(b) the intensity of the proposed development was excessive for low density
residential development in this area;
(c) the traffic assessment was inadequate and the problems related to the
local traffic had not been properly addressed;
(d) there were doubts on the proposed source of fill materials and insufficient information on the environmental impact assessment on its haul routes in the submission;
(e) the proposed grant of land in Nam Sang Wai in exchange for land in Lut Chau for development was not wholly consistent with the policy of conservation of the area;
(f) there was no certainty that the proposed arrangement for the creation of the Environmental Advisory Group' would be effective in implementing the 'Habitat Creation and Management Plan';
(g) the proposed 'Environmental Advisory Group' and the 'Habitat Creation and Management Plan' would impose a major role and responsibility on the government which had no plan to participate in the proposals however.
As noted by the Appeal Board, the Town Planning Board Minutes recorded the Chairman's statement: "The key issue in consideration of the application was whether the Board would like to have about 9,000 persons living within the Mai Po Buffer Zone II area.' (para. 38) The Appeal Board noted that in arriving at the above decision, the Town Planning Board 'considered that it would be difficult to establish a context for the consideration of this application and other applications in this area before the completion of the North-West New Territories Development Strategy Review early next year. In the mean time, the Board recognised the need to deal with each application on its individual merits.' (para. 39) (italics mine)
Submission of the Town Planning Board during the Appeal
The counsel for the Town Planning Board, Miss V. Patel, advanced the following arguments:
(a) although pollution in Deep Bay was bad, the Appeal Board should wait for government action rather than accept the developer's proposed water treatment proposals;
(b) the Appeal Board had to proceed on the basis of the provisions of the
OZP rather than the DPA Plan.
The District Planning Officer (DPO), Mr Paul Ng, stated that:
The appeal was a "battle of the ponds". The fish ponds which would be affected by the proposed development were intrinsically important.
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The Manager of WWF Hong Kong, Mr Llewellyn Young, was said to have 'argued eloquently for the importance of the fish ponds.' (para. 61)
Mr Robert Law of the Environmental Protection Department (EPD) said that:
Some of the proposed mitigation measures against the environmental impacts were of experimental nature, e.g. the integrated Pest Management measures of the golf course. If the experiment proved to be a failure, the community cost might turn out to be very expensive. (para. 69)
Mr K.W. Cheung of the Agricultural and Fisheries Department (AFD) said that:
It should be the applicant of a project to provide convincing evidence to the satisfaction of the Government. However, in this case, the appellant just fails to do so. The Government is not responsible for teaching the appellant how to correct his mistakes. (para. 70) (italics mine)
Arguments and Expert Opinions in Support of the Proposal Heard in the Appeal
Mr Wheatley, who had 18 years of experience in ornithological field work, stated that Deep Bay was important for wintering and migrating birds and was of international significance for the black-faced Spoonbill, Asian Dowitcher and Spotted Greenshank and Saunder's Gull. 'He said that the scrapes proposed for Lut Chau Nature Reserve will provide additional undisturbed and safe feeding and roosting ground for wintering and migrating birds including threatened and near threatened species. Purpose built feeding ponds will provide a permanent and reliable source of food. Herons and egrets will be able to feed in the nearby created freshwater channels and marsh, which will also benefit other species over which the sites are not currently ideal. When drained during migrating periods, fish ponds will also attract shore birds and when filled during the winter months, they will become suitable for wildfowl. He predicts that diversity will increase.' (para. 63)
Reasons for Decision (By Majority):
The majority of the Appeal Board, with Mr David C. DaSilva, MBE dissenting, allowed the appeal.
The Appeal Board's Characterization of the Issues of the Appeal
The Appeal Board appreciated the nature of the dispute very quickly:
At the hearing of the appeal, it soon became clear that the respondent's
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main objection to the proposed development at Nam Sang Wai is based on the alleged intrinsic importance of the fish ponds in Nam Sang Wai. It is the respondent's case that fish ponds should be preserved. (para. 11) (italics mine)
The Appeal Board allowed the appeal on the following grounds:
The Lut Chau Nature Reserve Supported
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The Appeal Board considered the case for the Lut Chau Nature Reserve was uncontroversial because:
(a) it was clearly consistent with the planning intention for the area, having regard to the DPA Plan's provision that only development which would support the conservation of the area's special [scientific] interest would be permitted and to the support advanced by the WWF Hong Kong's "Proposal For a Managed Conservation Zone in Inner Deep Bay" (square brackets mine);
(b) it would undoubtedly be feasible, having regard to the expert evidence of Mr Llewellyn Young, WWF Hong Kong's Manager for Mai Po Reserve (MPNR) that the Lut Chau Nature Reserve 'can be engineered quite simply'. (para. 25)
The Nam Sang Wai Development Supported
The Appeal Board negated all the reasons advanced by the representatives of the Town Planning Board in the appeal hearing with the following
reasons.
Cannot Wait Any Longer for Government Action Regarding Water Quality
The Appeal Board did not subscribe to the Town Planning Board's argument that a decision about the application should have waited for government measures about water quality. Instead, it welcomed the appellant's innovative endeavours about ecological protection.
Given the importance of the Inner Deep Bay, and given the acknowledged extremely poor water quality of the Shan Pui River and Kam Tin River, we must express surprise that so far nothing seems to have been done to deal with the problem. We believe the appellant's approach to environmental protection. Gone are the days when one can fold one's arms and leave the environment to look after itself. We believe wise use of the environment must recognise the essential need to integrate conservation and development. (para. 23) (italics mine)
Planning Intention Was That in the DPA Plan and Town Planning Board Guidelines, Not the OZP
The Appeal Board stressed that the Town Planning Board had to decide
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the application and review on the basis of the 'relevant plan' (para. 40), i.e. it had to decide the appeal on the basis of the DPA Plan' (paras. 26 (3), 39, 42, 55).
Miss Patel who appeared for the Board urged us to gave regard to the OZPO. She had overlooked the recent enactment of s.20(6A) of the Town Planning Ordinance. After her attention was drawn to s.20(6A), she continued to submit that in deciding the appeal we should have regard to the OZP rather than the DPA Plan. However, she was unable to provide any convincing reason why we are not bound by s. 20(6A) to decide the appeal on the basis of the DPA Plan. Section 20(6A) is clear. It 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)).
The considered view of the Board on the importance of Nam Sang Wai must be found in the statutory plan which is the DPA Plan in this appeal. (para. 42)
The Appeal Board held that an reliance on the OZP was misplaced. It explained that although it had been told at the hearing that an OZP would be published in the gazette in June 1994, section 23(6A) required the Appeal Board to decide the appeal on the basis of the DPA Plan and not the OZP. The OZP was published after the conclusion of the hearing of the appeal. (para. 55)
Fish Ponds Were Means, Not Ends: The Planning Intention Was Not to Protect Fish Ponds Per Se
The Appeal Board did not find any planning intention in the DPA to preserve the fish ponds as a matter of intrinsic significance. It regarded that the fish ponds in Buffer Zone 2, as it could see from the DPA Plan, were merely 'a secondary buffer' for MPNR. It noted that in the November 1993 guidelines, 'the disappearance of almost all the fish ponds in Buffer Zone 2 was envisaged'. (para. 44)
The Appeal Board noted that the appellant had correctly applied the buffer concept in its proposals. The Appeal Board further stated that the true planning intention in the DPA was to ensure that development in Buffer Zone 2 would not have adverse impact on the MPNR by using the buffer concept in accordance with the November 1993 guidelines.
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We are of the view that it is not apparent from the DPA Plan that the planning intention is that the fish ponds in Nam Sang Wai should be preserved. Some of the "uses always permitted" for the "unspecified use" area would entail draining of the ponds which can be done with impunity. The prohibition against excavation or filling would not preserve the fish pond since some of those activities can be carried on without either. Rather we gather from the DPA Plan, a clear intention, which is implicit from the buffer zone concept, that the areas must not be so used as to adversely affect MPNR. A graphic support for this review is Appendix 1 hereto which was published by the Board as recently as November 1993. We read the first reason given by the Board in refusing planning permission on Review as affirming the buffer zone concept. (para. 53)
The so-called battle for the ponds, insofar as it must be fought on the DPA Plan, cannot succeed. (para. 54)
The OZP Could Not Help Fight the Battle of Ponds
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The Appeal Board did not believe that the OZP, even if it had been considered as the relevant plan, would help the respondent. The reasons were twofold.
Firstly, the Appeal Board could not find in the OZP any intention for preserving the ponds. 'We cannot gather from the OZP an intention that all the fish ponds as such should be preserved.' (para. 55) The evidence was seen to be as follows:
(a) R (C) Zone retained
In the OZP only land owned by Government has been zoned as "conservation area”. On land e.g. owned by the appellant, the area previously zoned as "Unspecified" is now zoned "Recreation”. The area formerly zoned as R(C) remains as such. (para. 56)
(b) Appellant's works can be carried out
In the Notes, under Recreation, under Column 1, Uses Always Permitted, one finds e.g. plant nursery, park and garden etc. See Appendix 3 [Notes for Recreation in the OZP]. One finds again the prohibition against filling or excavation. But neither is necessary for say, "plant nursery". (para. 57) (square brackets mine)
The Column 2 uses include golf course, hotel, private club. See Appendix 3. (para. 58)
Even under the area zoned as Conservation Area, Uses Always Permitted include tree plantation and agricultural uses. See Appendix 4. [Notes for Conservation in the OZP] (square brackets mine)
Secondly, the Appeal Board accepted Mr Neoh's submission that the OZP did not support the respondent's case that the Town Planning Board had actually accepted the intrinsic value of the ponds. Rather, the Appeal Board believed that the shift in emphasis to the ponds themselves was
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spurred by WWF Hong Kong's letter of 14 March 1994. In fact it was only the Planning Department, not the Town Planning Board, which accepted the intrinsic significance of the fish ponds. However, it was the Town Planning Board, not the Planning Department, which had a power to make plans.
At most, one can say the Planning Department accepts the intrinsic importance of the fish ponds. Whilst we would not lightly disregard any view of the Planning Department, the plan making function belongs to the Board. (para. 60)
WWF Hong Kong Was Not Unsupportive and 'We Are Not Living in an Ideal World'
The Appeal Board believed that it was clear from its letters that, WWF Hong Kong was not unsupportive of the appellant's proposals. These letters indeed showed 'quite clearly that WWF recognised a need to integrate conservation and development'. (para. 48)
That WWF Hong Kong seemed to have changed its mind before the hearing of appeal was recognized by the Appeal Board. The Appeal Board, however, dismissed the plea that the ponds be preserved as much as possible. The reasons were again twofold.
Firstly, this was simply impracticable as a lot of land was privately owned and private property rights had to be respected.
It is easy to be persuaded that (the prevention of further loss of wetlands) ... would be ideal. But we do not live in an ideal world. To bring all the fish ponds under active management for wildlife will require resumption of land which will cost hundreds of millions of dollars. There is no indication that Government is prepared to do that. More importantly, we live in a world in which every citizen is entitled to regulate his affairs according to law. 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 as the Government. That is the raison d'etre for the existence of the Board and the Appeal Board. (para. 51) (italics mine)
Secondly, the ecological values of the fish ponds could be compensated and actual development of ponds under either the DPA Plan or OZP was unavoidable, if not inevitable.
above
Given a choice in the matter, it may well be one would want Nam Sang Wai to be managed for wildlife. But does one truly have a choice? WWF's letters of 30th September 1993 quoted in recognises the reality of the situation. The value of the fish ponds to wildlife in Nam Sang Wai will diminish once they are actively managed. Indeed, under the DPA Plan and, as will be seen, even under the OZP, the appellants can legitimately drain the area now covered by fish ponds. Also, part of the area (16.6 ha) is zoned R (C) under either
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plan so some residential development is unavoidable. Appeals cannot be decided on the basis of one's subjective wish. They must be decided in accordance with the applicable plan, which is the DPA Plan. (para. 52)
Intrinsic Importance of Fish Ponds Not Established by Experts
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The Appeal Board did not think that the respondent had established a case for the intrinsic value of the fish ponds in Buffer Zone 2. While the expert for the Town Planning Board argued eloquently for the importance of the fish ponds, the experts of the appellant spoke persuasively to the contrary. Having considered submissions from both parties to the appeal about the values of abandoned fish ponds vis-à-vis proposed actively managed nature reserves and the benefit of the water treatment plant, the Appeal Board said this:
as WWF recognises, the abandoned fish ponds in Nam Sang Wai will not remain abandoned forever. And that unless they are actively managed for wildlife, their importance to wildlife will diminish. Active management for wildlife will require from Government which has not been made available. But, in any event, we must say that we are not convinced that the loss of the fish ponds in Nam Sang Wai will not be adequately compensated for by the Lut Chau Nature Reserve and the wildlife habitat at the Nam Sang Wai Development. There is of course the additional planning gain in the 2 water screening facilities (para. 44)
The Town Planning Board's Reasons for the Review Rejected
The Appeal Board also negated all the reasons of the Town Planning Board in its decision for the s. 17 review. The Boards explanations are as follows.
Reason (1): Against Planning Intention
We have no difficulty in concluding that the proposal fully complies with the planning situation [intention] of the DPA Plan namely that any development at Nam Sang Wai must not have any adverse impact on MPNR. (para. 67) (square brackets mine)
The reasons were as follows:
(a) The Town Planning Board had always adhered to the buffer zone
concept as indicated in its correspondence and minutes.
(b) The respondent did not establish the intrinsic significance of the ponds
or that the proposed development would adversely affect the MPNR. (c) The appellant established that in intrinsic landscape terms, the proposals represented a substantial improvement to both Nam Sang
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Wai and Lut Chau, within a context of the Kam Tin Floodway Scheme and the Yuen Long Industrial Estate in the vicinity.
(d) The appellant also established that in intrinsic ecological terms, the proposals in Nam Sang Wai and Lut Chau do not represent a threat to MNPR or to Deep Bay. On the contrary, they would rather complement MPNR and enhance the habitats in the Deep Bay Area.
Reason (2): Doubtful Integrated Pest Control (IPC) Proposals
As regards EPD's remarks, the Appeal Board cast doubts on whether Mr Law's view formed part of the Town Planning Board's reason for refusing permission. Even where it did, the Appeal Board saw no reason why the IPC would not work. The Appeal Board explained also that the use of planning and lease conditions would be adequate safeguards:
It is said it has not been tried in Hong Kong. But that alone is not a good reason for refusal. Overseas, IPC has been tried and it worked. In any event, the appellant will accept that no chemical pesticides or fertiliser will be used without EPD approval ... Moreover, since a re-grant will be necessary, no doubt, . . . it can be a condition of the re-grant that no chemical pesticide or fertiliser should be used without EPD approval. Breach of such a term can result in re-entry by the Crown.
We do not believe it is a proper application of the so-called precautionary principle, to assume that promises would not be
kept.
Or that Government would not strictly enforce the conditions of grant.' (para. 73) (Emphasis mine)
As regards AFD's remarks, the Appeal Board did not accept the point that it was up to the appellant to prove his case. Rather, the Town Planning Board 'should provide reasons with sufficient particulars so as to enable an applicant to make a new application in compliance'. (para. 70)
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. (para. 71)
Reason (3): Excessive Development Intensity
The Appeal Board did not quite follow the meaning of 'intensity' of the proposed development. It considered three meanings of ‘intensity', namely population density, building height and population size.
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(a) Population density
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The Appeal Board considered the reference to the 'so-called key issue' identified by the Town Planning Board, namely whether one wanted 9000 persons living in Nam Sang Wai. Yet, if so, the Appeal Board did not understand the reference to ‘excessive for low density residential development'. The reason was that low density development, namely low density residential development, would result in no fewer inhabitants. R4 development would permit a plot ratio of 0.4 and site coverage 20%, resulting in a population of 100 persons per ha. The Nam Sang Wai Development would have a plot ratio of 0.317, site coverage 12% and population density of 93 per ha (at 3.58 persons per household) or 64 persons per ha (at 2.45 persons per household).
The Appeal Board did not consider that Hingwell v AG [1988] HKLR 32 relied on by the counsel for the Town Planning Board assist the respondent as regards the argument that the proposed golf course should be disregarded for gross site area (and hence floor space calculation) when applying the relevant plot ratio. The Appeal Board noted that in the Hingwell case, it was decided that it was:
a question of fact in the case of each development. It means, in addition to the land on which it is proposed to erect building, any land which the developer bona fide proposes to include in the development. (para. 74)
The Appeal Board held that the golf course would be an integral part of the Nam Sang Wai Development and could only be owned in common with the whole site. Hence, it saw no reason why the golf course should be excluded for the application of plot ratio.
(b) Building heights
The Appeal Board also considered the possibility that 'intensity' referred to building height, which was up to eight storeys in certain blocks proposed. Yet, having regard to the minutes and the stated reasons, the Appeal Board believed that intensity referred to the number of the estimated population. The Appeal Board did not find 8-storey buildings objectionable in themselves.
(c) Total population
The Appeal Board did not agree that the number of people itself was objectionable. Nor could it find any evidence that the expected population would adversely impart MPNR. The Appeal Board agreed with the counsel for the appellant that it was management of human activity that really mattered.
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(d) Overall impression
The Appeal Board thought that the proposed development was well planned and more attractive than some existing development in the vicinity of the MPNR.
Certainly, the proposed development is much more attractive than what one finds at Fairview Park. The appellants can create a Fairview Park type development at Nam Sang Wai. That is an unattractive proposition. Times have changed. We believe a well planned residential/recreational estate is what the Community wants. Each development must be decided on its merits. Here we have no doubt the proposed development is far more attractive than one planned in the traditional (we are tempted to say, outdated) mode. (para. 76) (italics mine)
Reason (4): Inadequate Traffic Assessment and Traffic Problems
No longer at issue.
Reason (5) Proposed Source of Fill Materials Doubtful, EIA on Haul Routes Wanted
The Appeal Board accepted the appellant's submission that:
(a) fill materials could only be addressed when the proposals were implemented as applications for 'borrowing' would not be entertained until development was committed;
(b) doubts regarding haulage were not fundamental issues and could be dealt with in the EIA to be submitted at the Master Layout Plan stage.
Reason (6): Proposed Land Grant in Nam Sang Wai in Exchange for Land in Lut Chau Inconsistent with Conservation Policy for the Area
The Appeal Board did not bother itself with the issues of land exchange. The reasons were straightforward:
(a) Para. 6.2.5 (b) of the DPA's Explanatory Statement of the Town
Planning Board envisaged land exchange or lease modification.
There may be areas where private initiative may wish to provide comprehensive low-rise, low density residential development mainly through land exchange or lease modification.
(b) Land exchange was irrelevant as regards land use' in the context of
the Town Planning Ordinance.
The Appeal Board explained further that though planning permission alone would not guarantee that the appellant's project could be implemented, as further government support in land matters (lease
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modification and land exchange) were also required, whether government would support the implementation of the proposal did not concern the Appeal Board. 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 consider 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. (para. 81) (italics mine)
Reason (7): Not Sure Whether the EAG Would Work
233
The Appeal Board accepted the appellant's submission that the EAG, as a management device which had worked well in the United Kingdom and North America, was not necessary to the effective implementation of the 'Habitat Creation and Management Plan'. The Appeal Board also held that 'planning and Crown lease conditions can be put in place to ensure the successful implementation of the Habitat Creation and Management Plan.' (para. 82 (ii)
Reason (8): The EAG and Habitat Creation Plan Would Impose a Major Role and Responsibility on the Government Which Had No Plan to Participate in the Proposals
The Appeal Board also accepted the appellant's submission that the requisite participation was minimal (meetings held twice a year); that in any event the government might simply decline the invitation to join if she did not wish to participate, and, finally: 'Enforcement of the planning and lease conditions is in any event the work of the Planning Department and the Lands Department respectively.' (para. 83)
Application for Costs against One Who Moved the Goalpost
The Appeal Board received an application from the appellant for costs. The reasons were twofold. The first reason was that on appeal the respondent advanced a new case based on the alleged intrinsic value of the fish ponds. This amounted to unfairly 'moving the goalpost' between the time when the grounds of appeal were given and the time when the hearing of the appeal began. Though the Appeal Board's normal practice did not 'follow the event', the Appeal Board concluded that:
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Given the novel nature of the appellant's approach which combines development with environmental and ecological enhancement, we think it right to allow the respondent greater latitude. (para. 86)
The appellant also criticized the approach adopted by the AFD which, to reiterate, had said:
It should be the applicant of a project to provide convincing evidence to the satisfaction of the Government. However, in this case, the appellant just fails to do so. The Government is not responsible for teaching the appellant how to correct his mistakes.
The Appeal Board's view was that if AFD considered any suggested measures to be inadequate and inappropriate, it should have particularize the reasons. The Appeal Board said that it would not be impressed by an objection which was unsupported by reason or evidence.
Yet, having said that, the Appeal Board held that it should not depart from its usual practice and made no order as to costs.
• Reasons for Decision (of Dissent):
Mr David C. DeSilva, MBE, considered that the appeal should be dismissed despite the majority view of the Appeal Board. He had six reasons against the appellant's proposals. They are abridged, where appropriate, and summarized below.
Fish Ponds Shall Stay
(a) 'Once wetlands are lost, they are lost forever.' The proposal upon implementation would destroy permanently many hectares of fish ponds.
Never Endorse Ulterior Motives, If Fish Ponds Are Not Managed, So Be it
(b) Not all lands in the proposed development at Nam Sang Wai (NSW) were owned by the appellant and lands at Lut Chau (L.C.) owned by the appellant had been purchased for purposes other than genuine fishing farming. 'In my opinion, appellant bought the L.C. lot, not for fish ponds or agricultural uses. But for the ulterior motive of swap for Government land at NSW bordering their land. In order not to lose fish ponds, let appellant have managed fish ponds or unmanaged, if they so choose.' (italics mine)
Threats to Mai Po Marshes and Deep Bay
(c) The proposals in NSW and L.C. do represent a big threat to MPNR or
to Deep Bay.' (Entire point quoted)
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235
Follow the Precautionary Principle Regarding Integrated Pest Control (IPC)
(d) 'Integrated pest control (IPC) is not proven in Hong Kong. Neither was it in many parts of the western world. If it was so good, every golf course would quickly use it... Herbicides, insecticides, pesticides and fertilisers are used in most golf courses, some are more toxic than others. . . In many, including Fanling, after spraying, one can see many dead insects, rodents, snakes, etc., the next day, IPC may be alright in some countries, but we are in Hong Kong, also the site is too close to Deep Bay, MPNR. So we should not take chances.'
Golf Course Shall be Excluded for Applying Plot Ratios
(e) ‘A golf course should not be used in calculating plot ratio with the development... In Appendix 3 of the majority decision, any residential development in excess of a plot ratio of 0.2, a site coverage of 20% and a building height of 2 storeys. So that should not be mixed with development. R4 would permit a plot ratio of 0.4, etc., but R4 only applies to lot 1604 in DD 123. The other portions of appellant's land are only for fish pond and agricultural use.'
Foreign Trees Are Not Suitable
(f) The trees they may plant under "plant nursing" etc., may not be suitable for Hong Kong, they are not Hong Kong species.' (Entire point is quoted here.)
Foreign Experts Are Not Local Experts
(g) ‘The UK experts are alright for UK. They do not have the local experience and data. After all, after a few visits they cannot know everything there is to know. This situation is not a technical, mechanical or legal question where an expert can apply his expertise in another location.'
Comments:
Before a discussion of the facts and reasons for the Appeal Board's decision of the Henderson case, a reference to the ensuing legal history of the case and the decisions of the law courts is made first. The reader is strongly advised to read the transcripts of the cases referred to. Then, a commentary of the facts of the case and the Appeal Board's reasons for decisions is provided by reference to the issues in the court cases. The focus is upon the rules for considering planning applications.
The reader is also urged to read this case carefully in comparison with the Planet Universal case (Appeal Case No. 08/95 decided on 27 October 1995) which was concluded shortly before this case was ruled in the Hong
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Kong Court of Appeal against the appellant (see details of litigation below). The Planet Universal and the two cases that followed immediately, namely Delight World and Yin Ning Savings, followed an approach and logic that departed significantly from that adopted in the present case.
Important Note: The Aftermath of Appeal Decision
This case is probably the most important planning appeal case for a number of reasons. First, it is the first decided case (in terms of the first date of hearing) (though third in terms of the date of decision) in which the appeal was allowed, and that was the result of a majority decision with one member dissenting.
Secondly, the majority decision contains a number of important rules about planning applications and appeals. Some of these rules, as argued in a separate section below, appear to have departed from those discerned. in previous appeal cases.
Thirdly, this case ended up in the Privy Council (the Henderson Case, Privy Council), which reached a judgment by a majority decision. It is the first and last Hong Kong planning law case treated in the House of Lords. This case resulted in a government appointed statutory body chaired by a civil servant, the Town Planning Board, suing another government- appointed statutory body, the Town Planning Appeal Board. This kind of litigation was unprecedented.
The way to the Privy Council was tortuous: upon its defeat before the Town Planning Appeal Board, the Town Planning Board applied for a judicial review of the Appeal Board's decision at the High Court. The Town Planning Board was seeking (a) an order of certiorari to quash the Appeal Board's decision; (b) a declaration that such decision was ultra vires, irrational and/or void; and (c) a declaration two of the four planning conditions imposed by the Appeal Board under the heading of 'Conservation Plan' and all three of the planning conditions imposed by it under the heading 'Off-site pollution control' are unlawful, irrational and/or ultra vires.
Leave to apply for judicial review was obtained on 23 November 1994. The application was heard before Mr Justice Yam from early to mid-April 1995. Judgment was delivered on 28 April 1996, dismissing the Town Planning Board's application.
The Town Planning Board then appealed to the Court of Appeal (Hong Kong) against the judgment of the High Court and the issue then became purely one of certiorari (the Henderson case, CA). The appeal was heard from 12 December 1995 to 15 December 1995. On 24 January 1996, the Court of Appeal handed down its judgment: allowed the appeal; set aside the judge's Order; made an order of certiorari quashing the Appeal Board's decision; and made an order nisi that the developer pay the Town Planning Board's costs in the Court of Appeal and in the High Court to be taxed if not agreed.
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237
The appellant in this case then made an appeal to the Judicial Committee of the Privy Council (Privy Council Appeal No. 54 1996). The case was heard from 4 to 10 October 1996. On 16 December 1996, the judgment was delivered. It was held, (Lords Goff and Nicholls dissenting), that the appeal to the Privy Council was allowed and the decision of the Town Planning Appeal Board restored.
From the s. 16, s. 17(1), s. 17B procedures, through the High Court, Court of Appeal to the Privy Council, the s. 16 applicant in this case has helped develop planning law in Hong Kong tremendously.
The Reasons of the Court of Appeal
The Court of Appeal considered two grounds of appeal, namely (a) that the Appeal Board misunderstood the planning intention; and (b) that two planning conditions of the Appeal Board were unworkable. Yet, the former reason was regarded by the Court of Appeal as being sufficient to quash the Appeal Board's decision.
The Appeal Board Misunderstood the Planning Intention
Before the Court of Appeal, the Town Planning Board asserted that the Appeal Board laboured under a misunderstanding as to four documents, which it contended, contained materials that shed light on the 'planning intention' underlying the draft Nam Sang Wai DPA Plan. These documents
are:
(a) the Explanatory Statement attached to the draft Nam Sang Wai DPA
Plan (the 'Explanatory Statement');
(b) the Town Planning Board Guidelines entitled 'Consideration of Section 16 Application for Development in Areas around Mai Po Nature Reserve' published by the Town Planning Board in October 1992 (‘the October 92 Guidelines);
(c) the Town Planning Board Guidelines entitled "Town Planning Board Guidelines for Application for Development within Deep Bay Buffer Zones under Section 16 of the Town Planning Ordinance' published by the Town Planning Board in November 1993 (the November 93 Guidelines'); and
(d) the draft Nam Sang Wai Outline Zoning Plan ('the OZP').
The Justice of Appeal, Mr K. Bokhary, equated the concept of ‘planning intention' in this case with the concept of 'policy' addressed by Mr Justice Woolf in Gransden & Co. Ltd. v Secretary for the Environment (1985) 54 P & CR 86 where he said (at p. 94) that:
If the body making the decision fails to properly understand the policy, then the decision would be as defective as it would be if no regard had been paid to the policy.
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The Town Planning Board contended that the Appeal Board misunderstood the planning intention underlying the draft Nam Sang Wai DPA Plan, namely to preserve the 'wetland' characteristics against large-scale development because (a) they were values in themselves and (b) they served as an buffer for the MPNR.
The Court of Appeal recorded the submission of the developer as regards the status of the four documents in which the planning intention might be discovered. 'The Explanatory Statement being a product of Planning Department rather than the Town Planning Board carried less respect' in shedding light on planning intention.' (Note that the Appeal Board has habitually ignored this view when it derives the planning intention from the Explanatory Statements.) The October 92 guidelines did shed light but it was not clear whether they had been superseded by the November 93 guidelines. The November 93 guidelines did shed light but the draft Nam Sang Wai OZP did not. It was likely that the developer excluded the OZP on the same grounds of the Appeal Board.
The Court of Appeal did not find the OZP relevant for the purpose of locating the planning intention. Yet, it came to the conclusion that the planning intention was the one asserted by the Town Planning Board. The Court of Appeal considered that, granted the wetland characteristics of the proposed development and its proximity to Deep Bay and MPNR, it was right 'to deduce a planning intention' (p. 19) (italics mine) from the DPA Plan. It further pointed out that the need to preserve the MPNR and the international significance of the MPNR were written down respectively in the October 92 and November 93 guidelines.
The Court of Appeal therefore held that the Appeal Board had got the wrong message as regards planning intention from the DPA Plan and the guidelines. Mr Bokhary, Justice of Appeal, stated that the planning intention was the one asserted by the Town Planning Board, namely 'to preserve the Nam Sang Wai DPA's wetland characteristics against large- scale development: because such characteristics are valued in themselves; and also because they are what make that DPA an appropriate buffer to the Mai Po Nature Reserve.' (p. 21) (italics mine)
The Court of Appeal also considered that even though plant nurseries could perhaps be developed in unfilled fish ponds, one could not say that the planning intention was not to preserve wetland characteristics of the area against the threat of large-scale development.
The Court of Appeal also considered that the Appeal Board had misunderstood the diagrams attached to the November 93 guidelines as the diagram were to scale. That misunderstanding was indeed serious. It was by its nature since it was so basic . . . ' (p. 23)
Two Planning Conditions Stipulated by the Appeal Board Were Unworkable
As regards the second ground, the Court of Appeal considered three points
Planning Appeal Cases
239
advanced by the Town Planning Board as regards the unworkability of the planning conditions about the Lut Chau Nature Reserve Levy and a management levy on owners of the Nam Sang Wai Development. The three points were: (a) no viable arrangement of enforcing the levy could be devised; (b) even if the first problem was overcome, the government could not be forced into an arrangement for a levy if her participation was necessary; (c) the arrangement for ensuring payment of the levy, even with government participation, would run into recurring difficulties so grave that the conditions would be bereft of any planning gain or utility.
The Court of Appeal accepted that the first two points were effectively answered by the developer. Covenants for levy could be devised. Government's participation could be sorted out in the terms of the land exchange. The Court of Appeal, however, found the developer deflecting the third point by proposing a performance bond instead of a levy arrangement. On this point, the Justice of Appeal said, 'If I were not of the view that the Appeal Board's decision had to be quashed on the "planning intention" ground anyway, I would have been disposed to invite further argument on the question of replacing the levy conditions with performance bond conditions . . .' (p. 26) (italics mine). This means that from the stance of the Court of Appeal, the Appeal Board's decision collapsed on the point of planning intention.
The Privy Council's Reasons for Decision
The Privy Council did not consider the Court of Appeal correct on the key issue of planning intention and allowed the appeal of the developer: the Appeal Board's decision was restored. (The following was based on the law report of Mr Eric Cheung in the Hong Kong Law Report on the case.)
The relevant plan was the DPA Plan, which included the Notes. Whilst the DPA Plan and the Notes which contained the most material considerations the Appeal Board which had to consider, the Explanatory Statement and Town Planning Board guidelines were also material considerations that had to be taken into account when deciding a planning application or appeal. If the Appeal Board had misunderstood the Explanatory Statement or the guidelines, it would have failed to give proper regard to a material consideration and its decision would have been open to attack by way of judicial review per Gransden and Co. v Secretary of State for the Environment [1986] JPL 519, affirmed on appeal [1987] JPL 365. In effect, the Privy Council negated the Court of Appeal's views that the Explanatory Statement and Town Planning Board guidelines were inferior in status. Though the Explanatory Statement stated in para. 6.2.5(a)(iii) that 'the planning intention is primarily to protect and conserve the area's landscape, ecological value and its scenic qualities', that statement did not stand alone and had to be read in conjunction with paras. 6.2.5 (d) and (e). In those paragraphs, it was clear that
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
comprehensive residential development was not precluded, provided that such development was low-rise and low-density, and that appropriate measures were taken to minimize its impact on the environment. Had the planning intention been the preservation of the fish ponds in Buffer Zone 2, the Town Planning Board would have designated the entire area as a conservation zone. Instead, its guidelines clearly indicated a gradation concept which would have no meaning had it meant that Buffer Zone 2 was materially the same as Zone 1 where development was not allowed. As for the scale of development in Buffer Zone 2, it was a matter of planning judgment. The Appeal Board had not misunderstood the Town Planning Board's cases and was sensitive to the importance of the wetlands. It appreciated that it was not bound to accept the guidance contained in the Explanatory Statement or the guidelines. The Appeal Board had dealt carefully with all aspects of the Town Planning Board's case and rejected them on planning grounds.
Lord Goff and Lord Nicholls dissented on the following grounds:
(a) Large-scale development would defeat the purpose of the area as a
buffer between developed areas and MPNR.
(b) The Appeal Board had failed to note the intention that the area itself
should remain substantially undeveloped to protect the nature reserve. (c) The Appeal Board had failed to take into account the planning intention
contained in the Explanatory Statement and the guidelines.
(d) In its consideration of the so-called battle of ponds, the Appeal Board failed to note that Buffer Zone 2 should have remained substantially undeveloped for the sake of the nature reserve.
The Novelty of the Henderson Case in the Context of Past Decisions and Court Cases
The Henderson case must be studied thoroughly by those who want to understand Hong Kong's planning practice. As a planning appeal case, it differs significantly from those which were previously decided in many aspects. They are discussed below.
(a) The plan, the market and private property rights
In the Henderson case, the Appeal Board adopted a more benign approach to private property or the market, which was radically different from the approach revealed in the OTB, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Bowen Road or Treasure Base (2) case decided previously and most other cases decided afterwards.
(b) The cost and benefit of accepting or rejecting a planning application
In the Henderson case, the Appeal Board was prepared to consider what
Planning Appeal Cases
241
would happen to the appellant's property had the appeal been dismissed At the same time, the potential cost and benefit or merit of the planning application were also considered. Had the appeal been dismissed the use of fish ponds would be undesirable. This was one of the main concerns for the Appeal Board.
(c) What was the true planning intention?
In the Henderson case, the Town Planning Board, the Appeal Board, High Court, Court of Appeal and Judicial Committee of the Privy Council made considerable efforts in discovering the true meaning of the very concept 'planning intention'. With all due respect, one must admit that this concept is far too ambiguous. There is no real consensus about its concept. See references to this concept in Chapters 2 and 3.
(d) The onus of supporting or rejecting an application
In all previous appeal cases, the onus of proving the case was on the appellant. In the Henderson case, for the first time, the Appeal Board was reported to indicate that the Town Planning Board and government departments also had duties to disprove the case for an application to reject it. This rule was not consistently followed in subsequent cases.
(e) Reasons for rejecting a planning application
In the Henderson case, the Appeal Board further stipulated that reasons for rejecting an application had to be concrete and operational, meaning that the appellant would know exactly how the matters contained in the reasons could be rectified in a new submission. If this becomes a general rule of practice, the Town Planning Board will help the applicant a lot and save much transaction costs for the applicant.
(f) Positive use of planning conditions
In the Henderson case, the Appeal Board was willing to endorse proposal or use its own planning conditions to make an application successful. However, in none of the previous reported case had the Appeal Board been invited to consider the idea of using planning conditions to overcome potential externalities of the application.
Land Matters
The land tenure of the appellant in the Henderson case, where the appellant needed to obtain a land exchange with the government, was no less difficult than that in, say, the Ultra Force case, in which the government might
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
resume land from the appellant's property. However, the Appeal Board was willing in the present case to decide the appeal, treating land matters as a separate, though related, issue. The same concession was not granted in the Ultra Force case, seemingly presuming that the appellant had exhausted all rights to reject government resumption. Granted that in the Henderson case there was 'planning intention' foreseeing land exchange in the DPA Plan and that resumption in the Ultra Force case was for 'public purpose', both cases involved lease matters which remained to be sorted out. Compare also the rule in the Sun Link Properties case.
Question:
1. Did the government grant a lease modification to permit the
development to go ahead?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 1, 2, 8, 9 and
10.
Town Planning Board, TPB PG-NO. 12A 'Town planning Board Guidelines for Application for Developments within Deep Bay Buffer Zones under section 16 of the Town Planning Ordinance', November, 1994. (This supersedes the following set of guidelines.)
Town Planning Board, TPB PG-NO. ‘Consideration of Section 16 application for Development in Areas around Mai Po Nature Reserve' November 1993.
(Published together with a set of 'Conceptual Guidelines for Developments within Deep Bay Buffer Zone 2'.)
Town Planning Board, TPB PG-NO. ‘Consideration of Section 16 application for Development in Areas around Mai Po Nature Reserve', October, 1992.
Cases:
Judicial review of this case:
Lo Chai Wan (for and on behalf of Town Planning Board) v Town Planning Appeal Board and Henderson Real Estate Agency Ltd. Civil Appeal No. 150, 1995
Privy Council decision about judicial review:
Henderson Real Estate Agency Ltd. v Lo Chai Wan (for and on behalf of
Town Planning Board) (1997) 7 HKLR.
Planning Appeal Cases
Cases cited during the Appeal:
Hingwell v AG 1988 HKLR 32
243
British Railways Board v Secretary of State for the Environment, The
Times, 29th October 1993
Book:
Irving, Richard and Morton, Brian. A Geography of the Mai Po Marshes.
Hong Kong: Hong Kong University Press, 1988.
THE YIU CHO INVESTMENT CASE
•
Case Name: Nos. 6–12 Leighton Road, Hong Kong [the Yiu Cho Investment Casel
•
Planning Appeal Case No. : 14/93
Similar Cases: cases nos. 13/96,
7
16/93, 02/94, 01/96, and 12/96 [the
Henderson -, Naturaluck, So Cho Cheung, Yolanda Fan and Rightlane Investment Cases] regarding successful appeals;
12/92 [the Good Luck Case] regarding loading and unloading, traffic impact
and Town Planning Board Guidelines;
03/92, 08 and 09/92, 12/92, 14/92, 15/92, 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, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Treasure Base (2), Shell Hong Kong, Henderson, 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;
2
03/92, 07/92, 15/92, 18/92, 19/92, 13/93, —, 16/93, 14/94 [the Wo Yi Hop Road, Full Look, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Henderson ,, Naturaluck, Sanyear Investment Cases] regarding adverse environmental impact;
18/92, 19/92 and 13/93, — [the Kingspeed Engineering, Kun Kee Motor and Henderson, Cases] regarding cumulative environmental impact; 15/92, 13/93 and 16/93 [the Ultra Force, Henderson and Naturaluck Cases] regarding the use of planning conditions to overcome potential environmental problems;
13/93,
-, 16/96, 22/95 and 28/95 [the Henderson
"
Naturaluck,
Lucky Gain and Fine Tower Cases] regarding conflicting views between DPO and other government departments;
15/92, 13/93, ———, 16/93, 05/95, 07/95, 08/95 [the Ultra Force, Henderson,
244
•
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Naturaluck, Planet Universal, Delight World, Yin Ning Savings Cases] regarding the use of planning conditions to overcome potential environmental problems.
Nature of the Case: office development in Residential Group A Zone, conflicting views of District Planning Office and Environmental Protection Department, traffic noise favouring office development, vehicular access problem, expert opinions; Town Planning Board guidelines, cumulative impact of development on traffic; the use of planning conditions to overcome potential environmental problems.
Date of s. 16 Application: October 1992
Date of Hearing: 31 January 7 March 1994
•
Date of Decision: 21 April 1994
•
Chairman of Panel: Mr Justice Litton, OBE
Representation: Not mentioned in the decision
Decision: Appeal allowed with conditions
• Rules Laid down by the Decision:
(a) Where expert opinions of both the appellants and the respondents were flawed, the Appeal Board would make its own judgment about the issue.
(b) Office development in Residential Group (A) Zones might be supported if such development was environmentally more acceptable than the alternative of mixed commercial/residential development, even if the former might lead to certain loading/unloading problems.
Background:
The subject site, nos. 6, 8 10 and 12 Leighton Road, fell within a Residential Group A (‘R(A)') Zone in the Wong Nai Chung Outline Zoning Plan No. S/ H7/4 (the OZP). According to the Notes to OZP, the lower three floors of any development could be used as retail shops, restaurants, fast-food shops, etc. under Column 2. Behind the properties was Leighton Hill which was zoned Green Belt. The top of the hill was zoned Residential Group B which had height restrictions. The subject site was close to the Wong Nai Chung Recreation Grounds and Happy Valley Race Course.
In October 1992, the appellant made a s. 16 application for the redevelopment of the subject site into a 25-storey commercial building for 'Grade B' office use with a plot ratio of 15 and a total floor area of 6692 m2 Two loading/unloading spaces were provided on the ground floor with a turn-table for delivery vehicles.
The application was rejected on 8 February 1993 in the first instance and again in a review hearing on 15 June 1993. The District Planning
Planning Appeal Cases
245
Officer considered that commercial development was incompatible with surrounding land use but the Environmental Protection Department supported the proposal because residential development at the subject site was exposed to traffic noise on Leighton Road.
6
A letter from the Town Planning Board dated 20 July 1993 stated the reason for decision: . . . the TPB decided on review not to approve your application on the ground that the proposed vehicular access onto Leighton Road is not acceptable as it is too close to the signalised junction between Leighton Road and Wong Nai Chung Road' (para. 6).
Arguments:
The appellant argued that:
(a) service vehicles could use the kerbside for loading and unloading, as regards the problem that the proposed ingress/egress was within 20 metres of a stop line and the Town Planning Board Guidelines stipulating adequate parking and loading/unloading facilities for R(A) Zones;
(b) a 'conforming residential development' (see discussion below) on the subject site would generate even more servicing traffic than the proposed commercial development as the appellant had a right then to put up a high-rise residential block on a three-storey retail podium. According to the appellant's traffic consultant, the peak service traffic demand of the proposal was likely to be 5 vehicles per hour, compared with 7 for the alternative 'conforming residential building'. This finding was based on a comparative study of an office building at Connaught Road West in the Western District and a 'conforming residential building' at Leighton Road. (Para. 14 in pp. 11-14 gives full details of the methodology.)
The Town Planning Board held in rejecting the s. 16 application that: (a) the proposed vehicular access onto Leighton Road was too close to the
signalized junction between Leighton Road and Wong Nai Chung Road; (b) the feasibility of using the rear-lane for vehicular access (for the purposes of loading and unloading) had not been demonstrated. [The appellant accepted that the difficulties involved could not be overcome and an alternative solution was not pursued.]
During the hearing of the appeal, the Town Planning Board's expert evidence demonstrated that the proposed commercial development would be 2 to 3.5 times that of a 'conforming residential development'.
• Reasons for Decision:
The Appeal Board allowed the appeal, subject to a planning condition, having considered one point: 'Are the traffic objections to a commercial development so overwhelming that the appellant's proposals should, having
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
regard to all other relevant circumstances, be rejected?' (para. 4) The planning condition was that 'there should be no variation of plans to delete the on-site loading and unloading facilities shown in the drawings accompanying the application'. (para. 23)
The reasons of the Appeal Board were as follows:
Access into and out of the Subject Site Was Not Particularly Difficult
As regards general traffic conditions of the subject site, the Appeal Board was prepared to accept the following facts:
(a) a large traffic island, was used partly as a tram stop; it was opposite the site in the middle of Leighton Road divided the west bound traffic into two streams;
(b) the stream of traffic which went onto the next junction at Canal Road was very heavy but the south bound stream to Wong Nai Chung Road was relatively light;
(c) it was not difficult for vehicles entering and leaving the subject site though it was close to the Leighton Road-Wong Nai Chung Road junction as Leighton Road formed two lanes there; and
(d) delivery vehicles could avoid congestion at the junction mentioned in
(c) above on special occasions such as horse race days.
Not Sure if Residential Development Generate Less Traffic Than Commercial Development, Having Regard to Experts of Both the Appellant's and the Respondent's
The Appeal Board had the opinion that it was hard to say whether office development necessarily generated more traffic than residential development because the matter depended upon 'how the buildings will ultimately be used'. (para. 9)
The Appeal Board ruled out the first ground of the appellant, and decided that the appellant's consultant was flawed. (paras. 15-17) However, the 'expert' evidence, in the words of the Appeal Board, of the respondent was also flawed. (para. 17)
The Appeal Board stated that:
Being unconvinced by the expert evidence from either side we have to fall back on the material before us generally. Whatever the methodology used, both sides seem agreed that the proposed commercial development would not generate more than about 5 servicing vehicles per hour at peak servicing hours. This is unlikely to have much impact on the traffic along Leighton Road approaching the signalised junction. Moreover, the proposed access is to only two parking spaces (with a machine-operated turn-table inside). The evidence, which we accept, is that, based on the present traffic figures, there will be many time
Planning Appeal Cases
•
slots during which the servicing vehicles will be able to move in and out without disturbing the flow of traffic. (para. 20)
247
The Appeal Board agreed that the cumulative impact of commercial development could be considerable. Nevertheless, it concluded that 'overall, the merits of a commercial development overweight those of a residential development, even though the former will result in a taller building and a higher plot ratio'. (para. 22)
Comments:
General Comment: The First Reported Appeal Case Allowed since 1991
This is the first case where an appeal was allowed. In this case, the issue of planning intention was not invoked. The case was decided on a technical transport planning issue but neither the expert opinions of the appellant's nor those of the respondent's were considered credible; it was decided by intuitive judgment. It was unfortunate as to how the Appeal Board balanced the judgment of the District Planning Office vis-à-vis that of the Environmental Planning Department.
Any Difference from the Good Luck Case?
The Good Luck case, appeal case no. 12/92, also involved an application for commercial use within a R(A) Zone at Cheung Sha Wan. The main issue in that case was also loading/unloading. In the Good Luck Case, the Appeal Board also conceded that the proposed commercial development was preferred to a commercial/residential building redeveloped under Column 1 of the OZP (described as 'conforming residential development' in this case). Though the Appeal Board dismissed the appeal in the Good Luck case, it intimated that the appellant might wish to make a fresh application proposing a turn-table, which was not a part of the original s. 16 application, to address the issue of loading/unloading. Thus, except for the more sympathetic tenor of the Appeal Board in the present case, these two cases were not dissimilar in facts and analysis.
Correct Estimates of Traffic Generation
Traffic generation has some function on floor space, and hence plot ratio. The issue is basically one of statistical inference. This method is of course subject to variation in the actual use of the floor space but one could certainly increase the confidence level of such inference by a study of appropriate samples. If one refuses to accept this approach, then there is hardly any other scientific method for traffic forecasting. Indeed, then, one would not accept the idea of forecasting itself. Planning, unfortunately, often has to rely on forecasting techniques. Forecasting is necessary as the world is uncertain. To dispute the use of forecasting is to dispute the
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
very existence of planning as a means to reduce uncertainty. As for the proper ways to increase the degree of accuracy in forecasting traffic generation of office vis-à-vis mixed commercial/residential development, a better approach which should have been used by the appellant was to select samples of new buildings of these two uses along Leighton Road. The traffic characteristics of new buildings of the two uses in the same locality would definitely be a more reliable source of data than having just one samples obtained from a remote district.
Meaning of Conforming Development'
The term 'conforming development' is bewildering. Typically, when the planner refers to a 'non-conforming use', they are passing a judgment of an existing use, which always conforms to the lease. While developments under Column 1 are of course conforming to the zone, so are approved Column 2 uses. In the present case, there was no real non-conforming use, existing or proposed, in either the context of the lease or town planning,
Questions:
1. What happens today on the subject site? Has traffic circulation been
impaired much by the redevelopment?
(See Photograph 11)
2. Are the same old arguments of planning intention or bad precedent
absent from the Town Planning Board's decisions?
Photograph 11 Subject Site of the Yiu Cho Investment Case in May 1998
D
Planning Appeal Cases
249
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapter 8.
Town Planning Board, TPB PG-NO.5, Town Planning Board Guidelines for Application for Office Development in Residential (Group A) Zone under Section 16 of the Town Planning Ordinance', December, 1990.
THE NATURALUCK CASE
Case Name: Lots Nos. 228, 230, and 231 in DD 16, Tai Po, New Territories [the Naturaluck Case]
•
Planning Appeal Case No.: 16/93
Similar Cases: cases nos. 13/93, 14/93,
Henderson, Yiu Cho Investment,
12/94, 01/96, and 12/96 [the
So Cho Cheung, Yolanda Fan
and Rightlane Investment Cases] regarding successful appeals;
11/93, [the Shell Hong Kong, 15/92, 04 and 05/93, 13/93
Cases] regarding PFS application; [the Ultra Force, Treasure Base (2), Henderson, 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;
3
28/95 (the, and Fine Tower Cases] regarding the principle that planning permission should be given unless there are good reasons for refusal (per the Fine Tower Case);
07/92, 18/92, 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, 06/96, 12/96 and 01/97 [the Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson
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);
17/93,
08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93,
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), Henderson, -, Shun Fat Container, Ever Need, Tang Sai
250
•
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Hung, 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;
15/92, 13/93, 14/93, ——, 05/95, 07/95, 08/95 [the Ultra Force, Henderson, Yiu Cho Investment, Planet Universal, Delight World, Yin Ning Savings Cases] regarding the use of planning conditions to overcome potential environmental problems;
"
07/92, 04/93 and 05/93, 11/93,, 19/93, 01/94, 09/94, 05/95, 07/95 and
28/95 [the Full Look, Treasure Base (1) and (2), Shell Hong Kong, Ever Need, Tang Sai Hung and Lee Yiu Kam, Planet Universal, Delight World and Fine Tower Cases] regarding incompatibility with adjoining uses, environment/development;
03/92, 07/92, 15/92, 18/92, 19/92, 13/93, —, 14/94, 28/95 and 04/96 [the Wo Yi Hop Road, Full Look, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Henderson, Sanyear Investment, Fine Tower and
"
Container System Cases] regarding adverse environmental impact; 14/93 [the Yiu Cho Investment Case] regarding conflicting views between
DPO and other government departments;
15/92, 14/93 [the Ultra Force, Yiu Cho Investment Cases] regarding the use of planning conditions to overcome potential environmental problems; 13/93 and 14/93 [the Henderson and Yiu Cho Investment Cases] regarding
conflicting views between DPO and other government departments.
Nature of the Case: petrol filling station in 'Unspecified Use' Zones in Development Permission Area (DPA) Plan; decision by reference to the Hong Kong Planning Standards and Guidelines (HKPSG); planning intention contained in Explanatory Statement (misprinted as 'notes') of DPA Plan; presumption in favour of development? [compare with the Ultra Force Case vis-à-vis the Henderson Case]; conflicting views between DPO on the one hand and Director of Water Supplies and Director of Environmental Protection on the other; use of planning conditions to overcome potential environmental problems; Appeal Board amending a department's proposed condition to keep a proposal off the ground; facts and reasons stated in Town Planning Board Papers.
Date of s. 16 Application: 18 April 1993
Date of Hearing: 22 February – 9 March 1994
•
Date of Decision: 21 April 1994
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Mr K.C. Lee of Ho Tin and Associates for the appellant
Planning Appeal Cases
•
Decision: Appeal allowed with conditions
251
Rules Laid down by the Decision:
General Principles
(a) A PFS was not necessarily an urban commercial use.
(b) The entry of a use in Column 2 of a zone implied that that use was
compatible with the adjoining zones of that zone.
(c) 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 were good reasons for refusal. (Compare with the Treasure Base (2) and the Henderson cases.)
(d) Even if a site was not ideal but merely suitable for a Column 2 use, permission should not have been refused in the absence of evidence that 'permission would cause demonstrable harm to interests of acknowledged importance'.
(e) Facts and reasons stated in the Town Planning Board Papers were
relevant considerations for the Appeal Board.
Specific Rules for a PFS
(a) A PFS was not necessarily an urban commercial use.
(b) Even if the subject site was not ideal but merely suitable for a PFS, permission should not have been refused in the absence of evidence that 'permission would cause demonstrable harm to interests of acknowledged importance'.
(c) Even if the subject site was zoned 'V', it did not imply that a PFS would necessarily be incompatible as PFS was a permissible (Column 2) use. [Compare the ruling of the Appeal Board in the Shell Hong Kong case (11/93)].
Background:
The subject site, Lots Nos. 228, 230, and 231 in DD 16, Tai Po, fell within an 'Unspecified Use' Zone in the draft Lam Tsuen Development Permission Area Plan (The DPA Plan). Abutting Lam Kam Road, Lam Tsuen, the subject site had an area of 572 m2. It was opposite to Hang Ha Po Village. The appellant made a planning application for a petrol filling station (PFS) and this was rejected by the Town Planning Board in the first instance and again in the review.
The Water Supplies Department did not object to the proposal provided that the appellant was prepared to accept their conditions in the lease as specified in a memo dated 14 September 1993. Such conditions included the clause, Condition No. (viii) that 'the land lease related to the development of the Petrol Filling Station shall last for 5 years only initially and lease extension is subject to satisfactory compliance with the above conditions'. (para. 17)
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
The District Lands Officer, Tai Po (DLO/Tai Po), commented vide a memo dated 25 September 1993 on the Water Supplies Department's memo: 'However, regarding Condition No. (viii), I would advise that it is not our practice to impose a condition in the Exchange Documents to the effect that the use of the petrol filling station shall last for 6 years only initially and lease extension is subject to satisfactory compliance with the exchange conditions. As a result, I have reservation with respect to the said Condition No. (viii) until the subject application is approved by the Town Planning Board and the lot owner has submitted a land exchange application to this Office.' (para. 18)
At the s. 16 stage, one objection of the Town Planning Board was that the PFS was too close to an existing new village house which was not yet occupied, and would hence cause undesirable environmental impact on the residents. That house would be purchased by the appellant who would use it to complement the PFS. For some technical reasons the purchase had not been finalized but there was a letter from the registered owner stating that he had no objection to the PFS.
In the Town Planning Board paper against the application, it was stated that 'the proposed development is too close to an exisitng village house...' (para. 23, emphasis by the Appeal Board)
Arguments:
The Town Planning Board stated in the appeal hearing that (para. 3): (a) the proposed development was not compatible with the surrounding
rural environment and not in line with the planning intention for the area which was primarily for the promotion of agricultural activities and enhancement of the natural environment;
(b) there was insufficient information contained in the application to demonstrate that the proposed development would not interfere with the integrity of the waterworks water gathering ground. Any possible leakage of petroleum produce could cause water pollution by pollutants which could not be eliminated in the normal water treatment process; and
(c) the proposed development was too close to existing village houses.
An earlier reason relied on by the Town Planning Board against approving the s. 16 application had been that the location of the exit point on the existing village road is not desirable as it may be in conflict with the local traffic to and from the village and from the adjacent refuse collection point'. (para. 4) This reason had been dropped before the appeal was heard.
Counsel for the Town Planning Board submitted that the conditions of the Water Supplies Department could not be compiled with in the light of DLO/Tai Po's memo.
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The Appeal Board allowed the appeal with ten conditions, spelt out in para. 30, pp. 6–7.
Not Incompatible with Rural Environment in Terms of the 300-Foot Rule
The Appeal Board did not subscribe to the argument of the District Planning Officer/Sha Tin and North East stating that the proposed PFS was incompatible with the so-called rural or village environment by reference to the so-called '300-foot rule'. The reasons were as follows: (a) Para. 6.3.1 (ii) of the Explanatory Statement (misprinted as 'notes' in para. 7 of the decision) of the DPA Plan stated that 'consideration had been given to the "300 foot-rule" in delimiting the "V" Zones. The area thus derived, occupying some 38% of the total area is considered much too large vis-à-vis the forecast small house demand of the respective indigenous villages'. (para. 7) The Appeal Board held that had the '300-foot rule' been adopted, the site would have been zoned Village Type Development (V) in the first place. Hence the rule was irrelevant. (b) Even if the subject site was zoned 'V', it did not imply that a PFS would necessarily be incompatible as PFS was a permissible (Column 2) use. [Compare the ruling of the Appeal Board in the Shell Hong Kong case (11/93)].
(c) A PFS was not necessarily an urban commercial use.
(d) The proposed PFS satisfied the HKPSG.
(e) Even if the subject site was not ideal but merely suitable for a PFS, permission should not have been refused in the absence of evidence that 'permission would cause demonstrable harm to interests of acknowledged importance'. (para. 13)
Would Not Affect Water Gathering
The Appeal Board did not see why the proposal would affect the water gathering ground because:
(a) the Director of Water Supplies did not object to the proposal provided that the appellant was prepared to accept their conditions in the lease; (b) it was not correct that DLO/Tai Po's comments implied that the suggested conditions were unenforceable because it is obvious to us that instead of a lease for 5 years which may be extended subject to compliance of conditions, the lease can be for the usual term subject to a condition for re-entry in the event of non compliance with conditions. This should not be a problem.' (para. 19);
(c) the expert evidence of the appellant regarding the risk of contamination was convincing as the interceptors would be able to accommodate 10 000 litres of split fuel.
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•
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Not Too Close to Village Houses
The Appeal Board did not agree with the respondent that the PFS was too close to the village houses as:
(a) only one house was stated to be too close in the original s. 16
and s. 17(a) Town Planning Board Papers;
(b) the Environmental Protection Department did not object to the
proposal;
(c) many of the nearby village houses were located in Hang O Po Village
which was separated from the subject site by Lam Kam Road;
(d) the nearest houses were more than 30 metres away from the subject
site;
(e) the appellant had proposed a condition restricting hours of operation
between 7 a.m. and 11 p.m.
Comments:
General Comment: The Second Reported Appeal Case Allowed
This is the second reported case where an appeal was allowed. It was decided when the spectacular Henderson case was being heard. Indeed, it shared a number of traits identifiable in that case, namely:
(a) Presumption in favour of development re-interpreted?
In the Ultra Force case, it was categorically stated that, in response to the appellant's submission, there was no presumption in favour of development for private projects. Yet, the wind appeared to have changed as the hearing of the Henderson case commenced. In the Henderson case, the reasonable rule that an application should not be turned down unless there are clear objections was stated and explained at great length for the benefit of the public.
In this case, the essence of the same rule was revealed; permission should not have been refused in the absence of evidence that 'permission would cause demonstrable harm to interests of acknowledged importance'.
(b) Planning intention properly interpreted
As in the Yiu Cho Investment case, there was no ideological discussion of the mysterious concept of planning intention which had haunted most cases previously decided, yet in effect it clarified the concept more than the Henderson case did. The relevant rules are as follows: (i) The entry of a use in Column 2 of a zone implies that that use is compatible with the adjoining zones of that zone, meaning that such use must be consistent with the 'planning intention'.
(ii) Even if a site was not ideal but merely suitable for a Column 2 use, permission should not have been refused in the absence of
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evidence that 'permission would cause demonstrable harm to interests of acknowledged importance'.
Furthermore, the archetypal argument of pre-empting future Outline Zoning Plan formulation as revealed in the Kingspeed Engineering and Kun Kee Motor cases was, correctly, not repeated in this case. The relevant plan is the DPA Plan, not a future plan, as elucidated in the Henderson case.