>
and
Similar Cases: case no. 01/92, Wo Yi Hop Road Cases] regarding relaxation of plot ratios in general;
02/96 [the and Rightlane Investment Case] regarding minor relaxation of residential plot ratios;
01/91, ———, 03/92, 13/93, 08/96 and 12/96 [the Alticosmic, -, Wo Yi Hop Road, Henderson, Leung Wing-nin and Rightlane Investment Cases] regarding location of planning intention (in Notes of statutory plans);
-, 14/92 [the, On Luk Tong Case] regarding application in R(B) Zones;
-, 03/92, 07/92, 13/93, 10/94, 02/95, 05/95, 07/95, 08/95 [the, Wo Yi Hop Road, Full Look, Henderson (not), Sun Link Properties, Charming City, Planet Universal, Delight World, Yin Ning Savings Cases] regarding excessive development intensity.
Date of s. 16 application: 17 April 1991
Date of Hearing: 26 and 29 June 1992
•
Date of Decision: 31 July 1992
• Date of Decision: 14 March 1992
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Mr J. McNamara and Miss V. Patel for the Town Planning Board (b) A.B. Lawrence and Associates for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
'Minor relaxation of plot ratio' stipulated for a zone is to be abjudged on the basis of a comparison between the plot ratio proposed by the applicant and the plot ratio stipulated in the OZP, not any plot ratio approved or could have been approved by the Building Authority prior to the gazette of the OZP - even though construction of that plot ratio had been in
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progress before the gazette of the OZP or the relaxation was part of an agreement made prior to the gazette of the OZP.
Background:
The subject site fell within a Residential Group (B) Zone in the draft Mid- Levels West Outline Zoning Plan No. S/H11/4 (the OZP) which was published in the gazette on 7 September 1990. In the Notes to the OZP, the maximum plot ratio for 'new development and any additional alteration and/or modification to the existing building (s)' was '5 or the plot ratio of the existing building(s) whichever is the greater.' 'Minor relaxation' of the stated restriction may be considered by the Town Planning Board, 'based on the merits of the individual development'. In the 'Remarks' of the Notes, it was stated that 'for the purpose of calculation of plot ratio . . . recreational facilities . . . ancillary to a development . . . may be excluded.'
The appellant had obtained building approval for the construction of a building of plot ratio 8 'some considerable time before the publication of the OZP' (i.e. long before 7 September 1990 (para. 3)). The building approval had been in fact given in 1987. On 12 February 1988, the appellant made an agreement with the government to surrender to the Crown a slice of the site adjoining Conduit Road for road-widening purposes. In the formal agreement of surrender, the consideration given by the government to the appellant was bonus plot ratio which might be permitted by the Building Authority under Regulation 22(2) of the Building (Planning) Regulations. By early 1991, construction work on the decked podium had commenced in accordance with the building plans approved in 1987.
On 12 February 1991 the appellant submitted a building application to the Building Authority for permission for additional building works. Such works were to provide additional recreational facilities such as a club house, gymnasium, saunas etc. The additional plot ratio was 0.104 and would result in a total plot ratio of 8.1048. The extra plot ratio was requested as a matter of the said bonus plot ratio.
The Building Authority rejected the application for the additional plot ratio under s. 16(1)(g) of the Buildings Ordinance on the grounds that this would contravene the plot ratio restriction in the OZP.
On 17 April 1991, the appellant made a s. 16 application for 'minor relaxation' of the plot ratio restriction. The Town Planning Board rejected the application in the s. 16 and s. 17(a) procedures.
Arguments:
The Town Planning Board rejected the application on the grounds that: (a) the proposed relaxation could not be considered minor; and
(b) approval of this application would set a precedent.
The Appeal Board agreed with the former point but did not report its view regarding the latter.
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93
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
Permission of Relaxation Ultra Vires
The Appeal Board did not consider that the application was for a minor relaxation of plot ratio on the grounds that the Town Planning Board had to use the plot ratio of 5 stipulated in the Notes of the OZP in considering the extent of relaxation.
'What may be permitted under section 16 is the "minor relaxation of the plot ratio restriction" which, in the context of the Notes, must mean the plot ratio restriction of 5. While the Board was powerless to prevent a current project being completed in accordance with approved [building plans] showing a plot ratio of 8, the Board could not lawfully accede to an application which plainly went beyond the scope of section 16(4) of the Ordinance.' (para. 9) (square brackets mine)
Contractual Bonus Plot Ratio Irrelevant
Regarding the bonus plot ratio applied for to the Building Authority, the Appeal Board had the view that 'since the plans submitted to Building Authority on 12 February 1991 related to recreational facilities ancillary to the development, for the use and enjoyment of the residents, those proposals would seem excluded from any calculation of plot ratio, in accordance with the wording of the "Remarks". It may well be, therefore, that the Building Authority was wrong in rejecting the plans on the grounds he did, namely, alleged contravention of the OZP, under the provisions of section 16 (1) (d) of the Buildings Ordinance. This, however, is not a matter for us.' (para. 12)
Regarding the fact that the appellant had obtained bonus plot ratio by agreement with the government, the Appeal Board stated that this is a matter of history and in no way affects the exercise of discretion by the Town Planning Board under the provisions of section 16'.
Comments:
Why Plot Ratio Control in the OZP? Environmental Protection
The substantive planning grounds for the stipulation in an OZP of a maximum plot ratio lower than that according to the prevailing Building Regulations, in the absence of the OZP, are based on environmental grounds. This is stated in the Explanatory Statement of the OZP. The validity of imposing plot ratio controls in a statutory town plan was affirmed in the Crozet and CC Tse cases. As environmental pollution (such as air, noise, water and traffic) is a function of floor space, imposing a cap on the maximum floor space operated through plot ratio reduction
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
should be beneficial to controlling pollution loads. The specific purpose of controlling residential plot ratio in the Mid-Levels area is to restrict the volume of traffic generated by redeveloping house sites into flats.
Efficacy of Plot Ratio Control Was Used as an Environmental Planning Tool?
Note, however, that plot ratio or floor space control of residential ones is just a proxy for traffic generation as it does not directly control the actual number of cars in the approved floor space. There is no transport policy that directly regulates the number of cars in a given housing area. The true intended use of plot ratio control in an OZP for an established residential area, such as the Mid-Levels, is to regulate redevelopment of old house lots, as existing ones (which may or may not be at a higher plot ratio) are not affected by the OZP as ‘existing uses'. The planner's good intention to improve the local environment, through plot ratio control alone is, however, a conjecture at best. Traffic congestion of a locality is rarely a simple function of traffic locally generated but the volume of 'through traffic' generated outside the locality. In any case, those proprietors who have been adversely affected will have no incentive to redevelop at a lower plot ratio, which is a financial loss uncompensated under the existing Town Planning Ordinance. Those who have not maximized (say having an existing plot ratio of 3) may intensify the plot ratio to the statutory maximum.
What Did the Appeal Board Decision Achieve from a Planning Point of View?
It is reasonable to consider, as a matter of general principle, that the proposed plot ratio of 8.104 had to be compared with the OZP-stipulated plot ratio of 5 in deciding on whether the relaxation was 'minor'. However, is it reasonable to dismiss the history of 8.104 as irrelevant? If the appellant has no right to develop up to 8, this will be the case arising purely from interpretating the Notes. However, if it is considered from a pragmatic point of view regardless of the property rights of the appellant, the Appeal Board's decision does not offer a public choice between a residential building of 5 plot ratio and one of 8.104. As the Appeal Board indicated, there was nothing that one could do to stop the developer from developing an industrial building at a plot ratio of 8. A residential building of plot ratio 8 could still be built notwithstanding the Appeal Board's decision. Therefore, the choice was one between 8, as approved by the Building Authority, and 8.104, as proposed by the appellant. From an environmental planning point of view, the relevant question should be whether it is more desirable to have a residential development of plot ratio 8, rather than one of 8.104 with the extra 1.3% plot ratio being purely ancillary uses. As far as traffic is concerned, the proposal for an extra 1.3% plot ratio should
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95
not make much material differences. The Appeal Board had not been invited or advised to consider such matters. In the Alticosmic case, the Appeal Board was referred to the planning substantive reasons about the control of ancillary uses (in that case, the use was office). In this case, it appears that even if the Appeal Board had been referred to these reasons, it would still have ignored them as it held adamantly that the history of 8.104 was irrelevant. It was the view of the Appeal Board that as a matter of law, the plot ratio stipulated in the OZP was the base line for evaluating proposed plot ratio relaxation.
Relevance of Private Property Rights
It appears that while the Appeal Board realized property rights of the appellant to build to plot ratio of 8 (or even 8.104, had the Building Authority properly interpreted the OZP), it was not advised to consider such rights as relevant when evaluating the validity or cost-benefit consequences of the Town Planning Board's decision. An important planning law point regarding the right to build to a plot ratio of 8 (which had commenced before the gazette date of the OZP) is whether such right is regarded as being 'existing' for the purpose of assessing 'minor' relaxation. An alternative legal approach that respects private property rights may be ready to support this position.
What Was the True Planning Intention? Validity of the s. 16 Application
The Appeal Board was conscious of the fact that ancillary uses were excluded for plot ratio measurement under the 'Remarks' of the Notes of the OZP and suggested that the Building Authority could have made a wrong interpretation of the OZP by rejecting the relaxation of plot ratio by 0.104. This obviously raises an intriguing point: in substance the appellant's application would not make any additional 0.104 plot ratio — there was no actual relaxation required to be made from the OZP perspective. The Town Planning Board should have told the applicant that there was no need or possibility for an application in the first instance! In the Alticosmic case, the logic of the Appeal Board implied that had the approved building been in existence, the issue of ancillary uses would not have been interpreted differently. In the present case, as illuminated by the Appeal Board, any discussion of relaxation would appear to be superfluous.
Questions:
1. To what extent is it valid that a use permitted by the Crown lease with a building plan approved before a draft OZP comes into existence (which shows or stipulates a different use and/or plot ratio) is ‘an existing use' within the meaning of the OZP?
2. What is the use of the subject site now?
(See Photographs 2a and b)
Photograph 2a
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BLOCK &
800
Photograph 2b
Photographs 2a and b
Subject Site of the Conduit Road Case in March 1998
Planning Appeal Cases
• References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapter 2.
Cases:
1. Validity of plot ratio control in town plans
Crozet Ltd. v AG HCMP 409/73
CC Tse (Estate) Ltd. v AG HCMP 604/81
97
Auburntown Ltd. v Town Planning Board Judicial Review No. 222 of 1993
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
2. Planning intention and residential plot ratio
Wah Yick Enterprises Co. Ltd. v Building Authority MP 1623 1977
THE WO YI HOP ROAD CASE
•
•
Case Name: 63-73 Wo Yi Hop Road, Kwai Chung [the Wo Yi Hop Road Case]
Planning Appeal Case No. : 03/92
Similar Cases: 01/91, 02/92,
"
13/93, 08/96 and 12/96 [the Alticosmic, Conduit Road, Henderson, Leung Wing-nin and Rightlane Investment Cases] regarding location of planning intention (in Notes of statutory plans); 01/91,
05/92, 02/94, 12/94, 22/95 and 28/95 [the Alticosmic, OTB, So Cho Cheung, Lai Sun Development, Lucky Gain and Fine Tower Cases] regarding application in Industrial Zones;
01/91,
12/92, 11/93 [the Alticosmic,
Good Luck and Shell Hong
Kong Cases] and regarding impact of goods vehicle traffic;
"
08 and 09/92, 12/92, 14/92, 15/92, 18/92, 19/92, 04 and 05/93, 11/93, 13/93, 14/93, 01/94, 05/94, 10/94, 14/94, 07/95, 08/95 and 22/95 [the- Yuen To-shing and Yuen Shu-ling, On Luk Tong, Good Luck, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Treasure Base (2), Shell Hong Kong, Henderson, Yêu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World,98
•
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Yin Ning Savings and Luck Gain Cases] regarding adverse traffic/access problems;
07/92, 13/93, 10/94, 02/95, 05/95, 07/95, 08/95 [the Wo Yi Hop Road, Full Look, Henderson (not), Sun Link Properties, Charming City, Planet Universal, Delight World, Yin Ning Savings Cases] regarding excessive development intensity;
07/92, 15/92, 18/92, 19/92, 13/93, 16/93, 14/94, 28/95 and 04/96 [the
>
Full Look, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Sanyear Investment, Fine Tower and Container System Cases] regarding adverse environmental impact;
12/93, 13/93 and 04/96 [the, Yook Tong Estate, Henderson and Container System Cases] regarding award of costs.
Nature of the Case: objection to OZP; validity of s. 16 application, Column 2 uses, minor relaxation of industrial plot ratio stipulated in OZP; ancillary office use in industrial zone; interpretation of Notes of OZP, Town Planning Board Guidelines and implications of building plans approved before gazette date of OZP-existing uses; traffic impact; possible use of planning conditions, lease conditions; unrestricted lease; bad precedent; award of costs; expert opinion.
Date of s. 16 application: 7 November 1990
Date of Hearing: 6, 7 and 10 July 1992
•
Date of Decision: 28 July 1992
•
•
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Mr J. McNamara and Miss V. Patel for the Town Planning Board (b) John Y.H. Hsi and Associates for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) 'Minor relaxation of plot ratio' stipulated for a zone is to be abjudged on the basis of a comparison between the plot ratio proposed by the applicant and the plot ratio stipulated in the OZP.
(b) Cost shall not be awarded against an appellant who appealed with
dignity and restraint in order not to deter future appellants.
Background:
The subject site fell within an Industrial Zone in the draft Kwai Chung Outline Zoning Plan No. S/KC/5 (the OZP) which was published in the gazette on 19 October 1990. In the Notes to the OZP, the maximum plot ratio for 'any new building and any addition, alteration and/or modification to the existing building' was ‘9.5 or the plot ratio of the existing building
Planning Appeal Cases
•
99
whichever is the greater' although 'minor relaxation of the stated restriction ... may be considered' on individual merits of each case.
On the same date as the gazette of the OZP was published, the appellant submitted building plans to the Building Authority for building approval for the construction of a 28-storey non-domestic building (godown). This building achieved a plot ratio of 15, which had prevailed before the OZP was in force.
The Building Authority rejected the building application on the grounds that this would contravene the plot ratio restriction of the OZP.
On 7 November 1990, the appellant made a s. 16 application through an Authorized Person under section 16 of the Town Planning Ordinance' for 'permission to develop the lot in accordance with the plans submitted by their architect on 19.10.1990'. (para. 3) As recorded by the Appeal Board, this application 'made no specific reference to the Notes to the OZP for the grant of permission for any purpose'. (para. 3) The Town Planning Board rejected the application in the s. 16. The applicant then applied for a s. 17(a) review.
In the s. 17(a) review, held on 25 October 1991, the appellant was represented by Sir Oswald Cheung, Queen's Counsel, and by solicitors. Prior to the review hearing of 25 October 1991, the appellant lodged an objection to the OZP under s. 6 of the Town Planning Ordinance. The Town Planning Board rejected the application in the s. 17(a) procedure. The same Board held a hearing under s. 6(a) on 14 February 1992 of the objection to the OZP and resolved not to amend the OZP to meet the objection.
Arguments:
The appellant argued in the s. 16 application that:
(a) the proposed godown development would cause no water or air
pollution;
(b) the proposed godown building will generate no greater amount of
traffic than a factory building at a plot ratio of 9.5.
The Town Planning Board rejected the applications on the following grounds:
(a) the relaxation requested, from 9.5 to 15 in plot ratio, was not minor; (b) there was no strong justification to permit the proposed relaxation
which would set an undesirable precedent;
(c) there was no proof that godown use would generate less traffic than
general industrial uses.
The Planning Department made the following comment about the s. 17 review application regarding the environmental impact of the proposal:
Whilst there are merits in the proposal [for godown development] in terms of less noise and air pollution and less demand on the
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
sewerage system, these are more than outweighed by its adverse traffic implications.
During the review hearing, counsel for the appellant conceded that the Town Planning Board had no power to 'relax' the plot ratio from 9.5 to 15 but submitted that it could nevertheless permit the proposal by amending the Notes so as to allow for godown development exceeding a plot ratio of 9.5.
• Reasons for Decision:
The Appeal Board dismissed the appeal on the grounds that the Town Planning Board had no power to entertain the application or amend the OZP, that the relaxation implied in the application was not minor, and that the arguments of the appellant about environmental impact were unconvincing. It did not, however, entertain the application of the Town Planning Board for an award of costs under s. 17B (8)(c) in the event that the Appeal Board dismissed the appeal.
Was the Town Planning Board Dealing with an Invalid Application?
The record of decision of the Appeal Board explains at great length (in ten paragraphs) the legal powers of the Town Planning Board in preparing plans under s. 3(1), vetting planning applications under s. 16 (paras. 6– 11), and amending plans under s. 6(3) and 7(1) (paras. 17–20).
The decision does not explicitly indicate that the appellant's application is in fact invalid for the use applied for because it is not a Column 2 use. Instead, it provides a thorough explanation of the correct interpretation and application of the said sections in the Ordinance.
Plot Ratio Relaxation Was Not Minor
Regarding the relaxation of plot ratio, the Appeal Board considered that the extent of relaxation as measured from the 15 applied for to 9.5 stated in the Notes of the OZP was not minor. The Appeal Board did not agree with the appellant's claims that the expression 'minor relaxation' was not simply confined to a mere mathematical calculation of a 58% increase (9.5 to 15) or that there were 'overwhelming' environmental considerations in favour of the relaxation. In fact, the Appeal Board found no individual merits' for relaxing the plot ratio.
Environmental Considerations
The Appeal Board noted and reported its perception about the purpose of imposing plot ratio controls in Kwai Chung in para. 21 of the decision. While there is no explicit reference to the specific argument raised by the appellant, para. 21 appears to cover the Appeal Board's counter-argument
Planning Appeal Cases
101
against the traffic reduction ground of the appellant. The Appeal Board noted the existence of the "Tsuen Wan and Kwai Chung Industrial Plot Ratio Study' which found that an increase of 80% from the existing industrial floor space might occur if there had been no plot ratio control imposed by the OZP. Even with the 9.5 plot ratio cap, an increase of 35.3% over the existing level had been expected. In para. 26, the Appeal Board noted that the Planning Department in commenting on the s. 17 application expressed the view that 'whilst there are merits in the proposal [for godown development] in terms of less noise and air pollution and less demand on the sewerage system, these are more than outweighed by its adverse traffic implications.' The Appeal Board did not think that it is possible to weigh the considerations in the scales in this way'. The reasons are discussed below.
No Merit in Traffic Terms
The Appeal Board did not accept the argument that godown use is necessarily environmentally-friendly' and hence should have been treated by the Town Planning Board separately from general industrial uses. It regarded the appellant's suggested transport merits of godown use as 'highly speculative' because:
(a) a comparative transport impact study by the Planning Department on general industry and godown uses requested by the Town Planning Board in September 1991 had not been completed;
(b) the findings of the transport consultants for the appellant did not
convince the Town Planning Board; and
(c) 'a godown building could be turned later into factory use'.
Award of Costs
In response to the request for an award of costs, the Appeal Board stated: 'We conclude that, generally speaking, we should not. The Appellant is exercising a right conferred by the statute to appeal against a decision of the TPB where, by the nature of things, the TPB cannot be expected to state fully its deliberations and reasons for refusing the application. The appeal on behalf of the Appellant has been conducted with dignity and restraint and there are no exceptional circumstances in this case which suggest that we should award costs against the Appellant and, in effect, deter future appellants from pursuing what, on its face, is an unfettered right of an aggrieved party.' (para. 28)
Comments:
Why Plot Ratio Control in the OZP? Environmental Protection
The substantive planning grounds for the stipulation in an OZP of a maximum plot ratio lower than that according to the prevailing Building
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Regulations in its absence are based on environmental grounds. This is stated in the Explanatory Statement of the OZP. The validity of imposing plot ratio controls in a statutory town plan was affirmed in the Crozet and CC Tse cases. As industrial pollution (such as air, noise and traffic) is a function of floor space, imposing a cap on the maximum floor space operated through plot ratio reduction should be beneficial to controlling pollution loads. Plot ratio control as such, in terms of the jargons of the Metroplan, is a method for 'thinning out' industries. The present case is the first reported case in which the Appeal Board explained the planning reason for imposing plot ratio controls in the OZP.
Efficacy of Plot Ratio Control Was Used as an Environmental Planning Tool
Note, however, that plot ratio control is just a proxy for pollution as it does not directly control the actual operation or intensity of industrial activities on the approved floor space. Direct controls are imposed by various environmental protection ordinances drafted by the Environmental Protection Department. The true intended use of plot ratio control in an OZP for an established industrial area (such as Kwai Chung) is to regulate redevelopment of factories, as existing ones (which may or may not be at a higher plot ratio) are not affected by the OZP as 'existing uses'. The planner's good intention to improve the local environment through plot ratio control alone is, however, a conjecture at best. The strategic planner's plea for exchange of development rights lost by proprietors as a result of 'thinning out' was snipped by the Lands Authority when various imaginative 'urban restructuring' approaches were proposed in the late 1980s. Under the circumstances, proprietors who have been adversely affected will have no incentive to redevelop for industrial purposes at a lower plot ratio, which is a financial loss uncompensated under the existing Town Planning Ordinance. Those who have not maximized (say having an existing plot ratio of 3) may intensify the plot ratio to the statutory maximum. As noted by the Appeal Board, there could be 35.3% further increase from the existing stock of industrial floor space to the new plot ratio of 15. This is, in the words of the Appeal Board, with hindsight, highly speculative. The Appeal Board was not, however, reminded of the declining trend of industrial employment or establishments in the territory due to the massive relocation of factories to the Pearl River Delta. (In the Alticosmic case, the point about the prospect of general industries had been raised but ignored by the Appeal Board.) The more commonly used alternative is to lobby for rezoning 'Industrial' to the more lucrative 'Residential' uses, having failed to make a successful objection to the draft plan when it was published in the gazette.
Planning Appeal Cases
Was Godown More or Less Polluting? No Merit in Traffic Terms at all?
103
I think that the Town Planning Board's view on the comparative advantages and disadvantages of godown (assuming that this use is exclusive) vis-à-vis general industries (with all Column 1 uses being allowed) was correct, given that it is within the same plot ratio. The Planning Department surely had the benefit of gaining expert advice from departments such as the Transport and Environmental Protection Department. The Appeal Board did not, however, elaborate on why it considered the expert opinion of the Planning Department less reliable than that it upheld in an area where the former had the expertise though this would have made no difference to the decision.
Was There Really No Assurance of Godown Use?
As in the Alticosmic case, the Appeal Board's concern over the assurance of actual godown use seems to invoke the concept of credibility or honesty of the appellant, though this time the problem of unrestricted leases was mentioned in general. This view is not entirely reasonable as it makes no reference to how such godown use, if approved, can possibly be assured by proper planning conditions. Such planning conditions may stipulate the exact extent and nature of the use in the Crown lease conditions where lease modification is required. It is true that the Ordinance does not provide for statutory enforcement in areas previously not covered by IDPA plans (such as those in urban areas). However, indirect but no less effective enforcement can be achieved via the stipulation of conditions that can be enforced by lease or other law, notably environmental protection ordinances. It seems that it is only when the assurance of a validly applied use entails a condition that is impossible, unreasonable, unrelated to the application itself, or beyond the authority of the Town Planning Board that the Appeal Board's view is clear. For instance, the only way to assure godown use is through lease control but the lease is unrestricted as far as industrial uses are concerned. If there is no need for a lease modification to help materialize redevelopment, it may be impossible to impose a planning condition to guard against office use. Although the attention of the Appeal Board was drawn to the fact that 'there are a large number of unrestricted leases in the area' (para. 21), it was not informed of whether the lease for the appellant's site was really 'unrestricted'. Note, however, that even if the site was really subject to an unrestricted lease, the very nature of an OZP or a planning permission under that OZP would override the lease, lease modification to allow the approved use would be required. I find it difficult to understand the Appeal Board's apparent logic about the supposed impotence of the Town Planning Board in ensuring the godown use applied for to be implemented after permission was granted — if that permission was to be granted at all. As it stands, a rule about planning conditions and the nature of lease emerges in this case: where the lease is
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
'unrestricted', planning conditions cannot be implemented through a modification of the lease. It is doubtful whether this presumption is valid.
It is reasonable to consider the proposed plot ratio of 15 alongside the OZP-stipulated plot ratio of 9.5 when deciding on whether the relaxation was 'minor'. Without any factual knowledge about the existing state of affairs (notably the plot ratio and use of the site when the application was made), one could simply speculate that the decision would constrain redevelopment of the site to general industries of 9.5.
Relevance of Private Property Rights
Being bound by the Ordinance as usual, the Appeal Board were not presented with the implications of the fact that the appellant had lost almost 37% of his pre-existing development rights to build a factory premises. In this case, the Appeal Board apparently was not counselled to pay attention to the possible use of a modified lease to ensure that a planning condition forbids the industrial use applied for from departing from godown use only.
Questions:
1. What are the existing plot ratio of the subject site?
2. What are the lease terms of the land owned by the appellant? Are they irrelevant considerations for the purpose of vetting a planning application?
3. What should be the appropriate planning conditions for ensuring that
an approved godown will not be converted to an office?
4. What is the use of the subject site now?
(See Photograph 3)
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5, 8 and 9.
Town Planning Board, TPB PG-NO. 3A, Town Planning Board Guidelines for Office Buildings in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes TPB PG-No. 3 (December 1990) of the same title in force when the case was decided.)
Town Planning Board, TPB PG-NO. 4A, "Town Planning Board Guidelines for Application for Composite Industrial-Office Buildings in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance,' September, 1997.
(This set of guidelines now supersedes TPB PG-No. 4 (January 1994) revised version of the same title.)
Planning Appeal Cases
105
Town Planning Board, TPB PG-NO. 7A, “Town Planning Board Guidelines for Application for Commercial Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes, TPB PG-Nos. 7 and 9 below in force when the case was decided.)
Town Planning Board, TPB PG-NO. 7, 'Town Planning Board Guidelines for Application for Commercial Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', December, 1990.
7
Photograph 3 Subject Site of the Wo Yi Hop Road Case in May 1998
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Town Planning Board, TPB PG-NO. 9, "Town Planning Board Guidelines for Banking Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', January 1991.
Town Planning Board, TPB PG-NO. 1A, ‘Town Planning Board Guidelines for Application for Office and Showroom Uses in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance,' September, 1997.
(This set of guidelines now supersedes TPB PG-Nos. 1 and 6 below in force when the case was decided.)
Town Planning Board, TPB PG-NO. 1, 'Town Planning Board Guidelines for Application for Showroom Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', January, 1991.
Town Planning Board, TPB PG-NO. 6, "Town Planning Board Guidelines for Application for Office Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', December, 1990.
Cases:
1. 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 Judicial Review No. 222 of 1993
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
2. Office uses in industrial buildings/leases
Mexx Consolidated (Far East) Ltd. v Attorney General and Another (High Court Miscellaneous Proceedings No. 2421 of 1986)[1987] HKLR 1210-1220
Cavendish Property Development Ltd. v Attorney General (High Court Miscellaneous Proceedings No. 762 of 1987) [1988] CPR 212-220
THE SUNG DYNASTY CITY CASE
·
Case Name: Sung Dynasty Village Site, Kwai Chung, New Territories [the Sung Dynasty City Case]
Planning Appeal Cases
•
Planning Appeal Case No. : 04/92
107
•
Similar Cases: case nos. 12/93 [the Yook Tong Estate Case] regarding development in CDA zoning;
"
07/92, 10/92, 15/92, 04 and 05/93, 13/93, 17/93, 08/95, 16/95, 21/95 and 01/97 [the Full Look, Treasure Base (1), Ultra Force, Treasure Base (2), Henderson, Shun Fat Container, Yin Ning Savings, Arzignano Leather, Cheung Hing Lung and Connie Law Yuk Wah Cases] regarding Town Planning Board or Appeal Board procedures;
-, 07/92, 11/93 (the, Full Look and Shell Hong Kong Cases] regarding location of planning intention (in the opinion of the District Planning Officer (DPO) before the Appeal Board);
"
07/92, 08 & 09/92, 15/92, 18/92, 19/92, 10/94, 05/95, 07/95, 08/95 [the
"
Full Look, Yuen To-shing and Yuen Shu-ling, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Sun Link Properties, Planet Universal, Delight World, Yin Ning Savings Cases] as regards the meaning of ad hoc and comprehensive development.
Nature of the Case: rezoning; objections to town plans; Other Specified Uses (OU); Comprehensive Development Area (CDA); master layout plan; legitimate expectations, intent and spirit of the Town Planning Ordinance; planning intention: location and changes of; Explanatory Statement of OZP, breach of natural justice; commercial-residential development, public housing; private agricultural land, short-term waivers, Crown land, short- term tenancy.
Date of s. 16 application: 20 April 1991
Date of Hearing: 15, 16, and 21 July 1992
Date of Decision: 29 July 1992
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Mr J. McNamara and Miss V. Patel for the Town Planning Board (b) Mr Brian P. Clancy of Vincent T.K. Cheung, Yap and Co. for the
appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) The Town Planning Board can defer the decision of a review to a
meeting in which the applicant is absent or unrepresented.
(b) The Town Planning Board shall take into account objections to an amendment to town plans which has been made in favour of a certain applicant before deciding that applicant's s. 16 application or s. 17(1) review.
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Background:
The subject site fell within Area 43, designated a Comprehensive Development Area (CDA) zone in the draft Kwai Chung Outline Zoning Plan No. S/KC/7 (the OZP) which was published in the gazette on 19 October 1990. In the Notes of the OZP, there was no permitted uses for this zone; neither was there proposed development in the zone that required planning permission of a master layout plan and other specified matters, such as uses, open space provision, parking facilities, landscaping etc.
Area 43 covers the Kwu Wa Keng Valley. The seaward end of the Valley was occupied by the Lai Chi Kok Amusement Park and the Sung Dynasty Village; both were recreational facilities. These facilities stood on lands (area 1) which were partly private agricultural, operating under short-term waivers (STWs), and partly Crown land, operating under short- term tenancies (STTs). Across Lai King Hill Road to the north, up the Valley, there found (area 2) the Kau Wa Old Village 'with titles going back to the beginning of this century' (para. 10) and the Kau Wah New Village, a squatter settlement on Crown land. In the previous statutory town plan (No. S/KC/5), area 1 had been zoned commercial for land adjoining Lai King Hill Road, and 'Other Specified Uses: Amusement Park' for the rest of the land. Area 2 had been zoned 'Undetermined' in which any new development needed planning permission.
In January 1990, the appellant made a request for rezoning in January 1990 to enable Commercial and Residential development on his land south of Lai King Road. The appellant's planning consultants met with the District Planning Officer/Tsuen Wan (DPO) on 24 January 1990 and recorded certain things said by the DPO in minutes. Then, the consultants had further meetings with the DPO of the Lands Department and Housing Department regarding the appellant's requests for rezoning and intended commercial-residential development on his land.
Rezoning occurred on 19 October 1990 when the OZP was published in the gazette. Item D in the schedule of amendments stated that for the entire Kau Wa Keng Valley:
The site to be rezoned from "Undetermined" and "Commercial" to "Comprehensive Development Area" and "Village Type Development".
The OZP showed the notation ‘CDA' on both sides of Lai King Hill Road. A 'hook' symbol links the area on either side. In the Explanatory Statement of the OZP, it was stated:
6.4
Comprehensive Development Area: total area 10.76 ha
6.4.1. This zoning covers the Kau Wa Keng New Village and the Lai Chi Kok Amusement Park in Area 34. The area currently occupied by Kau Wa Keng New village is proposed for a public rental housing estate. The portion south of the village will be
Planning Appeal Cases
109
developed into a Home Ownership Scheme estate. The existing amusement park was proposed to be developed for commercial/ residential uses.
On 20 April 1991, the appellant submitted a s. 16 application with a proposed master layout plan, supported by a concept plan showing proposals for a mixed commercial-residential development. The development involved 725 flats of an average size of 53.65 m2, 7111.47 m2 commercial floor space and 365 parking spaces. This application was rejected by the Town Planning Board in the first instance on 6 June 1991. Meanwhile, objections to the zoning of Kau Wa New Village to CDA in the OZP had been received.
The appellant applied for a s. 17(1) review on 5 August 1991. The objectors were heard on 16 August 1991. The Town Planning Board decided to pay a site visit to the site on 29 November 1991.
The review hearing was held on 25 October 1991 during which the appellant's representatives attended. The Town Planning Board came to no decision on 25 October 1991 and deferred decision to its following meeting held on 29 November 1991, which affirmed its decision of rejecting the s. 16 application in the absence of the appellant or his representatives. On 3 July 1992, the Town Planning Board published in the gazette OZP No. S/KC/8 which rezoned Area 43 in such a way that the area north of Lai King Hill Road was designated private residential whereas south of the Road reserved for the development of public rental and Homeownership scheme housing by the Housing Authority.
Arguments:
The appellant argued in the appeal that:
(a) the proposed development did not lack 'comprehensiveness' because it covered the 'southern CDA which lies to the south of the road' (i.e. area 1 referred to above);
(b) the Explanatory Statement of the OZP as a public statement of planning policy in para. 6.4.1 raised 'legitimate expectations' about the nature of development in the CDA.
(c) the Town Planning Ordinance did not allow the Town Planning Board to defer a decision on the review pending resolution of the objections to the rezoning;
(d) the appellant should have been given an opportunity in the 29 November 1991 meeting to demonstrate that his proposal made better sense from a planning point of view than the Town Planning proposals in OZP No. S/KC/8.
The Town Planning Board held that:
(a) the proposal was 'not comprehensive enough in relation to other land uses in the CDA zone and the co-ordinated implementation of these alternative land uses (public housing, objector's views etc.);
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
(b) the proposal would pre-empt options of future land uses and would be
in conflict with the Board's intention to develop the 'CDA'.
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
One CDA or Two Separate CDAs?
Having considered the notation of the amendments schedule of the OZP and wording of the Explanatory Statement about the OZP, the Appeal Board did not agree that there were in fact two CDAs. It followed that the appellant's arguments stating his proposal was 'comprehensive' had to fail as his 'southern CDA' was just a part of a larger CDA acknowledged by the Appeal Board.
'Legitimate Expectations'
The Appeal Board rejected the idea that the rezoning exercise of 19 October 1990 taken by the appellant as a means to accommodate the development scheme was definitive as to the development rights of the appellant, notwithstanding an indication of the appellant's proposal in the Explanatory Statement. The reason was that although the Statement did show the 'intention' of the Town Planning Board, the Town Planning Board was entitled to change its intention without either a formal amendment of the Statement or a formal rezoning or republication of further amendments to the OZPS.
It would be right. to assume that when the Board published OZP No. KC/7 on 19 October 1990. . . it was proposing at that time to entertain planning applications for private residential/commercial development in the Amusement Par[k] area in accordance with the Statement. If that was not its intention, then para. 6.4.1 would indeed have been misleading. The real question is whether the Board is forbidden to change its mind without a formal amendment of the Explanatory Statement or a formal re-zoning and re-publication of further amendments to the OZP... (para. 24) (italics mine)
'Moratorium'
The Appeal Board held that:
(a) the Town Planning Ordinance did not require the Town Planning Board to make a decision on the day of the s. 17(1) review, and hence it was not unlawful for the same Board to defer decision until it had heard all objections;
(b) even if a decision had been heard on the same date of the review
hearing, the only possible decision had to be one of rejection.
Planning Appeal Cases
Breach of Natural Justice
There was no breach of natural justice as:
111
(a) the arguments of the appellant against the second rezoning on 3 July 1992 (OZP S/KC/8), if given a chance to be heard on 29 November 1991, were unconvincing to the Appeal Board;
(b) the appellant had been given a legal right to make objections to the
OZP S/KC/8, which showed new 'intentions'.
Comments:
Nature of CDA
The planning purpose of Comprehensive Development Area zoning is to avoid or prevent 'piecemeal' or ad hoc development. Through controlling development according to an approved master layout plan, the government planner can ensure that the following objectives are achieved:
(a) the land uses for a certain area are rationally arranged to achieve major planning targets (such as introduction of key facilities, public housing or urban regeneration);
(b) the planning of such uses is sufficiently comprehensive to meet modern planning standards; to avoid undue land use incompatibilities; and (c) the build forms of the uses are harmonious as well as being
architecturally and environmentally sensitive.
However, CDA zoning is a blow to individual proprietors within the zone as they have to agree to a master layout plan for the entire zone (or at least a substantive part of it). This master layout plan must go through the planning and lease modification procedures successfully (as in the case under review) before development or redevelopment can carry out.
The CDA zoning compromises private property rights for individual property owners to develop or redevelop their land holdings. One's rights become contingent not only on the agreement of other owners, but also the permission of the Town Planning Board and the Lands Authority. As a result, owners may lose interest of redevelopment or renovation, frustrating the very 'intention' of the planner to improve the environment of the area. To overcome the transaction costs involved in private negotiation for joint-redevelopment, the government has set up the Lands Development Corporation (LDC) to speed up land assembly and development by forced re-entry or land resumption.
How Many CDAs Were There?
The Appeal Board's view is definitely reasonable. Yet, on the point about the number of CDA zones, it seems that the appellant had not been advised to exhaust all possibilities that might support their arguments. If
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
a road is a zone, notwithstanding the 'hook' symbol, there have to be two CDA zones. Where an existing road is located in a CDA, it is often expected or even planned that such road would be realigned. Lai King Hill Road is a major route which, from all practical points of view, cannot be realigned. Land use planning must take note of this physical constraint. This point was clearly demonstrated in the OZP S/KC/8 that subsequently turned out. Thus the section of the road, arguably, is a zone.
Where or What Was the True Planning Intention, Which Changed from Time to Time?
The view of the Appeal Board that the 'planning intention' of the Town Planning Board could 'change its mind' is rather worrying insofar as the ascertaining of the location (or source) and nature of planning intention are concerned. If planning intention is a matter of written law (i.e. the OZP as indicated in the Notes or the zoning plan itself), then it can only be changed after due procedure. If it is a matter of written planning policy, then it must be expressed clearly in policy documents (such as the Explanatory Statement or Town Planning Board Guidelines) available to the public as soon as it is changed. However, it seems that the Appeal Board in this case located 'planning intention' not in law or any other written policy document but in the very 'mind' of the Town Planning Board. It seems to me that the better view should have been that the true 'planning intention' was to designate a (or 2) CDA(s) and that intention had not changed even in OZP S/KC/8. What had changed was the relevant considerations for deliberating on a submitted master layout plan. This view does not subscribe to the apparently contrived argument which states that the first rezoning 'intended' to permit the appellant's proposal but later the Town Planning Board changed its mind without telling the appellant. Compare the logic adopted by the Appeal Board in this case and that in the Henderson case regarding the relevant statutory plan to consider.
A much more important issue here is that, most unfortunately, the Appeal Board was not invited to deal with the percentage of land an applicant owned so that his master layout plan would have been regarded as both comprehensive and feasible enough for implementation. In practice, it means little for a proposal in a CDA to be approved if that proposal has no practical means of implementation within 2 years of the planning approval.
Natural Justice?
The question of natural justice is in law a matter of fair procedure, not substance or merit. It is perfectly correct for the Town Planning Board to consider the objectors' views before deciding on the s. 17(1) review. However, as the Town Planning Board deferred its decision for the benefits
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113
of the objectors, it could also have given the appellant a chance to state his case on the date it met again. This would allow the appellant to at least clarify uncertain matters perceived by the Board members during their site visits before they made a decision on the application. Although this is not an expressed legal duty, it is a fair practice. It provides an opportunity of representation on the date of decision rather than relying on merits of the arguments of the appellants or the Town Planning Board. This would seem to be the gist of natural justice.
Relevance of Private Property Rights
It appears that the Town Planning Board was ready to entertain the requests of villagers in the Valley (who, like the appellant, are also members of the public) by removing the CDA encumbrances against their property rights with a further rezoning. Yet, it did not seem to have paid. much respect to the property rights of the appellant, having 'changed its mind' and rezoned the site from private to public uses. In this case, there is definitely a conflict of private interests between the owners north and south of the road. Unfortunately, there was no discussion of this 'public interest' (or, in fact, a balance of competing private interests) element in the case.
Questions:
1. How should the case have been decided if there was no objection to
the first rezoning?
2. How could the government implement its 'planning intention' to develop
public housing on privately owned land?
3. What is the use of the site now?
(See Photograph 4)
Photograph 4 Subject Site of the Sung Dynasty City Case in May 1998
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
• References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapter 2.
THE OTB CASE
•
·
Case Name: Unit E, G/F, Haribest Industrial Building, Au Pui Wan Street, Fotan, Shatin, New Territories [the OTB Case]
Planning Appeal Case No.: 05/92
Similar Cases: cases nos.
9
>
07/92, 13/92, 04 and 05/93, 11/93, 17/93, 19/ 93, 01/94, 05/94, 06/94, 09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/ 95, 19/95, 21/95, 26/95 and 04/96 [the Full Look, Pak Kong, Treasure Base (2), Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding appeals stated explicitly to be against planning intention;
>
15/92, 18/92, 19/92, 02/93, and 04 and 05/93, 13/93, 17/93, 12/94, 05/ 95, 16/95 and 22/95 [the, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Bowen road, and Treasure Base (2), Henderson, Shun Fat Container, Lai Sun Development, Planet Universal, Arzignano and Lucky Gain Cases] regarding the nature of planning and the market or private interest/public interest;
01/91, 03/92, 02/94, 12/94, 21/95 and 28/95 [the Alticosmic, Wo Yi Hop Road, -, So Cho Cheung, Lai Sun Development, Cheung Hing Lung and Fine Tower Cases] regarding application in Industrial Zones.
Nature of the Case: renewal of planning permission; Column 2 uses, bank use in Industrial Zones; planning intention: found in lease conditions.
Date of s. 16 application: 26 June 1991
•
Date of Hearing: 14 September 1992
•
Date of Decision: 25 September 1992
•
·
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Mr D.F.L. Turner of Overseas Trust Bank Ltd. for the appellant
Decision: Appeal dismissed
Planning Appeal Cases
Rules Laid down by the Decision:
115
Banks in Industrial Zones shall be channelized to designated commercial centres in the same industrial area.
Background:
The subject site was at Haribest Industrial Building (Haribest) in Au Pui Wan Street, Fo Tan, which was within an Industrial Zone in the draft Sha Tin Outline Zoning Plan No. S/ST/5 (the OZP). The appellant, the Overseas Trust Bank limited (OTB), obtained a three-year temporary permission to run a branch at unit E on the ground floor of Haribest which they owned. The permission was granted as there was then no suitable alternative commercial accommodation in the vicinity.
OTB made a s. 16 application for a renewal of the three-year approval and was rejected both in the first instance and in the s. 17(1) review.
Arguments:
The appellant argued that:
(a) OTB found Haribest more convenient to their customers, who needed
to handle huge amount of cash, to other locations;
(b) relocation to Shatin Galleria, a commercial development with a lease condition that at least 1500 m2 (gross) had to be reserved for bank use, was less convenient to customers;
(c) Shatin Galleria was also unsuitable because the size was smaller and
rentals dictated by its landlord.
Reasons for Decision:
The Appeal Board dismissed the appeal on the followings grounds:
The Planning Intention Was That Banks Should Operate in Shatin Galleria
Having regard to the general planning of Fotan, the planning ‘'intention' was to have one single commercial centre, Shatin Galleria. This centre should be the correct location for banks, as reflected in its lease conditions. Renewal of the permission to stay in Haribest would jeopardize the 'integrity of planning'.
Other Banks Had Moved
Three other banks in the industrial area had moved to Shatin Galleria.
Shatin Galleria Was Not an Inconvenient Location
Shatin Galleria was not an inconvenient location as it was within 3- minute walking distance of Haribest.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Appellant's Hardship Doubtful
The arguments about size or rents carried little weight. Banks were better able to deal with their landlords.
Need to Uphold Integrity of Planning
Permitting the application would set a bad precedent and amount to 'throwing planning out of the window'.
Comments:
What Was the Purpose of Controlling Bank Uses in Industrial Buildings?
The reason for regulating commercial activities (such as office or banking) is definitely one of economical rather than environmental.
Industrial premises are cheaper, bringing the government less land premiums. If they are used for commercial activities, it will compromise government revenue and will be unfair to those operating in land held under commercial leases. Besides, this will also reduce suitable industrial floor space for ordinary industrial operators.
In old industrial areas like San Po Kong, the market reveals that there is a strong industrial demand for bank services and many ground shops in industrial buildings have been used as banks.
In Shatin, a modern new town, the planner has apparently reserved land for commercial activities in designated zones within individual industrial centres, such as Fo Tan. The Appeal Board is definitely correct in its interpretation of the Town Planning Board's 'intention' for consolidating commercial uses in designated location. However, whether such a 'planning' intention is truly an objective 'one' or realistic in economic terms, even with a very supportive Appeal Board policy, is another question. These are discussed below.
What Did the Appeal Board Decision Achieve from a Planning Point of View?
The decision definitely prevented OTB from operating bank services in Haribest within an industrial zone. However, there is no guarantee that OTB or any other new banks will go to the Shatin Galleria, as relocation would depend on mutual agreement between OTB and the management of Shatin Galleria. What would have been the Appeal Board's decision had OTB attempted but failed to obtain a lease in Shatin Galleria?
What Was the True Planning Intention?
As mentioned above, the Appeal Board inferred that there was 'planning intention' to consolidate banks in Shatin Galleria. Such inference was
Planning Appeal Cases
117
based on the drafting of the lease conditions for Shatin Galleria. The Appeal Board's view was of course a reasonable one. However, how do lease conditions relate to planning intention? Some explanation has to be given. Unless it could be demonstrated that the drafting of the lease was intended to express a conscious planning policy of replacing banks in factories, Shatin Galleria could have been merely an additional commercial premises for banks. The belief that Shatin Galleria was intended to replace, rather than merely to augment existing banks, needs to reconcile with the fact that 'bank' remained a Column 2 use for an industrial zone in the OZP. Does this mean that the OZP's intention to permit banks in factories had changed? It was most unfortunate that neither the relevant Town Planning Board Guidelines for banks in industrial buildings nor the relevant sections of the Explanatory Statement in the OZP about Industrial Zones had been referred to.
The fact that three banks had moved to Shatin Galleria might result from the refusal of planning permission. It is not necessarily an indication of voluntary or economically optimal outcomes. If the purpose of planning is to reduce the transaction costs of using the entirely free market, then a designated office centre can be regarded as a provision of extra options rather than a trade restriction device — which has not been the prevailing economic policy of the government. Otherwise, as mentioned, why should bank use remain in Column 2 in the first place? Given the fact that the items in the Notes for each type of zones in different OZPs often vary, one can hardly be logical to assert that it is not the intention of the OZP (in fact it is a written notice, rather than an teleological (as the word 'intention' suggests) inference about a specified use) to allow bank use in an industrial zone in principle. To reject a proposed bank use, one cannot rely on reasons which suggest that, categorically, banks should go to somewhere else! If the real 'planning intention' had been to relocate the banks away from factories, then the OZP was its so poorly drafted that such an intention could not be observed by one simple reading of it. One has to try to make an application for that use and learns afterwards that the Town Planning Board does not think so. This raises a fundamental jurisprudential question: the law is not known to the public right at the time it is promulgated.
Bearing in mind the common sense that 'bad development', and more importantly, 'poor planning' should be 'thrown out of the window', the Appeal Board in this case had apparently been poorly advised as far as the rationale of planning was concerned. Is planning in Hong Kong, as a laissez-faire market economy, necessarily intended to be as restrictive as the case was decided? Or, in fact, could planning have assumed another dimension which was more friendly to voluntary business decisions insofar as they did not involve adverse environmental impact? The apparent simplicity of this case belies the interventionist planning ideology of its decision.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Relevance of Private Property Rights
This case is significant in which lease conditions were regarded as relevant planning considerations.
Question:
1. What is the use of the subject property today?
(See Photograph 5)
12
Photograph 5 Subject Site of the OTB Case in May 1998. (Would a bank
be of more beneficial use?)
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 5 and 6.
Town Planning Board, TPB PG-NO. 1A, Town Planning Board Guidelines for Application for Office and Showroom Uses in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', September, 1997.
(This set of guidelines now supersedes those, TPB PG-Nos. 1 and 6, below in force when the case was decided.)
Town Planning Board, TPB PG-NO. 1, Town Planning Board Guidelines for Application for Showroom Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', January, 1991.
Town Planning Board, TPB PG-NO. 6, "Town Planning Board Guidelines for Application for Office Use in Industrial Buildings within Industrial Zone under Section 16 of the Town Planning Ordinance', December, 1990.
Planning Appeal Cases
THE FULL LOOK CASE
119
Case Name: Ma Miu Road, Yuen Long, New Territories [the Full Look Case]
Planning Appeal Case No.: 07/92
Similar Cases: cases nos. 04/92, —, 10/92, 15/92, 04 and 05/93, 13/93, 17/93, 08/95, 16/95, 21/95 and 01/97 [the Sung Dynasty City, —, Treasure Base (1), Ultra Force, Treasure Base (2), Henderson, Shun Fat Container, Yin Ning Savings, Arzignano Leather, Cheung Hing Lung and Connie Law Yuk Wah Cases] regarding Town Planning Board or Appeal Board procedures;
−, 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 and 01/97 [the —, 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 Lung, Wong Yee Fai (2), Fine Tower, Container System, Rightlane Investment and Connie Law Yuk Wah Cases] regarding location of planning intention (in Explanatory Statements of statutory plans);
05/92,, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94, 06/94, 09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95, 21/95, 26/95 and 06/95 [the OTB, Pak Kong, Treasure Base (2), Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wong Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding appeals stated explicitly to be against planning intention;
04/92 and 11/93 [the Sung Dynasty City and Shell Hong Kong Cases] regarding location of planning intention (in the opinion of District Planning Officer (DPO) before the Appeal Board);
05/92, -, 13/92, 04 and 05/93, 11/93, 17/93, 19/93, 01/94, 05/94, 06/94,
09/94, 11/94, 12/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95 [the OTB, -, Pak Kong, Treasure Base (2) and Shell Hong Kong, Shun Fat Container, Ever Need, Tang Sai Hung, Tong Kam Wong, Ng Siu Wing, Lee Yiu Kam, Wing Yee Fai (1), Lai Sun Development, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jeyway Civil, Lo Kwok-wai Cases] regarding appeals stated explicitly to be against planning intention;
01/91, 02/92, 03/92, —, 13/93, 10/94, 02/95, 05/95, 07/95, 08/95 [the
120
•
Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Alticosmic, Conduit Road, Wo Yi Hop Road,, Henderson (not), Sun Link Properties, Charming City, Planet Universal, Delight World, Yin Ning Savings Cases] regarding excessive development intensity;
"
04 and 05/93, 11/93, 16/93, 19/93, 01/94, 09/94, 05/95, 07/95 and 28/ 95 [the Treasure Base (2), Shell Hong Kong, Naturaluck, Ever Need, Tang Sai Hung, Lee Yiu Kam, Planet Universal, Delight World and Fine Tower Cases] regarding incompatibility with adjoining uses, environment/development;
03/92, ——, 15/92, 18/92, 19/92, 13/93, 16/93, 14/94, 28/95 and 04/96 [the Wo Yi Hop Road, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Henderson, Naturaluck, Sanyear Investment, Fine Tower and Container System Cases] regarding adverse environmental impact;
04/92, 08 and 09/92, 15/92, 18/92, 19/92, 10/94, 05/95, 07/95, 08/95 [the Sung Dynasty City, —, Yuen To-shing and Yuen Shu-ling, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Sun Link Properties, Planet Universal, Delight World, Yin Ning Savings Cases] as regards the meaning of ad hoc and comprehensive development.
Nature of the Case: power of the Appeal Board to confirm, reverse or vary the decision appealed against; planning unit; compatibility of land uses and building heights; commercial/residential development in GIC Zone; programme of GIC uses; modern build forms of G/IC uses; New Territories Exempted Houses (NTEH) ('small houses'); DD lots, agricultural lots, house lots and garden lots; planning intention: in opinion of District Planning Officer (DPO), Explanatory Statement of OZP; Column 2 uses, interpretation of Notes of OZP, Town Planning Board Guidelines; Hong Kong Planning Standards and Guidelines (HKPSG), planning blight, land use compatibility, build forms, Engineering Conditions, traffic impact, bad precedent.
Date of s. 16 application: 14 August 1991
Date of Hearing: 12, 14 and 16 October 1992
Date of Decision: 28 October 1992
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Mr Dennis Chang for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) Private development in G/IC Zones even without government programme of resumption or development is generally disallowed (where there is justification from the point of view of 'balanced development').
Planning Appeal Cases
•
121
(b) Development bulk in G/IC Zones needs to take into account the build forms in the vicinity (even where there is no OZP plot ratio or building height restrictions).
Background:
The subject site fell within a G/IC Zone in the draft Yuen Long Outline Zoning Plan No. S/YL/1 (the OZP) which was published in the gazette in April 1991. In the Notes of the OZP, flats, offices, retail shops, etc. were Column 2 uses.
Before the OZP came into existence, the appellant had acquired in November 1988 five lots of lands with a total area of 1265 m2 held under a Block Crown lease in DD No. 120. The lands were either agricultural, house or garden lots. They were located close but had no public road access to Ma Miu Road. Access to the road had to go over Crown land. In 1988 there was no statutory town plan but an administrative Yuen Long Layout Plan zoned the subject site as Government, Institutional and Community (G/IC) use.
In August 1991, the appellant made a s. 16 application for developing a mixed commercial-residential development on his property and a small portion of the Crown land between his property and Ma Miu Road. In the application, the appellant stated that upon planning approval, the developer would apply for a land exchange to make up a total site area of about 2200 m2.
The Town Planning Board rejected the planning application in October 1991 and again in a planning review.
The minutes of the review hearing recorded the appellant's statement:
The present review was not to seek the Board's approval on the submitted scheme but to obtain a clear understanding of the Board's reasons for rejection so that a fresh application could be made to address the issues. (para. 10)
On appeal, it is recorded that the appellant made clear that there was a 'change of mind' (para. 13) by putting forward a 'concept plan' containing proposals that differed from the original s. 16 application. In an 'appeal statement', the appellant stated:
If members of the Appeal Board support that high-rise commercial/ residential development is suitable at the subject site, a fresh planning application will be made to address the remaining technical issue such as preservation of trees and mitigation of noise as illustrated in the concept plan.
Arguments:
The appellant argued that:
(a) there was no definite use which the government had planned for in
the GIC Zone; this created planning blight by sterilizing land;
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(b) there was a shortage of commercial/residential buildings in Yuen Long; (c) many G/IC sites in the vicinity did not utilize land intensively and were non-optimal land users compared to high-rise, high-density development;
(d) the site was close to the Yuen Long Town centre and major transport facilities; hence, it was suitable for commercial/residential development; (e) the proposed tower blocks would harmonize with the high-rise
commercial/residential development in the vicinity;
(f) in the proposed project, the office tower block would screen the traffic noise which might affect the residential units and measures would be taken to minimize the felling of mature trees;
(g) only one car park space for every 5 flats and 6 car parks for all the office and commercial portions of the proposed development would help minimize traffic generations.
In rejecting the s. 16 application, the Town Planning Board held that: (a) the proposed high-rise commercial/residential development was not compatible with the adjoining low density low-rise 'G/IC' development; (b) the proposed development was not in line with the planning intention
of the draft Yuen Long Outline Zoning Plan;
(c) the area was not suitable for residential development due to its exposure to traffic noise and no noise mitigation measures had been proposed in the submission;
(d) the proposed development would involve the felling of well-grown trees.
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
Existing Development in the Planning Unit Was Low-Rise; Existing High- Rise Development Was Too Far Away
The Town Planning Board's argument of incompatible building height was correct as the subject site fell within the same 'planning unit' as the adjacent development 'consisting mainly of low-rise buildings such as schools, a church, government offices and a police station'. (para. 15) Although it was factually correct that there were high-rise commercial/ residential development in the neighbourhood', this was irrelevant and 'so far away'. (para. 16)
Proposed Sale of Existing G/IC Site for C/R Redevelopment Was Irrelevant
The appellant's argument that there had been a District Office proposal to sell the existing Yuen Long Jockey Club Clinic for commercial/residential redevelopment was irrelevant because, as District Planning Officer explained, 'this was nothing more than a proposal and it did not come from the Planning Office.' (para. 17)
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Not in Line with the Planning Intention of the OZP as Indicated in the Explanatory Statement
The Town Planning Board's argument of planning intention was also correct. According to the Appeal Board, the Explanatory Statement to the OZP indicated that 'control of land use is necessary to achieve the objective of 'developing Yuen Long into a reasonably balanced new town and a regional centre for the northwest New Territories'. (para. 20) The Appeal Board formed the opinion that for this purpose, it was necessary to set aside areas not only for specific 'G/IC' use but also for undesignated G/IC use. As the District Planning Officer suggested, one possible use of the subject site could be an old people's home. There were four sites within the area covered by the OZP.
While the argument of sterilizing land might be true (para. 21), it had to be judged with reference to the planning intention for the site. At any rate, the development potential of the site under the Block Crown lease was limited.
Alternative Uses Were Also Low-Rise and There Was Little Hardship
The only feasible development on the site would be New Territories Exempted houses (NTEH) (small houses) with a total GFA of 463 m2. This would be low-rise. Such alternative development was very much different from the proposed Commercial/Residential development at a plot ratio of 9.5. 'Such "ad hoc" commercial/residential use in a G/IC Zone was, in the opinion of Mr Ng (the District Planning Officer), wholly incompatible with the planning concept for the area. We accept Mr Ng's opinion in this regard.'
Proposals to Mitigate Traffic Noise Mitigation and Minimize Felling of Mature Trees Was 'Wholly Academic'
The Appeal Board came to the view that this was not a case where the Town Planning Board had approved a Commercial/Residential development with conditions for mitigating traffic noise or tree felling and the applicant made an appeal against these conditions. Instead, this is a case where TPB has rejected the proposal as fundamentally objectionable.' (para. 24) Hence, the Appeal Board saw no relevance in these proposals, which were different from those suggested in the original s. 16 application and dismissed them as being 'wholly academic'.
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