Archive for the ‘Judicial Review’ Category

Small House Policy: judicial review of a decision not to grant vehicular access over Government land?

December 30, 2015

In Hung Hing v Director of Lands ([2015] 5 HKLRD 516, CA) the owners of land in the New Territories had applied to the District Lands Office (‘DLO’) for permission to build small houses on their respective lots. There was no vehicular accessway to the lots. Land owned by the Government separated the lots from the public highway. The owners made a separate application to the DLO to buy land from the Government to provide the accessway. They argued that the DLO had an obligation to sell the land to the owners to give effect to the Small House Policy and the policy requiring emergency vehicular access (‘EVA’) to the homes to be built. The DLO refused to sell the access land to the owners and the owners sought leave to bring judicial review proceedings in respect of this decision. Leave was refused at first instance on the basis that the decision was not amenable to judicial review: the Government’s decision was reached by it in its capacity as a private landowner. The owners appealed against this refusal but the appeal failed.

It had been established in Koon Ping Leung v Director of Lands that some DLO decisions under the Small House Policy were amenable to judicial review. This did not mean that every decision linked to the implementation of the Small House Policy was susceptible to judicial review. The published materials laid before the court made it clear that those applying under the Small House Policy were expected to make their own arrangements concerning access. It was no part of the Policy to provide (or even require) permanent vehicular access. It was therefore not possible to argue that the Policy had been misapplied in this instance.

Nor was it unreasonable or irrational for the Policy to be framed in these terms. Whether or not to sell or grant rights over its land was a decision that the Government took in its capacity as landowner or landlord. Its decisions in this regard, and the policies that inform those decisions, are not amenable to judicial review ([30] per Cheung CJHC). Given the many competing demands on land in Hong Kong, this stance made perfect sense ([29]).

Even if the decision or the alleged omission from the Policy were amenable to judicial review, this did not mean that the Policy had to require the Government to provide access. A Policy could equally well require an owner to show that he had the necessary access rights before he could make an application under the Small House Policy ([32]). In any event, there was no evidence to show that the owners had exhausted other possible alternatives (such as negotiating with other landowners in the area for the necessary rights) ([33]).

Michael Lower


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

September 21, 2012

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).