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Hong Kong property

Hong Kong developer wins legal battle against building restrictions

City’s top court rules that the constitutional rights property firms enjoy under the Basic Law must be considered when the Town Planning Board imposes curbs

PUBLISHED : Monday, 26 September, 2016, 3:40pm
UPDATED : Tuesday, 27 September, 2016, 8:46am

Hong Kong’s top court ruled on Monday that the private property rights of developers seeking to build taller and denser city blocks are constitutionally protected.

But while the Court of Final Appeal said town planners must take the Basic Law into consideration when imposing building restrictions on developers, it concluded that property firms would be “highly unlikely” to bring about a constitutional review of such decisions unless they were being subjected to “exceptionally unreasonable” demands.

The Town Planning Board said it would seek legal advice over the implications of the judgment on its practices and procedures.

The Hysan legal battle: setting out what Hong Kong’s Town Planning Board can and cannot do

The ruling was in response to an appeal by Hysan Development, which owns prime real estate across Causeway Bay and Wan Chai, against a series of planning restrictions imposed by the board in draft outline zoning plans in 2010.

The developer welcomed the judgment, saying it could have long-term significance for its future projects.

At issue was a 130-metre height restriction imposed on Hysan’s buildings, including Lee Garden Three in Causeway Bay. The board had cited the need to facilitate air ventilation and pedestrian flow in already crowded and built-up areas that would be affected.

Hong Kong’s Hysan Group allowed to take planning dispute to top court

Hysan had initially succeeded in having the board’s decisions quashed though a traditional judicial review in a lower court, but failed to convince the court that the restrictions constituted a “disproportionate” and therefore “unconstitutional” infringement of its property rights guaranteed by the Basic Law. It sought final redress at the city’s top court.

In a written ruling, five judges unanimously concluded that Articles 6 and 105 of the mini-constitution would be applicable to the Town Planning Board’s decisions if they encroached upon a landowner’s property rights.

Town planning restrictions ... would in general only be susceptible to constitutional review if the court is satisfied that they are manifestly without reasonable foundation
Mr Justice Roberto Ribeiro

The court said that in determining the permissible extent of any restrictions that would limit such rights, it would also take into consideration factors such as whether they had a legitimate aim. It could also go a step further when required to ask whether a reasonable balance had been struck between societal benefits and the constitutionally protected rights of a landowner.

In Hysan’s case, the developer’s position was that even if the board avoided any error and decided on planning restrictions that were unimpeachable on traditional grounds, there should still be a basis for it to challenge those restrictions as disproportionate and unconstitutional.

“While I do not rule out the possibility of such an exceptional situation arising ... I find it difficult, at least in the abstract, to envisage the emergence of such a case,” Mr Justice Roberto Ribeiro wrote.

“I would therefore conclude that town planning restrictions, assuming them to be unassailable on traditional judicial review grounds, would in general only be susceptible to constitutional review if the court is satisfied that they are manifestly without reasonable foundation.”

Academic Lawrence Poon Wing-cheung said the ruling would have implications for the Town Planning Board, of which he was a member.

“But it’s not critical,” Poon said.