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LCQ20: TPB's powers and functions

Following is a question by the Hon Kam Nai-wai and a written reply by the Secretary for Development, Mrs Carrie Lam, in the Legislative Council today (December 2):

Question:

In February this year, the Court of Appeal of the High Court ruled in a court case involving an application for planning permission in respect of a project at Seymour Road of Mid-Levels West that given section 13 of the Town Planning Ordinance (Cap. 131) which stipulates that approved Outline Zoning Plans (approved plans) shall be used by all public officers and bodies as standards for guidance in the exercise of any powers, the Town Planning Board (TPB), when considering applications for planning permission, did not have the power to have regard to any and all planning considerations which it believed would assist it to reach the right decision in the public interest.  TPB had to exercise discretion within the parameters of the approved plan in question, or it would be acting ultra vires.  In this connection, will the Government inform this Council:

(a) whether it has examined if the various approved plans can effectively restrict the development densities after the handing down of the aforesaid judgment; if it has, of the result; if not, the reasons for that, and whether it plans to conduct such an examination;

(b) given that some members of the public are worried that TPB has been "rendered powerless" because it can no longer vet and approve applications for planning permission on the basis of public interest, whether the authorities have assessed the impact of the aforesaid judgment on TPB performing its functions; and

(c) given that traffic, visual impact, air ventilation, etc. have all along been the major factors for consideration by TPB in vetting and approving applications for planning permission, whether the Government has reviewed the powers and functions of TPB after the handing down of the aforesaid judgment; if so, whether it has considered amending the Town Planning Ordinance by making public interest a factor which TPB must consider when vetting and approving the relevant applications?

Reply:

President,

The Town Planning Board (TPB) had an in-depth discussion in March this year of the judgment handed down by the Court of Appeal referred to in the question.  After considering the unique planning background of the case and the advice of the Senior Counsel, TPB was of the view that the judgment would not have any significant implications on the planning system and TPB's operation and functions.  It therefore decided not to appeal to the Court of Final Appeal on this case.  In addition, TPB held that there was no need to amend the existing Town Planning Ordinance (the Ordinance) because of the judgment.  It will continue to consider applications under Section 16 of the Ordinance in accordance with the requirements of Outline Zoning Plans (OZPs).  The Notes and Explanatory Statement of OZPs, as well as the relevant TPB Guidelines, as they are, have provided clear planning intentions, criteria and guidance for assessing planning applications.  The Government agrees with the views above of TPB.

(a) It is the routine work of TPB to prepare OZPs of such areas of Hong Kong as the Chief Executive may direct, with a view to the promotion of the health, safety, convenience and general welfare of the community.  In this regard, TPB has been examining the existing OZPs from time to time and will continue to do so.  It will propose amendments to the Chief Executive in Council if necessary to achieve the aforementioned purpose.  The judgment in question was given in respect of a rather unique residential zone with its own planning background and justifications.  The Planning Department has proceeded to review this type of zoning, which is few in number, and will amend, where necessary, the Notes and Explanatory Statement applicable to this type of zoning, for the processing of relevant planning applications by TPB in future.

(b) & (c) As mentioned above, the Government agrees with TPB's view that the Court of Appeal's judgment will not have any significant implications on the planning system and TPB's operation and functions.  In processing each planning application, TPB will, before making a decision, continue to have regard to the Notes and Explanatory Statement of the OZPs, the TPB guidelines, as well as the relevant planning considerations such as the planning intention of the statutory plan, the compatibility of land uses, the impact of the development and public opinions, to fulfill the objectives of the Ordinance.  The Government therefore considers that there is no need to amend the Ordinance.

Ends/Wednesday, December 2, 2009
Issued at HKT 14:15

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