The Town Planning Board drew criticism from a judge yesterday for imposing an 'arbitrary' height restriction on a Kowloon Bay estate that was headed for redevelopment.
In a defining legal battle, the board lost a judicial review launched by property developer Oriental Generation to challenge the height limit on Kai Tak Mansion on Kwun Tong Road. The company acquired more than 80 per cent of the four-block, 50-year-old housing estate and plans to build a 45-storey residential tower on the site.
Its plans were thwarted by the town planners' decision last month to cap developments in the area to 130 metres - less than 65 per cent of the height of the proposed tower.
Yesterday, the court ordered the board to reconsider its decision.
The unprecedented court ruling questioned the board's justifications for setting a specific height limit that might undermine a land owner's development right.
The verdict is expected to trigger judicial reviews from more developers unhappy with the government's moves to cap the heights of their developments since 2007.
Mr Justice Anselmo Reyes said: 'The board has power under the [Town Planning Ordinance] to impose building height restrictions, non-building areas or building gaps on particular sites.
'That being said, the board cannot impose restrictions arbitrarily, but must have a rational justification for the measures implemented.'
In September 2010, Oriental Generation submitted a redevelopment plan to the Buildings Department proposing the construction of a twin tower of mixed uses.
Two months later, the board imposed a restriction of 110 metres, but relaxed the limit to 130 metres in June last year, which was still much lower than the developer's plan of 203 metres. Oriental Generation then appealed for a height relaxation to 140 metres in order to execute its development right fully.
The board decided in February to uphold the limit of 130 metres.
Reyes said he was troubled by the board's reasons for refusing to relax the limit as it failed to adequately justify the height restriction.
He said the figures were 'arbitrary' and were 'merely assumed' by the board without strong supporting evidence. The ruling is expected to have great ramifications for planners and developers.
In March last year, the Real Estate Developers Association lodged a complaint to the board criticising its height control for undermining land owners' property rights.
Bernard Lim Wan-fung, president of the Institute of Urban Design who sits on the board, said the Planning Department should review the imperfect urban planning system and provide stronger justifications when determining height limits for each district.
'Imposing height limits is not wrong, but setting rigid figures without strong supporting reasons has led to repeated and inflexible designs [and] will also create fat buildings that block air flow,' Lim said