With an area of about 80 880 m2 (8 ha) within DD 129, the subject site fell within an Unspecified Use Zone in the draft Lau Fau Shan and Tsim Bei Tsui Development Permission Area Plan No. DPA/YL-LFS/1 (the DPA Plan) and the approved Lau Fau Shan and Tsim Bei Tsui DPA Plan No. DPA/YL-LFS/2. The draft DPA Plan was published in the gazette on 12 July 1991 and the approved plan was approved by the Governor in Council on 6 May 1994.
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The appellant, Charming City Estate Limited, made a s. 16 application (hereinafter referred to as 'the first application') under the approved DPA Plan for a residential development. Consisting of 146 houses, 292 parking spaces for cars with a designed population of 438 persons, the proposed development was planned at a plot ratio of 0.4 and site coverage of 13.4%. About 1.3 ha land (16.1%) of the subject site would be developed as public recreational facilities. These facilities included a sports pitch and a landscape garden, which were built and managed by the developer at no cost to the government and would be open to the public.
The application was rejected in the first instance and after a review hearing on 14 October 1994.
The DPA Plan was replaced by the draft Lau Fau Shan and Tsim Bei Tsui Outline Zoning Plan No. S/YL-LFS/1 (the OZP) which was published in the gazette on 10 June 1994. The subject site was zoned Green Belt (GB) on the draft OZP.
The appellant lodged in an appeal on 13 January 1995. The appeal was originally scheduled to be heard on 12 June 1995 but on application of the appellant, the hearing was adjourned until September 1995.
On 24 January 1995, another company, Chata (Hong Kong) Limited, submitted a s. 16 planning application (hereinafter referred to as 'the second application') for a residential development on the subject site. The proposal had public recreation facilities. The residential component of the proposed development had a design plot ratio of 0.295. This second application was successful on a s. 17 review on 17 March 1995.
Arguments:
The appellant argued that:
(a) the appeal should be allowed because they had obtained a successful
s. 17 review decision for the second application;
(b) since the appellant had demonstrated that their proposals would have insignificant adverse impact on the environment, traffic and drainage of the area or appropriate measures would be taken to minimize such impact, planning permission should have been granted;
(c) the fact that land could be turned to agricultural use did not mean that agricultural use was suitable. There was an abandoned platform on the site which was built some years ago. That platform area could not be used for traditional farming;
(d) limited suitable recreational uses could not reasonably be sustained; (e) the concept of 'gradation' of development had not been expressly stated
in the Notes to the DPA Plan;
(f) even under Green Belt zoning in the OZP, a development intensity of 0.295 had been approved. There was no difference in impact between the development which had been approved under the OZP and the development rejected which had been under the DPA Plan;
(g) the lack of adverse visual impact is an indicator of acceptable scale
and intensity' (para. 24); and
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(h) in the OZP, a large area within the Deep Bay Buffer Zone II had been zoned Village Type Development (V) and hence it was inappropriate to regard the subject site as an non-development area.
In rejecting the first application in the review, the Town Planning Board held that (para. 9):
(a) the proposed development was not in line with the planning intention for the area on the approved Lau Fau Shan and Tsim Bei Tsui Development Permission Area Plan, which was primarily to encourage agricultural and limited suitable recreational uses;
(b) the scale and intensity of the proposed development was excessive for
the
area;
(c) the ecological impact assessment in the absence of a winter bird survey was inadequate to demonstrate that the proposed development would have insignificant adverse impact on the area which was located in close proximity to the environmentally sensitive area;
(d) the proposed landscape plan was not satisfactory in showing the tree
felling and preservation proposals; and
(e) approval of the application might set an undesirable precedent.
During the appeal hearing, Mr Paul Ng, the District Planning Officer, said that a gradation concept in terms of land use had been adopted in the Lau Fau Shan/Tsim Bei Tsui area. Development was 'normally not allowed around the area near the SSSI and the MPNR' (para. 22) (SSSI stands for Site of Special Scientific Interest and MPNR for Mai Po Nature Reserve).
The DPO explained that:
[the] "area stretching westward in between Wan Fau Sin Koon and the Tsim Bei Tsui Police Station where the site is located is mainly intended for agricultural and recreational use. The area further westward in between the Lau Fau Shan roundabout and the Wan Fau Sin Koon is mainly for agricultural and recreational uses. However, due to the close proximity to the Lau Fau Shan roundabout, some low rise and low density development could be allowed subject to the approval of the Board, whereas development including residential and commercial activities are allowed in areas around Lau Fau Shan roundabout is 0.4. Above all, the maximum plot ratio envisaged for residential development in the area around the Lau Fau Shan roundabout is 0.4. AS such, the degree of control for development would be relaxed on areas further away from the SSSI and the MPNR with no development to development at a maximum plot ratio of 0.4 in area around Lau Fau Shan roundabout. AS the site is located immediately adjacent to Deep Bay Buffer Zone 2 (separated by the Deep Bay Haul Road), but farther away from the Lau Fau Shan roundabout area, the proposed development with a plot ratio of 0.4, a site coverage of 13.4%, 146 houses, 438 people and 292 carparking
Planning Appeal Cases
spaces is not contemplated under the DPA Plan and hence are considered excessive." (para. 22)
357
Counsel for the respondent also submitted that approval did not automatically follow where a proposal had no adverse environmental impact; it was because the proposal also had to be consistent with the planning intention. The contention was that the subject site was 'suitable for agricultural as well as limited suitable recreational uses'.
Reasons for Decision:
The Appeal Board dismissed the appeal.
The Outline Zoning Plan Could Be Used By Developer per the Henderson Case in the Court of Appeal
The Appeal Board first considered the validity of the appellant's plea that the provisions of the OZP could be relied on by the developer in determining the results of an application made under a DPA Plan. The Appeal Board did this by reference to the Hong Kong Court of Appeal decision on the Henderson case (Appeal Case No. 13/93): Lo Chai Wan suing for and on behalf of members of the Town Planning Board for an Order of Certiorari and Declarations v The Appeal Board and Henderson Real Estate Agency Limited, Civil Appeal No. 150 of 1995. According to the Court of Appeal, ruling in favour of the Town Planning Board against the Appeal Board, an OZP:
cannot curtail the scope of the power to grant the developers planning permission under the draft Nam Sang Wai DPA Plan. Nor can it be resorted to against the developers for the purpose of erecting any planning intention which is not to be gleaned from the sources by Mr. Thomas.
OZPs, on the other hand, be used by developers who apply for planning permission under DPA Plans. If an OZP were to contradict any planning intention asserted against them, such developers could pray it in aid for the purpose of meeting that assertion.
The relevance, such as it is. Of OZPS to applications for planning permission under DPA plans lies on OZPs being part of a scheme of things under which DPA Plans are only interim measures. That might well make a difference in some cases. But I do not think that it matters at all in the present case (per Bokhary J.A., para. 6) (emphasis mine)
The Remaining Issues for the Appeal Board
The Appeal Board then decided the Town Planning Board's reasons which, from its point of view, survived: (a) planning intention, and (b) development intensity. The Town Planning Board ruled that 'now that the DPA [Plan] has been overtaken by an OZP and there is no other pending appeal
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under the DPA, no question of precedent would arise.' (para. 10) (square brackets mine)
The Appeal Board then affirmed the decision of the Town Planning Board as regards (a) and (c) above. The reasons were as follows.
Planning Intention Was for 'Limited Suitable Recreational Uses'
In order to locate the 'planning intention', the Appeal Board was reported to have noted that the Town Planning Board looked in to the 'notes to the DPA relating to "Unspecified Use”' (para. 11, line 2) (italics mine). This was a grave mistake: the Appeal Board had, or had reportedly mistaken the 'Notes' with 'Explanatory Statements' to the DPA Plan. There are other occasions where the transcripts for the decisions of the Appeal Board appear to have confused 'Notes' with 'Explanatory Statements'.
The said 'Unspecified Use' Zone was described as having ‘a total area of 401.97 hectares broadly divided into four geographical sub-areas. The Site falls within sub-area 3 and the notes [Explanatory Statements to the DPA Plan really] provide. (para. 11) (square brackets mine)
the sub-area to the Northeast of Wan Fau Sin Koon and to the Southwest of Tsim Bei Tsui Police Station. This sub-area is mainly rural in character with large amount of abandoned agricultural land and some temporary structures. The planning intention for the sub- area is primarily to encourage agricultural and limited suitable recreational uses. (para. 11)
The notes [Explanatory Statements to the DPA Plan really] also contain a provision under para. 6.2.5 that
(d) there may be area where private initiatives may wish to provide comprehensive low-rise, low density residential developments mainly through land exchange or lease modification. Applications should be made to the (Town Planning) Board. If approved by the (Town Planning or Town Planning Appeal) Board the developments should be implemented in accordance with approved master layout plans with adequate provision of government and institutional uses and recreational facilities to serve these developments. Due regard(s) should also be given to minimizing the environmental, drainage and traffic impacts of these developments on the surrounding areas.
(f) For any developments within these areas, the owners must demonstrate that their proposals would have insignificant adverse impacts on the environment, traffic and drainage of the area or appropriate measures will be taken by the applicants to minimize such impacts. The submission of master layout plans, landscaping proposals, environmental impact assessments, drainage impact studies and/or traffic impact studies may be required when the proposals are submitted to the Town Planning Board for consideration. (para. 12)
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The Appeal Board came to the view that although the planning intention for the sub-area is primarily to encourage agricultural uses, it is not a sufficiently strong reason to refuse permission given that the Site is not prime agricultural land and does not fall within an agricultural rehabilitation area. There is no evidence that agricultural use is realistic.' (para. 17)
However, the Appeal Board believed undoubtedly that 'limited suitable recreational uses' had to be encouraged. It was because the Appeal Board had been presented with some slides and photographs of the subject site area which showed:
(a) the general area was relatively unspoiled;
(b) the subject site formed part of a rather lush countryside; and
(c) the subject site bordered on the Deep Bay Buffer Zone II and the Mai
Po Nature Reserve.
The Appeal Board did not agree entirely to the appellant's submission that 'limited suitable recreational uses' could not reasonably be sustained. However, the Appeal Board conceded that if this was the only objection to the development', it could have inclined to allow the appeal.
To sum up, the Appeal Board did not find the proposal to have satisfied one dimension of the planning intention for the area. The Board held that the subject site was suitable for some limited suitable recreational uses. There were also other objections to the proposal, although the site was considered unsuitable for agriculture as the other dimension of the planning intention.
Development Scale and Intensity
The Appeal Board accepted the respondent's submission that there has to be a gradation concept for differentiating development intensities in the area. Though the concept, as the appellant submitted, had not been stated in the 'Notes' [in fact Explanatory Statements], it was regarded that such a concept was only 'common sense' as long as the DPA was divided into several sub-areas.
Either one takes a blanket approach to development and always allow the maximum or one has to differentiate between areas. The closer one comes to the buffer zones, there may have to be a reduction in intensity. Whether there should be reduction in intensity must depend on all the circumstances. Although the gradation concept is not expressly referred to in the notes [Explanatory Statement] to the DPA [Plan], the fact that the "Unspecified Use" area is divided into four sub-areas supports the view that in the opinion of the [Town Planning] Board, it would not be right to regard the entire area as the same. (para. 23) (square brackets mine)
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Having regard to the decision of the Court of Appeal which claimed that an OZP could be used to support an application, the Appeal Board did not subscribe to the appellant's submission that (a) the approved development intensity was under the OZP; (b) the proposed development would have no adverse visual impact; or (c) a large area in the OZP had been zoned V. The reasons are as follows:
(a) In the OZP, the areas both within Deep Bay buffer Zone to the north and to the sputh of the site had been zoned Conservation (CA), whereas they had been zoned 'Green Belt' and 'Unspecified Use' respectively in the DPA Plan. According to the Notes to the OZP, in areas zoned CA, 'new development will normally not be allowed unless it is required to support the conservation of the area's natural features and scenic quality'. (8.9.3, para. 26)
(b) It was correct that there was nothing to stop the appellant to apply for a plot ratio of 0.4 under the OZP and that the plot ratio of 0.4 might be permitted for development in a Green Belt Zone in the OZP. Yet, the fact that the appellant had chosen to apply for a much lower plot ratio of 0.295 under the OZP (and had succeeded) could not support an application for a more intensive development under the DPA Plan. (c) The V zoning was irrelevant as 'due allowances must be given to the
rights of indigenous people in the New Territories'.
To sum up, though the Appeal Board might have a different opinion on the issue of excessive development intensity, the Appeal Board would not be prepared to say that the Town Planning Board had been wrong.
Comments:
This case was decided between the time when the Henderson Company lost the court case and was having an appeal allowed by the Appeal Board at the Hong Kong Court of Appeal, and the time when the Court of Appeal's decision was reverted by the Privy Council. The Appeal Board during this period was cautiously observing the decisions of the Court of Appeal, especially for appeals arising from areas within or close to the Deep Bay Buffer Zones. On the whole, this case was correctly and reasonably decided. A few points, however, are worth discussing.
Notes or Explanatory Statements?
According to my professional experience and reading of the transcripts of the appeal cases, the reference to 'Notes' in many places in the decision should really mean Explanatory Statements. If the information is shown in the Notes, especially under the Column of uses for specific zones, then such information is binding. Where the information is given in the Explanatory Statements, this may help interpret but shall never be used to remove, restrict, expand or alter the content of the Notes. The
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Explanatory Statements are expressly not part of the statutory plan and cannot be objected to when the plan is published in the gazette or exhibited.
An Approval Subject to Another Approval?
The Notes to the Explanatory Statements to the DPA Plan, as stated above, contained a provision under para. 6.2.5:
(d)
there may be area where private initiatives may wish to provide comprehensive low-rise, low density residential developments mainly through land exchange or lease modification. Applications should be made to the (Town Planning) Board. If approved by the (Town Planning or Town Planning Appeal) Board the developments should be implemented in accordance with approved master layout plans with adequate provision of government and institutional uses and recreational facilities to serve these developments. Due regard(s) should also be given to minimizing the environmental, drainage and traffic impacts of these developments on the surrounding areas. (underline mine)
The reference to 'approved master layout plan' for approved developments seems to suggest that an applicant had to make two separate applications, initially for the use itself and, having obtained permission for that use, another for a master layout plan (MLP). Insofar as MLPs are only specified in the Notes for Comprehensive Development Area Zones or other specified uses, it is doubtful whether it is a must for the applicant to submit an MLP, though it will help support its case.
Partial Non-fulfillment of Planning Intention
The Appeal Board seemed to suggest that where there was no other objection to the proposal, then if one of the two dimensions of the planning intention (i.e. agriculture and recreation) was impossible or unsuitable, the appeal might be allowed. This opinion is rather intriguing: the concept of planning intention was accepted in the present case. The better view is that either there was in fact no such non-fulfilled residual planning intention, or that such remaining intention had been satisfied for an appeal to be allowed.
The Concept of Gradation of Development Intensity: What Was the True Planning Intention of the Plan?
The Appeal Board admitted that the planning intention for the subject site was not expressed by the Notes or Explanatory Statements to the DPA Plan. The Appeal Board then proceeded to infer the concept of gradation of development intensity (in terms of plot ratio) from the fact that the Unspecified Use Zone was subdivided into several sub-areas. The
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question was whether (a) the Town Planning Board really had an intention for the site; and (b) the Appeal Board's inference was correct.
One may say that the Town Planning Board in fact had no such intention when the Unspecified Use Zone was designated in the DPA Plan. There were only a few 'broad brush' ideas for each sub-area to be refined by a later OZP. Each planning application would then be decided on its own merits by reference to relevant planning considerations as the OZP progressed. Such considerations had to be made by the Town Planning Board in exercising its statutory discretionary power. If this view is correct, then it will be pointless to 'read in' an non-existent planning intention for each given sub-area when the Appeal Board was invited to decide on an appeal application.
If one has to find the planning intention, then based on my interpretation of the planning intention and Explanatory Statements, all those applications which can be shown to have no adverse impact on the environment should be approved. If this interpretation is correct, then the Appeal Board should only have to consider whether the proposed plot ratio is excessive and ignore the Town Planning Board's reason in terms of 'limited recreational uses'. It is because such uses appear to be examples rather than restrictions. The mischief was the environmental sensitivity of the Deep Bay habitat.
The Appeal Board here appears to have equated differentiation in terms of kind (i.e. types of uses), with differentiation in terms of degree (or intensity of uses) in rejecting the submission of the appellant when it made the inference about planning intention from the subdivison of the Unspecified Use Zone into sub-areas. Yet, when it dealt with the submission about Green Belt or Village Type Development Zones, it sought to negate the appellant's submission with an explanation stating that it was denominated in terms of the kind of zones. It also stated that V Zones were for the satisfaction of indigenous villagers' needs and drew a conclusion against the appellant's point. However, the whole point of the appellant's spirited defence of its grounds was based on the implications of the intensity permissible in an environmentally sensitive area.
Question:
1. What has happened to the subject site since the appeal decision was
made known?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2, 3, 4, 8, 9 and
10.
Planning Appeal Cases
THE PLANET UNIVERSAL CASE
363
Case Name: Various lots in DD 104, New Territories [the Planet Universal Case]
Planning Appeal Case No.: 05/95
,
Similar Cases: cases nos. 07/92, 18/92, 19/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 10/94, 11/94, 12/ 94, 14/94, 02/95, —, 07/ 95, 08/95, 16/95, 18/95, 21/95, 26/95, 28/95, 04/96, 12/96 and 01/97 [the Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Lai Sun Development, Sanyear Investment, Charming City,, 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, 15/92, 18/92, 19/92, 02/93, and 04 and 05/93, 13/93, 17/93, 12/94, — 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, ——, Arzignano and Lucky Gain Cases] regarding the nature of planning and the market or private interest/ public interest;
"
08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 09/94, 10/94, 11/94, 14/94, 02/95, 07/95, 08/95, 18/95, 19/95, and 21/95 [the Yuen To-shing and Yuen Shu-ling, Pak Kong, Ultra Force, Kingspeed Engineering, Kun Kee Motor Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, 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;
05/92, 07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 11/94, 12/94, 02/95, -, 07/95, 08/95, 18/95, 19/95, 21/95, 26/95 and 04/96 [the OTB, Full Look, Pak Kong, Treasure Base (2), Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City,, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding appeals stated explicitly to be against planning intention;
01/91, 02/92, 03/92, 07/92, 13/93, 10/94, 02/95, -, 07/95, 08/95 [the
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Alticosmic, Conduit Road, Wo Yi Hop Road, Full Look, Henderson (not), Sun Link Properties, Charming City,, Delight World, Yin Ning Savings Cases] regarding excessive development intensity;
04/93 and 05/93, 01/94, 09/94, 02/95, ——, 07/95, 08/95 and 21/95 [the
Treasure Base (2), Tang Sai Hung, Lee Yiu Kam, Charming City, Delight World, Yin Ning Savings and Cheung Hing Lung Cases] regarding agricultural and rural setting of the site;
07/92, 04 and 05/93, 11/93, 16/93, 19/93, 01/94, 09/94,
07/95 and 28/
95 [the Full Look, Treasure Base (2), Shell Hong Kong, Naturaluck, Ever Need, Tang Sai Hung and Lee Yiu Kam, ———, Delight World and Fine Tower Cases] regarding incompatibility with adjoining uses, environment/ development;
and 01/96 [the and Yolanda Fan Cases] regarding site visits of the Appeal Board.
Nature of the Case: residential development in Unspecified Use Zones; the relationship between DPA Plan and OZP; Hong Kong Planning Standards and Guidelines (HKPSG); planning intention as located in the Explanatory Statements; Town Planning Board Guidelines; site visit of the Appeal Board; the nature, use and relevance of planning conditions.
Date of s. 16 Application: 2 June 1994
•
Date of Hearing: 6 September 1995
13 October 1995
Date of Appeal Board's Site Visit 13 October 1995
• Date of Decision: 26 October 1995
•
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Representation for the Town Planning Board was not mentioned in
the decision
(b) Mr Benjamin Yu, QC for the appellant
Decision: Appeal dismissed
• Rules Laid down by the Decision:
(a) S. 20(6A) of the Town Planning Ordinance requires that a s. 16 application made under a DPA Plan which is later replaced by an OZP, the subsequent s. 17(1) review and the ultimate s. 17 (B) appeal, be considered as if the DPA plan was still effective, and the application for planning permission be granted or refused to the extent as shown or provided for or specified' in the DPA plan.
(b) A large-scale residential development in a DPA Plan shall not generally
be approved for that will prejudice the future zoning in the OZP.
Planning Appeal Cases
•
Background:
365
Location and Zoning of the Subject site
With an area of about 31.2 ha, the subject site comprised various lots in DD 104 held under a Block Crown Lease known often as 'agricultural' land and fell within an Unspecified Use Zone in the approved Nam Sang Wai Development Permission Area Plan No. DPA/YL-NSW/2 (the DPA Plan), which had replaced the draft DPA Plan which was published in the gazette on 12 July 1991. The draft DPA Plan in turn replaced the Interim Development Permission Area (IDPA) Plan that had been published in the gazette on 17 August 1990. When the draft DPA Plan was exhibited, objections were received by the Town Planning Board. Two amendments were made to the draft plan and the notification of the proposed amendments was published in the gazette on 24 September 1993.
Planning Context of the Site
The site was located in ‘Deep Bay Buffer Zone 1' designated by the Town Planning Board to protect the Mai Po Nature Reserve (MPNR) against urban development. The MPNR is a wildlife reserve of international importance. Hong Kong as a British colony at that time became a party to the Convention on Wetlands of International Importance (RAMSAR). Shortly before the hearing of the appeal, MPNR had been declared a 'RAMSAR site'. Incorporating the 'Deep Bay Buffer Zone 1', the RAMSAR site covered a much greater area than the nature reserve itself. The Hong Kong government had international obligations to safeguard MPNR as well as the surrounding area as a nature reserve in accordance with the terms of the Convention.
The Planning Application
The appellant made a s. 16 application on 2 June 1994 for the development of (a) a residential complex with a holiday centre for the elderly (approximately 27.7 ha); and (b) a nature reserve (about 3.5 ha) at the subject site. These two components would be separated by the proposed Ngau Tam Mei Drainage Channel (the drainage channel'), which was under construction by the government to improve the drainage of surface water into Deep Bay.
Access to the proposed development was provided by an access road leading from Route 2 (The New Territories Circular Road: NTCR). The residential component of the proposal would provide a total of 473 housing units: 91 detached houses and 382 semi-detached houses). Some of these units were of three storeys, including carports (9 m high); and some four storeys, including carports (12 m high). With a designed domestic plot ratio (PR) of 0.299 and a site coverage of about 11 %, the total domestic
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Gross Floor Area that could be achieved at the subject site was about 81 275 m2. The designed population was 1192 persons.
Within the residential component, there would be a number of recreational and ancillary facilities including tennis courts, a swimming pool, a club-house and a gymnasium (occupying a total of approximately 2500 m2); parking spaces for 710 residents' vehicles, coaches and visitors' cars. The holiday centre for the elderly would have GFA of 3000 m2 on about 0.6 ha of land. It would comprise of a 2-storey structure with a range of entertainment facilities and open space. The centre would have its own outdoor car-parking facilities.
The entire residential component would be surrounded by a belt of wetland along its perimeter. This belt would comprise of shallow water reed-beds and fresh-water marshes, with stretches of open water and lily- ponds. A lake located in the central place of the residential area with five outlets which drained into the perimeter wetland. The wetland belt would be separated from the rest of the site by a bund, on which trees and shrubs would be planted. This bund would be protected by a fence. The central lake and wetland belt would measure about 10.5 ha of the site. The environmental design concept behind the residential proposal was that the water features would attract wildlife to the site.
The nature reserve on the other side of the drainage channel (about 3.5 ha) would consist of a lagoon with shallow margins and a central island (for roosting wildfowl) and a nursery' pond. The whole reserve would be screened by trees and shrubs, and fenced off.
The development proposal had two additional features which were intended to tackle water pollution of the proposed development and the wider environment. These features were (a) a water treatment plant, to treat the stream-water flowing into the site before it drained into the perimeter wetland belt, where the water would be further 'polished' by the planted reed-beds; and (b) a sewage treatment plant for removing the solid waste from the sewage generated within the site before it was fed into Deep Bay. The treatment plant would have sufficient capacity to treat the sewage from the Pok Wai Village nearby as well if the villagers would agree to the proposal.
The History of Land Uses of the Subject Site
The Appeal Board noted the history of land uses of the subject site. It was reported that in the course of the hearing, the Appeal Board was presented with a '1938 survey map' (a Survey Plan produced in the year 1983?) which was said to have shown that the site was consisting largely of gei wais with, perhaps, a small area of paddy fields' (para. 5, lines 2-3) (Gei wais refer to man-made embankments, with sluice gates which can be adjusted to allow in-flow (from the sea) or out-flow of water, for the shrimps and fishes kept in the brackish water ponds they encircle.)
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At the date of the publication of the IDPA Plan, 17 August 1990, the site was said to be largely covered by fishponds with, however, some ponds filled in and used for the storage, lorries, containers and other material and, in a few small areas, used for light industry'. (para. 5, lines 4-6)
Overhead power lines crossed the site. A small settlement, Wing Kei Tsuen, was located at the south-eastern corner of the subject site. An area of fish ponds which was found to the south-west, some distance from Wing Kei Tsuen, had been filled after the publication of the IDPA Plan. This area became 'essentially waste-land covered with tall grass, though encroached upon by the tipping of rubbish'. There was also 'some vehicle storage in the area'. (para. 8, 10–12) It was reported that part of this 'waste-land area, as are some other parts of the site' (para. 8, 12–13), was subject to enforcement action by the Director of Planning. The Appeal Board noted that unauthorized use had been undertaken since the publication of the interim IDPA Plan.
The Appeal Board also noted that there were 'temporary structures on the bunds, housing the people who work in the fishponds and their families'. (Para. 8, lines 15-16)
The Appeal Board reckoned that 'as things stood at the time of the appellants' s16 application, and they stand today, about two-thirds of the site (about 19 ha) remains covered by fishponds.' (para. 9)
After the s. 16 Application Was Made
On the day after the section 16 application had been submitted, the draft Nam Sang Wai Outline Zoning Plan (No. S/YL-NSW/1) (the OZP) was published in the gazette. Under the OZP, the part of the site where the proposed residential development was to take place became zoned as 'Recreation'.
The s. 16 application was refused was rejected on 16 August 1994 and again in the s. 17 review. A letter from the Town Planning Board dated 16 December 1994 informed the appellant of the reasons for rejecting the.
Arguments:
The appellant argued on the following grounds:
(a) As regards the planning intention, if the real intention had been to freeze development absolutely for the valid period of the DPA Plan, then that intention could have been easily expressed.
(b) As regards the scale of development, the proposed development compared favourably in terms of the density of development with the typical 'R4' development under the under the Hong Kong Planning Standards and Guidelines (HKPSG).
(c) As regards the relevant 'sub-area', the subject site fell partly within sub-paragraph (ii) rather than wholly within (iii), as argued by the respondent.
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(d) Furthermore, para. 6.3.5 sub-paragraph (d) suggested that residential development was not in principle ruled out. The paragraph read: ‘(d) There may be areas where private initiatives may wish to provide comprehensive low-rise, low-density residential developments mainly through land exchange or lease modification. Applications should be made to the Board. If approved by the Board the development should be implemented in accordance with an approved master layout plan with adequate provision for government, institution and community uses and recreational facilities to serve these developments. Due regard should also be given to minimizing the environmental, drainage and traffic impacts of these developments on surrounding areas.' (para. 25)
(e) The proposed development was consistent with the Town Planning Board Guidelines for development within Deep Bay Buffer Zone 2 and, for this reason, the appeal should be allowed.
(f) The proposed development with its treatment plants would help reduce the pollution loading of the stream that drained through Wing Kei Tsuen. Miss Castka, a consultant engineer for the appellant, explained that the overall result of the appellants' treatment plants would be a net reduction of pollutants discharged into Deep Bay, despite the pollution load caused by the substantially increased population following the development.
(g) The proposed development was compatible with the environment and supportive to the concept of conservation. The conservation objective, expressed in the Town Planning Guidelines, would be more than that met by the proposal. The reasons were as follows (para. 36):
(i)
From an ecological point of view, the site is in a degraded state. The fish ponds, some abandoned and some actively farmed, are not used by the vast majority of birds which visit the Deep Bay
area.
Though the fish ponds were of some value for birds, for they were visited by common fish and shrimp-eating species, the fact remains that the fish ponds are not managed for nature conservation purposes.
Moreover, some of the fish ponds would be destroyed by the Ngau Tarn Mei drainage works; fish ponds would also be taken up by the temporary works area, with no guarantee that any of the ponds in those areas will be reinstated after the project is completed.
As regards the waste land of about 3 ha in the south-west of the site, whilst this was of some value at present to wildlife, continuing encroachment by use as a rubbish dump will make it increasingly unattractive.
(ii) The Wing Kei Tsuen stream was heavily polluted.
(iii) The proposed development would attract wildlife and will be of a
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higher ecological value than the existing fishponds which occupy approximately two-thirds of the site (about 19 ha). Granted that there would be a net loss of wetlands, the environment created and by the proposed development, and thereafter actively managed, would result in ecological gain. Together with the managed nature reserve of about 3.5 ha, the development will attract to the site a greater diversity of species of birds, amphibians and reptiles than exist at present on the site.
(iv) Human activity resulting from the development would be confined to the built-up area, as the perimeter wetland belt and the nature reserve would be fenced off and screened by planting.
(v) The quality of the water discharging into Deep Bay would be
improved by the proposed treatment works.
(vi) In summary, in Mr Benjamin Yu QC's words, 'the eradication of wetland with no regard to whatever value [such] wetland has' and to 'seize the opportunity to improve land use in the site with a stable environment for man and nature to co-exist'.
(h) Being now the owners of the fish ponds, the appellant was not bound
to renew the farmers' leases.
(i) A well-managed fish farm, with steep sides cleared of vegetation, was
not particularly attractive to birds.
(j) There was big differences between the managed conservation scenario proposed by the appellant and the present unmanaged environment. For instance, the water level of the proposed nature reserve would be controlled seasonally to make them suitable for migrating shore-birds and the water level in the perimeter wetland belt would likewise be controlled.
In rejecting the proposal after the s. 17 review, the Town Planning Board held that:
(a) the proposed residential development was not in line with the planning intention for the area on the approved Nam Sang Wai Development Permission Area Plan which was primarily to protect and conserve the landscape and ecological value of the area and its scenic quality necessary to sustain Mai Po Nature Reserve (NTNR);
(b) falling within Deep Bay Buffer Zone 2, the proposed residential development would not meet the Town Planning Board's Guidelines on Application for Developments within Deep Bay Buffer Zones in that there was insufficient information in the submission to demonstrate that the proposed development could support the conservation of WNR and Inner Deep Bay or the development would have insignificant impact on the ecology including the WNR and Inner Deep Bay;
(c) the proposed development, with a plot ratio of 0.299, a site coverage of 13%, a design population of 1192 and building height up to 3-storey
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plus one level of carport was too intensive and was not in line with the low-density residential development in ecologically sensitive area; (d) the Town Planning Board was not convinced that the proposed development would have insignificant adverse impact on the area, including the WNR and Inner Deep Bay Area;
(e) insufficient information had been provided in the submission to demonstrate that the funding arrangement for maintaining the proposed nature reserve was feasible;
(f) approval of the application would create an undesirable precedent. The cumulative impact of developments in terms of human disturbance would adversely affect this ecologically sensitive area; and
(g) approval of the proposed development would set an undesirable precedent for uncoordinated conservation proposals leading to eventual fragmentation of the natural habitat within the Buffer Zone areas.
During the appeal hearing, the respondent disputed the appellant's argument that the proposal would help reduce the pollution loading in the stream flowing through the subject site.
The respondent also had the benefit of the evidence of Mr Keith Wilson, an officer with the Agriculture and Fisheries Department. The opinion of Mr Wilson was that whilst there was some evidence of decline in the fish pond business over the years, it was not in sharp decline. Territory-wide, the production of fresh water fish in 1990 was 6130 tonnes; in 1994 it was 5500 tonnes. 'It is possible that with the enormous and continuing loss of fish ponds across the border as a result of building development in southern China, fish pond farming in the New Territories will gain in economic importance. The average fish pond of about 2 ha produces a net income to the operator of approximately HK$85,000 per year. Fish pond management is not labour intensive and family operators are generally able to earn additional income from other activities such as duck rearing.' (para. 39) (italics mine) The Appeal Board paid a visit to the subject site and its environment in the morning of 13 October 1995.
Reasons for Decision:
The Appeal Board dismissed the appeal on two grounds (para. 49):
(a) "The proposed development is contrary to the planning intention set
out in the Nam Sang Wai DPA plan.'
(b) 'We are far from being satisfied that the proposed development will
result in net ecological gain, as contended for by the appellants.'
'Viewing the evidence as a whole, we agree with each of the grounds for refusing planning permission as set out in the Town Planning Board's letter of 16 December 1994.' (para. 50)
Before deciding this case, the Appeal Board set out its position regarding (a) its approach, at great details that merit full citation; and (b) its perceived planning intention, which also merits citation.
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The Appeal Board's Approach
What should be emphasized at the outset is this. It is no part of our function, as a statutory appeal body, to decide what might constitute “better” or “best” or “wise” use of the land in question: That is to say, whether, from an ecological point of view, the site should be left essentially undisturbed or whether it should be turned to predominantly residential use, with an area of "managed" wetlands and an additional 3.5 ha of “managed” nature reserve. Much evidence has been deployed from both sides on this "issue", and there are strong arguments both ways. By the very nature of the issue, these arguments cannot be conclusive. It is a matter of value judgment. Moreover, planning is an ongoing process. The rejection of planning permission today does not mean that the site is sterilised for development forever. All it means is that the development as proposed cannot proceed.(para. 11)
The importance of fish ponds to wildlife is a subject of continuing study and debate. There was adduced in evidence, for example, an article by an acknowledged local expert Mr George Walthew (exhibit TPB3) published in 8 August 1995, which says this: "the fish ponds in Hong Kong have often been depicted, wrongly, as areas of little ecological interest or importance. However, over the past two years I have recorded a total of 1.36 species of birds using the commercial fish ponds in the Deep Bay area for feeding, breeding or roosting". And Mr Walthew, in the same article, goes on to enlarge upon this statement by giving what appears to be convincing reasons. On the other hand, there is the proposition that fish farming is, by definition, an activity aimed at producing fish for human consumption and not for birds. We will, later on in this Decision, go into the argument more fully, but it is important at the outset to bear this point in mind: This appeal turns not upon the marks scored on the debate on fish ponds but on the planning intentions for land use in the area, as expressed in the Nam Sang Wai DPA plan which, for the purposes of this appeal, is the relevant plan. If, at the end of the day, we conclude that a residential development of the kind proposed is consistent with the planning intentions for the area, we must then find that the Town Planning Board has erred because, in essence, one of the principal reasons for rejecting the proposal was that the development was too intensive and "not in line with the low density residential development in ecologically sensitive area". On the other hand, if the predominant intention is to preserve the natural landscape features and to permit only minimal interference with those features, pending the period of three years necessary for the formulation of an outline zoning plan, it matters not whether a change of use to a residential development, with a holiday home for the elderly and with "managed wetlands", is ecologically "better" overall or not: Even if it were, it would still be contrary to the planning intentions regarding land use, as expressed in the Nam Sang Wai DPA plan. We also bear this point in mind. A DPA plan is, by its very nature, interim; but once a development is on
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the ground it is, in effect, permanent. Other land use in the same area must then be tailored to it. A large residential development of the kind proposed has a most intrusive effect, from a planning point of view. (para. 12) (italics mine)
The Planning Intention
The Appeal Board accepted the appellant's submission that the DPA Plan did not absolutely precluded development. In fact, given the sheer size of the unspecified use zone, i.e., over 90% of 598.53 ha land within the DPA, it would be unrealistic to rule out any development.
The Appeal Board came to the view that 'plainly, within the "unspecified" area, some form of development was envisaged. The question is then one of degree. If we conclude that the TPB, by their refusal, has given effect to the predominant intentions as expressed in the DPA plan, this appeal must be dismissed.' (para. 13)
Then the Appeal Board started evaluating the appellant's proposal in the light of its submissions. The Appeal Board granted, subject to certain qualifications, that the proposal might reduce the pollution loading of the stream flowing through the subject site. However, it rejected all other submissions as the proposal:
(a) ignored the interim nature of a DPA Plan and would thus pre-empt
the future planning of the area in the OZP;
(b) violated the need for planning guidance and control as expressed in
the Explanatory Statement of the DPA Plan;
(c) violated the intended planned use, as expressed in the Explanatory Statement of the DPA Plan, for the sub-area in which the subject site was located;
(d) failed to fulfil the Town Planning Board Guidelines;
(e) ignored the 'gradation in intensity of land use' concept expressed in
the Town Planning Board Guidelines'; and
(f) failed to observe the conservation objective expressed in the Town
Planning Board Guidelines.
Ignoring the Interim Nature of A DPA Plan, Thus Pre-Empting Future Planning in OZP
The Appeal Board attached great weight to the 'interim' nature of a DPA plan. The Appeal Board explained, referring to para 2.2 of the Explanatory Statement, 'as we have said, by its very nature interim. One of the primary objects of the DPA plan is to control development within the area during the period required for detailed analysis of the land use pattern, study of infrastructure provisions and examination of development options leading to the formulation of an outline zoning plan.' (para. 16)
Given the position, the Appeal Board considered that the Town Planning Board should not generally approve a ‘substantial residential
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development' in an unspecified zone or else it would 'seriously frustrate' the objectives to be attained by zoning to be imposed in future in an OZP.
Given these restraints, the Town Planning Board would obviously have to tread very warily when an application is received for permission to put up a substantial residential development within the "unspecified" area. Approval of such a proposal could seriously frustrate the objectives to be attained by means of future zoning, under an outline zoning plan; if planning consent for such schemes were to be liberally given, ad hoc development by private developers would then in effect dictate the pattern of land use in the area, pre-empting the efforts at zoning for land use by the TPB. (para. 17)
The Appeal Board considered that the subject proposal was far too large in terms of area of development as well as population, the appellant's submission regarding development intensity notwithstanding:
(a) Area of Housing Development
The proposal involved the use of over 20 ha land for housing purposes. Such 20 ha would alone be more than double the area 'given over to residential development'. There was nothing in the DPA Plan which expressly prohibited this; the Appeal Board insisted that para. 2.2 of the Explanatory Statements indicated, in ascertaining the planning intention, that there was a need for a 'cautious approach'.
(b) Population
The Appeal Board also noted that the proposed development would generate 1200 more population and that in para. 4 of the Explanatory Statement, the Nam Sang Wai development permission area was described thus:
4.2
4.3
The area is predominately low-lying alluvial flood plain draining into Deep Bay. It is largely rural in character with considerable amount of fish ponds and a few parcels of agricultural land. In recent years, larger number of fish ponds and agricultural land, particularly those located by or near Castle Peak Road has been filled up and used for open storages.
In 1991, the population of the Area was approximately 4,000. . . (para. 18)
Violating the Need for Planning Guidance and Control
The Appeal Board noted that the Explanatory Statement also referred to the ecological context of the subject site, the planning intention, the land use zones and intended uses inside Unspecified Use Zones, and the general nature of Unspecified Use Zones respectively in para. 5.2, para. 6.2, para. 6.3 and para. 6.3.5. The relevant sections of the Explanatory Statements are extracted and recorded in the transcript:
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5.2
6.2
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Not far away from the north west of Tai Sang Wai is Mai Po Nature Reserve which was designated by the Government as 'Site of Special Scientific Interest' (SSSI) on 15 September 1976. The Mai Po Nature Reserve contains the largest and most important area of dwarf mangrove in Hong Kong and is the only area in the Territory where a large variety of birds can regularly be seen. It is an ecologically-sensitive area of international importance and should be protected from incompatible uses in the neighbouring areas.
The planning intention for the Area is primarily to promote the conservation of the natural landscape features and to retain existing fish ponds and active agriculture land though rural industry and open storage uses have infiltrated into the Area. It is also planned to reserve sufficient area to meet the anticipated small house demand. Areas of “fung shui" significance would also be left undeveloped.
In the designation of various zones in the Area, considerations have been given to the natural environment, physical landform, existing settlements, availability of infrastructure and local development pressures. The Area, located within the Deep Bay Buffer Zones formulated to protect the Inner Deep Bay area including MPNR, is in close proximity to this ecologically-sensitive area of international importance. In the 'Guidelines for Applications for Developments Within Deep Bay Buffer Zones' promulgated by the Board, emphasis is put on the need to protect and sustain the special landscape and ecological value of the Inner Deep Bay area including NTNR. In general, for all proposed developments it should be demonstrated that they would not adversely affect the natural habitat. More stringent control would be applied to areas adjoining and in close proximity to MPNR where new developments would not be allowed unless it is required to support the conservation of WNR. Other than the above, the preservation of historical buildings and archaeological sites is also a planning concern. Sites of historical and archaeological interests in the Area would be preserved and protected as far as possible. Pending further studies on land use development options, opportunities and constraints, the following types of zones are designated on the Plan...
(a) Area without specific zoning on the DPA plan is intended to meet unforeseeable requirements in the longer term. Further detailed planning study is required to identify the most appropriate use of land. However, taking account of the development potential and existing situation of the areas, three broad sub-areas can be identified . . .
Violating the Planning Purposes for the Sub-areas
The Appeal Board then explained that the proposal was not consistent
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with the intended planned use for the relevant sub-paragraphs set out in the Explanatory Statement, namely sub-paragraphs (i), (ii) and (iii).
The Appeal Board, having regard to the descriptions in the Explanatory Statements at the hearing, concluded that the subject site fell within sub- paragraph (iii).
Sub-paragraph (iii) said: "This sub-area is rural in character and mainly comprises of fish ponds with some ancillary structures. Since the sub-area drains into Inner Deep Bay and its proximity to Mai Po Nature Reserve, the planning intention is primarily to protect and conserve the landscape, ecological value and scenic qualities of the area.' (para. 22)
The Appeal Board explained that sub-paragraph (iii) was augmented by para 6.3.5 of the Explanatory Statement, which made statements applicable to the whole of the area of 542.93 ha covered by the designation of 'unspecified use'. Paragraph 6.3.5 (c) was noted to state thus:
(c)
Agricultural uses in these areas will be encouraged and recreational uses (including ancillary facilities) which are generally compatible with the rural environment and area unlikely to adversely affect local communities, may also be permitted. The general planning intention for the "Unspecified Use" areas is for the appropriate forms of agriculture and rural activities to take place so as to prevent unwanted urban growth and to enhance the quality of the environment. Residential development in compliance with the contentions of the ‘On- farm Domestic Structure' scheme may be permitted where it can be established that the dwelling is necessary to support the agricultural uses, or the dwelling is ancillary to the recreational uses. (para. 24)
The Appeal Board concluded that, with reference to the above sub- paragraph, ‘a residential development, providing over 470 housing units and car-parking spaces for over 700 vehicles, with all the human disturbance this would entail, is incompatible with the planning intention for sub-area (iii), into which the appellants' site falls'. (para. 24)
As regards the appellant's submission about the statements in para. 6.3.5(d), upon which the appellant's entire case was considered to have virtually hung, the Appeal Board considered that there was insufficient evidence from the Explanatory Statement in which a project of the scale proposed by the appellant was anticipated. The Appeal Board said:
As is apparent from looking at the DPA plan, there are pockets of development within the "unspecified" area where houses or groups of houses with access to the Castle Peak Road already exist. These could well come within sub-paragraph (d). Further, as can be seen from the DPA plan, there is an existing cluster of buildings, to the north of the Pok Oi Hospital (though some distance away). It can be observed from the WP that the TPB has, in fact, zoned it “R(D)”, permitting small
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structures (not exceeding a building area of 37.2 m2 and 2 storeys) to be built. An application to develop this area under the DPA plan might well have been consistent with the "low-rise, low-density residential development" referred to in sub-para (d): though we would not put too much weight on this as it is, to an extent, mere guess- work. Beyond this, it is difficult to see how sub-paragraph (d) could be used to justify a development of the size of the appellants' proposal, having regard to the Explanatory Statement as a whole. Sub-paragraph (d) cannot be construed as if it were free-standing, to justify the appellants' proposal. (para. 26)
Failing to Fulfill Town Planning Board Guidelines?
The Appeal Board rejected the appellant's submission that the proposal compiled with the relevant the Town Planning Board Guidelines for the Deep Bay Buffer Zones. In the transcript of the decision, the Appeal Board did not directly explain its denial of the appellant's case but presented what it noted in respect of the guidelines.
In para 6.3 of the Explanatory Statement there is a reference to the "Guidelines" promulgated by the TPB in relation to development within the Deep Bay Buffer Zones. These Buffer Zones, as is apparent from para 6.3, are intended to give MPNR and the areas around in Deep Bay "added protection and to prevent them from becoming isolated islands of natural habitat encroached by urban type development..." (para 3 of the Guidelines, emphasis added). The proposed nature reserve, falls within Buffer Zone 1 and the rest of the proposed development, to the east of the Ngau Tarn Mei Drainage Channel, falls within Buffer Zone 2 ... (para. 27)
The Appeal Board then qualified the guidelines:
In looking at the Guidelines, a word of caution is necessary. These Guidelines are guidelines, not words in a statute which fetter the exercise of discretion and judgment by the TPB. The Guidelines start with two opening paragraphs as follows:
Introduction
1.
The Mai Po Nature Reserve (NTNR) and its adjacent intertidal mudflats is an internationally recognised wetland habitat for a variety of species of waterfowls such as herons and egrets, and a stopover point for thousands of migratory birds. It is for this reason that the MPNR and Inner Deep Bay have been designated as Sites of Special Scientific Interest (SSSI) in 1976 and 1986 respectively. A majority of the areas around WNR is low-lying floodplains, gei wais and fish ponds which not only provide feeding and breeding grounds for the birds but also contribute to the scenic quality of the Deep Bay area. There have been proposals for including Mai Po Marshes and the
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2.
Inner Deep Bay area as a Wetland of International Importance under the Ramsar Convention.
In recent years, there has been an increasing number of development proposals in the North West New Territories (NWNT) particularly in areas around Inner Deep Bay. Most of the proposed developments would involve filling of fish ponds, extensive site formation and construction works, which may adversely affect the environmental quality of the Inner Deep Bay and its adjoining hinterland, in particular the NTNR. To avoid the irreversible adverse impacts on the MPNR and Inner Deep Bay, the Town Planning Board considered it necessary to establish a set of planning guidelines for the purpose of controlling development in the area. These guidelines are intended to provide guidance to the general public and potential developers on what kind of development would be considered suitable, and the factors that the Town Planning Board will be considering in processing planning applications in Inner Deep Bay and its adjoining hinterland. (para. 28, italics mine)
The Appeal Board continued:
As regards development of land falling within Buffer Zone 2, this is what the Guidelines say:
4(b)
5.
Buffer Zone 2
The planning intention for Buffer Zone 2 is primarily to give added protection for the conservation of MPNR and Inner Deep Bay and to enhance the visual appearance and landscape features within the Buffer Zone 2 area. New development within this zone would not be considered unless the applicant could demonstrate that the proposed development would have insignificant impact on environment, ecology, drainage, sewage and traffic in the area including the MPNR and Inner Deep Bay.
The proposed uses and developments within Buffer Zone 2 should not impose adverse impacts on the sustainability of the ecosystem of the MPNR and Inner Deep Bay. The following criteria should be satisfied:
(a) The proposed development should not add to the pollution loadings of the Deep Bay area, particularly the Buffer Zones 1 and 2.
(b) An effective buffer should be maintained between the SSSIS (i.e. Inner Deep Bay, Mai Po Marshes, Tsim Bei Tsui, Tsim Bei Tsui Egretry and Mai Po village) and built developments.
(c) A gradation of intensity in land use and activities, built form, density and height away from Buffer Zone 1 should be achieved to minimise the likely impacts on the natural environment. A diagrammatic illustration of the development concept for Buffer Zone 2 is shown in Figure 2.
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(d) The proposed use and development should be compatible with the conservation objective of NTNR and Inner Deep Bay. It should be appropriate to the area's rural setting and enhance the visual appearance and landscape character of the area. (para. 29)
Having noted these points, the Appeal Board did not explain just how the proposed development was in breach of the guidelines. Instead of addressing such an important question, the Appeal Board raised a question: 'Are the appellants correct when they say that the proposed development complies with these Guidelines?' (para. 29)
Not Really Reducing Pollution Loading?
The Appeal Board then dealt with the appellant's submission that the project would help reduce pollution loading in the Wing Kei Tsuen stream- course. The stream at the time of the appeal flowed through the site and eventually discharged into Deep Bay. The Appeal Board realized that the stream 'is often polluted, sometimes heavily polluted. At certain times of the year water hyacinths grow in profusion in parts of the stream'. (para. 30)
As regards the dispute between the appellant and the respondent regarding the extent to which the water hyacinths are effective in reducing the amount of pollutants in the water, the Appeal Board came to the view that the evidence before it did not easily resolve the dispute. The Appeal Board explained:
The amount of water in the stream, and the rate of its flow, is seasonable. During the rainy season, the amount of pollutants in the stream would be far less than during the dry season; and, when flooding occurs, as it does from time to time, much of the water hyacinths which grow on the surface are liable to be washed away. There is however evidence to the effect that a fish farmer is rearing carp in the stream, at the northern portion of the site, which suggests that, over the whole stream course, the pollution is not as grave as the appellants suggest, and that the water hyacinths do in fact perform an effective cleansing function. (para. 10)
The Appeal Board was reported to recall that on its visit to the subject site conducted in the morning of 13 October 1995, it was able to observe that the water downstream of the water hyacinths (trapped by a bridge) was visibly much cleaner than the water upstream. In fact the downstream water looked very clean. The Appeal Board realized that the position could be different after a long dry spell.
The Appeal Board accepted the evidence adduced by the appellant's consultant. "This means, in effect, that the criterion set out in para 5(a) of the Guidelines might well be satisfied by the appellants, assuming that the managers of the developed estate will continue to keep the treatment
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plants in good working order, with the solid waste in the sewage disposal plant periodically removed.' (para. 31)
However, the Appeal Board doubted whether (a) upon occupation of the housing units, the proposed treatment measures would remain effective; and (b) the appellant's proposed planning conditions relevant to the working of the proposed measures should be supported.
If however the housing units are to be sold off to individual owners later on, there is no certainty that such a state of affairs will always prevail, or is even likely to prevail. The appellants have sought to overcome this point by conditions to be attached to the planning permission: the submission of arrangements for a detailed management plan to the Director of Agriculture and Fisheries or the TPB to ensure that the objectives of a managed wetland environment will be achieved. We will deal with this proposal later on. (para. 31)
Observing the Concept of 'Buffer' but Ignoring the Concept of ‘Gradation of Intensity in Land Use'
The Appeal Board found that the appellant was just using a 'buffer' concept, instead of one it regarded to be relevant as well, i.e., a 'gradation of intensity in land use' concept.
Guidelines in paras 5(b) and (c) introduce the concept of an effective buffer and a gradation of intensity in land use and activities, in order to protect MPNR and Inner Deep Bay. The appellants argue that they have, in effect, complied with this concept because the proposed nature reserve, occupying 3.5 ha, together with the Ngau Tam Mei Drainage Channel and the wetland belt, provide the necessary buffer between the SSSIS and the proposed built development. They also draw attention to the fact that Fairview Park, an extensive low-rise development, stands between NTNR and the site. (para. 33)
The Appeal Board came to this conclusion from its reading of the Town Planning Board minutes:
In this regard, it is of interest to note what Mr Simon Rawle, the appellants' town planning consultant, is reported to have said at the s17 review when this question was raised. Para 140 of the Minutes of that meeting records as follows:
140. Another Member remarked that the proposed residential development spanned over the entire application site which was in the Deep Bay Buffer Zone 2 and enquired why the gradation concept as stipulated in the "Town Planning Board Guidelines for Application for Developments within Deep Bay Buffer Zones' had not been adopted. In reply, Mr Simon Rawle said that as the subject site was far away from MPNR and separated from Deep Bay Butler Zone 1 by a wide drainage reserve, it was considered that the proposed development would
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have insignificant impact on the area and therefore the application of the gradation concept was inappropriate. He considered that adopting a wetland concept for the subject site was more appropriate. He also pointed out that the need to have the proposed residential units set back from the New Territories Circular Road due to environmental concern also made the application of the concept impossible. Furthermore, he considered that the creation of wildlife habitats on site thereby improving the ecological value of the area would equally serve the function of the gradation concept. Mr. Gary Grant added that the purpose of the gradation concept was to keep development away from the Deep Bay. As the site was very far away from it, the concept did not apply in the ecological sense. (para. 33)
The Appeal Board concluded that from these minutes (the accuracy of which had not been disputed) that, at the stage of the s. 17 review, the appellant was not contending that the proposed development complied literally with paras. 5(b) and (c) of the Guidelines. Instead, the appellant relied heavily on the 'planning gain' to be achieved by the development of the nature reserve and the wetlands as habitats for wildlife.
The Appeal Board resolved to conclude that the appellant's proposal had to fail as:
Looking at the proposed development as a whole, it is difficult to see how the "buffer" and "gradation" concepts will be met, having regard to the intensity of that development over the greater part of the site.(para. 35)
Failing to Achieve Compatibility with Conservation Objective per Town Planning Board Guidelines
The Appeal Board rejected the appellant's submission that the proposal achieved the conservation objective specified in the Town Planning Board Guidelines in terms of (a) the ecological value of the fish pond farming; (b) the unreliability of the proposed 'managed' environment; and (c) the unworkability of 'conditional planning consent'.
(a) Pond fish farming had a lot of ecological benefits
(i)
Fish ponds were ecologically important
‘Inevitably, because the fish ponds occupy the greater part of the site, much evidence adduced at the hearing was focussed upon the fish ponds. There is no doubt in our minds, upon the whole of the evidence, that fish ponds, as they are managed at present, bring considerable incidental benefit to wildlife conservation and are for that reason important.'
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(ii) Fish ponds purposefully drained would be refilled by nature
381
"The appellants say, forensically, that being now the owners of the fish ponds, they are not bound to renew the farmers' leases. The respondent says, in effect: "So be it. The fish ponds will then become abandoned, and may become even better habitats for wildlife. What the appellants cannot lawfully do is to fill in the fish ponds." We might add in parenthesis that if the appellants should act so destructively there is no evidence that they will as to drain the ponds, these will, within a short time, be re- filled naturally by rain-water and flood-water: the evidence is that the 1,300 ha of fish ponds in the Deep Bay area absorb approximately 25% of the annual rainfall in the area.' (para. 38)
―
(iii) Fish pond farming was economically viable
'We accept the evidence of Mr Keith Wilson, an officer of the Agriculture and Fisheries Department, that whilst there is some evidence of decline in the fish pond business over the years, it is not in sharp decline . . . There is strength in the proposition, put forward in Mr. Wilson's evidence, that fish pond farming represents the most appropriate and economically viable option for the area adjacent to MPNR and Deep Bay.' (para. 39)
(iv) Well managed, seep-sided fish ponds were not particularly
attractive to birds but there were still some birds
The Appeal Board accepted the appellant's submission that well managed fish ponds with steep sides cleared of vegetation is not particularly attractive to birds'. However, the Appeal Board insisted that the fish ponds as they then appeared remained a landing place for some birds, as affirmed both in the appellant's survey and the observation of the Appeal Board during its site visit (para 40):
But, even then, there is evidence also that large numbers of herons and egrets frequent these ponds, and when these ponds are drained, generally once a year, they become "bonanzas” for birds, which congregate at the shallow end, gorging on small non-commercial fish such as mosquito fish and shrimps, whilst the workers are gathered some distance away at the deep end, harvesting the carp and other large commercial fish.
But, of course, not all fish ponds are well maintained and the sides of some fish ponds get over-grown. They can then become very attractive habitats for wildlife.
In fact, evidence adduced by the appellants of a year-long avifauna survey shows three pairs of little grebes breeding on the site. Moreover, the survey shows an abundance of cattle egrets on the site: these birds seem to feed almost exclusively
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from fish ponds. On the visit we made on 13 October, we saw many egrets, herons, kingfishers, a few cormorants and other birds we could not identify. Virtually all the ponds we saw had sloping sides, to some degree or another. We saw many waders feeding from the sides.
(b) The 'managed' environment was not sustainable
(i) Government was unwilling to take up the management of the
nature reserve
'As regards the nature reserve the proposal is to hand the management over to the government (possibly the "RAMSAR Management Authority") together with a trust fund provided by the appellants. There is not a scrap of evidence that any government department is willing to undertake such a task,'
(ii) The proposed nature reserve of 3.5 ha was too small and
fragmented
"The government's response is that a small fragmented nature reserve of 3.5 ha is of no value. It is therefore difficult to see a project like this getting off the ground.'
(iii) The trust fund was too small
'Moreover, the proposed income from the trust fund, between HK$30,000-$40,000 per year, seems grossly inadequate for the purpose. The area proposed -3.5 ha as a fragmented "nature reserve" is, we conclude, useless for the purpose proposed.'
(iv) The maintenance expense of the wetland belt and lake was huge
'As regards the perimeter wetland belt and the central lake, the up-keep cost will obviously be very considerable.'
(v) Inhabitants and their pets would disturb wildlife
The pressure of people, including young children and domestic pets, on the adjacent wildlife would be substantial.
(vi) Residents might not pay service charges
The appellants proposed to meet the cost of maintenance through service charges to the residents of the estate. Whether the residents would be prepared to meet these charges from their pockets was unknown.
(vii) No environmental gain but loss would be created
We are by no means convinced that, in the long run, the concept
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of managed wetlands created by the destruction of the existing fish ponds is an "environmental gain". On the present evidence, the opposite would appear to be the case. Moreover, the ratio of created wetlands to natural wetlands lost through development is less than 1 to 1. There is authority, at least in the U.S.A., to the effect that a "3 to 1 mitigation should be required on an acre- to-acre basis" (Ex TPB 2).
(c) Conditional planning consent was unworkable
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The Appeal Board did not find the 20 planning conditions proposed by the appellant to be attached to the planning permission acceptable. In the transcript, the Appeal Board did not state why none of them was acceptable. It only stated that the 'approach' was inappropriate, using two of the proposed conditions, viz. (h) and (k), the latter referring to in (m), as examples to demonstrate their general unworkability.
The appellants, through counsel, have put forward over 20 conditions to be attached to the planning permission which we might impose in allowing the appeal. We find this approach unsatisfactory. (para. 44)
(i) Condition (h) depended on the approval of the Director of
Agriculture and Fisheries, which might not be given
The Appeal Board relied on the fact that (I) the Town Planning Board did not support the application and the fact that (II) the proposal involved a large-scale residential element in dismissing the possibility that the Director of Agriculture and Fisheries would approve the planning condition to be fulfilled by the appellant:
Take as an example condition (h):
"(h):Submission and implementation of a detailed Habitat Creation Plan for the Wing Kei Tsuen Development to the satisfaction of the Director of Agriculture and Fisheries or of the Board."
Clearly, in rejecting the appellants' proposal, the TPB was not satisfied that the "habitat creation plan" (covering the 3.5 ha nature reserve and the wetland belt with the central lake) would, in the context of the development as a whole, support the conservation of MPNR and Inner Deep Bay. That was, in effect, what they said in para (b) of the letter of 16 December 1994 [of the Town Planning Board] (see para 10 above):
"(b) there is insufficient information in the submission to demonstrate that the proposed development can support the conservation of MPNR and Inner Deep Bay or the development will have insignificant impact on the ecology including the MPNR and Inner Deep Bay." (para. 44)
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The evidence we have received in the course of the hearing supports this conclusion. How, in these circumstances, the Director of Agriculture and Fisheries might be "satisfied" with the "detailed Habitat Creation Plan" to be submitted is difficult to imagine. And if the appellants were to submit to the Director a plan which truly supports the conservation of MPNR and Deep Bay and is aimed only incidentally at residential development, one thing is certain: It would not be a plan for a residential development of over 81,000 m2 gross floor area with a designed population of nearly 1,200 persons. (para. 45) (italics and square brackets mine)
The Appeal Board insisted that condition (h) would be meaningful only if three untenable views are accepted:
To make sense of condition (h) we would, in effect, have to do the
following:
(i)
conclude that the TPB was fundamentally wrong in rejecting the appellants' proposal;
(ii) conclude that the proposal shown in the master landscape plan (page 28 vol. 1) is consistent with the planning intent for the
area;
(iii) treat condition (h) as simply a device for fine-tuning the
appellants' proposal. (para. 46)
But how, in these circumstances, the Director is supposed to exercise his judgment in entertaining the plan has not been explained. What if the Director should conclude for instance that the wetland belt is too narrow to attract wildlife in any meaningful way? Is the Director, in effect, to be bound in the exercise of his judgment by our determination as an appeal board, so that he cannot legitimately conclude that the wetland belt is too narrow? Where are the statutory provisions which permit us to act in this way?' (para. 47) (italics mine)
(ii) Condition (k), referred to condition (m), could only be implemented 'on
paper', as affirmed by counsel for the appellant
The Appeal Board ruled out condition (k), referred to in condition (m) because counsel for the appellant stated that the appellant would not 'wait' for satisfactory fulfillment of (k) before actual development of the housing component commenced; and also because the condition would entail the Director of Agriculture and Fisheries Department to undertake the assessment of the value of a 'package' that could not be defined.
The Appeal Board's views about invalidity of 'waiting' are as follows:
And take condition (m):
"(m) The establishment of the Wing Kei Tsuen Nature Reserve and
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the implementation of the plans referred to in conditions (k) and (1) above before the commencement of building works in the Wing Kei Tsuen Development."
Condition (k) refers to the submission and implementation of (i) a detailed habitat creation plan, (ii) a habitat management plan and (iii) a pest management plan for the plants trees and other landscape features at the nature reserve, to the satisfaction of the Director.
At the hearing we asked counsel whether it is suggested, in effect, that the main development should be postponed not only until after the construction of the lagoon, central island, "breeding pond" etc. (i.e. the "nature reserve") but also after the period of time necessary for wildlife to be established there. The answer
was No. So "implementation” in condition (k) does not mean the practical carrying out of the proposal so that its effect can be tested; we are asked in effect to accept upon trust that the "nature reserve" of 3.5 ha will work as a nature reserve in the way intended. "Implementation” in condition (m) means nothing more than implementation on paper. What if the Director of Agriculture and Fisheries, under condition (k) says No: he is not satisfied with the mere construction of the nature reserve; he requires a period of time for implementation, to see if it is in fact an "environmental gain” - in terms of the number and variety of birds attracted to the reserve. Is the main development then to be postponed? (para. 47) (italics mine)
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The Appeal Board's views about evaluating the proposed environmental package are as follows:
Conditional planning consent, in the circumstances of this case is, in our view, unworkable. It leaves to others, such as the Director of Agriculture and Fisheries, the task of assessing the value of the appellants' ecological "package" in a way which has not been and probably cannot be defined. We would, in allowing the appeal have approved in principle the putting up of a residential development of 81,000 m2 gross floor area, with parking spaces for over 700 vehicles, and a holiday centre of 3,000 m2 GFA: what sort of “habitat creation plan", "habitat management plan" etc. would suffice to mitigate the impact of such a large development on wildlife? No one can say with confidence. What then does conditional planning permission mean in practical terms? Once this point is reached, the conclusion is inevitable that the appellants' submission, made through counsel, that we should allow the appeal conditionally must be rejected. (para. 48)
Comments:
This case must be read very carefully in conjunction with the Henderson case (Appeal No. 13/93). When this case was decided on 26 October 1995, the Town Planning Board's application for a judicial review of the Henderson case had just been dismissed in the High Court on 28 April 1995 and leave to appeal to the Court of Appeal had been obtained. Note
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that the only dissenting member in the Henderson case was present in the Planet Universal case. The reader is urged to read the entire decision of this case in comparison with that of the Henderson case.
This panel of the Appeal Board obviously tried its very best to take note of the impact of the rules for decision in the Henderson case made by another panel of the Appeal Board.
The logic of this case as regards planning intention, and the relationship between the DPA Plan and the OZP was followed in the next two reported appeal cases namely, the Delight World and Yin Ning Savings cases.
The Question of Pre-Empting Future Planning and the Relationship between the IDPA Plan and the OZP: To Wait or Not to Wait?
This panel of the Appeal Board announced a very important principle regarding the nature of IDPA/DPA Plans, or more precisely, the nature of Unspecified Use Zones in Deep Bay Buffer Zones, namely they freeze any development ab initio until they are replaced by more refined statutory Outline Zoning Plans based on 'a detailed study'. As clearly demonstrated in the quotations above, approving a major development in the IDPA/DPA stage would 'pre-empt future planning'.
This approach sounds reasonable and could well be an approach taken by the planner. Yet, this approach might also be imaginary or even absurd. It could well be purely conjectural as nowhere in the statutory component of the relevant ‘interim' statutory plans had stated that development was to be frozen, pending the OZPs. If that was the case, then, as argued by the appellant, that intention could have been expressed easily in the relevant plan. The existence of the Town Planning Guidelines for 'residential' development in Deep Bay Buffer Zone 2 and the machinery of planning permission for applications in Unspecified Use Zones testifies that housing development was not precluded as a matter of planning intention when the 'interim' plans were in force.
Then, what is the role of 'interim' plans? Neither the word 'interim' of the DPA Plan nor the descriptions in the Explanatory Statements to the Plan, prepared by the Planning Department (rather than the Town Planning Board), entails that development must wait for the inception of the first OZP. It simply means that the definitive planning for large tracts of the area had not been predetermined and had to be determined upon a detailed study. These tracts of land were thus zoned 'Unspecified Use'. Meanwhile, any proposal in these Unspecified Use Zones had to go through the planning permission machinery during the 'interim' period. After that period, it might well be that such proposals might be (a) permitted as of right under Column 1, (b) remaining in Column 2, or (c) simply precluded in the first and subsequent OZPs. In the interim period, the Town Planning Board would investigate each case on its individual merits. In rejecting or approving applications in this interim period, the Town Planning Board
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helped future planning to be incorporated in the OZPs by considering merits and demerits of proposals in the given sites. The Appeal Board would be pre-empting the former two possibilities by insisting that the correct position in the interim period was to reject all proposals as a matter of principle on the grounds of pre-empting future planning.
The Appeal Board here ran the risk of unreasonably importing an ideal future study which had not been finalized, from an uncertain and indefinite future, to pre-empt proper present planning in accordance with the provisions of the interim statutory plans. To reiterate, such interim plans were not to freeze development but to require all development proposals in Unspecified Use Zones to go through a planning application procedure. There was no less or more implications other than the need to go through the approval machinery. The Appeal Board, however, 'made plans' by importing according to its own interpretation of the plans that such plans implied that development in Unspecified Use Zones had better be rejected.
The Appeal Board's logic could become absurd when it was taken to mean that planning now, as carried out by approving or rejecting a proposal made under provisions of an existing statutory plan, must always halt to wait for the 'clarification' of a future plan. As 'the future' always recedes indefinitely, this means that no development permission can be given 'now'. This logical fallacy may be described as 'the tyranny of the future'. Note that any OZP, by the very nature of town and country planning, is subject to continuous replanning. Procrastination by pinning down a future OZP is a futile and unreasonable argument which ignores the nature of town planning.
The Town Planning Ordinance clearly specifies that applications made under a DPA Plan is to be decided within the provisions of that plan, even though the DPA Plan has been superseded by an OZP at the time of making such decisions.
The Battle of the Ponds II
The Appeal Board's logic in this case was self-contradictory and internally inconsistent. It began by enunciating the approach as one being focused on 'the planning intention' rather than on the 'marks scored on the debate on fish ponds'. Yet, it dealt with the scores of the fish ponds at great length.
The District Planning Officer cryptically described the issue of fish ponds in Deep Bay Buffer Zones as 'a battle of ponds' in the Henderson case. In that case, the Appeal Board clarified that the issue as a meaningful planning matter did not lie in whether the fish ponds had intrinsic value but rather the concept of 'buffer' it adhered to.
Apart from the fact that there was no law stating that the decision of one panel of the Appeal Board bound other panels, in fact there were
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major changes in the 'intrinsic value' or 'social and political status' of the fish ponds: when this Planet Universal case was decided, the Hong Kong government as a colonial government had become a party to the Ramsar Convention. Wetlands had to be protected. Yet, there was no corresponding legislation to rule out development or wastage of fish ponds. It was not unreasonable for the Town Planning Board or the Appeal Board to attach weight to the Convention in dealing with applications in the Buffer Zones. But unfortunately the relevant Town Planning Board Guidelines had not been amended to reflect this new policy. The appellant, therefore, was entitled to rely on the statutory plan and administrative guidelines in force.
In this context, it was strange for the Appeal Board to have stated at the outset that Hong Kong had become subject to the Ramsar Convention and yet the scores on fish ponds did not matter. Nevertheless, the Appeal Board plunged into the arguments regarding the appellant's submission regarding filling fish ponds. In dealing with the proposal and arguments for and against the proposal, the Appeal Board's position was problematic in different aspects. These are discussed below.
(a) Primary sewage treatment plant
The appellant's proposed sewage treatment plant could only physically screen off debris and solid waste suspended in domestic sewage. This 'primary' level treatment, from my point of view, would be grossly inadequate. Complete diversion and export of sewage by sewers would be the best, albeit impracticable, alternative. The reason is that government sewers would not be in the vicinity in the near future (but this could be a planning condition incorporated in the modified Crown lease for compliance in the long term). Therefore, at least ‘secondary' treatment, which was a biochemical means to reduce nutrient loadings of the sewage, had to be adopted. It would be interesting to know the position of the Environmental Protection Department regarding this issue in the original planning application.
(b) The obsession with certain birds observed now and the evaluation of
planning gain
The Appeal Board was obviously very much concerned with the birds that visited the fish ponds. It was not so much concerned with the fishes in the ponds or wetlands as a matter of biodiversity. All forms of development have ecological implications. Fish ponds, like housing areas, are man-made developments. The relevant ecological consideration for the environmentally conscientious planner, bearing in mind the social and economic needs for housing accommodation, should be placed on the sets of development mix that would result in a richer and more diverse place on biodiversity.
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Filling in the fish ponds inevitably removes the natural and artificial habitats. However, low-density development (by Fairview Park standards) with tree plantations in private and public areas plus managed water bodies surely would create new man-made and natural (trees and shrubs) habitats for species. The trees planted in the proposed development would create the same ecological effects as fung shui woods in indigenous villages. Some of such woods have become designated as 'SSSIs'.
(c) Leaving things as they were and governing development by planning
conditions
Little progress in ecological planning was advanced by the decision of this case as neither the appellant nor the respondent had advised the Appeal Board of this ecological ‘balance sheet'. The Appeal Board, on the other hand, was well contented with leaving the existing fish ponds unmanaged and let wild nature be in reign. The fish ponds were left as stagnant water bodies that 'cultivated' mosquitoes. The so-called 'so be it' attitude to this likely irresponsible reaction of the appellant was alarming. The argument that rain water would refill the ponds was interesting but one could foresee that the ponds would soon become boggy marshes and salt pens upon natural silting. Perhaps, then, land-based animals and flora would flourish on such dried land, which is nevertheless no longer 'wet'.
Apparently, the Appeal Board had not been counselled as regards the proper property management' of active fish ponds which necessitates draining of the ponds, and dredging and liming of their bottoms. Fish ponds are man-made artifacts which need enormous efforts to maintain.
The Appeal Board did not trust the appellant's proposed ecological protection measures though such measures could be written down in a modified lease. Yet, it was ready to leave things in situ, realizing that no real management would be taken of the existing ponds. To argue that to leave things as they are is safer in ecological terms than to regulate matters by an enforceable lease is really incredible.
(d) Are commercial pond fish farming more viable in Hong Kong?
To argue that commercial pond fishing in Hong Kong can rival that in China and to assert that there are or will be less fish ponds in China as a result of development reflects ignorance of economic reality. Due to the lower opportunity costs of both land and labour as well as the availability of good fresh water supply from streams and dams, the fish ponds in Shenzhen alone have become more productive and profitable as their products are welcome in Hong Kong market.
The ponds owned by the Agriculture and Fisheries Department in
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Au Tau had been decimated by drainage channels and road projects. There was no plan to replenish that loss.
Hong Kong has no policy of subsidizing primary production or conserving land with natural and ecological significance by resumption. She, however, has an active planning policy of preventing land considered viable for such production from becoming more valuable human uses. History will confirm that such negative, reactionary, passive, unconstructive and apparently paternalistic approach to development proposals submitted under Column 2 would do no better than those development projects that have no regard whatsoever to the environment but yet are always permitted under either Column 1 or long-term housing policies of the government.
The Real Threat to Wetlands and the Environment of Hong Kong
Radical sociological critics of law and planning sometimes have a point when they criticize the law as being an epi-phenomenon that reflects society's ideology, having no real contribution to social change. A major social change in planning for Hong Kong is how to transform an archaic planning machinery which is not used to scientific arguments to one which is more objectively based. This is required for Hong Kong in order to cope with huge economic and population pressures without running into direct conflict with the environment. A higher ideal is to provide examples in modern planning to less developed mainland China.
The real threat to Mai Po Marshes (MPNR) has come from the seaward side due to the pollution of the Pearl River system and along the coast of Shenzhen. Across the border of the Special Administrative Region, massive areas of wetlands have been reclaimed at a scale several times bigger than the total area of the Deep Bay Buffer Zones. Hong Kong should have been able to successfully apply biotechnology in managing development rather than keeping a dogmatic stance of 'no development' in ecologically sensitive areas. However, the reality has always been that the government has the prerogative to ruin substantial amount of much better and valuable land.
The entire town of Shui Wai Wai, the Yuen Long Tung Tau Industrial Estate, the mangrove shores of Tolo Harbour now buried under the Tai Po Industrial Estate and the coastal section of Route 1, and the 'Woodside' site near the remnant of Kornhill at Quarry Bay are just a few notorious examples. None of these instances had developed or would continue to be developed with any form of ecological protection measures.
Mai Po has become a tattoo as it has 'international significance'. So are the migratory birds which land on its marshy land every year. Meanwhile, the wetlands around it and elsewhere, say at Tai Tam Harbour beneath the main dam of the reservoir, are neglected in terms of management. The government and its planning boards continue to fight a
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'phoney war' against the developer who has invaded the Buffer Zone 2 from the landward side. However successful the defence may be from the land front, this war is going to lose with the real breakthrough from the seaward direction.
Questions:
1. What has happened to the fish ponds now?
2. Is China a party to the Ramsar Convention? Did the Appeal Board
consider the role of China in 'future planning"?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2, 3, 4, 8, 9 and
10.
Town Planning Board, TPB PG-NO. 12A ‘Town planning Board Guidelines for Application for Developments Within Deep Bay Buffer Zones under section 16 of the Town Planning Ordinance', November, 1994.
(This supersedes the following set of guidelines.)
Town Planning Board, TPB PG-NO. 'Consideration of Section 16 application for Development in Areas around Mai Po Nature Reserve'. November,
1993.
(Published together with a set of 'Conceptual Guidelines for Developments within Deep Bay Buffer Zone 2'.)
Town Planning Board, TPB PG-NO. 'Consideration of Section 16 application for Development in Areas around Mai Po Nature Reserve', October, 1992.
Cases:
Henderson Real Estate Agency Ltd. v Lo Chai Wan (for and on behalf of
Town Planning Board) (1997) 7 HKLR
Book:
Irving, Richard and Morton, Brian. A Geography of the Mai Po Marshes.
Hong Kong: Hong Kong University Press, 1988.
THE DELIGHT WORLD CASE
Case Name: A large site in Kam Tin North DPA, New Territories [the Delight World Case]
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Planning Appeal Case No. : 07/95
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