Ruling on tower puts spanner in the works

PUBLISHED : Friday, 16 November, 2007, 12:00am
UPDATED : Friday, 16 November, 2007, 12:00am


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A High Court victory yesterday by a subsidiary of Swire Properties concerned only a single site in Mid-Levels. However, it has troubling implications for residents in the district already plagued by overdevelopment, heavy traffic and the canyon effect of walled-in pollution and trapped heat. It also raises questions about how well the Town Planning Board can represent the wider public interest should developers choose to challenge it in court.

Private property rights must be respected. But the planning process must also work in a way which serves the wider public interest. In the judicial review launched by Swire's International Trader Ltd, Mr Justice Andrew Cheung Kui-nung of the Court of First Instance ruled that the court must adhere to the original intentions of zoning and rezoning plans. This is a fundamental legal principle. The problem, however, is that many such plans date back years, as is the case with the Mid-Levels site. As a result, they may not reflect contemporary concerns about the wall effect, visual impact and quality of life.

These concerns must be taken into account when future rezoning applications are made. The Planning Department has the power, under the law, to impose height restrictions where necessary. An upcoming government review of outline zoning plans must also have such concerns very much in mind.

There may even be circumstances where the public interest is served by a developer not exercising its rights to fully develop a certain site. In such circumstances, a development transfer arrangement might be considered in order to ensure that legal rights are respected.

There is no question that Mid-Levels has become overbuilt and its roads saturated. These problems are likely to worsen as developers zero in on the district to build more luxury residences. This is especially so at the junction of Castle Road and Seymour Road, where Swire has applied to build a luxury, 50-plus-storey complex on two adjacent sites. The 2,100-plus-square-metre site is only one of more than half a dozen sites on the two narrow roads that have either been bought by developers or where negotiations for collective sale to them are under way.

The smaller of the two Swire sites has height restrictions and a limited plot ratio, which the company sought to lift. The board and its appeal system blocked this, citing the adverse traffic and visual impact that would result. Counsel for the board argued in the judicial review that planners must have had traffic and other 'infrastructural concerns' in mind when they drafted the zoning and rezoning plans.

However, Mr Justice Cheung ruled these concerns were not reflected in the plans themselves. He also referred to the 1972 moratorium that sought to tackle traffic problems in Mid-Levels by capping population growth, saying it did not apply in this case.

Despite this victory, developers are still afraid that height restrictions might be imposed in the area. However, as the roads there have already reached capacity, it is not clear how they can handle more skyscrapers and a large influx of new residents.

Yesterday's court decision will, unless reversed, allow the development to proceed. We are likely to see more such appeals by developers emboldened to challenge the board's decisions.

Developers are entitled to exercise their rights. They should know, however, that it is not in their interests to make an area so crowded that people no longer find it attractive to live in.