Critique on Town Planning Ordinance

Critique on Town Planning Ordinance

Introduction

Town Planning Ordinance needs to be updated. The power to exercise land use planning given by the law lacks clear definitions and legitimate considerations in some procedures. Meanwhile the court has quashed quite a number of planning resolutions with contrasting interpretation to the law. Land use planning is now a questionable tool to improve urban environment in Hong Kong.

Shaky legal basis

Town Planning Ordinance (TPO or the Ordinance) Cap. 131, which is first enacted in 1939, is the main piece of law to empower the government to exercise land use planning. Unconstrained power in controlling development is literally granted by the Ordinance to the Town Planning Board (TPB or the Board) under the government, in regard of “promoting the health, safety, convenience and general welfare of the community”. In section 4 (1), it reads –

The Board’s draft plans … may show or make provision for … (the categories of land use) … and any matter whatsoever may be shown or provided for or specified in or in respect of the plans by means of such diagrams, illustrations, notes or descriptive matter as the Board thinks appropriate; and … shall be part of the plans.1

Although it may appears that the primary duty of the Board is to determine land uses on patches of urban land, which includes residential, commercial, industrial, community use and other uses, the power of the Board is way more than just catagorising the type of use of land. According to the Ordinance, any descriptive matter is considered part of the plan. This allows the Board to exert any control on building development. For instance, the outline zoning plan of Tsuen Wan West restricts the commercial development to “a maximum building height of 3 storeys above one level of car park” along with a maximum plot ratio.2

Despite the unconstrained planning power, the decision of the Board could not violate other laws, including the basic law, which “protect(s) the right of private ownership of property in accordance with law”.3 To exert control on development often results in a reduction of development potential which largely affects the profit. Therefore, the decision of the Board is susceptible to legal challenge by means of judicial review. One of the questions is that should compensation be paid when the decision of the Board resulted in less development potential granted from the land lease.

The two court cases revealed the perspective from the judiciary:

The Board produced the first Outline Zoning Plan (OZP) to control the development density in 1973 for the Peak area by introducing plot ratio in the notes of the OZP. It was immediately challenged by several court cases but the court upheld the Board’s position.4

But in the case of Fine Tower Association Ltd. v Town Planning Board [2006] 2 HKC 507, an excerpt of the decision reads5

… The principles which underlie the right of the individual not to be deprived of his property without compensation are, first, that some public interest is necessary to justify the taking of private property for the benefit of the state and, secondly, that when the public interest does so require, the loss should not fall upon the individual whose property has been taken but should be borne by the public as a whole. But these principles do not require the payment of compensation to anyone whose private rights are restricted by legislation of general application which is enacted for the public benefit. …

Although the above statement clearly says that, the owner should not be compensated by the restriction of legislation, which shall includes the Town Planning Ordinance, the judgment was in favour of the owner because the court agrees that the new OZP has brought a de facto deprivation of the owner’s property by rendering his land unable to use or develop like before (the existing right).6

Despite the court precedents, the question whether the action of the Board as a statutory body has infringed on private property right is still not clearly answered. Does the extent of restriction matter, say from all to nothing or from all to less? The land planning law still has to wait for subsequent case laws to fill in the gap.

Uncertainty in consideration

The Town Planning Board is the statutory entity whose responsibility includes, by section 6, to consider the public representation and amendment before putting the plans in full effect. However, there arises the problem of uncertain principles in consideration of representation.

The qualification for the Board members is not legally required. There are two major parties in the planning process – the Planning Department (PlanD), who draws and prepares the plan, and the Town Planning Board, who approves or rejects the plan. Inside the PlanD they are professionals holding urban planning degrees and planner licenses, who has undergone training, has the knowledge and capacity to plan. Unlike the planners, the members of the Board have different backgrounds. For instance, the chairman Mr. Thomas Chow started his career as an administrative officer in the government and served for about 30 years until this position.7 The vice-chairman Mr. Stanley Wong majors in Applied Finance and worked in the banking industry until his retirement and appointment for the Board membership.8

The question is, does a proper decision in urban planning require professional knowledge? As a comparison, consider the jury and the judges in court. Judges are masters of law and they answer questions of law. Jury are “fellow members of the community of the person on trial”9 and answer questions of fact. The jury system clearly separates the duty of the professional and the non-professional. As for the Board, there is no such clear cut line.

Adding complication to the situation is the unclear basis of consideration of representation. “Reasonable” and “appropriate” are the most relevant words found in the Ordinance to set the criteria for judging. Literally anything could be used as reasons to approve or reject. But in Capital Rich Development Ltd. & Anor v. Town Planning Board [2007] 2 HKLRD 155, it was found that the Board has a financial consideration apart from planning consideration which has a “substantial or material influence”10 on its decision, therefore the decision was faulted and was quashed.

Why financial consideration is not a reasonable one?
In Henderson Real Estate Agency Ltd. v Lo Chai Wan, Privy Council Appeal No. 54 of 1996, an excerpt of the judgment reads

“the (Town Planning) Appeal Board was not bound to follow the explanatory statement or the guidelines although they were material considerations to be taken into account and could not be disregarded”11

These cases exemplify the uncertainty of what is a proper consideration and a proper reason to make a decision.

Political affiliation to the government

The members of the Board are appointed by the Chief Executive, which is the government. Given the uncertainty in consideration, without further provisions to ensure independence in fulfilling duties and exercising power, the appointees are naturally biased towards the proposals favouring the government.

In the Board meeting on rezoning “Green Belt” to “Residential use” in Tai Po, meeting the housing supply target in the policy address was given as the background. The direction of discussion was set to whether the change of use would result in “serious adverse effect on the environment” along with other considerations.12 The Board first accepted the stance of the government that more land is needed for residential use to meet the housing supply target and then started considering the public representations and made small amendments or put in extra requirements.

It could be a different story for the proposals by the private developers. In the decision made by the Board towards the proposal of Hopewell Centre Phase Two, the Board regarded the proposal is out of scale with the surrounding. The proposal also involves the removal of trees, which the Board thinks unacceptable, even provided that the developer has undertaken the re-provision of public space.13 The Board made a definite rejection to the application, instead of requiring a scale down, and declined to appeals as well.
In view of these cases, it is hard to say the Board would have arrived at the same decision without knowing the nature of the applicant.

Discussion

Weak legal basis, uncertainty in consideration and political affiliation to the government has rendered the mighty weapon empowered by the Town Planning Ordinance incapable to unleash its full potential in enhancing urban environment, for the fear of judicial review and weakened political legitimacy.

The whole passage is critiquing the ambiguity of the Town Planning Ordinance and the role of its statutory body the Town Planning Board. It immediately follows the question that should the Ordinance be “hard-coded” into unambiguous definitions to clearly define the power and the role of the Board. If so, the Board will have less flexibility and must rely on the written legitimate considerations to make decision. If not so, the Board and the public will keep confused and render the power of the Board vulnerable to abuse and the decision of the Board vulnerable to judicial reviews, wasting time and scrapping opportunities. In light of this, to foster success in better town planning, the Ordinance needs to be rewritten into a more resolved and clear terms to the power and role of the Board.

Disclaimer

This is adapted from one of the thesis wrote for the subject “Professional Practice” in 2015, which is part of the Master of Architecture. The research nature of this thesis could not guarantee the appropriateness in interpreting the law, and should not be quoted, and should not be held responsible for any loss incurred.

Bibliography

1 Hong Kong Law, Chapter 131
2 Town Planning Board, http://www1.ozp.tpb.gov.hk/plan/ozp_plan_notes/en/S_TWW_19_e.pdf
3 Hong Kong Basic Law Article 6, 1990
4 Roger Nissim, Land Administration and Practice in Hong Kong (Hong Kong : Hong Kong University Press, 2011),
96
5 Nissim, Land Administration and Practice in Hong Kong, 99
6 Nissim, Land Administration and Practice in Hong Kong, 100
7 Development Bureau,
http://www.devb.gov.hk/tc/about_us/organisation_/permanent_secretary_for_development_pl/index.html
8 Housing Authority, https://www.housingauthority.gov.hk/tc/about-us/housing-authority/ha-and-its-committees/hamembers/
wongyuenfai1213.html
9 Hong Kong Judiciary, http://www.judiciary.gov.hk/en/crt_services/pphlt/html/jury.htm#1
10 Nissim, Land Administration and Practice in Hong Kong, 100
11 Wong Wah-sang and Edwin Chan, Building Hong Kong: Environmental Considerations (Hong Kong: Hong Kong
University Press c2000)
12 Town Planning Board meeting #9797, http://www.info.gov.hk/tpb/chi/S_TP_25/TPB_Paper_No_9797.pdf
13 Government Press Release, http://www.info.gov.hk/gia/general/200502/25/02250294.htm

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