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423
is just part of a larger proposal. Furthermore, the costs of adopting a bit- by-bit approach can be prohibitive to the appellant. If the logic of the Appeal Board is correct, then all uses in Column 2 of the Agricultural zones will not be permitted.
Relevance of Private Property Rights
Property rights of the appellant as indigenous villagers were not considered an important and relevant planning consideration in this case, though it was considered with 'great sympathy' in the Yuen To-shing, Yuen Shu- ling and the Ng Siu Wing cases.
Efficient Use of Land and Proper Planning: Use of Planning Conditions
Efficient use of land means using land for its most valuable use, which has no demonstrable and insurmountable social harm, according to modern planning standard and land policies. It can hardly be argued that the decision here will lead to an efficient use of land or proper planning. The Appeal Board could have imposed planning conditions, such as tree planting or even restricting the building height of the small houses to one or two (instead of three) storeys. However, it opted to dismiss the case on an illogical interpretation of planning intention.
Questions:
1. What has happened to the subject site since then?
2. What has happened to the adjoining land since then?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 9 and 10.
THE LO KWOK-WAI CASE
Case Name: Lots Nos. 1368A and 1368 RP in DD 82, Ping Che Road, Ta Kwu Ling, New Territories [the Lo Kwok-wai Case]
Planning Appeal Case No.: 19/95
21/
Similar Cases: cases nos. 13/92, 18/92, 19/92, 17/93, 19/93, 01/94, 95, 26/95 and 04/96 [the Pak Kong, Kingspeed Engineering, Kun Kee Motor, Shun Fat Container, Ever Need, Tang Sai Hung, Wong Yee Fai (2) and Container System Cases] regarding unauthorized development;
Cheung Hing Lung,
05/92, 07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94, 04/94,
424
•
•
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09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/95, —, 21/95, 26/95 and 06/96 [the OTB, Full Look, Pak Kong, Treasure Base (2), Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding appeals stated explicitly to be against planning intention;
"
08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 09/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/95, and 21/95 [the Yuen To-shing and Yuen Shu-ling, Pak Kong, Ultra Force, Kingspeed Engineering, Kun Kee Motor Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, —, and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans.
Nature of the Case: planning application related to planning enforcement: open storage of steel materials.
Date of s. 16 Application: 15 July 1994
Date of Hearing: 16 May 1996
Date of Decision: 4 June 1996
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Mr Nicholas Cooney for the Town Planning Board (b) Mr Lo Kwok-wai for the appellant
Decision: Appeal dismissed
Rule Laid down by the Decision:
Where (a) an appellant cannot overcome this fundamental objection, namely that the application is inconsistent with the 'planning intention' of the statutory plan, and (b) the appellant does not advance any no valid reason why granting planning permission will not be inconsistent with the said planning intention, then there is no need for the Appeal Board to deal with other grounds relied on by the Town Planning Board to reject a planning application during the appeal hearing.
Background:
Being Lots Nos. 1368A and 1368B RP in DD 82, Ping Che Road, Ta Kwu Ling, the subject site fell within Unspecified Use Zone in the approved
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425
Ping Che and Ta Kwu Ling Development Permission Area Plan No. DPA/ NE-TKL/2 (the DPA Plan) which was published in the gazette on 31 March 1994. The approved DPA Plan had replaced the draft Ping Che and Ta Kwu Ling Development Permission Area Plan No. DPA/NE-TKL/ 1 (the DPA Plan) which was published in the gazette on 17 July 1991. The draft DPA Plan in turn had replaced the Ping Che and Ta Kwu Ling Interim Development Permission Area Plan No. IDPA/NE-TKL/1 (the IDPA Plan) which was published in the gazette on 17 August 1990.
The appellant made a s. 16 application within for open storage of steel materials and workshop for repairing tools and steel works under the DPA Plan.
On 1 July 1994, the approved DPA Plan was replaced by the draft Ping Che and Ta Kwu Ling Outline Zoning Plan No. S/NE-TKL/1 (the OZP). The site was rezoned 'Agriculture' by the OZP.
The s. 16 application was rejected by the Rural and New Town Planning Committee (RNTPC) of the Town Planning Board on 15 July 1994.
The appellant's application was again rejected on 3 May 1995 by the Town Planning Board after a s. 17 (1) review hearing.
The appellant made an application for an appeal on 30 April 1995. On appeal, the appellant did not seek permission to use the subject site as a workshop for repairing tools and steel works. He only sought permission for open storage of steel materials. He also requested alternatively that permission be given to him on a temporary basis.
Arguments:
In dismissing the s. 16 application and the application in the review, the Town Planning Board held that (para. 1):
(a) the development was not in line with the planning intention for the area which was to identify appropriate forms of agriculture and rural activities that could be sustained to prevent unwanted urban growth and to enhance the quality of the environment;
(b) the development was incompatible with the surrounding land uses
which were predominantly agricultural and rural in character; (c) the development would cause noise nuisance to the nearby village houses and no mitigation measures had been included in the submission;
(d) no provision of parking facilities had been included in the submission; (e) insufficient information on the proposed vehicular access and the proposed arrangement of loading/unloading and manoeuvring of vehicles within the site had been included in the submission;
(f) no proposal on the provision of drainage facilities had been included
in the submission;
(g) no landscaping proposals had been included in the submission; and (h) the approval of the application would set an undesirable precedent for
similar applications.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
•
Reasons for Decision:
The Appeal Board dismissed on the grounds of planning intention. In coming to this decision, the Appeal Board first had regard to the characteristics and environment of the subject site, the relevance of planning enforcement actions taken against the subject site, and planning intention located from the Explanatory Statement of the approved DPA Plan.
The Characteristics and Environment of the Subject Site
The Appeal Board noted that:
(a) as from photographs supplied, the subject site had been cleared of a workshop for repairing tools and steel works, which had originally been there, before the appeal;
(b) as shown on a land use plan produced, the agricultural land in the vicinity was substantially under active cultivation and the domestic structures adjoining the site were still in active use;
(c) paved and fenced off;
(d) was directly accessible to Ping Che Road;
(e) fell within a flood plain and was close to the frontier close area; (f) fell within the Ta Kwu Ling sub-area, i.e. the northern part of the DPA near Ping Che Road 'which consists of large tracts of flat and extensive arable lowland' (para. 14);
(g) was surrounded by land which was 'predominantly rural and agricultural in character, and comprised a large amount of cultivated land and domestic structures. To the immediate north of the Site is an open storage of construction machinery, containers and iron pipes which is partly an existing use tolerated under the Ordinance (i.e. used as such before the gazetting of the Ping Che and Ta Kwu Ling Interim Development Permission Area Plan No. IDPA/NE-TKL/1 on 17th August 1990) and partly an unauthorised development which came into being after the gazetting of the said IDPA Plan. To its further North on the opposite side of the van track are two large open storage yards and a car repairing workshop which are unauthorised developments in respect of which enforcement actions have been taken. To its East is Ping Che Road and beyond is a large tract of agricultural land partly under active cultivation and partly lying fallow. To its South are active agricultural land and domestic structures. To its immediate West are domestic structures and vacant chicken sheds.' (para. 9)
'Planning Enforcement'
The Appeal Board observed that:
(a) apart from the open storage of machinery, containers and iron pipes to
Planning Appeal Cases
427
the immediate north of the site, which was partly an ‘existing use' 'tolerated under the Ordinance', 'most of the open storage yards and workshops in the vicinity are unauthorised developments and are subject to enforcement action by the Planning Authority. We are told that in the past four years, active enforcement action has been taken to terminate these unauthorized developments and to improve the rural environment.' (para. 18)
(b) enforcement action had been taken against the appellant in respect of
the subject site.
The Planning Intention
The Appeal Board located the 'planning intention' for the Ta Kwu Ling sub-area of the DPA in paragraph 6.3.5 (a) (I) of the Explanatory Statement of the approved DPA Plan (para. 14): ‘is to identify appropriate forms of agriculture and rural activities that can be sustained to prevent unwanted urban growth and to enhance the quality of the environment.'
The Appeal Board also noted paragraph 6.3.5 (c) of the Explanatory Statement (para. 15):
For any other developments (i.e. other than low rise, low density residential development(s) within this area, the owners/developers must demonstrate that their proposal would have insignificant adverse impacts on the environment, traffic and drainage of the areas or appropriate measures would be taken to mitigate such impacts to an acceptable level.
Against Planning Intention and That Is It
The Appeal Board stated that: 'Unless the appellant can overcome the fundamental objection that this application is not in line with the planning intention of the DPA Plan, the appeal must fail.' (para. 16)
Having regard to the characteristics and environment of the site, the planning enforcement action that was taking place, the Explanatory Statement of the DPA Plan, and the observation that ‘no valid reason has been advanced why granting permission as sought would not be inconsistent with the planning intention under the DPA Plan', the Appeal Board concluded that:
(a) 'We have no doubt that the Town Planning Board's decision to refuse permission on this ground [application being inconsistent with planning intention] cannot be faulted.' (para. 20) (square brackets mine)
(b) 'Since the appellant cannot overcome this fundamental objection [application being inconsistent with planning intention], there is no need for use to deal with other grounds relied on by the Town Planning Board.' (para. 21) (square brackets mine)
428
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Comments:
Planning Intention and Other Reasons Objecting the Planning Application
Other than planning intention, there was no real argument against the proposal.
Planning Enforcement and Planning Application
The reasoning adopted in deciding this case was noteworthy for, unlike that in the Pak Kong, Kingspeed Engineering and Kun Kee Motor cases, the Appeal Board did not condemn the appellant for having committed unauthorized development, thus avoiding unjustly holding a 'pre-trial review' for the appellant in a planning application. This application was duly made according to enforcement provisions in the Town Planning Ordinance. However, had the appellant come to the Appeal Board in a second time, the treatment might be entirely different, as in the case of Wong Yee Fai (2).
'Tolerated Uses'
The planning bodies often abuse terms. 'Existing uses' or uses that subsisted before the publication of the Interim Development Permission Area Plan are legitimate uses not criminalized by enforcement legislation. It will be inaccurate, if not condescending, to describe such legitimate uses as 'tolerated uses', suggesting that they are illegal but yet tolerated. In fact, the lessee has been kindly asked to 'tolerate' the amended Planning Ordinance, which nullifies part of the contractual rights of the lessees based on the Crown lease — without compensation, in the name of ‘public interest'. Presumably, open storage uses have no less public interest for they are confined to limited zones where they can only be carried out upon successful planning application.
It is my view that planning enforcement legislation has become void at midnight, 31 June 1997 under the operation of the Basic Law. This law provides for compensation in cases of infringement of private property right.
Questions:
1. What are the clauses in the Basic Law that protect private property? 2. What is the meaning of 'taking"? Can land be 'taken' by planning
legislation without resumption?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5, 8, 9, 10 and
11.
Planning Appeal Cases
429
Town Planning Board, TPB-PG NO. 13, ‘Town Planning Board Guidelines for Application for Open Storage and Port Back-up Uses under Section 16 of the Town Planning Ordinance', November, 1994.
Cases:
1. The mischief planning enforcement legislation targets
AG v Melhado Investment Ltd. [1983] HKLR 327
2. Relevant planning enforcement cases (See Applendix)
Auburntown Ltd. v TPB HCMP No. 222 of 1993
Tsei Kwei King & Cheung Kam v AG MP No. 1509 of 1993
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of 1994
Regina v Tang Yip and Yeung Fook Mui Magistracy Appeal No. 864 of 1994
Regina v Helen Transportation Co. Ltd., Liu Ka Sing and Chan Yuk Kwan Magistracy Appeal No. 303 of 1995
Regina v Power Straight Ltd., Dragon Friend Ltd. Magistracy Appeal No. 644 of 1995
THE CHEUNG HING LUNG CASE
•
Case Name: Lot No. 987 in DD 106, Shek Kong, Yuen Long [the Cheung Hing Lung Casel
•
Planning Appeal Case No.: 21/95
Similar Cases: cases nos. 13/92, 18/92, 19/92, 17/93, 19/93, 01/94, 19/ 95, —, 26/95 and 04/96 [the Pak Kong, Kingspeed Engineering, Kun Kee Motor, Shun Fat Container, Ever Need, Tang Sai Hung, Lo Kwok-wai, Wong Yee Fai (2) and Container System Cases] regarding unauthorized development;
,
>
13/92, 18/92, 19/92, 17/93, 19/93, and 26/95 [the Pak Kong and Kingspeed Engineering, Kun Kee Motor, Shun Fat Container, Ever Need, (not), and Wong Yee Fai (2) Cases] regarding unauthorized development and planning intention; and self-incrimination in planning enforcement proceedings by planning application;
04/92, 07/92, 10/92, 15/92, 04 and 05/93, 13/93, 17/93, 08/95, 16/95,
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
and 01/97 [the Sung Dynasty City, Full Look, Treasure Base (1), Ultra Force, Treasure Base (2), Henderson, Shun Fat Container, Yin Ning Savings, Arzignano Leather, — and Connie Law Yuk Wah Cases] regarding Town Planning Board or Appeal Board procedures; 07/92, 18/92, 19/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94,
10/94, 11/94, 12/94, 14/94, 02/95, 05/95, 07/95, 08/95, 16/95, 18/95, 26/95, 28/95, 04/96, 12/96 and 01/97 [the Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Lai Sun Development, Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Arzignano Leather, Jetway Civil, Wong Yee Fai (2), Fine Tower, Container System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statement of statutory plans); 05/92, 07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, 26/95 and 04/96 [the OTB, Full Look, Pak Kong, Treasure Base (2), Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Wong Yee Fai (2) and Container System Cases] regarding appeals stated explicitly to be against planning intention;
08 and 09/92, 13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 09/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, [the Yuen To-shing and Yuen Shu-ling, Pak Kong, Ultra Force, Kingspeed Engineering, Kun Kee Motor Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans; 04/93 and 05/93, 01/94, 09/94, 02/95, 05/95, 07/95, 08/95, -[the Treasure Base (2), Tang Sai Hung, Lee Yiu Kam, Charming City, Planet Universal, Delight World, Yin Ning Savings and Cases] regarding agricultural
and rural setting of the site.
Nature of the Case: 'Planning Unit': the meaning of 'in situ' redevelopment; industrial development (factory and warehouse) in Unspecified Use Zones in Development Permission Area (DPA); planning enforcement, 'existing uses', aerial photographs; relationship between planning application and appeals.
Date of s. 16 Application: Before 4 March 1994
Planning Appeal Cases
•
Date of Hearing: 23 May 1996
4 June 1996
•
•
431
Date Of Decision: 6 August 1996
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss Poon for the Town Planning Board
(b) Representation for the Appeal Board was not mentioned in the decision
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) The relevant date for determination of existing use is when the Interim
Development Permission Area Plan was published in the gazette. (b) The Appeal Board would make no decision on 'existing use' so as not to prejudice any enforcement action which may be taken. However, the Appeal Board may proceed on deciding an appeal on the assumption that certain uses material to the application are ‘existing uses' where the Appeal Board is satisfied with the evidence adduced by the appellant.
(c) 'In situ' development means that the development must stay within the same lot in the Block Crown lease and does not involve the relocation of development from one lot to another though the lots involved are owned by the applicant/appellant.
(d) The Appeal Board 'cannot allow a fait accompli to force us in granting permission which would otherwise not be granted' in case where the site could no longer be useful for a use that is consistent with the 'planning intention'.
Background:
With an area of about 3970 m2, the subject site was Lot No. 987 in Demarcation District (DD) 103 in Shek Kong, Yuen Long. The lot was held under a Block Crown Lease and demised as 'agricultural land'. The subject site fell within an Unspecified Use Zone on the draft Shek Kong Development Permission Area Plan (the DPA Plan), which replaced the Interim DPA Plan published in the gazette on 5 October 1990.
The approved DPA Plan was published in the gazette on 20 May 1994. On 17 June 1994, the draft Shek Kong Outline Zoning Plan (the OZP Plan) replaced the approved DPA Plan. The subject site was rezoned 'Agriculture' on the draft OZP.
The appellant made a s. 16 application for permission to develop a factory and warehouse for manufacturing and storage of plastic materials. The application was rejected by the Town Planning Board on 4 March 1994 (5?) in the first instance and again after a s. 17 (1) review held on 12 May 1995.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Arguments:
The appellant argued on the following grounds:
(a) The Town Planning Board had ignored the fact that the appellant had been operating, using the trade name Universal Chemical Enterprises (Universal), a factory and warehouse for manufacturing and storage of plastic materials on the adjacent Lots, i.e., Lots Nos. 988, 989, 900C and 990 ARP (Part) before 5 October 1990.
(b) Evidence supporting (a) above included:
(i) Mr Yip Mau Chong of the Tai Ping Insurance Co. Ltd. who had
visited Universal in 1985.
(ii) Mr Law Chak Yuen, a foreman and driver employed by Universal
since 1987, who gave similar evidence.
(c) Though only Lot No. 987 was identified in the s. 16 application, the appellant indicated on the application form that the site for which planning permission was sought had an area of approximately 8000 m2. It had to be clear that this area included not only Lot 987 but also the adjacent Lots. Indeed, Lots 988 and 990C were indicated in the plan enclosed in the s. 16 application.
(d) Paragraph 6.2.4 (a)(i) of the Explanatory Statement to the DPA Plan
referred to upgrading the existing structures.
(e) The subject lot could not be returned to agricultural uses as it had
been covered with inches of concrete.
In rejecting the application in the s. 17 review, the Town Planning Board held that (para. 5):
(a) the proposed development was not in line with the planning intention for the general area which was to preserve and encourage agricultural
use;
(b) the proposed development was incompatible with the surrounding land
uses which were mainly residential and rural in nature;
(c) insufficient information on vehicular access arrangement had been
provided in the submission; and
(d) inadequate provision of emergency vehicular access and water supply
for fire-fighting purposes had been proposed in the submission.
Miss Poon, Counsel for the respondent, the Town Planning Board, argued that:
(a) the appeal had to be confined to Lot 987 because the appellant's s. 16
application covered only Lot 987;
(b) though the appellant sought to include the adjacent lots in the s. 17 review, the Town Planning Board rightly refused to permit the appellant to do so;
(c) a letter written by the appellant to the Town Planning Board on 18 January 1994 indicated that the existing structures not within the boundary of the site were not included in his application; and
Planning Appeal Cases
433
(d) the Appeal Board was not a proper forum to decide whether there were 'existing uses' on the adjacent lots. This issue might ‘arise in subsequent enforcement proceedings' and the Appeal Board 'should not prejudge the issue'. (para. 15)
Reasons for Decision:
Before considering the merit of the appeal, the Appeal Board came to the following opinions:
(a) It had always been the appellant's case that he had been operating a factory and warehouse on the adjacent lots and he wanted permission to move part or all his operation from the adjacent lots onto Lot 987. (b) The appellant had made out a strong case that he had been operating
Uinversal on the adjacent lots prior to 1990.
(c) The relevant date for determination of existing use is 5 October 1990
when the Interim DPA Plan was published in the gazette.
(d) The Appeal Board would make no decision on 'existing use' so as not
to prejudice any enforcement action which may be taken.
(e) Yet, for the purpose of this appeal, the Appeal Board would assume in the appellant's favour that the appellant had been operating Universal on the adjacent lots before 1990: the Appeal Board would decide whether permission should be given to the appellant to move his operation onto Lot 987.
(f) From aerial photographs produced, the Appeal Board considered that 'it is quite clear' that 'on 5th October 1990, Lot 987 was under cultivation'. (para. 17) From the same documentary evidence, 'the surrounding area(s) of Lot 987 are still predominantly rural in character with a lot of cultivated land, a number of fish ponds and some temporary domestic structures. The nearest villages, Shui Lau Tin Tsuen and Kam Tin Wai, are situated 400 metres to the East and 275 metres to the West of Lot 987 respectively. A stream course runs along closely to the southern side of the site and to its north across the nullah is Shek Kong Air Field Road and Shek Kong Camp. There is a 1.5 metres wide iron foOTBridge spanning over the nullah in front of lot 987.' (para. 20)
(g) Had the appeal been allowed, the appellant would use the adjacent lots mostly for parking but occasionally for loading and unloading purposes. In other words, if the appeal is allowed, the adjacent lots will continue to be used for non agricultural purposes. Mr. Cheung [the appellant] is not offering to swap non-agricultural use on the adjacent lots for non agricultural use on Lot 987. Thus, although moving his factory further away from dwellings in the neighbourhood is an improvement, it has to be counter balanced by the loss of agricultural use on Lot 987.' (para. 18) (italics and square brackets mine) (h) The definitive proposal of the appellant per his letter of 5 December 1994 was to build one two-storey workshop of 350 m2 per floor; one
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
single-storey warehouse of 13 800 square feet and a two-storey office of 100 m2 per floor on Lot 987.
(i) The 'planning intention' for the subject site was unambigiously specified in para. 6.2.4.(a)(i) of the Explanatory Statement to the draft DPA Plan (para. 23):
The north and north-eastern portions of this sub-area (i.e. south to Shek Kong Camp) has been included in the extension of Agricultural Land Rehabilitation Scheme (ALRS) and therefore agricultural use would be preserved and encouraged. The western part of this area is dominated by industrial buildings and temporary structures. The in- situ upgrading and reconstruction of these temporary structures with permanent materials would be encouraged.
The Appeal Board defined the key issue to decide was: 'Whether the [Town Planning] Board is right that the proposed development is not in line with the planning intention for the area which was to preserve and encourage agricultural use.' (para. 22) (square brackets mine). Its answer was that the Town Planning Board was right because of the following
reasons:
Against Planning Intention
Lot 987 was located within the north and north-western portion of the sub-area referred in para. 6.2.4 (a) (i). Hence it is clear that the planning intention was to preserve and encourage agricultural use.' (para. 24)
Lot 987 was not within an area to the south east of the sub-area where there were a number of temporary structures.
Para. 6.2.4 referred to in situ upgrading' but the appellant was proposing to demolish old structures on the adjacent lots and build new ones on Lot 987.
Lot 987 was on 5 October 1990 under cultivation. Since then, the site had been covered with several inches of concrete. The Appeal Board was skeptical as regards such concrete land could not be returned to agricultural use. Even if that was true, 'we cannot allow a fait accompli to force us in granting permission which would otherwise not be granted.' (para. 26)
Hence, even on the assumption that the appellant had operated Universal on the adjacent lots on and before 5 October 1990, the appeal had to be dismissed.
Comments:
Alleged Unauthorized Development
The approach to suspected unauthorized development on the subject site or in its vicinity was definitely correct in this case; it contrasts significantly from the Pak Kong-Kingspeed Engineering-Kun Kee Motor-Shun Fat
Planning Appeal Cases
435
Container-Ever Need-Tang Sai Hung series of cases. In these cases, the Appeal Board decided cases as if it were a court determining whether a use was unauthorized and announced the rule that no application arising from planning enforcement cases should be allowed even where such applications were invited' by enforcement notices.
In Situ Upgrading and Relevant Planning Unit
This case was in fact decided not so much on planning intention but on the fact that the proposed redevelopment would involve a shift of the footprint of the pre-existing building to another lot owned by the appellant. The so-called loss of the farm land on the subject lot could be made good by a planning condition that the 'de-canted' lots be reverted to agriculture. In planning jargon, this case considered a lot held under a Block Crown lease, rather than the entire land holdings of the appellant, as a self-contained 'planning unit' for the definition of in situ redevelopment. As admitted by the Board, such relocation had merits (if the rest of the land was put back to farming). Hence the very narrow and restrictive stance of the Appeal Board was splitting hairs and made little planning sense. Lot boundaries are imaginary lines which are in themselves meaningless for planning purpose. The outermost property boundary of the appellant's land holdings was more meaningful for deciding 'redevelopment'.
If a literal approach is taken of the Explanatory Statement, then one can only consider that the 'north western portion of the sub-area' was also part of the 'western' part of that sub-area. The Appeal Board opted not to take that view regarding the general location of the subject site but adopted a hair-splitting approach to ‘in situ redevelopment' without even considering the application of planning conditions.
Question:
1. What has happened to the site since the decision of the appeal was
made known to the appellant?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5, 8, 9, 10 and
11.
Cases:
1. The mischief planning enforcement legislation targets
AG v Melhado Investment Ltd. [1983] HKLR 327
436
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
2. Relevant planning enforcement cases (See Appendix)
Auburntown Ltd. v TPB HCMP No. 222 of 1993
Tsei Kwei King & Cheung Kam v AG MP No. 1509 of 1993
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of 1994
Regina v Tang Yip and Yeung Fook Mui Magistracy Appeal No. 864 of 1994
Regina v Helen Transportation Co. Ltd., Liu Ka Sing and Chan YukKwan Magistracy Appeal No. 303 of 1995
Regina v Power Straight Ltd., Dragon Friend Ltd. Magistracy Appeal No. 644 of 1995
THE LUCKY GAIN CASE
Case Name: Aberdeen Inland Lots 278 and 280, Hong Kong Island [the Lucky Gain Case]
•
Planning Appeal Case No.: 22/95
Similar Cases: cases nos. 01/91, 03/92, 05/92, 02/94, 12/94,
and 28/95
"
[the Alticosmic, Wo Yi Hop Road, OTB, So Cho Cheung, Lai Sun Development, and Fine Tower Cases] regarding commercial use application in Industrial Zones; 05/92, 15/92, 18/92, 19/92, 02/93, 04 and 05/93, 13/93, 17/93, 12/94, 05/95, 16/95, [the OTB, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Bowen Road, Treasure Base (2), Henderson, Shun Fat Container, Lai Sun Development, Planet Universal, Arzignano, Cases] regarding the nature of planning and the market or private interest/public interest; 03/92, 08 and 09/92, 12/92, 14/92, 15/92, 18/92, 19/92, 04 and 05/93, 11/93, 13/93, 14/93, 01/94, 05/94, 10/94, 14/94, 07/95, 08/95, [the Wo Yi Hop Road, Yuen To-shing and Yuen Shu-ling, On Luk Tong, Good Luck, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Treasure Base (2), Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World, Yin Ning Savings, Cases] regarding adverse traffic/access problems;
13/93, 14/93, 16/93,
}
28/95 [the Henderson Yiu Cho Investment, Naturaluck, Fine Tower Cases] regarding conflicting views between DPO and other government departments.
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Nature of the Case: proposed commercial/office building at a plot ratio of 15 in an industrial zone; Industrial-Office (I-O) development already approved; legal and policy status of Town Planning Board Guidelines; purposes of the Town Planning Ordinance, Chapter 131; Metroplan; Tertiary Planning Units (TPUs); Planning Units for assessment of office vacancies; lease enforcement; conflicting views among government departments.
Date of s. 16 Application: 29 September 1994
•
Date of Hearing: 30-31 October 1996
• Date of Decision: 18 December 1996
•
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Mr Nicholas Cooney for the Town Planning Board (b) Mr Anthony Ismail for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) While the general purpose of the statutory town plans, according to the purpose of the Town Planning Ordinance, is to promote the health, safety, convenience and general welfare of the community, it does not necessarily follow that any application for a Column 2 use satisfying this general requirement should be approved. The reason is that each application must be considered in the context of the relevant statutory plan. 'For example, hospitals will promote the health of the Community but it cannot mean that permission must be granted for a hospital to be built whenever it is a Column 2 use.'
(b) The relevant own Planning Board Guidelines, where applicable, indicate
food reasons for permitting an application subject to those guidelines. (c) In the calculation of vacancy rates for offices, the relevant Planning
Unit is the Tertiary Planning Unit.
(d) "The fact that there is a surplus of office/commercial premises must be a good reason for refusing permission' for application for such uses.
Background:
Being Aberdeen Inland Lots Nos. 278 and 280, the subject site was located within the Wong Chuk Hang industrial area. It fell within an Industrial Zone in the draft Aberdeen and Ap Lei Chau Outline Zoning Plan No. S/H15/6 (OZP).
As a result of a successful planning application No. A/H15/119, an 'Industrial-Office' (I-O) development had been approved with conditions by the Metro Planning Committee on 5 March 1993 in respect of Lot 278.
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On 24 February 1995, the planning permission was extended for two years until 5 March 1997.
The appellant made an application for a 30-storey commercial/office building with a plot ratio of 15. This application was rejected by the Town Planning Board in the first instance and again after a review hearing.
Arguments:
The appellant argued on the following grounds:
(a) The Town Planning Board Guidelines were for general reference and
had no statutory effect.
(b) The purpose of the Town Planning Ordinance was to 'promote the health, safety, convenience and general welfare of the Community'. Permission should be granted even if the development did not satisfy the Town Planning Board Guidelines in whole or in part. (c) There was a demonstrated shortfall in the provision of office/commercial floor space in the area, relying on the evidence of Miss Gilletta Cheng. Miss Cheng had 10 years government experience in the Town Planning Office of the Buildings and lands Office as well as the Territory Development Department. She then went into private practice about 5 years ago. According to Miss Cheng's opinion, which was contained in a statement dated 22 October 1996, there was a 17.09% vacancy for flatted factories in Aberdeen at the end of 1995. Miss Cheng also gave evidence about the effective conversion of industrial buildings into commercial office use by reference to six offices. In a letter dated 1 March 1995, Miss Cheng referred to a total of 1301 offices.
(d) The District Lands Officer/Hong Kong South had no objection to the proposed development and supported the idea of retail space on the ground floor as there was a need of retail space in the area.
(e) The only departments that objected to the application were the Industry Department and the Planning Department. No other government department objected to the application.
(f) There was a high vacancy rate for retail or office because SouthMark
was only available for sale.
(g) The existence of 5.25% vacancy for flatted factories meant that there
was a surplus of industrial premises.
(h) An office/commercial building would alleviate traffic congestion because an industrial development required 12 bays for lorries whereas a commercial office development required just 5.
(i) The Aberdeen Technical School was situated close to the subject site. The proposed development would induce significant improvements to the general amenity and the environment of the district as a whole. (j) The Aberdeen Technical School and the foOTBall field were environmentally sensitive uses, a commercial/office building would be beneficial in the vicinity as a buffer.
(k) The provision of retail floor space was a significant improvement.
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In rejecting the planning application, the Town Planning Board held that (para. 3):
(a) the Town Planning Board was not convinced that there was at this time a shortfall of commercial/office floor space in the area to justify the approval of the application for commercial/office uses;
(b) there were insufficient environmental gains to justify the approval of
the application as there were no environmentally sensitive uses nearby; (c) it was difficult to accept at this point that the location was a suitable
secondary office / commercial centre;
(d) approval of the application might set an undesirable precedent for pure commercial office uses which might lead to the wholesale conversion of the area and the permanent loss of industrial floor spaces in the area.
In the appeal hearing, Mr Cheuk Kau-kwan of the District Planning Office, for the respondent, stated that the six offices referred to by Miss Cheng for the appellant as being used for commercial (office) use were in fact largely used as warehouses. Any office portion of the companies identified by Miss Cheng were 'only ancillary operations to the warehouses which were the pre-dominant use and hence are permitted as of right under the Industrial Zone'. (para. 9)
Mr Wilson Siu Kam-wai, Senior Valuation Surveyor, of the Rating and Valuation Department stated that the vacancy rate in respect of flatted factory, office and industrial office properties in TPU 175 at the end of 1995 were 5.25%, 97.04% and 4.76% respectively. The 97.04% was largely due to SouthMark.
Survey Officers of the Planning Department conducted a survey of the site of SouthMark in May 1996. The survey revealed that only 505 of the floor space of SouthMark had been sold off or occupied.
The Appeal Board noted the following facts (para. 4):
(a) Under the OZP, the Town Planning Board had already made provision or approved a total of 131 440 m2. Commercial/Office or Industrial- related office space in the Wong Chuk Hang Industrial Area. Such floor space included: (i) 46 200 m2 office space in the SouthMark at Yip Kan Street, zoned OU (commercial development with multi-storey public lorry park) upon rezoning a GIC site in an amendment to the OZP in 1990; (ii) 82 500 m2 industry-related floor space in composite I- O buildings as a result of six approved planning applications since 1990. One such composite building was completed in 1990 and another under construction. The other four had not yet been implemented and that one approved for Lot 278 was one of these four sites; and (iii) 27 240 m2 commercial space for retail shops, showrooms, ancillary offices and banks in industrial buildings had been approved by the Town Planning Board through seventeen planning applications since 1989.
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(b) The Town Planning Board Guidelines for Application of Office Buildings in Industrial Zones set certain planning criteria for considering planning applications.
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
The Town Planning Board Guidelines Are Relevant and Applicable
The criteria in the Guidelines ‘are based on common sense. They indicate what may be regarded as good reasons for permission . . .' As regards the appellant's submission about the purpose of the Ordinance, the answer of the Appeal Board was: 'With respect, we do not believe that necessarily follows. Each application must be considered in the context of the relevant statutory plan. For example, hospitals will promote the health of the Community but it cannot mean that permission must be granted for a hospital to be built whenever it is a Column 2 use.'
No Evidence that There Was Demand for More Offices
The Appeal Board negated all submissions by the appellant and his experts, and accepted all evidence of the experts for respondents:
(a) The figures provided by Miss Cheng was the averages not only for TPU 175, but also TPU 173 and 174. The vacancy for TPU 173 at the end of 1995 was 15.12%; TPU 174, 73.54%; TPU 175, 5.24%. The last figure, namely 5.24%, rather than the averages of a wider area of 17.09%, was relevant.
(b) Miss Chen's evidence regarding effective conversion of industrial buildings into commercial office uses was unconvincing as it had been 'refuted' by Mr Cheuk's findings, which were unchallenged.
(c) Miss Cheng referred to a total of 1301 offices. Given (a) above, the Appeal board was doubtful about her 'unhelpful evidence' on 'the allegation in relation to the other 1,295 offices'. 'Indeed, she only identified 65 of the 1,301 offices in her letter of 1.3.1995.' (para. 10) (d) 'In any event, unauthorised conversion of industrial buildings into commercial office use should be the subject of enforcement action.' (para. 10)
(e) Nor should unauthorized conversion of industrial floor space automatically be taken to mean that there was a lack of demand for industrial uses. 'It may simply mean that a higher return is available for office use. One purpose of planning is to ensure adequate and affordable supply of premises deemed desirable for planning purposes.' (para. 10)
(f) The evidence of Mr Cheuk, Mr Siu and the survey officers of the
Planning Department was acceptable.
(g) The argument claiming that SouthMark was not well received because
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it was for sale only was unacceptable. 'One cannot expect all purchasers to be owner occupiers. No doubt, if there is a demand from tenants, premises would be purchased for letting purposes. We are of the view that the evidence demonstrates a healthy demand for industrial space or I-O space and much less demand for commercial/office space in Wong Chuk Hang. In our opinion, this must be a good reason for refusing planning permission.' (para. 13)
(h) 5.25% vacancy rate in flatted factory 'is very healthy compared with
the vacancy rate for commercial space in the area'. (para. 14)
(i) 'We do not regard the lack of objection or support by some Government Departments as conclusive.' "The fact that there is a surplus of office/ commercial premises must be a good reason for refusing permission.' (para. 16)
(j) The Appeal Board believed that the improvement in traffic terms would likely be significant. Indeed, although there may be less lorry traffic, a commercial office development may well generate other kinds of vehicular traffic.' (para. 17)
(k) There was already an existing buffer between the Aberdeen Technical School and the subject site in the form of a football field and the trees therein. The proposal would not bring any significant or meaningful improvement.
(1) The Appeal Board did not agree that the retail floor space was a
significant improvement.
Comments:
As far as market analysis is concerned, the logic in this case is similar to that adopted in the Lai Sun Development case. The respondent tried their very best to discredit the expert evidence adduced by the appellant. The only differences between Luck Gain and Lai Sun Development are that in the former:
(a) the Lands Authority was reported to have no objection and even had favourably supported to the proposal. The role of planning in a market economy is again demonstrated; and
(b) the Appeal Board did not rule out the application using the conventional
weapon of planning intention.
The Relevance of the Town Planning Board Guidelines from an Administrative Law Perspective
The Town Planning Board Guidelines are applicable in this case. Like the OZP and its Notes, their Explanatory Statements, and the Hong Kong Planning Standards and Guidelines produced by the Planning Department, such guidelines provide relevant considerations which must be taken into account by the planning boards. Or else their decisions shall be subject to judicial review as a matter of administrative law.
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The guidelines are not just common sense products. They are in fact. products of professional planning considerations.
Confusion between Always Permitting a Use Consistent with Community Purposes and Rejecting a Column 2 Use as a Matter of Principle
The example of hospitals used by the Appeal Board was correct but could be misleading. It is one reason why a Column 2 use may be rejected. However, it is different to infer from this possibility and claims that Column 2 may be against planning intention in a given plan. The fact is that the choice of Column 2 items for each OZP are made consciously after taking the local situations into account. Items under both Columns 1 and 2 for the same kind of zones vary from one Planning Area to another, and they may even be different from one version of the statutory plan for the same area to another before or after a certain date. A planner may be negligent in assuming that the items under either zones prevail for the entire territory of Hong Kong and hence does not bother to check the most updated statutory plan for a given Planning Area.
Regional Planning Policies for Major Office Development
It was most unfortunate that there was no submission about the relevant MetroPlan's Development Statement about office development in this part of Hong Kong Island. Perhaps, the respondent had 'overkilled' such Statements in the Lai Sun Development case!
The Assessment of Demand and Supply
(a) Average vacancy rates of the district
It was patently wrong to categorically say that Miss Cheung's district- wide assessment was 'unhelpful' because both 'district' and 'local' data are relevant. Had the logic of the Appeal Board been applied to evaluate the proposal for Metroplaza near Kwai Fong Mass Transit Railway station within a single TPU, then the two giant office towers there should not have been approved!
(b) Figures about 'effective conversion' of industrial floor space into
commercial uses
Without disputing the accuracy of the findings of the District Planning Office, one relevant consideration that had not been considered were the data about lease enforcement actions taken by the District Land Office, Island South. (Note: The assumptions and criteria of measurements used by the District Planning Office were unreported.)
(c) 'Unauthorized conversion of industrial buildings into commercial office
use should be the subject of enforcement action.'
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This may be true but the presence of such conversion did reflect market demand. To say that enforcement action should be taken does not mean that there should not be any positive step to provide supply. Otherwise, hawker control should be executed by arresting hawkers in the streets without the provision of Urban Council purpose-built multi-storey markets!
(d) Nor should unauthorized conversion of industrial floor space automatically be taken to mean that there was a lack of demand for industrial uses: 'It may simply mean that a higher return is available for office use. One purpose of planning is to ensure adequate and affordable supply of premises deemed desirable for planning purposes.'
The Appeal Board would fail in an examination in elementary economics in asserting that market demand bore no relationship to profit calculation. If office use had 'a higher return', then it meant that given a free choice (whether such choice should be allowed in planning terms was another matter), an investor would prefer office to industrial uses.
(e) The evidence demonstrates a healthy demand for industrial space or I-O space and much less demand for commercial/office space in Wong Chuk Hang.'
It has been a well-received fact that the supply for both I-O and commercial/office uses has become 'excessive' and the government is now considering massive rezoning of obsolete industrial areas. By the end of 1997, the prospect for conventional I uses in Aberdeen had become hopeless.
(f) 5.25% vacancy rate in flatted factory 'is very healthy compared with
the vacancy rate for commercial space in the area.'
Rigorous analysis of the so-called 5.25% vacancy had to be conducted; particularly on the nature of the occupants: were they really 'industrial”? Unfortunately, there was no record of such detailed analysis.
(g) 'We do not regard the lack of objection or support by some Government
Departments as conclusive.'
Of course. However, it would be reckless not to investigate (or not to accept) the arguments or rationale behind those departments who object to or support the proposal. The Lands Authority, in particular, would not like to see vacant Commercial/Office buildings. For proposed uses that have no market, little lease modification premium can be extracted (assuming that the lease is not 'unrestricted'). The views of specialist departments regarding environmental and traffic impacts have to be considered or sought, instead of letting members of the
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Appeal Board make guesses of their own.
(h) ‘Indeed, although there may be less lorry traffic, a commercial office
development may well generate other kinds of vehicular traffic.'
Compare the scepticism of the Appeal Board in this case and that in the Wo Yi Hop Road case.
(i) There was already an existing buffer between the Aberdeen Technical School and the subject site in the form of a foOTBall field and the trees therein.
While the Appeal Board's judgment about the limited environmental gain of the proposed use might be valid, it was inappropriate to argue that a small foOTBall field and the few trees therein could be an effective environmental buffer for the Aberdeen Technical School. The property of that school has been eroded by successive road widening and highway (including the Ap Lei Chau Bridge) schemes. The poor environment of the site merits a replacement site and redeployment of the land resources are thus released for other less environmentally sensitive uses.
(j) More retail space was no improvement.
This view was wrong as there were plainly inadequate decent retail facilities in the industrial areas. Those available were operating under s. 16 permission in factory buildings.
Which Was More Environmentally Friendly: Active Factories or Vacant Offices?
A cynical view is that vacant offices (a scenario, not unreasonable, conceived by the Appeal Board) were definitely better than actively used factories.
However, the real comparison should be between the approved I-O proposal and the current proposal for Commercial/Office. Ceteris parabus, commercial is definitely better than industrial uses in terms of the tonnage, and hence hazards of vehicles involved as well as atmospheric pollution.
An actual assessment should have been carried out by reference to the proposed design and uses. If this common professional planning sense is doubted, then there should be no objection to use an Industrial Zone (instead of a Commercial Zone) as a buffer for residential development!
What Was the True Planning Intention?
As the use was an item in Column 2 of the Industrial Zone, there should be no in-principle argument against the proposal. There was no reference to planning intention in this case.
Planning Appeal Cases
Who Shall Make Investment Decisions: The Planner or the Investor?
445
This is a classic case which demonstrates the conflict between private planning decisions and public planning decisions. With hindsight, both parties to the appeal were incorrect, as office, commercial, I-O and even residential uses appeared to be 'excessive' in the market downturn after October 1997. The point, however, is not really who was correct or who was not. Rather, the central issue should be focused on which party (the investor or the planner) is more capable of correcting mistakes at a lower cost.
In this particular case, an option available to the appellant after its failure in the appeal was to apply for the development of a larger I-O building on the approved site, Lot 278, and the adjoining Lot 280. As the Appeal Board said that there was a healthy demand for I-O.
Relevance of Private Property Rights
As usual, private property rights based on the Crown lease was not relervant here.
Questions:
1. What type of lease is that for the subject site?
(See Photographs 14a and 14b)
2. What has happened to the site since the decision of the appeal was
made known?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 1, 5, 6, 8 and 9.
Town Planning Board, TPB PG-NO. 3A, “Town Planning Board Guidelines For Office Buildings in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes TPB PG-No. 3, December 1990 of the same title in force when the case was decided.)
Town Planning Board, TPB PG-NO. 4A, “Town Planning Board Guidelines for Application for Composite Industrial-Office Buildings in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes TPB PG-No. 4, January 1994, revised version, of the same title.)
Town Planning Board, TPB PG-NO. 7A, “Town Planning Board Guidelines for Application for Commercial Use in Industrial Buildings within
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Photograph 14a
Photograph 14b
Photographs 14a & b The School and Playground to the West of the Lucky Gain Case in
May 1998
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447
Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes those, TPB PG-Nos. 7 and 9, below in force when the case was decided.)
Town Planning Board, TPB PG-NO. 7, “Town Planning Board Guidelines for Application for Commercial Use in Industrial Buildings within Industrial Zone Under Section 16 of the Town Planning Ordinance,' December 1990.
Town Planning Board, TPB PG-NO. 9, "Town Planning Board Guidelines For Banking Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', January, 1991.
Town Planning Board, TPB PG-NO. 1A, "Town Planning Board Guidelines for Application for Office and Showroom Uses in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes those, TPB PG-Nos. 1 and 6, below in force when the case was decided.)
Town Planning Board, TPB PG-NO. 1, “Town Planning Board Guidelines for Application for Showroom Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', January, 1991.
Town Planning Board, TPB PG-NO. 6, “Town Planning Board Guidelines for Application for Office Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', December, 1990.
THE WONG YEE FAI (2) CASE
•
Case Name: A site in draft Pat Heung DPA [the Wong Yee Fai (2) Case]
Planning Appeal Case No. : 26/95
Similar Cases: cases nos. 13/92, 18/92, 19/92, 17/93, 19/93, 01/94, 19/95, 21/95, and 04/96 [the Pak Kong, Kingspeed Engineering, Kun Kee Motor, Shun Fat Container, Ever Need, Tang Sai Hung, Lo Kwok-wai, Cheung Hing Lung, and Container System Cases] regarding
unauthorized development;
,
13/92, 18/92, 19/92, 17/93, 19/93, 21/95 and,
[the Pak Kong and
Kingspeed Engineering, Kun Kee Motor, Shun Fat Container, Ever Need, Cheung Hing Lung (not), Cases] regarding unauthorized
development and planning intention; and self-incrimination in planning enforcement proceedings by planning application;
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
07/92, 18/92, 19/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 10/94, 11/94, 12/94, 14/94, 02/95, 05/95, 07/95, 08/95, 16/95, 18/95, 21/95, 28/95, 04/96, 12/96 and 01/97 [the Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Lai Sun Development, Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Arzignano Leather, Jetway Civil, Cheung Hing Ling, —, Fine Tower, Container System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans);
05/92, 07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94, 06/94,
09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, 21/95, and 04/96 [the OTB, Full Look, Pak Kong, Treasure Base (2), Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, and Container System Cases] regarding appeals stated explicitly to be against planning intention;
16/95, —, [the Arzignano Leather,
in R(D) Zones.
>
Cases] regarding development
Nature of the Case: second appeal of the same nature; s. 21 of the Town Planning Ordinance, alleged unauthorized development, self-incrimination by making planning applications; planning intention; hardship of losing business and creating unemployment of 30 persons irrelevant; temporary workshop and open storage use/development in Residential (Group D) (R (D)) Zones.
Date of s. 16 Application: 12 October 1994
Date of Hearing: 22 March 1996
•
Date of Decision: 12 April 1996
•
•
•
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss Adela Au for the Town Planning Board
(b) Mr Wong Yee Fai, the appellant, appearing in person
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) As a matter of principle, the Appeal Board cannot grant an application for a use against which planning enforcement action has or should have been taken. The Appeal Board 'cannot condone the continued
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449
illegal use by granting permission under para. (vi) (b)' of the Town Planning Ordinance.
(b) 'The Town Planning Ordinance will lose credibility unless timely enforcement action is taken. Town Planning will not work, unless Government is willing to commit sufficient resources to enforce the Town Planning Ordinance. The fact that no enforcement action has been taken since the Town Planning Appeal Board's decision (against an appeal involving unauthorised use) will only encourage infringement of the Town Planning Ordinance.'
Background:
The subject site was about 5200 m2 and fell within an Unspecified Use Zone in the draft Pat Heung Development Permission Area Plan No. DPA/ YL-PH/1 (DPA Plan).
The appellant made an application (No. DPA/YL-PH/23) under the draft DPA Plan. The application was rejected twice by the Town Planning Board in the first instance and after a review hearing. The Appeal Board also dismissed an appeal and the 'judgment' decision was delivered on 14 June 1995.
In the transcript for the Appeal Board's decision, it was recorded that (para 6):
In our opinion, this appeal must fail. Given the clear planning intention, which was to encourage agricultural uses and reconstruction of temporary structures with permanent materials with a view to improving the environment, we have no doubt that the vehicle repair workshop is not compatible. Moreover, Mr. Ng's evidence demonstrated quite clearly that active enforcement actions are being taken to realise the planning purposes.
On 10 May 1994, the draft DPA Plan was approved without amendment by the Governor in Council.
On 20 May 1994, the approved Pat Heung Development Permission Area Plan No. DPA/YL-PH/1 (approved DPA Plan) was published in the gazette.
On 17 June 1994, the draft Pat Heung Outline Zoning Plan No. S/YL- PH/1 (the OZP) was published in the gazette to replace the approved DPA Plan.
D)'.
Under the draft OZP, the subject site was rezoned 'Residential (Group
On 12 October 1994, the appellant made a planning application 'for permission to continue the use of the Site for a car repairing workshop and open storage of spare parts for a period of twelve months.
The development would consist of a single-storey structure with an area of 720 m2 on the site of 5200 m2. The site coverage was about 14%. The building height would be about 6.7 m for site office use and car
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repairing. About 50 open-air lorry parking spaces would also be provided.
The planning application was rejected by the Town Planning Board on a s. 17 review on 4 July 1995.
The Appeal Board noted the following:
(a) The Site was being used as a car repairing workshop in breach
of s. 21 of the Town Planning Ordinance.' (para. 2)
(b) 'We note that no enforcement action has been taken so far.' (para. 17)
Arguments:
The appellant argued on the following grounds:
(a) The application for a year's extension was made because he had been unable to relocate. If he were forced to close down, he would suffer great hardship. His business on the subject site employed some 30 workers.
(b) While there was no certainty that he would be able to relocate within a year, he was willing to terminate his business had his application been granted.
(c) He had not been given any help in finding an alternative site.
In rejecting the application after the review hearing, the Town Planning Board held that (para. 10):
(a) the development was not in line with the planning intention for the area which was to improve and to upgrade the existing domestic accommodations. Although the development was temporary in nature, no strong justification had been submitted to merit a departure from the planning intention;
(b) the proposed development was not compatible with the nearby
residential developments;
(c) there was insufficient information in the submission to demonstrate that the development would not cause environmental impact on the surrounding areas;
(d) the vehicular access to the development would affect the adjacent bus lay-by and there was insufficient information in the submission to demonstrate that the development would not cause adverse traffic impact on the area; and
(e) the approval of the application would set an undesirable precedent for other applications which would lead to general degradation of the
area.
In response to the appellant's complaint about the lack of help from the government, Mr Ng (the District Planning Officer) said that the appellant should have approached the District Planning Office for help as well as the Planning Department, if he so wished.
Mr Ng was also reported to have said that 'enforcement action will soon be taken against the appellant. The reason why no enforcement action has been taken so far is because of the lack of resources.' (para. 18)
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Reasons for Decision:
The Appeal Board dismissed the appeal on the grounds that, as a matter of principle, unauthorized development should not be permitted. The Appeal Board also reprimanded the Planning Department for failing to have taken enforcement action against the appellant.
No comments yet.
Private notes are available after approval.