Appeal Board Panel (Town Planning)

General Information

Introduction

The Appeal Board Panel (Town Planning) ("the Appeal Board Panel") is an independent statutory body established under section 17A of the Town Planning Ordinance (Cap. 131). The Ordinance provides that an applicant who is aggrieved by a decision of the Town Planning Board on a review under section 17 may appeal by lodging, within 60 days after notification of the Board's decision under section 17B, a notice of appeal setting out the grounds for the appeal and such other particulars as may be prescribed.

The Appeal Board Panel

There are at present 40 panel members in the Appeal Board Panel including the Chairman and the five Deputy Chairmen. All panel members are appointed by the Chief Executive.

Function and Procedures

Lodging of an appeal

• An applicant (hereinafter referred to as the appellant) who is aggrieved by a decision of the Town Planning Board on a review under section 17 of the Town Planning Ordinance (Cap. 131) may appeal by lodging, within 60 days after notification of the Board's decision, a notice of appeal setting out the grounds for the appeal and such other particulars as may be prescribed.
• The notice of appeal shall be submitted by hand or by registered mail to the Secretary, Appeal Board Panel (Town Planning), 17/F, West Wing, Central Government Offices, 2 Tim Mei Avenue, Tamar, Hong Kong.
• At the same time that a notice of appeal is lodged, the appellant shall serve a copy of it to the Secretary, Town Planning Board.

Nomination of an Appeal Board

• On receipt of a notice of appeal, the Chairman of the Appeal Board panel shall nominate an Appeal Board to hear the appeal. The Appeal Board so constituted shall be presided either by the Chairman or a Deputy Chairman of the Appeal Board panel and consists of four other panel members.
• At least 3 members, one of whom must be the presiding Chairman, shall be present to hear and determine an appeal. Decision is to be made on the basis of a majority of votes by members who have attended all hearing sessions of the Appeal Board. Where there is an equality of votes, the presiding Chairman shall have a casting vote in addition to his original vote.

Notice of Hearing

• The Secretary, Town Planning Appeal Board shall notify the Town Planning Board, the appellant and any witness of the date, time and place of the appeal not less than 28 days prior to the date set for the hearing.

Particulars to be filed before hearing

• Not less than 7 days prior to the date set for the hearing of an appeal, the appellant and the Town Planning Board shall-
  1. lodge with the Secretary, Town Planning Appeal Board a copy of witness statements, documents and any other thing to be given or produced in evidence at the hearing of the appeal; and
  2. serve on each other a copy of witness statements, documents and any other thing to be given or produced in evidence at the hearing of the appeal.

Hearing of the Appeal Board

Abandonment and Failure to Appear

• An appellant may abandon the whole or any part of his appeal before the date set for the hearing by giving the Secretary, Town Planning Appeal Board not less than 7 days' notice in writing of his intention.
• If a party or his authorized representative fails to attend the hearing on the date and at the time fixed, the Appeal Board may-
  1. if it is satisfied that the failure to appear is due to reasonable cause, adjourn the hearing to a date and time that it thinks fit;
  2. proceed to hear the appeal; or
  3. dismiss the appeal.

Proceedings of a Hearing

• Hearing of an appeal shall be held in public. The onus of proving that the Town Planning Board was wrong to reject an application should be on the appellant. He should therefore ensure that he has made available at the hearing all documents on which he places reliance in support of his appeal.
• An appellant may choose to give an unsworn statement at a hearing or to give evidence on oath. The appellant will not normally be cross-examined if the former option is adopted. Generally speaking, the Appeal Board will attach greater weight to evidence tested by the process of cross-examination.
  1. If an appellant chooses NOT to give evidence on oath or call witness-
     • The appellant will be the first one to start and put forth his grounds for appeal, calling attention to the written material before the Appeal Board.
     • The appellant may put in written materials as evidence if the Appeal Board so permits.
     • After the appellant finishes his submission, the Town Planning Board or their authorized representative will call their witnesses to give evidence.
     • At the end of each witness's evidence, the appellant will be given the opportunity to cross-examine the witness (i.e. put questions to him). After that, the Town Planning Board or their authorized representative will be given the chance to re-examine the concerned witness, if necessary.
     • After giving of evidence by witnesses, the Town Planning Board or their authorized representative will give final submission. The appellant will have the right of reply.
  2. If an appellant chooses to give evidence on oath and call witness-
     • The appellant will again be the first one to start. He may choose to open his case prior to giving/calling evidence.
     • If an appellant decides to start by giving evidence himself, he will first be sworn/affirmed. At the end of the evidence, the Town Planning Board or their authorized representative will have the opportunity to cross-examine the appellant.
     • After the appellant concludes his evidence, he may call his witnesses and ask them questions. When an appellant has concluded his questioning, the Town Planning Board or their authorized representative will have the opportunity to cross-examine the appellant's witnesses. After that, the appellant may re-examine his witnesses on any matter arising out of the cross-examination.
     • The appellant may put in written materials as evidence if the Appeal Board so permits.
     • After an appellant has called all his witnesses, the Town Planning Board or their authorized representative will call theirs. The appellant may cross-examine the Town Planning Board's witnesses at the end of the examination-in-chief.
     • After giving of evidence by witnesses, the Town Planning Board or their authorized representative will give final submission. The appellant will have the right of reply.

At the Completion of a Hearing

• At the completion of a hearing, the Appeal Board may-
  1. adjourn for such period as it considers necessary to reach its decision;
  2. confirm, reverse or vary the decision appealed against; and
  3. award to a party such costs legal or otherwise as it considers reasonably incidental to the preparation and presentation of an appeal.

Delivery of Appeal Board Decisions

• After hearing an appeal, the presiding chairman shall deliver the decision of the Appeal Board in written form. The decision of an Appeal Board on any appeal shall be final.