(c) Active use of planning conditions
In this case, the Appeal Board (i) stipulated ten conditions; and (ii) amended a condition suggested by the Water Supplies Department which needed to be incorporated into the new lease and was not well received by the DLO. The activism of the Appeal Board was definitely a welcome sign. It is submitted that the Town Planning Board had obviously failed to properly exercise its discretionary power to enable an acceptable planning proposal to realize without harming the environment.
Any Difference in Treatment of PFS applications from That in the Shell Hong Kong Case?
The Shell Hong Kong case concerned a Village Type Development Zone, not an Unspecified Use Zone. However, PFS was similarly a Column 2 use in that case. It is my view that if the approach in this case had been adopted in the Shell Hong Kong case, the decision would have been different.
A Road as a Buffer?
The reference to Kam Tin Buffer as an object that separated the PFS from village houses at Hang O Po Village was misleading. The key point here should be the minimum distance from the PFS to the nearest cluster of relevant village houses. That description gave a false impression that a road was an effective environmental buffer, which was often not the case.
Questions:
1. What exactly was the so-called 'technical reason' that had prevented the village house from being assigned to the appellant? Was it related to the Small House Policy?
2. Lam Tsuen Road was a narrow road. What was the comment of the Transport, Highways or Police Departments who were so vocal in the Shell Hong Kong case?
3. Which gas company is now using the subject site?
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References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 8, 9, 10 and 11.
THE SHUN FAT CONTAINER TERMINAL CASE
Case Name: Lots No. 1797 BRP and other lots in DD 125, Ha Tsuen, Yuen Long, New Territories [the Shun Fat Container Terminal Case]
Planning Appeal Case No.: 17/93
Similar Cases: cases nos. 10/92 [the Treasure Base (1) Case] regarding
time limits of appeal;
and 04/96 [the
>
2
and Container System Cases] regarding
application for open storage of containers; 13/92, 18/92, 19/92,
19/93, 21/95 and 26/95 [the Pak Kong, Kingspeed Engineering, Kun Kee Motor,, Ever Need, Cheung Hing Lung and Wong Yee Fai (2) Cases] regarding unauthorized development and planning intention; and self-incrimination in planning enforcement proceedings by planning application;
13/92, 18/92, 19/92, —, 19/93, 01/94, 19/95, 21/95, 26/95 and 04/96 [the Pak Kong, Kingspeed Engineering, Kun Kee Motor, -, Ever Need. Tang Sai Hung, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding unauthorized development; 04/92, 07/92, 10/92, 15/92, 04 and 05/93, 13/93,
"
08/95, 16/95, 21/95 and 01/97 [the Sung Dynasty City, Full Look, Treasure Base (1), Ultra Force, Treasure Base (2), Henderson, Yin Ning Savings, 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,, 19/93, 01/94, 05/94, 06/94, 09/94, 10/94, 11/94, 12/94, 14/94, 02/95, 05/95, 07/95, 08/95, 16/95, 18/95, 21/95, 26/95, 28/95, 04/96, 12/96 and 01/97 [the Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, 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,, 19/93, 01/94, 05/94, 06/94, 09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, 21/95, 26/95
Planning Appeal Cases
•
"
257
and 04/96 [the OTB, Full Look, Pak Kong, Treasure Base (2), Shell Hong Kong, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding appeals stated explicitly to be against planning intention;
08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93,
"
19/93, 01/94, 05/94, 09/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, and 21/95 [the Yuen To-shing and Yuen Shu-ling, Pak Kong, Ultra Force, Kingspeed Engineering, Kun Kee Motor Treasure Base (2), Henderson, Naturaluck, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans;
05/92, 15/92, 18/92, 19/92, 02/93, 04 and 05/93, 13/93, -, 12/94, 05/95, 16/95 and 22/95 [the OTB, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Bowen Road, and Treasure Base (2), Henderson,, Shun Fat Container, Lai Sun Development, Planet Universal, Arzignano and Lucky Gain Cases] regarding the nature of planning and the market or private interest/public interest.
Nature of the Case: Appeal procedure: lodging an appeal notice and time limits for appeal; Unspecified Use Zone, appellant being suppliers to government contractors, Development Permission Area (DPA) Plan, 'agricultural land', statutory meaning of 'development', material change in the use of land, unauthorized development, planning objectives, planning intention - as contained in the Explanatory Statement to DPA Plan, pollution, cumulative environmental effects, aerial photographs, misleading photographs of Planning Department, traffic access, the Town Planning Board Guidelines, Hong Kong Planning Standards and Guidelines (HKPSG); planning and the market.
Date of s. 16 Application: 25 November 1992
Date of Hearing: 21–24 March 1994
Date of Decision: 9 May 1994
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Mr Robert Law for the Town Planning Board
(b) Representation for the appellant was not indicated in the decision
•
Decision: Appeal dismissed
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•
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Rules Laid down by the Decision:
(a) As a matter of policy, planning applications for uses which are unauthorized developments under planning enforcement legislation should be turned down and not even temporary permission should be granted for such ad hoc uses would dictate the land use of the area. (b) A notice of appeal wrongly addressed to the Town Planning Board but delivered correctly to the Appeal Board's address is still valid if it was delivered within the time limit, even though the Appeal Board actually received it after the deadline.
(c) The fact that a notice of appeal asks for a stay of enforcement action pending the determination of the appeal does not rob it of its effect as a notice of appeal pursuant to section 17B.
Background:
The subject site was reported to fall within an 'Unspecified Use' Zone in the approved Ha Tsuen Development Permission Area (DPA) Plan No. DPA/YL-HT/2 published in the gazette on 12 July 1991. The 'object of the plan' was revealed in paras. 2.1 and 2.2 whereas and the 'need for planning guidance and control' was stated in paras. 5.1 to 5.2 of the Explanatory Statement. The Notes to the DPA Plan did not permit storage of containers as of right and hence planning permission for such uses was necessary — unless they were ‘existing' immediately before the publication in the gazette of the Interim Development Permission Area Plan (the IDPA Plan) on 17 August 1990.
Paragraphs 2.1 and 2.2 of the Explanatory Statement, under the heading 'Object of the Plan', read:
2.1. The object of the plan is to delineate the extent of the Ha Tsuen DPA and to set out the types of development and uses which are permitted at all times and such types of development and uses that may be permitted with or without conditions by the Board on land within the Area.
2.2.
The Plan is to provide guidance for planning and to facilitate development control within the Area during the period required for detailed analysis of land use pattern, study of infrastructure provisions and examination of development options before the formulation of an outline zoning plan. (emphasis by the Appeal Board)
Paragraphs 5.1 and 5.2 of the Explanatory Statement, under the heading 'Need for Planning Guidance and Control', read:
5.1
With the improvement in accessibility provided by the New Territories circular road and the Yuen Long highway, there is a rapid and haphazard proliferation of open storage uses in the area, concentrating along Ping Ha Road and Tin Ha Road. Such uses have prejudiced the planning land use intention in
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5.2
the area. This existing open storage uses in the area include storage of building materials and equipment, timber, used and new motor vehicles, and containers.
The unregulated open storage uses have led to the degradation of the rural environment; directly or indirectly, they have created a number of problems, such as flooding, traffic congestion and visual blight.
259
It was stated in the transcript of decision that on 17 August 1990, aerial photographs kept by the Planning Department showed that a small portion of the site next to Ping Ha Road was under some form of development but the rest of the site was covered with vegetation. It was also alleged that 'since August 1990, the site had been turned into a container terminal, operated by the appellant as its depot B' (para. 4.) The Planning Department took enforcement action under the Town Planning Ordinance against both the appellant and other operators for unauthorized development.
On 25 November 1992, the appellant made a s. 16 planning application for permission to change the use of the site to the open storage of containers. The application included a plan showing proposals for drainage.
The Town Planning Board refused the application in the first instance and again in a review hearing held on 25 June 1993. The appellant then lodged in a notice of appeal by a letter dated 15 September 1993. The letter was headed 're: Notice of Appeal Pursuant to Section 17B of the Town Planning Ordinance'. It referred to the letter of the Town Planning Board of 20 July 1993 and stated that ' . . . we are now exercising our statutory right of Appeal as notified to us by your Department in your letter of 20 July 1993' (para. 7).
6
The appellant's letter was delivered by hand to the address indicated in the Town Planning Board's letter of 20 July 1993 indicated to be the address where the notice of appeal should be lodged, namely 20/F, Murray Building, Garden Road. The notice, however, was addressed to the Town Planning Board instead of the Town Planning Appeal Board. The receptionist on the 20/F did not accept the letter and directed the deliverer to send the letter to the 13/F, where the offices of the Town Planning Board were located. The deliverer did so. The Town Planning Board officers on the 13/F redirected the notice to the Appeal Board office on the 20/F on a data on which the time limit for applying for an appeal had expired.
The notice asked for a stay of enforcement action pending the determination of the appeal.
Arguments:
The appellant argued on the following grounds:
(a) The existing environment of the subject site was unsuitable for the intended planned uses: on each side of the subject site adjoining Ping Ha Road, there was development wholly incompatible with the use of
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
the subject site for low-rise, low-density residential development; such 'agricultural' land remaining at the back of the site was degraded and liable to be used at any time for such unauthorized use as container storage; a nearby pond had become stagnant and fit only for mosquitoes. (b) The two sites adjoining the subject site were not environmentally desirable for residential development on the subject site either. The use on one of these sites had been in existence 'before the publication of the draft DPA and no enforcement action can therefore be taken against the operators; the respondent has not adduced any evidence as to what level of 'existing use' was when development was frozen; quite possibly, containers stepped up to 10 high might be permitted'. (para. 11) As regards the use of the other adjoining site, 'the photographs show an unsightly junkyard, and no enforcement action seems to have been taken: at any rate, none has been effective'. (para. 11) This made the use of the subject site for residential purposes not only wholly unsuitable but arguably positively dangerous.
(c) Had the appeal failed, the container traffic that was generated by Depot B on the subject site would simply be diverted to Depots A and C. Depot B was in fact a reserve facility for these two depots, easing the congestion therein. Neither Depot A nor C was subject to any enforcement action by the Planning Department. From a safety point of view, it was preferable to spread out the container traffic into three rather than concentrating all into just two depots.
(d) Ping Ha Road was a 'flooding black spot' caused by the filling up of low-lying lands and ponds by developments along either side of the road which has blocked natural drainage paths. (It is not clear from the transcript as to whether this argument was used to support the argument against residential development or an excuse for inadequate drainage impact assessment.)
(e) Regarding the respondent's reason of inadequate ‘landscaping and mitigation measures against the visual impact of the development', the submission was that the area has already been so degraded that the planning objective could not, in practice, be achieved anyway. (f) Should the appeal not have been wholly allowed, the Appeal Board should have at least partially allowed it to the extent that, pending the publication in the gazette of the draft OZP, the use of the subject site for a container terminal had to be allowed.
A letter of the Town Planning Board dated 20 July 1993 was sent to the appellant conveying the reasons for rejection (para 6):
(a) "The development is not in line with the planning intention for the
area which is primarily to promote low-rise and low-density residential development so as to be compatible with the adjacent village type development.'
(b) The container vehicle traffic generated from the development has
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261
overloaded Ping Ha Road and caused serious traffic congestion to the local road network.'
(c) "The written submission has not included drainage impact assessment and stormwater drainage proposal to demonstrate that the use of the site will not cause drainage problems and flooding hazards to the surrounding areas.'
(d) "The written submission has not included adequate information on landscaping and mitigation measures against the visual impact of the development on the surrounding areas.'
The respondent argued at the commencement of the appeal hearing that the appeal was ineffective as the notice had not been lodged within the statutory time limit.
• Reasons for Decision:
The Appeal Board considered the respondent's plea that the appeal was invalid but ruled that it had in fact been valid.
The Appeal Was Valid
The Appeal Board explained that the appeal was valid because: (a) ‘The appellant had clearly indicated to exercise its statutory right of appeal and it was sent to the address specified to be the address of the Appeal Board', and (b) 'If the person at the desk (on the 20/F) had opened the envelope, he would have seen that the notice was intended to go to the Town Planning Appeal Board.' (para. 7) The Appeal Board also stated that 'the fact that the notice asked for a stay of enforcement action pending the determination of the appeal did not rob it of its effect as a notice of appeal pursuant to section 17B'. (para. 7)
Having considered the submission of both the appellant and the respondent, the Appeal Board dismissed the appeal on the grounds of planning intention. Other grounds advanced by both the respondent and appellant were regarded as either indecisive or subservient to the main issue of planning intention or enforcement, and in the conclusion of the decision, it was stated: 'We would therefore dismiss this appeal and confirm the decision of the TPB on the first of the four grounds stated in the letter of 20 July 1993, namely, that the development is not in line with the planning intentions for the area'. (para. 28) (italics mine)
In its decision, the Appeal Board gave a lecture on (a) planning intention as well as on the relationship between planning application and enforcement legislation; and (b) the plan and the market. The logic of the Appeal Board in this case as regards (a) was not much different from that adopted in the Kingspeed Engineering or Kun Kee Motor cases. Yet, no equally eloquent speeches were found in those cases. The sentiment of the Appeal Board regarding the role of town planning in a market economy
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
had an intellectual, if the word 'academic' was unwelcome, lineage with that in the OTB or Bowen Road cases. Yet, here, it cumulated into catharsis. The lectures in Shun Fat Container is so important that it is worth quoting the key passages in full below.
On Planning Intention
To put the appellant's case in its highest, it is this: plainly, the land cannot be presently used for the objectives stated in the Explanatory Statement; nor for agriculture; to 'sterilise' the land and require it to lie fallow would be grossly unfair on the landowners, villagers of the district. The appellant goes on to ask this question: What if the OZP should, eventually, designate the site as suitable for open storage: a situation which is not inconceivable as the Planning Department might, in the end, throw up its hands and accept that the planning objective of using the area for high-class housing simply cannot be achieved? (para. 18, following reason (f) of the appellant above) (italics mine)
19.
20.
These, in our judgment, are formidable arguments, and are not wholly counter-acted by the contention that Ping Ha Road is unsuitable for container traffic. If the area were, by its proximity to the border with China, or for any other reasons, highly suitable for use as container depots and related activities, why not widen the road by taking, if necessary, resumption proceedings for that purpose? (para. 19)
Evidence was put before us on the appeal that the Government is currently carrying out studies with a view to identifying the demand for land for container and port-back up uses and that a total of 89 hectares of land in the northwest New Territories have been designated for 'open storage' use in DPA Plans. Moreover, the TPB has approved a number of s. 16 applications for open storage of containers, trailer parks and related developments which are in line with the planning intention for the relevant areas and have minimal adverse impact on the surroundings in terms of traffic and the environment generally. Whilst we accept this evidence, the fact remains that in the Ha Tsuen area there is plainly a massive and unfulfilled demand for use for such purposes and, unless enforcement action was vigorously pursued, the proliferation of unauthorized container depots would simply grow'. (para. 20)
Evaluation of appellant's case
21.
We can understand the feelings of frustration on the part of the appellant in this case. If one took a short term point of view, what damage to the environment of the Ha Tsuen area would be caused by the continued operation of the appellant's terminal? In what way would it temporary use frustrate the stated planning objective? How would container traffic in the area be diminished if the appellant's depot B be closed?' (para. 21)
Planning Appeal Cases
263
The Appeal Board in fact touched on but did not treat the notion of planning intention in these paragraphs. It continued to explain the concept by relating that to enforcement legislation.
On Planning Intention and Planning Enforcement
22.
However, this crucial point must be grasped: to allow the appeal, even on the limited extent of permitting the present use until the publication of the OZP, would have a disastrous knock- on effect for enforcement action taken against unauthorized use in the meanwhile. The primary objective of the Town Planning Ordinance is to 'make provision for the systematic preparation and approval of plans for the systematic preparation and approval of plans for the lay-out areas of Hong Kong' thereby promoting the health, safety, convenience and general welfare of the community: see the long title of the Ordinance. If the appellant's unauthorized use were legitimised even on a temporary basis, there would be no logical ground for resisting the applications of all the other unauthorized users in the area. The effect would be, from a planning point of view, that ad hoc use by individual owners and occupiers would dictate the land use of the area. This would frustrate the statutory objective of the Ordinance and, as a matter of principle, plainly cannot be allowed. (para. 22) (emphasis mine)
Students in planning, surveying and law schools who are serious about planning law in Hong Kong should read such an incredible passage, whether or not he or she agrees with my comments below.
Conclusion
22.
23.
As we can see the position, the appellant's argument, as put to us, would be put with greater force to the Town Planning Board as an objection to the OZP, should the OZP designate the appellant's site later-on as zoned for low-rise low-density residential use. The Town Planning Board can, at that stage, look at the problem as a whole. It would obviously receive evidence from the Planning Department as to how far enforcement action has in fact been effective, or ineffective, in controlling land use. It would have evidence regarding the expected demand for land for container use, and how far the Government has been able to satisfy this demand by designating areas within either the OZP for this area, or in other adjacent areas, for container depots and related purposes. (para. 23) Whatever the Planning Department might intend by way of zoning as set out in the future OZP, conceivably the TPB could, eventually, throw up its hands and conclude that ad hoc land
264
24.
25.
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
use in the past together with government's failure to take effective action have created a situation where the "reality" of market forces must prevail and the planning intentions in the Explanatory Statement cannot be achieved. That lies in the future. This grim outcome may not eventuate. In dealing with this appeal, it would be wholly wrong for us to anticipate such an event.
Ultimately, as we see it, to avoid this situation, there must be legislation introduced to phase out the "existing use" of land in the area which is incompatible with the overall planning objective. If such legislation does not materialise, it is difficult to see how the objective of using the area for low-rise low- density residential development could sensibly be achieved. Even village type development could be prejudiced.
In theory, unauthorised development in the area has been 'frozen' since August 1990. In practice, this is not so and degradation has continued. One of the important functions of this Appeal Board, constituted under the Town Planning Ordinance, is to scrutinise the planning intentions of the Town Planning Board for a particular area, as expressed in the relevant plan, even if the Explanatory Statement does not, technically, form part of the plan. Where a draft plan has been approved and an applicant goes to the TPB under s. 16 with a proposal which goes contrary to the planning intentions for the area, he will have to put up a very strong case on individual merits, on environmental and social grounds, before he can hope to succeed. (paras. 23–27)
The Appeal Board went on to pass a categorical statement about the nature of planning, as they saw to be, before drawing a conclusion against the appeal.
On the Plan and Market
27.
Should it emerge on day that the “planning intentions” have become nothing more than a pious hope, an illusion, it is possible that a Town Planning Appeal Board may say: "The planning objectives have not and can never be achieved; let market forces alone dictate land use in the area and let the appeal be allowed."(para. 27) (italics mine)
Traffic Congestion Not Really Matter
The Appeal Board stated in para. 14 of the decision that they would revert to the submissions of the appellant stated above in relation to traffic congestion and subsumed these issues in para. 19 in relation to the discussion of planning intention as quoted above.
Planning Appeal Cases
Drainage Problems Not Decisive
265
There were large drainage channels serving the area to which surface run-off on the subject site could be diverted. This was just a technical matter which the appellant could easily overcome.
Landscape Measures Not Relevant
These were also considered by the Appeal Board be purely technical matters and as 'an objection to the appellant's proposal, standing on its own, this weights little in the scales'. (para. 17)
Comments:
General Comment
Despite its apparent brevity, the transcript of the decision contains major statements of paramount significance. As such, the Shun Fat Container case is no less important in terms of its contribution to planning law as the Henderson case. In this case, the Appeal Board rescued a technically belated appeal only to provide an opportunity to elucidate (a) its adamantly hostile views towards applications arising from planning enforcement actions; and (b) its ideological position about the role of town planning in the society of Hong Kong. The moral and jurisprudential issues involved in this case, not to mention substantive planning issues, are of first-order significance.
Were Appeal Board Members Government Planners or Crown Prosecutors? Where Was the Rule of Law?
The Appeal Board was poorly counselled in this case. The wordings of the decision reflect that the Appeal Board presumed the Planning Department's enforcement action was justified. This presumption was based on the hearsay evidence of aerial photographs. The appellant, however, had not been even tried in a court of law. In fact, at the time when this case arose, the so-called 'enforcement's action' was realized in the form of 'warning letters' (or, at most, 'enforcement notices'). They were sent to a person suspected of having committed an offence (to use the word 'crime', as found in the decision, is correct in a straight legal sense but inappropriate in the social sense as land use matters are not as morally outrageous as damage to property or defamation). In the letter, the person was asked to rectify the alleged violation of the amendment to the Town Planning Ordinance by cessation of the alleged unauthorized use, or by making a s. 16 application to the Town Planning Board.
The aforesaid amendment to the Ordinance, namely the introduction of 'planning enforcement' provisions, in fact criminalized previously
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
legitimate private property rights without compensation. Such rights were conferred upon landowners by solemn promises of the Crown and were affirmed in the Melhado case. Whether the legality of such uncompensated nullification of rights of the lessees under the Basic Law, which expressly protects private property, can remain uncontested is a serious issue which the government may need to address.
The appellant, like many others in similar situations, made planning applications in accordance with the advice or option stated in the warning letters or enforcement notices. This option is in fact a statutory one and there is nothing at law that such option must be rejected. That this option is a statutory alternative to (a) cessation of the alleged unauthorized use; (b) the proof of ‘existing use'; or (c) successful defence in court on other grounds implies that such applications, even if the use alleged is really unauthorized, may be approved. Whether or not they should be actually approved will depend on the merits of the case. Merits mean the absence of harm or contradiction to the statutory plan. The avenue of obtaining planning permission after enforcement actions is in fact a sensible provision of the Ordinance. The reason is that certain uses, even if they are really unauthorized, are beneficial to society.
The Appeal Board had not been counselled to note the potential value of providing a chance to the appellant so that he or she can avoid enforcement actions by making a successful application. The use can be made good through mitigation measures or planning conditions.
In other words, it is wrong to say that as a matter of principle the Town Planning Board must reject a s. 16 application arising in response to enforcement actions. One contradicts the Town Planning Ordinance by insisting that planning applications made in accordance with the enforcement provisions of the same ordinance must be rejected as a matter of kind.
In this case, insofar as open storage of containers is not ruled out from the DPA Plan by express or implied exclusion, one contradicts the statutory town plan by insisting that the planning permission must not be granted. The Appeal Board should act independently and must not be seen as a guard dog for the Planning Department or the Legal Department.
If the logic of the Appeal Board here prevails, then an individual in the situation of the appellant in this case will be 'enticed' or 'advised' to make an application instead of defending one's rights rigorously at court. Yet he or she will then be presumed guilty of an offence before trial in both the Town Planning Board and Appeal Board, and hence the application will be rejected as a matter of 'policy' or 'principle'. What follows then will be that the appellant will be convicted at court for failing to obtain the planning permission. The ethical issues and circular arguments involved here are serious. It is submitted that the Town Planning Board should pay attention to the individual merits of the case and should not discriminate against cases arising from enforcement actions (though as
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267
the prosecuting agent the Planning Department by law is duty-bound to be biased in their comments).
What Is the True Purpose of the Town Planning Ordinance?
It seems that the Appeal Board had a very narrow view of the purpose of the Town Planning Ordinance as indicated in its preamble. It seems that the Appeal Board had read the Ordinance as if it was an environmental protection ordinance. The terms 'health, safety, convenience and general welfare' cannot simply be construed to refer to preservation or conservation purposes. 'General welfare' also means economic well-being and 'convenience' must also refer to the efficient use of land resources as economic inputs, not to mention the continuation of a market economy in Hong Kong under the Basic Law. There is no express ban of container trade or container storage in Hong Kong in the Ordinance. Nor is there any categorical prohibition of open storage in general.
What Does It Mean by the Planning Department Throwing up Its Hands'?
This is a very condescending characterization of the Planning Department. Although the department is definitely not infallible and some of her policies are contestable, the department does not deserve such a description. In hearing a planning appeal, the Appeal Board has to make decisions according to the statutory plan produced by the Town Planning Board. While the Town Planning Board is in fact supported in plan preparation by the Planning Department, the responsibility of plan making remains in the hands of the Town Planning Board. To say that 'the Planning Department throwing up its hands' is literally the same as saying that 'the Town Planning Board is throwing up its hands'. In substance, it is also doubtful whether the Planning Department will do so.
The supposition that the appellant was not entitled, as a matter of principle, to have a successful as it was the subject of enforcement action opened up opportunities for a judicial review. It was unfortunate that the appellant appeared to have given up such opportunities after the decision of the appeal was laid down.
What Does It Mean by 'Let Market Forces Alone Dictate Land Use in the Area'?
The Appeal Board suggested that 'market forces' are antithesis of planning. This statement is at best unsubstantiated and at worst positively misleading. Within the present legislative framework, such a sweeping statement about the market is both theoretically and practically fallacious. If a statutory town plan has been or becomes economically inefficient and impracticable, subsequent rezoning will be unimaginable unless the Planning Department throws up its arms for no good reasons.
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If a container depot (not necessarily the depot in this case) is suitable for a zone with or without planning conditions, then there will be a well- judged balance between market requirements and planning requirements. To depict the Town Planning Board as a citadel guarding society against the free market is a misplaced view about the role of planning in a rapidly growing economy. Container depots may not be as attractive as forests or birds. Yet, they are part and parcel of the society of Hong Kong, which is endowed with a huge international container port. The Appeal Board did note the proximity of the DPA to mainland China, but it had not been properly counselled as to the implications on the sustainable future of the
area.
What Did the Appeal Board Decision Achieve from a Planning Point of View?
It achieved very little regarding guidance on the technical factors that would affect the decision about planning applications for open storage. It nevertheless stated its interpretation of the general policy towards applicants who make applications on the advice of the Planning Department, which had served various notices on the applicants as part of its enforcement actions. It also revealed its perception of the purpose of the Town Planning Ordinance and its ideology towards the role of planning in the market, which was not necessarily shared by all panels of the Appeal Board, definitely not those adjudicating the Henderson or Yiu Cho Investment case.
What Was the True Planning Intention?
The true intention of the DPA Plan had to be that open storage was not in principle objectionable in the Unspecified Zones, or else it would be excluded expressly. Nor was there any intention to reject whatever applications arising from enforcement cases. It was because this avenue was a statutory option provided by the Town Planning Ordinance, which was available to those who became subject to enforcement action.
Any attempt to restrict or nullify the fair treatment of this statutory avenue is arguably liable to judicial review.
Relevance of Private Property Rights
The Appeal Board apparently had not been advised of the fact that planning enforcement legislation involved the nullification of private property rights, which was affirmed in the Melhado case, without compensation. The public interest arguments involved are not uncontestable.
Question:
1. What has happened to the subject site since the appeal was dismissed?
Planning Appeal Cases
References:
Guidelines:
269
Hong Kong Planning Standards and Guidelines, Chapters 8, 9, 10 and 11.
Town Planning Board, TPB-PG NO. 13, Town Planning Board Guidelines for Application for Open Storage and Port Back-Up Uses under Section 16 of the Town Planning Ordinance', November, 1994.
Cases:
1. The mischief planning enforcement legislation targets
AG v Melhado Investment Ltd. [1983] HKLR 327
2. Relevant planning cases (See Appendix)
Auburntown Ltd. v TPB HCMP No. 222 of 1993
Tsei Kwei King & Cheung Kam v AG MP No. 1509 of 1993
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of 1994
Regina v Tang Yip and Yeung Fook Mui Magistracy Appeal No. 864 of 1994
Regina v Helen Transportation Co. Ltd., Liu Ka Sing and Chan YukKwan Magistracy Appeal No. 303 of 1995
Regina v Power Straight Ltd., Dragon Friend Ltd. Magistracy Appeal No. 644 of 1995
THE EVER NEED CASE
Case Name: Lots No. 368 and other lots in DD 106, Kam Tin South, Yuen Long, New Territories [the Ever Need Case]
Planning Appeal Case No.: 19/93
Similar Cases: 07/92, 18/92, 19/92, 13/93, 16/93, 17/93,
01/94, 05/94,
06/94, 09/94, 10/94, 11/94, 12/94, 14/94, 02/95, 05/95, 07/95, 08/95, 16/ 95, 18/95, 21/95, 26/95, 28/95, 04/96, 12/96 and 01/97 [the Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Shun Fat Container, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Lai Sun
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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, 01/94, 05/94, 06/94, 09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, 21/95, 26/95 and 06/96 [the OTB, Full Look, Pak Kong, Treasure Base (2), Shell Hong Kong, Shun Fat Container, -, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding appeals stated explicitly to be against planning intention;
13/92, 18/92, 19/92, 17/93,
21/95 and 26/95 [the Pak Kong, Kingspeed Engineering, Kun Kee Motor, Shun Fat Container, ——, Cheung Hing Lung (not), and Wong Yee Fai (2) Cases] regarding unauthorized development and planning intention; and self-incrimination in planning enforcement proceedings by planning application;
13/92, 18/92, 19/92, 17/93, -, 01/94, 19/95, 21/95, 26/95 and 04/96 [the Pak Kong, Kingspeed Engineering, Kun Kee Motor, Shun Fat Container,
Tang Sai Hung, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding unauthorized development; 08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 01/94, 05/94, 09/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, and 21/95 [the Yuen To-shing and Yuen Shu-ling, Pak Kong, Ultra Force, Kingspeed Engineering, Kun Kee Motor Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, ———, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans;
07/92, 04/93 and 05/93, 11/93, 16/93,
"
01/94, 09/94, 05/95, 07/95 and 28/95 [the Full Look, Treasure Base (2), Shell Hong Kong, Naturaluck, Tang Sai Hung and Lee Yiu Kam, Planet Universal, Delight World and Fine Tower Cases] regarding incompatibility with adjoining uses, environment/development.
"
Nature of the Case: alleged unauthorized development leading to planning application, open storage of building materials, development in unspecified use zones; location of planning intention and Explanatory Statements.
Date of s. 16 Application: 5 March 1993
Planning Appeal Cases
•
Date of Hearing: 1–2 June 1994
•
Date of Decision: 29 June 1994
Chairman of Panel: Mr Justice Litton, OBE
Representation: Not mentioned in the decision
•
Decision: Appeal dismissed
•
Rules Laid down by the Decision:
271
(a) As a matter of policy, planning applications for uses which are unauthorized developments under planning enforcement legislation should be turned down and not even temporary permission should be granted for such ad hoc uses would dictate the land use of the area. (b) Open storage of building materials is not compatible with a Village
Type Development Zone.
(c) The fact that since the publication of the interim DPA Plan the area has been substantially degraded by unauthorized development is no argument for allowing the appellant's application.
Background:
With an area of about 2916 m2, the subject site comprised of various 'agricultural lots' in DD 106. They fell within an 'Unspecified Use' Zone in the draft Kam Tin South Development Permission Area Plan No. DPA/ YL-KTS/2 (the DPA Plan) published in the gazette on 12 July 1991. The site was close to the Shek Wu Tong village, and Tin Sam San Tsuen was further north. The future use and 'planning intention' regarding the subject site was revealed in para. 6.2.4 whereas and the 'need for planning guidance and control' was stated in other paragraphs of the Explanatory Statement. The Notes of the DPA Plan did not permit open storage as of right and hence planning permission for such use was necessary — unless they were existing' immediately before the publication of the Interim Development Permission Area Plan (the IDPA Plan) in the gazette on 5 October 1990.
After the introduction of the IDPA Plan, unauthorized development was reported to have proliferated along both sides of Kam Sheung Road.
Paragraph 6.2.4 of the Explanatory Statement, under the heading 'Unspecified use (total area: 499.51 ha)', read:
(a) The area are [is] broadly divided into four sub-areas.
(b) The sub-area around Yuen Kong San Tsuen
there are numerous temporary structures for residential use scattered around the area. In line with the Rural Planning and Improvement Strategy, it is not intended to clear these structures but to allow residents to stay to undertake self- improvement and possibly some public funded schemes where
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priority for public expenditure permits. The general intention is to encourage the in-situ reconstruction of structures with permanent materials with a view to improving the current situation. (para. 7)
The object of the plan noted by the Appeal Board was to 'provide guidance for planning and to facilitate development control within the DPA during the period required for detailed analysis of land use pattern, study of infrastructural provisions and examination of development options before the formulation of an outline zoning plan'. (para. 8) (Compare this with the description in the Ha Tsuen DPA Plan in the Shun Fat Container case.)
It was reported in the transcript of decision that on 5 October 1990, 'the site was a piece of vacant land, covered with vegetation. Accordingly, any development on the site without permission of the Town Planning Board granted under Section 16 of the Town Planning Ordinance is a criminal offence.' (para. 3) It was also reported that: 'Notwithstanding this, the appellant, having leased the site from the owners in June 1991, proceeded to clear it of vegetation and to fill it up to the level of Kam Sheung Road. The site was then fenced off by steel-corrugated sheeting. Containers were put on the site and adapted for use as offices. The appellant has since then used the site as a depot for open storage of construction materials.' (para. 3) The Planning Department took enforcement action under the Town Planning Ordinance against both the appellant and other operators for unauthorized use of the land.
The appellant made a s. 16 planning application for permission to change the use of the site to the open storage of building materials.
The Town Planning Board refused the application in the first instance and again in a review hearing held on 20 August 1993.
Arguments:
A letter of the Town Planning Board dated 29 September 1993 was sent to the appellant conveying the reasons for rejection (para. 4):
(a) the development was not in compliance line with the planning intention for the area which was to encourage in situ reconstruction of temporary structures with permanent materials with a view to improving the local environment;
(b) the development was not compatible with the nearby village
settlements;
(c) the drainage facilities proposed in the submission were inadequate to demonstrate that the development would not cause drainage and flood hazards to the surrounding areas; and
(d) the boundary fence of steel corrugated sheets was visually intrusive
and the visual impact of the storage had not been suitably addressed.
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273
There was no particular argument of either the respondent's or appellant's advanced during the appeal hearing recorded in the decision. The Appeal Board, however, was reported to have noted that the Planning Department's proposals for the area have reached an advanced stage, and the OZP for the area would shortly be published in the gazette. The subject site would be included within a 'Village' Zone in the forthcoming OZP.
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
General Reasons
The Appeal Board dismissed the appeal on the first two of the four grounds set out in the letter of the Town Planning Board dated 29 September 1993. They are as follows:
(a) Against planning intention and incompatible with the village
environment
'Plainly, the use of the site is not compatible with the planning intentions for the area nor is it in harmony with the village environment of the neighbourhood.' (para. 10)
(b) Environmental degradation irrelevant
The Appeal Board added that 'the fact that since the publication of the interim DPA Plan the area has been substantially degraded by unauthorised development is no argument for allowing the appellant's application'.
Comments:
The Appeal Board made a 'fast kill' in this case, as the explanation had been clearly stated in the Shun Fat Container case, apparently of similar facts. Compare the treatment by the Appeal Board of this case and that revealed in the Kingspeed Engineering or Kun Kee Motor case.
Implications of the Future Village Type Development Zone
According to the Henderson case, it is the DPA Plan, not a future OZP that matters. Yet, even considering the uses of a Village Type Development (V) Zone, one is not left with the impression that a depot for building materials is undesirable. In Column 2 of a V Zone, uses such as Refuse Collection Point (RCP) and Public Car Park are uses that may be permitted. A well-designed building material depot, given today's technology, will not be worse than a well-designed RCP and a well-managed public car park. Though open storage is precluded in the V Zone as a permanent use, it can be permitted as a temporary use, subject to planning conditions,
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which is ancillary to construction works in the village. A local depot will definitely reduce the frequency of long distance haulage of such materials in the road system and provide 'convenience' and 'general welfare' for the local community which needs upgrading, as intended in this case by the DPA Plan and the forthcoming OZP. The key consideration is not so much the exact label of the use but rather, its benefits and harms to specific locations. It is unfortunate that the Appeal Board had not been advised fully of these aspects of modern planning.
Questions:
1. What has happened to the subject site since the appeal was dismissed? 2. Were there any designated Open Storage (OS) Zones in the vicinity of the subject site? Was Open Storage of building materials a Column 1 use?
References:
Guidelines:
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.
Hong Kong Planning Standards and Guidelines, Chapters 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
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of 1994
Regina v Tang Yip and Yeung Fook Mui Magistracy Appeal No. 864 of 1994
Regina v Helen Transportation Co. Ltd., Liu Ka Sing and Chan YukKwan Magistracy Appeal No. 303 of 1995
Regina v Power Straight Ltd., Dragon Friend Ltd. Magistracy Appeal No. 644 of 1995
Planning Appeal Cases
THE TANG SAI HUNG CASE
•
275
Case Name: Lots No. 3251 BRP etc. in DD 129, Ha Tsuen, Yuen Long, New Territories [the Tang Sai Hung Case]
Planning Appeal Case No.: 01/94
05/94,
Similar Cases: 07/92, 18/92, 19/92, 13/93, 16/93, 17/93, 19/93,
06/94, 09/94, 10/94, 11/94, 12/94, 14/94, 02/95, 05/95, 07/95, 08/95, 16/ 95, 18/95, 21/95, 26/95, 28/95, 04/96, 12/96 and 01/97 [the Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Shun Fat Container, Ever Need, —, 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, -, 05/94, 06/94, 09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, 21/95, 26/95 and 04/96 [the OTB, Full Look, Pak Kong, Treasure Base (2), Shell Hong Kong, Shun Fat Container, Ever Need, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding appeals stated explicitly to be against planning intention;
"
"
13/92, 18/92, 19/92, 17/93, 19/93,, 19/95, 21/95, 26/95 and 04/96 [the Pak Kong, Kingspeed Engineering, Kun Kee Motor, Shun Fat Container, Ever Need,— Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding unauthorized development; 08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 05/94, 09/94, 9/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, and 21/95 [the Yuen To-shing and Yuen Shu-ling, Pak Kong, Ultra Force, Kingspeed Engineering, Kun Kee Motor Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, Ever Need, — Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans;
'
03/92, 08 and 09/92, 12/92, 14/92, 15/92, 18/92, 19/92, 04 and 05/93, 11/93, 13/93, 14/93, —, 05/94, 10/94, 14/94, 07/95, 08/95 and 22/95 [the Wo Yi Hop Road, Yuen To-shing and Yuen Shu-ling, On Luk Tong, Good Luck, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Treasure Base (2),
276
•
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Shell Hong Kong, Henderson, Yiu Cho Investment, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World, Yin Ning Savings and Lucky Gain Cases] regarding adverse traffic/access problems;
07/92, 04/93 and 05/93, 11/93, 16/93, 19/93, -, 09/94, 05/95, 07/95 and 28/95 [the Full Look, Treasure Base (2), Shell Hong Kong, Naturaluck, Ever Need, Lee Yiu Kam, Planet Universal, Delight World and Fine Tower Cases] regarding incompatibility with adjoining uses, environment/development;
"
"
04/93 and 05/93, 09/94, 02/95, 05/95, 07/95, 08/95 and 21/95 [the Treasure Base (2), Lee Yiu Kam, Charming City, Planet Universal, Delight World, Yin Ning Savings and Cheung Hing Lung Cases] regarding agricultural and rural setting of the site.
Nature of the Case: warehouse use in Unspecified Use Zones; location of planning intention and Explanatory Statements, planning intention and peripheral reasons; road access.
Date of s. 16 Application: 10 September 1993
•
Date of Hearing: 16-17 November 1994
•
•
Date of Decision: 1 December 1994
Chairman of Panel: Mr Justice Litton, OBE
Representation: Not mentioned in the decision
•
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) The Explanatory Statement gives guidance to the exercise of discretion by the Town Planning Board in granting or refusing permission for development applied for according to the Notes of a statutory town plan.
(b) That an appellant did not object to a statutory plan when it was published entails that his or her objection to the plan is given less weight (this rule was ruled out in the Ng Siu Wing case).
Background:
With an area of about 2000 m2 and being close to Fung Kong Village, Ha Tsuen, the subject site comprised of Lots Nos. 3251 BRP, 3251B1, 3251RP and 3251C in Demarcation District (DD) 129. It fell within an ‘Unspecified Use' Zone in the Ha Tsuen Development Area (DPA) Plan No. DPA/YL- HT/1 which was published in the gazette on 12 July 1991. Under the Notes of the DPA Plan, a warehouse required planning permission. Paragraph 4 of the Explanatory Statement described the ‘existing situation' of the subject site. Paragraph 5 of the Statement described the 'need for
Planning Appeal Cases
277
planning guidance and control'. Paragraph 6.2.4 (a) (iv) of the Explanatory Statement of the DPA Plan stated that the aim for the sub-area around Fong Kong Village was to 'encourage the comprehensive improvement and retention of the existing residential communities through physical upgrading and local environmental improvement' and this was noted as the 'planning intentions' for the area.
The following subparagraphs of Paragraph 5 of the Explanatory Statement were noted particularly by the Appeal Board (para. 5):
5.3 With the improvement in accessibility provided by the New Territories circular road and the Yuen Long highway, there is a rapid and haphazard proliferation of open storage uses in the area, concentrating along Ping Ha Road and Tin Ha Road. Such uses have prejudiced the planning land use intention in the area. This existing open storage uses in the area include storage of building materials and equipment, timber, used and new motor vehicles, and containers.
5.4
The unregulated open storage uses have led to the degradation of the rural environment; directly or indirectly, they have created a number of problems, such as flooding, traffic congestion and visual blight.
In addition to these two subparagraphs which had been noted also in the Shun Fat Container case, the Appeal Board highlighted in its decision the following subparagraphs:
5.4
5.5
The Area is not far away from the Mai Po Nature Reserve and Deep Bay which are environmentally sensitive areas. In order to protect these areas, effective development control is essential. In the light of the above, there is an immediate need for planning guidance and development control in the Area.
It was reported in the decision that up to about mid-1991, the site had been used for chicken-farming. A structure was said to have been erected on the site unlawfully when chicken farming use 'ceased' (it was in fact banned by the government's livestock waste control policy). It was further reported that when enforcement was initiated by the Planning Department in April 1993, the owner then 'reacted by a belated application for planning permission' to the Town Planning Board dated 10 September 1993. The appellant applied for change of use from 'agricultural' to 'warehouse for storage purposes'. At the time of the application, there was a structure of 5 m high on the site, covering 750 m2 and was reported to have been used for the storage of steel rods. It was said that there was also a container- converted structure on the site for office purposes.
The application was rejected in the first instance and in the review on the same grounds.278
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Arguments:
The appellant argued on the following grounds:
-
(a) 'Since the Notes, which are part of the statutory plan, leave the permitted use of areas marked 'unspecified' flexible by leaving the matter to the discretion of the Board [Town Planning Board] generally -the "de facto" limitation of use by means of the Explanatory Statement is "bureaurcratic" and unlawful.' (Representation of the appellant's opinion in the words of the Appeal Board, para. 12) (square brackets mine)
(b) The noise impact of a chicken-farm upon residents of neighbouring village houses was far greater than that of the warehouse under application.
(c) Some bamboos would be planted and the fencing would be painted
green as a landscape measure.
(d) There was another case where warehouse use for storage of steel products was permitted by the Town Planning Board in November 1991 on a temporary basis for three years.
(e) Lorries only went to and from the site no more than twice a week.
In rejecting the s. 16 application, a letter from the Town Planning Board dated 29 December 1993 stated the reasons for rejecting the application (para. 8):
(a) the development is not in line with the planning intention for the area which is primarily to encourage the comprehensive improvement and retention of the existing residential community through physical upgrading and local environmental improvement;
(b)
(c)
(d)
(e)
the site coverage of 37.5% is excessive;
no drainage impact assessment and storm water drainage proposals have been provided in the submission to demonstrate that the development will not cause drainage and flooding problems to the neighbouring areas;
no mitigation measures against the noise impact on the two village houses nearby have been provided in the submission; the present vehicular access road is unpaved, sub-standard and unsuitable for heavy good vehicles laden with steel rods; and
(f) no landscaping proposals have been provided in the submission.
These reasons were repeated for rejecting the s. 17(1) review.
Reasons for Decision:
The Appeal Board dismissed the appeal. The Appeal Board made a distinction as what it regarded to be 'peripheral points' (para. 10) and ‘the fundamental objection', namely the same old concept of 'planning intentions' (paras. 11-15) and then ruled out the precedent for being irrelevant (para.
Planning Appeal Cases
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16) and judged that 'road access' was also a 'fatal' factor against the appellant's application (para. 17).
The Explanatory Statement Did Contain the Planning Intention: 'No Discretion Can Properly Be Exercised in a Vacuum.'
The Appeal Board negated the argument of the appellant that the Explanatory Statement should not have been used to restrict the Notes. The Appeal Board's reasoning began with a description of para. 2.2 of the Explanatory Statement which read:
2.2
The plan is to provide guidance for planning and to facilitate development control within the Area during the period required for detailed analysis of land use pattern, study of infrastructure provisions and examination of development options before the formulation of an outline zoning plan. (para. 13)
Then, the Appeal Board explained the gist of the matter: the Explanatory Statement gave guidance to the manner in which the Town Planning Board should have exercised its discretion in granting or refusing an application. In the words of the decision:
The (Town Planning) Board has a wide discretion to grant or refuse permission for development within an 'unspecified' area, but this discretion can only be properly exercised having regard to the object of the publication of the draft DPA Plan in the first place. No discretion can properly be exercised in a vacuum: the Explanatory Statement gives guidance to the manner in which such discretion would generally be exercised. At the end of the day, the responsibility of the Board is to plan: it is important that ad hoc development should not pre-empt the options open to the planners, and to the Board, before the formulation of an outline zoning plan. (para. 14)
The Appeal Board went on saying:
In fact, the draft Ha Tsuen Outline Zoning Plan No. S/YL-HT/1 was published on 10.6.1994. If the proposals in the OZP were objectionable to the appellant, he had the right to make those objections heard by the Board under section 6 of the Ordinance. (para. 15)
Noise Impact, Site Coverage, Drainage or Landscaping Was 'Peripheral'
The Appeal Board considered that the grounds of the Town Planning Board against the appellant, namely noise impact, site coverage, drainage or landscape, were merely 'peripheral'
As regards noise impact, the Appeal Board accepted the appellant's submission that a chicken-farm was more noisy than a warehouse and said that 'if the appeal turned on this point alone, we would have been in favour of allowing the appeal'. (para. 10, lines 4–5)
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As regards the fact that the warehouse exceeded the relevant Town Planning Board Guidelines for warehouse by 12.5% (the standard prescribed by the guidelines was just 25%), the Appeal Board gave an amazing verdict: 'If all the other factors were favourable to the appellant, this is a deviation from the guidelines which is curable.' (para. 10, lines 9-10)
As regards drainage, which was not discussed in depth in the appeal hearing, the Appeal Board's view was: 'It would, however, be fair to infer that if all other points of objection could be resolved, the question of drainage might not be insuperable.' (para. 10, lines 12-14) However, the point of the Town Planning Board was regarded as valid because this area was prone to flooding but there was no drainage impact assessment to support the application.
As regards the landscaping proposals of the appellant, the Appeal Board's view was that they were 'plainly inadequate' (para. 10, 2nd line from bottom of page). But if there were no other objections to the application, it would be reasonable to infer that the landscaping objections might be overcome: for instance, by a setback to the perimeter fence so that adequate planting outside the fence could take place.' (para. 10)
No Real Precedent
The approved case was within a different sub-area. It was reported that as at the date of the publication in the gazette of the IDPA Plan, that sub- area had already been used to a significant degree for the purposes of open storage and temporary workshops whereas in the sub-area within which the subject site was located was mainly 'rural'.
Road Access: 'A Fatal Objection'
The Appeal Board accepted the submission that lorries visited the subject site only twice a week but considered that the problem of 'lorries, laden with steel bars, was "nevertheless” incompatible with the uses of the road by the villagers'. (para. 17, lines 4-6) The Appeal Board noted that Fung Kong Road had no pavement and was used by pedestrians and school minibuses serving the village. 'As things stand, the use of Fung Kong Village Road by heavily laden lorries, however infrequent such traffic might be, pose a danger which the Board rightly took into account rejecting the application.' (para. 17, last three lines)
Comments:
On Planning Intention Once More
This case was decided during the interlude between the Henderson case was allowed by another panel and judicial review applied for by the Town Planning Board was ruled down in the High Court. Recall that in the
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281
Henderson case, the idea of planning intention was explained at great length and the proper ways in which objections to a planning application were elucidated. The way in which this case was explained reflected that panels of the Appeal Board might have different views about the notion of planning intention, or more concretely, its location(s) — not to mention how it should be interpreted. This is not just a matter of substantive town planning but also a matter of administrative law. Whether or not one agrees with my view below, one will definitely agree that in the Tang Sai Hung case the rules for interpreting planning intention were clearly spelt out. Whether or not the rules are reasonable, their reference values must be respected by practitioners in the planning and development arena.
In this case, the appellant put up a spirited defence, though it had not been phrased in professional planning or legal jargons. The Appeal Board could not achieve a 'fast kill' as it was used in the Ever Need case. In order to blow up the appellant's case about the 'bureacratic' interpretation of the Town Planning Board's duty to exercise's discretion (by reference to planning intentions alleged to have resided in the Explanatory Statement in the way it saw), the Appeal Board ran into arguments that exposed the illogicality of its perception of the concept.
On Pre-Empting Future Planning Closely
The point about pre-empting future planning, or 'jumping the gun', was mentioned and discussed in relation to the Kingspeed Engineering-Kun Kee Motor series of decisions. The same point was mooted again in the Naturaluck-Shun Fat Container-Ever Need-Tang Sai Hung series of cases. Nothing new was introduced in the latter series of cases really. However, one should not give up thinking about the idea seriously.
Let us suspend our judgment about planning intention for a moment and consider the following. Here is a small warehouse built of temporary materials, and governed by planning conditions that the use was only approved for a limited period of time plus a short-term waiver (STW) [of restrictions in the Crown lease]. There were also special conditions to the effect that there shall be no permanent structure on the subject site and that all sorts of environmental protection clauses were inserted. Could an application for such a warehouse really pre-empt future planning? If the site was required for public purpose, resumption could be used whether or not planning permission was granted. If the site was indeed later up-zoned, the market forces would dictate that the warehouse use yielded to the new zone in the plan. The issue of 'pre-empting future planning would make real sense only if the planning permission had previously allowed high-rise building but the planner later wished to change that to an open space. In any case, a temporary permission could be contemplated and this would not pre-empt long-term planning or replanning for the
area.
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Raising an Objection to the Plan and Making an Application
In many appeal cases, formalities were said to be less essential than real purpose or intent of the plan, or the Ordinance itself. This was the teaching of the Treasure Base (1) and Shun Fat Container cases. Here, the Appeal Board reminded the appellant of his statutory right under s. 6 of the Town Planning Ordinance to object to the draft Ha Tsuen OZP when it was published in the gazette on 10 June 1994. It is submitted that this was not a very kind reminder as the gazette was too technical or remote for lay persons. Indeed, the appellant in this case thought, and correctly, that the Notes of the DPA Plan allowed a great scope of discretion which should not have been narrowed down by the Explanatory Statement. The Appeal Board in fact simply restated the appellant's point without addressing the real challenge: should the Explanatory Statement be read in such a way that a use legitimately applied for should be turned down as a matter of principle as if that principle was contained in the Notes?
This rule was rejected categorically in the Ng Siu Wing case subsequently.
On the So-Called 'Peripheral Points': The Strange Reason that They Were 'Curable': The Distinction between Imposing Planning Conditions and Amending an Application
The Appeal Board viewed that the few technical problems confronting the subject site used for a warehouse were 'peripheral' or 'curable'. However, the meaning of this view was not clear. The Appeal Board might affirm or reverse the decision of the Town Planning Board. It might alter or impose additional planning conditions on a planning application. However, it cannot alter the content of the proposals for the applicant. What the Appeal Board meant was likely to be: Had the appellant made a fresh application, assuming that there was no problem regarding planning intentions, he or she would have been able to get planning permission by overcoming the problems in the ways the Appeal Board suggested.
'If There Were No Other Objections...'
The message in the decision has reminded me of what I consider to be the worst red tape and bureaucratic message I have ever seen while working in the civil service and public sector: "This department would tend to agree with this application if department X does not have any objection to the same application.' Each technical factor has to stand or fall on its own, having regard to all possible mitigation measures through lease and/ or planning conditions, or time limits in the planning permission. In fact, even where a planning application is consistent with whatever the planning intentions may be, such technical matters need to be satisfactorily addressed in each application.
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In the case of Unspecified Use Zones, a valid application (i.e. one by nature consistent with whatever planning intentions) which satisfies all technical requirements should not be turned down as a matter of principle. However, the Appeal Board in this case, and indeed in a string of similar cases, formed its own view about planning intention by its reading of the Explanatory Statement, which was produced by the Planning Department. This reading disregarded the implications of neither the Notes as the statutory component of the DPA Plan, nor the Town Planning Board Guidelines as policies of the Town Planning Board for applications in the rural areas.
Relating the 'Non-Precedent' and Peripheral Factors to the Fatal Objection'
The successful example did not appear to be a precedent in terms of geographical location, i.e. it was located in another sub-area. However, two dimensions of the approval of the example might have a bearing on this case, namely zoning and the time limits on the planning permission. However, the Appeal Board ruled out the case as being irrelevant. On the other hand, the Appeal Board considered that the low frequency of goods vehicle traffic generated in this case was fatal to the application. The local village access roads throughout the sub-areas had similar characteristics. Without comparing the access situation of the example with that in the present case, the Appeal Board ruled out the case as being irrelevant and came to the verdict that 'road access' (in fact traffic) was decisive. This was a very conservative view because even in the absence of the warehouse, lorries loaded with steel and construction materials for the building of small houses and community facilities would be expected along a village road. A planning condition or local traffic management measure that restricted hours of operation and tonnage of vehicles permitted on the road would have overcome the objection. There was no reason why the road access issue, per se, could not be curable.
'Mainly Rural
It was not explained what 'mainly rural' really meant. If it meant that the land was under active farming, and was viable for commercial farming or revertible to viable commercial farming, then some evidence had to be adduced. In the Treasure Base (2) case, the evidence of the Agricultural and Fisheries Department was presented but no such evidence was available in this case. Description in the Explanatory Statement might not be accurate for specific sites in the sub-area either. If the intention was to preserve the 'rural' character of the sub-area, the subject site would have been zoned Green Belt, Village Type Development or Agriculture. The introduction of Unspecified Use Zoning implied that suburbanization was under way.
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Question:
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
1. What has happened to the site since the appeal was dismissed?
References:
Guidelines:
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.
Hong Kong Planning Standards and Guidelines, Chapters 5, 8, 9, 10 and
11.
THE SO CHO CHEUNG CASE
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Case Name: G/FL Wah Luen Industrial Centre, Fo Tan, Sha Tin, New Territories [the So Cho Cheung Case]
Planning Appeal Case No. : 02/94
Similar Cases: cases nos. 13/93, 14/93, 16/93, 02/94, 01/96, and 12/96 [the Henderson, Yiu Cho Investment, Naturaluck, So Cho Cheung, Yolanda Fan and Rightlane Investment Cases] regarding successful appeals; 01/91, 03/92, 05/92, 12/94, 22/95 and 28/95 [the Alticosmic, Wo Yi
Hop Road, OTB,
"
Lai Sun Development, Lucky Gain and Fine Tower Cases] regarding commercial use application in Industrial Zones.
Nature of the Case: application for changing one approved commercial use to another under Column 2; local provision store and fast food shop.
Date of s. 16 Application: 7 August 1993
Date of Hearing: 19 October 1994
• Date of Decision: 28 November 1994
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Mr Wingrad for the Town Planning Board
(b) Representation for the appellant was not mentioned in the decision
Decision: Appeal allowed with condition that the planning permission would expire on 31 December 1997.
Rules Laid down by the Decision:
(a) Planning permission for a commercial use within an Industrial Zone
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should be given where the application involves a minor degree of change of use from one approved commercial use to another.
(b) In considering the application for a fast food shop inside an industrial building vis-à-vis an alternative of consolidating that use in a purpose- built commercial centre, pedestrian convenience of the workers in the industrial building is a decisive factor.
(c) In considering the application for a commercial use in an Industrial Zone, the possibility that there may be additional loss of industrial floor space due to the application is a key factor to consider.
(d) Where a planning application can be supported, there should be no
worry about setting an undesirable precedent.
Background:
The subject premises was a unit on the ground floor of Wah Luen Industrial Centre which was an industrial building located in Fo Tan, Shatin. The building was located within an Industrial Zone in the draft Shatin Outline Zoning Plan (OZP) No. S/ST/5. In the Notes to the OZP, use of the premises as a fast food shop was a Column 2 Use. It was permitted if approved by the Town Planning Board, with or without conditions.
The appellant had been operating a local provision store in Wah Luen Industrial Centre, such use having been approved by the Town Planning Board on 22 November 1988. In August 1993, the appellant applied for planning permission to change the use from a local provision store to that of a fast food shop.
The Town Planning Board rejected the application in the first instance and again on 18 April 1994 in a s. 17(1) review.
Arguments:
The Town Planning Board held in the decision for the review that: (a) there was no strong justification to use the ground floor space for a fast food shop as there was a good supply of eating facilities in the industrial area; and
(b) the approval of the application would set an undesirable precedent for
similar applications.
During the appeal hearing, the Planning Department gave evidence about similar applications: there had been a total of seven similar applications for fast food shop use in industrial buildings in Fo Tan. Of these 7 applications, just one was approved. The approved shop was not on the ground floor but on an upper ground floor and its application was made at a time when the commercial centre, 'Shatin Galleria' for the industrial area of Fo Tan had not been developed yet.
Mr Kelvin Chan, Senior Town Planner/Shatin of the District Planning Office said that the ground floor space in an industrial building should have generally been reserved for industrial purposes, having regard to
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the fact that the capacity of such space accommodated heavy floor loading and that space on the ground floor provided immediate access to the street. Furthermore, ground floor space normally had a higher ceiling and was hence convenient for goods movement. These factors lent support to the view that ground floor space had better not be converted to commercial use without very good reasons.
Reasons for Decision:
The Appeal Board allowed the appeal with conditions. The reasons were threefold and they predicated on three facts noted by the Appeal Board. The three facts were: (a) the difference between a local provision store and a fast food shop was just a matter of degree, with the latter perhaps offering a greater variety of cooked food or some facilities for consumption of food and drinks inside the shop; (b) the application fell within the Town Planning Board Guidelines for commercial use in industrial buildings within Industrial Zones; and (c) the proposed 'change of use' to a fast shop did not mean a reduction of space usable for industrial activities within the Fo Tan area as the appellant's existing premises had been used commercially as a local provision store since November 1988. In the light of such notice taken, there were three reasons against the respondent. They are listed as follows.
Rejected Precedents or Ground Floor Arguments Were Irrelevant for Involving Radical Change of Use
Seven rejected cases were related to applications for a radical change of use, from Industrial to Commercial uses. None of the applicants of these rejected cases had had previous planning permission, such as that the appellant possessed by, for use of their premises as local provision stores or similar commercial purposes.
As the commercial use of the ground floor space had already been authorized by the Town Planning Board, the new application for a fast food shop involved 'only a change of a minor degree' and hence did not breach the principle adverted to by the District Planning Office. There would be no loss of industrial space in Fo Tan.
Shatin Galleria Was Not Really in the Proximity of Industrial Undertakings
The Appeal Board did not agree that Shatin Galleria was a convenient or suitable alternative to the location of a fast food shop. The reasons were that to get to that commercial centre from Wah Luen Centre, it would take nearly 10 minutes on foot'; and 'one would need to cross two main roads'. "To suggest that the workers in the vicinity of the appellant's premises should walk all the way to the commercial centre for their meals, and then walk back again, on a daily basis, seems to us to be unrealistic, particularly in hot or rainy weather.' (para. 8, lines 10–14)
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The Town Planning Board stated that 'there is a good supply of eating facilities in the industrial area, at least as applied to the area where the appellant's premises were located'. The Appeal Board considered that this conclusion was not supported by evidence. Canteens located in industrial buildings in the Fo Tan area were all on upper floors and accessible only by lift. These factory canteens were not intended to operate as restaurants for the general public and were unsuitable for that purpose. In fact, a canteen on the 13th floor of Wah Luen Centre had closed recently and in the view of the Appeal Board, 'the evidence points strongly to the need for fast food outlets in the vicinity of the appellant's premises, particularly on the ground floor'.
There Was No Worry about Setting Undesirable Precedent as It Only Applied to 12 Approved Local Provision Stores in the Industrial Area
As regards the respondent's concern about setting a bad precedent, the Appeal Board's position was as follows:
(a) "To allow this appeal does not mean that the use of industrial space for the purposes of a fast food shop would generally be allowed.' (para. 9, lines 6-8)
(b) In allowing this appeal, the Appeal Board was 'concerned with a change from one approved commercial use to another closely allied use'. (para. 9, lines 8-9)
(c) There were 13 other local provision stores, other than the appellant's own, in Fo Tan industrial areas. Twelve of these stores were operating with the approval of the Town Planning Board. "The "precedent", if the appeal is allowed, applies to these 12 and no more.' (para. 9, lines 12-13) Of these 12 stores, some were in fact already serving take- away food and beverages. Some or perhaps all of them might be unsuitable for conversion to fast food shops as they were located much closer to the commercial centre than the appellant's premises: this might provide strong reasons for the Town Planning board not allowing those applications'. (para. 9, lines 2–5, p. 7)
(d) The application was wholly within the Town Planning Board's own
guidelines.
(e) The Appeal Board decided this case 'upon its own merits; no general statement concerning the merits of similar applications can, or ought, to be implied'. (para. 10, italics mine) Therefore it could not see how any undesirable precedent would be set if the appeal were allowed.
Comments:
This was the first successful appeal case heard by the Appeal Board panel chaired by Mr Justice Litton. Containing 12 paragraphs, the decision transcript of this case was only 9 pages in length. The case also appeared to be very straightforward. Yet, the arguments and views in this case,
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notably the points on the change of use and precedent, are of more general application. Therefore, it should not be belittled. The reasons in this case were also laudable and sympathetic.
The Appeal Board Was 'Throwing Planning Out of the Window"?
This case should be compared with the OTB case where the Appeal Board came to the view that if the case had been approved, then planning would be 'thrown out of the window'. In the OTB case, the Appeal Board was persuaded by the respondent that commercial uses in Fo Tan industrial area should be concentrated in the 'commercial centre' i.e. Shatin Galleria. This famous commercial centre re-emerged in this case. However, the Appeal Board this time did not check if the lease conditions or the town plan (under Column 1) of that centre contained any 'planning intention' for providing cooked food stores.
The 'Change of Use' Argument
The Appeal Board placed great emphasis on the fact that the appellant's proposed use amounted to a minor change of use' from a previously approved use. However, another panel in the OTB case did not even allow the continuation of the same previously approved use, i.e. bank, in the very same Fo Tan industrial area.
The 'No Loss of Industrial Space' Argument
No comments yet.
Private notes are available after approval.