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, 02/95, 05/95, 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), Lai Sun
Development, Sanyear Investment, Charming City, Planet Universal, 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, 12/94, 02/95, 05/95, 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), Lai Sun Development, Charming City, Planet Universal, 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;
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, 02/95, 05/95,
-, 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, Charming City, Planet Universal, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans;
01/91, 02/92, 03/92, 07/92, 13/93, 10/94, 02/95, 05/95,
08/95 [the
28/95
2
Alticosmic, Conduit Road, Wo Yi Hop Road, Full Look, Henderson (not), Sun Link Properties, Charming City, Planet Universal, ——, Yin Ning Savings Cases] regarding excessive development intensity; 07/92, 04 and 05/93, 11/93, 16/93, 19/93, 01/94, 09/94, 05/95,
[the Full Look, Treasure Base (2), Shell Hong Kong, Naturaluck, Ever Need, Tang Sai Hung and Lee Yiu Kam, Planet Universal, Fine Tower Cases] regarding incompatibility with adjoining uses, environment/development;
15/92, 13/93, 14/93, 16/93, 05/95,
and
>
08/95 [the Ultra Force, Henderson,
Yiu Cho Investment, Naturaluck, Planet Universal,
Yin Ning
Savings Cases] regarding the use of planning conditions to overcome potential environmental problems;
Planning Appeal Cases
"
393
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, 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, Sanyear Investment, Yin Ning Savings
and Lucky Gain Cases] regarding adverse traffic/access problems; 04/93, 01/94, 09/94, 02/95, 05/95, 08/95 and 21/95 [the Treasure Base
(2), Tang Sai Hung and Lee Yiu Kam, Charming City, Planet Universal, Yin Ning Savings and Cheung Hing Lung Cases] regarding agricultural and rural setting of the site;
15/92, 11/93, ——, and 08/95 [the Ultra Force, Shell Hong Kong,
Yin Ning Savings] regarding land resumption;
"
and
08/95
04/92, 07/92, 08 and 09/92, 15/92, 18/92, 19/92, 10/94, 05/95,
[the Sung Dynasty City, Full Look, Yuen To Shing and Yuen Shue Ling, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Sun Link Properties, Planet Universal, —, Yin Ning Savings Cases] as regards the meaning of ad hoc and comprehensive development.
Nature of the Case: residential development in Unspecified Use Zones in DPA Plans, relationship between statutory plans and adopted layout plans; development on land partly subject to government resumption; the Roads (Works, Use and Compensation) Ordinance, Chapter 370.
Date of s. 16 Application: 31 March 1994
•
Date of Hearing: 9–12 October 1995
• Date of Decision: 18th October 1995
•
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Representation for the Town Planning Board was not mentioned in
the decision
(b) Mr J. McNamara for the appellant
•
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) "The Town Planning Board, in the discharge of its statutory function to prepare plans for "the health, safety, convenience and general welfare of the community" (see s.3(1) of the Ordinance) must look to the public interest as a whole. It has no obligation to please prospective developers.'
(b) That an appellant has made an objection to a new zoning, that is against his or her application, with a view to a rezoning in favour of the application, is something for the Town Planning Board to decide. under a s. 6(5) hearing.
394
•
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(c) A large-scale residential development in a DPA Plan shall not generally
be approved for that will prejudice the future zoning in the OZP. (d) A development proposal shall not be approved as long as there exists a real possibility that a proposed public road may in fact cut across the site, requiring resumption of a substantial part of the site.
Background:
With an area of 42 897 m2, the subject site consisted of both land held under a Block Crown Lease and some government land which fell within an Unspecified Use Zone in the draft Kam Tin North Development Permission Area Plan No. DPA/YL-KTN/2 (DPA Plan) published in the gazette on 12 July 1991.
On 31 March 1994, the appellant submitted a s. 16 application for the development of the followings: sixteen 4-storey apartment blocks providing 384 flats; fifteen 2-storey houses; 599 car parking spaces at the basement of the development; a club house and a swimming pool. With a designed population of 1197 persons, the proposed plot ratio was 0.8. The flats and houses would have a total Gross Floor Area (GFA) of 34 318 m2. The club house would yield 460 m2.
The s. 16 application was rejected in the first instance on 20 May 1994. On 17 June 1994, the draft Kam Tin North Outline Zoning Plan (OZP) was published in the gazette to replace the DPA Plan. The OZP zoned the subject site appellant. The application was rejected again after a s. 17 (1) review. A letter dated 12 January 1995 from the Town Planning Board informed the appellant of the decision.
The Appeal Board noted that when the draft DPA Plan was published, the site was largely cultivated, with a fish pond at the north-western corner. The site was said to remain green fields at the time of the appeal, except that the land had become fallow since the appellant purchased parcels of land at the subject site.
Arguments:
The appellant argued on the following grounds:
Drainage Channel
(a) The government had recently resumed a big slice of land at the northern boundary of the site, about 6700 m2, for the construction of a drainage channel. Though construction works had not commenced, the subject site would become in effect 'an island lot' once the works were completed. This lot would then become bounded on the north by the drainage channel and on the south by Kam Tin Road. Therefore, the subject site would no longer be suitable for agriculture.
(b) The subject site was much more part of the Kam Tin area than the Cheung Chun San Tsuen area, which was designated as sub-area (iii),
Planning Appeal Cases
395
within which the subject site was located and accordingly governed by the planning purposes for that sub-area.
(c) The alignment of the drainage channel was not known at the time of the publication of the draft DPA Plan in the gazette. Hence, that channel did not appear on the draft DPA Plan. As the alignment was then known to the Appeal Board, the Appeal Board should have treated the site as in effect an extension of Kam Tin Village.
Outline Zoning Plan
(a) The Explanatory Statement to the OZP, which had replaced the DPA Plan, there was statement in para. 7.1 to the effect that the future role of Kam Tin Shi was likely to change and there was a demand for a 'sub-urban type of low-density development in the area'.
(b) At the territory-wide strategic planning level, there were proposals for the 'western rail link' constructed by the Kowloon Canton Railway (KCR). There was a possible station near the subject site.
(c) There had been considerable development taking place south of Kam
Tin Road within areas covered by another DPA Plan.
-
In rejecting the s. 17(1) application, the Town Planning Board held that (para. 5):
(a) the proposed development was premature at this stage in view of the
number of transportation network and drainage works being planned in the area and the fact that it might pre-empt a review of the land use in the general area with regard to the scale, location and phasing of future developments there;
(b) the proposed development was not in line with the planning intention for the area as reflected in the approved Kam Tin North Development Permission Area Plan No. DPA/YL-KTN/2 which was to encourage agricultural uses and recreational uses compatible with the rural environment and unlikely to adversely affect local communities. Low- rise, low-density residential development might be permitted provided that it could be demonstrated in the submission that the proposed development would have insignificant impact on the drainage and traffic of the area, but you have not demonstrated this;
(c) the proposed development intensity of a plot ratio of 0.8 was excessive
in the rural area; and
(d) the proposed development would be adversely affected by the proposed Kam Tin Bypass and the realignment of the Kam Tin Bypass as proposed in the submission was unacceptable from the road design. and implementation programming points of view.'
• Reasons for Decision:
The Appeal Board considered that the submissions of the appellant were
396
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
'all very interesting' but 'do not advance the appellant's case one whit' and dismissed the appeal on the grounds of planning intention.
Against Planning Intention
The Appeal Board derived the planning intention for the subject site from the following salient features of the DPA Plan:
(a) The DPA was about 603 ha. (para. 7)
(b) As described in the Explanatory Statement to the DPA Plan, the area was 'essentially a flat plain comprising agricultural land, fish ponds and villages'. (para. 7)
(c) The population in the area in the 1991 census was around 7680. According to para. 4.5 of the Explanatory Statement, agriculture was described as a 'major economic activity'. (para. 7)
(d) The Unspecified Use Zone was about 474 ha.
(e) The Unspecified Use Zone had been divided in the Explanatory Statement into four sub-areas. The subject site fell within sub-area (iii).
(f) Para. 6.2.5.(a)(iii) of the Explanatory Statement stated (para. 8):
(iii)
Cheung Chun San Tsuen sub-area
Agricultural uses (especially pond fishing) in these areas will be encouraged as far as possible and recreational uses (including ancillary facilities) which are generally compatible with the rural environment and are unlikely to adversely affect local communities may also be permitted.
Thus spake the Appeal Board: "Whilst this is not in law part of the plan, it provides good evidence of the underlying intention behind the statutory control." (para. 8)
(g) Paras. 6.2.5. (c), (d) and (e) of the Explanatory Statement stated (para.
9):
Agricultural uses in these areas will be encouraged as far as possible and recreational uses (including ancillary facilities) which are generally compatible with the rural environment and are unlikely to adversely affect local communities may also be permitted. The main planning objectives of this land use designation are to identify non-urban areas where appropriate forms of agriculture and rural activities can be sustained to prevent unwanted urban growth and to enhance the quality of the environment. Residential development in compliance with the conditions of the "On-Farm Domestic Structure" scheme may be permitted where it is established that a dwelling is necessary to support the agricultural use. (para. c of Explanatory Statement)
There may be areas where private initiatives may wish to provide comprehensive low-rise, low-density residential developments (especially in the Pang Ka Tsuen area) mainly through land exchange or lease modification. Applications should be made to the Board. If
Planning Appeal Cases
approved by the Board the developments should be implemented in accordance with approved master layout plans with adequate provision for government, institution and community uses and recreational facilities to serve these developments. Due regard should be given to minimizing the environmental, drainage and traffic impacts of these developments on the surrounding areas. (para. d of Explanatory Statement)
For any development within these sub-areas, the owners/ developers must demonstrate that their proposals would have insignificant adverse impacts on the environment, traffic and drainage of the area or appropriate measures will be taken by the applicants to minimise such impacts. The submission of master layout plans, landscaping proposals, environmental impact assessments, drainage impact studies and/or traffic impact studies may be required when the proposals are submitted to the Board for consideration. (para. e of Explanatory Statement)
397
(h) Para. 7.3 of the Explanatory Statement, there was a statement to the effect that the Town Planning Board's consideration of planning applications would be guided by the adopted Layout Plan No. L/YL- KT/1E as well as other planning considerations. The Appeal Board noted that 'the adopted layout plan (a departmental plan to facilitate major infrastructural planning for the area available for public inspection) shows the site as designated activities, including the "Kam Tin Bypass Stage 1" which would cut across the south-eastern part of the site.'
Having reviewed the Explanatory Statement and the Layout Plan, the Appeal Board determined, 'beyond doubt' (para. 11), that the proposal was against planning intention because:
(a) there is nothing suggests that the site is ear-marked in the layout plan for residential development - except a minute portion being an extension of a village expansion area for Kam Tin' (para. 10);
(b) the DPA Plan was effective at most for four years. Meanwhile, detailed studies and development options would be carried out to determine the future uses. A development as large as proposes, once approved, might pre-empt future patterns of land use;
(c) the proposed development was excessive as it would add considerably
to the population and also the traffic.
Having categorically ruled out the application as being supportable from the point of view of planning intention, the Appeal Board then went on to rebuke all the submissions of the appellant.
The Outline Zoning Plan Did Not Help
The Appeal Board did not find the OZP of help to the appellant's case because of the following reasons:398
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(a) The zoning in the OZP for the subject site was 'Agriculture'.
(b) Even though in future, rezoning of the subject site might be appropriate, having regard to the government projects such as the Western Rail Link and Route 3, there was no guarantee that the site would necessarily be zoned 'Residential'.
On this point, the Appeal Board remarked: "The Town Planning Board, in the discharge of its statutory function to prepare plans for "the health, safety, convenience and general welfare of the community" (see s.3(1) of the Ordinance) must look to the public interest as a whole. It has no obligation to please prospective developers like the appellant.' (para. 15)
(c) That the appellant had objected to the Agriculture zoning was something for the Town Planning Board as regards the appropriateness for rezoning in favour of the appellant.
The Drainage Channel Did Not Help
The Appeal Board did not consider the drainage channel argument was helpful to the appellant either. The reasons were as follows:
(a) The resumption of land for the purpose of constructing the drainage channel would render the proposal untenable as that would affect five of the sixteen apartment blocks.
(b) As a result of (a), counsel for the appellant had conceded that had the appeal been allowed, the approval would not be allowed 'unconditionally' but had to be subject to a new master layout plan to be approved by the Town Planning Board. The sketch produced by the appellant to that effect was of no value to anyone whatsoever'. As such, the appellant's application for an order under s. 17B(8)(b) had to be turned down.
The Kam Tin Bypass Did Not Help
The Appeal Board also had very strong views about the proposed Kam Tin Bypass argument. The Appeal Board was not convinced that the argument helped the appellant because of the following:
(a) The proposed bypass would cut across the site and hence make the
proposal impossible.
(b) The scheme had been scheduled to be published in the gazette in January 1996 under the Roads (Works, Use and Compensation) Ordinance, Chapter 370. Following the publication, objectors had 60 days to object to the scheme. The appellant might well succeed but 'so long as there exists a real possibility that the bypass may in fact cut across the site, requiring resumption of a substantial part of the site, the development proposal clearly cannot go ahead. Putting the appellant's case at its highest, that possibil[ity] clearly exist'. (para. 18) (square brackets mine)
Planning Appeal Cases
399
(c) The alternative route suggested by the appellant would bring the bypass much closer to the Kam Tin Village. To ameliorate the noise impact of this alternative the appellant put forward proposals such as a noise barrier. While the Appeal Board was not to judge which proposal was better, the Appeal Board could envisage that the inhabitants of the Kam Tin Village would strongly object to the proposal.
Comments:
The logic of this case as regards 'planning intention' and the relationship between the DPA Plan and the OZP followed that adopted for the Planet Universal case. It was almost identical in factual details and structure of reasoning with the next reported appeal case, namely, the Yin Ning Savings case. (Note that this appeal was tested in the case Delight World Limited v the Town Planning Appeal Board [MP No. 197 of 1996].
The Present Effects of Prospective Planning and Resumption: The Relevance of Private Property Rights
As in the Universal Planet case, this panel of the Appeal Board announced a very important principle regarding the nature of IDPA/DPA Plans, or more precisely, the nature of Unspecified Use Zones in Deep Bay Buffer Zones - they freeze any development ab initio until they are replaced by more refined statutory Outline Zoning Plans based on ‘a detailed study'. As clearly demonstrated in the quotations above, approving a major development in the IDPA/DPA stage would 'pre-empt future planning'.
This approach sounds reasonable and could well be an approach taken by the planner. Yet, this approach might also be imaginary or even absurd. It could well be purely conjectural as nowhere in the statutory component of the relevant ‘interim' statutory plans had stated that development was to be frozen, pending the OZPs. If that was the case, then, as argued by the appellant, that intention could have been expressed easily in the relevant plan. The existence of the Town Planning Guidelines for 'residential' development in Deep Bay Buffer Zone 2 and the machinery of planning permission for applications in Unspecified Use Zones testifies that housing development was not precluded as a matter of planning intention when the 'interim' plans were in force.
Then, what is the role of ‘interim' plans? Neither the word 'interim' of the DPA Plan nor the descriptions in the Explanatory Statement to the Plan, prepared by the Planning Department (rather than the Town Planning Board) entails that development must wait for the inception of the first OZP. It simply means that the definitive planning for large tracts of the area had not been predetermined and had to be determined upon a careful detailed study. These tracts of land were thus zoned 'Unspecified Use'. Meanwhile, any proposal in these Unspecified Use Zones had to go
400
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
through the planning permission machinery during the 'interim' period. After that period, it might well be that such proposals might be (a) permitted as of right under Column 1, (b) remaining in Column 2, or (c) simply precluded in the first and subsequent OZPs. In the interim period, the Town Planning Board would investigate each case on its individual merits. In rejecting or approving applications in this interim period, the Town Planning Board helped future planning to be incorporated in the OZPS by considering merits and demerits of proposals in given sites. The Appeal Board would be pre-empting the former two possibilities by insisting that the correct position in the interim period was to reject all proposals as a matter of principle on the grounds of pre-empting future planning.
The Appeal Board here ran the risk of unreasonably importing an ideal future study which had not been finalized, from an uncertain and indefinite future, to pre-empt proper present planning in accordance with the provisions of the interim statutory plans. To reiterate, such interim plans were not to freeze development but to require all development proposals in Unspecified Use Zones to go through a planning application procedure. There was no less or more implication other than the need to go through the approval machinery. The Appeal Board, however, ‘made plans' by importing the idea, according to its own interpretation of the plans that such plans implied that development in Unspecified Use Zones had better be rejected.
The Appeal Board's logic could become absurd when it was taken to mean that planning now, as carried out by approving or rejecting a proposal made under provisions of an existing statutory plan, must always halt to wait for the 'clarification' of a future plan. As 'the future' always recedes indefinitely, this means that no development permission can be given 'now'. This logical fallacy may be described as 'the tyranny of the future'. Note that any OZP, by the very nature of town and country planning, is subject to continuous replanning. Procrastination by pinning down a future OZP is a futile and unreasonable argument which ignores the nature of town planning.
The Town Planning Ordinance clearly specifies that applications made under a DPA Plan is to be decided within the provisions of that plan, even though the DPA Plan has been superseded by an OZP at the time when such decisions are made.
Roads through a Housing Area
It is not unusual to have a development abutting roads. The high-density high-rise residential towers above the Light Rail Depot is a classic example. Therefore, roads through a site itself should not be an objection unless such roads leave no practical room for housing development according to modern planning standards. However, this point was not elaborated in the decision to dismiss the case.
Planning Appeal Cases
Drainage Channels
401
See comments on the ecological impact of large drainage channels (channelization) in the Sanyear Investment case, ante. The Yin Ning Savings case also involved massive drainage channels.
Question:
1. What is the current use of the subject site?
References:
Case:
Delight World Limited v The Town Planning Appeal Board [MP No. 197
of 1996]
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2, 8, 9 and 10.
Books:
Dudgeon, David and Corlett, Richard. Hills and Streams: An Ecology of
Hong Kong. Hong Kong: Hong Kong University Press, 1994.
THE YIN NING SAVINGS CASE
Case Name: Various lots in DD 109, Kam Tin, New Territories [the Yin Ning Savings Case]
Planning Appeal Case No.: 08/95
Similar Cases: cases nos. 04/92, 07/92, 10/92, 15/92, 04 and 05/93, 13/93, 17/93,, 16/95, 21/95 and 01/97 [the Sung Dynasty City, Full Look, Treasure Base (1), Ultra Force, Treasure Base (2), Henderson, Shun Fat Container, Arzignano Leather, Cheung Hing Lung and Connie Law Yuk Wah Cases] regarding Town Planning Board or Appeal Board procedures; 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, 16/95, 18/95, 21/95, 16/95, 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, Charming City, Planet Universal, Delight World, 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, 12/94, 02/95, 05/95, 07/95,, 18/95, 19/95, 21/95, 26/95
402
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
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), Lai Sun Development, Charming City, Planet Universal, Delight World,, 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;
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, 14/94, 02/95, 05/95, 07/95, 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, Charming City, Planet Universal, Delight World,, 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, 14/94, 07/95, and 22/95 [the Wo Yi Hop Road, Yuen To-shing and Yuen Shu-ling, On Luk Tong, Good Luck, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World, Gain Cases] regarding adverse traffic/access problems; 01/91, 02/92, 03/92, 07/92, 13/93, 10/94, 02/95, 05/95, 07/95,
Alticosmic, Conduit Road, Wo Yi Hop Road, Full Look, Henderson (not),Sun Link Properties, Charming City, Planet Universal, Delight World, Cases] regarding excessive development intensity; 04/93, 01/94, 09/94, 02/95, 05/95, 07/95, - and 21/95 [the Treasure Base (2), Tang Sai Hung and Lee Yiu Kam, Charming City, Planet Universal, Delight World, - Cheung Hing Lung Cases] regarding agricultural and rural setting of the site;
and Lucky
[the
15/92, 11/93, 07/95, [the Ultra Force, Shell Hong Kong, Delight World,
Cases] regarding land resumption;
15/92, 13/93, 14/93, 16/93, 05/95, 07/95, - [the Ultra Force, Henderson,
Yiu Cho Investment, Naturaluck, Planet Universal, Delight World, Cases] regarding the use of planning conditions to overcome potential environmental problems.
Nature of the Case: residential development in Unspecified Use Zones; Demarcation District (DD); a substantially different submission in the s. 17 (1) review, which was changed further twice during the s. 17 B appeal; development on land partly subject to government resumption; the Roads (Works, Use and Compensation) Ordinance, Chapter 370; a proposal to make the planning permission conditional upon the approval of a master layout plan by the Director of Planning; the calculation of plot ratios and site coverages for site subject to land resumption.
Planning Appeal Cases
·
Date of s. 16 Application: 28 February 1994
Date of Hearing: 17-20 October 1995
Date of Decision: 27 October 1995
•
Chairman of Panel: Mr Justice Litton, OBE
403
•
Representation:
(a) Representation for the Town Planning Board was not mentioned in
the decision
(b) John Y.H. Hsi & Associates for the appellant
Decision: Appeal dismissed
• Rules Laid down by the Decision:
(a) 'Whilst, of course, the s. 17 review and the appeal before us must proceed on the basis of the DPA Plan - s.s. 20 (6A) — the zoning in the OZP underlines the need for a cautious approach at the DPA stage.'
(b) 'To authorize a development now (in 1995), for implementation in the year 2001 or beyond, when so many factors are uncertain would be fundamentally wrong. It is contrary to the statutory scheme for the control of development by means of the DPA plan.' (para. 19 (iv)) (c) A large-scale residential development in a DPA Plan shall not generally
be approved for that will prejudice the future zoning in the OZP. (d) A development proposal shall not be approved as long as there exists a real possibility that a proposed public work (say, a road and/or drainage channel in this case) may in fact cut across the site, requiring resumption of a substantial part of the site.
(e) Where part of a site would be resumed for public works (such as drainage channels/roads), the land area subject to resumption should be deduced for the calculation of plot ration and site coverage.
Background:
With an area of 67 344 m2, the subject site comprised various lots in DD 109, Kam Tin, which fell within the draft Kam Tin North Development Permission Area Plan No. DPA/YL-KTN/2 (the DPA Plan) which was published in the gazette on 12 July 1991. The subject site lied to the north of Kam Tin Road and was accessible by a small village path which led to Tai Kong Po Village to the north of the site.
On 28 February 1994, the appellant made a s. 16 application for the permission to develop 35 apartment blocks accommodating 350 units and 48 town houses. The total domestic Gross Floor Area (GFA) would be 27 760 m2 and the domestic plot ratio 0.41. Both the blocks and town
404
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
houses were two-storey above carports, which would provide 307 parking spaces for cars. The designed population was 1000 persons. In the proposal there were also a club-house and a restaurant with a total GFA of 3782 m2, tennis courts and a swimming pool.
On 22 April 1994, the s. 16 application was rejected.
The appellant then sought a s. 17 (1) review. "The master layout plan submitted in support of the review application was substantially different from the first put forward.' (para. 4)
On 17 June 1994, the DPA Plan was replaced by the draft Kam Tin North Outline Zoning Plan (the OZP). A portion of the site north of the drainage reserve was rezoned 'Agriculture' and south 'Village Type Development'.
The application on the review heard on 25 November 1994 was rejected and a letter dated 12 January 1995 informed the appellant of the Town Planning Board's decision.
It was reported that much of the site at the time of appeal was under cultivation for vegetable farming and poultry farming. There was also some minor workshop activity on parts of the site.
It was also reported that the master layout plan, the 'third master layout plan', produced for the Appeal Board before the hearing was also different from that presented in the s. 17 (1) review.
On the first day of the hearing, a ‘fourth master layout plan' was produced. The fourth master layout plan showed a shrinkage of part of the common area south of the drainage reserve ('site A') to accommodate the proposed slip road for the Kam Tin Bypass. The edges of two of the town houses abutted onto the resumption line for the bypass and some apartment blocks touched the line of resumption for the drainage channel works.
Arguments:
The appellant argued on the following grounds:
(a) The master layout plan submitted to the s. 17 review was substantially different from the earlier one because, then, the alignment for the proposed drainage channel for Yuen Long and Kam Tin Stage II had changed. Furthermore, the proposal would also likely be substantially affected by the Kam Tin Bypass.
(b) As argued in the review hearing: 'There are also a number of planned infrastructural developments in the vicinity of the site which at the time of the DPA planning application do not have concrete development programme or detailed alignments. The major infrastructural developments include the drainage channel traversing the site, the improvement works of the existing Kam Tin Road, and the Kam Tin Bypass running to the south of the site and connecting Kam Tin Road at its both ends.
Planning Appeal Cases
405
The program of these infrastructural provisions are fundamental to the implementation of the proposed development. The applicant is indeed willing to accept as a lease condition to proceed with the scheme after the completion of the government drainage works and the bypass
The anticipated time-table for various government projects was as follows:
Drainage channel
Kam Tin Road improvement works Kam Tin Bypass
September 1998 No programme Mid-1999
(c) The master layout plans are merely for "illustrative purposes": the essential matters were "broad issues" such as "use, gross floor area, number of units, population and traffic and environmental matters” ›. (para. 19)
(d) All the concerns over the master layout plan 'can be met by making the planning consent conditional upon the approval of a master layout plan by the Director of Planning'. (para. 19)
In dismissing the application in the s. 17(1) review, the Town Planning Board gave the following reasons (para. 5):
(a) The proposed development was premature at this stage in view of the number of transportation network and drainage works being planned in the area and the fact that it might pre-empt a review of the land use in the general area with regard to the scale, location and phasing of future developments there.
(b) The proposed development was not in line with the planning intention for the area as reflected in the approved Kam Tin North Development Permission Area Plan No. DPA/YL-KTN/2 which allowed low-rise, low- density residential development provided that the proposed development would have insignificant drainage and traffic impact on the area.
(c) There was insufficient information in the master layout plan to demonstrate that the proposed development would not cause constraints to the proposed Main Drainage Channels for Yuen Long and Kam Tin. (d) There was insufficient information in the master layout plan to demonstrate that the proposed development would not cause constraints to the proposed Kam Tin Bypass and Kam Tin Road Improvements.
Reasons for Decision:
The Appeal Board dismissed the appeal on the grounds of planning intention; the uncertainties posed by the proposed government infrastructural projects; and inadequacies of the proposed master layout plan.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Against Planning Intention
The Appeal Board derived the planning intention for the subject site from the following salient features of the DPA Plan:
(a) As described in the Explanatory Statement to the DPA Plan, the area was essentially a flat plain comprising agricultural land, fish ponds and villages'. (para. 6)
(b) The population in the area in the 1991 census was around 7680. According to para. 4.5 of the Explanatory Statement, agriculture was described as a 'major economic activity'. (para. 6)
(c) The Unspecified Use Zone was about 474 ha.
(d) The Unspecified Use Zone had been divided in the Explanatory Statement into four sub-areas. The subject site fell within sub-area (i). (e) Para. 6.2.5.(a)(i) of the Explanatory Statement stated (para. 8):
(iii) The sub-area north of Kiu Tau Tusen and Pang Ka Tsuen
(Kong A Leng/Tai Kong Po area)
There are numerous temporary structures for residential use scattered around the sub-area. In line with the Rural Planning and Improvement Strategy (RPIS), it is not intended to clear these structures but to allow residents to undertake self- improvement and possibly some publicly funded schemes where priority for public expenditure permits. The general intention is to encourage the in-situ reconstruction of structures with permanent material with a view to improving the current situation.
Thus spake the Appeal Board: "Whilst this is not in law part of the plan, it provides good evidence of the underlying intention behind the statutory control." (para. 7)
(f) Paras. 6.2.5. (c), (d) and (e) of the Explanatory Statement stated (para.
8):
Agricultural uses in these areas will be encouraged as far as possible and recreational uses (including ancillary facilities) which are generally compatible with the rural environment and are unlikely to adversely affect local communities may also be permitted. The main planning objectives of this land use designation are to identify non-urban areas where appropriate forms of agriculture and rural activities can be sustained to prevent unwanted urban growth and to enhance the quality of the environment. Residential development in compliance with the conditions of the "On-Farm Domestic Structure" scheme may be permitted where it is established that a dwelling is necessary to support the agricultural use. (para. c of Explanatory Statement)
There may be areas where private initiatives may wish to provide comprehensive low-rise, low-density residential developments (especially in the Pang Ka Tsuen area) mainly through land exchange or lease modification. Applications should be made to the Board. If
Planning Appeal Cases
approved by the Board the developments should be implemented in accordance with approved master layout plans with adequate provision for government, institution and community uses and recreational facilities to serve these developments. Due regard should be given to minimizing the environmental, drainage and traffic impacts of these developments on the surrounding areas. (para. d of Explanatory Statement)
For any development within these sub-areas, the owners/ developers must demonstrate that their proposals would have insignificant adverse impacts on the environment, traffic and drainage of the area or appropriate measures will be taken by the applicants to minimise such impacts. The submission of master layout plans, landscaping proposals, environmental impact assessments, drainage impact studies and/or traffic impact studies may be required when the proposals are submitted to the Board for consideration. (para. e of Explanatory Statement)
407
Having reviewed the Explanatory Statement, the Appeal Board determined that the proposal was against planning intention because of the following reasons:
(a) The DPA Plan was effective at most for four years. Meanwhile, detailed studies and development options would be carried out to determine the future uses. A development as large as proposes, once approved, might pre-empt future patterns of land use.
(b) The proposed development was excessive as it would add considerably
to the population and also the traffic.
Having categorically ruled out the application as being supportable from the point of view of planning intention by reference to the Explanatory Statement of the DPA Plan, the Appeal Board then considered other planning and technical matters confronting the proposal.
The New Village Type Development Outline Zoning Plan Did Not Help
The Appeal Board did not find the OZP of help to the appellant's case because:
-
Whilst, of course, the s. 17 review and the appeal before us must proceed on the basis of the DPA Plan
s.s. 20 (6A) - the zoning in the OZP underlines the need for a cautious approach at the DPA stage.
The Subject Sites Would Be Substantially Affected by Major Infrastructural Projects, the Aligments of Which Could Not Be Treated as Finalized
(a) There had already been 'slippage' for the projects. The drainage channel works were scheduled for completion in mid-2001; Kam Tin Road in early 2000 and Kam Tin Bypass mid-1999.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(b) As a result of (a), counsel for the appellant had conceded that had the appeal been allowed, the approval could not be allowed 'unconditionally' but had to be subject to the condition that 'the development of the site would only commence after the completion of these infrastructural projects, and be subject to various conditions such as the set-back of the building lines and the approval of a master layout plan. As things stand today a delay of at least six years is envisaged
and of course,
many unforeseen changes can take place in the intervening six years.' (para. 14) (italics mine)
(c) As regards the drainage channel, the ancillary road-works for that were gazetted under the Roads (Works, Use and Compensation) Ordinance, Chapter 370 on 24 March 1995. Fourteen objections had been received and the hearing of these objections under the Ordinance had not yet taken place.
(d) As regards the Kam Tin Bypass, the road-works were scheduled to be gazetted under the Roads (Works, Use and Compensation) Ordinance, Chapter 370 in January 1996.
(e) 'To authorize a development now, for implementation in the year 2001 or beyond, when so many factors are uncertain would be fundamentally wrong. It is contrary to the statutory scheme for the control of development by means of the DPA plan.' (para. 19 (iv))
The Changing Master Layout Plans, Altogether Four in Number, Were All Defective
(a) The first two master layout plans, rejected in the s. 16 and s. 17 (1) procedures, were obviously problematic in terms of the drainage work proposals.
(b) The third master layout plan first submitted to the Appeal Board was defective for it failed to accommodate the area to be resumed by the Crown for the Kam Tin Bypass.
(c) There was no evidence whether the fourth master layout plan, made in response to the problems of resumption for Kam Tin Bypass referred to in (b) above, which showed some of the proposed buildings touching the site boundary of points of government resumption, would be accepted by the relevant government departments.
(d) The calculation of plot ratio of 0.41 and domestic site coverage at 13.7% was misleading as the site would be substantially reduced in area by the resumption for the construction of the drainage channel (and ancillary works) and a slip road for the Kam Tin Bypass. The correct calculation on the basis of a much smaller net site would yield a much higher plot ratio and site coverage.
The effect of the land resumption for the drainage channel is that there will, in effect, be two substantially reduced sites
Planning Appeal Cases
(sites "A" and "B") divided by the channel which has a wide verge on both sides: on the south side, there will be the maintenance road (3.5 m wide) and then a 10 m verge. No figures have been produced for the areas of the two truncated sites "A" and "B”, but clearly, the domestic plot ratio for each of the two sites will be much higher than 0.41 and the site coverage will likewise be far higher than 13.7%, if the same GFA and the same building heights are to be maintained. (para. 17)
409
(e) The position of the vehicular bridge linking sites A and B shown in the fourth master layout plan did not link up with the bridge proposed by the government. The appellant's hope to persuade the government to change the position of the bridge, if unsuccessful, would entail the layout for sites 'A' and 'B' to be further modified.
The Appellant's Submission That the Master Layout Plans Were Illustrative' Only Could Not Be Accepted
The Appeal Board rejected the argument that the master layout plans were illustrative only (para. 19 (I)):
The master layout plan is not for ‘illustrative purposes only'. It is the basis of the development proposal rejected at the s. 17 review and is the foundation for the proposal now under appeal.'
Comments:
The logic of this case as regards planning intention and the relationship between the DPA plan and the OZP followed that adopted for the Delight World case, which in turn followed the reasoning in the Planet Universal Case. This case was also almost identical in factual details and structure of reasoning with the Delight World case.
The Nature of a s. 17(1) Review
A planning review has to stick to the original submission made under s. 16. The applicant may elaborate or substantiate his or her proposals and the justifications for them. However, the applicant may not furnish a modified or new scheme. It is strange that the Appeal Board would allow several changes of schemes coming before it. The revised plans should have been resubmitted to the Town Planning Board.
What Is the True Planning Intention? The Present Effects of Prospective Planning and Resumption; The Relevance of Private Property Rights; To Wait or Not To Wait?
As in the Universal Planet case, this panel of the Appeal Board announced a very important principle regarding the nature of IDPA/DPA Plans, or more precisely, the nature of Unspecified Use Zones in Deep Bay Buffer
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Zones they freeze any development ab initio until they are replaced by more refined statutory Outline Zoning Plans based on ‘a detailed study'. As clearly demonstrated in the quotations above, approving a major development in the IDPA/DPA stage would 'pre-empt future planning'.
This approach sounds reasonable and could well be an approach taken by the planner. Yet, this approach might also be imaginary or even absurd. It could well be purely conjectural as nowhere in the statutory component of the relevant 'interim' statutory plans had stated that development was to be frozen, pending the OZPs. If that was the case, then, as argued by the appellant, that intention could have been expressed easily in the relevant plan. The existence of the Town Planning Guidelines for 'residential' development in Deep Bay Buffer Zone 2 and the machinery of planning permission for applications in Unspecified Use Zones testify that housing development was not precluded as a matter of planning intention when the 'interim' plans were in force.
Then, what is the role of ‘interim' plans? Neither the word 'interim' of the DPA Plan nor the descriptions in the Explanatory Statement to the Plan, prepared by the Planning Department (rather than the Town Planning Board) entails that development must wait for the inception of the first OZP. It simply means that the definitive planning for large tracts of the area had not been predetermined and had to be determined upon a detailed study. These tracts of land were thus zoned 'Unspecified Use'. Meanwhile, any proposal in these Unspecified Use Zones had to go through the planning permission machinery during the 'interim' period. After that period, it might well be that such proposals might be (a) permitted as of right under Column 1, (b) remaining in Column 2, or (c) simply precluded in the first and subsequent OZPs. In the interim period, the Town Planning Board would investigate each case on its individual merits. In rejecting or approving applications in this interim period, the Town Planning Board helped future planning to be incorporated in the OZPs by considering merits and demerits of proposals in the given sites. The Appeal Board would be pre-empting the former two possibilities by insisting that the correct position in the interim period was to reject all proposals as a matter of principle on the grounds of pre-empting future planning.
The Appeal Board here ran the risk of unreasonably importing an ideal future study which had not been finalized, from an uncertain and indefinite future, to pre-empt proper present planning in accordance with the provisions of the interim statutory plans. To reiterate, such interim plans were not to freeze development but to require all development proposals in Unspecified Use Zones to go through a planning application procedure. There were no less or more implications other than the need to go through the approval machinery. The Appeal Board, however, 'made plans' by importing the idea, according to its own interpretation of the plans, that such plans implied that development in Unspecified Use Zones had better be rejected.
Planning Appeal Cases
411
The Appeal Board's logic could become absurd when it was taken to mean that planning now, as carried out by approving or rejecting a proposal made under provisions of an existing statutory plan, must always halt to wait for the 'clarification' of a future plan. As 'the future' always recedes indefinitely, this means that no development permission can be given 'now'. This logical fallacy may be described as 'the tyranny of the future'. Note that any OZP, by the very nature of town and country planning, is subject to continuous replanning. Procrastination by pinning down a future OZP is a futile and unreasonable argument which ignores the nature of town planning.
The Town Planning Ordinance clearly specifies that applications made under a DPA Plan is to be decided within the provisions of that Plan, even though the DPA Plan has been superseded by an OZP at the time of making such decisions.
Relevance of Private Property Rights
Property rights were neglected in the decision. The government has rights and reasons to resume land for public purposes. However, until such resumption is properly 'gazetted' and announced to affect a certain piece of land, the lessee of that piece of land has the right to use his or her land under the terms of the lease and to apply for a modification of the lease. To approve such an application should not be regarded as pre-empting public works, though it might increase the value of compensation payable to the lessee.
The Planning Boards should not pre-empt the rights of the lessee to apply for development when the resumption has not been officially been announced. Government departments may well produce an infinite number of internal plans which may entail resumption. However, until these claims on private lands are promulgated and objections heard, the boards should regard such resumption schemes as irrelevant and decide the application in circumstances where such schemes are not applicable — otherwise the rule of law (namely, against retrospective legislation and the need for conferment of statutory rights of objections) would become nothing more than lip service as proper government legislation. In being subservient to forthcoming but not yet applicable resumption proposals is to substitute the rule of law with administrative despotism criticized by Hayek.
Drainage Channels as Ecological Disasters
Like the Sanyear Investment and Delight World cases, this case involved massive drainage channels (channelization) which are not ecologically friendly to water flora or fauna.
Questions:
1. What has happened to the alignments of the resumption?
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions.
2. What has happened to the land since the decision of the appeal was
known?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2, 8, 9 and 10.
Books:
Hayek, F.A. The Constitution of Liberty. London: Routledge, 1960. Dudgeon, David and Corlett, Richard. Hills and Streams: An Ecology of
Hong Kong. Hong Kong: Hong Kong University Press, 1994.
THE ARZIGNANO LEATHER CASE
Case Name: A site within draft Kam Tin OZP, New Territories [the Arzignano Leather Case]
Planning Appeal Case No.: 16/95
"
26/95 [the
21/95
>
Similar Cases: cases nos.
and Wong Yee Fai (2) Cases] regarding development in Residential (Group D) zones; 04/92, 07/92, 10/92, 15/92, 04 and 05/93, 13/93, 17/93, 08/95,
and 01/97 [the Sung Dynasty City, Full Look, Treasure Base (1), Ultra Force, Treasure Base (2), Henderson, Shun Fat Container, Yin Ning Savings, Cheung Hing Lung and Connie Law Yuk Wah Cases] regarding Town Planning Board or Appeal Board procedures; 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,-, 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), Lai Sun Development, Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Cheung Hing Lung, Wong Yee Fai (2), Fine Tower, Container System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans);
05/92, 15/92, 18/92, 19/92, 02/93, and 04 and 05/93, 13/93, 17/93, 12/94,
05/95,
and 22/95 [the OTB, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Bowen Road, and Treasure Base (2), Henderson, Shun Fat Container, Lai Sun Development, Planet Universal, — and Lucky Gain Cases] regarding the nature of planning and the market or private interest/public interest.
Planning Appeal Cases
413
Nature of the Case: storage and office uses in Residential (Group D) Zones in Outline Zoning Plan (OZP); renewal of temporary planning permission; objections to OZPs; ‘change of ground' for the original s. 16 application; building plans rejected on grounds of contravening town plans; the need for planning permission.
Date of s. 16 Application: 5 September 1994
•
Date of Hearing: 21 March 1996
•
Date of Decision: 12 April 1996
•
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Mr Wingrad for the Town Planning Board
(b) Mrs Jessie Chu, Weltgeist Surveyors Ltd., for the appellant
•
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) The Appeal Board has no power to remit a dispute whether an application is for a temporary 3-year or 1-year permission to the Town Planning Board.
(b) Renewal of temporary permission for a use, to be accommodated in structures, in a DPA Plan shall be granted only if (i) the applicant complies with the planning conditions for the original permission; (ii) no new structures are proposed, or permitted structures are existing; and (iii) the renewed permission allows the proposed use to be viable.
Background:
On 16 April 1991, building plans for office/storage of gloves on the subject site were submitted to the then Buildings and Lands Department.
On 12 July 1991, the draft Kam Tin North Development Permission Area Plan No. DPA/YL-KTN/1 (the DPA Plan) was published in the gazette.
The building application was rejected on the ground that, amongst other things, the proposed development had not obtained planning permission from the Town Planning Board.
On 1 August 1991, the appellant applied for permission to erect two 2- storey buildings for the storage of gloves and as offices.
On 20 September 1991, the application was approved by the Rural and New Town Planning Committee (RNTPC) of the Town Planning Board subject to various conditions. The duration of the permission was three years up to 20 September 1994.
According to the appellant, there followed frustrating attempts to comply with the planning conditions. He was incapable of satisfying one
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
government department or another. It was until 31 October 1994 that he managed to obtain a short term waiver (STW) for office/storage use (with retrospective effect from 20 August 1992) Meanwhile, the appellant had also cleared the squatter structures on the site.
On 17 June 1994, the subject site became rezoned Residential (Group D) (R (D)) by the draft Kam Tin Outline Zoning Plan No. S/YL-KTN/1 (the OZP) published in the gazette on 17 June 1994.
On 3 August 1994, the appellant objected to the zoning and requested the site to be rezoned. The objection would be dealt with in June 1996.
On 5 September 1994, the appellant made a s. 16 application for temporary permission for using the subject site for storage of gloves and office for a period of one year. The proposal involved the building of two 2- storey buildings. The buildings would be 6.1 m in height, site coverage 25% and the total built over area 374.33 m2 on a site of 1497.3 m2.
The s. 16 application was rejected on 4 November 1994.
The application was again rejected on 5 January 1995 upon a s. 17 review hearing on 29 November 1994.
The Appeal Board noted that from the s. 17 review papers, the Town Planning Board had been under the impression that the application was for a term of three years.
Arguments:
During the appeal hearing, Mrs Jessie Chu for the appellant explained the following:
(a) The Town Planning Board had misunderstood her position. The application was for the permission of a one-year permission under para. (vi) (b) of the Notes of the OZP, which read (para. 5):
Temporary use or development of nay land or building not exceeding a period of 12 months requires permission of the Town Planning Board. Notwithstanding that the use is not provided in the terms of the plan [under Columns 1 and 2], the Town Planning Board may grant, with or without conditions, or refuse to grant permission. (italics and square brackets mine)
(b) The storage/office user was covered by para. iii of the Notes:
A development permitted under an earlier draft or approved plan including interim development permission area plan/development permission area plan for the area and undertaken during the effective period of that plan is always permitted under this Plan. Any alteration and/or modification to the completed development, unless permitted in terms of the Plan [under Columns 1 and 2], requires permission of the Town Planning Board. Notwithstanding that the use or development is not provided for in the terms of the Plan, the Town Planning Board may grant, with or without conditions, or refuse to grant permission to the development. (italics and square brackets mine)
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415
Counsel for the respondent, the Town Planning Board, objected to the argument of the appellant that the application was for a one-year approval as that amounted to ‘a change of ground'. (para. 6)
The District Planning Officer, Mr Paul Ng, gave evidence on behalf of the respondent, the Town Planning Board:
(a) He said that the power of the Town Planning Board under para. (vi)(b) of the Notes to allow temporary uses is intended to cover genuine temporary uses, for example, temporary showrooms, show flats and users in relation to festivals or fairs'. (para. 19)
(b) He reminded the Appeal Board that the 'planning intention' for the area zoned R(D), which was to improve and upgrade the exisitng temporary domestic accommodation within the zoned area'. (para. 22)
Reasons for Decision:
Regarding 'Change of Ground'
The Appeal Board did not accept the submission of counsel for the respondent about 'change of ground' because:
we decided that it was right for us to deal with this appeal on the basis that it was an application for permission to use the Sites for storage/office for a period not exceeding 12 months. We do not have the power to remit the matter to the [Town Planning] Board and felt that in all the circumstances, we should deal with the appeal the best we could. (para. 7) (italics and square brackets mine)
However, the Appeal Board resolved to dismiss the appeal on the following grounds:
(a) Uses commercially non-viable with just one-year approval
The appellant admitted that a permission for only one year would not make it commercially viable for such investments as two 2-storey buildings to be made.
(b) There were no structures on the subject site
Had the owners been able to comply with the conditions imposed on them in 1991 and are now applying to us for temporary permission to continue such use until the disposal of their objection to the zoning under the OZP, we would have viewed the application sympathetically. But that is not the position. There are no structures on the Site. Permission to use the Site for 12 months with no guarantee that it will be renewed will not really help the appellants. It is difficult to believe the appellants would be prepared to incur the expenditure of putting up substantial structures on the Site when they have no more than a year's permission. The appellant's hope must lay in their objection to the new zoning. (para. 21) (italics mine)
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(c) The argument that storage/office use was covered by para. iii was
Wrong
if she (the appellant's representative) is right, and the intended user "is always permitted under this plan" no s. 16 application is necessary. That being the case, there could be no appeal to us under s. 17B. We are not the correct tribunal for the determination of this issue. (para. 25)
Comments:
The Planning Intention for the So-Called 'General Notes': The Rationale of "Temporary Permission'
The so-called 'general notes' were part of the statutory Notes and hence part of the statutory plan. Any use, even though it is not an always permitted use in all zones, or a Column 1 or Column 2 use in a given zone may be permitted on a 'temporary basis' for one year (maximum) upon planning application.
There is no law or planning policy to the effect that a use permitted for one year can only be allowed for just one year in the life time of the land. A temporary use may be 'renewed' or 'extended' upon a planning application, though of course there is no guarantee that the application for an extension is necessarily entertained, as circumstances may change. This form of a one-year (or less) permission introduces a kind of flexibility of land uses in lieu of granting a contractual 'Short Term Waiver' (STW) of the Crown lease. This temporary permission also allows planning conditions to be really enforced. If an applicant fails to comply with planning conditions, his use will not be approved again and will even become unauthorized (for failing to comply with the terms of the planning licence).
In this context, the Appeal Board can be said to have adopted an unnecessarily restrictive approach, which is not built in the legal provisions, to interpret the meaning of 'development' and the term 'planning permission' useful to the appellant.
There Were No Structures on the Subject Site: The Meaning of Development
A use involving development of structures is within the ambit of the 'general notes'. Hence, the attachment of particular weight to the issue of structures or absence of them on the subject site per se is irrelevant, unless such structures generate demonstrable harms.
Uses Commercially Non-Viable with Just One-Year Approval
It is submitted that it is not the business of the Appeal Board to consider the commercial viability of the use applied for. That is purely a private matter. Furthermore, there is no automatic policy entailing that a use
Planning Appeal Cases
417
permitted in one occasion for one year maximum will not be extended again. Therefore, the business risks confronting the appellant should not have been a reason against the application.
Questions:
1. What has happened to the site since then?
2. What has happened to the appellant's subject site since the dismissal
of the appeal?
Reference:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5, 8, 9, 10 and
11.
THE JETWAY CIVIL CASE
•
Case Name: Lot No. 465B in DD 92, Kwu Tung North, Sheung Shui, New Territories [the Jetway Civil Case]
Planning Appeal Case No.: 18/95
"
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, 02/95, 05/95, 07/95, 08/95, 16/95, 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), Lai Sun Development, Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Arzignano Leather, -, Jetway Civil, Cheung Hing Lung, Wong Yee Fai (2), Fine Tower, Container System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans); 05/92, 07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, -, 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), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings,
Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding appeals stated explicitly to be against planning intention;
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, 14/94, 02/95, 05/95, 07/95, 08/95,
418
•
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
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, Charming City, Planet Universal, Delight World, Yin Ning Savings, — Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans;
>
08 and 09/92, 06/94, [The Yuen To-shing and Yuen Shu-ling, Ng Siu
Wing, Cases] regarding small house development.
Nature of the Case: 'Small house' development in Agricultural Zone in OZP; need for planning application.
Date of s. 16 Application: 27 September 1994
Date of Hearing: 26 June 1996
Date of Decision: 25 July 1996
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Representation for the Town Planning Board was not mentioned in
the decision
(b) Professor Charles J. Grant, Professor Emeritius of the University of Hong Kong, Department of Geography and Geology, and Mr Stanley Tsui for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) Small houses should not be permitted in Agricultural Zones. (b) 'When considering whether an intended development is consistent with the planning intention, one should not have regard only to the site in question. It may be that a site, say only a 100 sq.m. in area is uneconomical for any form of agricultural use (or any use consistent with the planning intention). But that does not mean that in an area zoned agricultural which has a total area of, as here, 137 hectares (or in zone which is much larger in area), any applicant who can confine his application to plots of 100 sq.m. each should be given permission to use such plots for building purposes. We must have regard also to the area as a whole when considering the planning intention.' (para. 11, underline mine)
Background:
With an area of about 283 m2, the subject site was Lot No. 465B in DD 92 which fell within an Agricultural Zone in the draft Kwu Tung North Outline Zoning Plan No. S/NE-KTN/1 (OZP).
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The appellants were two indigenous villagers who had applied for two New Territories Exempted Houses (NTEH) or 'Small Houses'. The houses would be 3-storey in height and comprise six flats with a total covered area of 132 m2.
The application was rejected by the Town Planning Board.
The Appeal Board noted that the subject site was located on the northern side of Castle Peak Road at Kwu Tung. It was situated between the villages of Tsung Pak Long and Yin Kong which were respectively about 320 m to the west and 250 m to the southeast of the Village Type Development Zones of Tsung Pak Long and Yin Kong.
The Appeal Board also noted that subject site was occupied by two half temporary structures (the other half was outside the site) used previously as chicken sheds. One of these structures was currently used for domestic purposes and the other vacant.
Arguments:
The appellant's submissions were as follows:
(a) According to Professor Charles Grant, the site was (i) unsuitable for agricultural use because decomposed coarse ash crystal tuff of the Tai Mo Shan rock formation had been used to level the site before the construction of the original pig/chicken farm: arable farming was out of question; (ii) was too small to justify the expenditure needed to comply with EPD Regulations: hence impractical to continue with chicken farming on the site; and (iii) was too small to be economical to have a mushroom farm on the site.
(b) Mr Stanley Tsui urged that the Appeal Board should be sympathetic to the appellants as they were indigenous villagers who had been frustrated many times in their attempts to build their own small houses.
In rejecting the appellant's planning application, the Town Planning Board held that (para. 3):
(a) the proposed development was not in line with the planning intention for the area as stipulated in the OZP which was to retain and safeguard agricultural land;
(b) the approval of the application would set an undesirable precedent for other similar applications which would defeat the planning intention for the area;
Mr Thomas Ng Yeung Shing of the Agriculture and Fisheries Department gave evidence that the site qualified as Grade B prime agricultural land and should be preserved accordingly.
Moreover, according to him [Mr Ng], the temporary structures on the site could be converted to other non-polluting agricultural users such
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as plant nursery, mushroom farming on even such a small site could
be economical. (para. 9) (square brackets mine)
Mr David O.Y. Wong, District Planning Officer of the Shatin, Taipo and North District Planning Office argued that:
(a) ‘. . . the shortage of land for exempted houses should be dealt with comprehensively and systematically and that suitable land for small house development should be provided as a matter of planning.' (para. 13)
(b) ... to allow this application would result in an inefficient use of land resources and dispersed residential development. That it would adversely affect the long term sustainability of agricultural activities in the area.' (para. 14)
Reasons for Decision:
While we have every sympathy for the appellants, we believe the paramount consideration must be whether as a matter of planning, the application should be granted.
The Appeal Board noted that:
According to the Notes to the OZP, on farm domestic structure (which is ancillary to agricultural use) is permitted as of right under the "agricultural zoning". The propsoed New Territories exempted house user may be permitted on application. (para. 6)
Yet, the Appeal Board resolved to dismiss the appeal on the following grounds:
Against Planning Intention
The Appeal Board located the planning intention in para. 8.1.1 of the Explanatory Statement to the OZP (para. 7):
+
To retain and safeguard good agricultural land, and to retain fallow arable land with good potential for rehabilitation a total of 137 hectares of land was zoned “AGR” on the OZP for this purpose. (italics mine)
The Appeal Board noted the environment of the subject site (para. 5):
It is quite clear from the evidence that the surrounding areas are mainly rural and agricultural in character. To the site's immediate west and north are some temporary structures, some of which are for storage of farm tools, while some are for domestic use ancillary to the adjacent agricultural activities. Further north and west of the site are agricultural land under active cultivation. An open air car repairing yard is located to the immediate east of the site (an existing use for the purpose of the Town Planning Ordinance). Further east is a
Planning Appeal Cases
traditional burial ground which falls within a “green belt” zone on the draft OZP.
Moreover, in our opinion, when considering whether an intended development is consistent with the planning intention, one should not have regard only to the site in question. It may be that a site, say only a 100 sq.m. in area is uneconomical for any form of agricultural use. But that does not mean that in an area zoned agricultural which has a total area of, as here, 137 hectares, any applicant who can confine his application to plots of 100 sq.m. each should be given permission to use such plots for building purposes. We must have regard also to the area as a whole when considering the planning intention. (para. 11)
Cultivate Mushrooms!
Whilst we accept that the site is not suitable for arable farming, we do not accept that the site cannot be used for plant nursery or mushroom farming. On this, we prefer the evidence of Mr. Ng. (para. 10)
Farm More Land?
It is quite clear from the evidence that much of the area in the neighbourhood is still under active cultivation. (para. 14)
Small House Should Not Be Permitted on Agricultural Zones
That, of course, is the function of the Town Planning Board under s. 3 of the Town Planning Ordinance and is outside our jurisdiction. (para. 13)
Comments:
421
This appears to be a simple case. In fact, it provides excellent educational materials for students in planning and development. This is a case where a Column 2 use is rejected on categorical reasons of planning intention and precedent by the Town Planning Board.
With due respect to the Appeal Board's efforts, I submit that the logic and reasons for decision in this case are entirely wrong and deceptive.
What Was the True Planning Intention: Why Was the Use In Column 2 of the OZPs?
This case must be wrong insofar as the reasoning about 'planning intention' was concerned. 'New Territories Exempted House' was an item in Column 2 of the zone in the Notes, which is a legal part of the statutory plan.
The Meaning of 'Good Agricultural Land' and 'Fallow Arable Land with Good Potential for Rehabilitation'
The logic behind the respondent's argument about 'good agricultural land'
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was doubtful. It was accepted that the land was unsuitable for cultivation. This meant that it fell outside the category of fallow land with good potential for rehabilitation' remarked in the non-statutory descriptive Explanatory Statement. Yet the Appeal Board attempted to freeze this sterilized small piece of land from small house development to which the appellant was entitled under the Small House Policy.
Prospect of Farming and Free Choice
It was not up to the government officials or planning boards to decide the best economic uses of land or forms of agriculture in Hong Kong as a market economy. Unless the proposed use has demonstrated social harms that cannot be mitigated or compensated by its social benefit, it is not legitimate, from a constitutional law (the Basic Law) perspective, for the bureaucracy to expect the appellant to cultivate mushrooms or farm more land as if they were viable. Even where these so-called alternatives are viable, the appellant is entitled to elect the alternative option of enjoying housing rights under the Small House Policy. Recall the logic of the Appeal Board in the Yuen To-shing and Yuen Shu-ling, and the Ng Siu Wing
cases.
The Meaning of Grade A/B Agricultural Land
The broad brush, administrative categorization of Grade A/B land by Agriculture and Fisheries Department was based on an old survey. As indicated by the expert evidence accepted by the Appeal Board, the subject site was not arable. It is strange that neither the appellant nor the Appeal Board investigated the definitions of 'A' or 'B' land, and the contemporary relevance of the grading for the subject site. If a piece of land sterilized for farming could be used for mushroom culture in order that land could be preserved against development, it would also be valid to have planning conditions requiring mushroom cultivation (or even pond fish on certain floors of an approved small house).
Regarding the Area as a Whole
The argument of 'regarding the area as a whole' was a double-binded. sophism: whether the scale of development is big or small, the chance of success in an Agricultural Zone is dim. Big development is criticized for being 'excessive', small development 'bit-by-bit'. The fact was that small houses belong to a valid column 2 uses. Appeals are often dismissed where the developments are considered 'excessive'. Here we have a small application but the Appeal Board was worried about the 'bit-by-bit' piecemeal approach adopted by a clever appellant. Although it is up to the appellant to adopt whatever approach, it is the duty of the planning boards to decide each case on its own unless it is obvious that an application