Academic journal article
By Man, Rita Li Yi
Journal of Environmental Health , Vol. 72, No. 4
A General Overview of Land Use Planning in Hong Kong
In Hong Kong, Outline Zoning Plan (OZP) and land leases govern land use. Under the current OZP, two cases occur where uses or developments are always permitted. (1) Uses and developments are always permitted when recorded in the covering notes of the plan; and (2) "Column 1" uses of the land use zone are always permitted. Any proposed uses or developments that fall under "Column 2," or as noted under the terms of the guidance notes on application for permission under town planning ordinance require submitting section 16 applications.
Upon approval of the planning applications, the town planning board may introduce planning conditions under section 16(5) of the town planning ordinance. In some cases, the town planning board may discuss the planning conditions for the particular case during the town planning board biweekly meetings. Yet, it is quite obvious that the board members never discuss town planning conditions during open meetings, i.e., it might be said that the production development of town planning conditions is a matter of black box operation (Town Planning Board, 2007). Another problem with planning conditions is that no direct enforcement of planning conditions exists in Hong Kong; noncompliance is, therefore, common in Hong Kong (Lai, Yung, Li, & Ho, 2007; Yau, 2007). Previous academic research on planning conditions mainly focused on their enforcement, e.g., McKay and McGreal (2003), and their legal tests of planning conditions (Banks, 1994; Galligan, 1997; Morgan & Nott, 1995). The author is not aware, however, of any study of the motivations for compliance with planning conditions in Hong Kong. It is important, therefore, to study the forces motivating land owners to comply with planning conditions.
Environmental Health-Related Planning Conditions
Where an application is made by an applicant (usually the land owner or developer; if not, he or she needs to give notification to or obtain the consents from the current land owner as specified in town planning board guidelines No. TPB PG-No. 31 [Town Planning Board, 2005]), the board members "may decide to grant the permission or approval subject to or without conditions or to refuse it ... (Galligan, 1997)." Planning conditions generally serve the purposes of making an otherwise undesirable development acceptable or improving on a good proposal (Lai et al., 2007). For example, the introduction of noise barrier conditions next to a proposed residential development can increase environmental satisfaction and decrease the possible effects of negative externalities. The provision of a landscape plan can enhance the quality of a development.
Valid Planning Conditions
As a matter of policy, planning conditions should only be imposed when they satisfy all of the following five tests. Planning conditions must be 1) reasonable; 2) within the control of the applicant; 3) certain (planning conditions should be relevant to the development to be permitted, enforceable, precise, and reasonable in all other respects); 4) not imposed for ulterior purposes; and 5) related to the development (Banks, 1994; Galligan, 1997; Lai et al., 2007; Moore, 2002).
Indirect Enforceable Nature of Planning Conditions
Although the town planning (amendment) ordinance of 1991 provides the Planning Authority of Hong Kong with enforcement power against unauthorized developments and states that all the planning conditions should be enforceable (Suen, 2005), all planning conditions are enforced indirectly via the building ordinance and the lease conditions. Nevertheless, a loophole exists as such. Any planning condition that is not related to the building, e.g., the submission of a landscape proposal, cannot be enforced (Lai et al., 2007). When a development requires no lease modification, the impositions of planning conditions might not be included in both lease conditions and the building ordinance. …