New Planning System under Town Planning (Amendment) Ordinance 2004
Mr Bosco C K Fung, JP, Director of Planning, was the Foundation's guest speaker on 5 July 2005. Below is the full text of his speech.
Ladies and Gentlemen,
It is my great honour to be here with such a distinguished audience today and be given an opportunity to brief you on the new planning system under the Town Planning (Amendment) Ordinance 2004 which came into operation on 10 June. This is a key milestone in the history of town planning in Hong Kong.
To put the subject in context, I will first briefly outline the evolution of the Town Planning Ordinance (the Ordinance). The Ordinance was first enacted in 1939 with an objective to promote ‘the health, safety, convenience and general welfare of the community by making provisions for the systematic preparation and approval of plans for the future layout of existing and potential urban areas'. The first Town Planning Ordinance was quite rudimentary, only providing for the appointment of the Town Planning Board by the then Governor, preparation of plans, consideration of objections by affected persons, and approval of the plans by the then Governor-in-Council.
In 1939, the first Town Planning Board was made up of the Chairman and ten members only, compared with the 40-strong membership today. In those days, the concerns were more related to basic hygiene and safety requirements and adequate housing provision. With rising affluence and community aspirations, we are now concerned with much more than mere basics. In addition to continued quests for social and economic developments and better transport and infrastructure, quality living, better cityscape and natural environment are now required to be considered in a much more comprehensive manner.
The changes in public aspirations and planning circumstances were reflected in several major amendments to the Ordinance¹ over the years. In 1974, provisions were added to allow for planning applications to be made to the Board and a right of review of the Board's decision on such applications. This was when we first started listing out the uses that are always permitted for each zone (the Column 1 uses) and the uses requiring the Town Planning Board's approval (the Column 2 uses) in the Notes attached to each statutory town plan.
In 1991, the statutory planning jurisdiction was extended to cover the rural areas in the New Territories, basically to deal with the problem of proliferation of open storage uses at the time. The legislative amendments provided for the designation of Development Permission Areas (DPAs) and means of enforcement by the Planning Authority against unauthorized developments in the DPAs. In the same year, in view of rising workload of the Board, the Ordinance was further amended to enable the setting up of two planning committees, one for the Metro area and one for the new town and rural areas, to undertake the preparation of draft plans and consideration of planning applications under the delegated authority of the Board. To enhance fairness, an independent Town Planning Appeal Board was also set up to consider planning appeals against the Board's decisions on planning applications.
In 1998, further legislative amendments were made to expedite the procedures for consideration of objections to draft plans. These included the stipulation of a time limit of nine months for completing the procedures for consideration of objections and submission of the draft plan to the Chief Executive in Council for approval, as well as the provision for the Board to appoint a committee to hear objections on a need basis.
All the above piecemeal amendments to the Ordinance were necessary to deal with imminent problems at the time. However, the need for an overhaul of the Town Planning Ordinance was long recognized. As early as 1987, the then Executive Council ordered a comprehensive review of the Ordinance. The task has been exceedingly difficult given all the conflicting interests of the various sectors of the community, and the conflicting objectives for a planning system to achieve development control whilst providing freedom to market-led developments; to strike a balance between certainty and flexibility; and to promote openness without compromising efficiency. Furthermore, given the highly controversial nature of planning actions, such as restriction of development rights, urban design, and conservation of the heritage and natural environment, it is an almost impossible job to derive a planning system that would please and satisfy everyone.
In 1991 we published a consultative document on the Comprehensive Review of the Town Planning Ordinance for public comments. A Special Committee was also set up to consider public views and make recommendations on the issues of compensation and betterment. We then began the legislative process by publishing a White Bill in 1996 for public consultation, followed by a Blue Bill introduced into the Legislative Council in 2000. However, due to the complexity of the issues involved and the diverse views received, the Legislative Council (LegCo) could not complete the examination of the Blue Bill before its term ended in 2000. The whole Bill lapsed and we were back to square one!
With hindsight, we were perhaps too ambitious to try to completely overturn a system that is over 60 years old all in one go. Nevertheless, we did not give up as we saw the need for improvement to our planning system to catch up with the expectations of the development industry and the community. Particularly, we saw the need to increase the openness and transparency in the planning system, to make the processing of development proposals more efficient and to strengthen our enforcement actions against unauthorized developments in rural New Territories. After reviewing the proposals in the Blue Bill in the light of the LegCo's concerns and the public comments received, we decided to put forward amendments to the Ordinance in stages so that the more urgent and less controversial issues could be addressed first.
So we introduced another Town Planning (Amendment) Bill into LegCo in May 2003. After some extensive public consultation and 25 meetings of the Bills Committee, the Town Planning (Amendment) Ordinance 2004 was finally passed by LegCo in July 2004 and it came into operation last month. To us, this is a big step forward to a fairer and more efficient, effective, open and transparent planning system. It has brought us closer to the more advanced planning systems in many overseas countries, such as the United States and the United Kingdom.
The 2004 Amendment Ordinance has three main objectives: to enhance transparency and public participation in the planning process; to streamline the planning procedures; and to enhance the efficiency and effectiveness of planning enforcement control in the rural areas of the New Territories.
A great part of the Amendment Ordinance is to do with changes to the plan-making process. Under the Amendment Ordinance, all draft plans prepared by the Town Planning Board will be published for two months (as compared to the previous three weeks for amendments to draft plans). Then there will be a two-stage process (instead of the previous three stages) for consideration of public views on the draft plan. Both supportive and opposing representations may now be submitted to the Board, and the Board will publish such representations for three weeks for public comments (under the previous Ordinance, only affected persons may submit objections to the Board and the objections would not be published for public inspection and comments). This publication process will enable the Board to obtain views across the community before the hearing. At the hearing, all parties who have submitted representations and comments will be invited to have a direct dialogue with the Board. If, after the hearing, the Board decides to propose amendments to the plan to meet the representations, the proposed amendments will be published again for further representations by the public. As compared to the provisions under the previous Ordinance where only affected land owners were given two weeks' notice to submit further objections to the Board, the Amendment Ordinance allows any person (other than the original representers and commenters) to submit further representation on the proposed amendments within a three-week period. A further hearing will also be held to consider any opposing further representations, at which all parties will be present and be given a chance to speak.
Despite the longer time given for publication of the draft plan or the proposed amendments and the wider scope of consultation as compared to the previous system, the whole process for consideration of representations will be completed in the same time-frame of nine months as under the previous Ordinance. This is made possible by streamlining the procedures for consideration of representations from three stages to two stages². We hope that in this way, we would be able to achieve greater public participation whilst at the same time maintaining the efficiency of the plan-making process.
To promote greater transparency and a more open planning process, the Amendment Ordinance allows for publication of all planning applications for public comments. In the past, we could only obtain public views through informal consultation conducted by the relevant District Office. There was no provision for public consultation on planning applications. Under the Amendment Ordinance, there will be a statutory channel for the public to submit their comments on these applications to the Board within a three-week period. Notices will be published in newspapers and posted on the application site. Other venues where notices will be posted include the Secretariat Office of the Town Planning Board, the Planning Enquiry Counters of the Planning Department, the relevant District Office and local community hall. The Planning Department will also send notices to all owners' corporations/committees or management offices of buildings within 30 metres (100 feet) of the boundary of the application site to ensure that the neighbours are well informed. The notices together with a gist of the applications will also be uploaded onto the Board's website whilst the full set of the application documents as well as the public comments received by the Board can be inspected at the Planning Enquiry Counters.
Another measure to ensure that the affected land owners' rights are duly respected in the planning approval process is to require an applicant for planning permission to obtain the land owner's consent or to notify the land owner before making a planning application. Each and every land owner registered in the Land Registry as the owner of the application site will therefore be made aware of the application to be submitted to the Town Planning Board. If they wish, they could make their views known to the Board within the three-week period for submitting comments on the application.
Furthermore, the previous practice adopted by the Town Planning Board for dealing with requests for amendment of a statutory plan administratively is now enshrined in the Amendment Ordinance. Any person may submit an application for amendment of plan. The same requirements for owner's consent/notification and publication for public comments will apply to these applications as with applications for planning permission. Applicants will also be allowed to attend the meeting to explain their proposals directly to the Town Planning Board.
Under the Amendment Ordinance, all meetings of the Board and its committee will also be open except for the deliberation parts in the consideration of representations/comments on plans and of planning applications and reviews, and for discussion of confidential items. The public may observe the proceedings of all open meetings in a public viewing room through a live broadcast. To enable the public to have a better understanding of the Board's decision-making process, the papers submitted to the Board and minutes of meeting will be available for public inspection. Hopefully, all these measures will remove the perceived veil of secrecy about the operation of the Board, and enable the community to better understand the rationale behind the Board's various decisions.
On streamlining planning procedures, apart from compressing the objection consideration procedures from three-stage to two-stage, we have also streamlined the development approval process. Under the Amendment Ordinance, the Town Planning Board may specify certain amendments to approved development proposals as Class A and Class B amendments by publishing a list of such amendments in the Gazette. No further application for Class A amendments will be required whilst Class B amendments may be processed by a public officer under the delegated authority of the Board within a shorter period of six weeks (as compared to the normal two months).
On the planning enforcement side, the Amendment Ordinance gives us more effective means to control against unauthorized developments in the rural areas. Since the Amendment Ordinance of 1991, which had extended planning enforcement to the rural New Territories, we have been facing difficulties in dealing with some enforcement cases because of some technical deficiencies in the legislation. For example, when the Planning Authority issues an enforcement notice on an unauthorized development, the operator concerned may apply for planning permission to regularize the unauthorized development. The Planning Authority cannot take any further action until the application process is completed, that is, if an appeal is lodged by the applicant, we have to wait for the decision on the appeal. This has led to substantial delay in enforcement actions, and environmental degradation as well as safety problems to the local residents in some cases. The Amendment Ordinance of 2004 has removed these technical loopholes, and hopefully with more effective enforcement control and proper management, we would be able to better safeguard the environment of our rural areas for our future generations.
To facilitate the implementation of the new legislation, we have conducted extensive consultation with the concerned stakeholders, and their views have been taken into account in finalizing a set of eight administrative guidelines. These guidelines serve to inform the applicants, the practitioners and the general public of their rights and responsibilities under the new planning system. No doubt that it will take time for the various sectors of the community, including the developers, businesses and the public at large, to adapt to the changes that have been brought about. I believe that these changes are for the good of the community and are necessary for a fair and open society.
On 17 June, the Town Planning Board held its first open meeting, but only in respect of some general planning items. In the coming months, more items will be discussed in open meetings as the Board will be progressively considering more planning applications submitted under the new Ordinance, and plans prepared under the new system.
Engaging the public in the planning process is always our commitment. We hope that with the new legislation in place, there will be greater community participation. Through a fairer, more open, more transparent, more efficient and more effective planning system, we will work together with the community to achieve our common goal - to plan and build a better Hong Kong.
Thank you.
¹ A list of major amendments to the Town Planning Ordinance (Microsoft Word document)
² A comparison of the plan-making procedures under the previous and the current Town Planning Ordinance (Microsoft Word document)
The above does not necessarily represent the views of the Foundation.
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