The Battle for Hoi Ha Part II: Zoning Out

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We follow the Battle for Hoi Ha, a village enclave within our Country Parks.  In Part I (October 4), we set the scene.  In this issue: Zoning.  It’s all about the zoning.

Most people living in urban areas are vaguely aware of zoning. Commercial, residential and industrial might impinge on their awareness like they are aware there are roughly three kinds of animals – mammals, birds and slimy things. In Hoi Ha, things are a little more complex.

Theoretically, the government has jurisdiction over land in Hong Kong and can, authorised via various acts and ordinances, impose some order to achieve goals including providing habitation, protecting the environment and allow people to earn a livelihood.  Understanding what a piece of land has been zoned tells you if it will be paved or preserved.  Without understanding this, you can’t understand what is happening in the 77 enclaves in Hong Kong’s country parks.  While this rendering will seem somewhat complex, it is a vast simplification of a process with hundreds of players, mountains of legalese, and grey zones galore. The only ones that usually master it are those with the most money on the line.

Most of the 77 enclaves were slated for some kind of development with only 3 enclaves slated for the ‘gold standard’.

A development from the Secretary of Development
In response to 2 sets of LegCo questioning, Paul Chan, the Secretary for Development, made some definitive statements on Wednesday.  He specified that  there were no development plans for the country parks. However, most of the 77 enclaves were slated for some kind of development with only 3 enclaves slated for the ‘gold standard’ – disappointing green groups. Sai Wan, Kam Shan and Yuen Tun would be included in the country parks, However, even this was not to everyone’s satisfaction and at least one will face a judicial challenge (see accompanying story).

The Town Planning Board

When the members of the TPB consider zoning, they are not supposed to know the ownership of the land they are considering, in order to avoid bias.

This is the almighty TPB that decides the future of zoning in various areas. It breaks out into a Metro and Rural and New Town Planning Committee (RNTPC).  It is the latter that interests us.  The Rural and New Town Planning Committee has 16 members plus the Dep Secretary (Transport), Director of Home Affairs, Director of Environmental Protection, and the Assistant Director of the Lands Department.  The Chair is the Director of Planning (KK Ling). Members have a preponderance of Drs (mostly academic PhD’s), Irs. (engineers), and JPs.

It is a big group and not compulsory for members to attend all meetings.  Its meetings are  transparent with minutes and audio available online.  The volunteers members, all appointed by the Chief Executive (CE), often consider approval or denial of 20-30 complex plans at a single meeting.

A key point is that when the members of the Board consider zoning, they are not supposed to know the ownership of the land they are considering, in order to avoid bias.  Information to the members is provided by the Town Planning Department, who liaise with a broad range of other departments to prepare packages for the  RNTPC members. Given the huge range of details involved and projects considered at each meeting, this means the bureaucrats have a huge amount of power in controlling the agenda.

One member described it as ‘very tedious and time consuming’ but  ‘very important’ and controversial.  There are always competing interests and there will always be objections based on everyone’s interests. HT’s  source told us, “You cannot please everybody.”

A final note – the TPB can zone almost anything but it cannot declare any part of an enclave Country Park. Country Parks are for “purposes of nature conservation, countryside recreation and outdoor education.” Only the Chief Executive can declare an area Country Park, normally on the recommendation of the Country and Marine Parks Board (CMPB) acting under the authority of Country and Marine Parks Authority (CMPA).  More on them below. Country Park is the gold standard in preservation in Hong Kong.

Time Out! The DPA
When news broke that developers were pre-selling Hoi Ha resorts in Japan, Hongkongers kicked up a fuss and alerted the media who contacted Hoi Ha residents. The TPB had to take notice. They issued a Development Permission Area (DPA) Plan. This sets a temporary zoning outline for the area, but is a form of stalling. Once the DPA is put in place, a 3 year timer starts running. During this time, the TPB and Planning Department begin to collect opinions and information about what should happen in the area being considered. Residents, other government departments (all of them), and other stakeholders can weigh in.  At the end of the three years and after (theoretically) much deliberation and consultation, the TPB must,  by law, produce a draft OZP – then we really begin to see what this area will look like.

OZP: Outline Zoning Plan

The draft OZP is only ever subject to minor changes, if any.

Once the OZP comes into play, you are starting to see what your lobbying has wrought. The draft OZP is, according to HT’s source, only ever subject to minor changes, if any. It is the summation of the compromise among stakeholders. The plan is made available for inspection in various TPB offices in the New Territories.

The Hoi Ha Plan was posted, or ‘gazetted’, on September 27th 2013, roughly meeting the DPA’s deadline of having a plan in 3 years. This starts another 2 month clock after which time the OZP will become the law. This is the November 27 deadline at which point Hoi Ha will be subject to the new plans as they stand.

What can parts of an enclave be zoned? Hoi Ha has a more complex selection of elements in place than most. It’s most special element is the Marine Park.

Marine Park

Concerns about increasing amounts of E.coli and household pollutants are rising as community considers the impact of another 60 houses as outlined in the draft OZP.

Hoi Ha is very unusual in that it has a marine park. Administered by the Agricultural and Fisheries Department (AFCD) who prowl around  Hoi Ha in uniform, marine parks are zone where all manner of activity are prohibited to avoid damaging the marine environment. Fishing, hunting, water-skiing, collecting specimens are banned and camping, mooring and more are controlled.

The TPB recommends the designation of a Marine Park to the AFCD and the Country and Marine Parks Board (a statutory body advising, and directed by, the Country and Marine Parks Authority) who can then ask the Chief Executive to designate an area Marine Park.

Hoi Ha Bay is renown among snorkelers for its magnificent corals and wildlife. The water is fairly clean with 30 houses in situ. Concerns about increasing amounts of E.coli and household pollutants are rising as community considers the impact of another 60 houses as outlined in the draft OZP. One of the players in the Hoi Ha drama has run a successful  business introducing students and divers to the area (more on this in Part III). The WWF has an education centre close by that engages people in the Marine Park. The Marine Park’s health plays a large part in concerns about future development in Hoi Ha and up the valley into Pak Sha O and how impact on the water table would degrade the local environment.

Site of Special Scientific Interest (SSSI)
Hong Kong has borrowed this British terminology to designate an area protected to protect wildlife and their habitats and/or of geographic features of, well, scientific interest. And they’re special. Hoi Ha has this designation  on account of the extreme biodiversity in the marine environment.

An interesting feature of SSSI’s  is that Septic Tanks Systems (STS), also known colloquially as soakaways, cannot be placed within 100m of a SSSI or within 15m of a stream.  However, this is an extreme bone of contention between the more scientifically minded activists and the Environmental Protection Department (EPD). Local representation claims that the EPD is choosing not to enforce the law, as the OZP allows building in areas within 100m of the Pak Sha O River that flows into the Bay. STS’s are normally right next to the homes they serve. EPD sees their application of the law differently and HT invites their comments in our next issue.

The V Zone – Here there be Village

If male descendents have more than one son, demand for the houses will grow, villages must expand.

The concept of the V-Zone – or Village Type Development – is where the development action happens.  It is well understood by most observers that male descendents of Indigenous Villagers (IVs) can apply for the right to build a village house within the Village Environs (VE) of their village. The right to build one of the 3-storey standard houses is given by the Lands Department under the Small House Policy. Applicants must, among other considerations, have the signature of their Village Representative  to confirm their authenticity as an IV. Given the price of houses is approaching $16M HKD a house, it is an awful lot of money for anyone who can lay any sort of claim to leave lying around unclaimed. Given that so few villagers actually live in the village, one gets the impression the new-comers laying claim to land don’t know their neighbours, don’t care and collect rent checks from non-Indigenous Villagers (NIVs) with alternative work arrangements. Accusations about sold-on housing rights (known as ‘ding’ rights) and bribery associated securing documentation fly fast and furious, but of course no one is on the record.

A future issue will examine the economics of the issue. For now, it is enough to understand that if male descendents have more than one son, demand for the houses will grow. If demand keeps up, villages must expand to accommodate multiplying IVs demanding their rights, if not actually living in the villages. The houses are ‘New Territories Exempt Houses’ – exempt from normal building regulations. Originally meant for IVs so they could build their own homes on the cheap, the exemption is used by developers cutting costs.

These houses are frequently built with little attention to regulation.  This means improper sewage, road access and worse.  8 months ago,  two  boys aged 7 and 8 died in a fire when illegal structures blocked the road to fire engines.  The government took 8  months to respond to calls for an enquiry.

Houses can be inherited and sold.  Any son of the village lucky enough to inherit a house can sell it on to a developer and then apply for his own – in effect getting a double hit.  Much of the property in Hoi Ha was acquired by developers in this manner.

In Hoi Ha, the ownership isn’t part of the consideration for zoning.  So TPB members could decide to zone an area open for development under the Small Homes Policy.  In fact, the land could  be owned by developers looking to build rental  or sales units, having  secured rights to the land from the IV.  Hoi Ha is in this situation now.  The draft OZP proposes allowing development extending from the village out and up to the river – in contravention of biodiversity treaties and EDP  regulations about the location of septic tanks.  This is the main point of concern. Some smaller development has also been proposed on the opposite of the village in a more modest development.

Agricultural  Land
Land zoned agricultural is intended to be farmed.  However, it is easier to get re-zoned than other types of land. Under the draft OZP, the agricultural land, mostly close to the river to the  bay, is owned by  developers. There are those who fear on November 27th, bulldozers will roll in to reduce forests to flat scrub.  This serves to remove trees that could be a reason to block development permission, easing the conversion into buildable land.  In some years, a rezoning could quietly be enabled – and finally the Tokyo resort can be built.  Others think this is unlikely, but technically possible.  Real agricultural runoff would  obviously impact on the Marine Park – an SSSI.

Other zoning areas in play, all of which are defined as having a ‘general presumption against development’, include:

  • Green Belt – a buffer area located between the village and protected areas to prevent urban sprawl.
  • Conservation Areas – designated for protection of  the natural landscape.
  • Coastal Protection Area – are buffer areas, typically along the oceanfront, that restrict building within a certain proximity to the sea to protect unique characteristics.

Hoi Ha as areas, such as a CPA along the beach, that protect its  environment – in theory.  As we shall see, execution is something else.

A non-technical designation, but one that seems of great concern to the AFCD are so-called Fung Shui Forests – areas with a selection of rich plant diversity anchored around trees considered to have spiritual significance.

Now that readers know what is at stake (Hoi Ha) and the terms of engagement (the zoning), Part III, coming out on November 1st, can deal with the players and what they are angling for – and why.  Stay tuned.

The series:
The Battle for Hoi Ha Part I: The Bellwether
The Battle for Hoi Ha Part II: Zoning out
The Battle of Hoi Ha Part III: End of the Line for Hoi Ha