SMART GAIN INVESTMENT LTD v. TOWN PLANNING BOARD

Date of Hearing:   8 November 2006

Date of Judgment:   8 November 2006

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J U D G M E N T

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Hon Ma CJHC :

1.  On 28 February 2006, Reyes J refused the Applicant leave to apply for judicial review in relation to a decision of the Town Planning Board dated 2 November 2005 refusing to allow any amendments to the draft Clear Water Bay Peninsular North Outline Zoning Plan (“the draft OZP”).  The Applicant now appeals that refusal.

2.  In my view, leave to apply for judicial review should be given.  It is not necessary or desirable to go into the merits in detail but I am persuaded that an argument does or may well exist along the lines, for example, that the Town Planning Board (or rather, the Board’s Objection Hearing Committee) did not properly consider the factual question whether the relevant sites (the subject matter of the Applicant’s objection to the draft OZP) really had those characteristics that would or should make them subject to a Conservation Area zoning.  It had been submitted by the Planning Department that the relevant sites comprised “wooded slopes and river valley, which form a very significant and attractive landscape”.  This was, however, disputed on the facts by the Applicant.  It seems arguable that the Town Planning Board (or rather the Board’s Objection Hearing Committee) simply adopted the Planning Department’s assertions of fact without resolving the factual issues raised by the Applicant.  It is said that the Town Planning Board may therefore have abdicated its decision making responsibility.  There are other grounds which are relied on : failure to give proper reasons, failure on the part of the Board to take any or any reasonable steps to put itself in a position to acquaint itself with relevant facts, Wednesbury unreasonableness etc.

3.  In refusing leave, the Judge, after a comprehensive review of the materials before him, held that the Applicant’s case had failed the threshold of an arguable case.  As Mr Yu pointed out, the appropriate test as laid down by this court is that stated in R v Director of Immigration, ex parte Ho Ming-sai and others (1993) 3 HKPLR 157 at 158, namely : -

“… whether the materials before the trial judge disclose matters which might, on further consideration, demonstrate an arguable case for the grant of the relief claimed.”

Whether or not this test requires revision is not a matter that is before us in this appeal but that test is satisfied in the present case.

4.  I would therefore allow the appeal and accordingly grant leave to the Applicant to apply for judicial review of the decision to which I have earlier referred.

Hon Stone J :

5.  For my part, I agree entirely with what has fallen from the Chief Judge.  I would only comment further that had the learned judge below had the very considerable advantage of the pictorial aids now placed before this court, he may well have viewed this case in a different light.  I, too, would grant leave.