Planners had no grounds for limiting tower height, judge rules

A judge has cleared the way for a controversial Mid-Levels development - nicknamed "the toothpick" by opponents - to proceed, ruling the Town Planning Appeal Board had wrongly taken traffic and visual considerations into account in blocking it.

Mr Justice Andrew Cheung Kui-nung yesterday ordered the board to reverse its decision blocking the relaxation of height and plot ratio restrictions on a block of land abutting Castle Steps to make way for the development by a subsidiary of Swire Properties.

The government said it would study the judgment in detail before deciding whether to appeal.

The order, which could affect other sites zoned similarly, came after International Trader Limited (ITL) sought a judicial review of the board's decision. The company wants to build a 54-storey building on a parcel of land comprising the disputed block and several others on Seymour Road.

The board, by a majority of three to two, had continued to refuse ITL's application to remove the 12-storey limit on the site because of traffic and visual considerations.

Mr Justice Cheung found that under the original Mid-Levels West outline zoning plan, the block, which has no direct street frontage, had been zoned for unrestricted residential development but had subsequently had restrictions placed upon it because of concerns about access for fire services and refuse collection.

Looking through documents associated with the rezoning, which took place in 1995, Mr Justice Cheung found there was little to indicate that traffic issues were behind the decision to limit development on the site. Rather, it was the lack of street access that motivated the change.

That was borne out by a proper reading of the outline zoning plan and its supporting documents, he said.

The judge accepted ITL's argument that, if traffic considerations were not in play, the concerns about access no longer mattered once the site was included in a development that had direct street frontage.

"Traffic and visual considerations are not relevant planning considerations" in relation to applications for the relaxation of restrictions on such sites, the judge said.

A spokeswoman for Swire Properties said: "Now that the matter is resolved we will go ahead and build [the tower]."

Central and Western District Council member Chan Chit-kwai said the implications of the court's decision were huge. "The new development is going to create a wall effect and residents of the Mid-Levels will have to double their time for travelling to the city centre," he said.

Town Planning Board members said the case was a typical example of developers' use of judicial procedures to get round the board's decisions.