INTERNATIONAL TRADER LTD v. TOWN PLANNING APPEAL BOARD

HCAL 13/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 13 OF 2007

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J U D G M E N T

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Introduction

1.  This application for judicial review concerns two Town Planning Appeal Board decisions relating to the approved Mid-Levels West Outline Zoning Plan No S/H11/13 (the OZP).

2.  The OZP covers a total land area of about 230 hectares, comprising the northern and eastern slopes of the Victoria Peak.  It is bounded by Bonham Road, Caine Road and Kennedy Road to the north, Bowen Drive to the east, Pok Fu Lam Road to the west, whilst the 200-240 metre contours and the Pok Fu Lam Country Park set the southern and south-western limits respectively.  Residential developments occupy principally the central part of the area, which can be differentiated into two main groups.  Developments to the north of Robinson Road are of relatively higher density, with shops or other non-domestic uses on the ground floor of the buildings.  The developments to the south of Robinson Road are basically residential in character and of lower density.

3.  This case concerns the residential zonings in the OZP, namely Residential (Group A), (Group B) and (Group C).  Residential (Group C) is further sub-divided into 7 sub-areas (ie R(C)1 to R(C)7).

4.  Residential (Group A) (R(A)) comprises a total area of 8.93 hectares.  This zoning includes areas for private residential developments lying mainly between Caine Road and Robinson Road.  Commercial uses such as banks, offices, restaurants and retail shops are permitted as of right in the lowest three floors of buildings.  However, commercial uses on any upper floors will require planning permission from the Town Planning Board (the Board).

5.  Residential (Group B) (R(B)) comprises a total area of 44.06 hectares.  This zoning mainly covers the area to the south of Robinson Road, between Park Road and Kotewall Road, as well as in the area around Garden Road and Magazine Gap Road.  It is intended for lower density residential developments and any commercial uses would require planning permission from the Board.  To maintain the existing housing character and to ensure that the area will not become over developed in relation to the planned road network and other infrastructure provisions, the Explanatory Statement to the approved OZP explains (para 7.3.1), developments under this zoning are subject to a maximum plot ratio of 5 or that of the existing building, whichever is the greater.

6.  Residential (Group C) comprises a total area of 13.85 hectares.  The R(C)1 to R(C)6 sub-areas cover sites roughly situated to the south of the western section of Robinson Road, Conduit Road and Po Shan Road.  Another large area zoned for this purpose is located on both sides of MacDonnell Road.  Most areas under the zone are already developed.  They consist mainly of lower density, high-class residential developments.  According to the Explanatory Statement (para 7.4.3), the R(C)1 to R(C)6 sub-areas are intended for lower density residential developments where commercial uses are not permitted unless otherwise approved by the Board under the planning permission system.  Developments within these sub-areas are subject to special control on building height and building bulk.  They are required for the purposes of “preserving public views, the existing landscape and general amenities, maintaining control on the character of existing planned developments, and restraining traffic growth which will otherwise worsen the already overloaded road network” (para 7.4.3 of the Explanatory Statement).

7.  The remaining sub-area, namely R(C)7 is the subject sub-area in this litigation.  It is necessary to quote in full the description of this sub-area in the Explanatory Statement:

“	7.4.4	The “R(C)7” sub-area covers sites in Castle Steps, Castle Lane, Prince’s Terrace, Rednaxela Terrace, Shelley Street and Leung Fai Terrace with no direct vehicular access.  Hence, loading and unloading activities, including those related to refuse collection and emergency can only take place at a rather distant location.  As such, more intensive developments on the sites would bring about inconvenience to more people.
	7.4.5	Due to the inadequate access for servicing and fire fighting, development/redevelopment in the “R(C)7” sub-area will be restricted to residential use only with a maximum plot ratio of 5 or the plot ratio of the existing building, whichever is the greater, and a maximum building height of 12 storeys or the height of the existing buildings, whichever is the greater.
	7.4.6	In the “R(C)7” sub-area, the Fire Services Department at present has no statutory authority to require the provision of emergency vehicular access to reach sites abutting stepped street nor to restrict the development intensity.  Only additional provision to enhance the fire fighting installations within the building would be required.  However, it is desirable to have emergency access to the principal face of a building.  The inaccessibility of fire engines to the sites concerned would pose a potential safety risk (apart from inconvenience) in case of emergency.
	7.4.7	Notwithstanding the above restrictions, comprehensive development/redevelopment of the “R(C)7” sub-area can still be pursued with amalgamation of sites.  Upon submission of comprehensive development/redevelop-ment proposals, favourable consideration may be given to relaxation of the development restrictions and each proposal will be considered on its own merits.”

8.  It is important to point out that these R(C)7 sites were originally zoned R(A) in the draft OZP when it was first gazetted on 14 February 1986.  They were re-zoned R(C)7 on 1 June 1995 by way of amendments.  Located to the north of Robinson Road, these R(C)7 sites are situated either within or immediately adjacent to sites zoned R(A).

9.  There are altogether four relevant R(C)7 sites.  First, Nos 4, 4A, 6 and 6A Castle Steps, comprising 740 square metres in area, the subject site.  It is owned by the applicant, a developer belonging to the Swire group of companies.  The site abuts Castle Steps, a stepped street in the Mid-Levels running from Robinson Road downhill to Seymour Road with no direct vehicular access.  The site is otherwise landlocked and is bounded by: Nos 2A to 2E Seymour Road to the north-east, Nos 25, 27 and 29 Castle Road to the north-west, and the huge Robinson Place development abutting Robinson Road to the south-west.

10.  Secondly, Nos. 4A, 10 and 12 Castle Lane, another stepped street.  Comprising 641 square metres in total area, the site is sandwiched between other R(A) sites abutting Seymour Road or Castle Road and has no direct vehicular access.

11.  Thirdly, a larger area in Prince’s Terrace and Shelley Street, comprising 3524 square metres in area.  It is again an area abutting two stepped streets (Peel Street and Shelley Street), with no direct vehicular access.

12.  Fourthly, Nos 4 and 5 Leung Fai Terrace, comprising 1128 square metres in area.  It is also a site abutting a stepped street with no direct vehicular access.

13.  The four R(C)7 sites total 6033 square metres in area.  As mentioned, they were all originally zoned R(A) but were rezoned R(C)7 in 1995.  In terms of size, the R(C)7 sub-area is less than 10% of the R(A) area.

14.  The applicant has successfully acquired the neighbouring lots to the Castle Steps site, ie the subject R(C)7 site.  In other words, the applicant has acquired Nos 2A to 2E Seymour Road as well as Nos 23, 25, 27 and 29 Castle Road, which are all R(A) sites.  Together with the Castle Steps site, the amalgamated site is about 2133 square metres in area.  It intends to redevelop the amalgamated site into a high-rise residential building.  There are various alternative redevelopment proposals.  For the purpose of this litigation, one need only focus on one particular option (Option 6a), comprising a high-rise building of 54 storeys in total (43 residential storeys) with 90 car-parking spaces for residents.

Decisions under challenge

15.  The two Town Planning Appeal Board decisions under challenge concern the applicant’s two relevant applications for relaxation of the plot ratio and height restrictions for the Castle Steps R(C)7 site pursuant to section 16 of the Town Planning Ordinance (Cap 131), so as to allow the proposed redevelopment to proceed.  It should be remembered that the R(C)7 zoning restricts the site to residential use with a maximum plot ratio of 5 (or the plot ratio of the existing building, whichever is the greater) and a maximum building height of 12 storeys (or the height of the existing building, whichever is the greater).  The applications have been rejected by both the Board and the Town Planning Appeal Board (the Appeal Board) on appeal. 

16.  The respective decisions of the Appeal Board in the two appeals, which have been heard together, are split 3:2 on one crucial issue, namely whether traffic and visual considerations are relevant or material planning considerations that should be taken into account in determining the applicant’s applications.  The majority (comprising Dr Gary William Jones Ades, Ms Sylvia Siu Wing Yee and Mr Yip Chung Yiu) takes the view that they are.  After considering the facts, the majority dismisses the appeals for traffic and visual considerations.

17.  The minority (comprising Mr Ronny Wong SC, the Chairman and Professor Lee Ngok) takes the view that neither traffic nor visual consideration is a relevant or material planning consideration for the R(C)7 site and on that basis, it is prepared to allow relaxation in terms of the proposed Option 6a.

18.  The minority takes the view that if, contrary to its view, traffic and visual considerations are relevant considerations, the applicant’s proposed redevelopment should be rejected.

19.  In essence, what divides the Appeal Board is the true planning intention of the approved OZP relating to the R(C)7 zoning.

Relevant legal principles

20.  It is common ground that the planning intention is to be ascertained from a proper construction of the approved OZP (including the Notes which form part of the plan), the Explanatory Statement (which does not form part of the plan) and the relevant factual matrix.

21.  This is a question of law.  It is therefore a question for judicial review.  The planning intention admits of only one correct answer.  It is not a question of whether the majority’s view or the minority’s view is Wednesbury unreasonable. 

22.  This approach is supported by what Sir Gerard Brennan NPJ has said in Shiu Wing Steel Ltd v Director of Environmental Protection & Airport Authority (No 2) [2006] 3 HKLRD 487, 500 to 504 (paras 23 to 30).  In particular, in para 28, his Lordship explains:

“	28.	When the court construes language which affects legal rights and duties, it is constrained to arrive at a single meaning to define those rights and duties.  That meaning may apply to one or more sets of facts (R (on the application of Goodman) v London Borough of Lewisham [2003] EWCA Civ 140 at para.8) but there can be only one meaning of the language so construed.  In R v Financial Ombusdman Service Ltd, ex p Norwich & Peterborough Building Society [2002] EWHC 2379 at paras.69-71, Ouseley J said in reference to the Banking Code:
		“	The code … is a material consideration for the Ombudsman to take into account.  If he misinterprets it, he will have failed to take it into account.  It has one meaning.  Although people may reasonably differ as to that meaning, it is for the courts to decide what that one meaning is because it is for the courts to decide whether a material consideration has been ignored. The code cannot have as many meanings as reasonable people might attribute to it, all of which have to be considered.  The code is to be applied by banks and other deposit-taking institutions; their compliance officers and customers cannot all say that their differing interpretations are right because reasonable …”
		Lord Slynn’s dictum was cited without comment by this Court in Ng Siu Tung & Others v Director of Immigration (2002) 5 HKCFAR 1 at paras. 195-196, but the distinction between meaning and application of meaning was not being drawn in that case; there the Court was concerned to discover the scope of a legitimate expectation.  Here the distinction is critical because the question whether the EIA report met the requirements of the SB and the TM depends on the meaning to be attributed to the TM and SB.”

23.  In Hong Kong, the leading authority on ascertaining the planning intention in a development permission area plan (DPA plan), or for our purposes, an OZP, is Henderson Real Estate Agency Ltd v Lo Chai Wan [1997] HKLRD 258.  There, Lord Lloyd, in delivering the majority judgment of the Privy Council, explains what material documents the court should look at in construing a plan and the consequences of misunderstanding material documents (at page 267A to E):

“	Then what about the other documents on which the Town Planning Board rely?  At this point a preliminary question arises.  The plan and the Notes attached to the plan are obviously material documents to which the Appeal Board were bound to have regard; indeed they are the most material documents in the case.  But what about the Explanatory Statement, and the subsequent guidelines?  The Explanatory Statement is expressly stated not to be part of the plan.  But it does not follow that it was not a material consideration for the Appeal Board to take into account, even though, as Mr Read, QC, for the appellants, pointed out, the Ordinance does not contain a provision, corresponding to s.72 of the Town and Country Planning Act 1990, or clause 38(2) of the new Town Planning Bill, requiring the Town Planning Board and the Appeal Board to have regard to material considerations.
	By the same token, the 1992 and 1993 guidelines are also material considerations to be taken into account.  The Appeal Board was not bound to follow the Explanatory Statement or the guidelines.  But they could not be disregarded.
	What then would be the position if, as the Town Planning Board assert, the Appeal Board misunderstood the documents?  It seems obvious that in those circumstances they would not have had proper regard for a material consideration.  The decision would be open to attack by way of judicial review.  This was the view expressed by Woolf J, as he then was, in Gransden & Co v Secretary of State for the Environment [1986] JPL 519, affirmed on appeal [1987] JPL 365.  It was a view expressed by the Court of Appeal in the present case.  Their Lordships see no reason to disagree.”

24.  And as has been pointed out by Brennan NPJ in Shiu Wing, supra, at page 502, para 26, there may be good reason for departing from a non-statutory guide (such as the Explanatory Statement to the OZP in the present case) in particular circumstances, but the repository of a power is not at liberty to ignore, depart from or qualify the content of the provisions in the guide without “cogent reasons”.  In the present case, it should be noted, neither the majority nor the minority of the Appeal Board has purported to depart from the Explanatory Statement.

25.  Mr Benjamin Yu SC, Mr Anthony Ismail with him, appearing for the applicant, has also pointed out, by reference to Lord Steyn’s speech in R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956, 2958-2959 (para 5) that the starting point for the interpretation of a statute (or, for that matter, other statutory documents) is that language in all legal texts conveys meaning according to the circumstances in which it was used.  It follows that “the context must always be identified and considered before the process of construction or during it.  It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen”.

26.  In this regard, what has been said by Sir Anthony Mason NPJ in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, 606 (para 63) is also highly relevant in understanding the modern approach to statutory interpretation:

“

The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise (Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at p.154B-C; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at p.315 per Mason J (dissenting, but not on this point); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384).  Nevertheless it is generally accepted that the principles of common law interpretation do not allow a court to attribute to a statutory provision a meaning which the language, understood in the light of its context and the statutory purpose, is incapable of bearing (R v A (No 2) [2002] 1 AC 45 at pp.67G-68H, per Lord Steyn).  A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process.  What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained.”

27.  Likewise, the Chief Justice has observed in Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1, 13 (para 28) that in interpreting a statute, the function of the courts is to ascertain the intention of the legislature as expressed in the legislation.  The statute must be considered as a whole.  Any statutory provision must be understood in its context taking in its widest sense.  In my view, the observations apply with equal force to the proper construction of the OZP in ascertaining the relevant planning intention.

28.  Bearing those general principles in mind, one turns to the OZP and the relevant factual matrix, with a view to discovering the planning intention behind the R(C)7 zoning.

OZP

29.  The first and foremost document to look at is of course the OZP itself.  Although I have, at the beginning of this judgment, set out general descriptions of the various zoned residential areas, particularly the relative locations and sizes of the R(C)7 sites to that of the R(A) area, which originally the R(C)7 sites formed part prior to 1995, there is no substitute to looking at the plan itself.  The plan strikes one that the R(C) sites, coloured yellow on the plan, are but four relatively small sites surrounded by or immediately adjacent to the R(A) sites, which are coloured pink.  In relation to the subject Castle Steps R(C)7 site, it should be noted, when looking at the OZP, that a site to the south of it, ie the Robinson Place development, is actually zoned “G/IC” – “Government, Institution or Community”.  But as is well known, the whole site has become the Robinson Place development, comprising two towers, one having 46 residential floors and the other 47 residential floors over a 6-storey podium.  For all practical purposes, one should regard the Robinson Place site as a R(A) site.  And on that footing, one can immediately see that the subject Castle Steps R(C)7 site is landlocked within a triangular R(A) area, which is bounded by Robinson Road to the south-west, Castle Road to the north and Seymour Road to the north-east.

30.  Similar observations can be made regarding the other R(C)7 sites on the plan that are coloured yellow.

31.  One asks quite naturally: What is the justification for singling out these isolated sites for “special” treatment, ie R(C)7 zoning?

32.  A more detailed examination of the plan would readily reveal that the one common feature of the R(C)7 sites is that each of them abuts one or more stepped streets with no direct vehicular access, and is otherwise landlocked.

33.  So much for the plan itself.

Notes

34.  The Notes, which form part of the statutory plan, set out, amongst other things, the permitted uses and development restrictions (if any) in the various zones.

35.  Thus for the R(A) area, there is no height or plot ratio restriction.

36.  For the R(B) sites, the plot ratio is limited to 5.  Moreover, remark (3) states that “minor” relaxation of the plot ratio restriction, “based on the merits of individual development or redevelopment proposals, may be considered” on a section 16 application under the Town Planning Ordinance.

37.  The Notes go on to deal with the R(C)1 to 6 sub-areas together.  The various sub-areas have, under the Notes, different maximum building heights or maximum plot ratios.  Again remark (3) states that “minor” relaxation of the plot ratio and building height, “based on the merits of individual development or redevelopment proposals, may be considered” on a section 16 application.

38.  The Notes then deal with the R(C)7 sub-area on its own.  In remark (1), the sub-area is restricted to a plot ratio of 5 and a building height of 12 storeys.  Remark (3) is similar in wording to the previous remarks (3) that we have seen, with the exception that the present remark (3) does not refer to “minor” relaxation but simply “relaxation”.  In other words, relaxation of the plot ratio and building height restrictions, “based on the merits of individual development or redevelopment proposals, may be considered” on a section 16 application.

39.  The contrast between “minor relaxation” in the previous remarks and simply “relaxation” in the remark relating to R(C)7 is significant.

Explanatory Statement

40.  One then turns to the Explanatory Statement, which does not form part of the statutory plan.  But as per the authorities already referred to, the Explanatory Statement is a material document to consider in ascertaining the relevant planning intention.  It is not binding on the Board, but any departure from it has to be justified by “cogent reasons”.

41.  Paragraph 4.1 of the Explanatory Statement explains that the provision for application for planning permission under section 16 of the Ordinance in the Notes “allows greater flexibility in land use planning and better control of development to meet changing needs”.

42.  It is significant to note that so far as a section 16 application is concerned, the Board may only grant permission for relaxation “to the extent shown or provided for or specified in the plan” – including the Notes.

43.  I have already described or set out the relevant provisions in paragraph 7 of the Explanatory Statement regarding the various land use zonings, including in particular those relating to R(C)7.

44.  Paragraphs 7.4.4 to 7.4.7, already extracted in full above, deal specifically with the R(C)7 sub-area.  They point out the distinguishing feature that I have already identified when dealing with the statutory plan itself, namely that the R(C) sites are all sites abutting stepped streets with no direct vehicular access.  This particular feature gives rise to difficulties relating to loading and unloading activities, including refuse collection and emergency.  “As such, more intensive developments on the sites would bring about inconvenience to more people” – as more people will be living in the redeveloped buildings with difficulties in loading/unloading activities.  That is paragraph 7.4.4.  Paragraph 7.4.5 singles out “inadequate access for servicing and fire fighting” as the reason for restricting development/redevelopment in the R(C)7 sub-area to residential use only with a maximum plot ratio of 5 and a maximum building height of 12 storeys.  That sub-paragraph does not mention any other reason for imposing the restrictions.

45.  The next sub-paragraph, ie 7.4.6, devotes itself exclusively to fire fighting requirements and the related safety risk in case of emergency.  The last sub-paragraph, 7.4.7, states that notwithstanding the restrictions identified in the previous sub-paragraphs (that is a reference to the difficulties in loading/unloading activities, inadequate access for servicing and fire fighting, as well as fire fighting requirements and potential safety risk), “comprehensive” development/redevelopment of the R(C)7 sub-area can still be pursued with amalgamation of sites.  And the sub-paragraph ends with the representation that “[u]pon submission of comprehensive development/redevelopment proposals, favourable consideration may be given to relaxation of the development restrictions and each proposal will be considered on its own merits”.  In line with the Notes, the relaxation contemplated is not qualified by the word “minor”.  Moreover, consideration of a section 16 application is qualified by the adjective “favourable”.

46.  Pausing here, whilst it is true that the Explanatory Statement does not say that traffic or visual consideration is not a relevant planning consideration, it is not difficult to grasp the primary concern, if not the complete planning intention, regarding the R(C) sub-area in the OZP from the relevant paragraphs in the Explanatory Statement, namely problems associated with the lack of direct vehicular access.

47.  One other thing to observe, relating to the Explanatory Statement, is the notable absence of any specific reference to traffic or visual concern as a justification for rezoning the sites in question from R(A) to R(C)7, or, for capping relaxation of the R(C)7 restrictions upon a section 16 application following a successful amalgamation of sites – which has the effect of providing direct vehicular access to the relevant R(C) site.  This provides a sharp contrast with the R(C)1 to R(C)6 sub-areas in relation to which “preserving public views” and “restraining traffic growth which will otherwise worsen the already overloaded road network” are specifically identified as justifications for imposing the relevant development restrictions (para 7.4.3).

48.  Moving on, in paragraph 8.3 of the Explanatory Statement, under the rubric “Communication” and sub-rubric “Hillside Escalator”, it is stated that to reduce “the volume of vehicular traffic on the already congested roads between the Mid-Levels and the Central District”, a covered hillside escalator link for pedestrian traffic has been constructed between Queen’s Road Central and Conduit Road.

49.  Paragraph 11.3, the last paragraph in the Explanatory Statement under the general rubric “Implementation”, states that planning applications to the Board will be assessed on individual merits.  “In general”, the paragraph says, “the Board’s consideration of the planning applications will take into account all relevant planning considerations which may include the departmental outline development plans/layout plans and guidelines published by the Board”.

50.  So much for the Explanatory Statement.

Stepped-street sites

51.  However, there are important documents and background pertaining to the R(C)7 zoning that must be taken into account as part of the relevant factual matrix or “context”.

52.  As mentioned, the R(C)7 sites were originally zoned R(A) in the draft OZP plan when it was gazetted in February 1986.  Such zoning meant that from a town planning point of view, there was no redevelopment restriction in terms of plot ratio or building height.  But that did not give the complete picture.  For the position was that because of the (then) requirement of the Fire Services Department that all new domestic developments should have emergency access to reach at least one major face of the proposal building for fire appliances and rescue equipment to be effectively brought into use for the purpose of fire fighting and emergency operation, access to developments in those sites abutting stepped streets was considered to be unacceptable and buildings on these sites were therefore generally restricted by the Building Authority to a maximum height of 6 storeys.  Proposed buildings exceeding the maximum height of 6 storeys would be refused by the Building Authority pursuant to section 16(1)(g) of the Buildings Ordinance (Cap 123).  At the same time, a “letter of concern” would be issued by the Fire Services Department to the developer.

Mid-Levels Moratorium

53.  This control was on top of the Mid-Levels Moratorium which dates back to 1972.  It was introduced on traffic and transport grounds.  In the light of the traffic assessment and the known extent of development then, the Moratorium was put in place to defer all further sales of Government land, and all further modifications of Government leases to permit more intensive development in the Mid-Levels area.  It applies, it should be noted, across the board and is not restricted to stepped-streets sites only.

54.  However, the Moratorium was never intended to prohibit developments/redevelopments in the Mid-Levels area, but to restrict developments/redevelopments to what is permissible under the existing leases.  As for leases that are unrestricted in terms of development rights, such as the subject Castle Steps site and the neighbouring sites comprising Swire’s amalgamated site, the Moratorium does not bite.  See the Government’s Press Release dated 14 September 2006 in response to the Ombudsman’s Direct Investigation Report on Mid-Levels Moratorium.

The Study

55.  Returning to stepped-street sites generally, by the late 1980s and early 1990s, the circumstances for control under section 16 of the Buildings Ordinance had gradually changed, as has been explained in paragraphs 2.3 and 2.4 of a Study on “Redevelopment along Stepped Streets” dated December 1991 prepared by the Planning Department (the Study):

“	2.3	However, due to current improvements in the fire fighting appliances and fire protective measures, the Fire services Department has changed its attitude towards high rise development abutting these stepped streets.  The ‘Letter of Concern’ will no longer be issued to developers regarding developments without direct vehicular access.  Instead, additional requirements to enhance the fire protective installations of the proposed building will be imposed before the issuance of a Fire Certificate.  Moreover, as residents are expected to leave the premises by themselves in case of a fire, there is no longer an absolute necessity for the rescue appliance to reach the major face of a wholly residential building in the stepped street situations.
	2.4	With the change in the policy of Fire Services Department, the original ground in invoking the Buildings Ordinance S.16(1)(g) for restricting the building height of redevelopments along stepped streets seems no longer valid. …”

56.  The Study goes on to set out the purpose of the study in the remainder of paragraph 2.4 as follows:

“

… However, although it becomes debatable whether there is still the need to control the building height/intensity of these developments on safety ground, there is a concern if Fire Services requirements should be the only consideration in determining development potential of a site in the stepped street situation.  This study is thus intended to examine if there are planning, transport, environmental or infrastructural reasons for retaining some control over the redevelopment intensity of the sites along these identified stepped streets; and if there are, to determine what level of control would be appropriate for these sites.”

57.  The Study is a very comprehensive study on those sites abutting stepped streets, which have no direct vehicular access.  Sites which have limited frontage onto streets accessible to vehicles, irrespective of the length of such frontage, have been excluded (para 3.1).  The Study is a very detailed document, which looks into various planning considerations pertaining to the development or redevelopment of the sites under study, including the Castle Steps site in question.  They include strategic planning context, local planning intentions, access to emergency vehicles, traffic and transport, water supplies, sewage and sewerage, and other environmental impact.  There is a detailed analysis of each individual study area.  The Study concludes (in Section 6) that there is a need for control mainly because of two reasons, namely safety as well as infrastructural constraints (including traffic situation): paras 6.1 and 6.3.

58.  It recommends, significantly, rezoning the relevant sites in the relevant draft OZPs as the preferred means of control, instead of the existing control measure under section 16(1)(g) of the Buildings Ordinance.

59.  It is unnecessary to set out all the relevant references to traffic as a material planning consideration in the Study in its examination of whether the subject site, or for that matter, those R(C)7 sites included in the OZP in question, should be subjected to some development/ redevelopment control.  Quite plainly, the Study considers that transport and traffic are relevant considerations, quite apart from direct vehicular access.  This is plain from, for instance, paragraphs 2.4, 3.2, 3.3, 4.1.1, 4.2.1, 4.2.2, 4.2.3, 4.2.4 and 4.4.1 to 4.4.4, the table under paragraph 5.1 pertaining to Study Area No 9 (which includes the sites in question), as well as paragraphs 6.1, 6.3, 7.4.1 to 7.4.3, 8.1.1 and 8.2.2(3).  It is crystal clear that transport and traffic, as well as other infrastructural and environmental concerns, are considerations taken into account by the Planning Department, in recommending in the Study that the relevant sites should be rezoned to restrict development/redevelopment.

60.  In particular, the relevant recommendation relating to the stepped street sites falling within the OZP in question is as follows (para 8.2.2(3)):

“

Existing level of development should be maintained as the major part of these areas have inadequate means of access; and taking into account the potential adverse impact on the local road network imposed by redevelopment to higher intensities and the inadequacy in the infrastructure to cope.  However, in order to induce some form of redevelopment but not to overload the local infrastructure, these areas are recommended to be rezoned on the respective statutory plans to residential use with a maximum building height of 7 storeys, or the existing height, whichever is the greater.”

61.  If the matter had stopped there and this had comprised the entire background to the 1995 rezoning of the relevant stepped street sites to R(C)7 sites, and if the 1995 amendments had followed entirely the recommendation made in the Study, the planning intention behind the R(C)7 sub-area would have been plain and there could not have been any possible debate on whether traffic (or for that matter, visual) concern was or was not a relevant planning consideration.  According to the Study itself, those matters must be relevant considerations.

The 1995 amendments

62.  But the twist in this case is that the recommendation in the Study was not followed entirely by the Town Planning Board which prepared the amendments to the draft OZP.  No doubt, the general approach using rezoning as the preferred means to control redevelopment of the stepped street sites was adopted by the Board.  But the precise recommendation was not.

63.  It must be remembered that under the OZP, redevelopment of the R(C)7 sites is restricted to a plot ratio of 5 and a maximum height of 12 storeys, which is much more generous than the maximum of 7 storeys (with no plot ratio) recommended in the Study.  This is a significant departure from the more stringent restriction recommended in the Study, not least because according to the Study, a material reason for the stringent restriction is that “the road networks could not cope with increase in traffic even with the implementation of all road improvement works”, “development above the committed level [ie the level recommended in the Study] would result in overloading of the road network and congestion at peak hours at certain junctions”, thus resulting in a “potential adverse impact on the local road network”: the Table under paragraph 5.1 pertaining to Study Area No 9 covering the relevant sites.  Those concerns, set out in the Study, thus explain the Study’s recommendation that even in the event of a successful amalgamation of sites for comprehensive redevelopment, only a “minor relaxation” of the restrictions or rezoning to “comprehensive development area” would be favourably considered (para 7.4.3).  In other words, even in such event, there would only be a minor relaxation of the height restriction recommended in the Study.

64.  Thus the OZP’s departure from the recommendation made in the Study is highly significant.  This is because potentially, the section 16 relaxation that may be allowed under the OZP is quite open-ended.  The relaxation is not limited to a minor one.  At least potentially, one could erect a truly high-rise building on a stepped street site provided that there has been a successful and satisfactory amalgamation with adjacent sites, overcoming the question of direct vehicular access.

65.  Taking the point a step further, the departure of the Board’s amendments to the OZP from the Study’s recommendation fundamentally begs the question as to whether the Board accepts the Study’s concern over traffic (and other general planning considerations), or put another way, whether it regards them as relevant planning considerations in considering whether to allow substantial redevelopment on the stepped street sites.

66.  Before I move on to deal with other relevant background matters subsequent to the Study, it should be pointed out that there is indeed one subtle consideration mentioned in the Study itself, which could throw light on the question under discussion.  Paragraphs 7.3.2 and 7.4.1 read:

“	7.3.2.	Notwithstanding the above merits of statutory planning control, we must not deny the fact that most infrastructural and traffic problems which support the imposition of restrictions on the statutory plans are general constraints or problems faced by the whole district.  Therefore, ‘isolated’ rezoning with stipulated restrictions is not warranted for stepped street sites which have acceptable means of access, i.e. within 30m from the nearest Fire Services appliances access, and the redevelopment of which to the maximum potential would not generate any significant gross impact on the local neighbourhood.  This is because such action may not be able to introduce any real improvement to the situation of the respective areas, nor does it appear to be equitable on the face of the statutory plan.  The introduction of any controlling measures on the development intensity in such areas should be comprehensively reviewed in the overall district context, taking into account all committed traffic and infrastructural improvement works as well as the long term development strategy for the district.  Such may be rendered in the future preparation of the respective Metroplan Development Statements with detailed studies and/or preparation of layouts to guide their future redevelopment.
	7.4.	The Preferred Option
	7.4.1.	The continuation to rely on Buildings Ordinance S.16(1)(g), despite its merits, does have limitation in effecting precise control over the development intensities of sites along stepped streets.  It is also acknowledged that redevelopment of sites in stepped street situations may have wider planning implications concerned not merely individual sites alone but the whole neighbourhood or even the entire district.  In view of this and the fact that the Town Planning Ordinance Review has suggested all planning control mechanisms to be placed under the revised Planning legislation, it is therefore recommended that the restrictions on redevelopment intensities along stepped streets should more appropriately be incorporated into the respective statutory plans where circumstances permit.  However, ‘isolated’ rezoning of sites having acceptable means of access would have to be avoided as detailed development control of these sites should be subject to comprehensive planning studies of the district under the preparation of respective Metroplan Development Statements.”

67.  In short, the Study is acutely aware of the possible criticism that may be levelled against the recommendation made in the Study that it is singling out “isolated” sites for rezoning and redevelopment restrictions by reason of problems that are not localised but rather district-wide.  Thus traffic and congestion are not problems peculiar to stepped street sites.  They are equally problems that will be aggravated by redevelopment of those sites abutting vehicular roads, such as Cairn Road, Castle Road and Seymour Road.  The Study is very careful in limiting its recommendation for rezoning to sites with no direct vehicular access.  For “stepped street sites which have acceptable means of access, i.e. within 30m from the nearest Fire Services appliances access, and the redevelopment of which to the maximum potential would not generate any significant gross impact on the local neighbourhood” (para 7.3.2), the Study does not recommend rezoning.  One of the two reasons given for that approach is that rezoning would not “appear to be equitable on the face of the statutory plan” (para 7.3.2).

68.  In other words, likes should be treated alike.  And if one looks at the statutory plan again, it is difficult to see why, if traffic is a significant concern that attracts possible rezoning to R(C)7, sites adjacent to the Castle Steps stepped street site can remain to be zoned R(A), bearing in mind that a R(A) zoning means no restriction on height or plot ratio whatsoever.  Fair treatment, in other words, is in issue.

69.  The approach adopted in the Study is to make use of the peculiar features of a stepped street site to justify the proposed restriction, namely a maximum height of 7 storeys.

70.  However, there is no express discussion in the Study on how that justification can be maintained for the Study’s further recommendation that even with a successful amalgamation of sites which results in direct vehicular access to a stepped street site, only “minor” relaxation on a section 16 application would be allowed.  For in that event, such an amalgamated site would be no different from any other site in the neighbourhood which abuts a vehicular road or has direct vehicular access, and which is allowed to keep its R(A) zoning.  There is no discussion on this aspect (ie inequality in treatment) in the Study.

71.  Mr Johnny Mok SC, Mr Valentine Yim with him, appearing for the Town Planning Board as an interested party in these proceedings, submits, in essence, that it is legitimate for the Study to take “the ground” as it is.  Given the existing congested traffic condition in the area, which is a hard fact, imposing development restrictions on the stepped street sites by reference to, amongst other things, traffic consideration, must be a legitimate zoning decision, even though the neighbouring sites, some of which have been fully redeveloped, are not likewise rezoned. 

72.  Mr Mok explains that given their own peculiar characteristics and the consequential restriction imposed by the Buildings Authority, redevelopment of the stepped street sites has generally lagged behind that in the neighbouring sites.  That is a hard fact which cannot be denied by the time of the Study.  There is no question of unfair treatment.  The stepped street sites are simply different from the neighbouring sites by the time of the Study.  There is nothing wrong therefore to treat them differently by the proposed rezoning.  Nor is there anything wrong to take into account traffic and other infrastructural considerations in determining the appropriate restrictions under the rezoning and the extent of relaxation possible.

73.  There may be some force in the argument, but the general concern of fair treatment, which is a major theme of Mr Yu’s submission, remains.  After all, many sites in the vicinity of the Castle Steps site, including those that have been acquired by Swire, have not been redeveloped.  If traffic is indeed a concern, Mr Yu submits, there is no legitimate reason for singling out the stepped street sites for rezoning.  If traffic is not a relevant consideration – at least for the time being, then the only apparent justification for singling out the stepped street sites for rezoning is the fact that they are stepped street sites with no direct vehicular access.  And if that is right, it must follow that once that feature is satisfactorily removed by the acquisition of direct vehicular access, the justification for the rezoning is, in substance, gone and fairness demands that a relevant section 16 application for relaxation of the restrictions imposed by the rezoning should be acceded to, so as to allow the site to be developed to its full potential, just like any neighbouring R(A) sites.  To do otherwise would be unequal treatment with no or no sufficient justification.  Essentially, that is Mr Yu’s argument, which is based on authorities such as So Wai Lun v HKSAR (2006) 9 HKCFAR 530, 539 (para 20) and R v Man Wai Keung (No 2) [1992] 2 HKCLR 207, 217.

74.  Mr Yu also prays in aid what the Government has said in its 2006 Press Release relating to the Mid-Levels Moratorium:

“

With regard to the role of the Town Planning Board, while it has the authority to impose plot ratio restrictions, it has to consider and seek to strike a balance between private development rights and public interest.  This is particularly important when we know for a fact that there is no provision for compensation for statutory planning restrictions under the Town Planning Ordinance except in the case of land resumption.  If more stringent planning control is imposed, it must be supported by strong justifications and relevant studies, as in the case in 1990 when a plot ratio of 5 was imposed for the “R(B)” zone.  It is, therefore, not a question of not using more stringent planning control to achieve the restriction on development intensity.”

75.  Counsel submits, in essence, that a fortiori, any imposition of planning restrictions must be done in an equitable and fair manner and any difference in treatment must be strictly justified by valid reasons.

76.  Mr Yu goes so far as to say in his submission that a decision to rezone the stepped street sites from R(A) to R(C)7 that is based on traffic consideration is liable to be judicially reviewed as being Wednesbury unreasonable.

77.  I need not, for the purposes of this litigation, determine whether Mr Yu’s position is correct.  After all, there is no application to judicially review the rezoning decision.  The purpose of my present exercise is to review the relevant factual matrix leading to the rezoning, as part of the effort to ascertain the planning intention behind the R(C)7 zoning.  To that end, I do have regard to the fact that even in the Study itself, the question of equal treatment, or put in another way, inequality in treatment, is quite plainly a relevant consideration.  And anybody reading the Study, including the Board to which the Study has been presented for consideration, must have been alive to this question of equality or inequality in treatment.

78.  It is with all this in mind that one must return to the OZP amendments, the Notes and the Explanatory Statement.  In the light of the described background, the much more generous restriction imposed in the amendments seems significant.  For it allows a maximum building height of 12 storeys (with a plot ratio of 5), which is a much more generous restriction than that recommended in the Study.  Furthermore, relaxation is open-ended and is not limited to minor ones.  At least potentially, it may allow a site to be built to its maximum potential.  Taken at the lowest, the Board quite plainly takes a different view or approach to traffic and other infrastructural considerations from the Study. 

79.  More significantly, as has been alluded to earlier, the relevant part of the Explanatory Statement dealing with the R(C)7 sub-area does not expressly mention traffic as a consideration at all.  Rather, it devotes its attention entirely to the lack of direct vehicular access, and the resulting problems in terms of loading/unloading, fire fighting, and potential safety risk (paras 7.4.4 to 7.4.7).  Nor is traffic mentioned as a consideration to take into account on a section 16 application after a successful amalgamation of sites to eliminate the direct access problem.  But not only that – in sharp contrast to paras 7.4.4 to 7.4.7, the other parts of the Explanatory Statement (such as para 7.4.3 concerning R(C)1 to R(C)6) do make express references to problems of traffic and congestion.  This makes the absence of any express reference to traffic concern in relation to the R(C)7 sub-area a particularly notable one.

80.  In those circumstances, I find Mr Mok’s main submission, ie that the planning intention behind the R(C)7 zoning in the OZP can be gathered from the Study as an important part of the factual matrix, a very dangerous proposition to accept.  Even pausing here, one can readily see that the Board apparently takes a substantially different approach to the stepped street sites from that of the Study, although at a very generalised level, the same mechanism has been employed, ie rezoning.  Put another way, one simply cannot say that because rezoning has been recommended in the Study and has been adopted by the Board in the OZP amendments, the underlying philosophy or approach must have been the same.

Swire’s objection

81.  And the matter does not stop there.  After the gazettal of the OZP amendments containing the rezoning, the Swire group lodged an objection to the rezoning of its site, the Castle Steps site.  As per standard procedure, that objection led to the preparation of a planning paper by the Planning Department, TPD Paper No 3543, dated November 1995 for the preliminary consideration of the objection by the Board in November 1995.  It set out the considerations based on which planning control on use, development intensity and building height was imposed on the stepped street sites within the draft OZP.  Four aspects were identified, namely safety, servicing, convenience and infrastructural, all relating to the lack of direct vehicular access (para 3.2(a) to (d)).  The Paper had an Appendix II, entitled “A summary of the background to and reasons for the TPB’s decision to rezone Nos 4, 4A, 6 and 6A Castle Steps from “R(A)” to “R(C)7” ”.  Suffice it to say that in the body of the Paper itself, general traffic consideration was not referred to (at least expressly) as a reason for the rezoning.  In Appendix II, the redevelopment restrictions imposed on the subject site and other stepped street sites in other districts were explained in the following terms :

“	2.1	Notwithstanding the recommendation of the ‘Study on Redevelopment along Stepped Streets’, the Board agreed that a maximum plot ratio of 5 and a maximum building height of 12 storeys or the plot ratio and building height of the existing development for stepped street areas in Sands Street be incorporated in the draft Kennedy Town and Mount Davis OZP No. S/H1/4 and its subsequent plans.  These controls are also incorporated in the draft Sai Ying Pun and Sheung Wan OZP No. S/H3/8 and Wan Chai OZP No. S/H5/8 and their subsequent plans.  In considering the imposing of such control, the Board considered it necessary mainly for the reasons of access, convenience and safety.  While these restrictions would limit the development intensity in the area, they would still provide some incentives for redevelopment.  The building height restriction would avoid pencil-type development and still mandatorily requires the provision of a firemen’s lift and two staircases.  This is considered as an enhancement to the safety and convenience of residents in the area.
	2.2	Castle Steps is a stepped street area with no direct vehicular access.  Loading/unloading and services to buildings in the area have to be carried out manually and travelled for a considerable distance.  Since there is no direct vehicular access to the area, emergency vehicles (e.g. ambulance and fire engines) cannot reach the site.  The cumulative effect of allowing a higher intensity than that controlled by the proposed “R(C)7” zone may have an adverse impact on the safety and convenience of the residents in the area.  More intensive developments in the area are therefore not recommended.”

82.  Again notably, traffic consideration was not mentioned as a consideration for the Town Planning Board’s decision to rezone the Castle Steps site.

Swire’s section 16 application

83.  Whilst the objection was still pending before the Board, the Swire group made a section 16 application for relaxation of restrictions for the purpose of a redevelopment proposal involving the Castle Steps site and Nos 2A and 2B Seymour Road that it had acquired.  Quite plainly, the proposed redevelopment was much smaller in scale than the redevelopment proposed under the current litigation.  Nevertheless, the redevelopment proposal made by Swire, back in December 1995, went for the full redevelopment potential of the Castle Steps site as if it were a R(A) site.  This section 16 application led to the preparation of another planning paper dated February 1996 by the Planning Department.  Both interestingly and significantly, a dispute between the Planning Department and the Transport Department/Police, which went directly to the planning intention behind the rezoning in the first place, arose.

84.  According to this second planning paper, the Planning Department had no objection to the proposed redevelopment.  It noted the Transport Department/Police’s concern about the proposed redevelopment’s impact on traffic and their requirement for a traffic impact assessment (TIA).  This is what the Planning Department said about the relevant planning intention, development intensity, building height and traffic aspect (paragraph 10):

“	(a)	Planning Intention
		The main reasons for imposing plot ratio and building height restrictions within the “R(C)7” zone are due to the lack of vehicular and emergency access for sites abutting only onto stepped streets.  As the application site is now provided with vehicular access at 2A & 2B, Seymour Road, to further retain the plot ratio and building height restrictions for the site under the “R(C)7” zoning may no longer be appropriate.
	(b)	Development Intensity
		The proposed plot ratio of 8.0 for the application site is in line with that permitted for Class A sites in the “R(A)” zone and is not out of keeping with other residential developments in the vicinity.
	(c)	Building Height
		The proposed building height of 24 storeys above 4 levels of podium is considered acceptable especially when compared with other new developments in the immediate vicinity which are much taller (the 53-storey Robinson Place is at its immediate south and the 45-storey Goldwin Heights is also at its immediate east).
	(d)	Traffic Aspect
		AC for T/U’s requirement of a TIA submission is noted.  However, the original planning intention for re-zoning part of the site (which is a stepped street site) from “R(A)” to “R(C)7” for imposing more restrictive plot ratio and building height is mainly to enhance the safety, servicing and convenience of the area rather than for traffic reasons.  Since the application site is now provided with vehicular access from Seymour Road, it may no longer be regarded as a ‘stepped street’ site, and hence it may not be reasonable to require a TIA submission in the present application.”

85.  In the Planning Department’s view, as expressed in the paper, the planning intention of the rezoning was not for traffic reasons.  Rather, it was due to a lack of vehicular and emergency access.  The Planning Department’s thinking was that as, under Swire’s proposal, the problem of direct vehicular access was solved, there was no longer any justification for not allowing redevelopment of the stepped street site together with the adjacent sites acquired by Swire to its maximum capacity.  Traffic was simply quite irrelevant.  Of course, the paper used words like “main reasons” or “mainly”, but one must remember that one is reading a paper prepared by a town planner/civil servant, not a lawyer or a law draftsman.  The meaning sought to be conveyed is more than clear.  

86.  What happened next is even more interesting.  Following the Planning Department’s paper, there was a meeting of the Metro Planning Committee (MPC) of the Board held on 9 February 1996, in which representatives from the Planning Department and the Transport Department made representations to the MPC.  According to the confirmed minutes (para 40), the representative from the Planning Department stated that the redevelopment restrictions for R(C)7 were imposed on sites abutting stepped streets without direct vehicular access in order to ensure safety, servicing and convenience in the stepped street area.  As Swire’s site was to be provided with direct vehicular access under its redevelopment proposal, the Planning Department had no objection to the proposed relaxation of plot ratio and building height restrictions.

87.  The confirmed minutes then recorded the representative from the Transport Department as maintaining that “one of the original reasons for rezoning the site abutting stepped street from “R(A)” to “R(C)7” with more restrictive plot ratio and building height control was the traffic condition” – thus the requirement for a traffic impact study (para 41).  However, the minutes went on to record :

“	Members noted that the planning intention of the “R(C)7” zone was related to the non-availability of direct vehicular access.  As the proposed development now had direct vehicular access at Seymour Road, the concern would no longer be valid.”

88.  In paragraph 43 of the confirmed minutes, the Chairman further noted that the Notes of the OZP, which allowed for application for relaxation, did not limit such relaxation to “minor” ones.

89.  In view of those remarks, it is by no means surprising that the MPC eventually decided to approve the section 16 application without requiring a traffic impact study insisted on by the Transport Department or Police.  Quite plainly, the MPC accepted the view of the Planning Department.  The decision of the MPC represented that of the Board’s, and the same was duly communicated by the Board to Swire.

Swire’s proposed amendment

90.  The section 16 approval led Swire to write to the Board on 14 March 1996 in the following terms:

“

The [section 16] approval has a validity for 2 years.  This creates uncertainty for a situation where land assembly has not been completed.  Further, the approval letter identifies difficulties which need to be overcome in relation to the Buildings Ordinance and the Lease.  These could take a longer period to resolve.  A copy of the approval letter dated 12 March 1996 is enclosed for your information.

The certainty could be provided if the Board was to amend the Notes to the Plan and the Explanatory Statement for the R(C)7 zone.  It is proposed that a statement be added to indicate that the Board would approve redevelopment in the R(C)7 zone up to the maximum plot ratio permissible under the Buildings Ordinance, if suitable vehicle access is provided by merging with Nos. 2A & 2B Seymour Road as approved by the Metro Planning Committee mentioned above and/or with Nos. 2C, 2D, 2E Seymour Road and Nos. 23, 25, 27 & 29 Castle Road.”

91.  The reply from the Town Planning Board was dated 26 April 1996.  It dealt with both the objection to rezoning and the suggested amendment to the Notes and Explanatory Statement:

“	I am directed to inform you that after giving full consideration to your submission and to your written statement of objections, the Town Planning Board decided not to propose any amendments to the captioned draft plan to meet your objection on the following grounds :-
	(a)	the objection site falls within a stepped street area.  The proposed “Residential (Group C)7” (“R(C)7”) zone is in line with the development restrictions imposed in stepped street areas in other districts on Hong Kong Island under relevant outline zoning plans (OZPs);
	(b)	the cumulative effect of removing or relaxing the plot ratio and building height controls will have adverse impacts on the safety and convenience of the residents in the Castle Steps area.  Relaxation of the plot ratio restriction may be considered upon submission of a comprehensive redevelopment proposal with the amalgamation of sites to form a combined site with direct vehicular access and each proposal will be considered on its own merits; and
	(c)	the proposed amendments to the Notes of the OZP and the Explanatory Statement of the “R(C)7” zone to reflect the nature of the proposed residential redevelopment on the objection site and No. 2A and 2B Seymour Road approved by the Board are not necessary, as there is provision for the Board to extend the validity period of the planning permission of application to resolve the outstanding issues related to the Buildings Ordinance and the lease.  Each application will be considered on its own merits.”

92.  It is plain from Swire’s letter that it is concerned about the two-year time limit provided in the section 16 approval “as land assembly has not been completed”.  It therefore proposes adding a statement in the Notes or Explanatory Statement that maximum relaxation of the restrictions will be allowed if suitable vehicular access is provided by merging with the neighbouring sites.  That, quite plainly, will provide certainty to Swire regarding its redevelopment intention.

93.  It is equally plain from reading the Board’s reply that the reason for not acceding to Swire’s request is not because of any wish to retain control over the proposed redevelopment for traffic or other planning considerations.  Rather, the refusal of Swire’s proposal is simply because the Board considers that it is “unnecessary” – Swire’s concern can be met by an application to extend the two-year period.  Presumably, if there are genuine and sufficient grounds for extending time, such an application for time will be favourably considered.  Swire’s position is as certain as can be, from the Board’s point of view. 

94.  I should add that there was another planning paper (TPD Paper No 3683) prepared by the Planning Department in March 1996, for the consideration of the Board in view of Swire’s objection.  The paper noted that there was no change in the circumstances and the previous planning considerations contained in paragraph 3 of the previous planning paper were still relevant.  Members of the Board were also informed of the section 16 approval.  As explained, the Board duly rejected Swire’s objection to the rezoning, which was communicated to Swire by its letter dated 26 April 1996.

Approval of draft OZP by Chief Executive in Council

95.  To complete this very lengthy survey of the “context”, the draft OZP was eventually approved by the Chief Executive in Council on 25 June 2002 pursuant to section 9(1) of the Town Planning Ordinance.  The approval was gazetted on 5 July 2002.

Further discussion

96.  Having thus surveyed the context and relevant documents, I have no doubt that the minority has been correct in its construction of the OZP and the majority has fallen into error.  In my view, it is quite plain that:

(1)	The Study did take traffic and other infrastructural considerations into account in recommending rezoning, the restrictions and extent of relaxation.
(2)	The Study was aware of and dealt with, to a limited extent, the problem of potential inequality in treatment.
(3)	The Board accepted the Study’s recommendation for using rezoning as the preferred method of control, but departed from it in terms of the restrictions and the extent of relaxation.
(4)	The Board, in making the amendments, only regarded the lack of direct vehicular access as the relevant justification for the rezoning.  Traffic and other considerations were not relied on.
(5)	There could be many possible reasons for this different approach, such as a more optimistic view of the traffic and other infrastructural conditions, a concern about inequality in treatment – particularly once the question of access was overcome by suitable amalgamation, or an intention to defer traffic and other district-wide infrastructural considerations to a later date when a more comprehensive study could be conducted.  After all, there is no restriction on the number of amendments that the Board can make.
(6)	It is not necessary to speculate on the reason.  The important point here is that the Board took a different approach to traffic and other infrastructural considerations from the Study.
(7)	That explains the section 16 approval, as well as the thinking behind the Board’s refusal to accede to Swire’s suggested amendment of the Notes/Explanatory Statement to provide for “certainty”.  These were contemporaneous matters to the amendments that merit attention in considering the relevant context, even though – and I wish to emphasis this – ultimately the question of construction is a question of law for the courts, not the Board, to decide.

97.  In my view, Mr Mok has over-emphasised the significance of the Study in terms of the relevant context and has given it a significance that it does not bear, in the light of the subsequent development.

98.  It is true that neither the Notes nor the Explanatory Statement states expressly that normal planning considerations, such as traffic and visual considerations, will not be taken into account in a section 16 application, and it is simple enough to set that out specifically if that is the intention, as Mr Mok has submitted.  However, one must approach the Notes and Explanatory Statement on a down-to-earth, practical manner, and the language used is not to be invested with more precision than it would naturally bear.  One is not reading a judgment, and still less, construing a statute.  One is reading an explanatory statement prepared by the Planning Department to help members of the general public to better understand the planning intention behind the OZP (including the Notes).  It is written for both developers and ordinary private landowners and citizens to read.  Arguments that are based on fine semantic or linguistic distinctions, which turn on words such as “mainly” and “only”, do not really help.  Hair-splitting arguments based on differences or supposed differences between words such as “would be” and “may” are really too fine for the present purposes.  In this regard, it is sufficient to say that so far as language and wording is concerned, my preferred construction is not contradicted by anything specifically or expressly said in the Notes or Explanatory Statement. 

99.  In so saying, I have not forgotten the general statements in the Notes or Explanatory Statement, such as “meeting changing needs” (para 4.l in the Explanatory Statement) or taking into account “all relevant planning considerations” (para 11.3).  But they are, in my view, of little help given the very specific context relating to the R(C)7 zoning.  Furthermore, as Mr Yu has submitted, there is a bias against restricting a landowner’s proprietary right to develop or redevelop his land in the absence of clear wording.  Where there is a doubt, a developer must be given the benefit of it: Wah Yick Enterprises Co Ltd v Building Authority (1999) 2 HKCFAR 170, 181B/C-D (per Litton PJ) & 182G-183E/F (per Bokhary PJ). 

100.  Mr Mok submits that given the background of control via section 16(1)(g) of the Buildings Ordinance by the Building Authority, the OZP amendments actually constitute a relaxation of redevelopment control in favour of a landowner/developer.  There is therefore no question of giving the benefit of any doubt regarding restriction to the landowner. 

101.  I do not agree.  As has been pointed out in the Study, the Building Authority’s control was premised on the Fire Services Department’s concern about fire fighting and safety.  But with improvements in fire fighting appliances and fire protective measures, the Building Authority’s control under section 16(1)(g) was fast losing ground.  It is in those circumstances that one must view the rezoning of the stepped street sites from R(A) to R(C)7.  In my view, the rezoning does, in substance, amount to a restriction on the relevant owners’ rights to redevelop their properties.  And if there is any doubt regarding the restriction so imposed, the benefit of the doubt must be given to the landowners.  I say this, not because I take the view that there is any doubt.  Indeed, in my view, the planning intention is quite plain, regard having had to the entire context.  But if there should be any doubt, the benefit of it should be given to the landowners.

102.  A main theme of Mr Mok’s submission may be summed up thus: how can this be the case?  Suppose the condition “on the ground”, as Mr Mok has put it, has deteriorated to such an extent that in terms of traffic and other infrastructural concerns, it can no longer absorb another high-rise building, can it possibly be the Board’s true planning intention that it can do nothing about it but to approve the erection of the proposed high-rise building so long as the question of direct vehicular access is overcome?  Surely, counsel reasons, the planning intention must be to retain for the benefit of the Board, and for the benefit of the society as a whole, a power to consider all these relevant planning considerations – what weight to be attached to them in a particular case is a matter of planning judgment for the Board, not for the courts.

103.  I can follow the common sense inherent in Mr Mok’s argument.  But one must not lose sight of several important matters.  First, like planning considerations, planning intention is a matter for the Board and the Chief Executive in Council to decide when preparing and approving a draft plan, although its ascertainment by way of proper construction is a matter of law for the courts, not the Board or the Chief Executive in Council.  Secondly, the Board may have many considerations in mind when formulating its planning intention.  I have already outlined several possible reasons for the Board’s adopting a different approach to traffic and other infrastructural considerations from that adopted in the Study when making the amendments in 1995.  For our present purposes, there is no point to speculate.  But one matter is worthy of emphasis: there is no reason to assume that the 1995 amendments are the only amendments that the Board will ever make to the OZP.  Indeed, one possible reason for the Board’s different approach is that it wishes to conduct a comprehensive study and review on traffic condition and other infrastructural matters pertinent to the entire Mid-Levels district in future when the time is right, which will cover all sites regardless of their existing zoning, and in the meantime traffic and other planning considerations are put to one side pending such a study/review.  This possible reason has the added merit of avoiding any possible argument based on inequality in treatment.  I must emphasise that I am not making a finding here on the reason for the departure.  It is not necessary to do so.  I am just pointing out a possible explanation for the situation that Mr Mok has highlighted as a nonsensical one in case the minority’s construction is correct.

104.  One must bear in mind the relatively small proportions that the individual areas and total area of the stepped street sites zoned R(C)7 in the OZP when compared to the areas and total area of those zoned R(A) in the same plan, in determining whether the planning intention is to disregard traffic and other infrastructural considerations relating to the stepped street sites.  After all, the R(A) sites are not subject to any plot ratio or height restrictions.  If the Board had really regarded traffic and infrastructural considerations as relevant or even important considerations, one would have thought that in making the amendments in 1995, the Board would not have rezoned only the stepped street sites to R(C)7, but would also have imposed restrictions on or rezoned the remaining R(A) sites.  For after all, imposing the plot ratio and height restrictions on the stepped street sites would not prevent the apprehended worsening in traffic and other infrastructural conditions at all when no similar restrictions on redevelopment are imposed on the R(A) sites which are ten times larger in area than the stepped street sites.  There is an air of artificiality about Mr Mok’s submission that given the rather dim view expressed in the Study regarding traffic and other infrastructural concerns in the Mid-Levels, they must be relevant planning considerations in determining a section 16 application pursuant to the Notes and Explanatory Statement.

105.  Mr Mok has urged upon the Court that the Board has opted for flexibility in considering a section 16 application, instead of the more rigid approach recommended in the Study.  He argues that the provision of direct vehicular access resulting from a successful amalgamation of sites is only a condition precedent to making a section 16 application; it cannot be a sufficient condition for relaxation, particularly maximum relaxation, as well.  He argues that “each proposal will be considered on its own merits” (para 7.4.7 in the Explanatory Statement) provides the flexibility which allows the Board to take into account all normal and relevant planning considerations, including traffic and visual considerations.

106.  Mr Mok argues that the formula adopted by the Board provides for a sliding scale of relaxation, ranging from minor relaxation to maximum development. 

107.  Mr Mok argues that if the Board, in considering a section 16 application, can only take into account whether direct vehicular access is provided, but not other considerations such as traffic, that could lead to “catastrophic” results.  On the other hand, adopting his construction would mean that the Board retains the flexibility to deal with an application according to the prevailing circumstances “on the ground”.

108.  At the risk of repetition, I should point out that Mr Mok’s argument overlooks the fact that in rezoning the stepped street sites by way of amendments to the draft OZP, the Board has done nothing in relation to the much larger areas that have been zoned R(A) on the draft plan.  If potentially catastrophic results arising from full redevelopment of the stepped street sites had been at the forefront of the mind of the Board, one would have thought that similar restrictions would have been imposed on the much larger areas zoned R(A) as well, so as to prevent catastrophic results of a much larger scale from arising as a result of redevelopment of these R(A) sites.

109.  I do not pretend that this is a conclusive answer against Mr Mok’s argument.  But it illustrates the limitation of his point, which has nonetheless been taken into account in my task of ascertaining the true planning intention.

110.  One could of course contend that the 1995 amendments were not meant to be a comprehensive review of the traffic condition in the district, so maybe the answer is that the possible traffic problems arising from full redevelopment of the R(A) sites were intended by the Board to be tackled at a later stage in a comprehensive manner.  That does not mean that the Board could not have thought fit to deal with the possible traffic problems arising from redeveloping the stepped street sites in the 1995 amendments first.

111.  I can see the force of this argument.  A slight variation of this argument would, however, support the contrary construction: ie that traffic and other infrastructural considerations arising from redevelopment of not only the R(A) sites but also the newly-zoned R(C)7 sites were intended by the Board to be dealt with in a subsequent comprehensive review, so that the 1995 amendments were not concerned with these matters.  That is, it should be appreciated, an equally valid argument.

112.  Mr Mok’s construction is of course a viable one.  But whether it is the correct one is quite another matter and the correct construction must be informed by the entire context and background.  As described, having had regard to the entire context and background, and all relevant documents, I am of the view that although Mr Mok’s construction is arguable and internally sound, it is not the correct one.

113.  Both the majority and minority comprising the Appeal Board, as well as counsel, have had some lively debates on the true meaning of the phrase “each proposal will be considered on its own merits” appearing in the Explanatory Statement relating to a section 16 application.  Similar references to considering a proposal on its “merits” can be found in the Notes as well as other parts of the Explanatory Statement, relating not only to the R(C)7 sub-area but also to the R(C)1 to 6 sub-areas.

114.  Each reference must be construed and understood in its own context. 

115.  So far as the references relating to a section 16 application about a R(C)7 site is concerned, I am of the view that it simply refers to the quality, as it were, of the direct vehicular access under the redevelopment proposal.  Or, as the minority has put it in paragraph 66 of its decision, it means “the merits pertaining to the proposed amalgamation of sites in tackling access for servicing (ie loading and unloading activities, including those related to refuse collections) and fire fighting”.

116.  Each side has sought to gain some mileage from the fact that the opposite side’s position has not been expressly stated to be the case in the Notes or Explanatory Statement.  Thus for instance, Mr Mok argues that if traffic and visual considerations are not to be taken into account in a section 16 application, it would have been a simple thing to do to set that out expressly and specifically in the Notes or Explanatory Statement.  Mr Yu submits likewise – that if those considerations are to be taken into account, they could have been easily set out in the Notes or Explanatory Statement.  Indeed similar arguments have been raised by both the majority and minority of the Appeal Board.  Repeated references, in this regard, have been made to what Lord Lloyd has said in Henderson, supra, at p 268E where his Lordship commented that if it had been the intention to preserve the whole of Buffer Zone 2 in the DPA Plan covering Nam Sang Wai in its existing condition, it would have been easy enough to say so by designating the whole area a conservation zone.

117.  I appreciate the common sense point made by both sides.  However, that is by no means conclusive either way.  One could of course say that given traffic and visual considerations are normal planning considerations, there is no need to spell them out expressly in the Notes or Explanatory Statement.  Rather, if the planning intention is to exclude these normal planning considerations from consideration in a section 16 application, one would expect the Notes or Explanatory Statement to say so expressly.  I can follow the logic of the argument.

118.  On the other hand, one must bear in mind the entire context and read all relevant documents.  The stepped street sites clearly have a very peculiar context and background for its rezoning.  Furthermore, traffic has been specifically identified as a material consideration in the Explanatory Statement when discussing the R(C)1 to R(C)6 sub-areas (para 7.4.3); yet it is not mentioned at all in the Explanatory Statement’s discussion of the R(C)7 area (paras 7.4.4 to 7.4.7).  Traffic concern is conspicuous by its absence in the relevant discussion.  Thus, Mr Yu’s counter-argument that if it is meant to be a relevant consideration, traffic should have featured in the relevant discussion in the Explanatory Statement, given the background and given the rest of the contents of the Explanatory Statement, has great attraction.

119.  Quite clearly, neither side’s argument on this point is conclusive.  It is simply one of the matters to be taken into account. 

Conclusion

120.  Having considered the relevant context and documents, I am of the view that traffic and visual considerations are not relevant planning considerations in considering a section 16 application relating to a R(C)7 site in the OZP.

Chief Executive in Council’s approval as “endorsement”

121.  Given my conclusion, it is quite unnecessary to deal with, in any detail, Mr Yu’s further or alternative arguments.

122.  Very briefly, Mr Yu has submitted that in any event, by approving the draft OZP in 2002, the Chief Executive in Council has “endorsed” the Board’s determination of the true planning intention of the OZP amendments in Swire’s section 16 application in 1996.

123.  Insofar as Mr Yu is submitting that the approval of the draft OZP by the Chief Executive in Council in 2002 also forms part of the relevant context, I agree.  After all, one is seeking to ascertain the planning intention of the approved OZP.  The approval itself must form part of the relevant factual matrix.  In this regard, the Chief Executive in Council must be taken to have been aware of the Board’s own contemporaneous understanding of the planning intention behind the R(C)7 zoning, as has been expressed in its section 16 approval given in 1996.  Furthermore, there is force in Mr Yu’s argument that the Chief Executive in Council must also be taken to have been aware of the contrary view that has been put forward by the Transport Department about the true planning intention in so far as it relates to traffic, a view that has been rejected by the Board.  The position has been explained by Hartmann J in Society for Protection of the Harbour Ltd v Chief Executive-in-Council (No 2) [2004] 2 HKLRD 902, 926 (paras 64 and 65) in the following terms :

“	64.	What must be remembered is that, in fulfilling his duties in terms of the Town Planning Ordinance, the Chief Executive-in-Council looks not only to the collective knowledge, experience and expertise of those persons who sit on the Council with him but also to those public officers who are best positioned to advise him.  That the Chief Executive-in-Council lawfully fulfils his duties in this manner has long been recognised by the courts.  In Bushell v Secretary of State for the Environment [1981] AC 75 at p.95, Lord Diplock said:
		“	To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament’s intention.  Ministers come and go; departments, though their names may change from time to time, remain.  Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is political head.  The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his own expertise.”  (Emphasis added.)
	65.	The principle stated by Lord Diplock in Bushell v Secretary of State for the Environment [1981] AC 75 has equal application in Hong Kong.  In Kaisilk Development Ltd v Secretary for Planning, Environment and Lands (unrep., HCAL No 148 of 1999, [2000] HKEC 256), Cheung J (as he then was) said:
		“	Hong Kong does not have the ministerial system of government.  However, in my view the Secretary is clearly entitled to rely on the collective knowledge, experience and expertise of the government officials serving directly or indirectly under his Bureau.” ”

124.  That fact, together with the fact of approval, form part of the factual matrix of the case. 

125.  However, insofar as Mr Yu seeks to say that even if his contention on the planning intention of the OZP is wrong and likewise the Board’s understanding of the planning intention in the 1996 approval is incorrect, the approval of the draft OZP by the Chief Executive in Council in 2002 has the effect of adopting that (ex hypothesi) incorrect understanding by the Board as the planning intention of the OZP, I have difficulty in accepting the argument.  Mr Yu has drawn an analogy with the concept of implied or tacit legislation, a concept which has received some comments by the Court of Appeal in Kao Lee & Yip v Lau Wing [2007] 3 HKLRD 365, 374-376 & 383-384 in relation to provisions in the Employment Ordinance (Cap 57).  In the present context, Mr Yu’s argument is that the Chief Executive in Council could have easily amended the Notes or Explanatory Statement to state that traffic and visual considerations are relevant considerations in a section 16 application, so as to correct the Board’s misinterpretation of the planning intention.  By not doing so, the Chief Executive in Council must be taken to have adopted the Board’s interpretation as the planning intention of the OZP.  In other words, assuming that the Board’s interpretation of the planning intention has been wrong in the first place, the Chief Executive in Council has, nonetheless, decided, in the approval process, to change the planning intention to that interpreted by the Board.

126.  That, in my view, is too far-fetched a proposition to accept, in the absence of any concrete evidence regarding what has actually gone before the Chief Executive in Council in the approval process.  I do not think the evidence available justifies such a conclusion.

127.  But given my primary conclusion, this argument of Mr Yu’s is really academic and I need express no final view on it.

Unfair or unequal treatment

128.  A further argument that has been run by Mr Yu at the hearing is that given the 1996 section 16 approval, the rejection by the (present) Board and the majority of the Appeal Board of the applicant’s similar redevelopment proposal now is Wednesbury unreasonable.  Like cases should be treated alike for the sake of consistency and fairness, counsel submits.  Furthermore, the amalgamated site is no different from a R(A) site next door.  Both enjoy direct vehicular access.  There is no rational basis to treat the two sites differently. 

129.  Insofar as the planning intention contended for by Mr Yu is correct, as I think it is, there is no need to rely on this argument and in fact Wednesbury unreasonableness does not arise.

130.  However, in the event that both Mr Yu and this Court are wrong about the planning intention, Mr Yu’s argument that the refusal of the applicant’s latest redevelopment proposal is Wednesbury unreasonable by reason of the earlier section 16 approval in 1996 must be rejected on the simple ground that ex hypothesi, the 1996 approval was a wrong one and that, by itself, provides the best possible reason for not following it now.

131.  As regards unequal or unfair treatment when compared with a neighbouring R(A) site, the argument goes to the very fundamental question of whether the Board’s decision to rezone the stepped street sites from R(A) to R(C)7 in 1995 with a planning intention (ex hypothesi) that traffic and other planning considerations would be taken into account in a section 16 application was or was not Wednesbury unreasonable.  I have already described that argument in the above discussion.  Mr Yu has submitted that if the true planning intention was indeed as that construed by the majority, the decision to rezone in 1995 was in itself Wednesbury unreasonable.

132.  Given my primary conclusion, there is no need to deal with this point.  All I wish to say here is that the matter is not as straightforward as Mr Yu has suggested.  During the above discussion, I have already mentioned various possible considerations that the Board may have taken into account in deciding to depart from the recommendation made in the Study.  They, or some of them, might provide a justification for rezoning the site with a planning intention contended for by the majority.  Although, at the end of the day, I have come to the conclusion, as a matter of proper construction of the OZP, that the Board did not rezone the site with the planning intention contended for by the majority in mind, as a matter of proper construction of the OZP, it is a wholly different question as to whether, if I have been wrong and the Board did rezone the site with the planning intention suggested by the majority in mind, that decision was or was not Wednesbury unreasonable.

133.  As a matter of fact, there has never been a direct challenge by judicial review against the decision to rezone on any grounds, including Wednesbury unreasonableness.

134.  As I say, I need not express a final view on this matter given my primary conclusion.

Visual impact

135.  The parties have also made submissions on whether visual impact may be taken into account as a relevant planning consideration in the present case.  Given my primary conclusion, it is an academic question.

136.  In fact, even if I had come to the opposite conclusion, visual impact would still have been an academic issue, because both the majority and minority have been in agreement that if traffic is a relevant planning consideration, that alone is sufficient to torpedo the applicant’s various redevelopment proposals or options.

137.  In those circumstances, I do not intend to lengthen this judgment by discussing the arguments on visual impact any further.  The correctness of the interesting arguments advanced by counsel would have to be tested in a suitable case on another occasion.

Outcome

138.  As regards relief, the majority decisions of the Appeal Board in the two appeals must be brought up and quashed by an order of certiorari. 

139.  Furthermore, so far as Option 6a is concerned, there can be only one correct decision, namely relaxation should be granted in terms of Option 6a.  Given the inevitable result, the long lapse of time, the inconvenience of reconvening the same Appeal Board to deal with the appeals, particularly bearing in mind that the then Chairman is no longer a Chairman or member of the Appeal Board now, I agree with Mr Yu that an order of mandamus should issue to require the Appeal Board to allow the second appeal (Town Planning Appeal Case No 5 of 2005), the first appeal having been overtaken by the second one.

140.  I so order.

141.  The parties are also in agreement that costs should follow the event.  I therefore order that the costs of these proceedings (including all costs previously reserved) be paid by the interested party to the applicant, to be taxed if not agreed, with a certificate for two counsel.

142.  It remains for me to thank counsel and their supporting teams for the assistance that they have rendered to the Court.