Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) It is the Town Planning Board which approves or rejects planning
applications, not the District Planning Officer.
(b) The onus of proving that an application has no adverse impact is on
the applicant/appellant, not on part of the government.
(c) Where an application is rejected on both fundamental (such as planning intention and land use compatibility) and technical grounds, if the technical concerns are satisfactorily dealt with on resubmission, the application may or may not succeed depending on whether the more fundamental objections can be overcome.
(a) The planning intention for deciding a planning application should be that found in the statutory plan under which the application is made, not within a subsequent plan that replaces it.
Background:
With an area of 5200 m2, the subject site comprised of lots numbers 117 and 118 in Demarcation District 108 which fell within an Unspecified Use Zone in the draft Pat Heung Interim Development Permission Area Plan No. DPA/YL-PH/1/KC/5 (IDPA Plan), which was published in the gazette on 5 October 1990. The user of the site was car repairing workshop operated by the appellant.
It was reported that the user commenced subsequent to the publication of the IDPA Plan sometime between 17 June 1992 when aerial photographs were said to show that the land was 'grassland', and 31 March 1993 when site inspection revealed open storage of vehicles, vehicle parts and vehicle repairing on the property.
A 'warning letter' was issued to the owners of the property by the Planning Department on 24 August 1993 stating that the use was unauthorized.
On 21 October 1993, the appellant made a s. 16 application.
On 12 July 1991, the draft Pat Heung Development Permission Area Plan No. DPA/YL-PH/1 (DPA Plan) was published in the gazette. The subject site was zoned as 'unspecified use' in the DPA Plan.
On 20 May 1994, the draft DPA was approved without amendment. On 17 June 1994, the draft Pat Heung Outline Zoning Plan No. S/YL- PH/1 (OZP Plan) was published in the gazette. In the draft OZP, the
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subject site was zoned 'Residential (Group D)' (R (D) ).
The appellant's application was rejected in the first instance and again in the s. 17 (1) review by the Town Planning Board.
Arguments:
The appellant argued that:
(a) he had no difficulty with the last three reasons used by the Town Planning Board in rejecting his application as his professional advisers suggested that they were technical and surmountable;
(b) however, he was also advised that it would be costly to deal with the three technical reasons and that the expense might be of no avail because of the first and second objections. A surveyor had told him that if he had not been able to overcome the first two objections, 'he would be wasting his money trying to deal with the other objections' (para. 17);
(c) hence, he wanted the Appeal Board to clarify that if he had been able
to overcome the last three reasons, his application would be approved.
In rejecting the application in the s. 17 review, the Town Planning Board held that (para. 10):
(a) the development was not in line with the planning intention for the 'Unspecified Use' area which is to encourage agricultural uses and reconstruction of temporary structures with permanent materials with a view to improving the environment;
(b) the development was not compatible with the nearby residential
developments;
(c) no information had been provided in the submission to demonstrate that the development would not cause adverse environmental impact on the surrounding areas;
(d) the access road to the development would affect the adjacent bus lay- by and insufficient information had been provided in the submission to demonstrate that the development would not cause adverse traffic impact on the area; and
(e) no landscaping proposals had been included in the submission.
In the appeal hearing, the appellant questioned the District Planning Officer (DPO), Mr Paul Ng, whether his application would be approved had the appellant been able to overcome the technical reasons.
In response, the DPO was reported to have said that ‘if the concerns raised in the last 3 reasons were satisfactorily dealt with, the application may or may not succeed depending on whether the more fundamental objections raised in the first 2 reasons can be overcome.' (para. 14)
The DPO was also said to have reported that active enforcement actions were being taken to realize the planning purpose.
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• Reasons for Decision:
323
It was reported that members of the Appeal Board 'sympathise[d] with Mr. Wong's predictament [predicament] and understand why he should be unwilling to spend money dealing with the technical objections unless he was confident of ultimate success, there is nothing we can do to help.' (para. 16). The Appeal Board dismissed the appeal on the following grounds:
No Valid Reason Justifying the Appeal
'Mr. Wong had put forward no valid reason justifying his appeal. None of the technical objections have been dealt with. Nor has he attempted to deal with the more fundamental objections raised in the Broad's first and second reasons.' (para. 18)
Against Planning Intention
'In our opinion, this appeal must fail. Given the clear planning intention, which was to encourage agricultural uses and reconstruction of temporary structures with permanent materials with a view to improving the environment, we have no doubt that a vehicle repairing workshop is not compatible. Moreover, Mr. Ng's evidence demonstrated quite clearly that active enforcement actions are being taken to realise the planning purpose.' (para. 19)
Comments:
Courtesy and Rationality
The Appeal Board is usually adamant about those who are seen to have come before them with 'dirty hands', i.e. the people accused of having committed the offence of unauthorized development in planning enforcement procedures. (Recall the Appeal Board's lectures in the Pak Kong, Kingspeed Engineering, Kun Kee Motor, and Shun Fat Container cases). In this case, the Appeal Board was particularly courteous and even expressed its sympathy towards the appellant's position.
I would not speculate on why there should be such apparent discrepancies for the Appeal Board to 'hold the hard line' in certain cases while saying something nicer in others. Suffice it to say, the position of the Appeal Board on 'planning intention' was unwavering. 'Planning intention' was still considered the decisive factor. Before turning to the topic of planning, which I have repeatedly criticized for being vague sometimes and often illogical, I will first deal with the R(D) zoning in the OZP.
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What Was the True Planning Intention: Did the R(D) Zoning in the OZP Matter?
There was no submission by the appellant on what the designation of R (D) zoning in the OZP implied for his application. The Appeal Board indeed was careful to pre-empt any speculation along that line ‘as the applicant's s. 16 application was made on 21st October 1993, this appeal falls to be considered under the draft DPA [Plan]' (para. 9).
It is submitted that the Town Planning Board would be at least contradicting, if not mocking, itself to reject a resubmission which overcame all technical matters on the same old grounds of planning intention or land use incompatibility. The reason is that under Column 2 for R(D) zones in the OZP, a whole array of suburban and urban uses are included: banks, restaurants, public car parks, transport terminus, and so on. It makes neither formal nor logical planning sense to claim that open storage of cars is inconsistent with the planning intention of allowing, as a matter of principle, public car parks or transport stations.
It is further submitted that the Appeal Board had not been able to steer a consistent approach in dealing with the implications of subsequent statutory plans that would replace or actually had replaced those under which applications were made. In the Sung Dynasty City case, the appeal was entertained allowing the respondent's new OZPS to creep into the arguments. Similarly, in the Pak Kong, Kingspeed Engineering, Kun Kee Motor, Ng Siu Wing and Sun Link Properties cases, subsequent statutory plans were said to have helped interpretation of 'planning intentions'. In neither the Henderson nor the present Wong Yee Fai (1) case had this approach been applied similarly. It therefore seems that the Appeal Board was simply finding reasons to suit its decisions rather than following a logical and internally consistent way of thinking.
What Did the Appeal Board Decision Achieve from a Planning Point of View?
In dealing with appellants involving in planning enforcement affairs, the Appeal Board used to dismiss the appeals vehemently. This time, the 'kill' was done softly. Apparently not much had been argued. However, the decision here falls in the same category of those cases where the false ideology of planning intention was unreflectively reinforced.
Relevance of Private Property Rights
Planning enforcement legislation criminalized previously legitimate common law rights of Crown lessees affirmed in the Melhado case. It also penalized an otherwise good business which is required to support Hong Kong's industry and prosperity, and thus serves the 'convenience' and 'general welfare' intention of the Town Planning Ordinance. Bureaucratic
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and judicial attitudes to the people affected have generally been one of apathy, and to those accused of committing such newly created offences, one of hostility. Little has been said about the fact that more than 70% government land in Hong Kong is land in Country Parks and that commercial farming (animal and poultry farming having been banned) in Hong Kong is not economically viable on any meaningful scale. Such uncompensated interference of property rights, unsubstantiated by economic justifications, has not been compensated. This state of affairs has been running in conflict with the spirit and intent of Clauses 6 and 105 of the Basic Law the written constitution for the Hong Kong
Special Administrative Region.
A Simple-Minded Big Question: Was a Vehicle Repair Workshop Inconsistent with a Rural Environment?
I must submit that, given my professional training and experience, a vehicle repair workshop is compatible with the rural environment as a matter of good planning principles even without resorting to the public car park use in Column 2 of a R(D) Zone. The reasons are as follows: (a) Vehicle repair uses are generally not considered suitable in the urban environment. There has been government attention to the nuisance generated by such workshops in a high density urban environment. (b) Residents in the new towns and rural settlements of the New Territories have high car-ownership rates due to commuting needs. Some of these workshops must be available to meet community's needs.
(c) The site is designated unspecified use, not agriculture. Nor is it in the immediate vicinity of 'sensitive users', such as village houses or schools.
The Appeal Board had therefore been poorly counselled.
Report about Planning Enforcement Measures
It was not clearly reported on just what sort of planning enforcement measures were being taken against the appellant. As planning enforcement proceedings are criminal, in order to preserve justice, it is therefore inappropriate for the DPO to communicate with the Prosecution staff of the Planning Department about details of actions against particular individuals, whether or not they are also connected with planning applications. The Appeal Board should have ignored the evidence of the DPO here, especially when his office was no longer involved in enforcement on the date of hearing. Such duties had already been transferred to the Prosecution unit.
To reiterate, I submit that it is more appropriate for the Appeal Board to disregard the element of planning enforcement from its consideration of an appeal. It is because an individual being served a notice under the Town Planning Ordinance is entitled to a statutory right to make a
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planning application. It is submitted that any presumption that such applications will fail or be rejected opens up grounds for judicial review since this is an unreasonable presumption: it pre-empts the rights of the affected individuals who have not yet been convicted at a court of law.
Onus of Proving One's Application
This case reveals that the burden of proving one's case is on the applicant or appellant, rather than on the part of the government. This position was more clearly revealed later in the Leung Wing-nin case which was not complicated by arguments of planning intentions or planning enforcement.
Questions:
1. What is the present use of the site?
2. What are the adjoining uses of the site?
3. Where are the nearest sites on which open storage of vehicles/open-air
repair of vehicles have been approved?
• References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5, 8, 9, 10 and
11.
Town Planning Board, TPB- PG NO. 13, 'Town Planning Board Guidelines for Application for Open Storage and Port Back-up Uses under Section 16 of the Town Planning Ordinance', November, 1994.
Cases:
1. The mischief planning enforcement legislation targets
AG v Melhado Investment Ltd. [1983] HKLR 327
2. Relevant planning enforcement cases (See Appendix)
Auburntown Ltd. v TPB HCMP No. 222 of 1993
Tsei Kwei King & Cheung Kam v AG MP No. 1509 of 1993
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of
1994
Regina v Tang Yip and Yeung Fook Mui Magistracy Appeal No. 864 of 1994
Regina v Helen Transportation Co. Ltd., Liu Ka Sing and Chan YukKwan Magistracy Appeal No. 303 of 1995
Planning Appeal Cases
327
Regina v Power Straight Ltd., Dragon Friend Ltd. Magistracy Appeal No. 644 of 1995
THE LAI SUN DEVELOPMENT CASE
Case Name: No. 789, Cheung Sha Wan Road, Kowloon [the Lai Sun Development Case]
Planning Appeal Case No.: 12/94
Similar Cases: cases nos. 01/91, 03/92, 05/92, 02/94,
"
-, 21/95, 22/95 and 28/95 [the Alticosmic, Wo Yi Hop Road, OTB, So Cho Cheung, Cheung Hing Lung, Lucky Gain and Fine Tower Cases] regarding commercial use application in Industrial Zones;
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, -,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, Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), - Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Arzignano Leather, Jetway Civil, Cheung Hing Lung, Wong Yee Fai (2), Fine Tower, Container System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans);
05/92, 07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 11/94, ———, 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), Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), 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;
05/92, 15/92, 18/92, 19/92, 02/93, and 04 and 05/93, 13/93, 17/93,,05/ 95, 16/95 and 22/95 [the OTB, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Bowen Road, and Treasure Base (2), Henderson, Shun Fat Container, Planet Universal, Arzignano and Lucky Gain Cases] regarding the nature of planning and the market or private interest/ public interest.
Nature of the Case: planning intention derived from the OZP and its Explanatory Statements; office development in Industrial Zones
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Date of s. 16 Application: 19 February 1994
Date of Hearing: 7 June 1995 - 9 August 1995
•
Date of Decision: 14 September 1995
•
•
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Mr Kwok for the Town Planning Board
(b) Representation for the appellant was not mentioned in the decision
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) The Appeal Board, in exercising appellate functions under s. 17(B) of
the Town Planning Ordinance, has no power to make plans.
(b) Strategic plans (Territorial Development Strategy), subregional plans (such as Metroplan) as well as district-level Development Statements are merely background materials for the Town Planning Board to formulate planning policies but cannot be used to interpret statutory plans.
(c) A use should not be approved where its future market is doubtful. (d) A use should not be rejected simply because it does not produce
planning gains.
(e) Office development under Column 2 of an industrial zone in an OZP
shall be subsumed under the Industrial/Office building concept.
Background:
With an area of 1224.45 m2, the subject site was at no. 789, Cheung Sha Wan Road, Kowloon, which fell within an Industrial (I) Zone in the Cheung Sha Wan Outline Zoning Plan No. S/K5/10 (the OZP) which was published in the gazette on 7 October 1994. It had been zoned as I in the preceding OZP No. S/K5/9 published in the gazette on 24 December 1993. On the subject site stood a godown building.
On 19 February 1994, the appellant made a s. 16 application for the permission of developing a 19-storey office/retail building, named Cheung Sha Wan Plaza II, on the subject site. Features of the proposal included: (a) 2 basement floors for carparking;
(b) a podium consisting of 31⁄2 floors of retail shops, with some shop spaces
and loading and unloading facilities on the ground floor;
(c) an office tower from 5th to 17th floor;
(d) retail Gross Floor Area (GFA) 4733 m2 (32% of total GFA);
(e) office GFA 9960 m2 (67% of total GFA); and
(f) foOTBridge connections at the first and third floor levels with Cheung
Sha Wan Plaza across Tai Nam West Street.
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329
The appellant was also the owner of Cheung Sha Wan Plaza, which was a development above the Lai Chi Kok Mass Transit Railway (MTR) Station. Cheung Sha Wan Plaza was separated from the subject site by Tai Nam West Street. Cheung Sha Wan Plaza has been zoned 'Other Specified Use' (OU) and was remarked on the OZP as being suitable for use as a 'multi-storey car/lorry park', with office, restaurant, and retail use being permitted on application to the Town Planning Board.
The Town Planning Board rejected the s. 16 application on 17 March 1994 and again in a review hearing on 22 July 1994.
Arguments:
The appellant argued that:
(a) a number of government planning documents and reports supported the proposed use. These documents and reports included: Territorial Development Strategy Review (TDSR) conducted at the territory-wide strategic level; the Metroplan 1991; the Study on Restructuring of Obsolete Industrial Areas (ROBINA) 1993 conducted at subregional level; and the West Kowloon Development Statement (November 1993) conducted at a district level;
(b) other government reports, such as the 'Office, Hotel and Retail Development Strategy for West Kowloon - Final Report' prepared by the Planning Department suggested the idea of developing 'office nodes' close to selected Mass Transit Railway (MTR) or Kowloon Canton Railway (KCR) stations in old industrial areas had been translated into planning strategies;
(c) the Town Planning Board had departed from their own guidelines published in December 1990 which regulated s. 16 applications for office buildings in industrial zones;
(d) there was a shortage of both office and retail space in the area; (e) there would be continuing future shortage of both office and retail spaces in the area. Two experts provided evidence in the appeal hearing; (f) there was no obvious planning gain did not mean that no planning permission should be given. Otherwise, the factor of planning gain would become an all-embracing one.
In rejecting the application in the s. 17 review, the Town Planning Board held that (para. 6):
(a) the proposed development was not in line with the planning intention for the area which was to retain and upgrade the existing industrial buildings;
(b) there were purposefully designed office/retail buildings in the vicinity to meet the demand for office spaces in the area without having to sacrifice existing industrial land;
(c) as the site was located in the midst of existing buildings, there was no obvious planning gain through alleviating the industrial/residential interface problem, and
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(d) the approval of the proposed development might set an undesirable precedent for other similar applications, thereby resulting in cumulative loss of industrial floor space.
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
Planning Intention Was for Light Industrial Uses
The Appeal Board stated that it derived the 'planning intention' from the plan itself (including the Notes) and the Explanatory Statements. The Appeal Board noted that under the Notes, the Town Planning Board had a discretion to permit use for Industrial Zones: bank, fast food shop, office not ancillary to the industrial use, restaurant, retail shop, etc. The Appeal Board also noted that para. 6.4 of the Explanatory Statements stated that:
6.4.1 Land zoned for this purpose is intended to provide for industrial developments including general industrial use, service trades and warehouses. However, some other industrial developments such as heavy industries, storage of dangerous goods and offensive trades may also be permitted through application to the Board. In addition, through the planning permission system, certain commercial uses such as banks and retail shops may be permitted in the industrial areas to cater for the needs of the industries and the industrial workers.
The Appeal Board came to the view that para. 6.4 in effect amplified the Notes to the OZP. Column 1 contained uses directly related to industrial activities such as canteen, cooked food centre, government refuse collection point, service trade, vehicle repair garage, warehouse (other than dangerous goods godown), etc. Heavy industries such as cement manufacturing and concrete batching plant, though obviously falling within the definition of industrial use, nevertheless required planning permission. The Appeal Board accepted that certain 'services' had to be provided to support such light industrial use and found that the canteen, service trade and vehicle repair garages in Column 1 had served that purpose. The Appeal Board discovered that general office/retail use, unrelated to industry, was not contemplated in the Notes. The Appeal Board stated that this view was also in line with the somewhat restrictive wording in para. 6.4.1 of the Explanatory Statements, which identified banks and retail shops in the industrial areas as 'catering for the needs of the industries and the industrial workers' (para. 9). Nothing, the Appeal Board recognized, on the face of the Explanatory Statements indicated the use of the site for a commercial/retail/office building was intended. The Appeal Board, therefore, concluded that the Industrial Zones, which occupied 10.31% of the Cheung Sha Wan OZP, was 'intended for light industrial use'.
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331
Territorial and Subregional Plans/Reports Were 'Merely Tools for Formulation of Planning Policies' and Many of the Statements Were Equivocal
The Appeal Board did not attach much weight to the strategic, regional and district planning policy documents produced by the Planning Department. The reasons are as follows:
(a) These documents looked at land use on a very small scale (too broad brush) and were not focused on the planning intentions for the 'industrial' areas in the Cheung Sha Wan OZP. The Appeal Board gave an example of the problem posed by small-scale plans contained in these documents. Referring to the West Kowloon Development Statement: Final Technical Report, the Appeal Board pointed out that there were discrepancies between Figure 5.3, which showed 'retail nodes' and marked Lai Chi Kok MTR station as one of the retail nodes on the one hand and para. 27, which referred to new retail nodes at the Mongkok KCR and Tai Kok Tsui MTR stations, on the other. The Appeal Board did not find any reference in the Statements to designating Lai Chi Kok MTR station.
(b) Para. 32. of the West Kowloon Development Statement indicated that there was a need for discouraging ad hoc land use from being changed to commercial uses in less ideal situations. The Appeal Board noted the content of the paragraph (para, 13):
Development Control
32.
In view of the substantial new supply from committed development, from the West Kowloon and Kowloon Point Reclamations and from the hinterland urban renewal action areas, there is a need to discourage future ad hoc land use changes to commercial uses in less ideal locations . . .
The Appeal Board stated that one could guess that the subject site was found exactly in the 'less ideal locations'. The point was that it was dangerous to use these kinds of reports.
(c) These reports 'constitute at best background material. They are, by their nature, merely tools for the formulation of planning policies by the TPB. Many of them, such as ROBINA, are ongoing studies; observations, recommendations even statements of strategic intention in these reports are liable to change.' (para. 14) (italics mine) (d) The overriding objection was that the Appeal Board, in exercising appellate functions under s. 17(B) of the Town Planning Ordinance, had no power to make plans. 'We have no functions such as those exercised by the TPB under s. 3(1)(a) of the Ordinance. To promote the "health, safety, convenience and general welfare in the community" by drawing up plans providing for different lands uses.' The Appeal Board considered that had it accepted that large-scale commercial
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development at the subject site, it would have been acting ultra vires by making plans. The Appeal Board said this: 'Whether, as a matter of territory-wide policy, there ought to be large retail nodes around MTR stations, particularly in the old industrial areas, is not something for our determination.' (para. 15)
The Town Planning Board Guidelines
The Appeal Board noted that the relevant Town Planning Board Guidelines began with the following statement (para. 17):
1. Scope and Application
1.1
1.2
Changes in land use pattern and improvements in public transport facilities have rendered some sites in existing industrial areas suitable for redevelopment to office or office/ commercial buildings. The Town Planning Board recognizes that such development either in close proximity or within existing industrial areas may be complementary to the industrial activities, particularly in areas lacking in office/commercial floor space. The board also recognizes that redevelopment of some existing industrial sites into office buildings may help in the general thinning out of obsolete industrial activities from the main urban area, thereby achieving general environmental improvements, reduction of traffic congestion, and a better structure of urban land uses.
While conscious efforts are being made by the Town Planning Board to rezone suitable industrial sites for office (or other) development having regard to the overall supply and demand of industrial land and office floorspace in the whole Territory, the Board will also consider, through the planning permission system, proposals for office buildings in industrial areas.
The Appeal Board also noted that the main criteria for determining s. 16 applications were as follows (para. 18):
(a)
(b)
(c)
The proposed office building should be located in an industrial area where there is a demonstrated shortfall in the provision of office and other commercial floor space to serve the industrial activities in the district.
"The proposed office building should be located in an industrial area where there is a known inadequacy in the capacity of infrastructural provision, e.g. sewer, drainage and road network, such that the proposed office development will help to alleviate such inadequacy significantly as compared with an industrial development.
The proposed office building should be shown to induce significant improvements to the general amenity and environment of the district as a whole, such as in localities where existing industrial buildings may have become a ‘residual'
Planning Appeal Cases
(d)
(e)
(f)
(g)
use due to the gradual transformation of the character of the
area.
In particular, favourable consideration may be given to redevelop an existing industrial building for office use where the building has created critical ‘interface problems' in terms of air, noise and/or water/effluent pollution on nearby environmentally- sensitive uses such as residential developments, schools and hospitals.
The proposed office building should be at an easily accessible location which will be attractive to potential users.
The application site should be well served by public transport so that the generation of private car trips would be reduced in comparison with industrial development, thereby alleviating local traffic congestion problems.
Favourable consideration may also be given to redevelop the existing industrial site for office use where the size and dimension of the site is so small that it is difficult to provide adequate loading/unloading and parking spaces for industrial vehicles in accordance with the Hong Kong Planning Standards and Guidelines, and where further site amalgamation has been demonstrated impossible, to avoid the overspill of loading/ unloading and parking activities onto nearby streets.
333
Having noted the content of the Guidelines, the Appeal Board was not reported to have made any comment on the guidelines. Presumably, it regarded that the guidelines were self-explanatory.
Office/Retail Buildings Were in the Vicinity
The Appeal Board noted that there were three office/retail buildings in the vicinity of the subject site. They were not zoned 'Industrial'. They were Cheung Sha Wan Plaza, Lai Sun Commercial Centre and Trade Square.
As regards the plea that there was a shortage of both office and retail spaces in the area and that there was a waiting list for prospective tenants in Cheung Sha Wan Plaza, the Appeal Board noted that the level of rent for office space had softened in the year before.
Doubtful Growing Future Demand
The Appeal Board was not impressed by the two experts of the appellant's because:
(a) the estimates of the experts about office and retail were considered to
have contained inaccuracies; and
(b) the Town Planning Board had recently introduced a new policy of permitting a new category of 'Industrial/Office' (I/O) buildings as a means of upgrading industrial areas.
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As regards office demand referred to in (a) above, the Appeal Board came to the view that while there was a demand for office space in reasonably high-class office buildings in Cheung Sha Wan, it was not satisfied that such future demand would be as great as the appellant suggested. Besides, the Appeal Board believed that future demand for industrial space would grow and the I/O building concept was a means to provide better space for high-technology industries. The appellant was proposing 'Grade A' office accommodation. The appellant could have applied for I/O building with a Grade A office component.
As regards retail demand referred to in (a) above, the Appeal Board noted a low vacancy for the retail segment of Cheung Sha Wan Plaza but much higher vacancy rates in the nearby Lai Sun Plaza. In the latter, it was 10.6% in November 1994. The Appeal Board formed its opinion against major retail development in Cheung Sha Wan as it was an industrial area being located some considerable distance from the residential areas. The main shoppers would be those workers of the industrial areas and the main shopping time was the lunch hours.
The Appeal Board did not agree with the expert opinion submitted by the appellant which claimed that potential shoppers from the 'secondary catchment' who would take public transport to the area was considerable. 'In our view, the number of shoppers from so far would be likely to be limited.' (para. 28) Another reason was that the waiting list of retail space in Cheung Sha Wan Plaza had dropped by half from the summer of 1994 to November 1994. The expert for the appellant stated that this was due to a general downturn in retailing which was a cyclical business.
The General Conclusions Were that I/O Buildings Could Serve the Appellant's Purpose, that the Appeal Board Could not Make Plans, that the Appellant's Proposal Was not Consistent with the Planning Intention for Industrial Upgrading
The Appeal Board expressed some sympathy for the appellant's case. The proposal was considered as an extension of the existing Cheung Sha Wan Plaza. The Appeal Board conceded that one day in 'some indeterminate time in the future', the planning intention for the area would not be one of industrial upgrading but ‘a radical change to commercial/retail/office use'. Then it would make good sense to approve a proposal of this kind. However, the Appeal Board felt that it could not give effect to this approach because of the following reasons:
(a) The evidence before it was unclear: 'We cannot conclude even on a balance of probabilities that the present policy of industrial upgrading will fail: in particular, that the new industrial-office buildings will not serve their stated purpose.' (para. 34 (i))
(b) 'To give effect to this view [of permitting the proposal] would be, to an extent, to usurp the functions of the TPB [Town Planning Board]
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under s. 3(1)(a). In this regard it is worth observing that the TPB has, within the past two years, amended the Cheung Sha Wan OZP twice. It did not take those opportunities to re-zone sites such as the appellant's to “other specified uses". (para. 34 (ii)) (square brackets mine)
The Appeal Board accepted the key question raised by the counsel for the respondent: "The key question is: Did the appellant demonstrate sufficient merits in his proposal which could outweigh the stated planning intention for the site?' (para. 35)
The Appeal Board concurred with the Town Planning Board's position, so described, that the appellant had failed in that regard. The Appeal Board furthered stated that it accepted the opinion of the counsel for the respondent that even if the appellant had succeeded in demonstrating a future deficiency in office and retail spaces, the appellant had to persuade the Appeal Board that the Town Planning Board's refusal of ad hoc development was wrong. The Appeal Board agreed that the development was ad hoc.
Planning Gain Was Not a Decisive Objection
Para. (d) in the 'planning criteria' set out in the Town Planning Board Guidelines stated that favourable consideration might be given where an existing industrial building had created 'critical interface problems' for environmentally sensitive users such as houses, schools and hospitals. The Town Planning Board had given planning permission to proposals which could alleviate such interface problems at two sites namely (a) no. 44 Wing Hong Street, and (b) no. 476 Castle Peak Road.
However, the Appeal Board accepted the submission of the counsel for the appellant and pointed out that where there was no interface problems, as in the case of the subject site, 'this does not mean that no planning permission should be given. Otherwise, this factor would become an all- embracing one'. (para. 32)
Comments:
The logic of this case regarding market for the proposed use was later repeated in the Lucky Gain case. The potential use of Development Statements as a set of regional planning policies with specific site implications was ruined by this case and was not exploited in dealing with Luck Gain.
Plan Making and Plan Interpretation: Ultra Vires or Failing to Take into Account Relevant Planning Policy Considerations?
In the Henderson case, the Appeal Board stated clearly that it could not usurp the function of the Town Planning Board. In that case, the Appeal
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Board considered that it had to decide the appeal within the context of the Development Permission Area (DPA) Plan, not a subsequent and conflicting Outline Zoning Plan (OZP).
In this case, the same general point was made. It was considered that the Appeal Board should decide an appeal within the context of the OZP under which a s. 16 application was made. The provisions of the plan making functions of the Town Planning Board and the appellate functions of the Appeal Board undoubtedly are specified clearly in the Town Planning Ordinance. However, it would be absurd to suppose that the OZP, as a matter of legislation, made by the Town Planning Board in accordance with the powers conferred by s. 3(1)(a), would need no interpretation. For if the OZP was self-explanatory, then there would be no role for the Town Planning Board, not to mention the Appeal Board, or the common law courts to which applications for judicial review can be made. In interpreting the OZP, the Town Planning Board and the Town Planning Appeal Board are engaging in legislative interpretation and hence ‘planning making'. It is similar as to how the court ‘makes laws' by interpreting laws 'made' by the legislature. It is my view that the Appeal Board had been led to commit two errors in refusing to refer to the strategic, regional and district planning policy statements produced by the Planning Department.
To begin with, it confused (a) plan making as a legislative or statutory process' with (b) ‘plan making as a result of plan interpretation by the Town Planning Board and Town Planning Appeal Board, having regard to the relevant planning considerations, in exercising their discretionary powers to entertain planning applications, reviews and appeals'.
Secondly, it was poorly counselled to rule out the following relevant planning considerations:
(a) Offices uses were entered in Column 2 of the Notes to the OZP. There was no reference in either the Notes, the Explanatory Statements, or the Town Planning Board Guidelines that office buildings were, as a matter of law or policy, ruled out in Industrial Zones.
(b) The existence of the Town Planning Board Guidelines for ancillary office development has in fact been an enigma as the ‘ancillary office' has not been entered into Column 2 of Industrial Zones. Hence, it would be entirely illegitimate for counsel to advise the Appeal Board to accept the argument which states that the presence of these guidelines imply that no office development in Industrial Zones shall be permitted. This point is discussed below.
(c) The strategic and regional planning documents clearly established, as a general planning policy, that office and commercial development should be developed in major mass transit nodes. This policy was more specifically translated at the district level (West Kowloon Development Statement). The Appeal Board came to the view that these documents were 'at best background material' and 'merely tools for the formulation of planning policies by the TPB'. Similar to the
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Explanatory Statements to the OZP, they are in fact planning policies to which reference has to be made in interpreting an OZP. These policies should not have been interpreted as being inferior to other administrative documents such as the Hong Kong Planning Standards and Guidelines (HKPSG). Whether or not the application was approved is another issue.
(d) In fact the Appeal Board had used the Subregional Plan in the Treasure Base case to dismiss an appeal. The Appeal Board would be contradicting itself in dismissing these policy documents as merely background materials. In the Treasure Base case, the Appeal Board referred to the zoning on a very small-scale plan, which was drawn to a scale much smaller than that of the illustrative materials in a Development Statement.
(e) Without disputing the Appeal Board's discovery of ambiguity in the adduced documents, it was inappropriate that counsel for the respondent failed to advise the Appeal Board on the correct interpretation of the documents. They were adduced by the appellant so as to request representatives of the Planning Department to explain the relevant policies. Even though there could be conflict of interests on the part of the Planning Department, who acted as experts for both the respondent and the appellant, the Appeal Board should have been properly counselled regarding the plan hierarchy for town planning in Hong Kong.
What Was the True Planning Intention: The Argument of Counsel for the Respondent?
I completely fail to understand the counsel's submission which stated that the Town Planning Board had to balance the 'merits' of the application with the supposedly clear 'planning intention' he perceived. If the application had not been in line with the planning intention, then it would be pointless to talk about any merit of the case. The submission seemed to state that had a proposal contained substantial 'merits', the Town Planning Board might be justified in ignoring the planning intention. This was not plan making by the Board according to s.3(1)(a) — an approach the Appeal Board ruled out in this case. It is submitted that there was in this case no real conflict between 'merits' and the planning intention (regarded as being a Column 2 use). The application was a valid one as the proposed use had been consciously entered into and retained in Column 2 of the OZP.
What Was the True Planning Intention: The Intriguing Town Planning Board Guidelines for Ancillary Office Use in Industrial Buildings?
As mentioned above, the relevant Town Planning Board guidelines were problematic. The guidelines were not part of the OZP but, as affirmed in338
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
the Henderson case in the Privy Council, could help interpret the OZP in the same way as the Explanatory Statement assisted interpretation of the OZP. While such non-statutory documents may define, clarify, or specify the zoned uses and their physical manifestations or requisite assessment procedures, they should never be seen to increase, decrease, alter or replace the zoned uses.
In Column 2 of all Industrial Zones in OZPs, 'office other than ancillary office' (in other words, autarchic or stand-alone office uses not subservient to a parent industrial use) is included. Ancillary office is in fact a use which, unless specifically excluded or limited by relevant conditions, is implied in the Crown lease for industrial land. As such, it is part of the industrial use contained in Column 1.
However, the Town Planning Board Guidelines refer to the use of 'ancillary office'. In fact, when the Lands Department conducts lease enforcement' against alleged breach of industrial user by introducing office elements in factory buildings, the Department advises the lessee involved to make a s. 16 application for permission to change the use in order to 'regularize' the alleged breach.
It is submitted that this approach has been entirely wrong because in doing so, the Lands Department is inducing the lessee to really breach the lease by operating non-ancillary offices. Furthermore, the Town Planning Board has been acting ultra vires in approving or rejecting a non-Column 2, ancillary office use.
Economic Factors in Deciding Planning Applications
In disputing the appellant's business forescasts for the proposed development, the Appeal Board engaged in speculating on the trends of the property market. It also speculated on the economy in general. Whether the Appeal Board's judgment, which apparently was not based on any expert advice of the respondent, was correct is not an issue here. The central issue is to decide whether the Appeal Board was actually making planning policies or was merely applying them. Here, the Board was apparently making plans on the following basis: Since there was no market for an applied use, then that use should not be supported. Apparently, the Appeal Board considered that the issue of market trends was a material consideration for approving or rejecting an application. The Appeal Board was inferring from its own perception of the market situation and from matters such as the Explanatory Statements or the new guidelines for I/O buildings. That being the case, there was no reason why it should summarily dismiss strategic and regional planning documents. Furthermore, to dispute the appellant's own business decision and suggest that the I/O concept would be more suitable was wishful thinking. It was definitely erroneous. In reality, what has happened since the introduction of the I/O concept is that there has been further drop in industrial
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employment, establishments, total output and floor space demand in Hong Kong.
It is noteworthy that in agriculture, the absence of commercial prospect has not bothered the Appeal Board in enforcing its tacit presumption against development in Unspecified Use Zones. (See the Lee Yiu Kam case.)
Shopping in Hong Kong
It appears to me that the Appeal Board's perception of shopping behaviour in Hong Kong was lagging behind. The proposal was not one for a small retail shop in a factory estate of the Housing Authority in the early 1970s. Rather, it was a major shopping and office complex near an existing and viable similar development in the mid-1990s. Hong Kong's shoppers are able to afford commuting by the convenient mass transit railway. Cheung Sha Wan MTR station was located in a convenient transport interchange. Those living in the high density housing estates in the Lai King and Wah King areas need to change modes at the station daily, not to mention those residing along the Tsuen Wan MTR route. If the concept of retail nodes at MTR stations is faithfully executed, the effect of scale economies will set in to attract regional shopping. A major developer, Swire Properties, has been constructing a big shopping centre near Kowloon Tong MTR/ KCR station. Had the Appeal Board's reasoning been applied, that development which relied heavily on the MTR, should not have been approved. The correct approach would be to give less weight to the 'primary catchment' and more weigh to the convenience provided by the MTR.
Ad hoc Column 2 Development and Ad hoc Column 1 Development upon Rezoning
In this case, the Appeal Board had been poorly counselled as regards the concept of 'ad hoc' development. The planning permission is to ensure that certain types of uses which are considered compatible with the intention for the specific zone are developed in forms and scales that are vetted by the Town Planning Board. Otherwise, development that is piecemeal, out of scale or excessive, and hence ‘ad hoc' in specific locations may spring up. The appellant's proposal had not been criticized by the Town Planning Board or any other government departments for being ad hoc. Rather, it was criticized by the counsel for the respondent for being ad hoc in terms of his perceived planning intention, which was not clearly mentioned in the decision. The Appeal Board suggested that had the planning intention been one in favour of massive commercial development, then rezoning would have been the correct approach. It was submitted that rezoning as such would make no good planning sense than retaining the existing zoning designation while favouring Column 2 office development. The reason was that under the former approach, office
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development would suddenly become as of right in any part of the zone, which might create the ad hoc results. (For instance, a pencil-shaped office tower is built with no on-site loading, parking spaces or pedestrian bridges linking major pedestrian desire lines.) To retain the office use under Column 2 allows the Town Planning Board to consider the merits of individual cases.
What Did the Appeal Board Decision Achieve from a Planning Point of View?
In this case, the Appeal Board was making a number of major planning policies, notably: (a) Development Statements for district planning shall not be used to interpret planning applications; (b) office use under Column 2 shall be subsumed under the I/O concept. The credibility of (a) has been discussed above. It is submitted that (b) is not proper either. The reason is that this would mean effectively an amendment to the Column 2 use by an administrative circular.
The Relevance of Private Property Rights
While the Town Planning Board has statutory power to approve or reject a valid application, it shall not make decisions on behalf of the applicant. To suggest that the applicant shall apply for an industrial-office use instead of a commercial-use office use (as the market for the former is considered better) indicates the paternalistic and interventionist mentality of the Appeal Board. What if the I/O use has no market, as it has turned out?
The Question of Planning Gain
The Appeal Board in this case was definitely correct to rule that the absence of planning gain shall not be an all-embracing objection to an application. In so ruling, the Appeal Board in effect adopted the approach in the Bowen Road case and it was wrong. Presence of planning gains shall be a supporting reason, but it is the absence of demonstrated harms that shall be relevant consideration for rejecting an application or appeal.
Questions:
1. What is the planning history of Cheung Sha Wan Plaza I ? Is it a
Column 2 development or a Column 1 development?
2. What is the present use of the subject site? (See Photograph 13) 3. What is the incidence involving the alleged breach of Crown leases in
the factory buildings of the Cheung Sha Wan area?
4. What is the proportion of industrial floor space actually taken up by
industrial users in Cheung Sha Wan and other districts?
5. What are the vacancy or take-up rates of approved I/O buildings in
Cheung Sha Wan and other industrial areas?
Planning Appeal Cases
K建榮地基
17 24:5 $589
長沙灣廣場第三期
Photograph 13 Subject Site of the Lai Sun Development Case in May 1998
References:
Development Statements:
West Kowloon Development Statement, Final Technical Report, Planning
Department.
West Kowloon Development Statement (Consultation Digest), Planning
Department, May 1994.
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5, 6, 8, and 9.
Town Planning Board, TPB PG-NO, 3A, “Town Planning Board Guidelines For Office Buildings in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes TPB PG-No. 3 (December 1990) of the same title in force when the case was decided.)
Town Planning Board, TPB PG-NO. 4A, 'Town Planning Board Guidelines for Application for Composite Industrial-Office Buildings in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(This set of guidelines now supersedes TPB PG-No. 4 (January 1994, revised version of the same title.)
Town Planning Board, TPB PG-NO. 7A, 'Town Planning Board Guidelines for Application for Commercial Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes those, TPB PG-Nos. 7 and 9, below in force when the case was decided.)
Town Planning Board, TPB PG-NO. 7, "Town Planning Board Guidelines for Application for Commercial Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', December, 1990.
Town Planning Board, TPB PG-NO. 9, 'Town Planning Board Guidelines for Banking Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', January, 1991.
Town Planning Board, TPB PG-NO. 1A, ‘Town Planning Board Guidelines for Application for Office and Showroom Uses in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes those, TPB PG-Nos. 1 and 6, below in force when the case was decided.)
Town Planning Board, TPB PG-NO. 1, "Town Planning Board Guidelines for Application for Showroom Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', January, 1991.
Town Planning Board, TPB PG-NO. 6, “Town Planning Board Guidelines for Application for Office Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', December, 1990.
THE SANYEAR INVESTMENT CASE
Case Name: DD 100, Lin Tong Mei, Sheung Shui, New Territories [the Sanyear Investment Case]
•
Planning Appeal Case No.: 14/94
Similar Cases: cases nos. 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, —,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, Henderson,
Planning Appeal Cases
343
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, —, 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);
08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 9/94, 10/94, 11/94, —, 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, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), ———, 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, 13/93, 14/93, 01/94, 05/94, 10/94, -, 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 and Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, ——, Delight World, Yin Ning Savings and Lucky Gain Cases] regarding adverse traffic/access problems; 03/92, 07/92, 15/92, 18/92, 19/92, 13/93, 16/93,, 28/95 and 04/96 [the Wo Yi Hop Road, Full Look, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck,
Fine Tower and Container
System Cases] regarding adverse environmental impact.
Nature of the Case: Residential development in Unspecified Use Zones; failure of the appellant to prove absence of adverse traffic impact; traffic studies in Northeastern New Territories Development Strategy Review.
• Date of s. 16 Application: before 31 March 1994
•
Date of Hearing: 19-25 July 1995
Date of Decision: 21 August 1995
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Representation for the Town Planning Board was not mentioned in
the decision
(b) R & U Planning Development Consultants for the appellant
Decision: Appeal dismissed
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Rules Laid down by the Decision:
Background:
With an area of about 27 780 m2 (2.78 ha), the subject site fell within an Unspecified Use Zone in the draft Kwu Tung South Development Area Plan No. DPA/NE-KTS/1 (DPA Plan). Access to the subject site relied on Fan Kam Road. The Interim Development Permission Area Plan (IDPA Plan) for the area had been published in the gazette on 17 August 1990.
The appellant made a s. 16 application for the building of 50 houses and 91 carparking spaces (776 for residents and 14 for visitors) together with ancillary facilities including a club house, a multi-purpose court, a swimming pool, sewage treatment plants and refuse collection point. The average site area of each house was about 163.54 m2 and the designed population were 175 persons.
The approved DPA Plan was DPA/NE-KTS/2 which was published in the gazette on 31 March 1994.
The zoning and planning intentions for the subject site in both the draft and approved DPA Plans were identical.
The planning intentions for the subject site was noted by the Appeal Board to be located in the following two paragraphs of the Explanatory Statement to the approved DPA Plan (para. 4):
6.3.5(d) ... for appropriate forms of agriculture and rural activities
to take place so as to avoid unwanted urban growth and to enhance the quality of the environment.
6.36(e) For any other large scale developments within this zone, the owners/developers must demonstrate that their proposals would have insignificant adverse impacts on the environment, traffic and drainage of the areas or appropriate measures will be taken to mitigate such impacts to an acceptable level.
The approved DPA Plan was replaced by the draft Kwu Tung South Outline Zoning Plan No. S/NE-KTS/1 (the OZP) on 3 June 1994. The entire subject site was zoned Agriculture.
The Town Planning Board rejected the application in the first instance and again after a review hearing. The reasons of the Town Planning Board rejecting the application after the review were communicated to the appellant on 9 September 1994.
Arguments:
The appellant argued on the following grounds:
(a) The proposal would have insignificant adverse impact on the environment or traffic. Any application which satisfied para. 6.3.5(e) could not be said to be inconsistent with the planning intention for the
area.
(b) With a designed population of just 170 persons, the traffic impact of
the proposal on Fan Kam Road was minimal.
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(c) It was unfair for the appellant to bear the burden of preparing a road
traffic impact assessment on the strategic road network.
(d) Mr Richard Ko who gave evidence on behalf of the appellant said that the 790 pcu used by the Transport Department was a desirable figure but the actual capacity of Fan Kam Road was substantially higher. In North America, 1800 pcu may be acceptable. A single lane in Hong Kong should have been able to accommodate 1600 to 1700 pcu. Mr Ko stated that the traffic volume to road capacity ratio at the junction of Fan Kam Road-Castle Peak Road would be 1.3 in 1996 whereas the Fan Kam Road-Tai Po Road Roundabout would be operating close to capacity in 2001. This was said to be undesirable. In response to this, the appellant proposed local road-widening and signalization of the Fan Kam Road-Castle Peak Road junction as well as pedestrian phase/ signals. The appellant also proposed to widen the Fam Kam Road-Tai Po Road Roundabout. These were said to be planning gains for both vehicular and pedestrian traffic.
(e) The site upon development would become more or less self-contained since it was bounded by the proposed River Channel (for flood drain purpose) in this north and west. The first stage of the 'river training' (mistyped as 'craining' in the transcript) was to commence in 1997. Upon completion of the river training work, the trained course would measure 15 m in width with a 6 m wide vehicular access running along its sides, thus separating the subject site from the agricultural land to its north or west.
(f) A s. 16 application for a site just across Fan Kam Road was approved
on 4 June 1993 notwithstanding traffic objection.
(g) Compensatory tree planting would be carried out by the appellant.
In rejecting the application on review, the Town Planning Board held that (para. 6):
(a) the proposed development was not in line with the planning intention for the area, i.e. to encourage agricultural and recreational uses which were compatible with the surrounding environment and would not disturb the local communities;
(b) the proposed development was not compatible with the uses of the surrounding land which was mainly agricultural land under active cultivation;
(c) the traffic impact assessment was not satisfactory that it had not addressed the traffic impact on the strategic road network and the problem of the junction capacity of Fan Kam Road/Castle Peak Road; (d) the traffic generated from the proposed development would have an
undesirable impact on the existing narrow Fan Kam Road; and
(e) the proposed vehicular access to the application site and the proposed improvements were not satisfactory and would involve felling mature
trees.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
During the appeal hearing, a Senior Traffic Engineer of the Transport Department, Mr Lee Yan-ming, gave evidence in support of the respondent that the section of Fan Kam Road fronting the site was expected to reach its capacity in the late 1990s and early 2000s. Fan Kam Road was substandard and had a traffic lane of just 2.75 m. The guidelines on the road capacity for traffic impact assessment in use in Hong Kong showed that the saturation flow of a 3 m lane was about 790 passengers car unit (PCU) per hour. It was common sense that the pcu capacity of a 2.75 m road would be correspondingly less.
Even leaving the impact of the proposed development, the morning peak flow of Fan Kam Road in 2001 would be 690 pcu per hour in the south bound direction, which would most likely exceed the road capacity. Extra traffic generated by the proposal and other developments in the area would result in further cumulative adverse impact on Fan Kam Road.
Five other pending appeals within the DPA along Fan Kam Road would result, if approved, in at least 150-200 pcu per hour.
Mr Lee also testified that the appellant had failed to 'address the traffic impact of the proposed development on the strategic road network'. (para. 16) Mr Lee, relying on a recent North East New Territories Development Strategy Review carried out by consultants of the Planning Department, said that the strategic road links that would be overloaded would include:
(a) the dual 3-lane New Territories Circular Road between Fanling and
Tai Po (Route 1);
(b) the dual 2-lane section of Tolo Highway between Lam Kam Interchange
and Island House Interchange (Route 1); and
(c) Tolo Highway between Island House Interchange and Ma Liu Shui Interchange even with the proposed widening to dual 4-lane standard scheduled for completion by 2000.
Mr Lee explained that uncoordinated developments, though small in themselves, would have cumulative adverse impact on Fan Kam Road and other strategic road links in the North East New Territories. Moreover, there was no programme yet for the improvement of Fam Kam Road. Usually, it would take 8 to 10 years from entering an item in the programme to completion.
Furthermore, Mr Lee said that it was imprudent to permit any development that would add further traffic loadings on these road links until there were committed highway improvement projects included in the Public Works Programme to provide the requisite additional road capacities.
According to Mr Lee, the proposed widening of Fan Kam Road/Castle Peak Road junction to be carried out were only local improvement works confined to the junction situated 2 km north of the subject site. Such
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works would not help alleviating the capacity constraint and safety problems of Fan Kam Road.
During the appeal hearing, Mr Thomas Ng Yeung-shing of the Agriculture and Fisheries Department also gave evidence for the respondent. He explained that the subject site was 'Grade A Agricultural land' which was located in area where active cultivation was on-going or could be brought back to cultivation with minor improvements.
According to Mr Chan, there was a demand for agricultural land and there were at the moment registered applicants looking to suitable agricultural land to establish or re-establish their farms.
Reasons for Decision:
The Appeal Board dismissed the appeal, having considered the following grounds:
The Appellant Was Right about Planning Intention
The Appeal Board formed the view that the planning intention was to encourage agricultural and recreational uses which were compatible with the surrounding environment and would not disturb the surrounding environment. The Appeal Board also noted that the subject site was fallow agricultural land with a three-storey small house and two vacant structures. It noted the environment of the subject site as follows (para. 22):
The surrounding areas are mainly rural in character and comprises mainly of agricultural land under active cultivation albeit with some sporadic domestic structures and a number of open storage activities which have come into existence before the gazettal of the Interim Development Permission Area (IDPA) Plan No. IDPA/NE-KTS/1 (which was gazetted on 17th August 1990) for the area. To its immediate northwest are fallow agricultural land and a cluster of village houses. To its immediate west and southwest across a streamcourse are [sic] actively cultivated land with chicken sheds. To its further northeast is the Kin Tak Public School.
The Appeal Board also came to the view that 'the site was still under active cultivation until very recently and there is no difficulty in reverting to agricultural use.' (para. 23) In forming this view, the Appeal Board took note of the explanation of Mr Thomas Ng of the Agriculture and Fisheries Department (AFD). However, the Appeal Board realized that the applicants for farm land described by AFD would at most require just 2 or 3 ha whereas fallow Grades A and B agricultural land exceeded 1000 ha. There was much more land than was demanded. The Appeal Board also realized that a person looking for farmland would be able to obtain land from landlords who preferred to leave their holdings fallow.
Hence, 'having regard to para. 6.3.5(d) and (e) of the Explanatory
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Statement to the DPA Plan, we [the Appeal Board] are of the view we would not have refused the application on the basis that it was contrary to planning situation [intention].' (para. 25) (square brackets mine) The Appeal Board also reported that it considered the appellant's submission about the trained river as a divide between the development proposed and the agricultural environment carried much force.
Yet, the Appellant Failed to Prove Insignificant Traffic Impact
The Appeal Board 'are of the view that the traffic generated from the proposed development will have an undesirable impact on the existing narrow Fan Kam Road. It is true that the burden will only be less than 30 vehicles per hour. This in itself is inconsiderable. Moreover, this should not be considered in isolation. As we have said, there are other pending appeals which will add significantly to the traffic burden. We do not think it is the right approach to give approval until just before the last straw is reached. An overall view is often fairer and more appropriate.' (para, 27)
The Appeal Board did not accept the appellant's submission about the capacity of Fan Kam Road. The Appeal Board noted the appellant's complaint that they should not have been expected to deal with territorial traffic planning. However, the Appeal Board also added that it was not satisfied that the appellant could overcome the burden of satisfying it that the proposed development would not have significant adverse impact on traffic on Fan Kam Road. Hence, the Appeal Board found that it was unnecessary for it to deal with that complaint. The Appeal Board, however, pointed out that:
We must not be taken to have accepted what seemed to be implicit in Mr. Lee's evidence, namely, that in planning strategic traffic network, no account would be taken of possible planning permission being given by the Town Planning Board. (para. 21)
The caveat of the Appeal Board in declining to treat the appellant's complaint about strategic transport planning was definitely a reasonable
one.
The Precedent Could Be Distinguished
The precedent cited by the appellant had been used by a lawful existing use of open storage and thus its replacement by housing would improve the environment.
Tree Felling Was Not a Decisive Issue
The Appeal Board agreed that the latest revised proposed vehicular access was not objectionable from a traffic point of view. Then it considered the town planning objection regarding tree felling. The Appeal Board noted
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349
that twelve 'paper bark trees' (eucalyptus) were involved. They were rather common in Hong Kong but it was said that their amenity value was great, in view of their mature size, good tree form and healthy conditions. Moreover, they were part of the road side tree walls along Kam Fan Road. However, the Appeal Board reckoned from photographs that trees had been fell further up Fan Kam Road near its junction with Castle Peak Road and the junction leading to the construction site of the North District Hospital. Compensatory planting was carried out at that particular site. As the appellant had proposed compensatory planting of trees at the subject site, the Appeal Board remarked that ‘again [just like the traffic argument], had this objection stood alone, we would have been inclined to grant the permission.' (para. 29) (square brackets mine)
The Issue Remained Absence of Proof of No Adverse Impact
The Appeal Board resolved to dismiss the appeal because it felt that the appellant had not satisfactorily addressed the traffic issue (para. 30): 'We are not satisfied that the proposed development would create insignificant adverse traffic impact on Fan Kam Road and for this reason we dismiss the appeal.'
Comments:
Traffic Forecasts:
(a) Who Were Congesting the Road in the Future?
Sometimes, lay persons are 'paralyzed' when professionals produce jargons, technical coefficients, data, or precedents. When the Transport Department predicted that traffic on Fan Kam Road would grow to a certain level, one might wish to know from what source such growth could be derived. In a closer examination, if conducted, one would find that it was based on an extrapolation from certain base flow figures. One question is worth asking: should such future growth have already endogenized the traffic generated by the appellant? Are there other future or existing landusers who will play a part in the increased flow along the congested Fam Kam Road in the future? This is not a technical or scientific question. This is instead a question of logical evaluation and value judgment. Future congestion also begs the questions of whether (i) others have more rights to congest the road system; and (ii) the government would have any general responsibility to upgrade both the local and regional roads and territorial highways.
It seems that a better approach would be to ask whether the proposal would create immediate and local traffic congestion. Each application and each appeal should have been treated on its own merits, or else the traffic impact of each case would become the excuse for rejecting other cases, or vice versa. The applicant or appellant in each
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case would become the victim of a bad circular argument. The caveat of the Appeal Board in declining to treat the appellant's complaint about strategic transport planning was definitely a reasonable one.
(b) Trip Distribution
In transport planning and traffic management, one key step is to assign trips generated to different modes of transport (public-private) and to different routes. The pcu is a unit that captures the generalized levels of road use in various modes by denominating them in terms of car units. Route assignment, however, had not been considered at all. The Transport Department's evidence seems to have created a biased opinion that car users would all use the south bound (the existing Route 2, Tuen Mun Highway, and the future Route 3) direction exclusively. In fact, traffic generated should be split in both the north- bound and south-bound directions with the former (towards Route 1, Tolo Highway) likely to have a higher patronage. The appellant did not argue from Route 1, which had also been said by the Transport Department as being threatened by congestion in specific sections. Note that our society is still producing high-rise buildings in Central and elsewhere, though traffic congestion in the Harbour Tunnels and other areas of the territory have never been cured. Apparently, in rejecting an application such as the appellant's would help solve our perennial traffic problems.
The Fallacy of the Equal Treatment Thesis
The Appeal Board asserted that it had to give equal treatment to all applicants by taking into account pending appeals. There is a big problem in this line of thinking. It was unreasonable to negate the appeal on the grounds that there were similar appeal cases forthcoming. Each case should be entertained as it came to the Appeal Board. There was nothing certain that the forthcoming cases could be better or worse than the appellant's case in terms of traffic. This rationale had not been adopted in the Henderson case in connection with applications in the Buffer Zone 2.
This line of thinking would only be correct had the Appeal Board deferred its decision for all individual cases, pending a comparative study of the traffic implications of all cases jointly considered by one panel. This approach, however, was not in effect adopted by the Appeal Board though it suggested that 'an overall view is often fairer' (para. 27).
Realistically, how could an overall view be given by dismissing the appeal in a situation where there could be no possible resubmission under the OZP? An unfair situation might arise if the last appeal case, the so- called 'last straw', in the area having similar merits was allowed because no further application at that time was present to attract the argument of cumulative impact.
Planning Appeal Cases
Could Agriculture Be Carried Out near Residential Development?
351
The Appeal Board was definitely correct in ruling out the idea that the proposal was inconsistent with the planning intention of the DPA Plan, or that it was incompatible with the agricultural environment. Residential development is definitely more friendly to agriculture than uses such as industrial or mining. Good examples of harmonious coexistence of housing and farming uses can be found in the Shouson Hill area near the toll plaza of the Aberdeen Tunnel. It is not certain what the Town Planning Board meant by the incompatibility between the proposed development and the active cultivation that was going on at the time of application in the vicinity of the subject site.
What Did the Appeal Board Decision Achieve from a Planning Point of View?
The Appeal Board's decision in this case hinged mainly on the concern with the cumulative traffic impact of the proposal and pending appeals. There was strikingly no reference to the concept of planning intention, which often proved to be sufficiently fatal to an appellant before another panel of the Appeal Board. That the Appeal Board in this case accepted the appellant's submission in terms of planning intention was definitely correct. However, while it was pre-occupied with the traffic impact of other applications or appeal cases, the Appeal Board also acknowledged the low levels of traffic generation of the proposal. This was an enigma. The position of the Appeal Board in this case was even more stringent than its position in the Sun Link Investment case. The Appeal Board might not be aware of the fact that planning for the region did not exclude traffic generators along roads such as Fan Kam Road.
What Was the Planning for Fan Kam Road Area from a Transport Planning Point of View?
It should be noted that along roads such as Fan Kam Road and Kam Sheung Road, a number of Residential (Group D) (R (D)) Zones, not to mention (Group C), have been introduced by OZPs that replace DPA Plans. In Column 2 of these zones, users like public car parks and bus terminus are included.
Flood Drain Channels as Ecological Disasters
Many massive flood drains which have been proposed, being developed and completed in the New Territories are ecological disasters for water flora and fauna. It is because the 'channelization' involved is often implemented by dredging and lining the lateral sides as well as the bottom of river courses with cement. This approach will destroy the natural habitats of the water flora and fauna in the area. These channels or
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nullahs will also severe animal communities, due to their great width and absence of shelters. The Delight World and Yin Ning Savings cases also involved large drainage channels.
Questions:
1. What is the present use of the subject site?
2. What has happened to those 'pending appeals'?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2, 3, 4, 9, and
10.
Cases:
Dudgeon, David and Corlett. Richard Hills and Streams: An Ecology of
Hong Kong. Hong Kong: Hong Kong University Press, 1994.
THE CHARMING CITY CASE
Case Name: DD 129, Lau Fau Shan, New Territories [the Charming City Case]
Planning Appeal Case No.: 02/95
"
Similar Cases: cases nos. 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, 05/95, 07/ 95, 08/95, 16/95, 18/95, 21/95, 26/95, 28/95, 04/96 and 01/97 [the Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Lai Sun Development, Sanyear Investment, —, Planet Universal, Delight World, Yin Ning Savings, Arzignano Leather, Jetway Civil, Cheung Hing Lung, Wong Yee Fai (2), Fine Tower, Conatiner System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans); 08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 01/94, -, 05/94, 09/94, 10/94, 11/94, 14/94, 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, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment,, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung
Planning Appeal Cases
•
353
Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans;
05/92, 07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94, 04/94, 09/94, 11/94, 12/94, -, 05/95, 07/95, 08/95, 18/95, 19/95, 21/95, 26/95 and 06/96 [the OTB, Full Look, Pak Kong, Treasure Base (2), Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development,
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;
01/91, 02/92, 03/92, 07/92, 13/93, 10/94,
05/95, 07/95, 08/95 [the
Alticosmic, Conduit Road, Wo Yi Hop Road, Full Look, Henderson (not), Sun Link Properties, Planet Universal, Delight World, Yin Ning
›
Savings Cases] regarding excessive development intensity; 04 and 05/93, 01/94, 09/94,
05/95, 07/95, 08/95 and 21/95 [the Treasure Base (2), Tang Sai Hung, Lee Yiu Kam, —, Planet Universal, Delight World, Yin Ning Savings and Cheung Hing Lung Cases] regarding agricultural and rural setting of the site.
Nature of the Case: connected with the Henderson case in the Hong Kong Court of Appeal; residential development in Unspecified Use Zones; Mai Po Nature Reserve; Deep Bay Buffer Zones; Site of Special Scientific Interest; 'planning intention'; gradation of development intensity by sub- area in a zone; impossibilities of agriculture.
Date of s. 16 Application: 30 April 1994
•
Date of Hearing: 11-12 March 1996
•
Date of Decision: 29 March 1996
•
Chairman of Panel: Mr Robert Tang, QC,
JP
Representation:
(a) Mr S.H. Kwok for the Town Planning Board
(b) Mr J. McNamara for the appellant
•
Decision: Appeal dismissed
•
Rules Laid down by the Decision:
(a) A planning application made under an Interim Development Permission Area/Development Permission Area Plan shall be considered by reference to the said plan rather than a subsequent Outline Zoning Plan, unless the later relied on by the applicant to his favour.
According to the Henderson case in the Hong Kong Court of Appeal, an OZP cannot curtail the scope of the power to grant the developers planning permission under the DPA Plan. Nor can it be resorted to
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against the developers for the purpose of erecting any planning intention which is not to be gleaned from the DPA Plan.
OZPS, on the other hand, can be used by developers who apply for planning permission under DPA Plans. If an OZP were to contradict any planning intention asserted against them, such developers could pray it in aid for the purpose of meeting that assertion.
(b) Where an application was made within an Interim Development Permission Area/Development Permission Area Plan which is later replaced by an Outline Zoning Plan and where there is also no other pending appeal, no argument of bad precedent for approving the application shall be raised.
(c) Where the planning intention for a zone is impossible or will not be possible to be implemented, then an application for a use should not be refused if it has no adverse environmental impact.
(d) Where the planning intention for an area is primarily to encourage agricultural uses, it is not a sufficiently strong reason to refuse permission given if that site (i) is not prime agricultural land; (ii) does not fall within an agricultural rehabilitation area; and (iii) there is no evidence that agricultural use is realistic on that site.
(e) Where a planning intention has more than one dimension, then a proposal shall not be approved even if one of the dimensions is not suitable or possible.
(f) Where a planning intention has two dimensions, then a proposal shall be approved if (i) one of the dimensions is unsuitable or impossible; and also (ii) there is no other objection to the proposal.
(g) Where an Unspecified Use Zone in a Development Permission Area (DPA) Plan is divided into sub-areas, a 'gradation concept' which differentiates development intensity by sub-area is inherent in the planning intention — even though that is not expressed in the Notes or Explanatory Statements to the DPA Plan.
(h) Though the Town Planning Board may have permitted or approved a proposal of a lower development intensity for a site before an appeal for a higher intensity proposal, the Appeal Board will not presume that the planning intention for a plan, replaced by the Town Planning Board at the time of the hearing, is to permit the type of development under appeal.
Background: