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ADMINISTRATIVE & PUBLIC LAW – Court of First Instance quashes “ultra vires” decision of Town Planning Board

Jeffrey Tam represented the Applicant in challenging the decision of the Town Planning Board in Tam Hoi Pong v Town Planning Board [2020] KCFI 2265, which approved a developer’s application for planning permission even though the relevant requirements under the New Nature Conservation Policy were not met.

Yellow Bittern in Mai Po Nature Reserve

The case concerns a development site located in the Deep Bay Area and Mai Po Nature Reserve (“the Wetland Area”). Under the New Nature Conservation Policy (“Conservation Policy”), before developing on the site, developers must (1) pay a lump sum donation to the Environment Conservation Fund and (2) co-operate with green groups as consideration agents (“the Requirements”). The Conservation Policy also encompassed a private-public partnership approach, which aims at allowing limited private development in the Wetland Area in exchange for better conservation and management of the remaining ponds or wetland within the development site.

At the time of the application, the developer in question failed to fulfil the Requirements. Despite this, the Town Planning Board (“the Board”) approved the application and dealt with the Requirements by imposing conditions: the developer was to submit and implement a funding management proposal to the satisfaction of the Director of Environment Protection and the Director of Agriculture, Fisheries and Conservation.

Outcome of judicial review

The Honourable Mr. Justice Au, JA (sitting as an additional judge in the CFI) held that the Board had acted ultra vires in deferring to the Director of Environmental Protection in deciding whether the funding arrangements were met; the decision deprived the public of a proper opportunity to comment and make representations on the details of the funding arrangement.

The Learned Judge further ruled that the Applicant had a legitimate expectation for the Board to ensure that the private-public partnership approach would be taken into account. The Board’s decision therefore breached this legitimate expectation.

Jeffrey Tam acted for the Applicant, with assistance from Albert Wan.

For a more detailed case commentary, please click here.

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. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.