In August 2004, Swire's subsidiary made a planning application under section 16 of the Town Planning Ordinance ("TPO") to the TPB for relaxation of the plot ratio of the Castle Steps Site. The proposal was rejected by the TPB and an application for review under section 17 of the TPO was made. The application was again rejected upon the review. An appeal against the rejection upon review was lodged with the Town Planning Appeal Board under section 17B of the TPO. The Appeal Board, by a majority of 3 to 2, dismissed the appeal. Swire then applied for judicial review of the decision of the Appeal Board.
The TPB contented that Swire's proposal would adversely affect the views of neighbouring developments and increase the traffic congestion at the Mid-Levels and, for these reasons, the proposal should be rejected.
Swire's case is that the site falls within a high density zone under the relevant Outline Zoning Plan ("OZP") for which there was neither a plot ratio nor a height restriction. A restriction was subsequently imposed on a part of the site fronting Castle Steps (which is a stepped street) for safety reasons because there was no vehicular access. The OZP made it clear that once the access problem is solved by amalgamation of that part of the site with the other parts of the site, relaxation should be granted. Neither views nor traffic should be relevant considerations for the planning application. Building height and traffic are district-wide issues which are matters to be dealt with in the plan making function of the TPB. In considering the planning application the TPB must follow the planning intention of the OZP.
In a judgment handed down on 15th November 2007, the Mr. Justice Andrew Cheung of the High Court held that the planning intention of the OZP for the site is a question of law and such intention must be ascertained from the OZP itself, having regard to the context in which the OZP was prepared by the TPB and approved by the Chief Executive Council. The judge agreed with, and decided in favour of, Swire.
The case has created a lot of public interest. The TPB has decided to appeal against the decision of Mr. Justice Andrew Cheung.
JSM acted for Swire in all stages of the planning applications since 2004.