An environmentalist has won a judicial review challenging the decision to approve a major developer’s controversial plans to build homes in Hong Kong’s internationally renowned wetland habitat for waterfowls.
The High Court on Friday ruled in favour of Roy Tam Hoi-pong, founder of Green Sense, and ordered the Town Planning Board to reconsider the application from Cheung Kong subsidiary, Mutual Luck Investment, to develop Fung Lok Wai, in Yuen Long.
Tam said he had waited a long time for the ruling on his challenge, which was lodged six years ago, and was happy to find the court had sided with him.
His environmental group welcomed the judgment, and called for the board and developers to prioritise the city’s natural habitats over development, while a spokesman for Cheung Kong said the company was studying the decision.
Mr Justice Thomas Au Hing-cheung’s long-awaited judgment – handed down 22 months after the case was heard in 2018 – centred on the board’s decision in 2013 to conditionally approve the development, that would provide 19 residential blocks with 1,958 units on an 80 hectare site.
Its building plans were then approved last year, and construction was set to begin after the developer paid the government a land premium.
The site falls within the Deep Bay Area, a wetland habitat for a variety of species of waterfowls and a stopover point for thousands of migratory birds. The Inner Deep Bay, along with Mai Po Marshes and its adjacent area, have been listed as a Wetland of International Importance under the 1995 Ramsar Convention.
Given its high conservation value, both the board, which is an independent statutory body, and the government, have developed their own guidelines and policies for development control in the area.
The board’s included a private-public partnership approach that permitted limited private development in the Wetland Conservation Area, so long as it could be demonstrated it would not result in the loss of ecological function of the ponds.
Meanwhile, under the government framework, developers must also make an upfront lump-sum donation to the Environment Conservation Fund, and work with relevant bodies to sustain the long-term management of the ecologically sensitive portions of these priority sites.
Lawyers for the board said these were two separate and distinct policies.
But Tam’s lawyers argued the government’s framework was included in the private-public partnership approach that developers must satisfy.
As a result, they said the board made an illegal decision by granting planning permission when the developer did not meet requirements after its partner, WWF Hong Kong, pulled out because its proposed partnership was based on a private trust model, inconsistent with the funding arrangements.
They further argued the board had tried to sidestep this issue when, as a condition of its approval, it required the developer to submit and implement a funding arrangement proposal to the satisfaction of the director of environmental protection, and the director of agriculture, fisheries and conservation – effectively asking the government to decide whether the application satisfied the approach.
The judge agreed, concluding that the funding and management programme was “plainly an essential facet” of the approach that was specially adopted to enable a long-term conservation of ponds or wetlands within a development site.
“They are essential details that are important to the decision as to whether the relevant planning permission should be granted, and cannot be regarded as mere implementation details of a planning permission that can be disposed of by way of conditions,” Au wrote in a 56-page judgment. “The Town Planning Board had acted ultra vires.”
Get the latest insights and analysis from our Global Impact newsletter on the big stories originating in China.