smart governance lab (sgl)governance of city management hk •no public-nominated and public-elected...
TRANSCRIPT
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