JOIN SMART LTD v. TOWN PLANNING BOARD

HCAL 1549/2020

[2021] HKCFI 2726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1549 OF 2020

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J U D G M E N T

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INTRODUCTION

1.  This is the rolled-up hearing of an application for judicial review of the decision of the Rural and New Town Planning Committee (“the Committee”) of the Town Planning Board (“the TPB”) made on 24 April 2020 rejecting the Applicant’s application (“the Rezoning Application”) to amend two approved outline zoning plans by re-zoning a site (“the Application Site”) from “Residential (Group E)” (“R(E)”), “Residential (Group E)1” (“R(E)1”) and an area shown as “Road” to “Residential (Group A)” (“R(A)”) in order to increase the plot ratio of an intended residential development on the Application Site.

2.  In what follows, unless the context indicates otherwise, references to “Section” or “s” shall be to the Town Planning Ordinance, Cap 131 (“the Ordinance”).

BACKGROUND FACTS

(i)    The Application Site

3.  The Application Site is made up of Lots 212 RP, 232, 233, 234, 235, 236 RP, 237, 238, 239, 243, 244, 245, 246 SA, 246 SB, 246 RP, 247, 365 RP, 366, 367 and 368 RP all in Demarcation District 130 (“the 20 Private Lots”) and some adjoining Government land (“the Government Land”) in Lam Tei, Tuen Mun, New Territories. The Application Site has a total area of about 21,333 m².  The Applicant is the owner of all but 2 of the 20 Private Lots comprised in the Application Site.  The Applicant’s lots have a total area of about 16,191 m².  The remaining 2 Private lots (namely, Lots 245 and 366) have a total area of about 3,941 m².  The Government Land, which makes up the rest of the Application Site, has an area of about 1,201 m².

4.  The Application Site is located at the northern fringe of Tuen Mun New Town to the immediate north of Hong Po Road.  It is accessible from (i) Hong Po Road (on the southern side), and (ii) San Hing Road via San Tat Lane (on the eastern side).

5.  The Application Site is currently fenced-off and largely vacant with a portion at the centre of the site used for storage / open storage of construction materials.  The surrounding areas of the Application Site are “brownfield” in nature, including orchards, metal workshops, car repairing workshops, recycling workshops, warehouse, godowns, open storage of construction materials, and open storage yards intermixed with residential dwellings and cultivated agricultural land.

6.  The Application Site is situated in an area surrounded by a number of high-rise housing estates, including Yan Tin Estate which has 5 domestic blocks ranging from 33 to 38 storeys high, Fu Tai Estate which has 12 domestic blocks, and Siu Hong Court which has about 20 domestic blocks.

7.  Under the existing zoning:

(1)   91% of the Application Site lies within the “R(E)” zone in the Approved Lam Tei and Yick Yuen Outline Zoning Plan No S/TM-LTYY/10 (“the LTYY OZP”), which was approved by the Chief Executive in Council on 16 October 2018.  The planning intention for a site zoned “R(E)” in the LTYY OZP is primarily for phasing out of existing industrial uses through redevelopment for residential use on application to the TPB.  While existing industrial uses will be tolerated, new industrial developments are not permitted in order to avoid perpetuation of industrial/residential interface problem.  Under the LTYY OZP, for a site zoned “R(E)”, no new development (except for New Territories Exempted House) shall exceed a maximum plot ratio of 1.0, a maximum site coverage of 40%, and a maximum building height of 4 storeys over a single-storey car park (15 m).

(2)   8% of the Application Site lies within the “R(E)1” zone in the Approved Tuen Mun Outline Zone Plan No S/TM/35 (“the TM OZP”), which was approved by the Chief Executive in Council on 11 December 2018. The planning intention for a site zoned “R(E)1” in the TM OZP is essential the same as that for a site zoned “R(E)” in the LTYY OZP.  Under the TM OZP, for a site zoned “R(E)1”, no new development (except for New Territories Exempted House) shall exceed a maximum plot ratio of 1, a maximum site coverage of 40%, and a maximum building height of 5 storeys including a one-storey car park.

(3)   1% of the Application Site lies within an area shown as “Road” in the TM OZP.

In what follows, unless the context indicates otherwise, the LTYY OZP and TM OZP will collectively be referred to as “the OZPs”.

(ii)  Government’s proposal for public housing developments in the area including the Application Site

8.  Since the Chief Executive’s 2011-2012 Policy Address, the Government has been trying to expand the land resources and increase housing land supply, including building up land reserve with a view to meeting housing and other development needs.

9.  On 29 January 2014, the Government announced to the Legislative Council that it had identified around 150 sites across Hong Kong for residential developments in different districts including, relevantly for the present purpose, 3 sites at (i) San Hing Road (“SHR”), (ii) the nearby SHR Extension, and (iii) Hong Po Road (“HPR”).

10.  On 2 September 2014, the Government consulted Tuen Mun District Council on a proposed public housing development scheme at the SHR site (which covered the majority of the Application Site) with an area of about 8.7 ha and a plot ratio of not more than 5.  Notwithstanding doubts expressed by the Tuen Mun District Council relating to traffic, rural industries, relocation, compensation and other issues, the Government continued to work on the proposed housing development scheme at SHR.

11.  On 6 January 2015, the Government (Development Bureau and Planning Department) briefed the Tuen Mun District Council on the housing sites that were expected to be made available in the Tuen Mun District, including proposed public housing developments at the SHR, SHR Extension and HPR sites under on-going feasibility studies (“the 2014 Studies”). Similar to other public housing projects, these studies were engineering studies to ascertain the technical feasibility of the proposed public housing developments at the SHR, SHR Extension and HPR sites.

12.  On 29 September 2016, the Government issued a press release titled “Government response to media inquiries on public housing development at San Hing Road”.  In the press release, the Government stated that government departments concerned had adjusted the scope of the proposed public housing development at the SHR site with the target that public housing production would not be diminished.  The related technical study had been revised so that the sites along SHR and HPR with development potential would be taken into account as a whole for public housing development.  A rezoning application to amend the related outline zoning plan would be submitted to the TPB after completion of the study.  It was also stated that the Government had been studying ways to adjust its plan to build public housing at the SHR site and nearby sites, the Government was still formulating the development plan at SHR, and the study on the proposal for public housing development at SHR had not yet been completed.

13.  On 1 November 2016, the Housing Department briefed the Tuen Mun District Council on the latest progress of the proposed public housing developments in Tuen Mun, including those at the SHR, SHR Extension and HPR sites.

14.  In 2017, in view of the public’s demand for public housing, the Government decided to combine the SHR, SHR Extension and HPR sites into a single development site (“the Combined Site”) with an area of about 29 ha for integrated and comprehensive public housing development with Government, institution and community uses (“GIC”) and associated infrastructural works (“the Proposed SHR and HPR Development”) in order to fully utilize the development potential and maximize the production of housing units in the area.  The Combined Site included the sites of two private residential developments approved under s 16 as well as the Application Site. Under the Proposed SHR and HPR Development, no private housing component was contemplated.

15.  The Proposed SHR and HPR Development involved a much larger site area and a higher density development when compared with the individual sites examined under the 2014 Studies.  A new consultancy study (“the New Study”), commenced in February 2018 (see §18 below), was necessary to ascertain the technical feasibility of the Proposed SHR and HPR Development. The New Study was to be based on the findings of the 2014 Studies, of which the technical assessments were substantially completed in 2017.  As the Combined Site exceeded 20 ha in area, the requirements under the Environmental Impact Assessment Ordinance, Cap 499 (“EIAO”) were triggered.  Under the EIAO, an environmental impact assessment (“EIA”) report was required to be prepared by the project proponent and approved by the Director of Environmental Protection.  The focus of the New Study was on the technical feasibility (including requirements under the EIAO) of the proposed land uses of the Combined Site, namely, comprehensive public housing development together with associated GIC, retail and infrastructure facilities.  The scope of the New Study did not cover any private housing development.

16.  In June 2017, the Civil Engineering and Development Department (“CEDD”) submitted a project profile (“the Project Profile”) for the Proposed SHR and HRP Development to the Director of Environmental Protection to apply for an EIA study brief under the EIAO.  The Project Profile stated that the Proposed SHR and HRP Development site had been identified by the Government as potential long term public housing sites (§1.2.1).  It fell within an area mainly zoned “Green Belt” and partly zoned “Residential (Group E)” on the OZPs (§1.4.2).  The Proposed SHR and HRP Development had an area of about 27 ha, with an estimated population after its completion of about 63,000 (§1.5.1).  The Project Profile identified possible environmental impacts arising from the Proposed SHR and HRP Development in different areas, including air quality, noise, water quality, solid waste, ecology, cultural heritage, land contamination, and landscape and visual.  It was stated that the EIA study would investigate those environmental impacts and propose appropriate mitigation measures with the intention that all proposals would be environmentally acceptable and cost effective, and the residual impacts, if any, would be confined within the allowable limits (§5.1.1).  The Project Profile also stated that the planning and engineering study including the EIA study was targeted to commence in the first quarter of 2018 for completion in the first quarter of 2020 (§2.2.1).  Attached to the Project Profile was a drawing which indicated the boundary of the Proposed SHR and HRP Development and the locations of the “Proposed Indicative Housing Development Sites”, “Proposed Indicative School Sites”, “Proposed Indicative Sewage Pumping Station” and “Proposed Indicative Road L7”.  It is not in dispute that the Application Site falls within the boundary of the Proposed SHR and HRP Development.

17.  On 4 August 2017, the Director of Environmental Protection issued an EIA study brief in respect of the Proposed SHR and HRP Development (“the EIA Study Brief”).  The EIA Study Brief set out the purposes and objective of the EIA study, the scope of environmental issues which should be addressed, the requirements that the EIA study would need to fulfil, and the necessary procedural and reporting requirements.  For the purpose of this judgment, it is not necessary to set out the details of the EIA Study Brief, save to mention that the study required to be carried out is a detailed and exacting process with numerous environmental issues falling to be considered.

18.  In February 2018, CEDD commissioned the New Study titled “Agreement No. CE 68/2018 (CE) - Site Formation and Infrastructural Works for the Development at San Hing Road and Hong Po Road, Tuen Mun - Feasibility Study” with a view to confirming the engineering feasibility of the Proposed SHR and HPR Development.  The New Study included meeting the requirements under the EIAO and supporting any subsequent application for necessary amendments to the OZPs under the Ordinance.  Pausing here, I should mention the New Study is also referred to as the “Feasibility Study” in the Form 86 and some other documents of the Applicant in these proceedings.

19.  As at the date of the Decision on 24 April 2020, the New Study had not yet been completed, the Committee being told at that time that the New Study was scheduled for completion in 2020[1].  In these proceedings, the TPB has adduced some further evidence on the subsequent development of the New Study.  The Applicant objects to the relevance and admissibility of evidence of events occurring after the date of the Decision.  On behalf of the TPB, Mr John Litton confirms that the TPB does not rely on events post-dating the Decision dated 24 April 2020[2]. As a matter of principle, the rationality of the Committee’s decision should be determined by reference to the facts and matters before the Committee at the time of its decision, and events occurring after the date of the Decision should not be taken into account when considering the Applicant’s grounds of judicial review in this case.  In some cases, events occurring after the date of the relevant decision may be relevant to the issue of relief.  Nevertheless, the latest evidence from Mr Kelper Yuen (Deputy Director of the Planning Department) filed on 11 December 2020 was that the New Study had still not yet been completed, and it was targeted to be completed in the first quarter of 2021.  I consider that the evidence contained in the Affidavit of Yuen Shing Yip Kepler and the Second Affirmation of Yuen Hok Lun (project manager of Sun Hung Kai Properties Limited) concerning post-Decision events should not be taken into account when considering the Applicant’s grounds of judicial review or the issue of relief in this case.  Any reference to post-Decision events in this judgment is only for the sake of completeness.

(iii)    Previous s 16 applications

20.  Prior to the Rezoning Application submitted by the Applicant on 21 August 2019, there had been a number of s 16 applications relating to the Application Site or a portion of it, including two s 16 applications made by the Applicant.

21.  The first one (“the 273 Application”) was made by the Applicant in December 2013 in respect of a portion of the Application Site within the LTYY OZP with an area of about 14,553 m². The application related to a proposed residential development comprising 96 flats with a plot ratio of 1.9.  The application was approved by the Committee on 17 October 2014 on the basis that it was, at that time, consistent with the planning intention of zone “R(E)” applicable to the site, the proposed public housing development at San Hing Road then being still at a conceptual stage only.  Subsequently, in February 2018, the Applicant applied for an extension of time to commence the proposed residential development for a period of 4 years until 17 October 2022.  The application for extension was rejected by the Committee on 15 June 2018, and by the TPB upon review on 28 September 2018 on the basis that there had been a material change in planning circumstances, namely, that by then the Government was committed to a plan for comprehensive public housing development covering the site and action had been taken to pursue such development.  On 16 October 2018, the Applicant lodged an appeal to the Appeal Board Panel (Town Planning) against the decision of the TPB refusing to grant the extension of time sought.  As at the date of the Decision, the appeal had not yet been heard.  It was scheduled for hearing in September/October 2020[3].

22.  The second one (“the 381 Application”) was made by the Applicant on 1 August 2019 in respect of the same portion of the Application Site within the LTYY OZP.  The development parameters were generally the same as the 273 Application.  By the time of the Decision in April 2020, the 381 Application had not yet been determined by the Committee[4].

(iv)    The Rezoning Application

23.  On 21 August 2019 in the midst of the Government’s consideration of the feasibility of the Proposed SHR and HPR Development, the Applicant, represented by Masterplan Limited (“Masterplan”), submitted the Rezoning Application to the TPB to amend the OZPs for the purpose of rezoning the Application Site to “R(A)” with a maximum plot ratio of 6, a maximum site coverage of 40%, and a maximum building height of 120 mPD, by reference to a proposed residential development on the Application Site (“the Proposed Scheme”) .  The purpose of the application, as stated in the Executive Summary of the Rezoning Application, is as follows:

“S3. In recent policy addresses, the Chief Executive had stressed that the housing problem is the most critical of all livelihood issues. The Government has been tasked to increase the housing supply for both the private and public sectors. The conceptual Government plans for the Siu Hong and Tuen Mun 54 areas reflect the planning intention to transform the area into a high-density public housing neighborhood. There are already numerous public housing sites planned or under construction in the vicinity.

S4. The Proposed Scheme with a plot ratio of 6 and building height of not more than 120 mPD, would contribute 1,998 high-quality, private residential flats. It will offer an alternative housing supply to help alleviate the over-inflated property prices, providing opportunities for home purchasers. The Proposed Scheme would be compatible with the development density of the surrounding existing and planned public housing sites. In a locality already pre-dominated by public housing development, the proposed development would provide an alternative for those not eligible for public housing.

S6. This application demonstrates that the Application Site is suitable for re-zoning to enable a private residential development to go ahead quickly. Private housing is as important to public housing on the site, and will contribute significantly to the housing supply and social mix within the area. This application is also to remove the planning blight that exists on the private land through the rejection of the previous application.

S7. There are currently no Day Care Centre for the Elderly facilities in the surrounding area of the Application Site, and there is no plan by the Government to provide one.  Therefore, the Applicant has included one in the Proposed Scheme to cater for the expected demand for such facilities.”

24.  The Rezoning Application sets out the following Indicative Development Parameters of the Proposed Scheme:

Total site area	About 21,333 m2
Maximum plot ratio	6
Government land area	About 1,201 m2
Building height in number of storeys	35-storey or 120 mPD (excluding 2 basement levels)
Total GFA	Not more than 127,998 m2
Domestic GFA	Not more than 127,498 m2
Non-domestic GFA (Day Care Centre for the Elderly)	Not more than 500 m2
Maximum site coverage	40%
Number of domestic blocks	9
Number of non-domestic block (Day Care Centre for the Elderly)	1
Number of units	1,998
Average unit size	64 m2
Design population	5,395
Private open space	Not less than 5,395 m2
Anticipated completion year	2025

25.  Due to the different land ownerships within the Application Site, the Proposed Scheme is divided into 2 phases to facilitate early implementation of the development.  Phase A, with a site area of 16,966 m², would accommodate 7 residential blocks and 1 non-domestic block (Day Care Centre for the Elderly), while Phase B would accommodate 2 domestic blocks.  The land for Phase A is generally owned by the Applicant, whereas the land for Phase B, in the middle of the Application Site, is generally owned by others at present.

26.  The Rezoning Application was originally scheduled for consideration by the Committee on 15 November 2019, but was subsequently re-scheduled to 24 April 2020 upon the Applicant’s request.

27.  Between 2 December 2019 and 14 April 2020, Masterplan submitted 5 sets of further information to the Committee providing responses to departmental comments and containing revised plans and assessments.

28.  In April 2020, the Planning Department (“PlanD”) prepared RNTPC Paper No Y/TM-LTYY/8A (“the RNTPC Paper”) in respect of the Rezoning Application for consideration by the Committee.  The RNTPC Paper set out, inter alia, the views and comments of various Government departments on the Rezoning Application, including objections expressed by five departments, namely (i) the Chief Engineer/Housing Project 2 of CEDD, (ii) the Director of Housing, (iii) the Chief Engineer/Construction of Water Supplies Department, (iv) the Executive Secretary (Antiquities and Monuments), Antiquities and Monument Office, and (v) the Commissioner for Transport.  The RNTPC Paper also set out PlanD’s consideration and assessment of, and its views on, the Rezoning Application.  At §12.1 of the RNTPC Paper, PlanD stated that it did not support the Rezoning Application.  I shall come back to various aspects of the RNTPC Paper later in this judgment.

(v)  The Decision

29.  The Committee held a meeting on 24 April 2020 (“the Meeting”) to consider the Rezoning Application.  At the conclusion of the Meeting, the Committee decided to reject the Rezoning Application (“the Decision”). The Decision was communicated to Masterplan by a letter dated 15 May 2020.  Two reasons were given for the Decision:

(1)   Reason (a) -

“the long-term development of the general area covering the application site is being reviewed under an on-going feasibility study undertaken by the Civil Engineering and Development Department for a proposed comprehensive public housing development with relevant supporting infrastructures and Government, Institute and Community facilities. Suitable zonings of the area covering the site are yet to be determined and the approval of the rezoning application would adversely affect the comprehensive planning of the area and jeopardise the implementation of the proposed public housing development”;

(2)   Reason (b) -

“you fail to demonstrate that the proposed rezoning would not generate adverse water supplies, archaeological and traffic impacts on the surrounding areas”.

APPLICATION FOR JUDICIAL REVIEW

30.  On 23 July 2020, the Applicant applied for leave to apply for judicial review of the Decision.  In the Form 86, at §§3 and 4, the Applicant advances a total of 9 grounds of judicial review.

31.  In respect of Reason (a), the grounds of judicial review are as follows:

(1)   the review of the long-term development of the general area covering the Application Site under the New Study is an irrelevant consideration which the Committee wrongfully took into account or wrongly attached significant weight (Ground 1);

(2)   the Committee failed to make sufficient inquiries (Ground 2);

(3)   the Committee failed to adequately consider, and/or make an informed decision on, the Rezoning Application because relevant materials were not fairly and adequately presented by PlanD (Ground 3); and

(4)   the rejection of the Rezoning Application was Wednesbury unreasonable or irrational (Ground 4).

32.  In respect of Reason (b), the grounds of judicial review are as follows:

(1)   the Committee wrongfully failed to consider the technical aspects of the Rezoning Application (Ground 5);

(2)   the Committee failed to make sufficient inquiries (Ground 6);

(3)   the Committee failed to adequately consider, and/or make an informed decision on, the Rezoning Application because relevant materials were not fairly and adequately presented by PlanD (Ground 7);

(4)   the rejection of the Rezoning Application was Wednesbury unreasonable or irrational (Ground 8); and

(5)   the Committee’s reliance on a remark by a Member of the Committee was a procedural irregularity resulting in unfairness to the Applicant (Ground 9).

REASON (A): THE NEW STUDY

33.  The first reason (Reason (a)) given by the Committee for rejecting the Rezoning Application was that the long term development of the general area covering the Application Site was under review by the Government for a possible comprehensive public housing development in the area, and the approval of the Rezoning Application would adversely affect the comprehensive planning of the area and jeopardise the implementation of the Government’s proposed public housing development.  4 grounds of judicial review have been advanced by the Applicant to challenge this reason:

(1)   Grounds 1 and 4 raise issues going to the relevance of the Government’s proposed public housing development in the area (including the Application Site) and the weight which may properly be given to this matter by the Committee;

(2)   Ground 2 complains that the Committee failed to make sufficient inquiries in respect of the New Study and is based on the Tameside duty; and

(3)   Ground 3 complains that PlanD failed to inform the Committee of various matters referred to in §52 of the Form 86 in breach of the public law duty to ensure that relevant materials are fairly and adequately presented to the decision-maker.

34.  In respect of the Government’s proposed comprehensive public housing development in the area including the Application Site and the New Study, PlanD informed the Committee of the following matters in the RNTPC Paper, at §4.4:

“The Civil and Engineering and Development Department (CEDD) is now undertaking a consultancy study titled ‘Agreement No. CE 68/2018 (CE) - Site Formation and Infrastructural Works for the Development at San Hing Road and Hong Po Road, Tuen Mun - Feasibility Study’ (the Study) for the proposed public housing development at San Hing Road and Hong Po Road and relevant supportive infrastructural works and facilities, including a number of Government, Institution and Community and retail facilities. The Study commenced in February 2018 and is scheduled for completion in 2020. The Site is located at the central portion of the Study area and encroaches onto the sites designated for public housing and school developments”.

35.  In the RNTPC Paper, PlanD set out the comments of the Chief Engineer/Housing Project 2 of CEDD and the Director of Housing regarding the long-term development of the area, as well as PlanD’s consideration, assessment and views in respect of this matter, as follows:

(1)   The comments of the Chief Engineer/Housing Project 2 of CEDD and the Director of Housing under the sub-heading of “Long-term Development” -

“9.1.2 Comments of the Chief Engineer/Housing Project 2, Civil Engineering and Development Department (CE/HP2, CEDD):

His office is currently conducting a consultancy study titled ‘Agreement No. CE 68/2018 (CE) - Site Formation and Infrastructural Works for the Development at San Hing Road and Hong Po Road, Tuen Mun - Feasibility Study’ for the Government. The subject land lots under application for private residential development would encroach into the public housing development site area at San Hing Road and Hong Po Road. It would affect the comprehensive public housing development and infrastructure works in San Hing Road and Hong Po Road if these land lots are earmarked for private residential development. He has reservation to the application. He also advises that Director of Housing’s (D of Housing’s) comment on the development strategy for the proposed public housing development should be sought.

9.1.3 Comments of the D of Housing:

CEDD is now conducting the Site Formation and Infrastructural Works for the Development at San Hing Road and Hong Po Road, Tuen Mun - Feasibility Study.  In this connection, the application is not supported.”

(2)   PlanD’s consideration and assessment, under the sub-heading of “Interface with the Proposed Public Housing Development” -

“11.3 The long-term development of the general area is being comprehensively reviewed under a consultancy study titled ‘Agreement No. CE 68/2018 (CE) - Site Formation and Infrastructural Works for the Development at San Hing Road and Hong Po Road, Tuen Mun - Feasibility Study’ (the Study) by CEDD for a proposed comprehensive public housing development at San Hing Road and Hong Po Road with relevant supportive infrastructural works and facilities, including a number of Government, Institution and Community (GIC) and retail facilities. The Study commenced in February 2018 and is scheduled for completion in 2020…

11.4 The Site is located at the central portion of the Study area and encroaches onto the sites designated for public housing and school developments … In this regard, CE/HP2, CEDD has reservation on the application as the approval of the application would affect the comprehensiveness of the public housing development under the Study and jeopardize the implementation of the public housing development and its relevant supportive infrastructural works and GIC facilities. In this connection, D of Housing does not support the application. Since the Study is at an advance stage and the long-term planning intention for the area covering the Site is under review for comprehensive high-density public housing development with supporting infrastructures and GIC facilities, the proposed rezoning of the Site to facilitate a private residential development would inevitably affect the comprehensive planning of the area and jeopardize the implementation of the proposed public housing development.

11.5 Although the applicant proposes to provide a DCCE [Day Care Centre for the Elderly] within the application site, DSW advised that a number of welfare facilities would be incorporated into the proposed public housing development under the Study.  There is no information from the applicant whether the application would have any impact on the development scheme and schedule of the proposed housing development and the social welfare facilities proposed therein under the Study.”

(3)   “Planning Department’s views” -

“12.1 Based on the assessment made in paragraph 11 above and having taken into account the public comments mentioned in paragraph 10 above, the Planning Department does not support the application for the following reasons:

(a)   the long-term development of the general area covering the application site is being reviewed under an on-going feasibility study undertaken by CEDD for a proposed comprehensive public housing development with relevant supporting infrastructures and Government, Institution and Community facilities.  Suitable zonings of the area covering the site are yet to be determined and the approval of the application would adversely affect the comprehensive planning of the area and jeopardize the implementation of the proposed public housing development …”

36.  At the Meeting, there was also some discussion of the Government’s proposed public housing development in the area and the New Study:

(1)   During the open session of the Meeting, the Applicant’s representatives made the following representations, as recorded in §12 of the Confirmed Minutes of the Meeting (“the Confirmed Minutes”) -

“Responses to PlanD’s assessments as set out in the Paper

(g) it was not reasonable to reject the application because of an on-going but yet-to-be completed Study undertaken by the Government under which the relevant Environmental Impact Assessment (EIA) report had not even been published for public inspection and comment in accordance with the statutory requirements. According to paragraph 3.3.3 of the study brief of the EIA, it was stated that ‘different land use options and layout options of the proposed development with regard to the approved planning applications’ should be considered;

(h) the boundary of the study area, which encroached onto the Site, was arbitrary and questionable since a large amount of government land was excluded but ample private land was included;

(i) the proposed scheme would not jeopardise the design of the public housing site as the Study area was sizable to allow adjustment to the layout of the public housing blocks, whilst accommodating some private housing blocks at the Site. The Study area, even with the Site excluded, was five times the size of the nearby Yan Tin Estate which had a PR of 5 providing 4,700 flats. Moreover, the affected school development falling within the Site could be off-set as there was a surplus of school sites in the TM OZP;

Advantages and merits of the proposed scheme

(m) it should be highlighted that private housing provision was also a form of public interest;

(n) contrary to the lengthy process required upon the completion of the Study and subsequent land resumption for public housing development, the proposed development could allow earlier implementation of housing development and timely provision of private housing of similar scale;

Conclusion

(p) the reasons for rejecting the application were not convincing. Private development right should not be overridden unless there was overriding public interest, which was not applicable to the subject case. Given the availability of alternative sites and options for providing the concerned public housing development, there was no reason for not approving the subject application;

(r) the inputs and latest progress of the concerned Study and the EIA were not made known to the Committee and the public. It was not appropriate for the Committee to reject the application due to the yet-to-be completed Study”.

(2) In answer to questions raised by members of the Committee regarding the “Interface with the On-going Government Study”, Mr Kelper Yuen (District Planning Officer/Tuen Mun and Yuen Long West) stated, inter alia, the following, as recorded in §19 of the Confirmed Minutes -

“(a) the major consideration for delineating the Study’s boundary was the inclusion of brownfield sties. Areas involving graves, squatters and road access to nearby residential area were excluded to minimise impacts on existing residents and villagers and respect the existing neighbourhood. Those areas falling inside the Study area but not proposed for housing development … were mainly areas subject to constraints, e.g. existence of electric towers and cables, and areas reserved for the provision of infrastructures and related facilities;

(b) the public were well informed of the launch of the Study. The Tuen Mun District Council (TMDC) was consulted in 2014 regarding the proposed public housing development at San Hing Road. The Development Bureau, Housing Department and CEDD had also consulted TMDC on public housing developments in Tuen Mun including the subject site. Subsequently, a project profile of the EIA under the Study had been submitted to the Environmental Protection Department, which was available for public inspection;

(c) as land resumption had not yet commenced, there was no freezing of development within the Study area;

(d) in general, a duration of about 10 years was usually required for implementing a public housing project from the feasibility study to OZP amendments, land resumption and then site formation and construction. It was possible that a private housing project with single land ownership could be implemented within a shorter timeframe;

(f) the main objective of the Study was to confirm the technical feasibility of public housing development within the Study area;

(g) should the s.12A application be approved, it would have implication on the timing of the completion of the Study as the layout and technical assessments would need to be reviewed or conducted again. Even if the Site (about 2.1 ha) was excluded from the Study area, an EIA would still be required as the remaining Study area would be about 24.9 ha (i.e. > 20 ha); and

(h) upon completion of the Study, PlanD would proceed to propose amendments to the OZP based on the findings of the Study, which would be submitted to the Committee for consideration before gazettal of the draft OZP for public inspection.”

(3)   In response to Mr Kelper Yuen’s suggestion that approval of the Rezoning Application would affect the on-going EIA study, the Applicant’s representatives said the following, as recorded in §20 of the Confirmed Minutes -

“since different land use options and layout options of the proposed development should be considered in the EIA, it was not without grounds to exclude the Site of the subject s.12A application when formulating the future development of the area. As similar number of housing units could be produced by the applicant at the Site, the approval of the application would not jeopardise the EIA conducted.”

(4)   During the deliberation session of the Meeting, there was some further discussion of the Government’s proposed comprehensive public housing development in the area, as recorded in the following passages in the Confirmed Minutes -

“[25] In response to a Member’s inquiry on whether the Committee had approved application that was covered by an on-going study, the Chairman said that there were similar cases that were approved by the Committee previously and consideration would be given to the progress of the relevant study. One of the examples was the previous s.16 application concerning the subject site, which was approved by the Committee in 2014 on the consideration, inter alia, that the proposed public housing development at San Hing Road was still at the preliminary stage at that time. For the subject application, Members noted that the Study was scheduled for completion in 2020. That Member expressed that the findings of the Study would be important for the Board to consider the overall planning of the area, and the Committee’s approval of the subject s.12A application might have implications on the comprehensive development of the area.

[26] Two Members generally considered that the rezoning application could be agreed to as the Site, which was currently vacant and mostly under private ownership, was readily available for development whilst the public housing development, which would involve land resumption, might take a longer time for implementation. The development of private and public housing was not mutually exclusive, and since the application was in line with the Government’s latest policy direction for land sharing, favourable consideration could be given. Considering the ‘fair-play principle’, as the future development in the area was yet to be determined, rejecting the application might seem unfair. Besides, a mix of private and public housing development could generate synergy effect for the overall development of the area.

[27] Some Members did not support the application and had the following views:

(a) the Study was near completion and the approval of the subject application would render effort of conducting the Study futile and affect the comprehensiveness of future development in the area. There were also technical issues that were yet to be addressed in the subject application;

(b) the applicant’s development right was not deprived of as approval was granted to the previous s.16 application (No. A/TM-LYTT/273) in 2014. The circumstances had changed since then. The applicant failed to commence the approved scheme within the validity period;

(c) the allegation of possible delay in completing the Study was unfounded. As both private and public housing were permissible in the proposed ‘R(A)’ zone, the issue on housing mix as raised by the applicant might not be directly relevant to the consideration of the subject application by the Committee; and

(d) while the applicant claimed that his proposed private housing at the Site might be implemented earlier, it might cause delay to the overall programme of the comprehensive public housing development in the area as the Study and the EIA would need to be conducted again.”

37.  Eventually, the Committed decided to reject the Rezoning Application for, inter alia, Reason (a), which was in materially the same terms as PlanD’s views as set out in §12.1(a) of the RNTPC Paper.

(i)    Ground 1

38.  Mr Benjamin Yu, SC (on behalf of the Applicant) argues that the Government’s proposed comprehensive public housing development on the Combined Site (including the Application Site) was, at the time when the Committee considered the Rezoning Application, “remote” or “not imminent”, and it should either be regarded as an irrelevant consideration or, alternatively, should not be given any weight by the Committee.

39.  In support of this ground, Mr Yu raises two main arguments, which are overlapping to some extent:

(1)   The “alternative use argument” – Mr Yu argues that it is well-established that in an application for planning permission, if a proposed development is acceptable in its own right, an alternative use is normally irrelevant.  An alternative use (not themselves the subject of a rezoning or planning application) will be a material consideration only in “exceptional circumstances”.  Even in such an “exceptional case”, if the alternative use is to be a material consideration there must be at least a “likelihood” or “real possibility” of it being implemented in the foreseeable future if it is to justify the refusal of planning permission.  Although the Rezoning Application before the Committee was not an application for planning permission but an application to rezone a site, the position should be a fortiori[5].

(2)   The “the imminence argument” – Mr Yu argues that the New Study could not be a relevant consideration because there was no application being put before the Committee by CEED (or PlanD or the Government) for an alternative zoning, nor was there any evidence that such an application would be imminent.  Further, there is no proper or adequate information as to the likelihood of public housing developments on the Combined Site, and such developments, assuming they are feasible, would take about 10 to 12 years, and longer than a private housing development, to complete[6].

40.  Mr Yu has referred the court to a number of authorities in support of these arguments.  First, Mr Yu refers to the judgment of the English Court of Appeal in R (on the application of Mount Cook Land Ltd) v Westminster CC [2004] 2 P & CR 22.  That case arose out of an application by a tenant (R) who held a 999-year lease of a building at Oxford Street (with 910 years still to run) for planning permission to make a number of relatively minor physical external alterations to the building.  The application was objected to by the freehold owner (M), who had substantial property interests in the area and would have liked to acquire R’s lease in order to develop the building for its own purposes, on the ground that there were other, alternative planning proposals for the development of the building which were said to be preferable.  R’s application was granted by the local council.  M’s application for leave (or permission) to apply for judicial review of the local council’s decision was rejected at first instance.  M appealed against the refusal of leave (or permission) to the Court of Appeal.  Auld LJ (with whom Clarke and Jonathan Parker LJJ agreed) dismissed M’s appeal.  On the question of the relevance of the alternative proposals, Auld LJ stated as follows:

“[30] Mr Corner, in the course of his submission, put forward the following general propositions which, with some slight additions, I accept as correct statements of the law and as a useful reminder and framework when considering issues such as this. They are:

(1) in the context of planning control, a person may do what he wants with his land provided his use of it is acceptable in planning terms;

(2) there may be a number of alternative uses from which he could choose, each of which would be acceptable in planning terms;

(3) whether any proposed use is acceptable in planning terms depends on whether it would cause planning harm judged according to relevant planning policies where there are any;

(4) in the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites are normally irrelevant in planning terms;

(5) where, as Mr Corner submitted is the case here, an application proposal does not conflict with policy, otherwise involves no planning harm and, as it happens, includes some enhancement, any alternative proposals would normally be irrelevant;

(6) even in exceptional circumstances where alternative proposals might be relevant, inchoate or vague schemes and/or those that are unlikely or have no real possibility of coming about would not be relevant or, if they were, should be given little or no weight.

[32] In my view where application proposals, if permitted and given effect to, would amount to a preservation or enhancement in planning terms, only in exceptional circumstances would it be relevant for a decision-maker to consider alternative proposals, not themselves the subject of a planning application under consideration at the same time (for example, in multiple change of use applications for retail superstores called in by the Secretary of State for joint public inquiry and report). And, even in an exceptional case, for such alternative proposals to be a candidate for consideration as a material consideration, there must be at least a likelihood or real possibility of them eventuating in the foreseeable future if the application were to be refused. I say ‘likelihood’ or ‘real possibility’, as the words tend to be used interchangeably in some of the authorities; see, e.g.New Forest DC v Secretary of State for the Environment (1996) 71 P. & C.R. 189, per Mr Nigel Macleod, sitting as a Deputy High Court Judge. If it were merely a matter of a bare possibility, planning authorities and decision-makers would constantly have to look over their shoulders before granting any planning application against the possibility of some alternative planning outcome, however ill-defined and however unlikely of achievement. Otherwise they would be open to challenge by way of judicial review for failing to have regard to a material consideration or not giving it sufficient weight, however remote.

[33] When approaching the matter as one of likelihood or real possibility, as I have already indicated, it may often be difficult to distinguish between the concepts of materiality and weight; and both, particularly weight, are essentially matters of planning judgment. But I do not consider that a court, when considering the rationality in a judicial review sense of a planning decision, should be shy in an appropriate case of concluding that it would have been irrational of a decision-maker to have had regard to an alternative proposal as a material consideration or that, even if possibly he should have done so, to have given it any or any sufficient weight so as to defeat the application proposal.

[35] … It would be highly harmful to the efficient and otherwise beneficial working of our system of planning control if decision-makers were required to consider possible alternatives, of which, on the facts before them, there is no likelihood or real possibility of occurrence in the foreseeable future.”

41.  Second, Mr Yu refers to Zipporah Lisle-Mainwaring v Niall Carroll [2016] EWHC 2462 (Admin), which endorsed and applied the principles set out by Auld LJ in the Mount Cook case.

42.  Lastly, Mr Yu refers to Highland Bridgetown Pty Ltd v Western Australian Planning Commission (1997) 17 SR (WA) 198. That case concerned the refusal of the Western Australian Planning Commission to permit the applicant to subdivide a piece of land into (inter alia) 78 residential lots.  The land in question adjoined the western boundary of a townsite.  The Western Australian Planning Commission decided against the subdivision because the land was outside the townsite, and considered that it should await further planning studies.  The Town Planning Appeal Tribunal allowed the applicant’s appeal, stating as follows, at pp 205-208:

“The law has drawn a distinction between unformed plans and those which have reached a sufficient stage to colour the deliberations. The starting point is the decision of Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 at 124 where it was stated:

‘It is important in the public interest that whilst the respondent council’s local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction … avoid as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important in the public interest, that during that period this court should, in the exercise of the jurisdiction referred to, arrive at its judgment as far as possible in consonance with the Town Planning decisions which have embodied in the local scheme in the course of preparation.’

…

This principle, referred to often as the ‘non-derogation’ principle, has been followed unwaveringly in New South Wales and Victoria where the principle has been said to extend to those draft plans which can be said to be ‘seriously entertained proposals’ (a term first used in Park v Warringah Shire Council (1970) 20 LGRA 312 at 315). In South Australia, the principle has been accepted (Storey v Director of Planning (1975) 11 SASR 227 at 232) but distinguished in situations where the plan is merely an idea and has not been advanced sufficiently. In Roper v Ecksjay Nominees Pty Ltd (1982) 31 SASR 398 it was stated:

‘… In my judgment, the justification for the operation of the Coty principle … lies in the imminence of the publication of the draft plan, which represents an important step in the execution of the planner’s work. In this case, the Council, I apprehend, had reached the stage of making surveys with a view to drafting a plan. The occasion for the principle to do its work had not arisen and, in truth, may never arise.’

…

These decisions recognise that draft schemes must have reached some concrete form before they can become relevant considerations. The idea that an area should be examined or a policy created or consultants engaged are therefore too remote to be relevant considerations. This line, albeit one that is often amorphous, must be drawn for the sake of certainty. The planning process is a result of the interplay of private and public interests and the right of a developer to advance an appropriate project is not to be dismissed merely because the local authority or Commission has not yet taken the time to consider the future of the area.

… A suitable subdivision can be refused where the elements of a policy or plan have reached sufficient maturity to become a relevant consideration as ‘proposal’ under the Western Australian Planning Commission Regulations or as a policy, directed to the land, to which weight must be accorded.

… In this case, the fact that the Shire is undertaking a planning study of the entire area is not a reason to refuse the subdivision. The Tribunal must make a decision on the merits of the proposal and not require the developer to wait until the Shire completes work on Scheme No 5. All decisions must be considered in light of what is available at the time and not stalled pending the process of further planning…

The Tribunal is aware that the effect of approving this subdivision may be read as indicating that developers may usurp the planning process when the Commission or local authority have not fully considered the direction of growth for the area. In the same way, if the developer was refused in order to allow for the process to begin, it would be sufficient to refuse any suitable subdivision on the basis that there is more work to be done.

The Tribunal finds that the subdivision is suitable and should be approved. No evidence has been presented to indicate that there are proposals in place, even in an embryonic form, which have the effect of making this subdivision inappropriate for Bridgetown. The effect of approval may be to alter the future pattern of growth but, in the absence of a defined plan or strategy, this may be ultimately to the betterment of the area; it is not possible to tell.”

43.  Mr Litton does not disputes the principles stated by Auld LJ in the Mount Cook case quoted above.  He distinguishes Mount Cook and Zipporah on three bases[7]:

(1)   They were concerned with whether in determining planning applications it was necessary for a local planning authority to consider alternatives to the proposed developments for which planning permission was being sought.  However, the present case is concerned with a s 12A application, not a s 16 application, and the two types of application are fundamentally different.

(2)   In neither of the two cases did the proposed development conflict with the relevant planning policies nor did they involve any planning harm.  In contrast with those cases, the Applicant’s proposed development conflicted with the planning intention of zone “R(E)” and “R(E)1” under the OZPs.  The Applicant’s proposed development would also have adverse impacts on water supplies, archaeological and traffic in the surrounding areas which the Applicant had failed to mitigate or produce evidence as to how they would be mitigated.

(3)   The principle underlying the reasoning in both cases was that an application for planning permission should be determined on its own merits.  However, a s 12A application engages much broader considerations, including the wider public interest.

44.  Mr Litton argues, alternatively, that even if Mount Cook and Zipporah Lisle-Mainwaring were relevant to the present case, there are exceptional circumstances which entitled the Committee to take into account the proposed comprehensive public housing development having regard to the nature and importance of the Government’s plans and the considerable work already undertaken by the relevant departments[8].

45.  In respect of Highland Bridgetown, Mr Litton argues that the approach taken in that case was particular to its own facts, and is inconsistent with the regime in Hong Kong which was described in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 371, at §126, as an “holistic process, involving balancing numerous factors”.  Moreover, in the Highland Bridgetown case, there was no prospective use for the site in even an “embryonic” form whereas in the present case there clearly was[9].

46.  I accept as correct in principle that for the purpose of considering the relevance of an alternative use, a distinction may properly be drawn between an application for amendment of an outline zoning plan under s 12A, and an application for permission under s 16.

47.  As stated by Hartmann JA in International Trader Ltd v Town Planning Appeal Board [2009] 3 HKLRD 339, at §24, under the Ordinance, the TPB has two principal functions.  The first is the systematic creation of draft plans, and the second is the consideration of applications by persons who seek some required permission under a plan, either a draft one or one already approved by the Chief Executive in Council.  The consideration of an application for amendment of a plan under s 12A by the TPB forms part of its plan making function (ie the first of its two principal functions).  Under s 12A(24), where the TPB accepts an application under s 12A(23), the proposed amendment will be incorporated into a draft plan and the normal plan-making process would follow.  As this court recently held in Royal Billion Investment Ltd v The Town Planning Board [2021] HKCFI 1093, at §88, when considering a s 12A application, the focus of the TPB should be on whether the proposed new zoning for a given site is appropriate and acceptable from a planning point of view and desirable in the public interest.  The inquiry is a general one, although it must, of course, be guided by the statutory purpose of planning making as stated in s 3(1), namely, “the promotion of the health, safety, convenience and general welfare of the community”.  Plainly, an application under s 12A is not objectionable merely because the proposed amendment is inconsistent with the existing planning intention or policy as expressed or found in the outline zoning plan sought to be amended.

48.  On the other hand, when considering an application for permission under s 16, the TPB would be performing the second of its two principal functions.  In such an application, the TPB is confined by the parameters of the approved outline zoning plan (see International Trader Ltd, at §§33, 38, 42 and 45-51).  In this regard, it should be noted that an application under s 16(1) may be made only where the plan itself provides for the grant of permission for any purpose.  Although the TPB has a discretion under s 16(4) whether to grant the permission sought, the discretion is not to be exercised based on a general consideration of whether granting the permission would promote the health, safety, convenience and general welfare of the community, these being matters which have already guided the TPB in the preparation of the relevant plan in the first place.  The discretion under s 16(4) is a narrower one when compared to the discretion under s 12A since it can only be exercised within the parameters of the relevant plan.  The question of what is or is not a relevant matter to take into account when considering an application made pursuant to s 16 depends on the planning intention behind the plan, which is a matter of interpretation and a question of law (see International Trader Ltd, at §55).  This having been said, when considering a s 16 application, the question for the TPB is not whether the development proposal put forward by the applicant is the best one, or whether there could be a better or preferable one for the use of the land in question.  This is because, as explained by Auld LJ in Mount Cook in the passages quoted above, a person should be entitled to do what he wants with his land provided his use of it is acceptable in planning terms, and in the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites are normally irrelevant in planning terms save in exceptional circumstances.

49.  I do not accept Mr Yu’s alternative use argument, for two main reasons:

(1)   The considerations relevant to the Rezoning Application, being an application to amend the OZPs under s 12A, are broader than an application for permission under s 16.  It is open to the Committee to take into account wider considerations of whether the proposed amendment, if approved, would be conducive to the promotion of the health, safety, convenience and general welfare of the community.  I see no reason why a preferable, or more beneficial, alternative use of a site or area should, as a matter of principle, be regarded as an irrelevant consideration in a s 12A application.

(2)   In any event, there was not in fact any definite alternative use of the Application Site proposed for consideration by the Committee at the Meeting.  This is not a case where the Committee was asked to reject the Applicant’s Proposed Scheme involving a private housing development in favour of an alternative scheme put forward by the Government for public housing development which it was contended was preferable to the Proposed Scheme of the Applicant.  What was being said by the Government, and accepted by the Committee, was that the use of the Application Site forming part of a larger area was still under review and its suitable zoning had not yet been determined.

50.  Whether it was open to the Committee to reject the Rezoning Application on the basis referred to in §49(2) above is more properly to be considered as part of Mr Yu’s imminence argument.  As a starting point, whether a proposed new zoning in an application to amend a plan is appropriate and acceptable from a planning point of view and desirable in the public interest ought to be determined by reference to the existing state of affairs, including all current and intended permissible uses of the site and its surrounding areas.  The question which arises for consideration in this case is how far it is open to the TPB to take into account proposed future uses which are not currently permissible, or plans or policies announced by the Government regarding the future use or possible use of the site and its surrounding areas.  Plainly, a line has to be drawn somewhere, beyond which it would fall into the realm of speculation or conjecture.

51.  For the purpose of disposing of the imminence argument in this case, it is not necessary for me to decide whether the approach in Highland Bridgetown should be rejected as being inconsistent with the regime in Hong Kong as argued by Mr Litton.  This is because even in Highland Bridgetown, the line of relevance/irrelevance, while not precise, seems to be drawn between (i) a “seriously entertained” proposal, or a plan the publication of which is “imminent”, or a scheme which has reached some “concrete form”, and (ii) an “idea” which has not yet been advanced sufficiently, or a proposal which is still in an “embryonic” form.  On the facts of this case, I do not consider that the New Study could be said to be a mere “idea” or was still in an “embryonic” form at the time when the Committee made the Decision.  The proposal for public housing development in the study area (including the original proposed developments at the SHR, SHR Extension and HPR sites under the 2014 Studies and the Proposed SHR and HPR Development at the Combined Site under the New Study) had been under consideration by the Government since 2014.  The New Study was undoubtedly a seriously entertained proposal and had reached some concrete form by the time that the Committee met to consider the Rezoning Application in April 2020.  Further, it was represented to the Committee that the New Study was at an advance stage and was scheduled for completion in 2020.  It would not be unreasonable to regard the Proposed SHR and HPR Development as being “imminent”.

52.  As for the relative merits of public vis-à-vis private housing, and the difference in the time required for the implementation of the two types of housing development, these are matters for the Committee to consider as and when the issues properly arise before it, not the court in an application for judicial review.

53.  In my view, the Committee was entitled to regard the long-term development of the general area covering the Application Site under the New Study as a relevant consideration, it being a matter going to the “health, safety, convenience and general welfare of the community”, and give this factor significant weight on the facts of this case in deciding to refuse the Rezoning Application.

54.  In all, Ground 1 of judicial review is rejected.

(ii)  Ground 2

55.  Under this ground, Mr Yu submits that it was irrational for the Committee not to have made further enquiries on the following matters[10]:

(1)   whether the New Study had been delayed before and/or whether the New Study was “near completion”, and when it was anticipated or likely that the Government would make an application for rezoning of the study area;

(2)   whether accepting the Rezoning Application (with the result that 21,333 m² would be used for private housing) would in fact jeopardise a proposed comprehensive public housing development; in particular, whether the Government could reduce the number of public housing flats to be built, or would be able to construct the same number of public housing flats on the remainder of the study area (or about 249,000 m² or 24.9 ha) with a higher plot ratio; and

(3)   whether there were any studies at all on the technical feasibility of private housing development within the study area bearing in mind that, when asked by the Committee whether the development of private housing was considered in the New Study, the answer given by PlanD was that the main objective of the New Study “was to confirm the technical feasibility of public housing development within the Study area”[11].  Such study was needed for comparing the pros and cons of a private housing development with those of a public housing development so that a fully informed decision could be reached.

56.  Mr Yu says that the above inquiries ought to have been undertaken by the Committee having regard to the specific context of the present case, namely:

(1)   the Applicant’s proposed new zoning is for high-density private housing development whereas the Government’s proposed scheme is for high-density public housing development; in other words, the land use proposed is, from a land use perspective, the same;

(2)   the proposed new zoning can be implemented within a much shorter time frame;

(3)   the completion of the New Study was delayed; and

(4)   it was uncertain if, and if so, when, there would be an application to the TPB to rezone the Combined Site for public housing after the New Study and what the TPB’s decision on such decision would be[12].

57.  The relevant principles regarding the duty on the part of a decision-maker to make relevant inquiries (ie, the Tameside Duty) were set out by Hallett LJ in R (Plantagenet Alliance) v Secretary of State for Justice [2015] 3 All E R 261, at §100 (which the Court of Appeal endorsed in Deng Suet Yan v Hong Kong Housing Authority [2017] 4 HKLRD 73, at §19):

“1. The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable.

2. Subject to a Wednesbury challenge, it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken (R (Khatun) v Newham LBC [2005] QB 37 at paragraph [35], per Laws LJ).

3. The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision (per Neill LJ in R (Bayani) v. Kensington and Chelsea Royal LBC (1990) 22 HLR 406 ).

4. The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient (per Schiemann J in R (Costello) v Nottingham City Council (1989) 21 HLR 301; cited with approval by Laws LJ in (R(Khatun) v Newham LBC (supra) at paragraph [35])).

5. The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion (per Laws LJ in (R (London Borough of Southwark) v Secretary of State for Education (supra) at page 323D).

6. The wider the discretion conferred on the Secretary of State, the more important it must be that he has all relevant material to enable him properly to exercise it (R (Venables) v Secretary of State for the Home Department [1998] AC 407 at 466G).”

58.  As pointed out by this court in Royal Billion, ante, at §§97, 99 and 100:

(1)   There is no general duty on the part of a decision-maker to make inquiries on matters which may be relevant to the decision to be made by him.  The Tameside duty is a more limited one based on the conventional administrative law principle that a decision-maker exercising a statutory power must ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.

(2)   Absent any specific statutory requirement and subject to any Wednesbury challenge, it is generally a matter for the decision-maker to decide what steps to take to collect the relevant information for the purpose of answering the right question (see Smart Gain Investment Limited v Town Planning Board, HCAL 12/2006 (6 November 2007), at §87, per A Cheung J (as he then was)).

(3)   The scope and content of the duty to make inquiries, should it arise in any given case, is context specific (see Flintshire County Council v R (on the application of Anthony Jayes) [2018] EWCA Civ 1089, at §14, per Hickinbottom LJ).

59.  In respect of the matters which Mr Yu argues the Committee ought to have made further inquiries referred to in §55 above, my views are as follows.  As for §55(1), the information before the Committee at the Meeting was that the New Study was at an advance stage and was targeted for completion in 2020.  The Committee was also informed that upon completion of the New Study, PlanD would proceed to propose amendments to the OZPs based on the findings of the New Study, which would be submitted to the Committee for consideration prior to the gazettal of the draft OZPs for public inspection. As a matter of fact, the Applicant’s representative informed the Committee during the Meeting that the New Study appeared to have fallen well behind schedule[13].  Nevertheless, there was nothing to question the reasonableness of the revised targeted timeframe for the completion of the New Study mentioned in the RNTPC Paper (namely, in 2020). The Committee was entitled to proceed on that basis, and on the further basis that the application to amend the OZPs would follow upon the completion of the New Study.  I do not see that the Committee acted unreasonably in not inquiring into whether there was some previous delay in the New Study, or the anticipated or likely time frame for the application to amend the OZPs in such circumstances.

60.  In respect of §55(2), it cannot be disputed that permitting the Applicant’s proposed private residential development on the Application Site would be inconsistent with the Government’s Proposed SHR and HPR Development which is intended for public housing only, and in this sense would jeopardise the implementation of the Government’s proposed public housing development on the Combined Site.  Further, in answer to the question about the implications on the New Study should the Rezoning Application be approved, PlanD informed the Committee that “should the s.12A application be approved, it would have implication on the timing of the completion of the Study as the layout and technical assessments would need to be reviewed or conducted again”[14].  Hence, approval of the Rezoning Application would also adversely affect the progress of the comprehensive planning of the area.

61.  Mr Yu argues that the Government’s proposed public housing development on the Combined Site would not be jeopardized or adversely affected by the Applicant’s Proposed Scheme because the Government could reduce the number of public housing units to be built on the Combined Site, or may be able to achieve the same number of public housing units by constructing the public housing on the remainder of the Combined Site with a higher plot ratio.  It needs to be emphasized, however, that whether there should be more public or private housing generally, or in any particular district or area, in Hong Kong, and whether any given area should be developed for public, or exclusively public, housing, are not just planning issues.  They concern matters of general policy of which planning considerations only form a part.  The Government, not the TPB, still less the court, is primarily responsible for making decisions on how the limited land resources in Hong Kong ought to be best deployed.  Unlike the TPB, which is concerned only with planning considerations, the Government is entitled to take into account wider social, economic and political considerations when making land-use decisions.  The aforesaid alternatives proposed by the Applicant raise issues beyond mere planning considerations. Even if, for the sake of argument, it is technically feasible and acceptable from a planning point of view to accommodate both public and private housing developments on the Combined Site and the number of public housing units intended to be built can be maintained by an appropriate increase in the plot ratio of the remainder of the Combined Site as suggested by the Applicant, there is still the policy question of whether the additional flats made possible thereby should consist of public or private housing or both.  This is a matter for the Government, not the TPB/Committee, to decide.  The Committee was aware that since 2014, the Government had been pursuing the option of public housing development only in the area[15]. The Committee also asked questions about “Public/Private Housing Mix” at the Meeting, and PlanD answered in no uncertain term that “the Study area was planned for public housing.  A ratio of 70% public housing provision in the nearby area (i.e. Tuen Mun Area 54) and provision of public housing at the Study area were considered appropriate …”[16]. When asked whether development of private housing was considered in the Study, PlanD told the Committee that “the main objective of the New Study was to confirm the technical feasibility of public housing development within the Study area”[17].

62.  It was, in my view, open to the Committee to proceed on the basis that, under the on-going review of the long-term development of the study area (including the Application Site), the Government’s intention was to develop the Combined Site for public housing only (with supporting GIC and infrastructural facilities).  For the avoidance of doubt, I should make it clear that this judgment should not be read as meaning that the court is of the view that the Committee is bound to accept the Government’s decision to use the Combined Site for public housing development only should such use be found technically feasible in the New Study.  Any application by the Government to rezone the Combined Site in future will have to be considered on its own merits and in accordance with the usual procedures of the TPB.  Whether, from the planning point of view, the Combined Site ought to be used for public housing only remains to be determined by the Committee as and when the question properly arises.  The question for consideration now is a different one, namely, whether the Committee was under a duty to inquire into the possibility of accommodating the Applicant’s proposed private housing development on the Application Site alongside the Government’s proposed public housing development on the remainder of the Combined Site with either a reduction in the number of public housing units to be built or an increase of the plot ratio of the reminder of the Combined Site in order to maintain the same number of public housing units intended to be built.  The answer to this question goes back to the questions of whether (i) the Government’s on-going study on the feasibility of its proposed public housing development in the area was a relevant consideration for the Committee to take into account when determining the Rezoning Application, and (ii) whether the Committee was entitled to come to the conclusion that the Rezoning Application ought not to be the accepted pending the conclusion of the on-going study.  In view of my answers to these questions under Ground 1 above, I do not consider that the Committee was under any duty to inquire into the matters referred to in §55(2) above.

63.  Finally, in respect of §55(3), as earlier mentioned, the Committee was aware that since 2014, the Government had been pursuing the option of public housing development only in the area, and that the main objective of the New Study was to confirm the technical feasibility of “public housing development within the Study area”.  There was no purpose in the Committee asking whether the Government had commissioned any studies at all on the technical feasibility of private housing development within the study area.  Even if there were some such studies, the option of private, or partly private and partly public, housing development on the Combined Site was not being pursued by the Government.

64.  Mr Yu argues that a technical feasibility of private housing development within the study area was needed for comparing the pros and cons of a private housing development with those of a public housing development so that a fully informed decision could be reached.  It should be noted, however, that the Committee did not decide to reject the Rezoning Application because it was thought that public housing development should be preferred to private housing development, nor because private housing development within the Study area was thought to be technically not feasible. Had these been the Committee’s reasons for the Decision, Mr Yu’s argument that the Committee ought to have inquired into whether the Government had undertaken studies on the technical feasibility of private housing development within the Study area would have been on firmer ground.

65.  In any event, the clear evidence before the court is that since the completion of the 2014 Studies, the New Study is the only Government study undertaken for the Combined Site, and no other planning and engineering study, or study on private housing development, for the Combined Site has been undertaken by the Government (see §§22 and 42 of the Affidavit of Yuen Shing Yip Kelper).  Thus, any such inquiries would not have made any difference to the Committee’s consideration of the Rezoning Application.

66.  In all, I do not consider that it was unreasonable, in the public law sense, for the Committee not to pursue the lines of inquiry as suggested by the Applicant.

(iii)    Ground 3

67.  Ground 3 complains that PlanD failed to fairly and adequately presented to the Committee relevant materials in breach of its public law duty.  The matters which the Applicant complains PlanD failed to fairly and adequately presented to the Committee are identified in §52.1-52.7 of the Form 86.  In his submissions, Mr Yu focuses on 2 matters, namely, (i) the fact that the New Study had been delayed and the reason(s) for the delay, and (ii) the fact that the Government had previously explored the issue of whether the proposed public housing development at the Combined Site could be adjusted to take into account two approved private housing developments with lower plot ratios in October 2014 and March 2015[18].

68.  In respect of (i), Mr Yu argues that (a) the New Study was originally targeted for completion in the first quarter of 2020 as mentioned in §11.2 of RNTPC Paper No A/TM-LTYY/381A (prepared by PlanD for the Committee’s consideration of the 381 Application, “the RNTPC Paper No 381A”), and (b) such information as well as the reason(s) for the delay were relevant because there could be further delay(s) if the reason(s) for the delay remained in which case the New Study would not be “near completion”[19]. Mr Yu says that this might well prompt the Committee to further ask what exactly did “near completion” mean.  While maintaining the inadmissibility of evidence relating to post-Decision events, Mr Yu points out that the New Study has still not been completed more than a year since the Committee’s Decision on 24 April 2020.

69.  As earlier mentioned, the present application should be determined on the basis of facts and matters before the Committee at the Meeting on 24 April 2020, and subsequent events should be excluded from consideration.  The evidence shows that although the New Study was originally targeted to be completed in the first quarter of 2020, by April 2020, the targeted time for completion of the New Study had been revised to 2020.  The statement in §4.4 of the RNTPC Paper that the New Study was “scheduled for completion in 2020” was “based on the best understanding of the Government on the progress of the New Study at that time”, and represented the “most up-to-date programme at that point of time” which superseded the previous targeted time for the completion of the New Study[20].  The Committee was also informed that the New Study was then at “an advance stage”[21].  At that point of time, the delay was a matter of months, which should be viewed in the context of an engineering and feasibility study relating to a proposed major public housing development.  In the nature of things, the targeted time for completion of such study would be an estimate only instead of a precise one.  Further, whatever might have been the cause of the delay, there was no doubt that the Government was seriously pursuing the Proposed SHR and HPR Development.  I do not see that the fact of the delay, or the reason(s) for the delay, in the completion of the New Study would have any material bearing on the Committee’s consideration of whether the Rezoning Application should be rejected in view of the Government’s on-going review of the long-term development of the area (including the Application Site), and/or the view taken that, if the Rezoning Application were approved, it would adversely affect the comprehensive planning of the area, and jeopardise the implementation of the proposed public housing development in the area.

70.  In respect of (ii), it is clear that since around 2017, the Government had decided, in view of the demand for public housing, to pursue the Proposed SHR and HPR Development on the Combined Site which did not include any element of private housing (see §42 of the Affidavit of Yuen Shing Yip Kepler).  There was no purpose in PlanD informing the Committee of the historical fact that the Government had previously explored the possibility of whether the proposed public housing development in the area could be adjusted to take into account two approved private housing developments.  Such matter seems to me to be irrelevant to the Committee’s consideration.

71.  I have considered the other matters mentioned in §52.1-52.7 of the Form 86, but do not believe that they add anything of substance to this ground of judicial review.  None of those other matters seems to me to be relevant to, or would affect, the Committee’s decision to reject the Rezoning Application for Reason (a).

72.  In considering this ground of judicial review, the ultimate question to ask is whether the matters which the Applicant alleges were not fairly or adequately presented by PlanD to the Committee resulted, or might result, in the Committee proceeding on a material mistake of fact, or render the process before the Committee unfair, or make the Decision unreasonable in the public law sense.  I am not satisfied that this is the case here.  Accordingly, Ground 3 of judicial review is rejected.

(iv)    Ground 4

73.  The complaint under Ground 4 that the Committee’s reliance on Reason (a) to reject the Rezoning Application was Wednesbury unreasonable or irrational is based essentially on the same arguments under Ground 1, which I have already dealt with above.  In passing, I should mention that the Applicant also argues that the Committee ought, instead of dismissing the Rezoning Application, to have adjourned the application and demanded for more information from PlanD so as to be able to have an informed view on whether, and if so the extent to which, the grant of the application could prejudice a comprehensive planning of the area[22].  In my view, the materials before the Committee were sufficient for it to form a view on whether the Rezoning Application should not be accepted because of the on-going New Study regarding the long-term development of the area (including the Application Site).  It was open to the Committee to proceed to determine the Rezoning Application on the basis of the information and materials before it, instead of adjourning the application to seek more information about the progress or implications of the New Study.  In short, Ground 4 of judicial review is rejected.

REASON (B): TECHNICAL ISSUES

74.  Having reached the conclusion that the Committee was entitled to reject the Rezoning Application based on Reason (a), it is strictly unnecessary for me to consider the Applicant’s remaining grounds of judicial review in respect of Reason (b) relating to various technical issues (namely, water supply, archaeological and traffic issues).  This is because Reason (a) was a fundamental reason for the Committee’s decision to reject the Rezoning Application.  It seems to me to be clear that even if the Committee had accepted the Applicant’s contentions in respect of the technical issues, it would still have rejected the Rezoning Application based on Reason (a).  Thus, even if the court were to find that the Committee’s Reason (b) for the Decision could be vitiated on some public law grounds, it should still not exercise its discretion to grant relief in this application and remit the Rezoning Application to the Committee for fresh consideration of the technical issues, because the outcome of the Rezoning Application would inevitably be the same.

75.  For the sake of completeness, I shall briefly state my views and conclusions on the remaining grounds of judicial review.

(i)    The technical issues

76.  The outstanding technical issues arising out the Applicant’s Proposed Scheme were set out in the RNTPC Paper, as follows:

(1) Comments of the Commissioner for Transport (C for T), at §9.1.5 -

“He has the following comments on the Traffic Impact Assessment (TIA) which includes a Pedestrian Assessment.

(a) Comment on the Pedestrian Assessment - As shown in previous report that there is another pedestrian route from the proposed site to LRT station via San Tat Lane, etc. The assessment with level of service (LOS) for this route should also be provided.

(2) Comments of the Chief Engineer/Construction, Water Supplies Department (CE/C, WSD), at §9.1.11 -

“Major comments on the Application

(a) It is noted that the indicative scheme consists of 1,998 flats with target population intake year 2025. The estimated design population to be 5,395 heads (= 1,998 x 2.7), the fresh water demand and salt water demand are 1,981 m³/day and 398 m³/day respectively according to the submitted Water Supply Impact Assessment report which are subject to further review.

(b) The current fresh water and salt water supply systems within the supply zone of Tuen Mun North Fresh Water Service Reservoir and Tuen Mun North Salt Water Service Reservoir have been fully committed which do not have spare capacity for the application. Existing water infrastructures including service reservoirs and water pipes are not adequate to cater for the application without affecting existing users.

(c) The applicant did not propose any mitigation measures towards the adverse impact induced from the application. The applicant claimed to re-arrange the population intake year to tie in with the relevant water supply improvement works if required. He did not provide further information such as the programme of the water supply improvement works and the proposed postponed population intake year to demonstrate the technical feasibility of his proposal.

(d) To conclude, the applicant has not yet demonstrated the technical feasibility of the application from the water supply point of view.”

(3) Comments of the Executive Secretary (Antiquities and Monuments), Antiquities and Monuments Office (ES(A&M), AMO), at §9.1.12 -

“(a) The Site is situated within the San Hing Tusen Site of Archaeological Interest … It is noted that part of the Site in the current submission is covered by the area of the previous approved [273 Application]. According to the detailed AIA[23] completed under [the 273 Application], the covered area is concluded to have no archaeological potential. In this connection, the applicant is required to conduct a desktop study to assess the archaeological impact imposed by the proposed residential development on the remaining area of the Site not covered by the said AIA (mainly the Phase B area in the current application). Subject to the findings of the desktop study, appropriate mitigation measures, if needed, shall be implemented by the applicant in consultation with the AMO.

(b) With regard to the applicant’s responses to AMO’s comments above at Appendix Id[24], AMO is of the view that land access shall not be an obstacle for conducting a desktop study.  A desktop study or desktop research is mainly a literature review conducted to analyse, collect and collate the best available information which may include (but not limited to) archives, publications, historical documents, archaeological reports, cartographic or pictorial documents and so on from any libraries, tertiary academic or research institutions, museums, Public Records Office, Land Registry, District Lands Office, District Offices, or any other available places.  In this regard, the applicant is required to conduct a desktop study at this stage to assess the archaeological impact imposed by the proposed residential development on the remaining area of the application site not covered by the detailed AIA completed under the previous approved scheme, i.e. [the 273 Application].  Subject to the findings of the desktop study, appropriate mitigation measures, if needed, shall be implemented by the applicant in consultation with the AMO.”

77.  PlanD set out its consideration and assessment of the aforesaid technical issues in §§11.6 to 11.8 of the RNTPC Paper:

“Technical Aspects

11.6 The applicant has submitted WSIA[25] to support the application. However, CE/C, WSD advises that the current fresh water and salt water supply systems within the supply zone of Tuen Mun North Fresh Water Service Reservoir and Tuen Mun North Salt Water Service Reservoir have been fully committed and do not have spare capacity for the proposed development under the application. Existing water infrastructures including service reservoirs and water pipes are also not adequate to cater for the application without affecting the existing users. The applicant has not proposed any mitigation measures to address the adverse impact induced from the application and has yet to demonstrate the technical feasibility of the application from the water supplies point of view.

11.7 The Site is located at the San Hing Tsuen Site for Archaeological Interest … ES(A&M), AMO requires the applicant to conduct a desktop study to assess the archaeological impact imposed by the proposed residential development on the area of the Site that is not covered by the AIA approved under the previous [273 Application]. Although the applicant has stated that the AIA required would be conducted either by the respective lot owners or by the applicant upon acquisition of the respective lots in future, AMO requires the applicant to conduct the desktop study at this stage to assess the archaeological impact imposed by the proposed residential development. In view of that, the applicant fails to demonstrate that the application would not result in adverse archaeological impact.

11.8     The applicant has also submitted a TIA which includes a Pedestrian Assessment to support the application.  C for T requires the applicant to provide technical clarification on the TIA which includes a Pedestrian Assessment.  However the applicant has yet to submit any information in this regard and to demonstrate the technical feasibility of the application from traffic point of view.”

78.  PlanD concluded that “the applicant fails to demonstrate that the proposed rezoning would not generate adverse water supplies, archaeological and traffic impacts on the surrounding areas” (see §12.1(b) of the RNTPC Paper).

79.  The Applicant’s responses to the outstanding technical issues were, in gist, as follows:

(1)   In relation to traffic impact, the Applicant did not carry out the pedestrian assessment in respect of the pedestrian route from the Application Site to the LRT station via San Tat Lane as required by the Commissioner for Transport.  Nevertheless, the Applicant’s representative claimed at the Meeting that the Applicant’s traffic consultants had already done some “check” on the matter, and “the level of service is fine, it’s all level A”[26]. No further detail of the “check” was given, and the work of the traffic consultants was not produced by the Applicant for consideration by the Committee.

(2)   In relation to archaeological impact, the Applicant also did not carry out the desktop study as required by the Antiquities and Monuments Office.  The Applicant argued that it had already carried out an archaeological impact assessment under the previous 273 Application (which covered a portion of the Application Site), and “a similar outcome is expected on the additional area covered by the [Rezoning Application]”[27]. The Applicant further contended that “[s]ince some of the additional area is currently owned by others, the applicant has difficulty in carrying out any study on other’s land.  Provided that the applicant could acquire the area owned by others at later stage, the applicant is willing to carry out further desktop study on AIA for the additional area concerned.”  At the Meeting, the Applicant’s representative claimed that the Applicant’s consultant had concluded that the Proposed Scheme would have no real archaeological impact in respect of the area not covered by the previous archaeological impact assessment, but it was “willing to carry out more detailed AIA at the detailed design stage”[28]. 

(3)   In relation to the issue of water supply, the Applicant produced a Revised Water Supply Impact Assessment dated February 2020 which stated that the estimated water demands on the fresh and salt water service reservoirs’ capacities arising from the Proposed Scheme would only be 3.27% and 3.38%, and thus the water supply impact would be minimal[29]. The Applicant also said that it was prepared to re-arrange the population intake year of the Proposed Scheme to tie in with the relevant water supply improvement works if required.

80.  The Applicant’s overall position at the Meeting in respect of the outstanding technical issues was that they were “minor” issues and “could be addressed at the detailed design stage”[30].

(ii)  Ground 5

81.  Ground 5 complains that the Committee wrongfully failed to “consider” the technical aspects of the Rezoning Application in breach of its statutory duty under s 12A(22) and (23), as shown by the fact that the Members of the Committee did not ask any question in relation to the technical issues or discuss those issues at the Meeting, and adopted almost word for word PlanD’s view in §12.1(b) of the RNTPC Paper in Reason (b) of its Decision (see §56.1-56.5 of the Form 86).

82.  Mr Yu relies on the judgment of Lisa Wong J in The Trustees of the Church of England in the Diocese of Victoria, Hong Kong v Town Planning Board [2020] HKCFI 501, at §82, to argue that a proper consideration of an application “involves an active intellectual process” directed at the relevant representations or submissions, and the duty of consideration requires “the decision maker … to personally consider them rather than rely on an official’s consideration of them”.  In that case, the learned Judge found, at §§71 and 72 of her judgment, that the TPB had failed to exercise an independent judgment or give any or any adequate consideration to the “comments” under s 6B(8).  At §84 of her judgment, the Judge concluded that “… the Board should demonstrate with objective evidence that it had given due consideration of the Comments in compliance with s 6B(8).  It is especially so where the Comments contained elaborate reasoning, as fairness demands that the Board should demonstrate that it had engaged with such reasoning in its decision”.  I do not believe that Lisa Wong J was intending to lay down any general principle of law as to how the TPB may demonstrate that it has given proper consideration of a town planning application before it.  Her findings and conclusions in that case seem to me to be very much based on her analysis of the particular facts of the case (see §§66 to 67 of the judgment). It cannot be the case that the TPB must ask questions, or discuss all the issues in an application, at a meeting in order to demonstrate that it has given due consideration of the application.  Much depends on the nature of the issues under consideration, the completeness of the analysis in the relevant paper prepared by PlanD, and the applicant’s responses.  While there is no doubt that the TPB is under a statutory duty to properly “consider” a rezoning application made under s 12A, it would, I believe, be unrealistic and impose an intolerable burden on the TPB to require it, in every case, to demonstrate by “objective” evidence that it has engaged in “an active intellectual process” in respect of all issues which may arise for its consideration in a town planning application.

83.  In this case, the Government departments/officials responsible for water supplies, traffic management and antiquities and monuments raised various concerns arising out of the Applicant’s Proposed Scheme and required the Applicant to address them.  It was not suggested by the Applicant that those concerns were groundless or frivolous, or did not have to be addressed at all.  It was also clear that the Applicant did not carry out the further assessments as required by the Commissioner for Transport and the Antiquities and Monuments Office.  The contrary was not argued[31].  The suggested difficulty of complying with the requirement of the Antiquities and Monuments Office because the Applicant was not the owner of the relevant portion of the Applicant Site was plainly a bad excuse in view of the nature of a desktop study as explained in §9.1.12(b) of the RNTPC Paper.  In so far as the water supply issue was concerned, whether the additional demands of 3.27% and 3.38% on the existing fresh and salt water supply systems would only give rise to a “minimal” impact was a matter of judgment for the Committee to consider.  In any event, the Applicant’s contention about the limited additional demands for fresh and salt water by the Proposed Scheme did not address WSD’s concern that the existing fresh and salt water supply systems within the relevant supply zone had already been fully committed and did not have spare capacity for the Proposed Scheme, and that existing water infrastructures including service reservoirs and water pipes were not adequate to cater for the Proposed Scheme without affecting existing users.  In respect of the Applicant’s suggestion that it was prepared to adjust the population intake year of the Proposed Scheme to tie in with the relevant water supply improvement works, as pointed out in §9.1.11(c) of the RNTPC Paper, the Applicant failed to provide information such as the programme of the water supply improvement works and the proposed postponed population intake year.  It may also be noted that, at §14.1 of the Rezoning Application, it was stated that “[the Proposed Scheme] could be implemented and made available to the housing market at a much earlier date, compared to the program of the immediately adjacent H&S[32] public housing development”.  The Applicant’s suggestion to delay the population intake of the Proposed Scheme was at odds with its position that the Proposed Scheme was preferable to the Government’s proposed public housing development because it could be implemented within a short timeframe (5 years vis-à-vis 10 years).

84.  In the circumstances, I do not consider that there was much room for discussion as to whether the Applicant had failed “to demonstrate that the proposed rezoning would not generate adverse water supplies, archaeological and traffic impacts on the surrounding areas” [emphasis added].  The Applicant’s position at the Meeting that the outstanding technical issues could be addressed at a later stage was effectively an admission that the it had not yet demonstrated that the Proposed Scheme would not generate adverse water supplies, archaeological and traffic impacts in the surrounding areas.

85.  In passing, I should mention that this ground of judicial review is not about whether the potential adverse water supplies, archaeological and/or traffic impacts arising from the Proposed Scheme would be “serious”, or were only “minor” issues as contended by the Applicant.  In any event, I do not see how the potential water supply problems identified by WSD can reasonably be said to be a minor issue only.

(iii)    Ground 6

86.  Ground 6 complains that the Committee failed to make sufficient inquiries.  Mr Yu argues that, in view of WSD’s comment at §§9.1.11(b) and 11.6 of the RNTPC Paper, the Committee should have caused enquiries to be made:

(1)   on whether water could be supplied to the Application Site by “the future extension to Ngau Tam Mei Water Treatment Works” because this was referred to at §11.1 of the Explanatory Statement of the LYTT OZP; and

(2)   about the source(s) of water supply for the proposed public housing development on the Application Site. This is relevant, says Mr Yu, because the proposed public housing development on the Combined Site would also require a supply of water and so any plans to upgrade the infrastructure to accommodate such development would also cater for the Applicant’s proposed private residential development at the Application Site (see §§57.1-57.2 of the Form 86).

87.  As mentioned under Ground 2 above, the issue is one of rationality, or Wednesbury reasonableness.

(1)   I do not consider that it was irrational or Wednesbury unreasonable of the Committee not to have inquired into the first matter (ie on whether water could be supplied to the Application Site from the future extension to Ngau Tam Mei Water Treatment Works), there being no suggestion raised prior to or at the time of the Meeting that it could provide the necessary water supply to the Applicant’s Proposed Scheme.  In any event, as explained by Ms Lung Siu Yuk in her Affirmation filed on 11 December 2020, at §70, the future extension to Ngau Tam Mei Water Treatment Works is a Government works for treatment and disinfection of fresh water, while the concern raised by WSD related to the capacity of the service reservoirs and water pipes to serve the Proposed Scheme (not the question of water treatment).

(2)  I also do not see that it was irrational or Wednesbury unreasonable of the Committee not to have inquired into the second matter (ie the source(s) of water supply for the proposed public housing development on the Application Site), bearing in mind that -

(a)  As mentioned in the Affirmation of Yuen Shing Yip Kelper, at §48, the Government’s Proposed SHR and HPR Development and the Applicant’s Proposed Scheme are two substantially different proposals with different parameters and requirements on water supply.

(b)  The Government’s proposed public housing development was, at the time of the Meeting, still at the technical feasibility stage.  One of the matters under study related to water supply[33].

(c)  The different time frame for the completion of the Government’s proposed public housing development (which could take 10 years from the feasibility study stage to OZP amendments, land resumption, site formation and construction), and the Applicant’s Proposed Scheme (with anticipated completion year of 2025).

88.  In passing, I should mention that Mr Yu also relies on s 4(1) of the Waterworks Ordinance, Cap 102, which provides that the Director of Water Supplies has a statutory duty to supply water from the waterworks in accordance with the Ordinance.  I am unable to see the relevance of s 4(1) of the Waterworks Ordinance in the context of the present discussion, namely, whether the Applicant has failed to demonstrate that its Proposed Scheme would not generate adverse impact on water supply in the surrounding areas.  The purpose of the Meeting was to consider the acceptability of the Rezoning Application, under which it was proposed that the Application Site would be used for “high density private residential development” with 1,998 units and a designed population of 5,395.  The issue of adequate fresh and salt water supply to the proposed development was plainly an important issue which should be satisfactorily addressed before it would be right for the Committee to approve the Rezoning Application.  This is an issue to be resolved at the planning stage, not after the proposed private housing development has been constructed.  On the other hand, the duty of the Director of Water Supplies to supply water from the waterworks under the Waterworks Ordinance would, it seems to me, only arise after the Rezoning Application has been approved and the Proposed Scheme materialised.

(iv)    Ground 7

89.  Ground 7 complains that the Committee failed to adequately consider, and/or make an informed decision on, the Rezoning Application because relevant materials were not fairly and adequately presented by PlanD.  In particular, the Applicant contends that PlanD failed to inform the Committee:

(1)   about the source(s) of water supply for the proposed public housing development on the Application Site.  Mr Yu argues that it is totally inconceivable that the Government would not have considered the supply of fresh water and salt water for the proposed public housing developments on the Study area (including the Application Site) of about 249,000 m² or 24.9 ha; and

(2)   that the CE/C, WSD had no objection to the 381 Application on a major part of the Application Site.  Mr Yu points out that the PlanD had such information because it was referred to at §9.2(d) of the RNTPC Paper No 381A.

90.  In respect of the first matter mentioned in §89(1) above, I accept Mr Litton’s submission that it does not add anything to the Applicant’s earlier grounds (in particular Ground 6), and do not see that PlanD was under a duty to inform the Committee about the source(s) of water supply for the Government’s proposed public housing development on the Combined Site (including the Application Site).

91.  In respect of the second matter mentioned in §89(2) above, the 381 Application was an altogether different development proposal from the Proposed Scheme.  The 381 Application concerned a proposed private residential development comprising 96 flats with a designed population of 259[34], while the Proposed Scheme comprised 1,998 units with a design population of 5,395.  The demands on water supply under the two proposals were simply not comparable.  In the circumstances, I do not consider that PlanD was under any duty to inform the Committee of the fact that WSD had no objection to the 381 Application from the water supply point of view.  That matter was irrelevant to the question of whether the Applicant’s Proposed Scheme under the Rezoning Application would give rise to adverse water supply impact in the surrounding area.

92.  The Applicant also complains that PlanD did not explain to the Committee various other matters referred to in §§59.1 - 59.3 of the Form 86.  I do not see that the matters referred to in §§59.1 - 59.2 of the Form 86 were relevant to Committee’s consideration of whether the Applicant had demonstrated that the Proposed Scheme would not result in adverse water supplies, archaeological and traffic impacts in the surrounding areas.  In an application for judicial review of a rezoning decision made by the TPB/Committee, it is not the court’s function to examine in microscopic detail what mattes were or were not brought to its attention by PlanD.  The absence of reference by PlanD to the matters referred to by the Applicant did not lead to the Decision being irrational/Wednesbury unreasonable, or the process procedurally unfair. As for the suggestion that the outstanding technical issues were “minor” and could be addressed at the detailed design stage, that was a matter for the Committee to assess.  Anyhow, as earlier mentioned, the question of water supply could not, on any view of the matter, be regarded as a minor technical issue.

(v)  Ground 8

93.  Ground 8 complains that the rejection of the Rezoning Application was Wednesbury unreasonable or irrational.  This ground largely overlaps with Grounds 5, 6 and 7, which have already been dealt with above.  In so far as it is suggested that the Committee ought to have adjourned the Meeting to a later date to allow the Applicant to deal with the technical issues (see §60(a) of the Form 86), the Applicant had been sufficiently informed of the concerns raised by the Government departments in respect of the various outstanding technical issues prior to the Meeting.  The Applicant chose to adopt the stance that they could be dealt with later at the detailed design stage.  I do not consider the Committee’s decision to proceed with the determination of the Rezoning Application on the basis of the facts and materials before it at the Meeting to be Wednesbury unreasonable or procedurally unfair.  In so far as it is suggested that the Committee failed to attach adequate weight on various matters referred to in §§61.2 and 61.2 of the Form 86, such complaint is effectively an impermissible merits challenge.

(vi)    Ground 9

94.  Lastly, Ground 9 complains that the Committee’s reliance on a remark by a Member of the Committee was a procedural irregularity resulting in unfairness to the Applicant.  It appears from §28 of the Confirmed Minutes that during the deliberation session of the Meeting, a Member of the Committee expressed the view that “from land use planning point of view, the proposed development at the Site should take account of its surrounding developments in a comprehensive manner.  That aspect had not been properly addressed in the subject application”.  The meaning of this remark is not entirely clear.  The Applicant contends that it means that “the Applicant would also have to take into account the surrounding areas including developments thereon in a comprehensive manner” (ie the existing developments) in order to demonstrate that “the proposed rezoning would not generate adverse water supplies, archaeological and traffic impacts on the surrounding areas”, and argues that this point was not raised in the RNTPC Paper or in the presentation by PlanD at the Meeting and the Applicant was not given any opportunity to address it before the Decision was made.  Thus there was a procedural irregularity resulting in unfairness to the Applicant (see §§63.2 and 64 of the Form 86).  I do not accept this argument.  The said remark of the Member did not feature in either of the two reasons given by the Committee for the Decision.  The Applicant says that it is “related” to Reason (b) (see §63.2 of the Form 18).  However, as earlier noted, Reason (b) was adopted from §12.1(b) of the RNTPC Paper. There cannot, in my view, be any real doubt that Reason (b), in its proper context, ought to be read as referring to the three technical issues identified in §§11.6 to 11.8 of the RNTPC Paper.  I do not believe that the Applicant could be under any misapprehension about this matter.  Ground 9 of judicial review is, in my view, purely opportunistic, and has no merit.

95.  In all, Grounds 5 to 9 are rejected.

DISPOSITION

96.  Leave to apply for judicial review of the Decision is granted on the basis that the application for judicial review is reasonably arguable, but the substantive application for judicial review is refused upon full consideration of the merits.  The Applicant shall pay the costs of the TPB, to be taxed if not agreed, with certificate for 2 counsel. For the avoidance of doubt, this costs order is not an order nisi, but is a final order.

[1] See §4.4 of the RNTPC Paper No Y/TM-LTYY/8A.

[2] See §6 of Skeleton Submissions on behalf of the Town Planning Board dated 2 June 2021.

[3] The appeal was eventually heard on 2-4 September and 14 October 2020, and was allowed on 15 March 2021.

[4] The 381 Application was approved by the Committee on 29 May 2020.

[5] See §§21-25 of the Applicant’s Skeleton Submissions dated 18 May 2021.

[6] See §§26-32 of the Applicant’s Skeleton Submissions.

[7] See §§20-22 of Skeleton Submissions on behalf of the Town Planning Board.

[8] See §23 of Skeleton Submissions on behalf of the Town Planning Board.

[9] See §25 of Skeleton Submissions on behalf of the Town Planning Board.

[10] See §37 of the Applicant’s Skeleton Submissions.

[11] See §§18(f) and 19(f) of the Confirmed Minutes.

[12] See §36 of the Applicant’s Skeleton Submissions.

[13] See p 14 of the transcript of the Audio Recording of the Meeting (Exhibit “YHLG-2”).

[14] See §§18(g) and 19(f) of the Confirmed Minutes.

[15] See §19(b) of the Confirmed Minutes.

[16] See §14(c) of the Confirmed Minutes.

[17] See §§18(f) and 19(f) of the Confirmed Minutes.

[18] See §§41-42 of the Applicant’s Skeleton Submissions.

[19] During the deliberation session of the meeting on 24 April 2020, some Members of the Committee stated that the New Study was “near completion” (see §27(a) of the Confirmed Minutes).

[20] See §40 of the Affidavit of Yuen Shing Yip Kepler.

[21] See §11.4 of the RNTPC Paper.

[22] See §55 of the Form 86.

[23] Archaeological Impact Assessment.

[24] Being a reference to the Further Information submitted by the Applicant on 3 April 2020.

[25] Water Supply Impact Assessment.

[26] See p 36 of the transcript of the Audio Recording of the Meeting.

[27] See §2(l) of the RNTPC Paper.

[28] See p 37 of the transcript of the Audio Recording of the Meeting.

[29] See Further Information submitted on 4 February 2020 (note that the covering letter was mistakenly dated 4 February 2019).

[30] See §12(j) of the Confirmed Minutes.

[31] See pp 35-36 of the transcript of the Audio Recording of the Meeting.

[32] Hong Po Road and San Hing Road.

[33] See §71 of the Affirmation of Lung Siu Yuk.

[34] See §1.4 of RNTPC Paper No 381A.