TOWN PLANNING BOARD v. TOWN PLANNING APPEAL BOARD

CACV 25/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2014

(ON APPEAL FROM HCAL 26 OF 2013)

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BETWEEN

TOWN PLANNING BOARD Applicant
and
TOWN PLANNING APPEAL BOARD Respondent
NAM SANG WAI DEVELOPMENT COMPANY LIMITED
and
KLEENER INVESTMENT LIMITED
Interested Parties

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Before : Hon Lam VP, Kwan JA and Poon JA in Court

Dates of Written Submissions : 24 August, 21 September, and 12 October 2015
Date of Judgment : 4 November 2015

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JUDGMENT

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Hon Poon JA (giving the Judgment of the Court) :

1.We will adopt the same nomenclature used in our judgment handed down on 18 June 2015.

2.By that judgment we dismissed the Developers’ appeal against the judgment of G Lam J dated 16 January 2014, granting the Board’sapplication for judicial review and quashing the Appeal Board’s Decisions.

3.The Developers now apply for leave to appeal to the Court of Final Appeal on the ground that the intended appeal involves questionswhich, by reasons of their great general or public important, ought to be submitted to the Court of Final Appeal for decision undersection 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. They raised three questions, which they said, are of great general or public importance.

4.The first question is whether a decision by the Board other than one either refusing or granting planning permission under section 16(3) of the Ordinance or one granting permission with conditions under section 16(5) is a decision of the Board under section 16 reviewable under section 17(1), thus enabling the aggrieved applicant to apply to the Board for a review of that decision and if, necessary, to appeal further tothe Appeal Board under section 17B.

5.The second question, which is related to the first, is whether or not, under the scheme of the Ordinance, there is a need for a merits-basedreview and appeal procedure for “incidental decisions” of the Board under section 16 regardless of their nature and importance, that is, procedural, substantive and those from which legal rights or obligations flow.

6.The third question is the converse of the second question: whether or not , under the scheme of the Ordinance, the availability ofjudicial review of “incidental decisions” of the Board under section 16 regardless of their nature and importance, that is, procedural, substantive and those from which legal rights or obligations flow,is adequate judicial control over such decisions.

7.We have read with care the written submissions (both in support and in reply) by Mr Neoh, SC, for the Developers and those in oppositionby Mr Litton for the Board. We are grateful to counsel for their assistance. We are not persuaded by Mr Neoh’s submissions. Forpresent purposes, we just want to highlight the following points to explain why we reject the Developer’s application.

8.First, to get the application off the ground, the Developers must satisfy us that their arguments on the construction of section 16 of the Ordinance are reasonably arguable. With respect, we are not persuaded by Mr Neoh’s arguments. We agree with Mr Litton thatit is no more than a third attempt by the Developers to run essentially the same submissions on construction which have already beenrejected by the courts twice. They just dressed it up as an application involving great general or public importance.

9.Second, Mr Neoh submitted that there are many applications granted with conditions and there is no decision yet by the Court of FinalAppeal on the construction of section 16. However, we agree with Mr Litton that since the legislative intent of section 16 is so clear, there cannot be any real doubt about its proper construction. So the fact that there are many applications granted subjectto conditions or that hitherto there is no decision by the Court of Final Appeal on this point carries little weight in our overallconsideration if leave should be granted.

10.Third, while we accept Mr Neoh’s submission that the Ordinance is a frequently invoked statute which regulates important aspectsof community life and proprietary rights in Hong Kong, such consideration of itself is not sufficient to ground an application forleave to appeal on the great general or public importance limb. Otherwise, every decision by a lower court involving the Ordinancewill be appealable to the Court of Final Appeal. One has to look at the particular circumstances of the case in question to see ifquestion of great general or public importance does arise. So it is a fact-sensitive exercise. Here, the facts are very unique. Wedo not accept that they involve any general or public importance as contended by the Developers.

11.It follows that we refuse to grant leave to the Developers to appeal to the Court of Final Appeal.

12.We further order the Developers to pay the Board the costs of the failed application, to be taxed on a party and party basis if notagreed.

(Johnson Lam) (Susan Kwan) (Jeremy Poon)
Vice‑President Justice of Appeal Justice of Appeal

Mr John Litton, instructed by Department of Justice, for the applicant

Mr Anthony Neoh SC and Mr Anthony Ismail, instructed by Lo & Lo, for the interested parties