XCHRX DISCREET LTD. v. THE TOWN PLANNING BOARD

1996 M.P. No. 1550

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. In these proceedings, the Applicant seeks judicial review of a decision of the Town Planning Board refusing to amend a Draft Outline Zoning Plan. The result was that land owned by the Applicant was re-zoned in such a way that it had only limited development potential. However, land in the same neighbourhood owned by other developers was re-zoned in such a way that it had significantly greater development potential. One of the grounds on which the Applicant seeks judicial review of the decision is that the decision was irrational because there was no proper basis on which the Board could distinguish between the two lots.

2. In order to make good that contention, the Applicant wishes to see the documents relating to the other land which were before the Board. Production of the documents would enable the Applicant to see whether there were in fact grounds on which the Board could properly distinguish between the two lots. The Board has not been prepared to produce the documents. In correspondence, its grounds for refusal have been that the documents concerned a wholly different decision of the Board made before the decision challenged relating to different land and to a party who is not a party to these proceedings. All that is true, but it does not mean that the documents are not relevant. The documents would, as I have said, enable the Applicant to see whether there were in fact grounds on which the Board could probably distinguish between the two lots. If no such grounds exist, the Applicant's case on irrationality is accordingly improved.

3. Today, Mr. Nicholas Cooney on behalf of the Board took a more fundamental point based on the Board's belief that what the Applicant is seeking to do in these proceedings is to ask the court to decide for itself whether the difference in treatment between the two lots was justified. That would not be a permissible approach for the court to adopt. However, I have not read the documents filed on the Applicant's behalf as suggesting that course, and that has been confirmed by the Applicant's counsel today. The Applicant is seeking judicial review of the decision challenged merely on the basis that the material before the Board did not justify the Board in reaching the conclusion which it did.

4. In these circumstances, I propose to order discovery of the following classes of documents:

(i) the written objection raised by Golden Square Properties Enterprises Ltd. ("Golden Square") to the Draft Outline Zoning Plan ("the Plan") as more fully described in the Applicant's summons filed on 14th November 1996;

(ii) the minutes of the hearing of the objection raised by Golden Square to the Plan, limited to that part of the hearing which related to that objection; and

(iii) the written decision of the Board relating to the objection raised by Golden Square to the Plan.