In Hung Hing v Director of Lands ([2015] 5 HKLRD 516, CA) the owners of land in the New Territories had applied to the District Lands Office (‘DLO’) for permission to build small houses on their respective lots. There was no vehicular accessway to the lots. Land owned by the Government separated the lots from the public highway. The owners made a separate application to the DLO to buy land from the Government to provide the accessway. They argued that the DLO had an obligation to sell the land to the owners to give effect to the Small House Policy and the policy requiring emergency vehicular access (‘EVA’) to the homes to be built. The DLO refused to sell the access land to the owners and the owners sought leave to bring judicial review proceedings in respect of this decision. Leave was refused at first instance on the basis that the decision was not amenable to judicial review: the Government’s decision was reached by it in its capacity as a private landowner. The owners appealed against this refusal but the appeal failed.
It had been established in Koon Ping Leung v Director of Lands that some DLO decisions under the Small House Policy were amenable to judicial review. This did not mean that every decision linked to the implementation of the Small House Policy was susceptible to judicial review. The published materials laid before the court made it clear that those applying under the Small House Policy were expected to make their own arrangements concerning access. It was no part of the Policy to provide (or even require) permanent vehicular access. It was therefore not possible to argue that the Policy had been misapplied in this instance.
Nor was it unreasonable or irrational for the Policy to be framed in these terms. Whether or not to sell or grant rights over its land was a decision that the Government took in its capacity as landowner or landlord. Its decisions in this regard, and the policies that inform those decisions, are not amenable to judicial review ([30] per Cheung CJHC). Given the many competing demands on land in Hong Kong, this stance made perfect sense ([29]).
Even if the decision or the alleged omission from the Policy were amenable to judicial review, this did not mean that the Policy had to require the Government to provide access. A Policy could equally well require an owner to show that he had the necessary access rights before he could make an application under the Small House Policy ([32]). In any event, there was no evidence to show that the owners had exhausted other possible alternatives (such as negotiating with other landowners in the area for the necessary rights) ([33]).
Michael Lower
