Deanna Law, instructed by the Department of Justice, acted for the Respondent Town Planning Board (“TPB”) in a town planning appeal before the Town Planning Appeal Board. The matter involved complex constitutional arguments regarding the nature of Article 40 of the Basic Law of Hong Kong.

The appeal arose from a planning application of the Appellant for the development of a proposed New Territories Exempted House (“NTEH”) on a plot of land in Nam Wa Po, the New Territories, Hong Kong.

One of the main arguments raised by the Appellant was that the TPB acted ultra vires in curtailing/ limiting the Appellant’s constitutional right to erect a NTEH, in contravention of Article 40 of the Basic Law. It was argued that any control or regulation of the construction of NTEH by way of zoning under outline zoning plans is an infringement of lawful traditional rights and interests of indigenous inhabitants of the New Territories, and therefore unconstitutional.

Having considered the legislative history of the Town Planning Ordinance (“TPO”) and arguments on the implications of the Hong Kong Court of Final Appeal case of Kwok Cheuk Kin v. Director of Lands & Others [2021] HKCFA 38, the Town Planning Appeal Board came to the conclusion that town planning and development control existed in the New Territories even before the formalisation of the Small House Policy in its present form in 1972 and that the TPO did apply to the New Territories before January 1991.

The Town Planning Appeal Board also rejected the two other grounds of appeal raised by the Appellant, viz.: (1) that the TPB made a material error of fact in finding that there was sufficient land available within the “V zone” of Nam Wa Po for the Appellant to build a NTEH thereat; and (2) that the TPB had failed to consider all the relevant matters and in particular the unique features and characteristics of the Appellant’s application.

The Decision of Town Planning Appeal 5 of 2020 dated 27 September 2022 can be found here.