the point in Ms Eu SC’s subsidiary complaints.  The fact that most views to the Site were blocked by tall buildings and flyovers from other vantage points does not render it irrational for the TPB to conduct a visual assessment from those local vantage points (including the Park) from which a future building erected on the Site could be seen.[13]  Furthermore, while the Planning Department’s UDA report did not consider the difference between a 120mPD development and a 169mPD development, the TPB clearly did.  The TPB was addressed at length by the applicant’s representatives on this matter, and was provided with photomontages showing the view from the Park of the applicant’s proposed development (with a height of 167.5mPD).[14]

64.  For these reasons, we would also reject Ground 4.

D4.    Ground 9: BL 6 and BL 105

65.  Under this ground, Ms Eu SC first submitted that the Judge erred in applying a standard of manifestly without reasonable foundation, as that standard only applied where the TPB’s decision was “unassailable on traditional grounds (which is not the case here)”, and that, in any event, whatever threshold that applied was met on the facts of the case.  As to the 4^th step, she submitted that the TPB failed to weigh the impact of the BHR vis-à-vis the applicant’s property rights, in particular its pre-existing development rights under the approved scheme; rather, it wrongly assumed that the applicant would necessarily be able to proceed with the Approved Scheme.

66.  In our view, the Judge was correct in adopting the test of “manifestly without reasonable foundation”.  With respect, we do not think Ms Eu SC is right when she says that this standard only applies where decision is unassailable on traditional grounds.  It is worth setting out the relevant passages of Ribeiro PJ’s reasoning in Hysan CFA in full:

“126. Leaving the factor of the extent of interference aside, the constitution and decision-making machinery of the Board as the originator of any potentially impugned planning restrictions would, in my view, strongly favour adoption of a broad margin of discretion near the ‘manifestly without reasonable foundation’ end of the spectrum. As Reyes J pointed out in his OGL judgment, ‘[p]lanning is a holistic process, involving balancing numerous factors’. Draft OZPs and individual planning restrictions are the product of a decision-making process carried out by machinery created by statute and designed to ensure consideration of competing views after consultation with the public and with the parties affected with the benefit of input from relevant experts. Planning decisions are made with entire districts, and not just the parties’ sites, in view. The system includes as part of its design, the possibility of an aggrieved party seeking administrative law remedies if material flaws occur in the way the Board arrives at its decisions, as occurred in the present cases. But if the statutory process is undertaken without judicially reviewable flaws, it is hard to see any reason for thinking that the planning restrictions imposed should be liable to be struck down as constitutionally invalid. As Lord Neuberger of Abbotsbury PSC noted in R (Lord Carlile of Berriew) v Secretary of State for the Home Department:

…where, as here, the relevant decision maker has carried out the balancing exercise, and has not made any errors of primary fact or principle and has not reached an irrational conclusion, so that the only issue is the proportionality of the decision, the court cannot simply frank the decision, but it must give the decision appropriate weight, and that weight may be decisive.

127. And in Belfast City Council v Miss Behavin' Ltd, Lord Hoffman held that:

If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights.

In like vein, his Lordship remarked:

… I find it difficult to imagine a case in which a proper exercise by the council of its powers under the Order could be a breach of an applicant’s Convention rights.

128. The developers’ arguments raise similar questions. If, as in the present cases, planning restrictions are imposed which are arbitrary, based on inadequate inquiry or procedurally flawed, traditional judicial review remedies are available. But the developers’ proposition on this appeal is that even if the Board avoids falling into any error and decides on planning restrictions which are unimpeachable on traditional grounds, a basis ought nevertheless to exist for them to challenge those restrictions as disproportionate and unconstitutional. While I do not rule out the possibility of such an exceptional situation arising, like Lord Hoffmann, I find it difficult, at least in the abstract, to envisage the emergence of such a case.

129. I would therefore conclude that town planning restrictions, assuming them to be unassailable on traditional judicial review grounds would in general only be susceptible to constitutional review if the Court is satisfied that they are manifestly without reasonable foundation.”

67.  Properly understood, his Lordship was not suggesting that the standard of fundamental rights review would vary depending on whether the applicant is able to show some other judicially reviewable flaw.  Rather, as the quotations in [126] - [127] of the judgment make clear, the presence of such a flaw simply goes to the question of whether the TPB’s decision was disproportionate.  His Lordship was simply pointing out that the constitutional challenge is largely superfluous in cases where the manifestly without reasonable standard is adopted, as it is unlikely to succeed where other grounds of challenge have failed.

68.  We are further not persuaded that the Judge fell into error in holding that this threshold was not met.  The Judge correctly noted, by reference to Hysan CFA at [142], that the threshold is a high one, and generally speaking a measure will only be manifestly without reasonable foundation if it is “exceptionally unreasonable”.  We agree.  It is worth reminding ourselves of Ribeiro PJ’s observations in Hysan CFA at [120], that:

“In practice, where a wide margin of discretion exists, in applying the ‘manifest’ standard, the Court will allow the decision-maker latitude to adopt one of a relatively wide range of possible alternatives in fashioning the impugned measure which encroaches upon the protected right. Assuming that such measure pursues a legitimate aim and is rationally connected to achieving that aim, the Court will not be astute to insist on a potentially less intrusive measure but will only intervene to strike down the impugned provision as unconstitutional if, as Ma CJ put it in Fok Chun Wa v Hospital Authority, ‘the option chosen is clearly beyond the spectrum of reasonable options’ to deal with the problem.”

69.  Even taking into account the flaws in the TPB’s reasoning as found by the Judge, we do not see any basis for saying that the imposition of a 120mPD BHR on the Site exceeded the margin of discretion which ought to be afforded to the TPB.  As the Judge noted at [113] of the Judgment, the purpose of the BHR was to give effect to the Stepped Building Height Concept and to ensure that any future development on the Site is in line with the overall building height profile of the neighbourhood.  The imposition of the 120mPD BHR was clearly a reasonable option to achieve this purpose, for the reasons explained in paragraph 5.1.4 of the TPB Paper No 9206:[15]

“To respect the ascending topography from Castle Peak Road in the south to Kwok Shui Road and Wo Ying Hop Road in the north, BHRs of 105mPD, 120mPD and 130mPD are assigned to the business/industrial areas on both sides of Cheung Wing Road (Plans H-2 and H-5). The BH of 169mPD under the approved planning scheme (paragraph 5.1.2(1) above) is considered out of scale in the above context. Having regard to the BH profile of neighbouring Tsuen Wan, the site’s setting and the planning intention of the site, it is considered that a BHR of 120mPD thereat would be more appropriate to be congruous with the overall BH profile.”

70.  As for the 4^th step, we are unable to agree with Ms Eu SC’s contention that the TPB’s decision is flawed by reason of its failure to conduct the weighing exercise between the societal benefits of the measure and the encroachment on the applicant’s constitutionally protected rights.  It is well-established that this weighing process is not a matter for the decision-maker but one for the Court.  As Ribeiro PJ observed in Hysan CFA at [130]:

“It should be emphasised that it is the Court which has the ultimate responsibility for determining whether any restriction imposed by the Board can be subjected to a successful constitutional challenge. The Board’s role is to carry out its duties and to exercise its powers in accordance with the TPO. To adapt what Lord Hoffmann said in R (SB) v Governors of Denbigh High School, members of the TPB cannot be expected to make the Board’s planning decisions with textbooks on human rights law at their elbows. No doubt the Board will receive appropriate legal advice including advice regarding the property rights of others guaranteed by the Basic Law. But it is not the Board’s task to conduct a proportionality analysis, much less to mouth incantations about proportionality in rendering its decisions.”

71.  We consider that the Judge was right to find that the measure struck an appropriate balance for the reasons he gave in [115].  Ms Eu SC did not dispute the matters relied on by the Judge, namely the fact that (a) the imposition of a 120mPD BHR did not diminish the overall development intensity of the Site, in that the applicant could still pursue developments up to the maximum PR of 6.36, and (b) from a planning perspective, the societal interest was decidedly in favour of imposing a BHR on the Site.  In addition, we note that the applicant did not adduce any evidence to show that the 120mPD BHR is particularly onerous compared to zoning restrictions imposed by the TPB on other comparable sites.

72.  Given the matters above, the applicant has simply not even begun to demonstrate that the decision produced “extremely unbalanced and unfair results, oppressively imposing excessive burdens on the individuals affected” (Hysan CFA [114]).

73.  We would therefore dismiss Ground 9 as well.

D5.    Relief in relation to HCAL 91/2014 and HCAL 288/2018

74.  Ms Eu SC finally submitted that the Judge erred in only quashing OZP 26 and ought to have quashed OZPs 27, 28 and 29.  She raised the following arguments in support of her contention:

(1)   The TPB's error of law or ultra vires act occurred prior to its gazettal of OZP 26.  This renders the BHR as never having had any legal effect at all.  The TPB's decisions to gazette OZPs 27, 28 and 29 should therefore also be quashed insofar as those OZPs repeated the BHR introduced in OZP 26.

(2)   Since the applicant’s challenge was against the TPB’s decision to “impose” the BHR, the BHRs in all four OZPs should have been quashed.  It is “unfair to deprive the [applicant] the fruits of its overall success of [the judicial review] by not making similar order [sic]” in respect of all four OZPs when the same grounds of challenge were relied on in HCAL 91/2014 and HCAL 288/2018 in relation to OZPs 27, 28 and 29.

(3)   It is also necessary to quash OZPs 27, 28 and 29 because, as the Judge noted at [47] of his Judgment, the BA will have regard to the extant statutory plan in deciding whether to approve amendments to approved building plans.  It is pointless to quash OZP 26 but not the subsequent statutory plans.

75.  With respect, we are unable to agree with Ms Eu.

76.  First, while the Judge described the application as, in substance, a challenge to the TPB’s decision to “impose” the 120mPD BHR on the Site in [1] of his Judgment, it is obvious that he was simply speaking in general terms.  The specific decision challenged in HCAL 9/2013, as set out in the applicant’s Form 86,[16] was:

“TPB’s decision (the ‘Decision’) made on 12 October 2012 not to propose amendments to the Draft Kwai Chung Outline Zoning Plan No.S/KC/26 (‘OZP 26’) under s.6B(8) of the Town Planning Ordinance (Cap.131; ‘TPO’) in accordance with the Applicant’s representation numbered R9.”

77.  The relief granted by the Judge was rightly directed at the particular impugned decision.  Contrary to Ms Eu SC’s submission, the Judge did not in fact quash OZP 26 or the 120mPD BHR imposed thereunder, but rather quashed the Rejection and remitted the Representation to the TPB for fresh consideration.  The effect of the Judge’s orders is that the 120mPD BHR in OZP 26 stands unless and until the TPB accedes to the Representation.

78.  The applicant relied on Oriental Generation CA [69] in which a differently constituted division of this Court upheld the Judge’s decision to quash not only the TPB’s decision refusing to amend the OZP but also the specific restrictions under the impugned OZP and its successor.  However, in that case the applicant brought judicial review proceedings not only in respect of the refusal to amend the OZP but also against the restrictions themselves (HCAL 62/2011, see Oriental Generation CFI [18], Oriental Generation CA[6]).  At first instance, Reyes J found that the restrictions were irrational, a conclusion that was upheld by this Court.  The Court was therefore entirely justified in quashing both the decision to refuse to amend the restriction as well as the underlying restriction in the OZPs on the specific facts of that case.

79.  In contrast, the applicant’s challenge in this case was only ever directed against the Rejection.  The complaints upheld by the Judge, namely (a) the TPB’s misdirection in law in relation to section 16(3)(d) of the BO (Ground 1), (b) its consideration of an irrelevant consideration, namely the possibility of a minor relaxation of the BHR (Ground 6) and (c) its failure to conduct a fair hearing (Ground 7), were all concerned with the TPB’s decision to reject the Representation, as opposed to the original decision to impose the 120mPD.  There is thus no basis for the Court to quash the 120mPD in OZP 26.

80.  Viewed in this light, there is no reason why the Court ought to have quashed OZPs 27, 28 and 29.  Those OZPs simply repeat the BHR imposed in OZP 26, against which the applicant has not brought any judicial review challenge.  It is thus not the case that they have been tainted by the same error of law, as Ms Eu suggests.

81.  Second, and independent of the above, it is trite that relief in judicial review proceedings is discretionary.  Even assuming that all four OZPs are tainted by the same error of law, the Court need not grant the same relief in respect of each if it is unnecessary to achieve justice on the particular facts of the case.  The applicant’s submission that the Court must quash OZPs 27, 28 and 29 for sake of consistency proceeds on a false premise.

82.  Third, and in any event, we are unable to see any prejudice or unfairness in the course adopted by the Judge.  The applicant’s concern that the BA will take into account the “extant statutory plan” in deciding whether to approve amendments to building plans does not arise on the facts, as the applicant has simply not made any such application to the BA. In any event, the Representation has been remitted to the TPB for reconsideration. If the TPB accedes to the Representation, it will gazette a new draft OZP incorporating the amendment thereby superseding OZP 29.  If the TPB rejects the Representation in the fresh exercise of its discretion, then (subject to any further judicial review challenges which the applicant might bring) the BA would be perfectly entitled to consider any amendments to the applicant’s building plans by reference to the zoning restrictions in OZP 29.

83.  For these reasons, there is no basis to interfere with the relief granted by the Judge.

D6.    Costs below

84.  Ms Eu submits that the Judge should have ordered the TPB to pay 70% of its costs in HCAL 91/2014 and HCAL 288/2018 as well, on the basis that (a) the grounds in these two applications were essentially the same as that in HCAL 9/2013 and (b) it was necessary for the applicant to take out these two proceedings so to challenge the “extant statutory plan”.

85.  It is well-established an appellate court will only interfere with an order as to costs where there is a palpable error in the judge’s exercise of discretion: Chu Wai Leong v Leung Sum Kee et al Framework, Pipework and Demolish Engineering Ltd [2020] HKCA 392, [2020] 3 HKLRD 218, [30] - [31].

86.  We are unable to detect any error in the Judge’s decision.  It seems to us that the key issue is whether it was necessary for the applicant to institute those further proceedings.  As we have explained above, it was not necessary for the Judge to quash OZPs 27, 28 and 29 in order to give effect to the applicant’s successful challenge to the Rejection.  All that was necessary was for a stay of submission of those OZPs to the CEIC pending the determination of HCAL 9/2013.  Mr Ho SC submits, and we agree, that the applicant could have dealt with this by way of agreement with the TPB.  There is no suggestion in the evidence that the applicant pursued such a course of action in respect of OZP 27 and 28.  As for OZP 29, we note that prior to the applicant’s institution of HCAL 288/2018, the Department of Justice had already indicated in its letter to the applicant’s solicitors dated 20 February 2018[17] that it would not submit OZP 29 to the CEIC for approval for the time being in view of interim stay ordered by the Court in respect of OZPs 26 to 28.  The applicant has not provided any satisfactory explanation for why it considered this assurance to be insufficient.

87.  We would therefore dismiss the applicant’s appeal against the Judge’s costs orders in HCAL 91/2014 and HCAL 288/2018.

E.      DISPOSITION

88.  For all the above reasons, we dismiss the appeal.  There being no reason why costs should not follow the event, we further make an order nisi that the TPB have its costs of the appeal, to be taxed if not agreed, with certificate for two counsel.

89.  Lastly, we wish to thank counsel for their assistance.