This case is deceptively brief (with the transcript having a text of just 4 pages, containing 20 short paragraphs). It is, in fact, important as it clearly demonstrates the legal and policy issues behind the proper (or rather, improper) relationship between planning enforcement and planning application procedures and reasoning. This case definitely falls within the Pak Kong-Kingspeed Engineering-Kun Kee Motor-Shun Fat Container- Ever Need string, though its tenor is as mild as that in the Lo Kwok-wai case. If the said string of cases involves a hard official line, then this decision, one may say, involves a 'soft-killing' of the appellant's submission.
As a Matter of Principle: Never!
'We cannot grant this application. The Site is being used for car repairing purposes illegally. We cannot condone the continued illegal use by granting permission under para. (vi) (b).' (para. 15) (italics mine)
Planning Department Should Have Worked Harder!
"The Town Planning Ordinance will lose credibility unless timely enforcement action is taken. Town Planning will not work, unless Government is willing to commit sufficient resources to enforce the Town Planning Ordinance. The fact that no enforcement action has been taken since the Town Planning Appeal Board's decision of June 1995 will only encourage infringement of the Town Planning Ordinance.' (para. 19)
Comments:
The Appeal Board here took the provision of planning application as a way out for those against whom enforcement notices had been served. I must submit that this view was a mockery. It was a meaningless legislative provision. The legal drafters must have, in this light, done a bad job. Or else, the planning boards had mistakenly usurped the function of a law court.
What Could the Planning Department Help?
The suggestion saying that the Planning Department could help was absurd. While the department does provide public information, it does not 'help' individuals to find sites for their business as it is not an estate agent. To show the appellant zones where his uses were always or might be permitted would not help much as the landownership was not known.
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The Role of the Appeal Board
Is the Appeal Board a court of law? The answer is negative. However, the Appeal Court here posed itself as a court in finding that 'unauthorized development' had been occurring on the appellant's land. How did the Appeal Board come to the view that the appellant was an offender? The answer was that the Board had received information from the Planning Department. As prosecution is a criminal proceeding, information related to the appellant should not have been divulged by the officers in charge of prosecution to a third party. Government officials should not have disclosed or discussed matters relating to possible prosecutions in a planning application or appeal in order not to prejudice the defendant's rights in the court.
What Was the True Planning Intention for Residential (Group D) Zones?
R(D) zones under Columns 2 usually provide a list of suburban uses including banks, public carpark and transport terminus. To negate temporary open storage uses on the grounds of 'upgrading' is hardly consistent with the 'planning intention' reflected by such uses.
Relevance of Private Property Rights
Not discussed.
Questions:
1. Did the government ultimately take enforcement action against the
appellant?
2. What has happened to the site since the date of the decision of the
appeal?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5, 8, 9, 10 and
11.
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
Planning Appeal Cases
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
453
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of 1994
Regina v Tang Yip and Yeung Fook Mui Magistracy Appeal No. 864 of 1994
Regina v Helen Transportation Co. Ltd., Liu Ka Sing and Chan YukKwan Magistracy Appeal No. 303 of 1995
Regina v Power Straight Ltd., Dragon Friend Ltd. Magistracy Appeal No. 644 of 1995
THE FINE TOWER CASE
•
Case Name: Northern side of Hoi Yu Street, Quarry Bay, Hong Kong Island [the Fine Tower Case
Planning Appeal Case No.: 28/95
Similar Cases: case no. 16/93 [the Naturaluck Case, - regarding the approach that 'planning permission should be granted unless there are good reasons for refusal.' (see 'presumption in favour of development', Chapter on Rules with particular reference to Treasure Base (2) Case);
04/96, the Container System Case] regarding joint application for a use which is ‘existing use' on a part of the subject site; 01/91, 03/92, 05/92, 02/94, 12/94, 22/95 and
[the Alticosmic, Wo Yi Hop Road, OTB, So Cho Cheung, Lai Sun Development, Lucky Gain and
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, 12/94, 14/94, 02/95, 05/95, 07/95, 08/95, 16/95, 18/95, 21/95, 26/95, -, 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 Ling, Wong Yee Fai (2), —, Container System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans);
و
03/92, 07/92, 15/92, 18/92, 19/92, 13/93, 16/93, 14/94, -, and 04/96 [the Wo Yi Hop Road, Full Look, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Sanyear Investment,
and Container System Cases] regarding adverse environmental impact;
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13/93, 14/93, 16/93, 22/95 and
Naturaluck, Lucky Gain, and
[the Henderson, Yiu Cho Investment, Cases] regarding conflicting views
between DPO and other government departments; 07/92, 04 and 05/93, 11/93, 16/93, 19/93, 01/94, 09/94, 05/94, 07/95, and [the Full Look, Treasure Base (2), Shell Hong Kong, Naturaluck, Ever Need, Tang Sai Hung, Lee Yiu Kam, Planet Universal, Delight World, and Cases] regarding incompatibility with adjoining uses, environment/development.
Nature of the Case: Potentially Hazardous Installations (PHIS); an earlier application for office development in Industrial and G/IC Zones rejected though a later application for Industrial-Office (I-O) building approved with planning conditions not relating to matters negating the former; appeal dismissed on the grounds of 'incompatibility' with a G/IC Use though not against planning intention; Metroplan.
Date of s. 16 Application: 2 November 1994
Date of Hearing: 22, 23, 24 and 26 April, 1997
Date Of Decision: 16 June 1997
Chairman of Panel: Mr Ronny F.H. Wong, QC (deputy-chairman)
Representation:
(a) Mr S.H. Kwok for the Town Planning Board
(b) Mr Warren Chan, Leading Counsel for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) Planning permission should be granted unless there are good reasons
for refusal.
(b) "The Appeal Board were, of course, entitled to disagree with the Town planning board. Their function was to exercise independent judgment.' (per Lord Lloyd of Berwick in Henderson Real Estate Agency Ltd. v Lo Chai Wan [1997], as quoted in the Fine Tower case)
(c) An Office Building can be incompatible with a barging point whereas a mixed Industrial-Office Building of more or less the same size is not.
Background:
Lease Conditions and History
With an area of 2985.9 m2, the subject site consisted of Inland Lot Nos. 8590 (2600 m2) and 8723 (385.9 m2). It was mainly zoned Industrial in the Quarry Bay Outline Zoning Plan No. S/H21/9 when the planning application was made.
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Lot 8590 was first granted to China Oil on 22 May 1985 in exchange for various old lots it surrendered. Having obtained this site, China Oil planned to erect three oil tanks. As the site was found to be too small, the company asked the government to grant more land. Lot 9723 was thus granted on 20 December 1988.
The leases restricted both lots to Industrial and/or Godown purposes, including bulk storage and distribution of petroleum products and other petrochemical fluids.
Marine access was permitted along the waterfront. Yet, an application by the company for a pier had been rejected by the Marine Department.
Environment of the Subject Site at the Time of the Appeal
It had a marine frontage of about 55 m and was located on the northern side of Hoi Yu Street. Hoi Yu Street was then a cul-de-sac off Java Road. The environment of the subject site was reported as follows:
(a) To its east along the waterfront was a strip of land occupied by a port works maintenance depot, which would be replaced a public dumping barging point to operate in mid-1988.
(b) Further east along Hoi Yu Street were a Eastern Harbour Crossing
(EHC) ventilation building and a public cargo handling area (PCWA). (c) To its immediate northwest was a small local open space (LO), a piece
of vacant land and a salt water pump house.
(d) To its west was a high-rise godown building, the Eastern Harbour
Centre, at Hoi Chak Street.
(e) To its south, along Hoi Chak Street, were a temporary open car/lorry park, a temporary open storage depot of the Water Services Department (WSD) and a temporary vehicle depot of the Urban Services Department (USD).
(f) On the other side of Hoi Chak Street were two industrial buildings (the Hong Kong and China Gas Headquarters and the Hong Kong Tobacco Company Building), a basketball court and a warehouse. Further down south were some residential buildings with retail shops on the ground floors.
Planning History
The subject site was first zoned Industrial in the draft North Point Outline Zoning Plan (the OZP) which was published with serial number LH 8/35 in May 1975. It was reported that the relevant section of the Explanatory Statement to the North Point OZP read (para. 6):
Except for the proposed reclamation area to the east of the district, very little expansion of the industrial zones is envisaged. Efforts have been made to retain industrial land if suitably located, but where industry is located in areas, which are predominantly commercial/ residential or residential, the zoning has been amended from that
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shown on the earlier plan. The district is essentially a dormitory suburb of Central and it is not considered desirable to encourage major industrial activity in the district by zoning more land for this use, particularly as the district is very short of G/IC uses needed to support the growing residential community.
The subject site retained its industrial zoning in the Quarry Bay Outline Zoning Plan No. S/H21/3 which replaced the North Point OZP in July 1986. The Explanatory Statement to this OZP was reported to state that the total zoned Industrial had a total area of 6.39 ha: 'Most of the existing industrial sites have been developed into flatted factories mainly for general industrial uses. They are located mainly along Westlands Road and Shipyard Lane.' (para. 7) This OZP was replaced in February 1988 by the Quarry Bay Outline Zoning Plan No. S/H21/4. The Explanatory Statement of this OZP stated: 'Some development of these buildings is taking place and it is expected that this will assist in making the industrial area more compatible with the adjacent areas.' (para. 7)
In December 1990, the Town Planning Board Guidelines for office development in Industrial Zones were issued by the Town Planning Board.
In January 1991, the subject site was identified as one of the 'target areas' for commercial activity to upgrade the existing urban fabric in the "Target Areas for Reduction of Densities/Restructuring Plan' attached to Metroplan.
The subject site became largely zoned Industrial and partly Government/Institution/Community (G/IC) in the Quarry Bay Outline Zoning Plan No. S/H21/9, published in the gazette in October 1994. The Explanatory Statement to this OZP was said to have stated:
The development of Taikoo Shing has marked the gradual transformation of the Quarry Bay area from an industrial/dockyard area into a major residential and commercial community.'
Three industrial sites are found in the area. Two of them on Hoi Chak Street have been developed into a Hong Kong and China Gas Company depot and a godown / warehouse. The one in the waterfront is planned for oil depot purpose. These industrial uses are either non-polluting or located far away from residential and other sensitive uses. (para. 10) (italics Mine)
(Note: An oil depot' is a 'Potentially Hazardous Installation' (PHI) with great hazardous implications. Proper planning dictates that oil depots, as a general rule, shall not be located in high population density areas. I doubt whether such portion of the statement was updated.)
The Application
On 2 November 1994, the appellant made a s. 16 application for the
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development of a 27-storey office building on the subject site within the ambit of the Quarry Bay OZP No. S/H21/9. The building would have a height of 92.66 m. The ground floor would be for office and lobby uses, the first floor carparking (6 spaces), loading/unloading (9 spaces) purposes, the second floor carparking (68 floors) and all the other floors office uses. At a plot ratio of 15, the total Gross Floor Area (GFA) would be 44 788.5 m2.
The Director of Environmental protection had no objection to the proposal. The Chief Engineer/Solid Waster, Civil Engineering Department, however, objected to the application strongly as it was considered 'incompatible with the adjacent public dumping barging point which will be in operation by mid-1996'. "This barging point is one of the most essential elements of the Public Dumping Strategy endorsed by LDPC [Land Development Policy Committee] on 27 March 1992 . . . ' (para. 13, square brackets mine)
The s. 16 application was rejected by the Town Planning Board on 16 December 1994. The application was rejected again by the Town Planning Board on 16 January 1995 after a review hearing. On 28 January 1995, the appellant made another application for an Industrial-Office (I-O) development with 23 floors above a three-storey podium. The building height was 97 m APD (Above Principal Datum). The relevant Town Planning Board Guidelines were issued in January 1994.
The appellant application for I-O building was approved with conditions by the Metroplanning Committee of the Town Planning Board on 17 March 1995. It was recorded that none of these planning conditions related to the proposed public dumping barging point at the adjoining site.
Arguments:
The appellant argued on the following grounds:
The Planning Intention Point
(a) Neither the Explanatory Statement nor the history of the site supported the view that the planning intention for the site was to use it for waterfront industrial development.
(b) Only two groups of businesses would still require marine access,
namely, cargo handling and concrete batching.
(c) Between January 1992 and October 1996, the appellant had only 1 enquiry from cargo handlers and 2 from the concrete batching business. (d) There were other sites with marine access in Yau Tong and Kwun
Tong at a more competitive price.
The Compatibility Point
(a) The Director of Environmental Protection raised no objection to the
proposal.458
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(b) Mr James Wong, a chartered engineer with 3 years' experience with the Department of Environmental Protection, considered the noise impact (with reference to a relevant Technical Memorandum issued by the Secretary for Environment) and the dust impact (with reference to the Air Pollution Ordinance). Mr Wong emphasized that: 'Since the Town Planning Board has approved an I-O use for the subject site, there is therefore no reason to assume that there is any difference in the environmental impacts caused by the public barging point on the proposed O building from that of the approved I-O building.' (para. 29) (c) Mr Wong also drew the Appeal Board's attention to two dumping sites adjacant to luxury residential areas and environmentally sensitive uses: (i) Fortune Gardens at Ting Kok Road, Tai Po; and (ii) The Hong Kong Institute of Biotechnology Laboratory at Pak Shek Kok, next to the Chinese University of Hong Kong.
The Accessibility Point
(a) The subject site was close to Java Road and King's Road.
(b) Quarry Bay Mass Transit Railway Station was within 5 minutes' walk
at a comfortable pace.
(c) A total of 14 bus routes, 2 green minibus routes and other minibus
routes and trams were within three to four minutes' walk.
(d) There were many restaurants and retail shops could be found along
King's Road and Java Road.
(e) The subject site had good sea view: the appellant was unlikely to commit $1800 million in an office development that was unattractive to potential users.
Market Demand
Mr Steven Chung of Richard Ellis (surveyors) said that due to the low vacancy level in office, there was a pent-up demand for office space in the
area.
In rejecting the application after the review hearing, the Town Planning Board held that (para. 15):
(a) The proposed office development was not in line with the planning intention for the site which was for waterfront industrial development. The subject site was one of the very few industrial sites with marine access. As such sites were rare and difficult to be reprovisioned, the site should be retained for industrial uses requiring marine access. ("The Planning Intention Point' referred to by the Appeal Board.) (b) The proposed office development was not compatible with the proposed public dumping barging point at the adjoining site. ("The Compatibility Point' referred to by the Appeal Board.)
(c) The subject site, being located in location and relatively remote from the MTR station and major public transport routes, lacking supporting
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facilities and having a tortious pedestrian route, was not suitable for office development. ("The Accessibility point' referred to by the Appeal Board.)
Mr Li Chi Kwong, District Planning Officer/Hong Kong Island (DPO), stated that 'there is a locational requirement for a site of such a nature [marine access] to be in that part of Hong Kong Island.' (para. 26) (square brackets mine)
Mr Li also advanced the argument that the approved I-O building would generate 2300 workers whereas the proposed Office building 3000. "The curtain wall and the air-conditioning of the proposed development would give these workers little comfort when they venture outside the building.'
Mr Chan Chi Yan, Senior Engineer of the Public Dumping Strategy Section and the Secretary of the Public Dumping Sub-Committee, explained the significance of the needs for public dumping as a means to carry out reclamation. Then there were two public dumps in Tseung Kwan O and Tuen Mun, the New Territories. On the Hong Kong Island, there was one barging point at the Aldrich Bay Reclamation which had operated since October 1995 but that point was just temporary. The one near the subject site was permanent. 'If the QBBP (Quarry Bay Barging Point) is not accepted, it will end up with no public dumping facilities in Hong Kong.' (para. 28)
The Town Planning Board's views about accessibility were as follows: (a) The proposed office building would sit alone on the waterfront of Quarry
Bay.
(b) One would not reach another building for human occupation until one
reached Lei King Wan which was approximately 1 km to the east. (c) To its north the site was 'cut off by the sea', to its south 'cut off by the
Island Eastern Corridor' (IEC). (para. 35)
(d) It was about '8 minutes' walk from Quarry Bay MTR Station (which
exit?).' (para. 35) (brackets mine)
(e) 'The occupancy rate of office developments near Tai Koo Shing indicates
the importance of proximity to an MTR station.' (para. 35)
Reasons for Decision:
The Appeal Board dismissed the appeal. In this case, the appellant won on the grounds of 'planning intention' but lost all others, especially the point regarding 'compatibility'.
The Approach
The Appeal Board first discussed the proper approach to take. It was reported that the Appeal Board had noted and accepted:
(a) Henderson Real Estate Agency Ltd. v Lo Chai Wan [1997] HKLRD 258
at 266A
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Lord Lloyd of Berwick pointed out:
"The Appeal Board were, of course, entitled to disagree with the Town planning board. Their function was to exercise independent judgment.' (para. 20)
(b) Town Planning Appeal No. 16 of 1993 (The Naturaluck Case)
Panel Chairman Mr Roger Tang, QC stating:
... we believe our approach should be that planning permission should be granted unless there are good reasons for refusal.'
(c) The submission of counsel for the respondent that 'the application for the I-O Building must be clearly distinguished from the application now under appeal. Whilst both applications share the same starting point, a site zoned as "Industrial", each application has to be considered in the light of the relevant guidelines issued by the TPB for such application.' (para. 22)
The Planning Intention Point: The Appellant Was Right
Having considered the planning history of the site as being zoned Industrial since the first OZP was in place, the submissions of the appellant and the DPO, and noting the facts that (a) the DPO failed to provide particulars to support his assertion; and (b) Industry Department did not object to the application, the Appeal Board disagreed with the Town Planning Board in the first reason which the latter had given for rejecting the application.
The application was not considered by the Appeal Board to be against planning intention.
Market Demand: The Appellant Evidence Was Not Convincing
The appeal Board was not convinced by the appellant's submission as: (a) several commercial/office buildings were being constructed along King's
Road;
(b) a report in the 20 April 1997 edition of the Sing Tao Daily News indicated that three commercial buildings in the area would offer 220 000 square feet (Hong Kong Telecom Building); 300 000 square feet (Tai Cheong Street) and 600 000 square feet (Tai Koo Shing) would be shortly available in the market.
The Accessibility Point: The Respondent Was Right but This Was Not Too Important
The Appeal Board shared the Town Planning Board's view that the appeal site was at a relatively isolated location and agreed that transportation and supporting facilities are not within easy reach'. (para. 36)
However, 'we would therefore attach some but not heavy reliance on this factor in rejecting this appeal.' (para. 37)
Planning Appeal Cases
The Compatibility Point: The Respondent Was Right
461
The Appeal Board considered that the proposed development was 'incompatible' because of the following:
(a) EPD's opinion had no benefit of ‘an environmental impact assessment'
(EIA). (para. 30)
(b) EPD's assessment was on the basis that 'the target recipient outside
the building'. (para. 30)
(c) 'No account was taken of the receipts outside the building.'
(d) Mr Lee's point about 'workers outside the building' was accepted. (e) The two examples given by Mr James Wong were 'of limited assistance'. (para. 31) Fortune Gardens was next to a landfill site which was closing down. Dumping at Pak Shek Kok was by means of open bottom barges.
(f) The Biotechnology Centre had attracted a favourable environmental impact assessment as per a letter dated 9 February 1996 from the Secretariat to the Chinese University of Hong Kong. "This letter serves to highlight the point that the normal EPD standards may not be sufficient.' (para. 31)
(g) I-O buildings might have a heavy industrial orientation.
Comments:
The Appeal Board in this case had been poorly advised. It is strange that the respondent had approved an I-O on the site but yet later insisted that an O building should not be built without any substantiated grounds on planning intention. Either the respondent had erred in approving the I-O (and hence this appeal should also be dismissed on similar facts) or the Appeal Board had been poorly advised to dismiss the case on the grounds of 'incompatibility', which was solely defined in terms of the dust impact upon the 'workers outside the building'. The issue was not whether an O had to be approved, but that some, if not all, of the reasons for approving and disapproving an I-O were also those for the I-O proposed. The counsel for the respondent was wrong in misleading the Appeal Board by referring to the so-called distinction fabricated with the applicable guidelines. It was because both I-O and O contained O elements. A planner can hardly concede that those working in the O of an I-O should be treated differently from those in the O of an exclusively O building. A worker, white collar or blue collar, is always a sensitive user.
[Caveat: My comments are made on the face of the record. Readers are advised to consult the records of the planning applications for the O and I-O buildings deposited with the Planning Department. Particular attention should be paid to the actual physical encroachment, if any, onto the barging point by the proposals.]
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Why Oil Depots in the First Place?
A PHI in the site would create potential danger to the users in Quarry Bay Park, Canossa College, Tai Koo Shing and the EHC.
Were Civil Engineering Department's Views Ultra Vires?
The CED was not the EPD. Its views about the environment should not prevail over those offered by EPD. In the absence of any reference to technical planning standards and guidelines, the CED's views were at best personal and at worst ultra vires. Its views should have been confined to securing the site designated for barging point against encroachment by focusing on other uses, their activities, and these efficient and safe operation, rather than on their compatibility with other uses.
Really too far away from MTR Station?
The Quarry Bay Mass Transit Railway (MTR) Station has two exits which are at different distances from the subject site. The Model Lane exit is the nearest, whereas the Fannie Street Exit is much farther away.
Travel times were given. A good professional advice should have covered the actual walking distance as measured on a large-scale (say 1:1000) plan.
The Isolation Argument
It makes no sense in planning to claim that the proposed office building would sit alone on the waterfront of Quarry Bay. It should not be used as a reason for objection in terms of land use mix, commuting or build forms. I can hardly appreciate the point that the Town Planning Board attempted to achieve here. The proposed development was definitely less solitary than the existing K-Wah Building along Java Road, which was developed on the site previously occupied by Nedlloyd Shipping Company.
It is also twisted to claim that one would not reach another building for human occupation until one reached Lei King Wan, which was approximately 1 km to the east. Why should the distance be measured along the coast from Lei King Wan? The same could have been applied to the office towers along the Island Eastern Corridor in the Tai Koo Shing area. The subject site was, as a matter of fact, close to the funeral parlour as well as residential precincts in the area. Furthermore, the site was not that far away from Tai Koo Shing to which pedestrian access could be obtained via the Quarry Bay Park. To cite 1 km to Lei King Wan ‘along the coast' was literally true but conceptually misleading and unhelpful.
There was no planning policy to ensure that offices had to be built in the vicinity of major housing areas. The real policy was that major offices should be at or near major transport nodes, notably the MTR. In this case, the proposed office was not in the immediate vicinity of housing
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areas and hence it would not generate direct traffic impact on housing. Compare this case with the Luck Gain case, ante, in this respect.
In measuring the walking distance away from MTR station, a 8-minute walk is acceptable as it is with the planning standards of 15 minutes. To reach the site from the Model Lane exit, the pedestrian would roughly travel the same distance as walking from Star Ferry Central to Central MTR Station. The time taken to walk from Sun Hung Kei Centre at Gloucester Road to Southorn MTR Station would be more than 20 minutes. To label the subject site as being 'cut off, though metaphoric, makes no sense in planning. Accessibility of modern offices in Hong Kong relies on road and pedestrian accesses. The availability of both such accesses were undisputed. In fact, the IEC as a highway could not have direct access to any site along its entire trunk.
The argument of passing through warehouse, godown and funeral parlour is grossly irrelevant. These facilities are non-polluting and non- hazardous. The officers of the Planning and Lands Departments with effect from March 1998 have to walk past such facilities too when they move into their new headquarters along Java Road near the funeral parlour. In fact, the introduction of more offices would reduce the derelicity of the local business in the Java and King's Road area.
The view that 'transportation and supporting facilities are not within easy reach' ignores the potency of the private market to provide such facilities to meet demand! In fact, major office developments have rejuvenated the Wanchai and Quarry Bay residential areas, and their real problems are that they push up rent for the lower-income households in the so-called process of 'gentrification'. The Appeal Board was, however, not advised of this more substantial planning issue; rather, it was persuaded to focus on trivial issues such as supporting facilities. Indeed, the office and hotel developments along Java and King's Road, which were noted by the Appeal Board, would provide some of these facilities.
The argument claiming that 'the occupancy rate of office developments near Tai Koo Shing indicates the importance of proximity to an MTR station' is superfluous as the subject site was close to MTR station. While the statement is of course true, an office area is not solely dependent on the MTR. The Tsimshatsui East office area is farther away from the Tsim Sha Tsui MTR Station than is the subject site from the Quarry Bay Station.
The arguments of the respondent were weak as far as accessibility was concerned and should be interpreted with great care by students in planning. The Appeal Board was correct to have attached little weight to these arguments.
I-O Compatible and Accessible, Office Not?
The appellant in this case had much to grieve. The application was
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abjudged not against planning intention but was considered incompatible with the barging point. The respondent's counsel succeeded in imparting an artificial distinction between Commercial and I-O — a distinction that, as explained below, made little planning sense. Had the barging point been that significant, then all Column 2 uses under the same zone would have to be compatible with it.
Furthermore, recall that in the Lucky Gain case, the traffic generated by an Office Building (again as opposed to a pure I-O) was considered potentially incompatible with a sensitive use (school). Here, the development was relatively well buffered and yet it was considered incompatible, without clarification, with a G/IC use.
The argument claiming that 'no account was taken of recipients outside the building' is unreasonable because of the following reasons:
(a) The respondent appeared to have neglected the government policy which stated that major waste disposal facilities, such as sewage treatment plants, would attract an impact assessment. Such assessment results would become inputs to statutory zoning. It is unfortunate that a relevant consideration had not been made: Had the EPD carried such an assessment? It was simply presumed that the EPD had not. (b) No explanation was given as to why open bottom barges were not applicable for the barging point in question, if they reduced dust pollution.
(c) The argument claiming that 'EPD's standards may not be sufficient' is unreasonable for planning purposes because, as a matter of government policies, the HKPSG should be followed. An unnecessarily high standard for a dump site is inequitable, though higher standards for nuclear waste or biotechnical waste/operations is justifiable in exceptional circumstances.
(d) The argument claiming that I-O buildings might have a heavy industrial orientation is speculative. One may also speculate that the proposed office would be highly automated with very few workers, say two per storey! This is of course exaggerated. The point is that the Appeal Board should have been provided with more details about the grounds of supporting the approved I-O building and its planned uses, and the anticipated employment generation of that approved scheme. (e) Dumping vehicles are unlikely to be operational during office hours, lunch hours, and after the workers are off duties. Time restrictions can be instigated in such hours.
(f) If the argument was sound, developments along the entire route(s) of
the dumping vehicles, including the existing I-O and I buildings should have been closed down!
(g) If the site was developed into a factory according to the leases and under Column 1 of the OZP, it would attract workers, just as a developed I-O buildings would attract both industrial and office.
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workers. However, would these workers deserve a less clean environment if the environment really became intolerable for the workers of the office building? To reiterate, all workers, blue collar or white collar, are sensitive users.
(h) The argument against the absence of an EIA is self-incriminating. If the EPD's assessment was indecisive because there was no EIA, then where was the EIA result of the respondent which led to the conclusion that the environment was that bad?
(i) The numerical difference of 300 between 3000 (for O) and 2700 (for I- O) workers is meaningless. Even if the I-O had 300 workers, the I-O should not have been approved if the barging point was really polluting!
(j) If compatibility means 'environmental compatibility', then the EPD's view is decisive. The EPD's views were definitely informed by the relevant chapter in the Hong Kong Planning Standards and Guidelines (HKPSG), and were also approved by HKPSG as a policy document that binds all the government departments and developers. If an I-O was compatible with and not sensitive to a barging depot, an O building would also be the same. To argue the otherwise would be an amazing proposition for the planning profession.
'If the QBBP (Quarry Bay Barging Point) is not accepted, it will end up with no public dumping facilities in Hong Kong.'
From the transcript, it is difficult to understand just why approving the application would render the QBBP in-operational. Was the QBBP designated for the G/IC zone portion of the subject site?
The argument accepted by the Appeal Board was one of 'incongruity', i.e., incompatibility. Yet, just what is the substance of this incompatibility? What exactly did the Appeal Board mean by 'the impact' (para. 31) from the operational of the barging point? Does it mean that the traffic generated by the point would saturate the local roads and hence could not accommodate an Office Building (but could accommodate an I-O Building)? Does it mean that the officer workers would suffer from the operation of the barging point? The transcript does not elaborate on this decisive point.
The leading counsel of the appellant had hard-pressed the DPO for substantiation of the planning intention point. However, it was not recorded that similar request had been made in respect of Mr Chan Chi Yan, granted and without disputing that (a) there was a public need to have a barging point and that (b) O and I-O buildings had different sets of planning criteria according to different Town Planning Board Guidelines.
Questions:
1. What has happened to the site?
(See Photograph 15)
2. What has happened to the barging point?
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Photograph 15 Subject Site of the Fine Tower Case in May 1998
References:
Guidelines:
Hong Kong Planning Standards and Guidelines Chapters, 1, 3, 5 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.
(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.
Planning Appeal Cases
467
(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 YOLANDA FAN CASE
•
Case Name: Flats 4 and 5, 13th Floor, Yick Fat Industrial Building, Nos. 1048-1056 King's Road and Nos. 2-32 Yau Man Street, Quarry Bay, Hong Kong Island [the Yolanda Fan Case]
Planning Appeal Case No. : 01/96
Similar Cases: cases nos. 05/95,
[the Planet Universal,
Cases]
regarding visits of the Appeal Board to the subject site;
>
and 04/96 [the and Container System Cases] regarding application for a use which is an 'existing use' on part of the site; 13/93, 14/93, 16/93, — and 12/96 [the Henderson, Naturaluck, So Cho and Rightlane Investment Cases] regarding successful
Cheung,
appeals.
Nature of the Case: a case allowed; temple in a Residential Group (A)
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(R(A)) zone; an extension of a use that had been existing prior to the publication of an OZP to another flat; visit by Appeal Board members.
Date of s. 16 Application: 24 March 1995
•
Date of Hearing: 17 July 1996
•
Date of Decision: 30 August 1996
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Mr Gerald Wu for the Town Planning Board
(b) Mr Lee Tin Yan for the appellant
•
Decision: Appeal allowed
Rules Laid down by the Decision:
(a) An 'unauthorized use' existing at the time of application should not
prejudice its chance of obtaining planning permission.
(b) Complaints by neighbours about nuisance created by a proposed use are not sufficient grounds to reject an application for that use or an expansion of it.
Background:
The subject flats were Numbers 4 and 5 on the 13th floor of Yick Fat Building, Nos. 1048-1066 King's Road and Nos. 2-32 Yau Man Street, Quarry Bay (the building). The building was built in 1972. It was 20- storey high with 717 flats.
The Appeal Board noted the fact that Flat No. 4 had been operated as a Chinese temple, 'Kwok Wah Lin Che' since 9 December 1972. This temple was run by the appellant's brother.
The building became falling within a 'Residential (Group A)' (R (A)) Zone in the draft Quarry Bay Outline Zoning Plan No. S/H21/9 (the OZP) which was published in the gazette on 29 October 1976. Since then, planning permission was required for new 'religious institution'. Flat No. 4 was permitted as of right to remain a temple.
The appellant's brother acquired Flat 5 on 21 February 1989 and used it also as a temple without planning permission.
The appellant's brother died on 24 October 1994 and the appellant became the sole executor of the will of his deceased brother.
The appellant made a s. 16 application for the use of Flat 5 also as a temple.
The application was rejected by the Metroplanning Committee of the Town Planning Board on 19 May 1995 and again, after a s. 17 review.
Planning Appeal Cases
Arguments:
The appellant argued that:
469
(a) he would comply with seven conditions which would reduce the potential nuisance generated by the rituals and activities of the temple (details see para. 13 ); such conditions would apply to both Flats 4 and
5:
(b) he had ceased to burn ritual papers, stopped using incense coils, and keep visitors' activities away from the public corridor shared by his flats and other flats on the same floor;
(c) he would be pleased to invite the Appeal Board to visit his temple; (d) Mr Wong Lap Ki of Townlands Consultants testified that he could not
find major nuisances relating to the temple (details see paras. 20–23); (e) counsel for the appellant, in a very helpful submission, drew our attention to the fact that under the relevant plan, users always permitted on the upper floors of this building include: "private club"'.
In rejecting the application on a s. 17 review, the Appeal Board held that (para. 12):
The proposed development is incompatible with the predominantly residential use of the building as the use, involving the holding of ceremonial activities and burning of ritual papers, will generate nuisance and disturbances to other residents of the building.
The respondent found a resident living in Flat 6 and another in Flat 31 (?) on the 13th floor. The former complained that smoke was a nuisance and the latter complained that tables and chairs were blocking the narrow corridor.
A member of the Management Committee, who did not live in the building, testified that there had been complaints against the temple due to noise and smoke. Besides, as many visitors came and went, the security provided by a combination lock at the main entrance would be defeated.
• Reasons for Decision:
The Appeal Board allowed, after the site visit, the appeal on condition that (a) the permission would last for two years only; and (b) the planning conditions undertaken by the appellant would apply to both Flats 4 and 5.
The reasons for allowing the appeal were as follows:
A Temple Was No Worse Than a Private Club
The counsel for the appellant was right as 'he rightly pointed out that a private club would be as objectionable as a temple as security is concerned.' (para. 29)
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A Temple Could Exist in Flat 4 Anyway
To refuse the application would not help the fact that Flat 4 was an existing use. It was better to control both flats by planning conditions and make the appellant behave properly within the specified period.
Comments:
This case was reasonably decided. The permission in fact was not 'permissive' as the appellant ran the risk of losing its existing rights.
Would Flat 4 Be Extinguished as an 'Existing Use' after the Appellant Accepted the Planning Conditions?
A better view is that the existing use would be extinguished once it was permitted together with another flat on a set of planning conditions applicable to both flats.
Why Planning Application Made?
The existing Town Planning Ordinance does not have enforcement powers on uses without planning permissions other than those areas where Interim Development Permission Area (IDPA) Plans have been or were in place. It was thus curious just why this case came before the Town Planning Board in the first place.
This case also seemed to indicate that either (a) that retrospective approval was possible; or an 'unauthorized use' should not prejudice planning approval. The latter possibility is obviously contradicting the decision in the Pak Kong series and the Wong Yee Fai (2) cases.
Was a Private Club Viable in Yick Fat Building?
Would a private club next to an existing temple be likely to take place in a single flat on that building in Quarry Bay? Would the Fire Services Department or the Urban Council be prepared to grant the necessary licence? The counsel for the appellant's submission raises more questions for the Appeal Board than helping it. In this case, the 'so be it' attitude in the Planet Universal case was absent, correctly.
Relevance of Private Property Rights
Was there a Deed of Mutual Covenant (DMC) or Crown lease clause that restricted religious practice? The Appeal Board had not been recorded to have been advised of such matters.
Unauthorized Development
This case involved both ‘non-conforming' uses that were not authorized by the OZP and complaints by neighbours. The approach contrasts with that
Planning Appeal Cases
471
which is generally taken in cases involving suspected unauthorized development in the New Territories.
Questions:
1. What were the user clauses in the Crown lease?
2. What has happened to the temple now?
(See Photographs 16a and 16b)
3. Was the planning permission renewed?
4. What was the status of the member of the management committee
who did not reside in the building?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2 and 9.
Photograph 16a
The Corridor Leading to the Premises of the Yolanda Fan Case in May 1998
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
出
Photograph 16b
Photograph 16a & 16b Subject Premises and Site of the Yoland Fan Case
in May 1998
THE CONTAINER SYSTEM CASE
Case Name: Lots 1824 ARP, 1824 BRP, 1824 C and 1849 in DD 125 and government land at Ping Ha Road, Ha Tsuen, Yuen Long, New Territories [the Container System Case]
Planning Appeal Case No. : 04/96
Similar Cases: cases nos. 01/96, -the Yolanda Fan, - Case] regarding joint application for a use which is an 'existing use' on a part of the subject site;
17/93, -the Shun Fat Container,
open storage of containers;
Cases] regarding application for
07/92, 18/92, 19/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 10/94, 11/94, 12/94, 14/94, 02/95, 05/95, 07/95, 08/95, 16/95, 18/95, 21/95, 26/95, 28/95, 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 Ling, Wong Yee Fai (2), Fine Tower,, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statement 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,
Planning Appeal Cases
473
09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, 21/95, 26/95 and [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, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and -, Cases] regarding appeals stated explicitly to be against planning intention;
03/92, 12/93, 13/93 and [the Wo Yi Hop Road, Yook Tong Estate,
Henderson and Cases] regarding award of costs; 03/92, 07/92, 15/92, 18/92, 19/92, 13/93, 16/93, 14/94, 28/95 and [the Wo Yi Hop Road, Full Look, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Sanyear Investment, Fine Tower and Cases] regarding adverse environmental impact; 13/92, 18/92, 19/92, 17/93, 19/93, 01/94, 19/95, 21/95, 26/95, —, [the Pak Kong, Kingspeed Engineering, Kun Kee Motor, Shun Fat Container, Ever Need, Tang Sai Hung, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2), Cases] regarding unauthorized development.
Nature of the Case: development in Undetermined (U) Zones; planning intention as located in Explanatory Statement; open storage of containers; Twenty feet Equivalent Unit (TEU); applied uses existing uses on a part of the site; unauthorized development; visit to the site by the Acting Governor, traffic impact, bad precedent; award of costs; reliability of the proposed control of TEUS; Railway Development Strategy (RDS); photographs; planned and actual capacity of storage of a site; Task Force (Black Spots), Lands Department.
Date of s. 16 Application: 23 February 1995
•
Date of Hearing: 2-4 October 1996
·
•
Date Of Decision: 29 October 1996
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Ms Adela Au for the Town Planning Board
(b) Mr James Lee for the appellant
•
Decision: Appeal dismissed (award of costs refused)
•
Rules Laid down by the Decision:
(a) Award of costs to successful party should not in general be ordered. 'It has not been the practice of the Appeal Board to award costs to a successful party. This practice is ripe for review. But until a new policy has been adopted, we believe, in the circumstances, we should not order costs against the appellant.'
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(b) Application for open storage of containers on a site containing existing use shall be considered in terms of the 'capacity' of the site, calculated on the basis of the actual density of containers on the existing use site, rather than the proposed levels applied for in the s. 16 application.
Background:
With a total area of about 21 397 m2, the subject site comprised of Lots 1824 ARP, 1824 BRP, 1824 C and 1849 under Block Crown Lease as 'agricultural land' in DD No. 125.
The Appeal Board noted that a piece of land (the yard) adjacent to the subject site had been used for open storage since 1993. That site had a capacity for about 3500 TEU.
The subject site became zoned as part of an Undetermined (U) Zone in the draft Ha Tsuen Outline Zoning Plan No. S/YL-HT/1 (the OZP), which was published in the gazette on 10 June 1994.
On 23 February 1995, the appellant made a s. 16 application for using the subject site as an extension to the existing yard for open storage of containers for three years. It was recorded that the total TEU of the joint site would remain at a level of 3500 TEU.
The application was rejected by the Rural and New Town Planning Committee (RNTPC) of the Town Planning Board on 11 April 1995 in the first instance.
The application was again rejected by the Town Planning Board after a s. 17 (1) review on 24 November 1995.
On 6 March 1996, the appellant appealed to the Appeal Board under s. 17 B.
Arguments:
The appellant's submission was as follows:
(a) Mr Leslie Au Po Choi gave evidence. Mr Au had 26 years' experience in running container depots. He had been Chairman and was Vice Chairman of the Hong Kong Container Depot and Repairer Association. He had represented the Association in various working parties or meetings organized by the government, such as the Central Container Handling Safety Committee organized by the Labour Department and the joint Liaison Meetings by the Task Force (Black Spots) of the Lands Department. He gave the following evidence:
(i) He was eager to improve the container depot working system
and the safety of the staff working in the depot.
(ii) The appellant paid rent of about $1 p.s.f. per month for the site so as not to increase profit but to have a model container storage yard.
(iii) The appellant had introduced a more expensive container stacker system in place of the traditional mobile or tower crane to improve the environment and safety of the workers. The
Planning Appeal Cases
475
stacker system was at a cost of $9 per day per TEU and the conventional mobile cranes just $6. The container stacker system required more manoeurving space and the maximum height was limited to 7 tiers. It was also more expensive. If traditional mobile cranes were used, capacity could almost double and they could stack containers to 11 tiers.
(iv) The inclusion of the subject site would not increase the volume of containers, as the increase in the floor area would be set off by a reduction in the storage area and the lowering of the tiers of containers.
(v) He hoped that the site would become a model container storage yard. It used to be a model as it had been visited by the Acting Governor on 1 August 1996.
(vi) Regarding the photographic evidence showing that the subject site and the existing depot were intensively used for container stacking, Mr Au explained that for the previous two years there was another operator using the site though the appellant owned 30% of its shares. The subject site and the old depot had been under separate management but there was an oral agreement: the appellant would take over the site if the appeal was allowed. The appellant had no control of the subject site at the time of the appeal as he only had 30% of the shares. (vii) He produced figures on the average daily number of empty container storage. On Tuesdays, the average daily number was just over 3600 whereas on Mondays, 3570 boxes.
(viii) He produced a chart showing between September 1995 and August 1996, an average of just over 3900 to below 3200 boxes. (ix) On request of the Appeal Board, he produced the daily figures
between September 1995 to June 1996.
(x) The daily figures on 23 September 1995 were 5476 and on 13 June 1996, 5490 boxes. He explained that he had no control of the subject site then. As the s. 16 application had been unsuccessful, there was no point of keeping the number down to 3500 boxes.
(b) Mr Au and Miss Betty Ho stressed that other measures (such as noise barriers and hard surfacing of the depot) adopted for the proposed joint site would improve drainage, reduce visual impact and minimize dust. More parking spaces, waiting areas and more room for manoeuvring would reduce street parking or congestion along Ping Ha Road.
(c) As shown in a proposed Layout Plan, the proposed expanded container depot would have the container neatly spaced out and there would be much spare room for manoeuvring.
(d) Miss Betty Hoi, a town planner, and Mr Albert Kwong, a transport planner, gave evidence about the potential impact of the enlarged depot.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
In rejecting the application on a s. 17 review, the Town Planning Board held the following reasons (para. 6):
(a) The proposed development was not in line with the planning intention of the 'Undetermined' zone on the draft Ha Tsuen Outline Zoning Plan which was to safeguard the proposed railway alignment as suggested by the Railway Development Study as well as proposing appropriate forms of development alongside. There was insufficient information in the submission to demonstrate that the proposed development would not cause significant impact on the environment and was compatible with the rural characteristics of the area.
(b) The turning movement of long vehicles in and out of the depot in either direction of Ping Ha Road would interrupt traffic flow of the road and would also pose road safety hazards both to drivers themselves and other road users.
(c) The approval of the application would set an undesirable precedent and induce similar applications in the vicinity of the subject lots to follow suit which would have significant adverse cumulative effects on noise, road safety and traffic of the area.
For the respondent, Mr Wong Nai Kwong, Senior Traffic Engineer of the Transport Department, explained to the Appeal Board that with an almost doubling of the area, the number of TEU stored could easily double.
Mr Michael David Geeves, Chief Inspector of Police, said that on occasions he visited the storage area, he found the site 'fully utilised as storage area, with stacks of up to 6-7 containers'. (para. 26) He considered that the condition of the access roads in the area was such that increased storage capacity would create additional container traffic. That was considered unacceptable.
Counsel for the respondent pressed for costs.
Reasons for Decision:
The Appeal Board came to the view that reason (b) of the review decision was no longer applicable as a new proposal regarding the entrance to the subject site was considered satisfactory.
The Appeal Board dismissed the appeal but denied the request by the respondent for costs. 'It has not been the practice of the Appeal Board to award costs to a successful party. This practice is ripe for review. But until a new policy has been adopted, we believe, in the circumstances, we should not order costs against the appellant.' (para. 30)
Before deciding the case, the Appeal Board examined the environment and identified the 'planning intention' for the site from the Explanatory Statement to the OZP.
Planning Appeal Cases
Environment of the Subject Site
477
The surrounding areas of the subject site were found to be described as follows (para. 8):
(a) To the south of the site was a piece of agricultural land still under cultivation and some ponds. Further south and southwest were areas occupied by other open storages and vehicle repairing workshops, some of which had been in existence before the gazetting of the Ha Tsuen Interim Development Permission Area Plan.
(b) A container depot, from which the subject container depot was extended, was located to its immediate west. The southernmost position of this container depot was an unauthorized development whilst the rest was an existing use.
(c) Further east across Ping Ha Road were villages including to Uk Tsuen,
Sik Kong Wai, Sik Kong Tsuen and Ha Tsuen Shi.
(d) Tin Shui Wai New Town was located to its east across a nullah. (e) Some open storages and industrial undertakings were located to its
further north and northwest across a drainage channel.
(f) The site was served only by Ping Ha Road via the open storage to the
immediate west.
The Appeal Board saw photographic evidence of the use at the subject site during the visit of the Acting Governor in June and August 1996.
The Appeal Board came to the view that during the Governor's visit, the layout of the subject site resembled what was shown on the proposed Layout Plan. In other words, the proposed use was already occurring on the subject site.
From the photographs of June and August 1996, neither the subject site and the existing yard were used as envisaged in the proposed layout. The photographs showed that the subject site and the old yard were 'tightly packed with stacked up containers'.
The Planning Intention
The subject site was noted to be zoned U, as explained in para. 8.12.1 of the Explanatory Statement to the OZP, because (para. 9):
this areas would be traversed by a proposed rail link as recommended by the Railway development Study. The proposed land use in this zone will be subject to the finalisation of the above mentioned project.
The 'planning intention' for the U Zone was recorded to be found in para. 8.12.2 of the Explanatory Statement to the OZP (para. 10):
Under the 'U' zone, any private developments or developments are required to prepare master layout plans for approval of the Board to
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
ensure that infrastructure, G/IC, open spaces etc. are adequately provided. The Master Layout Plans should also take into account the possible railway proposal as suggested by the Railway Development Strategy (RDS) being finalised. The type of development should be compatible with the surrounding rural characteristics of the area.
Appellant's Submissions Were Problematic
The Appeal Board rejected all submissions of the appellant. In short, the Appeal Board did not believe in the appellant's ability, or trustworthiness, to deliver its proposal.
(a) The evidence submitted by Miss Ho and Mr Kwong was based on the assumption that the total number of containers on the subject site would remain the same as that on the old depot even though the total area would increase substantially.
We cannot proceed on the basis that if planning permission is given, the Site will necessary be used together with the Yard or that the number of TEU stored at the combined Site and Yard will remain the same. Nor do we think we can impose effective conditions which will ensure compliance. (para. 23)
(b) Mr Au's explanation about the daily figures was 'unconvincing'. (para.
25)
(c) The evidence provided by Mr Wong was accepted.
(d) The evidence provided by Mr Geeves was accepted.
(e) Mr Siu's evidence was based on the assumption that the storage capacity would not be increased, and such assumption was based on Mr Au's evidence, which the Appeal Board did not accept.
Against Planning Intention
To conclude, we are of the view that it would be contrary to the planning intention stated in ES [Explanatory Statement], 8.12.2, to permit the Site to be used for open storage of containers, albeit only for 3 years. Given traffic and environmental constraints, we do not believe it was intended that an area zoned “U” should be used for open storage of containers. These are areas specifically zoned for that purpose. The area zoned “U” is only “undetermined" because of the possible impact of railway development. We believe 8.12.2 made it clear that open storage is not intended. (para. 28) (square brackets mine)
Adverse Traffic Impact
We are also of the view that the additional container traffic will have an appreciable adverse impact on traffic, and for that reason also, the appeal must be dismissed. (para. 29)
Planning Appeal Cases
•
Comments:
What Was the True Planning Intention?
479
Was open storage of container storage for three years an item in Column 2? How could a temporary use possibly pre-empt the future of a zone of which its use was 'undetermined' at the time of the application?
Planning Application and Planning Survey: The Planned/Applied versus the Actual Capacity of Storage of a Site
It seemed that the Appeal Board here was not deciding on the merit of the application, but on the merit of the appellant, which went back on its rule made in the Henderson case.
By insisting that the actual storage of the depot would double, the Appeal Board seemed to have either ignored that the appellant was ‘applying for a level of storage much lower than its prevailing use, or considered that the appellant was not reliable in fulfilling the promises made. Neither was satisfactory as 'reasons' against an application.
The Appeal Board and the Town Planning Board are to deal with proposals contained in the planning application for, the subject. The history of the site might be a relevant consideration and it is important for planning enforcement purposes. Yet, using the history of the site as a reason against an application means that the Planning Boards doubted the credibility of the applicant. This seems defensible as it was a matter of pragmatic and careful planning. Yet, it raises indeed a more serious question regarding equity and fairness. What are the rules for determining reliability? In the Henderson case, the Appeal Board warned against the tendency to mistrust an appellant. Here, the mistrust was decisive.
Why Was the Yolanda Fan Approach Not Followed?
The Appeal Board did not use the approach to the Yolanda Fan case here. If that approach was used, the Appeal Board would have been able to compel the appellant to use both pieces of land at a desirable level and modes of usage (including time restrictions, landscaping and types of machinery) as planning conditions for a definite period of three years or less. Durng this period, the appellant had to demonstrate his 'sincerity' and 'effectiveness' by producing a model depot. Should he fail to do so, he would be in breach of the licence and subject to immediate enforcement actions. This might seem to be impractical. However, considering the fact that the appellant was entitled to stick to the maximum usage of the 'existing use' lot, this approach might be more desirable in the long run.
Questions:
1. What has happened to the site since then?
2. What has happened to the indetermined' setting of the environment?
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•
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.
THE LEUNG WING-NIN CASE
Case Name: Lot 349 BRP (part) in DD 114, Kam Tin Road, Pat Heung, Yuen Long, New Territories [the Leung Wing-nin Case]
Planning Appeal Case No. : 08/96
Similar Cases: cases nos. 18/92, 19/92, 11/94, 26/95 and
[the Kingspeed
Engineering, Kun Kee Motor, Wong Yee Fai (1), Wong Yee Fai (2) and Casel regarding workshop uses.
Nature of the Case: application for workshop in Open Storage (OS) Zone; a use applied for which is neither a Column 1 or 2 use.
•