Hong Kong’s High Court rejects three development plans in country park enclaves
Judge says planning board used incorrect map when reaching its 2014 decision on enclaves in Hoi Ha and Pak Lap in Sai Kung and So Lo Pun in Plover Cove Country Park in the northeastern New Territories
A rezoning plan to allow more indigenous village houses to be built in three Hong Kong country park enclaves hit a legal wall on Friday, after a court ruled in favour of an environmentalist’s complaints.
Handing down his 74-page judgment, High Court judge Mr Justice Thomas Au Hing-cheung noted that the Town Planning Board used a wrong map in reaching its decision in 2014.
He also said the board decided to reserve space for indigenous villagers to build houses without properly asking about their real needs.
The enclaves are in Hoi Ha and Pak Lap in Sai Kung and So Lo Pun in Plover Cove Country Park in the northeastern New Territories.
The decision was also presented to the city’s top advisory body, the Executive Council. Au wrote: “I am satisfied [that] the Chief Executive in Council decision is either tainted with the same errors [as] the Town Planning Board’s decision, or alternatively is unlawful … in the particular circumstances of the present case.”
Au ordered that the decisions made by the two bodies be quashed and sent back to the Town Planning Board for reconsideration.
The legal bid, targeting both the board and the council, was lodged by green activist Chan Ka-lam. Hoi Ha is best known for its well-preserved marine park, while Pak Lap features a scenic beach.
The Town Planning Board approved the draft outline zoning plans for the three sites on November 21, 2014. Although it scaled back the plans, they would still have allowed indigenous villagers to build more houses than originally allowed.
Then chief executive Leung Chun-ying, who chaired the Executive Council, gave the green light for the plans in February 2015, prompting Chan, a founding member of the Save Our Country Parks Alliance, to lodge a judicial review later that month.
According to the judgment, the Town Planning Board cited a 10-year estimate in the zoning plan that the indigenous population of Hoi Ha would grow from 100 to 430, with an increase of existing 30 houses to 40. That of So Lo Pun, it opined, would rise from 0 to 460 people, resulting in 68 new houses, while the population of Pak Lap would surge from 50 to 120 people.
But the critics had told the board in meetings that the figure was “highly speculative” that they could not be used as proof of the genuine needs of villagers for small houses, in particular, when in reality, there had only been few applications to build these properties in the past.
They also said it was because not all indigenous villagers had the rights to build houses, coupled with the facts that some of the land in question were owned by developer not villagers.
Barrister Nigel Kat SC, for Chan, said the board had failed to properly investigate those contentions.
“I agree with Mr Kat that the Town Planning Board had failed to properly inquire into the matters … as to whether the proposed [village] zoning was based on the genuine needs of the indigenous villagers,” Au wrote, adding that the board had failed to take heed of those suggestions, despite being bombarded by them repeatedly.
During the consultation, the board was advised by experts that the map it had used depicted the shape of the coastline in Hoi Ha incorrectly, as well as the height of the tide. The map also omitted streams running in the area. This would lead to wrong estimate of the waste impact there, they said.
Au agreed, saying that the board had failed to properly inquiry before they concluded that the map was not inaccurate.
Meanwhile, Hong Kong’s second largest housing provider sought to reassure a government advisory board that it would not go ahead with any detailed studies about building on the fringes of country parks if initial research showed it was not feasible ecologically to do so.
In a meeting with the government’s Country and Marine Parks Board on Friday, the Housing Society said it would call for tenders before the end of the year for consultants to carry out a feasibility study on building public flats and homes for the elderly on two 20-hectare sites on the edges of Tai Lam and Ma On Shan country parks.
The two-year study will start with a baseline study on the ecology, development feasibility and neighbouring environmental impacts.
“If the initial assessment finds that the impact on the area is too negative, then we will not proceed with the further study,” Housing Society chief Wong Kit-loong said.
But if the study showed that development was feasible, then a detailed study, which would include an environmental impact assessment, would be undertaken. The final report would then be handed to the government for a decision, Wong said.
Board member Man Chi-sum, who is chief executive of environmental group Green Power, questioned why there was no public consultation on selecting the two sites and if they already had any housing development plans in mind.
Wong said they did not have any preconceived notions about developing protected country parks, adding the two sites were chosen because they met three basic criteria – the existence of basic infrastructure, other housing developments were nearby and there was access to an existing transport network.
The consultants would be required to engage the public during both stages of the study, he said.