TURBO TOP LTD v. TOWN PLANNING BOARD

CACV 255/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 255 OF 2011

(ON APPEAL FROM HCAL 23/2011)

____________

BETWEEN

___________________

J U D G M E N T

___________________

Hon Cheung CJHC:

1.  This is the applicant’s application for a stay of execution pending the determination of the appeals on appeal from the judgment of Reyes J handed down on 21 November 2011. In his judgment dismissing the applicant’s applications for judicial review, the judge lifted a stay which prevented the Town Planning Board, the respondent in the two applications for judicial review, from submitting the draft Central District Outline Zoning Plan (“OZP”) to the Chief Executive in Council for approval pending the outcome of the judicial review applications. In the present application, the applicant essentially asks the court to reinstate the stay pending the outcome of the appeals.

2.  Broadly speaking, the disputes between the parties relate to two matters.  First, whether the Town Planning Board has the necessary power under the Town Planning Ordinance (Cap 131), in preparing a draft outline zoning plan, to impose specific requirements in respect of an individual lot as opposed to adopting a broad‑brushed approach only.  Secondly, assuming that the necessary power is available, whether the Board’s specific requirements laid down in the draft Central District OZP in respect of the piece of land owned by the applicant on which Cheung Kong Center is built are Wednesbury unreasonable.

3.  The general principles governing an application for stay pending appeal are not in dispute : see, for instance, the recent case of Lam Rogerio Sou Fung v Tan Soon Gin George, HCA 2576 & 2545/2005, 27 July 2011, Chu JA, para 5.  They will not be repeated here.

4.  Having considered the arguments of the parties, I am prepared to proceed with this application on the basis that the applicant has a reasonably arguable case and I would not put it higher than that.

5.  On the facts, I am persuaded that if no stay is granted, the appeal will be rendered nugatory once the draft OZP is submitted to the Chief Executive in Council for approval and is approved, which is likely to be the case.  This is because a draft plan ceases to have any force and effect once it is approved by the Chief Executive in Council : Kwan Kong Company Limited v Town Planning Board [1996] 2 HKLR 363.  Once that happens, the present appeal will be rendered nugatory and academic.  Worst still, it will almost inevitably lead to further litigation between the applicant and the Chief Executive in Council in relation to the latter’s decision to approve the draft OZP.  Needless to say, proliferation of litigation should be avoided if possible.

6.  On the other hand, I am doubtful whether the grant of a stay would lead to unacceptable delay.  I am mindful of the statutory timeframe for the submission of a draft plan to the Chief Executive in Council for approval.  However, the evidence suggests that in practice, in a significant number of cases, the average time taken for submitting a draft plan to the Chief Executive in Council for approval is much longer than the time provided for in the Ordinance, for reasons which I need not dwell into.

7.  As regards the holding up of the entire draft plan for approval pending the outcome of the appeals and its implications on third parties given that the draft plan covers many other lots in the Central District, I am not persuaded that the Town Planning Board would be abusing its undoubted power under the Ordinance to amend a draft plan if it were to excise the subject lot from the draft plan by way of an amendment. Such an amendment would enable the draft OZP (as amended) to be submitted to the Chief Executive in Council for approval after going through the necessary consultation procedure.  That process will take time, but given the experiences in many cases alluded to above, it is not something that cannot or should not be tolerated.  I find the construction placed in the Board’s evidence filed on the meaning and scope of the provisions for amendment contained in the Ordinance too narrow and rigid.  It must be within the proper exercise of the power of the Board to amend its draft plan to excise a controversial part thereof from the plan, in order to allow the uncontroversial part to be submitted to the Chief Executive for approval without delay, leaving the controversy relating to the excised part to be determined by the court if necessary.  I fail to see how that is “contrary to the purposes of plan making under section 3, namely, promotion of the health, safety, convenience and general welfare of the community”.  Rather, I would see that as a wise and pragmatic option for the Town Planning Board to consider in face of objection to its draft plan which is pending before the court.

8.  Nor do I see this as setting an undesirable precedent.  Each case depends on its own facts.  In an application for stay, the entire circumstances, including (but not limited to) the merits of the challenge, the urgency of the matter and implications for third parties, will have to be considered carefully.

9.  It is of course for the Board, not the court, to decide whether to make any amendment to the draft OZP (if a stay is granted).

10.  On the facts of the present case, I do not find the difficulties relied on by counsel for the Board to be insurmountable.

11.  On the other hand, I do not find the counter‑proposal set out in paragraph 27 of the affidavit of Ophelia Wong dated 16 January 2012 attractive, for the reasons set out in paragraph 9 of Kenneth Wong’s affidavit dated 7 January 2012 and elaborated in paragraphs 15 to 17 of the applicant’s supplemental submission as well as in leading counsel’s oral submission today, with which I generally agree.  The reasons are particularly strong if the appeals are to be successful only in relation to the Wednesbury unreasonableness ground.

12.  Having considered the entire circumstances of the present case, I have come to the conclusion that it is just and fair to reinstate the stay, pending the outcome of the appeals.  I would leave it to the Town Planning Board to decide whether the draft plan can wait or whether, as suggested in the applicant’s evidence, it should, in the meantime, make the necessary amendments to the draft plan so as to enable the uncontroversial part thereof to be submitted to the Chief Executive in Council for approval first by way of an amended plan.

13.  I would also order that the costs of this application be in the cause of the appeals, with a certificate for two counsel.

Hon Lam J:

14.  I agree.  I only want to add that insofar as the option of amending the OZP as mentioned by my Lord in his preceding judgment is concerned, that is only one possible option and it is, as my Lord has emphasized, for the Town Planning Board to consider whether to embark on that option.  In the meantime, as provided for in section 16 of the Buildings Ordinance (Cap 123), the draft plan will still have its legal effect.  As for the other problems mentioned on behalf of the respondent, there could be other solutions.  Therefore, I agree with the order proposed by my Lord.