1
1
2
1
0
1
1
100%
4%
0%
2%
52%
14% 0% 0%
6%
4%
4%
2%
4%
2% 2% 4%
2%
0% 2%
2%
TIME INVOLVED
The time involved in a development application from lodging a s. 16 application to reaching an appeal decision is recorded in Table 2.3. Not all appeal decisions show the exact dates of the s. 16 applications or the date of the appeal hearing. A search of the Planning Department's records of Town Planning Board applications has identified all dates of s. 16 applications. The secretary of the Town Planning Appeal Board has provided dates of meetings not mentioned in the original decisions. From Table 2.3, it can be seen that an average of 11⁄2 years (18.1 months) (the range was 3.5 to 36 months) is needed. Then it took an average of another month (33 calendar days; the range is 6 to 127 days) for the decision to be laid down.
An Overview of the Planning Appeal Cases
11
Table 2.3 Time Involved from the Date of Planning Application and Appeal Hearing to the
Date of Appeal Decision
Date of S. 16 Applicatio
Last Day of Appeal Hearing
Date of Appeal Decision
Time From S 16 Application To Appeal Decision
Time From Last Date of Hearing to Appeal Decision
Case No
1991
1
Case Name
Alticosmic
Approx. (months)
Approx. (days)
8/3/91
5/3/1992
14/3/1992
12
9
1992
2
Conduit Road
17/4/91
29/6/1992
31/7/1992
16
32
3
Wo Yi Hop Road
7/11/90
10/7/1992
28/7/1992
20
18
4
|Sung Dynasty City
20/4/91
21/7/1992
29/7/1992
15
39
5
OTB
26/6/91
14/9/1992
25/9/1992
16
11
7
Full Look
14/8/91
16/10/1992
28/10/1992
15
12
6
Yuen To-shing
23/8/91
9/12/1992
16/1/1993
17 5
38
19
Yuen Shu-ling
23/8/91
9/12/1992
16/1/1993
17.5
38
10 Treasure Base
1/11/91
2/10/1992
13/10/1992
12.5
11
12 Good Luck
1/10/92
17/1/1993
15/1/1993
35
8
13 Pak Kong
12/12/91
15/2/1993
24/2/1993
14
9
14 On Luk Tong
4/12/91
4/3/1993
14/3/1993
15.5
10
15 Ultra Force
23/12/91
24/3/1993
18/4/1993
15.5
25
18] Kingspeed Engineering
21/2/92
18/5/1993
28/6/1993
16
41
19 Kun Kee Motor
2/3/92
26/5/1993
28/6/1993
16
33
1993
12
Bowen Road
23/3/92
21/6/1993
29/6/1993
15
8
4
Treasure Base
1/11/91
7/12/1993
22/12/1993
26
15
5
Treasure Base
8/5/92
7/12/1993
22/12/1993
20
15
11 Shell Hong Kong
5/2/92
13/1/1994
21/3/1994
14
67
12 Yook Tong Estate
9/10/92
13/4/94
9/5/1994
19
26
13 Henderson
1/8/92
23/5/94
26/8/1994
25
95
14 Yiu Cho Investment
8/10/92
7/3/94
21/4/1994
17
45
16 | Naturaluck
18/4/93
9/3/94
21/4/1994
12
43
17 Shun Fat Container
25/11/92
24/3/94
9/5/1994
17.5
46
19 Ever Need
5/3/93
2/6/94
29/6/1994
16
27
1994
1 |Tang Sai Hung
10/9/93
17/11/94
1/12/1994
14.5
24
2
|So Cho Cheung
7/8/93
19/8/94
28/11/1994
16
101
5
Tong Kam Wong
18/10/93
12/7/95
27/7/1995
21
12
6 Ng Siu Wing
9/12/93
18/1/95
7/3/1995
15
48
9 Lee Yiu Kam
15/11/93
23/3/95
10/4/1995
17
18
10 Sun Link Properties
11/12/93
16/5/95
14/6/1995
18
29
11 Wong Yee Fai (1)
21/10/93
24/5/95
14/6/1995
20
21
12 Lai Sun Development
19/2/94
9/8/95
14/9/1995
19
36
1995
14 Sanyear Investment
2 Charming City
5 Planet Universal
24/2/94
25/7/95
21/8/1995
18
27
30/4/94
12/3/96
29/3/1996
23
17
2/6/94
13/10/95
26/10/1995
17
13
7
Delight World
31/3/94
12/10/95
18/10/1995
16.5
6
8 Yin Ning Savings
28/2/94
20/8/95
27/10/1995
19
68
16 Arzginano Leather
5/9/94
21/3/96
12/4/1996
19
22
18 Jetway Civil
27/9/94
26/6/96
25/7/1996
20
29
19 | Lo Kwok-wai
15/7/94
16/5/96
4/6/1996
24
19
21 Cheung Hing Lung
14/1/94
4/6/96
6/8/1996
30.5
63
22 Lucky Gain
29/9/94
31/8/96
18/12/1996
14.5
127
|26|Wong Yee Fai (2)
12/10/94
22/3/96
12/4/1996
18
21
28 Fine Tower
2/11/94
26/4/1997
16/6/1997
32
51
1996
1
Yolanda Fan
24/3/95
17/7/96
30/8/1996
17
44
4
Container System
23/2/95
4/10/96
29/10/1996
20
25
8
Leung Wing-nin
4/10/95
12/6/97
12/7/1997
21 5
30
12 Rightlane Investment
26/11/94
1997 1 Connie Law Yuk Wah
11/3/96
23/10/1997
25/9/1997
12/11/1997
3/11/1997
35.5
20
17 5
39
Average
18.1
32.6
LEGAL REPRESENTATION
Many (at least 18 %) of the appellants were stated in the decisions to have been represented by lawyers. Others were represented by other types of experts or professionals such as architects, town planners (in at least 3 cases). Where the appellants were represented by lawyers or other professionals such as planners, surveyors, architects and ecologists, the Town Planning Board was also so represented. Professional planners represented the appellant or were asked to give evidence for the appellant in at least four decided cases.
FAILURE RATES OF APPEALS
Of the 50 appeal cases investigated in this book, one (the Treasure Base case, case no. 10/92) was ruled ineffective, and only 5 were allowed. The rest were
12
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
all dismissed. Figure 2.3 shows the success and failure rates of reported cases for the years 1992–1997.
Number of Reported Appeals
2
→
8
12+
10+
11 (100%)
7
(100%)
6
(67%)
10 (100%)
8 (89%)
dlalt.
3 (33%)
1
1
(11%)
(25%)
3
(75%)
0
1992
1993
1994
1995
1996
1997
Year
Allowed
Dismissed
Figure 2.3 A Comparison of s. 17B Appeals Decided by the Town Planning Appeal Board in
1992-1997
The majority of the decided appeal cases came before Mr Justice Litton, OBE, as Chairman of Panel or Mr Robert C Tang, QC(SC), JP, as Chairman of Panel. Mr Justice Litton, now a Permanent Judge with the Court of Final Appeal, dealt with 22 cases. All except 1 were dismissed. Mr Robert Tang dealt with 25 cases. Since case no. 8/95, there has been no further decided case that came under a panel chaired by the former. All except 4 were dismissed. Two cases came before Mr Ronny F.H. Wong, SC. Both cases were dismissed.
The first successful case was the Yiu Cho Investment case (case no. 14/93), which was allowed on 8 April 1994 by the Appeal Board chaired by Mr Justice Litton. The case involved the application for an office development in a Residential Group (A) Zone in Leighton Road.
The second successful appeal was the Naturaluck case (case no. 16/93) which was decided by the Appeal Board chaired by Mr Robert Tang QC, JP, on 21 April 1994. This case dealt with a 572 m2 petrol filling station in the New Territories.
The third successful appeal case was the famous Henderson case (case no. 13/93), which was allowed on 26 August 1994 by all Appeal Board members except Mr David C. DaSilva who dissented. The Appeal Board was again
An Overview of the Planning Appeal Cases
13
chaired by Mr Robert Tang. This case dealt with a huge 98.3 ha residential- golf course-nature reserve project near the Mai Po Marshes, which is a designated Ramsar site. This case has remained the most important appeal case in terms of its legal and planning significance. (See sections below.)
The fourth successful case reported was the So Cho Cheung case (case no. 2/94) which was decided on 28 November 1994 by the Appeal Board chaired by Mr Justice Litton, OBE. This case dealt with an application for operating a fast food shop in a unit in Fo Tan, Shatin. The appeal was allowed with the condition that the planning permission would expire on 31 December 1997.
The fifth successful case reported was the Yolanda Fan case (case no. 1/ 96) decided on 30 August 1996 by the Appeal Board chaired by Mr Robert Tang. This case dealt with the use of a flat as a temple. In this case, it was reported that members of the Appeal Board had visited the site on request of involved parties before decision was made.
The sixth successful case was the Rightlane Investment case (case no. 12/ 96) which was the first reported to have been heard and decided after 1 July 1997 by the Appeal Board. This Board was chaired by Mr Robert Tang; it dealt with an application for a 'minor relaxation of plot ratio' for a Rural Building Lot at Headland Road.
REASONS FOR DECISIONS
The incidence of typical reasons for dismissing appeals are summarized in Table 2.4. A list of key reasons and relevant cases are given below:
absence of any justification for the applied uses (the Wong Yee Fai (1) and Leung Wing-nin cases)
being ad hoc development (the Sung Dynasty City, Full Look, Yuen To- shing and Yuen Shu-ling cases)
against planning intention (expressly so: the OTB, Full Look, Pak Kong, Treasure Base (1 & 2), Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, and Connie Law Yuk Wah cases; impliedly so: the Alticosmic, Conduit Road, Wo Yi Hop Road, Sung Dynasty City, Yuen To-shing, Yuen Shu- ling, Kingspeed Engineering, Kun Kee Motor, Bowen Road and Yook Tong Estate; not considered so in the Henderson, Naturaluck, So Cho Cheung, Sun Link Properties, Sanyear Investment, Fine Tower cases)
unauthorized development (the Pak Kong, Kingspeed Engineering, Kun Kee Motor and Shun Fat Container Terminal, Wong Yee Fai (1), Lo Kwok- wai, Wong Yee Fai (2) cases)
causing traffic congestion (the Alticosmic, Wo Yi Hop Road, and Shell Hong Kong cases)
14
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
Table 2.4 Typical Reasons for Rejecting Planning Appeals
Against Planning Intention
Bed Precedent
ic
Excessive
Incompatibility
Development with Intensity
neighbouring development
Case No...
Case Name
1991 1
Allicosmic
1992 2
· Condul Road...
13.
Wo Yi Hop Road
14
Sung Dynasty Cay
15
QJB
Full Look
Yuan To-shing
Yuan Shu-ling.
110
Treasure Bana.
12
Good Luck
Pak Kono
14. „On Luk Tong
15. Vra Force
1.8
„Kingapeed Ecguageing....
19
Kun Kee Motor..
1993 2
Bowen Road
14
Ireasure Base
15
Treasure Base,
11
Shell Hong Kong
12
Yook Tong Estate.
13
Henderson
NOT
NOT.
. 14.
You Cho Investment
16. Naturaluck.
NOT
¡Shun Fat Contamty
Adverse Impact on Environment and / or Palution
Felling of Trees
G Traffic/ Access Problems
Parking Problems
Adverse Cumulative Efnals on Environment
Sile Constraints
Ad hot Development Preempting Future Plans
X
X
X
X
NOT
NOT
NOT
NOT
NOT
.?
NOT
NOI
NOT
19
Ever Need
1994 1
Iang Sa Hung
-So Cho Chung