17 July 2007
The Court of Appeal ("CA") in Anderson Asphalt Limited v Town Planning Board has held that the Town Planning Board ("TPB"), when considering applications for short-term planning permission for uses outside the relevant Outline Zoning Plan ("OZP"), should consider the applicant's real intention regarding the duration of use. This case also illustrates an increasingly liberal approach to the issue of standing in judicial review.
This was a case of judicial review. The Applicants were asphalt producers and operators in Hong Kong. They sought to challenge the decision of the TPB in granting a 3-year temporary permission to Man Fai Tai Enterprises Ltd ("MFT") to use a site at Sha Ling for an asphalt production plant.
The site was zoned "agricultural" under the relevant OZP. However, the OZP also allowed planning permission to be granted for a period not exceeding 3 years in respect of a user which is not provided for in the plan (e.g. asphalt production).
The Applicants argued that the TPB had not taken into account MFT's long term intention regarding the site, and that MFT intended to make successive renewals, rendering the "temporary" use permanent.
Issue 1 - Whether the TPB can lawfully grant permission for temporary use without first having considered and having been satisfied that the intended use was of a temporary nature
The CA noted that the TPB had a practice of entertaining renewal applications for temporary applications. Under the relevant TPB guidelines, in the absence of any material change in planning circumstances or any adverse planning implications, a renewal in favour of an applicant who had complied with planning conditions under an earlier approval could be easily granted.
If successive applications for 3 years' temporary use outside those stipulated in the OZP were granted too easily, the planning intention of the OZP would be frustrated. Therefore, the CA held that where there is sufficient material suggesting that the applicant may apply for a renewal, it is relevant to consider the applicant's real intention regarding the duration of use.
Taking into account the materials submitted by the Applicants in their objection to the TPB, and also the common sense inference that once a switch to asphalt production was approved there was a real possibility that MFT might seek to renew, there was sufficient material before the TPB to require the question of long-term intention to be addressed.
On the facts of the case, the CA found that the Board did not consider this question. The permission granted to MFT was therefore quashed.
Issue 2 - Whether the Applicants have standing
The judge at first instance held that the Applicants did not have sufficient standing to move for judicial review, as they only had a commercial interest (to curb unfair competition from MFT as it is cheaper to use agricultural land for an asphalt plant).
The CA reversed this on two grounds:
1. In cases of judicial review, the court is more concerned about the merits of the case. The standing of the applicant is only one of many factors to be weighed in balance.
2. In the context of decisions on planning permission, a person whose real interest in the matter was commercial and economic should be allowed to raise objections. Since the Applicants' views were taken into consideration by the Board in arriving at its decisions, they were not mere busybodies and entitled to move for judicial review.
The CA's decision has plugged a loophole in the TPB's decision-making process. It will now be harder for applicants to circumvent the original planning intention of a site by applying for successive short-term planning permissions for e.g. industrial activities on agricultural land.
The liberalisation of the Court's approach to standing is also to be welcomed. Judicial review is a way of curbing misuses of public power, and where an applicant's case has merit it should not fail simply because of the technical issue of standing.
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