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Court of First Instance rules Town Planning Board breached statutory and Tameside duties to make inquiries on community needs

In The Methodist Church, Hong Kong v Town Planning Board (HCAL 55/2011) [2021] HKCFI 1060, the Applicant challenged the refusal of the Town Planning Board (the “Board”) to propose amendments to draft outline zoning plans which imposed building height restrictions and setbacks on the Applicant’s sites. The Court held that the Board breached its duty to make inquiries in failing to deal with the issue of community needs raised by the Applicant. Earl Deng, junior counsel for the successful Applicant, discusses the background and key takeaways of this ruling.

Overview

The Court held that the Town Planning Board breached its statutory and Tameside duties to make inquiries when refusing to propose amendments to draft outline zoning plans (“OZP”) after the Applicant sought relaxations and removal of building height restrictions and setbacks imposed on its various sites around Hong Kong on the basis of community needs.  Notably, notwithstanding the Court allowing late evidence from the Board to further justify its decisions, the judge expressly held that she would give no weight to evidence filed by the Board that seeks to alter, contradict or goes beyond merely elucidating or confirming the reasons or justifications stated in the official contemporaneous documents.

Background

In a series of decisions in around 2010, the Town Planning Board proposed various restrictions on building height and setbacks around the urban areas in Wan Chai and Yau Ma Tei, with a view to preserving breathing spaces and visual spatial relief in the various areas where there was none before.  The Applicant is a non-profit organisation that provides religious, educational, vocational and community services at various sites within the areas affected, which include “Government, Institution and Community” (“GIC”) zones.

Opposing the decisions, the Applicant with the assistance of solicitors made various representations to the Board including, inter alia, the impact on its ability to provide its services to the community if the restrictions were imposed on its properties.

According to the contemporaneous documents, the Board rejected the Applicant’s representations. In its reasons and deliberations, the Board focused on the usage of GIC sites and treatment of GIC landowners, with little to no discussion on how the restrictions would impact the provision of community services whether specific to the Applicant or generally.

The Court’s decision

Allowing the judicial review, The Honourable Madam Justice Wong held that a duty to make inquiries into relevant considerations exists not only under the common law principle in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014) but also under the Town Planning Ordinance (Cap. 131) as well as common law.

Citing from various documents, the Board sought to argue that it did consider community needs and had found inadequacy only in relation to swimming and sports facilities in Wan Chai. The Board also referred to records of its general remarks that community needs had been identified and were sufficiently provided for. 

The Court rejected the Board’s arguments that such generalised comments were sufficient to discharge the Tameside (given her ruling on ex post facto elucidation of such general evidence) and statutory duty to inquire, in light of the extensive representations by the Applicant supported by evidence and the lack of any detailed consideration of such representations from contemporaneous documents.

Commentary

While this case was premised upon Tameside and the duty to inquire, it highlights in stark terms the duty of a public authority to give adequate reasons for its decision.  In the absence of adequate reasons, a Court would be entitled to infer (as it has in this case) that the duty to inquire was breached and the decision unreasonable on public law grounds.

This case is also a clear example that for planning cases, the quality of the representation matters – the Applicant succeeded ultimately because of the extensive groundwork to prepare and present its representations at the Board level, which left little room for the Board to simply overlook and rely on general reasons to reject.

Representation:

 Earl Deng (led by Mr. Nigel Kat SC) acted for the successful Applicant.


Earl Deng


Recognised in
Legal 500 Asia-Pacific 2021 as a Leading Junior in the areas of Commercial Disputes, Labour and Employment and Intellectual Property, Earl has an active civil law practice involving advisory and advocacy work in complex commercial, contractual, chancery, and intellectual property disputes. He is also known as a specialist advocate for public and administrative law matters and sexual minority rights.

Earl read Law at the University of Cambridge, Fitzwilliam College on a Prince Philip Scholarship Bursary and was called to the Hong Kong Bar in 2008, joining Denis Chang’s Chambers in the same year.

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.