• Comments:
Why and How to Control Building Heights?
Planners control building heights for various reasons. The most important and objective reason is to control development intensity so that the
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development does not overstretch the infrastructure (such as sewerage, drainage or transport) or local facilities (such as open space, primary school places and medical services). Various types of impact assessment address these issues. As for the point about burden on facilities, an assessment of G/IC provision according to the Hong Kong Planning Standards and Guidelines (HKPSG) is essential.
Another arguably subjective reason, independent of the former, is to ensure that the general building profile of an area is low-rise so that (a) it appears to be in harmony with the countryside or the character of the wider region; (b) it does not screen major landmarks, ‘fung shui' or natural features behind or along a certain visual axis; and (c) it is in harmony with the character of an adjoining building(s) of great architectural merits. Interpretation of all these items in general are guided by relevant chapters in the HKPSG. Item (b) is more applicable in a rural rather than an urban setting, even where the latter may be close to country parks. A new town is definitely an urban area.
Irrespective of the reasons, planning or control of building heights must be concrete, certain and ‘operational' (amenable to planning controls and enforceable). The most useful tools are lease restrictions (including Engineering Conditions in case of government development); statutory plot ratio and building height controls; and Development Statements or new town planning statements which must be considered by the Town Planning Board when exercising discretion.
What Did the Appeal Board Decision Achieve from a Planning Point of View?
This decision simply prevented a development, which could have made a positive contribution to help solve the housing problem of Hong Kong, from taking place. Meanwhile, the site was left vacant and there has not been any definitive government resumption or Public Works Programme (hereinafter referred to as 'programme') for the zone. Planning blight in its real sense has occurred.
The Town Planning Board argued that preservation of the subject site for low-rise G/IC development was in line with the existing low-rise G/IC development in the vicinity. This argument, however, was spurious and the Appeal Board was poorly advised.
There was patently no statutory height restrictions or plot ratio control of government development or redevelopment of G/IC sites either under the Buildings Ordinance or the OZP. Nor were the existing G/IC sites protected by law as monuments. The District Planning Office had no right or means within the context of the OZP to prevent high-rise redevelopment of existing G/IC sites. The only means, if any, available to the government to control building forms would likely be those stipulated in the Engineering Conditions or condition of the land grant for the existing G/IC development.
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There was unfortunately no similar reference (see the OTB case) to the Crown leases for finding out the 'planning intention'.
What Was the True Planning Intention?
The assertions advanced by the Town Planning Board regarding low-rise development and 'balanced development' were doubtful and unsubstantiated. There was no explicit urban design or land use intensity policy statements in the Explanatory Statement or any planning statement for the Yuen Long New Town. Nor was there any explicit or implied building height ceilings/plot ratio restrictions in the Notes of the OZP.
Had the OZP stipulated height restrictions or plot ratio control, the intention regarding development intensity would have been crystal clear. As it stood in the present case, the 'planning intention' appeared to be the discretionary judgment of a District Planning Officer made on what should happen for the site and its environment. It was not embodied in the OZP. The grounds of such a judgment were thin. It was not backed by any written policy, statutory statement or objective assessment. There was no reference to any Development Statement, new town plan, or the HKPSG.
The argument of 'balanced development' was simply overblown and double-bound as it could also be utilized to support the proposal. Consider this statement: 'as there are so many under-utilised and "non-programmed" G/IC sites, there must be a lot of excessive capacity in terms of community services. To exploit under-utilised road infrastructure and land, let us put in more housing stock badly needed by the community!' When I was a town planner in the government, I had come across many examples using this alternative argument. To decide which line of argument is more reasonable will depend on an understanding of the nature of redevelopment in Hong Kong. There may also be a policy presumption in favour (or against) private initiatives.
It has been an observed trend that all major G/IC facilities, such as police stations, social welfare centres, clinics, government offices, markets and even churches, are high-rise in order to maximize land utilization. When the existing G/IC facilities near the subject site were constructed, Yuen Long was still a 'market town' with a huge agricultural hinterland. After the application had been made, it became a designated 'new town' meant to be a high-rise, high-density urban core which supported the suburban development outside. It is, therefore, surprising to imply that 'small house' development on the site was better than high-rise commercial/ residential development. Apparently, the Appeal Board was counselled to subscribe to a backward view of Yuen Long as a market town still surrounded by paddy fields. It was not advised to envision Yuen Long as a modern new town which should shake off obsolete G/IC facilities.
From a reasonable man's point of view, one way to achieve a 'balanced development' of community facilities for Yuen Long New Town's growing
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population would be to intensify land use activities in situ. Similar measures have been adopted in various planning contexts: Tsuen Wan New Town, Quarry Bay (near the Quarry Bay Country Park), Stanley, Chai Wan, Aberdeen, Sheung Wan, Wanchai, and so on. High-rise development or redevelopment is, therefore, desirable both from the planning point of view as well as from the taxpayers' perspective.
Finally, contrast the approach here with the Building Appeal Tribunal's decisions as regards 'the immediate neighbourhood' consideration under s 16 (1) of the Buildings Ordinance.
Did Mitigation Measures Have Academic Reasoning?
Apparently none of the members of the Appeal Board was an academic. The word 'academic' used in the decision statement, with all due respect, was employed in a very condescending sense. The proposed measures could be irrelevant but they were professional proposals made in light of the environmental chapter of the Hong Kong Planning Standards and Guidelines (HKPSG). The better view would have been that the review submitted had not been in order as it contained a proposal which was different from the original s. 16 application.
Relevance of Private Property Rights
Hardship was mentioned in the Appeal Board' decision. However, it seems that even if hardship was enormous, the Appeal Board would still dismiss the appeal. Compare the 'hardship' in this case and the 'disappointment' in the Sung Dynasty City case.
Questions:
1. What are the relevant policy statements about build forms in Yuen
Long New Town?
2. What is now happening with the existing G/IC sites?
(See Photographs 6a and 6b)
•
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 3.
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
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A
Photograph 6a
:
Photograph 6b
Photographs 6a and b Subject Site and 'Environ' of the Full Look Case in May 1998
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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
Book:
Bristow, Roger. Hong Kong's New Towns: A Selective Review. Hong Kong:
Oxford University Press, 1989.
THE YUEN TO-SHING CASE AND THE YUEN SHU-LING CASE
Case Name: No. 27 Mok Tse Che, Ho Chung, Sai Kung, New Territories [the Yuen To-shing Case]
•
Planning Appeal Case No. : 08/92
•
Case Name: No. 32 Mok Tse Che, Ho Chung, Sai Kung, New Territories [the Yuen Shu-ling Case]
Planning Appeal Case No.: 09/92
Similar Cases: cases nos. 11/93 [the Shell Hong Kong Case] regarding priority for small house policy;
"
06/94, 18/95 | The
Ng Siu Wing, and Jetway Civil Cases] regarding small house development;
13/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 01/94, 05/94, 09/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/95, 19/95 and 21/95 [the Yuen To-shing and Yuen Shu-ling, Pak Kong, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans;
"
03/92,, 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 21/95 [the Wo Yi Hop Road, On Luk Tong, Good Luck, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Treasure Base (2), Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World, Yin Ning Savings and Cheung Hing Lung Cases] regarding adverse traffic/access problems; 04/92, 07/92,, 15/92, 18/92, 19/92, 10/94, 05/95, 07/95, 08/95 [the Sung Dynasty City, Full Look,, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Sun Link Properties, Planet Universal, Delight World,
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Yin Ning Savings Cases] as regards the meaning of ad hoc and comprehensive development.
Nature of the Case: Interim Development Permission Area (IDPA) Plans; Development Permission Area (DPA) Plans; objections to statutory plans; unspecified areas in IDPA and DPA Plans; Village Type Development Area Zone; small house policy; village environs; ad hoc development; transport considerations.
Date of s. 16 application: 23 August 1991 (see Table 2.3)
Date of Hearing: 7, 8 and 9 December 1992
Date of Decision: 16 January 1993
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Mr Poon Shiu-chor for the appellant of case no. 08/92
(c) Mr Godfrey Wong Sui-lit for the appellant of case no. 09/92
Decisions: Appeals dismissed
• Rules Laid down by the Decision:
Ad hoc development proposals in 'unspecified areas' in IDPA or DPA Plans shall generally not be permitted (in order not to pre-empt the options open to the planners in the preparation of the OZP).
Background:
The subject sites were agricultural lots which fell within an 'unspecified' area near a 'Village Type Development' zone for Mok Tse Che Village in Ho Chung Development Permission Area Plan No. DPA/SK-HC/1 (the DPA Plan) gazetted on 12 July 1991, which amended the Ho Chung Interim Development Permission Area Plan No. IDPA/SK-HC/1 published in the gazette in August 1990. Vehicular access to the village from Hiram's Highway was provided by a track which looped round Wo Mei Village. The government was examining the feasibility of constructing a new route to Mok Tse Che which would bypass Wo Mei Village. Neither of the applicants had made any objection to the DPA Plan or proposal to include their lands into the V Zone when the DPA Plan was published in the gazette. The applicants' applications for developing 6 small houses were rejected by the Town Planning Board in the first instance and in the review hearing. Both made an application for a planning appeal and both appeals were heard together by the Appeal Board.
Arguments:
The Town Planning Board held that:
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(a) 'the cumulative effect of [the] developments proposed . . . would overload
the substandard Mok Tse Che access road' (para. 7);
(b) the sites were close to two streams; entailing sewage disposal problems and prospective stream course diversion works should not be pre- empted.
The Appellant argued that the Town Planning Board should have consulted relevant government departments about the progress of the proposed route before concluding that the developments would overtax the existing access.
Reasons for Decision:
The Appeal Board dismissed the appeal on one policy and two technical grounds:
Presumption against Ad Hoc Development in Unspecified Areas
The Appeal Board held that as detailed analysis of land use patterns and study of infrastructural requirements were in progress with a view to refine the DPA Plan into an OZP, ‘any ad hoc development outside of the categories expressly permitted in the Notes to the plan would, in the meanwhile, have the effect indirectly of pre-empting the options open to the planners. This, in principle, must be regarded as undesirable from the planning point of view.' (para. 5)
Not Sure When the New Access Was Available
The appellant's argument could not be accepted and there had not been any suggestion that the new route would be in place soon. As regards planned improvement in infrastructure in the area, 'there is no guarantee that highway services would take precedents over other services in contest for limited financial resources.' (para. 8)
Development Might Pre-Empt Stream Course Diversion Works
Even though the problem of sewage disposal problems could be overcome by proper sewage treatment measures, the developments would pre-empt prospective stream course diversion works in considering 'the future layout of the area'. (para. 9)
Comments:
What Was the True Planning Intention for Unspecified Areas in IDPA and DPA Plans: Against Ad Hoc or Major Development?
The Appeal Board seemed to have announced that there was an established policy of a presumption against the so-called 'ad hoc' development in unspecified areas. There was little indication of such legislative intent in
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the Legislative Council debate about the Town Planning (Amendment) Ordinance. Nor was there any statement in the Explanatory Statement of the DPA Plan or any Town Planning Board Guidelines which suggested that small-scale development should be in principle ruled out in unspecified
areas.
―
One could argue that very small-scale developments, involving three houses, should be given consideration on their individual merits whereas large-scale development with major impact should be ruled out as a matter of prudent planning policy - if the aim is to avoid pre-empting planning in the OZP. If small-scale or ‘ad hoc' development was truly intended to be ruled out in the IDPA or DPA Plans, that would have been expressed in the Explanatory Statements or, better still, in the Notes or their 'remarks'.
In this case, an apparently relevant consideration was the status of the appellants were they male ‘indigenous villagers' who intended to live in the small houses with their families, or were they developers who had made arrangements to assign small house rights? The Appeal Board realized that the small houses would be sold as 18 independent units. Yet, it was also advised to hold that the status of the appellants, which was not explored in the course of appeal, had 'no relevance to an appeal under s. 17B of the Town Planning Ordinance' (para. 4). In fact, such status was relevant at least to the extent that traffic generation by 18 households would be radically different from that by 6. The Appeal Board, however, was keen on the traffic which might be generated by the developments.
If the Appeal Board had also considered that had the appellants made objections or counter-proposals when the IDPA or DPA Plans were published in the gazette (so as to include their lands in the V Zone), their decision would have been different. The objection to ‘ad hoc' development would also have been purely doubtful. A very important policy consideration was to decide whether the subject site fell within 'village environs' (see analysis below.) Unfortunately, the Appeal Board was not referred to this point.
No Need to Check the Progress of the New Route?
The progress of the new route is a relevant and material consideration. An affirmation of this by the appellant or the Town Planning Board was essential, though it is unlikely that the proposal would be implemented. [The issue can be easily classified: look up the relevant Public Works Programme].
No Guarantee That Highway Services Would Take Precedent?
The Appeal Board had been poorly advised in this respect as it is a normal engineering practice to run major utility services such as gas, telephone, water supply, and sewerage underneath highway reserves. This practice would make sense in both planning and finance. If it is intended
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to be a major layout planning exercise, roads will be a priority. Without access to roads, other local utility services or land uses simply cannot function properly.
Is Access a Reason for Rejection?
Without disputing the wisdom of the Town Planning Board regarding its judgment about access problems, one should not lose sight of the fact that those small house developments in the 'V' Zone are also served by the same route! In terms of traffic circulation, the key constraint in this case seems to come from the downstream junction capacity rather than the width of the route per se. Route width for low level of flows can be handled by bypass bays in suitable locations. A better advice to the Appeal Board would be one that works out the junction constraint of the route and the threshold of traffic generation. If the entire V Zone would still leave some excess capacity upon full development, then the appellants might have a stronger case. Unfortunately, it seems that they did not have the benefit of such professional support available to the government.
Small House Policy
The so-called 'Small House Policy' was introduced in 1972. A ‘small house' is a kind of New Territories Exempted House. It is expressed as a means to provide male adults of 'indigenous villages' in the New Territories housing on their private land or, in rare circumstances, Crown land. The so-called small house, exempted from control of the Buildings Ordinance if adhered to certain prescribed standards, is not 'small' by Hong Kong standards as it has a maximum floor space of 2100 square feet. This policy has been criticized by politicians on the grounds of sex discrimination as well as inequality in favour of New Territories villagers. The small houses upon development can be sold subject to time restrictions and/or payment of premium in the case of land being obtained from the Crown. The majority of the small house units have been in the hands of people who are not even villagers. As for the second reason, I have strong reservations because the policy was at that time not only a politically correct measure to minimize ‘local reaction' when the government decided to urbanize the New Territories after the political riot in 1967 (in the wake of the Cultural Revolution in mainland China), but it is also a reversion to the villagers their traditional rights based on imperial leases lost by legal fiction introduced by the British in 1887. This policy survives the reversion of the sovereignty of Hong Kong to China at midnight, 30 June 1997. It is entrenched in the Basic Law. In Lee Pui Wan v Wong Mei Ying Civil Appeal No. 49/97, which was tried in Chinese on 15 July 1997 and its judgment delivered on 4 September 1997, it was ruled that buy and sell of small house units was in the interests of the community as it contributed to the expansion of housing supply. The practical problem
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that needs to be resolved soon, which may mean the eventual destruction of the policy, is that there is simply insufficient private land suitable for small house development.
Under the small house policy, small houses generally should not be built outside the 'village environs' of an 'indigenous village' recognized by the government. When statutory planning was extended expressly to cover the entire New Territories, areas reserved with the 'planning intention' for small house development zoned 'Village' with 'Village Type Development'. Planners have no policy objection to small house development, which is a Column 1 use within such 'V' Zones. However, if the land in question is outside the 'village environs' in spite of its being zoned 'V', the Lands Department will not normally entertain an application for building small house. Due to coordination problems and/or oversight, much land has been so zoned. What should happen for land within the village environs but is not zoned 'V'? The policy intention of 'V' zoning is to reinforce the small house policy on a statutory basis for the benefit of the environment. Is this possibility an indication of an omission on the part of the government or a deliberate planning policy based on environmental considerations? In the present case, we do not know from the decision whether the subject lands were in fact within the environs. If they were, it could be argued that even though the appellant had not made an objection or a counter-proposal, as suggested by the Appeal Board, the cases would have been considered favourably by the Town Planning Board. The reason is that one shall not presume that the government intends to make a zoning proposal that goes against her small house policy.
Relevance of Private Property Rights
In spite of a statement to the contrary, the Appeal Board seems to have attached some weight to the fact that the small houses applied for would be sold. This was not unreasonable if the concern was the traffic implications, even though the court has no contempt and in fact supported such market transfer of rights.
Question:
1. Were the subject sites located within the 'village environs' of the Mok
Tse Che Village?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 2, 8, 9 and 10.
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Case:
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Small House Policy
Lee Pui Wan v Wong Mei Ying Civil Appeal Case No. 49/97 [case tried and
decision delivered in Chinese]
THE TREASURE BASE (1) CASE
•
•
•
Case Name: Lot Nos. 1410A and 1410B etc. in DD 114, Kam Tin, Yuen Long, New Territories [the Treasure Base (1) Case]
Planning Appeal Case No.: 10/92
Similar Cases: cases nos. 04/92, 07/92,
"
"
15/92, 04 and 05/93, 13/93, 17/93, 08/95, 16/95, 21/95 and 01/97 [the Sung Dynasty City, Full Look,
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.
Nature of the Case: validity of planning appeal; valid notification: means of communications; fax communications of the Town Planning Board decisions; planning consultants: as agents for service; powers of Appeal Board to extend time limits of appeals; intention of the legislature as contained in the Town Planning Ordinance.
Date of s. 16 application: 1 November 1991
Date of Hearing: 25 August 1992 and 2 October 1992
Date of Decision: 13 October 1992
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Mr David Wong of Messrs. Wong, Hui and Co., Solicitors for the
appellant
Decision: Appeal ineffective
Rules Laid down by the Decision:
(a) Communication of the Town Planning Board decisions by fax is valid notification provided that the transmission is actually received in a legible form.
(b) The business address of consultants for an applicant is comparable to the business address of a solicitor acting for a party in proceedings in the Supreme Court and hence is an address to which notification of the Town Planning Board decisions can be validly served.
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135
(c) Time for s. 17B appeal runs from notification to named agent in s. 16
and s. 17 review applications.
(d) Correspondence 'by fax and by post' is sufficient notice where the fax
message is received.
(e) If an agent in a s. 16 application represents that he is one to whom all correspondence shall be addressed, then he will be so addressed for the purpose of a review or appeal.
(f) The Town Planning Ordinance shall not be construed technically or
legalistically.
(g) The Town Planning Board has no power to extend time limits for an
appeal lodged in out of time.
Background:
The appellant, Treasure Base Development Limited (hereinafter referred to as "Treasure Base'), employed Toco Planning Consultants Limited (hereinafter referred to as the "Toco') to make a s. 16 application on 1 November 1991.
On 18 November 1991, s. 17B regarding planning appeal came into operation.
The application was rejected and Toco made an application for a review under s. 17 on behalf of Treasure Base on 13 January 1992.
The review affirmed the decision of the Town Planning Board and the decision was communicated by a letter dated 15 May 1992 transmitted by fax to Toco.
On 15 July 1992, Wong, Hui & Co., Solicitors (hereinafter referred to as 'Wong'), acting on behalf of Treasure Base, lodged a Notice of Appeal under s. 17B. The notice was received on the 61st day after the Town Planning Board's notification of its decision on the review hearing.
S.17B(1) provided that the notice of appeal must be made within 60 days after the notification of the Town Planning Board's decision under s. 17(6).
The Appeal Board decided to convene a hearing to determine the validity of appeal as a preliminary issue. Upon hearing, the Appeal Board decided that the appeal was ineffective.
Arguments:
The appellant argued on the following grounds:
(a) The consultant of Toco had not seen or traced in Toco's files any fax copy of the Town Planning Board's letter. In other words, Toco had not received the fax transmission. (This argument obviously had to be dropped because at the hearing, a copy of the letter was discovered amongst the papers in the consultant's files. That copy showed that the document had been faxed to and received by Toco on 15 May 1992 at about 12:35 pm. Mr Wong, counsel for the appellant, conceded that the notification of the decision of the Town Planning Board had indeed
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been faxed to and received by Toco on that day. The following arguments were advanced within the context of this admission.) (b) The notification to Toco was insufficient for the purpose of s. 17B because it should have been given directly to Treasure Base instead. Mr Wong drew an analogy to s. 8 of the Interpretation and General Clauses Ordinance and Order 65, Rule 5(2) of the Rules of the Supreme Court. As Treasure Base was a body corporate, the Town Planning Board should have sent the letter to the registered address of Treasure Base.
(c) Notwithstanding the fact that Toco was the stated ‘agent' to receive communications in the s. 16 application, notification should have been given to Treasure Base directly. The reason was that s. 17B did not come to operate until 18 November 1991 whereas the s. 16 had been made on 1 November 1991.
(d) Notification by fax transmission was insufficient for the purpose of communications under s. 17(B). The fax to Toco was simply a fore-warning that a letter by post was forthcoming. The appeal would be within time had posting of the letter been the only operative notification.
(e) The notification by letter dated 15 May 1992 was misleading because it contained the phrase 'by fax and by post'. Toco considered the letter by post was the real notice.
(f) A/S Rendal v Arcos Limited [1937] 3 All ER 577 ruled that communication to an agent is only prima facie evidence of notice to the principal which can be rebutted.
(g) Though Toco was empowered to receive correspondence on the applicant's behalf, such correspondence would not include a letter communicating the decision of the Town Planning Board.
(h) According to rule laid down in Pioneer Aggregates Limited v Environmental Secretary [1985] AC 132 at 140 H to 141 C, the Town Planning Ordinance should have been construed strictly in favour of the applicant. Notification of the Town Planning Board's decision under s. 17(6) had to be served on and received by the applicant. Service on an agent, even one who was duly authorized to receive service, was insufficient.
The Appeal Board rejected all the above submissions. The corresponding reasons against the appellant are presented below.
• Reasons for Decision:
Fax Message in Fact Received
(The facts were those stated in brackets in (a) of the preceding section and they are not repeated here.)
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Address of Consultants Comparable to Business Address of Solicitors Acting for Parties in Proceedings in the Supreme Court
Toco was described in the s. 16 application form as the agent to whom correspondence should have been sent and all communication from the Town Planning Board in connection with the s. 16 application had been addressed to Toco without objection by Treasure Base or Toco. Furthermore, the s. 17(1) review was lodged in by Toco on behalf of Treasure Base. The Appeal Board was of the view that if Order 65, Rule 2 of the Rules of the Supreme (now High Court) was applicable by way of analogy, the address of Toco could be compared to the business address of a solicitor who was acting for a party in proceedings in the Supreme Court. Notification to Toco was therefore a sufficient and proper notification.
Date of Operation of S.17 B Irrelevant: Time for s. 17B Appeal Ran from Notification to Named Agent in s. 16 and s. 17 review applications
Toco made an application for a s. 17 review on behalf of Treasure Base on 13 January 1992. Under s. 17B(1), time runs from notification of a decision under s. 17(6), which was in force on 1 November 1991. S. 17(6) does not specify the means a decision of the Town Planning Board under review has to be communicated. Since Toco acted for Treasure Base in making both the s. 16 and s. 17 applications, the Appeal Board regarded the Town Planning Board's letter dated 15 May 1992 as a sufficient compliance with s. 17 (6) of the Ordinance. That being the case, time was considered by the Appeal Board to have run from the notification to Toco and Treasure Base had 60 days within which to appeal. Based on the above reasons, the Appeal Board held that the fact that s. 17B(1) did not become operative until 18 November 1991 was irrelevant.
Fascimile Transmission Received in a Legible Form Was Valid Notification
The Court of Appeal, England, in Hastie and Jenkerson v McMahon [1990] 1 WLR decided that fax transmission was an alternative mode of service specified in Order 65, Rule 5(1) of the Rules of the Supreme Court, provided that the sender was able to prove receipt in clearly legible form.
Correspondence 'By Fax and By Post' Was Sufficient Notice Where the Fax Message Was Received
The Appeal Board held that correspondence expressed to be 'by fax and by post' was sufficient notice where the fax message was actually received. In any event, Toco had not been misled and the fax message was operative, otherwise the appellant 'would not have taken the trouble to allege (wrongly as it turned out) that it was never been received'. (para. 14)
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A/S Rendal v Acros Limited Distinguishable
A/S Rendal v Acros Limited was distinguished by the Appeal Board in that the House of Lords was dealing with 'a mercantile agent' whereas in the present case, the Town Planning Board was dealing with 'an agent who was responsible for a s. 16 application and the subsequent s. 17 review'. As Toco in the original s. 16 application represented that it was one to whom all correspondence should be addressed, then it would be correctly so addressed for the purpose of a review or appeal. 'Here, the position of Toco can be compared to the position of an agent for service. In that case, service on the agent is service on the principal.' (para. 15) In passing, the Board reckoned that in the appeal, Toco was described as 'the agent' on which service should be effected.
The Town Planning Ordinance Shall Not Be Construed Technically or Legalistically
The Appeal Board held that the Town Planning Ordinance should not be construed technically or legalistically, as that could not be the intention of the legislature. The Board considered that notification of the Town Planning Board's decision served on and received by an agent duly authorized was sufficient. There was no need for the notification to be also served on the applicant.
No Authority to Extend Time Limits
The Appeal Board agreed with the counsel for the Town Planning Board that the appellant was outside the time limits, which the Town Planning Board had no power to extend. The counsel for the appellant was also not able to find an authority to the contrary. Therefore, the appeal was ineffective.
Role of Planning Consultants
(a) Are planning consultants similar to solicitors acting for parties in
proceedings in the Supreme Court?
(b) What is the role of planning consultants as agents for service?
The main thrust of the Appeal Board's decision hinges on the notion that the planning consultant is 'an agent for service' comparable to that of a solicitor to his client.
It is highly doubtful whether the relationship between the planning consultant (or professionals such as the surveyor or architect) is comparable to that between a solicitor and his client. This doubt concerns a number of key dimensions. As experts in law, the contractual or agency relationship between the lawyer and his client is seldom unclear to the extent that it is standard practice for the former to demand money on account before any
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service is undertaken. The solicitor cannot charge an incentive bonus or advertise his services. As a matter of legal practice and relevant court orders, the solicitor's business address is the appropriate address for legal communications. However, the same contractual relationship or established practice cannot be said to hold truth for planning consultant services. The planning consultant may charge an incentive bonus and advertise his service but is seldom able to demand money on account. It is common practice that in the contract of service for a s. 16 application, both the client or the consultant has an option to (and not to) proceed with the next stages in the statutory procedures (i.e. s. 17(1) review and s. 17B appeal). Sometimes, the duty of the consultant owed to the client is unclear when (a) professional fees expressly stated in the contract to be paid timely are outstanding; but (b) the client is running out of time to consider whether he shall exercise his statutory right of a review or appeal hearing. Does the consultant in this situation owe any duty to the client for passing on information about the client's application the former receives when apparently there has been a breach of contract?
-
The appellant's counsel certainly has a point in making a distinction between notification of the consultant and that of the applicant. The standard form for a s. 16 application requires the name, address and signature of the 'agent', where applicable, to be filled in. The address is for the purpose of communication concerning the 'application'. One cannot presume that this implies that the ‘agent' is also retained for handling instructions other than 'making the application'. Besides, the main issue here is not whether the consultant is authorized to make the application (not only because it is unlikely that a professional will do anything for an non-existing client but it is also because anyone can make a planning application even without authorization). The main issue is really whether the same agent has been authorized or duty-bound within his or her 'agency contract' to handle matters after a decision has been made by the relevant Boards. The agent may well be expected to clarify details of the application not necessarily to relate messages about the decisions- unless the same consultant has undertaken this task and indicated this duty in the application form. However, there is no request for such key information about the scope of service in the standard form for a s. 16 application. There is simply no standard form in respect of a s. 17(1) review or s. 17B appeal. It is too speculative to infer a duty of communication by the consultant on his or her client regarding the latter's application, rights of review or appeal as the consultant is authorized to make an application.
Evidence of Fascimile Transmission Received in a Legible Form
The issue here is the evidence of such receipt. In the present case, there is little doubt. However, it is generally difficult for the sender to prove
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actual receipt by the intended receiver. Mail by double-registration is a more certain method.
Time for s. 17B Appeal Ran from Notification to Named Agent in s. 16 and s. 17 Review Applications
See the preceding section. The key issue is whether it is within the scope of service of the consultant and whether there is an indication or knowledge of such a service.
Correspondence By Fax and By Post' Was Sufficient Notice Where the Fax Message Was Received
See the preceding sections.
Was Delivery of Messages 'By Fax and By Post' Similar to That by Hand and by Post'?
Delivery by hand is superior to delivery by fax as the former is an actual notification whereas the latter requires proof of receipt, which is more difficult to obtain.
If an Agent in a s. 16 Application Represents That He Is One to Whom all Correspondence Shall Be Addressed, then He Will Be So Addressed for the Purpose of a Review or Appeal
See the preceding sections.
Planning Consultants as Agents for Service
See the preceding sections.
The Town Planning Ordinance Shall Not Be Construed Technically or Legalistically
The Appeal Board apparently adopted a more flexible approach regarding the mode of notification employed by the Town Planning Board (see preceding sections) but maintained a technical and legalistic stance with the time limits.
Questions:
1. Would it make a difference if there was no evidence that Toco did
receive the fax message?
2. Why hasn't the Town Planning Board sought to avoid repetition of
similar problems by amending the s. 16 form; by issuing the Town Planning Board Guidelines, or better still, clarify matters by making relevant Town Planning Regulations, or amending the Ordinance?
Planning Appeal Cases
References:
Ordinances and Rules:
Means of notification
Interpretation and General Clauses Ordinance Rules of the Supreme Court
Cases:
Means of notification
A/S Rendal v Acros Limited [1937] 3 All ER 577
Hastie and Jenkerson v McMahon 1990 1 WLR 1575
141
Pioneer Aggregates Limited v Environmental Secretary [1985] AC 132 at
140 H to 141 C
THE GOOD LUCK CASE
•
Case Name: 193 Castle Peak Road, Cheung Sha Wan, Kowloon [the Good Luck Case]
Planning Appeal Case No. : 12/92
Similar Cases: cases nos. 14/92, 04 and 05/93, 12/93 and 14/94 [the On Luk Tong, Treasure Base (2), Yook Tong Estate and Yiu Cho Investment Cases] regarding parking problems;
"
01/91, 03/92, and 11/93 [the Alticosmic, Wo Yi Hop Road, and Shell Hong
Kong Cases] regarding impact of goods vehicle traffic; 03/92, 08 and 09/92, —, 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 Wo Yi Hop Road, Yuen To-shing and Yuen Shu-ling, On Luk Tong, Ultra Force, Kingspeed Engineering, Kun Kee Motor, Treasure Base (2), Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World, Yin Ning Savings and Lucky Gain Cases] regarding adverse traffic/access problems.
Nature of the Case: Commercial/Office development in Residential (A) Zone, alternative land use always permitted, Column 2 uses, interpretation of Notes of OZP, Town Planning Board Guidelines, traffic impact, turn- table, bad precedent.
Date of s. 16 application: 10 October 1992
•
Date of Hearing: 6 and 7 January 1993
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Date of Decision: 15 January 1993
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Mr E. T. Kennard for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
Commercial/office development in Residential (Group A) Zone is not permitted unless parking and loading requirements per the relevant Town Planning Guidelines are satisfied.
Background:
The subject site fell within a Residential (Group A) Zone (R (A) Zone) in the draft Cheung Sha Wan Outline Zoning Plan No. S/K5/7 (the OZP). According to the Notes of the OZP, office on any floor above the lower three floors needs planning permission. Good Luck Development Limited (the appellant) owned the site. It had a narrow frontage of 5 metres. A Chinese tenement house had been erected thereon with a total Gross Floor Area of 300 m2. The appellant made an application for the development of a 14-storey office/commercial building over a basement. The plot ratio was 10.5. It was indicated that the development would have a restaurant and/or retail facilities in the basement and on the ground and first floors. There was no provision of loading/unloading facilities on the site. Both the s. 16 application and a s. 17 (1) review were unsuccessful.
Arguments:
The appellant argued that:
(a) the proposed office/commercial development was preferable to a residential/commercial building with 14 residential floors above three commercial floors. With a plot ratio of 6.6814, each residential flat would be as small as 22 m2;
(b) it was unfair for the Town Planning Board to insist that on-site parking and/or loading/unloading facilities were 'required' for Cheung Sha Wan when they were not required in Central District;
(c) there were unloading and unloading in the vicinity of the site, for instance in the section of Pratas Street between Castle peak Road and Un Chau Street;
(d) the provision of a turn-table on the site would provide loading/unloading
facilities.
The Town Planning Board held, in its letter dated 29 July 1992, that: (a) 'the subject site is too small for a properly designed commercial/office
building';
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(b) 'the application has not proposed any provision of on-site parking and loading/unloading facilities.' This was supported by reference to the relevant Town Planning Board Guidelines, issued in December 1990, regarding office development in Residential Group (A) Zone.
The District Planning Officer/Kowloon in the appeal hearing stated that:
(a) approval would act as a disincentive for comprehensive development; (b) the absence of on-site parking could [not?] be tolerated (para. 14).
The counsel for the Town Planning Board in the appeal hearing stated that since the publication of the relevant Town Planning Board Guidelines, eight applications had been rejected. Approval of the present case would lead to cumulative adverse effects on traffic.
Senior Engineer/Transport Engineering (Kowloon) in the appeal hearing stated that loading and unloading activities generated by office would be higher than those generated by a residential development.
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
Loading and Unloading Was the Main Issue
The Appeal Board conceded that the appellant ‘argued convincingly' that proposed development was preferable to the alternative possibility of a commercial/residential tower and it 'had no doubt that an office building will be more desirable than a residential building on the site' (para. 8). Furthermore, the Appeal Board disagreed with the District Planning Officer/Kowloon's view that the proposal would discourage comprehensive redevelopment as the 'mere fact that the development will be more attractive and hence more profitable is enough incentive.' (para. 13) Nevertheless, the Board considered that the issue of on-site loading and unloading was a major issue which the appellant had not been able to overcome in the s. 16 application.
Regarding the requirement for the provision of on-site loading and un- loading facilities here in Cheung Sha Wan (which is not required in Central), the Appeal Board stated that it was only concerned with an application for office development in a R(A) Zone. In Central, the OZP does not require planning permission for office development. The Appeal Board would not be concerned with the wisdom or otherwise of this situation. (para. 11)
As regards the appellant's point claiming that there were loading and unloading facilities in the neighbourhood, the Appeal Board considered that they were grossly inadequate. The section of Prastas Road suggested was just 50 metres long and was subject to peak hour loading and unloading
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restrictions. Loading/unloading outside those hours would add to the already heavy burden.
As regards the appellant's proposal, made during the appeal hearing, for including a turn-table on site to cater for loading and unloading, the Appeal Board's position was that 'we would rather leave the owner to make a fresh application to the Town Planning Board where the viability of the turn-table can be fully considered.' (para. 16)
Bad Precedents
The Appeal Board had the opinion that to allow the appeal unconditionally would make it difficult to refuse similar applications in Cheung Sha Wan, in the light of the history of 8 unsuccessful applications.
Comments:
Determination of Application for Column 2 Uses
Though this case appears to be rather simple, the reasoning of the Appeal Board in dismissing the appeal deserves attention. Instead of dwelling on high-sounding and ambiguous concepts of 'planning intention' or 'spirit and intent' of the Ordinance, decision was made on the basis of technical traffic matters with reference to the relevant Town Planning Board Guidelines. This case distinguishes itself from the ordinary run of decisions where professional matters were not decisive.
Traffic Generation
It appears that neither the appellant nor relevant government departments bothered to work out the potential traffic and loading activities generated by the proposed small-scale office/commercial development. Such information would certainly assist the Appeal Board in reaching a more objective and scientific conclusion about the burden on the local transport infrastructure and traffic circulation. Besides, it is reasonable to expect that vehicular traffic generated due to visitors or couriers to a Class C office building in an off-CBD location will not be as much as that in CBD locations. It is common for an office building such as the one proposed to despatch traffic through the Mass Transit Railway. Unfortunately, the Appeal Board was not counselled on any of these practical operational issues. Instead, the reported opinions appear to be purely conjectural and unacceptable from a land use-transport and planning point of view.
The Concept of Bad Precedents
This is always used as a reason for rejecting a s. 16 application in the first instance or in a subsequent s. 17 review. As the Town Planning Board is to decide every application on its own merits, it is doubtful what ‘a bad
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precedent' means. In the present case, the Appeal Board was not reported to have been advised of even the outline nature of the eight cases rejected by the Town Planning Board. That being the case, the concept of 'bad precedent' could have been unreasonably employed. The rules and basic facts for rejecting those eight cases had not been considered even though the merit of the decision for these eight cases and the present appeal could be entirely correct.
Questions:
1. What has happened to the subject site since the dismissal of the
appeal?
(See Photograph 7)
2. Is a turn-table on a site with 5-metre frontage capable of handling the traffic generated on the site? Will it be better than the suggested 50- metre long, time-restricted kerb-side parking area?
偉志 辣
Photograph 7 Subject Site of the Good Luck 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 8.
Town Planning Board, TPB PG-No.5 Town Planning Board Guidelines for Application for Office Development in Residential (Group A) Zone under Section 16 of the Town Planning Ordinance', December, 1990.
THE PAK KONG CASE
•
•
Case Name: Lots 72 RP & 73 RP in DD 217, Pak Kong, Sai Kung, New Territories [the Pak Kong Case]
Planning Appeal Case No.: 13/92
>
Similar Cases: cases nos.
18/92, 19/92, 17/93, 19/93 [the Kingspeed Engineering, Kun Kee Motor, Shun Fat Container, Ever Need Cases] regarding unauthorized development and planning intention; and self-incrimination in planning enforcement proceedings by planning application;
"
18/92, 19/92, 17/93, 19/93, 01/94, 19/95, 21/95, 26/95 and 04/96 [the Kingspeed Engineering, Kun Kee Motor, Shun Fat Container, Ever Need, Tang Sai Hung, Lo Kwok-wai, Cheung Hing Lung, Wong Yee Fai (2) and Container System Cases] regarding unauthorized development; 05/92, 07/92, ———, 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 OTB, Full Look, - 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;
>
08 and 09/92, 15/92, 18/92, 19/92, 04 and 05/93, 13/93, 16/93, 17/93, 19/93, 1/94, 5/94, 9/94, 10/94, 11/94, 14/94, 02/95, 05/95, 07/95, 08/95, 18/ 95, 19/95, and 21/95 [the Yuen To-shing and Yuen Shu-ling, Ultra Force, Kingspeed Engineering, Kun Kee Motor Treasure Base (2), Henderson, Naturaluck, Shun Fat Container, Ever Need, Tang Sai Hing, Tong Kam Wong, Lee Yiu Kam, Sun Link Properties, Wong Yee Fai (1), Sanyear Investment, Charming City, Planet Universal, Delight World, Yin Ning Savings, Jetway Civil, Lo Kwok-wai and Cheung Hing Lung Cases] regarding development in Unspecified Use Zones in IDPA or DPA Plans.
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Nature of the Case: Block Crown lease, open storage use, Unspecified Use Zone, Interim Development Permission Area (IDPA) Plans, Development Permission Area (DPA) Plans, planning enforcement, warning letters and enforcement notices, statutory defence of existing uses, self-incrimination, aerial photographs, planning intention: in statutory plans; incompatible land uses, environmental nuisance and pollution, access problems, land uses and land use purposes, validity of planning application.
Date of s. 16 application: 12 December 1991
Date of Hearing: 10, 11 and 15 February 1993
•
Date of Decision: 24 February 1993
Chairman of Panel: Mr Justice Litton, OBE
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Mr Ho Chun-wing and Miss Lai Pui-yee for the appellant
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) Open storage in 'Unspecified Area' Zones in IDPA Plans would not
generally be permitted.
(b) 'Existing uses' (i.e. uses that had existed immediately before the publication of an IDPA Plan in case of planning enforcement or uses that had existed before the publication in case other than planning enforcement) need no planning permission — application for such uses imply that they are not existing.
Background:
The subject site consisted of two agricultural lots under Block Crown lease which fell within an Unspecified Use' Area/Zone in the Pak Kong Interim Development Permission Area Plan (the IDPA Plan) which was published in the gazette on 12 July 1991. In the Notes of the IDPA Plan, open storage was not permitted except with permission from the Town Planning Board. One month prior to the publication of the IDPA Plan, the appellants purchased the subject site. In August 1991, a site inspection conducted by the District Planning Office/Sai Kung identified the presence of a number of containers and a variety of building materials on the subject site. In November 1991, a 'warning letter' was issued under the relevant 'planning enforcement' provisions of the Ordinance alleging that there was unauthorized development on the subject site [and advising that the appellants had to rectify the unauthorized use]. On 12 December 1991, the appellants made a s. 16 application for 'storage of sand, gravel and bricks; vehicle parking and access'. The application stated that what
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•
was proposed was 'change of use'. The application was rejected in the first instance and again in the s. 17 review hearing.
[Note: After the appeal was dismissed, the case ended up in a magistracy appeal Tsei Kwei King and Cheung Kam v AG 1993 MP No. 1509. The conviction of the defendants was affirmed.]
Arguments:
The appellant argued that:
(a) before the publication of the IDPA Plan in the gazette, the open storage
uses applied for had already been occurring on the subject site;
(b) the storage of sand and gravel would cause less nuisance than the
storage of containers.
The Town Planning Board argued on the following grounds (para. 7): (a) The proposed development is incompatible with the planning intention for the area which is to prevent undesirable uses pending a comprehensive review of the development potential of the area.' (b) "The proposed development is incompatible with the surrounding land use and would cause environmental nuisance to the nearby residents.' (c) The proposed development would cause environmental pollution and no mitigation measures to reduce the adverse impact had been proposed in the submission.'
(d) 'The proposed vehicular access via the water works reserve access
road of the Water Supplies Department is undesirable.'
Reasons for Decision:
The Appeal Board dismissed the appeal on the following grounds:
The Use Was Not Existing as Implied by Wording and Aerial Photographic Evidence of Change of Use
The Appeal Board did not subscribe to the appellant's argument that the subject site had been used for open storage purposes for two reasons quoted below (para. 9):
(a) If that was, indeed, the case, then the appellant did not require
permission for change of use from the Town Planning Board.'
(b) 'Such evidence as was placed before us indicated that in October 1990 the appellants' lots were lying fallow. Whilst the original dates on the aerial photographs were, unfortunately, not shown in the copies produced, the evidence satisfied us that these photos were taken at the times stated. No evidence was pout forward to contradict this.'
Against Planning Intention
The appeal 'has no merit what[so]ever and the Town Planning Board had clearly come to a correct decision'. To permit the application 'would be to
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149
frustrate the entire statutory scheme, which is to bring Pak Kong area under some form of rational system of planning control'. (para. 10)
Comments:
What Is the Purpose of Planning Enforcement?
Planning enforcement legislation was introduced to provide statutory control of land use in the areas of the New Territories outside new towns. The legal effect of introducing the legislation is to nullify the common law rights of the Block Crown lessees to put their land under open storage, as affirmed in the Melhado case of 1983, without compensation. The planner blamed the decision for the proliferation of open storage uses on fallow agricultural land.
What Is the Impact of Planning Enforcement Legislation upon Private Property Rights?
As mentioned above, the legal effect of the legislation is to nullify the common law rights of a Block Crown lessee to put their land under open storage as affirmed in the Melhado case. According to the decision of Melhado, open storage activities, insofar as no building is involved, does not constitute a breach of lease even if such activities are not the same as or outside those recorded in the schedule of the lease by Indian surveyors. The uses recorded in the schedule are regarded by the court as being 'description' not 'restriction'. Under the amended Ordinance, unless a Block Crown lessee is able to prove that a use on his land is an ‘existing use' within the meaning of Ordinance, he shall obtain planning permission for that use. Otherwise he commits the offence of unauthorized development.
Does Making a Planning Application Lead to Self-Incrimination?
When the Planning Department issues warning letters or various types of notices (such as enforcement notices) under the Ordinance, it is often stated that the recipient shall apply for planning permission for the alleged unauthorized uses. It appears that it will be possible to regularize unauthorized use. However, an application for 'a change in use' following enforcement actions amounts to admitting that the use is not existing. It appears that in this case, the appellant apparently attempted to avoid self-incrimination by describing the uses applied for were in fact existing. As correctly interpreted by the Appeal Board, existing uses need no permission. (Note, however, that application for 'regularization' of 'non- conforming uses' which did not exist before a statutory plan is possible. See the On Luk Tong case, post)
In the present case, it seems that the description of ‘existing use' shall be ignored, otherwise the appeal and even the original s. 16 application would have to be invalid. Judging from the facts reported, there could
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arguably be a real ‘change in use' from ‘storage of containers and building materials' to 'storage of building materials'. The planner certainly will regard such change as 'material', though it is my view that the content of storage does not matter unless it is specified by the statutory plan.
What Was the True Planning Intention?
Did enforcement law or the IDPA aim at eliminating or regulating open storage? It seems that the Appeal Board tended to believe that the former was the case. Would the Planning Department introduce plans that eliminate open storage, while at the same time implement territorial planning strategy to expand Hong Kong's international container port? If specific kinds of open storage were outlawed in specific IDPA or DPA plans, it could perhaps be argued that for the planning area concerned, its planning intention of open storage uses was one of elimination. Yet, the Pak Kong IDPA did not suggest that this was the case.
As for the argument of pre-empting future plans, an objection is that the decision pre-empted present uses which could be permitted in principle. Another argument is that open storage is in fact ‘temporary use' as it does not involve building structures. How can such temporary use, always permitted in OZPs without a history of IDPA plans, pre-empt planning for the area? In any event, the Town Planning Board can zone and rezone land according to changing social needs.
What Are Compatible Land Uses?
All uses that could be applied for are in principle compatible with the existing or neighbouring uses. Otherwise, the planning intention for the planned area will be illogical. If the planner did not want a specific use for the planning area, he could exclude that use by adding a clear statement in the Notes about 'unspecified area' or exclusion of the item from Column 2 for designated zones.
Was There Any Need for Mitigation Measures?
It is unfortunate that the specific kind of alleged environmental nuisance was not reported. Consider this question that a conscientious planner must face: would open storage use create more planning problems or nuisance in the urban area? Or rather, in the rural area? If it is more rational to confine open storage in the rural areas, then the next question would be: would the specific proposal generate unacceptable or unmanageable nuisance? It is pointless to press for a total absence of nuisance from the stance of Lipsey's Theory of the Second Best or Coase Theorem. Without being excessively ‘academic' (if it does not extend to or imply 'anti-intellectualism'), the point I am trying to make here is: each type of land uses produces its own form of externalities or pollution (even
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151
a school can be regarded as generating noise pollution due to the noise kids produce when playing during recess). Unfortunately, the Board was not enlightened in respect of the level, degree and scale of nuisance. Nor was it advised of whether certain intelligent planning conditions could be employed to mitigate the problems which might arise. As the Planning Department had already targeted the subject site in the enforcement action, could it offer independent advocacy for the appellant?
What Could Aerial Photographs Show?
Aerial photographs taken by the government show snapshots of the land surveyed from the air. Inferences can be made about the physical state of affairs and land uses on the ground. The key word here is inferences. Descriptions such as 'fallow agricultural land' and 'vacant open storage yard' are purely speculative unless they are publicly known facts or phenomena that are corroborated by evidence obtained on the ground. Otherwise, the inference is liable to error or misinterpretation, however useful aerial photos are. Aerial photos alone simply do NOT tell the entire story. How can we tell if a piece of agricultural land is lying fallow from one or it is planned to be used as an open storage yard? 'Land use' is a social and economic concept, not a mere physical state of affairs. Unfortunately, the Board was not invited to examine these basic issues behind the aerial photographs. To say that the ‘evidence' (hearsay evidence is admissible for appeal proceedings) was not disputed by the appellant as if he was a defendant in court apparently was not relevant. The Appeal Board should have asked the appellant about the images found in the photos. The crucial information not provided by the appellant was what had actually happened 'immediately before' 12 July 1991, the date when the IDPA plan was published. The crucial information was NOT the aerial photo images taken in October 1990, i.e., more than a month before the IDPA Plan, and it was the time when the subject site was purchased by the appellants.
In addition, care needs to be taken when interpreting photographic evidence. In the Kingspeed Engineering and Kun Kee Motor cases, the Appeal Board came across instances where photographs provided by the Planning Department were 'misleading' to the extent that they tended to exaggerate the tranquil nature of the environment rather than its already degraded nature. Obviously, local knowledge and other evidence assisted the Appeal Board in coming to its conclusion in those cases.
Was Existing Use Relevant?
If the s. 16 application was valid, then whether or not the use applied for was 'existing' should have been irrelevant. The Appeal Board need only be concerned with whether the use applied for was acceptable from the perspective of planning as long as the s. 16 application was valid.
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Town Planning of Hong Kong: A Review of Planning Appeal Decisions
Questions:
1. What is the content of the warning letter sent to the appellant? 2. Where should building materials be stored in the territory?
References:
Guidelines:
Hong Kong Planning Standards and Guidelines, Chapters 8, 9, 10, and
11.
Town Planning Board, TPB — PG NO. 13, Town Planning Board Guidelines for Application for Open Storage and Port Back Back-Up Uses under Section 16 of the Town Planning Ordinance', November, 1994.
Cases:
1. The mischief planning enforcement legislation targets
AG v Melhado Investment Ltd. [1983] HKLR 327
2. Ensuing from the planning application
Tsei Kwei King and Cheung Kam v AG MP No. 1509 of 1993. (See Appendix)
3. Other relevant planning enforcement cases (See Appendix)
Auburntown Ltd. v TPB HCMP No. 222 of 1993.
AG v Tang Yuen Lin Magistracy Appeal No. 1300 of 1994
Regina v Way Luck Industrial Ltd. Magistracy Appeal No. 1396 of 1994
Regina v Tang Yip and Yeung Fook Mui Magistracy Appeal No. 864 of
1994
Regina v Helen Transportation Co. Ltd., Liu Ka Sing and Chan Yuk Kwan Magistracy Appeal No. 303 of 1995
Regina v Power Straight Ltd., Dragon Friend Ltd. Magistracy Appeal No. 644 of 1995
Books:
Lai, Lawrence Wai-chung. Zoning and Property Rights: A Hong Kong Case Study. Hong Kong: University of Hong Kong Press, second edition, 1998, Appendix 1.
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153
Lai, Lawrence Wai-chung. Town Planning in Hong Kong: A Critical Review. Hong Kong: City University of Hong Kong Press, 1997, Chapters 3, 4, 5 and 6.
THE ON LUK TONG CASE
Case Name: Retail Shop, UG/F and G/F, 13-15 Village Road, Happy Valley, Hong Kong [the On Luk Tong Case]
Planning Appeal Case No.: 14/92
Similar Cases: cases nos. cases nos. 12/92, , 04 and 05/93, 12/93, and 14/93 [the Good Luck,, Treasure Base (2), Yook Tong Estate and Yiu Cho Investment Cases] regarding parking problems;
03/92, 08 and 09/92, 12/92, ——, 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 Wo Yi Hop Road, Yuen To-shing and Yuen Shu-ling, -, Good Luck, Ultra Force, Kingspeed Engineering, Kun Kee Motor and Shell Hong Kong, Henderson, Yiu Cho Investment, Tang Sai Hung, Tong Kam Wong, Sun Link Properties, Sanyear Investment, Delight World, Yin Ning Savings and Lucky Gain Cases] regarding adverse traffic/access problems; 02/92 [the Conduit Road Case] regarding application in R (B) Zones.
Nature of the Case: Conversion of parking spaces to retail uses in Residential (Group B) Zone, Column 2 uses, interpretation of Notes of OZP, Town Planning Board Guidelines, breach of Crown lease, Deeds of Mutual Covenant (DMC), Special Control Areas (SCAs), parking standards and requirements, traffic impact, bad precedent, Appeal Board members' knowledge of the area.
Date of s. 16 application: 4 December 1991
Date of Hearing: 3 and 4 March 1993
• Date of Decision: 14 March 1993
•
•
Chairman of Panel: Mr Robert Tang Ching, QC, JP
Representation:
(a) Miss V. Patel for the Town Planning Board
(b) Mr Chan Wai-chung for the appellant
•
Decision: Appeal dismissed
Rules Laid down by the Decision:
(a) Conversion of parking spaces in Residential (Group B) Zone is generally
not permitted in locations with parking problems.
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(b) 'Non-conforming uses' which are not ‘existing uses' in an OZP may be
'regularized' upon successful planning application, review or appeal.
Background:
The subject premises were the ground and upper ground floors of a domestic building with 24 flats and 24 parking spaces at Nos. 13-15 Village Road (the subject site). The subject site fell within a Residential (Group B) Zone (R(B) Zone) in the draft Wong Nai Chung Outline Zoning Plan No. S/H7/ 3 (the OZP) which was published in the gazette on 25 September 1992. The building was at the same time located within an administrative 'Special Control Area' (SCA). The Crown lease of the subject site required the provision of car parking spaces at a ratio of no less than one space per flat. In the Notes of the OZP, retail use was a Column 2 use for R(B) Zones. The OZP also stipulated car parking at one space per 140 m2 Gross Floor Area (GFA) on account of high ownership rate and limited on-street parking spaces in the vicinity. The appellant made a s. 16 application for (a) the conversion of 10 parking spaces on the upper ground floor for selling vegetables and flower seeds; and (b) the regularization of 2 spaces on the ground floor used for selling car stereo and anti-theft devices by TAC Automobile Limited (TAC). The application was rejected in the first instance and again in the s. 17 review hearing.
Arguments:
The appellant argued that (para. 4):
(a) illegal parking was not rampant on the section of Village Road near or outside the subject site though it was serious outside Park'N Shop at 32-40 Village Road;
(b) there was no demand for parking spaces on the subject site so much as that 17 spaces had not been used as such for more than one year. Many vacant parking spaces were now used for storage purposes;
(c) it was unfair to refuse their application as the Town Planning Board had approved two applications in 1991 in the same upper Happy Valley
area.
The Town Planning Board held that (para. 4):
(a) 'the existing and proposed retail uses are incompatible with the planning intention to retain the residential character in upper Happy Valley';
(b) 'the existing and proposed retail uses will reduce the provision of off- street parking spaces, attract more cars to Village Road and exacerbate the problem of illegal on-street parking in the area'.
Reasons for Decision:
The Appeal Board rejected both arguments of the appellants and dismissed the appeal on the following grounds:
Planning Appeal Cases
Parking Was a Real Problem
155
The Appeal Board members knew the area well. Parking was very often a problem there, especially for visitors (para. 15). Parking and traffic were notorious near Park'N Shop, which was ‘a stone's throw from the building' (para. 11). Village Road led to the Hong Kong Sanatorium and hence it should have to be kept accessible at all times. The Appeal Board agreed with the Transport Department's advice that retail shops such as those proposed (definitely for the TAC and also likely for the vegetable and flower seed shops) would generate traffic, parking and loading activities. Illegal parking and loading/unloading would likely occur if the proposal were approved.
Vacant Parking Spaces
The Appeal Board had the opinion that had the appellant advertised for the vacant spaces, there would have been great demand for such spaces.
Approved Cases Were Dissimilar; Similar Cases Were Rejected
There were three successful planning applications along 7-7B Shan Kwong Road. Two of them regularised uses which commenced more than 10 years ago.' (para. 8) (italics mine) They were a barber shop and a fruit store. The third related to a laundry. The laundry had been approved because the use was considered compatible and no adverse traffic impact was expected. In 1986, an application for a Dry Cleaner at the same road was approved. On the other hand, two similar applications for a change of car park use to retail shops had been rejected respectively on 6 December 1991 and 12 December 1988 (on review).
Comments:
Was the Lease Irrelevant?
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