Judicial Review case HCAL 54/2014 - Country Park Enclaves

JR In regards to the Country Park Enclaves.....

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 54 OF 2014
_______________

BETWEEN

CHAN KA LAM Applicant

and

THE COUNTRY AND Respondent
MARINE PARKS AUTHORITY
_______________

Before: Hon Au J in Court
Dates of Hearing: 6 and 7 April 2016
Date of Judgment: 27 April 2017

 

J U D G M E N T

A. INTRODUCTION
1. In around December 2013, the Country and Marine Parks Authority (“the Authority”) decided not to recommend designating the enclaves of Hoi Ha, Pak Lap, To Kwa Peng, Pak Tam Au, So Lo Pun and Tin Fu Tsai as country parks by incorporating them respectively into the surrounding existing country parks. For convenience, these six enclaves will be referred to collectively as “the 6 Enclaves” in this judgment.
2. In this judicial review, the applicant effectively challenges the Authority’s above non-recommendation decision by challenging:
(1) The Authority’s decision (“Decision 1”) not to seek and consider the advice of the Country and Marine Parks Board (“the Board”) before making the above decision not to recommend.
(2) The Authority’s decision (“Decision 2”) to adopt or rely on the respective assessments of the Director of Agriculture, Fisheries and Conservation Department (“the Director”) of the 6 Enclaves as unsuitable for designation as parts of the surrounding country parks.
3. Briefly, the applicant in this judicial review says:
(1) Decision 1 is unlawful since the Authority is legally obliged, but he had failed, to seek the advice of the Board under the relevant provision of the Country Parks Ordinance (Cap 208) (“CPO”) in relation to his non-recommendation decision concerning the 6 Enclaves.
(2) Decision 2 is unlawful as the assessments were prepared (a) not in accordance with the statutory purpose and the Authority’s duties under the CPO; (b) in breach of the relevant policy on designating areas, including the enclaves, as country parks and/or the applicant’s legitimate expectation that the 6 Enclaves would be assessed in accordance with the relevant policy; and (c) Wednesbury unreasonable.
4. The applicant therefore asks for the reliefs of quashing Decisions 1 and 2, and an order of mandamus requiring the Authority to put before the Board for its consideration and advice an assessment of the suitability of incorporating each of the 6 Enclave, and to consider the Board’s advice in formulating his recommendations to the Chief Executive (“CE”) for designation of areas as country parks.
5. Before I deal with the grounds of judicial review in detail, it is necessary to set out briefly the background leading to these decisions to put things in proper context.