town-planning-in-hong-kong-a-review-of-planning-appeals — Page 4

NOT

NOT

Tong Kam Yyong

Ng Sau Wing...

19.

¡Lea Yu Karo

10

Sun Link Propeʼtta.

NOT

11.

Wong Yes Fa(1).__

..12

La Sun Development

+14

Sanyear vestment

NOT

NOT

1995 2

Charming Cily

5

Planet Universal.

}}

Delight Word

Yin Ning Savinga

Arzgiano Lealbes.

118

Jetway Goul...

19

Lo Kwok-wai

121

Cheung Hing Lung.

¡22

¿Lucky Gain.

26. Wong Yen Fai (2).

28. Fine Town..

NOT

1996.1..

Yolanda Fan

14

Contacar System

Leung Wing-na....

1.12

Rondane InvESIMENE

1991

Case No

Conne Law Yuk Wah

Case Name

Against Planning

Intention

B Bed Precedent

NOT

ID

E

.G

Excess Development Intensdy

IncompatibMÂY

1 Adverse imnars Falkon of Tree Traffic /

H Parking

with

on Environment

Access

Problems

Adverse Cumulative

neighbouring development

and/or

Problems

Pollution

Effects on Environment

X

Against

Contest of

Comprehensive Development

Area

Se Constraints

Ad-hoc Development Preempling Future Plans

Against Contest of

Comprehensive

Development Area

Unauthorised Development

N

Land

Resumpton

NOT

M

N

Unauthorised Development

Land

Resumption

(continued)

An Overview of the Planning Appeal Cases

(Table 2.4 continued)

REASONS FOR DISMISSING PLANNING APPEALS

10

Against Pubhc

P No

Public

Ta

wrong Procedure/

R

T

v

Tw

Z

¡A1

TPB had no

power lo

Interest

Interes!

Time limite

approve

Development Control Power

Land Exchange Required

Appled Usa

Doubu

Landscaping Inadequale

Absence of Any Justification

No

No Market

Planning Gain

For Use

Appled

Allemalive

Supply Avadable

Nearby

Should

Apply For Other

Unworkable Planning

Conditions

NOT

NOT

X

NOT

NOT

10

Against

Public

Interest

No Public

Interest

wrong Procedule Time limits

TPB had no

power to

approve

Development

Control Power

Land

lu Applied Use Exchange Doubtful Required

Landscaping Inadequate

NOT

Absence of Any Justification

Tw

No Planning Gain

१५

No Markel

For Use Appled

Allemative

Supply

| Available

A1

Planning Conditions

Should Apply unworkable For Other : Use

Nearby

181

Invald Application

C1 Permission

Tooshorl

To be Useful

To Applicant

Case No.

Case Name

Alticosmic

199111

L1992 2.

Condist Road

Yo Yi Hog Road

14.

Sung DynaMy Cdx

5

ह

LOTB

Fu Look

Yuen To-shing

Yuen Shu ng

Treasure Base

15

1Q

12

Good Luck

13

„Pak Kong..

14

On Luk Tong

15

Ura Force

18

Kingapead Engineering

19

Kun Kee Malar

1993 2

Bawen Road_.______

4.

Treasure Bes

15

Treasure Bas.......

11

Shell Hong Kong

12

Yook Tong Estate

13 Henderson

14

You Cho investmeni

10

Naturaluck--..

1

| Shun Fat Container...

19...

Ever Noad...

1994 1

Ina So Hung

2

So Cho Chung.

S__

Tong Kam Wang

且

Ng Su Wing

19

Lee Yu Kam

10

Sun Link Properties.

11

„Wong Yes EaL)

12

- Lại Sun.Datement.

14 „Sanyear in Bækmeni

1995.2

Charming City

5

Plant Universal

Dekaty World

a

Yin Ning Savings

..X

+16

|Arzgmano Leather.

14

Léntway Crul

12

Lo Kwok-L

21

| Chauba Hung Lung

22

Lucky Gain

26

Wong Yes Em(2)—–—

28

„Eine Tower

1926.1

Yolanda Fan

Container Syklem

Leung Wing-nin.

12

Rakilane invaskmani

1997i1

82

Invald Application

C1

Parmision

Case No

|Cponie Law Yuk Wah

Case Name

Tooshort

To be Useful

to Applicant

16

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

inadequate on-site loading and unloading facilities (the Good Luck Case) causing parking problems (the On Luk Tong Case)

affected by possible land resumption (the Ultra Force, the Delight World and Yin Ning Savings cases)

mitigation measures requiring land resumption (the Shell Hong Kong case)

Emergency Vehicular Access (EVA) inadequate (the Ultra Force case) 400kV power pylons (the Ultra Force case)

unsatisfactory impact assessment (the Ultra Force and Fine Tower cases) cumulative environmental impacts (the Kingspeed Engineering Case; not considered in the Yiu Cho Investment case)

development on Green Belt land with little public interest (the Bowen Road case)

development on Crown land with little public interest (the Bowen Road case)

A large-scale columbarium run on a commercial basis in an agricultural setting (the Treasure Base case(2))

being incompatible with the rural environment (the Lee Yiu Kam, Wong Yee Fai (1) cases)

being incompatible with a G/IC use (the Lucky Gain and Fine Tower cases)

exceeding carrying capacity of external link (the Sun Link Properties case) no future market for the proposed use (the Lai Sun Investment case)

planning conditions unworkable (the Planet Universal, Delight World and Yin Ning Savings cases)

Of all the major reasons against the appellants, the most interesting and important is that of 'planning intention' or 'planning objectives'. Table 2.5 shows the location of the 'planning intention'.

RELEVANCE OF CROWN (GOVERNMENT) LEASES

The Appeal Board occasionally derived its decisions by reference to the conditions of the Crown lease (the OTB case). However, this is rare (the On Luk Tong case).

ECONOMIC CONSIDERATIONS: CONTEMPT WITH THE MARKET OR MARKET PHOBIA?

The notion of planning intention is often expressed by the Appeal Board strongly against its perception of the market as an inevitable antithesis of planning or the environment.

An indication of this mentality was first reported in the decision for the OTB case in which it was stated that permitting the application would set a bad precedent and amount to 'throwing planning out of the window'.

Table 2.5

The Location of Planning Intention

plans

X

of OZP/

other Istatutory plans Įstatutory plans

The Location of Planning Intention Town

OZP/

Notes of Schedule of Explanatory Town

Sub-

Development OOPS Crown Planning other OZP/ amendments Statements Planning Regional Statements Layoul Leases Ordinance statutory other lof OZP /

Board

Plan

Plans

Bill

plans statutory other

Guildelines

X

X

X

Case No.

1991 1

1992 2

Case Name

Alticosmic

Conduit Road

13

[Wo Yi Hop Road

14

|Sung Dynasty City

15

Готв

17

Full Look

8

Yuen To-shing

19

Yuen Shu-ling

10

Treasure Base (1)

12

Good Luck

13

Pak Kong

14

On Luk Tong

15

Ultra Force

18

Kingspeed Engineering

19

Kun Kee Motor

1993 2

Bowen Road

4

Treasure Base (2)

15

Treasure Base (2)

11

Shell Hong Kong

12

Yook Tong Estate

13

Henderson

14

Yiu Cho Investment

16

Naturaluck

17

Shun Fat Container

19

Ever Need

1994 1

|Tang Sai Hung

2

So Cho Cheung

15

Tong Kam Wong

16

|Ng Siu Wing

19

Lee Yiu Kam

10

Sun Link Properties

11

12

Wong Yee Fai (1)

Lai Sun Development

14

Sanyear Investment

1995 2

Charming City

5

Planet Universal

7

Delight World

18

Yin Ning Savings

16

Arzginano Leather

18

Jetway Civil

19

Lo Kwok-wai

21

Cheung Hing Lung

22

Lucky Gain

NOT

26

Wong Yee Fai (2)

X

28

Fine Tower

1996 1

Yolanda Fan

14

Container System

18

Leung Wing-nin

X

12

Rightane Investment

1997 1

Connie Law Yuk Wah

X

X X

Opinion

of Town Planning Board

Opinion

of DPO

Unsure

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

NOT

NOT

X

X

X

X

X

X

X

X

X

X

X

X

18

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

Another example is the reference to 'self-interest' to an application for a small metal workshop in the Kingspeed Engineering case with the appellant, being a supplier contractor for the government.

In the Treasure Base (2) case, a commercially run and large-scale columbarium is considered not compatible with surrounding agricultural uses. In the Bowen Road case, it was ruled that an application which benefits private individuals without demonstrating social benefits should not be approved.

However, the Appeal Board ran into a 180-degree turn in the subsequent Henderson case. Allowing the appeal, it stated that 'the raison d'etre for the existence of the Board and the Appeal Board' was: 'Just as the Town Planning Ordinance protects the Community, it protects private owners as well. An owner is just entitled to rely on a DPA Plan/OZP as the Government.' Yet, the Appeal Board backtracked very soon on this point.

In the Lai Sun Investment case, it was ruled that a use should not be approved if its future market was doubtful, but there was no need for the appellant to establish that the proposed use would produce any planning gain. Similar logic was applied in the Lucky Gain and Fine Tower cases where the Appeal Board relied on its own market assessment to conclude that there was unlikely to be a market for the applied use and accordingly dismissed the appeal.

MODE OF REASONING

The Dilemma Confronting the Appeal Board

A major problem confronting the Appeal Board is that statutory planning is largely a matter of the exercise of discretionary power while there are few substantial or procedural rules that help applying such power. Most planning policies, standards, guidelines, definitions and statements are administrative documents. No systematic attempts have been made to consolidate or codify these documents on a statutory basis. The Town Planning Regulations, unlike Building Regulations or environmental protection circulars, have remained underdeveloped. Yet the Appeal Board has been pressed to discover both categorical principles, such as 'presumption in favour of development' (or otherwise) and 'planning intention' as well as concrete technical concepts, such as 'transport capacity' from such messy materials. Due probably to the legal background of its leaders, the Appeal Board tends to adopt an adversarial rather than inquisitional approach to hearing the appeals. Thus, the Appeal Board has to construct a logical system of principles and interpretation of the materials available whenever they are invoked by either the respondent or the appellant in an adversarial manner. Sometimes, as shown in individual reported cases in Chapter 4, the reasoning is hardly consistent with or amenable to the development of a coherent body of rules, which are intelligible

An Overview of the Planning Appeal Cases

19

in terms of the ideology of a capitalist market economy, such as the one in Hong Kong.

The 'Action and Reaction' Principle

It seems that the Appeal Board has adopted a rather passive and reactionary stance towards the appellant. When he or she is represented by advocates, the Appeal Board tends to address all submissions. When he or she is not represented, the Appeal Board tends to make fewer and shorter comments, though the reasons for decisions are not much different. Where the advocate defends the appellant's position vehemently, the Appeal Board also reacts rigorously. Where the appellant's submissions are casual, the Appeal Board also tends to be more relaxed.

Is There a 'Presumption in Favour of Development”?

The position is utterly unsatisfactory. It was rejected in the Treasure Base case while in the Ultra Force case, it was ruled that there was no presumption in favour of development for private projects. However, the presumption was accepted in Henderson and more recent cases, such as Natural Luck, Ng Siu Wing and Fine Tower cases.

By large, it seems that there is no such presumption. The major problem area is with Unspecified Use Zones in IDPA or DPA Plans, which have been by now almost completely replaced by OZPs. However, even in OZPS, explicit policy clarification, preferably made on a statutory basis, is desirable. Such clarification will reduce the costs of abortive applications. See Chapter 3 for details of the rules that emerge in this area.

Is the Burden of Proof on the Appellant?

The position is unclear, but the overall picture is that the burden is on the appellant, especially where the relevant guidelines so dictate. (The On Lok Tong, Ultra Force cases v the Henderson, Wong Yee Fai (1) and Leung Wing- nin cases, and most importantly, the Connie Law Yuk Wah cases.)

Zero Nuisance

The general position is that if the appellant cannot prove zero nuisance in key areas considered by the respondent as being significant, the appeal will hardly be allowed. (See the Ultra Force and Kingspeed Engineering Company cases; but compare with the Yiu Cho Investment and Yolanda Fan cases.)

Cumulative Impact

Sometimes, the Appeal Board is concerned with the cumulative impact of a

20

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

proposed development and other similar proposals in a given planning unit or area, rather than just the impact of an individual proposal. (See the On Luk Tong, Kingspeed Engineering and Kun Kee Motor cases; but compare with the logic therein with the Yiu Cho Investment case.) A problem is that there seems to be little guidance regarding the objective calibration of the 'environmental' or 'carrying' capacity of the relevant planning unit or area. Hence, this concern tends to be intuitive and conjectural.

Cost Benefit Reasoning Wanting

As the Appeal Board tends to adopt the zero nuisance rule, it ignores the net benefits or costs of an application to the planning area. The only exception is the Henderson case. (Compare the Good Luck and On Lok Tong cases with the Henderson case.)

Precedents

Unlike the Building Appeal Tribunal, the Town Planning Appeal Board has not expressly developed the practice of following the rules of its own earlier decisions. In this sense, the Planning Appeal Board has not developed its own precedents. However, it has been keen to deal with the arguments of 'precedents' advanced by the respondent.