Hong Kong property

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

The long-running saga ended with victory of sorts for the Causeway Bay developer in the Court of Final Appeal

PUBLISHED : Tuesday, 27 September, 2016, 8:01am
UPDATED : Tuesday, 27 September, 2016, 8:01am

The extended legal brawl between Hysan Development and the Town Planning Board came as the property market rebounded in Hong Kong following the financial crisis of 2008.

As developers across the city raced to build huge blocks to maximise their gains, the planning watchdog’s refusal to yield increasingly angered developers.

Hysan launched a judicial review against the board’s September 2010 outline zoning plans for Causeway Bay and Wan Chai, which included building height and podium height restrictions and which specified parameters for non-building areas, including provisions to improve pedestrian traffic.

The group argued that the decisions restricted its development potential in the prime Causeway Bay shopping district. However, its first legal challenge was rejected by the Court of First Instance in September 2012.

The developer was vindicated in a subsequent appeal in 2014, when three Court of Appeal judges ruled that the board had not fairly considered Hysan’s representations due to the “objective circumstances” surrounding board meetings, including their long sitting hours and the volume and technical nature of Hysan’s arguments.

The Court of Appeal found that board members were unlikely to have had time to digest the substantial written material tabled at their meeting.

Yet the appeal court said the imposition of planning restrictions did not constitute infringement of “fundamental or constitutional rights”.

The developer then took the case to the Court of Final Appeal, asking it to examine the property rights set down in the Basic Law, with a view to ensuring that the board would have the guidance of the city’s top court when it later reconsidered the land use restrictions.

The top court ruled that the private property rights of developers seeking to build taller and denser city blocks were constitutionally protected.

But while it said town planners had to 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.