ORIENTAL GENERATION LTD v. TOWN PLANNING BOARD

HCAL 62/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 62 OF 2011

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HCAL 109/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 109 OF 2011

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HCAL 34/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 34 OF 2012

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(Consolidated by Order of the
Honourable Mr. Justice Reyesdated the 26^th day of March, 2012)

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J U D G M E N T

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I. INTRODUCTION

1. The Board has imposed 3 restrictions on a site occupied by Kai Tak Mansion (KTM).  This is a judicial review of those 3 restrictions.

2. The restrictions are a 130 mPD Building Height Restriction (BHR); a 10 m Non-Building Area (NBA) requirement along the north‑eastern and south-western boundaries of the site; and a 20 m wide Building Gap (BG) requirement for the middle of the site.

3. The principal issue which I have to decide is whether the 3 restrictions are arbitrary.

II.  BACKGROUND

4. KTM presently consists of four 7-storey residential buildings on 4 lots having a total area of 5,707 sq. m.  KTM sits on the Kwun Tong Road which runs along KTM’s front side from north-west to south-east.

5. KTM is 50 years old.  It is in a crumbling state and badly in need of renovation.  A majority of unit-owners (most of whom are not well off) favour re-development as the best (possibly the only financially viable) option of improving their lives.  In this aspiration, they are supported by many who live and work in the neighbourhood and district.

6. But KTM is not an easy re-development project.

7. That is because the area surrounding the site includes buildings of historical significance as well as a primary school.  There is a children’s playground on the northwest side of KTM.  Adjacent to the playground is the Sam Shan Kwok Wong Temple, a grade 3 listed building.  At the back of the site, there is a 10 m wide slope and behind the slope area there is the former Royal Air Force (RAF) Headquarters Building and Officers’ Compound (now occupied by the Hong Kong Baptist University Academy of Visual Arts).  The RAF premises are grade 1 listed buildings.  On the southeast side of the KTM is St. Joseph’s Anglo-Chinese Primary School.  Any re-development of the KTM site would have to be sensitive to these nearby low-lying structures.

8. The government leases for the KTM site require that no tenement shall exceed the level of the lawn of the RAF premises.  At all times, KTM has been (and continues to be) zoned as Residential Group (A). It is (and continues to be) subject to a plot ratio of 9 for a partly domestic and partly non-domestic building.  The non-domestic part of any building on the KTM site should not exceed a plot ratio of 7.5.

9. Oriental proposes to re-develop the KTM.  To this end, Oriental has entered into agreements to purchase over 80% of the undivided shares held by KTM unit-owners.

10. Oriental submitted building plans to the Building Authority on 30 September 2010 for a re-development at the KTM site consisting of 2 towers having a height of 203 mPD.  This plan was consistent with OZP 25 which then regulated the site.

11. But on 19 November 2010 the Board gazetted OZP 26 (incorporating the 3 restrictions (save that the BHR was then 110 mPD)).  The Building Authority consequently rejected Oriental’s plans on 26 November 2010 for (among other reasons) non-compliance with OZP 26.

12. In early 2011 Oriental made representations to the Board for a relaxation of the 3 restrictions.

13. On 1 June 2011, following deliberations, the Board agreed to amend the BHR from 110 to 130 mPD.  Such amendment to OZP 26 was gazetted on 30 June 2011.  In the meantime, a second set of building plans (which Oriental had submitted to the Building Authority in May 2011) was rejected on 24 June 2011 for non-compliance with OZP 26.

14. On 20 June 2011 the Board wrote to Oriental’s representatives to explain the Board’s decision not to relax the 3 restrictions apart from raising the BHR to 130 mPD.  The Board stated:-

“(a) BHRS are imposed in the Area to provide better planning control on the building height (BH) upon development/ redevelopment and to meet public aspirations for greater certainty and transparency in the statutory planning system, to prevent excessively tall or out-of-context buildings, and to instigate control on the overall BH profile of the Area. In formulating the BHRs for the Area, all relevant factors including the Urban Design Guidelines, existing topography, stepped BH concept, local characteristics, existing BH profile, site formation level and site constraints, the zoned land uses of the site concerned, development intensity, the recommendations the Air Ventilation Assessment, have been taken into consideration. The BHRs have struck a balance between public aspirations for a better living environment and private development right;

(b) The BHRs are formulated on the basis of reasonable assumptions with allowance for design flexibility to accommodate development intensity permissible under the Outline Zoning Plan (OZP). Blanket relaxation of the BHRs is not supported as it would result in proliferation of high-rise developments, which is not in line with the intended planning control. Deletion of BHR for Kai Tak Mansion would jeopardize the coherency of the stepped BH profile and can result in proliferation of high-rise developments;

(c) The BHR for Kai Tak Mansion is intended to avoid developments with excessive height, and the development intensity of individual sites permitted under the OZP would not be affected. Appropriate BHR should be imposed to avoid resulting in excessively tall and out-of-context buildings, which are not in line with public aspirations;

(d) The non-building areas (NBAs) and building gap for Kai Tak Mansion have taken into account the uniqueness of the site and the need for flexibility in design. These restrictions are reasonable and have struck a balance between public interest and private development right. The proposed 10 m wide NBAs at the north-eastern and south-eastern boundaries and the 20 m wide building gap at 15 mPD for Kai Tak Mansion are appropriate; and

(e)  To cater for site-specific circumstances and schemes with planning and design merits, there is provision for application for minor relaxation of the BHR(s), NBAs and building gap(s) under the OZP.  Each application would be considered by the [Board] on its individual merits based on the set of criteria set out in the Explanatory Statement of the OZP.”

15. On 7 October 2011 the Board gazetted OZP 27. That introduced amendments to OZP 26 unrelated to the KTM site.  OZP 27 included the 3 restrictions as originally imposed by OZP 26.  The 130 mPD BHR amendment to OZP 26 which had been gazetted on 30 June 2011 was not incorporated into OZP 27.

16. Nonetheless, in correspondence, the Board assured Oriental’s representatives that the amendment of the BHR to 130 mPD would take effect, subject only to a determination by the Board of further representations from interested parties for or against the relaxation of the BHR to 130 mPD.

17. The Board heard those further representations on 3 February 2012.  The Board decided to uphold the amendment to 130 mPD (but no more) and informed Oriental accordingly on 27 February 2012.  The Board wrote:-

“-- The building height restriction (BHR) of 130 mPD for the Kai Tak Mansion site has taken into account the permissible development intensity of the Site, including the slope area at the back of the Kai Tak Mansion site. With the area along Kwun Tong Road subject to BHRs of 80 mPD and 100 mPD, the area further uphill subject to BHRs of 160 mPD and 170 mPD, the BHR for the Kai Tak Mansion site would still maintain a broad stepped height profile for the area.

...

-- (a) The original BHR of 110 mPD for the Site is formulated based on a host of relevant planning, visual and urban design considerations. Air ventilation is only one of them. The relaxation of BHR from 110 mPD to 130 mPD is to accommodate the permissible GFA allowed on site, i.e. to include the slope area for GFA calculation. The BHR for the Kai Tak Mansion site would still maintain a broad stepped height profile for the area. Further relaxation of the BHR would undermine the integrity of the building height profile and create ‘out-of-context’ buildings not in line with public aspirations;

-- (b) The BHRs for the Site would not necessarily result in larger building bulk and would allow flexibility in the shape and form of the buildings. The BHR of 130 mPD does not preclude the incorporation of wider building gap within the Site, innovative architectural features and landscape treatment. Whilst a relaxed BHR would not guarantee the provision of wider building gaps, the non-building areas and building gap stipulated for the Kai Tak Mansion site would provide linkages to the adjacent heritage features by opening up wider views to and from these histroical buildings, as well as avoiding development with typical long continuous facade; and

--  (c)  There is provision for application for minor relaxation of the BHRs, non-building area and building gap requirement under the Outline Zoning Plan (OZP) to cater for schemes with planning and design merits.  Each application would be considered by the TPB on its individual merits based on the set of crietria set out in the Explanatory Statement of the OZP.”

18. Of the 3 judicial reviews now before the Court, HCAL 62/2011 is a challenge to OZP 26; HCAL 109/2011 is a challenge to OZP 27; and HCAL 34/2012 is a challenge to the Board’s decision not to relax the 3 restrictions apart from raising the BHR to 130 mPD.

III.  DISCUSSION

A.  Are the 3 restrictions arbitrary?

A.1  Board’s justifications for the 3 restrictions

19. OZP 26 and 27 roughly cover 3 areas.  Those areas are the Kowloon Bay Business Area (also known as KBBA) to the west; the Ngau Tau Kok Area in the centre; and the Choi Wan Road/ Jordan Valley Area to the east.

20. KTM is in the Ngau Tau Kok Area.  In the same area, within KTM’s vicinity, Government has approved the building of the Choi Tak Estate for public housing with a height of up to 174 mPD (41 storeys). There is also a nearby private housing development known as 8 Clear Water Bay Road with a height of 184.3 mPD (56 storeys).

21. The Board imposed the initial BHR of 110 mPD pursuant to recommendations from its Metro Planning Committee (MPC).

22. A Planning Department paper for the MPC explained the concept behind the overall building height restrictions being proposed for incorporation in what was to become OZP 26.  The MPC paper stated:-

“8.1 The current BH [Building Height] restriction on the developments in KBBA is to create a discernible townscape in the Area by forming a critical mass of office/ commercial uses at 170 mPD as an identifiable business node. The proposed BH profile for the residential developments to the east of Kwun Tong Road mainly follows the topography by stepping up gradually eastward and northward towards the Jordan Valley and the foothill of Kowloon Peak with no intrusion of the Jordan Valley ridgeline at 190 mPD.

8.2 The Area in general falls within the view fans of Quarry Bay Park and HKCEC New Wing vantage points (the contours are between 150 mPD - 350 mPD).... As such, the existing and proposed BH profiles of the Area has taken into account preserving the 20% building-free zone of the ridgelines of Kowloon Peak when viewing from both vantage points.

8.3  In general, height bands which commensurate with the planning intention of the various land use zones as well as reflecting the majority of the existing buildings/ committed developments is adopted.”

23. In keeping with the MPC paper’s Stepped Building Height Concept, the MPC decided to adopt progressive bands of maximum building heights, ranging from 80 mPD to 180 mPD, moving eastwards and northwards from the Ngau Tau Kok to the Jordan Valley Areas.

24. The MPC gave careful consideration to the KTM site, which fell within the band for which a maximum building height of 100 mPD was proposed.  The MPC noted “concerns that redevelopment of the site for high-rise building would cause adverse impact on air ventilation, incompatibility with the historical buildings and low-rise settings and visual impacts on its neighbours”.  In light of those concerns, the MPC adopted a maximum building height of 110 mPD “to minimize overshadowing/dwarfing effect of high rise development on the adjoining low-rise buildings, as well as to maintain compatibility to the overall height profile in the surrounding area”.

25. Before the Board, Oriental objected to the 110 mPD restriction because (among other reasons), the nearby Choi Tak Estate and 8 Clear Water Bay Road had been permitted to build higher than 110 mPD.

26. The Board rejected this objection because Choi Tak Estate and 8 Clear Water Bay Road had higher site formation levels.

27. Choi Tak Estate comprises 2 platforms with site formation levels of 41 and 60.5 mPD.  Given the BHRs of 160 and 170 mPD for that Estate, the 2 buildings at Choi Tak would have absolute building heights of 119 and 109.5 m.

28. On the other hand, 8 Clear Water Bay Road was subject to a special building design.  It had to accommodate a park and ride facility.  This meant that 8 Clear Water Bay had to be built with 4 levels of podium public car park.  Further, the car parks needed to be situated above a two level public transport interchange.  These requirements dictated a podium of 43.9 mPD with buildings on top having absolute heights of 140.1 and 164.6 mPD.

29. In contrast, KTM has a site formation level of about 5 mPD.  A BHR of 110 mPD would therefore mean an absolute building height of 105 mPD.

30. The Board also thought that Choi Tak Estate and 8 Clear Water Bay Road had a different context from KTM.  In contrast to the latter, the two former developments were surrounded by medium to high‑rise public and private housing buildings.

31. Oriental additionally complained that the slope between KTM and the RAF premises had not been taken into account in the Board’s GFA (Gross Floor Area) calculations for the KTM site.

32. The Board and Oriental proceeded in their discussions on the principle that a BHR should not affect an owner’s right to make full use of plot ratio and GFA permitted to a site by an OZP.  Oriental argued that the BHR should be raised to enable the proposed redevelopment of the KTM site to make use of the extra GFA contributed by the slope area.

33. The Board eventually accepted that the slope area contributed to GFA.  If so, a 110 mPD BHR would not accommodate the additional GFA attributable to the slope area.  The Board therefore agreed to amend the BHR in OZP 26 from 110 to 130 mPD.  The Board took the view that the amendment would be enough to enable Oriental fully to utilise the extra GFA attributable to the slope.

34. But, in further representations, Oriental disagreed that 130 mPD was enough.  It pointed out that 130 mPD would still not enable a redevelopment to make use of all GFA attributable to the KTM site.  Oriental noted that, since the KTM site needed to incorporate an EVA (Emergency Vehicle Access) and a road setback, it was necessary to allow at least 10 mPD more of building height.  Otherwise, contrary to accepted principle, the BHR of 130 mPD would prevent Oriental from utilising the GFA attributable to the EVA and road setback.

35. The Board was not persuaded.

36. That was because, when the BHR of 110 mPD was originally being discussed, Planning Department had designed 2 indicative schemes, each with a building height of 105 mPD.  The indicative schemes had been prepared (among other functions) to demonstrate that it was possible with a 110 mPD BHR to make use of all plot ratio and GFA available to the KTM site.

37. While the indicative schemes had not taken account of the GFA from the slope area, the Board reasoned that increasing the BHR to 130 mPD had dealt with that deficiency.  In contrast, extra GFA arising from an EVA and road setback could (the Board thought) be accommodated within the 5 mPD (that is, the difference between 110 mPD and 105 mPD) which the indicative schemes did not use.

38. In anticipation of a 110 mPD BHR being imposed by the Board on the KTM site, Planning Department had also commissioned a consultancy (CO2) to carry out an Air Ventilation Assessment (AVA) of the surrounding area.  The AVA was to be a qualitative evaluation of adverse air ventilation impacts which tall buildings on the KTM site might have on the RAF premises and the adjacent primary school.  CO2 was asked to suggest ways of mitigating the adverse ventilation impacts.

39. CO2’s methodology was to compare the adverse impacts from the two indicative schemes prepared by the Planning Department. The baseline option was a scheme having a plot ratio of 9 and building height of 105 mPD with neither NBA nor BG.  The alternative option was a scheme involving a plot ratio of 9, a building height of 105 mPD, an NBA of 10 m on the north-eastern and south-eastern boundaries, and a BG of 20 m running through the middle of the KTM site.

40. CO2 issued its Final Report in November 2010. It concluded that the baseline option “[i]n general ... causes significant negative impact on air ventilation compared to the existing scenario [that is, compared to the existing buildings at the KTM site]”.  In contrast, “[i]n general, alternative option provides better air ventilation to the vicinity than the baseline option”.

41. CO2 noted that the annual prevailing wind directions for the area were north-easterlies, easterlies and south-easterlies.  On the other hand, the summer prevailing winds were easterlies, south-easterlies, southerlies and south-westerlies.

42. CO2 observed: “The non-building area of 10 m adjacent to St. Joseph’s Anglo-Chinese Primary School is insufficient to ventilate the area with south-westerlies, but will encourage downdraft to reach the ground level and ventilate the area with easterlies”.

43. As for the BG of 20 m, CO2 found that the 4 towers of the alternative option “encourages the south-westerlies and north-easterlies to permeate”.  But CO2 recommended widening the BG to “ideally 24 m to further improve ventilation”.  CO2 proposed that the BG of 20 to 24 m width be imposed as from a height of 13.6 mPD.

44. In its deliberations, the MPC adopted CO2’s suggestion of two 10 m wide NBAs along KTM’s north-eastern and south-eastern boundaries “to provide sufficient buffers for the neighbouring Grade 1 historical building and school.”  The MPC also thought that a building gap of 20 m running through the middle of the site as from a height of 15 mPD would “encourage the prevailing winds to permeate, reduce the adverse visual impact on the sensitive receivers at ex-RAF Officers’ Quarters Compound and partially open up the visibility of Grade 1 historical building to the public at street level”.

45. In its affidavit evidence, the Board has observed that, within the KTM site, there is now in fact a gap of 6 m between the primary school and the nearest KTM building.  The purpose of the NBA (according to the Board) is to widen that gap from 6 to 10 m in order “to achieve better ventilation and visual buffer”.

A.2  Evaluation of Board’s justifications

A.2.1  Building Height Restriction

46. I will focus here on the BHR of 130 mPD.  The Board accepts that the BHR (whether under OZP 26 or 27) should be relaxed to permit development at the KTM to that height.  There is therefore little point in considering a BHR of less than 130 mPD.

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

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

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

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

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

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

53. Ms. Eu then suggests that the Board has applied the Stepped Building Height Concept in an irrational manner by determining bands of ever increasing building height from north-west to south-east, instead of from west to east.  The Board (Ms. Eu says) has applied the concept so that building heights are stepped along a line which is nearly perpendicular to a west to east axis.

54. Again I do not think that this complaint is well-founded.

55. As Mr. Anderson Chow SC (appearing for the Board) explained, when one looks at the entire area covered by OZP 26 or 27 one notices that the stepped building heights converge on a number of focal points along the Jordan Valley ridgeline.  One is not dealing with a monotonous progression of building heights running uniformly from west to east along rigid parallel grid-lines.  Instead, there is variation. There are several (occasionally crisscrossing) lines of stepped-up building heights, all heading generally eastwards but to different points along the Jordan Valley ridgeline.

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

57. I am, however, troubled by the Board’s reasons for refusing to relax the BHR beyond 130 mPD.

58. The evidence before the Court is that an EVA and road setback would entitle Oriental to extra GFA equivalent to about 3 storeys. That would mean additional height of approximately 10 mPD (that is, roughly 3.15 m per storey).

59. It may be that Planning Department’s indicative schemes assumed a height of 105 mPD instead of 110 mPD.  But that would only leave an allowance of 5 mPD.  That would not be enough to cover the additional 10 mPD required to accommodate the EVA and road setback.

60. There was some suggestion at the hearing that Oriental could always accommodate the extra GFA from the EVA and road setback by building bulkier residential blocks covering a larger area than those in the Planning Department’s indicative schemes.  But the practical feasibility of doing that, while still (say) maintaining the two NBA strips of 10 m and the central BG of 20 m, has not been demonstrated in the evidence.  Nor does that appear to have been demonstrated to the Board.  Instead, it seems to have been merely assumed by the Board that the 5 mPD tolerance in the indicative schemes was sufficient to cater for GFA generated by the EVA and road setback.

61. The Board’s refusal to raise the BHR beyond 130 mPD must consequently be treated as arbitrary.  Given the accepted principle that a BHR should not prevent a developer from making full use of plot ratio and GFA available to a site, the Board could not have been satisfied on the material before it that the development rights associated with the KTM site could be fully utilised at a BHR of 130 mPD.

62. I should therefore quash the Board’s refusal to consider relaxing the BHR under OZP 26 and 27 to a level higher than 130 mPD.

63. I note that the need for additional height to cover GFA from an EVA and road setback has not been specifically mentioned in Oriental’s Notices for Judicial Review.  Nevertheless, as the question was explored at the substantive hearing without objection, I believe that the Court can treat the matter as implicitly part and parcel of Oriental’s complaint against the imposition of a BHR of 130 mPD.

A.2.2 Non-Building Area

64. The 10 m NBA strip corresponding to the slope between the RAF premises and KTM was not subject to much challenge by Ms. Eu.  Since that NBA is over a slope, there is little (if anything) that can be built on the strip in any event.

65. The main focus of Ms. Eu’s attack was instead the 10 m NBA strip on the boundary with the primary school.

66. It will be noticed on this that there has been no real justification given for an NBA of 10 m as opposed to something else.

67. CO2’s baseline option itself had an NBA of 3 m with a further gap of 2.3 m between the NBA and any building on the KTM site. Those dimensions appear to have been stipulated from the outset as a given by the Planning Department.

68. CO2’s alternative option took the 10 m NBA as a given from the Planning Department.  CO2 did not explore any other options (including options, such as a permeable gap, not involving an NBA along the school boundary) for improving air ventilation impacts.

69. Both the 3 m and 10 m NBAs in the indicative schemes used by CO2 were found insufficient to ventilate the surrounding area. But both NBAs were considered of “help to receive downdraft to ventilate the area with easterlies”.  How much “help” is unknown as CO2 attempted no quantification of the degrees to which NBAs of different widths might be of “help”.

70. One asks rhetorically why the 10 m NBA of CO2’s alternative option is an optimum or even appropriate way of addressing ventilation impacts at the school and RAF premises?  The alternative option is only one of many possibilities.  But CO2 did not consider other possibilities. It only evaluated the 2 options which the Planning Department gave to it.  It has consequently not been demonstrated that an NBA of 10 m would provide significantly better ventilation when compared against (a) a gap of any particular width, (b) some other permeable structure, or (c) an NBA of lesser width.

71. The Board, on the other hand, appears to have decided on a 10 m NBA along the boundary of the primary school, because that was the NBA in the CO2 Final Report’s alternative option.  Otherwise, there is no explanation why the Board thought the existing gap of 6 m had to be retained or why the existing had to be widened to 10 m (as opposed to some other width).

72. Consequently, the Board’s decision to maintain a 10 m NBA along the school boundary strikes me as arbitrary.  In particular, the Board’s reliance on the CO2 Final Report in support of the NBA imposed seems unwarranted.

73. It was suggested in argument that the CO2 Report was only one of many factors that led the Board to impose an NBA of 10 m.  The Board (it was submitted) also had regard to enhancing visual impacts.

74. Assume that was the case.  Nonetheless, the CO2 Report was undoubtedly a major factor in the Board’s deliberation, especially as far as improving air ventilation was concerned.  I doubt that the Board would have reached the same conclusion as it did, if it had appreciated that the CO2 Report was an inadequate basis for justifying the imposition of a 10 m NBA from an air ventilation perspective.  It is entirely likely that the Board would not have considered the need for a “visual buffer” alone as validating the imposition of the 10 m NBA along the boundary with the primary school.

75. I therefore conclude that the decision to impose a 10 m NBA at the KTM site (especially at the boundary of the primary school) was arbitrary.  The restriction should accordingly be quashed.

76. If the Board is to impose the burden of a 10 m NBA or other restriction on a site, such decision must be backed up by cogent evidence that the measure can reasonably be regarded as necessary for achieving a particular planning objective.  Obviously, in the assessment of what is reasonably necessary, a wide margin of appreciation must be afforded to the Board.  Nonetheless, the greater the restriction of property rights being proposed, the greater must be the cogency of the evidence required to justify the Board’s decision.

77. Here, at most, the AVA indicated that a 10 m NBA has some possible effect in ameliorating adverse ventilation impacts.  But it has not been sufficiently demonstrated that the NBA is no more than what might be regarded as reasonably necessary to mitigate adverse ventilation impacts.

A.2.3 Building Gap

78. The 20 m BG suffers from a similar deficiency as that discussed in relation to the 10 m NBA.

79. CO2 did not explore and compare the beneficial effects of other gap widths or other permeable structures.  Instead, it simply compared the baseline option (with a slanted central gap of 5.3 m) against the alternative option (with a straight-oriented (non-slanted) central gap of 20 m). It recommended a straight-oriented central gap of 24 m as better.  But it did not explain how such conclusion could be justified by its limited methodology. No quantification of the effects of a 20 or 24 m gap appears to have been attempted by CO2.

80. In those circumstances, I do not think that the Board could have determined that a 20 m gap was an appropriate restriction. There was insufficient evidence on which to come to such a conclusion.

81. In stipulating a gap of 20 m, the Board also took into account the visual impact of glimpsing the RAF premises from the street and vice versa.  But again I am not satisfied on the evidence that, had the Board appreciated the inadequacies of the CO2 Report as a basis for reaching any conclusions on air ventilation impacts, the Board would have still imposed a 20 m BG on the basis of visual impact alone.  On the contrary, the CO2 Report must have played a significant part in the Board’s deliberations in connection with the 20 m BG.

82. Consequently, it seems to me that the 20 m BG should be quashed as arbitrary.

B.  Oriental’s other complaints

83. Given my conclusions in the preceding section, it is unnecessary to go through Oriental’s other arguments for striking down the 3 restrictions.  In any case, those arguments in my view either add little to the submission of arbitrariness or do not constitute a valid basis for judicial review.  In this section, I will only briefly comment on those arguments for completeness.

84. Ms. Eu suggested that the Board acted in a discriminatory manner.  That is because it allowed nearby buildings such as Choi Tak Estate and 8 Clear Water Bay Road to be built to a higher level than 130 mPD.  I have already dealt with this submission in the previous section.

85. Ms. Eu suggested that the Board acted beyond its jurisdiction under the Town Planning Ordinance (Cap.131) (TPO) by imposing the 3 restrictions on the KTM site.  The imposition of the 3 restrictions (it is alleged) amounted to “micro-managing” the detailed design of specific buildings, rather than laying down “broad-brush” planning guidelines. In so acting, Ms. Eu submits the Board trespassed beyond its powers and assumed the role of the Building Authority.

86. For the reasons stated by this Court in Turbo Top Limited v. Town Planning Board HCAL 3 & 52 of 2011, 21 November 2011, the Board has power under the TPO to impose BHRs, NBAs or BGs on particular sites.  That being said, the Board cannot impose restrictions arbitrarily, but must have a rational justification for the measures implemented.

87. Ms. Eu suggested that the Board wrongly justified the 3 restrictions on the basis that a would-be developer can always apply to the Board for minor relaxations of the 3 restrictions.  However, as Mr. Chow stressed, the Board does not rely on the possibility of minor relaxation as a justification for the 3 restrictions.  The 3 restrictions have to be justified on their own merits, rather than by reference to the possibility of relaxation in specific cases.

88. Ms. Eu suggested that the 3 restrictions constituted an infringement of a person’s freedom under Article 105 of the Basic Law to enjoy or use one’s property.

89. But Article 105 is inapplicable here.  The provision guarantees the right to compensation for the expropriation of one’s property by the state.  However, not every deprivation of a right to use one’s property gives rise to a right to compensation.

90. In a town planning context, the Court of Appeal has pointed out that an owner must be deemed to know that the uses to which one’s land can be put, may be curtailed at a later date in the interests of the general welfare of the community by town planning regulations.  Accordingly, unless one’s land is deprived of all meaningful or economically viable use by planning regulations, an owner would not normally be entitled to compensation under Article 105.  See Fine Tower Associates Ltd. v. Town Planning Board [2008] 1 HKLRD 553.  There is no evidence here that the 3 restrictions have robbed the KTM site of all economic value.

91. Nonetheless, as Ms. Eu also submitted, a restriction imposed by the Board on a person’s land must be no more than is reasonably necessary to achieve a planning objective.  For the reasons already given, that requisite proportionality has not been demonstrated in this case in respect of the 3 restrictions.

92. Ms. Eu suggested that there were various improprieties in the procedure which the Board followed when coming to its decisions.  For example, Ms. Eu observed that Board members were not necessarily present during the entire of the time when Oriental made representations; some Board members had close affiliations with the Planning Department; and the Board heard representations over a long period of time in the course of one day.

93. I am not persuaded by Ms. Eu’s submission on this point.  As Mr. Chow has submitted, the Board exercises an essentially administrative function.  It is not acting as a judicial entity.  It must of course be reasonable and fair in its decisions.  But what amounts to a reasonable and fair hearing before the Board must take account of the administrative context in which it acts.  I see nothing in the procedures followed here to suggest that the Board acted in any way which might be considered unfair or biased.

94. Ms. Eu complained that the Board’s reasons merely tracked suggested wording put forward by the Planning Department. However, as I pointed out in Turbo Top (at para. 143), such tracking merely reflects the Board’s general practice.  It does not mean that the Board failed to give independent consideration to the representations advanced before it.  In this case, a glance at the Board’s minutes shows that there was active discussion among members of Oriental’s arguments before the Board resolved to impose the 3 restrictions.

95. Ms. Eu suggested that the gazettal of OZP 27 under TPO s.7 was ultra vires.  I disagree.  OZP 27 merely indicates amendments made to OZP 26 pursuant to s.7.  It does not profess to be a new plan created under TPO s.5.  I therefore see no reason why the Board could not act as it did.

IV.  CONCLUSION

96. The 3 judicial reviews succeed.  The 3 restrictions as found in OZP 26 and 27 and the Board’s refusal to consider raising the BHR beyond 130 mPD are quashed.  The question of whether any restrictions should be imposed on the KTM site is to be remitted to the Board for re-consideration in accordance with this Judgment.

97. There will be an Order Nisi that the Board pay Oriental’s costs of the 3 judicial reviews, such costs to be taxed if not agreed, with certificate for 2 counsel.

98. There will be liberty to apply.

99. For the avoidance of doubt, I would clarify that my decision in relation to the BHR of 130 mPD should not be taken to mean that the original BHR of 110 mPD is restored.  Nor does the quashing of the 130 mPD BHR necessarily mean that, as far as the imposition of a BHR is concerned, the choice facing the Board is simply between 130 and 140 mPD.  The net effect of my Judgment is, in my view, to re-open the question of whether any (and, if so, what) combination of BHR, NBA, BG or other controls should be placed on the KTM site.

100. Planning is a holistic process, involving balancing numerous factors and making provision for as much design flexibility as possible.  Accordingly, nothing in this Judgment should be taken as constraining the Board from re-considering afresh whether any specific measures of planning control (for example, Ms. Eu mentioned performance guidelines) may or may not be appropriate for the KTM site in conjunction with one or more or even none of a BHR, NBA or BG.