town-planning-in-hong-kong-a-review-of-planning-appeals — Page 3

1

1

2

1

0

1

1

100%

4%

0%

2%

52%

14% 0% 0%

6%

4%

4%

2%

4%

2% 2% 4%

2%

0% 2%

2%

TIME INVOLVED

The time involved in a development application from lodging a s. 16 application to reaching an appeal decision is recorded in Table 2.3. Not all appeal decisions show the exact dates of the s. 16 applications or the date of the appeal hearing. A search of the Planning Department's records of Town Planning Board applications has identified all dates of s. 16 applications. The secretary of the Town Planning Appeal Board has provided dates of meetings not mentioned in the original decisions. From Table 2.3, it can be seen that an average of 11⁄2 years (18.1 months) (the range was 3.5 to 36 months) is needed. Then it took an average of another month (33 calendar days; the range is 6 to 127 days) for the decision to be laid down.

An Overview of the Planning Appeal Cases

11

Table 2.3 Time Involved from the Date of Planning Application and Appeal Hearing to the

Date of Appeal Decision

Date of S. 16 Applicatio

Last Day of Appeal Hearing

Date of Appeal Decision

Time From S 16 Application To Appeal Decision

Time From Last Date of Hearing to Appeal Decision

Case No

1991

1

Case Name

Alticosmic

Approx. (months)

Approx. (days)

8/3/91

5/3/1992

14/3/1992

12

9

1992

2

Conduit Road

17/4/91

29/6/1992

31/7/1992

16

32

3

Wo Yi Hop Road

7/11/90

10/7/1992

28/7/1992

20

18

4

|Sung Dynasty City

20/4/91

21/7/1992

29/7/1992

15

39

5

OTB

26/6/91

14/9/1992

25/9/1992

16

11

7

Full Look

14/8/91

16/10/1992

28/10/1992

15

12

6

Yuen To-shing

23/8/91

9/12/1992

16/1/1993

17 5

38

19

Yuen Shu-ling

23/8/91

9/12/1992

16/1/1993

17.5

38

10 Treasure Base

1/11/91

2/10/1992

13/10/1992

12.5

11

12 Good Luck

1/10/92

17/1/1993

15/1/1993

35

8

13 Pak Kong

12/12/91

15/2/1993

24/2/1993

14

9

14 On Luk Tong

4/12/91

4/3/1993

14/3/1993

15.5

10

15 Ultra Force

23/12/91

24/3/1993

18/4/1993

15.5

25

18] Kingspeed Engineering

21/2/92

18/5/1993

28/6/1993

16

41

19 Kun Kee Motor

2/3/92

26/5/1993

28/6/1993

16

33

1993

12

Bowen Road

23/3/92

21/6/1993

29/6/1993

15

8

4

Treasure Base

1/11/91

7/12/1993

22/12/1993

26

15

5

Treasure Base

8/5/92

7/12/1993

22/12/1993

20

15

11 Shell Hong Kong

5/2/92

13/1/1994

21/3/1994

14

67

12 Yook Tong Estate

9/10/92

13/4/94

9/5/1994

19

26

13 Henderson

1/8/92

23/5/94

26/8/1994

25

95

14 Yiu Cho Investment

8/10/92

7/3/94

21/4/1994

17

45

16 | Naturaluck

18/4/93

9/3/94

21/4/1994

12

43

17 Shun Fat Container

25/11/92

24/3/94

9/5/1994

17.5

46

19 Ever Need

5/3/93

2/6/94

29/6/1994

16

27

1994

1 |Tang Sai Hung

10/9/93

17/11/94

1/12/1994

14.5

24

2

|So Cho Cheung

7/8/93

19/8/94

28/11/1994

16

101

5

Tong Kam Wong

18/10/93

12/7/95

27/7/1995

21

12

6 Ng Siu Wing

9/12/93

18/1/95

7/3/1995

15

48

9 Lee Yiu Kam

15/11/93

23/3/95

10/4/1995

17

18

10 Sun Link Properties

11/12/93

16/5/95

14/6/1995

18

29

11 Wong Yee Fai (1)

21/10/93

24/5/95

14/6/1995

20

21

12 Lai Sun Development

19/2/94

9/8/95

14/9/1995

19

36

1995

14 Sanyear Investment

2 Charming City

5 Planet Universal

24/2/94

25/7/95

21/8/1995

18

27

30/4/94

12/3/96

29/3/1996

23

17

2/6/94

13/10/95

26/10/1995

17

13

7

Delight World

31/3/94

12/10/95

18/10/1995

16.5

6

8 Yin Ning Savings

28/2/94

20/8/95

27/10/1995

19

68

16 Arzginano Leather

5/9/94

21/3/96

12/4/1996

19

22

18 Jetway Civil

27/9/94

26/6/96

25/7/1996

20

29

19 | Lo Kwok-wai

15/7/94

16/5/96

4/6/1996

24

19

21 Cheung Hing Lung

14/1/94

4/6/96

6/8/1996

30.5

63

22 Lucky Gain

29/9/94

31/8/96

18/12/1996

14.5

127

|26|Wong Yee Fai (2)

12/10/94

22/3/96

12/4/1996

18

21

28 Fine Tower

2/11/94

26/4/1997

16/6/1997

32

51

1996

1

Yolanda Fan

24/3/95

17/7/96

30/8/1996

17

44

4

Container System

23/2/95

4/10/96

29/10/1996

20

25

8

Leung Wing-nin

4/10/95

12/6/97

12/7/1997

21 5

30

12 Rightlane Investment

26/11/94

1997 1 Connie Law Yuk Wah

11/3/96

23/10/1997

25/9/1997

12/11/1997

3/11/1997

35.5

20

17 5

39

Average

18.1

32.6

LEGAL REPRESENTATION

Many (at least 18 %) of the appellants were stated in the decisions to have been represented by lawyers. Others were represented by other types of experts or professionals such as architects, town planners (in at least 3 cases). Where the appellants were represented by lawyers or other professionals such as planners, surveyors, architects and ecologists, the Town Planning Board was also so represented. Professional planners represented the appellant or were asked to give evidence for the appellant in at least four decided cases.

FAILURE RATES OF APPEALS

Of the 50 appeal cases investigated in this book, one (the Treasure Base case, case no. 10/92) was ruled ineffective, and only 5 were allowed. The rest were

12

Town Planning in Hong Kong: A Review of Planning Appeal Decisions

all dismissed. Figure 2.3 shows the success and failure rates of reported cases for the years 1992–1997.

Number of Reported Appeals

2

→

8

12+

10+

11 (100%)

7

(100%)

6

(67%)

10 (100%)

8 (89%)

dlalt.

3 (33%)

1

1

(11%)

(25%)

3

(75%)

0

1992

1993

1994

1995

1996

1997

Year

Allowed

Dismissed

Figure 2.3 A Comparison of s. 17B Appeals Decided by the Town Planning Appeal Board in

1992-1997

The majority of the decided appeal cases came before Mr Justice Litton, OBE, as Chairman of Panel or Mr Robert C Tang, QC(SC), JP, as Chairman of Panel. Mr Justice Litton, now a Permanent Judge with the Court of Final Appeal, dealt with 22 cases. All except 1 were dismissed. Mr Robert Tang dealt with 25 cases. Since case no. 8/95, there has been no further decided case that came under a panel chaired by the former. All except 4 were dismissed. Two cases came before Mr Ronny F.H. Wong, SC. Both cases were dismissed.

The first successful case was the Yiu Cho Investment case (case no. 14/93), which was allowed on 8 April 1994 by the Appeal Board chaired by Mr Justice Litton. The case involved the application for an office development in a Residential Group (A) Zone in Leighton Road.

The second successful appeal was the Naturaluck case (case no. 16/93) which was decided by the Appeal Board chaired by Mr Robert Tang QC, JP, on 21 April 1994. This case dealt with a 572 m2 petrol filling station in the New Territories.

The third successful appeal case was the famous Henderson case (case no. 13/93), which was allowed on 26 August 1994 by all Appeal Board members except Mr David C. DaSilva who dissented. The Appeal Board was again

An Overview of the Planning Appeal Cases

13

chaired by Mr Robert Tang. This case dealt with a huge 98.3 ha residential- golf course-nature reserve project near the Mai Po Marshes, which is a designated Ramsar site. This case has remained the most important appeal case in terms of its legal and planning significance. (See sections below.)

The fourth successful case reported was the So Cho Cheung case (case no. 2/94) which was decided on 28 November 1994 by the Appeal Board chaired by Mr Justice Litton, OBE. This case dealt with an application for operating a fast food shop in a unit in Fo Tan, Shatin. The appeal was allowed with the condition that the planning permission would expire on 31 December 1997.

The fifth successful case reported was the Yolanda Fan case (case no. 1/ 96) decided on 30 August 1996 by the Appeal Board chaired by Mr Robert Tang. This case dealt with the use of a flat as a temple. In this case, it was reported that members of the Appeal Board had visited the site on request of involved parties before decision was made.

The sixth successful case was the Rightlane Investment case (case no. 12/ 96) which was the first reported to have been heard and decided after 1 July 1997 by the Appeal Board. This Board was chaired by Mr Robert Tang; it dealt with an application for a 'minor relaxation of plot ratio' for a Rural Building Lot at Headland Road.

REASONS FOR DECISIONS

The incidence of typical reasons for dismissing appeals are summarized in Table 2.4. A list of key reasons and relevant cases are given below:

absence of any justification for the applied uses (the Wong Yee Fai (1) and Leung Wing-nin cases)

being ad hoc development (the Sung Dynasty City, Full Look, Yuen To- shing and Yuen Shu-ling cases)

against planning intention (expressly so: the OTB, Full Look, Pak Kong, Treasure Base (1 & 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 Connie Law Yuk Wah cases; impliedly so: the Alticosmic, Conduit Road, Wo Yi Hop Road, Sung Dynasty City, Yuen To-shing, Yuen Shu- ling, Kingspeed Engineering, Kun Kee Motor, Bowen Road and Yook Tong Estate; not considered so in the Henderson, Naturaluck, So Cho Cheung, Sun Link Properties, Sanyear Investment, Fine Tower cases)

unauthorized development (the Pak Kong, Kingspeed Engineering, Kun Kee Motor and Shun Fat Container Terminal, Wong Yee Fai (1), Lo Kwok- wai, Wong Yee Fai (2) cases)

causing traffic congestion (the Alticosmic, Wo Yi Hop Road, and Shell Hong Kong cases)

14

Town Planning in Hong Kong: A Review of Planning Appeal Decisions

Table 2.4 Typical Reasons for Rejecting Planning Appeals

Against Planning Intention

Bed Precedent

ic

Excessive

Incompatibility

Development with Intensity

neighbouring development

Case No...

Case Name

1991 1

Allicosmic

1992 2

· Condul Road...

13.

Wo Yi Hop Road

14

Sung Dynasty Cay

15

QJB

Full Look

Yuan To-shing

Yuan Shu-ling.

110

Treasure Bana.

12

Good Luck

Pak Kono

14. „On Luk Tong

15. Vra Force

1.8

„Kingapeed Ecguageing....

19

Kun Kee Motor..

1993 2

Bowen Road

14

Ireasure Base

15

Treasure Base,

11

Shell Hong Kong

12

Yook Tong Estate.

13

Henderson

NOT

NOT.

. 14.

You Cho Investment

16. Naturaluck.

NOT

¡Shun Fat Contamty

Adverse Impact on Environment and / or Palution

Felling of Trees

G Traffic/ Access Problems

Parking Problems

Adverse Cumulative Efnals on Environment

Sile Constraints

Ad hot Development Preempting Future Plans

X

X

X

X

NOT

NOT

NOT

NOT

NOT

.?

NOT

NOI

NOT

19

Ever Need

1994 1

Iang Sa Hung

-So Cho Chung