The view of the Appeal Board was laudable and reasonable here. It is not so in the OTB case.
The Proximity Argument: Was Shatin Galleria Convenient or Inconvenient?
This panel of the Appeal Board here was prepared to accept that a 10- minute walking distance to Shatin Galleria for meals was far too long for industrial workers. Yet, another panel was reluctant to regard the argument of 'inconvenience' by the appellant in the OTB case where industrial employees had to walk the same distance to Shatin Galleria for bank services. A 10-minute walking distance is almost the same distance as walking down Battery Path from the Court of Final Appeal to the City Hall.
The Defence against Undesirable Precedents and Deciding Each Case on Its Own Merits: 'Bad Precedent' as an Explanation of Rejecting an Application Merits of the Application OR merits of the Decision
When the Town Planning Board rejects a s. 16 application in the first instance or in a subsequent s. 17 (1) review, there may be two typical reasons: (a) the proposed use is inconsistent with the 'planning intention'
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of the plan; and (b) approving the application will set a bad precedent. It is submitted that neither of these reasons makes any logical sense. In the following section, these two reasons will be dealt with alongside each other as their abuse in planning is similar in philosophy.
Where a use is entered into Column 2 or can be applied for under the provisions of a statutory plan, an argument claiming that that use is against the planning intention of the plan is either (a) a nonsense statement, if the plan is a meaningful product of reason, or (b) a statement saying that the plan is internally contradictory. For instance, a 'house' use is a column 2 use in the Green Belt Zone. The Explanatory Statements and the Town Planning Guidelines for Green Belts state that development in the Green Belt shall be discouraged. The Town Planning Board therefore often rejects applications for houses in the Green Belt, even where there is no technical or other specific planning ground against the proposal. The often stated ground is that such applications are against planning intention for the Green Belt as areas for conservation. Such explanation must be flawed because 'house' is a Column 2 use which can be excluded if the Town Planning Board so wishes. The Explanatory Statements or the Town Planning Board Guidelines are, themselves administrative documents. They cannot be used to vary, add, restrict, or remove a Column 2 use. Although they may well suggest, indicate or specify very restrictive conditions for permitting that use, the Town Planning Board or the Appeal Board are not entitled to reject an application or appeal solely on the grounds of planning intentions. Some technically specific reasons must be adduced and fully explained, in accordance with the spirit of the You Cho Investment, Henderson and So Cho Cheung cases. While passing these harsh comments on the reasoning of the Town Planning Board, it does not necessarily mean that I support the 'presumption in favour of development'. It is a separate issue altogether. Nor am I saying that all planning applications under Column 2 (or on the cover pages, in the case of IDPA or DPA Plans) of the Notes must be permitted. Whether such applications should be permitted, with or without conditions, will depend on an interpretation of their contents and substance, rather than their forms. It is my strong belief that such substantive matters should be properly promulgated as Town Planning Regulations and regular technical circulars.
'Bad precedent' is another reason for rejecting applications. This is hardly a logical reason for any decision which is said to be made on the merits of the case. If an application has merits, it should be approved. In this situation, no question of bad precedent arises. If an application has no merits, it shall of course be rejected. However, does this necessarily imply that 'undesirable' or 'bad precedent' becomes the reason for rejecting an application? The answer is simply no because cases with no merits are not approvable. Cases shall be rejected for having no merits or possessing demerits; and it should not be on the following grounds: ‘if a case without merits is approved then a bad precedent will be set'. Such cases should
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not be approved in the first instance. To put matter in simpler terms: every case in a planning application is decided on 'its individual merits', no question of precedent should arise. 'Bad precedent' will carry some meaning only in situations where a case is wrongly approved, ‘Precedent' is a matter of judgment of the merit of the decision (of the Town Planning Board or the Appeal Board), not the merit of an application. It cannot be regarded as the explanation for rejecting or approving a case.
Questions:
1. What happens three years from the successful appeal?
(See Photograph 12)
2. Does the Crown Lease for Shatin Galleria permit or require the
provision of fast food shops?
2.2920
****
PI
-
Photograph 12 Subject Site of the So Cho Cheung Case in March 1998
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5 and 6.
Town Planning Board, TPB PG-NO. 7A, 'Town Planning Board Guidelines for Application for Commercial Use in Industrial Buildings within
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Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes those, TPB PG-Nos. 7 and 9, below in force when the case was decided.)
Town Planning Board, TPB PG-NO. 7, "Town Planning Board Guidelines for Application for Commercial Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', December, 1990.
Town Planning Board, TPB PG-NO. 9, ‘Town Planning Board Guidelines for Banking Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', January, 1991.
THE TONG KAM WONG CASE
Case Name: Lot No. 569 in DD 82, Ta Kwu Ling, New Territories [the Tong Kam Wong Case]
Planning Appeal Case No.: 05/94
Similar Cases: 07/92, 18/92, 19/92, 13/93, 16/93, 17/93, 19/93, 01/94,
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, Ever Need, Tang Sai Hung,—, 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 Fai (2), Fine Tower, Container System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans); 05/92, 07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, -, 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, Tang Sai Hung,
−, 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, 17/93, 19/93, 01/94, 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
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Kong, Ultra Force, Kingspeed Engineering, Kun Kee Motor Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing,
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, 01/94, -, 10/94, 14/94, 07/95, 08/95 and 22/95 [the Wo Yi Hop Road, Yuen To-shing and Yuen Shu-ling, On Luk Tong, Good Luck, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Treasure Base (2), Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung,
—, Sun Link Properties, Sanyear Investment, Delight World, Yin Ning Savings and Lucky Gain Cases] regarding adverse traffic/ access problems.
Nature of the Case: doubtfulness of the use applied for; abandoned use; planning intention and Explanatory Statement.
Date of s. 16 Application: 18 October 1993
Date of Hearing: 12 July 1995
Date of Decision: 27 July 1995
·
•
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Representation for the Town Planning Board was not mentioned in
the decision
(b) Mr Chun Wan Kong and Mr Au Wai-kwan for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) The trustworthiness of an applicant as regards his or her proposed use is a relevant consideration in deciding a planning application or appeal.
(b) No planning permission is required for the maintenance, repair or demolition of existing structures, which have become vacant, for a once abandoned use.
(c) The specific administrative zoning in the Layout Plan defines the
planning intention of a statutory zone in the OZP.
Background:
With an area of about 400 square feet, the subject site was Lot No. 569 in Demarcation District 82, Ta Kwu Ling, New Territories. It fell within a 'sub-area' of an Unspecified Use Zone in the draft Ping Che and Ta Kwu Ling Development Permission Area Plan No. DPA/NE-TKL/1 (DPA Plan).
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The planning intention for the sub-area was contained in para. 6.3.5 (a) (i) of the Explanatory Statement, which was quoted in full in the decision (para. 4):
In the northern and eastern parts of the Development Permission Area (DPA) on either side of Ping Che Road and Sha Tau Kok Road are large tracts of flat and extensive arable lowland scattered with farms and industrial buildings. The majority of farming households in these areas live adjacent to their farms in small temporary structures that often form extensions to the animal sheds. These structures are either permitted or tolerated. Significant portion of agricultural land in these areas are lying fallow at present. As land in these areas has high potential for agricultural development because of good water supply and local agricultural skill, agricultural uses will be encouraged and considered the most appropriate. Recreational uses (including ancillary facilities) which are generally compatible with the rural environment and are unlikely to adversely affect local communities, may also be permitted. The main planning objectives are to identify appropriate forms of agriculture and rural activities that can be sustained to prevent unwanted urban growth and to enhance the quality of the environment. Residential development in compliance with the conditions of the ‘On-farm Domestic Structure' Scheme may be permitted where the dwelling is necessary to support the agricultural use. (italics mine)
The appellant applied for planning permission to replace two existing structures on the site by a single-storey structure of farm instrument and paraphernalia. The application was rejected by the Town Planning Board in the first instance and again in the review process.
Arguments:
The appellant argued that the two existing structures were dilapidated and they might become dangerous.
The Town Planning Board, in rejecting the application in the review, held that:
(a) insufficient justifications had been provided in the submission to justify the proposed development for the storage of farm instruments and paraphernalia left behind from the previous rearing activities; (b) as the proposed storage was considered a general storage and not incidental to active agricultural activities, it was not in line with the planning intention for the area which was to enhance the environment and to identify appropriate forms of agriculture and rural activities that could be sustained to prevent unwanted urban growth (italics and mine);
(c) no detailed proposals on the provision of vehicular access, parking and
manoeuvring spaces had been included in the submission; and
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(d) no landscaping proposals had been included in the submission.
Reasons for Decision:
The Appeal Board agreed with four grounds of the review and considered that the last two needed no consideration.
No Evidence of Real Use for Applied Use
The Appeal Board found the history of equipment storage and the need of it doubtful.
According to Mr Chung, up to about 8 or 9 years before, it had been used as a poultry farm. That was discontinued for ‘environmental reasons' (in fact, it was banned under the livestock waste policy). The equipment and paraphernalia associated with the poultry farm had been retained.
According to Mr Au, when he visited the subject site at the end of 1994, the equipment and paraphernalia were stored in the two structures and occupied about 400 square feet. However, according to Mr Chung, they were no longer stored therein but were stored free of charge on the neighbour's land.
We must say that we are not satisfied on the basis of Mr. Chung's evidence that Mr Tong wants a new building just for his old poultry equipment and paraphernalia. Indeed Mr. Tong had made 2 previous unsuccessful applications for a more extensive storage user on the site and other lots owned by him. (para. 8)
Against Planning Intention
In any event, we are of the view that to permit storage use on the site is contrary to the clear planning intention for the area which is to encourage agriculture use. (para. 9)
No Need to Consider the Other Two Reasons
The first 2 reasons given by the Town Planning Board cannot be faulted. It is unnecessary for us to consider the 3rd and 4th reasons given the Town Planning Board. Suffice it to say that they are factually correct. (para. 9)
No Need for Planning Application for Reconstruction of Existing Structures
We want to make it clear that no permission is required for the maintenance, repair or demolition of the 2 (existing) structures. The fact that this application is unsuccessful should not preclude the Appellant from effecting necessary repair. What the Appellant cannot do is to build a new structure. Nor can he use the old structures for any purpose other than uses directly or ancillary to agricultural use.' (para. 10)
Planning Appeal Cases
Comments:
295
This is a deceptively simple and straightforward case. In fact, it raises a number of significant issues and decision rules which should be compared very carefully with the Henderson or Naturaluck and Tang Sai Hung
cases.
Does Honesty or Credibility of the Applicant Matter?
In the Henderson case, the Appeal Board announced the view that the intent of the appellant as regards certain aspects of his proposals should not be mistrusted. In this case, the Appeal Board's decision was swayed by the apparent doubtful nature of the appellant's intent for using the applied structures as a 'store'. The Appeal Board concurred with the respondent that such a store might well be a 'general store' rather than a store to support agriculture. I must say that this line of thinking is arbitrary and makes little sense. Insofar as the appellant is making a valid application, the Town Planning Board shall make decisions on the proposal submitted and ignore any real or suspect ulterior motive, unless it is expressed by the applicant. The reason is that a planning permission is a licence granted on the basis of the merits of a proposed use, not the merits or status of the applicant. If an applicant has an ulterior motive and is in breach of the licence, then enforcement action can be taken, as this happens in an area governed by an Interim Permission Area (IDPA) Plan. To calculate the motive behind a proposal is arbitrary. Why should the Appeal Board trust Henderson Real Estate more than it trusted Mr Tong Kam Wong? Even if an applicant is sincere or apparently has evidence to show his or her sincerity at the time of application, the applicant can well become less sincere afterwards. There is no guarantee that the subject site, for which a 'sincere proposal' has been permitted, will not become the property of someone else who is less sincere. Thus, the focus should be placed on the proposal and its enforcement.
The Concept of a General Store
It is doubtful whether a change in the content of indoor storage (in comparison with open storage) really matters in planning law in Hong Kong. I once wrote to the Planning Department regarding this question and the reply was evasive: 'It is a matter of fact and degree.' In an English law case, the change of the content of storage from coal to oil was not regarded as a material change in use. (East Barnet UDC v British Transport Commission [1962] 2 QB 484, [1961] 3 A11 ER 878)
Encouraging Agricultural Use
The government's argument and the corresponding planning rule prescribed seem to suggest that an applicant, who wishes to get a successful
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application for a farm store, must have been engaging in active farming. Should this be the case, then the reconstruction of a farm store to replace two old ones is an objective preparatory step to reactivate cultivation. Or, if the appellant does not have any farm land, is such construction an ancillary support to those people farming in the vicinity? As the Appeal Board did not believe the appellant, such objective and relevant factors were not even considered.
Vehicular Access
The reason of the Town Planning Board was not very meaningful. The site had been used for poultry farming previously. Surely, the land user managed to export products and imported raw materials by road transport. The reconstruction of two stores as one should not add more traffic than the 'base situation'. Furthermore, in attacking the appellant for traffic consideration, the Planning Department revealed its lack of practical consideration for 'promoting' or 'encouraging' agriculture. How can viable commercial agriculture (not hobby farming) be encouraged in areas or sites where accessibility is problematic? Does the government expect a modern farmer who depends on tilling the land for subsistence in a society where labour cost is high to carry farm products and inputs on foot?
Draconian Use of Bureaucratic Power: Landscaping Requirements
To replace two dilapidated stores by one brand new store is definitely a landscape improvement in itself. Typically in informal settlements, land users will landscape their properties in their informal ways, though they may not be able to afford paying a landscape architect to submit beautiful landscape proposals. For such a small-scale redevelopment, to require landscaping inputs is outrageous as it is unnecessary and reflects a mistrust of individuals. The Town Planning Board or the Appeal Board could have stipulated its landscaping requirements. To throw its hands up regarding an applicant of small means was unjust. In the Natutaluck case, the Appeal Board took the trouble of specifying a string of ten planning conditions. In the Tang Sai Hung case, landscaping was regarded by the Appeal Board as being 'peripheral'. The Appeal Board had been definitely correct on that specific point in the Tang Sai Hung case.
Reconstruction of Existing Structures and What Does the Decision Achieve from a Planning Point of View?
As the Appeal Board had correctly pointed out, the appellant could proceed to reconstruct his two old stores in situ. The decision to dismiss the appeal robbed the government of an opportunity to regulate storage-related activities on a statutory development control base. If the appellant reconstructed the old stores in situ, he could still do whatever the Appeal
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297
Board suspected him to do. But if a planning permission was granted on specific conditions, then his behaviour could be regulated more easily as a licensee.
The Appeal Board indicated that the appellant could well use the old stores, reconstructed or otherwise, for their old uses. From the evidence reported, it seems that the use had long been abandoned. If the appellant recommenced that abandoned use, he might be prosecuted by the Planning Department for 'unauthorized developoment', provided that the Department had evidence of such revival of extinguished uses.
Questions:
1. Why did the appellant make a s. 16 application? Was planning
enforcement lurking in the background?
2. What has happened to the subject site since the appeal was dismissed?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 8, 9 and 10.
Case:
Content of storage and material change of use
East Barnet UDC v British Transport Commission [1962] 2 QB 484, [1961]
3 A11 ER 878
THE NG SIU WING CASE
•
Case Name: Lot No. 89 in DD 248, Tsueng Kwan O, New Territories [the Ng Siu Wing Case]
•
Planning Appeal Case No. : 06/94
Similar Cases: cases nos. 04/92 [the Sung Dynasty City Case] regarding
GIC Zoning;
07/92, 18/92, 19/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94,
"
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, Tang Sai Hung, Tong Kam Wong, 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
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and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans);
05/92, 07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94,
>
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, Tang Sai Hung, Tong Kam Wong, 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, —, 18/95 [ The Yuen To-shing and Yuen Shu-ling, -,
and Jetway Civil Cases] regarding small house development.
Nature of the Case: Block Crown Lease, Layout Plan defining planning intention where the Appeal Board had sympathy but had no jurisdiction to help the appellant; Government/Institution/Community (GIC) Zoning; Outline Zoning Plan (OZP) ignoring contractual rights of Crown lessees, established before the publication of the OZP, by reference to a Layout Plan: relationship between statutory plans on the one hand and administrative/departmental plans and Crown leases on the other hand; cover pages of the Notes to OZPs; subject site becomes part of a statutory zoning plan while application for small houses in progress; the construction of a new house or reconstruction of an old one.
Date of s. 16 Application: 9 December 1993
Date of Hearing: 18 January 1995
Date of Decision: 7 March 1995
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Mr Kervin Yan for the Town Planning Board
(b) Representation for the appellant was not mentioned in the text
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) The function of the Town Planning Appeal Board is to decide whether from a planning point of view, permission should be granted. As the Town Planning Ordinance imposes restraints on an owner without compensation, permission should be granted unless there are good planning objections.
(b) That an applicant or appellant has not objected to a statutory town plan shall not in any way prejudice him or her for permission under s. 16, its review or appeal. Planning permission shall be granted
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299
unless there are sound planning objections to the application. (Compare this rule with that in the Tang Sai Hung case)
Background:
The subject site was Lot 89 in Demarcation District 248 which had an area of 17.6 m2. It was owned by four brothers. In the schedule to the Block Crown Lease, a latrine was recorded. Remains of certain structures on the site could be found at the time of the appeal. The appellants said that there had been once an ancestral home, which was destroyed in the Second World War. The Appeal Board's decision recorded, however, that 'it is not possible to tell whether those structures were intended for human habitation.' (para. 13) They had another ancestral home at Lots 111 to 112 in DD 248 where they grew up.
The subject site was in a densely wooded area. There was no vehicular access nor footpath connection to the site from Wong Lai Road to its south. Wing Lai Road provided the only vehicular approach.
As male adult indigenous villagers over the age of 18, the appellants were entitled to build a small house on the subject site.
The appellants had wanted to build on the site since July 1991. Initially, there had been a delay as there was a disagreement over the area of the site with the government. A letter from the District Lands Officer (DLO), Sai Kung, dated 1 November 1991, the subject site had been recorded to have an area of 13.5 m2.
The land area dispute was resolved after the appellant had paid HK$ 20 317 to have the site set out and surveyed on 23 November 1992.
On 11 December 1992, the subject site became falling within a Government/Institution/Community (GIC) Zone in the draft Tsueng Kwan O Outline Zoning Plan No. S/TKO/1 (OZP 1) in the gazette published on that date. It was so zoned later also in the draft Tsueng Kwan O Outline Zoning Plan No. S/TKO/3 (OZP 2) in the gazette published on 21 May 1994.
According to Column 2 of the notes for GIC Zones, the construction of a new house required planning permission.
Also, according to para. (vi) of the 'Covering Notes to the OZP' (in fact, they were cover pages of the Notes to the OZP), Open Space was always permitted in all zones. In the approved Po Lam North Layout Plan No. L/ TKO-8/2, the subject site fell within a Local Open Space (LO) Zone. The OZPs 1 and 2 were exhibited publicly and the notice thereof advertised once a week in a local newspaper under s.5 of the Town Planning Ordinance.
The OZPs also contained certain Village Type Development (V) Zones. According to paras. 6.6.1 and 6.6.2 of the Explanatory Statement to the OZP 1 (para. 28), it provides that:
6.6.1 This zone provides for the retention and expansion of existing villages as well as the reservation of land for the reprovisioning
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of village houses affected by Government projects. In order to ensure that any future development or redevelopment within these villages would retain the village character, a maximum building height of 3 storeys (8.23 m) or height of the existing building(s) whichever is the greater is imposed under this zoning.
6.6.2 This zoning covers the existing villages including Tseung Kwan O Village, Mau Wu Tsai Village, Boom Kin Village and the existing village houses along Hang Hau Road. It also includes Yau Yue Wan Village resite in Area 22 and Hang Hau Village resite in Area 31, both of which have been completed. Sites for village extension and/or resite purposes are reserved within Areas 7, 8, 31 and 35. (italics mine)
The DLO/Sai Kung wrote to the appellant in a letter dated 15 November 1993 stating that planning permission would be required for their small house development. Yet, the appellants were not aware of the OZP 1. They had never objected to the OZP.
On 9 December 1993, the appellants applied for planning permission to build a 3-storey house for their own use. The application was rejected in the first instance and again in the review.
Arguments:
The appellants argued that:
(a) they had an ancestral home on the subject site destroyed in the War; (b) they were entitled to build a small house on the subject site, i.e. their
land;
(c) they were not forewarned of the OZP 1 prior to 1993;
(d) to prohibit them from building the small house on the subject site without compensation or to offer an alternative site amounts to unfair expropriation;
(e) a site should have been offered to them in the area zoned Village Type
Development (V) within the OZP; and
(f) they wondered whether there was rule of law in Hong Kong for loss of
proprietary rights were not compensated.
The Town Planning Board, in rejecting the application in both the s. 16 and s. 17(1) procedures, held that (para. 6):
(a) the proposed development was not in line with the planning intention for the area which was for government, institution and community uses, and was specifically designated for the development of local open space as shown on the adopted Po Lam North Layout Plan;
(b) the site area of about 17.6 m2 was small and it had not been demonstrated in the submission how a decent house could be accommodated on the site.
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The Planning Department objected to the s. 16 application in the first instance on the following grounds (para. 5):
(a) The site fell within an area zoned ‘LO' on the approved Po Lam North Layout Plan which was intended for acting as a green buffer area between the proposed 400 kV electricity sub-station and Tseung Kwan O Village. Development of a small house amid the densely vegetated area would undermine the LO development. This was not in line with the planning intention of the area.
(b) The application site with a site area of only 17.6 m2 was too small for the development of a modern 3-storey house which normally included internal staircase, toilet, kitchen, etc.
(c) The site was part of those agricultural lots where the provision of road access and connections of sewerage and stormwater was uncertain. Fragmented small house development without proper road access and service connections would be incompatible with the well-planned developments in the new town and should not be permitted as an undesirable precedent.
Before the Appeal Board, the District Planning Officer (DPO)/Sai Kung, Mr Kelvin Yan, explained that:
(a) the DLO/Sai Kung should have been aware of the prospect of an OZP
to be imposed shortly at least from 23 October 1991; and
(b) the V Zone in the OZP was not meant to be used for the exchange the appellants had in mind as the land was 'reserved to cater for the demand for village houses by indigenous inhabitants (a growing population) and when houses or villages have to be re-sited'. (para. 29) (italics mine)
Reasons for Decision:
The Appeal Board dismissed the appeal although it expressed great sympathy for the appellants. The Appeal Board's decision recorded is as follows: . . . planning is for the common good. Sometimes the burden on individual owners can be heavy. But, whether individual owners who are prejudiced by the Ordinance should be compensated is a question which only the Administration and the Legislature can answer.' (para. 32) (italics and emphasis mine) [Bearing in mind the protection of private property in the Sino-British Agreement and Basic Law.]
Comments:
One should not suppose that the Ng Siu Wing case is unimportant though (a) its transcript for decision has only 7 pages; and (b) neither the respondent nor the appellant was apparently represented by counsels. It contains issues and arguments of paramount importance that may be disguised by the simplicity of the case: a rejection of a single small house on a small site owned by four unfortunate brothers on the grounds of
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'common good'. Apparently, it is a case not too articulate in an ordinary GIC Zone, which was in the corner of a small new town. Yet, this case will tax the mind of the planners or people in high positions who order others' livelihood, if they agree that planning is for people, rich and poor alike.
Having reviewed 29 reported cases, including the present one, I have confidence in saying that the Appeal Board tends to work on an 'action- reaction' basis, i.e. its decisions seem more sophisticated for cases that are apparently more complicated or better represented. However, it would be less so if they are apparently minor cases or are not as well represented.
With all due respect, I must say that the Appeal Board's decision in this case is regrettable. This is particularly so because of what the Appeal Board had done in the Henderson and Naturaluck cases (as interpreted correctly by the Privy Council). The reason is that the Appeal Board had ignored a number of factors which would assist the appellant. If the Appeal Board had been prepared to give more substance to their sympathy, the decision would have been different. The present case is by no means less important than the Henderson case, however. This is explained in the sections below.
Should Individual Owners Who Are Prejudiced by the Ordinance Be Compensated before and after 30 June 1997? (The Relevance of the Sino-British Agreement and the Basic Law)
Before 30 June 1997, the laws of Hong Kong had been governed by the Letters Patent, which did not provide for any protection of private property rights against government interference without compensation. However, the British administration in Hong Kong had a policy of ex-gratia payment and statutory compensation for infringements of private rights for land taken for ‘public purpose' under the Crown Lands Resumption, Highways and Mass Transit Railway Ordinance. Resumption of land for the purpose of developing open space by the Urban or Regional Council would be compensated upon application. However, planning blight or down-zoning affecting pre-existing rights under the Crown lease remained uncompensated. Even in the absence of a written law conferring compensation for devaluation or limitation of pre-existing rights, the government should have realized that it was neither equitable nor moral to inflict uncompensated damage to private property rights of lessees. The reasons are as follows:
(a) Land leases had been granted in the name of the Crown, and later the
government of Hong Kong, solemnly in the Crown lease as a matter of contract. The government should have honoured her contractual duty not to unilaterally subtract, diminish, remove or restrict such rights. Where they are so affected by planning legislation, they should have been compensated. The amount of compensation should have been another separate issue.
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(b) The government had always charged a premium on gain land value due to a lease modification for higher development intensity or greater value users. So, reciprocally, the government should have also paid a damage for loss of value due to planning controls.
(c) The government had been providing squatters without land rights, or licensees without full land rights, with ex-gratia payment or other types of subsidy in kind (such as public housing). Hence, she should have been particularly cautious with infringement of the rights of lessees.
(d) The Joint Declaration of the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong (the Sino-British Agreement of 1984) expressly stated that the laws of Hong Kong after 30 June 1997 shall protect private property and that resumption must be compensated. The Sino-British Agreement has the status of an international treaty which is more important than such agreement as the Ramsar Convention (that protects the Mai Po Marshes). It refers to the laws of Hong Kong after 30 June 1997. Thus, the Hong Kong colonial government should not have attempted to legislate before that date against private property without compensation. To do so is to infringe the long-term 'planning intention' for the entire Hong Kong Special Administrative Region a capitalist market economy predicated on private property.
The above reasons do not negate the need for statutory planning for public benefit, assuming that the benefit genuinely is always 'public' and 'real'. They nevertheless lend support to the argument that lessees adversely affected by statutory planning should have been compensated.
With effect from midnight of 30 June 1997, laws in Hong Kong has become subject to an entrenched written constitution, the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (the Basic Law). It is just a matter of time, I believe, that the Town Planning Ordinance in its present form will be challenged in terms of the Basic Law.
The logic of this case should be compared with that in the Jetway Civil case, post.
Was Planning Application Required in the First Place? (Reconstruction of Old Houses)
The fact that a ‘latrine' was recorded against the subject site meant that it was a piece of 'house land' or at least 'buildable'. It is most unfortunate that the Appeal Board was not provided with evidence showing that there had been any house, though damaged, on the site. Surely, had the claims been true, there had to be evidence either from the Village Representative
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or from the people who survived the War and knew the place well. Had there been evidence to support the existence of the house, albeit only parts of it remained, the appellant could have proceeded to reconstruct that house in accordance with the descriptions on the cover page of the Notes to the OZPs. Compare this case with the preceding Tong Kam Wong case.
Sufficient v Effective Notice of the OZP
The provisions for procedural steps of publishing and exhibiting a plan under the Town Planning Ordinance do not show much respect for private property. Ordinary people may not get the message effectively as they are unlikely to be regular subscribers of government gazettes or readers of the newspapers in which the plan is advertised. The government has no policy or legal commitment to inform each proprietor of a new plan by serving postal notices.
What Is A Planning Point of View"?
It is most unfortunate that the Appeal Board did not elucidate its 'planning point of view'. Apparently, it refers to physical planning at the expense of private property rights, the small house policy or the scale of the development.
What Is the Spirit of the Small House Policy? Where Is the DLO's views?
We do not know what the views of DLO/Sai Kung had for this case. In fact, had one of the brothers used this site for a small house, it would be to his disadvantage but it would be an advantage for the government as the land-take was so small. He could have asked for a site of 700 square feet.
Was the Site Too Small or Too Big?
A typical reason for rejecting applications in the Green Belt Zones or G/IC Zones is that the scale of development is either too big or excessive. However, the application in this case was rejected partly because of the small scale of the development. As the argument against development is usually built around visual impact or burden on infrastructure, then this small-scale development should be 'more beautiful' and pose no great burden on infrastructure.
Was the Site Ideal for Small House Development?
It was ruled in the Naturaluck case that it did not matter whether the proposal was ideal for the site. It would suffice if it satisfied the minimum planning standards. When dismissing this appeal, the Appeal Board,
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however, had apparently swung back to the position adopted in the Shell Hong Kong case. After all, what is the 'demonstrable harm to interests of acknowledged importance' in this case? Indeed, rejecting the application would compromise the small house policy.
What Did the Appeal Board Decision Achieve from a Planning Point of View?
The Appeal Board here rejected a small house development on private land in a zone which did not preclude building work (G/IC facilities are mainly provided in high-rise buildings). The proposal had no ‘demonstrable public harm' but could be of great emotional value to the four brothers.
Was Planning Intention Contained in the Layout Plan? Is the First Reason of the Town Planning Board Impossible to Fault?
What, after all, is the true planning intention for the GIC or V Zones? The Appeal Board was not advised to consider a number of relevant considerations regarding the notion of planning intention. To begin with, why was 'house' a use that might be permissible in Column 2 of the G/IC zone if the intention had been to rule out houses as a matter of principle? In other words, why was not the subject zoned Open Space (0) or Green Belt (GB)? Secondly, what does it mean by 'reprovisioning of village houses affected by Government projects' for a V Zone? Was it not true that this case involved a justified land exchange? Would the exchange facilitate the government's development of LO on the site or G/IC facilities in the vicinity? Thirdly, was Regional Council prepared to take up the land?
Relevance of Private Property Rights
Again, the issue of private property rights was ignored by the Appeal Board. However, the Appeal Board in this case ruled out the rule established in the Tang Sai Hung case, i.e. an applicant needs to raise objections to a relevant statutory plan when it was first published in case he or she seeks to criticize the plan in an appeal.
Question:
1. What has happened to the subject site since the appeal was dismissed?
Reference:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2, 3, 9 and 10.
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THE LEE YIU KAM CASE
•
Case Name: Lot No. 775 BRP in DD 46, Man Uk Pin, Fan Ling, New Territories [the Lee Yiu Kam Case]
Planning Appeal Case No.: 09/94
"
Similar Cases: cases nos. 07/92, 18/92, 19/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 06/94, 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, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing,, 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);
"
08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, - 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, Tang Sai Hing, Tong Kam Wong, -, 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, 19/93, 01/94,
"
05/95, 07/95 and
28/95 [the Full Look, Treasure Base (2), Shell Hong Kong, Naturaluck, Ever Need, Tang Sai Hung, Planet Universal, Delight World and Fine Tower Cases] regarding incompatibility with adjoining uses, environment/development;
04/93 and 05/93, 01/94, —, 02/95, 05/95, 07/95, 08/95 and 21/95 [the Treasure Base (2), Tang Sai Hung, —, 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: planning intention and Explanatory Statement; planned agricultural use said to be affected by water pollution due to adjoining industrial uses; encouragement of agriculture through planning.
Date of s. 16 Application: 15 November 1993
Date of Hearing: 22–23 March 1995
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•
Date of Decision: 10 April 1995
307
•
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Mr J. McNamara and Miss V. Patel for the Town Planning Board (b) Reprresentation for the appellant was not mentioned in the text
Decision: Appeal dismissed
Rules Laid down by the Decision:
Two questions shall be asked in deciding an application for warehouses or parking spaces in the rural areas: (a) Was the use applied for consistent with the planning intention to permit the proposed change in user of the Crown lease? (b) Was the proposed user compatible with its rural environment?
Background:
The subject site was Lot No. 775 BRP in Demarcation District (DD) 46 and a small piece of Crown land. The Crown lease restricted user to 'agriculture or garden use excluding any noisy or offensive trades'. (para. 4) With an area of about 770 m2 inclusive of the Crown land, the subject site fell within an Unspecified Use Zone in the draft Man Uk Pin Development Permission Area Plan No. DPA/NE-MUP/1 (DPA Plan) which was published in the gazette on 12 July 1991.
It was reported that there was a vacant single-storey pig shed on the subject site. Apart from an area of about 181 m2, which was said to have been contaminated by chemicals from a metal processing workshop to the south of the site. It was reported that substantial area on the subject site was covered with vegetation.
Under the DPA Plan, the change of user requires planning permission. Para. 6.3.3 stated that 'the notes (Explanatory Statement) to the DPA Plan are relevant and they provided':
6.3.3 Unspecified Use (Total Area 134.99 ha)
(e)
(ii)
Areas without specified zoning on the DPA plan are intended to meet unforeseen requirements in the longer terms. Further detailed planning study is required to identify the most appropriate use of land.
Considering the predominantly rural character of the DPA, the planning intention is thus to encourage agricultural and recreational development which should be in keeping with the development site and its surrounding. Proposals which are likely to cause disturbance to the local communities will not be permitted and therefore open storage uses and rural industries will not be permitted with a view to avoiding unwanted urban growth and enhancing the quality of the
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environment. Residential development may be permitted where it is established that a dwelling is necessary to support the agricultural use. (italics and emphasis mine)
6.3.5. For any other developments within this area, the owners/ developers must demonstrate that their proposals would have insignificant adverse impacts on the environment, traffic and drainage of the areas or appropriate measures will be taken to mitigate such impacts to an acceptable level. The submission of Master Layout Plan, Landscape Plan, Environmental Impact Assessments, Drainage Impact Study and/or Traffic Impact Study may be required when the proposal is submitted for consideration.
The appellant applied under s. 16 on 15 November 1993 to convert the pig shed to a warehouse for storage of building materials, and the open area for open storage of building materials and for parking, loading/ unloading and manoeuvring of goods vehicles.
The application was rejected in the first instance and in the review by the Town Planning Board.
Arguments:
It was reported that at the appeal, 'the Appellant appeared in person and presented his case clearly and objectively'. Members of the Appeal Board expressed their gratitude for his assistance.
Before the hearing of the appeal, the appellant had prepared a new plan. It indicated the area on the subject site which could be used for parking, loading and unloading. A Senior Traffic Engineer of the Transport Department, Mr Lee Yan Ming, stated that there was, in principle, no objection to the appellant's latest plan, apart from the requirement that the run-in should have been widened from 4 m to 5.5 m. The appellant was prepared to do so.
During the appeal hearing, the appellant also suggested that he would plant banyans and calliandras along Sha Tau Kok Road for beautification purpose. The Appeal Board stated that it believed the suggestion could work and would go into greater detail as to how extensive the planting should be had they decided that the application should be granted.
Before the Appeal Board, the appellant argued on the following grounds: (a) It was not possible to use the subject site for agricultural purposes because about one-third of the site had been contaminated by chemicals from the metal processing workshop to the south of the site. Nothing, he said, would grow there anymore. As a knowledgeable farmer, the appellant was convinced that unless the top soil was removed, nothing would grow in the contaminated area.
(b) No water was available. Sinking a well would be useless because the
water would also be contaminated.
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(c) The site was too small and could not support the livelihood of one
person.
At the hearing, the District Planning Officer, Mr David O.Y. Wong, stated that:
(a) enforcement and prosecution actions were being taken against unlawful users of land in the neighbourhood who were putting land under storage and godown purposes. Once such actions were completed, the area would become 'overwhelmingly rural in character'. (para. 15) (inverted commas and italics mine)
(b) District Lands Office/North was considering taking lease enforcement against the metal processing workshop. If that happened, then further contamination would be stopped.
At the hearing, an Agricultural Officer from the Agriculture and Fisheries Department (AFD), Mr Ng Yeung Shing, Thomas, stated that the agricultural land covered by the DPA Plan was Grade A. 60% of the arable area was under active cultivation and the site was ideally suitable for agricultural use. Indeed, since 1988, the AFD had been implementing the Agricultural Land Rehabilitation Scheme (ALRS) to bring abandoned agricultural land back to cultivation.
Reasons for Decision:
The Appeal Board dismissed the appeal with regret. The Appeal Board said that it decided the case on two main questions, namely:
(a) Was the use applied for consistent with the planning intention to
permit the proposed change in user of the Crown lease?
(b) Was the proposed user compatible with its rural environment?
The Appeal Board felt that the answer to both questions were negative and so the appeal was dismissed. The Appeal Board also dismissed the submission of the appellant as regards suitability of the subject site for agriculture, notably contamination, and livelihood. The substance of the two reasons of the Appeal Board and its counter-arguments against the appellant's submissions are described below.
Inconsistent with Planning Intention
The Appeal Board recorded: ‘As the Appellant himself realises, the main stumbling block to his application is the clearly stated planning intention for the "unspecified use" area in the DPA Plan.' (para. 13) (italics mine)
The Appeal Board laid stress on the planning intention as revealed in para. 6.3.3.(ii) and said that 'it is the clear objective of the DPA Plan that agricultural land within the DPA Plan should be used for agricultural purpose (though recreational use would also be encouraged)'.
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Incompatible with Overwhelmingly Rural Environment
The Appeal Board obviously accepted the evidence of the DPO and representative of the AFD about the bright future of farming in the area accorded by planning enforcement and the ALRS respectively. It was stated in the decision that the DPO said that the area would become 'overwhelmingly rural'. AFD had also said that the subject site, as it was, was immediately ideal for agriculture.
Farming Was Not Non-Viable
The Appeal Board had doubts about the submission of contamination. Yet, even if that submission was accepted, the Appeal Board was not convinced that farming was impossible because of the following:
(a) Grow plants in bags
'it is clear from the appellant's evidence that even in the contaminated area horticulture use is possible, since many plants are grown in bags or pots.' (para. 21)
(b) Water from wells can be used
As regards the submission about water contamination as an irrigation problem, the Appeal Board came to the view that well water could be used instead. The Appeal Board stated: "There is nothing to show that contamination is such that even wells are poisoned. Indeed, just across the road from the Site there is active farming. Also there is lush vegetation on substantial parts of the Site.'
(c) Planning will make you farm
As regards the appellant's argument claiming that the subject site was too small for supporting the livelihood of one person, the Appeal Board's response was:
even so, it is also his evidence that in the New Territories it is not uncommon for a farmer more than one field because generally speaking fields are small. The real reason why little agricultural land is available is because rent is low (according to him about 4 to 5 picculs of rice a year) for about 700 sq.m. and owners find it unattractive to let land for agricultural use. But once it is realised that planning permission would not be granted to change the user, it may be that landowners will be more prepared to let land for agricultural purposes.' (para. 24) (italics mine)
Comments:
The Appeal Board apparently showed great respect to the appellant but eventually decided against his favour. Like the Ng Siu Wing case, this case was deceptively simple. Amongst these superficially straightforward and sympathetic statements, spurious and reckless arguments are abound.
Planning Appeal Cases
Where Were the Comments of Environmental Protection Department?
311
As regards contamination of water tables or underground water, the most appropriate department to consult is the Environmental Protection Department (EPD). It is most unfortunate that there was no report of the views of EPD in this respect.
Without having consulted experts, the Appeal Board made a reckless judgment by equating plant growth with non-contamination of plants. Plants can still grow in polluted environment. Whether they grow well or non-harmful notwithstanding the pollution is another issue. Alternatively, what would be the substantive environmental grounds for taking lease and planning enforcement against bad users in the vicinity?
How Much Did It Cost for Digging a ‘Scientific Well' to Get Underground Water?
With respect to the Appeal Board's suggestion for digging wells, three relevant questions were not addressed: (a) the costs of investigation and actual construction; (b) the possibility of obtaining water from the Water Supplies Department; and (c) the suitability of using well, or portable water for irrigation.
What Is the True Planning Intention?
If the true planning intention had been to restrict land for agricultural purposes so that the proposed open storage and parking uses were excluded, it would be difficult to reconcile with the fact that Recreational Use was also permitted.
The argument of long-term planning begs the question of what is really the true future of farming. One contradicts oneself by saying that an intention of using land for farming is necessarily consistent with an unknown land use in future. If such long-term planning in the future, which awaits the planner's final decision, is to prevail, then what will be the harm of permitting the use on a temporary basis - subject to whatever planning conditions the Town Planning Board or Appeal Board sees fit? Insofar as a use does not involve permanent building work, it is hard to conceive how and why the phrase 'pre-empting future planning' has any material meaning.
What Does It Mean by an 'Overwhelmingly Rural Environment"?
What does it mean by an 'overwhelmingly rural environment"? Is a one- storey warehouse not rural enough? If 'rural' means farming, then why is there a need for planning enforcement and the Agricultural Land Rehabilitation Scheme (ALRS)? The Appeal Board here invited the applicant to dig a well and try to cultivate. Would this pose a health risk
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on the consumers or on the farmer himself? Or should the farmer wait at home or till somewhere else until the government clears the unauthorized uses surrounding his plot? Alternatively, he could wait until the ALRS extended onto his land.
Moral Rights, Human Rights and Economic Validity of the 'Planning Will Make You Farm' Thesis
If the suggestion of the Appeal Board means that the Town Planning Board's rejection of the proposal will help 'promote' farming, it is indulging in fallacious economic thinking. If it means that such decisions will force people to farm, its paternalistic posture is hard to justify in moral terms as individuals have rights to use their land according to the lease which acts as a contract with the government.
What Did the Appeal Board Decision Achieve from a Planning Point of View?
This case demonstrates the ad hoc and arbitrary ways in which an application was rejected: it was rejected not on technical grounds but on grounds of a supposed planning intention for conserving farm land. Whether such land is amenable to viable commercial farming is not an issue here.
Relevance of Private Property Rights
Private property rights were not in the mind of the Appeal Board as in the majority of the cases.
Question:
1. What has happened to the subject site since the dismissal of the appeal?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 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 SUN LINK PROPERTIES CASE
Case Name: Various lots in DD 221, Sha Kok Mei, Sai Kung, New Territories [the Sun Link Properties Case]
Planning Appeal Cases
•
Planning Appeal Case No.: 10/94
313
Similar Cases: cases nos. 04/92, 07/92, 08 and 09/92, 15/92, 18/92, 19/92, 05/95, 07/95, 08/95 [the Sung Dynasty City, Full Look, Yuen To- shing and Yuen Shu-ling, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Planet Universal, Delight World, Yin Ning Savings Cases] as regards the meaning of ad hoc and comprehensive development;
07/92, 18/92, 19/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, -, 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, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, 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);
2
08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 09/94, 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, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam,, 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; 01/91, 02/92, 03/92, 07/92, 13/93, 02/95, 05/95, 07/95, 08/95 [the Alticosmic, Conduit Road, Wo Yi Hop Road, Full Look, Henderson (not), Charming City, Planet Universal, Delight World, Yin Ning Savings Cases] regarding excessive development intensity;
03/92, 08 and 09/92, 12/92, 14/92, 15/92, 18/92, 19/92, 04 and 05/93, 11/93, 13/93, 14/93, 01/94, 05/94, -, 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 and Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sanyear Investment, Delight World, Yin Ning Savings and Lucky Gain Cases] regarding adverse traffic/access problems; 11/93, [the Shell Hong Kong Case, Comprehensive Transport Study (CTS-2).
regarding the Second
Nature of the Case: the meaning of 'rural development area' as a term of art used by planners; Unspecified Use Zones, Block Crown lease, old schedule lots; planning intention as stated in the Explanatory Statement to the DPA Plan and inferred from the area specifically zoned for residential
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uses in the DPA Plan and subsequent zoning in the Outline Zoning Plan (OZP); ad hoc v comprehensive development; application consistent with planning intention but abjudged to be excessive in terms of traffic generation and development intensity; concept of excessive development intensity; traffic impact; the Second Comprehensive Transport Study (CTS -2).
Date of s. 16 Application: 11 December 1993
Date of Hearing: 8-16 May 1995
Date of Decision: 14 June 1995
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) J. McNamara and V. Patel for the Town Planning Board (b) John Y.H. Hsi and Associates for the appellant
Decision: Appeal dismissed
• Rules Laid down by the Decision:
(a) The zoning of an Outline Zoning Plan throws light on the planning intention for an unspecified use area zone in an IDPA or DPA Plan. (b) For considering traffic impact, the carrying capacity of a major external
link was relevant.
(c) Local traffic congestion or road capacity constraint would frustrate an application even though other Column 1 uses in other zones may well generate no less traffic.
Background:
The subject site fell within an Unspecified Use Zone in the draft Sha Kok Mei Development Permission Area Plan No. DPA/SK-SKM/2 (the DPA Plan) which was published in the gazatte on 12 July 1991. It had an area of 12 877 m2 of which 11 833 m2 was held under a block Crown lease. The remainder of the site consisted of two small 'old schedule' lots and some Crown land.
In December 1993, the appellant made a s. 16 application for a residential development. The proposal was to construct 42 houses, a club house, a swimming pool and a playground at a plot ratio of 0.4 and a site coverage of 20%. On the roof of the club house was a tennis court. Sixty- eight car parking spaces were also included in the proposal.
The planning application was rejected in the first stance and again in a review heard on 24 June 1994. One week after the review, part of the subject site was zoned 'Residential (D)' (R(D)) and the rest 'Green Belt' (GB).
Planning Appeal Cases
Arguments:
The appellant argued that:
315
(a) the Transport Department's traffic survey conducted on 17 January 1995 for the section of Hiram's Highway near Ho Chung was unreliable. As it was based only on a survey conducted on one day and at one spot; and
(b) there was much pressure on the area for high-class residential
development.
The Town Planning Board, in refusing the application in the s. 17 (1) review held that (para. 4):
(a) the proposed development of a plot ratio of 0.4 was excessive and would have adverse impact on the infrastructural provision (particularly, it would overload Hiram's Highway);
(b) the design of the proposed vehicular access was unsatisfactory as footpaths should be provided on both sides of the proposed access road; and
(c) the approval of the proposed development would set a precedent for similar applications leading to adverse cumulative effects on traffic conditions in the area.
Senior Traffic Engineer, Mr Sin Kwok-keung, testified that the carrying capacity of Hiram's Highway was about 1800 passenger-car units per hour (pcu/hr). A survey conducted by the Transport Department on 17 January 1995 showed that the total pcu/hr for the section of Hiram's Highway near Ho Chung was 2078 pcu/hr during the morning peak.
Reasons for Decision:
The Appeal Board affirmed the decisions of the Town Planning Board and dismissed the appeal. The reasons for the decision did not include the usual objection on the grounds of planning intention. Instead, they were based on traffic and development intensity considerations.
Application Consistent with Planning Intention
Para. 2.2 of the Explanatory Statement to the draft DPA Plan was noted by the Appeal Board to have stated the object of the plan (para. 6):
2.2
to provide guidance for planning and to facilitate development control within the Area during the period required for detailed analysis of the land use pattern, study of infrastructural provisions and examination of development options before the formulation of an outline zoning plan.
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The Appeal Board also noted that the subject site fell within a sub- area of the 'unspecified use' zone as described in para. 6.3.5 (b) of the Explanatory Statement (para. 9):
6.3.5. Unspecified Use (Total Area: 61.15 ha)
(b) Kap Pin Long San Tsuen and Kap Pin Long sub-area
Due to the lack of planning control in the past, the areas have resulted in a fragmented and uncoordinated development pattern with poor infrastructural facilities. The planning intention of this sub-area is to encourage the improvement of the area to become rural development area through developments by private initiatives in order to prevent the proliferation of haphazard and polluting uses, such as container and open storage, and car breaking and dumping. However, transport infrastructure is the major development constraint which must be improved before any large-scale development would be permitted to take place.
The Appeal Board came to the view that the expression 'rural development area' in para. 6.3.5 was ‘a term of art used by planners to designate broadly an area for comprehensive low-density residential development, in accordance with a master layout plan'. Hence, ‘In other words, low density development within the area of the appellant's site is consistent with the broad intention.' (para. 10) (italics and emphasis mine) The Appeal Board noted further that para. 7 of the Explanatory Statement also threw light on the planning intention (para. 11):
7.
Implementation of the Plan
7.1.
·
residential developments will inevitably increase the population and thus the traffic flows to and from the Area. Such developments are constrained by the conditions and capacities of local vehicular accesses and their junctions with the major highways, as well as by the existing and future overall capacity of the major highway linking with external areas.
Real Traffic Constraints: Carrying Capacity of Hiram's Highway Not Design of the Proposed Vehicular Access
The Appeal Board considered that the objection of the Town Planning Board on the design of the proposed vehicular access was no longer an issue. Yet, it discovered another objection from the traffic point of view: the carrying capacity of Hiram's Highway.
The Appeal Board noted that the subject site was located about 300 m west of Tai Mong Tsai Road, which was a continuation of Hiram's Highway. This road led into Clear Water Bay Road at a T-junction, which was the major traffic link with urban Kowloon.
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The Appeal Board did not accept the appellant's submission that the survey of the Transport Department was unreliable as:
(a) there was nothing to indicate that the survey was not conducted on a
typical week day;
(b) the appellant's consultant conducted no survey at all;
(c) the appellant's consultant simply attempted to extrapolate figures from the Second Comprehensive Transport Study (CTS-2') model — a territory-wide survey which was not focused upon the unusual features of traffic flow along Hiram's Highway'. The study arrived at a pcu/hr of 2000 as the carrying capacity of Hiram's Highway.
The Appeal Board stated that they were not impressed by the evidence of the appellant's expert. 'He appeared more inclined to argue the case for the development than to assess the situation objectively from the good traffic-management point of view.' (para. 14)
The Appeal Board did not accept the argument that the carrying capacity of the Hiram's Highway was 2000 as this was extrapolated from a Transport Department paper that deals with the design flow characteristics of roads in general. The Appeal Board accepted the Transport Department's opinion that traffic on Hiram's Highway was already 15% exceeding its carrying capacity.
The Appeal Board noted that (a) there was a stretch of the Highway which had a steep gradient and substandard curves; and (b) none of the tentative proposals to improve the Highway had advanced beyond category B in the public works programme. The prospect of substantial improvement of the relevant section of the Highway also 'lies in the distant future' (para. 16).
The conclusion regarding traffic was: 'Whilst the additional traffic to be generated by a development such as that proposed by the appellant will not be enormous, it cannot be dismissed as insignificant.' (para. 17) (italic mine)
Excessive Development Intensity
The Appeal Board noted that the respondent did not deny the submission of the appellant stating that there was a market demand for high-class housing in the area. The Appeal Board put forward its position: "The question is simply this: Is the development as proposed too intense, having regard to the broad planning intentions for the area and the traffic constraints?'
The Appeal Board concurred with the view of the Town Planning Board that the development intensity of the proposal was excessive. The Appeal Board stated that its decision was 'reinforced in this view when we consider the draft outline zoning plan'. (para. 19) The Appeal Board's reasons were obscure here. It was reported that it noted: 'For Residential
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(D) the limitation on development was as follows: two-storeys with a plot ratio of 0.2 and a site coverage of 20%. As regards "Green Belt", there is a general presumption against development, but limited developments may be permitted if justified on strong planning grounds.' (para. 19)
Comments:
As in the Shell Hong Kong case, the results of CTS-2 were not considered too useful in this case.
Planning Intention Not in Issue
One noteworthy aspect of this appeal is that the Town Planning Board here did not raise objection on categorical grounds of planning intentions and that the Appeal Board agreed the application was consistent with the planning intention of the statutory town plan. The dismissal of the application was on technical grounds, namely traffic constraints and intensity of development. Indeed, the Appeal Board expressed its appreciation of the proposal and was reported to have remarked that 'there is no doubt that the development, if it materializes, will be very attractive'. (para. 2, lines 4-5)
Had the applicant been able to overcome these issues in a new planning application, the application would likely be permitted, provided that there had not been an OZP which designated the subject site as R(D) and GB.
Intensity
The Appeal Board discussed the concept of 'excessive development intensity' in some detail in this case.
Hiram's Highway Was Congested: The Story of PCUs
Two interesting professional planning questions arise from the line of thinking of the Appeal Board:
(a) Firstly, the Appeal Board in allowing the appeal in the Yiu Cho Investment case was concerned only with parking and vehicular manoeuvre problems. They paid less attention to the carrying capacity of Leigthon Road or Wong Nai Chung Road. In the present case, the Appeal Board's concern for traffic was focused on the carrying capacity of Hiram's Highway. This issue was not raised in the s. 17 review as the Town Planning Board had only been concerned with the design of the proposed vehicular access. In the Good Luck case, the appellant complained that traffic congestion did not prevent the government from allowing further office development in Central CBD. There the Appeal Board stated that the zoning in Central was different. Obviously, here, the Appeal Board was returning to its original position in the Good Luck and On Luk Tong cases where local traffic congestion
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319
or road capacity constraint would frustrate an application even though other Column 1 uses for other zones may well generate no less traffic. (b) Secondly, while the Appeal Board noted that the designated R(C) zones amounted to less than 1.41% of the DPA, the R(C) zones were quite substantial in terms of absolute area (4.39 ha), which was about four times the area of the subject site. (As noted by the Appeal Board, the DPA Plan envisaged a total of 4.39 ha of Residential (Group C) (R(C)) use, comprising of no more than 1.41% of the total area of the DPA Plan. The R(C) zone comprises two subcategories: 'R(C)1' with a maximum plot ratio cap of 0.6 and site coverage of 30%; ‘R(C)2' with a plot ratio of 0.4 and a site coverage 20%.) Had there been real traffic planning grounds to dismiss the appeal, there should also be good reasons to believe that the planner had made a mistake in designating so many R(C) zones in the catchment area of Hiram's Highway.
Objections to Statutory Plans and Administrative Explanatory Statements
The Appeal Board has frequently located the planning intention in the Explanatory Statements of statutory plans. While the Statements are also exhibited for public inspection, few would object to their contents. One lesson can be learnt from reviewing the reported appeal cases: if one pays great attention to the zoning map, the Notes and the contents of the Explanatory Statements to a statutory plan, one would know that his or her proprietor and other interests may be affected by the plan.
The Location of Planning Intention
The Appeal Board referred to the designated R(C) Zones in the DPA Plan and the R(D) and GB in the OZP, which replaced the DPA Plan, when discussing matters related to the concept of planning intention. The Appeal Board's position regarding the implications of the zoning of the OZP upon the application was consistent with that in the Henderson case.
Questions:
1. What are the land uses of the site at present?
2. Was there any planning application for housing on sites in the Hiram's Highway before the improvement works to Hiram's Highway are completed?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters, 2, 3, 4, 8, 9,
and 10.
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THE WONG YEE FAI (1) CASE
•
Case Name: Lots Nos. 117, 118 and 119 in DD 108, Fan Kam Road, Ta Shek Wu, Yuen Long, New Territories [the Wong Yee Fai (1) Case]
Planning Appeal Case No.: 11/94
Similar Cases: cases nos. 26/95 regarding the next appeal; 07/92, 18/92,
19/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 10/94,
, 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, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Sun Link Properties, 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 Ssytem, Rightlane Investment, Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans);
"
05/92, 07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94, 06/94,
09/94,
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, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, - 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, 17/93, 19/93, 01/94, 05/94, 09/94, 10/94, —, 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, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Sanyear Investment, Charming City, 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.
Nature of the Case: application for car repair workshop in Unspecified Use Zones; unauthorized development, aerial photographs; justification for application.
•
Date of s. 16 Application: 21 October 1993
•
Date of Hearing: 24 May 1995
•
Date of Decision: 14 June 1995
Planning Appeal Cases
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Chairman of Panel: Mr Robert Tang, QC, JP
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Representation:
(a) Representation for the Town Planning Board was not mentioned in
the decision
(b) Lanbase Surveyors Limited for the appellant
No comments yet.
Private notes are available after approval.