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1st Applicant
BARROWGATE LIMITED
2nd Applicant
3rd Applicant
4th Applicant
MINSAL LIMITED
5th Applicant
MONDSEE LIMITED
6th Applicant
7th Applicant
8th Applicant
Respondent
1st Applicant
2nd Applicant
Respondent
Applicant
and
ORIENTAL GENERATION LIMITED
_______________________
Respondent
-3Appeal Committee:
6 November 2015
18 November 2015
__________________________________________
OZPs for Causeway Bay and Wanchai. Hysan is the lead company in the
judicial review proceedings concerning these plans.5 The applications were
1
2
3
4
5
The applicant Oriental Generation Ltd has entered into an agreement to acquire over 80% of the
undivided shares in KTM.
HCAL 62/2011, HCAL109/2011 and HCAL 34/2012.
CACV127/2012 was the appeal by TPB and CACV129/2012, appeal by Oriental Generation Ltd.
LamVP, Barma JA and Poon J on 13 November 2014.
Namely, HCAL 38/2011 and HCAL 57/2011.
-4heard by Reyes J whose judgment dated 14 September 2012 was the subject
of appeals and cross appeal.6
judgment of the Court of Appeal7 dated 13 November 2014 and applied for
leave to appeal to this court. By its decision dated 29 June 2015, the Court
of Appeal granted leave to appeal to Hysan in respect of one question only
in each of CACV 232 & 233/2012, but dismissed TPBs applications for
leave in their entirety. FAMV 28 & 29/2015 are Hysans applications for
leave to appeal from the judgment of the Court of Appeal in CACV 232 &
233/2012. FAMV 30 & 31/2015 are the TPBs applications for leave to
appeal from the same judgment.
3.
7
8
CACV 232 & 233/2012 were appeals by Hysan. TPB cross-appealed by respondents notice in CACV
232/2012.
Lam VP, Chu JA and Au J.
Some questions in TPBs application in FAMV17/2015 and FAMV 30 & 31/2015 covered the same
ground, although expressed differently. The difference in language is unimportant, we will give one
version of those questions.
heard
all
matters
relevant
to
the
decision
-9the site.
Hysans applications in FAMV 28 & 29/2015
Question 1: Whether the Respondent has the power in preparing draft
plans under sections 3(1)(a) and 4 of the Town Planning
Ordinance (Cap. 131) to impose restrictions which pertain
only to a particular part of a site, such as the imposition of a
podium height restriction, a setback or non-building area on a
part of one particular site.
Question 2: Whether in the determination of the lawfulness and validity of
any restriction imposed by the Respondent by way of planning,
Article 6 and/or Article 105 of the Basic Law are engaged, and
if so, whether such restriction must satisfy the requirement of
proportionality, and whether the Hong Kong Court should
adopt the European jurisprudence on Article 1 of the First
Protocol of the European Convention on Human Rights or
some other test of proportionality, and if so, what.
Question 3: Whether the imposition of restrictions by way of setback and
non-building area in the Causeway Bay draft Outline Zoning
Plan are void for uncertainty.
Question 4: Whether the imposition of a restriction of setback or a
restriction of non-building area in the Causeway Bay draft
Outline Zoning Plan on the Applicants properties for footpath
widening was irrational, disproportionate and/or an abuse of
power given the following:
Our Determination
5.
- 11 was not amongst the questions put before the Court of Appeal. In relation
to this question we granted leave on the or otherwise ground. This
question relates to para 1 of the order of Reyes J dated 14 September 2012
in HCAL 38/2011 whereby he quashed the 5-metre non building area
imposed on the Hysan Place site by the Draft Causeway Bay OZP No
S/H6/15, on the ground that it was arbitrary.9 This was the subject of a
cross appeal by the TPB.10 However, the cross-appeal was not determined
and the order was left undisturbed by the Court of Appeal, because they
thought it had become academic, although they could see the force of TPBs
counsels argument. However, given that para 1 of Reyes Js order had
been left undisturbed, the matter is not academic. Nor would counsel for
Hysan accept that it was academic. That being the case, we believe we
should grant leave on the or otherwise basis.
6.
of Appeal granted leave to appeal, saying that it is a GPI point and it is not
an easy point.11 Because, the Court of Appeal had refused leave to appeal
on the other grounds, Hysan applied to us for leave to appeal in respect of
the other questions as well as Question 2.12 Given the views expressed by
the Court of Appeal, we granted leave to appeal on this ground without
considering whether the appeal committee could revoke leave granted by
the Court of Appeal in respect of this question.
7.
for the reasons given by the Court of Appeal when it refused leave.13
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10
11
12
13
- 12 8.
9.
31/2015, the Court of Appeal made it perfectly clear when refusing leave
that it was not their decision that the TPB could never rely on a minor
relaxation but that on the facts, minor relaxation could not be the
answer.15
14
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- 13 -
(Robert Tang)
Permanent Judge
(Joseph Fok)
Permanent Judge
(Patrick Chan)
Non-Permanent Judge