Small House Policy – amenability of decisions of Director of Land to judicial review
Xs were registered owners of various plots of land in the New Territories, having applied to the District Lands Office (“DLO”) to erect small houses on such land under the Small House Policy (the “Policy”). There was no vehicular access to the land, as they were separated from nearby main roads by other lots which were resumed by the Government as part of a village expansion plan. Xs applied to purchase from the Government part of all the resumed lots to construct and maintain vehicular access. On DLO’s refusal, Xs sought leave to apply for judicial review, which was refused at first instance. Xs appealed.
Held, dismissing the appeal, that:
- As a general rule, Government decisions in relation to land leases and related matters where the Government wore the hat of a landowner or landlord were not amenable to judicial review. The Court was prepared to accept at the leave stage that some decisions made by the DLO in the implementation of the Policy might be amenable to judicial review. However, it did not follow that each and every matter associated with the Policy or its implementation was amenable to judicial review. Vehicular access was not a feature of the Policy. Under the Policy and its associated fire safety requirements, the provision of vehicular access or an emergency vehicular access was not a must; there could be fire safety alternatives. If there was no access then it was for the successful applicants, if they wanted this, to make their own arrangement. So there was no question of the DLO making any public law mistake in relation to implementing the Policy as regards its refusal to grant Government land to Xs for the construction of vehicular access.
- In any event, leave should be refused on the ground that Xs had not exhausted possible alternative remedies. The burden being squarely on Xs to show a reasonably arguable case, there was simply no or little available material to show that Xs could not acquire land for vehicular access by other means.