On 21 November 2011, the Court of First Instance handed down a judgment in the case Turbo Top Limited v Town Planning Board (HCAL 23/2011 and HCAL 52/2011), where it held that the Town Planning Board ("TPB"), in exercising its powers under the Town Planning Ordinance ("TPO") to amend outline zoning plans ("OZP"), is entitled to impose specific restrictions on a particular building (which is commonly described as "spot zoning").
The site in question is Cheung Kong Center in Central owned by Turbo Top Ltd., a subsidiary of Cheung Kong (Holdings) Ltd.
Under the Government lease, Turbo Top is required to maintain at least 800 public parking spaces at the site. In June 2008, Turbo Top applied to the Lands Department for lease modification to allow conversion of 78 public parking spaces to a supermarket.
However, in June 2010, the TPB amended the OZP for the area where the site is situated and the amendments include re-zoning the site to "Commercial (1)" which requires, among other things, the provision of at least 800 public parking spaces.
Turbo Top submitted representations objecting to the OZP amendments. The TPB rejected Turbo Top's objections and maintained its decision to require a minimum of 800 public parking spaces at the site. The TPB only agreed to incorporate provision for minor relaxation of the minimum number restriction.
Judicial review to challenge the OZP amendments
Turbo Top applied for judicial review of the TPB's decision. The major grounds of challenge are summarised as follows:
The Court's decisions
Mr. Justice Reyes of the Court of First Instance rejected Turbo Top's arguments and held that the TPB has power to impose site/building specific restrictions.
This is the first time after the change of sovereignty in 1997 where the Court is required to determine the extent and scope of the TPB's power in discharging its "plan-making" function under the TPO.
Since 2007, the TPB has started a large-scale exercise to amend OZP in different areas in Hong Kong by imposing, among other things, maximum height restrictions on specific buildings (as opposed to broad height bands), set-back areas and building gaps. These amendments have been criticised as imposing "spot zoning" which unreasonably restrain an owner's flexibility in designing its developments. It was also criticised as contradicting the legislative intent of the TPO as the TPB is required to adopt a "broad brush" approach, as is emphasised by the title "outline zoning plan".
However, the Court in Turbo Top case confirmed the TPB's approach in making OZP amendments by introducing detailed and specific restrictions even on a particular building.
It remains to be seen whether Turbo Top will appeal to the Court of Appeal to challenge the Court of First Instance's decision.
For inquiries related to this Legal Update, please contact Alan Yip or your usual contacts with our firm.
Visit us at www.mayerbrownjsm.com
You have no pages selected. Please select pages to email then resubmit.