Hong Kong’s top court rejects developers’ final appeal in dispute over plan for Nam Sang Wai wetlands

Four out of five judges say decision requiring firms to file fresh planning application cannot be reviewed by Town Planning Board

PUBLISHED : Friday, 17 February, 2017, 9:07am
UPDATED : Friday, 17 February, 2017, 9:11am

A long-running legal battle between the city’s town planners and companies intending to build flats on the ecologically sensitive Nam Sang Wai wetlands in Yuen Long came to an end on Thursday as Hong Kong’s top court rejected a final appeal by the developers against a decision requiring them to file a fresh planning application.

In a written ruling handed down on Thursday, four out of the five Court of Final Appeal judges asserted that the Town Planning Board’s decision made on December 17, 2010, could not be reviewed by the board itself.

The town planners decided at the time that a master layout plan submitted by Nam Sang Wai Development Company and Kleener Investment, which were seeking the board’s permission for land use, involved such “major” changes from their draft plan that a fresh planning application would be required.

The firms, both part of tycoon Lee Shau-kee’s Henderson Land group, then launched a series of legal challenges and sought to have the decision reviewed.

The developers argued that the board, under Section 17 of the Town Planning Ordinance, was required to review that decision. But the town planners refused on the grounds that they had no jurisdiction to do so.

At issue was whether the decision fell within the scope of what the board could review.

The town planners contended that the words “a decision of the board” under the relevant section of the ordinance could not be construed in the way advanced by the developers, adding that the review would be confined only to the decisions refusing permissions and that granting permissions but with conditions.

The lower courts held in favour of the board and found that town planners had no power to review the decision in question, prompting the developers to pursue their case at the city’s top court.

Chief Justice Geoffrey Ma Tao-li upheld the previous court rulings and wrote in the latest judgment that the review mechanism should be confined to decisions whereby an application for permission was refused or in which conditions had been imposed.

Despite the finding, the chief justice asserted that the town planners’ decisions were still subject to the court’s judicial review.

The developers were ordered to pay the board the legal costs of the final appeal.

In reply to a Post inquiry, a Henderson Land group spokesman said they respected the ruling by the Court of Final Appeal.

“We filed the final appeal to clarify relevant points of law,” the group said, adding that the lawsuit had nothing to do with its latest developments in Nam Sang Wai, which emphasised “a balanced plan for responsive conservation”.

Lawmaker Roy Kwong Chun-yu urged the public to pay attention to the development of the wetlands.