Judicial review of the Outline Zoning Plans for Causeway Bay and Wanchai

Hysan Development Co Ltd v Town Planning Board([2012] HKEC 1266, CFI) was an application for judicial review of the Town Planning Board’s decision to approve the Outline Zoning Plans (‘OZP’) for Causeway Bay and Wanchai. Hysan contended that the decision to impose Building Height Restrictions, Non-building areas and setbacks  ‘were either beyond the Board’s powers; unreasonable; irrational; arbitrary; based on erroneous appreciation of fact; the result of procedural unfairness; or an abdication by the Board of the proper exercise of its statutory duties.’ ([10]). Hysan succeeded in having the decision to approve one aspect of the Causeway Bay OZP quashed but otherwise the application failed entirely. The following principles were set out in the course of the judgment.

1. The Board does have power to impose restrictions on particular sites. Whether these restrictions do or do not ‘severely constrain design’ is for the Board to decide and the court (less equipped to make this judgment) will give due deference to the decision ([18]).

2. Briefing papers and minutes of meetings are to be ‘read liberally and in context’ and not as if they were statutes ([38]).

3. ‘ A developer has no legally protected right always to have the best of everything.’ It has to balance a range of competing design and profit-maximisation concerns with legal and physical constraints operating on a site.’ ([29])

4. Guidelines prepared by the Buildings Department have different objectives than decisions made by the Board. The former are concerned with building design while an OZP is prepared with urban design and planning objectives in mind. ([58]).

5. The OZP and its individual elements were not approved arbitrarily or irrationally where the proposals were tested against alternatives in a dynamic way, where independent expert advice was taken and the commercial impact of the decision was taken into consideration. The Board is entitled to a wide degree of deference ([79]). The mere fact that other decisions could have been made does not invalidate the decision actually reached ([146]).

6. Where, however, there was no clear rationale for a decision then it was arbitrary and could be quashed on that ground ([147] – [150]).

7. It was for the Board to satisfy itself that it had understood and given due weight (which might be more or less) to representations made to it. This might mean that it does not read all of the documents submitted to it or submit them to detailed analysis if it is reasonably satisfied that it has taken the points made in the documents into account. ([166] – [181]).

8. The fact that not all members of the Board were present at every stage of a Board meeting does not lead to a conclusion that there was procedural unfairness ([182] – [187]).

9. ‘The mere fact that zoning restrictions imposed in the public interest will lead to a diminution of property values will not, without more, amount to an unlawful deprivation of property contrary to the Basic Law. A landowner takes property subject to an implied condition that, for the public good, the Government may by regulation (including OZPs) limit the uses to which such land can be put in the future.’ ([195] per Reyes J).

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3 Responses to “Judicial review of the Outline Zoning Plans for Causeway Bay and Wanchai”

  1. Ava Luong Says:

    Thanks, this is very interesting. On the topic of Judicial Review, I wonder if the recent “National Education” campaign in Hong Kong is subject to judicial review? Would you please shed some lights on this? Thank you.

    • Michael Lower Says:

      Public law isn’t really my area (Planning Law has an obvious link with land issues). In general any decision of a public body is subject to review on the basis that it is unreasonable (in a strict technical sense) or proper procedures have not been followed or some right protected by the Basic Law has been infringed.

      • avocawho Says:

        Thank you for replying. Appreciated. Have a great weekend.  

        >________________________________ >From: Hong Kong Land Law Blog >To: avawho@yahoo.com.au >Sent: Friday, 21 September 2012 5:13 PM >Subject: [New comment] Judicial review of the Outline Zoning Plans for Causeway Bay and Wanchai > >Michael Lower commented: “Public law isn’t really my area (Planning Law has an obvious link with land issues). In general any decision of a public body is subject to review on the basis that it is unreasonable (in a strict technical sense) or proper procedures have not been follow”

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