Is the development control legal framework conducive to a sustainable dense urban development in Hong Kong?

Is the development control legal framework conducive to a sustainable dense urban development in Hong Kong?

ARTICLE IN PRESS Habitat International 28 (2004) 409–426 Is the development control legal framework conducive to a sustainable dense urban developme...

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Habitat International 28 (2004) 409–426

Is the development control legal framework conducive to a sustainable dense urban development in Hong Kong? Edwin H.W Chan*, Esther H.K. Yung Department of Building and Real Estate, The Hong Kong Polytechnic University, Hung Hom, Kowloon, Hong Kong Received 5 August 2002; received in revised form 16 November 2002; accepted 5 April 2003

Abstract Like many Western countries, Hong Kong as a densely populated modern city is moving towards the goal of urban sustainability. However, the implementation mechanisms towards achieving such a goal are indeed a complex and often contentious process. Increasing demands have been made by the public in requesting developers to minimise the impact of property development on the environment. These global concerns can be much more difficult to implement in a city like Hong Kong that has a high concentration of urban population, constant pressure upon infrastructures and a limited supply of land resources. This paper argues that much of the rationale behind the prevailing development control laws today is not conducive to meeting with the requirements of ‘‘sustainability’’. A research was carried out to identify the obstacles in the area of planning and building laws that hinder the implementation of sustainable dense urban development. The research is backed with a review on the criteria anticipated by the Hong Kong government for sustainable development and an appraisal of the development control legal framework in Hong Kong to find any defects in the existing system. Following a questionnaire survey, a series of in-depth interviews was also conducted to explore the possibility of improvements. The correlation of several major issues is also identified. Recommendations are presented in this paper with the aim to minimise the barriers created by the current development control legal framework towards the goal of a sustainable dense urban development. r 2003 Elsevier Science Ltd. All rights reserved. Keywords: Planning law; Sustainable development; Urban planning; Building; Hong Kong

1. Introduction The Brundtland Commission defines sustainable development as ‘‘development which meets the needs of the present without compromising the ability of the future generations to meet their own needs and aspirations’’ (World Commission on Environment and Development (WCED), 1987, *Corresponding author. Tel.: +852-2766-5800; fax: +852-2362-3979. E-mail address: [email protected] (E.H.W. Chan). 0197-3975/03/$ - see front matter r 2003 Elsevier Science Ltd. All rights reserved. doi:10.1016/S0197-3975(03)00040-7

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p. 47). It was augmented by the Green Paper on the Urban Environment published by the European Commission in Brussels (Commission of the European Communities (CEC), 1990), which highlights functional, social, economic and environmental problems of today’s cities and puts forward objectives and directives toward achieving a more sustainable urban environment. There are no algorithmic answers to the question of ‘what is sustainable?’ What sustainability means may be dependent on one’s political and ethical commitments, not some scientific standard (Beatley, 1995; Bowersox & Gillroy, 2002; Owens & Cowell, 2002; Poon, 1999). ‘Sustainability’ is an ambiguous inheritance because as a desirable objective it has also served to obscure the growth and contradictions that ‘development’ implies for the environment (Redclift, 1987). Through the integration of social, economic and mass transit issues, and urban greening and recycling initiatives, environmentally responsible policies are interlinked to foster the health and economic well-being of the urban poor (Australian Urban and Regional Development Review (AURDR), 1995; Beatley, 1995; Blowers, 1993; Fung, 1998; Smith, 1997). To achieve ‘urban sustainability’, not only the ecological concerns of cities should be addressed, but also the vitality of citizens (Basiago, 1999). The idea of ‘‘sustainable development’’ has been discussed for more than a decade. Hong Kong is among the number of active and enthusiastic parties to join this world movement. The major principles coming out of the 1992 UN conference for the environment (the RIO Summit) can specifically be called the ‘Agenda 21’. Based on the principles, the Hong Kong government is engaged in a process of policy development to identify the goals and mechanisms for the implementation of economically, socially, and environmentally acceptable sustainable development in Hong Kong. The ‘Agenda 21’ identifies the key fields of action for developing an institutional framework for sustainable development while it recognise the local situation of each country in defining and implementing the principles of sustainability. Hong Kong seems to have adopted a cautious position in following the ‘Agenda 21’ (McInnes, 2001). For sustainable urban development, Haughton (1997) describes four models including selfreliant cities, redesigning cities, externally dependent cities and fair-shares cities. Among these four models of sustainable urban development, there are strong supports for the ‘Redesigned City or Compact City’ approach, in particular for high-density residential and mixed-use development (Haughton, 1997). The approach requires planning for a compact and energy efficient city through improving building design. Recent study in the area of sustainability has been undertaken with topics on construction methods, recycled materials, and costing. However, there is an essential and urgent need to have a thorough investigation on the implementation mechanism for sustainable development (Chan, Tang, & Yung, 1999). This paper provides an overview of the concept of sustainability and focuses on its practical implementation dimension in achieving it. It presents a research carried out in 2001which investigates the legal framework in the planning and building controls that affect the development potential of urban land. The key legal provisions include environmental design control, land-use zoning, planning control, building control and urban renewal. This paper argues that most of the building and planning regulatory framework may become out-dated in meeting with the objectives of sustainability and that there is a fundamental need to reconsider the current applicability of these regulations. It proposes to examine the apparent ‘‘defects’’ of these legal provisions and to evaluate them in relation to accommodating additional urban development density without compromising the goals of sustainability.

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2. Literature review 2.1. Development control legal framework in Hong Kong The key elements of the legal framework for controlling dense urban development in Hong Kong includes government land lease control, planning control, building control and environmental control (Chan, 1998). The Town Planning Ordinance regulates urban development through statutory outline zoning plans (OZP), which restrict the uses and density of development. Development potential of a site is controlled by the plot ratio, site coverage, and gross floor area (GFA) provisions under both the Town Planning Ordinance and the Buildings Ordinance. Through administrative measures, land lease conditions set out the uses, maximum and minimum GFA and development period for a project site. The Environmental Impact Assessment Ordinance provides a macrolevel control on development projects in Hong Kong with the aim to minimise adverse environmental impact from development. At operational level, most of the pollution control ordinances are prescriptive in nature, which affect construction activities (Chan, 2000). Table 1 is a brief summary of the key elements of the development control legal framework affecting urban development in Hong Kong. 2.2. Previous studies on dense urban development in Hong Kong Thinh, Arlt, Heber, Hennersdorf, and Lehmann (2002) point out that a compact city has two attributes. First is the physical compactness, which is the spatial configuration of land-use development within a city. Second is the functional compactness and the mix of daily activity. Questions as to what degree of compactness is conducive to sustainable urban development have yet to be answered (Scoffham & Vale, 1996; Welbank, 1996). The planning systems of Western countries in delivering sustainable development have resulted in widespread adoption of urban compactness policies (Breheny, 1997). However, political and academic supporters of urban compactness have failed to confirm whether the solution can actually be delivered. This has posed similar concerns for planners in Hong Kong. Hong Kong is characterised by its compactness and the ‘redesigned city’ approach to sustainable urban development as described by Haughton (1997) may be suitable for Hong Kong. In the Western context, high-density development is often considered to be over-crowded and causes excessive congestion, with potentially pathological effects on society. Nonetheless, in Hong Kong, it is apparent that the very high density of development has not been accompanied by many of the social illnesses experienced in the West (Chau, 1983). In addition, property prices of different areas also reveal that people in Hong Kong are still favour in living in dense urban areas as compared to more remote districts. The question is how compact (dense) our urban environment is sustainable. A compact city could improve economic attractiveness of an area. On the other hand, it is noted that compact city generates higher land prices, making housing and business premises prohibitively expensive. Therefore, it is important to find out the sustainable balance between ecological and economic performance potential and to extrapolate benchmark values and recommendations for sustainable urban development. In Hong Kong, dense development has been one of the solutions in satisfying housing demand in urban areas, although often at the expense of over-crowdedness. The tightly packed high-rises

Lease control

Environmental control

Corresponding departments

Planning Department, Town Planning Board

Building Department, Building Authority

Lands Department, District Lands Offices

Environmental Protection Department, Advisory Council of Environment

Law/regulations

Town Planning Ordinance:

Building Ordinance:

Lease conditions:

Metro plan, statutory Outline Zoning Plan and Development Permission Area plan. The laws impose restrictions on plot ratio, site coverage and building height

Building (Planning) Regulations control plot ratio, site coverage, gross floor area (GFA), open space and bonus plot ratio for planning gain. The Regulations also control building projection, natural lighting and ventilation, lane/street width and prescribed window provision.

Require to comply with master layout plan, use restriction, and max/min GFA, development period, design disposition and height restrictions and other ordinances.

Environment impact assessment (EIA) Ordinance: Provides macro-level control on projects. For designated projects, Environmental Permit is required before building plans approval.

Important technical guidance: Hong Kong Planning Standard Guides (HKPSG).

Important technical guidance: Codes of practice and Practice Notes to Authorized Persons (PNAP).

Important technical guidance: Land valuation practice. Land premium is directly related to the Max. permissible GFA.

Important technical guidance: Environment Chapter of the HKPSG and the Technical Memorandum of the EIA Ordinance.

To ensure compliance with statutory Outline Zoning Plans in urban areas, the system has to rely on the Buildings Ordinance through approval/ disapproval of building plans.

Practice notes to professional persons. Some cases are governed by further constraints imposed in the leases and the OZP.

Issue a certificate of compliance when the developer complies with all the lease conditions. Some land use zoning is further restricted to the uses allowed in Town Planning Ordinance.

Apart from the control of designated projects under the EIA Ordinance, many of the environmental policies are implemented through the planning control framework.

Administrative procedures

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Planning control

412

Table 1 Key elements of the development control legal framework for the private sector urban development in Hong Kong (Buildings Department, 1999; Planning Department, 1996; Wong & Chan, 2000)

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without systematic height control, not only block the magnificent harbour view and mountain backdrop, but also reduce urban breezes and ventilation between buildings, creating the ‘‘heatpocket’’ effect (Hui, 1999). Development potentials of heritage buildings cannot be transferred which hinders comprehensive development and preservation of cultural heritage (Lee, 1997). Recent government policy aiming at providing larger supply of housing has prompted the building industry to re-think how denser we could build and what are the environmental limits (Leung, 1998). There are advocates in favour of dense urban development in Hong Kong and previous studies pointing to this are in abundance. Lai (1993) assesses Hong Kong’s density policy towards public housing. The empirical results of his paper suggests that in many instances, the actual density of the public housing sector is in fact already very low by the prevailing density planning standards. Lai (1999) also states that ‘‘downzoning’’ to reduce the maximum plot ratio allowable for a particular zone has no immediate tangible benefit. There is no empirical evidence showing that the imposition of plot ratio has an immediate effect upon either land value of adjoining land or environment improvement in the locality. Moreover, Shankland Cox Ltd. (1999) carried out a review of the development density and height restrictions in Kowloon and New Kowloon. It was concluded that a moderate level of redevelopment activity by the private sector could be allowed. Another area of criticism on the density control that also affects development potential is the GFA control provision. As the Secretary for Planning, Environment and Lands stated that ‘‘[o]ne of the Government’s principal policy objectives is to ensure that buildings in Hong Kong are functionally designed, environmentally friendly and safe’’. These aspects are controlled by various Building Regulations or Codes of Practices, which affect both internal planning and external expression of buildings. For building designs to meet the stringent building controls, other issues such as environmental concerns, cultural expressions, site context together with other creative and innovative ideas, may become factors of secondary importance (Wong, 2000). Chan, Tang, and Wong (2002) have also carried out an empirical study on density control and quality of living space of private housing in Hong Kong. The study presented the adverse effect on quality of living space caused by the floor area controls. It concluded that a better calculation method was to divide the permissible GFA into saleable floor area and common area. Only the saleable floor area portion of GFA should be subject to control density and the common area portion should be given flexibility to add amenity facilities for improvement of living quality. The study reveals the need to evaluate in details current legal provisions for planning and building controls in Hong Kong, so as to allow for an environmentally viable dense urban housing development. On the density control mechanism, Tang and Tang (1999) have endeavoured to propose a new zoning incentive—a two-tier plot ratio system in Hong Kong. It was a planning incentive measure that gave a bonus floor area ratio (FAR) to private sector housing redevelopment if it reached a minimum lot size and provided ancillary servicing facilities within the project. However, it did not achieve the stated objective in increasing private sector site amalgamation for new urban housing redevelopment. Hong Kong has been heavily relying upon the private sector in improving our built environment. Most importantly, their actions are facilitated, enabled or constrained by the prevailing development control legal framework (Chan & Tang, 1999). As such, the existing legal framework for development control should be fundamentally reconsidered with the view of achieving environmentally viable higher density urban development by exploring new life of technology and modern concept of living space in a metropolitan city.

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3. Framework of this study 3.1. Sustainable development criteria The aim of this research is to evaluate whether the existing development control legal framework for urban development in Hong Kong are conducive to the goal of sustainable dense urban development. In a recent study carried out by the Hong Kong government entitled ‘The Study on Sustainable Development for the 21st century in Hong Kong (SUSDEV21)’, it was actually a preliminary focus on promoting public discussion of sustainable development rather than developing an actual strategy for its implementation (Hong Kong SAR, 1998). The concept of sustainability remains largely a theoretical construct. Exactly how to implement the objectives of sustainability in the practical sense is yet to be further studied and debated. The set of sustainable development criteria for the 21st century have yet to be tested to be the most appropriate and responsive to the local context of Hong Kong. The following are some of the major sustainable development criteria for the 21st century set by Government of the Hong Kong SAR and which are adopted for this research. 3.1.1. Natural resources A limited land resource, which leads to the lack of space and crowding, is serious issues in Hong Kong. It is believed that better use of urban space and urban renewal may assist in efficient land use. 3.1.2. Society and social infrastructure The HKSAR aims to reduce the percentage of households residing in inadequate housing. This may be achieved by an increase in living space per person. In terms of infrastructure, there is a need to increase the percentage of the population living within a short walking distance to community facilities in order to avoid unnecessary transportation. 3.1.3. Cultural vibrancy Recreational, cultural, archaeological, historical and architectural assets should be protected and enhanced. At the same time, it should increase the percentage of the population living within districts with the open space and/or recreation facilities that meet the required standards. 3.1.4. Environmental quality Pollution is one of the most tangible signs of Hong Kong’s current shortfall in quality of life and sustainability for the future. In addition to declining air quality, noise pollution is considered a serious problem due to the pervasive and localised nature of the noise. Although our environment is subject to the climate and regional activities, local development pattern can also be a major attribute. 3.1.5. Mobility Hong Kong should provide safe, accessible and efficient public transport systems and pedestrian facilities along with an efficient transport network for the movement of goods and the facilitation of services for the community. Transport planning and land-use planning should continue to ensure that the population is well served.

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3.2. Characteristics of sustainable dense urban development With the above-mentioned sustainable development criteria in mind, the objectives of this research are to compare and evaluate whether the development control legal framework is conducive to fulfilling these goals. Consequently, it is hypothesised for this research, that ‘sustainable dense urban development’ should have the following characteristics: * * * *

*

*

*

Provide adequate housing, provide quality living space. provide adequate open spaces with a healthy environment, develop a centralised, self-contained urban city where the population is well served by public transport systems. It should ensure minimum travel distance to major activities, e.g. work, entertainment, education, etc., cultural vibrancy should be enhanced by the integration of old and new developments. The preservation of archaeological, historical and architectural heritage assets should be integrated with the contemporary city fabric and be experienced as a continuation of our history. To develop a dense city environment with adequate natural day lighting, air flow, vistas and an interesting cityscape, to give emphasis to a more ‘‘three-dimensional control’’ on development rather than heavily relying on prescriptive control on the plot ratio, site coverage and building height regulations. The ‘‘three-dimensional control’’ includes the evaluation of aesthetic, building form, [email protected] treatment and height in relation to the surrounding environment. Respect the characteristics of a locality. For a particular small district, there should be an overall urban scheme with three-dimensional massing and possible options for carving out the development potential.

4. Research methodology 4.1. Qualitative or quantitative method The methodology of this research is based on the general principle of triangulation method. The complex nature of this study concerning social and legal issues means that it could not be based purely on analysis of questionnaire data, nor could it rely solely on opinions of a few experts. Therefore, it is wise to use ‘‘multiple methods’’ which employs both quantitative and qualitative research methods involving ‘‘triangulation’’ or ‘‘the combination of methodologies in the same phenomena’’ (Jick, 1978; Denzin, 2000). Since 1950s, there are many research projects carried out with success by applying both the quantitative and qualitative methods as a triangulating strategy. Triangulation can be used for within-method (cross checking) and between-method (validity checking of qualitative results and quantitative data analysis) approaches (Chan, 2002; Jick, 1978; Shapiro, 1955). There are four alternative models in which qualitative and quantitative methods can be combined in a triangulating approach (Steckler et al., 1992). In this study, the Model 2 version of triangulation (Model 2: Qualitative methods are used to help explain quantitative findings.) has been used to provide a comprehensive understanding of the relevant issues and to verify the preliminary results suggested by quantitative data analysis.

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4.2. Research stages More specifically, the methodology of this research consists of three major stages that were carried out. Firstly, the Hong Kong government’s policy on sustainable development is studied. Following literature review on the theoretical background for sustainable urban development, the criteria anticipated in the policy of the Hong Kong government are analysed to establish the characteristics of sustainable dense urban development for fieldwork study. Secondly, with reference to the above-mentioned sustainable development criteria for Hong Kong, the issues and constraints of the existing development control legal framework for sustainable dense urban development in Hong Kong were identified through a literature review. It aims to find out any good practice and to explore possible solutions to the issues identified in Hong Kong. The areas chosen for study include: * * * * * * *

General control mechanism, Zoning-statutory plans, Density control—plot ratio and site coverage, Building control—regulations, open space, prescribed windows, Planning control—urban design guide plans and planning application, Lease modification—development charge, Environmental control.

Third stage of the research methodology was a questionnaire followed with structured interviews. Based on thorough literature review, a set of questions was generated. The questions mainly focus on the issues and possible improvements on the development control legal framework for dense urban development in Hong Kong. A preliminary set of interview questions was designed in the form of questionnaire, which was sent to target samples of architects, planners and developers. The quantitative data collected from the questionnaires highlight issues for further study and help to refine the interview questions for follow-up structured interviews. Those respondents indicating willingness to take part in the research were conducted with face-to-face interviews, which provide rich qualitative data and clarify some of the queries found in the questionnaires. 4.3. Sampling and questionnaire design From the literature review, the issues identified were divided into five areas, namely the leasehold system, zoning control, building control, environmental control and overall legal system for urban development. For a pilot test, preliminary interviews with two experts in the study field were then carried out to brainstorm for other issues that have not been identified by the research team and to obtain feedback on the constraints in the existing development control legal framework for urban development. 100 copies of the refined questionnaire were sent to architects, planners and developers who were active in urban development in Hong Kong. 31 questionnaires were returned representing a 31% respond rate. The target respondents were randomly selected from the list of the Hong Kong Institute of Architects’ (HKIA) Architects Practices and the Hong Kong Institute of Planners’ (HKIP) Website. According to the additional information obtained from the questionnaire, the structured interview questions were then modified and refined. The following is a summary of the sustainable dense urban development criteria mentioned in the

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Table 2 Sustainable dense urban development criteria and the corresponding issues in the development control legal framework in Hong Kong Sustainable criteria

Corresponding issues identified in the research study

Related interview question no.

Provide adequate housing.

Determine housing demand. Determine development capacity. Issue of downzoning.

4, 11, 12, 13

Provide quality living space.

Enhance quality of living and minimum regulation standard.

8, 9, 12

Provide adequate open spaces within a healthy environment.

Bonus plot ratio provision, prescribed window provision.

8, 11

Develop a centralised, selfcontained urban city where the population is well served by the public transport system.

Constant review of the OZP.

5

Cultural vibrancy should be enhanced by the integration of old and new developments.

Mixed-use zoning, transfer of development potential.

6, 7

More emphasis on threedimensional control on development.

‘‘Three-dimensional’’ planning and massing of overall urban space.

10

Respect the characteristics of a locality.

Enhance urban design scheme; facilitate good use of land.

10, 7, 14

Overlapping and discrepancies of development control.

1, 2

Issues related to administrative matters

research framework section of this paper (Table 2). It also confirms that issues relating to the criteria have been incorporated into the corresponding interview questions.

5. Analysis and findings 5.1. Data analysis 5.1.1. Quantitative data The questionnaire consisted of 15 questions (see Appendix A). Respondents were required to indicate their opinions on each of the statements. According to their opinions, a 5-point Likert

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Table 3 Issues in development control legal framework as identified in the research Issue statements

% of agreement

Mean (out of 5)

Development control system (for both law and administrative measures and administrative attitude) should encourage the development proposal to explore innovation rather that the mere compliance with the law.

93.3

4.23

Prescribed window provision is too restrictive.

90

4.23

The current development control is through an overlapping control mechanism of the Lands Department, Planning Department, and Building Department. A more centralised and well co-ordinated system should be adopted.

80

4.27

Transfer of development potential is feasible in Hong Kong. Allow development rights of conservation sites to be transferred from one plot of land to another.

80

4.2

Immediate neighbourhood should be omitted from building regulation.

76.7

4.0

Constant review of the OZP to adopt market changes and to rectify ridiculous zone boundaries is necessary.

76.7

4.17

Encourage mixed-use zoning in order to integrate living and working activities.

70

3.63

Government-led urban design scheme should be adopted for small districts of urban area. It should aim to facilitate good use of the land and ensure the physical environments are well integrated, particularly on the built forms, three-dimensional massing, building height, open spaces, as well as preservation of historical heritage building sites.

70

3.8

Conflict between lease, Outline Zoning Plan and Building Regulations should be minimised

60

3.5

The rationale of ‘‘downzoning’’ by plot ratio reduction for the residential area as a means of an environmental planning tool is questionable.

53.4

3.4

scale (1=strongly disagree, and 5=strongly agree) was used to indicate their degree of agreement to the statement. For those respondents who had no idea about the statement, the answer of ‘don’t know’=0 would be selected. Such an answer was treated as a missing value. Their opinion scores collected were codified and summarised for statistical analysis. For the fifteen statements included in the questionnaire, the following are the 10 statements that the respondents either strongly agree or agree have a percentage of more than 50% (Table 3). Thus, it indicates that these

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issues are agreed upon by most of the practitioners. Careful consideration on the possible improvements in these areas is worth examining. The relationship between the different issues was re-examined through bivariate correlation testing with the statistical computer software SPSS. It raises the point that it should be necessary to take into account more than one issue while at the same time considering improvement of another particular area. Pearson Correlation coefficients of the identified issues are the basis for analyzing their relationship. The result shows that there is a strong correlation between ‘‘encourage mixed-use development’’ and ‘‘encourage innovation’’. Therefore, one should examine the possible improvement on these two issues correspondingly. In addition, ‘‘encourage innovation’’ is also correlated with ‘‘centralised system’’, ‘‘downzoning as environmental control is doubtful’’, and with ‘‘constant review of the OZP’’. It is suggested that in order to encourage innovation rather than mere compliance with the development control laws on sustainable dense urban development, it is also equally important to have constant review of the OZP. A centralised system on development control would possibly minimise any hindrance on innovative design. Moreover, those respondents who believe that the current development control system hinders innovation also do not agree that ‘‘downzoning’’ is the rationale as an environmental tool. The correlation shows that in order to ‘‘encourage mixed-use development’’, it is also necessary to have a ‘‘constant review of the OZP’’. Most of the respondents who agree that there is ‘‘conflict between lease, OZP, and Building Regulation’’ also believe that ‘‘downzoning as environmental tool is doubtful’’. Furthermore, the result also indicates that ‘‘reconsider prescribed window provision’’ is agreed upon by most of the respondents (90%) and at the same time also believe it would be beneficial for the development controls to have a more centralised and well co-ordinated system. 5.1.2. Qualitative data Those respondents indicating willingness to take part in the research were contacted to participate in an interview to further discuss their views in detail. 18 face-to-face interviews were then carried out. Three of the interviewees are the major developers in Hong Kong, seven are planners and the rest are qualified architects. During the face-to-face interviews, further explanations were gathered through detailed discussion of the issues with the respondents. Several respondents provided their views on other major issues on the development control legal framework on urban development in Hong Kong that have not been identified in the questionnaire. The interviewee’s comments on a particular question in the interviews are categorised into several sub-headings. The rich qualitative data collected through the interviews are summarised systematically for analysis. Only the two most frequently stated opinions would be taken into account for discussion in this research. The organised qualitative comments from the interviewees have been used to provide a comprehensive understanding of the issues set out in the questionnaire and to verify the preliminary results suggested by quantitative data analysis. The process helps substantiating the following findings and observations. 5.1.3. Findings and observations The following are findings and observations derived from the combined results of the questionnaire and structured interview exercises:

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5.1.3.1. Conflicts between land lease, planning and building regulatory. The majority of the respondents from the returned questionnaires and the interviews agree that there are obvious conflicts and discrepancies between lease, OZP and Building Regulations. It may not be beneficial if the lease only focused on the premium charged because there are many other lease conditions that have to be controlled by other non-familiar departments. It is generally agreed that the Buildings Department, Planning Department and Lands Department are somehow overlapping in their roles in the development control mechanism. It should be more centralised to co-ordinate development control. At present, the Lands Department’s slow response time may be improved by adopting a more centralised system. 5.1.3.2. Constant review of outline zoning plans. It is agreed that a constant review of the OZP should be encouraged. It may also be appropriate to set up an independent committee to rectify any ridiculous zone boundaries. It is believed that most of these ridiculous zone boundaries require technical justification. It is very much dependent on the availability of resources, adequate information and the urgency of the situation. There are probably insufficient resources to have a constant review of all the OZP, hence only those that are currently under development should be reviewed. Concerning mixed-use zoning, several interviewees realised that the current system is inflexible. It was suggested that application should be approved if the applicant can prove that the proposed use is compatible with the surrounding uses. It is generally agreed that mixed-use zoning should be encouraged, some interviewees believe that it is closely related to the social and cultural pattern of the people. 5.1.3.3. Transfer of development potential. The transfer of development potential is feasible in Hong Kong, especially for the transfer of the plot ratio of a rich heritage building to an adjoining site. Otherwise, it may be difficult to implement heritage preservation since development potential is site specific. The problem would arise if there were no ceiling control for plot ratio on the transferred site. In addition, transport infrastructure and utility facilities would be other major concerns in implementing development potential transfer. 5.1.3.4. Planning control from building regulations. The prescribed window provision under the Building (Planning) Regulations is widely considered too restrictive. It is very prescriptive and too rigid; it should be more performance regulated. For instance, an applicant should be able to provide a study on daylight factors to justify for a building plan approval. Interviewees noted that the ‘‘bonus plot ratio’’ conditions that are currently monitored under the Building Regulations are quite clear. Although an independent panel comprising practitioners and representatives from other government departments may consider balanced views, it is feared that certain large developers may be in a more advantageous position to influence. It would also be too complicated and could create a lengthy processing time. 5.1.3.5. Urban design with ‘‘three-dimensional’’ considerations. The rationale for ‘‘downzoning by plot ratio reduction as an environmental planning tool’ is generally regarded as doubtful (53.4% of respondents). This is because plot ratio reduction cannot directly reduce traffic generated for a residential area. It was raised that the control on number of car parking is more important and effective as an environmental planning tool than the reduction of plot ratio.

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It is broadly agreed that the ‘‘immediate neighbourhood’’ provision is not appropriate for it to be included in the Building (Planning) Regulations. Emphasis on ‘‘three-dimensional’’ planning and massing of overall urban space is strongly agreed upon. The interviewees have suggested that urban design scheme should be encouraged with both private and public sector participation. The scheme should not be too rigid, and guidelines should be provided instead of suffocating design freedom.

6. Recommendations 6.1. Suggested innovations Based on the above findings and observations, specific suggestions for innovation in legal provisions, administrative measures and design considerations in the development control legal framework for sustainable urban development are summarised as follows. 6.1.1. Planning control For planning matters, it is recommended that implementation of mixed-use zoning should be more flexible. The following planning applications should be considered favourably: * *

proposals with change of use that could bring public interest to the community, and proposal with new use that is compatible with the surrounding areas, even though the proposed use is not allowed under column 1 or 2 of the Planning Notes.

Further flexibility desired of includes allowing transfer of development potential from a development-restricted site to an adjoining site, through dialogue between government departments and property owners. For environmental control, unlike the EIA Ordinance, most of the pollution control laws are too rigid. Pollution controls should allow flexible approaches with possible alternatives explained by guidelines and practice notes. Environmental control laws should pay more attention to the immediate environment of a site. The laws should encourage provision of public open space as a vital feature of urban development and require careful consideration of any adverse impact such as reflectance/glare from the new development on surrounding buildings. 6.1.2. Administrative measures For the administrative procedures in implementing the laws, it is suggested that a centralised system should be established by the government to co-ordinate development control and to minimise discrepancies among departments. In order to shorten the time required for a development, it is recommended that statutory period for approval should be set for all approvals, including lands matters. It takes a very long administrative and legislative procedure to produce or amend the OZP, thus periodical review of the OZP should be encouraged to ease undue aggravation on affected citizens. Generally, the administrative procedures for planning control should be more proactive that allows public participation in a development proposal.

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6.1.3. Design aspects On design aspects, the government should initiate urban design studies to be carried out for specific areas, which should respect the characteristic of a locality. For each small district, an urban design group led by the government may develop an overall urban scheme with guiding design framework, which sets parameters such as three-dimensional massing requirements and possible options for carving up the site for several viable development projects belonging to a main theme. 6.1.4. Building control Building control laws should be less prescriptive but more performance based. Prescriptive site coverage and prescribed window controls have led to monotonous and monolithic designs of commercial and residential buildings. Building control should give more emphasis on ‘‘threedimensional control’’ to include consideration of massing, colour scheme, material, and etc. To assess the maximum plot ratio allowable for a specific area, transport study should be the key criteria. 6.1.5. Lands matters. For lands matters, the key improvements needed are mainly concerning administrative procedures, which are lacking of certainty. The administrative procedures should be made more certain with statutory provisions for clear approval time period and lease modification rules. There is a missing link between land-use policy and its implementation in different government departments. It is recommended that the problem will be resolved by adopting a centralised system by the government to co-ordinate development control. 6.2. Further studies This research has identified many issues with recommendations for improvement. It has also touched on several areas that have potential for further research. These further studies will further advance the improvements of the legal framework for sustainable dense urban development in Hong Kong and other countries. The key areas include: *

*

*

In consultation with stakeholders, carry out systematic transaction cost analysis on the administrative procedures for controlling development. Evaluate the policy and its implementation of mixed-use zoning for sustainable urban development in Hong Kong, with reference to practices in other countries such as Australia, Singapore and the United Kingdom. Develop a model for setting up a central coordinating body to encourage innovation in development proposals and to promote three-dimensional urban design solutions

7. Conclusion The Hong Kong property development industry and the local government strive to keep pace with the global trend of sustainable development. However, the practical means to achieve dense urban sustainable development have not been fully integrated. Whether Hong Kong’s existing regulatory system is consistent with the sustainability strategies of Agenda 21, the path to

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sustainable development and legal implementation needs considerable review. The obvious hindrance on sustainable urban development in Hong Kong is that the existing development control legal framework prevents innovation. One of the possible reasons is that the bureaucracy prefers to follow the set rules to approve a development. Any development that is not wholly following regulations would be in trouble and result in long approval times. Thus, some developers would avoid this long processing time to save money by complying with all the rigid regulations. As a result, the environmentally insensitive cruciform housing blocks and office slabs with the optimised floor plan are found in every corner of the territory. Such a so-called modernist scene is spreading over to major cities in China. This paper reviews the development control legal framework in relating to its conducive purpose in promoting a sustainable dense urban environment in Hong Kong. The results show that innovations in many areas are needed and this paper has recommended some of the innovations and suggested potential topics for further study.

Acknowledgements The authors would like to thank the editor and referees for their valuable comments and suggestions, which have helped in improving the quality of this paper. This research is supported by The Hong Kong Polytechnic University Research Grant. Appendix A. Interview questions (*We would like to discuss with the respondents their opinions on the following statements. Apart from the opinions collected, an overall assessment for each of the following statements were given a rating with regard to the respondent’s degree of agreement that was to be determined. The rating is based on a 5-point Likert scale: ‘don’t know’—0, ‘strongly disagree’—1, ‘disagree’—2, ‘neutral’—3, ‘agree’—4, ‘strongly agree’—5.) Leasehold system Scale 1. The conflicts between lease conditions, the Outline Zoning Plan and Building Regulations & can be minimised if the lease only focuses on the premium charged on permitted gross floor area set by the Buildings Ordinance and the Town Planning Ordinance. (I.e. NO separate leases conditions to restrict development potential) Examples of conflicts are discrepancy in lease and Building Regulations for height restriction, countable area for GFA site coverage such as the transformer room, plant room. 2. The current development control is through an overlapping control mechanism of the & Lands Department, Planning Department, and Building Department. A more centralised and well co-ordinated system should be adopted. 3. The rate of premium charged for a lease modification should be calculated with & standardised formulae in order to reduce negotiation time and cost.

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4. Housing demand should be considered when the government determines the land & premium for private sector housing. Zoning control 5. Incorporate a constant review (fixed at every 3–4 year period) of the Outline Zoning Plan & to adopt market changes and to rectify ridiculous zone boundaries as necessary. 6. Mixed-use zoning should be encouraged in order to integrate living and working & activities. 7. ‘‘Transfer of development potential’’ is feasible in Hong Kong instead of the existing & incentive zoning system. It should be adopted for preservation of historical heritage sites. (Transfer of development potential—to allow development rights of conservation sites to be transferred from one plot of land to another. Incentive zoning—granting Bonus Plot Ratio in the ratio of 5 m2 for every sq. metre that the developer dedicates for public passage at ground level.) Building control 8. ‘‘Prescribed window’’ calculation should be rewritten with proper consideration of the & space around the building rather than be purely determined by the window facing a street of not less than 4.5 m. (E.g. any open space adjacent to a site is not considered as providing enough room for lighting and ventilation, but a 4.5 m wide street is considered enough.) 9. Minimum regulation standard should be raised to enhance a better quality of living. & Developers always aim for maximum profit, thus only meet the minimum requirement in the Building Regulations. 10. ‘‘Immediate neighbourhood’’ provision as planning/urban design matters should be & omitted in the Building Regulation. It should be implemented in the planning application with emphasis on ‘‘three-dimensional’’ planning and massing of overall urban space. Overall planning should also take care of the local character of each area. 11. The Bonus plot ratio provision in Building (Planning) Regulation 22 should be & reconsidered. It may be more appropriate to set up an independent panel (jointly among BD, Lands and Planning Departments) to assess cases for the bonus plot ratio as tools to enhance better use of urban design. 12. Use ‘‘dispersal rate’’ as the criteria to determine development capacity for a particular & area rather than just depending on blanket plot ratio control to restrict the density of living. Consequently, living space per person may be increased. Environmental control 13. The rationale of ‘‘downzoning’’ by plot ratio reduction for a residential area as a means & of an environmental planning tool is questionable. It is because plot ratio control of a residential area is just a proxy for traffic generation as it does not directly control the actual

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number of cars in the approved floor space and the associated pollution or traffic congestion. Subsequently, it shows that the concept of ‘excessive development intensity’ which relates to road capacity constraint is doubtful. Overall legal system for urban development 14. Government-led overall urban design scheme should be adopted for small districts of & urban area. It should aim to facilitate good use of land and ensure that physical environments are well integrated, particularly on the built forms, three-dimensional massing, building height, open spaces, as well as preservation of historical heritage building sites. 15. Development control system (for both law and administrative measures and & administrative attitude) should encourage a development proposal to explore innovation rather than through the mere compliance with the law. (Innovation or generous provisions that are more than what the law allows is at times suffocated because of the administration fearing the future problem in the abuse of its use or difficulties in enforcement. E.g. In fear of future unauthorised additions to open space and rooftop frames, balconies and stilt structures, proposals are refused).

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