In this case, the Real Estate Developers Association of Hong Kong (Association) succeeded in its application for judicial review of four decisions of the Town Planning Board (Board) in respect of Draft Outline Zoning Plans for four districts in Hong Kong (Four DOZPs). Under the Four DOZPs the Board had imposed various restrictions for property development.
The Board and various other individual developers had raised objections to the restrictions and asked the Board to amend the DOZPs. The objections had been raised firstly in writing and then later in public hearings held by the Board. The Board rejected the objections and refused the suggested amendments and it was those decisions (Four Decisions) which the Association now challenged.
Quashing of the Board’s Decisions
The Court quashed the Board’s Four Decisions and remitted them back to the Board for reconsideration, finding that there had been procedural unfairness in the Board’s decision making process and that it had failed to make sufficient inquiries in relation to the Association’s representations at the four public hearings (Four Meetings).
Ground of Challenge
The Association challenged the Four Decisions on multiple grounds, namely that they were:
The Association contended that under sections 3 and 4 of the Town Planning Ordinance (TPO), the Board was only empowered to make planning restrictions in a “broad brush” manner (which should generally apply across the board in the relevant district or zone) and was not entitled to make spot restrictions which were site specific within the district and affect (or restrict) the design of a specific building that was to be built on that site.
Thus, in imposing spot restrictions, the Board had gone outside its statutory authority and the Four Decisions in upholding the DOZPs were therefore ultra vires. The Court held that it was bound by a Court of Appeal decision which had rejected such arguments and so the challenge on this ground failed.
Procedural unfairness – systemic and specific
The Association attacked the fairness of the procedures adopted by the Board for the purposes of the public hearings at two levels, namely systemically i.e. at the general level regarding the procedures generally adopted by the Board in holding such meetings; and (ii) specifically, namely in relation to the actual circumstances particular to each of the Four Meetings.
The Association contended that the following features relating to the public hearings held by the Board under section 6B of the TPO amounted to systemic procedural unfairness:
Bearing mind the general principles that
the Court rejected all of the Association’s above challenges based on systemic procedural unfairness.
Specific Procedural Unfairness
The Association relied on the same complaints listed above to support its case of factual procedural unfairness, specific to the Four Meetings. Essentially, it was the Association’s case that, because of various procedural matters adopted or which occurred at each of the Four Meetings, members of the Board had not been able to properly, independently and adequately consider the Association’s representations and that the four decisions were therefore tainted with procedural unfairness.
The Association complained that :-
The Court (following a Court of Appeal ruling) said that the crucial question for the court to determine was whether the Board had shown that all the members involved in the decision making in each of the Four Meetings were fully appraised of the Association’s representations.
The Court held that the Board had failed to demonstrate that all members involved in the decision making in each of the Four Meetings were fully appraised of the oral representations made by the Association because :-
The above, the Court said, amounted to procedural unfairness which tainted each of the Four Decisions. Accordingly, it quashed the Four Decisions and remitted them back to the Board for reconsideration.
In recent years, Government decisions have frequently been subject to challenge by way of judicial review. It should be noted that the Court will not consider the merits of the Government decisions in a judicial review. Usually, only when there is a breach of natural justice will the Court interfere with the Government's decision. In this case, the applicant mounted its challenge on several grounds, but the Court only quashed the Board's decision based on procedural unfairness. It demonstrates that the Government has to be very careful in making decisions, to ensure that the procedure is not challengeable. On the other hand, an applicant and its legal advisers have to examine microscopically the procedure that was adopted in arriving at the decision in question, to see whether there is any ground to challenge the decision.