Treating the Symptoms - A Critical Review of ... - Civic Exchange

26traditionally given the Lands Department great discretionin disposing of land, setting lease terms and decidingpremiums. 71 A serious breach of the contract entitles thegovernment to “re-entry”, which is to re-possess the landwithout compensation. In practice, this is only done as alast resort, but the threat of re-entry compels compliance. 72The obvious limitation of development control throughlease conditions, however, is that lease conditions can onlybe altered when the lease expires, or when the owner appliesfor lease modification. New lease conditions throughplanning controls or building regulations can also only beimposed prior to approving building plans for a site. Giventhe multi-decade duration of leases, the planning needs ofthe city can change dramatically in between opportunitiesfor modification. Some leases cannot be changed at all unlessthe land owner voluntarily applies for a modification — thegovernment cannot impose new conditions on renewableleases, nor on old colonial 999-year leases.Secondly, there is the Buildings Ordinance, which isadministered by the Buildings Department. Its purposeis to ensure safety in building construction and design,and grew out of sanitation and safety legislation firstenacted in the 1850s to address problems of sanitationand overcrowding. 73 While these laws were initially heavilyopposed, they became accepted over time because theirstandards applied uniformly to everyone. Most of thecurrent Buildings Ordinance dates from 1962 and coversdiverse issues from construction standards to emergencyvehicle access to building maintenance. The Buildings(Planning) Regulations under the Ordinance also containdevelopment controls based on plot ratio and site coverageto ensure that buildings receive adequate sunlight andventilation. Any new buildings must comply with theBuildings Ordinance before the Buildings Department willissue them with building and occupation permits, and oldbuildings may be subject to inspections and, if necessary,mandatory repair orders.Finally, there is an administrative and statutory urban planning(zoning) system under the Town Planning Ordinance. Thisis administered by an appointed statutory body, the TPB,and its executive arm, the Planning Department. This was arelatively late addition, superimposed on top of the existinglease system and Buildings Ordinance. The Town PlanningOrdiannce, based on the British planning system, 74 waspassed in 1939 because the colony’s rapid growth called formore sophisticated methods of town planning. However, itsimplementation was delayed until after World War II. 75The Town Planning Ordinance empowers the TPB, throughthe Planning Department, to draw up statutory town plans.These plans, called Outline Zoning Plans (or DevelopmentPermission Area Plans in areas) show what is intended to beplanned in a district. The only other body allowed to drawup statutory plans is the URA, whose powers are limitedto declared Development Scheme boundaries. Plots ofland are zoned for specific uses — residential, commercial,industrial, open space, etc. If a land owner wants to use hisland for a purpose other than what is stated in the OZP, orif the land is within a zoned Comprehensive DevelopmentArea, he must apply for TPB approval. Since 1973, thegovernment has also asserted the right to impose statutorydensity and height controls in specific geographical areas,usually based on calculations of the capacity of the area’sinfrastructure. These controls were heavily opposed byland owners because their restrictions applied differentlyto different plots of land, on top of the existing BuildingsRegulations.Imposing a statutory planning system on top of the existinglease system was problematic, resulting in the wateringdown of the Town Planning Ordinance. Leaseholdersjustifiably saw the introduction of additional developmentcontrols in excess of those already stated in their leases asan attenuation of the development rights that they hadfairly purchased. Hence, the Town Planning Ordinanceof 1939 ruled out the possibility of compensating ownersfor loss of development rights, but it also did not containany provisions for enforcement. The plans drawn up bythe TPB were only meant to administratively guide futuredevelopment.The planning permissions system for non-conforming usesdescribed above was only set up in the 1970s; and only in1991 was the TPB granted powers to inspect and fine nonconforminguses in the New Territories. In urban areas,enforcement must still be carried out indirectly through theBuildings Ordinance and lease conditions. 76 No action canbe taken against non-conforming land uses if they do notalso violate lease conditions or the Buildings Ordinance.