Aspects of Land Economics in Hong Kong Prior to 1997—Chapter 5


Aspects of Land Economics in Hong Kong Prior to 1997—Chapter 5

Development Control

Compulsory development control and planning powers had been predominant in the British Colonial Government practice until 1991 when the Town Planning (Amendment) Ordinance was promulgated. There had not been fundamental changes in the planning legislation before 1991 despite significant changes in the past two decades (1970-1990) in the political, social and economic circumstances that prompted without doubt the pressing need of a complete revamp of the Town Planning Ordinance (Cap. 131). For a comprehensive review, the Secretary for Planning, Environment and Lands was given the mandate of review with the support of an Advisory Group formed in early 1988 comprising both legislative official and non-official members.

Before completion of the review, interim measures were already introduced through the passage of the Town Planning (Amendment) Ordinance 1991 (the Bill was passed in the Legislative Council on January 23, 1991). For the first time in Hong Kong planning history, direct enforcement against unauthorized development work was made possible.

Enforcement, reinstatement and stop work notices could be served under the new Ordinance on land owners/occupiers/persons responsible for the unauthorized development in Development Permission Areas (DPAs) in the non-urban areas.

This practice would be retained after the DPA plans were replaced by individual Outline Zoning Plans (OZPs). The 1991 Ordinance was not applicable to the

OZPs—areas mainly in the urban areas and new towns. At that time development control was under the dual system for the urban and rural areas till the new planning legislation would come into effect.

In July, 1991, the Advisory Group published a consultative document on “Comprehensive Review of the Town Planning Ordinance” for public comments. The period of consultation lasted for six months until January 11, 1992, after that the government would incorporate relevant public views into a new planning bill.

Planning Control before 1991

Now let us take a look at the planning control before the passing of the new legislation and note its weakness in the administrative and statutory control in the development control mechanism.

Purpose of Planning

The British Colony of Hong Kong was notorious for its uniqueness in the world for its fast economic growth in 1980’s together with virtually no unemployment (under 3% since 1986 and never exceeded 5% since 1980) in a conurbation of about 180 sq. km. Land resource was so limited that great attention was focused on the proper planning and development or redevelopment of both the urban and rural areas and activities relating to the proper and economic use of the harbour facilities and container facilities. As a result of rapid urban growth, the consequences of environmental pollution on the well-being of Hong Kong people needed to be redressed.

The Town Planning Ordinance (Cap. 131) was enacted in 1939. Save the Amendment Ordinance in 1991(mentioned above), the only notable amendment made was the incorporation of Section 16 into the Ordinance in 1974. It became so obvious that the development boom in the 1970-1980’s had rendered the prevailing planning and development control obsolete and a new set of modernized planning legislation would be necessary to be in place to cope with the planning need towards the 21st Century–the development of a planning philosophy in the legislation for a good planning system that would provide “an appropriate means of balancing community and private interest.”… And safeguard “the rights and interest of individual parties as well as adequate powers to promote the public interest.”

Deficiency of the Town Planning System

Development and Town Planning in Hong Kong used to be controlled by statutory and non-statutory means. The Town Planning Ordinance (Cap. 131) before the 1991 Amendment Ordinance was the only piece of legislation that only provided the procedural mechanism of (a) the preparation of statutory Outline Zoning Plans (OZPs), and (b) a planning application to the Town Planning Board for approval of a use permitted under ‘Column 2’of the Schedule of Notes which formed part of the OZP. Application procedures and the Board’s decision thereof either approving the application subject to any conditions or disapproving the same together with applications for review of the Board’s decision were provided in the Ordinance. The Ordinance did not have any power of direct enforcement against non-compliance in the non-urban areas (except the Development Permission Areas (DPAs). (The non-urban areas was under the control of the Town Planning (Amendment) Ordinance 1991). Section 13 merely provided: ‘Approved plans shall be used by all public officers and bodies as standards for guidance in the exercise of any powers vested in them.’ Development control had to rely on other Ordinances, particularly the Buildings Ordinance, and the enforcement of lease conditions of the land grants.

Buildings Ordinance (Cap. 123)

The enactment of the Buildings Ordinance in 1955 had made it mandatory for the Building Authority to refuse consent for any plans of building works which contravened any approved and draft plan prepared under the Town Planning Ordinance. But the inherent weakness of enforcement was that it was not enforceable until the owner wished to build or to carry out major structural alteration to the existing building. In practice, any form of proposed land use and, or its subsequent change of use contravened with provisions of the Town Planning Ordinance, such non-conforming uses were tolerated if the uses complied with Conditions of the Grant or Crown Lease.

In the land sales, the Conditions of Grant contained town planning, zoning and density requirements by lease covenants, such clauses as to restrict: ‘design, disposition and height’ of the building, ‘minimum total gross floor area’, ’maximum height’, ’site coverage’ and ‘plot ratio’ etc. These requirements were embodied in the lease conditions enforceable by Government contractually. For instance, the ‘re-entry’ clause was used to re-enter upon the land for any substantial breach of the lease conditions such as non-payment of premium etc.

For older leases granted before the introduction of the Town Planning Ordinance, no Town Planning requirement clauses were in the leases. In planning control the government was powerless until such time when the owner applied for change or better use of the land or for redevelopment. At that point, the government would charge a premium owing to the enhancement in value of the land and make use of the opportunity impose modern planning and density control requirements by way of an exchange in the Grant of a new lease under a new set of conditions. Legally the modification was effected by surrender and re-grant of the same piece of land (lot) and, if necessary, the lot boundary would be adjusted to conform to the statutory layout plan. In such a way, although planning objectives were achieved for social benefits by way of restrictive covenants in the new lease, the process of planning development control was rather Inflexible. In fact, once the grant or re-grant of the lease was executed between the government (landlord) and the lessee it was a binding contract for the full term of the lease. No further planning requirements could possibly be introduced in between without agreement with the lessee and such opportunity might not arise within the expected time.

Other Related Ordinances

Hong Kong Airport (Control of Obstructions) Ordinance (Cap. 301)

This Ordinance was introduced in 1957 as safety requirements of the Hong Kong International Airport (the defunct Kai Tak Airport). Certain areas within the flights paths, for example, the area north of the Queen Elizabeth Hospital in Kowloon and the eastern part of Hong Kong Island between Quarry Bay and Chai  Wan, were having height restrictions to buildings. This would reduce building volumes in addition to the restrictions in the Building (Planning) Regulations. After the relocation of the airport to Chap Lap Kok the height restrictions would be removed. Higher density development and redevelopment of urban lands would further enhance real estate values.

Road (Works, Use and Compensation) Ordinance (Cap.370)

This Ordinance allows road proposals to be carried out and provides for the resumption of private land for such purpose affecting to various extents the planning layout of an area, and the development potential of individual sites.

Country Park Ordinance (Cap. 208)

This Ordinance was enacted in 1976 and it provides for the designation, establishment, control and management of country parks.

Antiquities and Monument Ordinance (Cap. 53)

This Ordinance was enacted in 1976 and it provides for the preservation of objects of historical, archaeological and paleontological interest.  It affects buildings and other property which falls within the definition of ‘antiquity’ or ‘monument’ (Note 4.1) contained in section 2.

Note 4.1: ‘antiquity’ means—

(a)  a relic; and (b) a place, building site or structure, site or structure erected, formal or built by human agency before the year 1800 and the ruins or remains of any such place, building site or structure, whether or not the same has been modified, added to or restored after the year 1799.

‘monument’ means a place, building site or structure which is declared to be a monument, historical building or archaeological or paleontological site or structure under Section 3.

Mass Transit Railway (Land Resumption and Related Provision) Ordinance (Cap.276)

This Ordinance provides for the resumption of land, creation of easements or right by Government for the construction and operation of the Mass Transit Railway.

Land Development Corporation Ordinance (Cap.15)

This Ordinance provides a body corporate for the purpose of undertaking, encouraging, promoting and facilitating urban renewal in Hong Kong. The Corporation shall conduct its business according to prudent commercial principles, but with the approval of the Financial Secretary may engage in projects which are unlikely to be profitable. (section 10(1)). In addition to submission of development schemes to the Town Planning Board for consideration and approval, it may in the circumstances specified in Section 15(2) apply in writing to the Secretary of Lands and Works requesting him to recommend to the Governor in Council the resumption of land under the Crown Lands Resumption Ordinance.

Since the establishment of the Land Development Corporation in 1987, Hong Kong has entered into a new era in urban redevelopment. The institutional framework has facilitated participation of private sector in urban renewal schemes and urban redevelopment can be achieved at a speedy and cooperative manner.

Crown Lands Resumption Ordinance (Cap.124)

This Ordinance provides the Government of Hong Kong the statutory right to resume land compulsorily for public purpose. In Hong Kong all land, as described in Chapter 1, is held under lease or other title recognized by the government (landlord). [The only exception St. John’s Cathedral is held on freehold tenure.]  Therefore, if Government wishes to acquire land, it only requires resuming the leasehold land for Government is the landlord (or head-lessee). The term ‘compulsory purchase’ normally used in the United Kingdom or its equivalent known as ‘expropriation’ in Canada is not used in Hong Kong—‘compulsory purchase’ means ‘resumption of land’.

Section 2 defines ‘public purpose’ as follows—

(a)   resumption of insanitary property for the purpose of securing the erection of improved dwellings or buildings thereon or the sanitary improvement of such property; and

(b)   resumption of any land upon which any building is erected, by reason of its proximity to or contact with any buildings, seriously interferes with ventilation or otherwise makes or conduces to  make such other buildings to be in a condition unfit for human habitation or dangerous or injurious to health; and

(c)    resumption for any purpose connected with the naval, military or air forces of the Crown[Government], including the volunteer forces in the Colony, and

(d)   Resumption for any purpose of whatsoever description whether ejusdem gereris with any of the above purposes or not, which the Governor in Council may decide to be a public purpose.

It is worthwhile to note the Ordinance only contains 22 sections. Among other things, it deals with procedures principles of assessment of compensation, payment and interest, etc. Not all principles concerning resumption and compensation are expressly covered. Nevertheless the Resumption Ordinance has remained effectively in its simple form mainly due to the evolution of the common law principles in Hong Kong and the precedents of compulsory acquisition of land elsewhere in which the English law is in use. Readers should make reference to the relevant case law or the book on Land Compensation and Valuation Law by Gordon N. Cruden for a better understanding of the subject.

Prospects of Town and Country Planning after 1997

The sovereignty of Hong Kong and the New Territories was returned to the Republic of China in 1997. And it was believed that he principle of ‘one country two systems’ would work in the Hong Kong Special Administrative Region (SAR) Government. This scenario was well supported by evidence that after the Sino-British political saga the final decision to proceed with the replacement airport project was endorsed by China in July 1991. The change of Hong Kong into an international financial centre had shifted the labour intensive and land hunger manufacturing industry from Hong Kong into the hinterland in the delta region of the Pearl River where approximately three million people were employed in the manufacturing industry (1990s). Hong Kong has provided the world a show case for China trade which is set with the backdrop of China’s open door policy and it also provides considerable opportunity for a large consumer market in China for world trade. Hong Kong with its well developed physical and financial infrastructure was a melting pot for all professionals and entrepreneurs who had come to do business from all over the world. In recent years (1990s), the increased foreign investment activities in real estate and in other business in Hong Kong from the U.S., Japan, Taiwan, China and Australia were the syndrome of prosperity and stability laying the foundation for the future SAR Government. To cater for future town planning growth, the land development control system then existing was considered insufficient to cope with the prevailing and future buoyant developments to satisfy both social and economic needs of the 21st Century. Therefore, a complete revamp of the planning legislation was necessary with a view to providing a comprehensive approach in the planning and control of land use in Hong Kong.

Summary of Proposed Changes in the Planning System

PLAN-MAKING PROCESS AND PROBLEMS

Existing Process

  • Two types of statutory plans prepared by the TPB:OZPs                                    and DPA plans.

Proposed Changes

  • No change

Remarks:

  • OZPs are district plans, zoned as residential, commercial, industrial, government/institution/community, open space, green belt, etc.
  • DPA plans have been introduced with the enactment of the Town Planning (Amendment) Ordinance 1991 for the non-urban areas prior to the preparation of OZPs.

Note: TPB—Town Planning Board

OZP—Outline Zoning Plan

DPA—Development Permission Area

Existing Process

  • Detailed zoning is provided under section 4(1) of the   regulations to be approved                                                               Town Planning Ordinance (TPO).

Proposed Changes

  • Detailed zoning to be set out in regulations to be approved by the Governor in Council.

Remarks:

  • The OZPs will not be affected, but with greater flexibility to cope with changing circumstances.

Existing Process

  • section 3(1)(a) of the TPO has given rise to uncertainty over the                                                      control of ’types of building’ suitable for development sites.                                              appearance and use of buildings.

Proposed Changes

  • TPB’s power to be expressly stated in controlling all relevant elements of development, e.g., plot ratio, site coverage, building height, location, flat size, floor area, spacing, character, external appearance and use of  buildings.

Existing Process

  • Existing planning practice such as matters of planning consideration including: conservation, civic design, traffic impact and provision of parking, loading, unloading facilities in developments, provision of services, facilities, environmental impact  assessment, the requirement of preventive or mitigating measures, etc.

Proposed Changes

  • Express provisions in the new Ordinance to confirm the power already exercised under the current practice.
  • Provisions to be incorporated in the new Ordinance to control non-conforming uses.

Remarks:

  • Application may be on selective basis where circumstances so required.

Existing Process

  • The TPB prepares and publishes draft plans, hears objections and submits draft plans to the Governor in Council (G in C) for approval

Proposed Changes

  • No change.

Remarks:

  • The PB appointed by the G in C will undertake most of the existing functions of the TPB including hearing of objections or representations, preparing OZPs and DPA plans.

Existing Process

  • The G in C does not consider whether individual objections should be upheld.

 

Proposed Changes

  • The PB will not make final decisions on representations to draft plans, but instead the G in C will make final decision on draft plans submission.

Existing Process

  • Hearing of objections and preparing the draft plans are dealt with by the same body (TPB).

Proposed Changes

  • Upon request by the G in C the AB will study the representation further or conduct another hearing and make recommendation to the G in C for its final decision.

Remarks:

  • PB and AB have no overlapping of membership, separate and independent. The AB will be served by a separate secretariat, independent of the Planning Authority.

Existing Process

  • Long drawn-out of hearing of objections—no statutory time limit for the completion of the hearing procedure.

Proposed Changes

  • Also the AB’s function is to carry out independent reviews of the PB’s decisions against appeals on planning applications and the Planning Authority’s exercise of planning functions e.g., reinstatement notices, amortization notices, refusal to issue planning certificates.

DURING THE OBJECTION PROCESS

Existing Process

  • As soon as zoning proposals of an area are gazetted, the draft plan has statutory effect.
  • A developer can take advantage of proceeding with the development as long as it conforms to the zoning of the site, despite the fact that the zoning is the subject of objection under TPB’s consideration.

Proposed Changes

  • Once published in the gazette the draft plan will have statutory effect for development control, but the decision of PB on any objections is not pre-empted by an interim development control procedure, i.e., application for a planning certificate is required for all development.
  • See Figure 10.

PUBLIC INVOLVEMENT

Existing Process

  • Insufficient public involvement.
  • The current practice is to present the draft statutory plans on an administrative basis to the District Boards for consultation while the plans are exhibited for public inspection. The planning proposals are made known to the public at a very late stage of the process.
  • The existing Ordinance only provides for persons affected by statutory plan to submit objections to the TPB. No other forms of representation permitted.

 Proposed Changes

  • A balanced public involvement to be introduced while public participation in planning is desirable.

Remarks:

  • Pre-emptive release of planning proposals may defeat the purpose of development control.

PLANNING STRUCTURE AND RESPONSIBILITIES

Existing Process

  • Governor (G)/Governor in Council (G in C).

Proposed Changes

  • Governor (G)/Governor in Council (G in C).

 Remarks:

  • Like the TPB, the PB and AB will be appointed by the G.

Existing Process

  • Town Planning Board (TPB) (See Figure 5).

Proposed Changes

  • Planning Board (PB)
  • Appeal Board (AP) (See Figure 6)
  • The G may give directions to the PB relating to the performance of its functions or the exercise of its powers in the interest of the public.
  • Delegation of authority by the PB to committees and public officers e.g., The Planning Authority will be the principal executive officer of the PB.

Existing Process

  • TPB submits draft plans to the G in C for approval.
  • TPB considers and reviews planning applications.
  • TPB makes recommendations to G in C to implement resumption of land.

Proposed Change

  • No change.
  • PB may submit advice to the Government on the overall planning of the Territory, sub-regions and other general planning matters.

THE PROPOSE PLAN-MAKING PROCESS

Existing Process

  • See Figure 5.
  • Planning study is being practised on administration basis not a pre-requisite in the Ordinance.

Proposed Changes

  • See Figure 7.
  • PB is required to prepare a planning study in the preparation of a draft plan other than a DPA plan.
  • Planning study will be published for public inspection and comments for 3 months, consulting at the same time appropriate public authorities and local bodies.

Remarks:

  • DPA is intended to achieve immediate development control and to allow time for the preparation of an OZP which will include a planning study.
  • Any person can make submission to the PB commenting on the findings of the planning study and the objectives and strategies to be adopted in preparing the draft plan, but no public hearing will be conducted.

Existing Process

  • The draft plan is exhibited for public inspection for 2 months (New Plans) and 2 to 3 weeks (Amendments) in the existing gazette procedures.

 

Proposed Changes

  • The draft plan will be exhibited for public inspection for 2 months and 6 weeks for amendments of plans.
  • The PB will publish a plan after the exhibition period showing the locations of all objection sites, withhold planning certificates for building development on those sites and defer planning applications until the G in C has made the final decision on the PB’s submission.

Remarks:

  • Public involvement in the existing system is insufficient—public views are only channelled through the respective District Officer. In the rural New Territories, the long-standing practice is posting notices on the site of proposed development calling for public objections.

CONSIDERATION/HEARING OF REPRESENTATIONS AND SUBMISSION OF DRAFT PLAN TO GOVERNOR IN COUNCIL

Existing Process

  • See Figure 5
  • The TPB gives preliminary consideration to the objections and formulate views.
  • After the hearing, the TPB may amend the draft plan or otherwise.

Proposed Changes

  • See figure 8
  • PB will give preliminary consideration to the representations and formulate views.
  • After the hearing, the PB may amend the draft plan or otherwise.

Existing Process

  • Any person may request a hearing before the TPB.

.

Proposed Changes

  • Any person or applicant may request a hearing before PB, within 21 days of being notified of the PB’s decision.
  • The review shall be conducted within 3 months of the receipt of application for review.

Existing Process

  • The TPB submits the draft plan to G in C for approval (No statutory time limit) with:

—    a schedule of the objections (if any) made under section 6 and not withdrawn.

—    A schedule of the amendments (if any) made by the Board with a view to meeting such objections.

Proposed Changes

  • The PB submits the draft plan with all representations and PB’s recommendations for the final decision, within 9 months of the expiry of the plan exhibition period.

Remarks:

  • The existing legislation has no provision for appeal against the conditions imposed on planning permission, and the G in C might become too involved in very detailed planning matters.

Existing Process

  • G in C may approve, reject or refer plan to TPB for further consideration and amendment.

Proposed Changes

  • G in C may refer the representations to the AB for further consideration or another hearing, and then AB submits recommendation to the G in C.
  • G in C may approve, with or without amendments or reject the draft plan.
  • The public will be permitted to make applications to the PB for amendments to a draft plan or approved plan—not related to any site which was the subject of an objection. No right of appeal if an application has not been accepted.

Remarks:

  • The G in C will be relieved by the AB which will deal with appeals against the PB’s decision on planning applications within 60 days of being notified of the decision. The AB shall conduct the appeal within 3 months of its receipt.

 CONTROL OF TEMPORARY USE

 Existing Process

  • In  areas covered by OZPs temporary use of any building or land which are expected to last for 5 years or less are permitted by the TPB.

 Proposed Changes

  • Planning control to be based on the nature rather than the duration of use in the new legislation. Any development must conform with the zoning; uses in Colum 1 of the Notes pertaining to the  statutory plan always permitted; PB’s permission will be required for uses in Column 2 of the Notes.
  • A list of temporary uses will be provided in the Notes of a statutory plan.
  • Other development not covered under Column 1 or Column 2 and not in the list of temporary uses other than involving permanent structure will also be dealt with by the PB with flexibility.

Remarks:

  • Lack of clarity in the Notes of OZPs in regard to the ‘five years rules’ and the ambiguous word ‘expected’.

PLANNING APPLICATION AND PUBLIC INVOLVEMENT

Existing Process

  • No public notification of planning applications, e.g., zoning amendment

to a statutory plan to allow an office building in an industrial zones.

Proposed Changes

  • See figure 9
  • Applications must be in the names of the land owners or with the prior consent of the owners or notices have been served on the owners.
  • PB to notify the public of planning application in the Gazette and newspapers before consideration of public and Government comments.
  • Establishment of a register of all planning applications for public inspection.
  • The Governor will have the power to transfer an application for his own decision which would be final. This power is expected to be exercised rarely only if the application for a development is considered to be of territorial or security significance.

OTHER PROPOSALS

  • The PB will, if appropriate, impose conditions of planning permission requiring an applicant to:                                                                                                                  Delicate land free of cost for the required public facilities;                                                          Pay a monetary construction for the provision, and/or to carry out actual                construction of the facilities.
  • An application will be allowed minor amendment to an approved planning permission under a fast-tract approach (i.e., simplified procedures to be set in regulations) e.g., change of landscape design in a number of flats[suites] without altering the general building design and the total gross floor areas, etc.
  • Any applicant aggrieved by the decision of the Planning Authority will have the right of review by the PB.
  • An administrative fee will be chargeable on a planning application. The fee scale is based on the principle of cost recovering relating to the size and complexity of development proposed. Community projects such as schools and community centres are exempted.

DEVELOPMENT CONTROL

Existing Process

  • Mainly through the Buildings Ordinance and the lease conditions.
  • The Town Planning (Amendment) Ordinance 1991 is restricted to Development Permission Area (DPA) plans and where OZPs replace DPA plans.
  • Development density is controlled by the Buildings (Planning) Regulations of the Buildings Ordinance, i.e., Regulations 19 to 23. The First Schedule is designed to control development density in Density Zone 1 (Note: 4.2) areas. For other zones, the densities schedules are approve by the Executive Council and set out in the Hong Kong Planning Standards and Guideline.

Proposed Changes

  • The new Planning Ordinance will have enforcement provision which cover areas in an OZP or a DPA plan.
  • Enforce Notices, Stop Notices and Reinstatement Notices as provided in section 21 of the Town Planning (Amendment) Ordinance 1991 to be related and applicable to the entire Territory.
  • Public records of enforcement stop or Reinstatement Notices registered at Land Office to be set up in the Planning Department.

 Remarks:

  • Control by the Buildings Ordinance is effective only in cases where submission of building plans is required. No control over change in use of a building, e.g., conversion of offices premises in a composite/residential building to light industrial use.
  • Control by lease conditions is extremely inflexible because once the lease is executed it remains effective until the end of the lease period. No modern requirements can be introduced into the existing lease. If modifications of the lease are applied for, new conditions will be incorporated. In the case of old unrestricted lease, no modification is required for change of use or redevelopment.
  • Lease enforcement is a time consuming procedure.

Proposed Changes

  • A planning certificate to be issued by the Planning Authority will be required for all new building development (including material change of use) as a pre-requisite for the approval of building plans by the Buildings Authority (BA).
  • Planning—related sections in the Buildings Ordinance to be consolidated in the new Planning Ordinance. The discretionary power currently exercised by the BA will be transferred to the new Planning Authority.

Remarks:

  • The purpose is to separate matters relating to building control from the planning control.
    • A separate plan to be submitted to the BA concurrently with the application for a planning certificate is optional. (In the latter, only sketch/concept plans are required.)

Existing Process

  • Building (Planning) Regulations and the First Schedule.

Proposed Changes

  • Development Density control currently provided in the Buildings (Planning) Regulations, i.e., Regulations 19 to 23 and the first Schedule to be promulgated in the new Planning Ordinance. Maximum plot ratio and site coverage for Density Zones in 2 and 3 areas will be provided,

AREAS OF SPECIAL CONTROL

Existing Process

  • Environmental impact—no specific statutory provision in existing legislation.

Proposed Changes

  • The new Planning Ordinance will include provisions for planning control on environmental aspects at the plan-making stage and the application process.
  • ‘Designated development’ will be declared, e.g., power plant, cement plant, refuses transfer station, concrete batching plant etc.
  • An environmental impact assessment must accompany any planning application in respect of ‘designated development’.

Remarks:

  • Environmental problems to be analyzed and measures to alleviate problems to be incorporated in the planning study.
  • Guidance notes will be issued by the PB for all planning applications.
  • Surrounding environment will not be unduly affected by the proposed development.

Existing Process

 The Authority and Monuments Ordinance control the preservation of an individual place, building, site or structure only; no control over the surrounding built environment.

Proposed Changes

  • The PB will designate in the statutory plan on top of the land use zonings any areas which are considered to be public interest because of its historical, archaeological or paleontological significance—Special Design Area (SDA).

 Remarks:

  • The effect of the new legislations is to control not only the object concerned but also its surrounding environment of the SDA

Existing Process

Civic design is ineffectively controlled by provisions of the lease, e.g., ‘design, disposition and height clause.’

Proposed Changes

  • Areas of special civic design interest will be designed as SDA on a statutory plan. In applying for the necessary planning permission, the applicant may be required to submit a civic design plan, landscape plan or master, layout plan to the PB meeting the design objections.

Remarks:

  • As a rule as long as the proposed development conforms to the zoning plan and the PB’s requirements of the SDA, planning applications will be approved. The existing means of control tends to focus on individual buildings and developments rather than the totally of the wider area.

NON-CONFORMING EXISTING USES

Existing Process

  • Uses in existence before the publication of a statutory plan are permitted to continue until there is a material change of use or upon development of the land of building in question.
  • Existing Measures:

— Up-zone land to more profitable use (e.g., industrial to commercial.)

— Effect land exchange and transfer of development right to another

site.

–Comprehensive Development Area (CDA) zoning provided under section 4A of the existing Ordinance. Development by the Land Development Corporation and or the Housing Society.

— Licensing of certain non-conforming uses for the sake of control, e.g., guest house, restaurants, amusement game centres, massage parlours and nurseries, etc.

Proposed Changes

  • Amortization area will be designated in statutory plan—the compulsory termination by amortization notice without compensation of a non-conforming use at the end of a specified grace period during which period the investment will have amortized. Applicable to non-conforming uses that require priority attention, e.g., motels in residential neighbourhood, open storage of containers.
  • The Amortization Notice may specify necessary performing standards for the non-conforming use to comply with during the ‘amortization period’. Aggrieved parties may appeal directly to the AB.
  • Amortization Notice will be registered in the Land Office and in a register to be set up by the Planning Department for public inspection.
  • Non-conforming use by the termination date or failure to comply with the required performance standards will be subject to enforcement by proceedings.
  • Non-conforming uses which do not seriously frustrate the planning intention or cause nuisance to public health, welfare, convenience and safety will be allowed to remain until redevelopment or a change of use takes place. General conforming to the zoning plan will be achieved through the planning application system.
  •  Existing incentive measures such as up-zoning, designation for comprehensive development land exchange, transfer of development rights and possibly resumption may be appropriate to encourage early termination of non-conforming uses to be retained.

Remarks:

  • Existing legislation is ineffective in eliminating non-conforming uses because the timing of redevelopment is purely a commercial decision of the private developer.
  • The up-zoning of land and land exchange measures could be planning incentives but the termination of the non-conforming use cannot be guaranteed.
  • When ownership of land uses is fragmented, the CDA zoning might help the speed of redevelopment, but the success depends in the successful negotiations of the Land Development Corporation and, or the Housing Society.
  • The system of licensing can only provide a form of control over a limited range of non-conforming uses by stipulated required standards, but it cannot substitute land use planning and control.
  • The concept of amortization will not apply to substantial non-conforming buildings which involve heavy private investments. If may apply to non-conforming use of open land, and non-conforming buildings which could be converted to conforming uses without substantial loss of investment. Therefore, the amortization period could be relatively short.

 Existing Process

  • The Air Pollution Control Ordinance and the Noise Control Ordinance apply.

Proposed Changes

  • No change.

____________________________________________________________

Note 4.2: The main urban areas are divided into three zones: Density Zones 1,          2 and 3. Density Zone 1 covers the major part of the built-up areas of Hong Kong Island and Kowloon; Density Zone 2 covers a smaller area comprising the Mid-levels of Hong Kong Island; and Density Zone 3 covers the lower density residential areas, e.g., the Peak, Repulse Bay, and north of Long Cheung Road. 

FIGURE 5 EXISTING STATUTORY PLAN-MAKING PROCESS (See below.)

FIGURE 6  PROVISION OF STATUTORY PLANNING RESPONSIBILITIES(See below.)

FIGURE 7 PROPOSED PLAN PREPARATION PROGRESS (See below.)

FIGURE 7 PROPOSED PLAN PREPARATION PROGRESS

FIGURE 8  CONSIDERATION/HEARING OF REPRESENTATIONS AND SUBMISSION OF DRAFT PLAN TO GOVERNOR IN COUNCIL UNDER THE NEW SYSTEM (See below.)

FIGURE 9 PROCEDURE FOR PROCESSING PLANNING APPLICATIONS (Se below.)

FIGURE 10  PROCEDURE FOR PROCESSING PLANNING APPLICATIONS (See below.)

ISSUES NOT COVERED IN THE COMPREHENSIVE REVIEW OF THE TOWN PLANNING ORDINANCE

 TREE PRESERVATION

The importance of tree preservation needs no explanation. Traditionally villagers in the New Territories believe that ‘fung shui’ (Note 4.3) woods near the old villages and temples must be preserved and no development will be allowed to displace the wooded slopes. This concept (aside from ‘fung shui’) is in fact scientific because the trees growing behind the village settlements would act as a natural shield protecting the dwellers against gusty wind of typhoon and preventing soil erosion as well as flooding. In Hong Kong, the pressure of urbanization and conurbation has obvious great detrimental effects on the environment. The Urban and the Regional Councils and the Agricultural and Fisheries Department are the government agencies who are responsible for tress preservation. The latter Agency is also charged with the responsibility for the conservation and management of Hong Kong’s country sides.

[Note 4.3: Literally ‘fung’ means ‘wind’ and ‘shui’ means ‘water’. The two elements that most Chinese believe would have geomantic effect on human activities.]

The legislations at that time relating to the felling and replanting of trees seem adequate. The Forests and Countryside Ordinance provides for the general protection and management of vegetation, and special protection is given to certain plants, including native Camellias, Magnolias, and Orchids. Azaleas and the Chinese New Year Flowers.

The Country Parks Ordinance provides for the designation, control and management of country parks which cover more than 38% of the land area in the territory. Particular protection to vegetation and wildlife is given under the Ordinance in these park-areas.

When serious damage, cutting and theft of trees occur in public or government property, the Crime Ordinance or Theft Ordinance will apply.

Preservation of trees on private development is achieved by imposing special conditions in the lease of land grant. Trees cannot be felled without the prior consent of the relevant government authority and approval will only be given on condition that more trees will need to be planted in exchange in designated locations for any trees felled as result of development.

Although the control and preservation of trees and management of country parks appear adequate in practice, the grossly negligent on the part of the public—the picnickers who frequented the barbecue spots in the country parks and left behind sparks that have caused devastating hill fires, negated to a great extent the effectiveness of environmental protection.

There are more hill fires especially during the dry season from October to February in the following year and during Chung Yeung Festival on the ninth of the nine moon (around October) according to the Chinese Calendar when people pay traditional homage to their ancestors at their ancestral graves, Worshipping papers are burnt as part of the ritual and the hot ashes may cause any accidental fire. Despite continuous education on television about the importance of trees preservation and the exercise of extra care in preventing hill fires, the incidents of fire occurred in the dry season has not diminished. There seems to be no immediate solution to this problem other than increasing the enforcement control through the nature wardens and park wardens and as a long-term measure, the concept of environmental protection should be one of the objectives in the entire education system commencing from the levels of kindergartens and preparatory schools.

ADVERTISING SIGNS

The Comprehensive Review of the Town Planning Ordinance (July 1991) did not provide any suggestion to centralize control of advertisement signs, as the legislations then including the Public Health and Municipal Services Ordinance and Advertisements By-laws Buildings Ordinance, Crown Lands Ordinance, Summary Offence Ordinance, Fire Services Ordinance and Country Park Ordinance were deemed adequate in regulating the exhibition of any advertisement.

Actually, there are obvious evidence indicating the lack of effective central government control over the maintenance and installation of shop signs and advertising. (Exceptions are those properties under good and profession management.)  If one would make a  tour in the business districts like Yaumati, Mongkok, Causeway Bay, Wan Chai, and some of the busy side streets, one undoubtedly would have seen as common sights neon signs and steel-framed advertising structures dangling above the pavements and very often bridging the ends of the signs on the opposite side of the road/street. The half-hearted control or inert enforcement on the part of the government (mainly owing to divided responsibility and lack of staff resources) in the past decades has exacerbated seriously the problem.

For improvement of cityscapes and implementation of the civic design concept, the effectiveness of control could be more easily achieved by vesting the power of control on one government agency instead of many. By streamlining enforcement power and procedures, a high planning standard for cities would be maintained.

THE CONCERN OF CHANGES

The success of the Hong Kong economy as evident in the 1970 to 1990’s  had transformed the British colony from an entrepot or a manufacturing centre to one of the world’s leading financial centres and the outpost for business adventures in China. Hong Kong had been playing an increasing role for China as a ‘capitalist’ outpost towards 1992. The Union Jack was lowered when the highly autonomous Special Administrative Region (SAR) Government would be functioning as promised in the Sino-British Joint Declaration signed in Beijing in 1984, whereby the ‘one country two system’ concept would be implemented unchanged for 50 years. It goes without saying that among a number of factors: geographical, political, economic, and social underpinning the prosperity and stability of Hong Kong , one major factor that has significant impact is the efficient use and development of land—a scarce resource in the conurbation of Hong Kong. The leasehold system of land tenure cum development control in contractual lease documents which developed historically has provided the advantage of certainty for development. In other words, the purchaser of land or developer knows for certain the potential of the plot of land, so the investment return of cash flow can be projected fairly accurately in making the decision for the highest price that could be offered for the purchase of the property. The plot of land is easily marketable as a commodity with development rights which are not subject to any uncertainty in applying for planning permission as in the case of United Kingdom. Some of the public concerns (which are not exhaustive) are listed as follows:

While generally the proposed public participation in the town planning system was welcomed, some people and developers worried about the likely delay and administrative efficiency in public consultation.

  • Development control should avoid over-regulation. (The existing system: restriction under lease conditions and the provisions in the Buildings Ordinance and Buildings (Planning) Regulations were certain and efficient.)
  • The objective was to improve quality living; it should not stifle economic and property value.
  • Development into the comprehensive permission system must be avoided. The lack of certainty in the permissible development potential had been proved unsuccessful in the U.K.  as a result of inflexibility, which affected real estate values and slowed down development?
  • The enforcement of Amortization Notice on non-conforming use was a completely new concept in Hong Kong. It had not been proofed successful in the U.S.A. To deprive an owner of land in Hong Kong, i.e., the lessee (but Government was the landlord as well as the planning authority) the lawful likelihood and, or the development rights embodied in the remaining terms of the lease needed to be carefully addressed.
  • Amortization of non-conforming land use might lead to economic disruption and put some jobs at risk. Should industrial re-location strategy be part and parcel of the amortization program?
  • The possibility of abusing the system of lodging objections against the zoning of development applications and, or applications for amendment to the statutory plan must be avoided in the proposed new legislation.

COMPENSATION AND BETTERMENT

The consultative document on Comprehensive Review of the Town Planning Ordinance published in July 1991 did not put forward any proposal for the newly proposed legislation to deal with the subject of Compensation and Betterment. Instead the issue was referred to a Special Committee on Compensation and Betterment set up independently to receive public submission. Its function was within the given terms of reference to advise the government on the need for related statutory provisions in the new Planning Ordinance.

Terms of reference of the Special Committee:

 Accepting the objectives of planning and set out in the Consultative Document, and working within the content of the planning structure proposed, and having regard to—

(a)   The principles of the common law, the provisions of the existing status and property rights created by leases as these related to compensation;

(b)   The extent to which the value of land and property is created by public investment in infrastructure and facilities;

(c)   The extent of which the value of land and property is determined by plans and planning decisions affecting zoning, density and quality of the physical environment;

(d)   The need to ensure that the process of planning in Hong Kong remains affordable and is not constrained or impaired by the requirement to pay compensation;

(e)   The extent to which the total costs of any compensation requirements would need to be offset against the revenue from any betterment charges.

To receive submissions and to take expert advice on the general question of whether there should be compensation for planning restrictions and planning blight caused by the zoning of land for some future public purposes and betterment charges arising from planning enhancement; and to advise the Governor on whether there is a requirement for provisions relating to compensation and betterment to be included in the new Planning Ordinance and if so, to make appropriate recommendations.

In carrying out its work, the Special Committee shall refer any important issues of public policy on which it needs direction to the Executive Council through the Secretary for Planning, Environment and Lands.

(Note 4.4: Comprehensive Review of the Town Planning Ordinance Consultative Document published on July 10, 1991.)

MAIN COMPENSATION LEGISLATIONS AFFECTING DEVELOPMENT RIGHTS AND LAND VALUES

The principle of compensation had long been set under the provision of the Crown Lands Resumption Ordinance (Cap. 124) in regard to total confiscation of development rights for public purpose as defined in the Ordinance. Section 4(2) of the Town Planning Ordinance provides that the Town planning Board may recommend to the Government the resumption of land which interferes with the layout of an area in a statutory plan or an approved master layout plan within a ‘Comprehensive Development Area’ There are also provisions in the Mass Transit Railway (Land Resumption & Related Provision) Ordinance (Cap. 270) and Roads (Works, Use and Compensation) Ordinance (Cap.370) respecting resumption of land and other.

There are also other circumstances when compensation is payable under which the property owner is not completely deprived of all development rights as provided under the lease conditions but suffers under section 18(2) of the Country Park Ordinance (Cap. 208):

(1)  Damage or disturbance to or loss of or in values of any land, chattel, trade or business;

(2)  Personal  disturbance or inconvenience;

(3)  Extinguishment, modification or restriction of rights; or

(4)  The costs of affecting or complying with any requirement which is authorized or imposed by, or under the Ordinance or arises from any act or mission so authorized.

The term ‘disturbance’ is expressly defined in Part II of the Schedule of the Mass Transit Railway (Land Resumption and Related Provision) Ordinance (Cap.276) as follows:

‘disturbance’ means the displacement of a person from land and the interruption of, or interference with trade of business, whether such displacement, interruption or interference is temporary or permanent.

Part II goes on to define ‘disturbance’s payment’ as a sum equal to:

(a)       the financial loss naturally and reasonably resulting from the displacement of a person from land, and

(b)       in the case of disturbance of a trade or business on any land, the financial loss naturally and reasonably resulting from the disturbance of that trade or business.

Until 1984, disturbance had been limited to business premises and did not extend to non-business or domestic premises. The enactment in 1984 in section 10(2)(e) of the Crown Lands Resumption provided a right to claim for removal and other expenses in relation to domestic and all non-business premises.

Section 8 of the Antiquities and Monument Ordinance (Cap.53) provides for payment of compensation at the discretion of the ‘Authority’ (Note 4.5) for imposing restrictions under section 6 on development and other acts in relation to any monument provided that:

6(1) …no person shall—

(a)  excavate, carry on building or other works, plant or fell trees or deposit earth or refuse on or in a proposed monument or monument; or

(b)  demolish, remove, obstruct, deface or interfere with a proposed monument or monument, except in accordance with a permit granted by the Authority (Note 4.5)

Compensation is not arising out of right of owners or lawful occupiers, but is only payable where the Governor has granted approval to the recommendation submitted by the Director of Urban Services and where financial loss is suffered or is likely to be suffered by owners or lawful occupiers by reason of:

(i)              the Authority having entered private land for inspection, or to fence, repair, maintain, preserve for relics;

(ii)              the Authority refusing to grant a permit under section 6 for the carrying on of building or other works or because of any  conditions imposed in a permit.

Section 18A (1) of the Buildings Ordinance (Cap.123) provides that any occupier (Note 4.6) of a building for which shoring is erected and any other person who has suffered loss or damage by reason of the erection, maintenance or dismantling of the shoring may apply to the Lands Tribunal for payment of compensation and resolving any dispute arising as to amount of compensation or the person or persons to whom it is payable.

 Note 4.5: the ‘Authority’ has been defined as the Director of Urban Services.

Note 4.6: ‘occupiers’ is defined in section 2 as: occupier means in the case                   of domestic buildings, a person resident therein and in the case of  other buildings means a person carrying on an occupation full-time in such buildings.

____________________________________________________________

The Foreshore and Seabed (Reclamations) Ordinance (Cap.127) provides for payment of compensation by the Government to any person whose interest, right or easement in or over foreshore or seabed, is injuriously affected by a reclamation.

The claim of compensation for injurious affection is the sole remedy available to an affected person under section 12(1) of the Ordinance. Accordingly the affected person is prohibited by statue law to bring an action  against the Government for damages upon  extinguishing  his/her rights.

The Crown Lands Resumption Ordinance, section 10(2) (c) expressly provides for compensation for loss or value due to severance and not to injurious affection. These two terms are similar because both refer to a loss of value of the land retained by the owner, but they are different concepts. Sometimes these two terms are confused in use, but in Hong Kong, the tendency is to interpret the two terms separately.

Section 21 of the Hong Kong airport (Control of Obstructions) Ordinance (Cap.301) creates a right to compensation in favour of any person who, as a consequence of orders or notices having been made under the Ordinance:

(1)  has an interest on land the value of which is diminished; or

(2)  sustains damage by loss of rent or is disturbed in the enjoyment of any right in or over land; or

(3)  incurs reasonable expenses for the purpose of carrying out required building works.

The Road (Works, Use and Compensation) Ordinance (Cap.370) provides for the resumption of private land for road works or use. Persons whose compensable interest affected have the right to recover compensation from the Crown (section 27).

The items and the basis of compensation are stipulated in the first column and in the second column of Part II of the Schedule respectively, whereas the valuation principles are contained in Part I of the Schedule, (Readers should make reference to the Ordinance for details.)

‘Protected tenants’ under Part I of the Landlord and Tenant (Consolidation) Ordinance in possession of the property or some part thereof immediately before the service of the notice of re-development is entitled to compensation from the person who was the owner of the property immediately before the re-development notice was served. The right to compensation arises for the loss of right of the protected tenants.

However, it must be noted that the statutory right to compensation only arises where the Director of Buildings and Lands has first found that an incremental value as defined in section 6 exists. Otherwise, a tenant’s right to compensation does not arise.

(Note 4.7: ‘Incremental value’ is defined in section 6 of the Demolished  Buildings (Re-development of sites ) Ordinance (Cap. 137) as … the amount by which the market value of the property with vacant possession after the service of such notice exceeds what was the market value of the property in occupation prior to the property in occupation prior to the service by the Building Authority of the order for demolition or prior to the fire  or other calamity occasioning the issue under section 3 of the certificate of the Building Authority….)

We have seen that the practice in Hong Kong was to pay compensation for total removal of development rights where the leasehold land was resumed for public purpose as defined in the Crown Lands Resumption Ordinance and other Ordinances previously described herein.

In addition to payment for disturbance under the provisions of the relevant Ordinances, sometimes injurious affection was compensated because of planning proposals, for instance, the construction of a highway in the vicinity that had caused the rental or capital value of the property to diminish. Therefore, the right for such compensation was statutory. However, the philosophy in planning is that the ownership of land should not carry with it unlimited rights in the use of land. It may be subject to regulations imposed by Government or statute laws for the benefit of the public in terms of planning control. On these premises, the call for any compensation for planning restrictions on certain development seems fallacious, for example, in the case of reduction of permitted plot ratio in the Mid-Level. Another situation is that most of the leases granted in the urban areas before World War II contain no user restrictions nor building density, but it was not intended that unlimited development could be put on the land. The Buildings Ordinance (1932) restricted domestic buildings to five-storey and other buildings up to three-storey. Such restriction were relaxed in 1955 and in 1962, but building bulk was again subject to more stringent control by permitted plot ratio and site coverage stipulated in the Buildings Ordinance (1962).

In all these statutory changes, there was no precedent of compensation having been paid or betterment collected.  Similarly, the Block Crown Lease in the New Territories did not specifically restrict the use, but until the Court of Appeal’s  judgement  in Nelhado Investment Co. Ltd. v Attorney-general (1983) HKLR 327, owners of land under the Block Crown Lease would not anticipate development other than for agricultural use.

In the light of the above, it seems reasonable to assume the view that unrestricted leases granted in the past have never been intended to be unrestricted in their development rights, which if restricted by subsequent legislations should not give rise to any claims of compensation. This planning concept is in line with the practice in many countries (e.g., the U.S.A., Canada, Singapore and New South Wales in Australia).

How should the question of planning blight be addressed?

This is the situation when property rights are sterilized for long periods without the properties having been acquired by Government.

The existing provisions in the Town Planning Ordinance allow the Town Planning Board to recommend to Governor in  Council to resume land for public purpose (i.e., Government/Institution/Community or Open Space) but there is no statutory time limit. It is possible that the affected land will not be resumed and no proposed development in accordance with the lease conditions will be approved because it contravenes the zoning of town plan. Under such circumstances the current administration policy allows the affected land owner to submit a development proposal in compliance with the lease conditions of the land but in contravention to the land being zoned for a public purpose to the Town Planning Board which will reject such application. If upon a petition to Governor in Council also rejects the development application, the Government will either resume the property within the following financial year or permit the applicant to develop his/her project in accordance with the provision in the lease of the land.

Two suggestions were made in the consultative document (July 1991) of Comprehensive Review of the Town Planning  Ordinance.

(a)  Maintain the status quo,  i.e., to continue the existing administrative practice.

(b)  Replace the existing practice by a statutory provision, i.e., to introduce a system of ‘purchase notice’ under specified circumstance in the new Ordinance under which the affected land owners can require the Government to resume their land when its use was sterilized by statutory zoning.

Three criteria under which land owners would have right to serve purchase notices on the Government were described in the said consultative document:

a)    The land should be zoned for a public purpose on a statutory plan. For  the operation of this provision only, the zonings which would be specified as constituting public purposes would be ‘Government/Institution/Community’ (uses such as school. fire station and hospital), ‘Open space’ (uses such as public park), ‘Green Belt’, ‘Sites of Special Scientific Interest’, ‘Coastal Protection Areas, and other zonings that would promote conservation or protection of the environment.

b)    Development of land was permitted under the lease but was prohibited under the statutory plan or refused by the Appeal Board (AB). The land owner should demonstrate that he had the intention to develop his land in accordance with the use specified in the lease, and his development application had been rejected by the AB.

c)     The land was incapable of any reasonably beneficial use in its existing state. The land owner should demonstrate that his land was incapable of any other beneficial use, which was permitted either as of right under Column 1 or upon application under Column 2 of the Notes of the statutory plan in question. The relevant factors for consideration would be the existing physical state of the land, its size, shape and surroundings as well as the general pattern of land uses in the surrounding area. The test would be whether the land was capable of yielding a reasonable return to the owner. The concept of beneficial use was not synonymous with profitable use and the absence of profit, however it was calculated, would not necessarily be material. Whether or not the land would be of less use to the owner in its present state than if developed to any other prospective use would not be a relevant point of consideration; thus, a use of relatively low value, say, agricultural use in the rural area, might be regarded as reasonably beneficial if such a use was common for similar land in the vicinity. Whether or not the land could be developed to a more profitable use under the lease, say open storage use, if without statutory zoning would not be a point of consideration.

 The final form of the new legislation was not yet known (at the time of writing), but if the statutory purchase notice were introduced, the Government might have to deal with a flood of purchase notices within a short period of time and more litigation might result from different interpretation and disputes on the criteria of ‘incapable of any reasonably beneficial use’ and other related uses.

 NB

To see a full picture of the Town Planning situation after 1997 in Hong Kong, one must refer to the changes and amendments to the Hong Kong Ordinances since July 1, 1997, and in particular to CAP 131 Town Planning  Ordinance and regarding other Ordinances  ADAPTATION  OF LAWS (*________)ORDINANCES           [* means relative Ordinances]

 For easy reference, I quote part of the Legislative Council Paper: LC Paper No. CB (1) 558/98-99(02) for general information. Readers are urged to read the original LC Paper.

Adaptation of Laws Programme

Guiding Principles and Guideline Glossary of Terms

BACKGROUND

In accordance with Articles 8 and 160 of the Basic Law, all Ordinances of Hong Kong (with the exception of 24 Ordinances or parts of Ordinances) were adopted as the laws of the Hong Kong Special Administrative Region under the Decision of the Standing Committee of the National People’s Congress on Treatment of the Laws Previously in Force in Hong Kong in accordance with Article 160 of the Basic Law of the Hong Kong

Special Administrative Region of the People’s Republic of China adopted on 23 February 1997.

2. The Decision also sets out the principles on which the previous laws were adopted and how various expressions inconsistent with the status of Hong Kong as a Special Administrative Region of the People’s Republic of China are to be construed. These principles have been enacted as part of the local law by the Hong Kong Reunification Ordinance (Ord. No. 110 of 1997) and are now incorporated as section 2A and Schedule 8 in the Interpretation and General Clauses Ordinance (Cap. 1). In line with these general principles, more detailed principles of interpretation have been added to Cap. 1 by the amendments made under the Adaptation of Laws (Interpretative Provisions) Ordinance (Ord. No. 26 of 1998).

3. During the term of the Provisional Legislative Council, adaptations considered essential to the operation of the Special Administration Region were made under 6 Ordinances (the so-called “essential” adaptation Ordinances) each dealing with one or more subject matters.

4. The present stage of the adaptation exercise makes adaptations on an Ordinance-by-Ordinance basis and, subject to the qualification mentioned in paragraph 12 below, seeks to deal with all remaining adaptation matters.

GUIDING PRINCIPLES

 5. In implementing the present stage of the adaptation of laws programme, the guiding principles to be applied are as follows-

 (a) that the provision when adapted should be consistent with the Basic Law and with Hong Kong’s status as a Special Administrative Region of the People’s Republic of China, but that subject to this each provision should, as far as possible, be to the same legal effect after its adaptation as before. Any amendment that is neither related to the Basic Law nor necessitated by Hong Kong’s new status are outside the scope of the adaptation of laws programme;

(b) that the adaptation of each provision should be made in accordance with the relevant provisions of the Interpretation and General Clauses Ordinance (Cap. 1) where applicable, but the adaptation must be considered in the context of the particular Ordinance concerned and other related Ordinances.

 GUIDELINE GLOSSARY OF TERMS

 6. For the purposes of the present exercise, the ‘new terms’ shown in the table at Annex A are treated as the guideline adaptation of the corresponding ‘original terms’ shown in the table.

 7. The table is neither definitive nor exhaustive. However, amendments for adapting particular terms, or instances of departure from the guidelines will be explained separately to the Bills Committee involved.

GUIDING PRINCIPLES

 5. In implementing the present stage of the adaptation of laws programme, the guiding principles to be applied are as follows-

 (a) that the provision when adapted should be consistent with the Basic Law and with Hong Kong’s status as a Special Administrative Region of the People’s Republic of China, but that subject to this each provision should, as far as possible, be to the same legal effect after its adaptation as before. Any amendment that is neither related to the Basic Law nor necessitated by Hong Kong’s new status is outside the scope of the adaptation of laws programme;

 (b) that the adaptation of each provision should be made in accordance with the relevant provisions of the Interpretation and General Clauses Ordinance (Cap. 1) where applicable, but the adaptation must be considered in the context of the particular Ordinance concerned and other related Ordinances.

GUIDELINE GLOSSARY OF TERMS

 6. For the purposes of the present exercise, the ‘new terms’ shown in the table at Annex A are treated as the guideline adaptation of the corresponding ‘original terms’ shown in the table.

 7. The table is neither definitive nor exhaustive. However, amendments for adapting particular terms, or instances of departure from the guidelines will be explained separately to the Bills Committee involved.

 MISCELLANEOUS MATTERS

 8. Change of Titles

Various titles to government agencies and post titles were changed up

9. Historical references

Historical references do not normally need to be adapted. For example, when referring to a notice given by the Governor or a resolution passed by the Legislative Council before reunification, the references to “Governor” and “立法局” can remain unchanged. In some cases, it may be appropriate to delete an historical reference if the provision is spent or if keeping  the reference presents problems for the adaption of other references.

10. Section headings Section headings that require adaptation will be adapted editorially.

11. Short titles & Change of Titles Notice Where the short title to an Ordinance includes mention of a title which is subject to adaptation under the Change of Title Notice (e.g. the

Royal Hong Kong Auxiliary Police Force Ordinance (Cap. 233)), any reference to that short title found in another Ordinance will be adapted as a consequential amendment in the Adaptation Bill for the former Ordinance.

 12. Adaptations not dealt with in the present stage of the exercise Adaptation of the following references and provisions will not be dealt with in the Adaptation of Laws Bills for the individual Ordinances in which they are found but will instead be dealt with collectively in separate Bills for the subjects concerned –

 (a) references to “Her Majesty’s forces” and other military references;

(b) provisions relating to proceedings against the Crown that need to be considered in the context of the adaptation of the Crown Proceedings Ordinance (Cap. 300);

(c) provisions relating to Article 23 of the Basic Law.

 

Law Drafting Division                                                                                                   Department of Justice                                                                                                        November 1998

 

 

                                                                                         (To be cont’d in Chapter 6)

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About Francis Loo

I'm a retired landed property professional since 2005 with 57 years working experience, 41 of which related to landed property in Valuation, Property Management, Lease Negotiation etc., in Hong Kong, Toronto and Vancouver. A Guide to Effective Property Management in Hong Kong published in 1991 and translated in 1998 for Chun San University external training courses. Have been contributing biblical articles to Truth Monthly after retirement.
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