TOWN
PLANNING
A REVIEW OF PLANNING APPEAL DECISIONS
HONG KONG
LAWRENCE WAI-CHUNG LAI
To Those Who Taught Me
on Mount Parish
TOWN PLANNING IN HONG KONG
A REVIEW OF PLANNING APPEAL DECISIONS
LAWRENCE WAI-CHUNG LAI
香港大學出版社
HONG KONG UNIVERSITY PRESS
Hong Kong University Press
14/F Hing Wai Centre 7 Tin Wan Praya Road Aberdeen
Hong Kong
Hong Kong University Press 1999
Reprinted 2000
ISBN 962 209 498 8
All rights reserved. No portion of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical including photocopy, recording or any information storage or retrieval system, without prior permission in writing from the publisher, Hong Kong University Press.
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Cover designed by Lea & Ink Design
Printed in Hong Kong by United League Graphic & Printing Co. Ltd.
CONTENTS
Foreword
by Professor John P. Lea
vii
Preface
ix
List of Illustrations
List of Cases
Chapter 1 Planning Application, Review and Appeal Procedures
Chapter 2 An Overview of the Planning Appeal Cases
xiii
XV
1
7
Chapter 3 Rules Laid down in Appeal Cases
25
Chapter 4 Planning Appeal Cases
81
Chapter 5 A Summary of Proposed Rules
495
Chapter 6 Postscript
499
Appendix Extracts from Key Planning Enforcement Cases
503
Glossary of Hong Kong Planning Terms
509
Bibliography
521
Index
529
FOREWORD
By John P. Lea, Associate Professor, Department of Architecture, Planning and Allied Arts, The University of Sydney
This is a factual 'nuts and bolts' work that surveys the practice of urban planning, not in the language of plans and policies but in the case-by-case interpretation given by the statutory bodies empowered to settle disputes about land use development. It provides a valuable and accessible review of 50 recent and selected cases decided by the Hong Kong Town Planning Appeal Board between 1991 and 1997. That, at least, is what the author, Dr Lawrence Lai, has set out to do and he has accomplished the mammoth task with clarity and skill. In my view, however, the appearance of this book is a good deal more significant than this for several important reasons.
Land use planning in Hong Kong, along with that found in the city state of Singapore, has generally been held as exemplary in southeast Asia in recent decades, and has been seen in some quarters as the beneficiary of enlightened British colonial practice. But, as Davis (1965) and Home (1997), among others, have pointed out, the British authorities in Hong Kong were reluctant planners preferring to build now and plan later, even ignoring the outline plan for the colony prepared by Sir Patrick Abercrombie after his visit in 1948. Regardless of how we interpret this legacy, statutory town planning in Hong Kong has mainly been built on the Town Planning Ordinance of 1939, a product of the English Town Planning Act of 1932. The way in which this legislation has evolved in its unique setting is demonstrated in the decisions and principles recorded and interpreted for the first time in this book. The experience will be of increasing significance as Hong Hong's influence extends into urban China as a whole in the new millenium.
Real estate and related activities are said to account for 40 percent of Hong Kong's GDP and the annual pre-tax profit margins of its land developers have been huge in the past five years. An average of 133 percent for Cheung Kong and 71 percent for Henderson Land according to Time Magazine (Sin-
viii
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
ming Shaw, 1999). The importance of the land and property market to the economy of the Special Administrative Region is thus obvious, as is the need to secure a high quality, efficient and equitable living environment resulting from the operation of the Planning Ordinance. As a result of his extensive review, Dr Lai has identified (in Chapter 5) some twenty 'rules' for interpreting planning applications in Hong Kong based on the appeal decisions. Among them are realities that may not sit well with some members of the planning profession. For example, Specific Rule 3: "The onus of disproving the grounds of the applicant lies on the government'; and Specific Rule 8: 'An application shall not be rejected simply because it has no demonstrated public benefit'. Overall, however, they are a timely reminder that town planning as represented in the decisions of the Appeal Board is a living activity under constant challenge and reinterpretation. This book provides baseline data and opinion against which future changes and developments in Hong Kong's physical development can be measured.
Lastly, I would like to take this opportunity to record with pleasure the contributions Lawrence Lai has made to the discourse of urban and regional planning over a period of nearly 15 years since he came to Australia to undertake his master's degree at the University of Sydney. He has managed, almost effortlessly at times, to contribute very significantly to such diverse aspects of urban planning and land economics as housing policy, the theory of land use zoning, the economics of fish farming, urban planning history and planning law. He has managed to combine a prodigious record of publication with further higher degree study, combined with a heavy teaching commitment. This new book will be welcomed by a wide interdisciplinary readership of urban professionals and interested observers of the new Hong Kong as it grapples with the challenges of advanced metropolitan development in a reunified China.
REFERENCES
Davis, S.G. (1965) Land Use Problems in Hong Kong. Hong Kong: Hong Kong
University Press.
Home, R. (1997) Of Planting and Planning: the making of British colonial
cities. London: E & FN Spon.
Shaw, S-M. (1999) ‘A Dangerous Miscalculation: Hong Kong's fixation on property is an obstacle to economic recovery', Time Magazine (Australian Edition), February 15, 1999, p. 45.
PREFACE
By Lawrence Lai, Associate Professor, Department of Real Estate and Construction, The University of Hong Kong
The idea of Town Planning in Hong Kong: A Review of Planning Appeal Decisions stems from my research and teaching at the University of Hong Kong as well as my practice as a registered professional planner.
This book is written for professionals and practitioners who are interested in town planning, such as policymakers who deal with planning and development matters; lawyer; developers; proprietors; town planners, environmental protection officers and transport officers in the government and private practice; members of the Town Planning Board and Town Planning Appeal Board; estate and building surveyors; architects; Authorized Persons and academics whose research area is in planning and decision-making of statutory bodies, particularly those who are interested in 'rent-seeking', 'economic analysis of law' and 'property rights'.
There has been in recent years rapid expansion and development in the Town Planning Ordinance, which was first passed in 1939, and the ensuing case law. However, there have been few systematic publications on statutory planning in Hong Kong from the perspective of law, planning or valuation. Law schools in Hong Kong have only just begun to develop a relevant curriculum, and lawyers and professionals specialized in planning law are in great demand. Such demand is generated by the fact that statutory planning has become increasingly litigious due to its successive amendments and the sustained rise in economic and environmental values of land. Planning and surveying schools have also been slow in integrating their specialisms in one curriculum. While planners tend to ignore the economic or valuation implications of their practice, educators in surveying do not seem to understand thoroughly the importance of town plans or planning constraints: they are key factors affecting land values. A number of commonly used texts on development appraisal do not even mention town plans in valuation procedures.
X
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
One reason for this phenomenon is that relevant materials are not readily available. Even if they are, readers may not have the requisite knowledge, time or background to interpret them. An understanding of statutory planning and planning law in practice requires knowledge of law, notably, administrative law and land law, as well as reasons used by planners in substantiating their judgments. The complexities involved overstretch the coverage of any single subject. The absence of up-to-date textbooks on planning in Hong Kong also adds difficulties. Chapter 3 in 'Planning Considerations' of The Hong Kong Conveyancing Law and Practice Vol. 1 (1997) by Judith Sihombing and Michael Wilkinson is, in this context, an important contribution.
The big gap between the supply of and demand for knowledge creates concern among professionals. This has been expressed by clients and participants in 'continuing professional development' lectures delivered by my colleagues and myself, who are also planning professionals with working experience in both the government and the private sector. These courses are organized by various government departments and the Department of Real Estate and Construction at the University of Hong Kong. The participants include landowners, developers, architects, engineers, surveyors, planners and lawyers. They have found the first published report of the Appeal Board decisions immensely useful. This volume is intended to help develop literature on this subject. It is developed on the basis of the materials published or released by the Appeal Board, which should be read by all registered planners and students in planning schools in Hong Kong.
The book surveys 50 planning appeal cases decided by the Town Planning Appeal Board up to October 1997. In Chapter 1, there is an introduction to the relevant statutory provisions. Chapter 2 gives a comparative overview of the cases surveyed. Chapter 3 summarizes the rules revealed in the 50 surveyed cases. These three chapters explain the terminology and policy arguments used in the cases, which are presented in Chapter 4. For every decided case, there is a chronological presentation of the following: key facts, arguments involved, decisions made and their reasons, rules laid down by the decisions, a commentary on the facts and decisions, questions for discussion, and relevant cases and literature for further research. Photographs are taken on all subject sites in the urban areas where lot identification can be made without formal land surveying. As for the arguments, those of the appellants advanced to support their appeal and those of the Town Planning Board for rejecting the s. 16 application in the first instance and/or in the s. 17 review are generally presented together. The arguments and counter-arguments of both the appellants and the Town Planning Board are incorporated in the Appeal Board's decisions where appropriate. Chapter 5 presents my views on specific aspects of the existing system which, I think, are in need of reforms.
The analysis of the cases is based on a textual interpretation of the materials reported in the appeal decisions. This approach is considered sufficient as its objective is to analyse the rationale of the Appeal Board decisions. The case names are those of mine. Where names of appellants are reported, full names of the first named persons are used in cases of human
Preface
xi
persons, and short names of parent companies, if known, in cases of legal persons. Where both human and company names are available, the name of the company is used. Where the name of an applicant is not known, the street name or other location name is used. Unless otherwise specified, the Ordinance refers to the Town Planning Ordinance and sections refer to those under this ordinance. The term 'Crown lease' is retained for cases decided before 1 July 1997 when the leases were granted before the Sino-British Agreement of 1984. Throughout the book, the term 'zone' is applied to describe Comprehensive Development Area (CDA) and Unspecified Use Areas designated in statutory plans. The paragraph numbers in brackets, unless otherwise specified, refer to those stated in the appeal decision. Where the decisions do not record the dates of s. 16 applications, a search of the Town Planning Board decisions has been made to identify the dates. Where the dates of hearing or representation for the appeals are not mentioned in the decisions, they have been obtained from the Town Planning Appeal Board Secretariat.
Commentaries are made and questions raised, where appropriate, about reasons for the decision from the stance of environmental planning, law and economics. While I have expressed elsewhere my opinion on the nature of zoning and in particular the Town Planning Bill (July 1996) from an economic perspective, I do not attempt to argue here for or against a particular ideological position. Readers will form their own interpretation on the basis of materials and views supplied. The analysis presented here is based on materials obtained from the Appeal Board. Needless to say, readers will reap more benefits if they peruse the original decisions before or after consulting this book.
The 'age' of some of the planning appeal cases should not be a problem as they are a rich source of well articulated planning law points, policies and substantive arguments raised by authorities in the field. An appreciation and understanding of such law points, policies and arguments should help one learn or practise in the planning arena. Nor should any future amendment to the Town Planning Ordinance, as proposed in the Town Planning Bill 1996, minimize the value of an in-depth inquiry into the decided cases, as it is unlikely that the Town Planning Board and Town Planning Appeal Board will as a result adopt a radically different mode of reasoning. The overview and commentaries on individual cases in Chapter 4 should offer insights for such possible changes. However, a word of caution: since this is only a textual approach based on materials published or released by the Appeal Board, an in-depth investigation of the appeal submissions is strongly recommended.
I would like to acknowledge the useful comments and advice of two referees in the legal and planning professions as well as those of Mr David Wong of Wong, Hui & Co. and Mr Eric Cheung, Department of Professional Legal Education, the University of Hong Kong. I would also like to thank the Hong Kong University Committee on Research and Conference Grant for their part sponsorship for the research of this book. Finally, I am in debt to the Secretariat of the Town Planning Appeal Board for their helpful assistance in furnishing dates of some of the appeal decisions.
CHART
ILLUSTRATIONS
2.1
The Legal and Policy Framework for Planning Applications, Reviews and Appeals
4
TABLES
2.2
2.1 The Geographical Distribution of Planning Appeal Cases
The Zoning of Appeal Sites
9
10
2.3
Time Involved from the Date of Planning Application and Appeal Hearing to the Date of Appeal Decision
11
2.4
Typical Reasons for Rejecting Planning Appeals
14-15
2.5
The Location of Planning Intention
17
FIGURES
2.1
A Comparison of s. 16 Planning Applications Considered by the Town Planning Board in 1990–1996
7
2.2
A Comparison of s. 17(1) Review Applications Considered by the Town Planning Board in 1990–1996
8
2.3
A Comparison of s. 17B Appeals Decided by the Town Planning Appeal Board in 1992-1997
12
xiv
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
PHOTOGRAPHS
1.
2a, 2b.
3.
4.
5.
Subject Site of the Alticosmic Case in May 1998 Subject Site of the Conduit Road Case in March 1998 Subject Site of the Wo Yi Hop Road Case in May 1998 Subject Site of the Sung Dynasty City Case in May 1998 Subject Site of the OTB Case in May 1998
89
96
105
113
118
6a, 6b.
Subject Site and 'Environ' of the Full Look Case in May 1998
127
7.
8.
Subject Site of the Good Luck Case in May 1998 Subject Site of the On Luk Tong Case in May 1998
145
157
9a.
Subject Site of the Bowen Road Case in May 1998
187
9b.
The 'Seaview' of Bowen Road from the Position in Photograph 9a
187
9c.
10.
11.
12.
13.
A Lift Shaft along Bowen Road near the Subject Site Subject Site of the Yook Tong Estate Case in May 1998 Subject Site of the Yiu Cho Investment Case in May 1998 Subject Site of the So Cho Cheung Case in March 1998 Subject Site of the Lai Sun Development Case in May 1998 14a, 14b. The School and Playground to the West of the Lucky Gain
Case in May 1998
188
210
248
290
341
446
15.
Subject Site of the Fine Tower Case in May 1998
466
16a.
The Corridor Leading to the Premises of the
471
Yolanda Fan Case in May 1998
16b.
Subject Premises and Site of the Yolanda Fan Case in
472
May 1998
17.
18.
Subject Site of the Rightlane Investment Case in May 1998 Example of Channelization: Chuk Yu Chung
489
512
19.
Cement Spraying along Mount Parker Road
512
20.
Cement Spraying of Tai Tam Reservoir
513
CASES
1. 01/91 (L1)* 21-27 Sha Tsui Road, TWIL 32, Section A,
Tsuen Wan, New Territories [Alticosmic] (Should approved industrial plot ratio 14.77 be compared with OZP plot ratio of 9.5 or the proposed 15?)
81-90
2. 02/92 (L2)
6-10B Conduit Road, Hong Kong Island [Conduit Road]
91-97
(Approved residential plot ratio 8 was compared with OZP plot ratio of 5 or the proposed 8.104 which included bonus plot ratio: Was s. 16 application necessary?)
3. 03/92 (L3)
63-73 Wo Yi Hop Road, Kwai Chung, New Territories [Wo Yi Hop Road]
97-106
(Was application for plot ratio 15 in an Industrial Zone, not a Column 2 use, an invalid application?)
4. 04/92 (L4)
Sung Dynasty Village Site, Kwai Chung, New Territories [Sung Dynasty City]
106-114
5. 05/92 (T1)
(Could the Town Planning Board change its mind after entertaining a proposal for rezoning? One or two CDAs?)
Unit E, G/F, Haribest Industrial Building, Au Pui Wan Street, Fotan, Shatin, New Territories [OTB]
(Renewal of temporary planning permission for bank use in an Industrial Zone was rejected as there was a commercial centre nearby.)
114-118
xvi
6. 07/92 (L5)
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
Ma Miu Road, Yuen Long, New Territories [Full Look]
(Were commercial/residential towers in a G/IC Zone without committed government development programme against planning intention for low-rise development?) No. 27 Mok Tse Che, Ho Chung, Sai Kung, New Territories [Yuen To-shing] (Small house development in unspecified areas near a Village Type Development (V) Zone in DPA Plan was not permitted.)
119-128
128-134
7. 08/92 (L6)
8. 09/92 (L7)
No. 32 Mok Tse Che, Ho Chung, Sai Kung,
New Territories [Yuen Shu-ling] (Small house development in unspecified areas near a Village Type Development (V) Zone in DPA Plan was not permitted.)
128-134
9. 10/92 (T2)
134-141
Lot Nos. 1410A and 1410B etc. in DD 114, Kam Tin, Yuen Long, New Territories [Treasure Base (1)]
(It was ruled an ineffective appeal; fax transmission was being valid notification provided that the message received was in a legible form.)
10. 12/92 (T3)
193 Castle Peak Road, Cheung Sha Wan, Kowloon [Good Luck]
141-146
11. 13/92 (L8)
12. 14/92 (T4)
13. 15/92 (T5)
(Proposed Commercial/Office on site with a 5- metre frontage was rejected due to the absence of on-site parking and loading facilities.) Lots 72 RP & 73 RP in DD 217, Pak Kong, Sai Kong, New Territories [Pak Kong] (Planning application for the alleged unauthorized development indicated illegal change of use.)
Retail Shop, UG/F and G/F, 13–15 Village Road, Happy Valley, Hong Kong [On Luk Tong]
(Conversion of parking spaces in Residential (Group B) Zone was rejected for there were inadequate parking spaces in the area.) Lots Nos. 176A and Others in DD 103, Au Tau, Yuen Long, New Territories [Ultra Force] (Proposed residential development according to a master layout plan on agricultural land zoned 'Unspecified Use' was rejected on the grounds of land resumption and drainage/sewerage.)
146-153
153-157
157-165
Cases
xvii
14. 18/92 (L9)
15. 19/92(L10)
16. 2/93(L11)
Lots No. 2248 in DD 76, Ko Po, Sha Tau Kok Road, New Territories [Kingspeed Engineering]
(An alleged unauthorized development, a metal shop, entailed refusal of planning permission as a matter of principle.)
Lots Nos. 2249, 2254, 2255 BRP and 2257 BRP in DD 76, Ko Po, Sha Tau Kok Road, New Territories. [Kun Kee Motor]
(An alleged unauthorized development, a motor and tyre repair workshop, entailed refusal of planning permission as a matter of principle.) No. 17 Bowen Road, Mid-Levels East, Hong Kong [Bowen Road]
(Application for an inclined passenger elevator on Crown land in a Green Belt (GB) Zone was rejected for the lack of public interest.) Lot 1410A in DD 114, New Territories [Treasure Base(1)]
17. 04/93 (T6)
18. 05/93 (T7)
(A large-scale commercially-run columbarium was incompatible with an agricultural setting.) Lot 1410B in DD 114, New Territories [Treasure Base (2)]
166-174
174-183
183-188
188-200
188-200
19. 11/93(L12)
20. 12/93(L13)
(A large-scale commercially-run columbarium was incompatible with an agricultural setting.) Lot No. 5 in DD 125, Ha Tsuen Shi, Yuen Long, New Territories [Shell Hong Kong] (PFS in a Village Type Development (V) Zone was dedicated for small house development according to the DPO's interpretation of planning intention.)
Nos. 446-448 Reclamation Street, Kowloon [Yook Tong Estate]
200-206
206-211
21. 13/93(T8)
22. 14/93(L14)
(This subject site was less than 1% of a Comprehensive Development Area (CDA) Zone: a proposal which 'was doomed to failure'.) Nam San Wai, Yuen Long, New Territories [Henderson]
(Appeal was allowed: a 98.3 ha residential-golf course-nature reserve near Mai Po Marshes.) Nos. 6-12 Leighton Road, Hong Kong [Yiu Cho Investment]
(Appeal was allowed: an office development in a Residential Group A (R(A)) Zone in Leighton Road.)
211-243
243-249
xviii
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
23. 16/93(T9)
Lots Nos. 228, 230 and 231 in DD 16, Tai Po, New Territories [Naturaluck]
249-256
(Appeal was allowed: a 573 m2 petrol filling
station in an Unspecified Use Zone in DPA Plan.)
24. 17/93 (L15) Lots No. 1797 BRP and other lots in DD 125,
Ha Tsuen, Yuen Long, New Territories [Shun Fat Container Terminal]
(Planning application for use (container storage in an 'Unspecified Use' Zone) under planning enforcement actions was rejected ‘as a matter of principle'.)
25. 19/93 (L16) Lots No. 368 and other lots in DD 106, Kam Tin South, Yuen Long, New Territories [Ever Need]
(Planning application for use (building materials storage in an 'Unspecified Use' Zone) under planning enforcement actions was rejected 'as a matter of principle'.)
256-269
269-274
26. 01/94 (L17) Lots No. 3251 BRP etc. in DD 129, Ha Tsuen, Yuen Long, New Territories [Tang Sai Hung] (Planning application for use (a warehouse in an 'Unspecified Use' Zone) under planning enforcement actions was rejected 'as a matter of principle.)
27. 02/94 (L18) G/FL Wah Luen Industrial Centre, Fo Tan,
Sha Tin, New Territories [So Cho Cheung] (Appeal was allowed with conditions: fast food shop in a unit in Fotan could exist until 31 December 1997.)
275-284
284-291
28. 05/94(T10)
Lot No. 569 in DD 82, Ta Kwu Ling, New Territories [Tong Kam Wong]
291-297
(Planning application was dismissed for reconstruction of one store to replace two old stores in an Unspecified Use Zone.)
29. 06/94 (T11) Lot No. 89 in DD 248, Tsueng Kwan O, New
Territories [Ng Siu Wing]
(Small house development on a piece of 17.6m2 private land within Government/Institution/ Community Zone (imposed after application to the DLO) commenced.)
30. 09/94 (T12) Lot No. 775 BRP in DD 46, Man Uk Pin, Fan
Ling, New Territories [Lee Yiu Kam]
(Appeal was dismissed: storehouse for building materials and open-air parking on farm land
297-305
306-312
Cases
xix
which was said to have been contaminated by chemical waste.)
31. 10/94 (L19) Various lots in DD 221, Sha Kok Mei, Sai Kung,
New Territories [Sun Link Properties] (Comprehensive residential development according to a proposed master layout plan in an 'Unspecified Use' Zone was rejected for Hiram's Highway was already too congested.) Lots Nos. 117, 118 and 119 in DD 108, Fan Kam Road, Ta Shek Wu, Yuen Long, New Territories [Wong Yee Fai (1)]
32. 11/94(T13)
33. 12/94(L20)
34. 14/94(T14)
(A car repairing workshop in 'Unspecified Use' Zones under enforcement action was rejected for lack of any justification.)
No. 789, Cheung Sha Wan Road, Kowloon [Lai Sun Development]
(Office and retail development in an Industrial Zone at MTR station was rejected for being inconsistent with the planning intention and for unreliable business forecasts.) DD 100, Lin Tong Mei, Sheung Shui, New Territories [Sanyear Investment] (Residential development in an 'Unspecified Use' Zone in a DPA Plan was rejected because the appellant was not able to show absence of adverse traffic impact.)
312-319
320-327
327-342
342-352
35. 02/95(T15)
DD 129, Lau Fau Shan, New Territories [Charming City]
(Residential development in an 'Unspecified Use' Zone in a DPA Plan with a subsequent successful planning review for similar development under an OZP was rejected.)
36. 05/95 (L21) Various lots in DD 104, New Territories
[Planet Universal]
(Residential development in an 'Unspecified Use' Zone in a DPA Plan near Mai Po Nature Reserve was rejected; proposed planning conditions were unworkable.)
37. 07/95 (L22) A large site in Kam Tin North DPA, New
Territories [Delight World]
(Residential development in an 'Unspecified Use' Zone in a DPA Plan affected by government land resumption (for drainage channel and highway projects) was rejected; proposed 'conditional approval' was unworkable.)
352-362
363-391
391-401
XX
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
38. 08/95 (L23) Various lots in DD 109, Kam Tin, New
Territories [Yin Ning Savings]
(Residential development in an 'Unspecified Use' Zone in a DPA Plan affected by government land resumption (for drainage channel and highway projects) was rejected; proposed 'conditional approval' was unworkable.)
39. 16/95 (T16) A site within draft Kam Tin OZP, New
Territories [Arzignano Leather]
(Renewal of temporary planning permission for
storage of gloves and office in two new 2-storey buildings was rejected.)
40. 18/95 (T17) Lot No. 465B in DD 92, Kwu Tung North,
Sheung Shui, New Territories [Jetway Civil] (Small house development in an Agricultural Zone in a DPA Plan was rejected.)
41. 19/95 (T18) Lots Nos. 1368A and 1368 RP in DD 82, Ping Che Road, Ta Kwu Ling, New Territories [Lo Kwok-wai]
(Open storage of steel materials in an 'Unspecified Use' Zone in a DPA Plan subject to planning enforcement was rejected.)
401-412
412-417
417-423
423-429
42. 21/95(T19)
Lot No. 987 in DD 106, Shek Kong, Yuen Long [Cheung Hing Lung]
429-436
43. 22/95(T20)
44. 26/95(T21)
45. 28/95(W1)
(Proposed in situ redevelopment of warehouse in an 'Unspecified Use' Zone was rejected for involving relocation of buildings from adjoining lots to the subject lot.)
Aberdeen Inland Lots 278 and 280, Hong Kong Island [Lucky Gain]
(Proposed Commercial/Office development at plot ratio 15 in an Industrial Zone with an I-O application already approved was rejected.) A site in draft Pat Heung DPA [Wong Yee Fai (2)]
(Continuation of a car repair workshop and open storage of spare parts subject to enforcement action in a Residential (Group D) (R(D)) Zone was rejected as a matter of principle.)
Northern side of Hoi Tu Street, Quarry Bay, Hong Kong Island [Fine Tower]
(Office building in Industrial and G/IC Zones was rejected on the grounds of incompatibility
436-447
447-453
453-467
Cases
46. 01/96(T22)
47. 04/96(T23)
48. 08/96(T24)
49. 12/96(T25)
*
50. 01/97(W2)
with a refuse dumping barging point, though a subsequent application for Industrial-Office (I- O) building was approved without reference to the barging point.)
Flats 4 and 5, 13th Floor, Yick Fat Industrial Building, Nos. 1048–1056 King's Road and Nos. 2-32 Yau Man Street, Quarry Bay, Hong Kong Island [Yolanda Fan]
(Appeal was allowed: two flats used as a temple were considered an existing use in one of the flats.)
Lots 1824 ARP, 1824 BRP, 1824 C and 1849 in DD 125 and government land in Ping Ha Road, Ha Tsuen, Yuen Long, New Territories [Container System]
(Open storage of containers in an Undetermined (U) Zone with container storage as an existing use on part of the subject site was rejected.)
Lot 349 BRP (part) in DD 114. Kam Tin Road, Pat Heung, Yuen Long, New Territories [Leung Wing-nin]
(A car repairing workshop in an Open Storage (OS) Zone was rejected for lack of justification.) Rural Building Lot No. 691 RP, No.12, Headland Road, Hong Kong Island (Rightlane Investment]
(Appeal was allowed: an application for a 10% minor relaxation of plot ratio in a Residential (Group C) 3 (RC 3) Zone using an 'imaginative' building design.)
Lot 1217 and adjacent government land in DD 119 in Pak Sha Tsuen, Yuen Long [Connie Law Yuk Wah]
(Application of temporary open storage of building materials in an Agricultural (AGR) Zone in OZP was rejected for lack of substantiation.)
The letter and figure in brackets refer to the Chairman of the Panel and the number of the case decided by that panel under his Chairmanship.
xxi
467-472
472-480
480-483
483-489
489-493
PLANNING APPLICATION, REVIEW AND APPEAL PROCEDURES
THE STATUTORY FRAMEWORK
Modern statutory planning of town and country in Hong Kong has been carried out under two major pieces of legislation,1 the Town Planning Ordinance 1939 and the Country Parks Ordinance 1976, and their amendments. Each ordinance establishes its own planning board. The Country Parks Board is the planning authority for land covering more than 70% of the land in the territory while the Town Planning Board deals with all land outside the country parks. Yet, most people, including developers and proprietors, tend to focus on the activities of the Town Planning Board as it deals with land of greater economic value that is either urbanized or in the process of urbanization. There are also many other people concerned with the urban environment and the impact of proliferation of urban activities upon the urban fringes which are regarded as having significant visual, ecological or sentimental values.
Ever since the Planning Department was established in 1990, there has been much legislative activism to expand the Town Planning Ordinance. A Town Planning (Amendment) Ordinance was introduced in November 1991. A Town Planning Bill was announced for public consultation in July 1996. Yet, it is noteworthy that there has never been any attempt to develop an
1. 'Zoning' with a view to exclude Chinese people from the Peak area by law existed in Hong Kong under the Hill District Reservation Ordinance, Ordinance No. 4 of 1904; and Peak District (Residence) Ordinance, Ordinance No. 8 of 1918. The former was repealed in 1930 and the latter as late as 1946. Similiar racial segregation zoning was embodied in Cheung Chau (Residence) Ordinance, Ordinance No. 14 of 1919. It was also repealed in 1946.
2
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
elaborated set of Town Planning Regulations. Such regulations can serve technical purposes such as those in the Building Regulations within the ambit of the Buildings Ordinance. As a result, almost all interpretations of statutory town plans have to rely on making inference from the statutory notes to the plans prepared by the Town Planning Board; wordings in administrative documents such as the Town Planning Board Guidelines prepared by the Town Planning Board; Explanatory Statements attached to the plans prepared by the Planning Department; and the Hong Kong Planning Standards and Guidelines (HKPSG) issued by the government. Nor has there been any attempt of the government to issue practice notes, such as those issued to Authorized Persons and professional planners, until 2 December 1997.2 The Town Planning Bill 1996 did not deal with the issue of establishing technical planning matters on an unambiguous statutory base. Nor did it try to advance the scientific nature of planning as a professional endeavour. This state of affairs shapes the way in which decisions are made by the Town Planning Board by exercising its discretionary powers.
The planning appeal mechanism commenced operation in November 1991 under the Town Planning (Amendment) Ordinance 1991 (hereinafter referred to as 'the Ordinance' unless otherwise specified). It is the final resort one can seek within the framework of the Ordinance if he or she feels aggrieved by the outcomes of the planning application and review procedures. These include situations where the Town Planning Board reject the applications categorically, or where there are planning conditions unacceptable to the applicant. The appellant is entitled to seek independent decision of the Town Planning Appeal Board so as to reverse the rejection, and strike out or amend the imposed planning conditions to his or her favour.
THE CONSTITUTIONAL LAW FRAMEWORK
With effect from 1 July 1997, the laws in Hong Kong are subject to the overarching control of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (the Basic Law), that is, the entrenched written constitution of the Hong Kong Special Administrative Region as part of the People's Republic of China. Article 6 of the Basic Law expressly protects private property, in accordance with the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the
2. 'Practice Note for Professional Persons' No. 1/97 · 'Measures and Departmental Performance Pledges to Speed up Development Approval Process', 2 December 1997, No. 1/98 — 'Planning Information and Technical Administration (PITA) Unit, Planning Department', 26 May 1998, No. 2/98 'Application for Minor Amendments to Previously Granted Planning Permission; Decisions by Director of Planning under Town Planning Board's Delegated Anthony', 8 October 1998.
Planning Application, Review and Appeal Procedures
3
Government of the People's Republic of China on the Question of Hong Kong (often described as the Sino-British Agreement of 1984), which was signed on 19 December 1984 and ratified on 27 May 1985. The implications of the Agreement and the Basic Law in respect of land property apparently have not attracted much attention of the legal drafter of the Town Planning (Amendment) Ordinance, which nullifies common law rights affirmed in the Melhado case, without compensation, by using its very 'planning enforcement' provisions.
Chart 2.1 gives an indication of the legal and policy framework for planning.
PLANNING APPLICATION
Any person can make an application, which is often referred to as a 's.16 applications' or a 'planning application', to the Town Planning Board for uses specified under Column 2 or on the cover pages (where appropriate for temporary uses within areas covered or once covered by Interim Development Permission Area plans) of the Notes to a plan prepared and published in the gazette under the Town Planning Ordinance. The Notes are often (but not always) expressly stated as being 'part of the plan' so produced. Such a plan, whether it is a 'draft' or 'approved plan, may be an Interim Development Permission Area (IDPA) Plan, a Development Permission Area (DPA) Plan or, more commonly, an Outline Zoning Plan (OZP). The Town Planning Board is a statutory body comprising appointed members. The Board is a 'public body' within the meaning of the Prevention of Bribery Ordinance. The Chairman of the Board is the Secretary for Planning, Environment and Lands, who may delegate his or her authority to the Director or Deputy Director of Planning. Other members of the Town Planning Board are appointed from the public. These unofficial members are mostly professionals, academics, politicians and learned individuals. Planning qualifications or experience, however, are not a condition for appointment.
The applicant may or may not be the owner or occupier of the land concerned. No fee is required for an application. There is no statutory requirement that a planning application must be made by persons with specific academic or professional qualifications, although the application must be made using the prescribed Form No. PLN-18, which can be obtained free of charge from the Secretary for the Town Planning Board. It is a 4-page A4 size standard proforma. The form can be completed in Chinese or English. When preparing for a planning application, the applicant may consult the relevant Town Planning Board Guidelines, which can be obtained free of charge from the Planning Department.
There is also no statutory requirement for the submission of consultant reports or any other supporting documents with an application. However, the standard form contains references to the number of copies of such documents required when the applicant does provide such documents. It is common that
International Treaties
e.g. RAMSAR CONVENTION
Decisions of Town Planning Appeal Board
Chart 2.1 The Legal and Policy Framework for Planning Applications, Reviews and Appeals
Decisions of Standing Committee of the National People's Congress
Decisions of Hong Kong Court of Final Appeal
The Basic Law
(and the Sino-British Agreement Concerning the Future of Hong Kong)
Town Planning Ordinance
Hong Kong Planning Standards and Guidelines (HKPSG)
Decisions of Town Planning Board
Town Planning Regulations
Town Planning Board Guidelines
Govenment Leases (previously Crown Leases);
Interpretation and General Clauses Ordinance
Territorial Development Strategy (TDS) (Territorial Level)
Buildings Ordinance, Country Park Ordinance and other related ordinances
Development Statements (Subregional Level)
Statutory Town Plans (Notes and Zoning Maps) (District Level)
Outline Development Plans (ODP) and Layout Plans (District Level)
Planning Applications
(Site Level)
Explanatory Statements (District Level)
Constitutional documents
Statutory documents
Administrative documents
Contractual documents
Decisions
Planning applications (site level)
Planning Application, Review and Appeal Procedures
5
planning applications are made by planning consultants who fill in the standard form and prepare supporting reports on behalf of there applicant for a 's.16 application'. These consultants often also prepare documents for the subsequent planning review or appeal procedures where necessary.
The Town Planning Board has two subcommittees: the Metro Planning Committee, and the Rural and New Town Planning Committee (RNTPC); they both deal with planning applications and reviews falling within their area jurisdictions. The Chairmen of the Committees may be unofficial members of the Town Planning Board. When deliberating decisions, the Board has the benefit of a Town Planning Board Paper prepared by the secretariat of the Town Planning Board that is staffed with professional planners in the Planning Department.
PLANNING REVIEW
An applicant who makes a 'planning application' to the Town Planning Board under s. 16 of the Ordinance has a statutory right of a review, i.e. a 'planning review', under s. 17 (1) of the Ordinance by the same Board if his or her application is rejected by the Town Planning Board. An applicant can also file for a review if he or she is not satisfied with the conditions, i.e. 'planning conditions', imposed by the Town Planning Board on the 'planning permission' for the application. The review is restricted to the original application and no variation of the original application can be raised. There is no prescribed form for making an application for a planning review. The applicant and his or her consultants may be invited to appear before the Town Planning Board for the review. No third party is permitted to attend the Board's meeting for deciding s. 16 applications or s. 17(1) reviews.
The Town Planning Board's decisions regarding a s. 16 application or a s. 17(1) review and relevant sections of the Town Planning Board Papers are made known only to the applicant. They are not published. However, the public may inspect, free of charge, past records of such applications or reviews from the Planning Department on application.
PLANNING APPEAL
If an applicant is not satisfied with the decision of the Town Planning Board in a review, he or she has a statutory right to make an appeal, i.e. 'planning appeal', under s. 17 B of the Ordinance to an 'Appeal Board', i.e. the Town Planning Appeal Board. In the appeal hearing, the Town Planning Board is the respondent and the applicant is the appellant. The Town Planning Appeal Board (referred to as 'the Appeal Board' in this volume) is also a statutory body with appointed membership, which by law must be different from that of the Town Planning Board. The Chairman of the Appeal Board in the cases
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Town Planning in Hong Kong: A Review of Planning Appeal Decisions
3
under review is a member of the legal profession or of the judiciary. Other members bear similar characteristics of those appointed to sit on the Town Planning Board. Again, there is no prescribed form or professional for making a planning appeal. However, it is common that the appellant employs legal practitioners and consultant planners to prepare materials for the appeal and appear before the Appeal Board. The holding of the appeal sessions are not publicized. Attendance in hearing may be obtained by appointment. The conduct of the Appeal Board is governed by the Town Planning (Appeals) Regulations of 18 November 1991.
The Appeal Board may confirm, reverse or vary the decision appealed against under s. 17B(8)(b). When considering an appeal, the Appeal Board has to take the plans into account as they are. It is its duty to see that permissions which should be given thereunder are given but only to the extent shown or provided for or specified in the plan' per s. 16 (4) of the Ordinance. As stated by the Appeal Board in its decision allowing the Henderson case, the Appeal Board must not trespass upon the Town Planning Board's plan-making function in considering an appeal. 'Whether the Appeal Board agrees with any plan or not is irrelevant. Its duty is to see that plans are faithfully implemented. If changes to any plan are desired, representations should be made to the [Town Planning] Board. It follows that if permission should be granted under a plan, the Appeal Board has no right to refuse permission even if it does not like or agree with the applicable plan.' (para. 6, Appeal Case No. 13/93) (square brackets mine)
The decisions of the Appeal Board are recorded, made known to the appellants and available for public inspection at the Appeal Board Secretariat. The Appeal Board has also published 18 of its decisions which came out in 1991 to 1993; it is entitled Town Planning Appeal Decisions Volume One 1992–1993. This 81-page document can be purchased from the Government Publications Centre at $36. When this book is in the printing process, volumes covering subsequent years have not come out. However, copies of the decisions already made can be obtained from the Appeal Board Secretariat at HK$8.5 per page (in 1997).
3. By LN 14 of 1996, the following categories of persons shall not be appointed to the Appeal Board under s. 17A (a) (c), namely a member of the Town Planning Board, a Public Officer or a Justice of Appeal.
2
AN OVERVIEW OF THE PLANNING APPEAL CASES
NATURE OF THE CASES
Planning appeals arise when an applicant is aggrieved by the decision of s. 17(1) review hearing that affirms rejections of his or her s. 16 application. The success and failure rates of s. 16 and s. 17(1) applications for the years 1990 to 1996 are presented respectively in Figures 2.1 and 2.2.
Number of Applications
700
600
500
400
300
200
149
(56%) 15
|(43%)
100
637
(63%)
437
(59%)
355
309
(35%)
304
285
(50%)
(49%)
(39%)
231
(58%)
167
(42%)
497
(67%)
Approved
Rejected
Deferred
616
(71%)
237
(32%)
236
(27%)
14
5
3
0
(2%)
13
[(1%)
13
(2%)
18
(2%)
(1%)
(0%)
(1%)
0
1990
1991
1992
1993
1994
1995
1996