Property policies

Top court’s decision in favour of Hysan protects all property owners

Judges were right to rule that restrictions imposed by the Town Planning Board should not impede on the rights, enshrined in the Basic Law, of landowners

PUBLISHED : Thursday, 29 September, 2016, 2:07am
UPDATED : Thursday, 29 September, 2016, 2:07am

The idea that property developers have human rights, including a right to construct higher buildings, may seem strange. But that is, effectively, what Hong Kong’s top court decided in a landmark case this week. Five judges ruled unanimously that the right to property, protected by the Basic Law, must be taken into account when deciding whether Town Planning Board restrictions on developments are lawful.

The case was brought by Hysan Development, which is challenging limits imposed on its projects in Causeway Bay and Wan Chai, including a height restriction. The case will now be reconsidered by the board.

Hysan court ruling should prompt Hong Kong government to revise laws, say planners

Concerns have been raised about the impact of the Court of Final Appeal’s ruling on the city’s town planning regime.

Many of our urban areas are crowded and densely developed. It is of the utmost importance that the broader interests of the community are served when planning decisions are made. Notably, the board cited a need to facilitate air ventilation and pedestrian flow in the reasons it gave for the height restriction. These are matters our society cares deeply about.

But the court’s decision, which reflected legal developments in Britain and Europe, need not be a cause for concern.

The protection given to property rights in the Basic Law is significant. Its inclusion in the city’s highest law offered reassurance to Hong Kong people during the transition from British to Chinese rule.

It is essentially a right to do as you wish with your property. But the right is subject to reasonable restrictions. The court has sensibly held that, as with other rights protected by the Basic Law, great care must be taken when limitations are imposed.

The Hysan legal battle: setting out what Hong Kong’s Town Planning Board can and cannot do

The court said even if the restrictions were permitted by a law passed by the Legislative Council, there had to be a good reason for imposing them and they must not go further than necessary. A fair balance must be struck between the interests of society and those of the property owner. Such considerations should be part and parcel of any responsible town planning process. Certainly, the ruling gives developers another weapon in their legal armoury. But, as the court said, the cases in which that weapon can be used successfully are likely to be very rare.

The courts have a duty to uphold rights, including those relating to property. The Hysan case involved the rights of developers. But the principles laid down by the judges are there to protect all property owners and should be respected.