BANKS IN INDUSTRIAL ZONES
Banks in industrial zones shall be channelized to designated, purpose-built, commercial centres in the same industrial area. (The OTB Case)
[Doubtful economic validity.]
Rules Laid down in Appeal Cases
FAST FOOD SHOP USES IN INDUSTRIAL ZONES
55
(1) Planning permission for a fast food shop use within an industrial zone should be given to an application that 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 fast food shop 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) In considering an application for a fast food shop use in an industrial zone, the possibility that there may be additional loss of industrial floor space due to the application is a decisive factor. (The So Cho Cheung Case)
(4) Where a planning application can be supported, there should be no worry about setting an undesirable precedent. (The So Cho Cheung Case)
COMMERCIAL DEVELOPMENT IN RESIDENTIAL (GROUP A)
ZONES
(1) Commercial/office development in Residential (Group A) Zone is not permitted unless parking and loading requirements per the relevant Town Planning Guidelines are satisfied. (The Good Luck Case)
(2) Office development in Residential Group (A) zones may be supported if such development is environmentally more acceptable than a mixed commercial/residential development, even if the former may lead to certain loading/unloading problems. (The Yiu Cho Investment Case)
OFFICE DEVELOPMENT IN RESIDENTIAL (GROUP A) ZONE
Commercial/office development in Residential (Group A) Zone is not permitted unless parking and loading requirements per the relevant Town Planning Guidelines are satisfied. (The Good Luck Case)
TEMPLE DEVELOPMENT IN RESIDENTIAL (GROUP A) ZONE
(1) An 'unauthorized use' existing at the time of application should not
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Town Planning in Hong Kong: A Review of Planning Appeal Decisions
prejudice its chance of obtaining planning permission. (The Yolanda Fan Case)
(2) 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)
CONVERSION OF PARKING SPACES TO RETAIL PURPOSES IN RESIDENTIAL (GROUP B) ZONES
Conversion of parking spaces in Residential (Group B) Zone is generally not permitted in locations with parking problems. (The On Luk Tong Case)
MINOR RELAXATION OF PLOT RATIOS IN RESIDENTIAL (GROUP B) ZONES
'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)
MINOR RELAXATION OF PLOT RATIOS IN RESIDENTIAL (GROUP C) ZONES
(1) 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)
(2) 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)
(3) 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)
Rules Laid down in Appeal Cases
TEMPORARY STORAGE OF BUILDING MATERIALS IN AGRICULTURE ZONE
57
(1) The onus of demonstrating that an application is consistent with the planning intention and relevant Town Planning Board Guidelines is on the appellant. (The Connie Law Yuk Wah Case)
(2) 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)
TEMPORARY WORKSHOP AND OPEN STORAGE USES IN RESIDENTIAL (GROUP D) ZONE
о (1) 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]
(2) 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)
TEMPORARY OPEN STORAGE OF CONTAINERS IN UNDETERMINED USE ZONES
(1) Award of costs to 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)
(2) 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
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Town Planning in Hong Kong: A Review of Planning Appeal Decisions
existing use site, rather than the proposed levels applied for in the s. 16 application. (The Container System Case)
TEMPORARY OFFICE DEVELOPMENT IN DPA PLAN
(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 (a) the applicant complies with the planning conditions for the original permission; (b) no new structures are proposed, or permitted structures are existing; and (c) the renewed permission allows the proposed use to be viable. (The Arzignano Leather Case)
DEVELOPMENT IN G/IC ZONES
(1) Private development in G/IC zones even without government programme of resumption or development is generally disallowed (where there is justification from the point of view of 'balanced development'). (The Full Look Case)
(2) Development bulk in G/IC zones needs to take into account the build forms in the vicinity (even where there was no building height or plot ratio restriction in the OZP). (The Full Look Case)
(3) The function of the Town Planning Appeal Board is to decide, from a planning point of view, whether 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)
(4) That an applicant or appellant has not objected to a statutory town plan shall not in any way prejudice him/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)
(5) The specific administrative zoning in the Layout Plan defines the planning intention of a statutory zone in the OZP. (The Ng Siu Wing Case)
(6) Planning permission should be granted unless there are good reasons
for refusal. (The Fine Tower Case)
(7) The Appeal Board were, of course, entitled to disagree with the
Rules Laid down in Appeal Cases
59
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)
(8) 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)
DEVELOPMENT IN GREEN BELTS
о
Application for private development on the Crown land in the Green Belt will not generally be entertained if the development has no public interest contribution. (The Bowen Road Case)
[Entirely wrong, contradicts the Naturaluck and Lai Sun Development cases.]
COLUMBARIUM USES
(1) A commercially run and a large-scale columbarium is not compatible
with surrounding agricultural uses. (The Treasure Base (2) Case)
(2) A columbarium is not an ancestral hall. (The Treasure Base (2)
Case)
(3) It is not against human rights to restrict burial rights on Block
Crown lease to indigenous villagers. (The Treasure Base (2) Case)
(4) A Certificate of Exemption in respect of buildings to be used for non-industrial purposes does not cover the construction of a columbarium. (The Treasure Base (2) Case)
DEVELOPMENT IN VILLAGE TYPE DEVELOPMENT (V) ZONES
(1) The planning intention for Village Type Development (V) zones is
for orderly small house development. (The Shell Hong Kong Case)
(2) Open storage of building materials is not compatible with a Village
Type Development (V) Zone. (The Ever Need Case)
PETROL FILLING STATION (PFS) DEVELOPMENT IN VILLAGE TYPE DEVELOPMENT (V) ZONES
(1) Petrol filling stations shall not be allowed in V zones with traffic
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Town Planning in Hong Kong: A Review of Planning Appeal Decisions
problems and planning intention for small house development. (The Shell Hong Kong Case)
(2) Even if the subject site is zoned 'V', it does not imply that a PFS will necessarily be incompatible as PFS is a permissible (Column 2) use. [The Naturaluck Case, compare the ruling of the Appeal Board in the Shell Hong Kong case (11/93).]
(3) Even if the subject site is not ideal but merely suitable for a PFS, permission should not be refused in the absence of evidence that 'permission would cause demonstrable harm to interests of acknowledged importance'. (The Naturaluck Case)
(4) A PFS is not necessarily an urban commercial use. (The Naturaluck
Case)
PETROL FILLING STATION (PFS) DEVELOPMENT IN UNSPECIFIED USE ZONES IN IDPA/DPA PLANS
(1) Even if the subject site is zoned 'V', it does not imply that a PFS will necessarily be incompatible as PFS is a permissible (Column 2) use. [The Naturaluck Case, compare the ruling of the Appeal Board in the Shell Hong Kong case (11/93)].
(2) Even if the subject site is not ideal but merely suitable for a PFS, permission should not be refused in the absence of evidence that 'permission would cause demonstrable harm to interests of acknowledged importance.' (The Naturaluck Case)
(3) A PFS is not necessarily an urban commercial use. (The Naturaluck
Case)
CAR-REPAIRING
(1) The onus of proving that an application has no adverse impact is on the applicant/appellant, not on part of government. (The Leung Wing- nin Case)
(2) It is the Town Planning Board which approves or rejects planning applications, not the District Planning Officer. (The Wong Yee Fai (1) Case)
(3) Where an application is rejected on both fundamental grounds (such as planning intention and land use compatibility) and technical grounds, if the technical concerns are satisfactorily dealt with on resubmission, the application may or may not succeed depending on
Rules Laid down in Appeal Cases
о
61
whether the more fundamental objections can be overcome. (The Wong Yee Fai (1) Case)
(4) 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)
(5) 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)
(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)
(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) (para. 19)
CAR-REPAIRING IN OPEN STORAGE ZONES
(1) The onus of proving that an application has no adverse impact is on the applicant/appellant, not on part of the government. (The Leung Wing-nin Case)
(2) 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)
CAR-REPAIRING IN UNSPECIFIED USE ZONES IN IDPA/DPA
PLANS
(1) It is the Town Planning Board which approves or rejects planning applications, not the District Planning Officer. (The Wong Yee Fai (1) Case)
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Town Planning in Hong Kong: A Review of Planning Appeal Decisions
(2) The onus of proving that an application has no adverse impact is on the applicant/appellant, not on part of the government. (The Wong Yee Fai (1) Case)
(3) Where an application is rejected on both fundamental grounds (such as planning intention and land use compatibility) and technical grounds, if the technical concerns are 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)
(4) 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)
WAREHOUSE DEVELOPMENT IN UNSPECIFIED USE ZONES IN IDPA/DPA PLANS
о
(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 trustworthiness of an applicant as regards his proposed use is a relevant consideration in deciding a planning application or appeal. (The Tong Kam Wong Case)
[Definitely wrong, cf. the Henderson case.]
(3) No planning permission is required for the maintenance, repair or demolition of existing structures, which have become vacant, for a once abandoned use. (The Tong Kam Wong Case)
(4) Two questions shall be asked in deciding an application for warehouses or parking spaces in the rural areas, namely: (a) Was the use applied for consistent with the planning intention to permit the proposed change in user of the Crown lease? (b) Was the proposed user compatible with its rural environment? (The Lee Yiu Kam Case)
(5) The Appeal Board has no power to remit a dispute whether an application is for a temporary 3-year or a 1-year permission to the Town Planning Board. (The Arzignano Leather Case)
(6) Renewal of temporary permission for a use, to be accommodated in structures, in a DPA Plan shall be granted only if (a) the applicant complies with the planning conditions for the original permission;
Rules Laid down in Appeal Cases
о
63
(b) no new structures are proposed, or permitted structures are existing; and (c) the renewed permission allows the proposed use to be viable. (The Arzignano Leather Case)
(7) 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)
[Definitely correct, a matter of written law.]
(8) 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 to decide an appeal on the assumption that certain uses material to the application are ‘existing uses' and that the Appeal Board is satisfied with the evidence adduced by the appellant. (The Cheung Hing Lung Case)
(9) '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 or appellant. (The Cheung Hing Lung Case)
(10) The Appeal Board 'cannot allow a fait accompli to force us in granting permission which would otherwise not be granted' in which the site could no longer be useful for a use that is consistent with the 'planning intention'. (The Cheung Hing Lung Case)
OPEN STORAGE OF CONTAINERS IN UNSPECIFIED USE ZONES IN IDPA/DPA PLANS
о
Planning applications for uses which are unauthorized developments under planning enforcement legislation should be turned down; not even temporary permission should be granted as such ad hoc uses would dictate the land use of the area. (The Shun Fat Container Case)
OPEN STORAGE OF CONTAINERS IN UNDETERMINED USE ZONES IN OZPS
(1) Award of costs to successful party should not generally 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)
64
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Town Planning in Hong Kong: A Review of Planning Appeal Decisions
(2) 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)
OPEN STORAGE OF BUILDING MATERIALS IN UNSPECIFIED USE ZONES IN IDPA/DPA PLANS
о (1) Planning applications for uses which are unauthorized developments under planning enforcement legislation should be turned down; not even temporary permission should be granted as such ad hoc uses would dictate the land use of the area. (The Ever Need Case)
(2) The fact that an area has been substantially degraded by unauthorized development since publication of the interim DPA Plan is no argument for allowing the appellant's application. (The Ever Need Case)
[Doubtful. If the situation is not reversible, this surely will have some bearing on a properly planned alternative as long as it is not explicitly ruled out by the relevant plan.]
(3) Where (a) an appellant cannot overcome the fundamental objection, namely that the application is inconsistent with the 'planning intention' of the statutory plan, and (b) the appellant does not advance any 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)
OPEN-AIR PARKING IN UNSPECIFIED USE ZONES IN IDPA/DPA PLANS
Two questions shall be asked in deciding an application for warehouses or parking spaces in the rural areas, namely: (a) was the use applied for consistent with the planning intention to permit the proposed change in use of the Crown lease? (b) Was the proposed user compatible with its rural environment? (The Lee Yiu Kam Case)
Rules Laid down in Appeal Cases
OPEN-STORAGE OF VEHICLES AND VEHICLE PARTS/ OPEN-AIR VEHICLE REPAIRS IN IDPA/DPA PLANS
65
(1) It is the Town Planning Board which approves or rejects planning applications, not the District Planning Officer. (The Wong Yee Fai (1) Case)
(2) Where an application is rejected on both fundamental grounds (such as planning intention and land use compatibility) and technical grounds, if the technical concerns are 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)
(3) 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)
OPEN STORAGE OF BUILDING MATERIALS IN AGRICULTURE ZONE
(1) The onus of demonstrating that an application is consistent with the planning intention and relevant Town Planning Board Guidelines is on the appellant. (The Connie Law Yuk Wah Case)
(2) 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)
OPEN STORAGE IN RESIDENTIAL (GROUP D) ZONE
о
(1) 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]
(2) "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
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Town Planning in Hong Kong: A Review of Planning Appeal Decisions
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)
REDEVELOPMENT AND MAINTENANCE
No planning permission is required for the maintenance, repair or demolition of existing structures, which have become vacant, for a once abandoned use. (The Tong Kam Wong Case)
SMALL HOUSE DEVELOPMENT
о
о
о
(1) Ad hoc development proposals in 'unspecified areas' in IDPA or DPA Plans shall generally be not permitted (in order not to pre- empt the options open to the planner in the preparation of the OZP). (The Yuen To-shing and Yuen Shu-ling Cases)
(2) Petrol filling stations shall not be allowed in V zones with traffic problems and planning intention for small house development. (The Shell Hong Kong Case)
(3) 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)
(4) 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)
(5) The specific administrative zoning in the Layout Plan defines the planning intention of a statutory zone in the OZP. (The Ng Siu Wing Case)
(6) Small houses should not be permitted in agricultural zones. (The
Jetway Civil Case)
[Entirely wrong. That is a Column 2 use.]
(7) 'When considering whether an intended development is consistent with the planning intention, one should not have regard only to the
Rules Laid down in Appeal Cases
67
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.' (The Jetway Civil Case) [underline mine]
[Definite wrong. This does not involve ‘excessive development'.]
SMALL HOUSE DEVELOPMENT IN AGRICULTURAL ZONES IN OZPS
о
(1) Small houses should not be permitted in agricultural zones. (The
Jetway Civil Case)
(2) '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.' (The Jetway Civil Case) [underline mine]
SMALL HOUSE DEVELOPMENT IN UNSPECIFIED USE ZONES IN IDPA/DPA PLANS
Ad hoc development proposals in 'unspecified areas' in IDPA or DPA Plans generally shall not be permitted (in order not to pre-empt the options open to the planner in the preparation of the OZP). (The Yuen To-shing and Yuen Shu-ling Cases)
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Town Planning in Hong Kong: A Review of Planning Appeal Decisions
RESIDENTIAL DEVELOPMENT (INCLUDING SMALL HOUSES) IN UNSPECIFIED USE ZONES IN IDPA/DPA PLANS
о
(1) 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) Case)
(2) Ad hoc development proposals in 'unspecified areas' in IDPA or DPA Plans generally shall not be permitted (in order not to pre- empt the options open to the planner in the preparation of the OZP). (The Yuen To-shing and Yuen Shu-ling Cases) [small houses]
(3) Possible resumption of parts of the land under a planning application is a relevant factor for dismissing that planning application. (The Ultra Force Case)
(4) Unsatisfactory or inadequate provision of emergency vehicular access should be a reason for dismissing an application in the New Territories. (The Ultra Force Case)
(5) Favourable impact assessment accepted by the government is a pre-condition, not a planning condition, for successful planning applications. (The Ultra Force Case)
(6) 400 kV pylons are major planning constraints. (The Ultra Force
Case)
(7) The unattractiveness and heights of noise barriers by themselves should not preclude granting planning permission. (The Ultra Force Case)
(8) 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)
(9) 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.' (para. 6) (square brackets mine) (The Henderson Case)
(10) '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,
Rules Laid down in Appeal Cases
69
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, underline and square brackets mine) (The Henderson Case)
(11) 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 (3)) This is so notwithstanding that the DPA is known to be replaced by an OZP during the appeal hearing. (The Henderson Case) (italics mine]
(12) In considering an application, the Town Planning Board should not suppose that it is up to the applicant to prove his 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)
(13) 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)
(14) 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)
(15) '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)
(16) Land exchange is irrelevant as regards 'land use' in the context of
the Town Planning Ordinance. (The Henderson Case)
(17) 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:
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Town Planning in Hong Kong: A Review of Planning Appeal Decisions
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.' (The Henderson Case)
(18) 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)
(19) The normal practice of the Appeal Board is not to make orders as to
costs. (The Henderson Case)
(20) 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)
(21) For considering traffic impact, the carrying capacity of major external
link is a relevant factor. (The Sun Link Investment Case)
(22) 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)
(23) 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)
(24) 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)
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71
(25) 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)
(26) 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)
(27) Where a planning intention has more than one dimension, a proposal shall not be approved even if one of the dimensions is not suitable or possible. (The Charming City Case)
(28) Where a planning intention has two dimensions, a proposal shall be approved if (a) one of the dimensions is unsuitable or impossible; and also (b) there is no other objection to the proposal. (The Charming City Case)
(29) 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 it is not expressed in the Notes or Explanatory Statement to the DPA Plan. (The Charming City Case)
(30) 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)
(31) A large-scale residential development in a DPA Plan shall not generally be approved for that will prejudice the future zoning in the OZP. (The Planet Universal and Delight World Cases)
(32) '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)
(33) That an appellant has made an objection to a new zoning, which is against his/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)
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(34) 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 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)
(35) '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)
(36) 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)
(37) '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)
DEVELOPMENT IN UNSPECIFIED USE AREAS IN IDPA OR DPA PLANS: GENERAL POSITIONS
[Rules (20) and (37) are in conflict.]
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(1) 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) Case)
(2) Planning application made after enforcement action is threatened should not be allowed in principle in order that unauthorized operators are not allowed to dictate future land uses in 'unspecified use' areas. (The Kingspeed Engineering and Kun Kee Motor Cases)
(3) Ad hoc development proposals in 'unspecified areas' in IDPA or DPA Plans generally shall not be permitted (in order not to pre- empt the options open to the planner in the preparation of the OZP). (The Yuen To-shing and Yuen Shu-ling Cases)
(4) Possible resumption of parts of the land under a planning application is a relevant factor for dismissing that planning application. (The Ultra Force Case)
(5) Unsatisfactory or inadequate provision of emergency vehicular access
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should be a reason for dismissing an application in the New Territories. (The Ultra Force Case)
(6) Favourable impact assessment accepted by the government is a pre-condition, not a planning condition, for successful planning applications. (The Ultra Force Case)
(7) 400 kV pylons are major planning constraints. (The Ultra Force
Case)
(8) The unattractiveness and heights of noise barriers by themselves should not preclude granting planning permission. (The Ultra Force Case)
(9) The cumulative environmental impact of permitting a proposal is more important than the impact of the proposal in isolation. (The Kingspeed Engineering and Kun Kee Motor Cases)
(10) A commercially run and a large-scale columbarium is not compatible
with surrounding agricultural uses. (The Treasure Base Case)
(11) It is not against human rights to restrict burial rights on Block
Crown lease to indigenous villagers. (The Treasure Base Case)
(12) A Certificate of Exemption in respect of buildings to be used for non-industrial purposes does not cover the construction of a columbarium. (The Treasure Base (2) Case)
[Definitely wrong, op. cit. A columbarium is literally and in substance 'non-industrial'.]
(13) The plan making functions belong to the Town Planning Board, not
the Planning Department. (The Henderson Case)
(14) 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)
(15) 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)
(16) 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
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not like or agree with the applicable plan.' (para. 6) (square brackets mine) (The Henderson Case)
(17) '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) (The Henderson Case)
(18) 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 (3)) This is so notwithstanding that the DPA is known to be replaced by an OZP during the appeal hearing. (The Henderson Case) [italics mine]
(19) In considering an application, the Town Planning Board should not suppose that it is up to the applicant to prove his 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)
? (20) 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)
(21) 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)
(22) '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)
(23) Land exchange is irrelevant as regards 'land use' in the context of
the Town Planning Ordinance. (The Henderson Case)
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75
(24) 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.' (The Henderson Case)
(25) 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)
(26) The normal practice of the Appeal Board is not to make orders as to
costs. (The Henderson Case)
(27) A PFS is not necessarily an urban commercial use. (The Naturaluck
Case)
(28) The entry of a use in Column 2 of a zone implies that this specific
use is compatible with the adjoining zones. (The Naturaluck Case)
(29) 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 Naturaluck Case) (Compare with the Treasure Base (2) and the Henderson Cases)
(30) Even if a site is not ideal but merely suitable for a Column 2 use, permission should not be refused in the absence of evidence that 'permission would cause demonstrable harm to interests of acknowledged importance'. (The Naturaluck Case)
(31) Facts and reasons stated in Town Planning Board Papers are relevant considerations for the Appeal Board. (The Naturaluck Case)
(32) As a matter of policy, planning applications for uses which are unauthorized developments under planning enforcement legislation should be turned down; not even temporary permission should be granted as such ad hoc uses would dictate the land use of the area. (The Shun Fat Container and Ever Need Cases)
(33) 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 was delivered within the time limit, even though the Appeal
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Board actually received it after the deadline. (The Shun Fat Container Case)
(34) 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)
(35) The fact that an area has been substantially degraded by unauthorized development since the publication of the interim DPA Plan is no argument for allowing the appellant's application. (The Ever Need Case)
(36) 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)
(37) The trustworthiness of an applicant as regards his proposed use is a relevant consideration in deciding a planning application or appeal. (The Tong Kam Wong Case)
[Conflicting with rule (20).]
(38) No planning permission is required for the maintenance, repair or demolition of existing structures which have become vacant for a once abandoned use. (The Tong Kam Wong Case)
(39) Two questions shall be asked in deciding an application for warehouses or parking spaces in the rural areas, namely: (a) Is the use applied for consistent with the planning intention to permit the proposed change in user of the Crown lease? (b) Was the proposed user compatible with its rural environment? (The Lee Yiu Kam Case)
(40) 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)
(41) For considering traffic impact, the carrying capacity of major external
link is a relevant factor. (The Sun Link Investment Case)
(42) 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)
(43) It is the Town Planning Board which approves or rejects planning applications, not the District Planning Officer. (The Wong Yee Fai (1) Case)
(44) The onus of proving that an application has no adverse impact is on
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77
the applicant or appellant, not on part of the government. (The Wong Yee Fai (1) Case)
(45) Where an application is rejected on both fundamental grounds (such as planning intention and land use compatibility) and technical grounds, if the technical concerns are 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)
(46) 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)
(47) 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 later 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)
(48) 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)
(49) 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)
(50) 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)
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(51) Where a planning intention has more than one dimension, a proposal shall not be approved even if one of the dimensions is not suitable or possible. (The Charming City Case)
(52) Where a planning intention has two dimensions, a proposal shall be approved if (a) one of the dimensions is unsuitable or impossible; and also (b) there is no other objection to the proposal. (The Charming City Case)
(53) 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 it is not expressed in the Notes or Explanatory Statement to the DPA Plan. (The Charming City Case)
(54) Though the Town Planning Board may have permitted or proposal a proposed 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)
(55) A large-scale residential development in a DPA Plan shall not generally be approved for it will prejudice future zoning in the OZP. (The Planet Universal and Delight World Cases)
(56) "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)
(57) An appellant has made an objection to a new zoning, which is against his/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.
(58) 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 Case)
(59) '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)
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(60) 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)
(61) '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)
(62) The Appeal Board has no power to remit a dispute whether an application is for a temporary 3-year or a 1-year permission to the Town Planning Board. (The Arzignano Leather Case)
(63) Renewal of temporary permission for a use (to be accommodated in structures) in a DPA Plan shall be granted only if (a) the applicant complies with the planning conditions for the original permission; (b) no new structures are proposed, or permitted structures are existing; and (c) the renewed permission allows the proposed use to be viable. (The Arzignano Leather Case)
(64) 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)
(65) 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)
(66) 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)
(67) '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 or appellant. (The Cheung Hing Lung Case)
(68) The Appeal Board 'cannot allow a fait accompli to force us in granting
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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)
4
PLANNING APPEAL CASES
THE ALTICOSMIC CASE
•
•
Case Name: 21-27 Sha Tsui Road, Tsuen Wan Inland Lot (TWIL) 32, Section A, Tsuen Wan (the subject site) [the Alticosmic Case]
Planning Appeal Case No. : 01/91
"
Similar Cases: case nos. —, 02/92, 03/92, 12/96 [the, Conduit Road, Wo Yi Hop Road and Rightlane Investment Cases] regarding relaxation of plot ratios in general;
03/92 [the
"
industrial plot ratios;
>
Wo Yi Hop Road Case] regarding relaxation of
03/92, 05/92, 02/94, 12/94, 21/95, 22/95 and 28/95 [the, Wo Yi Hop Road, OTB, So Cho Cheung, Lai Sun Development, Cheung Hing Lung, Lucky Gain and Fine Tower Cases] regarding application in Industrial Zones;
03/92, 12/92, and 11/93 [the, Wo Yip Hop Road, Good Luck and Shell Hong Kong Cases] regarding impact of goods vehicle traffic;
>
02/92, 03/92, 04/92, 13/93, 08/96, 12/96 [the, Conduit Road, Wo Yi Hop Road, Henderson, Leung Wing-nin and Rightlane Investment Cases] regarding location of planning intention (in Notes of statutory plans);
13/93 [the
Henderson Case] regarding location of planning intention (in the Town Planning Board Guidelines);
02/92, 03/92, 07/92, 13/93, 10/94, 02/95, 05/95, 07/95, 08/95 [the Conduit Road, Wo Yi Hop Road, Full Look, Henderson (not), Sun Link Properties, Charming City, Planet Universal, Delight World, Yin Ning Savings Cases] regarding excessive development intensity.
>
82
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Nature of the Case: minor relaxation of industrial plot ratio stipulated in OZP; ancillary office use in Industrial Zone; Buildings Ordinance; interpretation of Notes of OZP, planning intention, Town Planning Board Guidelines and implications of building plans approved before gazette date of OZP — existing uses; possible use of planning conditions or lease conditions.
Date of s. 16 application: 5 March 1991
Date of Hearing: 2, 3 and 5 March 1992
• Date of Decision: 14 March 1992
•
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Miss V. Patel for the Town Planning Board (b) Andrew Jean and Associates for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) Application for 'ancillary office' use in Industrial Zones would not
normally be entertained for buildings not yet in existence.
(b) '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 gazette of the OZP even though that plot ratio may still be achieved without planning permission.
[It is arguable that there was in fact no need for the appellant to obtain planning permission in the first place.]
Background:
The subject site fell within an Industrial Zone in the draft Tsuen Wan Outline Zoning Plan No. S/TW/5 (the OZP) which was published in the gazette on 19 October 1990. In the Notes to the OZP, the maximum plot ratio for 'any new building and any addition, alteration and/or modification to the existing building' was '9.5 or the plot ratio of the existing building whichever is the greater' although 'minor relaxation of the stated restriction
may be considered' on individual merits of each case.
The appellant, Alticosmic Ltd., had obtained building approval for the construction of a 26-storey non-domestic building (godown) achieving a plot ratio of 14.77 in June 1990 when the statutory plot ratio limit was 15. In an earlier application approved on 7 March 1989, the maximum plot ratio of 15 had been approved.
In March 1991, the appellant made a s. 16 application for permission
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(a) to have the top 7 floors of the godown building designated for office use as 'ancillary office' and (b) to build to a plot ratio of 15. The Town Planning Board rejected the application in the s. 16 and s. 17(a) procedures.
Arguments:
The appellant argued that:
(a) as regards the office use, the business trend in Hong Kong was against basic industrial operations, many manufacturing processes took place in China and it promoted efficiency to have storage of goods produced in China, repacking and re-export management all occurring under one roof;
(b) as regards the relaxation of plot ratio, it was just a minor relaxation from the plot ratio of 14.77 already approved by the Building Authority to 15. In an earlier building application, a plot radio of 15 had been approved by the same authority.
Reasons for Decision:
The Appeal Board negated both grounds of the appellant and dismissed the appeal.
No Assurance That Office Use Was Ancillary
As regards office use, the Appeal Board considered that the appellant had admitted to the District Planning Officer the seven floors for 'ancillary office' could be independently used. For example, they [the appellant's architects] said that in the event of sale of the development, their client the developer would "give priority" to purchasers who brought the warehouse units in the lower floors and certain categories of commercial uses such as "doctors, retailers, barber shops etc." would be excluded.' (para. 11) The Appeal Board, however, considered that '[T]his in no way gives assurance that the use of the office floors would be ancillary to the industrial use of the building.' (para. 11) The Appeal Board ignored two examples within the same planning area advanced by the appellant where applications for 'ancillary office uses' were successful. The reason was that 'these related to existing buildings where the prospective use could more easily be ascertained than in the circumstances of the present case'. (para. 11)
Plot Ratio Relaxation Was Not Minor as There Was No Existing Building of Plot Ratio 14.77
As regards the relaxation of plot ratio, the Appeal Board formed the view that the extent of relaxation should be measured by comparing the 15 applied for to 9.5 stated in the Notes of the OZP rather than to 14.77 approved by the Building Authority. The plot ratio of 14.77 was said to be 'irrelevant' as 'there was plainly no “existing building" on the site at the
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time the s. 16 application was made.' (para. 10) The Appeal Board considered that 'while the Town Planning Board was powerless to prevent the Appellant from building to a plot ratio of 14.77 in accordance with plans already approved by the Building Authority, it could not lawfully disregard its own Notes (which form part of the draft plan) when it entertained the Appellant's application under section 16.' (para. 10)
• Comments:
Why Was Plot Ratio Control Incorporated in the OZP? Environmental Protection
The substantive planning grounds for the stipulation in an OZP of a maximum plot ratio lower than that according to the prevailing Building Regulations are based on environmental grounds. This is stated in the Explanatory Statement of the OZP. The validity of imposing plot ratio controls in a statutory town plan was affirmed in the Crozet and CC Tse cases. As industrial pollution, such as air, noise water and traffic, is a function of floor space, imposing a cap on the maximum floor space operated through plot ratio reduction should be beneficial to controlling pollution loads. In the Tsuen Wan New Town, the aforesaid categories of pollution have been severe. Plot ratio control as such, in terms of the jargons of the Metroplan, is a statutory district planning method for implementing the regional policy of 'thinning out' industries for an area affected by serious pollution.
Why Were There Regulations on Ancillary Office Use in Industrial Buildings?
The control of ‘ancillary office' arose as a response to the proliferation of uses, such as commercial and office uses, perceived by the Lands Authority to be unrelated to true industrial purposes. This therefore constitutes a breach of the user condition of the lease for industrial lots. If substantiated, this would mean not only a compromise of government revenue, as the premiums and rates for industrial land are lower than those for commercial or office users, but there would also be a mixing of industrial and non- industrial activities -- which can be undesirable from the planning point of view. One key problem is the generation of much private passenger traffic. However, the policymaker does feel that ‘a reasonable amount of office uses ancillary to industrial purposes, called ‘ancillary office' uses, should be allowed. Originally, the percentage was 30 but since September 1997, this has been raised to 50%. Such percentages are laid down in the 'Lands Instructions' (an internal document for the Lands Department) and the Town Planning Board Guidelines, which are available to the public. Planning permission for office use other than ancillary office is commonly found in Column 2 for Industrial Zones in OZPs. Planning
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permission for 'ancillary office' use is said to be necessary by the Town Planning Board Guidelines where it exceeds the prescribed percentages. The typical applicants are those advised by the Lands Department that their office uses contravening the lease can be ‘regularized' by a planning application.
The key cases of office uses in industrial lots are the Mexx and Cavendish cases.
Based on my own experience, lease enforcement actions sometimes disregard the true construction of the conditions or terms of the lease.
Efficacy of Plot Ratio Control as an Environmental Planning Tool
Note, however, that plot ratio control is just a proxy for pollution; it does not directly control the actual operation or intensity of industrial activities on the approved floor space. Direct controls are imposed by various environmental protection ordinances drafted by the Environmental Protection Department. The true intended use of plot ratio control in an OZP for an established industrial area such as Tsuen Wan is to regulate redevelopment of factories, as existing ones (which may or may not be at a higher plot ratio) are not affected by the OZP as 'existing uses'. The planner's good intention to improve local environment through plot ratio control alone, is, however, a conjecture at best. The strategic planner's plea for exchange of development rights lost by proprietors as a result of 'thinning out' was snipped by the Lands Authority when various imaginative 'urban restructuring' approaches were proposed in the late 1980s. Under these circumstances, proprietors who have been adversely affected will have no incentive to redevelop for industrial purposes at a lower plot ratio, at a financial loss uncompensated under the existing Town Planning Ordinance. Those who have not maximized (say having an existing plot ratio of 3) may intensify the plot ratio to the statutory maximum. The more commonly used alternative is to lobby for changing 'Industrial' uses to the more lucrative 'Residential' uses, after having failed to make a successful objection to the draft plan when it was published in the gazette.
Was There Really No Assurance of Ancillary Use?
The Appeal Board's reason regarding giving assurance of actual ancillary use seems to invoke the concept of credibility or honesty of the appellant, though it is based on whether or not a factory building really exists. This view is not entirely reasonable as it makes no reference to how such ancillary office use, if approved, can possibly be assured by proper planning conditions. These conditions may stipulate the exact extent and nature of the use in the Crown lease conditions where lease modification is required. While it is true that the Ordinance does not provide for statutory enforcement in areas previously not covered by IDPA plans (such as those
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
in urban areas), indirect but no less enforcement can be achieved via the stipulation of conditions which can be enforced by lease or other law, notably environmental protection ordinances. It seems that it is only where assurance of a validly applied use entails a condition that is impossible, unreasonable, unrelated to the application itself, or beyond the authority of the Town Planning Board, the Appeal Board's view is clear. For instance, the only way to assure ancillary office use is through lease control. However, the lease is unrestricted as far as office use is concerned. If there is no need for a lease modification to help materialize redevelopment, it may be impossible to impose a planning condition to guard against office use. Unfortunately, the Appeal Board was not invited to deal with these situations. For further arguments, see the Wo Yi Hop Road case in which the issue of unrestricted lease seems to lead to a similar Appeal Board decision.
What Did the Appeal Board Decision Achieve from a Planning Point of View?
It is reasonable to think that the proposed plot ratio of 15 has to be compared with the OZP-stipulated plot ratio of 9.5 when deciding on whether the relaxation is 'minor'. However, is it reasonable to dismiss the 14.77 as irrelevant? If the appellant has no right to develop up to 14.77, this will be a case arising entirely from an interpretation of the Notes. However, if it is considered from a pragmatic point of view and regardless of the property rights of the appellant, the Appeal Board's decision does not offer a public option between an industrial building of 9.5 plot ratio and one of 14.77. As the Appeal Board indicated, there was nothing that one could do to stop the developer from developing an industrial building at a plot ratio of 14.77. A 26-storey industrial building could still be built notwithstanding the Appeal Board's decision. Therefore, the choice was one between 14.77, as approved by the Building Authority, and 15, as proposed by the appellant. From the perspective of environmental planning, the relevant question should be: is it more desirable to have a 26-storey industrial building or a composite industrial-office building of the same height? As far as air and noise pollution is concerned, a composite building may be more desirable. When considering traffic congestion, it depends on the nature of the industrial and office activities involved. The Appeal Board had not been invited or advised to consider such matters. Furthermore, if the above point about planning conditions was valid, then perhaps the Town Planning Board had failed to consider a means to assure compliance of a possible planning permission.
What Was the True Planning Intention?
The Appeal Board was keen to ensure that the 'intention' of the Town Planning Board as discovered in the relevant Town Planning Board
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Guidelines. 'It is the Town Planning Board's intention that commercial uses should not proliferate in industrial buildings so as to cause unnecessary loss of industrial floor space adversely affecting the efficient operation of the industrial building.' (para. 3 (ii)) It also reckoned that 'the Town Planning Board however recognises that certain types of commercial activity on a limited scale provide a necessary supporting role to industrial undertakings and convenience for workers.' (para. 3 (iii)) It seems the Appeal Board considered that the Town Planning Board would only entertain application for 'ancillary office' uses.
A number of questions arise from this apparent position. To begin with, why should the Town Planning Board include 'office other than ancillary office' in Column 2 in the first place? The Notes form part of the plan and are therefore the planning 'law'. Such law should not be regarded as being altered by an administrative set of 'Guidelines'. Such guidelines should help interpretation of the Notes only. From the Notes, it is patently clear that pure office use, as a matter of kind, may be permitted, however, as a matter of degree or intensity, the extent of such use, is subject to the Guidelines. Secondly, where is 'planning intention' located? The Appeal Board had been advised to follow a statement in the Guidelines. As a result, it emphasized an asserted policy against loss of industrial floor space or proliferation of office uses in an industrial area. This seems that the applicant, who has been alleged by the Lands Department, has contravened an industrial lease as mentioned above. However, what would have been the decision had the same Board's attention been drawn to the fact that industrial plot ratio had been reduced by the OZP from the prevailing 15 to 9.5? The intention behind this plot ratio reduction, as explained in the Explanatory Statement to the OZP and relevant policy papers of the Metroplan, was to reduce pollution or externalities. As the appellant had obtained the right to build to a plot ratio of 14.77, planning permission to allow 7 storeys (plot ratio equivalent to 3.9 assuming an even spread over the 26 storeys) of such a building to become office in lieu of industrial would not have resulted in a material loss of industrial floor space with the new plot ratio of 9.5. The net industrial floor space still stood at a level of 10.87, which is marginally above the 9.5 ceiling. If the real concern was about loss of industrial floor space for the entire industrial area in Tsuen Wan, the Board would face another fundamental question: why was there a blanket reduction of industrial plot ratio for the whole Tsuen Wan area? Surprisingly, the Board had not been advised to consider such relevant questions. While the Appeal Board did touch on matters of substantive planning purposes, it appears that it was more concerned with the legality or validity of building plans approved before the gazette date of the OZP to be existing uses, which were permitted in all zones according to the cover pages of the Notes.
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Relevance of Private Property Rights
It appears that, while the Appeal Board realized property rights of the appellant to build to a plot ratio of 14.77, it was not advised to consider such rights as relevant when evaluating the validity or cost-benefit consequences of the Town Planning Board's decision. The legal point concerning the right to build to a plot ratio of 14.77 (which is not yet exercised before the gazette date of the OZP) is whether such right is regarded as being ‘existing' for the purpose of 'minor' relaxation assessment. If the Board adopts a legal approach that respects private property rights, it may be more ready to affirm this stance. Nor had the Appeal Board been presented with the implications of the fact that the appellant had lost almost 37% of his development rights to build a factory premises, even though the Ordinance did not provide for compensation.
Questions:
1. Why did the appellant not apply for 'office' instead of 'ancillary office'? 2. Was 'ancillary office' a use permitted as a user in the Crown lease? 3. To what extent is it valid that a use permitted by the Crown lease with a building plan approved before a draft OZP comes into existence (which shows or stipulates a different use and/or plot ratio) is ‘an existing use' within the meaning of the OZP?
4. What is the use of the subject site today?
(See Photograph 1)
Suggested Points for Consideration:
The Appeal Board was advised to agree to this argument: as the appellant's approved building of a plot ratio 14.77 was not 'existing' at the time of appeal, it could not assure that the office uses were ancillary. Besides, it was not prepared to compare 14.77 to 15 as a 'minor relaxation' of the plot ratio. I have been informed of legal advice to government departments stating that building plans approved with 2 years of a conflicting OZP are still valid and the use of such buildings, even if they have not been built, are 'existing uses'.
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5 and 9.
Town Planning Board, TPB PG-NO. 3A, "Town Planning Board Guidelines for Office Buildings in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes TPB PG-No. 3 (December 1990) of the same title in force when the case was decided.)
Planning Appeal Cases
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Photograph 1 Subject Site of the Alticosmic Case in May 1998
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Town Planning Board, TPB PG-NO. 4A, "Town Planning Board Guidelines for Application for Composite Industrial-Office Buildings in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes TPB PG-No. 4 (January 1994) Revised version of the same title.)
Town Planning Board, TPB PG-NO. 7A, Town Planning Board Guidelines for Application for Commercial Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes those, TPB PG-Nos. 7 and 9, below in force when the case was decided.)
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Town Planning Board, TPB PG-NO. 7, "Town Planning Board Guidelines for Application for Commercial Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', December, 1990.
Town Planning Board, TPB PG-NO. 9, Town Planning Board Guidelines for Banking Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance,' January 1991. Town Planning Board, TPB PG-NO. 1A, "Town Planning Board Guidelines for Application for Office and Showroom Uses in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes those, TPB PG-Nos. 1 and 6, below in force when the case was decided.)
Town Planning Board, TPB PG-NO. 1, “Town Planning Board Guidelines for Application for Showroom Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', January, 1991.
Town Planning Board, TPB PG-NO. 6, "Town Planning Board Guidelines for Application for Office Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', December, 1990
Cases:
1. Validity of plot ratio control in town plans
Crozet Ltd. v AG HCMP 409/73
CC Tse (Estate) Ltd. v AG HCMP 604/81
Auburntown Ltd. v Town Planning Board Judicial Review No. 222 of
1993
Real Estate Developers' Association of Hong Kong v Town Planning Board MP 2457 of 1995
Wing On Ltd. and Wing On Property and Securities Ltd. v Building Authority MP 1279 of 1996
2. Office uses in industrial buildings/leases
Mexx Consolidated (Far East) Ltd. v Attorney General and Another (High Court Miscellaneous Proceedings No. 2421 of 1986)[1987] HKLR 1210-1220
Cavendish Property Development Ltd. v Attorney General (High Court Miscellaneous Proceedings No. 762 of 1987) [1988] CPR 212-220
Planning Appeal Cases
THE CONDUIT ROAD CASE
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Case Name: 6–10B Conduit Road, Hong Kong Island [the Conduit Road Case]
Planning Appeal Case No.: 02/92
Naure of the Case: Need for s. 16 application, minor relaxation of residential plot ratio stipulated in OZP; s. 16(1) (d) of Buildings Ordinance, regulation 22(2) of Building (Planning) Regulations; bonus plot ratio; interpretation of Notes to OZP and building plans approved before gazette of OZP existing use; ancillary uses; bad precedent
and 03/92 [the Alticosmic,