The Town Planning Board has confused plan making with plan approval - The Court of Appeal says "yes" to Swire's Castle Steps development

Summary

JSM, acting on behalf of a subsidiary of Swire Properties Limited ("Swire"), succeeded in the Court of Appeal in a planning case involving a site at the Mid-Levels which fronts onto Castle Steps, Seymour Road and Castle Road. The site is commonly referred to as the "Castle Steps Site".

The case involves an application to the Town Planning Board ("TPB") for relaxation of the height and plot ratio restrictions on, and hence an increase in the permitted gross floor area of, the Castle Steps Site.

Under the relevant outline zoning plan ("OZP"), a portion of the site was subject to a height restriction of 12 storeys and a plot ratio of five, whilst the remaining part of the site is unrestricted.  As a result of the decision of the Court of Appeal, Swire is permitted to develop on the site a 54-storey residential building with a plot ratio of nine.

The Court of Appeal's decision is one of the most significant planning law decisions in recent years. The Court makes it clear that the TPB must not confuse its two different roles under the Town Planning Ordinance ("TPO"), namely, those of  "plan making" and "plan approval".

Facts of the case

In August 2004, Swire made a planning application to the TPB under section 16 of the TPO for relaxation of the height and plot ratio restrictions on the 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 was lodged with the Town Planning Appeal Board under section 17B of the TPO. The Appeal Board, by a majority of three to two, dismissed the appeal. Swire then applied for judicial review of the decision of the Appeal Board.

The TPB contended 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 fell within a high density zone under the relevant OZP for which there was neither a height nor plot ratio restriction. Restrictions were 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 visual impact 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.

On 15 November 2007, Mr. Justice Andrew Cheung of the Court of First Instance 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 in Council. The judge agreed with, and decided in favour of, Swire.

The TPB appealed against the judge's decision. On 27 February 2009, the Court of Appeal dismissed the TPB's appeal. In particular, the Court of Appeal held that :

• The TPB confused its "plan making" and "plan approving" roles. The TPB was not given a blank canvas and its discretion must be exercised within the limits of the relevant approved plans. In discharging its "plan approving" function, the TPB does not have the power to have regard to any and all planning considerations which it believes will assist it to reach the right decision in the public interest and its discretion must be exercised within the parameters of the approved OZP.
• The lack of vehicular access was the only reason for imposing the 12-storey and 5-plot ratio restrictions on a part of the site. Accordingly, once the access problem was removed by amalgamation of the site, the rationale behind such restrictions fell away. Fairness demanded that relaxation of restrictions on that part of the site should be acceded to in the same manner as the unrestricted part of the site. 

Conclusion

The case has created a lot of public interest. It remains to be seen whether the TPB will appeal against the Court of Appeal's judgment to the Court of Final Appeal.

For further information, please contact:

FK Au ( fk.au@mayerbrown.com )