Change in Use of Land

Change in Use of Land: A Practical Guide to Development in Hong Kong

Lawrence Wai-chung Lai
Daniel Chi-wing Ho
Hing-fung Leung
Copyright Date: 2010
Edition: 2
Pages: 248
https://www.jstor.org/stable/j.ctt1xcrzf
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    Change in Use of Land
    Book Description:

    The major difficulties facing professionals in real estate development in Hong Kong involve the use and development intensity of land, the complicated procedures and the mass of building laws. This book is a guide to tackling these difficulties. It provides an account of the concept of the use and change in use of land; followed by an outline of the procedures for lease modifications and waivers, planning applications, reviews and appeals, and building applications and appeals. It also includes an overview of government enforcement against contravention of lease conditions; provisions of statutory town plans prepared under the Town Planning Ordinance; and provisions of the Buildings Ordinance. A number of problems based on real life scenarios are offered. They can help developers avoid litigation with and complaints against government due to ignorance of the relevant institutional, procedural and policy arrangements. For practitioners and policy analysts, the detailed appendices in this book provide vital statistical information on both aggregate and non-aggregate development applications. They enable better appreciation of the chance of success of applications for specific uses, locations or sizes of development on a zone-by-zone basis in the light of refutable hypotheses. This second edition has updated the law and planning statistics notably the amendment to the Town Planning Ordinance in 2005, which broadens public participation and establishes a procedure for rezoning applications, and brought all essential planning application and approval/rejection statistics updated to September 2008 by class of zone by area. The common law cases relating to development approvals involved have also been updated. There has been no comparable/rival book or article that has depicted the development approval procedures involving the lands, planning and building procedures with reference to scholarly research so clearly.

    eISBN: 978-988-220-621-2
    Subjects: Business

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. PREFACE TO THE SECOND EDITION
    (pp. vii-viii)
    Lawrence Lai
  4. PREFACE TO THE FIRST EDITION
    (pp. ix-xii)
    Lawrence Wai-chung Lai, Daniel Chi-wing Ho, Hing-fung Leung, King-tong Liu, Zhi Han and Ping Yung
  5. 1 THE IMPORTANCE OF USE AND CHANGE IN USE
    (pp. 1-6)

    The concepts of ‘use’ and ‘change in use’ of land (which legally include buildings) are probably the most important and, at the same time, most difficult concepts in planning, building and development, and property management practice in Hong Kong.

    These two concepts are important to the property owner (the lessee or grantee of government land or assignee of shares in property developed on such land) because the use of land, and therefore the change in the use of land, is not a matter of unconstrained or unconditional free choice of the property owner.

    Indeed, both the use of land and...

  6. 2 DUAL DEVELOPMENT CONTROL UNDER THE LAND LEASE AND STATUTORY TOWN PLAN
    (pp. 7-12)

    The key means used by the Hong Kong government to regulate land uses and the changes in such uses for a piece of land under private ownership are contractual and statutory, respectively through:

    (a) the Government (previously Crown) Lease or lease conditions¹ (the land lease, which was either an indenture executed by deed, executed by signing, sealing and delivery; or a simple contract under hand which has become deemed to be a lease, which we may call a ‘statutory lease’, under the Conveyancing and Property Ordinance (Chapter 219, Laws of Hong Kong) for the piece of land at all time...

  7. 3 WHAT IS A USE?
    (pp. 13-22)

    The old ‘999-year lease’ is often misleadingly referred to as an ‘unrestricted lease’,¹ as it permits any type of use of land, save a specified list of uses, known as ‘obnoxious’ or ‘offensive’ trades, stipulated in the so-called ‘offensive trade clause’.

    Other than the 999-year leases, most lease documents contain specific ‘user clauses’ that define:

    (a) uses and/or type of buildings that are permitted; and/or

    (b) uses and/or type of buildings that are not permitted.

    The intensity and other dimensions of the permitted uses are often further defined in other clauses or conditions in terms of such development control parameters...

  8. 4 CHANGE IN USE AND DEVELOPMENT CONTROL UNDER THE LAND LEASE, TOWN PLANS AND THE BUILDINGS ORDINANCE
    (pp. 23-28)

    Enforcement against or an application for change in use in Hong Kong varies due to differences in the types of applicable leases/conditions and town plans in the regimes of statutory enforcement.

    It is impossible to specify all possible interactions between the land lease and various types of town plans that may be imposed on ‘privately owned land’, especially the ‘private agricultural land’ held under Block Government (formerly Crown) Leases in the New Territories. The scenarios presented in this chapter are only some of the commonly found situations in practice. These scenarios refer to private land parcels outside country parks.¹ The...

  9. 5 THE NEED FOR MAKING A PLANNING APPLICATION TO ENABLE A CHANGE IN USE UNDER THE TOWN PLANNING ORDINANCE
    (pp. 29-32)

    There is no need for planning permission obtained by a planning application under section 16 of the Town Planning Ordinance:

    (1) Where the plan has no prior history of an IDPA or a draft DPA Plan

    a. for any ‘existing use’;

    b. for any temporary use that involves no building or work defined under the Buildings Ordinance;

    c. for any use always permitted in all zones as specified on the cover pages of the Notes; and

    d. for any Column 1 use (unless there is a remark regarding further restrictions such as those regarding plot ratios, number of storeys and...

  10. 6 ‘TEMPORARY USES’ AND ‘EXISTING USES’ ON PRIVATE LAND UNDER A STATUTORY TOWN PLAN
    (pp. 33-36)

    If a use is carried out on private land in the open air without involving any building or work defined in the Buildings Ordinance, then this use is often regarded as being ‘temporary’. Where a temporary use is conducted on private land, whether or not there is a need to obtain planning permission for that use or its development would depend on the location of the land and the applicable type of statutory town plan.

    Where there is no statutory town plan, then there is no need (and in fact possibility) of obtaining any planning permission; the regulation of the...

  11. 7 THE POSSIBILITY OF MAKING A PLANNING APPLICATION AND STEPS IN CHECKING WHETHER A USE REQUIRES PLANNING PERMISSION
    (pp. 37-40)

    It is only possible for making a planning application for a piece of land by any person to be lodged in under section 16 of the Town Planning Ordinance where:

    (1) the land in question is covered by a valid draft or approved statutory town plan; and

    (2) there is a need as mentioned in Chapter 5 to make an application under the town plan referred to in (1) above.

    There is no possibility for a planning application for a piece of land to be lodged in under section 16 of the Town Planning Ordinance:

    (1) where there is no...

  12. 8 THE RELATIONSHIP AMONG LEASE MODIFICATIONS, PLANNING PERMISSIONS AND BUILDING PERMISSIONS IN THE DEVELOPMENT CYCLE
    (pp. 41-60)

    In order to appreciate the relationship among lease modifications, planning permissions and building permissions for change in use that may be required, an understanding of the steps involved in the development cycle for permanent use and development is helpful. Figure 8.1 shows the steps of an idealized development cycle for a green field site under complete government ownership. For a critical evaluation of the efficiency of the development approval process, see Lai and Ho (2009).

    The first key event is the making of a decision by the government for the development of a new town or a new area (e.g.,...

  13. 9 PLANNING APPLICATIONS, REVIEWS AND APPEALS
    (pp. 61-66)

    Any person may make an application, often referred to as a ‘section 16 application’ (or ‘planning application’), to the Town Planning Board for uses specified under Column 2 or on the covering pages (where appropriate for temporary uses within areas covered or once covered by Interim Development Permission Area plans) of the Notes of a plan prepared and a notice about it published in the gazette under the Town Planning Ordinance (the Ordinance). The Town Planning Board has produced a set of Guidance Notes¹ that advise applicants of the basic elements for making planning applications and changes to the statutory...

  14. 10 LEASE MODIFICATIONS AND WAIVERS
    (pp. 67-74)

    For ‘permanent changes’¹ in the terms of a land lease, lease modifications are required. For temporary changes, ‘waivers’ are required. Unlike planning or building applications, lease modifications (waivers) are not statutorily governed and are not judicially reviewable. Though compliance with lease terms is often also a matter of planning conditions, the agreement to lease modifications and waivers is always a matter of contractual negotiation between the lessee and the government as landlord.²

    As in the case of planning and building applications, the government plays a passive role and it is up to the lessee to make the application, which must...

  15. 11 BUILDING APPLICATIONS AND APPEALS
    (pp. 75-84)

    The conceptual and actual development process analysis discussed in Chapter 8 shows that building approvals are the key in the development cycle. It is the most important stage of actual property development. Successful planning and lease modifications will amount to nothing if permission for the proposed building plans is refused. In Hong Kong, buildings are expensive commodities. It pays to work faster. Besides, planning permissions have only a short life-span of two to three years. Thus, the building appeal procedures provide a developer hope of overcoming the final hurdle to building construction.

    The Buildings Ordinance and its subsidiary legislation provide...

  16. 12 ENFORCEMENT OF LEASES, TOWN PLANNING ORDINANCE AND BUILDINGS ORDINANCE
    (pp. 85-92)

    A typical government lease contains clauses or provisions that expressly state that when any obligation, term or condition is not fulfilled and/or when any restriction is violated, the government can re-enter the land. These clauses or provisions are often referred to as ‘re-entry clauses’. Some examples of obligations, terms or conditions that trigger decisions to reenter, as evidenced in a ‘Memorandum of Re-entry’ or a ‘Vesting Notice’, are:

    (1) the obligation for the lessee to develop land purchased from the government within a certain period of time (with the social and economic concern that scarce land resource should not be...

  17. 13 DEVELOPMENT BLIGHT
    (pp. 93-94)

    Generally, a landowner would unwelcome the imposition of any administrative or statutory government measure that would add to the cost or reduce prospective revenue for his/her property, especially one that would halt or prevent a change in the use or development of land. Such unwelcome measure, particularly one that is uncompensated and could create development blight, may come along in the form of:

    (1) a building moratorium such as that imposed on sites in the Mid-Levels after the June 18th Incident involving the collapse of a building at Kotewell Road in 1972;

    (2) a development moratorium under the Antiquities and...

  18. 14 INFORMATION REGARDING LEASES, STATUTORY TOWN PLANS, AND BUILDING PLANS
    (pp. 95-96)

    The HKSAR government has vastly expanded the scope and depth of its electronic services to the public. On the one hand, this has rendered the study of land use and change of use less costly. On the other hand, the quality and design of various systems vary and co-ordination is wanting. The reader should therefore constantly update his/her knowledge of various rapidly developing systems by making full use of the electronic and non-electronic systems of information.

    Leases and conditions, as well as their variations, modifications and extensions, are public documents because title documents must be registered with the Land Registry....

  19. 15 PROBLEM SETS
    (pp. 97-112)

    The scenarios described in this chapter are based on real-life practice. They serve to stimulate interesting discussion. In the following discussion, the reader is reminded that the ‘notes’ for various zones are those adopted for the latest Outline Zoning Plans.

    1. Mr A has lost his case in a section 16 application and is considering a review or appeal. He would like to know if there are supporting legal grounds and the procedure for applying for a review and appeal. Advise him.

    2. Planning control was substantially changed in the amendment of the Town Planning Ordinance in 1991. After the...

  20. APPENDIX 1: TOWN PLANNING BOARD GUIDELINES (AS AT 10 AUGUST 2009)
    (pp. 113-114)
  21. APPENDIX 2: AGGREGATE STATISTICS REGARDING PLANNING APPLICATIONS 1975–2008
    (pp. 115-190)
  22. APPENDIX 3: PROBIT AND LOGIT ESTIMATES OF NON-AGGREGATE STATISTICS REGARDING PLANNING APPLICATIONS
    (pp. 191-222)
  23. REFERENCES
    (pp. 223-230)
  24. INDEX
    (pp. 231-240)