Hong Kong Case Law: Decisions & Judgments

Topic

Air ventilation assessment

Legal area

Court

28 Jun 2018

TUNG CHUN CO LTD v. TOWN PLANNING BOARD

Citation

[2018] HKCFI 1447
Court

Court of First Instance
Case number

HCAL288/2018

Court held TPB erred in law by presenting Practice Note No.3 as guaranteeing an owner's ability to proceed under previously approved GBPs notwithstanding the Building Authority's statutory discretion (Ground 1), unlawfully relied upon the possibility of minor relaxation as a substantive reason (Ground 6), and acted with procedural unfairness because two members absent during oral representations were not shown to have been adequately apprised before deliberation (Ground 7); those errors warranted quashing the Decision and remitting the representation for fresh consideration; all other grounds…
28 Jun 2018

TUNG CHUN CO LTD v. TOWN PLANNING BOARD

Citation

[2018] HKCFI 1447
Court

Court of First Instance
Case number

HCAL91/2014

Court quashed TPB Decision and remitted Representation No.9 because TPB committed legal error by wrongly stating applicants could proceed in unqualified terms notwithstanding BA discretion (Ground 1), unlawfully relied upon the possibility of minor relaxation as a substantive reason (Ground 6), and the decision was tainted by procedural unfairness because members who were absent were not shown to have been adequately apprised (Ground 7). Other challenges (air ventilation, visual assessment, substantive legitimate expectation, proportionality) were rejected. Remedy: certiorari, remit for fresh…
28 Jun 2018

TUNG CHUN CO LTD v. TOWN PLANNING BOARD

Citation

[2018] HKCFI 1447
Court

Court of First Instance
Case number

HCAL9/2013

Court held TPB's Decision was unlawful in part: (1) TPB misstated the legal effect of prior building plan approvals and Practice Note No 3 (error of law) and its unqualified statement was misleading; (2) TPB impermissibly relied on the possibility of minor relaxation as a substantive reason (irrelevant consideration) when rejecting the representation; (3) procedural unfairness arose because two members were absent for parts of the oral hearing with no evidence they were fully apprised before deliberation. Those errors required quashing of the Decision and remittal for fresh consideration. Oth…
12 Jan 2018

JONNEX INTERNATIONAL LTD v. TOWN PLANNING BOARD

Citation

[2018] HKCFI 62
Court

Court of First Instance
Case number

HCAL130/2015

The Decision of the Metro Planning Committee was quashed and remitted because (1) the Committee's reliance on the Vice‑Chairman’s air‑ventilation remark (orientation issue) was procedurally irregular such that Reason (c) was tainted and (2) Reason (d) (undesirable precedent) was Wednesbury unreasonable because the Committee failed to explain why two different open‑space sites should be treated alike; other grounds of challenge were rejected.
13 Nov 2014

ORIENTAL GENERATION LTD v. TOWN PLANNING BOARD

Citation

ORIENTAL GENERATION LTD v. TOWN PLANNING BOARD
Court

Court of Appeal
Case number

CACV129/2012

The court held that although the Board possessed power to impose area-wide height controls and to amend OZPs by s7, the specific 130mPD building height restriction, the two 10m non-building area strips and the 20m central building gap imposed on the Kai Tak Mansion site were irrational/arbitrary on the evidence before the Board (principally because the Board had not demonstrated the 130mPD permitted full use of plot ratio/GFA and the AVA/visual evidence did not justify the specific NBA and BG dimensions); additionally the decision-making process was procedurally unfair because some Board memb…
13 Nov 2014

TOWN PLANNING BOARD v. ORIENTAL GENERATION LTD

Citation

TOWN PLANNING BOARD v. ORIENTAL GENERATION LTD
Court

Court of Appeal
Case number

CACV127/2012

The Court held the three Restrictions (BHR at 130mPD, the two 10m non-building areas and the 20m building gap) were arbitrary or not supported by sufficient evidence and the Board's decision-making process was procedurally unfair insofar as some members who decided had not been adequately apprised of the representations; OZP27 as an amendment under s7 was valid; the restrictions were quashed and the matters remitted to the Board for reconsideration in accordance with the judgment.
11 May 2012

ORIENTAL GENERATION LTD v. TOWN PLANNING BOARD

Citation

ORIENTAL GENERATION LTD v. TOWN PLANNING BOARD
Court

Court of First Instance
Case number

HCAL34/2012

The Board's refusal to consider increasing the BHR beyond 130 mPD was quashed as arbitrary because the material before the Board did not establish that the permitted plot ratio/GFA (notably GFA from EVA and road setback equivalent to about 10 mPD) could be accommodated at 130 mPD, and both the 10 m NBAs and 20 m BG were quashed as arbitrary because the CO2 Air Ventilation Assessment relied on a narrow methodology that did not justify those specific dimensions; the restrictions lacked the cogent evidence required for measures that substantially limit development rights.
11 May 2012

ORIENTAL GENERATION LTD v. TOWN PLANNING BOARD

Citation

ORIENTAL GENERATION LTD v. TOWN PLANNING BOARD
Court

Court of First Instance
Case number

HCAL109/2011

The Board's refusal to consider raising the BHR beyond 130 mPD was quashed because the material before the Board did not show that a 130 mPD BHR would permit full exercise of the site's development rights (including GFA from slope, EVA and road setback). The 10 m NBA and 20 m BG were quashed as arbitrary because the CO2 AVA compared only the options given by planning department without adequate exploration or quantification of alternatives, and thus provided insufficient evidential basis to justify those specific restrictions; planning restrictions must be proportionate and supported by cogen…