Date of s. 16 Application: 4 October 1995
•
Date of Hearing: 12 June 1997
•
•
Date Of Decision: 21 July 1997
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss Adela Au for the Town Planning Board
(b) Mr Leung Wing-nin for himself and all other appellants
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) The onus of proving that an application has no adverse impact is on
the applicant/appellant, not on the part of the government.
(b) It is advisable for an applicant to seek professional help in making a planning application where there are needs to demonstrate that the application would have no adverse environmental or traffic impact.
Background:
The subject site was at Lot 349 BRP (part) in DD114, Kam Tin Road, which fell within an Open Storage (OS) Zone in the draft Pat Heung
Planning Appeal Cases
Outline Zoning Plan No. S/YL-PH/1 (the OZP).
481
The appellants applied for permission to use the subject site, inter alia, for vehicles (or parts) trading and as a car repairing workshop.
The Town Planning Board rejected the application in the first instance and again in the review.
Arguments:
The appellants argued that they would give up the application for vehicles (or parts) trading as they would constitute a very small part of the proposed activity.
In rejecting the planning application, the Town Planning Board held that:
(a) as regards the vehicle trading (or parts) use applied for, it was neither
a Column 1 nor Column 2 use;
(b) as regards the car repairing workshop application, 'the appellants had not submitted sufficient information regarding the provision of a proper vehicular access to the proposed car repairing workshop or any information to demonstrate that the proposed car repairing workshop would not generate adverse environmental and visual impacts to the surrounding environment.' (para. 5)
During the appeal hearing, counsel for the respondent, the Town. Planning Board, reminded the Appeal Board of para. 8.3.2. of the Explanatory Statement (para. 7): 'Development proposals for (workshops) have to clearly demonstrate that they would have no adverse environmental, drainage, traffic and other impacts on the surroundings.'
Counsel for the respondent further suggested that the District Planning Officer (DPO) might be able to give some assistance to the appellants as to what might be required by way of evidence to demonstrate there would be no adverse environmental or traffic impact.
Reasons for Decision:
The Appeal Board dismissed the appeal and informed the appellant that if they wished to use the site as a car repairing workshop, they had to make a fresh application. Should he make a new application, the reason for decision as well as the advice to the appellants was on one simple ground.
No Satisfactory Evidence in Favour of the Application
The Appeal Board found no justification from the appellants to support their application or appeal. The Appeal Board came to the view that 'unless the new application is supported by satisfactory evidence, it will have no chance of success. The appellants will be well advised to seek professional help.' (para. 9)
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Comments:
The transcript for this reported case has hitherto been the shortest: 9 paragraphs on 2 A4 pages. The logic is deceptively simple.
Valid Application?
The use was neither a Column 1 nor 2 use. There was not one appearing anywhere in the Notes about the possibility of a temporary permission. Was it a valid application in the first place? As the Appeal Board had to decide cases according to the relevant statutory plan, it had no power to decide this case if the application was invalid.
The Onus of 'Proof"
This case has made it crystal clear that the onus lies on the applicant/ appellant to prove one's application. Whether the onus of demonstrating a case lies on the applicant/appellant seems to depend on the mood of the Appeal Board. For the majority of the cases, as exemplified by the Ultra Force case, the onus is definitely on the former rather than the latter category.
Question:
1. What has happened to the site since the decision was made?
References:
Guidelines:
Town Planning Board, TPB-PG NO. 13, Town Planning Board Guidelines for Application for Open Storage and Port Back-Up Uses under Section 16 of the Town Planning Ordinance', November, 1994.
Cases:
1. The mischief planning enforcement legislation targets
AG v Melhado Investment Ltd. [1983] HKLR 327 2. Relevant planning enforcement cases (See Appendix)
Auburntown Ltd. v TPB HCMP No. 222 of 1993
Tsei Kwei King & Cheung Kam v AG MP No. 1509 of 1993
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of 1994
Regina v Tang Yip and Yeung Fook Mui Magistracy Appeal No. 864 of 1994
Planning Appeal Cases
483
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 RIGHTLANE INVESTMENT CASE
•
•
Case Name: Rural Building Lot No. 691 RP, No. 12, Headland Road, Hong Kong Island [the Rightlane Investment Case]
Planning Appeal Case No.: 12/96
Similar Cases: cases no. 01/91, 02/92, 03/92 and
Conduit Road, Wo Yi Hop Road and
of plot ratios;
01/91, 02/92, 03/92, 13/93, 08/96,
[the Alticosmic,
Cases] regarding minor relaxation
[the Alticosmic, Conduit Road, Wo Cases] regarding the
Yi Hop Road, Henderson, Leung Wing-nin, location of planning intention in the Notes of the OZPS; 07/92, 18/92, 19/92, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 10/94, 11/94, 12/94, 14/94, 02/95, 05/95, 07/95, 08/95, 16/95, 18/95, 21/95, 26/95, 28/95, 04/96 and [the Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Lai Sun Development, Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Arzignano Leather, Jetway Civil, Cheung Hing Ling, Wong Yee Fai (2), Fine Tower, Container System and Cases] regarding location of
planning intention (in Explanatory Statements of statutory plans).
Nature of the Case: the first appeal case heard and decided after 1 July 1997; minor relaxation of residential plot ratios stipulated in OZP; Special Control Area; imaginative vs. uninspiring architectural designs; precedent.
Date of s. 16 Application: 26 November 1994
Date of Hearing: 21, 22, and 23 October 1997
Date Of Decision: 12 November 1997
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Mr S.H. Kwok for the Town Planning Board (b) Mr Anthony Ismail, counsel for the appellant
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Decision: Appeal allowed
Rules Laid down by the Decision:
(a) Where a zone permits 'minor relaxation' of development restrictions, a ten percent (10%) increase in plot ratio can be permitted where it can be shown that the proposed scheme is aesthetically better than alternatives designed to meet the prescribed plot ratio.
(b) The restriction in the Notes of a certain number of storeys 'above one storey of carport' does not imply that no residential or other always permitted uses on the carport level; such restrictions refer to building heights rather than uses.
(c) Where an Explanatory Statement states that 'each proposal will be considered strictly on its own merits', no problem of precedent will arise.
Background:
The subject site was Rural Building Lot No. 691 RP (No. 12 Headland Road, Hong Kong). It was zoned Residential (Group C) 3 (R(C) in the Shouson Hill and Repulse Bay Outline Zoning Plan No. S/H17/3 (the OZP). The R(C) 3 Zone restricted development to 'maximum 3 storeys in addition to 1 storey of carports' in height, 25% site coverage and 0.75 plot ratio.
The Notes to the OZP provides that (para. 3): 'Minor relaxation of these restrictions, based on the merits of individual development or redevelopment proposals, may be considered by the Town Planning Board on application under s. 16 of the Town Planning Ordinance.'
The appellant made a s. 16 application for the relaxation of plot ratio by 10% to 0.825.
The application was rejected in the first instance and in the review.
Arguments:
The appellant argued on the following grounds:
(a) The Appeal Board had to exercise an independent judgment per Henderson Real Estate Agency Limited v Lo Chai Wan [1997] HKLRD 259 at 266.
(b) The proposal did not amount to rezoning to R(C) 5 (see arguments of
counsel for respondent below) because the description 'maximum 3 storeys in addition to 1 storey of carports' regulated the height of the development.
(c) The effect of plot ratio and site coverage restrictions was that the development would be a straight-up-and-down 3-domestic-storey building over one storey of which carports was to build to the maximum permitted. Since land was scarce in Hong Kong, it was unrealistic that an owner would not build to the maximum plot ratio ceiling. (d) The proposed development was superior to the conventional
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485
development on similar sites in Hong Kong. No. 13 Headland Road was an example of a conventional development. Among the three Schemes A (para. 9), B (para. 10) and C, C was the proposed and aesthetically more pleasant scheme. Scheme A was a development of a block of 6 flats. This was said to be 'functional but totally unimaginative. Indeed, one might think that it will be a shame if it should be built on such a rare site.' (para. 9) Scheme B was a development of 6 houses, a scenario which would occur had the development complied with the OZP. Scheme B had two variants: (a) one with 'uniform houses in a row with same roof levels creating a "wall effect", requiring stilting; and (b) one with a row 'different roof levels avoiding a “wall effect": and creating ‘a more silhouette with the natural surroundings' not requiring stilting.
9
Counsel for the respondent argued that even if the relaxation sought was minor and had merits, the Appeal Board could not permit it. The R(C) 3 Zone restricted development to 'maximum 3 storeys in addition to 1 storey of carports'. Since part of the carport floor in the proposed development would be used partly for residential purposes, that would amount to an application for rezoning to R(C) 5.
Counsel also reminded the Appeal Board of the need to avoid setting a bad precedent.
Before the Town Planning Board, Mr Li Chi Kwong, the District Planning Officer (Hong Kong Island) and Ms Stephanie Chung, a Senior Architect of the Architectural Services Department, gave evidence.
Mr Li supported the reasons given by the respondent. He admitted that Scheme C had merits over Scheme B. However, he did not accept that Scheme C was substantially better than Scheme B. 'He described the power to relax the restrictions under para. 6.3.2. of the Explanatory Statement as a carrot. He was prepared to accept merits in the proposed development might be rewarded with a carrot but not as big as the applicant seeks. He is of the view that 10% is too much and cannot be regarded as minor in the circumstances.' (para. 11)
Ms Chung's description of the three schemes is recorded in para. 12.
Reasons for Decision:
The Appeal Board allowed the appeal because of the following reasons.
Not Rezoning
The Appeal Board agreed to the appellant's submission that the proposal to use part of the carport floor for domestic purposes did not amount to rezoning per the Notes (para. 26):
On land designated 'Residential (Group C)', any new building(s) and any addition, alteration and/or modification to the existing building(s)
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should not result in a total development or redevelopment in excess of the maximum building height, plot ratio and site coverage set out below. (a)
the maximum height of any building within each sub-area of the zone shall be limited to that stipulated below or the height of the existing building whichever is the greater.
The Appeal Board also criticized the counsel for the respondent for taking an approach that was too technical (para. 29):
Nor do we believe that it is right to construe the notes so technically. These notes have to be approached with common sense. With respect, Mr. Kwok's point is a pure lawyer's point. It was not a point taken by any of the witnesses from the Planning Department or in the proceedings before the Town Planning Board. Indeed in the evidence of Mr. Li, he said from a planning point of view, he would have no objection to, say, some accommodation on the carport floor for a diver. Although he did not say so, we believe he would have no objection if facilities were provided for a driver/gardener. (italics mine)
Scheme C Was Undoubtedly Superior to Scheme A
The Appeal Board appreciated that Scheme C was much better than other schemes presented and noted in the Explanatory Statement to the OZP the significance of imaginative design (paras 4–5):
6.3.1 This zoning is intended for lower residential developments where
commercial uses are also not permitted unless otherwise approved by the Board through the planning permission system. In land use terms, it is similar to the "Residential (Group B)" zoning. However, developments under this zoning are subject to specific building height control as well as site coverage and plot ratio restrictions. These restrictions are closely based on those imposed administratively by the Government in the Special Control Area and are intended:
(a) to preserve the existing amenity and character of the Area; (b) to preserve significant public views;
(c) to avoid overburdening the access road system; and (d) to avoid excessive development.
6.3.2. To achieve these objectives, this zoning is divided into nine sub-areas. The appropriate restrictions for each of these sub- areas are shown in the Notes attached to the Plan. Minor relaxation of the stated restrictions may be considered by the Board on application under Section 16 of the Ordinance. The purpose of this provision is to allow the Board to consider proposals for building layout and design which, while not strictly complying with the stated restrictions, meet the planning objectives. It is hoped to encourage imaginative designs which are
Planning Appeal Cases
adapted to the characteristics off particular sites, and overcome the need for stilting or allow for the conservation of environmentally important natural features or mature vegetation. Each proposal will be considered strictly on its own merits. (emphasis added by the Appeal Board)
487
The Appeal Board considered that Scheme C was the best because: (a) far fewer trees would be saved or planted if Scheme A was built; (b) the commendable features of Scheme C were that (i) the garden had direct access from the living room; (ii) each house had a small private garden; (iii) a split level design provided better accommodation for 'elderly people who might lack the confidence or energy to tackle a full flight of stairs' (para. 13); (iv) the houses were slightly larger;
(c) Scheme B would result in a void and would use stilts.
The Issue of Precedent
The Appeal Board's response was in the Explanatory Statement para. 6.3.2 (para. 21): 'Each proposal will be considered strictly on its own merits.' The Appeal Board thought that it was indeed setting a good precedent (paras. 22-23):
All too often, we see uninspiring development even in some of our most scenic areas. They are often the product of strict adherence to planning restrictions. As Mr. Michael Chiang's evidence shows, planning constraints in Hong Kong leave very little room for imagination for architects; building to the maximum permitted would result in a box like structure. Hence, the power to relax restrictions under 6.3.2. (italics mine)
Thus, it will not be unacceptable if this decision encourages more developers to adopt imaginative designs. If, as Mr. Li puts it, imaginative designs may be awarded with a carrot. So be it.
Comments:
This was the first reported, and successful, appeal case heard and decided after Hong Kong had returned to China on 1 July 1997.
Did Not Construe the Notes So Technically
The criticism of the Appeal Board was hard to understand, given the fact that the Notes were part of the statutory town plan, a product of legislation and gazetted in a very technical process. The Appeal Board's refutation of the view of the counsel for the respondent is itself a 'technical' and correct decision. The Appeal Board had repeatedly stressed the need to stick to the statutory plan in deciding a case. Therefore, what matters most should be the relevance of the concept, not its technicality. The 'technical point' raised by the counsel for the respondent about the supposed restriction to residential uses above the carport was not difficult to appreciate.
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Comparison of Development Schemes
Unless there are good reasons to believe that (a) the inferior Schemes A and B were the only feasible and already the best design for the prescribed plot ratio; (b) the superior design of Scheme C could not be achieved at the prescribed plot ratio; and (c) it was impossible for the appellant to obtain more land to accommodate its Scheme C without increasing plot ratio, it may be true to say that the Appeal Board had been misled to consider two strawman cases and give its sympathetic consideration to Scheme C.
Scheme B Would Result in a Void and Would Use Stilts
The Building Authority has regulations governing the use of stilts. It was not entirely clear if Scheme B could be approved by the Authority.
The Issue of Minor Relaxation
In the absence of any standards for the ceiling of relaxation, the Appeal Board was perfectly right to decide the size of the 'carrot'.
The positive approach adopted by the Appeal Board in turning 'minor' relaxation into a reward for imaginative architectural design is also laudable. However, the logic of ‘building to the maximum permitted' would result in a box-like structure. Thus, the power to relax restrictions under 6.3.2 may also reinforce the box-like approach for sites where relaxation is not allowed or permitted.
Questions:
1. Assuming that all landowners of Headland Road produced very 'imaginative' schemes for obtaining an extra 10% plot ratio, could the infrastructure still cope with the increase in total floor space?
2. What has happened to the site since then?
(See Photograph 17)
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2, 9 and 10.
Cases:
Validity of plot ratio control in town plans
Crozet Ltd. v AG HCMP 409/73
CC Tse (Estate) Ltd. v AG HCMP 604/81
Auburntown Ltd. v Town Planning Board HCMP No. 222 of 1993
Planning Appeal Cases
489
Photograph 17 Subject Site of the Rightlane Investment Case in May 1998
Real Estate Developers' Association of Hong Kong v Town Planning Board
MP 2457 of 1995
Wing On Ltd. and Wing On Property and Securities Ltd. v Building
Authority MP 1279 of 1996
THE CONNIE LAW YUK WAH CASE
Case Name: Lot 1217 and adjacent government land in DD 119 in Pak Sha Tsuen, Yuen Long (the Connie Law Yuk Wah Case]
Planning Appeal Case No. : 01/97
Similar Cases: cases nos. 04/92, 07/92, 10/92, 15/92, 04 and 05/93, 13/93, 17/93, 08/95, 16/95, 21/95 and - [the Sung Dynasty City, Full Look, Treasure Base (1), Ultra Force, Treasure Base (2), Henderson, Shun Fat Container, Yin Ning Savings, Arzignano Leather, Cheung Hing Lung and,
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, 21/95, 26/95, 28/95, 04/96, 12/96, the Full Look, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Shun Fat Container, Ever
490
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Lai Sun Development, Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Arzignano Leather, Jetway Civil, Cheung Hing Ling, Wong Yee Fai (2), Fine Tower, Container System, Rightlane Investment and Cases] regarding location of planning intention (in Explanatory Statements of statutory plans).
Nature of the Case: temporary open storage of construction materials in Agricultural Zones in Outline Zoning Plan (OZP); planning intention as located in the Explanatory Statement to the OZP; Town Planning Board Guidelines; onus of supporting one's case.
Date of s. 16 Application: 11 March 1996
•
Date of Hearing: 25 September 1997
• Date Of Decision: 3 November 1997
•
Chairman of Panel: Mr Ronny F.H. Wong, SC
Representation:
(a) Ms Phyllis Wong for the Town Planning Board
(b) Mr Leung Kam Wing for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) The onus of demonstrating an application which is consistent with the planning intention and relevant Town Planning Board Guidelines is on the appellant.
(b) The Appeal Board does not have an unfettered discretion to grant an approval where there is a set of relevant Town Planning Board Guidelines requiring the appellant to demonstrate his or her case. It is incumbent upon the appellant to demonstrate a case within the Town Planning Board Guidelines.
Background:
With an area of about 1537 m2, the subject site was Lot No. 217 and the adjacent Government land in DD 119, Pak Sha Tsuen, Yuen Long. The site was zoned 'Agriculture' in the draft Tai Tong Outline Zoning Plan No. SIYL-TT/1 (the OZP).
The appellant made a s. 16 application for temporary open storage of construction materials for one year.
The application was rejected by the Town Planning Board in the first instance and again after a review.
The Appeal Board noted that: 'During site visits on 11.3.1997, 29.8. 1997 and 9.9.1997, it was found that the Site was used for open storage of
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491
chemicals (ferric chloride solution and dye) stored in barrels and plastic containers. We are perturbed by the presence of these chemicals on the Site. The Site is located to the south of an intersection of two nullahs. Any accidental spillage may result in severe damage.' (para. 7)
Arguments:
The appellant argued that:
(a) she would be prepared to plant trees according to a sketch shown to
the Appeal Board;
(b) she would sign to undertake that any open storage approved would be
a genuinely temporary development;
(c) the appeal should be allowed because it was temporary; and
(d) the appellant was willing to submit to any condition that the Appeal
Board saw fit to impose.
In rejecting the application after the review, the Town Planning Board held that (para. 6):
(a) the proposed development was not in line with the planning intention of the 'agriculture' (‘ARG”) zone for the area which was to retain fallow arable land with good potential for rehabilitation and to retain the rural characteristics of the area. There was no justification to retain the rural characteristics of the area. There was no justification to depart from such planning intention even for a period of 12 months; (b) no landscape proposals had been included in the submission; (c) the approval of the application would set an undesirable precedent for
other similar developments in the 'Agriculture' zone.
Before the Appeal Board, Ms Phyllis Wong for the respondent called Mr Wong, the District Planning Officer, to give evidence on Mr Wong's statement. Ms Wong:
(a) stressed the planning intention pertaining to the subject site; (b) referred to the Town Planning Board Guidelines for 'Application for Open Storage And Port Back-up Uses under s. 16 of the Town Planning Ordinance';
(c) argued that it was incumbent on the appellant to demonstrate merits
in relation to the proposed user for the purpose of the Guidelines;
(d) argued that the appellant had not demonstrated any merit as to justify
departure from the planning intention in relation to the site;
(e) adverted to a similar application for a nearby site which had been
rejected on 26 April 1996.
Reasons for Decision:
The Appeal Board dismissed the appeal on the grounds of planning intention and the absence of substantiation of the case by the appellant.
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Against Planning Intention
The Appeal Board discovered the planning intention from the Explanatory Statement to the OZP (paras. 4-5):
The general planning intention for the Tai Tong area is to retain the rural characteristics by preserving active agricultural land, reserve sufficient land for village type development and land for environmental and infrastructural improvements.
The planning intention of the "Agriculture" zone, as stated in paragraph 8.1.1 of the Explanatory Statement of the OZP is:
"to retain and safeguard good agricultural land for agricultural purposes. The zoned areas are usually well served by irrigation and servicing facilities as well as marketing facilities for intensive farming including livestock rearing, fish culture and horticulture. This zone also intends to retain fallow arable land with good potential for rehabilitation."
Failure to Substantiate One's Case
We do not have an unfettered discretion that Mr. Leung appears to suggest. It is incumbent upon the Appellant to demonstrate a case within the Guidelines. The Appellant made no attempt to put forward a case within those perimeters. (para. 11) (italics mine)
Comments:
What Did the Appeal Board Decision Achieve from a Planning Point of View?
This case was deceptively simple. It in fact reflects major issues in planning applications. Some of these issues are discussed below.
What Was the True Planning Intention?
It is illogical and improper to argue that a proposed use was against 'the' planning intention in an OZP which permitted application for temporary uses (on the grounds that the appellant did not provide reasons to demonstrate merits). Whether or not a use should be approved depends on the objective and independent decision of the Planning Board, rather than on the reasoning (or its absence) of the applicant. It is logical that a good use is applied for by an inarticulate applicant of small means. When dealing with such humble applicants, the Planning Boards should, according to the rule in the Henderson case, decide the pros and cons of the case and consider whether the imposition of relevant planning conditions can help the applicant and ensure that a reasonably acceptable environment can be maintained.
Planning Appeal Cases
493
The open storage of building materials is definitely a decent business. It has less hazards than container storage. Toxic chemicals are commonly understood as hardy 'building materials'. Open storage of building materials was likely to be better than storage of chemicals. Such chemicals would have been precluded if a planning permission was granted.
There was no recorded submission or explanation regarding whether the subject site or its immediate environment was really 'fallow arable' land. Could a dry site located to the south of an intersection of two nullahs' be put under more meaningful arable uses?
There was no reference to the views of the Department of Agricultural and Fisheries in this case. However, a relevant question can be asked here. Would the 'intention' to ‘retain fallow arable land' better achieved by putting it under a temporary open storage use? Yet, the intention is not 'to revert fallow arable land to active farming'! The literal meaning is to keep the land fallow. The expression of the Explanatory Statement is therefore problematic.
'Cases Decided on their Individual Merits'
The case rejected on 26 April 1996 had little value unless its nature, similarities and differences from the present case were known.
Relevance of Private Property Rights
The Town Planning Ordinance robs the landowner of their contractual rights subsisted in the Crown lease to open storage without compensation. Such uncompensated infringement of private property rights is hardly consistent with the spirit of the Basic Law, however credible the public purpose arguments behind it might be. It is most unfortunate that neither the respondent nor the Appeal Board was counselled in this respect.
Questions:
1. What has happened to the site since the decision was made?
2. What is the number of pieces of land and labour still employed in
commercial agriculture in Hong Kong?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5, 8, 9, 10 and
11.
Town Planning Board, TPB-PG NO. 13, 'Town Planning Board Guidelines for Application for Open Storage and Port Back-Up Uses under Section 16 of the Town Planning Ordinance', November, 1994.
5
A SUMMARY OF PROPOSED
RULES
This chapter presents some rules that are considered reasonable for interpreting planning applications. These proposed rules are established from reading the 50 decided appeal cases.
GENERAL RULES
1. Planning applications shall be decided in accordance with the provisions of the statutory elements of the town plan, namely the zoning map and its Notes.
2. The interpretation of the statutory elements may be helped by referring to all relevant planning documents, including the Town Planning Board Guidelines of the Town Planning Board, the Hong Kong Planning Standards and Guidelines (HKPSG) of the central government, the Explanatory Statements to the statutory plans as well as all other related documents produced by the Planning Department.
3. Care should be taken in respect of non-statutory documents. They can help define, explain and stipulate requirements for uses given in the statutory town plans. However, they shall never be taken to alter, add, reduce, restrict, expand or amend those elements already provided in the statutory town plans. In particular, it is illegitimate to argue from a reading of an Explanatory Statement or a Town Planning Board Guideline that an item included in Column 2 of a zone in an OZP is in principle 'inconsistent with the planning intention of the OZP'. This is illogical (for this is to say that an OZP intends to include a use which it does not intend) and is departing from the provisions of the plan.
4. Applications must be decided only on the basis of the merits and drawbacks
of the application.
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5. Care should be taken to avoid dismissing a case on the grounds that the applicant is seen to be unreliable. It is the credibility of the proposal that really matters. Instead of basing a decision on the status, or supposed credibility or reliability of the applicant, the use of appropriate planning conditions will help to ensure compliance. Such conditions can be reinforced by lease modifications where appropriate.
6. Care should be taken where an application is made in response to planning enforcement actions. The planning bodies shall decide the applications on the basis of the merits and drawbacks in terms of land use planning, and shall not prejudge these merits or drawbacks on the principle that the applicant is a suspect at law. The Town Planning Ordinance clearly provides an avenue for such a suspect to make planning applications. Any attempt to make a 'policy' of always rejecting such applications is an illegitimate usurpation of the role of legislature and the court of law.
SPECIFIC RULES
1. A use shall be presumed to be approved where it is a Column 2 item, unless there are problems of excessive scale, intensity or other technical and planning problems on the specific sites.
2. A use shall be approved unless there are justifiable grounds of rejecting
applications.
3. The onus of disproving the grounds of the applicant lies on the government. 4. The applicant has no duty to respond to the government's challenges to his or her proposal and the absence of any justification alone shall not be a reason against the application. The board must evaluate the proposed use from its own point of view.
5. Justifiable grounds of objections must be demonstrable rather than imaginary and they shall exclude the arguments of 'no planning gain' or ‘absence of public benefit' per se. Objections shall not be solely based on the arguments of creating 'nuisance' or 'land use compatibility' without substantiation. Any substantiation must be denominated in terms of objective, ascertainable and published standards, guidelines, and policy statements.
6. Justifiable grounds of objections must always involve a balance of the costs and benefits of the use, and the practicability of using planning conditions where there are demonstrated harms.
7. An application shall be approved where it has no demonstrated harm or where potential harm can be overcome by planning conditions or provisions in the proposal.
8. An application shall not be rejected simply because it has no demonstrated
public benefit.
9. Land premiums payable to the government upon lease modification after a successful application or appeal should be regarded as a kind of public benefit.
A Summary of Proposed Rules
497
10. Decision-makers shall take into account private property rights including those contained in the government (previous 'Crown') lease and the DMC, and those subsisting before a statutory town plan is in place.
11. Proposals shall not be affected by 'proposed' or even ‘announced' land resumption projects, other than those which have already been incorporated in the statutory town plan in force. The duty of the Planning Boards should be to decide applications by referring to the statutory plans in force only. Whether or not the approved proposal will become frustrated is the business of the applicant. The boards have no duty to help land resumption bodies obtain land more easily or at a cheaper price.
12. A planning proposal shall not be rejected simply because the applicant is not the landowner or the full owner of the piece of land. The practicability of development is the business of the applicant. However, applications by such landowners shall be treated as having a lower priority.
13. The relevant planning unit shall be all the land owned, controlled or proposed by the applicant. It shall not be confined to an individual lot unless there are sound reasons for adopting this restrictive approach.
6
POSTSCRIPT
'I may be wrong and
you may be right, and by an effort, we may get nearer to the truth' (Popper 1994: xii)1
This book has a special meaning to me as a professional town planner and an academic active in research on town planning. I am privileged to have been formally trained in planning, economics and law. I find it very sad that many practitioners in these disciplines seldom pay much respect to the knowledge of each other. This is surely a result of intensive division of labour for a modern society. This book is a tribute to those who have educated me in both academic and professional disciplines; it is also an attempt to offer a multi- disciplinary perspective for planning in practice.
The planning profession in the civil service2 of Hong Kong proudly celebrated its 50th Anniversary in 1997 (Planning Department, 1998). As an ex-member of the service and a member of the profession, I hope that there will be more self-critical examination of the profession's 'terms of art' regarding development control through the statutory planning process.
With all due respect to the tremendous contribution of the local planning profession in shaping our built environment (Pryor and Pau 1993), there has not been much progress in the science of planning in Hong Kong, notwithstanding the establishment of some formal bodies and elaborated procedures since Sir Patrick Abercrombie completed his planning report for
1. Popper, Karl R. The Myth of the Framework: In Defence of Science and Rationality. London & New York: Routledge, 1994.
2. The planning profession in Hong Kong has been dominated by the majority of its civil servant members.
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the territory in 1948 (Lai, 1999). This critical view is based on the fact that there has not been any codification and systematic documentation of decision- making rules for interpreting development applications. Such codification and documentation will help planning bodies make discretionary decision in a more consistent and predictable manner. It will also help make the decisions more amenable to informed debates and public scrutiny. The Town Planning Appeal Board has, in this context, benefited the planning profession and our society by making all decisions available to the public. I take a few steps further to distil the 'rules' pertaining to the reported decisions and offer my opinion on the application of these 'rules' to individual cases. My opinion on certain appeal cases may be contentious to some. However, in an open society, the value of a contentious issue is to be judged by the extent of constructive criticism, discussion and debates it can generate. It is hoped that this book will be able to encourage other people to publish more critical thoughts from the same or a competing perspective.
When I was a Town Planner in the Town Planning Office, I discovered that there was once an attempt initiated by Mr Kervin Yan, who retired as Chief Town Planner, to compile a set of rules for development control. Unfortunately, there has not been any official attempt to capitalize on this good idea since then. I was fortunate to have learnt about the existence and value of the Town Planning Appeal Board decisions, and was urged to consult them by Mr Robert Lee shortly before he retired as Government Town Planner. His advice is taken and this book is a result.
The planning profession tends to ignore the rights of proprietors obtained in their lease and their land contract with the government (Lai, 1997e; 1997g). It tends to ignore both the property rights and the significance of 'planning by contract' (Lai, 1998) based on the leasehold system when 'public purpose' or 'planning intention' is exalted. The Basic Law expressly protects a market economy and private property rights. Its existence is useless unless professional planners in the government understand its importance and ensure that relevant provisions of the law protecting the market economy is enforced. It is my opinion that, in this context, any uncompensated infringement of private property rights, including those imposed by statutory planning, has become constitutionally questionable since 1 July 1997. This bold assertion, which is based on the view that the Basic Law explicity protects private property (Chen 1993), is however beyond the scope of this book.
It must be pointed out that the tendency of those in control of government decision making to cherish a 'clean' environment without considering the employment and economic contribution of uses rejected is morally indefensible. After all, our comfortable modern life has been accomplished through a lot of 'dirty' and 'unsightful' activities of many hardworking people in Hong Kong. It is also irresponsible of the Town Planning Board to neglect 'convenience' and 'general welfare' when promoting 'health' and 'safety'. 'Convenience' and 'general welfare' should definitely include economic efficiency and wealth creation.
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Planning decisions should be made on the merits of the proposals, not on the excellence of advocacy. Despite occasional references to the principle which states that one should not take planning too technically, decisions affecting both the business of the appellant and the interests of society are sometimes based on dubious concepts such as 'planning intention', which have never been systematically or clearly stated in the statutory or administrative components to all zoning plans. For a fair consideration of the appellant's case, the Town Planning Board should not be represented by government departments because they should remain neutral and be prepared to support an appellant from their professional point of view. Where the appellant is not represented by a counsel or professionals, the Appeal Board should appoint an independent advocate, perhaps a member of the Board, to help put forward the appellant's case.
It is often said that land use zoning in a market economy can only frustrate, delay or prohibit developments, but not encourage or facilitate them. This statement inevitably provokes endless debates. As far as the planning appeal cases reviewed in this book are concerned, the photographs testify two interesting points that lend support to the critic of planning: many dismissed proposals somehow became realized in forms that the Appeal Board would not approve of, while almost all proposals in allowed appeals have not been implemented or have run out of their limited lives. Furthermore, the mere prevention or delaying of development may not necessarily lead to satisfactory betterment or sustainment of ecologically valuable areas. Sometimes, the government unintentionally creates huge ecological plunders, as evidenced in Photographs 19 and 20. It is incumbent on the planning profession to ensure that statutory planning system as a whole is not a mere forum for advocacy. Neither should it be paper work that wastes the talents and commitment of paid and voluntary decision makers. Planning should rest upon the solid foundation of facts and clear principles rather than mere assertions or intentions. The meaning of these facts and principles must be spelled out clearly when a zoning plan published and should not be argued about when an application goes on an appeal. Documentation is, therefore, the first step to help advance planning in this regard. This book is an attempt towards this first step.
APPENDIX
EXTRACTS FROM KEY PLANNING ENFORCEMENT CASES1
Tsei Kwei King & Cheung Kam v AG MP No. 1509 of 1993
Between 18th September 1990, the date of the Assignment, the end of November 1990, an event of great potential significance for the whole Pak Kong Valley area occurred: the government, on 12th October 1990, gazetted a notice under the ordinance which had the effect of prohibiting the undertaking of any development in the parts of the Pak Kong Valley area delineated on a plan, without planning permission. The plan area included the land bought by Mrs. Tsei and her husband. Existing uses were unaffected. Mrs. Tsei and her husband contend that before 12th October 1990, they were already using their land for Tai Hing Metal's business by storing building materials on at least the part on the west side of government's water-reserve access-road. If they are right on that, they will have done nothing wrong in continuing to use that part of their land for the same purpose since.
The Director of Planning disputes what they say. It so happens that the Planning Department caused aerial photographs of the land to be taken on 12th October 1990. Just looking at those photographs (Court Bundle, pages 151–153), one certainly gets the impression that the land belonging to Madam Tsei and her husband to the east of the water-reserve access-road was not
1.
The basis of sentencing in unauthorized development, according to Litton JA, is deterrence in R v Tang Ying-yip and Yeung Fook Mui. 'Deterrence is an important consideration if the legislation is to be effective', (see Cross and Cheung, 1996: 306).
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being used for the storage of anything. It was simply a piece of vacant ground with what looks like a van parked on it. On their land to the west side of that road, the photographs show some indistinct marks consistent with part of it being used for open storage of building materials.
The Director of Planning has brought enforcement proceedings against Madam Tsei and her husband under section 23(1) of the Ordinance, on the basis that it appears to the Director they are responsible for unauthorized development on their land on the east side of the water-reserve access-road by changing its use from fallow agricultural as at 12th October 1990 to construction materials storage since that date.
While the Applicants personally have much at stake, their immediate neighbours and also the community at large are not without a legitimate interest in the uses to which the Applicants put this land.
―
Many of the rural areas in the New Territories suffered environmental degradation during the nineteen-eighties from a proliferation of container- sites, car-dumps, scrap yards, building materials sites, and the like, — all out in the open, and outside the effective scope of any statutory planning control. Urban areas, particularly the New Towns, were the subject of intensive town planning, but rural areas fell outside any such regime.
The Pak Kong Valley area emerged from the nineteen-eighties with its rural character relatively unspoiled. One can see that from the aerial photographs the Planning Department had taken on 12th October 1990. They show there was still much agriculture going on in the vicinity of Pak Kong Village. That the rural character of the Pak Kong Valley had still managed to survive emerges clearly in a report the Governor had directed the Planning Department to prepare on 15th August 1990, (see Court Bundle, page 32).
Moreover the Director was at last given power to prevent the opening up of new container and similar sites by means of adding, as a new paragraph (i) to the same section, "zones or districts set apart for use for open storage”, thus nullifying the effect of Attorney-General v. Melhado Investment Ltd [1983] HKLR 327, for those who, in future, want to start using their agricultural land as container or similar depots, in areas the Director has brought under his control in exercise of his powers under the Ordinance.
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of 1994
Development
As was pointed out by counsel in argument, the expression "development” in the Ordinance has a two-pronged meaning it comprises (a) “the carrying out of building, engineering, mining or other operations in, on, over or under land", (b) "the making of a material change in the use of land or buildings”.
As a pure matter of language, it seems to me that "operations" in this
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context must mean that something is done to the land. This is to be contrasted with "use" where the physical character of the land would not normally be substantially changed: for instance, the depositing of goods or the stacking of containers on land. This approach is consistent with that of the English Court of Appeal in Parkes v. Environment Secretary [1978] 1 WLR 1308 dealing with the Town and Country Planning Act 1971 which has a definition of “development” identical to that appearing in the Hong Kong Ordinance, At p131 1-E Lord Denning M.R. said:
46
‘. . . in the first half 'operations' comprises activities which result in some physical alteration to the land, which has some degree of permanence to the land itself: whereas in the second half ‘use' comprises activities which are done in, alongside or on the land but do not interfere with the actual characteristics of the land."
I draw attention to the two-pronged definition of "development" in the Ordinance for this reason: Schedule II to the enforcement notice complains of "site formation works, storage and open storage of furniture and household wares”. As a matter of language, I would have thought that "site formation works" would be engineering or other operations on and perhaps under the land. It would generally comprise a certain amount of digging, levelling and perhaps the addition of fill and other material. And yet, in this case, the "site formation works" complained of is said in the enforcement notice to be part of the "material change in the use of the land" and the case has proceeded throughout on that basis. Counsel appearing before me on the appeal never suggested that the site formation works, having been completed a long time ago, could not have been “discontinued” in compliance with the enforcement notice and, for that reason, or at least to that extent, the notice was bad. I therefore say no more about this matter at this point and will this appeal in the same way as in the court below: that the complaint, set out in the notice, related broadly to unauthorised development, and "material change in the use of the land" comes within the definition of unauthorised development. And, obviously, where "use" is concerned, it can be "discontinued" in terms of the notice.
Change of Use
The question of a change in the use of land is one of degree and, accordingly, one of fact. The magistrate had, appearing before him, a substantial number of witnesses called by both sides; he had also a series of photographs, including aerial photographs showing the condition of the site at various points in time.
Site Formation Works
In the enforcement notice, the planning authority complained that "site formation works" constituted part of the "making of material change in the use of the land".
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It seems to me that this is straining the definition of “use”. I would have thought that site formation works as such come far more comfortably within the first limb of the definition of development: the carrying out of building engineering, mining or other operations. But that is not the way the complaint is particularized in the enforcement notice.
Regina v Tang Ying Yip and Yeung Fook Mui Magistracy Appeal No. 864 of 19942
Period of notice
Mr. Wong's argument is this: By the date of the notices, 30 December 1992, possession of the various lots had already passed to the tenant; for anything effective to be done to comply with the notices the landowners had first to regain possession; it was wholly unrealistic to expect that the owners could have complied with the notices by 30 March 1993.
This argument fails to take into account the provisions of s.23(9)(a). It must be remembered that, on a s.23(6) prosecution, the defendant of can always raise the "all reasonable steps” defence under s.23(9)(a). The shortness of the period of notice would clearly be a "circumstance" which a court must take into account if the defence were raised. If, within the constraints of time set out in the notice, the land owner had taken all reasonable steps to comply the notice, then his defence must succeed. It is impossible to lay down any hard-and-fast rules as to what those steps might be. In argument, the question of the issue of writ of possession by the land owner was raised. This might well be all that a reasonable owner can do, if the period for compliance in the notice were exceedingly short. Here, the owners simply did nothing.
I do not accept this argument. Whether it was reasonable for the owners, in terms of s.23(9)(a), to have sat back and waited until the Board had disposed of Shun Fat's application under s. 16 is wholly academic. The fact is, they simply did nothing. This is not a case where the owner has taken a conscious decision to wait until after the Board had considered the s. 16.
Development
As can be seen, the expression "development" in the Ordinance has a two- pronged meaning: it comprises the carrying out of operations or the making of a change in the use of land. "Operations" in this context means that something is done to the land. This is to be contrasted with "use" where the physical character of the land would not normally be substantially changed: for instance, the stacking of containers. It may be helpful, in this regard, to refer to my own judgement in Magistracy Appeal No. 1396 of 1994, delivered
2.
See Note 1, ante.
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today, where this point is explored in greater depth. Looking at the enforcement notice broadly, what does it say? It tells the land owner, in the first place, that there has been unauthorised development on his land. In substance, two complaints are made: unauthorised land-filling and unauthorised container storage. Whilst, by the time the notice was served, the land-filling could not have been "discontinued", since the operations were completed, the storage of containers plainly could be discontinued. Can it be said that, to that extent, the notice was a valid notice under s.23(1)? In considering this question, I bear the following fact in mind. Accompanying the enforcement notice was a letter (in both languages) which said:
"It appears that the land-filling and container storage activities have
been undertaken or continued after 17 August 1990 [date of the Interim DPA plan]
"
Regina v Helen Transportation Co. Ltd., Liu Ka Sing and Chan Yuk Kwan Magistracy Appeal No. 303 of 1995
The prosecution relied, as is inevitable in cases of this kind, on aerial photographs of the site taken on different dates. The most material date is 7 September 1990 when the interim DPA plan was first published and the land came under statutory control. However, as Miss (PW2) the expert witness called by the prosecution explained, it is necessary for interpretation purposes to have comparisons: the tone and texture of the images taken at different times help the expert to interpret the features on the ground at the material date. In essence, what her evidence came to was this: as at 20 August 1990 and 7 September 1990 the site was mostly covered with vegetation. Apart from one small "container-like object" on the land, there was no evidence that the land was being used. This evidence was accepted by the magistrate. By August 1993 the situation had radically changed. The question of change of use is one of fact and degree. The use of the land for a container trailer/ tractor park, the open storage of containers and a type repair workshop unquestionably constituted unauthorised development. The photographs tell the story. Such use plainly never existed at the material date, namely 7 September 1990. Effectively, that is what the magistrate had found. This was a finding of fact wholly supported by the evidence.
Regina v Power Straight Ltd., Dragon Friend Ltd. Magistracy Appeal No. 644 of 1995
It is common ground that if use of the land as at 11 July 1991, the day immediately before the publication of the Ngau Tam Mei DPA plan, is the relevant consideration, then the defence must succeed: as at that date, the land was already being used for the storage of vehicles and vehicle parts and the dismantling of vehicles. Equally it is common ground that if the relevant date is the day immediately before the publication of the Interim DPA plan.
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Viewed in this light, there can be no doubt whatever in my mind what is the appropriate date for considering the defence of existing use: it is the day immediately preceding the publication of the Interim DPA. When unauthorized development has been prohibited with effect from the date of gazetting of the interim DPA plan, it would have been bizarre for the legislature then to have counteracted the legal effect of such prohibition by providing a defence of "existing use" not as at that date, but months later [i.e. date of the DPA]. This might have had the effect of destroying the statutory scheme: as illustrated by this very case if Mr. Chong's argument be correct. (square brackets mine)
GLOSSARY OF HONG KONG PLANNING TERMS1
Progress in planning or any field of study depends on ceaseless critical appraisal and reappraisal of meanings attached to its vocabulary. As the world is constantly changing, it will be an intellectual horror that the vocabulary is fixed by authority of one kind or another. The glossary provided below represents my interpretation of key terms which I have often come across and are commonly found in the literature and documents of town planning. Apart from a few exceptions such as 'plot ratio', most of these terms defy a fixed meaning. One often finds it frustrating when a planning term is described by the authority as ‘a matter of fact and law' because this means that one may need to pay high litigation costs to clarify its meaning for planning practice. This state of affairs reflects that 'planning' is a dynamic and ideology-laden endeavour.
BALANCED DEVELOPMENT
It is a new town planning concept which refers to (a) the balance between population and community facilities/open space according to planning standards; and (b) the balance between the number of resident workforce and
1. There are many ways to organize a glossary. This glossary is more akin to the style of Davies and Roberts (1990) rather than that of Sachs (1992) or the unpublished 'Glossary of Town Planning' of the Town Planning Office. However, interpretation of meanings of various uses in statutory town plans can be helped by referring to the following non-statutory definitions contained in the set of notes made accessible to the public. They are: 'Definitions of Terms Used in Statutory Plans (Updated on 18 August 1990)' and 'Definitions of Terms for Rural Outline Zoning Plans and Development Permission Area Plans'.
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the number of local job opportunities within a new town. While the former has been successfully attained for new towns, the latter has failed and the extended concept of 'regional balance' of workforce and jobs has been suggested, which is just one step to the reality of 'territorial balance'.
BUFFER ZONE
It is a zone that is compatible with the two incompatible zones it separates. Many actual buffer zones in Hong Kong are built in the form of highways.
CHANNELIZATION
See Environmental Impact Assessment.
CROWN (GOVERNMENT) LEASE
It is a contract with forward planning and development control functions for a specific piece of land.
DEVELOPMENT CONTROL
It is the process through which the ideas of forward planning are enforced.
DEVELOPMENT PERMISSION AREA
It is an area designated by the Town Planning Board under s. 3(1)(b) of the Town Planning Ordinance.
DEVELOPMENT STATEMENT
It is a set of administrative planning policy statements prepared within the context of a subregional development strategy which helps forward planning and development control at a district level. The usefulness of development statements under Metroplan is tested in the Lai Sun Development Case.
ECONOMICS
It is the study of human behaviour under constraints. Given certain constraints,
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notably the rule of law and clear delineation of private property rights, free interaction of individuals leads to collective benefits. Many reject this view because such interaction may (a) involve immorality, as in the case of drug dealing and prostitution; (b) create uncompensated side effects upon innocent third parties (the welfare economic concept of externalities or third party effects); (c) lead to unequal exchange in situations where one side of the interaction has greater power over the other (the concept of monopoly); (d) problems of under-provision of certain goods or services for which the pricing mechanism is inoperative (the concept of public goods). The rejection of the collective benefit view of free interaction has led many planning theorists to subscribe to the necessity of regulating land uses by means of non-price allocation and market restriction measures. The logical extreme of this rationale is central economic planning. See Hayek (1944).
ENVIRONMENTAL IMPACT ASSESSMENT (EIA)
It is the process through which environmental implications of development proposals are systematically measured and reported. In Hong Kong, EIAS are seldom carried out or audited by people with training in biology; as a result, they can only assess physical rather than ecological impacts. In EIAs for government 'channelization' (or 'river training') projects of rivers and streams in Hong Kong, none have ever pointed out suggested methods of conservation or the transfer of species affected by habitat destruction. The purpose of channelization is flood prevention. It seems that the 'experts' involved, engineers and planners alike, do not know that by dredging and lining the banks of the river/stream course with cement, little flora or fauna can survive. Habitat destruction also means that the quality of water that runs along the artificial waterways or 'nullahs' (Photograph 18) will not gain benefit from any biological processes of self-cleansing, although government departments have paid contractors to spray cement along the hillside (Photograph 19) and the sides of reservoirs (Photograph 20). The situation in Hong Kong is not unique. When I was studying town planning at the University of Sydney, the Sydney City Council drained, dredged and cemented the bottom of the lake in Victoria Park near Fisher Library. One pamphlet of the Council's boasted that this engineering endeavour improved the quality of the water. In fact, the refilled water in the lake was filthy due to the eradication of the biological processes. The purpose of the Council's work was likely to be motivated by a desire to remove waterweed in the lake. Workers attempted to kill the weed with chemicals but the weed proved too strong to be neutralized. When the lake was being drained for the habitat destruction work, the author and his fellow residents in the International House identified the following types of fish of all sizes: Chinese carps; gold fish; mosquito fish and eels. Apparently, the Council did not conduct an EIA according to the New South Wales Environmental Planning and Assessment Act which binds the Crown. (The
Photograph 18
An early example of channelization at Chuk Yu Chung, Quarry Bay, Hong Kong Island. Chuk Yu Chung Valley is funnel-shaped with a very constricted lower course and a huge upper valley. Channelization was adopted for the middle and upper parts of the original river to increase efficiency of water inflow to the two reservoirs at the constricted lower course and the Taikoo Sugar Refinery respectively. The sites of both reservoirs have been filled for the purpose of high-rise residential development. The drowning of a person in the channelized river led to the fencing-off of the lower reach of the river. This amazingly also channelized a rock pond near the residential development.
Photograph 19
Cement spraying along the hillside of Mount Parker Road in Tai Tam Country Park. The drain pipes (one shown here), which are made of PVC plastics and inserted through the cement surface, are usually just 25 cm long. The spraying ruins the bush on the original hillside and sometimes masks relics of the Second World War.
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Photograph 20
This shows cement spraying of Tai Tam Reservoir in March 1999; the stone slabs below the bridge appeared to have been 'borrowed'.
process for specific categories of 'designated development' is now put on a statutory basis under the Environmental Impact Assessment Ordinance, Chapter 499, Laws of Hong Kong.)
EXPLANATORY STATEMENT TO A STATUTORY TOWN PLAN
It is a non-statutory document that describes the context and planning proposals of the statutory town plan. It often spells out the 'planning intentions' of individual zones.
FLOOD DRAIN CHANNEL
See Environmental Impact Assessment and Nullah.
FORWARD PLANNING
It is the process which property rights are assigned or reassigned over land property by the government planner.
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GRADATION
It is a planning concept that envisages the gradual increase or decrease in intensity, density or level of land uses. It mirrors and corresponds to the concept of a hierarchical order in the road system. See also Road Hierarchy.
HONG KONG PLANNING STANDARDS AND GUIDELINES (HKPSG)
Originating from the 'Colony Outline Plan' (later 'Hong Kong Outline Plan'), the HKPSG is a set of documents that provide standards which are used (a) to ration land for the development of various types of government goods and services; (b) to measure performance of private development; and (c) to act as guidelines for fixing the location and development of government goods/services and private projects.
INTERIM DEVELOPMENT PERMISSION AREA (IDPA)
It is an area defined by the Director of Planning (not the Town Planning Board) under s. 26 (1) of the Town Planning Ordinance within which, except for the zones having specifically defined uses, any development requires planning permission.
LAYOUT PLAN
It is an administrative town plan prepared by the government which is mainly used as a blueprint for engineering development such as reclamation, site formation and infrastructure.
LOCAL TRAFFIC
It refers to the traffic that originates from and/or terminates at a referent point. See also Road Hierarchy and Through Traffic.
MARKET
It refers to a state of affairs in which the exchange of the result of specializations under division of labour is based on voluntary contracts.
Glossary of Hong Kong Planning Terms
MASTER LAYOUT PLAN (MLP)
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It is a forward planning and development control plan, which is required as a lease condition or a prerequisite for a planning application in Comprehensive Development Area Zones in statutory town plans.
NOTES (TO A STATUTORY PLAN)
It is a statutory part of a statutory plan prepared under the Town Planning Ordinance. It consists of (a) a statement of uses always permitted in all zones (and, in plans with a history of 'interim development permission areas', uses that may be applied for on a temporary basis); and (b) for each land use zone, a set of Column 1 uses and a set of Column 2 uses. The uses are not defined in the Notes itself but in a set of technical circulars, which is circulated only among members of the Town Planning Grade in the government. There appends a non-statutory document called 'Definitions of Terms Used in Statutory Plans' which is available to the public. Notes are not called 'Explanatory' and must not be confused with 'Explanatory Statement', see Explanatory Statement.
NULLAH
It is a term, probably of Indian origin, used by the government to describe open-air channels for flood draining (not sewerage) purpose. Someone in the government once told the author this joke, 'it is a planning standard for town planning in Hong Kong that there shall be at least one smelly nullah per new town.' A typical response to the stench and pathetic sight of the filthy water in these channels is 'decking over' for highway construction. A typical example is the Canal Road flyover. Such 'covering up' work does not alter the content of liquid discharged into the harbour of Hong Kong.
ONUS OF PROOF
It refers to the burden of proving or establishing one's case. In planning applications, reviews and appeals, the usual stance adopted by relevant boards is that the burden is on the applicant or appellant to show that his or her application does not create adverse ecological, environmental, traffic, drainage or visual impact on the adjoining and wider environment. The applicant also has to prove that the application is not subject to the same condition due to the presence of existing users. There is no statutory list of relevant considerations which the relevant planning boards must take account of.
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OUTLINE DEVELOPMENT PLAN
It is an administrative zoning plan prepared and used by the government to allocate land for: (a) sale or grant to individuals; (b) allotment to individual government departments and public utility companies for the development of community facilities and open space according to planning standards. See also Hong Kong Planning Standards and Guidelines.
OUTLINE ZONING PLAN (OZP)
It is a zoning plan prepared in the name of the Town Planning Board under s.3 (1)(a) of the Town Planning Ordinance as a 'draft plan'. Under s. 9(1) of the Ordinance, it may become an 'approved plan' by the Chief Executive (previously Governor) in Council; it is not enforceable under the Ordinance unless it has a history of 'development permission areas'.
PLANNING
It refers to the application of knowledge and rational thoughts to organize and co-ordinate land use activities. It is practised by both individual professionals and the government. Planning is commonly understood as 'government planning' rather than private planning. Government planning generally refers to as what Sowell succinctly states, '
every economic activity under every conceivable form of society has been planned. What differs are the decision making units that do the planning.' In effect, it means the 'forcible superseding of other people's plans by government officials' (1980: 214). As a 'profession', planning refers to the use of techniques, activities, procedures and management of ‘government intervention' in spatial and socio- economic affairs. It often concerns efficiency in resource allocation in the presence of 'market failure', which includes the existence of 'externalities'; problems of providing 'public goods' and the existence of 'monopoly' under the profit mechanism in industrialization and urbanization; the desire for equity in income; wealth distribution and opportunity; and a general acceptance of Pigovian welfare economics and Keynesian macro-economic management in Western countries. (Lai, 1997f: xxii; 1998a)
PLANNING CONDITION
These are conditions imposed by the Town Planning Board for an approved planning application. They become enforceable for (a) town plans without a history of 'interim development areas', when incorporated in lease conditions and which have gone through the building application process; (b) town plans
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with a history of 'interim development areas' under 'planning enforcement' provisions, whether or not such conditions are incorporated in lease conditions or have gone through the building application process. Sometimes, a development proposal is subjected to further planning conditions that are relevant in the building application or development stage so as to satisfy other approving authorities such as the Director of Environmental Protection.
PLANNING ENFORCEMENT
This refers to the sanctions imposed on unauthorized developments which are against s. 21 of the Town Planning Ordinance and the actions taken under it.
PLANNING INTENTION
It refers to the purpose for a given land use zone. Its exact location in zoning plans and planning documents is of professional and academic interest. While it is often expressly indicated in the non-statutory Explanatory Statements, it is sometimes inferred from a reading of the Notes to a statutory plan or even the lease conditions of a property.
PLOT RATIO
It is the ratio between Gross Floor Area (GFA) and Gross Site Area (GSA). It is a forward planning and development control measure adopted in government leases, Buildings Ordinance, and administrative and statutory town plans. It is used as a proxy for assessing population and traffic impact of a development. The validity of plot ratio controls in statutory town plans was tested in the Crozet Case.
PRECEDENTS
Bad precedent is a reason for rejecting planning applications or appeals. It therefore seems that both the Town Planning Board and the Town Planning Appeal Board would follow its own precedents. However, unlike the Building Appeal Tribunal, the Town Planning Appeal Board does not appear to have stated that as a policy.
PRIVATE INTEREST
It refers to the lawful interest of an individual. See also Public Interest.518
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PRIVATE PROPERTY RIGHTS
They are the most developed form of exclusive property rights. The owner of certain goods can freely (a) use it; (b) derive income from it; and (c) alienate or transfer it in whole or in part to another person. (Cheung, 1974: 57)
PUBLIC INTEREST
The definition of 'public interest' depends on one's ideological position. It ranges from the libertarian view (which states that it is the sum of private interests of individuals as expressed in their voluntary contracts or interactions) to the totalitarian concept embodied in the 'general will' of a certain political party (which can be elitist or democratic). The former is represented by individuals appointed on the basis of knowledge or status while representatives from the latter category are elected on the basis of numbers. In Hong Kong, 'public interest' is a common law as well as a statutory concept. Resumption of private land for 'public purpose' is possible under the Lands Resumption Ordinance (previously known as the Crown Land Resumption Ordinance) for the implementation of statutory town plans. 'Public purpose' power has been used to resume private land for profit-seeking private housing or office development projects of the Lands Development Corporation (LDC), as well as for development of 'small houses' for indigenous villagers on land which they had sold to ‘outsiders'.
PURPOSIVE CONSTRUCTION/INTERPRETATION
It is a rule of statutory interpretation principle required by s. 19 of the Interpretation and General Clauses Ordinance, Chapter 1 of the Laws of Hong Kong. See Wesley-Smith (1982).
RIVER TRAINING
See Channelization, Environmental Impact Assessment, and Nullah.
ROAD HIERARCHY
It refers to the differentiation of roads in terms of their capacity and velocity. Roads at the uppermost level in the hierarchy handles exclusively through traffic and those at the bottom purely local traffic. See also Gradation, Local Traffic and Through Traffic.
Glossary of Hong Kong Planning Terms
SOCIAL BENEFITS
See Public Interest.
519
SOCIAL COSTS
It is a concept invented by Professor A.C. Pigou. It refers to the sum of private costs and costs imposed on ‘an innocent third party' by parties to a contract. Coase has reinterpreted the concept in terms of transaction costs. See Coase (1960).
STATUTORY TOWN PLANS
They are draft plans prepared by (a) the Town Planning Board under s. 3(1)(a) and s. 3(1)(b); and (b) the Director of Planning under s. 26 (1)(a) of the Town Planning Ordinance. Such draft plans may eventually become approved plans under s. 9 (1) of the Ordinance.
SUBREGIONAL DEVELOPMENT STRATEGY
It refers to the process and outcome of a study of one of the five subregions in Hong Kong within the context of Territorial Development Strategy (TDS) conducted by the government. The major outcome is a non-statutory land use plan for the entire subregion and there are also development statements for individual areas in the subregion. See also Territorial Development Strategy and Development Statements.
TERRITORIAL DEVELOPMENT STRATEGY (TDS)
It refers to the process and outcome of a study of the entire Hong Kong territory. It defines future development areas and their transport links, as well as non-development or conservation areas. It originated from the Colony Outline Plan (later the Hong Kong Outline Plan).
THROUGH TRAFFIC
It is the traffic that does not originate from and/or terminate at a referent point. See also Local Traffic and Road Hierarchy.
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Town Planning in Hong Kong: A Review of Planning Appeal Decisions
TRANSACTION COSTS
They are costs that exist in transactions, i.e., more than one person, other than the costs of production. These include (a) costs of competition; (b) costs of delineating and enforcing property rights; (c) costs of information; (d) costs of bargaining; and (e) costs of contract formation.
ZONE
It is an area with its boundary delineated by certain organizations. Examples include a freehold lot, leasehold lot, licensed area, planned zone, and so on.
"The dedication of a certain area to a particular use.' (Abercrombie 1933: 139)
ZONING
It refers to the process of delineating a zone in a lease or a town plan.
BIBLIOGRAPHY
Abercrombie, Patrick. Town and Country Planning. London: Oxford University
Press, 1933.
Hong Kong: Preliminary Planning Report. Hong Kong: Government Printer, 1948.
Alder, John. Effective Enforcement of Planning Control. London: BSP
Professional Books, 1989.
Ball, Simon and Bell, Stuart. Environmental Law. London: Blackstone, 1991. Barzel, Y. 'A Theory of Rationing by Waiting', The Journal of Law and
Economics, April 1974, pp. 73–95.
Bristow, Roger. 'Planning By Demand: A Possible Hypothesis About Town Planning in Hong Kong', Asian Journal of Public Administration, December 1981, pp. 192-223.
Land-use Planning in Hong Kong: History, Policies and Procedures. Hong Kong: Oxford University Press, 1984.
Hong Kong's New Towns: A Selective Review. Hong Kong: Oxford University Press, 1989.
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'In Defence of Planning — A Commentary on Staley', Planning and Development, Vol. 11, No. 1, 1995, pp. 24–26.
Buckley, G.B. 'Introduction', in Biological Habitat Reconstruction. London:
Belhaven Press, 1989.
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