High Court blocks construction of “small houses” but not for environmental reasons

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In a decision that could ultimately prove useful for groups looking to protect parklands, a High Court judge blocked construction of “small houses” in three areas, but environmental concerns were not a significant factor.

The High Court ruled in favor of an environmentalist’s complaints and ordered the Town Planning Board to reconsider plans to rezone three country park enclaves for more indigenous village houses.

High Court Justice Thomas Au Hing-cheung handed down the 74-page ruling on December 1, saying the Town Planning Board “failed to carry out its duty of inquiry” and did not find out whether villagers had a genuine need to build houses – commonly known as “small houses” — in the three areas of Hoi Ha, Pak Lap and So Lo Pun.

The planning board approved the draft outline zoning plans for the three sites on November 21, 2014, and the Executive Council then gave a go-ahead to build as many as 300 indigenous village house in February 2015.

In 2016, Chan Ka-lam of the group Save Our Country Parks, applied for the judicial review and opened the door for the judgment which, experts say, could lay a pathway to block construction of village houses on now-empty land.

“[It is] a highly inefficient and destructive form of development, and threat to our remaining natural areas,” wrote Paul Zimmerman, a councilor in the Southern District who represents Pokfulam, in an article published in local media.

“It has long been obvious to everyone in Hong Kong that small house development is mostly for sale to the market,” Zimmerman added. “The Lands Department condoned this by hiding behind the Small House Policy and guidelines set for them. They kept their eyes, ears and mouth shut to the reality. But no longer. In the future they will need to make serious inquiries and check information provided by the village leaders.”

“The biggest ramification of this judgment is that in all future enclave Development Permission Areas or Outline Zoning Plan hearings, the village representatives will not just be able to come with a ludicrous figure for the ‘need’ for housing which is accepted, without audit, by the Town Planning Board,” said David Newbery, Secretary of Friends of Hoi Ha, a local group.

The call for a judicial review also mentioned that the draft plan underestimated the destruction to the environment, a point Justice Au did not underscore.

“The main disappointment was the acceptance by justice Au that the present planning system would prevent the pollution of the environment by septic tanks and would cater for the cumulative impact of numerous houses in the same area,” said Newberry.

The Government has four weeks to appeal. Local environmental groups believe that the order means that the government will have to re-open the three enclaves.

“Our legal advice is that they are unlikely to do so, as the findings were quite conclusive and difficult to argue against,” said Newberry.

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