TUNG CHUN CO LTD v. TOWN PLANNING BOARD

HCAL 9/2013,
HCAL 91/2014 &
HCAL 288/2018

[2018] HKCFI 1447

HCAL 9/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 9 OF 2013

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and

HCAL 91/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 91 OF 2014

________________________

________________________

and

HCAL 288/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 288 OF 2018

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JUDGMENT

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INTRODUCTION

1.  At the heart of these three applications for judicial review is the decision of the Town Planning Board (“TPB”) to impose a building height restriction of 120mPD at Kwai Chung Town Lot No 432 (“120mPD BHR”) under Kwai Chung Outline Zoning Plan No. S/KC/26 (“OZP 26”) gazetted on 20 April 2012.

2.  A total of 9 grounds of judicial review are relied upon by the Applicant to challenge the TPB’s decision not to propose amendments to OZP 26 to meet the Applicant’s objection to the 120mPD BHR, namely:-

(1)     error of law/ultra vires (Ground 1);

(2)     failure to honour legitimate expectation (Ground 2);

(3)     irrationality – out of context (Ground 3);

(4)     irrationality – air ventilation assessment (Ground 4);

(5)     irrationality – visual assessment (Ground 5);

(6)     irrationality – minor relaxation (Ground 6);

(7)     procedural impropriety – attendance at TPB meeting (Ground 7);

(8)     procedural impropriety – inadequate reasons (Ground 8); and

(9)     violation of basic law – proportionality (Ground 9).

3.  In the Amended Notice of Application for Leave to Apply for Judicial Review filed on 7 February 2018 in HCAL 9/2013, there was also an additional ground of judicial review raised on the basis of procedural impropriety - apparent bias.  However, as I understand from the submissions of Ms Audrey Eu, SC (for the Applicant), this ground of judicial review is reserved for consideration by the Court of Final Appeal should this matter eventually end up in that court.  Accordingly, it will not be further considered in this judgment.

4.  For reasons which I shall explain below, I find in favour of the Applicant in respect of Grounds 1, 6 and 7, but reject the rest of the grounds relied upon by it.

BACKGROUND FACTS

5.  The Applicant was, until the land exchange in 1990 more particularly described below, the owner of the lands known as Kwai Chung Town Lot Nos 8 and 10 (“KCTL 8” and “KCTL 10” respectively, and the “Old Site” collectively) at Nos 1-7, Cheung Wing Road, Kwai Chung, New Territories, on which was erected a 3-storey sauce factory operated by the Applicant.

6.  Under the relevant Government leases, KCTL 8 was restricted to be used as a food factory or for the purpose of a distillery, while KCTL 10 could be used for general industrial/godown/open storage purposes.  There was no plot ratio restriction imposed at the two lots by the Government leases.

7.  Prior to 1989, the Government already had plans for the construction of a link road between Tai Yuen Street (at that time a cul-de-sac) and Cheung Wing Road, the entirety of which would encroach on KCTL 10, but there was no firm programme for its construction.  On the other hand, it was the Applicant’s wish to apply for a modification of the user of KCTL 8 from food factory and distillery to general industrial use.

8.  At the District Lands Conference held on 19 July 1989, a proposed in-situ land exchange was agreed upon, under which the Applicant would be granted a new lot, to be known as KCTL No 432 (the “Site”) for general industrial/godown use with a maximum plot ratio of 15, in return for the surrender of the Old Site (thereby releasing the land for the construction of Road 27E).  The basic terms of the land exchange were offered to the Applicant on 27 April 1990, and accepted by the Applicant on 25 May 1990 (“Land Exchange Agreement”).  The relevant premium was paid by the Applicant on 29 September 1990.

9.  On 19 October 1990, Kwai Chung Outline Zoning Plan No. S/KC/7 (“OZP 7”) was gazetted.  It imposed a plot ratio restriction of 9.5 at the Old Site, which was zoned “Industrial”.

10.  On 27 October 1990, the Government made a New Grant No 6787 of the Site (with an area of about 12,340 sq m) in favour of the Applicant in exchange for the surrender of the Old Site (with a total area of about 13,350.1 sq m, the difference being the land reserved for Road 27E). Under the New Grant:-

(1)     the Applicant is required to construct Road 27E within 24 months and re-deliver possession of it to the Government on demand (Special Conditions (4)(a) and (5)(a));

(2)     the Site and any building erected or to be erected thereon shall not be used for any purpose other than for industrial and/or godown purposes or both, excluding offensive trades (Special Condition (7)(a)); and

(3)     there is no plot ratio restriction imposed at the Site.

11.  On 21 November 1990, the Applicant lodged an objection (“Objection No 3”) to the TPB against the imposition of the plot ratio restriction of 9.5 at the Site by OZP 7.

12.  On 13 March 1991, the Applicant made an application to the TPB for permission to redevelop the Site with a plot ratio 15.

13.  On 14 February 1992, the TPB upheld the Applicant’s Objection No 3 on the ground of the planning gains arising from the Applicant’s proposed development and the special circumstances of the Site.

14.  On 3 July 1992, the TPB gazetted Kwai Chung Outline Zoning Plan No. S/KC/8 (“OZP 8”) removing the plot ratio restriction of 9.5 at the Site and amending the zoning of the Site from “I” (Industrial) to “CDA” (Comprehensive Development Area) with a view to maintaining control over the future industrial development at the Site in traffic and environment terms.

15.  The consequences of the Site being zoned as “CDA” are that:-

(1)     under Section 4A(1) of the Town Planning Ordinance, Cap 131 (“TPO”), the TPB may prohibit the undertaking of any building works at the Site except with its permission, which permission may be granted by reference to a plan approved by the TPB under Section 4A(1)(b); and

(2)     under Section 4A(2) of the TPO, an applicant for the TPB’s permission may be required to (a) prepare a master lay-out plan and submit it to the TPB for approval; and (b) include information in the master lay-out plan respecting building dimensions, floor area for each use, building development programmes and any other matter the TPB considers appropriate.

16.  On 4 June 1993, the TPB approved the Applicant’s Master Layout Plan (“MLP”) for a proposed factory/godown development (“Application 127”).

17.  On 26 January 1996, the TPB approved another MLP submitted by the Applicant for essentially the same development with some minor modifications relating to fire safety matters (“Application 197”).  The proposed developments under Applications 127 and 197 had a building height of 169.75mPD and a plot ratio of 15.

18.  On 2 September 1996, the Building Authority (“BA”) gave consent for piling works at the Site which were required for the construction of Road 27E.

19.  On 19 December 1997, the BA approved general building plans (“GBPs”) submitted by the Applicant for the proposed development under Application 197.

20.  On 17 March 2000, the TPB approved a further MLP submitted by the Applicant for a proposed hotel/service apartment development at the Site with a building height of 95.5mPD for the hotel and 169mPD for the service apartment and a plot ratio of 6.36 (“Application 241”).  It was an express condition of the approval that “the permission shall cease to have effect on 17.3.2003 unless prior to the said date either the development hereby permitted is commenced or this permission is renewed”.

21.  On 27 April 2000, the Chairman of the TPB certified the approved MLP under Application 241, and the same was deposited in the Land Registry pursuant to Section 4A(3) of the TPO.

22.  On 20 February 2003, the BA approved GBPs submitted by the Applicant for the proposed hotel/service apartment development under Application 241.  With such approval, the proposed development under Application 241 was deemed to have been commenced under the TPB’s Practice Guide No.35B.

23.  On 26 September 2003, the TPB gazetted Kwai Chung Outline Zoning Plan No. S/KC/20 imposing a plot ratio restriction of 6.36 at the Site.  The Applicant did not lodge any objection to this plot ratio restriction.

24.  On 19 January 2005, the TPB approved Application 298 submitted by the Applicant which related to essentially the same proposed development under Application 241 except the relocation of a refuge floor.

25.  GBPs relating to the proposed development under Application 298 were approved by the BA on 5 February 2005 and 31 January 2007 respectively, with the latter ones being the latest approved GBPs for the proposed development.

26.  On 31 May 2011, Kwai Chung Outline Zoning Plan No. S/KC/25 (“OZP 25”) was approved by the Chief Executive in Council (“CE in C”) under Section 9(1)(a) of the TPO.  On 4 October 2011, the CE in C referred OZP 25 to the TPB for amendment under Section 12(1)(b)(ii) of the TPO.

27.  In response to the CE in C’s reference mentioned above, on 30 March 2012, the Metro Planning Committee (“MPC”) of the TPB convened a meeting to consider various amendments to OZP 25 proposed by the Planning Department as set out in MPC Paper No 6/12.  Subject to certain matters which are not relevant for the present purposes, the MPC endorsed the amendments as proposed by the Planning Department.  On 20 April 2012, OZP 26 was gazetted.  It imposed a building height restriction of 120mPD and plot ratio restriction of 6.36 at the Site.

28.  On 20 June 2012, the Applicant submitted “Representation No 9” to the TPB seeking, inter alia, to remove the 120mPD BHR or increase the maximum building height to 169mPD at the Site.

29.  On 12 October 2012, the TPB held a meeting (“the October Meeting”) under Section 6B(1) of the TPO to consider, inter alia, the Applicant’s representation.

30.  By a letter dated 2 November 2012 (“the Decision Letter”), the TPB informed the Applicant that its representation was rejected (“the Decision”).  In that letter, the following was stated:-

“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.”

31.  On 11 January 2013, the Applicant commenced HCAL 9/2013 to challenge the Decision by way of judicial review.  On 5 February 2013, leave to apply for judicial review was granted by Lam JA, who also granted an interim stay of submission of OZP 26 to the CE in C pending the determination of the application for judicial review.

32.  On 9 May 2014, Kwai Chung Outline Zoning Plan No. S/KC/27 (“OZP 27”) was gazetted.  The proposed amendments to OZP 26 did not concern the Site.

33.  On 13 June 2014, Kwai Chung Outline Zoning Plan No. S/KC/28 (“OZP 28”) was gazetted.  The proposed amendments to OZP 27 did not concern the Site.

34.  On 8 August 2014, the Applicant commenced HCAL 91/2014 to challenge the TPB’s decisions to gazette OZP 27 and OZP 28 by way of judicial review.  On 12 August 2014, leave to apply for judicial review was granted by Au J, who also granted an interim stay of submission of OZP 27 and OZP 28 to the CE in C pending the determination of the application for judicial review.

35.  The substantive hearing of the applications in HCAL 9/2013 and HCAL 91/2014, which had been ordered by Au J to be heard together, came before Ng J on 6 May 2015.  Prior to that hearing, the TPB took out a summons seeking leave to file a new affidavit of Ms Ophelia Wong (“the April 2015 Affidavit”).  Ng J granted leave to the TPB to file the April 2015 Affidavit and adjourned the hearing of the applications for judicial review to another date to be fixed.

36.  On 22 June 2015, Ng J granted leave to the TPB to withdraw the April 2015 Affidavit.

37.  On 22 December 2017, Kwai Chung Outline Zoning Plan No. S/KC/29 (“OZP 29”) was gazetted.  The proposed amendments to OZP 28 did not concern the Site.

38.  On 23 February 2018, the Applicant commenced HCAL 288/2018 to challenge the TPB’s decision to gazette OZP 29.  On 26 February 2018, this court granted leave to the Applicant to apply for judicial review.

39.  The three applications for judicial review came before this court on 6 March 2018.  The parties were agreed that all three applications should be heard together.

40.  In what follows, I shall first consider Grounds 1, 6 and 7, before I consider the rest of the grounds relied upon by the Applicant in these applications for judicial review.

GROUND 1: ERROR OF LAW/ULTRA VIRES

41.  In the Decision Letter, one of the reasons given by the TPB for rejecting the Applicant’s objection to the imposition of the 120mPD BHR was that the previous development proposals which had already obtained building plan approval would not be affected by the amendment to the zoning restriction, and the Applicant could proceed with its previously approved development proposal notwithstanding the newly imposed 120mPD BHR.

42.  That view was, apparently, based on what was said at paragraph 5.3(a) of TPB Paper No 9206 dated October 2012 (“TPB Paper No 9206”):-

“Admittedly, the representer has in hand a set of approved building plans with a BH of 169mPD. However, it does not mean 169mPD can meet the current public aspirations and should be incorporated in the OZP as the optimal BH profile for the Area. That said, it is the practice that development proposals which have already obtained building plan approval will not be affected by an amendment to the zoning restriction and subsequent amendments to the approved building plans will not need to conform to an extant statutory plan unless they involve a change of use, an increase in development intensity or substantial amendments. The representer could proceed with its building development in accordance with the approved building plans if he so wishes.”

43.  The “practice” referred to in paragraph 5.3(a) of TPB Paper No 9206 is a reference to the Practice Note for Professional Persons No 3/2001 (“Practice Note No 3”) issued by the Director of Planning dated 13 December 2001, which states as follows:-

“1 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 (ie a new land use zone or a new development restriction) may thus become non-conforming when the restriction comes into effect.

2 Development proposals which have already obtained building plan approval will not be affected by an amendment to the zoning restriction. Any subsequent amendments to the approved building plans will need to conform to an extant statutory plan. However, if the proposed amendments are minor in nature and immaterial in planning terms, it may not be reasonable to reject the amendment building plans under section 16(1)(d) or (da) of the Buildings Ordinance (BO) for contravention of the extant statutory plan.

3 In dealing with such cases, the Planning Department had adopted a flexible and practical approach. For building plans involving minor amendments to the approved building plans, such as alteration of internal layout without any increase in plot ratio, flat number and/or car parking spaces, 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.

4     This administrative practice provides more certainty to an owner/developer as it will facilitate minor amendments to approved building proposals.  This Department will continue to apply this practice in processing amendments to approved building plans.”

44.  In the present case, the latest GBPs relating to the Applicant’s proposed development for a hotel/service apartment at the Site under Application 298 were approved by the BA on 31 January 2007.  Should the Applicant wish to make any amendments to those approved GBPs, the Applicant could benefit under Practice Note No 3 in that the Director of Planning would not recommend the BA to reject the amended GBPs pursuant to Section 16(1)(d) or (da) of the Buildings Ordinance, Cap 123 (the “BO”) on the ground that they would contravene an extant statutory plan, provided that the amendments are “minor” in nature and “immaterial” in planning terms as mentioned in paragraphs 2 and 3 of that practice note.

45.  It does not follow, however, that the Applicant will, or will necessarily, be able to proceed with the proposed development under Application 298 (even in the form under the currently approved GBPs without any amendments).  This is because under Section 16(3)(d) of the BO, the BA may refuse to give his consent to the commencement of any building works where “a period exceeding 2 years has elapsed since the approval of any of the prescribed plans in respect of the building works”.  Whether the BA would exercise his discretion to give his consent to the commencement of buildings works in such circumstances is a matter for the BA and not for the Director of Planning, and Practice Note No 3 has no application to such exercise of discretion by the BA.

46.  The Planning Department was well aware of the fact that the BA might refuse to give consent to the commencement of building works in respect of the proposed development under Application 298 under Section 16(3)(d) because “certain provisions of the Building Ordinance and the allied regulations have been revised (e.g. Barrier Free Code 2008) since the last approval” (see paragraph 5.12 of TPB Paper No 9206).  This was repeated by Ms M L Leung, Senior Town Planner/Special Duties of the Planning Department, at the October Meeting (see paragraphs 113(g) of the minutes of that meeting).  That being so, I consider it to be wrong in law for the TPB to state, in unqualified terms, in sub-paragraph (d) of the Decision Letter that:-

“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” [emphasis added].

47.  It also seems to me that the TPB is wrong in law to say that “[s]ubsequent 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”.  The correct legal position is that when the BA decides whether to approve amendments to approved building plans, he ought to have regard to the extant statutory plan, although he does have a discretion under Section 16(1)(d) of the BO to give his approval of the amended plans even if they are inconsistent with the extant statutory plan (see Head Step Limited v Building Authority, CACV 131/1995, 25 October 1995, at pages 10-11; and Attorney General v Firebird [1983] 1 HKC 1, at 6-7).

48.  On behalf of the TPB, Mr Ambrose Ho, SC argues that the TPB “did not proceed on the basis that Tung Chun would necessarily be able to execute the Latest GBP given the time which had elapsed since the BD’s approval.  This was simply a possibility – not a certainty – which the TPB was entitled to and did take into account in the exercise of its broad discretionary planning judgment” (see paragraph 13 of Mr Ho’s original skeletons submissions dated 28 April 2015).  Had this been what the TPB stated in the Decision Letter, I would have found it difficult to take issue with it. However, this was not what the TPB said in the Decision Letter.  Instead, the TPB stated, simply, that “[the Applicant] can proceed with the building development in accordance with the approved building plans”.

49.  Mr Ho also argues that there is nothing wrong with the statement in sub-paragraph (d) of the Decision Letter from “the planning point of view”.  While it is correct that the statement reflects, in large measure, the effect of Practice Note No 3, that statement, in the context of the Decision Letter as a whole, does not appear to be limited to stating the position of the Planning Department only.

50.  In all, I am of the view that the Applicant’s complaint that the TPB made an error of law in coming to the Decision is valid.

GROUND 6: IRRATIONALITY – MINOR RELAXATION

51.  The Applicant complains that one of the reasons given by the TPB for rejecting the Applicant’s objection to the imposition of the 120mPD BHR was the possibility of minor relaxation which the Applicant says is an irrelevant consideration (see sub-paragraph (i) of that letter).

52.  A similar complaint was upheld by the Court of Appeal in Hysan Development Co Ltd v Town Planning Board (CACV 232 and 233/2012), and in Town Planning Board v Oriental Generation Ltd (CACV 127 and 129/2012), both handed down on 13 November 2014.

53.  In Hysan, at paragraph 164, Lam VP (giving the judgment of the Court of Appeal) stated the following:-

“Whilst it is not objectionable for the TPB to refer to the mechanism for minor relaxation after they had rejected the representations on other substantive grounds by way of reminder to an applicant of such mechanism, it is not open to the TPB to rely on that mechanism as one of the substantive reasons for rejecting representations. In the latter scenario, the TPB would have taken an irrelevant consideration into account. Even though it may only be one reason out of several reasons given in dealing with the representations, Hysan is entitled to say that it could not know whether the TPB would reach the same conclusion in the balancing exercise if such reason had not been relied upon. In our judgment, the decision of the TPB is tainted by its reliance on the possibility of applying for minor relaxation.”

54.  The Court of Appeal in Oriental Generation, at paragraph 120, agreed with the aforesaid analysis in Hysan.

55.  Mr Ho does not dispute that the possibility of minor relaxation cannot be used as a justification for imposing the 120mPD BHR, or rejecting the Applicant’s objection to the building height restriction, but submits that the TPB did not rely on the possibility of minor relaxation as a substantive justification for either purpose.  Mr Ho says that the building height restriction was maintained on separate substantive grounds primarily concerning compatibility with the planning context and other aesthetic/ventilation considerations, and the TPB only referred to minor relaxation in answer to the specific contention by the Applicant that the building height restriction would reduce “greening opportunities” at the Site which Mr Ho says the TPB correctly considered to be “an entirely irrelevant reason from Tung Chun for not maintaining the 120mPD BHR” (see paragraph 44(1) and (4) of Mr Ho’s Skeleton Submissions dated 28 April 2015).  In support of this submission, Mr Ho refers the court to the following materials:-

(1) The Applicant’s Representation Statement dated June 2012, paragraph 7.10 –

“The Newly Imposed Building Height Restriction on the Representation Site Limits the Opportunities in Achieving the Government’s Greening Policy and Measures to Foster a Quality and Sustainable Built Environment

The building height restriction imposed on the Representation Site limits the opportunities in achieving Government’s recently initiated measures to foster a quality and sustainable built environment that it is recommended that ‘the Government should impose mandatory minimum requirement to provide greenery for sites no less than 1,000m² in new building developments or redevelopments with fixed planning areas equivalent to 20% to 30% of the site areas, including greenery at the ground level as a priority, and podium and roof levels, depending on the size of the sites (Legislative Council (LegCo) Paper File Ref. DEVB(PL-CR)12/2010 refers). Nevertheless, the imposition of building height restriction will imply a larger site coverage which limits its ability to provide greening.”

(2) TPB Paper No.9206, paragraph 5.3(h) –

“While [the Applicant] alleges that the BHR of the Tung Chun Site will reduce greening opportunity due to higher SC and less design flexibility, it should be pointed out that building design is determined by the interplay of various factors such as PR, SC, 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 allow 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 is more appropriate to pursue the proposal by way of application for minor relaxation of the BHR.”

56.  It does appear that the Planning Department’s intention in referring to the possibility of minor relaxation was in answer to the specific contention by the Applicant that the 120mPD BHR would reduce “greening opportunities” at the Site.

57.  It is, however, by no means clear that the TPB referred to and relied on the possibility of minor relaxation for this limited purpose only.  At paragraph 147 of the minutes of the October Meeting, the Chairman of the TPB summarised, or purported to summarise, the views of Members, in the following manner –

“The Chairman summarised Members’ views that the representer should be encouraged to derive a feasible scheme for a comprehensive development of mixed uses, e.g. residential cum hotel use, in order to address the traffic and industrial noise pollution at the representation site properly. In formulating the BHR, PlanD had already taken into account a whole set of factors such as local context, existing BH, compatibility with the surrounding areas, air ventilation, public aspirations, private development potentials, stepped BH concept, permissible development intensity under the OZP and the Urban Design Guidelines. The imposition of BHR for the representation site was justified to avoid a proliferation of out-of-context development in the area. On the issue of development rights, the imposition of the BHR did not take away the development rights from the representer. Proposals with approved GBPs would not be affected by the proposed amendments to the OZP. As discussed, the represneter could proceed with the approved hotel and service apartment scheme, with GBPs approved in 2007. Further, as the representation site was zoned ‘CDA’, it would be more appropriate for the representer to submit a MLP and, if necessary, apply for minor relaxation of the BHR as appropriate when a concrete development was available at the MLP submission stage. Minor relaxation could then be considered by the Board on individual merits by making reference to the concrete proposed development scheme. In view of the above reasons, Members agreed that R9 should not be upheld” [emphasis added].

58.  I should add that, in determining the basis of the TPB’s decision, one ought to focus on the letter sent by the TPB to the Applicant giving its reasons for the decision.  In Hysan, at paragraph 192, Lam VP referred to and agreed with what was said by Cheung JA in Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, at paragraph 87:

“Personally I do not consider that too much weight should be attached to the summary of the discussions by members of the TPB. When a decision-maker deliberated on an issue there would be expression of ideas and views which may not be fully articulated or necessarily correct. But it does not mean that when the decision-maker finally decided on an issue it would necessarily have relied upon one or more of the matters that had been discussed. It is far more important to see how the decision-maker articulated the reasons for the decision” [emphasis added].

59.  In the Decision Letter, sub-paragraph (i) thereof (which referred to the possibility of minor relaxation) appears as one of the substantive reasons for the TPB’s decision not to propose amendments to OZP 26 to meet the Applicant’s representation, and not as an answer to an “irrelevant” contention raised by the Applicant that the building height restriction would reduce “greening opportunities” at the Site.

60.  In my view, if the TPB had intended to impose and/or maintain the building height restriction on other substantive grounds excluding minor relaxation and refer to the possibility of minor relaxation only in answer to the Applicant’s contention that the building height restriction would reduce “greening opportunities” at the Site (or, as suggested by the Court of Appeal, as a reminder to the Applicant that there could be scope for “minor” relaxation of the building height restriction where the planning and design merits of a development scheme would justify such relaxation), it ought to have spelt these out expressly in the reasons for its decision.  This was not done, possibly because the TPB decided to adopt wholesale the reasons suggested by the Planning Department for rejecting the Applicant’s representation.  As has been said by the courts on many occasions in the past, this is an unsatisfactory practice (see Smart Gain Investment Ltd v Town Planning Board, HCAL 12/2006, 6 November 2007, at paragraph 105 per A Cheung J (as he then was); Hysan, at paragraph 200 per Lam VP; and Oriental Generation, at paragraph 150).  An additional reason why the practice is unsatisfactory is that the Planning Department’s reasons normally come at the end of a long TPB paper summarising its views on many issues discussed in detail in the paper.  The true meaning and intent of those reasons may be obscured or lost if they appear in isolation, which would happen when the TPB simply adopts those reasons in its decision without more.  It would, I consider, be more satisfactory for the TPB to briefly state, in its own words, the reason(s) for rejecting the applicant’s representation, dealing with each of the substantive grounds relied upon by the applicant individually (if that is what the TPB decides to do), instead of lumping all the reasons together.

61.  The circumstances in the present case are, I believe, practically indistinguishable from those in Hysan.  I consider that I am bound by the decision of the Court of Appeal in that case to hold that the TPB took into account an irrelevant consideration, namely, the possibility of minor relaxation, in reaching its decision not to propose amendments to OZP 26 to meet the Applicant’s representation.

GROUND 7: PROCEDURAL IMPROPRIETY – ATTENDANCE AT TPB MEETING

62.  The Applicant’s Representation No 9 against the 120mPD BHR imposed by OZP 26 was considered by the TPB at the October Meeting.

63.  As can be seen from the minutes of the October Meeting:-

(1) The afternoon session of the meeting, in the course of which the Applicant’s representation was considered, started at about 2:30 pm on 12 October 2012.  The TPB that was constituted to consider the Applicant’s representation included, or was supposed to include, Mr Timothy K W Ma and Miss Anita W T Ma.

(2) However, Mr Timothy Ma left the meeting for a period of time while the Applicant’s representatives were making submissions to the TPB.

(3) Miss Anita Ma only joined the meeting after all oral representations had been made.

64.  Both Mr Timothy Ma and Miss Anita Ma apparently were present during the deliberation session of the meeting, but it is not clear from the minutes whether they spoke at the meeting.

65.  The question of whether the absence of one or more members who participated in the TPB’s decision-making process but who were not present throughout the representation hearing would vitiate the TPB’s decision on the ground of procedural unfairness was considered by the Court of Appeal in Hysan and Oriental Generation Ltd.

66.  In Hysan, Lam VP stated the following:-

[174] Another aspect of Mr Yu’s challenge to the fairness of the proceedings is on the partial absence of some members who had participated in the decision-making process but were not present throughout the hearing. Audi alteram partem is often translated as “he who decides must hear”. This rule has recently been considered by the English Court of Appeal in R (Hill) v Institute of Chartered Accountants [2014] 1 WLR 86. Though the case concerned a disciplinary hearing, the judgment touched upon some general aspects in the application of the rule.

[175] From the judgment of Longmore LJ and the authorities cited in that case, we derive the following propositions which are relevant for present purposes:

(a) Hearing needs not be confined to evidence or materials raised at an oral hearing (para 15);

(b) For judicial bodies where the rule applies in its full rigour, it is important that each member of the tribunal should hear orally all the evidence.  Reading a transcript is normally no substitute for hearing evidence from a live witness given orally (para 15);

(c) In the context of a non-judicial body, there is no absolute rule that this must be achieved by the presence of all the members throughout the entire course of hearing.  See the example given in Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 and the dicta of Viscount Dilhorne at pp. 568-569 cited at para 19.  Some other procedures may be acceptable when the credibility of witnesses or other reasons pertaining to the proper assessment of a matter which requires the presence of all the members is not engaged.  It is a matter of procedure and fairness (cf paras 19 and 22);

(d) In respect of administrative decisions which is not of a quasi-judicial nature, the crucial question is whether all members participating in the decision-making were fully apprised of what had happened at the hearing (or in the words of Viscount Dilhorne “fully informed of the evidence given and the submissions made”);

(e) Thus, if there are members who are partially absent during the proceedings taking part in the deliberation and decision making, there must be some other evidence to demonstrate that they have otherwise been adequately apprised of the relevant matters or representations which had been put forward during their absence;

(f) In assessing the adequacy of an alternative arrangement, the court will have regard to the nature of the process, nature of the case of the party concerned, the evidence or representations that were given, the issues that the decision maker need to address; and

(g) The rule may also be relaxed if the relevant process is statutory and the statute provides for such relaxation.  As stated by Pratte J in the Canadian case of Doyle v Canada (Restrictive Trade Practices Commission) (1985) 21 DLR (4^th) 366, “It … does not apply where this is expressly stated to be the case … nor does it apply where a review of all provisions governing the activities of a tribunal leads to the conclusion that the legislator could not have intended them to apply.” (para 27).

[176] It must be emphasised that the relaxation discussed above is only in respect of the alternative arrangement for some members to be apprised of the evidence and representations (without being personally present at the meeting when the representations were made) before they participated in the deliberation process.  It is not a relaxation which allows some members to take part in the decision making process when they were ignorant of relevant materials.  Thus, if the evidence shows that no attempt or inadequate attempt was made to apprise those absent members of the relevant representations before they participated in the making of the decision, that would vitiate the decision, see R v Preston Borough Council, ex p Quietlynn Ltd [1985] 83 LGR 308.

[177] A similar challenge had been mounted in R v Town Planning Board Ex p REDA [1996] 2 HKLR 267.  That was a case where Leonard J found on the evidence before the court that all members were fully apprised of all the representations (see p.284E) despite some members of the TPB were not present at the oral representation by the applicant.  In that case, a further meeting was held after the hearing at which representations were made.  Before the second meeting, detailed minutes of the first meeting were prepared and read by those who attended the second but not the first meeting.  The second meeting was necessary in order to achieve fairness and consistency between objectors as there were similar objections in other cases…

[181] As reflected in the propositions set out above, we agree that there is a distinction between judicial (or quasi-judicial) bodies on the one hand and administrative bodies on the other. We also bear in mind the observations of Lord Diplock in Bushell v Secretary of State for the Environment [1981] AC 75 at p.95 and Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at p.118 cited by Leonard J at pp.285-6 of REDA, supra. However, it does not mean the rule has no application to a section 6B hearing conducted by the TPB. Leonard J was clearly of the view that the rule is applicable and that was why His Lordship had to satisfy himself that all members of the TPB were fully apprised of all the representations before he concluded that the process had been fair. In respect of other decisions in socio-economic and quasi-planning context (concerning the balancing of public interest against private interest) where a right to be heard is conferred, there were cases which held that the tribunals are subject to this requirement of natural justice: see Jeffs v New Zealand Dairy Production and Marketing Board, supra, and R v Preston Borough Council, ex p Quietlynn Ltd, supra.

[182] Whilst it is correct to describe the decision of the TPB as administrative (and Mr Jat referred us to the judgment of Leonard J in REDA at pp.275 to 277 and 292, quoted with approval by Litton VP (as he then was) in Kwan Kong Co Ltd v Town Planning Board [1996] 2 HKLR 363 at p.373), it is nonetheless a decision which restricts the ability of the landowners to use their properties in future developments.  Even though, as discussed above, the constitutional rights under Articles 6 and 105 of the Basic Law are not engaged, the decision is of a different kind from the administrative decision of the Race Relation Board considered by Lord Denning.  We are conscious that the TPB is exercising a planning judgment which involves the balancing of private interest against public interest and the nature of a section 6 hearing is of a consultative as opposed to adversarial nature.  Even so, these are not valid grounds for permitting the planning judgment to be exercised by someone who is not fully apprised of the relevant representations.

67.  In Oriental Generation, the following was stated by the Court of Appeal:-

[125] Although we agree with the Judge that most of OGL’s complaints of procedural impropriety are not well founded, we have come to the conclusion that, in one respect, namely the complaint about the disconnect between the attendance of Board members during the hearing of OGL’s representations and the deliberation upon them, OGL have, in this case, valid cause for complaint. We therefore deal first with this point.

[126] The issue of the incomplete participation of those Board members who attended meetings to be present for all those parts of the meeting relating to the representations made by a particular party was fully considered in the judgment in CACV 232 and 233 of 2012, at paragraphs 174 to 186. We respectfully agree with and adopt the principles there stated.

[127] For present purposes, it suffices to note that, in the context of the administrative process constituted by meetings of the Board for the purpose of hearing, deliberating on and determining objections and representations in respect of draft plans prepared by the Board, it is not necessary for all Board members who participate in the Board’s deliberation and decision on a particular party’s representations to be present throughout the making of the representation by that party. What is, however, essential, is that all Board members involved in making the decision should be adequately informed of the contents of such representations by the time that they come to deliberate and decide upon them. Where there are Board members who take part in the deliberations and decision who have not personally heard the whole of the representation in question, it will be necessary for the Board to demonstrate by appropriate evidence that such members have been made aware of the contents of the representation.

[132] … However, the minutes dealing with the deliberation session on 1 June 2011 do not state that Mr Li took no part in the deliberations and decision making process, and it is not possible to say from the minutes whether or not he did, as (with the exception of office holders, such as the vice-chairman, and official members) members who raise points or comments for discussion are not identified by name. We must therefore proceed on the basis that he did, or at least that it is not shown that he did not...

[134] On the evidence available, therefore, it does not seem to us to be possible to say that all members of the Board who participated in the decision making process in respect of OGL’s representations had heard or were otherwise adequately apprised of those representations. In this respect, therefore, the process for the consideration of OGL’s representations was, in our view, procedurally unfair, and the decisions reached as a result of that process are accordingly liable to be quashed on this basis also.

68.  Leave to appeal to the Court of Final Appeal against the above determinations of the Court of Appeal was refused by the Appeal Committee of the Court of Final Appeal in FAMV 17 and 28-31 of 2015 (18 November 2015).

69.  It would appear from the decisions of the Court of Appeal in Hysan and Oriental Generation that there is no strict requirement that all members of the TPB who participated in the decision-making process must be present throughout the representation hearing, provided that those who were absent during a part of the representative hearing had been fully apprised of the evidence and representations presented while they were absent before they participated in the deliberation process.

70.  In the present case, there is no evidence to show that Miss Anita Ma was apprised of the oral representations made on behalf of the Applicant in her absence at the October Meeting.  Equally, there is no evidence to show that Mr Timothy Ma was apprised of what was said during the period of time when he was absent from the October Meeting.

71.  Again, I consider that I am bound by the decisions of the Court of Appeal in Hysan and Oriental Generation to hold that the TPB’s decision to reject the Applicant’s Representation No 9 is tainted by procedural unfairness.

GROUND 2: FAILURE TO HONOUR LEGITIMATE EXPECTATION

72.  The Applicant relies on both “substantive” and “procedural” legitimate expectation.  In so far as substantive legitimate expectation is concerned, the Applicant argues that it has the following expectation:-

(1) there would be no building height restriction at the Site (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 plot ratio restriction based on the “special circumstances” of the Site);

(2) the building height restriction at the Site would be no less than 169mPD at the Site (by reason of the TPB’s approval of Applications 127, 197, 241 and 298); and

(3) the Applicant can proceed with the proposed development under Application 298 and the TPB would not take steps to affect, jeopardize or frustrate it (by reason of the TPB’s approval of the same).

See paragraph C.4 of Ms Eu’s Supplemental Skeleton Submissions dated 27 February 2018.

73.  There are three well established principles which are relevant to a consideration of the Applicant’s complaints based on legitimate expectation.  First, generally speaking, any representation relied upon to support a legitimate expectation must be “clear and unambiguous”. Second, to qualify as a legitimate expectation, it must be objectively reasonable and legitimate; in particular, “an expectation of a benefit which cannot legally be accorded … is not a legitimate expectation”.  Third, a legitimate expectation will not be given effect when doing so means that the decision-maker must act contrary to his legal duties or would have to exercise his statutory discretion in a way which undermines the relevant statutory purpose. See Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1, at paragraphs 101, 103-104, 112 and 360.

74.  In relation to (1) above, the Applicant has not been able to identify any clear or unambiguous representation made by the Government or TPB that there would be no building height restriction at the Site.  An examination of the circumstances leading to the Land Exchange Agreement in 1990 and the TPB’s decision to remove the plot ratio restriction of 9.5 at the Site by gazetting OZP 8 on 3 July 1992 shows clearly that the parties at that time were concerned with the Applicant’s objection to the imposition of the plot ratio restriction of 9.5 at the Site and not with any building height restriction which might be imposed at the Site.

75.  In relation to (2) above, as submitted by Mr Ho which I consider to be correct, the TPB’s approval of Applications 127, 197, 241 and 298 was, in each instance, an approval of a specific development scheme incorporating a whole host of parameters including building height, site coverage, plot ratio, number of floors of the proposed building(s), provision of parking and loading spaces, etc.  It is, in my view, wrong in principle to permit the Applicant to isolate one particular parameter (in this case, a building height of 169mPD) out of a whole host of parameters included in a previously approved development scheme and contend that it has a stand-alone legitimate expectation in respect of that parameter which it should be permitted to incorporate in any development scheme at the Site which it may wish to pursue in future.  Subject to the discussion in paragraph 76 below, the Applicant would at most have a legitimate expectation that it would be allowed to pursue the specific development scheme which has been approved by the TPB.

76.  In relation to (3) above, any legitimate expectation arising from the approval of a specific development scheme by the TPB must be subject to two inherent limitations: (i) the lawful exercise of the TPB’s powers in furtherance of its on-going statutory functions and duties to prepare and amend plans to promote “the health, safety, convenience and general welfare of the community” under Section 3(1) of the TPO, and (ii) the limit of the TPB’s powers such that, for example, it would not be able to control the BA’s exercise of his statutory discretion under the BO or give any assurance that the BA would exercise his discretion in any particular way or manner.  While the Applicant can legitimately expect that the TPB would act in accordance with its published policies (including Practice Note No 3 mentioned above), I do not consider that the Applicant is entitled to any legitimate expectation that it “can proceed with the Approved Scheme and the TPB would not take steps to affect, jeopardize or frustrate the Approved Scheme” in the general or unqualified terms contended for.

77.  In relation to procedural legitimate expectation, the Applicant argues that it has a legitimate expectation that the TPB would not circumvent the MLP process and directly impose a building height restriction at the Site by means of amending an existing OZP.  As earlier mentioned, the TPB may prohibit the undertaking of any building works at a CDA except with its permission, which permission may be granted by reference to a plan approved by the TPB under Section 4A(1)(b) of the TPO.  According to Ms Eu, “the Applicant is entitled to expect an opportunity to be heard before disapproval of any particular BHR for any building on the CDA” via the MLP process (see paragraph E.10 of Ms Eu’s original Skeleton Submissions dated 27 April 2015).

78.  In my view, the Applicant’s argument conflates or confuses two different powers of the TPB, namely, (i) the preparation of draft plans under Section 3, and (ii) the approval of MLPs under Section 4A of the TPO.  While the exercise of such powers or functions may, in relation to a particular site, being about the same effect or consequence, these powers are separate and may be exercised in parallel at any particular time.  The exercise of the power to prepare a draft plan under Section 3 relates, generally speaking, 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, whereas the exercise of the power to approve a MLP under Section 4A(1) is normally in the context of a specific application for undertaking building works in a site or sites falling within a CDA and such power is exercised to give effect to the planning intention behind the designation of the CDA, namely, to facilitate urban restructuring and to phase out incompatible development and non-conforming uses (see paragraphs 1.1 and 3.1 of Town Planning Board Guidelines for Designation of “Comprehensive Development Area” (“CDA”) Zones and Monitoring the Progress of “CDA” Developments dated May 1999).  I see no reason why the existence of the power by the TPB to approve a MLP which may be submitted by an applicant for undertaking building works at a site zoned “CDA” under Section 4A(1) should preclude the exercise its power to prepare a draft plan under Section 3 affecting the whole CDA (and possibly other areas).

79.  Since I do not consider the legitimate expectation contended for by the Applicant to be well-founded, it is not necessary for me to consider whether there has been any failure to honour such expectation, or whether such failure can be justified.

GROUND 3: IRRATIONALITY – OUT OF CONTEXT

80.  In paragraph (c) of the Decision Letter, it is stated that “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”.

81.  The Applicant complains that it is irrational for the TPB to take the view that permitting a building with a height of 169mPD to be erected on the Site would be “out of context”.  In support of this ground of judicial review, the Applicant takes issue with the TPB on a number of matters, including:-

(1) the arbitrary exclusion from consideration of two nearby buildings called “Apex” and “Yi Fung Court” with building heights of 188mPD and 223.7mPD respectively;

(2) wrongly comparing the absolute building height of 107m allowable at the Site with the absolute building height of Yi Fung Court of about 114m instead of considering their respective heights above the principal datum (mPD);

(3) the division of the Area covered by OZP26 into 6 sub-areas for no obvious reasons;

(4) reliance on an ill-defined Stepped Building Height Concept; and

(5) taking into account only some existing buildings and excluding “relatively tall developments” mentioned in paragraph 4.7.2 of MPC Paper No 6/12 when setting the overall building height profile for the Area.

82.  As a general comment on this ground of judicial review, it is important to recognize that questions such as whether a building or proposed building is in harmony or “out of context” with other buildings in the neighbourhood (in terms of building height or other physical features), what type of buildings and which buildings in the neighbourhood should be taken into account for the purpose of such evaluation, whether and how an area under study should be divided into sub-areas for the purpose of setting building height restrictions, and what building height restrictions should be imposed on the sub-areas, etc are matters involving broad planning considerations and aesthetic judgment.  Generally speaking, the TPB is in a much better position than the court to assess and balance such considerations and exercise such judgment.  Accordingly, it is well established that the court must accord a wide margin of appreciation to the TPB in its decision on the permissible building height at any particular site and should not interfere in such decision on Wednesbury unreasonableness ground save in a compelling case.

83.  As mentioned by Reyes J in Hysan [2012] 5 HKC 432, at paragraphs 55 and 139, “[p]lanning 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”, and restrictions are generally imposed in a “rough-and-ready manner”.

84.  In relation to the specific matter of building height restriction, Reyes J stated in Oriental Generation [2012] 3 HKC 369 the following:-

[49] The Stepped Building Height Concept which the Board has endeavoured to apply can never be a matter of exact science. By its nature, the concept involves subjective evaluations of what are appropriate building heights as one progresses eastwards and northwards over bands of commercial and residential properties from the KBBA to the Jordan Valley ridgeline.

[50] Different people may reasonably disagree over whether a particular band should have a somewhat higher or lower height restriction. Different people may reasonably disagree over whether a building B of height x within a given distance from site A means that one should permit buildings in A to be of height x. Some might plausibly argue that B belongs to a different sub-area from A. Others could possibly regard B as within the same sub-area as A, but view B as a tolerable variation in an otherwise smooth progression of skyline. There are bound to be many permutations and shades of opinion.

[51] Given there will inevitably be judgment calls involved, the Court should accord the Board a wide margin of deference in its decisions as to building height. Lacking expertise in town-planning, the Court should hesitate to substitute its own opinions as to appropriate height for those of the Board. The Court should only interfere if there is compelling reason to do so.

85.  The above statements of principle by Reyes J were expressly approved by the Court of Appeal in Hysan, at paragraph 135.  And in Oriental Generation, the Court of Appeal further stated as follows:-

[77] Mr Pleming accepted that the Board has the power to impose building height restrictions in a broad-brush manner for an area or zone and that the stepped height building concept can be one such example/attempt. Mr Pleming however complained, as was the case before the Judge, that the Board has irrationally applied the concept with random building heights. More specifically, Mr Pleming submitted that if as found by the Judge, the concept is for aesthetic reasons, then all buildings must be assessed from the same level for any aesthetic stepping to make sense. He also referred to the fact that within the Site’s vicinity, the Government has approved the building of the Choi Tak Estate for public housing with 174mPD (41 storeys) and a nearby private housing development, 8 Clear Water Bay Road, with 184.3mPD (56 storeys).

[78]     [Reyes J] rejected OGL’s objections thus:

“47 Ms Audrey Eu SC (appearing for [OGL]) submits that the Board’s justifications for the 130 mPD BHR are arbitrary given that the nearby Choi Tak Estate and 8 Clear Water Bay Road are significantly higher.

48 I am unable to accept this as a basis for striking down the BHR.

…

52 Here the Board was plainly aware of the existence of Choi Tak Estate and 8 Clear Water Bay Road near to the KTM site. The Board fully realised that those developments were taller than 130 mPD. It seems to me that it was open to the Board to distinguish the Choi Tak Estate and 8 Clear Water Bay Road situations, because of the presence of medium and high‑rise buildings in their immediate vicinity. I see nothing outlandish or glaring to criticise in the Board’s decision in its treatment of Choi Tak Estate and 8 Clear Water Bay Road.

53 Ms Eu then suggests that the Board has applied the Stepped Building Height Concept in an irrational manner by determining bands of ever increasing building height from north-west to south-east, instead of from west to east…

…

56 This seems to be largely a matter of aesthetic judgment, so that the Court should be reluctant to interfere.  At most, there are only subjective differences of opinion.  On the application of the Stepped Building Height Concept, I can find no manifest unreasonableness or arbitrariness.” 

[79] In our view, the Judge’s reasoning is unassailable. We agree with him entirely.

86.  Applying above principles to the Applicant’s specific complaints under this ground, my views are as follows:-

(1) In respect of the complaint referred to in paragraph 81(1) above that the TPB arbitrarily excludes from consideration two taller buildings in the neighbourhood of the Site, namely, Apex and Yi Fung Court, it is, I consider, essentially a matter for the TPB to decide in its broad planning judgment whether they should or should not be taken as references for the purpose of considering whether any and if so what building height restriction should be imposed at the Site.  In so far as the Apex is concerned, it stands on a site zoned “Commercial (2)”.  The TPB considers that it is different from the subject CDA zone in terms of land use and development density and therefore should not be taken as a reference (see sub-paragraph (f) of the Decision Letter and paragraph 5.3(c) of TPB Paper No 9206).  In so far as Yi Fung Court is concerned, it is a residential building on a site zoned R(A) about 900m away from the Site and stands on a higher elevation abutting the foothill at the eastern fringe of the Eastern Sub-Area (see paragraphs 4.8.2 and 4.8.12 of MPC Paper No 6/12, paragraph 54 of the Affidavit of Ms Ophelia Wong filed on 3 June 2013, and paragraph 57 of the Affirmation of Mr Wong Wai Shun filed on 3 June 2013).  It is likewise a matter for the TPB to decide whether, in view of these characteristics, Yi Fung Court should be taken as a reference.

(2) In respect of the complaint referred to in paragraph 81(2) above that the TPB should not compare the absolute building height of 107m allowable at the Site with the absolute building height of Yi Fung Court of about 114m but should instead consider their respective heights above the principal datum, it seems to me that the TPB is entitled to take into account the natural topography of the Eastern Sub-Area, in particular the ascending terrain towards the north-eastern, eastern and south-eastern sides of that sub-area (see paragraphs 4.1.5 and 4.1.6 of MPC Paper No 6/12), as well as the fact that Yi Fung Court stands, as earlier mentioned, on a site at a higher elevation abutting the foothill at the eastern fringe of the Eastern Sub-Area. I do not consider it to be irrational for the TPB to take into account the different elevations of the two sites in coming to the view that Yi Fung Court should not be used for the purpose of comparison when setting the building height restriction at the Site.

(3) In respect of the complaint referred to in paragraph 81(3) above relating to the sub-division of the Area covered by OZP26 into 6 sub-areas, such sub-division are based on the topography, local character, land uses, existing building heights and street patterns (see paragraph 4.1.2 of MPC Paper No 6/12).  While one may disagree with the manner in which the Area has been divided into the 6 sub-areas for town planning purposes, it cannot be said that it has been done for no obvious reasons.

(4) In respect of the complaint referred to in paragraph 81(4) above that the Stepped Building Height Concept relied on by the TPB is ill-defined, it is important to appreciate that the Stepped Building Height Concept is not a precise mathematical or scientific principle or formula.  It is, as explained in paragraphs 4.7.1 to 4.7.4 of MPC Paper No 6/12, a concept based on the natural topography of the Area and adopted to exemplify the valley-like terrain of the Area, 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.  In short, the Stepped Building Height Concept is a town planning concept which, I consider, the TPB is entitled to adopt in its broad planning judgment.

(5) Lastly, in respect of the complaint referred to in paragraph 81(5) above that the TPB wrongly takes into account only some existing buildings and excludes relatively tall developments (namely, Metroplaza of about 173.4mPD and Kowloon Commerce Centre of about 150mPD) when setting the overall building height profile for the Area, the rationale for adopting such approach is explained in paragraph 4.7.2 of MPC Paper No 6/12, namely, “height bands which commensurate with the planning intention of various land uses as well as taking into consideration the majority of the existing buildings/committed developments is adopted, except for the relatively tall developments of Metroplaza (about 173.4mPD) and Kowloon Commerce Centre (about 150mPD) where their existing building heights are respected and incorporated into the height band with a view to reinforcing the twin-nodal development pattern”.  In this regard, it should be noted that Metroplaza and Kowloon Commerce Centre, both situated in the Central Sub-Area which is urban core of Kwai Chung, are the tallest buildings in that area forming the two “nodal foci” of urban developments around them (see paragraphs 4.1.3 and 4.8.7 to 4.8.10 of MPC Paper No 6/12).  Again, I do not consider the approach adopted by the TPB to be unreasonable.

87.  In all, I do not accept the Applicant’s complaint of “irrationality – out of context” under Ground 3.

GROUND 4: IRRATIONALITY – AIR VENTILATION ASSESSMENT

88.  Under the ground of “irrationality – air ventilation assessment”, the Applicant complains that the air ventilation assessment by expert evaluation conducted by ENVIRON Hong Kong Limited, whose report dated March 2012 (“the ENVIRON Report”) was annexed to the MPC Paper No 3/12 and considered by the Metro Planning Committee at the meeting held on 30 March 2012, was flawed because (i) it was directed at the air ventilation scenario involving a building height restriction of 120mPD at the site, and (ii) it did not consider the air ventilation position were the building height restriction to be 169mPD, as the Applicant had proposed.

89.  In relation to the assessment actually carried out by ENVIRON, the Applicant also complains that ENVIRON assumes, in its report, that the Site has a “committed development” with a building height of 120mPD and a “building-to-building width [of] over 40m” from “an industrial building” at the “opposite side of Cheung Wing Road”, but (i) there is no committed development scheme with a building height of 120mPD at the Site and (ii) there is no information in the ENVIRON Report as to the design of the 120mPD scheme and how it calculates the said width of over 40m.  According to the Applicant, ENVIRON should, instead, have tested the Applicant’s scheme with a building height of 169mPD as it is committed and has precise building parameters (see paragraph G.2 of Ms Eu’s original Skeleton Submissions dated 27 April 2015).

90.  Mr Ho’s answer to this ground of judicial review, which I consider to be correct, is that :-

(1) The 120mPD BHR was primarily set by reference to the TPB’s assessment of the area in terms of the overall building height pattern, topography, local character and street patterns.

(2) The TPB’s assessment was that the Applicant’s proposed scheme with a building height of 169mPD at the Site was simply unacceptable because a building of that height would be out of context relative to the Site’s surroundings.  This basic problem would remain regardless of whether or not a building with a height of 169mPD at the Site would pose an additional problem in terms of air ventilation.

(3) The relevance of the air ventilation assessment was that, having provisionally determined that a 120mPD BHR was appropriate, the TPB went on to consider whether allowing buildings to be erected up to that height would have an excessively adverse impact upon the air ventilation of the area.  Had the TPB considered that even a 120mPD BHR would result in an unacceptable air ventilation scenario, the TPB might have considered further tightening the building height restriction.

91.  That air ventilation consideration was not the reason for imposing the 120mPD BHR is clear from the Decision Letter itself. In paragraph (a) of that letter, the TPB stated that, in formulating the building height restrictions for the Area, all relevant factors including “… the wind performance of the existing condition and the recommendations of the Air Ventilation Assessment by Expert Evaluation” had been taken into consideration.  As for the specific reasons for imposing the 120mPD BHR at the Site, they were set out in paragraph (c) of the letter which I shall not repeat here.

92.  Neither was air ventilation consideration the reason for not relaxing the building height restriction at the Site to 169mPD. In paragraph (c) of the Decision Letter, the TPB stated that “[d]eletion 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”.

93.  It seems clear that what happened was that the TPB, having determined, provisionally, that a building height restriction of 120mPD should be imposed at the Site, an air ventilation assessment, based on an “initial planned scenario” which assumed, inter alia, that buildings up to that height would be erected on the Site, was carried out by ENVIRON to identify the major problem areas and make recommendations for improvement of the initial planned scenario from an air ventilation standpoint and for further study to be carried out.  That being the purpose of the air ventilation assessment, there was no point in carrying out an air ventilation assessment based on the Applicant’s proposed scheme with a building height of 169mPD at the Site.

94.  In so far as the Applicant’s complaint relates to the basic parameters of the 120mPD building scheme at the Site adopted by ENVIRON for the purpose of carrying out its air ventilation assessment, those parameters were part of an “initial planned scenario” which, by definition, had to be based on certain assumptions (see paragraphs 1.2.1, 4.1.7 and 4.1.20 of, and Figure 22 in, the ENVIRON Report).  There is no ground, or sufficient ground, to show that the assumed parameters used by ENVIRON are unreasonable.

95.  In all, I do not accept the Applicant’s complaint of irrationality in relation to air ventilation assessment.

GROUND 5: IRRATIONALITY – VISUAL ASSESSMENT

96.  The Applicant raises two major complaints under this ground:-

(1) although the TPB relies on the Planning Department’s Urban Design Appraisal (“UDA”) to formulate the 120mPD BHR, there is no mention of the Site in the UDA; and

(2) the TPB’s selection of Shek Yam Lei Muk Road Park as a local vantage point is not backed by public consultation as required by paragraph 9.1.6 of the study on the Urban Design Guidelines for Hong Kong in 2003 (“the UDG Study”), and amounts to a “random or arbitrary” choice as held by the Court of Appeal in Oriental Generation, at paragraphs 85 to 86.

97.  In respect of the first complaint, although the UDA does not contain a specific visual assessment of the Site by reference to different possible building height restrictions, it should be noted that the main objective of the UDA is to analyse the key spatial and visual attributes that define and shape the whole Kwai Chung Planning Scheme Area (covered by OZP 26), provide principles and considerations for guiding the formulation of building height restrictions from urban design perspectives, and assess the visual impacts of the proposed building height restrictions (see paragraph 1.2 of the UDA).  The purpose of the UDA is not to micro-analyse each and every site within the Area and determine the visual impact of different possible building height restrictions at each and every such site.  It is, in my view, nothing to the point that there is no specific mention of the Site in the UDA. Furthermore, the UDA has evaluated the visual impact on the business/industrial buildings along Wo Yi Hop Road as viewed from Shek Yam Lei Muk Road Park based on the assumption of a 120mPD development at the Site (see paragraph 7.7 of the UDA and Plan 8J attached to MPC Paper No 6/12). The following is stated in paragraph 7.7 of the UDA:-

“The view to the business/industrial buildings along Wo Yi Hop Road from Shek Yam Lei Muk Road Park which is a popular park in the Eastern Sub-area is shown on Plan 8J of the Paper. While most of these existing buildings are medium-rise between 10 to 25 storeys, excessively tall buildings similar to Asia Trade Centre (currently at 36 storeys/181mPD) may proliferate upon redevelopment without BH control, resulting in unfavourable visual and air ventilation condition. The proposed BH restriction of 130mPD for this building cluster will help maintain a visually congruous mass with the surroundings.”

98.  The view as expressed in this paragraph cannot be said to be unreasonable in the Wednesbury sense.  Allowing a development of 169mPD to be erected on the Site could lead to precisely what is considered to be objectionable, ie proliferation of excessively tall buildings which are not congruent with the building height profile of most of the buildings in the surrounding areas.

99.  As for the choice of Shek Yam Lei Muk Road Park as a local vantage point, it is made because the park is a popular park at the Eastern Sub-Area where the Wo Yi Hop Road business/industrial area is visible (see paragraph 78 of Mr Chan Wai Shun’s Affirmation filed on 3 June 2013).  The choice is consistent with paragraph 4.5 of Town Planning Board Guidelines TPB PG-No 41, which states as follows:-

“Visual impact should take into account views from key strategic and popular local vantage points, as well as local visual impacts on the adjacent neighbourhood area… In the interest of the public, it is far more important to protect public views, particularly those easily accessible and popular to the public or tourists. VIA should primarily assess the impact on sensitive public viewers from the most affected viewing points. The viewing points could be kinetic or static. They include key pedestrian nodes, popular areas used by the public or tourists for outdoor activities, recreation, rest, sitting-out, leisure, walking, sight-seeing, and prominent travel routes where travellers’ visual attention may be caught by the proposed development. Viewing points should be at human eye level for a realistic presentation of views.”

100.  Neither paragraph 9.1.6 of the UDG Study nor the judgment of the Court of Appeal in Oriental Generation should, in my view, be read as laying down a principle of law that a public consultation must be carried out in every case before the TPB can adopt a local vantage point for the purpose of a visual assessment, or that a local vantage point must be “agreed” before it could be used.  In this regard, it should be noted that:-

(1) Paragraph 9.1.6 of the UDG Study states that three criteria should be applied to identify the significance that should be attached to a specific viewing point, namely, (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, and (iii) it should be “agreed” that it is important to have a view from the viewpoint to the object.  Paragraph 9.1.7 states that 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 that point.  Paragraph 9.1.8 goes on to state that while one viewpoint may be considered of greater importance, it is also important to identify other, publicly accessible viewpoints, preferably from different directions.  In my view, the UDG Study does not preclude the adoption of other publicly accessible viewing points which do not satisfy the three criteria mentioned in paragraph 9.1.6.

(2) In Oriental Generation, the Court of Appeal considered the choice of a local view corridor near Choi Ying Estate for the ridgelines of Lion Rock to be arbitrary on the special facts of that case (see paragraphs 87 and 88 of the judgment of the Court of Appeal).  It would, in my view, be wrong to elevate the particular decision in that case into a rigid statement of law or principle 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.

101.  In the present case, the adoption of Shek Yam Lei Muk Road Park as a local viewing point by reason of its popularity in the Eastern Sub-Area cannot, in my view, be said to be unreasonable in the public law sense.

102.  In all, I do not accept the Applicant’s complaint of “irrationality – visual assessment” under Ground 5.

GROUND 8: PROCEDURAL IMPROPRIETY – INADEQUATE REASONS

103.  Under this ground, the Applicant complains that:-

(1) The reasons given by the TPB are identical (or essentially identical) to those given by the Planning Department in TPB Paper No 9206 for not supporting the Applicant’s Representation No 9 before the October Meeting.

(2) The reasons given by the TPB for the Decision are extremely brief and did not deal with specific arguments put forward by the Applicant.  In particular, it is said that in the deliberation session there was no mention of the Applicant’s visual impact assessment and why it was not accepted.  Further, there was no reference to the fact that the Site was not even discussed in the Urban Design Appraisal (“UDA”).  Yet, in the reasons for the Decision, the TPB rejected the Applicant’s visual impact assessment and accepted the UDA.

See paragraphs I.1 and I.4 of Ms Eu’s original Skeleton Submissions dated 27 April 2015.

104.  In both Hysan (at paragraph 198) and Oriental Generation (at paragraph 150), the Court of Appeal considered that the mere reproduction by the TPB of the same reasons that had been given by the Planning Department for not supporting or upholding a representation prior to the actual meeting did not of itself prove that the TPB failed to properly or independently address its mind to the questions before it, and in particular the representations that had been made to it.  However, it is a relevant matter to be taken into account on the overall fairness of the process.

105.  In Hysan, the applicant put in a large volume of materials at the TPB meeting (paragraphs 165 and 187), and there was no discussion by the members of the TPB of the additional materials tabled and presentations made at the meeting (paragraph 202).  There was also no evidence in the reasons given by the TPB to dispel the doubt as to whether the members had properly considered the Hysan materials tabled at the meeting (paragraph 203).  The Court of Appeal concluded that the Hysan materials tabled at the meeting had not received proper consideration before the TPB made the decision to reject Hysan’s representation (paragraph 204).  In coming to that conclusion, the Court of Appeal took into account two significant factors, namely, (i) the large volume of materials tabled by Hysan only at the meeting, which meant that the members of the TPB had no opportunity to consider them prior to the meeting, and (ii) the length and complexity of the meeting.  These factors are absent in the present case.

106.  On the other hand, in Oriental Generation, although the TPB also adopted wholesale the reasons given by the Planning Department prior to the meeting, the Court of Appeal concluded, by reference to the minutes of the meeting, that the TPB had given independent and genuine consideration to the applicant’s representations before coming to its decision (paragraph 151).

107.  In the present case, there is evidence that the members of the TPB did consider the Applicant’s materials and representations at the October Hearing, both during (i) the presentation and question session, as shown by the interaction between the Chairman/members of the TPB and the representatives of the Applicant (see paragraphs 121, 122, 123, 127, 128, 129, 130, 131, 132 and 134 of the minutes of the October Meeting), and (ii) the deliberation session, as shown by the questions raised by the Chairman/members of the TPB (see paragraphs 141 to 146 of the minutes of the October Meeting).  The whole meeting took place in the afternoon of 12 October 2012 and lasted less than 3 hours.  Further, at paragraph 148 of the minutes of the October Meeting, it is stated that “Members then went through the reasons for not upholding the representation as stated in paragraph 8 of the Paper and considered that they were appropriate”.  This indicates that the members of the TPB had given some thoughts to the appropriateness of the Planning Department’s reasons for not upholding the Applicant’s Representation No 9 before those reasons were adopted.

108.  In relation to the complaint that in the deliberation session, there was no mention of the Applicant’s visual impact assessment and why it was not accepted, it is of note that the Chairman expressly raised the issue of visual impact during the presentation and question session and sought the Planning Department’s response to the point raised by the Applicant that “the BH profile was an aerial view and could not be perceived by people at street level”.  Mr Wilson Chan, District Planning Officer/Tsuen Wan & West Kowloon of the Planning Department, responded to the Chairman’s query, and Mr Christopher Foot of ADI (the Applicant’s Visual Impact Consultant) was given an opportunity to comment on Mr Wilson Chan’s response (see paragraphs 133 and 134 of the minutes of the October Meeting). These exchanges must be read in the context of Mr Foot having made a representation on the issue of visual impact in the course of the presentation and question session (see pages 118 to 119 of the minutes of the October Meeting).  Further, ADI’s Visual Impact Assessment Report dated 27 October 2011 was annexed to the Applicant’s Representation Statement dated June 2012 and was therefore available to the members prior to the October Meeting.  In these circumstances, I do not consider the mere fact that there was no express mention of the Applicant’s visual impact assessment during the deliberation session shows that it was not considered by the members of the TPB.  The reasons for not accepting the Applicant’s visual impact assessment were set out in sub-paragraph (h) of the Decision Letter.

109.  In relation to the complaint that there was no reference to the fact that the Site was not even discussed in the UDA, I repeat the analysis in paragraph 97 above.

110.  In all, I consider that the materials before the court show that the members of the TPB did give independent and genuine consideration to the Applicant’s representation, including the submissions made on behalf of the Applicant at the October Meeting, and there is no sufficient basis to challenge the Decision under the ground of “procedural impropriety – inadequate reasons”.

GROUND 9: VIOLATION OF BASIC LAW – PROPORTIONALITY

111.  Ms Eu argues, in reliance upon the judgment of the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, that the imposition of the 120mPD BHR infringes the Applicant’s property rights under Articles 6 and 105 of the Basic Law because it fails the last 2 steps of the proportionality analysis.

112.  In respect of the third step, the proper threshold question is whether the imposition of the building height restriction at the Site is “manifestly without reasonably foundation”, and not whether it is “no more than necessary” as suggested by Ms Eu (see the CFA’s judgment in Hysan, at paragraphs 129 and 142).  The threshold is a very high one.  As stated by Ribeiro PJ at paragraph 142:-

“In general terms, where the Board reaches decisions which are not flawed on traditional judicially reviewable grounds, any imposed restrictions which encroach upon a landowner’s property rights should be subject to constitutional review applying the ‘manifestly without reasonable foundation’ standard. It is considered to be highly unlikely that Board decisions imposing planning restrictions arrived at lawfully and in conformity with the principles of traditional judicial review, would be susceptible to constitutional review unless the measures are exceptionally unreasonable” [emphasis added].

113.  In this case, the purpose of imposing the building height restriction at the Site by the TPB is, as stated in sub-paragraph (c) the Decision Letter, “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”.  I am unable to see how it can be said that the measure adopted is manifestly without reasonable foundation, or “exceptionally unreasonable”.

114.  In respect of the fourth step, the relevant question is “whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual” (see the CFA’s judgment in Hysan, at paragraph 135).  The threshold for finding that a governmental measure pursued in the interest of the society as a whole fails the fourth step of the proportionality analysis is likewise a high one.  As stated by Ribeiro PJ, at paragraph 73:-

“… in the great majority of cases, its application would not invalidate a restriction which has satisfied the requirements of the first three stages of the inquiry… where the law passes the first three tests, it would be unlikely to fail the test of proportionality ‘stricto sensu’ (in the narrow, overall sense) at the fourth stage. But one may exceptionally be faced with a law whose content is such that its application produces extremely unbalanced and unfair results, oppressively imposing excessive burdens on the individuals affected” [emphasis added].

115.  Whether a “reasonable balance” has been struck in any given case is, ultimately, a “value judgment” which the court has to make (see the CFA’s judgment in Hysan, at paragraph 78).  In this regard, it is of relevance that the imposition of the 120mPD BHR would not diminish the overall development intensity of the Site, in the sense that the Applicant can still pursue developments up to the maximum plot ratio of 6.36.  On the other hand, the societal interest in imposing the building height control at the Site for the reasons given in sub-paragraph (c) of the Decision Letter is, I consider, a matter of considerable importance from the overall urban planning perspective.  For my part, I have little difficulty in coming to the conclusion that the pursuit of the societal interest cannot be said to inflict an unacceptably harsh burden on the Applicant in the present case.

DISPOSITION

116.  In relation to HCAL 9/2013, I make an order of certiori to quash the Decision and remit the Applicant’s Representation No 9 to the TPB for fresh consideration in accordance with this judgment.  Having regard to the issues which the Applicant has succeeded and those which it has failed, the time spent on the various issues, and the outcome of the application, I make an order that the TPB shall pay the Applicant 70% of its costs incurred in this application, including all costs reserved, to be taxed if not agreed with certificate for two counsel.

117.  In relation to HCAL 91/2014 and HCAL 288/2018, what (if any) substantive relief should be granted in view of the findings in this judgment may be open to argument.  I shall leave it to the parties to agree on the appropriate form of the order, including the order as to costs, that should be made to give effect to this judgment, with liberty to the parties to apply for further directions if necessary.

118.  Lastly, it remains for me to thank counsel for their assistance rendered to the court.