Court quashes Town Planning Board’s decision for procedural unfairness

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:

1. unlawful as they were made ultra vires the Board’s statutory powers;
2. tainted with systemic (or case specific) procedural unfairness and not supported by adequate reasons; and
3. flawed in relation to the conclusion made on certain specific facts or issues as the Board had failed to give independent and proper consideration to them. 

Ultra Vires

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.

Systemic Challenge

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:

1. The Board’s practice of refusing to accept written representations submitted by a person after the 2-month statutory period, even where they were only to explain and elaborate on the written representations made by the same person filed within the 2-month period (“the supplementary materials complaint”).
2. The Board’s practice of only circulating supplementary representations among the Board members on the day of the hearing, and at the same time allowing the Planning Department to rely on new materials at the hearing (“the circulation of materials complaint”).
3. The Board’s practice of not adjourning a hearing generally unless there were exceptional circumstances and with the consent of all the parties, coupled with the Board’s practice of holding the hearing for long hours in order to complete it within one hearing (“the workload and scheduling complaint” and “the non-adjournment complaint”).
4. The fact that not all members who formed the final quorum of the Board to make the final decision of a hearing may have heard all the oral representations made at the hearing because members of the Board would come in and out of the hearing (“the members leaving complaint”).
5. The Board had reversed the burden of proof at the hearing (“the burden of proof complaint”).

Bearing mind the general principles that

1. the Board was performing an administrative rather than judicial role and domestic tribunals are generally regarded as masters of their own procedure; and
2. what fairness in a procedure demanded depended on the particular circumstances of each case,

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 :-

1. A large amount of the Association’s materials (which included various substantial and technical expert reports) were only circulated to the members on the day of the meetings and they did not therefore have time to digest and read the materials before the meetings.
2. The meetings lasted for very long hours and there were members who had left the meetings when the applicant’s representations were made, but who later participated in the decision making.
3. The Board simply adopted all the reasons from the Planning Department prepared before those meetings as their reasons to reject the applicant’s representations.

Court’s Findings

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 :-

1. In each of the Four Meetings, there was at least one member of the Board who was present for the decision making but who had been absent for all or part of the Association’s representations. 
2. In each of the Four Meetings, the Association had relied on substantial and technical expert reports and materials, but these materials were only circulated to the members on the day of the meetings and thus, objectively, there was very little time for them to read and digest the materials.  Further, each of the meetings had lasted for long hours with very short breaks and it was only natural that members would get tired and might become less sharp in their concentration as the meeting went on. These features when considered together would put some doubt as to whether the members could properly focus and understand the Association’s representations.
3. The Board had adopted the Planning Department’s reasons prepared before each of the meetings as its reasons for rejecting the Association’s representations.  Although adoption of reasons by itself may not support a case of procedural unfairness, when looked at together in the present circumstances, the Board could not show by evidence that all the members involved in the decision making in each of the Four Meetings were fully apprised of the Association’s detailed representation and had considered them adequately before rejecting them.

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.

Comment

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.

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張國傑

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