Hysan Development

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

They want new regulations that will result in a neater, more pedestrian-friendly city

PUBLISHED : Tuesday, 27 September, 2016, 9:52pm
UPDATED : Tuesday, 27 September, 2016, 10:49pm

A top court ruling that Hong Kong’s planning authorities need to protect private property rights “in accordance with law” in setting development restrictions should prompt the government to introduce laws to create a neater, more pedestrian-friendly city, planners say.

The suggestion followed the Court of Final Appeal’s judgment on Monday that the private property rights of developers in seeking higher buildings occupying wider street-level space is constitutional and that the Town Planning Board, in setting restrictions, needs to consider the Basic Law stipulation that private ownership needs to be protected “in accordance with law”.

The court also required the board to strike a balance between public interest and private property rights.

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As planners worry that the ruling may encourage more property owners to seek judicial reviews against the board’s height and bulk restrictions, some say enacting laws regulating building design can fulfil the Basic Law requirement.

There are no legally-binding planning principles in Hong Kong such as preserving the city’s skyline and reserving enough space for pedestrians and green features, making it easier for developers to challenge the board’s height and bulk restrictions, as in the case on Monday, in which Hysan Development objected to the board’s 130-metre height restriction and a five-metre-wide “no-construction area” at street level.

Board member and veteran architect Patrick Lau Hing-tat said the Department of Justice was reviewing the court ruling and that afterwards, he would raise the question of regulation at the next board meeting.

“The ruling can bring an opportunity for such a discussion,” Lau said. “Without legal criteria, there may be continuing arguments with developers who want more street-level space at higher rents.”

New York City established its first zoning law in 1916 – the first in the US – to promote a healthier city with lower and less bulky buildings. Lau said in some districts, there were even restrictions on which colours could be used.

Former board vice-chairman Stanley Wong Yuen-fai said the board took into consideration private property rights in past decisions. He suggested the government add this to the Town Planning Ordinance to demonstrate that the board had to do due diligence.

Professor Ng Mee-kam, director of the urban studies programme at Chinese University, said the ordinance, last reviewed 12 years ago, left many loopholes for legal challenges such as the meeting quorum, which requires just five out of 37 members to attend. She said the government promised two reviews of the ordinance but nothing happened.

“With procedures like this, it is normal for people to ask questions,” Ng said.

But she said although there was a need to discuss legislating planning principles, she did not want the government to impose rigid rules. She said planning should be neighbourhood-based and flexible and that putting everything into law would defy the purpose.