Smart Governance Lab (SGL)Governance of Development Control in HK

Dr Hon Edward Yiu

Legislative Councilor

Apr 12, 2017

http://www.ibm.com/smarterplanet/us/en/smarter_cities/overview/

Overview: The political system of city management in HK

•Administration

•Legislation

• Judiciary

Separation of PowerHK Basic Law Japan Constitution

Executive Leading, the Legislative Council with direct elections and functional constituencies, judiciary independence but the interpretation power is in NPC

Congress divided the House of Representatives, executive cabinet ruling party, judicial independence

No clear balance Checking Balance

Governance of City Management HK

• No Public-Nominated and Public-Elected Chief Executive

• Half of Legislative Council Members are Public-Elected

Executive Council and Govt Departments

Legislative Council

(supposed to monitor govt)

Judiciary (supposed to be

independent)

Public Voice and Votes

Chief Executive Election

•NO

•Only 1200 Election Committee Members

Legislative Council

• 50%

• Another half is from Functional Constituencies

District Council

• Yes

• But advisory role only

Complaints• ICAC, Ombudsman, 1823

Independent Statutory Bodies• Investigating Corruption: ICAC

• Value for money: Audit Commissioner

• Complaints against administrative malpractice: The Office of the Ombudsman

• Civil Service: Civil Service Commission

• Handle Complaints orInternal Investigations

• No public-elected representatives

Committees on Urban Management

• Urban Planning: Town Planning Board

• Public Housing: Hong Kong Housing Authority

• Hospital: Hong Kong Hospital Authority

• Railway: Mass Transit Railway

• Airport: Hong Kong Airport Authority

• Money Supply: Hong Kong Monetary Authority

• Property Management: Property Management Authority

• ……

• No public-elected representatives

• Profit-making or Self-financing

• Who pay for the construction cost of public housing?

Privatization of Urban Facilities

• Energy: Power Supply, Gas

• Transportation: Bus, Minibus

• Infrastructure: Tunnels, Bridges

• Telecommunication: Television Broadcasting

• Franchises• Profit-making

District Council Election

• Direct Election

• In ~430 districts

• By ~1.5m votes

District Council

• The functions of the District Council provide advice to the Government on the following items:• Affect the welfare of the area Provision and use of public facilities and

services in the district• Whether the Government's plans for the districts are sufficient and the

order in which they are implemented

• The use of funds in the districts for public works and community activities in the area In the case of funding for the purpose：• Environmental improvement in the district• Promote the work of cultural and recreational activities in the district• Community activities in the district.

https://zh.wikipedia.org/wiki/%E9%A6%99%E6%B8%AF%E5%8D%80%E8%AD%B0%E6%9C%83

Legislative Council Election

• Direct Election (5 Districts)

• Functional Constituencies (28)

Legislative Council Election

• Functional Constituencies (28)• 14 automatically elected• 5 constituencies with just 200 voters each

Chief Executive Election

• Only 1200 Election Committee Members

• 30 EC members from ASPL

3-level of Legislation in HK

Enact in LegCo

Authorized by Laws to Form an Authority

Law Makers Cannot Make Laws in HK! • Article 73 of Basic Law

• Legislative Council is• 1. to enact, amend or repeal laws …

• 2. to examine and approve budgetsintroduced by the govt

• 3. to approve taxation and public expenditure

• …• 8. to receive and handle

complaints from HK residents• …

A Law-maker Initiates A Bill is Restricted by Article 74 of the Basic Law

Article 74 of the Basic Law

• Article 74 of the Basic Law provides that Members of the Legislative Council may introduce bills in accordance with provisions in the Basic Law and legal procedures. Bills which do not relate to public expenditure or political structure or the operation of the Government may be introduced individually or jointly by Members of the Council. The written consent of the Chief Executive shall be required before bills relating to Government policies are introduced.

• 3. The requirements in Article 74 are reflected in Rule 51 (Notice of Presentation of Bills) in particular subrules (3) and (4) of the Rules of Procedure of the Legislative Council

Bills Committee

Third Reading and Vote

Voting Procedures

• 1. If Govt Raises, 50%Passed

• 2. If Member Raises, 50% Passed in Both Functional Constituencies and Direct Elections

Four Major Areas in City Development

Buildings建築物

Town Planning城市規劃

Environmental Impact Assessment 環境影響評估

Land 土地

Related Regulations in City Management HK• Statutory:

• Building Control (Buildings Ordinance)

• incl Antiquities and Monuments Ordinance)• Town Planning Control (Town Planning Ordinance)• Environmental Control (Environmental Impact Assessment

Ordinance)

• Covenant:• Land Lease Administration

• Leasehold Tenure• Registration (Conveyancing and Property Ordinance)• Land Rent and Rates (Rating Ordinance, etc)• Lease Conditions (Government Leases Ord)• Land Resumption (Land Resumption Ord, etc)

Town Planning System

Statutory

Outline Zoning Plan

HK Planning Standard and Guidelines

Planning Stantdard

規劃標準與準則http://www.pland.gov.hk/pland_en/tech_doc/hkpsg/sum/pdf/sum.pdf

District Plot Ratio

HK Island Dev Area R1 8/9/10

New Dev Area R1 6.5

Low Density Housing R3 3.6

Town Planning Political StructureTown Planning Ordinance (Since 1939)

•Authorize

•Set Procedures

•訂立刑罰

Planning Department

•Govt Dept

•Produce Plans

•Enforcement

•Develop Standard and Guidelines

Town Planning Board

•Members are Appointed by CE

•Review Statutory Plans

•Review s.16 and s.12A Applications

Town Planning Appeal Board• Members are Appointed• Review Appeal Cases

Public• Complain to LegCo• Join Engagement• Voice Out in Public

Hearing

Building Control Political Structure

Buildings Ordinance

•Authorize BA

•Set Procedures

•Fix Penalty

•Authorize Discretions, Practice Notes, etc

Building Department

•Govt Dept

•Enforcement

•Regulate AP, RSE, C’or

•Review Bldg Plans, Consent Appl

•Develop Practice Notes, etc

BA (Dir of BD)

•Appr AP, RSE, C’or

•Appr Bldg Plans

•Appr Consent Appl

Building Appeal Tribunal• Members are Appointed• Review Appeal Cases

Public• Complain to LegCo

DevelopersAP & ProfessionalsContractors

Building Management Political SystemBuilding Management Ordinance

•Authorize IO

•Set Procedures

•Fix Penalty

Home Affair Dept

•Govt Dept

•Facilitate IO Formation

Property Management Services Authority (2016)

•Members are Appointed by CE

•Regulate Prop Mgt Co and Employees

Incorporated Owners IO

•Manage Common Parts

•Regulate Co-owners

Co-owners• Complain to LegCo

Professionals and Services Providers

Land Ownership Political SystemSteering Committee on Land Supply

，Govt Monopolises Supply

•Land Sale Income

Lands Dept

•Govt Dept

•Prepare Land Leases

•Repr Govt as Landlord

•Develop Practice Notes

Landlord and Leaseholders

•Land Sale (50-yr Tenure)

•Lease Modifications by Private Negotiation (Land Premium)

Powered by Laws

•Land Resumption Ordinance

•Urban Renewal Ordinance

•…

• Non-Administrative Role of Govt

• Not Subject to Judicial Review

• Pure Private Deals

Control Mechanism is Fragmented

• Take Development Intensity Control as an example:• Land lease controls total GFA and building height

• Buildings Ordinance (BPR Sch 1) provides a trade-off table between height, plot ratio and site coverage

• Town Planning Ordinance controls building height (BH), plot ratio, building gap (BG), no-building area (NBA).

• Definitions of GFA and BH are different among different departments

• …

Control Controlled by Problems

Planning TPB members appointed by CE

Top-down without checking balance

Lease Decided by Civil Servant (non-adm role) Focus on

land premium (for private lessee only)

Govt in the capacity of a landlord, not for

public interests

Building Decided by Civil Servant (for private bldg. only)

Mostly prescriptive codes, strict and

outdated

Environment Decided by Civil Servant Govt projects would not be rejected

Fragmented Control with Different Purposes

Land Lease Conditions

• Modifications of Covenant are based on private negotiation

• Old Leases Conditions are Outdated

• Different from other controls• User Clause

• Development Intensity Control

• Height Control

• DMC Control

Development Intensity Control by BO

• S.19-23 of Building (Planning) Regulations

• Control by Plot Ratio and Site Coverage• Choose building height (No limit);

• Determine Use and Class of Site;

• Check Schedule 1 to choose Plot Ratio and Site Coverage

• There are concessions and bonus of GFA granted by Laws

Plot Ratio• Maximum GFA = Site Area x Max PR

• example:

• Site Area = 1,000 sm

• Abut 3 Streets, i.e. Class C Site

• For Residential Use

• If Height > 62m

• Sch 1 ，Max PR = 10

• Max SC = 40%;

• Max GFA = 1,000 x 10 = 10,000 sm.

• If 25-storey，400sm / storey，25 x 400sm@ = 10,000 sm.

• SC = 400sm (40% sa).

400sm/storey

25

Storey

Site area = 1,000sm

pr = 10, sc = 40%

Appeal and Complain System

• Appeal• S.17 of Town Planning Ordinance

• S.44 of Building Ordinance

• S.17 of Env Impact Assessment Ordinance

• Checking or Complain• Audit Commissioner: Internal Audit

• 1823

• Ombudsman

• Complain to LegCo

• Judicial Review• To the Court

Litigation on Land Matters• Lands Tribunal

• Landlord and Tenant (Consolidation) Ordinance • Building Management Ordinance and the Interpretation and

Enforcement of the DMC, the appointment or dissolution of the Management Committee, the convening of the owners' meeting and the appointment of the manager

• land (compulsory sale for re-development) Ordinance• Appeal under the Rating Ordinance, the Government Rent

(Assessment and Collection) Ordinance and the Housing Ordinance• 《業主與租客（綜合）條例》或普通法而提出的收回樓宇管有權申請

• 《建築物管理條例》及公契解釋和執行的爭議，委任或解散管理委員會，召開業主大會及委任管理人等事宜所引起的爭議

• 當政府因進行公共發展而根據有關條例強制收回某些人士的土地，或令他們的土地減值

• 《土地(為重新發展而強制售賣)條例》為售賣土地作重新發展而提出申請

• 《差餉條例》、《地租（評估及徵收）條例》和《房屋條例》提出上訴

No Complaints on Land Matters• Lands Dept acts in the capacity of the landlord, and

the decisions are not subject to judicial review, and do not have to be reasonable.

• A new pilot arbitration scheme on land premium negotiation has been launched, but so far there was only 1 case arbitrated.

Land premium arbitration pilot plan The applicant or the government may propose to settle the land dispute through arbitration

Case Study 1

• Planning Control and Enforcement

OZP Outline Zoning Plan分區計劃大綱圖

DPA Development Permission Area發展審批地區圖

39

40

Code Use

C Commercial

CDA Comprehensive Development Area

G/IC Government/Institutional and Community

O Open

OU Other Specified Uses

R(A) Residential (Group A)

R(B) Residential (Group B)

41

1.Apply for Column 2 Uses

• eg：Apply for Building a Hotel on Residential Use Land• S.16 of TPO：• Subject to TPB Approval•With or without Conditions

42

How to enforce the conditions?No more approval or checking procedures once the application is approved

2. Appeal Procedure

• eg：if s.16 application is rejected• S.17 of TPO •Apply for a review or appeal•Members appointed by CE•Not from TPB

43

3. Judicial Review

• eg：Hysan Applied for a Judicial Review on the building height limit of an OZP• Private Property Rights is Protected by

Basic Law, should not be compromised by OZP

44

4. Rezoning Application

• If the desired land use is not listed in either Column 1 or Column 2

• According to s.12A of TPO, apply for rezoning

• The procedures are the same as preparing a new OZP

• With detailed feasibility study is preferred

• Will conduct hearings

• No review or appeal channels.

http://www.info.gov.hk/tpb/tc/plan_application/Attachment/20160826/s12a_Y_H10_9_0_gist.pdf

Compare s.16 and s.12APlanning Application

(s.16 of TPO)

Re-zoning Request

Submit s.16 application to

TPB

Submit re-zoning proposal

to TPB

2months 3months

Accept or reject

application by TPB

Accept or reject request

by TPB

If rejected, applicants may

apply review or appeal

(s.17 of TPO)

If rejected, no appeal

channel;

if accepted, OZP will be

amended for gazetting

Compare s.16 and s.12A (cont’d)

Public consultation

3weeks /

2months

Hearings of objections

Amendments due to

objections, if necessary

Case Study of s.12A

S12A of TPO

Industrial -> Hotel

Match with Govt Policy

• Hotel is not included in either Col 1 or Col 2

• But it matches with govt policy of increasing

hotel bedrooms

• Developer buys land，normally a GP Surveyor leads

• Planner prepares Planning Statement

• Architect prepares Development Scheme of A&A Works

• Traffic Consultant prepares Traffic Impact Assessment

Report

• Environmental Consultant prepares Impact Reports

• Structural Engineer and E&M Engineer provide Advice on

Alteration Works

49

Rezoning Team

Building Plan of the Rezoning Proposal

50

Existing External Wall & Slab to be Demolished

51

Building Section of the Rezoning Proposal

Brownfield

52

• 1200 ha• Agricultural Use• Now Container Ports, etc

Background of the Cause

53

• 1898, the New Territories was leased to the British

• Block Crown Leases weregranted to replace the China one

• A Schedule in the BCL shows the uses and conditions

Melhado Case

54

• The Privy Council held that the Schedule showed the current uses and not the permitted uses

• Town Planning Ordinance was enacted in 1939 for urban areas only

• OZP did not include the New Territories• The govt lost the case in 1983, but did not

seek any law amendments for years• An amendment bill was submitted to LegCo

only in 1990• And was passed in 1993, but no enforcement

power

(Attorney General v Melhado Investment Ltd. [1983] HKLR 327

Further Amendments of TPO

55

• Add DPA in the NT to introduce enforcement power

• But no retrospective power• For sites zoned with OZP but

never DPA, PlansD would have no enforcement power on them

http://www.info.gov.hk/tpb/en/list_of_plans/coverage_enlarge.html

My First Private Bill

• Try to provide enforcement power to PlansD on non-DPA sites

https://wordpress.com/post/ecyyiu.wordpress.com/9252

The End

For enquiries, please send email to

Edward CY YIU

contact@edwardyiu.org