Zoning and Property Rights: Chinese Agriculture

Appendix 1: The Use of Aerial Photographs in Planning Enforcement Against Unauthorized Development

Appendix One The Use of Aerial Photographs in Planning Enforcement Against Unauthorized Development' Background In 1991 , an amendment2 to the Town Planning Ordinance was passed to extend explicidy the jurisdiction of planning legislation to the entire territory of Hong Kong. Previously, it had been presumed that the reference to ‘existing and potential urban areas' in the preamble of the Town Planning Ordinance excluded the rural areas of the New Territories, that is, areas outside the designated new towns. Under the provisions of the amended Town Planning Ordinance, the Interim Development Permission Area (IDPA) Plans3 were produced. The IDPA plans became gradually replaced by successively refined Development Permission Area (DPA) plans4 and then Oudine Zoning Plans. In areas for which IDPA plans were produced, changes in land use, unless approved by Town Planning Board or permitted as of right (under Column 1 or the cover pages of the Notes) by the relevant statutory plans after the gazette date of IDPA, constitute an offence. The relevant provisions including the definition of the offence, its remedies and its statutory defences are generally described as ‘planning enforcement' provisions. According to these provisions, the Planning Department may either serve an Enforcement Notice5 requiring rectification (failure to comply entails prosecution) , or proceed to prosecute direct1y. The accused may avoid prosecution or conviction if they obtain planning permission6 , or they can show that the uses in dispute are in fact ‘existing uses',7 that is, uses that had existed ‘immediately before' the date of the IDPA. On conviction, an accused is liable to pay fines. The levels of fines have been revised upwards successively. The Consultative Paper on the T own Planning Bill auly 1996) proposes a number of further amendments, notably 158 Appendix One the penalty of imprisonment, personal liability for company directors and Cho/Tong8 managers, and the admissibility of photographic evidence. The planning enforcement law creates a statutory strict liability criminal offence for authorized changes in use ‘being found'9 after the date of IDPA on the current owner, occupier or user's land.1O No mens rea or actual conduct11 of the accused is necessary to establish the offence and there is no provision for jury trial. The mischief12 which the law is said to target is the uncontrolled proliferation of open storage uses on land governed by agricultural leases. In terms of private property rights, the theme of this book, it criminalizes uses previously legitimate under the proprietor's land contract with government. It nullifìes the rights of the agricultural leaseholders to put land under open storage as affìrmed in the Melhado Case.13 In that case, it was ruled that the land uses surveyed by the Indian engineers and registered as part of the agricultural leases were merely descriptive and not restrictive regarding the nature of permitted land uses. In July 1996, further amendment to the enforcement law was proposed in the draft Town Planning Bill. The author has argued in Town Planning in Hong Kong: A Critical Review (Lai 1997b) that planning enforcement from the strategic planning point of view is indicative of a reactionary mentality to rural land uses in face of rapid economic and urban growth. It is also antagonistic towards the government's strategic planning policies of expanding the Hong Kong international container port. It is reactionary for it is based on the normative view that the New Territories shall remain ‘green' in appearance (Photograph 17) when neither the economic nor demographic conditions permit. It is contradictory as there is insuffìcient ‘as of right' zones to accommodate the demand for open storage generated by the building and container industries (Figure A. 1.1, Photographs 18 and 19), and such demand is generated by the government's territorial planning policies. The author has also suggested alternatives, such as a licensing system and a comprehensive update of the description of uses in agricultural leases, to the existing approach so as to punish the open storage industry. The discussion concentrates on the use of aerial photographs as evidence by the prosecution. Aerial photographs are useful materials for planning purpos Appendix One The structure of the prosecution (previously Crown) case: Conviction on the basis of aerial photographs alone 161 An apparent flaw of the planning enforcement is its legislative design and the way in which prosecution is conducted. ‘Existing use' or use before the gazette of the relevant statutory town plan (the Interim Development Permission Area...