Town planning — Town Planning Board — decision rejecting application under s. 12A to rezone site from “open space” to “residential” — whether procedural irregularity by taking into account irrelevant matter — whether decision Wednesbury unreasonable — Town Planning Ordinance (Cap. 131) s. 12A
Administrative law — Town Planning Board — decision rejecting application to rezone site from “open space” to “residential” — judicial review
X and other owners of land zoned as “O” (Open Space) (‘the Site’) since 1970 in a densely built-up area, applied to rezone it for residential use (‘the Application’). The Planning Department (‘PD’) opposed the Application. In a paper submitted to the Metro Planning Committee (‘MPC’) of the Town Planning Board (‘Board’) (‘the MPC Paper’), the PD summarised inter alia X’s view that the findings of a PD review of “O” zones in 2006 were outdated because there was still no plan to develop the Site as public open space through acquisition and urban renewal; and the proposed development (‘the Tower’) would not exacerbate the poor air ventilation in the locality. X had provided its own Air Ventilation Assessment Report in support of the Application. During consideration of the Application and the MPC Paper in the deliberation session by the MPC (‘the MPC Meeting’), the Vice-Chairman said that the proposed east-west orientation of the Tower would block the air path between certain streets and create air ventilation problems (‘the Remark’). The MPC rejected the Application (‘the Decision’) for the similar reasons given by the PD in the MPC paper. X applied for judicial review, arguing that inter alia the MPC’s Reason (c), namely that there was no strong planning justification or merit in rezoning, was based partly on the Remark and so took into account an irrelevant matter and was procedurally unfair (Ground 2); and the MPC’s Reason (d), namely that the approval of the application would set an undesirable precedent for similar applications in the “O” zone and the cumulative effect would deprive the built-up environment of much needed spatial and visual relief, was unlawful (Ground 4). Over 70 percent of one of the two other undeveloped “O” zoned sites (‘UOL’) in the same outline zoning plan was Government-owned and previous applications for residential development by its private owners were refused due to the “more congested residential environment” which would ensue.
Held, allowing the judicial review on Grounds 2 and 4 only, quashing the Decision and remitting the Application to the MPC for reconsideration in light of the Court’s reasons under those Grounds that:
- Properly understood in context, the Remark constituted part of the basis for Reason (c), as the effect on air ventilation in the area under the proposed development scheme was one of the main issues discussed by the MPC. The PD and MPC Paper rejected X’s air ventilation assessment report as inaccurate and insufficient to demonstrate the Tower would not adversely affect air ventilation in the vicinity. (See paras. 41–42, 44–47.)
- The MPC’s reliance on the Remark in rejecting the Application was a procedural irregularity. The purported concern about the orientation of the Tower blocking air ventilation was never raised in the MPC Paper or at the Meeting and it was procedurally unfair that X had no opportunity to properly address it before the Decision was made. (See paras. 48–49.)
- Reason (d) was Wednesbury unreasonable. There were clearly relevant and material differences between the Site and UOL, but the MPC had failed to properly evaluate the differences and explain why the sites were nevertheless treated alike in considering rezoning applications. Further, the Board’s argument that, even without Reason (d), the MPC would have reached the same conclusion was rejected. Given that some MPC members were sympathetic toward X and one even supported the Application, the Court could not exclude the possibility that Reason (d) might have “tipped the balance” and ultimately resulted in the Decision (R (FDA) v. Secretary of State for Work and Pensions  1 WLR 444 applied). (See paras. 63, 66–67, 71–74.)
This was an application for judicial review of the decision of the Metro Planning Committee of the Town Planning Board rejecting an application to rezone land from “open space” to “residential”. The facts are set out in the judgment.