Case Details

Citation

SMART GAIN INVESTMENT LTD v. TOWN PLANNING BOARD, HCAL 12A/2006

Case Number

HCAL 12A/2006

Court

Court of First Instance

(CFI)

Decision Date

6 November 2007

Parties

Applicant(s):

SMART GAIN INVESTMENT LIMITED

Respondent(s):

TOWN PLANNING BOARD

For Applicant(s):

Mr Benjamin Yu SC, Mr Colin Wright with him; Mr Benjamin Yu SC and Mr Colin Wright, instructed by Messrs Johnson, Stokes and Master

For Respondent(s):

Mr Ambrose Ho SC and Mr Abraham Chan, instructed by the Department of Justice

Judges

A Cheung

SMART GAIN INVESTMENT LTD v. TOWN PLANNING BOARD

HCAL 12A/2006

Court of First Instance6 November 2007

Judges:A Cheung

HCAL000012A/2006 SMART GAIN INVESTMENT LTD v. TOWN PLANNING BOARD

HCAL 12/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 12 OF 2006

______________________

BETWEEN

	SMART GAIN INVESTMENT LIMITED	Applicant
	and
	TOWN PLANNING BOARD	Respondent

______________________

AND

HCAL 12/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 12 OF 2007

______________________

BETWEEN

	SMART GAIN INVESTMENT LIMITED	Applicant
	and
	THE CHIEF EXECUTIVE IN COUNCIL	1^st Respondent
	TOWN PLANNING BOARD	2^nd Respondent

______________________

(Consolidated pursuant to the Order of Hon A Cheung J dated 28 March 2007)

Before : Hon A Cheung J in Court

Dates of Hearing : 2 & 3 October 2007

Date of Judgment: 6 November 2007

__________________

J U D G M E N T

__________________

Introduction

1. These two applications for judicial review relate to the draft Clear Water Bay Peninsula North Outline Zoning Plan No S/SK-CWBN/1 (the draft OZP). It was first exhibited for public inspection on 18 March 2005. It covers an area that is located to the immediate east of Tseung Kwan O New Town separated by the steep slopes of Razor Hill and Sheung Yeung Shan. It is fronting Ngau Mei Hoi in the east and bounded by steep wooded hill slopes in the north, west and south.

2. The northern part, comprising the Tai Po Tsai, Silverstrand and Hang Hau Wing Lung Road areas, is characterised by clusters of low-rise residential developments and village houses. The Hong Kong University of Science and Technology (HKUST) and the Shaw Brothers’ Studio are two major developments. The southern part of the area, covering Mang Kung Uk, Pan Long Wan and Sheung Yeung, is generally rural and natural in character with villages scattered on foothills and valley. The plan also covers a small part of the Clear Water Bay Country Park. The rural settlement in the area includes four recognised villages as well as the village houses in Pik Shui Sun Tsuen, which is not a recognised village. Considerable agriculture land around the villages has been left fallow.

3. A major part of the area is zoned “CA”, ie Conservation Area. The planning intention is to protect and retain the existing natural landscape, ecological or topographical features of the area for conservation, education and research purposes and to separate sensitive natural environment such as country park from the adverse effect of development. There is a general presumption against development in this zone. In general, only developments that are needed to support the conservation of the existing natural landscape or scenic quality of the area or are essential infrastructure projects with overriding public interest may be permitted.

4. The draft OZP replaced the approved draft development permission area (DPA) plan covering the area, which was first exhibited for public inspection in March 2002 and was approved by the Chief Executive in Council in April 2003. The DPA plan had a life span of 3 years upon its first publication, and as described, was replaced by the draft OZP in 2005.

5. The applicant owns 4 pieces of agricultural land in Clearwater Bay. They all fall within a large area to the north of HKUST which has been zoned CA under both the draft/approved DPA plan and the draft OZP.

6. The applicant has unsuccessfully objected to the zoning of its land as CA under the draft DPA.

7. After the exhibition for public inspection of the draft OZP in March 2005, the applicant again lodged an objection against the CA zoning of its land as well as some government land adjourning a piece of its land.

8. In July 2005, the Town Planning Board, which prepared both the draft DPA plan and the draft OZP, gave preliminary consideration to the applicant’s objection to the draft OZP. After consideration, the Board decided not to propose any amendment to the draft OZP to meet the applicant’s objection. Since the applicant did not withdraw its objection, the Board, through an objection hearing committee, held a hearing in November 2005, which was attended by representatives of the applicant as well as that from the Planning Department, in respect of the applicant’s objection.

9. After the hearing, the Board decided not to propose any amendment to the draft OZP to meet the applicant’s objection. Four reasons were given for the Board’s decision:

“ (a) the objection sites comprise wooded slopes and river valley, which formed a very significant and attractive landscape. The “Conservation Area” zoning of the objection sites is appropriate to protect the natural landscape, the topographical features and the sensitive natural system in the area;

(b) the proposed residential developments in Objection Sites 1, 2 and 3 would adversely affect the landscape quality and impose significant visual impact on the surrounding areas;

(c) Objection site 4 is overlooked by steep natural terrain with previous landslide record and subject to potential natural terrain hazards which is considered not suitable for any building structure. The proposed recreation camp would also disrupt the existing green character of Objection Site 4, and the required access would result in loss of trees; and

(d) your proposals would set an undesirable precedent for similar requests for other rezoning proposals. The cumulative effect of approving these requests would lead to adverse impacts on the natural landscape, environment, traffic and infrastructural provision in the area.”

Applications for judicial review

10. Dissatisfied with the Board’s decision, the applicant applied for leave to apply for judicial review of the Board’s decision on 1 February 2006. Leave was initially refused by Reyes J but on appeal, the Court of Appeal granted leave to apply for judicial review of the Board’s decision on 8 November 2006.

11. These preliminary steps were taken by the applicant on an ex parte basis and neither the Town Planning Board, nor the Planning Department, was aware of them. So in the meantime, the draft OZP was submitted by the Town Planning Board to the Chief Executive in Council for approval pursuant to section 9(1) of the Town Planning Ordinance (Cap 131). Still in ignorance of the court proceedings, the Chief Executive in Council approved the draft OZP on 31 October 2006, shortly before the Court of Appeal heard and allowed the applicant’s appeal on 8 November 2006.

12. In those circumstances, the applicant took out a second application for leave to apply for judicial review of the decision of the Chief Executive in Council approving the draft OZP. Leave was granted on 7 February 2007. By a subsequent order, the two sets of proceedings for judicial review were consolidated and they were therefore heard together.

Applicant’s arguments

13. Mr Benjamin Yu SC, Mr Colin Wright with him, appearing for the applicant, focuses his submission on reason (a) given by the Board in refusing to amend the OZP to meet the applicant’s objection. He submits that the Board has made a material factual mistake regarding the applicant’s case. It should be remembered that reason (a) given by the Board states that “the objection sites comprise wooded slopes and river valley, which formed a very significant and attractive landscape …”

14. Mr Yu submits that this is simply factually wrong. Site 1 is located between the HKUST staff quarters, Pik Shui Sun Tsuen and Clear Water Bay Road and the major road junction structures. In terms of the locality, there is no continuity of areas of high value vegetation. Rather, the site is an isolated area of private land located at a lower level. It is partially cleared of vegetation and used for open storage purposes. In fact, the partial clearance and open storage usage took place before the gazettal of the draft DPA plan in 2002.

15. As for Site 2, it is a combination of private land and an intervening portion of government land. It is partially covered by low quality vegetation on areas which were previously cultivated land. Around the edges of this are 8 smaller trees and none of them is a protected species and one species is classified as a weed tree species. All of the trees are so small that they do not meet the criteria to be classified as a “tree”. It is the applicant’s case that the private land is a remnant part of the original village landholding associated with the villages of Tai Po Tsai Village. The resumption of private village land for roads and HKUST has separated this land from the main Tai Po Tsai Village but it still lies within the general area of historical influence of the village.

16. Site 3 abuts University Road. It comprises two small platforms. According to the applicant, Site 3 is partially cleared with vegetation mainly around the perimeter of the site and it has a grass area in the centre. It is leased to villagers for agricultural use and some dogs are kept there and exercised.

17. Site 4 is located on an area of private agricultural land near Pak Shui Wun Beach. It has no vehicular access and can only be accessed on foot along path or from the water by boat. The land has been used for agricultural use in the past and is, according to the applicant, primarily covered in low scrub with some larger trees of no particular significance around the edge of the site. The lower valley area of Site 4 consists of flat agricultural land with a stream flowing through it and through the beach to the sea. It has been identified as containing the Pak Shui Wun archaeological site. The other portion of the land is slightly raised and it is set back into the hill slope.

18. It is Mr Yu’s submission that the Board has wrongly found in its reasons that “the objection sites comprise wooded slopes and river valley”. Counsel argues that plainly Sites 1, 2 and 3 do not have such characteristics. Pausing here, it should be added that there are streamcourses running across the three sites but nobody has seriously suggested that any of them could be properly called a river.

19. Mr Yu prefers not to make any submission on Site 4 in this regard.

20. Mr Yu’s point is that the Board has plainly got the material facts wrong. This has been demonstrated quite conclusively to be true, in my view, by a site visit that was undertaken in the afternoon of the first day of hearing. Sites 1 to 3 certainly do not comprise wooded slopes and plainly no river, as opposed to some streamcourses, was seen during the site visit.

21. Mr Yu’s contention is that the Court has jurisdiction to receive evidence not placed before the Board at the material time (such as the site visit itself) in order to determine whether the Board has made a material mistake of fact. Alternatively, assuming that the Court has no such power to receive further evidence that was not before the Board (which never undertook a site visit), counsel submits that the Board has failed in its duty to inquire into this material factual dispute between the parties, noting that under section 3(2) of the Ordinance, the Board has a statutory duty to make such inquiries as it may consider necessary for the preparation of the draft OZP. By simply relying on the materials presented by the Planning Department and the aerial photographs and other photographs placed before it, the Board has not carried out sufficient investigation into the factual dispute and has come to the wrong conclusion.

22. Mr Yu further complains that this mistake of the Board has been compounded by its blind copying of the suggested reasons set out in a paper entitled “OHC Paper No 242” prepared by the Planning Department for the objection hearing before the Board in November 2005 as its own reasons for rejecting the objection. It raises the doubt as to whether the Board has independently considered the objection or has abdicated its responsibility.

23. Mr Yu also submits that in any event, the reasons given by the Board in concluding that the sites comprise wooded slopes and river valley are inadequate in that the Board has not explained why it has rejected the applicant’s contention and accepted the position advanced by the Planning Department during the hearing.

Respondents’ arguments

24. Mr Ambrose Ho SC, Mr Abraham Chan with him, for the Town Planning Board and the Chief Executive in Council in these proceedings, contends that the reasons given by the Board must be read in their context. Counsel submits that when read in the context of the whole objection procedure which started in 2002 when the draft DPA plan was first exhibited for public inspection, it is plain that the Board does not mean by the sentence seized upon by Mr Yu at the hearing, that the sites themselves “comprise wooded slopes and river valley”. Rather, the Board is referring to the whole area in question, of which the four sites form part. The board is not saying, counsel contends, that each and every site comprises wooded slopes and river valley. In particular, it is well to the knowledge of the Board, as well as the Planning Department, that Site 1 has been partially cleared. In fact, there has been debate during the hearing regarding whether there has been subsequent clearing of Site 1 after the gazettal of the draft DPA plan.

25. Counsel submits that actually there has not been any dispute or serious dispute of fact at the hearing regarding the ground features of the four sites. Rather, it has been a contest of approaches. The applicant’s representatives have argued that the Board must consider the individual characteristics of the four sites carefully in determining the respective zoning. On the other hand, the Planning Department’s position has been to take a more global view of the matter and consider the conservation of the area as a whole. In counsel’s words, the sentence relied on by Mr Yu (ie the sites “comprise wooded slopes and river valley”) must be understood as a “linguistically awkward generalisation of the factual position that on the sites and in the area were natural features including wooded slopes which were worthy of conservation, and that the conservation of the site was necessary to conserve the integrity of this wider environment” (paragraph 17 of counsel’s written submission).

26. Mr Ho submits that when correctly understood, the Board’s reasons are adequate and involve no material factual mistake. It is not open to the applicant to challenge the Board’s planning judgment. The board has clearly not abdicated its decision-making role even though it has adopted the suggested reasons proffered by the Planning Department as its reasons for not making any amendment to the draft OZP to meet the applicant’s objection. The objection procedure, the materials submitted by both sides as well as the minutes of the hearing and the subsequent deliberation of the Board, counsel submits, all bear witness to the fact that the Board has been well alive to the real issues between the parties.

Duty to give reasons

27. It is debatable whether the Board is under a general duty to give reasons for its decision. To some extent, it depends on how one should read paragraph 88 of Cheung JA’s judgment in Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, 184, where his Lordship said that “[the Board] is not obliged by statute to give reasons”. Certainly the Ordinance does not expressly require the Board to give reasons. It is not clear whether the learned judge intended to go so far as to say that the Ordinance does not, on its proper construction, impliedly impose, nor does the common law require, such a duty to give reason, either generally or in a specific case. In any event, reasons were indeed given by the Board in Capital Rich and whether the Board was under a duty to give reasons did not actually arise for decision in Capital Rich.

28. Likewise, in the present case, the Board has given reasons. And there can be no doubt that once reasons are given, albeit voluntarily, they should be “clear as well as sufficient to the circumstances”: per Stock JA in Capital Rich at paragraph 97. It is therefore quite unnecessary for me to dwell on further whether the Board is under a duty to give reasons under the Ordinance or common law – either generally or in some special circumstances.

Reading reasons in context

29. I agree with Mr Ho that reasons must be read in context. In this regard, Stock JA has this to say in Capital Rich (at paragraph 97):

“ Sound public administration requires that when reasons are required or are provided for an administrative decision, they should be clear as well as sufficient to the circumstances. The provision of adequate and clear reasons, where reasons are required by law, is a function of sound administration because transparency is more likely to promote confidence in public administration than is opacity, and also because the very requirement to provide clear reasons against the background of the particular issues raised itself encourages a disciplined approach to the issues at hand. But, most obviously, the requirement is based on fairness, so that the person or body adversely affected by a decision should have an adequate indication of the reasoning process, enabling him to know whether the decision-maker has addressed his grievance and whether there may be a basis for challenging the decision. So too clarity and sufficiency of reasons enable a supervisory court in judicial review better to assess the legality of a decision under challenge. See Fordham, Judicial Review Handbook (4^th ed., 2004) paras.62.1.5 to 62.1.9.”

30. Likewise, Lord Brown has said in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, 1964 (paragraph 36) that:

“ The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognizing that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

31. I agree with Mr Yu that the sentence in question, when read literally, is quite incorrect. Plainly, Sites 1, 2 and 3 do not comprise wooded slopes and river valley. Would reading the reasons in context give a different meaning, particularly the meaning contended for by Mr Ho?

2002 materials

32. I do not find the 2002 materials particularly helpful. They relate to an earlier stage when the parties were dealing with the draft DPA plan. At that time, the proposal of the applicant was to build resort hotel facilities at the four sites as one single development. The objection and request for rezoning were presented to the Board in terms of the proposed development, and they were dealt with on that basis. There was therefore some justification for examining the four sites together without much differentiation. However, the 2005 objection was based on proposals to develop the four sites individually and separately. The emphasis of the applicant was quite clearly on the individual characteristics of the sites. What had taken place three years before was of little if any significance by the time the applicant raised its objection to the draft OZP in 2005.

33. Furthermore, three years had lapsed between 2002 and 2005, and the Board must have heard many cases in between and membership of the Board, presumably, has changed during that period of time. It cannot be reasonably suggested that the Board as it was constituted in November 2005 could or would have a clear recollection of what had been presented to the Board or said by it way back in 2002. This is particularly so when there is no suggestion that the 2002 materials were before the Board when it dealt with the applicant’s objection in 2005.

The July Paper

34. Turning to the 2005 materials, one finds significantly two papers prepared by the Planning Department, one for the purposes of the preliminary consideration held in July 2005, namely TPB Paper No 7356 (the July Paper), and the other prepared for the purposes of the November hearing already referred to above, ie OHC Paper No 242 (the November Paper).

35. It is quite true, as Mr Ho has submitted, that in the July Paper, paragraph 4.1 gives an individual description of each of the four sites. It reads as follows:

“ 4.1 The Objection Sites:

(a) consists of four separated sites which are mainly agricultural lots;

(b) Objection Site 1 was originally covered with dense vegetation with mature trees. However, part of the site had been cleared before the gazettal of the draft DPA Plan on 22.3.2002. Part of the site was also found to be cleared after the gazettal of the DPA Plan. According to the Chief Town Planner/Central Enforcement and Prosecution of Planning Department, some construction materials and containers were found at part of the site during the site inspection on 20.6.2005, which constitutes an unauthorized development and enforcement action will be taken in due course;

(c) Objection Site 2 is a sloping ground adjacent to Pik Shui Sun Tsuen, a non-recognized village, covered by dense vegetation. There is also a natural streamcourse running across the site;

(d) Objection Site 3 comprises two small platforms abutting the University Road. The upper one is partially used for a plant nursery, whereas the lower one is mainly covered with trees and shrubs. There is also a streamcourse running across the site;

(e) Objection Site 4 comprises densely vegetated but steep slopes and stream valley overlooking the beach of Pak Shui Wun. Most of the areas fall within the Pak Shui Wun Archaeological Site identified by the Antiquities and Monuments Office, Leisure and Cultural Services Department (AMO, LCSD); and

(f) Objection Sites 1, 2 and 3 are accessible via University Road and Pik Shui Sun Tsuen. There is a footpath connecting the three sites. Objection Site 4 is only accessible via a footpath leading from the HKUST.”

36. And paragraph 5.1 reads:

“ (a) The Objection Sites are covered with natural or semi-natural vegetation except part of Objection Site 1 and Site 3. The Objection Sites, together with the adjacent natural wooded slopes in the “CA” zone, form a contiguous natural habitat. The Director of Agriculture, Fisheries and Conservation (DAFC) considers the “CA” zoning for the Objection Sites appropriate to conserve these natural areas. The Director of Environment Protection (DEP) also comments that potential ecological impact arising from the Objector’s proposals would be a key concern.

(b) The Objection Sites mainly comprise wooded slopes and river valley, which form a very significant and attractive landscape in the area. Moreover, the Objection Sites play an important role in separating the northern and southern sectors of the Sai Kung hinterland. Sporadic and incoherent development as proposed by the Objector will adversely affect the landscape quality and likely resulting in loss of significant trees and vegetation. DEP considers that the integrity of the whole “CA” zone should be maintained instead of allowing piece-meal developments at disturbed locations.”

37. It should be noted that in paragraph 5.1(b), the description “The Objection Sites mainly comprise wooded slopes and river valley, which form a very significant and attractive landscape in the area”, first appears.

38. In any event, the July Paper concludes in paragraph 7 that the Planning Department does not support the objection and recommends that no amendment be made to the draft OZP to meet the objection.

39. Typically, the July Paper prepared by the Planning Department contains in paragraph 8.2 several suggested reasons for not proposing any amendment. The first reason, ie paragraph 8.2(a), is the same as reason (a) given for the Board’s decision made in November 2005.

40. Mr Ho’s argument is therefore that there can be no doubt that the Board must have understood from the July Paper that the sites, particularly Sites 1 to 3, do not comprise wooded slopes and river valley as such. Rather the description applies to the whole area in which the four sites are situated.

41. This may or may not be so but the more important point to note is that the July Paper was prepared for the preliminary consideration of the objection by the Board in July 2005. What is in question is the hearing and decision of the Board in November 2005. In this regard, there is no evidence as to whether there was any change in membership of the Board between July and November 2005, particularly when the November hearing was held by an objection hearing committee appointed specifically by the Board to hear the relevant objections regarding the draft OZP.

The November Paper

42. The July Paper has found its way to the November hearing. It is annexed to the November Paper prepared by the Planning Department for the purposes of the November hearing. It is “Annex A” to the November Paper. Significantly, in the November Paper, paragraph 2.1 refers to paragraph 2.3 of the July Paper as setting out the grounds of objection put forward by the applicant. Then paragraph 6.1 of the November Paper refers again to the July Paper, this time to paragraph 7 of the July Paper, and says that the Planning Department maintains its previous view as stated in paragraph 7 of the July Paper. Paragraph 6.1 refers to the assessment made in paragraph 4 of the November Paper and the absence of any change in circumstances as reasons for the Planning Department’s maintenance of its view.

43. So pausing here, though the July Paper is annexed to the November Paper, only paragraphs 2.3 and 7 of the July Paper have been referred to and relied on specifically. Though the same view is maintained by the Planning Department at the November hearing, the Planning Department’s view is said specifically to be based on the assessment made in paragraph 4 of the November Paper. So one must look at paragraph 4 of the November Paper to discover the Planning Department’s latest reasons for its view. Given its importance to the matter under discussion, it is necessary to set out in full paragraph 4.1 of the November Paper, which reads:

“ (a) The Objection Sites mainly comprise wooded slopes and river valley, which form a very significant and attractive landscape in the area. The planning intention of “CA” zoning for the Objection Sites is to protect and retain their existing natural landscape, ecological or topographical features. The Director of Environment Protection (DEP) maintains his view that the current “CA” zoning for the Objection Sites should be retained, instead of allowing piece-meal developments, so as to maintain the integrity of the whole “CA” zone. He also has concern on the potential ecological impact arising from the Objector’s proposals.

(b) As the Objection Sites, together with the adjacent natural wooded slopes, form a contiguous natural habitat, the Director of Agriculture, Fisheries and Conservation also considers the “CA” zoning for the Objection Sites appropriate to conserve these natural areas.

(c) As advised by the District Lands Officer/Sai Kung (DLO/SK), the Objection Sites comprise mainly agricultural lots demised for agriculture use and house development is not permitted under the lease. According to the Notes of the Plan, ‘Agriculture Use’ is always permitted within the “CA” zone. As such, the land owner’s right under the lease would not be adversely affected by the “CA” zoning.

(d) From the landscape planning point of view, the Objector’s proposals in Objection Sites 1, 2 and 3 would adversely affect the landscape quality and planning function of the areas and result in a coalescence of the existing village and development centres. Although Objection Sites 1, 2 and 3 are adjacent to some existing developments, i.e. the staff quarter of the HKUST and Pik Shui Sun Tsuen, the Chief Architect/Architectural and Statutory Compliance, Architectural Services Department (CA/ASC, ArchSD) maintains his previous comments that the existing “CA” zoning could help to “dilute” the intensity of the built-up areas. He considers that the Objector’s proposals in Objection Sites 1, 2 and 3 would inevitably impose significant visual impact on the surrounding areas.

(e) According to the land use survey conducted on 14.3.2002 for the gazettal of the draft DPA Plan on 22.3.2002, Objection Site 1 was then vacant and partially cleared (an aerial photo taken on 2.4.2002 is attached at Plan H-9 for reference). The Chief Town Planner/Central Enforcement and Prosecution, Planning Department (CTP/CEP, PlanD) advises that the storage of construction materials and equipments and vehicle parking at Objection Site 1 is considered unauthorized developments. During the preliminary consideration of the objection on 22.7.2005, the Board also agreed to ask the owner of Objection Site 1 to reinstate the site to the condition before the gazettal of the DPA Plan (Minutes of the TPB meeting on 22.7.2005 at Annex B refers). A warning letter was issued to the concerned lot owner on 27.7.2005, further enforcement action will be taken pending the result of the objection.

(f) As Objection Site 2 is physically separated from Tai Po Tsai Village, the District Lands Officer/Sai Kung considers that the ground for village expansion is difficult to justify. Moreover, as the site is not located within any village ‘environs’, Small House applications for these lots would not be considered under the current Small House policy. Although the land reserved (1.95 ha or equivalent to 78 Small House sites) in Tai Po Tsai Village may not be sufficient to meet the estimated demand of 90 Small Houses by 2013, the overall supply of Small House sites in the Clear Water Bay Peninsula North area is generally adequate. In this regard, further expansion of the “V” zone at this stage is considered not necessary. Planning Department will regularly review the supply of Small House sites based on the most up-to-dated demand figure to be provided by DLO/SK.

(g) The proposed house located on the high ground of Objection Site 3 is considered obtrusive from the urban design perspective because the existing trees located on the slopes below the proposed house are unlikely to provide effective screening from the surroundings. Moreover, the Assistant Commissioner for Transport/New Territories, Transport Department (AC for T/NT) also considers the proposed access to University Road for Objection Site 3 not acceptable.

(h) Objection Site 4 is located within a large valley setting, which forms an integral part of the local landscape. The proposed recreation camp on the site would result in significant loss of vegetation and disruption to the existing green character of the area, and the access required for construction and operation of the recreation camp would even further exemplify the impacts. As such, the Objector’s proposal to rezone Objection Site 4 from “CA” to “REC” is not supported from both urban design and landscape planning points of view. CA/ASC, ArchSD also objects to rezone Objection Site 4 to “REC” with recreation facilities because the area would be visited by a lot of people and the Pak Shui Wun Archaeological Site might be disturbed. Moreover, the Head of Geotechnical Engineering Office, Civil Engineering and Development Department (CEDD) reiterates his pervious comments that Objection Site 4 is overlooked by steep natural terrain with previous landslide records. In addition, there are several natural drainage lines intersecting the low-lying flat areas at the eastern part of the subject “CA” zone. These drainage lines provide credible flow paths that would channelize landslide debris to the eastern fringe of the subject “CA” zone. The overall site conditions indicate that Objection Site 4 is subject to potential natural landslide hazards.”

44. It is plain that paragraph 4.1 in the November Paper is significantly different from paragraph 4.1 in the July Paper in its description of the four sites. Paragraph 4.1(a) of the November Paper starts off by asserting that the “Objection Sites mainly comprise wooded slopes and river valley, which form a very significant and attractive landscape in the area”.

45. Sub-paragraph (b) goes on to maintain that the sites, together with the adjacent natural wooded slopes, form a contiguous natural habitat.

46. Sub-paragraph (c) deals with the agriculture user of the sites, whereas sub-paragraph (d) discusses landscape planning.

47. Sub-paragraphs (e) to (h) deal with, respectively, the four sites. It is noteworthy that, with the exception of Site 1, none of these sub-paragraphs contains any significant qualification to the opening words in paragraph 4.1(a), ie that the sites “mainly comprise wooded slopes and river valley”. Particularly, in sub-paragraphs (f) and (g), which deal with Sites 2 and 3 respectively, the discussion focuses on the possibility of using Site 2 for erecting small houses and the construction of a house on Site 3 from the urban design perspective.

48. This is in sharp contrast to the treatment of the four sites in paragraph 4.1 in the July Paper, which as described, deals with the ground features of the four sites one by one. The sweeping assertion that the sites comprise or mainly comprise wooded slopes and river valley is only found in paragraph 5.1(b) of the July Paper. It is after the individual descriptions of the four sites in paragraph 4.1 and it also follows immediately the description of the sites in paragraph 5.1(a), namely that the sites are “covered with natural or semi-natural vegetation except part of Objection Site 1 and Site 3” and the further assertion that “the Objection Sites, together with the adjacent natural wooded slopes in the CA Zone, form a contiguous natural habitat”.

49. All this is missing in the November Paper.

50. The November Paper gives a distinctive impression to its readers that the sites mainly comprise wooded slopes and river valley, with the exception of Site 1 which has been cleared partially. It would take a very careful reader of the materials placed before the Board to realise that in fact in Annex A to the November Paper, there are further descriptions of Sites 2 and 3 which would tend to suggest that at least for these two sites also, they do not comprise wooded slopes and river valley. However, although the July Paper has been annexed to the November Paper, the references made to the July Paper in the November Paper are very specific references, which do not reveal by themselves that Sites 2 and 3 do not comprise wooded slopes and river valley. Quite to the contrary, paragraph 6.1 of the November Paper, which refers to the conclusion set out in paragraph 7 of the July Paper, specifically states that the Planning Department maintains its previous view by reason of its assessment set out in paragraph 4 of the November Paper.

51. The situation is compounded by the fact that in between the two Papers prepared by the Planning Department, the applicant has submitted to the Board its objection statement, which contains the descriptions of the four sites which I have summarised at the beginning of this judgment. In fact, the November Paper has been prepared by the Planning Department to answer the objection statement lodged by the applicant in September 2005. Viewed in that light, what the Planning Department has chosen to say or not to say in its November Paper assumes increased significance. In particular, the November Paper has not set out the descriptions of the four sites given in the applicant’s objection statement. Moreover, it has chosen to skip the previous descriptions of the four sites that were set out in paragraph 4.1 of its own July Paper. Instead, in the November Paper, the Planning Department puts forward the assertion that the sites comprise mainly wooded slopes and river valley as the first point in paragraph 4.1. And in the suggested reasons (paragraph 6.2(a)), the first reason suggested is that the objection sites comprise wooded slopes and river valley.

52. It is also clear from the confirmed minutes that during the hearing, the Board’s attention has not been drawn to any other paragraphs, certainly not paragraph 4.1, in the July Paper. Nor has there been any reference to any part of the July Paper during the deliberation of board, according to the minutes.

53. In the November Paper and the annexed documents, there were other materials presented before the Board. Amongst them were aerial photographs and plans. However, during the hearing, Mr Ho SC, in reply to a question raised by the Court, informed the Court that only black and white copies of the aerial photographs and other photographs and plans were supplied to or used by the Board members during the hearing. Those black and white copies were of a very poor quality. But counsel hastened to add that at the November hearing, the Planning Department had made a PowerPoint presentation to the Board which should have given the Board members a good idea of the true condition of the sites.

The PowerPoint presentation

54. However, the PowerPoint presentation, in my view, does not take the matter any further, for the purposes of Mr Ho’s argument. It is true that colour aerial photographs and other colour photographs have been shown to the Board via the PowerPoint presentation. However, it has also been asserted in the PowerPoint presentation, as one of the Planning Department’s main points of assessment, that the sites comprise “mainly wooded slopes and river valley (except Site 1)”. In other words, indeed it has been the contention of the Planning Department before the Board that with the exception of Site 1 which has been partially cleared, Sites 2 to 4 comprise mainly wooded slopes and river valley.

The November hearing

55. According to the confirmed minutes of the November meeting, the representative of the Planning Department (Mr Michael Chan) went on to argue at the hearing, after the PowerPoint presentation made by him to the Board, that “the Objection Sites mainly comprise wooded slopes and river valley forming a contiguous natural habitat with the adjacent natural wooded slopes” (paragraph 8(a) of the confirmed minutes). Mr Chan then made site-specific submission in relation to the four sites. It is particularly noteworthy that with the exception of Site 1 which Mr Chan confirmed was partially cleared, what he submitted to the Board did not contain any qualification regarding the characteristics of Sites 2 to 4: see paragraph 8(h) to (k) of the confirmed minutes. On behalf of the Planning Department, Mr Chan concluded by maintaining the department’s previous view of not supporting the objection.

56. Pausing here, it is patently clear from a reading of the materials before the Board as well as the oral arguments presented on behalf of the Planning Department to the Board during the hearing that the Planning Department did assert and maintain that with the exception of Site 1, Sites 2 to 4 comprised or mainly comprised wooded slopes and river valley.

57. That the applicant has taken issue with the Planning Department on this point is made plain in the confirmed minutes. In paragraph 9(d)(i), Mr Brownlee, the applicant’s representative, is recorded as submitting to the Board that the sites comprise only fallow agricultural land with no natural landscape and there is no significant ecological feature. In sub-paragraph (g), Mr Brownlee is recorded as saying that each development proposal should be considered and assessed on its own merits and should not be rejected for generalised statements which were not really applicable. The rest of that paragraph records Mr Brownlee’s submission on the individual characteristics of the four sites.

58. Significantly, in paragraph 12(a) of the minutes, one can see Mr Brownlee submitting to the Board that “Sites 1 to 3 were clearly devoid of vegetation and did not form part of wooded slopes or river valley. Even the areas around them did not form a contiguous natural habitat since there were residential development, roads and villages”. Pausing here, it is quite clear that Mr Brownlee expressly joined issue with the Planning Department on the assertion that the sites (with the exception of Site 1) comprised or mainly comprised wooded slopes and river valley. Paragraph 19 of the confirmed minutes is notable. It reads:

“ 19. Noting the objector’s comment that there was no valuable natural habitat within the objection sites for conservation, the Chairman asked Mr. Michael C.F. Chan for the rationale of the “CA” zoning. Referring to an aerial photo of the sites, Mr. Michael C.F. Chan explained that the sites formed an integral part of a natural wooded area. Although there might not be specific habitats of special conservation value, the entire area rather than individual pieces of land should be taken into account to ensure that the integrity of the ecosystem would not be affected. Mr Ian Brownlee responded that it was important to look at specific areas in detail in determining the appropriate zoning for the sites, taking into account the land interest.”

59. The Chairman, it would appear from the confirmed minutes, was alive to Mr Brownlee’s assertion that the sites did not contain any valuable natural habitat worthy of conservation, and thus asked the Planning Department’s representative for justification of the CA zoning. It is noteworthy that even then, Mr Chan, on behalf of the Planning Department, maintained that “the sites formed an integral part of a natural wooded area”. He went on to say that “although there might not be specific habitats of specific conservation value”, the entire area rather than individual sites should be taken into account to ensure that the integrity of the ecosystem would not be affected. Even in this last sentence, there was not any definite concession that the sites or some of them did not contain any valuable natural habitat worthy of conservation, and still less, any concession that the sites (except Site 1) did not comprise wooded slopes and river valley.

60. The confirmed minutes record that after this exchange, the Board retired for deliberation.

61. The confirmed minutes go on to describe the deliberation of the Board. It is significant to note that there was no specific or recorded discussion on whether the sites, particularly Sites 2 and 3, comprised wooded slopes and river valley. Nor was there any recorded discussion on whether the assertion of the Planning Department in the November Paper that the sites comprised or mainly comprised wooded slopes and river valley was merely a “linguistically awkward generalisation of the factual position that on the sites and in the area were natural features including wooded slopes which were worthy of conservation, and that the conservation of the sites was necessary to conserve the integrity of this wider environment”.

62. All one has is paragraph 25 of the confirmed minutes, which reads:

“ 25. Members considered that Sites 2, 3 and 4 should definitely be retained as “CA” since they were located adjacent to environmentally sensitive areas and formed an integral part of the natural landscape and ecosystem in the area. For Site 1, although the site had largely been cleared and the conservation value was relatively lower, allowing development on this site would send a wrong message to private land owners that once a piece of agricultural land was cleared, development would be allowed. For the above reasons, Members considered that the zoning of all four sites should be retained as “CA”. The Chairman added that there was some 19 ha of private land zoned “CA” on the Plan. The precedent effect of rezoning the objection sites should be duly taken into consideration.”

63. In paragraph 26 of the confirmed minutes, it is recorded that “after further deliberation” – which is not elaborated on, the Committee decided not to propose any amendment to the draft OZP to meet the applicant’s objection. The paragraph goes on to set out four reasons for the decision of the Committee, namely the four reasons suggested in the November Paper. At the risk of repetition, the first reason given, ie reason (a), it should be pointed out, is that the sites comprise wooded slopes and river valley.

64. It is convenient to add a word of caution here. As Cheung JA has observed in Capital Rich (at p 183, para 87), one must not attach too much weight to the summary of the discussions by members of the Board. When a decision-maker deliberated on an issue, there would be expression of ideas and views which might not be fully articulated or necessarily correct. But it does not mean that when the decision-maker finally decided on an issue, it would necessarily have relied upon one or more of the matters that had been discussed. It is far more important to see how the decision-maker articulated the reasons for the decision. The same observations must apply to observations made or queries raised by the decision-maker during submission. This is particularly so when the decision-maker comprised more than one member.

Further discussion

65. Mr Ho argues that the reason for the lack of any deliberation by the members on whether the sites, particularly Sites 2 and 3, comprised wooded slopes and river valley, was that the matter was very clear to the Board, and everybody knew that the Planning Department did not mean what it said when it asserted in the November Paper and at the hearing that the sites mainly comprised wooded slopes and river valley.

66. Yet it is an undeniable fact that when adopting the suggested reasons contained in the November Paper as its reasons for not making any amendment to the draft OZP to meet the applicant’s objection, the Board did not see fit to correct the first sentence in reason (a). That fact alone is against Mr Ho’s submission that the Board must have understood that first sentence to mean something other than its literal meaning.

67. Furthermore, one is concerned with the Planning Department, an expert department, and the Town Planning Board here. They are the last people on earth who should have, one would expect, any difficulty in describing the characteristics of a piece of land clearly and accurately.

68. More importantly, it is far from clear from the materials that have been placed before the Board and the arguments presented before it at the November hearing that the matter was as clear-cut as counsel would like this Court believe. In fact, even on the first day of the hearing when the parties were debating on whether a site visit should be conducted, Mr Ho had some difficulty in giving the Court a straightforward answer, in response to a query raised by the Court, on whether he now accepted on behalf of the two respondents that Sites 2 and 3 did not comprise wooded slopes and river valley. The purpose of the query was to find out whether it was really necessary to have the site visit. For if both sides were in agreement that Sites 2 and 3 did not comprise wooded slopes and river valley, that would remove a primary reason for having a site visit in the first place. At the end of the day, after some lengthy submission, Mr Ho was plainly reluctant to make any outright concession. That attitude was in fact reflected in the respondents’ skeleton submission lodged with the Court prior to the hearing, which made no such concession either.

69. Indeed Mr Ho’s position on the actual characteristics of Sites 2 and 3 only became clearer after the site visit. If I have not misunderstood his stance, he was then prepared to accept that in fact Sites 2 and 3 did not comprise wooded slopes and river valley. But even then, when asked how he would re-word reason (a) to express more clearly what, according to him, the Board intended to say, counsel was only prepared to change the word “comprise” to “include”, thereby suggesting that even then, he was contending that Sites 2 and 3 did include wooded slopes and river valley. From what I saw during the site visit, even that would appear to be quite incorrect. Certainly I did not see any significant wooded slopes or signs thereof, and none was pointed out to me. And as for river valley, as I said, apart from streamcourses, I did not see any river running across the land.

70. Likewise, in the several affidavits filed by the Secretary to the Town Planning Board for the purposes of these proceedings, whilst very substantial attempts were made to explain how the Board came to its decision and the reasons given, it was never suggested or conceded that Sites 2 and 3 did not comprise wooded slopes and river valley. Certainly, the Town Planning Board did not ever attempt to put in anything to say that reason (a) given by it contained a linguistic slip, and what the Board meant to say was that the general area within which the sites fell, rather than the sites themselves, comprised wooded slopes and river valley, or that the sites “included” wooded slopes and river valley. There was certainly no attempt to correct the reasons given.

71. In the present case, what has been discussed during deliberation of the Board has been recorded or summarized in the confirmed minutes. What has gone through the individual minds of the members comprising the Board is not something privy to the Secretary, who apparently is not even a member of the Board (but I could be wrong), unless it has been manifested in the discussion or the reasons of the Board. I do not think the Secretary can speak on behalf of the Board members regarding how they have actually understood reason (a), particularly when there is no assertion that the Secretary has, after commencement of the present proceedings, communicated with the members of the Board to obtain further information about what has gone through their minds.

72. In any event, whilst I accept that evidence could be admitted to elucidate or, exceptionally, correct or add to the reasons given by an administrative body, it could not be admitted to fundamentally alter or contradict the reasons given. In the words of Hutchison LJ in R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302, 315j, the function of such evidence should generally be “elucidation not fundamental alteration, confirmation not contradiction”. See also my own observations in Re C, HCMP 1327/2007 (20 September 2007), para 43. Insofar as the evidence filed seeks to go beyond elucidation and confirmation, it must be rejected.

73. In those circumstances, I am not persuaded, even after a careful consideration of the “context”, that one can legitimately read the first sentence in reason (a) as referring to the general area in question, rather than the sites, particularly Sites 2 and 3. To do otherwise would amount to, in the words of Mr Yu, re-writing the reasons for the Board, something which even the Board has not invited the Court to do in the affidavits filed.

74. Having considered “the context”, I am of the view that the Board actually accepted the assertion of the Planning Department that the sites, with the exception of Site 1, comprised wooded slopes and river valley. And that was one of the reasons – indeed the very first reason – given for the Board’s decision not to accept the objection. Reading it in the way submitted by Mr Ho would be problematic also for this reason: assuming that the first sentence in reason (a) should be read as a reference to the general area’s characteristics, rather than the ground features of the individual sites, it would mean, first, the Board had not made any finding on the actual characteristics of the individual sites – a matter of some contention between the applicant and the Planning Department as is well evidenced by the confirmed minutes, and secondly, the Board had failed to take into account the individual characteristics of the sites, on which (ex hypothesi) no finding had been made, in deciding to reject the objection.

75. On this second point, whilst I accept Mr Ho’s argument that planning judgment is essentially a matter for the Board but not for the courts, and whether the Board places more weight on conserving the characteristics of the whole area in question rather than on the individual characteristics of the objection sites, which was the approach of Mr Chan at the hearing, or whether the individual sites should be looked at carefully instead of the general area, which was the approach of Mr Brownlee, it has not been suggested by anybody that under either approach, the individual characteristics of the objection sites are irrelevant. In other words, regardless of which approach one should adopt, which is a matter of planning judgment for the Board, not for the courts, one cannot go so far as to say that the individual characteristics of the sites are irrelevant and can therefore be ignored or left undetermined.

76. That the individual characteristics of a site must be a relevant consideration, regardless of what weight one should attach to it, is clearly borne out by paragraph 25 of the confirmed minutes (already extracted above). That paragraph obviously shows that the members regarded the peculiar characteristics of Site 1 (ie that it had been partially cleared and put to storage use) as constituting a matter for special consideration. Although at the end of the day, those characteristics were not sufficient to persuade the Board to change the zoning for Site 1, the paragraph amply demonstrates that the characteristics of a particular site must be taken into account.

77. Reading the first sentence in reason (a) in the way suggested by Mr Ho would mean that there is no specific or express discussion in the reasons given by the Board on the actual characteristics of the sites. The inference one can draw is that those characteristics have not been taken or sufficiently taken into account. That would be quite fatal to the Board’s decision.

78. My preferred reading of reason (a) would not involve such a lacuna. It would simply mean that the Board somehow made a finding that the sites, with the exception of Site 1, comprised wooded slopes and river valley. Those were the individual characteristics of the sites, and they were duly taken into account. As for the exclusion of Site 1 from the first sentence in reason (a) when read in “context”, it should be noted that in the materials placed before the Board and the oral arguments presented, the actual condition of Site 1 was repeatedly referred to. In fact, in the deliberation of the Board as recorded in the confirmed minutes, the characteristics of Site 1 were specifically discussed. In those circumstances, excluding Site 1 from the first sentence in reason (a) is, in my view, justified. But not so with Sites 2 and 3.

79. For all these reasons, I reject Mr Ho’s argument that reason (a) could be read in the way suggested by him.

80. Where does all this lead us?

81. In my view, reason (a) must be read to mean that with the exception of Site 1, Sites 2, 3 and 4 comprise wooded slopes and river valley. A number of points follow.

Inadequate reasons for a finding of fact

82. First, this is a finding of fact. It is a material finding because, as I have explained, the individual characteristics of the sites are relevant considerations. How much weight one should place on them, as opposed to other considerations such as the conservation of the entire area as a whole, is a matter of planning judgment which should primarily be a matter for the Board, not the courts. However, the individual characteristics remain material factors to be taken into account.

83. That being the case, I do not find the reasons given by the Board adequate or sufficient in explaining why or how the Board came to such a finding, given the conflicting contentions and evidence relied on by the applicant and the Planning Department.

84. As discussed, since reasons were given in the present case, it is not necessary to decide whether there was a legal obligation to give them. Once given, their adequacy falls to be tested by the same criteria as if they were obligatory: R v Criminal Injuries Compensation Board, ex p Moore [1999] 2 All ER 90, 95j, per Sedley J. In other words, the reasons should be clear as well as sufficient to the circumstances. On a material factual dispute as to whether the sites, particularly Sites 2 and 3, comprise wooded slopes and river valley, the Board’s finding requires explanation, particularly when it has not made any site visit. No such explanation has been given.

85. I should add, for the sake of completeness, that in the Secretary’s three affidavits, assertions were made that the Board was fully aware of the issues between the parties and had carefully considered them before making the decision in question. I do not find the assertions by the Secretary, particularly helpful. Such assertions are no substitute for reasons.

Insufficient inquiry

86. Secondly, the Board has failed in its duty to make sufficient inquiry. As mentioned, section 3(2) of the Ordinance imposes an obligation on the part of the Board to make necessary inquiries. Given the diametrically opposite contentions of the experts regarding the true characteristics of Sites 2 and 3, and the quite unsatisfactory aerial and other photographs, particularly if they have been supplied in black and white, I agree with Mr Yu’s submission that it behoves the Board to make further inquiries into the matter in order to decide whether Sites 2 and 3 really comprise wooded slopes and river valley. It is true that nobody has suggested a site visit to the Board, but it does not mean that the Board cannot or should not undertake such a task, given the significance of the issue. In Capital Rich, supra, at pp 174 to 175 (paras 62 to 65), Cheung JA observed that the Town Planning Board was obliged to make inquiries so as to satisfy itself that what was put forward by the Urban Renewal Authority in that case was really financially viable. His Lordship quoted a passage from Watkins LJ in Prest and Straker v Secretary of State for Wales [1983] RVR 10, 16, which said that when a vital point had either been insufficiently ventilated or not touched upon at all at an inquiry, if a tribunal was going to allow the point to affect him, he had to cause enquiries to be made into it even to the extent of re-opening the inquiry.

87. It is of course true to say, as has been pointed out by Laws LJ in R (Khatun) v Newham London Borough Council [2005] QB 37, 55 (para 35), that it is for the decision-maker and not the courts, subject to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. His Lordship further approved an observation made by Schiemann J in R v Nottingham City Council, ex parte Costello (1989) 21 HLR 301, 309, where the judge said that the court 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”. But given the very different factual contentions of the parties and indeed of the experts – both Mr Brownlee and the representative of the Planning Department are planning experts in the area, and given the poor quality of the aerial photographs and other photographs supplied to the Board, the circumstances in the present case are such that one simply cannot decide the factual dispute without making further inquiries. And a site visit would seem to be the simplest way to resolve the factual dispute.

88. In the present case, I do speak with the benefit of having had a site visit. Having given due allowance for any possible change in circumstances due to the lapse of time, I am nonetheless of the view that a site visit by the Board would have quite easily cleared up the dispute between the parties. Quite plainly, Sites 2 and 3 do not, and in 2005 they did not, comprise wooded slopes and river valley. This is a fact that is quite plain upon a site visit, but one that is rather difficult to tell by merely looking at the aerial photographs and other photographs.

89. The failure to make sufficient inquiry on a material issue flaws the Board’s decision.

Mistake of fact and admission of fresh evidence

90. Thirdly (and this also goes to the admission of evidence by this Court that was not placed before the Board by way of an exception to the general rule that the court would normally consider only such evidence that had been placed before the decision-maker which resulted in the decision under challenge), the finding of the Board is clearly mistaken in the light of the further evidence admitted by the Court. The finding of the Board is that the sites (with the exception of Site 1 for reasons explained above) comprise wooded slopes and river valley. This finding is mistaken, in the light of the further evidence admitted by the Court. That mistake of fact taints the decision.

91. As has been pointed out by Scarman LJ (as he then was) in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1030E (CA), misunderstanding or ignorance of an established and relevant fact is a ground for judicial review. And when the case reached the House of Lords, Lord Wilberforce pointed out (at p 1047D-E) that if a judgment requires, before it can be made, the existence of some facts, then although the evaluation of those facts is for the authority (the Secretary of State in that case) alone, the Court must inquire whether those facts existed, and have been taken into account, whether the judgment has been made upon a proper self direction as to those facts, and whether the judgment has not been made upon other facts which ought not to have been taken into account. Where these requirements are not met, his Lordship added, then the exercise of judgment, however bona fide it may be, becomes capable of challenge.

92. In Nguyen Ho v Director of Immigration [1991] 1 HKLR 576, 583D, the Court of Appeal said that if the court may properly interfere when the inferior tribunal has not taken into account some matter which it should have done, it must also be able to do so when the inferior tribunal has got that matter wrong (per Cons VP). But it must be something that is plainly wrong or “established and unassailable to be erroneous”.

93. That a mistake of fact giving rise to unfairness can be challenged as a mistake of law, whether in judicial review or statutory appeals restricted to points of law, has also been accepted by the Court of Appeal in the recent case of E v Secretary of State for the Home Department [2004] QB 1044. After an extensive review of the relevant authorities, including R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330 and the dicta of Lord Slynn in R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, 321, the Court concluded that the principle of fairness requires a mistake of fact giving rise to objective unfairness as a ground of challenge (para 63). The Court went on to say (at pp 1070-1071):

“ 63. In our view, the Criminal Injuries Compensation Board case [1999] 2 AC 330 points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between “ignorance of fact” and “unfairness” as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that “objectively” there was unfairness. On analysis, the “unfairness” arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was “established”, in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the claimant’s work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning.

…

66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”

94. In my view, given that a mistake of fact giving rise to unfairness is a valid ground of challenge, fresh evidence must be admissible in appropriate circumstances to enable the aggrieved party to demonstrate to the court that the tribunal below has made a mistake on the facts.

95. The position has been summarised in Fordham, Judicial Review Handbook (4th ed) para 17.2.5 (pp 334 - 335) as follows:

“ (G) FRESH EVIDENCE AND DEFECTIVE INQUIRY. Where it is alleged that the defendant has failed in its duty to acquaint itself with relevant information <P51>, it will often be essential for the [claimant] to demonstrate that there was material which was not before the decision-maker (but should have been): see eg. R v Rochford District Council, ex p Ferdinando 8 September 1992 unrep. (Roger Henderson QC: evidence admissible “to show what could, upon proper inquiry, have been elicited…”); R v Haringey London Borough Council, ex p Norton (1998) 1 CCLR 168, 180F-G (Roger Henderson QC: “the Court may in certain rare circumstances be assisted by knowing ex post facto how an expert in the field would have assessed the needs of a particular [claimant] (eg. a case where deficient enquiry led to ignorance of material facts or opinion and the evidence being proffered goes to the issue of what would have been discovered had due enquiry been made)”); Canbolat [1997] 1 WLR 1569, 1579H; cf. R v Criminal Injuries Compensation Board, ex p A [1999] AC 330 (judicial review was granted on the basis of a report which was not, but should have been, before the decision-maker; ultimately analysed the matter as involving procedural unfairness; see 345C and 347C).”

96. On the facts of the present case, I am quite satisfied that it is a proper case for admitting further evidence in the form of a site visit and the further photographs. The individual characteristics of Sites 2 and 3 are material considerations for the Board. Given the conflicting contentions and materials and bearing in mind the statutory duty to make inquiries, the Board should have undertaken the site visit or called for further enquiries. But that has not been done.

97. In those circumstances, the only right and fair way to proceed is to allow the applicant to adduce further evidence to demonstrate what could have been discovered by the Board had it performed its duty to make further inquiries and fully acquaint itself with the relevant information pertaining to the issue in question.

98. And as I said, once the further evidence is admitted, it is quite plain that a material mistake of fact has been made. I further conclude, on the materials before me, that such a mistake of fact does give rise to objective unfairness. I need not go so far as to say that if the true characteristics of Sites 2 and 3 had been appreciated by the Board, it would necessarily have come to a different conclusion.

99. I do not believe that the test is as high as that. In my view, all that is required is that “the mistake must have played a material (not necessarily decisive) part in the [board’s] reasoning” (E v Secretary of State for the Home Department, supra, at para 66).

Wholesale copying of reasons

100. Fourthly, the Board’s wholesale adoption or copying of the suggested reasons contained in the November Paper. Strictly speaking, this is a separate point, although as a matter of fact, it may well have been a contributing factor to the failure of the Board to fully consider the factual issue before it or to give adequate reasons for its finding. For after all, one of the reasons for requiring reasons to be given for a decision is to impose desirable intellectual discipline and concentrate attention on the relevant issues: Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279, 290E/F.

101. In any event, as I said, it is a separate and freestanding point, strictly speaking. It is true that the Board’s wholesale copying of the reasons suggested by the Planning Department in Capital Rich, supra, was not relied on by the Court of Appeal as a ground for interfering with the Board’s decision, that is understandable given that in that case more important grounds were involved. But as has been pointed out by Ribeiro PJ in the Court of Final Appeal’s decision in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, 515-516, para 446, the copying may occur to such a degree and in such a manner that serious questions may arise as to whether the judge has abdicated his judicial function or at least as to whether his conduct is such that justice has not been seen to be done by an independent judicial tribunal. Those remarks were of course made in relation to a lengthy probate trial. But in my view, they are equally applicable to a determination by the Town Planning Board and the reasons given by it.

102. Here, it is a case of 100% copying. Prima facie, there must be doubts regarding whether the Board has fully performed its role, or put the other way round, whether the Board has abdicated its responsibility. However, two matters militate against that conclusion. First, it seems to have been a rather general practice of the Town Planning Board to adopt fully or to a fairly substantial extent reasons suggested by the Planning Department in its planning papers as the Board’s own reasons for decision in those cases where the Board finds itself to be in agreement with the positions advanced by the department. The fact of copying is evidence of the existence of such a general practice, rather than any lack of independent consideration. Secondly, the confirmed minutes in the present case do record the deliberation of the Board after the hearing has been concluded, and they suggest that there has been some independent deliberation by the Board.

103. That being the case and given my earlier conclusions, the question of whether there has been an unlawful abdication of responsibility is quite academic and I need express no firm view on it. But for what it is worth, I would venture to make two observations here.

104. First, regardless of whether strictly speaking, the Board is under a duty to give reasons, it is, in my view, a good practice for the Board to give reasons, in light of the benefits or advantages described by the Chief Justice in Oriental Daily, supra, at p 290E/F to H, and those mentioned by Stock JA in Capital Rich, supra, at p 186 (para 97).

105. Secondly, it is always dangerous to copy someone else’s reasons. In the long run, it would be wise for the Board to write its own reasons, even in cases where it agrees entirely with the views of the Planning Department, if for nothing else than to put to rest any possible doubt that the Board has not applied an independent mind to the issues before it. A corollary of this is that the practice of the Planning Department to provide suggested reasons in its planning papers prepared for use before the Board should be reconsidered. Whilst there is nothing wrong to contain at the end of a planning paper a summary or conclusion section, setting out in a succinct manner all the main points made by the Planning Department in its paper, the practice of actually formulating the reasons to be given by the Board for its adoption, in case it is with the Planning Department, may well constitute an unnecessary temptation to the Board not to provide its own reasons for its decision.

Conclusion on reason (a)

106. For the above reasons, I am of the view that the decision of the Town Planning Board is flawed in relation to Sites 2 and 3. Leaving aside the fact that the Chief Executive in Council has approved the draft OZP for the time being, I see no reason for refusing relief in relation to those two sites. The objection in relation to those two sites should be remitted to the Board for reconsideration.

107. In relation to Site 1, for the reasons explained, I do not think the first sentence in reason (a), when properly read in its context, is meant to apply to Site 1 literally. It is common ground that part of Site 1 has been cleared. It is quite plain from the various photographs placed before the Board that it does not comprise any wooded slopes or river valley.

Reason (d) and setting an undesirable precedent

108. That leaves Mr Yu’s argument that reason (d) given by the Board is unsustainable, particularly in relation to Site 1. That in relation to Site 1 the fear of setting an undesirable precedent was a material consideration is well evidenced by paragraph 25 of the confirmed minutes already extracted above. This should be read in the context of the argument made by the Planning Department in the November Paper that other than the four sites, about 19 hectares of land zoned CA in the Clear Water Bay Peninsula North area are also privately owned and upholding the applicant’s objection would set an undesirable precedent for similar applications for amendment to the plan in future (para 4.3 (a)).

109. I can understand the thinking of the Planning Department and the Town Planning Board. I would not go so far as Mr Yu to say that consideration of setting an undesirable precedent is an irrelevant one. I would not, put another way, elevate the matter to one of principle. Depending on the facts, the apprehension of setting an undesirable precedent could be a relevant consideration. However, it all depends on the facts.

110. Having reflected on the matter, I am with Mr Yu’s contention to this limited extent: given the absence of any detailed analysis on the 19 hectares of privately owned land and their individual site characteristics, it is simply premature for the Board to conclude that accepting the rezoning proposal relating to Site 1 would set an undesirable precedent. Here, it must be remembered that Site 1 has been partially cleared and has been used for open storage before the gazettal of the draft DPA plan in 2002. When one talks about setting an undesirable precedent, one must compare like with like. Approving the rezoning request in relation to Site 1 would only set a precedent for approving applications involving similar sites with similar characteristics in future. It would not set a precedent for acceding to rezoning requests regarding sites of different characteristics. Thus for instance, it is quite plain, particularly after the site visit, that the site characteristics of Site 2 are very different from that of Site 1. Accepting the rezoning request for Site 1, given its actual characteristics, would not, in my view, set any precedent for acceding to a rezoning request in relation to Site 2, which has very different ground features.

111. In the absence of further information on the actual characteristics of the 19 hectares of privately owned land falling within the CA zoning, the Town Planning Board simply does not have sufficient materials to conclude that approving the rezoning request in relation to Site 1 would set an undesirable precedent.

112. Therefore in relation to Site 1, I am with Mr Yu to the limited extent just indicated. For that reason, I am also of the view that the Board’s decision relating to Site 1 is flawed and prima facie, the matter should be remitted to the Board for reconsideration.

113. I need not say anything based on reason (d) in relation to Sites 2 and 3, given my conclusion on Mr Yu’s earlier point based on reason (a).

Site 4

114. That leaves Site 4. Mr Yu has not extended his challenge against reason (a) to Site 4. And it is plain from the confirmed minutes that the fear of setting an undesirable precedent mainly relates to Site 1. Mr Yu argues that as the Board has dealt with all four sites in one go and there is only one decision relating to all four sites, the Board’s decision cannot be allowed to stand and the whole matter, involving all four sites, must be remitted to the Board for reconsideration.

115. I am not with Mr Yu. Although the respective proposals to rezone the four sites have been included in one single objection, and the Board has dealt with that single objection at one hearing, it does not mean that the Board has not dealt with the respective rezoning proposals individually. The challenges mounted by Mr Yu only go towards Sites 1 to 3. I do not see how the form by which the rezoning proposals have been dealt with should affect the substance of the matter, ie that only in relation to Sites 1, 2 and 3 has Mr Yu made out a case. In relation to Site 4, the substantive grounds of challenge advanced at the hearing have no application.

116. In those circumstances, I am of the view that relief must be refused in relation to Site 4.

Decision of the Chief Executive in Council

117. Moving on to the decision by the Chief Executive in Council to approve the draft OZP, I am of the view that it must be disturbed.

118. First, given that the Town Planning Board’s decision relating to Sites 1, 2 and 3 are flawed for the reasons explained above, the decision is in fact an ultra vires one. As has been pointed out by the Court of Appeal in Simplex GE (Holdings) v Secretary of State for the Environment (1988) 57 P & CR 306, where a factual error has been taken into account in reaching a decision, that decision would be ultra vires unless either the error is an insignificant or insubstantial one or the court is satisfied that, even though one reason for a decision is bad in law, the same decision would have been reached on the basis of other valid reasons.

119. For the reasons explained above, I am of the view that in the present case, a factual error has been taken into account in reaching the Board’s decision, the error is not an insignificant or insubstantial one and the Court cannot be satisfied that the same decision would have been reached by the Board on the basis of other valid reasons – Mr Ho has made no submission to the contrary. Given that the decision relating to the three sites is ultra vires, the approval of the draft OZP by the Chief Executive in Council is likewise tainted. It must be disturbed.

120. Secondly and in any event, even assuming that the decision relating to the three sites is not ultra vires, despite the factual error and despite the premature apprehension of setting an undesirable precedent, the peculiar circumstances of the case require the Chief Executive in Council to give reasons for his decision to approve the draft OZP notwithstanding those errors.

121. On the question of whether the Chief Executive in Council has any duty to give reasons for his decision to approve the draft OZP, despite development of the law, there is as yet no general duty, applicable across the Board, for a decision-maker to provide reasons for his decision. Certainly, the Town Planning Ordinance does not specifically require the giving of reasons by the Chief Executive in Council. In paragraph 89 of my judgment given in The Hong Kong Canadian International Hospital Foundation v The Secretary for Justice HCAL 131/2006 (4 May 2007), I referred to a number of previous cases in our courts dealing with similar questions but in different contexts. That case was another example of dealing with the same question in yet another context.

122. As I pointed out in paragraph 97 of that judgment, ultimately the question is one of fairness. And by definition, that would depend on the individual circumstances of a case. A relevant consideration in this context is whether the decision is so aberrant as to call for the giving of reasons (para 98). For where the decision appears aberrant, there is a duty to give reason: R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242, 263B. See also Pearl Securities Ltd v Stock Exchange of Hong Kong Ltd [1999] 2 HKLRD 243, 259D to 261I.

123. I am prepared to proceed on the assumption that the Chief Executive in Council has no general duty to provide reasons for his decision made under section 9(1) of the Ordinance. Yet in the particular circumstances of the present case, there can be only two possibilities.

124. First, the Chief Executive in Council was not alive to the two errors, and he, therefore, approved the draft OZP. In that case, his decision must be disturbed. I am not concerned with this scenario in the present discussion.

125. Secondly (and alternatively), the Chief Executive in Council was aware of those two errors but nonetheless for some reasons decided to approve the draft OZP. In my view, this second possibility, with which I am concerned under the present discussion, would constitute special circumstances requiring the Chief Executive in Council to provide reasons for his decision to approve the draft OZP despite the errors committed by the Board. Unless reasons are supplied to explain the decision to approve, it must appear aberrant given the errors committed below.

126. Since no reason has been provided whether at the time of approval or after the commencement of proceedings, the decision of the Chief Executive in Council to approve the draft OZP has to be disturbed.

127. In the circumstances of the present case, I do not think the failure of the Chief Executive in Council to give reasons can be adequately redressed by an order of mandamus compelling the Chief Executive in Council to give reasons. Looking at the matter as a whole – including the flawed decision of the Board below, fairness requires that the matter be remitted to the Board for reconsideration.

Outcome

128. Having considered the entire circumstances of the case, in my view, the fairest order and relief to grant is an order of certiorari to bring up and quash the decision of the Town Planning Board not to amend the draft OZP to meet the applicant’s objection, and a similar order of certiorari to bring up and quash the decision of the Chief Executive in Council to approve the draft OZP, in so far as they relate to Sites 1, 2 and 3, with a direction that the applicant’s objection relating to the three sites be remitted to the Board for reconsideration.

129. I so order.

130. The parties are in agreement that costs should follow the event. The applicant has achieved substantial success in these proceedings. Only a very small proportion of effort and costs has been expended in relation to Site 4.

131. In those circumstances, I order that 95% of the costs of these proceedings (including all costs previously reserved) be paid by the respondents to the applicant, such costs to be taxed if not agreed. I also grant a certificate for two counsel.

132. I thank counsel for their assistance.

(Andrew Cheung)
Judge of the Court of First Instance
High Court

Mr Benjamin Yu SC and Mr Colin Wright, instructed by Messrs Johnson, Stokes and Master, for the applicant

Mr Ambrose Ho SC and Mr Abraham Chan, instructed by the Department of Justice, for the respondents

SMART GAIN INVESTMENT LTD v. TOWN PLANNING BOARD

Court

Procedural posture

Issues

Holdings

Legal principles

Disposition

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