In passing, the Appeal Board stated that the lease requirement for one parking space per flat was a 'irrelevant point'. 'Incidentally (though it is irrelevant to our decision) the Crown lease relating to the site requires the provision of car parking spaces at the rate of not less than 1 space per flat.' (para. 2)
It is true that the facts and arguments of this case did not involve an analysis of the Crown lease. However, it is submitted, as a matter of general planning policy, that the Crown lease may be highly relevant in this case. As revealed in the OTB case, which was also presided by Mr Tang, the Crown lease under certain circumstances has significant value in the appeal hearing.
If there had been really more than enough parking spaces for the flats as required in the Crown lease, then there could be perhaps a case for the
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appellant. From a planning point of view, advertising such surplus parking spaces for outsiders is equal to using the site as a public carpark. The Appeal Board was not reported to have been advised of the details of the lease, but it is possible that the lease did not permit using the subject site for public car parking and that the Deeds of Mutual Covenant (DMC) did not permit the sale or renting of the parking spaces to outsiders.
What Are Actual Parking and Traffic Implications?
As in the Good Luck case, it is disappointing that for a case which escalated to the Appeal Board was not articulated in technical terms regarding the main issue, i.e. local parking problems. To tackle the issue from the perspective of planning, there was a need to have a joint-consideration of (a) an assessment of the nature of the land uses and their traffic (vehicular and pedestrian) implications; (b) the self-sufficiency of parking for the 24 flats on the site; as well as (c) the practicality of parking restrictions. The reasoning about permitting three other cases (laundry) and rejecting a flower seed store on traffic grounds is intuitively doubtful. As regards the motor appliances shop, a comparative study of the traffic and parking implications of the proposal would be necessary.
Precedents of Little Values
At law, precedents have values for their ratios for identical or similar facts, not just for the results of litigation (safe sentences and award of damages etc.). The precedents in this case should have been investigated regarding their traffic aspects. Yet, the Appeal Board was only advised to pay attention to the success and failure counts.
Cost-Benefit Reasoning Wanted
As for the Appeal Board's decision making process, a relevant economic and social cost-benefit consideration could be on whether the local community should have borne with additional traffic congestion or parking problems (which could have been precluded from Village Road by introducing traffic management measures for the Hong Kong Sanatorium) in order to benefit from these additional facilities. Society runs the risk of overregulation if the objective is to have zero nuisance for a facility. Sadly, the Appeal Board had never been counselled on this Coasian and Posnerian jurisprudential view, which prevails in the law of tort.
Was Regularization of Existing Use Possible?
As evidence admitted to support dismissal of the appeal, reference was made to a precedent which seems to suggest that the use had existed for more than 10 years. The first Wong Nai Chung OZP No. LH/7/6 was published in the gazette on 28 October 1969. Had the relevant building
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been built before 28 October 1969 or any relevant subsequent statutory plan, that use had to be an ‘existing use' and needed no planning permission under the Notes.
Question:
1. What is the use of the carpark now?
(See Photograph 8)
Photograph 8 Subject Site of the On Luk Tong Case in May 1998
•
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapter 6.
THE ULTRA FORCE CASE
Case Name: Lots Nos. 176A and Others in DD 103, Au Tau, Yuen Long, New Territories [the Ultra Force Case]
Planning Appeal Case No.: 15/92
Similar Cases: cases nos.
04/93 and 05/93, 13/93, and 16/93 [the Treasure Base (2), Henderson and Naturaluck Cases] regarding158
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
presumption in favour of development: the rule that 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;
>
05/92,- 18/92, 19/92, 02/93, 04 and 05/93, 13/93, 17/93, 12/94, 05/95, 16/95 and 22/95 [the OTB, Kingspeed Engineering, Kun Kee Motor, Bowen Road, and Treasure Base (2), Henderson, Shun Fat Container, Lai Sun Development, Planet Universal, Arzignano and Lucky Gain Cases] regarding the nature of planning and the market or private interest/public interest;
04/92, 07/92, 10/92,, 04 and 05/93, 13/93, 17/93, 08/95, 16/95, 21/95
and 01/97 [the Sung Dynasty City, Full Look, Treasure Base (1), Treasure Base (2), Henderson, Shun Fat Container, Yin Ning Savings, Arzignano Leather, Cheung Hing Lung and Connie Law Yuk Wah Cases] regarding Town Planning Board or Appeal Board procedures;
>
08 and 09/92, 13/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93,
19/93, 1/94, 5/94, 9/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/ 95, 19/95, and 21/95 [the Yuen To-shing and Yuen Shu-ling, Pak Kong, -, Kingspeed Engineering, Kun Kee Motor Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans;
03/92, 08 and 09/92, 12/92, 14/92, -, 18/92, 19/92, 04 and 05/93, 11/93, 13/93, 14/93, 01/94, 05/94, 10/94, 14/94, 07/95, 08/95 and 22/95 [the Wo Yi Hop Road, Yuen To-shing and Yuen Shu-ling, On Luk Tong, Good Luck, -, Kingspeed Engineering, Kun Kee Motor, Treasure Base (2), Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World, Yin Ning Savings and Lucky Gain Cases] regarding adverse traffic/access problems;
03/92, 07/92,
18/92, 19/92, 13/93, 16/93, 14/94, 28/95 and 04/96 [the Wo Yi Hop Road, Full Look, Kingspeed Engineering, Kun Kee Motor, the Henderson, Naturaluck, Sanyear Investment, Fine Tower, and Container System Cases] regarding adverse environmental impact;
"
11/93, 07/95, and 08/95 [the, Shell Hong Kong, Delight World
and Yin Ning Savings Cases] regarding land resumption;
"
13/93, 14/93, 16/93, 05/95, 07/95, 08/95 [the, Henderson, Yiu Cho Investment, Naturaluck, Planet Universal, Delight World, Yin Ning Savings Cases] regarding the use of planning conditions to overcome potential environmental problems;
04/92, 07/92, 08 and 09/92, -, 18/92, 19/92, 10/94, 05/95, 07/95, 08/95 [the Sung Dynasty City, Full Look, Yuen To-shing and Yuen Shue-ling,
Planning Appeal Cases
•
•
•
159
—, Kingspeed Engineering, Kun Kee Motor, Sun Link Properties, Planet Universal, Delight World, Yin Ning Savings Cases] as regards the meaning of ad hoc and comprehensive development.
Nature of the Case: Unspecified Use Zone, land resumption, drainage impact assessment, island site, emergency vehicular access (EVA), 400kV power pylons, Route 3, Development Permission Area (DPA) Plans, powers of the Appeal Board in amending the Town Planning Board and considering other reasons for rejecting a planning application; the use of planning conditions to overcome potential environmental problems.
Date of s. 16 application: 23 December 1991
Date of Hearing: 15, 16, 19, 23 and 24 March 1993
Date of Decision: 18 April 1993
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Clement K. C. Lo and Company for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) The Appeal Board may take account of the facts that arise after the decision of the Town Planning Board has been made in dismissing an appeal.
(b) The Appeal Board may amend the reason used by the Town Planning
Board in dismissing an appeal.
(c) The Appeal Board may consider reasons not used by the Town Planning Board in dismissing an appeal. In this case, the reason includes EVA, 400 kV power pylons.
(d) Expert statements are relevant though the experts do not appear
before the Appeal Board.
(e) Possible resumption of parts of the land under a planning application
is a relevant factor for dismissing that planning application.
(f) 400 kV pylons are major planning constraints.
(g) The unattractiveness and heights of noise barriers by themselves should
not preclude granting planning permission.
(h) Favourable impact assessment accepted by the government was a pre- condition, not a planning condition, for successful planning applications. (i) The burden of supporting an application is on the applicant.
(j) There is no presumption in favour of development for private projects.
Background:
The subject site consisted of a number of agricultural lots and a parcel of
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5713.5 m2 land, on which a two-storey residential development on 392.5 m2 (exclusive of car parks) was permitted, under Block Crown lease. It fell within an 'Unspecified Use Area' Zone in the draft Kam Tin North Interim Development Permission Area Plan No. DPA/YL-KTN/1 (the IDPA Plan) which was published in the gazette on 12 July 1991. As regards 392.5 m2 land, the Crown Lease also required a minimum of two car parking spaces to be provided and a set-back for road widening purposes. The subject site is located about 120 metres to the east of Au Tau Roundabout. Part of the site fronts onto Kam Tin Road to the south. In the Notes to the IDPA Plan, residential use was not permitted except with permission from the Town Planning Board. The ‘Unspecified Use Area' Zone was subdivided into several sub-areas, each having specific planning intentions. The subject site fell within the Cheung Chun San sub-area. For this sub-area, the planning intention, as explained in the Explanatory Statement to the IDPA Plan, was to encourage agricultural use (especially pond fishing) and recreational uses (including ancillary facilities).
The appellant made an application for the permission to build 88 duplex apartments in 44 'four-storey' town house style buildings with a total domestic Gross Floor Area (GFA) of approximately 12 411.7 m2. Each unit has an average size of 141 m2 GFA. The application was rejected in the first instance and again in the s. 17 review hearing. The proposal also included residential car parking space provision of 1.5 per unit (i.e. 132 spaces in total), 6 visitors' parking spaces and one loading/unloading parking space. The designed population was 325 persons. The open space to be provided would be in the region of 5500 m2. Such space would include a swimming pool, a tennis court, landscaped gardens and children's play area. The proposal was incorporated by a master layout plan (MLP). The MLP sought to accommodate various planning constraints confronting the subject site. These constraints (and response to them) included: (a) the proposed alignment of Route 3 (which led to a design response of imposing a 40-m non-building area on the northern portion of the site);
(b) the possible widening of Kam Tin Road (which entailed for the layout
design a 20-m non-building area on the southern side of the site); (c) the twin 400 kV power pylons that traversed the site (which dictated
that the area beneath could not be developed for residential uses); (d) traffic noise from the future Route 3 and Kam Tin Road (which led to a layout design to locate noise-sensitive uses away from noise sources and the proposal for the erection of noise barrier of ranging 5 m to 9.5 m in height).
The Town Planning Board rejected the application and affirmed its decisions in the review.
Shortly after these decisions, the government published new alignment
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proposals of Route 3. The latest plan before the appeal showed an alternative alignment for a slip road from Route 3. In the earlier proposal, taken into account by the appellant, the slip road (the old slip road) would run along the north-eastern boundary of the site to the Au Tau Roundabout, then loop back to join Kam Tin Road. In the latest proposal, this slip road had been replaced by one which would cut across more of the subject site.
Arguments:
The appellant argued that:
(a) the proposed changes to the alignment of the slip road should be ignored by the Appeal board. The Appeal Board should confine themselves to the reasons advanced by the Town Planning Board. If these reasons had been wrong, then the appeal had to be allowed; (b) the site was not an island site and there were examples where
development on island sites were achieved;
(c) the problem of emergency vehicular access (EVA), raised by the Project Manager/Northwestern New Territories but not mentioned by the Town Planning Board, should not be considered by the Appeal Board;
(d) the expert statements produced by the Highways Department to the Appeal Board should be ignored for the experts did not turn up before the Appeal Board;
(e) there was no evidence showing that the 40-m non-building area would
be required permanently;
(f) the drainage proposal was the most practicable option for further investigation. The Town Planning Board should have given a conditional approval subject to satisfactory drainage impact assessment.
The Town Planning Board held that:
(a) the subject site was an island site, surrounded by major roads, and hence unsuitable for residential development of the scale proposed; (b) the drainage impact assessment and the proposed discharge of surface run-off and treated sewage into existing stream courses, submitted by the appellant, was undesirable.
• Reasons for Decision:
The Appeal Board rejected all arguments of the appellants (and an argument raised in the appeal regarding the appearance and height of the proposed noise barrier) and dismissed the appeal on the following grounds:
Possible New Slip Road Proposal Was Relevant
The Appeal Board came to the view that the new slip road proposal was a relevant factor they had to consider, though this fact emerged after the decision of the Town Planning Board had been made.
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'Island Site' Meant Something Else
The Appeal Board noted the point of the District Planning Officer, Mr Paul Ng, that the subject site could be regarded as an island site 'because it is situated within a large triangular area bound on the three sides by Castle Peak Road, Kam Tin Road and the proposed Route 3' (para. 14, italics mine). The Appeal Board stated that 'an island site is not a term of art'. It noted the examples demonstrated by the appellant about development on island sites and realized that ‘a city block is an island site too'. The Appeal Board came to this rule: 'We do not believe that an island site is necessarily unsuitable for development. On the other hand, being in close proximity to a road or a highway can give rise to planning constraints. It is these constraints which are relevant.' (para. 14) It went on to say that: 'We believe the Town Planning board described the site as an island site to indicate that the site is in close proximity to the proposed Route 3, the old slip road and Kam Tin Road. What really concerned the Town Planning Board must be these constraints. The Town Planning Board made that clear when it said "a site with such constraints is not suitable for residential development, particularly of the scale proposed."' (para. 14)
Unsatisfactory Emergency Vehicular Access Was Relevant
The Appeal Board did not agree that the factor of EVA was irrelevant and it should have been used by the Town Planning Board to dismiss the application.
Expert Statements Were Still Relevant in the Absence of the Experts
The expert statements of the Chief Highway Engineer's could not be ignored even though he did not appear in spite of the appellant's invitation. The Appeal Board explained the reason. ‘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." "(para. 19)
Possible Land Resumption Did Matter
The Appeal Board considered that the possible land resumption did matter because it would significantly affect the proposal of the appellant. The Appeal Board accepted the Chief Highway Engineer's comment that the non-building area might be required not just for the purpose of providing an environmental buffer zone but also for the construction of Route 3 itself.
Planning Appeal Cases
400 kV Power Pylons Were Relevant Constraints
163
The Appeal Board invited submissions on whether the 400 kV Power Pylons would pose any healthy hazard to residents living beneath or close to them. The Appeal Board noted that the Town Planning Board had been told any conclusive evidence stating that exposure to such low frequency electro-magnetic fields was hazardous to health. Yet, the Appeal Board stated that they doubted whether conclusive evidence was required.
Unattractiveness and Heights of Noise Barriers Were Irrelevant
The Appeal Board concluded that the height of the noise barrier by themselves should not preclude planning permission.
Drainage Impact Assessment Conducted by the Appellant Was Preliminary, Conditional Approval a Waste of Time
The appellant admitted that the drainage impact assessment was preliminary. The development was of a large scale next to a flood plain. Therefore, it was reasonable for the Town Planning Board not to give a conditional approval to wait for the appellant to complete assessment. "The approach adopted by the appellant can lead to a massive waste of time.' (para. 33) Furthermore, the problems involved might not be resolved. 'As it is, just the hearing before us lasted five sessions. Is it right for so much time and effort to be spent when there is a not insignificant chance that given the circumstances of this site the drainage problem may not be solved?' (para. 33)
Favourable Impact Assessment Accepted by the Government Should Be a Pre-condition, Not a Planning Condition, for Successful Planning Applications
As regards the proposal that conditional permission should have been given by reference to the precedent of Route 3 (here the decision was poorly reported as it did not indicate this analogy explicitly), the Appeal Board's view was that 'there is a difference between Route 3 and this application. There, a decision in principle has been made to build Route 3. It is a major and important project. Given Government's power of resumption, there is no reason why drainage problems cannot be solved. Here, the Appellant has to satisfy the Town Planning Board that planning permission should be given. And unless there will be no adverse drainage impact, it is difficult to see why permission in principle should be given first.' (para. 34)
Comments:
Island Site or Traffic Island? Should the Appeal Board Amend the Reasons of the Town Planning Board?
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
The Appeal Board apparently made conscious efforts to substitute a defective reason advanced by the Town Planning Board as regards the 'island site' character of the subject site. By a careful construction of the arguments of the Town Planning Board, the Appeal Board explained to the world, from its own point of view, what the Town Planning Board should have told the appellant. There is little doubt that the 'island site' argument as represented by the Town Planning Board's decision had been used in a rather meaningless manner. 'Island sites', often classified as, 'Class C' sites (under the Building Regulations), especially those in the urban areas, can be ideal from the point of view of building development as they can be built to the maximum plot ratios permitted by the Buildings Ordinance. What the Town Planning Board really intended to say was likely to be that the appellant's site was like a 'traffic island'. This characterization highlights the position of the site as one surrounded by major existing and future highways, with all the adverse environmental implications and access problems. Two issues thus emerge. First, if the Town Planning Board had given a wrong or poorly expressed reason, should the Appeal Board have rectified such a reason? This procedural question pertains to the statutory role and power of the Appeal Board. Secondly, is the amended reason in the present case sound from a planning point of view? To address this question, we should note that the Town Planning Board made reference to both the largeness of the subject site and the scale of the proposal, though the actual area of the site, which is a key relevant consideration, was not mentioned at all in the decision. The Appeal Board had in elsewhere (for instance, in the Pak Kong case) condemned 'ad hoc' development and here they were presented a comprehensive development proposal. The site was prima facie not a traffic island. The question was whether the relevant constraints of set-backs and non-building areas due to land resumption, 400kV power pylons would reduce an apparently large piece of land into useless pockets of developable areas which could not accommodate all the elements of the application as suggested in the master layout plan. The Appeal Board stated that: ‘Once one accepts (as we must) the possibility of a resumption of all or part of the 40-metre non-building area then we cannot allow this appeal even if we are satisfied that the Town Planning Board is wrong. (para. 22) Nor are we satisfied that the Town Planning Board is wrong. . . (para. 23) Unfortunately, we do not know why the Town Planning Board was correct other than the fact that, as a matter of kind, land resumption and alternative alignments of the slip road were relevant planning constraints. We do not know the degree of the problem. The Appeal Board was not invited to investigate just how much the proposal had exceeded the discounted and real development potential of the subject site, and how significant this excess was. This gives an impression that the Appeal Board was content with intuitive pre-judgment which held that as there were real discounts for the development potential of the site, the
Planning Appeal Cases
165
application had to be rejected. This line of reasoning contains a lot of missing steps that should have been taken, even though the conclusion might not have been different.
Were the EVA and 400 kV Power Pylons Relevant? Should the Appeal Board Consider Reasons Other Than Those Used by the Town Planning Board and the Appellant?
The issues of the EVA and 400 kV power pylons were definitely relevant substantive factors for considerations. The view of the Appeal Board regarding the significance of the matter was definitely correct. The question, again, is one of procedure and power. Should the Appeal Board have considered reasons other than those used by the Town Planning Board in rejecting the application? The answer to this question depends on the power of the Appeal Board under the Ordinance. The Appeal Board did not, in this decision, explain its powers in this respect.
What Is the Role of the Appeal Board: Procedural or Substantive Planning Matters?
The above comments lead to the ultimate question: what is the legal role of the Appeal Board?
The Relevance of Private Property Rights: Presumption in Favour of Development for Government Projects Only?
In rejecting the argument of a conditional approval, the Appeal Board seems to intimate that all possibilities of Route 3 had to be considered as actual, rather than merely possible, constraints for development since the route had been a policy commitment of the government. In other words, private property rights of the proprietors for a lease modification, once being subject to possible government infringement, would deem to have been lost for statutory planning purpose. We do not know whether at the time of appeal, the appellant had received notice from the government for land resumption. In the absence of this crucial fact, we do not know for sure if the bureaucratic desire to keep options open to them was justifiable.
Questions:
1. How big is the subject site?
2. What has happened to the subject site since the dismissal of the
appeal?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2, 7, 8, 9 and
10.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
THE KINGSPEED ENGINEERING CASE
Case Name: Lots No. 2248 in DD 76, Ko Po, Sha Tau Kok Road, New Territories [the Kingspeed Engineering Case]
Planning Appeal Case No.: 18/92
Similar Cases: cases nos. 13/92, -, 19/92, 17/93, 19/93, 21/95 and 26/95 [the Pak Kong,, Kun Kee Motor, Shun Fat Container, Ever Need, Cheung Hing Lung (not) and Wong Yee Fai (2) Cases] regarding unauthorized development and planning intention; and self-incrimination in planning enforcement proceedings by planning application; 13/92,, 19/92, 17/93, 19/93, 01/94, 19/95, 21/95, 26/95 and 04/96 [the Pak Kong, Kun Kee Motor, Shun Fat Container, Ever Need, Tang Sai Hung, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding unauthorized development;
9
07/92, 19/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 10/94, 11/94, 12/94, 14/94, 02/95, 05/95, 07/95, 08/95, 16/95, 18/95, 21/95, 26/95, 28/95 04/96, 12/96 and 01/97 [the Full Look, Kun Kee Motor, Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hung, 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, Cheung Hing Lung, Wong Yee Fai (2), Fine Tower, Container System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans);
05/92, 15/92,
19/92, 02/93, and 04 and 05/93, 13/93, 17/93, 12/94, 05/ 95, 16/95 and 22/95 [the OTB, Ultra Force,, Kun Kee Motor, Bowen Road, and Treasure Base (2), Henderson, Shun Fat Container, Lai Sun Development, Planet Universal, Arzignano and Lucky Gain Cases] regarding the nature of planning and the market or private interest/ public interest;
08 and 09/92, 13/92, 15/92, —, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 09/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, and 21/95 [the Yuen To-shing and Yuen Shu-ling, Pak Kong, Ultra Force, Kun Kee Motor, Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans; 03/92, 08 and 09/92, 12/92, 14/92, 15/92, -, 19/92, 04 and 05/93, 11/93, 13/93, 14/93, 01/94, 05/94, 10/94, 14/94, 07/95, 08/95 and 22/95 [the Wo Yi Hop Road, Yuen To-shing and Yuen Shu-ling, On Luk Tong, Good
Planning Appeal Cases
2
167
Luck, Ultra Force, Kun Kee Motor, Treasure Base (2), Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World, Yin Ning Savings and Lucky Gain Cases] regarding adverse traffic/access problems;
03/92, 07/92, 15/92,
19/92, 13/93, 14/93, 16/93, 14/94, 28/95 and 04/ 96 [the Wo Yi Hop Road, Full Look, Ultra Force, —, Kun Kee Motor, Henderson, Yiu Cho Investment, Naturaluck, Sanyear Investment, Fine Tower and Container System Cases] regarding adverse environmental impact;
-, 19/92, 13/93 and 14/93 [the, Kun Kee Motor, Henderson and Yiu Cho Investment Cases] regarding cumulative environmental impact; 04/92, 07/92, 08 and 09/92, 15/92, 19/92, 10/94, 05/95, 07/95, 08/95 [the Sung Dynasty City, Full Look, Yuen To-shing and Yuen Shue-ling, Ultra Force, Kun Kee Motor, Sun Link Properties, Planet Universal, Delight World, Yin Ning Savings Cases] as regards the meaning of ad hoc and comprehensive development.
"
Nature of the Case: Unspecified Use Zone, appellant being suppliers to government contractors, Development Permission Area (DPA) Plan, ‘agricultural land', statutory meaning of 'development', material change in the use of land, unauthorized development, planning objectives, planning intention as contained in the Explanatory Statement of DPA Plan, pollution, cumulative environmental effects, misleading photographs of the Planning Department, traffic access, Town Planning Board Guidelines, Hong Kong Planning Standards and Guidelines (HKPSG).
Date of s. 16 application: 21 February 1992
Date of Hearing: 17 and 18 May 1993
Date of Decision: 28 June 1993
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Mr J. McNamara and Miss V. Patel for the Town Planning Board (b) John Y.H. Hsi and Associates for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) 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. (However, to persuade the Town Planning Board that, despite this principle, ad hoc industrial development should pending the preparation of an outline zoning plan be allowed, an applicant will, generally speaking, have to ‘make out a very strong case on environmental and social grounds'.)
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(b) The decisive factor should be the cumulative environmental impact of
permitting a proposal rather than the impact of an individual proposal.
Background:
With a total site area of 418 m2, the subject site was Lot No. 2248 in Demarcation District (DD) 76. It fell within an 'Unspecified Use' Zone in the draft Lung Yeuk Tau and Kwan Tei South Development Permission Area Plan No. DPA/NE-LYT-1 (DPA Plan) which was published in the gazette on 12 July 1991. According to the Notes to DPA Plan, in any 'Unspecified Use' area, any development other than certain permitted development and uses require planning permission. The expression 'development' includes making a material change in the use of land according to Section 1A of the Town Planning Ordinance. The access to the site was down a track leading to Ko Po Village off Sha Tau Kok Road. It was reported that prior to July 1991, the subject site was a piece of 'agricultural land'. The appellant had obtained a three-year tenancy from the landowner. From about July 1991, the appellant was reported to have started a metal workshop on the site. A metal-frame structure with canvas top and sides was put up to provide shelter for the workers and the machinery. The appellant had contracts to make tubular road barriers for government road contractors. Enforcement action was threatened against the appellant for unauthorized change of use. The appellant made a s. 16 application on 21 February 1992 to enable the site to be used for its business purposes. The Town Planning Board rejected the application on 10 April 1992 and then in a s. 17 review heard on 21 August 1992. The dates of the meetings of the Town Planning Board for the s. 16 application and s. 17 review were the same as those for the next reported case, i.e. the Kun Kee Motor case.
Arguments:
The appellant argued that:
(a) the workshop was on a small scale;
(b) the use posed no danger to pedestrians along the track leading to Ko
Po Village;
(c) the environmental impact of the business was minimal as it used no
noisy equipment or harmful chemicals;
(d) the workshop used no water and hence drainage was not a problem; (e) no bad precedent would be set as it was only proposed to put up a
canvas-covered frame on the site.
The Town Planning Board held the following arguments (para. 6): (a) "The proposed development is incompatible with the planning intention for the area which is to restrict developments to those which are unlikely to cause adverse impacts on the environment, traffic and drainage.'
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(b) 'The proposed development will pose potential hazards to pedestrians
and will result in further deterioration of the existing van track.' (c) "The submission has not included proper assessment on the air, noise and liquid waste pollution, arising from the proposed development, an no mitigation measures have been proposed.'
(d) 'No proposal for drainage facilities has been included in the submission.' (e) The approval of the application will set an undesirable precedent.'
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
Pollution
The Appeal Board considered that the subject site was in the vicinity of a number of houses: some substantial two-storey structures and some squatter huts. The Appeal Board held that there was no doubt that metal shop would generate noise, and goods vehicles would be a nuisance and hazard to the villagers of Ko Po. However, the Board attached less weight to the impact which the metal shop created than to the cumulative environmental impact resulting from permitting the application. "The fact is that the immediate vicinity of the site has already been so degraded by ad hoc activities such as car dumping, storage of material, the operation of metal workshops etc. that the overall impact of this site will in truth be minimal' (para. 8). (italics mine)
In this case, the Appeal Board stressed that the photographs of Planning Department's were misleading because they tended to exaggerate the tranquil rural aspect of the neighbourhood rather than its degraded nature.' (para. 8)
The Town Planning Board Guidelines
The Appeal Board considered the Town Planning Board Guidelines on Factory/Workshop, Warehouse use within Unspecified Area on DPA Plan' and found them unsatisfactory because they made 'no distinction between very large undertakings and minor ones. Accordingly, the applicant is, in general, expected to provide impact studies on things like traffic and drainage and to propose mitigating measures for reducing impact by such things as odour, dust, smoke, glare, noise etc. There is no flexibility in the guidelines.' (para. 9) (italics mine) The Appeal Board considered that as the application involved only a small shop with just a three-year tenancy, the Guidelines' requirements 'may be wholly unrealistic from an economic point of view'. (para. 10)
The Fatal Blow: Against Planning Objectives (Intention) and Being an Unauthorized Development
The Appeal Board stressed that in considering the appeal, it was important
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
to note the overall objective of the draft DPA Plan' as seen from paras. 5.2 and 7.4 of the Explanatory Statement. Para. 5.2 read: 'Hitherto, the flat terrain, the relative accessibility and the lack of adequate land use control in the past have encouraged infiltration of undesirable open storage uses and informal industrial developments which cause much detrimental effect to the environment. Large areas near Ma Liu Sui San Tsuen, Po Kat Tsai, Ko Po and Lau Shui Heung Road have already been converted to open storage and industrial uses. To avoid continuation of this trend and arrest further degradation of the Area, proper planning control and management are required.' The Appeal Board reckoned that, from their interpretation of para. 7.4 of the Statement, the designation of large areas under 'unspecified use' is 'not intended to put a permanent freeze on all development'. 'It is intended that the DPA Plan published by the board will be replaced, within 3 years, by an Outline Zoning Plan . . . The provisions of enforcement will continue to be applicable to the Area after the Plan is replaced by an outline zoning plan.' The Appeal Board concluded that as the appellant did not seek permission for change of use prior to setting up the workshop but only made one after enforcement action was threatened, then the application had to be turned down as a matter of principle. The Appeal Board said: 'Clearly, as a matter of principle, unauthorized operators should not be allowed to dictate future land use in the "unspecified use" areas within the DPA Plan by pre-empting the Town Planning Board. Ad hoc development motivated by self-interest cannot be an approach to town planning which the Board should encourage.' (para. 14)
The Appeal Board came to this conclusion, quoted in full below to indicate its tenor and construction:
Because of the degraded condition of much of the area surrounding this site, we conclude that whilst there will be some adverse environmental effect caused by the operation of a workshop as proposed, the overall increase in environmental damage will not be great. The adverse impact on some of the residences nearby will, however, be considerable. The load on the use of the track leading to Ko Po Village will increase. But the paramount consideration is this: to approve the present application will clearly be to go against the planning objectives for the area as we have summarised above. There is plainly a public need for the kind of services rendered by the appellant's workshop. This is a matter which the Planning Department will doubtless bear in mind when putting its proposals forward for the consideration of the Town Planning Board when the preparation of an outline zoning plan is considered next year. To persuade the Town Planning Board that, despite these objectives, ad hoc industrial development should pending the preparation of an outline zoning plan be allowed, an applicant will, generally speaking, have to make out a very strong case on environmental and social grounds. The appellant here has fallen far short of such a case. The appeal is accordingly dismissed. (para. 15) (italics mine)
Planning Appeal Cases
• Comments:
Overview
171
This case is reported almost in identical wordings as the next reported and published case (no. 19/92) which is related to a site in the same DD.
Despite the smallness of the subject site, conciseness of the decision, and simplicity and clarity of the arguments involved, this is a classic case in terms of the rationale of the Appeal Board. A number of major and contentious substantive planning, statutory interpretation and jurisprudential issues can be discerned. They are discussed below.
The True Planning Intention and the Legislative Provisions of Planning Enforcement
The Appeal Board held that the moral and credibility of the argument that planning application made after enforcement action is threatened should not be allowed in principle in order that unauthorized operations are not allowed to dictate future land uses in 'Unspecified Use' areas. The reason of the Appeal Board regarding 'unauthorized development' and 'pre-emption of future planning', with respect, can be seen as an enigma. It seems that the Appeal Board had adopted a narrow and wrong interpretation of the Town Planning Ordinance regarding planning enforcement provisions, and had related them to the consideration of planning applications. This interpretation, if adopted as a matter of principle, would mean that certain applications are by nature void as a matter of policy. In the absence of expressed legislative blessings, the credibility of this approach seems doubtful. To begin with, one should not have presupposed that the appellant committed an offence before he was tried and convicted. The Town Planning Board and the Appeal Board are not courts of law. Secondly, in a typical 'warning letter', the person served was often advised 'to take reasonable steps' to rectify the alleged offence and to make a s. 16 application for 'regularizing' the alleged offence. The Town Planning Ordinance does provide such a person a right to make such an application, and therefore the Town Planning Board will be acting against the Ordinance by adopting a principle that dictates the Board to reject an application made by this person. If the Ordinance is construed purposely and meaningfully, this allowance must be seen as providing those prima facie suspects of committing a statutory offence in land use matters a chance to 'regularize' their activities. Such activities carry no moral indignation; they are bona fide rightful business and uses of land but for the amendment to the Ordinance. Indeed, in this case, the Appeal Board noted that 'there is plainly a public need for the kind of services rendered' (para. 15). In fact, the rejection of the application would likely lead to a conviction of the appellant in a criminal proceeding. A categorical
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
policy of rejecting all such applications means that the Town Planning Board and the Appeal Board are doing the work of a Crown prosecutor rather than that of independent bodies which assess the acceptability of the uses applied for.
The argument for pre-empting future planning was weak because the Town Planning Board could have given a temporary two- or three-year approval. The use applied for did not involve substantial building development and could be stopped with ease. The Appeal Board, however, had not been advised of the possibility and feasibility of using such an arrangement. Although it knew about the short-term nature and minor environmental impact of the use, the Appeal Board had applied a high- hand policy upon a use which, it acknowledged, had public benefits. The appellant was a supplier to government contractors, and was operating a small-scale business in a remote rural area under a three-year tenancy. To accept the use for a three-year period should not create too much long- term damage to the environment particularly because the site had likely been 'formed' and was therefore unlikely to be reverted to active agriculture. The 'ah hoc' or small scale of the application was indeed a favourable consideration. On the contrary, if the application involved a permanent and massive conversion of viable farm land or scenic green fields or fish ponds to a metal workshop, the decision would perhaps have been different.
Compare the teleological logic adopted by the Appeal Board in this case and that in the Henderson case regarding s. 20(6A) of the Town Planning Ordinance. In the Henderson case, the relevant statutory plan was the DPA Plan under which an application, a review or an appeal was made; it was not an OZP that replaced the DPA. The rule in the Henderson case was affirmed by the Privy Council. (See the Henderson case, post.)
Principles, Impact or Benefits?
The Appeal Board explained at great length the minute environmental problem of the application but resolved to dismiss it on the grounds of principles. Yet, in the closing sentences it implied that an applicant could, under exceptional circumstances, obtain permission by making a case on strong environmental or social grounds. Given the deterministic tenor about the objectives of the DPA Plan as it saw, one wonders just what sort of industrial use could be permitted.
Objective and Proper Assessment of Environmental Impact
It was not reported whether the Environmental Protection Department had any objection to the proposal. Nor was it known whether the assessment of the Appeal Board had been conducted by reference to such specialist advice or in accordance with the relevant environmental protection standards and guidelines in the Hong Kong Planning Standards and Guidelines (HKPSG). The HKPSG is an administrative set of policy
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173
documents that binds government departments. Its existence is to ensure that provision of public goods and application of professional judgment are equitable and objective.
Use of Photographic Evidence
Photos show physical features well but do not in themselves provide an unambiguous advice about the policy interpretation of the environment. Whether or not, or to what extent the site encroached upon the vicinity of Sites of Special Scientific Interest (SSSI), Country Parks, Special Areas, 'fung shui' woods (woods planted in accordance with rules of Chinese geomancy customs), and so on, were relevant factors to consider. These conceptual entities cannot be 'seen' from a mere inspection of the photos. A professional planner had to point out to the Appeal Board as to what extent the application of planning conditions, such as plantation of trees and shrubs as visual and noise screens could be realistic. These should have been relevant factors for consideration. In this case, the Appeal Board realized that they 'tend to exaggerate the tranquil rural aspect of the neighbourhood rather than its degraded nature' and were hence 'misleading'. Obviously, therefore, it would not be too difficult to blend the workshop into the environment had proper landscaping measures be imposed.
The Relevance and Irrelevance of Self-Interest
The Appeal Board in this case had been badly advised regarding the point about self-interest. Though at the time of the appeal Hong Kong had not been provided with a constitutional law assurance of capitalism, it is common sense that land user has a rightful expectation of furthering his or her own interest. The Town Planning Ordinance is meant to cater for the health, safety, convenience and general welfare of our society. The self-interest of a supplier of government contractors is definitely a dignified kind of self-interest; it should be ranked no more and no less than that of a diligent counsel for the Town Planning Board.
Relevance of Private Property Rights: The Tenancy Period of the Applicant
As argued above, the transient nature of the use should have been an advantage in terms of the objectives of the DPA Plan.
Questions:
1. Are there any legislative, common law or written policy directives stating that alleged unauthorized development must not be given planning permission?
2. What has happened to the site since the dismissal of the appeal?
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References:
Cases:
1. The mischief planning enforcement legislation targets
AG v Melhado Investment Ltd. [1983] HKLR 327
2. Relevant planning enforcement cases (See Appendix)
Auburntown Ltd. v TPB HCMP No. 222 of 1993
Tsei Kwei King & Cheung Kam v AG MP No. 1509 of 1993
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of 1994
Regina v Tang Yip and Yeung Fook Mui Magistracy Appeal No. 864 of 1994
Regina v Helen Transportation Co. Ltd., Liu Ka Sing and Chan Yuk Kwan Magistracy Appeal No. 303 of 1995
Regina v Power Straight Ltd., Dragon Friend Ltd. Magistracy Appeal No. 644 of 1995
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5, 8, 9, 10 and
11.
Town Planning Board, TPB-PG NO. 11, Town Planning Board Guidelines on Factory/Workshop/Warehouse Use within Unspecified Use Area on Development Permission Area (DPA) Plans under Section 16 of the Town Planning Ordinance', February, 1992.
THE KUN KEE MOTOR CASE
Case Name: Lots Nos. 2249, 2254, 2255 BRP and 2257 BRP in DD 76, Ko Po, Sha Tau Kok Road, New Territories. [the Kun Kee Motor Case]
>
Planning Appeal Case No.: 19/92
17/93, 19/93, 21/95 and 26/95 Shun Fat Container, Ever
Similar Cases: cases nos. 13/92, 18/92, [the Pak Kong, Kingspeed Engineering, Need, Cheung Hing Lung (not) and Wong Yee Fai (2) Cases] regarding unauthorized development and planning intention; and self-incrimination in planning enforcement proceedings by planning application;
Planning Appeal Cases
>
"
175
13/92, 18/92,-, 17/93, 19/93, 01/94, 19/95, 21/95, 26/95 and 04/96 [the Pak Kong, Kingspeed Engineering, — Shun Fat Container, Ever Need, Tang Sai Hung, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding unauthorized development; 07/92, 18/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 10/94, 11/94, 12/94, 14/94, 02/95, 05/95, 07/95, 08/95, 16/95, 18/95, 21/95, 26/95, 28/95, 04/96, 12/96 and 01/97 [the Full Look, Kingspeed Engineering, -, Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hung, 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, Cheung Hing Lung, Wong Yee Fai (2), Fine Tower, Container System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans);
05/92, 15/92, 18/92, —, 02/93, 04 and 05/93, 13/93, 17/93, 12/94, 05/95,
16/95 and 22/95 [the OTB, Ultra Force, Kingspeed Engineering, Bowen Road, and Treasure Base (2), Henderson, Shun Fat Container, Lai Sun Development, Planet Universal, Arzignano and Lucky Gain Cases] regarding the nature of planning and the market or private interest/public interest;
08 and 09/92, 13/92, 15/92, 18/92,
>
"
04 and 05/93, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 09/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, and 21/95 [the Yuen To-shing and Yuen Shu-ling, Pak Kong, Ultra Force, Kingspeed Engineering, Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans;
03/92, 08 and 09/92, 12/92, 14/92, 15/92, 18/92,, 04 and 05/93, 11/93, 13/93, 14/93, 01/94, 05/94, 10/94, 14/94, 07/95, 08/95 and 22/95 [the Wo Yi Hop Road, Yuen To-shing and Yuen Shu-ling, On Luk Tong, Good Luck, Ultra Force, Kingspeed Engineering, Treasure Base (2), Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World, Yin Ning Savings and Lucky Gain Cases] regarding adverse traffic/ access problems;
03/92, 07/92, 15/92, 18/92, -, 13/93, 14/93, 16/93, 14/94, 28/95 and 04/ 96[the Wo Yi Hop Road, Full Look, Ultra Force, Kingspeed Engineering, Henderson, Yiu Cho Investment, Naturaluck, Sanyear Investment, Fine Tower and Container System Cases] regarding adverse environmental impact;
18/92,
>
13/93 and 14/93 [the Kingspeed Engineering,
Henderson
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
and Yiu Cho Investment Cases] regarding cumulative environmental impacts;
04/92, 07/92, 08 and 09/92, 15/92, 18/92,
10/94, 05/95, 07/95, 08/95
[the Sung Dynasty City, Full Look, Yuen To-shing and Yuen Shue-ling, Ultra Force, Kingspeed Engineering, Sun Link Properties, Planet Universal, Delight World, Yin Ning Savings Cases] as regards the meaning of ad hoc and comprehensive development.
Nature of the Case: Unspecified Use Zone, Development Permission Area (DPA) Plan, the statutory meaning of development, agricultural land, unauthorized development, planning objectives, planning intention, Explanatory Statement of DPA Plan, pollution, cumulative environmental effects, misleading photographs, traffic access, Town Planning Board Guidelines, Hong Kong Planning Standards and Guidelines (HKPSG).
Date of s. 16 application: 2 March 1992
•
Date of Hearing: 19 and 26 May 1993
· Date of Decision: 28 June 1993
•
•
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Mr Leung Koon-wai for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) 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. (However, to persuade the Town Planning Board that, despite this principle, ad hoc industrial development should pending the preparation of an outline zoning plan be allowed, an applicant will, generally speaking, have to 'make out a very strong case on environmental and social grounds').
(b) The decisive factor should be the cumulative environmental impact of
permitting a proposal rather than the impact of an individual proposal.
Background:
With a total site area of 2821 m2, the subject site was Lots Nos. 2249, 2254, 2255 BRP and 2257 BRP in Demarcation District 76. It fell within an 'Unspecified Use' Zone in the draft Lung Yeuk Tau and Kwan Tei South Development Permission Area Plan No. DPA/NE-LYT-1 (DPA Plan) which was published in the gazette on 12 July 1991. According to the Notes to the DPA Plan, in any 'Unspecified Use' Area, any development
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•
177
other than certain permitted development and uses required planning permission. It was reported that prior to about August 1991, the subject site was 'agricultural land'. From about August 1991, the appellant was reported to have started a car repairing business on the site. Containers were brought onto the subject site to be used as offices. Other than vehicle repairing, the site was also used for the repair of tyres and parking of vehicles. Lorries and goods vehicles were said to have been found on the site. Enforcement action was threatened against the appellant for unauthorized change of use. The appellant made a s. 16 application on 2 March 1992 to enable the site to be used for its business purposes. The Town Planning Board rejected the application on 10 April 1992 and then in a s. 17 review heard on 21 August 1992. The dates of the meetings of the Town Planning Board for the s. 16 application and s. 17 review were the same as those for the preceding reported case, i.e. the Kingspeed Engineering case.
Arguments:
The appellant argued that:
(a) the workshop, despite its direct frontage onto Sha Tau Kok Road, posed no danger to traffic along that road; a lamp post obstructing the entrance could be removed; there had been no history of accidents; a round mirror could be installed at the entrance to give the drivers better views of road conditions;
(b) the environmental impact of the business was minimal as aerial emissions could be eliminated by equipment, though some noise was inevitable;
(c) used oil was not allowed to drain into stream courses. Instead it was stored in large barrels regularly removed by collectors who bought them;
(d) there was a clear demand for car repairing and tyre repairing services. To conduct the business on the subject site would take traffic off the road;
(e) similar car repairing businesses were found in Hong Kong and hence it was no argument to say that the uses of the site would create an 'undesirable precedent'.
The Town Planning Board held on the following grounds:
(a) "The proposed development is incompatible with the planning intention for the area which is to restrict developments to those which are unlikely to cause adverse impacts on the environment, traffic and drainage.'
(b) "The proposed development will cause air, noise and liquid waste pollution to the surrounding area and no mitigation measures have been proposed in the submission.'
(c) The proposed development will pose potential hazards to other road
users on Sha Tau Kok Road.'
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(d) The submission has not included 'a proper vehicular access to the
site',
(e) 'The approval of the application will set an undesirable precedent.'
• Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
Pollution
The Appeal Board considered that the subject site was in the vicinity of a number of houses, some substantial two-storey structures and some squatter huts. The Appeal Board held that there was no doubt that metal shop would generate noise, fumes and dust. In addition, the Appeal Board was not impressed by the appellant's professed intention to reduce aerial emission by installing new equipment. As until the date of the appeal, none had been installed. However, the Board attached less weight to the impact the metal shop created than the cumulative environmental impact resulting from permitting the application. "The fact is that the immediate vicinity of the site has already been so degraded by ad hoc activities such as car dumping, storage of material, the operation of metal workshops etc. that the overall impact of this site will not be particularly great.' (para. 8)
In this case again, the Appeal Board stressed that the photograph of the Planning Department's were misleading because they tended to exaggerate the tranquil rural aspect of the neighbourhood rather than its degraded nature'. (para. 8)
Town Planning Board Guidelines
The Appeal Board considered the 'Town Planning Board Guidelines on Factory/Workshop, Warehouse use within Unspecified Area on DPA Plan' and found them unsatisfactory because they made 'no distinction between very large undertakings and minor ones. Accordingly, the applicant is, in general, expected to provide impact studies on things like traffic and drainage and to propose mitigating measures for reducing impact by such things as odour, dust, smoke, glare, noise etc. There is no flexibility in the guidelines.' (para. 10) (italics mine) The Appeal Board considered that as the application involved only a small ship with just a three-year tenancy, the Guidelines' requirements 'may be wholly unrealistic from an economic point of view'. (para. 11)
Access Was Not a Problem
The Appeal Board accepted the appellant's submission, as the problem was not insurmountable and China Light and Power had agreed in principle to move the lamp post which might affect traffic safety.
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179
The Fatal Blow: Against Planning Objectives (Intention) and Being an Unauthorized Development
The Appeal Board stressed that in considering the appeal, it was important to note the 'overall objective of the draft DPA Plan' as seen from paras. 5 February and 7.4 of the Explanatory Statement. Para. 5.2 read: 'Hitherto, the flat terrain, the relative accessibility and the lack of adequate land use control in the past have encouraged infiltration of undesirable open storage uses and informal industrial developments which cause much detrimental effect to the environment. Large areas near Ma Liu Sui San Tsuen, Po Kat Tsai, Ko Po and Lau Shui Heung Road have already been converted to open storage and industrial uses. To avoid continuation of this trend and arrest further degradation of the Area, proper planning control and management are required.' The Appeal Board reckoned that, from their interpretation of para. 7.4 of the Statement, the designation of large areas under 'unspecified use' is 'not intended to put a permanent freeze on all development'. 'It is intended that the DPA Plan published by the board will be replaced, within 3 years, by an Outline Zoning Plan . . . The provisions of enforcement will continue to be applicable to the Area after the Plan is replaced by an outline zoning plan.' The Appeal Board concluded as the appellant did not seek permission for change of use prior to setting up the workshop but only made one after enforcement action was threatened, then the application had to be turned down as a matter of principle. The Appeal Board said this: 'Clearly, as a matter of principle, unauthorised operators should not be allowed to dictate future land use in the "unspecified use" areas within the DPA Plan by pre-empting the Town Planning Board. Ad hoc development motivated by self-interest cannot be an approach to town planning which the Board should encourage.' (para. 15)
The Appeal Board came to this conclusion, which was quoted in full below to indicate its tenor and construction:
Because of the degraded condition of much of the area surrounding this site, we conclude that whilst there will be some adverse environmental effect caused by the operation of a workshop as proposed, the overall increase in environmental damage will not be great. The adverse impact on some of the residences nearby will, however, be considerable. The load on the use of the track leading to Ko Po Village will increase. But the paramount consideration is this: to approve the present application will clearly be to go against the planning objectives for the area as we have summarised above. There is plainly a public need for the kind of services rendered by the appellant's workshop. This is a matter which the Planning Department will doubtless bear in mind when putting its proposals forward for the consideration of the Town Planning Board when the preparation of an outline zoning plan is considered next year. To persuade the Town Planning Board that, despite these objectives, ad-hoc industrial
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development should pending the preparation of an outline zoning plan be allowed, an applicant will, generally speaking, have to make out a very strong case on environmental and social grounds. The appellant here has fallen far short of such a case. The appeal is accordingly dismissed. (para. 16) (italics mine)
Comments:
Overview
This case is reported almost in identical wordings as the previous reported and published case (no. 18/92) which related to a site in the same DD.
Despite the apparent smallness of the subject site, conciseness of the decision, and simplicity and clarity of the arguments involved, this is another classic case in terms of the rationale of the Appeal Board. A number of major and contentious substantive planning, statutory interpretation and jurisprudential issues can again be discerned. They are discussed below.
The True Planning Intention and the Legislative Provisions of Planning Enforcement
The Appeal Board held that the moral and credibility of the argument that planning application made after enforcement action is threatened should not be allowed in principle in order that unauthorized operations are not allowed to dictate future land uses in 'Unspecified Use' areas. The reason of the Appeal Board regarding 'unauthorized development' and 'pre-emption of future planning', with all due respect, can be seen as an enigma. It seems that the Appeal Board had adopted a narrow and wrong interpretation of the Town Planning Ordinance regarding planning enforcement provisions, and had related them to the consideration of planning applications. This interpretation, if adopted as a matter of principle, would mean that certain applications are by nature void as a matter of policy. In the absence of express legislative blessings, the credibility of this approach seems doubtful. First of all, one should not have presupposed that the appellant committed an offence before he was tried and convicted. The Town Planning Board and the Appeal Board are not courts of law. Secondly, in a typical 'warning letter', the person served was often advised 'to take reasonable steps' to rectify the alleged offence and to make a s. 16 application for regularizing the alleged offence. The Town Planning Ordinance does provide such a person a right to make such an application, and therefore the Town planning Board would be acting against the Ordinance by adopting a principle that dictates the Board to reject an application made by such a person. If the Ordinance is construed purposively and meaningfully, this allowance must be seen as providing those prima facie suspects of committing a statutory offence in
Planning Appeal Cases
181
land use matters a chance to 'regularize' their activities. Such activities carry no moral indignation; they are bona fide rightful business and uses of land but for the amendment to the Ordinance. Indeed, in this case, the Appeal Board noted that 'there is plainly a public need for the kind of services rendered'. (para. 16) In fact, the rejection of the application would likely lead to a conviction of the appellant in a criminal proceeding. A categorical policy of rejecting all such applications means that the Town Planning Board and the Appeal Board are doing the work of a Crown prosecutor rather than that of independent bodies which assess the acceptability of the uses applied for.
The argument for pre-empting future planning was weak because the Town Planning Board could have given a temporary two- or three-year approval. The use applied for did not involve substantial building development and could be stopped with ease. The Appeal Board, however, had not been advised of the possibility and feasibility of using such an arrangement. Although it knew about the short-term nature and minor environmental impact of the use, the Appeal Board had applied a high- hand policy upon a use which, it acknowledged, had public benefits. To grant permission for a definite period of time, subject to satisfactory resolution of access problems and environmental performance, should not create too much long-term damage to the environment particularly because the site had likely been ‘formed' and was therefore unlikely to be reverted to active agriculture. The ‘ad hoc' or small-scale of the application was indeed a favourable consideration. On the contrary, if the application involved a permanent and massive conversion of viable farm land or scenic green fields or fish ponds to a metal workshop, the decision would perhaps have been different.
Compare the teleological logic adopted by the Appeal Board in this case and that in the Henderson case regarding s. 20(6A) of the Town Planning Ordinance. In the Henderson case, the relevant statutory plan was the DPA Plan under which an application, a review or an appeal was made, not an OZP that replaced the DPA. The rule in the Henderson case was affirmed by the Privy Council. (See the Henderson case, post.)
Principles, Impact or Benefits?
The Appeal Board explained at great length the minute environmental problem of the application and even accepted the appellant's case about traffic arrangements. Yet, it also resolved to dismiss it on the grounds of principles, as it had done so for the previous case. Similarly, in the closing sentences it implied that an applicant could, under exceptional circumstances, obtain permission by making a case on strong environmental or social grounds. Given the deterministic tenor about the objectives of the DPA Plan as 'found' by the Appeal Board, one wonders just what sort of industrial use could possibly be permitted.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Objective and Proper Assessment of Environmental Impact
It was not reported whether the Environmental Protection Department had any objection to the proposal. Nor was it known whether the assessment of the Appeal Board had been conducted by reference to such specialist advice or in accordance with the relevant environmental protection standards and guidelines in the Hong Kong Planning Standards and Guidelines (HKPSG). The HKPSG is an administrative policy document that binds government departments. Its existence is to ensure that provision of public goods and application of professional judgment are equitable and objective.
Use of Photographic Evidence
Photos show physical features well but do not in themselves provide an unambiguous advice about the policy interpretation of the environment. Whether or not, or to what extent the site encroached upon the vicinity of Sites of Special Scientific Interest (SSSI), Country Parks, Special Areas, 'fung shui' woods (woods planted according to Chinese geomancy customs), and so on, were relevant factors to consider. These conceptual entities cannot be 'seen' from a mere inspection of the photos. A professional planner had to point out to the Appeal Board as to what extent the application of planning conditions, such as plantation of trees and shrubs as visual and noise screens could be realistic. These should have been relevant factors for consideration. In this case, the Appeal Board realized that they 'tend to exaggerate the tranquil rural aspect of the neighbourhood rather than its degraded nature' and were hence 'misleading'. Obviously, therefore, it would not be too difficult to blend the workshop into the environment had proper landscaping measures be imposed.
The Relevance and Irrelevance of Self-interest
The Appeal Board in this case had been badly advised regarding the point about self-interest. Though at the time of the appeal Hong Kong had not been provided with a constitutional law assurance of capitalism, it is common sense that land user has a rightful expectation of furthering his or her own interest. The Town Planning Ordinance is meant to cater for the health, safety, convenience and general welfare of our society. The self-interest of being a supplier of government contractors is definitely a dignified kind of self-interest; it should be ranked no more and no less than that of a diligent counsel for the Town Planning Board.
Questions:
1. Are there any legislative, common law or written policy directives stating that alleged unauthorized development must not be given planning permission?
Planning Appeal Cases
2. What has happened to the site since the dismissal of the appeal?
References:
Cases:
1. The mischief planning enforcement legislation targets
AG v Melhado Investment Ltd. [1983] HKLR 327
2. Relevant planning enforcement (See Appendix)
Auburntown Ltd. v TPB HCMP No. 222 of 1993
Tsei Kwei King & Cheung Kam v AG MP No. 1509 of 1993
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
183
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of 1994
Regina v Tang Yip and Yeung Fook Mui Magistracy Appeal No. 864 of 1994
Regina v Helen Transportation Co. Ltd., Liu Ka Sing and Chan YukKwan Magistracy Appeal No. 303 of 1995
Regina v Power Straight Ltd., Dragon Friend Ltd. Magistracy Appeal No. 644 of 1995
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5, 8, 9, 10 and
11.
Town Planning Board, TPB-PG NO. 11, “Town Planning Board Guidelines on Factory/Workshop/Warehouse Use within Unspecified Use Area on Development Permission Area (DPA) Plans under Section 16 of the Town Planning Ordinance', February, 1992.
THE BOWEN ROAD CASE
Case Name: No. 17 Bowen Road, Mid-Levels East, Hong Kong [the Bowen Road Case]
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Planning Appeal Case No.: 02/93
Similar Cases: cases nos. 05/92, 15/92, 18/92, 19/92, -, 04 and 05/93, 13/93, 17/93, 12/94, 05/95, 16/95 and 22/95 [the OTB, Ultra Force, Kingspeed Engineering, Kun Kee Motor, -, and Treasure Base (2), Henderson,
184
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Shun Fat Container, Lai Sun Development, Planet Universal, Arzignano and Lucky Gain Cases ] regarding the nature of planning and the market or private interest/public interest;
Nature of the Case: Green Belt zoning, expert opinion, uses always permitted in all zones, public interest.
Date of s. 16 application: 23 March 1992
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Date of Hearing: 21 June 1993
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Date of Decision: 29 June 1993
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Miss V. Patel for the Town Planning Board (b) Urbis Travers Morgan Ltd. for the appellant
Decision: Appeal dismissed
• Rules Laid down by the Decision:
Application for private development on Crown land in the Green Belt generally will not be entertained if the development has no public interest contribution.
Background:
The subject site was about 27 metres above Bowen Road, a narrow track which permitted only one way traffic. Lands were zoned Green Belt outside its property boundary in the draft Mid-Levels East Outline Zoning Plan S/H12/2 (the OZP). The Green Belt Zone, which was Crown property, was well wooded. A two-storey house had been built in the 1920s and the house obtained access to Bowen Road through a footpath which had been constructed as a right of way on Crown land. The footpath joined Bowen Road at a spot where it was a bridge structure with a narrow width of about 2 metres. A stream runs down the steep hillsides beneath this bridge. Bowen Road, close to private vehicles for this and other sections, is a well-known attraction for walkers, hikers and joggers.
In March 1992, the appellant made a s. 16 application for redeveloping the lot into two town houses. The proposal included the erection of an 'inclined passenger elevator' on Crown land to connect the subject site with Bowen Road and also the development of a car parking area on another piece of Crown land. The application was rejected by the Town Planning Board and again in a s. 17 review heard in November 1992. During the review hearing, it was reported that the elevator was no longer put forward as part of a proposal to redevelop the site but for the convenience of the appellant's family, who was 'elderly and found the existing access difficult to negotiate and inconvenient'.
Planning Appeal Cases
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Arguments:
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The appellant argued that the elevator structure would not have adverse environmental impact in the long term. The contention of the Planning Department that the proposal destroyed the natural environment had been exaggerated. A manager of the lift company testified that there were technical environmental-friendly methods and designs which could leave the trees more or less intact.
The Town Planning Board held that the proposal would have adverse environmental impact on the environment as mature trees would be felled.
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
Impact on Environment Was Not the Decisive Point
The Appeal Board accepted the appellant submission as regards the impact of the elevator on the environment. The Appeal Board were satisfied that the adverse comments of the Planning Department had been 'somewhat exaggerated'.
Appellant's Difficulties Were Not Real
The Appeal Board found out that the appellant was in his 50s and had not lived in the house for many years. Apparently, the existing access arrangement was not a real problem for him.
The Decisive Point: Public Interest
The Appeal Board came to main issue: "The case, as we see it, boils to one narrow point: Is it right, as a matter of principle, that there should be development in the Green Belt, for the purpose proposed, to enhance the amenities of a single private property?' (para. 11) The conclusion the Appeal Board reached was: 'On a fine balance . . . this proposed "development" in Green Belt, while slight in its environmental impact, has no benefit whatever to the public at large and should not be allowed to go ahead in order to enhance the amenity of one house.' (para. 12)
Comments:
The Wider Environment of Bowen Road
The Appeal Board judgment was entirely incorrect. In fact the real environmental impact and visual intrusion affecting the Green Belt came from urban development on Kennedy Road, the Wanchai proper and Wanchai reclamation areas. The high-rise development has almost screened off the view of Victoria Harbour from Bowen Road. In the 1960s, it was still possible for a passenger on a ferry to enjoy the view of Bowen Road
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and the hills behind. This is no longer possible now.
The Public Interest Arguments
Town planning should deal with appropriate land uses and their manifestation. It should not be restricted to the interests and needs of an existing owner of property. That the appellant did not seem to have disclosed his or her real intent (which otherwise had only implications about change of titles but no other adverse physical or social consequences) should not have been a material consideration. Following a Coasian cost- benefit approach, the real criteria should perhaps be: (a) would the development have harmful environmental effects which could not be mitigated or compensated by greater social benefits; and (b) would the development have unacceptable social costs which could not be compensated. In this case, answer to the first question is positive. The same could be advanced for the second question because the lessee would have to pay a premium to the government and hence compensate the public in cash. The payment would be for obtaining a licence to develop on Crown land whether or not the lessee had already had a right of way. In addition, the Town Planning Board could have imposed planning conditions, which would ensure that the development became a visual attraction and benefit to the public.
Even if the proposed development has no benefit for a third party, the fact that it benefits the applicant without harming a third party attains 'Pareto optimality'. In simple terms, the interest of the applicant as a member of the public is part of public interest.
Any Need for Planning Permission
On the cover pages of the OZP, there are certain uses which are permitted in all zones. It is an interesting question as regards whether there was a real need for the elevator, if it is seen as a kind of road infrastructure or utilities.
Questions:
1. What kind of Column 2 use was the elevator?
2. What has happened to the site since the dismissal of the appeal?
(See Photographs 9a, 9b and 9c)
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 9 and 10.
Town Planning Board, TPB PG-NO. 10, "Town Planning Board Guidelines for Application for Development within Green Belt Zone under Section Section 16 of the Town Planning Ordinance', July, 1991.
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Photograph 9a Subject Site of the Bowen Road Case in May 1998
导购
Photograph 9b The 'Seaview' of Bowen Road from the Position in Photograph 9a
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Photograph 9c A Lift Shaft along Bowen Road near the Subject Site
THE TREASURE BASE (1) AND (2) CASES
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Case Name: Lot 1410A in DD 114, New Territories (the Treasure Base (1) Casel
Planning Appeal Case No. : 04/93
Case Name: Lot 1410B in DD 114, New Territories [the Treasure Base (2) Case
Planning Appeal Case No. : 05/93
Similar Cases: cases nos. 11/93 (the Shell Hong Kong] regarding Bill of Rights;
Planning Appeal Cases
15/92,, 13/93, 16/93 [the Ultra Force,
189
Henderson and Naturaluck Cases] regarding presumption in favour of development: the rule that 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;
05/92, 15/92, 18/92, 19/92, 02/93,
>
"
-, 13/93, 17/93, 12/94, 05/95, 16/95
and 22/95 [the OTB, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Bowen Road,
Henderson, Shun Fat Container, Lai Sun Development, Planet Universal, Arzignano and Lucky Gain Cases ] regarding the nature of planning and the market or private interest/ public interest;
05/92,
lease;
[the OTB,
04/92, 07/92, 10/92, 15/92,,
Case] regarding the implications of the Crown
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13/93, 17/93, 08/95, 16/95, 21/95 and 01/ 97 [the Sung Dynasty City, Full Look, Treasure Base (1), Ultra Force,
Henderson, Shun Fat Container, Yin Ning Savings, Arzignano Leather, Cheung Hing Lung and Connie Law Yuk Wah Cases] regarding the Town Planning Board or Appeal Board procedures;
08 and 09/92, 13/92, 15/92, 18/92, 19/92, -, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 09/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, and 21/95 [the Yuen To-shing and Yuen Shu-ling, Pak Kong, Ultra Force, Kingspeed Engineering, Kun Kee Motor,
Henderson,
Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans; 05/92, 07/92, 13/92, 11/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, 21/95, 26/95 and 04/96 [the OTB, Full Look, Pak Kong, Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding appeals stated explicitly to be against planning intention;
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07/92,, 11/93, 16/93, 19/93, 01/94, 09/94, 05/95, 07/95 and 28/95 [the Full Look, Treasure Base (2), Shell Hong Kong, Naturaluck, Ever Need, Tang Sai Hung and Lee Yiu Kam, Planet Universal, Delight World and Fine Tower Cases] regarding incompatibility with adjoining uses, environment/development;
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01/94, 09/94, 02/95, 05/95, 07/95, 08/95 and 21/95 [the, Tang Sai Hung and Lee Yiu Kam, Charming City, Planet Universal, Delight World, Yin Ning Savings and Cheung Hing Lung Cases] regarding agricultural and rural setting of the site;
03/92, 08 and 09/92, 12/92, 14/92, 15/92, 18/92, 19/92, ——, 11/93, 13/93,
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
14/93, 01/94, 05/94, 10/94, 14/94, 07/95, 08/95 and 22/95 [the Wo Yi Hop Road, Yuen To-shing and Yuen Shu-ling, On Luk Tong, Good Luck, Ultra Force, Kingspeed Engineering, Kun Kee Motor,
Shell Hong
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Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World, Yin Ning Savings and Lucky Gain Cases] regarding adverse traffic/access problems;
12/92, 14/92,