14 February 2022
Town Planning Appeal No.1 of 2017 (1/17)
In a recent decision handed down by the Town Planning Appeal Board (Town Planning Appeal No.1 of 2017 (1/17)), the Appeal Board, by a majority of 3 to 2, allowed the Appellants’ Second Appeal against the Respondent (“TPB”)’s decision rejecting the Appellants’ application for planning permission on sites at Nam Sang Wai (“NSW Portion”) and Lut Chau (“LC Portion”) in Yuen Long (collectively the “Appeal Site”) under sections 16 and 17 of the Town Planning Ordinance (Cap. 131) (“TPO”). In giving green light to the Appellants’ proposed development scheme on the ecological wetland, subject to conditions such as further studies on ecological and traffic impact, the majority found that the Appellants’ second application accords with the relevant planning intention, and that no undesirable precedent would be laid down in allowing the Second Appeal. The Appeal Board comprises Mr. Chua Guan-Hock SC (as Chairman), Ms. Irene Chow, Ms. Imma Ling, Mr. Lawrence Ong JP and Dr. William Yu.
Material Background Facts
The Appeal Site, partly owned by the 1st and 2nd Appellants, has an unusual history, having been the subject of prolonged litigation for three decades. The NSW Portion, mainly occupied by fishponds and reedbed, was originally designated as “REC”, “CA” and “R(C)” in 1994, whereas the LC Portion which falls within the Wetland Conservation Area and the Mai Po Inner Deep Bay Ramsar Site was designated as “SSSI”, to which the Appellants lodged an objection. Following the Appeal Board’s decision in TPA 13/1993 handed down in August 2014, which was upheld by a majority of the Privy Council in 1996, planning permission (subject to conditions) was granted to Henderson Real Estate Agency Ltd for development of low-rise residential buildings and a golf course in the NSW Portion, and a nature reserve at the LC Portion (the “Approved Henderson Scheme”). The Approved Henderson Scheme, however, expired on 19 December 2010.
In 2005 and 2006, the NSW and LC Portions were rezoned: the LC Portion was designated as “SSSI(1)” under the outline zoning plan (“OZP”) of Mai Po Fairview Park (“MPFP”), whereas private land at NSW was designated as “OU(CDWEA1)” under the NSW OZP. In 2011, Mutual Luck Investment Ltd submitted a planning application to the TPB for development at Fung Lok Wai (the “FLW Application”), which was approved in 2013.
In October 2012 and June 2015, the Appellants submitted Applications A and B respectively for planning permission at the Appeal Site (which were the respective subjects of the First Appeal and the Second Appeal), under which the Appellants proposed residential development on the south-west part of the NSW Portion, with (1) the remaining areas to be developed into a Wetland Enhancement Area and (2) the entire LC Portion to be developed into the Lut Chau Nature Reserve. However, both applications were eventually rejected by the TPB, on inter alia the grounds that the proposed development (1) was not in line with the planning intention of “OU(CDWEA)”, and that (2) the approval of the application would set an “undesirable precedent for similar applications within the “OU(CDWEA)” zone”.
At the hearing, the First Appeal regarding Application A was withdrawn by the Appellants. The Appeal Board thus only ruled on the Second Appeal concerning Application B.
Before considering the substantive merits of the appeal, the majority of the Appeal Board made observations on a few preliminary issues, one of which centres upon the question of whether the TPB has properly discharged its duty to act consistently and fairly given the divergent stances taken by the TPB with regard to the Appellants’ Application B on the one hand, and the Approved Henderson Scheme and the FLW Scheme on the other. Ultimately, the majority of the Appeal Board was not satisfied that the TPB’s stance towards the Appellants was straightforward, consistent or fair. In particular, proper coordination between the PlanD and AFCD was lacking: they blew hot and cold with the Appellants during the application process, which resulted in substantial delays and additional costs for all at considerable public expense.
Issue 1: What is the Planning Intention of the NSW OZP in zoning the NSW Portion as “OU(CWEA1)” and in the MPFP OZP of zoning the LC Portion as “SSSI(1)”?
In deciding this issue, the majority drew a clear distinction between interpreting an OZP and its notes which are binding on the one hand, and an OZP’s Explanatory Statement and any TPB Guidelines which are material considerations which should be taken into account but can be departed from on the other.
As to the planning intention in this case, the decision noted that the express planning intention of the NSW OZP is clear, i.e. the “conservation and enhancement of ecological value and functions of the existing fishponds or wetland”. The planning intention is pragmatic: ecological conservation and enhancement, with some development up to a maximum stated gross floor area. In particular, while the relevant planning and conservation principles include the “private-public partnership approach”, the correct and pragmatic approach is not whether there may be any adverse impact or disturbance, but whether a proper balance can be achieved.
Issue 2: Taking into account their ecological and visual impacts, does the proposed development accord with the planning intention?
On the second issue, the majority of the Appeal Board held that Application B satisfies the relevant planning intention. First, Application B satisfies the “no-net-loss in wetland” principle. Second, Application B can result in a significant increase in ecological value and functions of the fishponds and wetlands in the NSW and LC Portions. Third, Application B only consists of low density private residential development with limited development footprint, reasonable plot ratio and estimated number of units and residents. Nor will the maximum gross floor area be exceeded. The proposals also include committed long-term conservation and management of the remaining fishponds and wetland, and practical and feasible steps to minimise and compensate for ecological and visual impacts.
Issue 3: Will the approval of Application B set an undesirable precedent for future applications for development in other areas zoned “OU(CDWEA)”?
On the third issue, the Appeal Board held that no undesirable precedent would be set in allowing the Second Appeal. Whilst the TPB argued that allowing the Second Appeal would encourage further applications for residential development and compromise the integrity of the ecology, landscape and environment in the vicinity, the majority found the circumstances surrounding this appeal unique, as it involves the combined and integrated development of two sites in separate zones. The TPB has not identified any similar site with similar characteristics, which is necessary before an argument based on undesirable precedent can succeed.
The Appeal Board’s decision sheds important light on the proper approach to be taken in ascertaining the true planning intention underlying planning documents. It emphasises that the Notes and Explanatory Statement should be approached in a practical and down-to-earth way – a strict, overly technical or literalistic approach should be eschewed.
Chua Guan-Hock SC (as Chairman), Ms. Irene Chow, Ms. Imma Ling, Mr. Lawrence Ong JP and Dr. William Yu acted as members of the Appeal Board
Anthony Ismail and Katherine Olley appeared for the Appellants
Reported by Clara Wong and Charlie Liu, pupil barristers.