Comments on the Town Planning Bill 2000 ("the 2000 Bill")

Summary of Views

The 2000 Bill follows closely the lines of the Town Planning Bill, 1996 ("the 1996 Bill") except for the replacement of the Planning Certificate Procedure for the new Building Authority Approval of Plans Procedure.

Many of the comments made by the Law Society in our comments on the 1996 Bill have been incorporated. Where our comments have not been incorporated and we still maintain them in regard to the same clause in the 2000 Bill, we repeat the 1996 comment.

We note the same notable omissions which were recorded in our comments on the 1996 Bill, in particular, as to planning blight and the role of the Town Planning Board ("TPB").

Planning blight is still not touched upon at all nor are their provisions in very general terms for the phasing out of such things as socially obnoxious activities, thinning out of heavy building densities or obsolete industrial areas, etc.

The role of the TPB in the 2000 Bill is still confined to district planning though the wider use of planning studies which, presumably, would take account of strategic issues, is welcomed. However, as we said in 1996, no attempt is made to give the TPB any defined role in strategic planning, including reclamations, or to deal with the odd fit (or discontinuity) there is at present between strategic planning including infrastructure and district planning. In deed, since the 1996 Bill, for reasons which are well understood, e.g. speed, even more infrastructure planning has been removed from the purview for TPB as in the Railway Ordinance.

The continuing difference in enforcement procedures as between the rural New Territories and the urban areas (including new towns in the New Territories) also needs comment. Planning enforcement in urban areas should not be based only on approval of building plans as this does not deal with user. As the rural New Territories becomes increasingly urbanized the difference in treatment between it and the rest of the SAR in planning enforcement becomes increasingly anachronistic and hard to justify.

Clause 2 Interpretation

"existing use"

The references to discontinuance for 6 months in this definition refers to the period before the publication in the Gazette of notice of the relevant plan. This does not seem adequately to deal with discontinuance of an existing use after the publication of the plan unless the phrase "had not change materially to another use" is intended to refer to this.

"material change of use"

See comments above. We do not think this definition is adequate or sufficiently comprehensive, for instance, does it include an intensification of an "existing use" without enlarging coverage, area, height or amount of deposit?


Is there any need for such a definition as "planning unit" which would fix the area of land in respect of which an application is made or a permission is granted?

There is confusion about a number of terms which are defined in the schedule of terms now issued with Outline Zoning Plans ("OZP's") and which carry different meanings for different purposes, e.g. "industrial" in planning terms in Hong Kong is defined differently from the way it is used in lease conditions. Should consideration be given either to defining all these terms now included in the schedule on a statutory basis or making the schedule of terms a part of the general notes to all OZP's or giving the TPB power to define such terms for general guidance?

Similarly, the status of TPB guidelines has not been touched upon in the 2000 Bill. It is intended to give such guidelines more than non-statutory status?

Part II Establishment of TPB

Clause 3 (1)

Situations arise where both the appointed Chairman and Deputy Chairman of the TPB or a committee have a conflict of interest (particularly where both are public officers) and thus neither can be act as chairman of the relevant hearing or meeting. Provision should be made for a temporary chairman, i.e. to allow some other member of the TPB to act as chairman of the meeting of the TPB/committee for the consideration of that particular item without the need for that temporary chairman to be appointed under Clause 3(1)(b).

The secretary, whether a public officer or not, should be an independent office with its own budget provided by public funds. It should obtain independent expert advice on behalf of the TPB, including legal advice and planning environmental and traffic advice and advice on other relevant disciplines such that the TPB members are in a position properly to balance the comments of Government departments on an application against an applicant's submissions.

The Schedule setting out disclosure of interest procedures is welcomed.

Clause 6(1)

Query why in (1)(a) the TPB cannot of its own motion prepare draft plans, i.e. without needing the direction of the Governor. In doing this, it can take the advice of the Government. While the TPB is an independent board in all else (except the final approval of statutory plans), it is curious that in the preparation of draft plan function, in the initiation of the steps towards a draft plan, it still appears to be a creature of the Government and cannot act without the prompting of the Government.

A general power to obtain independent legal advice should be included.

Should not the TPB, particularly in the light of subclause (2) have the power itself to take advice, employ advisers, consultants?

Subclause (3) raises one of the notable omissions from the draft Bill: there is no attempt to deal with the question of planning blight - not even to the extent of giving statutory sanction to any informal procedures to deal with planning blight which have been followed within the Government in the past.

Clause 6(4)

Should not the opportunity be taken to authorise by way of general powers schemes for the phasing out of socially obnoxious activities, or for thinning out heavy building densities or obsolete industrial areas and such like?

Part III Preparation of Draft Plans

Clause 7

"Comprehensive Development Area" (CDA) is not defined and has never been properly defined. It is not even defined in Clause 9(1)(i) of the Bill.

More control over the TPB's designating of CDA's should be included in this Bill. Provision for defining the planning intention of a CDA should be made such that the planning intention of a CDA is made known in the statutory notes to a draft plan or a procedure for it is prescribed. A planning brief system might be prescribed subject to a statement of general planning intention and subject to the relevant owner (e.g. where one owner owns the whole CDA) having some right to comment on the temrs of the brief.

Provision for an "outline planning approval" in a CDA would be useful as a precursor to a more detailed planning application with master layout plan.

It should be made clear that the TPB has power to approve an application which does not cover the whole of the CDA in certain circumstances.

Clause 9(3)

The development designated under this subclause can be outside the area of the OZP. Is there any justification for giving the TPB power to control the development outside an OZP?

Clause 10

Given that there are very few areas of the New Territories which are not now subject to statutory planning, is it necessary to retain the DPA plan system inherited from the current system? Except in cases where a draft plan has to be implemented in an emergency situation, why cannot Outline Zoning Plans (OZP) now be divided into "Rural" OZP's and "Urban" OZP's with Rural OZP's having all the status and the consequences (e.g. concepts of existing use, enforcement procedures etc.) which now attend upon plans whose life history follows the sequence: Interim DPA, CDA, OZP? Why is it that OZP's in the urban area and the new town areas of the New Territories can still only be enforced by the Building Authority?

If the two current methods of enforcement are to be maintained, designating OZP's as either Rural or Urban enables the method of enforcement to be ascertained quickly without having to investigate the history of the plan in each case.

Clause 15

The TPB should be required to state in an OZP what it has taken into account and whether such materials form part of the planning intention or can be consulted to determine what is the planning intention.

Clause 16

A minimum period which can be designated by the Board for representations should be stated in Clause 16 and, possibly, a maximum. The present clause permits the Board to reduce the period of representations to a very short period and thus to defeat the purpose of the clause.

Clause 18

Similar comments as made in Clause 16.

General comment on the representation procedure

This comment apply to the whole of the representation procedure found in Clauses 18 onwards.

While the objective of making the planning process more transparent is admirable it is not clear whether the price in delay to the processing time for statutory plans by this new procedure is reasonable or is too high a price.

The representation concept is presumably intended to be a kind of mini public inquiry procedure. If so, an unwithdrawn adverse representation should not just be allowed to become the equivalent to an objection under the current procedure without some further positive act by the objector.

It is suggested that after the TPB's view under Clause 20 has been given, the adverse representor be required to state positively that he wishes now to object and only such objections positively made should be given further consideration under Clause 21. An adverse representation should not just be allowed to ripen into an "objection" by the representor's doing nothing.

The procedure in Clause 18 should not require a further gazette notice. It should be added in to the notice of gazettal of the plan under Clause 16 so that one notice covers details of the whole procedure and the time limits up to and including Clause 18.

On reflection we query the need for the "comment" procedure at all. A modified form of it would maintain the existing procedure but restrict "objections" to owners or others with a financial interest in a lot and allow "representations" from all others. The TPB in hearing "objections" would be required to take "representations" into account.

Clause 21

The time limit of 6 weeks in subclause (4) is unworkable and will not be observed in practice despite the draconian statement in subclause (6).

Clause 22

We would recommend the inquiry to be the end of the proceedings so that the qualifications referred to in subclause 1(a) should not be required.

The procedure in this clause mirrors the unnecessary complications introduced into the procedure by the new "representations" requirements.

Clause 28

At least a minimum period and possibly a maximum period should be stated for representations in this clause.

Clause 29

Same comments as in Clause 28.