TPB Paper No. 10689 For Consideration by the Town Planning Board on 13.11.2020

DRAFT PAK LAP OUTLINE ZONING PLAN NO. S/SK-PL/3

CONSIDERATION OF REPRESENTATIONS NO. TPB/R/S/SK-PL/3-1 TO 17 AND COMMENTS NO. TPB/R/S/SK-PL/3-C1 TO C61

Subject of Representations

(Amendment Item)

Representers (No. TPB/R/S/SK-PL/3-R)

Commenters (No. TPB/R/S/SK-PL/3-C)

Item A Rezoning of an area to the south of the village cluster at Pak Lap from “Village Type Development” (“V”) to “Government, Institution or Community (1)” (“G/IC(1)”) Item B Rezoning of an area to the further south of the village cluster at Pak Lap from “G/IC” to “Conservation Area” (“CA”)

Total: 17 Support Items A and B R1: Individual Item A and/or Item B but raise adverse comments on designation of “V” zone R5(part): Hong Kong Bird Watching Society R6(part): Designing Hong Kong Limited Oppose/do not support/raise adverse comments Item A R16: 新界鄉議局 Items A and B R4: The Conservancy Association R17: 西貢區鄉事委員會 Raise adverse comments on designation of “V” zone R2: The Hong Kong Countryside Foundation R3: Kadoorie Farm and Botanic Garden R5(part): Hong Kong Bird Watching Society

Total: 61 Support R2 to R8 and Oppose R16 and R17 C1 to C53: Individuals Oppose R16 and R17 C54: The Conservancy Association (i.e. R4) Support R2 to R4 and R6 C55: Hong Kong Bird Watching Society (i.e. R5) Support R4 C57: Individual Support R1 to R14 C58: Individual C61: 梁里(西貢區議員) Support R2 to R8 C60: Individual Providing views C56: 港九工團聯合總會 C59: Individual (i.e. R1)

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R6(part): Designing Hong Kong Limited R7: Friends of Hoi Ha R8: Friends of Sai Kung R9 to R15: Individuals

Note: The names of all representers and commenters are at Annex VI. Soft copy of their submissions is sent

to the Town Planning Board Members via electronic means; and is also available for public inspection at the Town Planning Board’s website at https://www.info.gov.hk/tpb/en/plan_making/S_SK-PL_3.html and the Planning Enquiry Counters of the Planning Department (PlanD) in North Point and Sha Tin. A set of hard copy is deposited at the Town Planning Board Secretariat for Members’ inspection.

1. Introduction

1.1 On 3.4.2020, the draft Pak Lap Outline Zoning Plan (OZP) No. S/SK-PL/3 (the

Plan) at Annex I, together with the draft Hoi Ha and So Lo Pun OZPs, were exhibited for public inspection under section 7 of the Town Planning Ordinance (the Ordinance or TPO). The amendments to the Plan are set out in the Schedule of Amendments at Annex II and the locations of the amendment items are shown on Plans H-1 and H-2.

1.2 During the two-month statutory exhibition period, a total of 17 valid representations were received. On 16.6.2020, the representations were published for public comments. A total of 61 valid comments were received.

1.3 As a significant number of representations and comments on the Pak Lap, Hoi Ha

and So Lo Pun OZPs are submitted by the same representers and commenters (i.e. 16 representations and 60 comments), the Town Planning Board (the Board), on 14.8.2020, agreed to consider the representations and comments on the three OZPs collectively in one group. This paper is to provide the Board with information for consideration of the representations and comments on the draft Pak Lap OZP. The representers and commenters have been invited to attend the meeting in accordance with section 6B(3) of the Ordinance.

2. Background

Preparation of OZP 2.1 Pak Lap is one of the country park enclaves (CPEs) for which statutory plans

were prepared under the Ordinance. The draft development permission area plan (DPA Plan) covering Pak Lap was published on 30.9.2010, which was interim in nature and subsequently replaced by OZP. On 27.9.2013, the draft Pak Lap OZP No. S/SK-PL/1 was exhibited for public inspection under section 5 of the Ordinance. After giving consideration to the representations and comments from April to June 2014 and further representations and the related representations and comments on 21.11.2014, the Board, on 19.12.2014, agreed

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to submit, under section 8 of the Ordinance, the draft Pak Lap OZP, together with the draft OZPs for So Lo Pun and Hoi Ha, to the Chief Executive in Council (CE in C) for approval. On 3.2.2015, the CE in C under section 9(1)(a) of the Ordinance, approved all three draft OZPs. On 13.2.2015, the approved OZPs were exhibited for public inspection under section 9(5) of the Ordinance.

Judicial Review

2.2 On 18.2.2015, a judicial review (JR) application was lodged by Chan Ka Lam

against (i) the decision of the CE in C made on 3.2.2015 to approve the three draft OZPs for Pak Lap, Hoi Ha and So Lo Pun; and (ii) the decision of the Board made on 19.12.2014 to submit the three draft OZPs to the CE in C for approval.

2.3 The Court of First Instance (CFI) allowed the JR on 24.11.2017 quashing the said

decisions of the CE in C and the Board with a direction that all three draft OZPs be remitted to the Board for reconsideration of the relevant issues.

2.4 According to the CFI’s Judgment, the JR was allowed on the grounds that the Board failed to carry out its duty to inquire, specifically on two issues, namely, the genuine need for Small House development (the genuine need issue) (for all three OZPs) and the accuracy of the base map (the maps issue) (for Hoi Ha OZP only), and such failure had tainted the CE in C’s decision. On both issues, the Court holds the view that the deliberation and reasons given by the Board did not demonstrate that the Board had properly inquired into the representations in respect of the three OZPs in making its decisions on the representations. For the genuine need issue, the Court holds the view that the Board had not explained on what basis it had treated the forecast figures of the Small House demand to provide support for showing the needs of “V” zoning, whether and why it had accepted or rejected the validity of those extensive representations made under the question on the genuine need issue, and how the representations had affected its view on planning the size of the “V” zones.

2.5 The CFI also made findings and rulings in favour of the Board as followings:

(a) for the purpose of making the planning decision, it was not necessary for the Board to inquire into and resolve the matters related to adverse environmental impacts caused by septic tank system installations as far as it accepted that the Small House application scheme could sufficiently address the issue;

(b) the Board had adequately inquired into the cumulative impact on conservation and had taken into account the representations on this issue when making a planning judgement which was to strike a balance between conservation and compatible development;

(c) there were no inconsistent zoning among the three OZPs, there was no inconsistency in zoning with reference to their circumstances as each of the zonings was essentially the result of balancing and accommodation between various factors which might themselves be in conflict or tension. Where the overall balance of factors as between one area and another resulted in a different zoning as in the three OZPs, it could not be characterised as

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“inconsistency” in public law sense;

(d) the factors that the Board and CE in C took into account of (or not) were a matter of discretionary judgment which the CFI would not interfere absent Wednesbury irrationality;

(e) for planning purposes, it was reasonable for the Board to start off by looking at the right of indigenous villagers to apply for building Small House and the forecasted demands on the side of the scale of development needs. It was not Wednesbury unreasonable for the Board to regard that as a relevant factor to be taken into account;

(f) the Board did seek to plan by striking a balance between conservation and

development needs. The allegation that the Board failed to take into account CPE Policy was rejected.

Amendments to the OZP

2.6 To comply with the CFI’s Judgment, a review on the genuine need for Small

House development has been undertaken for the three OZPs (and the map issue for the Hoi Ha OZP), taking into account the principles for designating the “V” zone and relevant information for assessing the Small House need of indigenous villagers for the areas concerned. Additional/updated information including (i) the actual number of Small House grant applications received/approved/rejected by Lands Department (LandsD) since 2010, and the latest number of outstanding Small House grant applications being considered by LandsD and (ii) the 10-year Small House demand forecasts starting from 2010 provided by the Indigenous Village Representatives (IIRs), and breakdown of such forecasts were obtained to facilitate the Board’s deliberation on the issue and making further inquiries as necessary. Other relevant information including the population figures and existing conditions of the Pak Lap area has been provided for the Board’s consideration.

2.7 The Board, on 3.3.2020, considered the reviews and reconsidered the three OZPs. The Board well notes that there is no practical means available for determining the genuine need for Small House development at the planning stage and best available information has already been obtained relating to the Small House demand in the review. The Board is also fully aware that there is no mechanism to verify the figures in the Small House demand forecast provided by the IIRs at the planning stage. The status of the Small House applicant would be verified by respective District Lands Offices (DLOs) during the processing of the Small House grant applications. The Board noted the findings of the review of the genuine need issue on Pak Lap OZP that there is certain demand for Small House development in the area and a balance between enhancing nature conservation of the area and meeting the needs of the villagers for Small House development has been struck in drawing up the “V” zone in the area.

2.8 Having also considered the review of the issue, the Board agreed to make amendments under section 7 of the Ordinance to rezone an area to the south of the village cluster from “V” to “G/IC(1)” (Item A) and an area to the further south of the village cluster from “G/IC” to “CA” (Item B). The relevant TPB

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Paper No. 10624 is available at the Board’s website at https://www.info.gov.hk/tpb/en/papers/TPB/SKIs/S_SK-PL_2A-Main%20Paper.pdf and at Annex III(a) and the minutes of the meeting is at Annex III(b). On 3.4.2020, the draft Pak Lap OZP No. S/SK-PL/3 was exhibited for public inspection under section 7 of the Ordinance. A total of 17 valid representations and 61 valid comments were received.

2.9 For background information, a total of 10,665 representations, 3,665 comments and 11 further representations were received in respect of the draft Pak Lap OZP No. S/SK-PL/1, of which most of them were related to the designation of “V” zone. A summary of these previous representations, comments and further representations is at Annex IV. All of these previous representers/commenters/further representers have been informed of the Board’s decision on 3.3.2020 and advised that they could make representation in respect of this round of amendments, and 17 of them have made representations and/or comments on this round of amendments.

3. Local Consultation

3.1 The amendments to the OZP were presented to the Housing, Planning and

Development Committee of Sai Kung District Council (HPDC of SKDC) at its meeting on 19.5.2020. Members raised concerns that the genuine need for Small House development has not been verified; the “V” zone in Pak Lap is too excessive; potential impact of Small House development on “CA” zone; and whether there would be genuine agricultural rehabilitation within the “Agriculture” (“AGR”). The HPDC passed a motion objecting to the excessive “V” zone on the OZP and urging the Government to improve the plan so as to protect the CPE. Minutes of HPDC meeting on 19.5.2020 is at Annex IV. The Chairman of HPDC of SKDC (C61) submitted a comment.

3.2 PlanD submitted the consultation paper on the amendments to the OZP to Sai Kung Rural Committee (SKRC) on 15.4.2020. The SKRC members were invited to submit their comments on the amendments to the OZP in writing to the Secretary of the Board during the exhibition period of the OZP. During the statutory exhibition period of the OZP, SKRC (R17) submitted a representation, which raises objection to the amendments to the OZP on grounds that the amendments further reduce the land for indigenous villagers for building Small Houses, rezoning the land of Pak Lap Village to “CA” or “G/IC” neglects the development need of the village and the Small House demand of the male indigenous villagers, and the legal tradition rights of the indigenous village in New Territories should not be neglected.

4. The Representation Sites and their Surrounding Areas

4.1 The Representation Sites and their Surrounding Areas (Plans H-1 to H-4b)

Representation Site under Item A 4.1.1 The Site (with an area of 0.03 ha) is located to the south of the village

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cluster at Pak Lap. It covers an existing village office and adjoining vacant land reserved for provision of a government refuse collection point (RCP) and a public convenience to serve the needs of local residents and tourists. The Site falls on government land.

Representation under Item Site B

4.1.2 The Site (with an area of 0.02 ha) is located to the further south of the village cluster at Pak Lap. It is currently partly covered by trees that forms part of the wooded area.

The Surrounding Areas 4.1.3 The surrounding areas of the representation sites are characterised by a

rural and countryside ambience, comprising mainly village houses, shrubland, woodland, grassland, fallow agricultural land and streamcourses. Pak Lap is the only recognized village in the Area and the main village cluster is in the middle of the Area. The village houses there are mainly two to three-storey in height and most of them are left vacant while some of them are still being used for habitation. To the east of the main village cluster is an existing stream flowing across the Area from north to south leading to Pak Lap Wan. To the east of the stream is fallow agricultural land zoned “AGR” and is now turfed.

4.2 Planning Intention

4.2.1 The planning intention of “G/IC(1)” is primarily for the provision of

Government, institution or community facilities serving the needs of the local residents and/or a wider district, region or the territory. On land designated “G/IC(1)”, no new development, or addition, alteration and/or modification to or redevelopment of an existing building shall result in a total development and/or redevelopment in excess of a maximum building height of two storeys.

4.2.2 The planning intention of “CA” is to protect and retain the existing

natural landscape, ecological or topographical features of the area for conservation, educational and research purposes and to separate sensitive natural environment such as Country Park from the adverse effects of development. There is a general presumption against development in this zone. In general, only developments that are needed to support the conservation of the existing natural landscape or scenic quality of the area or are essential infrastructure projects with overriding public interest may be permitted.

5. The Representations and Comments on Representations

5.1 Subject of Representations 5.1.1 There are a total of 17 valid representations. A representation (R1)

supports Items A and B. One representation (R5) supports Item B and

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another representation (R6) welcomes Items A and B, but both provide adverse comments on designation of “V” zone. The remaining representations (R2 to R4 and R7 to R17) raise adverse comments on Item A and/or B mainly related to the designation of “V” zone on the OZP. The list of representers is at Annex VI.

5.1.2 The major grounds of representations as well as their proposals, and

PlanD’s responses, in consultation with the relevant government departments, are at Annex VII and summarised in paragraphs 5.2 and5.3 below.

5.2 Major Grounds of and Responses to Supportive Representations

5.2.1 R1 supports Items A and B on the OZP, R6(part) welcomes Items A and

B and R5(part) supports Item B. Major Grounds Representations (1) Based on the conservation-oriented approach on

CPEs and the general approach adopted by the Board in delineating “V” zone, a balance between enhancing conservation of the area and meeting needs of Small House development has been struck.

R1

(2) Relocation of the site reserved for government RCP and public convenience under Items A and B is a sensible arrangement.

R1

(3) Supports the increase of “CA” zone. R5(part)

(4) Welcomes Items A and B. R6(part)

Response (a) The supportive views are noted.

5.3 Major Grounds/Proposals of and Responses to Adverse Representations

5.3.1 All R2 to R4, R5(part), R6(part) and R7 to R17 provide adverse

comments.

5.3.2 Genuine Need for Small House Development

Major Grounds Representations (1) The Board has failed to make a meaningful review

of/proper inquiry into the data and information relating to genuine need for housing of indigenous villagers which has been highlighted as its statutory duty in the Court’s Judgment on the previous JR. The Small House demand forecast by IIRs is not verified and the extent of “V” zone upon amendment is determined without demonstrating the genuine need.

R2 to R4, R5(part), R6(part), R7 to R14

(2) The OZP amendments are minor and are not in line with the background of the OZP review (i) to review

R4

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the genuine need for Small House development; and (ii) to review the land use zonings on the OZP taking into account latest circumstances.

(3) Rational consideration of the genuine need for housing should take into account the following factors:

(a) zero application in the past 10 years;

(b) the outstanding Small House applications;

(c) the number of potentially entitled indigenous villagers residing in Hong Kong who need to be housed in Pak Lap;

(d) whether the overseas residents have demonstrated a genuine intention to return to Hong Kong to live (R2 and R14);

(e) no demand forecast has been known or submitted for five years (R14);

(f) lack of infrastructure (R14); and

(g) whether a genuine balance of enhancing public interest in recreation, education, enjoyment of landscape and nature conservation of the area with meeting the genuine needs of the indigenous inhabitants has been made (R14).

R2, R7, R8, R11, R12 and R14

(4) The Board has made no reference to the evidence against excessive “V” zone as contained in the previous 10,000 submissions on the draft Pak Lap OZP No. S/SK-PL/1.

R14

(5) The vacant land within “V” zone next to the existing village cluster was sold to a developer in 1990s, the current “V” zone might facilitate the abuse of Small House Policy (SHP) which is against its planning intention and the genuine need for Small House development is in doubt.

R4, R5(part) and R6(part)

Responses (a) In response to (1) and (2), it is noted that the CFI did not query the needs of

indigenous villagers for Small House development which relates to one of the basis upon which the respective size of the “V” zone is planned. According to the JR Judgment, it is reasonable for the Board to start off by looking at the right of indigenous villagers to apply for building Small House and the forecast demand on the side of development need. The JR was allowed only on the basis that the Board has failed to properly inquired into the relevant issues, as set out in paragraph 2.4 above. To follow up the JR Judgment, a review of the genuine need issue has been undertaken for the Board’s consideration on 3.3.2020.

(b) In the review of the genuine need issue, the Board noted that there is no practical means available for determining the genuine need for Small House development at the planning stage. In this regard, best available information

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relating to the Small House demand, including the updated/past figures on Small House applications and 10-year demand forecasts and its breakdown provided by IIRs starting from 2010, was obtained from LandsD for consideration by the Board. The Board was fully aware that there is no mechanism to verify the figures in the Small House demand forecast provided by the IIRs at the planning stage, the status of the Small House applicant would be verified by respective DLOs during the processing of Small House grant application, and the demand forecast was only one of the host of planning factors to be considered in designation of “V” zone. In designating the “V” zone on the Pak Lap OZP, the Board has also taken into account all related planning considerations including but not limited to the village ‘environs’ (‘VE’), local topography, existing settlement pattern, approved applications for Small House development, outstanding Small House applications, Small House demand forecast, availability of road access and infrastructure, areas of ecological and landscape importance as well as site specific characteristics.

(c) In response to (3), relevant factors have already been taken into account by the Board. In respect of the ground that the overseas villagers should prove their intention of living in Hong Kong, LandsD advises that the requirement for overseas villagers to prove an intention of living in Hong Kong only applies to those villagers applying for Small House grants on government land. This requirement does not apply to those overseas villagers applying for Small House on private land. The issues raised in 3(c) to 3(d) concern mainly the administration of the SHP, which shall be handled by LandsD in the course of processing Small House grant application. These issues are not directly related to the subject of amendment to the OZP.

(d) In response to (4), most of the previous representations/comments/further representations in respect of the draft Pak Lap OZP No. S/SK-PL/1 raised concern on the “V” zone designation, which is the subject of review on the genuine need issue on the Pak Lap OZP in the TPB Paper No. 10624 considered by the Board on 3.3.2020. A summary of the previous representations/comments/further representations is at Annex V.

(e) In response to (5), land ownership should not be a material planning consideration on the designation of the land use zones as ownership could change over time. District Lands Officer/Sai Kung (DLO/SK), LandsD advises that if there are reasonable grounds for suspecting individual cases involving the act of selling “Small House rights”, LandsD will follow up under the established procedures and refer the cases to the law enforcement agencies for investigation. Members of the public may also consider reporting directly to the law enforcement agencies should they find evidence suggesting that any person may commit the crime of false declaration / misrepresentation / fraud / bribery / corrupt transaction with agents. His office has no information on such issue in Pak Lap.

5.3.3 Designation of “Village Type Development” (“V”) Zone Major Grounds Representations Inappropriate/Excessive “V” Zone

(1) Allocation of “V” land, which is sufficient to build 16 R2 to R4,

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Small Houses exceeds the real demand of Small Houses according to the applications received by LandsD/is unsubstantiated, arbitrary and irrational.

R5(part), R6(part), R7, R8, R11, R12 and R14

(2) The unused former farmland has been trashed and degraded, which is the classic approach to trash and degrade the land with losing environmental benefit and ask for Small House development.

R2

(3) The vacant land within “V” zone was subject to land excavation and vegetation clearance before implementing the DPA Plan of Pak Lap.

R4

(4) The “V” zone is still too large. The vacant area of the “V” zone would still be arable and should not be zoned “V”.

R3, R9, R10 and R13

Proposals (5) Reducing the “V” zone to confine to the existing

village settlements and/or approved Small Houses and/or to cater for no more than four houses (i.e. no. of outstanding Small House applications). (Proposed amendments to “V” zone provided by R4 and R5 are shown in Plan H-3)

R2 to R4, R5(part), R6(part), R7 to R10, R13 and R14

(6) Rezoning the vacant land within “V” zone to conservation zonings such as “Green Belt(1)” (“GB(1)”) and/or “CA”.

R4 and R5(part)

(7) Adopting the conservation approach in Tai Long Wan which (a) restricts the “V” zone to only cover the existing settlements, (b) moves ‘NTEH’ from Column 1 to Column 2 in “V” zone, (c) deletes ‘House other than NTEH’ from Column 2 of “V” zone, and (d) adds the requirement to seek planning permission for demolition, addition, alteration and/or modification of an existing building in the Remarks of the Notes for “V’ zone in Pak Lap.

R3, R5(part), R9, R10, R13 and R14

Responses (a) In response to (1) to (4), the vacant land (former farmland) in front of the

existing village cluster has been zoned “V” on the Pak Lap OZP since its first publication in 2013. On designating the “V” zone, areas within and outside the ‘VE’ were carefully analysed in terms of suitability for Small House development taking account of a host of planning factors including but not limited to the local topography, the existing settlement pattern, approved and outstanding Small House applications, Small House demand forecast, availability of road access and infrastructure, areas of ecological and landscape importance as well as site specific characteristics. An incremental approach has been adopted for designating the “V” zone with an aim to confining Small House development to the existing village cluster and the adjoining suitable land and to minimize adverse impact on the natural environment. In the review on genuine need issue, it is recognised that the vacant land has been cleared and is considered suitable for Small House

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development in accordance with the provision of the “V” zone on the current OZP. Nevertheless, it should be noted that development of Small House is subject to application and approval under the SHP. Pending the development of Small House, the vacant land can still be used as agricultural use which is always permitted under the Notes of the “V” zone.

Proposals

(b) In response to (5) and (6), taking into account all the relevant planning considerations, expert advice from concerned government departments and views from relevant stakeholders (including both the villagers and green concern groups, as well as the general public), it is considered that the designation of “V” zones on the OZP could strike a balance between enhancing nature conservation of the Area and meeting the needs of villagers for Small House development. There is neither strong justification nor change in planning circumstances for a departure from the Board’s previous decision on 3.3.2020 on the extent of the “V” zone on the Pak Lap OZP.

(c) In response to (7), regarding the proposal to incorporate planning control as adopted in Tai Long Wan OZP, each CPE should be considered on the circumstances and characteristics on individual basis. The imposition of specific planning control on the Tai Long Wan OZP is mainly based on the consideration that the village settlements in Tai Long Wan are well-preserved and of high heritage value. To ensure that new NTEH/Small House development would be in harmony with the existing historical village houses and would not affect the integrity of the existing village setting in Tai Long Wan, planning permission is required for new NTEH developments, and for any demolition of or any addition, alteration and/or modification to or redevelopment of an existing building within the “V” zone. There is no historic village of heritage significance in Pak Lap OZP and there is no exceptional circumstances that warrant adopting the same planning control on new NTEH/Small House developments within the “V” zone.

Major Grounds Representations Insufficient Land to Meet Small House Demand

(8) The amendment further reduces the land for indigenous villagers for building Small Houses. The “V” zone should not be reduced.

R16 and R17

(9) The development need of the village and the Small House demand of the male indigenous villagers and the legal tradition rights of the indigenous village in the New Territories should not be neglected.

R17

(10) According to Article 40 of Basic Law, the legal rights of the indigenous villagers of the New Territories should be protected and there should be adequate land within “V” to satisfy the Small House demand of the future male indigenous villagers.

R16

Responses (d) In response to (8) to (10), the boundaries of “V” zone for the village has

been drawn up having regard to the ‘VE’, local topography, settlement

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pattern, approved and outstanding Small House applications, Small House demand forecast, availability of road access and infrastructure, areas of ecological and landscape importance as well as site specific characteristics. In order to comply with the JR Judgment, the Board, in deciding to make amendments to the OZP, has considered additional/updated information on Small House demand as mentioned in paragraphs 2.6 and 2.7 above, including the outstanding Small House applications, updated and past 10-year demand forecast provided by IIRs. In order to minimise potential adverse impacts on the natural environmental, an incremental approach has been adopted by first confining the “V” zone to the existing village settlement and the adjoining suitable land. While in the review of the genuine need issue on Pak Lap, it is noted that there is certain demand for Small House development in the area, as advised by the LandsD, no further Small House application has been received, approved and rejected in Pak Lap and the number of outstanding applications remains as 4 as at 4.11.2020. There is also no sufficient infrastructure to support significant development in the Area. There is no strong justification to expand the “V” zone in the prevailing circumstances.

(e) In response to (10), there is no express assertion of the right to build Small House under Article 40 of the Basic Law. Insofar as Small House development was subject to statutory planning controls that may be imposed under the TPO, applying those controls to the area concerned by way of the draft OZP does not appear inconsistent with Article 40 of the Basic Law.

Major Grounds Representations Violation of the Block Government Lease (BGL) and SHP

(11) The designation of “V” zone has violated the BGL and SHP. The Board shall not prepare any plan under the TPO for an area covered by BGL before the Government has resumed the concerned lots under Lands Resumption Ordinance (Cap 124). Also, according to the SHP, the resumed lots shall only be re-granted to a lessee for Small House development after the Government has completed the planning of roads and other public facilities and updated the boundary of the remaining portion of the lots.

R15

Response (f) In response to (11), matters related to BGL and implementation details of

SHP are not directly related to the OZP. LandsD will handle the matters in the processing of Small House grant applications.

5.3.4 Environmental Impacts on Existing Stream Major Grounds Representations (1) The vacant “V” zone is next to the watercourse, which

drains to Pak Lap Wan. The Board is urged to recall the numerous presentations regarding the water pollution impacts on the watercourses.

R3

(2) There is suspected illegal discharge connecting to the R4

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natural stream and the river bank has been largely modified.

(3) The proposed extent of “V” zone would lead to sewage impacts affecting the nearby aquatic organism and streams. The portion of “V” zone near the stream is considered not suitable for village development due to the direct impact to the riparian of the stream and the potential sewage impacts on the connecting water bodies.

R5(part)

(4) The use of septic tanks and soakaway (STS) systems by Small Houses will cause pollution problems for the water bodies, channels and streams. Planning assessment of the sewage impact should be done before designating the “V” zone (R14). The current administration of the STS system requiring proper percolation tests is poorly enforced.

R7, R8, R11, R12 and R14

Proposals (5) Providing a buffer zone separating the watercourse and

“V”. R3

(6) Rezoning the stream and 15m of either bank to “CA”. R14

Responses (a) In response to (1) to (4), the concerns on sewage treatment arrangements and

water quality impact of Small Houses were also raised by many previous representations and comments. The Board, in considering these previous representations and comments, noted that the LandsD, when processing Small House grant applications, will consult concerned government departments including the DSD, EPD, AFCD and PlanD to ensure that all relevant departments would have adequate opportunity to review and comment on the applications. The design and construction of on-site STS system for any development proposals/submissions need to comply with relevant standards and regulations, such as EPD’s Practice Note for Professional Person (ProPECC PN) 5/93 “Drainage Plans subject to Comment by the Environmental Protection Department”. The Board was of the view that there was sufficient control in the current administrative system to ensure that individual Small House development and STS system within the “V” zone would not entail unacceptable impacts on the surrounding environment.

(b) Director of Environmental Protection (DEP) advises that provided that the STS system is built at suitable location in accordance with the prescribed standards and regulations, the attenuation effect should be able to offer adequate protection to the nearby environment. Under the current practice, building professionals (Authorized Persons /Registered Structural Engineers/Registered Professional Engineers) are responsible for (i) the supervision of the percolation test, (ii) certification of the percolation test performances (to ascertain soil condition suitable for STS), and (iii) certification of the design of the STS systems, including the buffer distance requirements (generally not less than 15m minimum clearance from a stream or 30m if the stream is used for drinking or domestic purposes) to ensure that

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the requirements stipulated in the ProPECC PN5/93 would be met at the application stage of Small House development processed by LandsD.

(c) As noted in the JR Judgment, the CFI is of the view that the Board is not necessary to inquire into and resolve those matters related to adverse environmental impacts caused by the septic tank system for the purpose of making the planning decision as far as it accepts the Small House application scheme could sufficiently address the issue.

(d) In response to the suspected illegal discharge, both Chief Engineer/Mainland South, Drainage Services Department (CE/MS, DSD) and DEP advise that no suspected illegal discharge case/complaint was received in the locality in the past 3 years. Regarding the pipeline outlets at the stream, DEP advises that they did not find any suspected illegal wastewater discharge along the stream during the site inspections in June and July 2020. There were also no construction works nor toilet waste/odour along the stream. Therefore, no violation of environmental legislation was noted during the site inspections. DLO/SK, LandsD advises that his office has no record of any proposed Small House development related to the discharge pipes. If drainage discharge for Small House development is required through government land, his office will consult DSD before giving relevant approval for the works on government land.

Proposals

(e) In response to (5) and (6), the zoning of the existing stream as “AGR” had been duly considered by the Board in the previous hearing and further hearing on the draft Pak Lap OZP No. S/SK-PL/1 and the Board considered that the “AGR” zoning was appropriate. As the stream in Pak Lap is not an Ecologically Important Stream (EIS) or Sites of Special Scientific Interest (SSSI), the control would rest on the approval mechanism of individual Small House land grant applications. To ensure that the arrangement of sewage treatment works of any development proposals would comply with the relevant requirements, the sewage treatment including the on-site STS system of Small House development would be considered by concerned government departments during the processing of Small House grant applications by LandsD. The design and construction of on-site STS for any development would need to comply with relevant standards and regulations, including EPD’s ProPECC PN 5/93 mentioned above.

5.3.5 Designation of “Agriculture” (“AGR”) Zone Major Grounds Representations (1) The designation of “AGR” zone in Pak Lap is wrong

decision, as it fails in promoting any genuine agricultural activities and offers no protection for the environment. The existing “AGR” zone covered by regenerated grassland is paved by turf, the historical background of “destroy first, build later” is ignored.

R4 and R5(part)

(2) The permitted land uses under “AGR” zone would pose undesirable environmental problems to Pak Lap and the natural habitats connected with the country park.

R5(part)

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(3) Inspection photos in mid-May 2020 reveal concrete works in the “AGR” zone and structures and platforms built on the grassover “AGR” zone.

R14

(4) The wet agricultural land with Ceratopteris thalictroides (water fern) which is of conservation significance and under Class II national protection was turned to dry land due to unauthorized land excavation/filling activities and drainage works. The Board was misled that the land within “AGR” does not have any ecological potential. The Ceratopteris thalictroides (water fern) was once recorded in the current “AGR” zone but the ‘destroy first, build later’ activities occurred at the site. A stringent zoning should be applied to deter undesirable developments and to allow rehabilitation of the ecosystem.

R5(part)

Proposal (5) Rezoning “AGR” and/or wet areas to “GB(1)” or

“CA”. R4, R5(part) and R14

Responses (a) In response to (1) to (4), the “AGR” zone is not the subject to be

reconsidered by the Board as required by the Court nor an amendment item under the current exercise. The designation of “AGR” zone on the OZP had been duly considered by the Board in the previous hearing and further hearing on the draft Pak Lap OZP No. S/SK-PL/1 and the Board considered that the “AGR” zoning was appropriate. Although the land within the “AGR” zone is currently fenced off and grassed with presence of planters and wooden platforms (Plans H-4a and H-4b), private lots within the zone are old schedule lots for agricultural purpose and Director of Agriculture Fisheries and Conservation (DAFC) advises that the fallow agricultural land is considered with good potential for rehabilitation into agricultural use. To ensure that activities within “AGR” zone would not result in adverse environmental impact, the Notes of the OZP have stipulated that diversion of stream, and filling of land/pond within “AGR” zone are subject to the Board’s approval. The “AGR” zone in Pak Lap is prohibited from livestock rearing activities under the Waste Disposal Ordinance. Therefore, it is not anticipated that major organic pollution on the stream and Pak Lap Wan will be caused by the non-livestock rearing farming activities. There is no strong justification for a departure from the Board’s previous decision and the proposed “GB(1)” and “CA” zone is not justified.

(b) In response to (3), Chief Town Planner/Central Enforcement and Prosecution, Planning Department (CTP/CEP, PlanD) comments that although wooden pallets and metal frames are found deposited at the “AGR” zone (Plans H-4a and 4b), the use of the “AGR” zone is uncertain at this stage. There is no sufficient evidence that there is unauthorised development under the Ordinance for the time being and no planning enforcement action would be taken against the alleged structures and platforms within the “AGR” zone at this stage.

(c) In response to (4), according to DAFC’s recent site inspection, scattered colonies of water fern are located at the wetland habitat of the “AGR” zone

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to the south of the northeastern “V” zone area between the eastern fence and the woodland margin (Plan H-4a). While water ferns are found scattered in the wet abandoned agricultural land on the eastern side of Pak Lap, he advises that the colony is small and its occurrence is subject to site conditions. Ecological value of the subject area would not justify the designation of a conservation zoning such as “CA”.

Proposal

(d) In response to (5), the “AGR” zone is not the subject to be reconsidered by the Board as required by the Court nor an amendment item under the current exercise. The designation of “AGR” zone on the OZP had been duly considered by the Board in the previous hearing and further hearing on the draft Pak Lap OZP No. S/SK-PL/1 and the Board considered that the “AGR” zoning was appropriate. Taken into account the consideration in paragraphs 5.3.5(a) and (c) above, there is no strong justification for a departure from the Board’s previous decision and the proposed “GB(1)” and “CA” zone is not justified.

5.3.6 Preservation of CPE

Major Grounds Representations (1) Pak Lap which is encircled by Sai Kung East Country

Park (SKECP) supports diverse population of different fauna groups and is ecologically linked to the SKECP. It also supports protected species of ardeids, waterbirds and raptors. High diversity of butterflies (37 species) and birds (55 species) have been recorded in Pak Lap, including two uncommon butterfly species, Bush Hopper Ampittia dioscorides etura and Silver Streak Blue Iraota timoleon timolecon and 11 bird species of conservation interest.

R5(part)

(2) The Board should take a stringent restrictive approach towards permitted land uses and development in CPEs to protect the existing environment.

R6(part)

(3) All developments should be stopped as it would adversely affect the ecology of the area.

R15

(4) Lax administration and ineffective enforcement have contributed to incremental degradation led construction works at Pak Lap. Inspection photos in mid-May 2020 reveals a mechanical excavator/backhoe on site, probably unauthorized works on the seashore and behind the beach, a vehicle track cut and constructed through “CA”, government land and wooded areas linking Pak Lap to the shore and works on the water course.

R14

(5) The Board has failed to fulfill the obligations under the Convention on Biodiversity (CBD) Article 8e in relation to the sustainable development of enclave areas.

R7, R8, R11, R12 and R14

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(6) The Board has failed to fulfil various requirements under the Hong Kong’s Biodiversity Strategy and Action Plan (BSAP) 2016-21, including Action 2 on the conservation of ecologically important habitats outside the existing protected areas, Action 3 on the enhancement of natural streams conservation and Action 9 on incorporating biodiversity considerations in planning and development process.

Proposal (7) Including Pak Lap into SKECP after detailed assessment

and public consultation. R5(part)

Responses (a) In response to (1), the ecological value of Pak Lap and the surrounding areas

are well recognised and it has been an important consideration in the drawing up of the draft OZP. Conservation zone, i.e. “CA”, under which there is a general presumption against development, has been designated at suitable locations to protect the natural environment of Pak Lap and the ecologically linked SKECP and the surrounding areas under the statutory planning framework.

(b) In response to (2) and (3), conservation-oriented approach has been adopted in drawing up the land use proposals of Pak Lap, which aims to strike a balance between conservation and development. As noted in the JR Judgment, the CFI also takes the view that the Board did seek to plan by striking a balance between conservation and development needs. The allegation that the Board failed to take into account CPE policy was rejected by the CFI.

(c) In response to (4), the seashore and beach where unauthorized works observed are outside the OZP boundary, which fall within the SKECP. DEP advises that there were five complaint cases on suspected construction works or land use received in the past three years, but no violation of environmental legislation was noted.

(d) In response to (5) and (6), DAFC advises that the protection of the CPEs to meet conservation needs, either through designation of country parks or conservation zonings of statutory town plans, including the ‘conservation oriented approach’ adopted by the Board in amending the Pak Lap OZP, is in line with the objectives of Article 8e of the CBD and the BSAP in promoting biodiversity conservation and sustainable development.

Proposal

(e) In response to (7), for CPEs to be protected by statutory plans, the general planning intention of the CPEs is to conserve its natural landscape and conservation value, to protect its natural and rural character, and to allow for small house development by the indigenous villagers of the existing recognised villages within the areas. Designation of Country Park is under the jurisdiction of the Country and Marine Parks Authority governed by the Country Parks Ordinance (Cap. 208) which is outside the purview of the Board.

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5.3.7 Designation of “G/IC(1)”

Proposal Representations (1) Reducing the “G/IC(1)” zone to an appropriate

size. R14

Responses (a) The “G/IC(1)” site of about 0.03 ha covers an existing village office and a

reserved site for provision of a government RCP and a public convenience of about 0.02 ha (Plan H-2), which is of the same size as the previously reserved site as requested by Director of Food and Environmental Hygiene.

5.4 Comments on Representations

5.4.1 The 61 valid comments are submitted by the Conservancy Association

(C54), Hong Kong Bird Watching Society (C55), 港九工團聯合總會 (C56), a member of SKDC (C61) and individuals (C1 to C53 and C57 to C60). Of them, three commenters (C54, C55 and C59) are also representers themselves (R4, R5 and R1). 53 of them are submitted in the form of standard proforma with individual commenters providing additional comments on top. The list of commenters is at Annex VI.

5.4.2 The major grounds of comments and PlanD’s responses, in consultation

with the relevant government departments, are at Annex VII. The major additional grounds/views are summarised as follows:

Additional Grounds/Views Comments (1) Brownfied sites should be used. Housing supply

should not be an excuse for development. C47

(2) Hiram’s Highway has already reached its capacity, there are also insufficient community facilities in Sai Kung.

C52

(3) The “V” zone should be deleted from the OZP as its area is excessive and village development would have adverse impacts on “GB” and “CA” zones.

C56

(4) News and investigations carried out by local bodies review that there is illegal operation of holiday camp in the area.

C58 and C61

Responses (a) In response to (1), statutory plans prepared for CPEs is not for housing

supply, but rather to conserve its natural landscape and conservation value, to protect its natural and rural character, and to allow for Small House development by the indigenous villagers. Over the years, the Government has adopted a multi-pronged approach for increasing land supply. To meet the acute housing need of the community, various measures in short, medium and long terms will be considered and explored concurrently.

(b) In response to (2), the limited population (about 230) in the area is not expected to cause insurmountable traffic impact to the road network in Sai

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Kung. Regarding the capacity of Hiram’s Highway, the road improvement works under Hiram's Highway Improvement Stage 1 are being carried out and the road improvement scheme under Hiram's Highway Improvement Stage 2 was gazetted in January 2020.. For community facilities, the Government has been closely monitoring the development and service demand in Sai Kung and Tseung Kwan O districts and is committed to set up suitable community and public facilities therein.

(c) In response to (3), since Pak Lap Village is an indigenous village, consideration is given to designating “V” zone on the OZP to reflect the existing village clusters and identify suitable land for village expansion, if necessary. For the possible adverse impacts from the village development, there is sufficient control in the current administrative system to ensure that individual Small House development would not entail unacceptable impacts on the surrounding environment. LandsD, when processing Small House grant applications, would consult concerned departments including AFCD, EPD and PlanD to ensure that all relevant departments would have adequate opportunity to review and comment on the applications.

(d) In response to (4), according to the Notes of “V” zone on the OZP, ‘Hotel (Holiday House only)’ is a Column 2 use which requires planning permission from the Board. According to PlanD’s record, no application for ‘Hotel (Holiday House only)’ in Pak Lap was received. No information has been provided by relevant departments including DLO/SK, LandsD and DO/SK, HAD on any suspected holiday camp in Pak Lap. DLO/SK, LandsD advises that Small House is granted for user of non-industrial purposes, and therefore operating holiday camp should not be in breach of the user restriction under the lease. Nonetheless, the operation of holiday camp is regulated by the Hotel and Guesthouse Accommodation Ordinance.

6. Departmental Circulation

The following government departments have been consulted and their responses have been incorporated in the above paragraphs, where appropriate: (a) District Lands Officer/Sai Kung, Lands Department; (b) Director of Agriculture, Fisheries & Conservation; (c) Director of Environmental Protection; (d) Director of Food and Environmental Hygiene; (e) Commissioner for Transport; (f) Chief Engineer/Mainland South, Drainage Services Department; (g) Chief Engineer/Construction, Water Supplies Department; (h) Director of Fire Services; (i) Head of Geotechnical Engineering Office, Civil Engineering and Development

Department; (j) Chief Highway Engineer/New Territories East, Highways Department; (k) Director of Electrical and Mechanical Services; (l) Director of Marine; (m) Director of Leisure and Cultural Services; (n) Chief Building Surveyor/ New Territories East 2 & Rail, Buildings Department;

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(o) Executive Secretary (Antiquities and Monuments), Antiquities and Monuments Office, Development Bureau;

(p) Chief Engineer (Works), Home Affairs Department; (q) District Officer (Sai Kung), Home Affairs Department; (r) Chief Town Planner/Urban Design and Landscape, PlanD; and (s) Chief Town Planner/Central Enforcement and Prosecution, PlanD.

7. Planning Department’s Views

7.1 The supportive views of R1, R5(part) and R6(part) are noted.

7.2 Based on the assessments in paragraph 5 above, and for the following reasons, PlanD does not support the R2 to R4, R5(part), R6(part), R7 to R17 and considers that the draft OZP should not be amended to meet the representations: Genuine Need for Small House Development (a) to follow up the Court’s Judgment on the JR, a review on the genuine need

for Small House development has been undertaken and the best available information has been provided to the Board for consideration (R2 to R4, R5(part), R6(part), R7 to R14);

Designation of “V” Zone (b) the designation of the “V” zones is considered appropriate and a host of

planning factors, including but not limited to the village ‘environ’, local topography, existing settlement pattern, number of approved and outstanding Small House applications, Small House demand forecast, availability of road access and infrastructure, areas of ecological and landscape importance as well as site specific characteristics have been taken into account. An incremental approach has been adopted for designating the “V” zone with an aim to confining Small House development to the existing village cluster and the adjoining suitable land and to minimize adverse impact on the natural environment. (R2 to R4, R5(part), R6(part), R7 to R17);

(c) each CPE should be considered on the circumstances and characteristics of individual areas, and same planning control of Tai Long Wan OZP is considered not necessary to apply to Pak Lap OZP (R3, R5(part), R9, R10, R13 and R14);

(d) matters related to BGL and implementation details of SHP is not directly

related to the OZP. LandsD will handle these matters in processing of Small House grant applications (R15);

(e) there is no deprivation of landowners’ right in using their land. The draft OZP is not inconsistent with Article 40 of the Basic Law (R16);

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Environmental Impact on Existing Stream

(f) there is an established mechanism exercised through the Small House grant application system administered by LandsD to ensure that individual Small House development and STS system within “V” zone would not entail unacceptable impacts on the surrounding environment (R3, R4, R5(part), R7, R8, R11, R12 and R14);

Designation of “AGR” Zone

(g) the designation of “AGR” zone on the OZP has been duly considered by the Board in the previous hearing and further hearing on the draft Pak Lap OZP No. S/SK-PL/1, there is no strong justification for a departure from the Board’s previous decision (R4, R5(part) and R14);

Preservation of CPE (h) the ecological value of Pak Lap and the surrounding areas are well

recognised and it has been an important consideration in the drawing up of the draft OZP. Conservation zone, i.e. “CA”, under which there is a general presumption against development, has been designated at suitable locations to protect the natural environment of Pak Lap and the ecologically linked SKECP and the surrounding areas under the statutory planning framework (R5(part));

(i) a conservation-orientated approach has been adopted in drafting up the land use proposal of Pak Lap, which aims to strike a balance between conservation and development (R2 to R4, R5(part), R6(part), R7 to R14);

(j) designation of the Country Park is under the jurisdiction of the Country and

Marine Parks Authority governed by the Country Parks Ordinance (Cap. 208) which is outside the purview of the Board (R5(part)); and

Designation of “G/IC(1)” Zone

(k) the size of the “G/IC(1)” zone is considered appropriate to reflect the

existing village office and the reserved site for provision of government refuse collection point and a public convenience (R14).

8. Decision Sought

8.1 The Board is invited to give consideration to the representations and comments

taking into account the points raised in the hearing session, and decide whether to propose/not to propose any amendment to the OZP to meet/partially meet the representations.

8.2 Should the Board decide that no amendment should be made to the draft OZP to meet the representations, Members are also invited to agree that the draft OZP, together with their respective Notes and updated Explanatory Statement, are suitable for submission under section 8 of the Ordinance to the CE in C for

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approval. 9. Attachments

Annex I Draft Pak Lap OZP No. S/SK-PL/3 (reduced size) Annex II

Schedule of Amendments to the Draft Pak Lap OZP No. S/SK-PL/1 Incorporating the Amendments as shown on Plan No. R/S/SK-PL/1-A2

Annex III(a) TPB Paper No. 10624 with Plans 1 to 6 only Annex III(b) Extract of Minutes of the TPB Meeting held on 3.3.2020 Annex IV Annex V

Minutes of HPDC Meeting on 19.5.2020 Summary of Previous Representations, Comments and Further Representations in respect of the Draft Pak Lap OZP No. S/SK-PL/1

Annex VI List of Representers and Commenters in respect of the Draft Pak Lap OZP No. S/SK-PL/3

Annex VII Summary of Representations and Comments and PlanD’s Responses in respect of the Draft Pak Lap OZP No. S/SK-PL/3

Plan H-1 Plan H-2 Plan H-3

Location Plan of Representations and Comments Aerial Photo Proposals of Representations

Plans H-4a and 4b Site Photos PLANNING DEPARTMENT NOVEMBER 2020