,
12/93 and 14/93 [the Good Luck, On Luk Tong, Yook Tong Estate and Yiu Cho Investment Cases] regarding parking problems.
Nature of the Case: Block Crown Lease, schedule of uses in the lease, Unspecified Use (OU) Zone, Development Permission Plan (DPA) Plan, existing uses, planning intention, Notes of DPA, Definitions of Terms for Interim Development Permission Area Plans/Development Area Plans, definitions of terms used in the Notes, Explanatory Statement of DPA, presumption in favour of development, columbarium and garden uses, cemeteries and tombs, indigenous villagers, burial rights, Rural Activity Area (RAA), Agricultural Land Rehabilitation Scheme (ALRS), Subregional Land Use Plan, New Territories Rural Planning and Improvement Strategy (RPIS), Land Development Policy Committee (LPDC), aerial photographs, Article 21, Bill of Rights, Certificates of Exemption, Buildings Ordinance (Application to the New Territories) Ordinance, Chapter 131; planning unit
Dates of s. 16 application: 1 November 1991 for Case 1, 8 May 1992 for Case 2
Date of Hearing: 11, 12, 13 October and 7 December 1993
Date of Decision: 22 December 1993
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Mr J. McNamara and Miss V. Patel for the Town Planning Board (b) Messrs Wong, Hui and Co., Solicitors for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) 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.
(b) A commercially run and a large-scale columbarium is not compatible
with surrounding agricultural uses.
(c) A columbarium is not an ancestral hall.
(d) It is not against human rights to restrict burial rights in Block Crown.
lease to indigenous villagers.
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191
(e) A Certificate of Exemption in respect of buildings to be used for non-
industrial purposes does not cover the construction of a columbarium.
Background:
The subject site consisted of Block Crown Lease Lots 1410A and 1410B in DD 114 which were granted in 1906 and owned by the appellant, Treasure Base Development Limited (Treasure Base). Lot 1410A was described in the schedule of the grant as graveyard/orchard waste. The subject site fell within an 'Unspecified Use' Zone in the draft Shek Kong Development Permission Area Plan No. DPA/YL-SK/1 (the DPA Plan). The Notes to the DPA Plan permitted as of right the following uses: agricultural use, ancestral hall, burial ground, plant nursery, police post/police reporting centre, post office, rural committee building, shrine, and tree plantation. The two lots were the subject of two separate s. 16 applications. They had been kept separate because Treasure Base believed that a new planning unit would be created which might prejudice what it regarded as the existing use for Lot 1410A. One appeal concerned a proposed columbarium on Lot 1410A. The proposal comprised 15 structures of which 12 would provide 8000 niches for the deposit of urns for containing human ashes, 2 ceremonial halls for memorial ceremonies and 1 administration building. The other appeal related to a memorial garden on Lot 1410B. This garden would provide vehicular access, parking spaces and other supporting facilities to the Columbarium. A parking area with 44 parking spaces for cars and 11 parking spaces/drop-off area for coach was included in the proposal. The garden would also provide access to the columbarium from Kam Sheung Road. The memorial garden would have fish ponds, play areas, sitting areas, trees and market gardening areas for agricultural
use.
The Town Planning rejected both applications in the first instance and in the s. 17 review.
As the columbarium was regarded to be dependent on the memorial garden, and vice versa, by the Appeal Board, the two appeals were heard together.
Arguments:
The appellant argued on the following grounds:
Planning Intention
(a) Although the 'planning intention' for the area, stated in the Explanatory Statement of the DPA Plan, was to preserve and encourage agricultural activities, low density residential development might also be allowed on either sides of Kam Sheung Road. The Appeal Board should not follow such intention slavishly.
(b) Market gardening and agricultural use were provided in the memorial
garden.
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(c) There was a 'presumption in favour of development' in the United
Kingdom.
Ancestral Hall
(d) The columbarium was in fact an ancestral hall, an always permitted
use.
Compatible Use
(e) The proposed uses were compatible with the environment. Columbarium and cemeteries were commonly found near residential areas and were normally regarded as institutional uses.
Traffic Implications
(f) Strict car parking measures would be taken by the property
management to minimize traffic problems created.
(g) Police could be hired on a private basis to manage the traffic during
major festivals.
(h) One- or two-storey underground parking could be built below the
unbuilt area of the subject site.
Existing Use
(i) Inference could be made from the description of graveyard/orchard waste for Lot 1410A that the site was actually used as a mass grave for people who died of the plague at the turn of the century.
(j) To restrict burial for indigenous population of the New Territories
contravened Article 21 of the Bill of Rights.
Equity Rights
(k) A Certificate of Exemption had been issued in respect of building works under s. 5A of the Buildings Ordinance (Application to the New Territories) Ordinance, Chapter 121.
The Town Planning Board was reported to have made these points: (a) Regarding planning intention, 'the proposed development is not in line with the planning intention for the area which is to preserve and encourage agricultural activities as far as possible.' (para. 21)
(b) Regarding the compatibility of columbarium uses and adjoining uses, 'the proposed development is not compatible with the surrounding uses which comprise mainly agricultural activities.' (para. 31)
Reasons for Decision:
The Appeal Board dismissed all the arguments of the appellant and upheld the position of the Town Planning Board. The reasons of the Appeal Board were as follows.
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Proper Interpretation of Planning Intention
193
The Appeal Board considered the Northwestern New Territories Subregional Land Use Plan, adopted by the Land Policy Development Committee (LDPC) on 24 November 1989, which showed that the site was designated 'Rural Activity Area' (RAA). The subject site also fell within the extension of an Agricultural Land Rehabilitation Scheme (ALRS). The Appeal Board also had considered the Explanatory Statement of the draft DPA Plan. Para 2.2 of the Statement stated that the plan was a stop-gap measure designed to 'provide guidance for planning and to facilitate development control within the DPA during the period required for detailed analysis of land use pattern, study of infrastructure provisions and examination of development options before the formulation of an outline zoning plan'. According to an officer of the Agricultural and Fisheries Department, the ALRS had proved successful. Twenty-nine hectares of fallow land had been brought back to cultivation. In Cheung Po, over 90% of fallow land had been rehabilitated. Moreover, there was a definite work programme for Yuen Long area under the New Territories Rural Planning and Improvement Strategy (RPIS). One million dollars would be spent on communal irrigation and drainage in Yuen Long in 1995/1996 for facilitating the extension of the ALRS to the area containing the subject site. From aerial photographs taken in 1990, the site was seen to have a strong agricultural background. The bulk of the site was seen to have been under cultivation and there was evidence that used the site was for agriculture in the more recent past. It was considered not difficult to return the subject site to agriculture though on the built-up parts of the site, only hydroponic farming would be possible.
Proposed Market Gardening and Agricultural Activities Were Insufficient
The Appeal Board considered the scale of the proposed market gardening and agricultural activities in the memorial garden far from being sufficient. The garden was regarded by the Appeal Board as being 'merely an adjunct to the Columbarium'. (para. 17)
Presumption in Favour of Development as Interpreted from the Point of View of Planning Intention
The Appeal Board remarked that Blundell and Dobry's Planning Appeals and Inquiries (4th ed.) referred to this general presumption in favour of development and concluded on page 12:
The presumption in favour of development is therefore important, but should not be overstated. The appellant must overcome any serious objections aesthetic, technical and of policy; but, if he can do so, he does not have to establish need. He is entitled to a permission whether or not he can make out a positive case in favour. Furthermore, it may
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not be enough for the authority to rely on a literalistic application of the words of a policy if the latter's objectives would not be harmed. (as quoted in para. 19)
The Appeal Board pointed out that there were differences between town planning in Hong Kong and that in the United Kingdom. However, the Appeal Board were 'prepared to proceed on the basis that planning permission should be granted to the extent shown or provided for or specified in the plan, having regard to all material considerations, unless there are good reasons for refusal.' (para. 20)
The Appeal Board concurred with the Town Planning Board's conclusion that the proposed uses were not in line with the planning intention for the area.
A Columbarium Was Not an Ancestral Hall
Having considered the 'Definitions of Terms for Interim Development Permission Area Plans/Development Area Plans', which were not part of the DPA Plan but did help interpret the Plan, the Appeal Board noted that columbarium use 'means any place or vault with niches or urns that contain ashes or cremated bodies' whereas an ancestral hall 'means a place for common worship or remembrance of the ancestors of the villagers'. The Appeal Board held that even without referring to such definitions, they had no doubt that the proposal was definitely a columbarium but not an ancestral hall. Indeed, if the proposal had really been an ancestral hall, there would have been no need for planning permission. The Appeal Board concluded that while an ancestral hall was very much part of a rural scene, a columbarium was not.
A Large Commercial Columbarium Was Incompatible with an Agricultural Environment
The Appeal Board noted the opinion of the District Planning Officer, Mr Paul Ng, that columbarium and cemeteries were close to residential areas 'due to historical reasons and by force of circumstances'. He denied that columbarium use was regarded as institutional uses for zoning purposes. 'Other specified use' was the proper zoning designation. The Appeal Board held that it was not proper to compare burial grounds and tombs in the New Territories, where only indigenous New Territories villagers were permitted to be buried, with a columbarium open to the public. The Appeal Board stated that the appellant had taken the meaning of 'compatibility' as one of 'coexistence'. The Appeal Board stated that many uses could coexist but were not compatible. In conclusion, 'given the commercial nature and scale of the columbarium, we agree that it is not compatible with the surrounding uses which are predominantly agricultural.' (para. 32)
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195
The Appeal Board was not impressed by the traffic management, police hire, or the transport consultant's underground car parking proposals raised in the course of the appeal hearing. Furthermore, as regards the underground parking plan, the proposal should have been the content of a separate s. 16 application as it varied the nature of the planning application being heard before the Town Planning and Appeal Boards. The Appeal Board concluded that the columbarium would likely lead to illegal parking on Kam Sheung Road. This would lead to both traffic and pedestrian safety problems.
The Lots Were Not Burial Grounds
The appellant submitted that an irresistible inference could be drawn from the description in Block Crown lease regarding the existing use. However, the Appeal Board was cynical about the actual use of the subject site as a mass grave. The reason was that the appellant admitted that there had been no trace of any human remains when infrastructure works were carried out on the site. The Appeal Board did not agree with the appellant's submission on this point because the remains could have so rotten to leave no trace in the passage of time. The Appeal Board did not regard the existing use of the subject site to be a graveyard. Nor did it agree that a graveyard should have led to permission for a columbarium.
It Was Not against Human Rights
The Appeal Board stressed that only indigenous population could be buried in Lot 1410A. This was not considered to be against the Bill of Rights as it had heard no argument on that.
Certificates of Exemption Was Not Extended to Columbaria
The Appeal Board noted s. 5A and s. 6 of the Buildings Ordinance (Application to the New Territories) Ordinance, Chapter 121 and did not regard that a Certificate of Exemption in respect of buildings to be used for non-industrial purposes would also cover the building of a columbarium.
No Equitable Rights
The Appeal Board did not believe that the so-called equity consideration should have prevailed because there were substantial planning objections to the proposed development.
Conclusion
On the above grounds, the Appeal Board did not believe that the proposed
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columbarium and memorial garden were desirable from a planning point of view.
Comments:
What Was the True Planning Intention?
The Appeal Board in this case was first reported to have discovered the relevant 'planning intention' for the subject site from materials outside the statutory town plans, its Schedules of Amendments, Notes, or Explanatory Statements; Town Planning Board Guidelines; or the Crown lease. The intention was located in the RAA land use designation in the administrative Subregional Land Use Plan (SR Plan). This was a logical approach, as district plan needs to be interpreted in a wider regional and even territorial context. (However, this approach was abandoned in the Lai Sun Development case, where the Appeal Board dismissed as irrelevant a development statement of Metroplan, the subregional plan for Hong Kong Island, Kowloon, New Kowloon and Tsuen Wan new town.) A problem remains: did the DPA Plan or the SR Plan preclude the columbarium use as a rural activity as a matter of principle?
The subject site was not designated Agricultural Priority Area (APA), Countryside Conservation Area (CCA) in the SR Plan where, definitely, a large-scale columbarium structure did not fit the bill.
The Appeal Board relied heavily on the ALRS as a reason against the proposal. Just as the Appeal Board reckoned that the Block Crown Lease's description of a graveyard did not compel the use of the land for burial purposes, the Appeal Board should have been counselled that the ALRS did not impose a legal duty on the lessee to follow. The human and property rights of the lessee at common law and in the Bill of Rights, not to mention the Basic Law in draft at that time, to put land for his chosen purposes had to be considered. The approach taken by the Appeal Board reflected that it believed that commercial agriculture had a chance to survive, if not having a bright future, in Hong Kong. The inception and initial success of the ALRS had to be in the context of a structural collapse of the farming sector in Hong Kong due to sustained rise in labour cost, deterioration of water qualities and, above all, the impact of cheap imports.
It was bad advice to the Appeal Board about the commercial nature of land uses. There is simply nothing in the leasehold, town planning or even social system of Hong Kong suggesting that a commercial enterprise is in itself a bad thing. The Town Planning Ordinance was not passed to 'tackle' commercial uses of land. Agriculture has been largely a private commercial activity. The Appeal Board, in fact, should have been counselled on whether a commercial-run columbarium would benefit the public (even if it had to be narrowly defined as indigenous villagers: see arguments below in the section on columbarium) by taking pressures off the government-run columbaria, which could be seen to be too remote from a certain sector of the public.
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Neither the statutory Notes nor the non-statutory Explanatory Statement to the DPA Plan precluded columbarium uses of the zone. It would be illogical to reject the application as a matter of principle because this would entail that the Town Planning Board would gazette a DPA Plan which permitted uses against planning intention to be retained or not excluded from the Notes.
Once the Appeal Board accepted the presumption in favour of development (see detailed arguments below), it should have applied its energy to see whether the proposal was implemented properly. Certainly, the Appeal Board did that but it came back to the old question of intention again in the closing argument.
Furthermore, the Crown lease in fact recorded the use of the site as a graveyard. The Lands Department would not take enforcement action against using one of the lots for burial purposes - leaving alone the dispute about whether a columbarium would similarly be permitted. That no human remains were found in the earth was simply consistent with Chinese customs of removing human bones to urns. There is no doubt that the Block Crown lease permitted the continuation of that use, though there was no restriction on the lessee to give up that use permanently.
Presumption in Favour of Development
The Appeal Board had apparently been badly advised about the use of the concept 'presumption in favour of development' in the United Kingdom. Neither had it been well advised on how the concept could properly be applied to Hong Kong. The quoted passage does not fully reflect the nature of the presumption. The concept was actually a legislative innovation of the Conservative Government with the purpose of removing burdens on the developers due to the tendency of local councils to reject or frustrate development proposals. The idea ensued from a series of White Papers, which pointed to the fact that this persistently reactionary mentality of planning authorities had inhibited investment activities. The planning of land in a local government area in the United Kingdom context was similar to that created by the 'Unspecified Use' Areas in Hong Kong's IDPA and DPA Plans: all developments therein needed planning permission.
While the Appeal Board argued against the idea of a presumption in favour of development in the Ultra Force case, ante, it was ready to accept the concept in the present case. The Appeal Board's perception of the presumption was entirely correct. Unfortunately, it had turned a blind eye to the fact that there was no expressed presumption against columbarium uses in either the SR Plan or the DPA Plan. See arguments in the previous section.
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The Question of Compatibility and Coexistence
The issue of compatibility was not competently advanced to the Appeal Board. A series of relevant questions were not raised for the consideration of the Appeal Board:
(a) Should columbarium uses be located only in government-selected
locations?
(b) Was the supply of columbaria in the region adequate?
(c) Where would such uses generally be better located: in the urban core,
the urban fringe or in the rural area?
(d) Granted that the applicant had no interest in agriculture, what would be the second best use of his land if the proposed use was rejected? Would these alternative uses impose more undesirable effects? (e) Where were the common locations for existing government-planned or
government-approved columbaria?
(f) Was there any strong local support or objection to the proposal?
None of these issues was reported to have been raised. The last two questions are discussed further below. Before leaving the issue of compatibility, one should not have a stigma about such an important facility in the life journey of a human being. In terms of visual beauty, burial grounds could be major attractions. The imperial tombs in Nanjing and Beijing, China, and the military cemeteries in Stanley and Cape Collinson, Hong Kong, are all scenic attractions. It is sad that the Appeal Board had not been advised of the aesthetic quality of the proposal. Neither was it presented rigorously with the rural or countryside setting of columbaria in Hong Kong. The DPO seemed to have denounced the location choice of existing burial places and columbaria, some of which, if not most, are in fact planned for or approved by the government. His views had to be considered with great care.
Where Are the Columbaria Commonly Found?
The Chinese population would certainly tend to consider facilities such as moratoria, funeral parlours, crematoria, columbaria, graveyards and cemeteries as belonging to one category. If an opinion poll is organized, the results will likely be that these facilities should not be located in areas of major population concentration though such location is conveniently accessible. Population densities and accessibility, unfortunately, are often trade-offs. Yet, due to the very ceremonial and 'rarity' of the need to use such facilities, the predominant consideration will be in favour of the principle to locate such facilities, notably land- extensive cemeteries and columbaria, away from the urban areas. On the hillside of Shatin, there is a famous columbarium. Admittedly, it is near major mass transit facilities and is built on slopes, not flat farm land. Yet, the way in which this case was argued does not benefit the Town Planning
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Board as it did not clarify the major decision criteria for permitting columbarium uses in rural areas.
Traffic and Visual Assessment
Traffic problems and design are the real issues in this case. It is most unfortunate that the appellant did not furnish an up-to-standard traffic assessment. This assessment should include a study of the arrangements and problems of existing public and private columbaria, and the behavioural patterns of visitors to such facilities. It is also disappointing that matters regarding its design were not reported.
Evidence from the Lease: No Relevance? No Trace of Human Remains?
These issues have been dealt with in sections above.
The Question of Burial Rights
A use with a restricted market should not have been a reason for rejection. Did the indigenous villagers need columbaria in the light of tight government policy restricting burial on Crown land? It is unfortunate that the issue of burial policy for indigenous villagers was not argued rigorously before the Appeal Board.
Public Opinion Relevant?
Development of columbaria in the New Territories have been hot political issues. Did this case arise from such a context? Had it been the case, should the factor of local reaction have been considered to augment the compatibility issue, which would definitely be a function of subjective local preferences?
Questions:
1. Where are the existing government-planned and approved columbaria? 2. Why didn't the applicant go ahead using Lot 1410A as a burial ground?
What is the use of the subject site now?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 3, 8, 9 and 10.
UK Planning Circulars:
Presumption in Favour of Development: DoE Circular 14/85, reproduced in Policy Guidance Note 2, para. 15.
200
Cases:
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
AG v Melhado Investment Ltd. [1983] HKLR 327.
Books:
Ball, Simon and Bell, Stuart. Environmental Law. London: Blackstone,
1991, pp. 159-208 in particular.
Carnwath, Robert; Hart, Gary and Williams, Anne. Blundell & Dorby's Planning Appeals and Inquiry. London: Sweet and Maxwell, 4th ed., 1990.
THE SHELL HONG KONG CASE
Case Name: Lot No. 5 in DD 125, Ha Tsuen Shi, Yuen Long, New Territories [the Shell Hong Kong Case]
Planning Appeal Case No.: 11/93
Similar Cases: cases nos. 04 and 05/93 [the Treasure Base (2) Case] regarding the Bill of Rights;
-, 16/93 [the Naturaluck Case] regarding PFS application;
"
08 and 09/92,
"
06/94, 18/95 [ The Yuen To-shing and Yuen Shu-ling,
-, Ng Siu Wing, Jetway Civil Cases] regarding small house development;
05/92, 07/92, 13/92, 04 and 05/93,
"
9
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, Treasure Base (2),
—, 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;
04/92 and 07/92 [the Sung Dynasty City and Full Look Cases] regarding the location of planning intention (in opinion of the District Planning Officer (DPO)) before the Appeal Board;
07/92, 04/93 and 05/93, —, 16/93, 19/93, 01/94, 09/94, 05/95, 07/95 and 28/95 [the Full Look, Treasure Base (2), -, 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;
01/91, 03/92, 12/92 [the Alticosmic, Wo Yi Hop Road, and Good Luck
Cases] regarding impact of goods vehicle traffic;
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•
201
03/92, 08 and 09/92, 12/92, 14/92, 15/92, 18/92, 19/92, 04 and 05/93,
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, Kun Kee Motor, Treasure Base (2), -, 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;
15/92,, 07/95, and 08/95 (the Ultra Force,
Yin Ning Savings Cases] regarding land resumption;
"
Delight World and
10/94, the Sun Link Properties Case] regarding the Second Comprehensive Transport Study (CTS-2).
Nature of the Case: petrol filling station (PFS), Block Crown Lease, Demarcation District (DD), Interim Development Permission Area Plan (IDPA Plan), Director of Planning's approval, Development Permission Area Plan (DPA Plan), Village Type Development Zone (V Zone), Notes of DPA Plan, Column 2 uses, planning intention, Layout Plan (LP), Certificate of Exemption, beneficial drainage impact, environmental standards, traffic impact, Comprehensive Transport Study 2 (CTS-2), small house policy, Article 10, Bill of Rights, photographs.
Date of s. 16 application: 25 February 1992
•
Date of Hearing: 11-13 January 1994
• Date of Decision: 21 March 1994
•
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss V. Patel for the Town Planning Board (b) Mr Benjamin Yu, barrister for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) Where the mitigation measures of an application involves land
resumption, the application shall generally be rejected.
(b) The general planning intention for a V Zone is for orderly development
of small houses.
(c) The question of whether the composition of the Town Planning Board violates the Bill of Rights is a not a matter for the Appeal Board but the High Court to consider.
(d) The Bill of Rights can be ignored where there are other reasons to
dismiss an appeal.
(e) Article 10 of the Bill of Rights concerning the composition of the Town
Planning Board is best interpreted by the High Court.
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Background:
The subject site was Lot No. 5 Demarcation District (DD) 125. With a total area of about 890 m2, the site was within a Village Type Development' (V) Zone in the draft Ha Tsuen Development Permission Area Plan No. DPA/YL-HT-1 (the DPA Plan) which was published on 12 July 1991. The Notes of the draft DPA Plan provided that petrol filling station (PFS) use might be permitted with or without conditions, by the Town Planning Board upon application to the same Board.
Prior to the publication in the gazette of the Ha Tsuen Interim Development Plan the appellant had acquired the site and had also obtained a Certificate of Exemption on 16 July 1990. Since the site had become part of the V Zone of the Ha Tsuen IDPA Plan, development of the PFS after 17 August 1990 required permission from the Director of Planning. The appellant made an application for a PFS with a single-storey kiosk of 59 m2 and two pump islands with canopies above. On 10 June 1991 the permission was rejected by the Director of Planning under s. 26. On 12 July 1991, the draft DPA Plan was published in the gazette. On 25 February 1992, another application was made under s. 16 of the Ordinance. On 18 May 1992, the Town Planning Board rejected the application. The Town Planning Board held a review on 23 April 1993 and affirmed its original decision on 28 May 1993. On 26 July 1993, the appellant lodged in a notice of Appeal.
Arguments:
The appellant argued that:
(a) the question for the Appeal Board was not whether the site was ideal
but whether it was suitable from a planning point of view;
(b) as regards the Town Planning Board's traffic-related objections, the appellant was prepared to relocate an existing bus bay and zebra crossing at Tin Ha Road; to construct a new landscaped footpath/cycle track to the proposed bus bay and zebra crossing (to improve pedestrian safety for farmers to a gettable collection point); and to relocate a latrine and refuse collection point (RCP) to positions shown on the Layout Plan No. L/YL-HT/IE (LP). In addition, the appellant was ready to construct a barrier along the back the footpath adjacent to the site to regulate vehicular and pedestrian traffic; to provide adequate lighting to illuminate the ingress/egress of the PFS; to provide a minimum set back of 2.75 m from the kerb line of Tin Ha Road and ensure that the runout would not exceed 8 m in width at the kerb line adjacent to the carriageway. The PFS was just a neighbourhood PFS comparable to those in Sydney and hence would not induce traffic. The Comprehensive Transport Study-2 (CTS-2) was referred to. The objection based on the vegetable collection point was invalid as the volume of traffic generated was very low and it operated in off-peak hours;
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(c) as regards the Town Planning Board's objection on the basis of 'planning intention' for reserving the V Zone for small house development, too much land had been reserved for small houses;
(d) the appellant's rights under Article 10 of the Bill of Rights had been violated as the Chairman and some members of the Town Planning Board were not independent.
The Appeal Board stated that it was willing to proceed on the premises (a) of the appellant stated above.
The Appeal Board in its decision stated that it noted that the Environmental Protection Department was satisfied with the design of the PFS, and that the PFS would benefit the local drainage system. Yet, it decided to dismiss the appeal.
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
Traffic
A Superintendent of Police testified that the site was manifestly unsuitable for a PFS from the traffic management point of view as Ping Ha and Tin Ha Roads were grossly overloaded and congested; the site adjoined a bus stop, a RCP, a vegetation collection point and 2 public toilets. In addition, the site was close to a junction 80 m away and the road access was narrow (7 m). Right and left turns into the PFS might interfere with or interrupt traffic. As regards the appellant's traffic management proposals in response to police's concern, the Appeal Board felt that the proposed relocation of the toilet and RCP would involve land resumption and construction along Road B15 in accordance with the LP. As regards the appellant's infrastructural works for traffic safety, the Appeal Board found strength in the argument of the counsel for the Town Planning Board that the package proposed, laudable though it may be, just serve to demonstrate the unsuitability of the site for the PFS in the first place'. (para. 25) The Appeal Board did not, having regard to some photographs supplied by the government, subscribe to the argument that the PFS was merely a neighbourhood service and believed that a PFS in the proposed location would inevitably attract lorries and container trucks. The CTS-2 report was considered outdated as the Ha Tsuen area had been transformed into container storage depots. Moreover, there was no programme for any road widening work in the immediate future for Tin Ha Road. It was doubtful whether the completion of the West Access to Tin Shui Wai in late 1995 would significantly improve traffic situations of Tin Ha Road. The Appeal Board feared that as long as the container depots remained in the neighbourhood, which seemed likely, Tin Ha Road would continue to be heavily used by lorries and container trucks.
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Planning Intention
The Appeal Board accepted the District Planning Officer's view that the 'planning intention' for the V Zone was to concentrate village development in the zone to achieve a more orderly development pattern, so that there can be an economic and efficient use of land. This could also provide infrastructure and services to the area. Village expansion areas and other infrastructural improvements would be guided by detailed layout plans. The DPO stated that in the next 10 years, the demand for small houses would be about 880 sites but only 760 could be provided in the zone. Since there was still a shortfall of 120 small houses, land within the V Zone should be retained for small house as far as possible. The appellant's site was at the village core of Ha Tsuen Shi. It was 50 metres from the Ha Tsuen Shi 'Tze Tong' (ancestral hall) and was ideal for village extension. The Appeal Board accepted all his submissions and concluded that 'it is obvious that the planning intention is that 'the site should be reserved for village extension'. (para. 32) As regards the appellant's dispute about small house demand, the Appeal Board agreed with the DPO that it could not ignore the small house policy though it also stated that 'we must not be taken as agreeing with the suggestion that the policy is an abuse of the policy'.
The Appeal Board concluded that the PFS proposal was 'incompatible with planning intention'. (para. 33)
No Need to Deal with the Bill of Rights
'Under s. 6 of the Hong Kong Bill of Rights Ordinance, Chapter 383, in the event of a breach, we [The Appeal Board] can grant such relief as we have power to grant or as we consider appropriate and just in the circumstances.' (para. 35) However, the Appeal Board 'do not find it necessary to deal with this issue. On the evidence adduced before us, we have come to view that a PFS should not be permitted on the site because of traffic objection and incompatibility with planning intention.' The question of human rights is best answered by the High Court after full argument'. (para. 36)
• Comments:
Planning Applications and Conditions
One use of planning conditions is to ensure that proposed measures to mitigate adverse impact of an approved planning proposal are implemented. It is simply a fact of life that even lawful human activities would benefit a certain sector of the public at the expense of the others. Yet, this does not mean that such activities should be ruled out. The same principle is applicable to planning. Planning conditions, if properly applied, serve the objective of minimizing adverse spill-overs for the benefit of accepting a
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beneficial use. A PFS can be a beneficial use. The Appeal Board was definitely correct to point out the problems of the need for land resumption if the appellant's proposed mitigation measures were to be implemented. Yet, it is submitted that, following the principle stated above, it should not have attached any weigh to the argument advanced by the Town Planning Board, i.e. the complexity of the proposed measures entailed that the site was unsuitable for a PFS. What really matters should be credibility and feasibility, not complexity per se.
What Was the True Planning Intention in the Light of the Small House Policy?
This case is similar to the Full Look case in one interesting dimension, namely the location of 'planning intention'. Here again, that intention was found in the DPO's opinion before the Appeal Board, not in any statutory or other published materials. It is submitted that this approach is far from being logical. Had the Town Planning Board intended to dedicate the zone for small houses only, PFS should not have been a Column 2 use in the first place. Why should the Board 'intend' that an incompatible (and always rejected) use to be placed in that column for that zone in the specific DPA Plan, yet at the same time it requires the DPO to tell the Appeal Board (or an applicant) that included use is not really the Town Planning Board's intention?
Regarding the small house policy, it seems that the DPO regarded that (a) the V Zone should have been reserved exclusively for small houses, and (b) only those lands and all lands in the V Zone were suitable for small house development. Both views are contestable. From the perspective of planning, it is illogical to establish the consideration that the small house policy prevails over other land uses (whether there were traffic problems for the PFS was another question). Regarding the land for small house development and the 'demand and supply of sites' for small houses, whether there was adequate zoned V land per se should not be prioritized. What should have been more persuasive would be considerations on whether (a) the land, zoned V or otherwise, was within the 'village environs' of the relevant recognized villages, and (b) such lands were owned by the entitled villagers. Zoned land could not always be developed for small house purposes. Lands belonging to others who wanted to use such lands for other meaningful purposes are definitely different from lands owned and intended for small house development. It was most unfortunate that neither sides in the appeal brought these issues up before the Appeal Board.
The Bill of Rights
While the Appeal Board was reported to have ignored submission of the Bill of Rights due to the absence of arguments, the Appeal Board decided
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in this case to relegate matters to the High Court. The passive attitude of the Appeal Board may pose interesting questions for scholars interested in administrative law and the legal system.
Questions:
1. Will a PFS close to container depots remove congestion in routes along
which other PFSs are found?
2
Can the PFS be viable for selling gasoline for cars only?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 8, 9, 10 and 11.
THE YOOK TONG ESTATE CASE
Case Name: Nos. 446-448 Reclamation Street, Kowloon [the Yook Tong Estate Case]
Planning Appeal Case No.: 12/93
Similar Cases: cases nos. 04/92 (the Sung Dynasty City Case] regarding Comprehensive Development Area Zoning; 12/92, 14/92 and 04 and 05/93,
and Treasure Base (2),
parking problems;
"
>
14/93 [the Good Luck, On Luk Tong and Yiu Cho Investment Cases] regarding
03/92, 13/93 and 04/96 [the Wo Yi Hop Road, Container System Cases] regarding award of costs.
Henderson and
Nature of the Case: Comprehensive Development Area (CDA) zone, Land Development Corporation Ordinance, Land Development Corporation (LDC), Development Scheme Plan (DSP), Land Use Diagram (LUD), Notes and Explanatory Statement produced by LDC, Secretary for Planning, Environment and Lands (SPEL), objections to statutory plans, master layout plan (MLP), Airport Heights Restrictions (APH), powers of the Appeal Board to award costs under s. 17B (8)(c) of the Town Planning Ordinance; applications doomed to failure, professional advisors; public light bus (PLB) terminus.
Date of s. 16 application: 9 October 1992
Date of Hearing: 12–13 April 1994
Date of Decision: 9 May 1994
Chairman of Panel: Mr Justice Litton, OBE
Planning Appeal Cases
Representation:
(a) Mr Nicholas Cooney for the Town Planning Board
(b) Mr T.C. Chan for the appellant
•
Decision: Appeal dismissed
207
Rules Laid down by the Decision:
(a) A proposal involving a small percentage of land in a CDA without an indication of how the completed development might harmonize with a comprehensive development of the area must fail.
(b) Costs shall be awarded against a proposal which is doomed to failure
or where the appeal borders on frivolous.
Background:
The subject site had an area of 190 m2 and had been zoned as part of a Government/Institution/Community (GIC) Zone in the Mong Kok Outline Zoning Plan (the OZP). On 25 March 1988, the Town Planning Board rezoned the area bound by Argyle Street, Portland Street, Shanghai Street and Reclamation Street to 'Comprehensive Development Area' (CDA). On 30 July 1990, the Land Development Corporation (LDC) submitted a draft Development Scheme Plan together with a Land Use Diagram, Notes and Explanatory Statement to the Secretary for Planning, Environment and Lands (SPEL) concerning land use and related matters within the CDA zone. The materials were revised after a 'normal consultation process'. On 1 March 1991, the draft Development Scheme Plan S/K3/LDC1/1 (DSP) and Land Use Diagram S/K3/LDC1/D1/1 (LUD) were exhibited for public inspection for 2 months. Under s. 14 (3) of the Land Development Corporation Ordinance, the DSP was deemed to be a draft plan prepared by the Town Planning Board. Under the 'Remarks' which form part of the Notes, planning application should be in the form of a master layout plans which had to include information in relation to a host of matters. During the two months, 188 valid objections were received. The Town Planning Board heard the objections and did not amend the DSP or LUD. The appellant was not among the objectors. The DSP and LUD were later approved by the Governor-in-Council.
On 9 October 1992, the appellant made a s. 16 application for the erection of a 16-storey composite building with shops on the ground and first floors and flats on the upper floors. With a site area of 132 m2, the proposal required a set-back to enable Reclamation Street to be widened and realigned. The proposed building exceeded the height limits of the Airport Height Restrictions (APH). The Town Planning Board rejected the application. The appellant then submitted a revised master layout plan during the s. 17 review. The revised MLP contained a number of 'startling features'. (para. 9) The Town Planning Board rejected the application again.
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The decision of the Appeal Board gives full details of the statutory provisions regarding the DSP and the contents of the MLP expected to be submitted by any s. 16 applicant.
The Appeal Board dismissed the appeal and received an application for award of costs from the Town Planning Board.
Arguments:
The appellant argued that as regards the height of the proposed building, the appellant anticipated the relocation of the airport then at Kai Tak Airport to Chek Lap Kok.
The Town Planning Board held the following argruments (para. 13): (a) The proposed development does not comply with the draft LDC Development Scheme Plan for Argyle Street/Shanghai Street and the relevant Land Use Diagram in the provision of Government/Institution/ Community facilities, open space and improved traffic management.' (b) 'As the application site only forms a very small portion of the 'CDA', the comprehensive development concept as indicated in the draft Development Scheme Plan will be defeated if the proposed development under application is allowed to proceed.'
(c) The proposed building height exceeds the current Airport Restriction
applied to the area.
Reasons for Decision:
The Appeal Board agreed entirely to the Town Planning Board's reasons for decisions in the s. 16 and review procedures and dismissed the appeal. The grounds were as follows:
Lack of Comprehensiveness
The appellant's proposal was too piecemeal:
(a) With a proposed development involving just two numbers on Reclamation Street, the site occupied less than one percent of the entire CDA'. (italics mine)
(b) There was no 'indication as to how the completed development might
harmonise with a comprehensive development of the area'.
(c) The proposed building might interfere with the public light bus (PLB)
terminus at the street level.
Conflict with the Statutory Land Use Diagram
'Furthermore, the revised master layout plan submitted in support of the section 17 review clearly was in conflict with the statutory Land Use Diagram: for this reason alone, the proposal would have been rightly rejected.' (para. 14) (italics mine)
Planning Appeal Cases
Award of Costs
209
As regards the Town Planning Board's application for costs under s. 17B (8) (c), the Appeal Board stated this after coming to a decision(para. 17):
We are provisionally of the view subject to further representations on behalf of the appellants that this is a proper case for awarding costs against the appellants. The application was doomed to failure and this should have been apparent to the appellant's professional advisers. The appeal borders on frivolous. We should therefore be prepared to entertain an application for costs by the respondent, and will, if necessary, convene a separate hearing for the purpose.
Comments:
The Appeal Board was apparently displeased with the appeal and was ready to award costs. The Appeal Board's position was definitely substantiated and judging from the decision transcript, apparently there was no rigorous argument advanced in favour of the appellant. That shall not deter us from examining some major planning issues involving CDA zoning.
Relevance of Private Property Rights
The CDA zoning was like a bomb dropped on to the site of a proprietor's. He suddenly lost his rights, without compensation, as a lessee to use his land for the most profitable purpose, which is independent of the decisions of other lessees or of the government as the landlord. Regardless of the laudable public purpose of such zoning intention, the CDA imposition is definitively a violation of private property rights. The economic hardship confronting the appellant, who was ignorant of or had missed the chance of raising an objection, had to be contributory factors behind his desperate attempts before the Town Planning Board and the Appeal Board. As the government, who was in breach of the lease, was the stronger party to the appeal (though the breach was empowered by post-contractual legislation), the appellant's position should perhaps be given more compassionate consideration. This is not just for the appellant in this case but also for other lessees who are affected by CDA zoning.
Measurement of Comprehensiveness: Site Coverage or Compatibility
In dismissing the appeal, the Appeal Board apparently was counselled to accept that this case was a straightforward one. However, a meaningful question arises from the ruling of the Appeal Board: should the proposal be rejected on the basis that the subject site was far too small (less than 1 % in this case)? Or was there really, as the Appeal Board had stated, 'no indication as to how the completed development might harmonise with a
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
comprehensive development of the area"? It is submitted that the latter was a more reasonable ground.
Questions:
1. What is the use of the site now?
(See Photograph 10)
2. What are the implications of Article 6 of the Basic Law upon the
treatment of CDA zoning?
A
Photograph 10 Subject Site of the Yook Tong Estate Case
in May 1998
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2 and 8.
Planning Appeal Cases
Book:
211
Lai, Lawrence Wai-chung. Town Planning in Hong Kong: A Critical Review.
Hong Kong: City University of Hong Kong Press, 1997.
THE HENDERSON CASE
•
Case Name: Nam San Wai, Yuen Long, New Territories [the Henderson Case]
Planning Appeal Case No.: 13/93
Ensuing Court Cases:
Lo Chai Wan (for and on hehalf of the Town Planning Board) v Appeal Board and Henderson Real Estate Agency Limited, Civil Appeal 1995, No. 150;
Henderson Real Estate Agency Limited v Lo Chai Wan (for and on hehalf of the Town Planning Board), Privy Council Appeal No. 54 of 1996 [Restoring Appeal Board's decision]
Similar Cases: cases nos., 14/93, 16/93, 02/94, 01/96, and 12/96 [the -, Yiu Cho Investment, Naturaluck, So Cho Cheung, Yolanda Fan and Rightlane Investment Cases] regarding successful appeals; 04/92, 07/92, 10/92, 15/92, 04 and 05/93,
17/93, 08/95, 16/95, 21/95 and 01/97 [the Sung Dynasty City, Full Look, Treasure Base (1) and (2), Ultra Force, Treasure Base (2), -, Shun Fat Container, Yin Ning Savings, Arzignano Leather, Cheung King Lung and Connie Law Yuk Wah Cases] regarding Town Planning Board or Appeal Board procedures; 15/92, 04 and 05/93,, and 16/93 [the Ultra Force, Treasure Base (2),
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; 07/92, 18/92, 19/92, —, 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, Kun Kee Motor, , 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);
01/91, 02/92, 03/92,, 08/96 and 12/96 [the Alticosmic, Conduit Road,
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Wo Yi Hop Road,, Leung Wing-nin and Rightlane Investment Cases] regarding the location of planning intention in the Notes of statutory plans; 05/92, 15/92, 18/92, 19/92, 02/93, 04 and 05/93, —, 17/93, 12/94, 05/95, 16/95 and 22/95 [the OTB, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Bowen Road, and Treasure Base (2), 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, —, 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 Treasure Base (2),
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, 19/92, 04 and 05/93, 11/93, 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, Kun Kee Motor, Treasure Base (2), Shell Hong Kong, —, 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;
01/91, 02/92, 03/92, 07/92, —, 10/94, 02/95, 05/95, 07/95, 08/95 [the Alticosmic, Conduit Road, Wo Yi Hop Road, Full Look, (not), Sun Link Properties, Charming City, Planet Universal, Delight World, Yin Ning Savings Cases] regarding excessive development intensity; 03/92, 07/92, 15/92, 18/92, 19/92, —, 16/93, 14/94, 28/95 and 04/96 [the Wo Yi Hop Road, Full Look, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Naturaluck, Sanyear Investment, Fine Tower and Container System Cases] regarding adverse environmental impact; 15/92,, 14/93, 16/93, 05/95, 07/95, 08/95 [the Ultra Force,
Cho Investment, Naturaluck, Planet Universal, Delight World, Yin Ning Savings Cases] regarding the use of planning conditions to overcome potential environmental problems;
"
Yiu
-, 14/93, 16/93, 22/95 and 28/95 [the, Yiu Cho Investment, Naturaluck, Lucky Gain and Fine Tower Cases] regarding conflicting views between DPO and other government departments.
Nature of the Case: Privy Council, Hong Kong Court of Appeal, Town Planning Board taking Town Planning Appeal Court to High Court; first reported successful planning appeal; s. 20(6A) of the Town Planning
Planning Appeal Cases
213
Ordinance; Development Permission Area Plan (DPA Plan), Residential (Group C) Zone (R (C) Zone), Unspecified Use Zone, Town Planning Board Guidelines, Development Statements; Northwestern New Territories Development Strategy Review (NWNTDSR) development scenarios (or hybrid options) in the NWNT DSR, Deep Bay Buffer Zones 1 and 2, Mai Po Marshes; Sites of Special Scientific Interest (SSSI), development on wetlands, mangroves, fish pond; planning intention; ecological impact; habitat creation and management; traffic impact, World Wild Fund (WWF) Hong Kong, Ramsar Site; plot ratio calculation; the meaning of development intensity; the use of planning conditions to overcome potential environmental problems.
Date of s. 16 application: after October 1992, before 9 July 1993
Date of Hearing: 14 March – 23 May 1994
Date of Decision (Of Majority): 26 August 1994
Date of Decision (Of Dissent): 25 August 1994
Decision: Appeal ALLOWED (decision quashed by the Court of Appeal on 24 January 1996 but restored by the Privy Council on 16 December 1996)
Dates of Judgments of Ensuing Court Cases:
1. Town Planning Board's application to the High Court for judicial review
of Appeal Board's decision: 28 April 1995
2. Town Planning Board's appeal to the Court of Appeal against judgment
of the High Court: 24 January 1996
3. Appellant's appeal to the Privy Council: 16 December 1996
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Mr Neoh for the appellant
•
Dissent: Mr David C. DaSilva, MBE
Rules Laid down by the Decision of the Majority:
(a) The plan making functions belong to the Town Planning Board, not
the Planning Department.
(b) 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.
(c) Appeals cannot be decided on the basis of one's subjective wishes. They must be decided in accordance with the applicable statutory plan.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(d) The Appeal Board must not trespass upon the Town Planning Board's plan making function in considering an appeal. 'Whether the Appeal Board agrees with any plan or not is irrelevant. Its duty is to see that plans are faithfully implemented. If changes to any plan are desired, representations should be made to the [Town Planning] Board. It follows that if permission should be granted under a plan, the Appeal Board has no right to refuse permission even if it does not like or agree with the applicable plan.' (para. 6) (square brackets mine) (e) '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, italics and square brackets mine)
(f) Section 20(6A) of the Town Planning Ordinance clearly provides that notwithstanding that 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.
(g) 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 that government or that the government is not responsible for 'teaching' the applicant 'how to correct his mistakes'.
(h) In considering an application, the Town Planning Board should not assume that the applicant would not keep his promises made by planning or lease or that the government would not enforce conditions of grant.
(i) 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'.
(j) '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.'
Planning Appeal Cases
215
(k) Land exchange was irrelevant as regards land use' in the context of
the Town Planning Ordinance.
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.'
(1) 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.
(m) The normal practice of the Appeal Board is not to make orders as to
costs.
Background:
Land Ownership and Zoning
The subject site consisted of two big parcels of land at (a) Nam Sang Wai (115 ha) and (b) Lut Chau (21.9 ha) (Lot 1534 in DD 123). As regards (a), 67.4 ha land (Lot 1520 RPO, Lot 1604 in DD 123) was then owned by the appellant, a developer commonly referred to as the Henderson. Here, about 16.6 ha was zoned Residential (Group C) (R(C)) and the rest Unspecified Use in the draft Nam Sang Wai Development Permission Area Plan (DPA Pan 1). As regards (b), land was zoned as a Site of Special Scientific Interest (SSSI) on the draft Mai Po and Fairview Park Development Permission Area Plan No. DPA/YL-MP/1 (DPA Plan 2).
As regards the Unspecified Use Zone, the Appeal Board noted that in the Notes to the DPA Plan, it was provided:
This unspecified area is rural in character and mainly comprises fish ponds with some ancillary structures. Since the [river system of the] area drains into Inner Deep Bay and [due to] its proximity to Mai Po Nature Reserve [MPNR), the planning intention is primarily to protect and conserve the area's landscape, ecological value and its scenic qualities. (square brackets mine)
(c) Agricultural uses in these areas will be encouraged and recreational uses, (including ancillary facilities) which are generally compatible with the rural environment and are unlikely to adversely affect local communities, may also be permitted. The main planning objectives of this zoning are to identify non-urban areas where appropriate forms
216
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
of agriculture and rural activities can be sustained as a means of avoiding unwanted urban growth and to enhance the quality of the environment. Residential development in compliance with the conditions of the 'On-Farm Domestic Structure' scheme may be permitted where it is established that a dwelling is necessary to support the agricultural use.
(d) There may be areas where private initiatives may wish to provide comprehensive low-rise, low density residential developments mainly through land exchange or lease modification. Applications should be made to the Board. If approved by the board the development should be implemented in accordance with an approved Master Layout Plan with adequate provision for Government and Institution/Community use and recreational facilities to serve these developments. Due regard should also be given to minimizing the environmental, drainage and traffic impacts of these developments on the surrounding areas.
(e) For any development within this zone, the owners/developers must demonstrate that their proposals would have insignificant adverse impacts on the environment, traffic and drainage of the area or appropriate measures will be taken by the applicants to minimise such impacts. The submission of Master Layout Plan, Landscaping Proposal, Environmental Impact Assessment, Drainage Impact Study and/or Traffic Impact Study may be required when the proposal is submitted to the Town Planning Board for consideration. (italics mine)
Proposed Nam Sang Wai Development
The appellant made an application under s. 16 sometime before 29 March 1993. The proposed development, generally referred to as the 'Nam Sang Wai Development', would occupy about 98.3 ha land. This 98.3 ha consisted of the 67.4 ha land (Lot 1520 RPO, Lot 1604 in DD 123) at Nam San Wai then owned by the appellant as well as 21.9 ha land in Crown ownership. As regards the latter, the appellant wanted to obtain that from the government in exchange for their 21.9 ha land at Lut Chau.
The proposed development would comprise one 18-hole golf course and 2550 residential units (at a plot ratio of 0.317). Of the 2550 units, 1080 would be provided in 25 blocks which ranged from 7 to 8 storeys, 500 in 3- to 4-storey buildings each having 2 duplex units, 970 in 2- to 2-5 storey buildings with cover carport. There would also be a commercial area with a Gross Floor Area (GFA) of 5000 m2. There would remain 14 ha open water (compared to the pre-existing 98.8 ha) and 14 ha woodland (as compared to the pre-existing 1 ha). There would also be 1 ha of scrape which did not exist at the time of application.
Proposed Lut Chau Nature Reserve
In Lut Chau, the appellant would build an actively managed nature reserve
Planning Appeal Cases
217
(the Lut Chau Nature Reserve) which would be surrendered to the government. This reserve would comprise the 21.9 ha land owned by the appellant and 19.1 ha owned by the government. The management of the nature reserve would be funded by levy on residents of the proposed development.
Proposed Ecological and Environmental Protection/Enhancement Measures
The proposed golf course in the proposed development would contain wildlife habitats constructed by water channels and were to be planted with selected vegetation. These habitats, as the Appeal Board believed, would attract and support a wide variety of wildlife. An outer ring of Crown land would be planted by the appellant and handed back to the government.
To support their proposed residential, golf course and commercial development, the appellant would undertake the following measures: (a) Use 'Integrated Pest Management' which employed biological and mechanical means of pest control. Use Pesticides and fertilizers only if Environmental Protection Department (EPD) so approved.
(b) Instigate habitat management of fish ponds, lagoons, grassland, woodlands, shrubs, amphibian and dragonfly ponds and wetland channels envisaged in the proposed development and wildlife support schemes.
(c) Monitor water quality.
(d) Form in the property management an Environmental Advisory Group (EAG) which would meet twice a year in which a 'staff ecologist' and an 'auditing ecologist' would report.
(e) Employ a staff ecologist to make reports to the EAG.
(f) Retain an independent ecologist to audit the ecological performance of the proposed development and to make independent reports to the EAG and to the government.
On top of the above proposed measures, the appellant also proposed that two water screening facilities would be built by them at the Kam Tin River and Sha Pui River (Yuen Long Creek). This would be expected to lead to much cleaner water flowing into Inner Deep Bay by removing some pollution loadings. The Appeal Board noted that the water quality in the said rivers and bay was 'extremely poor'.
The Kam Tin Reed Bed Treatment System proposed by the appellant was the subject of a separate s. 16 which had been approved on 20 September 1993.
Environmental Context Noted by the Appeal Board
The Appeal Board noted the environment of the proposal from the Planning Statement, prepared by the appellant, and regarded the description to be 'uncontroversial'. Due to the significance of this appeal case, the passages218
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
noted in the majority decision by the Appeal Board are reproduced below (para. 10):
2.3.1. Nam Sang Wai lies to the north east of Yuen Long New Town. The Yuen Long Industrial Estate is located to the west of the site just across the Shan Pui River. The Kam Tin River abuts the southern boundary of the site. Across the river are villages and fish ponds, and then some distance away the northern fringe of the New Town including Tung Tau Industrial Area and the Yuen Long Kau Hui (Old market Place).
2.3.2 To the east and north of the site are mainly fish ponds. The area is located lies [sic] within the floodplain of the Kam Tin River. The river courses around the site are tidal and the fish ponds are protected from high tides by bunds at +3 metres to +4 metres PD. The area regularly suffers from flooding and as part of the government's plans to alleviate this problem in Yuen Long District, training (channelization) of the Shan Pui River will be carried out, and a new channel is proposed for Kam Tin River passing north east of the site. Assuming all these works area carried out, the entire Nam Sang Wai Area will become an 'island' bounded by new and existing water
courses.
2.3.3 Further to the northeast beyond the fish pond area, is a low density residential development - Fairview Park. Next to this, and due north of the subject site, is the Mai Po Nature Reserve which is a wildlife sanctuary, and the Deep Bay Estuary Marshlands. Between the Nature Reserve and Nam Sang Wai is Lut Chau, which is an ‘island' surrounded by water channels. (brackets mine)
Town Planning Board's Guidelines and Decisions
In October 1992, the Town Planning Board published a paper, 'Consideration of Section 16 application for Development in Areas around Mai Po Nature Reserve' (October 92 guidelines). Under the heading of 'Basic Principles', the Town Planning Board ‘agreed that for the purpose of considering section 16 applications, the following principles shall apply to the two zones as shown in Plan 1':
(a)
(b)
Deep Bay Buffer Zone 1 is the area in the immediate vicinity of Inner Deep bay including the MPNR. The planning intention is primarily to protect the special ecological value of these coastline areas and their surroundings. New Development in this zone should not be allowed unless it is required to support the conservation of the area's natural features and scenic qualities. Deep Bay Buffer Zone 2 consists of a much wider area which has a bearing on the overall amenity and water quality of MPNR and other SSSIS in the vicinity. The planning intention
Planning Appeal Cases
is primarily to restrict developments to agricultural and recreational uses only. New development within this zone would not be considered unless the applicant could demonstrate that the proposed development would have insignificant impact on environment, drainage and traffic in the area including the MPNR. (para. 31)
219
The Appeal Board noted that the proposed Nam Sang Wai development fell within Buffer Zone 2 and that according to the paper mentioned above, development in area zoned 'unspecified use' was not precluded if the applicant could 'demonstrate that the proposed development would have insignificant impact on environment, drainage and traffic in the area including the MPNR'. (para. 32)
First Letter of the World Wild Fund
The World Wild Fund (WWF) wrote a letter to the Town Planning Board on 29 March 1993 before the review was heard. The Appeal Board noted that this letter made such statements:
3.2 General
We believe that Henderson Land is sincere in wanting to ensure that the development site at Nam Sang Wai is designed, developed and managed in an environmentally friendly manner, as evidenced by the level of detail in their proposals together with the proposal to establish the Environmental Advisory Group. However, the future management/ owners of the site may have different priorities for the site. Therefore, we would like to see further details regarding legal safeguards which could be incorporated into the land grant documents by Government, deeds of mutual covenant for future home owners etc., to ensure that the high standards of environmental management being proposed will continue in future.
Although the proposed habitat creation projects at Nam Sang Wai will increase species diversity at the site, it will not wholly compensate for the wetland habitats that will lose from the Deep Bay area as a result of the project. This can, however, be mitigated by setting up the management nature reserve at Lut Chau in Buffer Zone 1, to take up some of the species that would have been displaced from Nam Sang Wai.
We welcome this move, whereby a developer sets aside a substantial amount of land in Buffer Zone 1 for conservation management and hope that, should this development be approved by the government, other developers will also have to follow this example and set aside similar amounts of land in Buffer Zone 1 for conservation management. (para. 47 (i) (italics mine)
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Town Planning Board's Decision on the Review
The Town Planning Board rejected the proposed development in the first instance and again after a review hearing. The appellant made an application for a s. 17 review. The Town Planning Board heard the review and again rejected the proposal. The decision was communicated to the appellant on 9 July 1993. The Appeal Board noted that in the letter to the appellant, the Town Planning Board recorded that it was impressed by the care with which the appellant had approached the proposed development. (para. 46)
The appellant lodged in an application for appeal to the Appeal Board.
Post-Review Second Letter of the World Wild Fund Hong Kong
On 30 September 1993, the WWF wrote a letter to the District Planning Officer. The letter stated further that:
From the conservation point of view, the ideal situation is to keep all the remaining wetlands in both Deep Bay Buffer Zones, and actively manage the wetland area in Buffer Zone 1 for wildlife conservation and education. However, we feel that this is unlikely to be realistic in the long term since further loss of wetlands in Deep Bay Buffer Zone 2 is anticipated irrespective of which development scenario (or hybrid option) in the NWNT Development Strategy Review Second Consultation Document is finally adopted. Scenario C, whereby most areas in Buffer Zone 2 are zoned as "Recreational Priority Area”, "Rural Activity Area" and "Recreation and Landscape Area", would certainly result in loss of wetland. In addition, the existing R(C) zone at Nam Sang Wai (which is current fish ponds) will still be developed even if the application is rejected.
Unless Government is able to make available the necessary resources for the development and management of a Managed Conservation Zone in Inner Deep Bay in the near future, WWF Hong Kong respectfully suggests that Government gives consideration to the possibility of approving this application and incorporating it into the NWNT Development Strategy. (para. 47) (emphasis and italics mine)
Post-Review Publication of the Town Planning Board Guidelines
After the s. 17 review, the Town Planning Board published in November a new set of guidelines (November 93 guidelines). These were published together with a set of 'Conceptual Guidelines for Developments within Deep Bay Buffer Zone 2'.
Under para. 5, the guidelines provide:
The proposed developments within Buffer Zone 2 should not impose adverse impacts on the sustainability of the ecosystem of MPNR and Inner Deep Bay. The following criteria should be satisfied:
Planning Appeal Cases
(a)
(b)
(c)
(d)
The proposed development should not add to the pollution loadings of the Deep Bay, particularly the Buffer Zones 1 and
2.
An effective buffer should be maintained between the SSSIS (i.e. Inner Deep Bay, Mai Po Marshes, Tsim Bei Tsui Egretry and Mai Po Village) and built environments.
A gradation of intensity in land use and activities, built form, density and height away from Buffer Zone 1 should be achieved to minimise the likely impacts on the natural environment. A diagrammatic illustration of the development concept for Buffer Zone 2 is shown in Figure 2.
The proposed use and development should be compatible with the conservation objective of MPNR and Inner Deep Bay. It should be appropriate to the area's rural setting and enhance the visual appearance and landscape character of the area. (para. 33, italics mine)
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The Appeal Board noted that ‘a development in accordance with this Conceptual Guidelines will involve the disappearance of most of the existing fish ponds in Buffer Zone 2'. (para. 35)
Under para. 7, the guidelines provide:
Within Buffer Zone 2, the following activities associated with the different types of land uses may be considered appropriate having regard to the criteria in para. 5 above:
(a)
(b)
Conservation conservation of natural resources such as water bodies and landscape features should continue to be the planning intention within Buffer Zone 2. More specifically, existing fish ponds and gei-wais (man-made embankments with sluice gates for culture of shrimps and fishes), villages and woodlands should be retained as far as possible and a landscape buffer (water body, earth mounding, tree planting etc.) should be provided between any development and Buffer Zone 1 [emphasis added by the Appeal Board]. Recreation appropriate passive and active recreation may be considered within Buffer Zone 2. Consideration should be given to the compatibility of such use with the adjacent areas and their environmental implications such as pollution of underground water and discharge of waste water. Generally, areas adjacent to Buffer Zone 1 would be suitable for accommodating passive forms of recreation, whilst active recreation would be best located adjacent to built development along the main road. (para. 34)
The Appeal Board noted that 'neither in the Notes accompanying the DPA Plan nor in the October 92 guidelines was there any reference to the conservation of water bodies as being the 'planning intention' within Buffer Zone 2 is limited to a very small part of Buffer Zone 2. See Appendix 1
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
[Figure 2 of November 93 guidelines] hereto. In any event, as Appendix 2 hereto shows, the appellant's proposal seeks to comply with the Board's Guidelines issued in November 1993.' (para. 36) (square brackets mine)
Post-Review Third Letter of the World Wild Fund Hong Kong
On 14 March 1994, the WWF wrote yet another letter to the Town Planning Board. The Appeal Board was also provided with this letter. The Appeal Board noted that it stated that '[T]he value of fish ponds to Wildlife generally has been underestimated in the past, it is only very recently that academic study of fish ponds and their wildlife has started.' (para. 43) The Appeal Board noted also that this letter concluded by saying:
WWF Hong Kong recognises the very considerable effort which has been put towards mitigating the environmental impacts of the proposed development, but nonetheless considers that there remain important questions regarding the acceptability of the proposed development under the Town Planning Board Guidelines for Application for development within Deep Bay Buffer Zones under Section 16 of the Town planning Ordinance, and thus the project should not be supported. (para. 49, italics mine)
The Appeal Board noted that the reason for this conclusion:
In view of the local, regional and international significance of the Deep Bay wetlands WWF Hong Kong ideally wishes to see a situation where all further loss of wetlands in the Deep Bay area is prevented, and where existing wetlands are actively managed for wildlife conservation. (para. 50)
Post-Appeal Rezoning
On 3 June 1994, after the conclusion of the appellant's appeal, the Draft Nam Sang Wai Outline Zoning Plan Nos. S/YL-NSW-1 (the OZP) was published in the gazette. The OZP rezoned government and private lands at Nam Sang Wai to Conservation Area and Recreation Zones respectively.
Decision of Appeal Board
The Appeal Board delivered its majority decision on 14 August 1994 to allow the appeal and gave favourable consideration to the appellant's application for costs.
Arguments:
Town Planning Board's Reasons for Rejecting the Proposal in the s. 17 Review
In the s. 17 review, the Town Planning Board held that (para. 37):
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(a) the proposed golf course and residential development was not in line with the planning intention for the area which was primarily to protect and conserve the landscape and ecological value of the area and its scenic quality necessary to sustain Mai Po Nature Reserve;