Two problems are apparent with the use of 'precedents' in this respect.
(a) Interpretation of precedents
At law, precedents have values in their ratios for identical or similar facts, not expressly just for the results of litigation (other than sentences or award of damages). The precedents in many cases (e.g. the On Lok Tong case) should have been investigated as regards their substantive technical aspects, such as traffic implications. Yet, the Appeal Board was often only advised to pay attention to the success and failure counts, rather than to the nature of the successful or rejected cases.
In the On Lok Tong case, for instance, it can be seen from the decisions that the Appeal Board was not mentioned to have been advised of even the outline nature of the eight cases rejected by the Town Planning Board. That being the case, the concept of 'bad precedent' could have been unreasonably employed for relevant considerations; the rules and basic facts for rejecting those eight cases had not been considered even though the merit of the decision for these eight cases and the present appeal could be entirely correct.
(b) The idea of bad precedents in planning applications
This is always used as a reason for rejecting a s. 16 application in the first instance or in a subsequent s. 17 review. As the Town Planning Board is to
An Overview of the Planning Appeal Cases
21
decide every application on its own merits, it is doubtful what ‘a bad precedent'
means.
Where the notion of bad precedent' is used as a reason rejecting s. 16 or s. 17(1) applications/reviews, one finds it hard to understand the logic behind. Where a case is a good case and approved, no problem of bad precedent will arise. Where the case is a bad case and rejected, no problem of bad precedent will arise either. It is only where (a) a bad case is approved or (b) a good case is rejected will the problem of 'bad precedent', as an evaluative description by a third party (other than the Planning Boards), will really arise.
The Planning Boards cannot possibly invoke the notion of bad precedents as a reason against an application or dismissing an appeal, as they cannot logically give a 'third party' view when explaining their own decisions. As an independent third party, the Appeal Board may, however, in allowing an appeal, criticize the respondent for not having approved the application in the first instance and hence having set a bad precedent. The Appeal Board may also praise the respondent for having rejected an application where the former chooses to dismiss the appeal.
However, the Town Planning Board cannot use the reason of 'bad precedent' in rejecting an application, because that argument is no explanation at all.
It is a welcome sign that in more recent cases (such as the Rightlane Investment case), the Appeal Board tends to accept that where a case can be supported, no problem with 'bad precedent' will arise.
What Is the Role of the Appeal Board: Procedural or Substantive Planning Matters?
Should the Appeal Board restrict itself to the arguments raised by the Town Planning Board and the appellant? Should the Appeal Board amend the reason advanced by the Town Planning Board? The Ultra Force case sheds some light on these questions.
The Use of Statutory and Administrative Provisions
The Town Planning Board Guidelines are sometimes used as if they were laws. The classic case is the suggestion by the Lands Department, in their warning letters to those who have allegedly been in breach of the industrial user clause, ('ancillary office' use needs planning permission). The point is that such a use is not a Column 2 use for Industrial Zones.
Should applications involving enforcement actions be rejected as a matter of principle? The answer was yes in a string of cases commencing with the Kingspeed Engineering and Kun Kee Motor cases. It is submitted that this rule is wrong.
22
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
The Strange Absence of Reference to the Hong Kong Planning Standards and Guidelines (HKPSG) in Evaluating Environmental Impact
The Hong Kong Planning Standards and Guidelines (HKPSG) are seldom referred to in assessing the environmental impact of a proposal. The first reported case to have made such reference was the Naturaluck case concerning the application of a petrol filling station (PFS). In the Shell Hong Kong case which also involved a PFS, no such reference had been made.
Expert Evidence
Expert evidence is considered mainly in connection with agriculture, traffic and environmental impact. The Appeal Board tends to accept more readily the expert witnesses for the respondent. The opinion of the appellant's experts was accepted only in a few cases such as the Bowen Road (appeal dismissed) and Henderson cases, but it was often rejected as in the Yiu Cho Investment and Sanyear Investment cases.
In some cases, expert opinions influence the decisions but even where such opinions concerning the key issue were flawed, as in the case of Yiu Cho Investment, the Appeal Board would not be deterred to form its own views about allowing or dismissing an appeal by reference to other relevant considerations.
In the Leung Wing-nin case, the Appeal Board expressed the opinion that it was advisable for an applicant to seek professional help in making a planning application if there were needs to demonstrate that the application would have no adverse environmental or traffic impact.
The Appeal Board might ignore the views of the expert for the respondent even if their views were not contested by a relevant expert department of the government. The classic cases are the Lucky Gain and Fine Tower cases, both dealing with applications for office use.
Mitigation Measures Proposed by Appellants
Sometimes, the appellant's proposal for mitigation measures or accepting planning is self-incriminating as it is taken to imply that the proposed uses are unsuitable (the Shell Hong Kong case).
However, this approach was clearly ruled out in the Henderson case, where it was stated that in considering an application, the Town Planning Board should not assume that the applicant would not keep his or her promises made by planning or lease, or that the government would not enforce conditions of grant. The Henderson rule was not consistently followed.
An Overview of the Planning Appeal Cases
The Use of Planning Conditions to Overcome Potential Environmental Problems
333
23
The Appeal Board tends not to accept proposed planning conditions to overcome potential environmental problems. This is exemplified in the Ultra Force case where the appellant's proposal for a conditional approval subject to an impact assessment was rejected. However, in the Henderson, Yiu Cho Investment and Naturaluck cases where the Appeal Board allowed the appeals, planning conditions were stipulated as conditions for approving the applications. In all these cases, there was either expert or departmental opinion in favour of the conditions involved.
CONFLICTING VIEWS BETWEEN THE DISTRICT PLANNING OFFICE AND OTHER GOVERNMENT BODIES
In some appeal cases allowed, there were conflicting views between the District Planning Office and other government bodies. In the Yiu Cho Investment case, the Environmental Protection Department (EPD) supported the application on the grounds of traffic noise. In Naturaluck, neither the Water Supplies Department nor the EPD expressed objection to the proposal.
In the Lucky Gain case, the Lands Department supported the application but the Planning Department did not. In this case as well as the Fine Tower case, the EPD had no objection on the grounds of environment protection, but the Planning Department did. In the latter case, it was ruled that an Office Building was incompatible with a barging point whereas a mixed Industrial- Office Building of more or less the same size was not.
OBJECTIONS TO PLANS AND OBJECTIONS TO EXPLANATORY STATEMENTS
The Appeal Board often discovers the 'planning intention' from both the explanatory statements and statutory plans. It is sometimes uncertain whether such administrative statements, produced by the Planning Department, are predictive, descriptive or prescriptive. Although such statements sometimes explicitly define the planning intention, it is not obvious whether they are 'advisory' or 'mandatory' or for how long they are considered valid. However, one fact is certain. They are not a statutory part of the plan prepared by the Town Planning Board and cannot be objected to in the statutory plan-making or revision process. As the Appeal Board attaches so much weight to such statements in interpreting planning applications, reviews and appeals, it is desirable that they can be put on a statutory basis so that they become guidelines for plan interpretation and public participation (objection) in planning.
24
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
JUDICIAL REVIEW OF APPEAL BOARD DECISIONS
The first judicial review applied for against the Appeal Board was the case of Mutual Luck Investment v Attorney General and Mr Justice Henry Litton [HCMP No. 2065 of 1995]. This unsuccessful application is concerned with the fairness of appointing a Justice of Appeal to the Town Planning Appeal Board. The second was Delight World Limited v The Town Planning Appeal Board [MP No. 197 of 1996].
The most famous and important case where an Appeal Board decision was followed by judicial review is the Henderson case. This case is interesting as it was the Town Planning Board who made the application for judicial review; the case has remained to be the most important because it ended up being decided by the Judicial Committee of the Privy Council. The application was successful in the High Court [Judicial Review No. 3357 of 1994] but the decision was reversed by the Court of Appeal [Court of Appeal No. 150 of 1995]. However, the Privy Council agreed with the decision of the Appeal Board.
COSTS
The Appeal Board has been reluctant to award costs to the successful party in the appeal, though it can do so under s. 17 B (8)(c). It was reported that the Appeal Board had been asked to award costs on several occasions. The first instance was the Wo Yip Hop Road case (case no. 03/92) in which the successful party, the Town Planning Board, asked for awards. The Appeal Board declined to entertain the application as, generally, the appellant was exercising a statutory right and, specifically, the appellant had attended the appeal with 'dignity and restraint'. The effect of awarding costs would deter future appellants from pursuing what, on its fact, is an unfettered right of an aggrieved party. In the Yook Tong Estate case (case no. 12/93), the Appeal Board was prepared to have a hearing for costs as the appeal was regarded as being 'doomed to failure' and that it 'bordered on frivolous'. However, the position stating that 'the normal practice of the Appeal Board is not to make orders as to costs' was reiterated in the Henderson case (case no. 13/93). Here the Appeal Board was recorded to have expressed disapproval of the respondent's fair attempt to 'move the goalpost' between the time when the grounds of appeal were given and the time when the hearing began. It also criticized an expert of the respondent's for being too negative towards an applicant for a planning permission. In the Container System case (case no. 04/96), the successful party, the Town Planning Board, asked for costs. The Appeal Board's position was: 'It has not been the practice of the Appeal Board to award costs to a successful party. This practice is ripe for review. But until a new policy has been adopted, we believe, in the circumstances, we should not order costs against the appellant.'
3
RULES LAID DOWN IN APPEAL
CASES
As mentioned, the Appeal Board has not expressed that its determinations in any case is bound by its earlier decisions. It may be therefore argued that 'no rules' can be said to arise and every case is entirely unique. It is submitted that this view is too extreme, to the extent that the concept of 'precedents' advanced by the Town Planning Board has not been rejected by the Appeal Board.
In this chapter, a summary of the rules laid down (and important remarks made) in the decided appeal cases is given with commonly known headings and case names for the convenience of the reader. The headings include procedural steps in statutory planning, decision criteria as well as main zoning types. These rules are distilled from reading the decisions of the appeal cases reported in Chapter 4. As the headings (such as residential development as a broad zoning category and 'small houses' as a specific use) are sometimes overlapping, repetition is inevitable. No evaluation is made in the identification of the rules, which are presented 'as what they are' in this chapter. However, some remarks (especially where they appear to be contradictory or have been superseded) are inserted for the benefit of the reader who may agree (or disagree) with the assessment presented here. Detailed explanations and comments will follow in Chapter 4 on a case-by-case basis.
The following notations are used:
definitely correct
definitely wrong
doubtful
conflicting with other rules under the same heading
?
26
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
BILL OF RIGHTS1
(1) It is not against human rights to restrict burial rights on Block
Crown lease to indigenous villagers. (The Treasure Base (2) Case)
(2) The question of whether the composition of the Town Planning Board violates the Bill of Rights is not a matter for the Appeal Board but the High Court. (The Shell Hong Kong Case)
(3) The Bill of Rights can be ignored where there are other reasons to
dismiss an appeal. (The Shell Hong Kong Case)
TOWN PLANNING AND PRIVATE PROPERTY RIGHTS
The raison d'etre for the existence of the Board and the Appeal Board is: just as the Town Planning Ordinance protects the community, it protects private owners as well. An owner is just entitled to rely on a DPA Plan/ OZP as the government. (The Henderson Case)
[The spirit of this rule is seldom respected subsequently and the balance is titled towards the interest of the community as perceived by the Appeal Board. 'Convenience' and 'general welfare' in the preamble of the Ordinance are taken to exclude economic convenience and welfare.]
PLAN MAKING POWERS
(1) The plan making functions belong to the Town Planning Board, not
the Planning Department. (The Henderson Case)
(2) The Appeal Board, in exercising appellate functions under s. 17(B) of the Town Planning Ordinance, has no power to make plans. (The Lai Sun Development Case)
(3) Strategic plans (Territorial Development Strategy), subregional plans (such as Metroplan) as well as district-level Development Statements are merely background materials for the Town Planning Board to formulate planning policies but cannot be used to interpret statutory plans. (The Lai Sun Development Case)
1. Hong Kong Bill of Rights Ordinance, Chapter 383, Laws of Hong Kong.
Rules Laid down in Appeal Cases
27
POWER TO DISAGREE WITH THE TOWN PLANNING BOARD
(1) "The Appeal Board were, of course, entitled to disagree with the Town planning board. Their function was to exercise independent judgment.' (per Lord Lloyd of Berwick in Henderson Real Estate Agency Ltd. v Lo Chai Wan [1997], as quoted in the Fine Tower case) (This rule was followed in the Fine Tower and Rightlane Investment cases.)
(2) The onus is on the appellant to demonstrate that an application is consistent with the planning intention and relevant Town Planning Board Guidelines. (The Connie Law Yuk Wah Case)
(3) The Appeal Board does not have an unfettered discretion to grant an approval where there is a set of relevant Town Planning Board Guidelines requiring the appellant to demonstrate his or her case. It is incumbent upon the appellant to demonstrate a case within the Town Planning Board Guidelines. (The Connie Law Yuk Wah Case)
[This rule is doubtful as the guidelines are not laws and there is no reference made to such guidelines in the statutory parts of the plan.]
POWER TO EXAMINE THE DURATION OF THE USE APPLIED FOR
The Appeal Board has no power to remit a dispute whether an application is for a temporary 3-year or 1-year permission to the Town Planning Board. (The Arzignano Case)
POWER TO APPROVE OR REJECT PLANNING APPLICATIONS
It is the Town Planning Board which approves or rejects planning applications, not the District Planning Officer. (The Wong Yee Fai (1) Case)
RESUBMISSIONS WHICH OVERCOME CERTAIN TOWN PLANNING OBJECTIONS
Where an application is rejected on both fundamental grounds (such as planning intention and land use compatibility) and technical grounds, if the technical concerns can be satisfactorily dealt with on resubmission, the application may or may not succeed depending on whether the more fundamental objections can be overcome. (The Wong Yee Fai (1) Case)
28
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
APPEAL BOARD'S DUTY TO ADHERE TO THE STATUTORY TOWN PLAN
(1) Appeals cannot be decided on the basis of one's subjective wish. They must be decided in accordance with the applicable statutory plan. (The Henderson Case)
(2) 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 is 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.' (The Henderson Case, para. 6) (square brackets mine)
'We [The Appeal Board] have no functions such as those exercised by the TPB under s. 3(1)(a) of the Ordinance. To promote the “health, safety, convenience and general welfare if the community" by drawing up plans providing for different lands uses.' (The Lai Sun Development Case) (square brackets mine)
(3) Though the Town Planning Board may have permitted or approved a proposal of a lower development intensity for a site before an appeal for a higher intensity proposal, the Appeal Board will not presume that the planning intention for a plan, replaced by the Town Planning Board at the time of the hearing, is to permit the type of development under appeal. (The Charming City Case)
(4) That an appellant has made an objection to a new zoning, which is
against his or her application, with a view to a rezoning in favour of the application, is something for the Town Planning Board to decide under a s. 6(5) hearing. (The Delight World Case)
(5) The Appeal Board were, of course, entitled to disagree with the Town planning board. Their function was to exercise independent judgment.' (per Lord Lloyd of Berwick in Henderson Real Estate Agency Ltd. v Lo Chai Wan [1997], as quoted in the Fine Tower Case)
WHERE A DPA PLAN HAS BEEN REPLACED BY AN OZP
[Rules (1) and (2) are in conflict with (3) and (5).]
(1) Section 20(6A) of the Town Planning Ordinance clearly provides that although a DPA Plan has been replaced by an OZP, the DPA
Rules Laid down in Appeal Cases
29
plan 'shall continue to apply to application for permission submitted under section 16 during the effective period of 3 years . . . Until the right to be considered under section 16, right of review under section 17 and right of appeal under s. 17B have been exhausted, abandoned or have expired: and the Board or the Appeal Board, as the case may be, shall consider under section 16, reconsider under section 17 or hear an appeal under section 17B in respect of the application to the extent as shown or provided for or specified in the (DPA Plan)' (para. 26(3), the Henderson case) (italics mine). This is so notwithstanding that the DPA is known to be replaced by an OZP during the appeal hearing. (The Henderson case, para. 55)
(2) A planning application made under an Interim Development Permission Area/Development Permission Area Plan shall be considered by reference to the said plan rather than a subsequent Outline Zoning Plan, unless the latter is relied on by the applicant to his favour.
According to the Henderson case in the Hong Kong Court of Appeal, an OZP cannot curtail the scope of the power to grant the developers planning permission under the DPA Plan. Nor can it be resorted to against the developers for the purpose of erecting any planning intention which is not to be gleaned from the DPA Plan.
OZPS, on the other hand, can be used by developers who apply for planning permission under DPA Plans. If an OZP were to contradict any planning intention asserted against them, such developers could pray it in aid for the purpose of meeting that assertion. (The Charming City Case)
(3) The zoning of an Outline Zoning Plan throws light on the planning intention for an unspecified use area zone in an IDPA or DPA Plan. (The Sun Link Investment Case)
[This rule is doubtful given (1) and (2) above and (6) below.]
? (4) Though the Town Planning Board may have permitted or approved a proposal of a lower development intensity for a site before an appeal for a higher intensity proposal, the Appeal Board will not presume that the planning intention for a plan, replaced by the Town Planning Board at the time of the hearing, is to permit the type of development under appeal. (The Charming City Case)
(5) That an appellant has made an objection to a new zoning, which is against his or her application, with a view to a rezoning in favour of the application, is something for the Town Planning Board to decide under a s. 6(5) hearing. (The Delight World Case)
?(6) Whilst, of course, the s. 17 review and the appeal before us must
30
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
proceed on the basis of the DPA Plan - ss.20 (6A) — the zoning in the OZP underlines the need for a cautious approach at the DPA stage.' (The Yin Ning Savings Case)
[This rule is doubtful given (1) and (2) above.]
THE QUESTION OF PRECEDENTS
[ Rules (1) and (2) are in conflict.]
? (1) Where an application was made within an Interim Development Permission Area/Development Permission Area Plan that is later replaced by an Outline Zoning Plan and where there is also no other pending appeal, no argument of bad precedent for approving the application shall be raised. (The Charming City Case)
[The logic is doubtful as the decision for a case should not be contingent upon the success of other appeals as this would create circular arguments.]
● ? (2) Where an Explanatory Statement states that ‘each proposal will be considered strictly on its own merits', no problem of precedent will arise. (The Rightlane Investment Case)
PRESUMPTION IN FAVOUR OF DEVELOPMENT?
[Rule (1) is in conflict with (2), (4) or (5). Rules (1) and (13) are, however, compatible.]
? (1) There is no presumption in favour of development for private projects.
(The Ultra Force Case)
? (2) The entry of a use in Column 2 of a zone implies that that use is
compatible with the adjoining zones. (The Naturaluck Case)
[This rule is definitely correct but is in fact a minority rule as it is often, if not always, ignored in cases such as Jetway Civil.]
(3) Planning permission should be granted to the extent shown or provided for or specified in the plan, having regard to all material consideration unless there are good reasons for refusal. (The Treasure Base (2), the Henderson and Naturaluck Cases)
? (4) Even if the subject site is not ideal and is merely suitable for a Column 2 use, permission should still be granted as there is no evidence showing that 'permission would cause demonstrable harm to interests of acknowledged importance.' (The Naturaluck case)
[This rule is definitely correct. Cf. Bowen Road and Lucky Gain Cases, conflicting; and Lai Sun Development case, in agreement.]
Rules Laid down in Appeal Cases
31
? (5) The function of the Town Planning Appeal Board is to decide whether from a planning point of view, permission should be granted. As the Town Planning Ordinance imposes restraints on an owner without compensation, permission should be granted unless there are good planning objections. (The Ng Siu Wing Case)
(6) That an applicant or appellant has not objected to a statutory town plan shall not in any way prejudice him or her for permission under s. 16, its review or appeal. Planning permission shall be granted unless there are sound planning objections to the application. (The Ng Siu Wing Case)
(7) A use should not be approved where its future market is doubtful.
(The Lai Sun Development Case)
[This rule is doubtful as the logic is akin to central economic planning, which is alien to Hong Kong.]
(8) Though the Town Planning Board may have permitted or approved a proposal of a lower development intensity for a site before an appeal for a higher intensity proposal, the Appeal Board will not presume that the planning intention for a plan, replaced by the Town Planning Board at the time of the hearing, is to permit the type of development under appeal. (The Charming City Case)
(9) 'The Town Planning Board, in the discharge of its statutory function to prepare plans for the "health, safety, convenience and general welfare of the community" (see s. 3(1) of the Ordinance) must look to the public interest as a whole. It has no obligation to please prospective developers.' (The Delight World Case)
[This rule is highly suspect as it presumes that private development is against public interest. Whether the developer is pleased or not is immaterial.]
(10) Renewal of temporary permission for a use, to be accommodated in structures, in a DPA Plan shall be granted only if (i) the applicant complies with the planning conditions for the original permission; (ii) no new structures are proposed, or permitted structures are existing; and (iii) the renewed permission allows the proposed use to be viable. (The Arzignano Leather Case)
(11) 'In situ' development means that the development must stay within the same lot in the Block Crown lease and does not involve the relocation of development from one lot to another though the lots involved are owned by the applicant/appellant. (The Cheung Hing Lung Case)
[This rule is wrong and makes no planning sense. The relevant planning unit shall be the entire property owned by the appellant interpreted in terms of established planning criteria.]
32
Town Planning in Hong Kong: A Review of Planning Appeal Decisions.
(12) The Appeal Board 'cannot allow a fait accompli to force us in granting permission which would otherwise not be granted' in the case where the site can no longer be useful for a use that is consistent with the 'planning intention'. (The Cheung Hing Lung Case)
(13) Planning permission should be granted unless there are good reasons
for refusal. (The Fine Tower Case)
[This rule is NOT inconsistent with rule (1).]
(14) Complaints by neighbours about nuisance created by a proposed use are not sufficient grounds to reject an application for that use or an expansion of it. (The Yolanda Fan Case)
TEMPORARY PERMISSION
[Rules (3) and (7) are in conflict.]
(1) The Appeal Board has no power to remit a dispute whether an application is for a temporary 3-year or 1-year permission to the Town Planning Board. (The Arzignano Leather Case)
(2) Renewal of temporary permission for a use (to be accommodated in structures), in a DPA Plan shall be granted only if (i) the applicant complies with the planning conditions for the original permission; (ii) no new structures are proposed, or permitted structures are existing; and (iii) the renewed permission allows the proposed use to be viable. (The Arzignano Leather Case)
O ?(3) As a matter of principle, the Appeal Board cannot grant an application for a use against which planning enforcement action has or should have been taken. The Appeal Board 'cannot condone the continued illegal use by granting permission under para. (vi) (b)' of the Town Planning Ordinance. (The Wong Yee Fai (2) Case) [underline mine]
[This rule is patently wrong as the appellant, being subject to enforcement actions, has a statutory right to make planning applications. To say that his applications must fail is to amount to amending the Ordinance and depriving the appellant the chance of obtaining a statutory defence or exemption from further enforcement actions.]
(4) The Town Planning Ordinance will lose credibility unless timely enforcement action is taken. Town Planning will not work, unless Government is willing to commit sufficient resources to enforce the Town Planning Ordinance. The fact that no enforcement action has been taken since the Town Planning Appeal Board's decision (against
Rules Laid down in Appeal Cases
33
an appeal involving unauthorised use) will only encourage infringement of the Town Planning Ordinance.' (The Wong Yee Fai (2) Case)
[This rule is doubtful as it assumes that the existing legislative framework is just or optimal.]
(5) The onus is on the appellant to demonstrate that an application is consistent with the planning intention and relevant Town Planning Board Guidelines. (The Connie Law Yuk Wah Case)
[This rule is doubtful as the guidelines have no statutory basis. See rule (1) in the next section.]
(6) The Appeal Board does not have an unfettered discretion to grant an approval where there is a set of relevant Town Planning Board Guidelines requiring the appellant to demonstrate his or her case. It is incumbent upon the appellant to demonstrate a case within the Town Planning Board Guidelines. (The Connie Law Yuk Wah Case). [See rule (1) in the next section.]
? (7) An 'unauthorized use' existing at the time of application should not prejudice its chance of obtaining planning permission. (The Yolanda Fan Case)
(8) Complaints by neighbours about nuisance created by a proposed use are not sufficient grounds to reject an application for that use or an expansion of it. (The Yolanda Fan Case)
CONSIDERING AN APPLICATION, PLANNING AND LEASE CONDITIONS
[Rules (2) and (4); (6) and (7) are in conflict.]
(1) In considering an application, the Town Planning Board should not suppose that it is up to the applicant to prove his or her case to the satisfaction of the government or that the government is not responsible for 'teaching' the applicant 'how to correct his mistakes'. (The Henderson Case)
[This rule is definitely correct. It is in conflict with rule (5) or (6) in the previous section.]
? (2) In considering an application, the Town Planning Board should not assume that the applicant would not keep his or her promises made by planning or lease, or that the government would not enforce conditions of grant. (The Henderson Case)
[This rule is definitely correct but has not been consistently followed.]
34
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
? (3) In considering an application, regard must be made to the possibility of imposing relevant planning and Crown lease conditions to ensure the successful implementation of an approved plan. (The Henderson Case)
[This rule is definitely correct but has not been consistently followed.]
? (4) In deciding a planning application, regard shall be made to the trustworthiness of an applicant with reference to his or her proposed use. (The Tong Kam Wong Case)
[This conflicts with rule (2) above.]
(5) A planning application made under an Interim Development Permission Area/Development Permission Area Plan shall be considered by reference to the said plan rather than a subsequent Outline Zoning Plan, unless the latter is relied on by the applicant to his or her favour.
According to the Henderson case in the Hong Kong Court of Appeal, an OZP cannot curtail the scope of the power to grant the developers planning permission under the DPA Plan. Nor can it be resorted to against the developers for the purpose of erecting any planning intention which is not to be gleaned from the DPA Plan.
OZPS, on the other hand, can be used by developers who apply for planning permission under DPA Plans. If an OZP were to contradict any planning intention asserted against them, such developers could pray it in aid for the purpose of meeting that assertion. (The Charming City Case)
[This is definitely correct as it is written law.]
?(6) Where an application was made within an Interim Development Permission Area or Development Permission Area Plan that is later replaced by an Outline Zoning Plan and where there is also no other pending appeal, no argument of bad precedent for approving the application shall be raised. (The Charming City Case)
[This rule is doubtful as whether there is any other appeal is immaterial.]
?(7) A large-scale residential development in a DPA Plan shall not generally be approved for that will prejudice future zoning in the OZP. (The Planet Universal Case)
[This case is doubtful as the crux here is whether the development is excessive or desirable in the context of the relevant statutory plan. A good development cannot logically pre-empt an unknown future plan, or else the development will be indefinitely deferred.]
Rules Laid down in Appeal Cases
35
(8) "The Town Planning Board, in the discharge of its statutory function to prepare plans for "the health, safety, convenience and general welfare of the community" (see s. 3(1) of the Ordinance) must look to the public interest as a whole. It has no obligation to please prospective developers.' (The Delight World Case)
REJECTING AN APPLICATION
(1) In rejecting an application, the Town Planning Board 'should provide reasons with sufficient particulars so as to enable an applicant to make a new application in compliance'. (The Henderson Case)
[This is definitely correct but not consistently followed.]
(2) In considering an application, if any Government Department has any objection to an application, such objection must be stated with sufficient particularity to enable an applicant to deal with the objection or to make a new application in compliance.' (The Henderson Case)
[This is definitely correct but not consistently followed.
(3) A use should not be rejected simply because it does not produce
planning gains. (The Lai Sun Investment Case)
[This is definitely correct but not consistently followed. It reverses the rule in the Bowen Road case.]
(4) Where the planning intention for a zone is impossible or will not be possible to be implemented, an application for a use should not be refused if it has no adverse environmental impact. (The Charming City Case)
[This is definitely correct but not consistently followed.]
(5) Where the planning intention for an area is primarily to encourage agricultural uses, it is not a sufficiently strong reason to refuse permission given if that site (a) is not prime agricultural land; (b) does not fall within an agricultural rehabilitation area; and (c) there is no evidence that agricultural use is realistic on that site. (The Charming City Case)
[This rule is correct but (b) is not too useful.]
(6) Where a planning intention has more than one dimension, then a proposal shall not be approved even if one of the dimensions is not suitable or possible. (The Charming City Case)
(7) Where a planning intention has two dimensions, a proposal shall be approved if (a) one of the dimensions is unsuitable or impossible;
36
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
and also (b) there is no other objection to the proposal. (The Charming City Case)
(8) Possible resumption of parts of the land under a planning application is a relevant factor for dismissing that planning application. (The Ultra Force Case)
[Wrong as unless there is no such provision in the statutory plan or Ordinance. This rule robs the appellant of his rights.]
O (9) A development proposal shall not be approved as long as there exists a real possibility that a proposed public work (say a road and/ or a drainage channel) may in fact cut across the site, requiring resumption of a substantial part of the site. (The Delight World and Yin Ning Savings Case)
о
[Wrong as unless there is no such provision in the statutory plan or Ordinance. This rule robs the appellant of his rights. Decisions shall be based on facts and not speculation about land uses.]
(10) Where (a) an appellant cannot overcome this fundamental objection, namely that the application is inconsistent with the 'planning intention' of the statutory plan, and (b) the appellant does not advance any no valid reason why granting planning permission will not be inconsistent with the said planning intention, then there is no need for the Appeal Board to deal with other grounds relied on by the Town Planning Board to reject a planning application during the appeal hearing. (The Lo Kwok-wai Case)
[Wrong as the Appeal Board's interpretation of 'planning intention' may be wrong and the appellant's rights to be heard shall not be pre-empted or reduced.]
(11) Complaints by neighbours about nuisance created by a proposed use are not sufficient grounds to reject an application for that use or an expansion of it. (The Yolanda Fan Case)
POSITION REGARDING UNAUTHORIZED DEVELOPMENT
[Rules (1) and (2) are in conflict with (1), (5) and (6).]
O?(1) Planning applications made after enforcement actions are threatened should not be allowed in principle in order that unauthorized operators are not allowed to dictate future land uses in 'unspecified use' areas. (However, to persuade the Town Planning Board that, despite this principle, ad hoc industrial development pending the preparation of an outline zoning plan should be allowed, an applicant will, generally speaking, have to 'make out a very strong case on
Rules Laid down in Appeal Cases
37
environmental and social grounds.') (The Kingspeed Engineering and Kun Kee Motor Cases)
(2) Planning applications for uses which are unauthorized developments under planning enforcement legislation should be turned down. Not even temporary permission should be granted for such ad hoc uses would dictate the land use of the area. (The Shun Fat Container Case)
[Wrong. Compare these rules with the Appeal Board's decision in the Henderson case regarding a DPA Plan which has been replaced by an OZP.]
(3) The relevant date for determination of existing use is when the Interim Development Permission Area Plan was published in the gazette. (The Cheung Hing Lung Case)
? (4) The Appeal Board would make no decision on 'existing use' so as not to prejudice any enforcement action which may be taken. However, the Appeal Board may proceed on deciding an appeal on the assumption that certain uses material to the application are 'existing uses' where the Appeal Board is satisfied with the evidence adduced by the appellant. (The Cheung Hing Lung Case)
O?(5) The Appeal Board 'cannot allow a fait accompli to force us in granting permission which would otherwise not be granted' in case where the site could no longer be useful for a use that is consistent with the 'planning intention'. (The Cheung Hing Lung Case)
○ ?(6) As a matter of principle, the Appeal Board cannot grant an application for a use against which planning enforcement action has or should have been taken. The Appeal Board 'cannot condone the continued illegal use by granting permission under para. (vi) (b) of the Town Planning Ordinance. (The Wong Yee Fai (2) Case) [underline mine]
(7) 'The Town Planning Ordinance will lose credibility unless timely enforcement action is taken. Town Planning will not work, unless Government is willing to commit sufficient resources to enforce the Town Planning Ordinance. The fact that no enforcement action has been taken since the Town Planning Appeal Board's decision (against an appeal involving unauthorised use) will only encourage infringement of the Town Planning Ordinance.' (The Wong Yee Fai (2) Case)
However, the following rule is noteworthy:
(8) An 'unauthorized use' existing at the time of application should not prejudice its chance of obtaining planning permission. (The Yolanda Fan Case)38
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
(9) Complaints by neighbours about nuisance created by a proposed use are not sufficient grounds to reject an application for that use or an expansion of it. (The Yolanda Fan Case)
PLANNING UNITS
о
(1) The Planning Unit for in situ redevelopment is individual lots within which the original buildings stand: 'In situ' development means that the development must stay within the same lot in the Block Crown lease and does not involve the relocation of development from one lot to another though the lots involved are owned by the applicant/appellant. (The Cheung Hing Lung Case)
(2) In the calculation of vacancy rates for offices, the relevant Planning
Unit is the Tertiary Planning Unit. (The Lucky Gain Case)
(3) Application for open storage of containers on a site containing existing use shall be considered in terms of the 'capacity' of the site, calculated on the basis of the actual density of containers on the existing site, rather than the proposed levels applied for in the s. 16 application. (The Container System Case)
[Wrong. Decision shall be made about the application itself alone. Cf. the Henderson case.]
EXPERT OPINIONS
(1) Expert statements are relevant though they themselves do not appear before the Appeal Board (The Ultra Force Case). The Appeal Board's justification was 'Section 17 (B)(6)(c) of the Town Planning Ordinance provides "prior to or at the hearing of an appeal an Appeal Board may — (c) admit or take into account any statement, document, information or matter whether or not it would be admissible as evidence in a court of law”.”
[Not apparently so before the Building Appeal Tribunal.]
(2) Where expert opinions of both the appellants' and the respondents' were flawed, the Appeal Board will make its own judgment about the issue. (The Yiu Cho Investment Case)
TREATMENT OF THE TOWN PLANNING BOARD DECISIONS
(1) In dismissing an appeal, the Appeal Board is ready to amend the reasons for decision made by the Town Planning Board. (The Ultra Force Case)
Rules Laid down in Appeal Cases
о
39
(2) In dismissing an appeal, the Appeal Board may take account of the facts that arise after the Town Planning Board has reached a decision. (The Ultra Force Case)
(3) In dismissing an appeal, the Appeal Board may consider reasons
not used by the Town Planning Board. (The Ultra Force Case)
(4) Facts and reasons stated in the Town Planning Board Papers are
relevant for the Appeal Board to consider. (The Naturaluck Case)
(5) Where (a) an appellant cannot overcome this fundamental objection, namely that the application is inconsistent with the 'planning intention' of the statutory plan, and (b) the appellant does not advance any no valid reason why granting planning permission will not be inconsistent with the said planning intention, then there is no need for the Appeal Board to deal with other grounds relied on by the Town Planning Board to reject a planning application during the appeal hearing. (The Lo Kwok-wai Case)
TOWN PLANNING BOARD COMPOSITION
Article 10 of the Bill of Rights [Ordinance] concerning the composition of the Town Planning Board is best interpreted by the High Court. (The Shell Hong Kong Case)
TOWN PLANNING BOARD PROCEDURES
Statutory Interpretation
The Town Planning Ordinance shall not be construed technically or legalistically. (The Treasure Base (1) Case)
Statutory Plan Interpretation
[Rule (2) is contradictory to rule (11) or (13).]
(1) The Explanatory Statement gives guidance to the exercise of discretion by the Town Planning Board in granting or refusing permission for development applied for according to the Notes to a statutory town plan. (The Tang Sai Hung Case)
? (2) The planning intention for deciding a planning application should be that found in the statutory plan under which the application is made, not within a subsequent plan that replaces it. (The Wong Yee Fai (1) Case)
(3) A use should not be approved where its future market is doubtful.
(The Lai Sun Development Case)
40
O
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
(4) Strategic plans (Territorial Development Strategy), subregional plans (such as Metroplan) as well as district-level Development Statements are merely background materials for the Town Planning Board to formulate planning policies; they cannot be used to interpret statutory plans. (The Lai Sun Development Case)
(5) A planning application made under an Interim Development Permission Area/Development Permission Area Plan shall be considered by reference to the said plan rather than a subsequent Outline Zoning Plan, unless the latter is relied on by the applicant to his favour.
According to the Henderson case decided by in the Hong Kong Court of Appeal, an OZP cannot curtail the scope of the power to grant the developers planning permission under the DPA Plan. Nor can it be resorted to against the developers for the purpose of erecting any planning intention which is not to be gleaned from the DPA Plan.
OZPS, on the other hand, can be used by developers who apply for planning permission under DPA Plans. If an OZP were to contradict any planning intention asserted against them, such developers could pray it in aid for the purpose of meeting that assertion. (The Charming City Case)
(6) Where an application was made within an Interim Development Permission Area/Development Permission Area Plan which is later replaced by an Outline Zoning Plan and where there is also no other pending appeal, no argument of bad precedent for approving the application shall be raised. (The Charming City Case)
(7) Where the planning intention for a zone is impossible or will not be possible to be implemented, an application for a use should not be refused if it has no adverse environmental impact. (The Charming City Case)
⚫? (8) Where the planning intention for an area is primarily to encourage agricultural uses, it is not a sufficiently strong reason to refuse permission given if that site (a) is not prime agricultural land; (b) does not fall within an agricultural rehabilitation area; and (c) there is no evidence that agricultural use is realistic on that site. (The Charming City Case)
(9) Where an Unspecified Use Zone in a Development Permission Area (DPA) Plan is divided into sub-areas, a ‘gradation concept' which differentiates development intensity by sub-area is inherent in the planning intention - even though this is not expressed in the Notes or Explanatory Statement to the DPA Plan. (The Charming City Case)
Rules Laid down in Appeal Cases
41
[Doubtful. Sub-areas may be used for geographical differentiation of land use types only.]
(10) Though the Town Planning Board may have permitted or approved a proposal of a lower development intensity for a site before an appeal for a higher intensity proposal, the Appeal Board will not presume that the planning intention for a plan, replaced by the Town Planning Board at the time of the hearing, is to permit the type of development under appeal. (The Charming City Case)
O ?(11) A large-scale residential development in a DPA Plan shall not generally be approved for that will prejudice future zoning in the OZP. (The Planet Universal and Yin Ning Savings Cases)
[Wrong, conflicts with (2).]
-
(12) 'Whilst, of course, the s. 17 review and the appeal before us must proceed on the basis of the DPA Plan - ss.20 (6A) the zoning in the OZP underlines the need for a cautious approach at the DPA stage.' (The Yin Ning Savings Case)
O? (13) To authorize a development now (in 1995), for implementation in the year 2001 or beyond, when so many factors are uncertain would be fundamentally wrong. It is contrary to the statutory scheme for the control of development by means of the DPA plan.' (para. 19 (iv)) (The Yin Ning Savings Case)
[Wrong, conflicts with (2): perpetual recession of possibilities of permission implied.]
PLANNING APPLICATION AND REVIEW
(1) Section 20(6A) of the Town Planning Ordinance clearly provides that although a DPA Plan has been replaced by an OZP, the DPA plan 'shall continue to apply to application for permission submitted under section 16 during the effective period of 3 years... Until the right to be considered under section 16, right of review under section 17 and right of appeal under s. 17B have been exhausted, abandoned or have expired: and the Board or the Appeal Board, as the case may be, shall consider under section 16, reconsider under section 17 or hear an appeal under section 17B in respect of the application to the extent as shown or provided for or specified in the (DPA Plan)' (para. 26 (6) (3), the Henderson Case)
(2) The planning intention for deciding a planning application should be that found in the statutory plan under which the application is made, not within a subsequent plan that replaces it. (The Wong Yee Fai (1) Case)
42
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
(3) The Town Planning Board shall take into account objections to an amendment to town plans which have been made in favour of a certain applicant before deciding that applicant's s. 16 application or s. 17(1) review. (The Sung Dynasty City Case)
[Compare this rule with the Appeal Board's decision in the Henderson case regarding a DPA Plan which has been replaced by an OZP.]
(4) The Town Planning Board can defer the decision of a review to a meeting in which the applicant is absent or unrepresented. (The Sung Dynasty City Case)
FAX COMMUNICATIONS
(1) Communication of the Town Planning Board decisions by fax is valid notification provided that the transmission is actually received in a legible form. (The Treasure Base (1) Case)
(2) Correspondence 'by fax and by post' is sufficient notice where the
fax message is received. (The Treasure Base(1) Case)
(3) If an agent in a s. 16 application represents that he or she is one to whom all correspondence shall be addressed, then he or she will be so addressed by the Town Planning Board for the purpose of a review or an appeal. (The Treasure Base (1) Case)
(4) The business address of consultants for an applicant is comparable to the business address of a solicitor acting for a party in proceedings in the Supreme Court (now High Court) and hence is an address to which notification of Town Planning Board decisions can be validly served. (The Treasure Base (1) Case)
TIME LIMITS FOR APPLICATION FOR APPEAL
(1) Time for s. 17B appeal runs from notification to named agent in s.
16 and s. 17 review applications. (The Treasure Base (1) Case)
(2) The Town Planning Appeal Board has no power to extend time limits for an appeal lodged in out of time. (The Treasure Base (1) Case)
(3) A notice of appeal wrongly addressed to the Town Planning Board but delivered correctly to the Appeal Board's address is still valid if it has been delivered within the time limit, even though the Appeal Board actually has received it after the deadline. (The Shun Fat Container Case)
Rules Laid down in Appeal Cases
43
(4) The fact that a notice of appeal asks for a stay of enforcement action pending the determination of the appeal does not rob it of its effect as a notice of appeal pursuant to section 17B. (The Shun Fat Container Case)
AWARD OF COSTS
(1) Award of costs to the successful party to an appeal should not be ordered in general. (The Wo Yi Hop Road, Henderson and Container System Cases)
(2) Cost shall not be awarded against an appellant who appeals with dignity and restraint in order not to deter future appellants. (The Wo Yi Hop Road Case)
? (3) Costs shall be awarded against a proposal which is doomed to failure.
(The Yook Tong Estate Case)
[Doubtful: how does the appellant know?]
(4) Award of costs to a successful party should not in general be ordered. 'It has not been the practice of the Appeal Board to award costs to a successful party. This practice is ripe for review. But until a new policy has been adopted, we believe, in the circumstances, we should not order costs against the appellant.' (The Container System Case)
PLANNING INTENTION
The Appeal Board discovers the 'planning intention' of a statutory plan prepared by the Town Planning Board in various locations, namely:
(1) the Town Planning Ordinance (The Wong Yee Fai (2) Case);
(2) the Outline Zoning Plan, or other statutory plans (The Yuk Tong
Estate and Leung Wing-nin Cases);
(3) the Outline Zoning Plan that replaces the DPA Plan within which
the application was made (The Sun Link Investment Case);
(4) the Outline Zoning Plan, or any other statutory plans, as interpreted by the District Planning Officer (The Full Look and Henderson Cases);
(5) the District Planning Officer's opinion before the Appeal Board (The
Shell Hong Kong Case);
(6) Notes to the Outline Zoning Plan, or other statutory plans (The
Alticosmic, Conduit Road, Wo Yi Hop Road and Henderson Cases);
44
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
(7) the Schedule of Amendments to the OZP (The Sung Dynasty City
Case);
(8) the Explanatory Statement to the OZP, or other statutory plans (The Alticosmic, Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson, Yiu Cho Investment, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hung, So Cho Cheung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Lai Sun Development, Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Arzignano Leather, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, Rightlane Investment and Connie Law Yuk Wah Cases);
(9) the relevant Town Planning Board Guidelines (The Alticosmic, Henderson, Lai Sun Development, Planet Universal, Lucky Gain and Connie Law Yuk Wah Cases)
(10) subregional Land Use Plan (The Treasure Base, not in the Lai Sun
Development Cases);
(11) Development Statements (not in the Lai Sun Development Case);
(12) departmental/administrative plans: Layout Plans (The Ng Siu Wing,
and the Delight World Cases); and
(13) the Town Planning Board in making decisions (The Sung Dynasty
City Case).
In the Henderson case, the Appeal Board was reported to have made clear the sources of the planning intention and their relationships with the statutory plan: 'Sometimes, whether an appeal should be allowed will depend on a consideration of the planning intention. The planning intention should be gathered from the plan [OZP, IDPA Plan, DPA Plan, DSP] and its accompanying notes. Subsequent explanatory statements issued by the [Town Planning] Board may be considered by the Appeal Board but they cannot override the plan or its accompanying notes.' (paras. 7-8, emphasis and square brackets mine)
However, the Appeal Board's statement does not clarify all doubts.
In the Ng Siu Wing case, it was revealed that specific administrative zoning in the Layout Plan defined the planning intention of a statutory zone in the OZP.
In the Wong Yee Fai (1) case, it was decided that the planning intention for deciding a planning application should be that found in the statutory plan under which the application was made, not within a subsequent plan that replaced it.
Rules Laid down in Appeal Cases
In the Charming City Case it was ruled that:
45
(1) where a planning intention had more than one dimension, a proposal should not be approved even if one of the dimensions was not suitable or possible;
(2) where a planning intention had two dimensions, a proposal should be approved if (a) one of the dimensions was unsuitable or impossible; and also (b) there was no other objection to the proposal;
(3) where an Unspecified Use Zone in a Development Permission Area (DPA) Plan was divided into sub-areas, a 'gradation concept' which differentiated development intensity by sub-area was inherent in the planning intention — even though that is not expressed in the Notes or Explanatory Statement to the DPA Plan.
In the Jetway Civil case, it was ruled that:
When considering whether an intended development is consistent with the planning intention, one should not have regard only to the site in question. It may be that a site, say only a 100 sq.m. in area is uneconomical for any form of agricultural use (or any use consistent with the planning intention). But that does not mean that in an area zoned agricultural which has a total area of, as here, 137 hectares (or in zone which is much larger in area), any applicant who can confine his application to plots of 100 sq.m. each should be given permission to use such plots for building purposes. We must have regard also to the area as a whole when considering the planning intention. [underline mine]
In the Jetway Civil case, there was no technical reason against the application and the use was a Column 2 use.
In the Lo Kwok-wai case, it was ruled:
Where (a) an appellant cannot overcome this fundamental objection, namely that the application is inconsistent with the 'planning intention' of the statutory plan, and (b) the appellant does not advance any no valid reason why granting planning permission will not be inconsistent with the said planning intention, then there is no need for the Appeal Board to deal with other grounds relied on by the Town Planning Board to reject a planning application during the appeal hearing.
THE SIGNIFICANCE OF A COLUMN 2 USE IN TERMS OF LAND USE COMPATIBILITY
The entry of a use in Column 2 of a zone means that that use is compatible with the environment of that zone. (The Naturaluck Case)
46
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
[Correct. This was not followed in most subsequent cases such as Jetway Civil and Lo Kwok-wai.]
‘EXISTING USES' AND ‘REGULARIZATION' OF NON-CONFORMING USES
(1) 'Existing uses' (i.e. uses that had existed immediately before the publication of an IDPA Plan in case of planning enforcement or uses that had existed before the publication in case of other than planning enforcement) needs no planning permission application for such uses means that they are not existing. (The Pak Kong Case)
(2) 'Non-conforming uses' which are (not?) 'existing uses' in an OZP may be 'regularized' upon successful planning application, review or appeal. (The On Luk Tong Case)
[Doubtful. Retrospective approvals.]
(3) An 'unauthorized use' existing at the time of application should not prejudice its chance of obtaining planning permission. (The Yolanda Fan Case)
(4) Complaints by neighbours about nuisance created by a proposed use are not sufficient grounds to reject an application for that use or an expansion of it. (The Yolanda Fan Case)
DEVELOPMENT ENTAILING LAND EXCHANGE
Land exchange was irrelevant as regards land use' in the context of the Town Planning Ordinance. (The Henderson Case)
[The Appeal Board's 'task was to determine from a planning point of view whether the appellant's proposal should be permitted. This approach is consistent with the views expressed in British Railways Board _v Secretary of State for Environment, The Times, 29th October 1993. There Lord Keith of Kinkel said in the House of Lords:
A would-be developer may be faced with difficulties of many different kinds, in the way of site assembly or securing the discharge of restrictive covenants. If he considers that it is in his interests to secure planning permission notwithstanding the existence of such difficulties, it is not for the planning authority to refuse it simply on their view of how serious the difficulties are."]
Rules Laid down in Appeal Cases
47
DEVELOPMENT PROPOSALS ENTAILING LAND RESUMPTION
Private proposals entailing land resumption shall generally be rejected. (The Shell Hong Kong Case)
LAND RESUMPTION AFFECTING SUBJECT SITES
[All rules below are doubtful.]
(1) Possible resumption of parts of the land under a planning application is a relevant factor for dismissing that planning application. (The Ultra Force Case)
(2) A development proposal shall not be approved as long as there exists a real possibility that a proposed public work (say, road and/ or drainage channels) may in fact cut across the site, requiring resumption of a substantial part of the site. (The Delight World and Yin Ning Savings Cases)
(3) Where part of a site would be resumed for public works (such as drainage channels or roads), the land area subject to resumption should be deduced for the calculation of plot ratio and site coverage. (The Yin Ning Savings Case)
[It is the actual resumption that matters. As planning permission does not entail building permission, proposed resumption shall not entail refusal to grant planning permission.]
PLOT RATIO CALCULATION
(1) Where part of a site would be resumed for public works (such as drainage channels or roads), the land area subject to resumption should be deduced for the calculation of plot ratio and site coverage. (The Yin Ning Savings Case)
(2) 'Minor relaxation of plot ratio' stipulated for a zone is to be abjudged on the basis of a comparison between the plot ratio proposed by the applicant and the plot ratio stipulated in the OZP. (The Wo Yee Hop Road Case)
(3) 'Minor relaxation of plot ratio' stipulated for a zone is to be abjudged on the basis of a comparison between the plot ratio proposed by the applicant and the plot ratio stipulated in the OZP, not any plot ratio approved by the Building Authority prior to the publication in the gazette of the OZP — even though that plot ratio may still be achieved without planning permission. (The Alticosmic Case)
―
48
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
(4) 'Minor relaxation of plot ratio' stipulated for a zone is to be abjudged on the basis of a comparison between the plot ratio proposed by the applicant and the plot ratio stipulated in the OZP, not any plot ratio approved or could have been approved by the Building Authority prior to the publication in the gazette of the OZP — even though construction of that plot ratio had been in progress before the publicaton in the gazette of the OZP or the relaxation was part of an agreement made prior to the gazette of the OZP. (The Conduit Road Case)
(5) Where a zone permits 'minor relaxation' of development restrictions, a ten-percent (10%) increase in plot ratio can be permitted where it can be shown that the proposed scheme is aesthetically better than the alternatives designed to meet the prescribed plot ratio. (The Rightlane Investment Case)
[Doubtful, as the alternatives can be 'straw-men', i.e. schemes erected by the applicant to juxtapose with the proposal.]
(6) The restriction in the Notes of a certain number of storeys 'above one storey of carport' does not imply that there are no ‘residential' or other 'always permitted' uses on the carport level: such restrictions refer to building heights rather than uses. (The Rightlane Investment Case)
(7) Where an Explanatory Statement states that each proposal will be considered strictly on its own merits', no problem of precedent will arise. (The Rightlane Investment Case)
SITE COVERAGE CALCULATION
Where part of a site would be resumed for public works (such as drainage channels or roads), the land area subject to resumption should be deduced for the calculation of plot ratio and site coverage. (The Yin Ning Savings Case)
CALCULATION OF TRAFFIC AND ENVIRONMENTAL IMPACT AND TEUS OF A CONTAINER DEPOT
Application for open storage of containers on a site containing existing use shall be considered in terms of the 'capacity' of the site, calculated on the basis of the actual density of containers on the existing use site, rather than the proposed levels applied for in the s. 16 application. (The Container System Case)
Rules Laid down in Appeal Cases
IMPACT ASSESSMENTS
[Rules (2), (4) and (13) are contradictory to rules (6) and (7).]
?
?
49
(1) It is advisable for an applicant to seek professional help in making a planning application where there are needs to demonstrate that the application will have no adverse environmental or traffic impact. (The Leung Wing-nin Case)
(2) The onus of proving that an application has no adverse impact is on the applicant/appellant, not on part of government. (The Wong Yee Fai (1) and Leung Wing-nin Cases)
(3) Favourable impact assessment accepted by the government is a pre-condition, not a planning condition, for successful planning applications. (The Ultra Force Case)
(4) The burden of supporting an application is on the applicant. (The
Ultra Force Case)
[BUT compare this rule with (6) below discovered in the Henderson case.]
(5) It is the cumulative environmental impact of permitting a proposal rather than the impact of an individual proposal that should be the decisive factor. (The Kingspeed Engineering Case)
(6) In considering an application, the Town Planning Board should not suppose that it is up to the applicant to prove his or her case to the satisfaction of the government or that the government is not responsible for 'teaching' the applicant 'how to correct his mistakes'. (The Henderson Case)
[Compare this with the rule in (4) above, the Ultra Force and Leung Wing-nin cases];
(7) Planning and Crown lease conditions can be put in place to ensure successful implementation of an approved ecological management plan. (The Henderson Case)
(8) For considering traffic impact, the carrying capacity of major external
link is a relevant consideration. (The Sun Link Investment Case)
(9) Local traffic congestion or road capacity constraint would frustrate an application even though other Column 1 uses for other zones may well generate no less traffic. (The Sun Link Investment Case)
(10) An 'unauthorized use' existing at the time of application should not prejudice its chance of obtaining planning permission. (The Yolanda Fan Case)
50
?
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
(11) Complaints by neighbours about nuisance created by a proposed use are not sufficient grounds to reject an application for that use or an expansion of it. (The Yolanda Fan Case)
(12) Application for open storage of containers on a site containing existing use shall be considered in terms of the 'capacity' of the site, calculated on the basis of the actual density of containers on the existing use site, rather than the proposed levels applied for in the s. 16 application. (The Container System Case)
(13) The onus of proving that an application has no adverse impact is on the applicant/appellant, not on the part of the government. (The Leung Wing-nin Case)
[Contradicts (6).]
(14) It is advisable for an applicant to seek professional help in making a planning application where there are needs to demonstrate that the application will have no adverse environmental or traffic impact. (The Leung Wing-nin Case)
HONG KONG PLANNING STANDARDS AND GUIDELINES (HKPSG)
Even if a site was not ideal but merely suitable in terms of the HKPSG for a Column 2 use, permission should not have been refused in the absence of evidence that 'permission would cause demonstrable harm to interests of acknowledged importance'. (The Naturaluck Case)
IMPLEMENTATION OF APPROVED PLANS
(1) In considering an application, the Town Planning Board should not assume that the applicant will not keep his promises made by planning or lease or that the government will not enforce conditions of grant. (The Henderson Case)
(2) Planning and Crown lease conditions can be put in place to ensure the successful implementation of an approved plan. (The Henderson Case)
MINOR RELAXATION OF PLOT RATIO
(1) 'Minor relaxation of plot ratio' stipulated for a zone is to be abjudged on the basis of a comparison between the plot ratio proposed by the
Rules Laid down in Appeal Cases
(2)
51
applicant and the plot ratio stipulated in the OZP. (The Wo Yee Hop Road Case)
'Minor relaxation of plot ratio' stipulated for a zone is to be abjudged on the basis of a comparison between the plot ratio proposed by the applicant and the plot ratio stipulated in the OZP, not any plot ratio approved by the Building Authority prior to the publication in the gazette of the OZP-even though that plot ratio may still be achieved without planning permission. (The Alticosmic Case)
(3) 'Minor relaxation of plot ratio' stipulated for a zone is to be abjudged on the basis of a comparison between the plot ratio proposed by the applicant and the plot ratio stipulated in the OZP, not any plot ratio approved or could have been approved by the Building Authority prior to the publication in the gazette of the OZP even though construction of that plot ratio had been in progress before the publication in the gazette of the OZP or the relaxation was part of an agreement made prior to the gazette of the OZP. (The Conduit Road Case)
-
(4) Where a zone permits 'minor relaxation' of development restrictions, a ten-percent (10%) increase in plot ratio will be permitted where it can be shown that the proposed scheme is aesthetically better than the alternatives designed to meet the prescribed plot ratio. (The Rightlane Investment Case)
(5) The restriction in the Notes of a certain number of storeys 'above one storey of carport' does not imply that there are no 'residential' or other 'always permitted' uses on the carport level: such restrictions refer to building heights rather than uses. (The Rightlane Investment Case)
DEVELOPMENT IN COMPREHENSIVE DEVELOPMENT AREA (CDA) ZONE
A proposal involving a small percentage of land in a CDA without an indication of how the completed development might harmonize with a comprehensive development of the area must fail. (The Yook Tong Estate Case)
[This does not clarify the minimum percentage.]
ANCILLARY OFFICE IN INDUSTRIAL ZONES
Application for 'ancillary office' use in industrial zones would not
52
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
normally be entertained for buildings not yet in existence. (The Alticosmic Case)
COMMERCIAL USES IN INDUSTRIAL ZONES
•
(1) Planning permission for a commercial use within an industrial zone
should be given where the application involves a minor degree of change of use from one approved commercial use to another. (The So Cho Cheung Case)
(2) In considering an application for a commercial use inside an industrial building, vis-à-vis an alternative of consolidating that use in a purpose-built commercial centre, pedestrian convenience of the industrial workers is a key factor to consider. (The So Cho Cheung Case)
(3) Commercial uses in industrial areas should be channelized to designated, purpose-built, commercial centres in the same area. (The OTB Case)
[Doubtful, should not indicate names of alternative buildings.]
(4) In considering an application for a commercial use in an industrial zone, the possibility that there may be additional loss of industrial floor space due to the application is a key factor to consider. (The So Cho Cheung Case)
(5) Where a planning application can be supported, there should be no worry about setting an undesirable precedent. (The So Cho Cheung Case)
(6) The Appeal Board, in exercising appellate functions under s. 17(B) of the Town Planning Ordinance, has no power to make plans. (The Lai Sun Development Case)
(7) A use should not be approved where its future market is doubtful.
(The Lai Sun Development Case)
(8) Strategic plans (Territorial Development Strategy), subregional plans (such as Metroplan) as well as district-level Development Statements are merely background materials for the Town Planning Board to formulate planning policies; they cannot be used to interpret statutory plans. (The Lai Sun Development Case)
(9) A use should not be rejected simply because it does not produce
planning gains. (The Lai Sun Investment Case)
(10) Office development under Column 2 of an industrial zone in an OZP
Rules Laid down in Appeal Cases
о
53
shall be subsumed under the Industrial/Office building concept. (The Lai Sun Investment Case)
(11) While the general purpose of the statutory town plans, according to the purpose of the Town Planning Ordinance, is to promote the health, safety, convenience and general welfare of the community, it does not necessarily follow that any application for a Column 2 use satisfying this general requirement should be approved. The reason is that each application must be considered in the context of the relevant statutory plan. For example, hospitals will promote the health of the Community but it cannot mean that permission must be granted for a hospital to be built whenever it is a Column 2 use.' (The Lucky Gain Case)
[Cf. the Naturaluck case.]
(12) The relevant Town Planning Board Guidelines, where applicable, indicate good reasons for permitting an application subject to those guidelines. (The Lucky Gain Case)
(13) In the calculation of vacancy rates for offices, the relevant Planning
Unit is the Tertiary Planning Unit. (The Lucky Gain Case)
(14) 'The fact that there is a surplus of office/commercial premises must be a good reason for refusing permission' for application for such uses. (The Lucky Gain Case)
[Doubtful, paternalistic thinking.]
Office/Commercial Buildings in Industrial Zones
(1) The Appeal Board, in exercising appellate functions under s. 17(B) of the Town Planning Ordinance, has no power to make plans. (The Lai Sun Development Case)
(2) Strategic plans (Territorial Development Strategy), subregional plans (such as Metroplan) as well as district-level Development Statements are merely background materials for the Town Planning Board to formulate planning policies; they cannot be used to interpret statutory plans. (The Lai Sun Development Case)
(3) A use should not be approved where its future market is doubtful.
(The Lai Sun Development Case)
(4) A use should not be rejected simply because it does not produce
planning gains. (The Lai Sun Investment Case)
(5) Office development under Column 2 of an industrial zone in an OZP shall be subsumed under the Industrial/Office building concept. (The Lai Sun Investment Case)
54
о
о
Town Planning in Hong Kong: A Review of Planning Appeal Decisions
(6) While the general purpose of the statutory town plans, according to the Town Planning Ordinance, is to promote the health, safety, convenience and general welfare of the community, it does not necessarily follow that any application for a Column 2 use satisfying this general requirement should be approved. The reason is that each application must be considered in the context of the relevant statutory plan. 'For example, hospitals will promote the health of the Community but it cannot mean that permission must be granted for a hospital to be built whenever it is a Column 2 use.' (The Lucky Gain Case)
(7) The relevant Town Planning Board Guidelines, where applicable, indicate good reasons for permitting an application subject to those guidelines. (The Lucky Gain Case)
(8) In the calculation of vacancy rates for offices, the relevant Planning
Unit is the Tertiary Planning Unit. (The Lucky Gain Case)
(9) "The fact that there is a surplus of office/commercial premises must be a good reason for refusing permission' for application involving such uses. (The Lucky Gain Case)
(10) Planning permission should be granted unless there are good reasons
for refusal. (The Fine Tower Case)
(11) 'The Appeal Board were, of course, entitled to disagree with the Town planning board. Their function was to exercise independent judgment.' (per Lord Lloyd of Berwick in Henderson Real Estate Agency Ltd. v Lo Chai Wan [1997], as quoted in the Fine Tower Case)
(12) An office building can be incompatible with a barging point whereas a mixed Industrial-Office Building of more or less the same size is not. (The Fine Tower Case)
[Definitely wrong: unreasonable presumption about workers.]