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Tuesday, September 27, 2016, 00:56

Town planner must respect property rights: Top court

By Li Yinze

HONG KONG — The SAR’s top court ruled on Monday that the city’s town planner must consider private property rights before imposing any land use restrictions.

This may result in a significant change in the city's urban planning mechanism as the government has to give "unchallengeable reasons" before imposing limits to local buildings, experts say.

The ruling came after Hysan Development, which owns properties at various sites in Causeway Bay and Wan Chai, challenged the Town Planning Board (TPB) against its planning restrictions on podium height limits and construction limits in designated areas.

Five judges from the Court of Final Appeal has unanimously concluded that Articles 6 and 105 in the Basic Law, which protects civic property rights, were infringed in the context of the board’s planning restrictions.

Article 6 has stated that the government "shall protect the right of private ownership of property in accordance with law".

Article 105 said the government should protect the rights of individuals to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.

In future, besides the current proportionality analysis, the government has to take a further step. It must strike a balance between the public interests and the rights of individuals when making decisions, in particular whether the pursuit of societal interest leads to a harsh burden on the individual, the judges ruled.

The restrictions were released in 2011 in the TPB’s Draft Causeway Bay Outline Zoning Plan. It included building height limits, non-building areas and setback limits to ensure “ventilation and adequate width” for pedestrian walkways, according to official documents.

Hysan thought such a move would lower land prices in the area where it owns a number of properties.

Kacee Ting Wong, a Hong Kong barrister-at-law, told China Daily that the case may force the government to loosen restrictions in some areas in future.

The final judgment may have a far reaching impact on the future cases in Hong Kong, he asserted, and decisions that the TPB make over similar incidents should fully include the protection of both articles of the Basic Law. Unless reasons such as public safety and other significant concerns are given, private property rights must be guaranteed, Ting said.

For instance, projects near shores will still have to meet certain limits as the ground in these areas might not be suitable for skyscrapers, he said, adding buildings near the airport must also consider aviation safety.

In a statement, the TPB said it would study the judgment and seek legal advice on its implications on its practices and procedures.

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