Case Commentary

Administrative & Public Law – Court of First Instance quashes Town Planning Board’s planning permission

Tam Hoi Pong v Town Planning Board

Reference:                   [2020] HKCFI 2265

Court:                           Court of First Instance

Before:                         Hon Au JA in Court (sitting as an additional judge in the Court of First Instance)

Date of Judgment:     4 September 2020

Appearance:               Jeffrey Tam (for the successful applicant), assisted by Albert Wan


Overview

Au JA held that the Town Planning Board (“TPB”) had acted ultra vires in deferring to the Director of Environmental Protection (“DEP”) to decide whether the funding arrangements proposed under the development Site are met because the public will be deprived of a proper opportunity to comment and make representations on the details of the funding arrangement.  Au JA further held that the Applicant succeeded on the legitimate expectation ground, with the expectation being that the TPB would ensure that the private-public partnership approach (“PPP Approach”) with the 2011 NNCP Arrangements would be taken into account and that the requirements therein be met.

Background

The development site in the planning application in dispute is located in Fung Lok Wai, Yuen Long (“Development Site”). It sits within the Deep Bay Area and the Mai Po Nature Reserve (“the Wetland Area”). Given the ecological importance and significance of the Wetland Area, the Outline Zoning Plan (“OZP”) of that area was governed by special guidelines. It includes a private-public partnership approach (the “PPP Approach”) which aims at allowing limited private development in the Wetland Area in exchange for a better management of the remaining area.

Meanwhile, the government has a separate New Nature Conservation Policy (“NNCP”) to regulate, protect and manage natural resources that are important for the conservation of biological diversity. A framework was set up under the NNCP (“the NNCP Arrangement”) and it specifically covered the Development Site.

Under the NNCP Arrangement, before development in the priority sites, the developers are required to (1) pay a lump sum donation to the Environment Conservation Fund (“the Funding Requirement”) and (2) co-operate with green groups as consideration agents (“the Conservation Fund Requirement”). The TPB had expressed their support of the Arrangement.

At the time of application, the developer failed to fulfil the Requirements. It did not comply with the Funding Requirement by proposing to use a private trust management. Yet, the TPB approved the application and considered that the requirements could be dealt with by way of imposing conditions which requires the developer to submit and implement a funding management proposal to the satisfaction of the DEP and the Director of Agriculture, Fisheries and Conservation.

The Court’s findings

Au JA accepted the Applicant’s construction of government policy and held that the NNCP Arrangements constitute part of the PPP Approach in the TPB policy and the planning intention. The ultimate objectives of the policy are to conserve and enhance the ecological value and functions of the Wetland Area on a long-term basis, and to place development proposals under the PPP Approach under close scrutiny.

Alternatively, the TPB must have adopted the NNCP Arrangements as part of the requirements under the PPP Approach for the specific purpose of considering development planning application at Fung Lok Wai.

Au JA rejected the TPB’s argument that the implementation details of the scheme could be properly dealt with by imposing conditions. It was held that the funding arrangements are an essential facet of the PPP Approach and are important when deciding whether the relevant planning permission should be granted. The TPB was wrong to dispose of the Arrangements by way of conditions because it is ultra vires to defer to the DEP to decide whether or not such funding arrangements are met.

The learned Judge also recognised the importance of public participation for TPB in formulating its decisions. The Decision deprived the public of the proper opportunity to comment and make representations on the funding arrangements.

Since the NNCP Arrangement formed part of the TPB policy, Au JA also found that it give rise to the legitimate expectation that TPB would ensure that the PPP Approach under the NNCP Arrangement would be taken into account, and the Requirements be met. By imposing conditions deferring the determination to the DEP and DAPC, the TPB breached the legitimate expectation.


Jeffrey Tam


Since being called in 2009, Jeffrey has established a solid practice in public law, having been involved in a number of landmark judicial review cases, including Kwok Wing Hang & Others v Chief Executive in Council & Others, HCAL 2945/2019, CACV 542 & 583/2019 which concerns the ban on face covering. Recently, Jeffrey appeared as junior Counsel for the 1st and 2nd Applicants in the judicial review of the Small House Policy at both the Court of First Instance and Court of Appeal. Visit Jeffrey’s profile for further details of his practice.

Albert Wan


Albert obtained a Master of Law (LLM) at University of Cambridge after completing his LLB at City University of Hong Kong with First Class Honours. Called in 2017, he is developing a wide practice with particular emphasis on civil and public law. Albert has successfully obtained leave for judicial review on papers and, in Ho Yin Fai v Wu Chi Kin, HCAL 28/2016, 4 October 2017, he defended successfully against an election petition of alleged treating and publishing election advert that includes false claims of support. See Albert’s profile for more information.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case.