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毫無理據、濫用程序 反對合和中心二期修訂申請

2015/8/24 — 12:25

資料圖片:合和中心二期地盤(Wing1990hk / Wikipedia)

資料圖片:合和中心二期地盤(Wing1990hk / Wikipedia)

(編按:本文為作者於去年八月寫給城規會的信函,內容為反對合和實業於去年關於合和中心二期發展計劃的修訂申請。合和中心二期項目早在 1994 年已獲城規會批准建設一座 93 層高 Y 型酒店。2004 年,合和申請把發展方案修訂為建設一座 93 層高屏風型酒店加會議中心,但當地居民強烈反對,認為會造成通風不佳等問題。2009 年,在政府、合和及地區居民商討下,城規會終通過把發展方案訂為 55 層 Y 型酒店,並不設會議中心。然而在去年,合和再度向城規會提出修訂方案,又嘗試把大樓改為屏風型設計。建議再三引起地區人士不滿。王式英在此信中,直指該修訂為「毫無理據、濫用程序」。合和最終在去年底宣布重新採用之前的 Y 型設計,但會議廳的修訂則繼續申請。

一年以來,王式英多次跟進事態發展,並去信城規會。本文為他致城規會的第一封信,原文題為「WILLIAM WAUNG COMMENTS ON 2014 HOPEWELL II APPLICATION」,現題為編輯所擬。其他跟進信件將於稍後刊登。)

 

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A. BRIEF HISTORY

1. The following brief history in relation to Hopewell II is important for considering the present 2004 Application by Hopewell:-

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1994: TPB approved Hopewell II 93 Storey Trident Design Hotel (1994 Approval)

2004: Hopewell applied to TPB for a 93 Storey Wall Design Hotel + Convention and (2004 Application).  This 2004 Application was rejected by TPB and after rejected also on Review.  Hopewell appealed to the Appeal Board. The Hopewell Appeal was withdrawn by Hopewell as part of the 2009 Compromise in the form of the 2009 Approval.

2009: TPB approved Hopewell 55 Storey Trident Design Hotel (2009 Approval)

2014: Hopewell applied to TPB for a 55 Storey Wall Design Hotel + Convention (2014 Application)

 

B. MAIN POINTS OF PRINCIPLE

2. The Town Planning Ordinance (“Ordinance”) is “to promote the health, safety, convenience and general welfare of the community” and full weight must be given to these interests of the community (“Community Interests”) and not to the private commercial interest of the developer.

3. When there is a conflict between the Community Interests and developer’s commercial interest, the Community Interests should prevail over the developer’s commercial interest.

4. When there is a conflicting gain of Community Interests and loss of Community Interests, over-riding Community Interests gain must be shown in order to prevail over Community Interests loss.

5. The substance and reality of developer’s application and proposed project should be the governing focus and not the artificial individual presented parts of the project.

6. When the development project straddles and has immediate connection with two neighboring OZPs (such as here with Wanchai OZP and Mid-Levels East OZP), consideration must be given to both OZPs and the two communities affected.  The Community Interests loss to Mid-Levels East community (hereinafter referred to as “Kennedy Road Community”) must be given full weight.

7. When the developer has two neighboring developments applications both before the TPB at the same time (such as here with A/H5/400 and 401) both applications should be considered together and not separately, so that the reality and substance of the long-term future of both projects and their combined impact on the Community Interests can be considered.  This is even more so when the applicant developer also owns the third neighboring building (e.g. Hopewell Centre which is likely to be connected to the proposed Hopewell II and A/H5/400).

8. As TPB applications generally involves substantial incurring of costs, man-power, time, resources, expectation and emotion by Government, government departments, communities, public, media and others, successive application by the same developer should not be entertained or only entertained in the most exceptional change of circumstances (not of the developer’s making).   The subsequent application by the same developer should be rejected out of hand, unless the developer can demonstrate clearly an exceptional change of circumstances (not of the developer’s making).  The Government, the government departments, the Community and the public should be saved from the abuse of process of the subsequent application.

9. In circumstances, where a previous application by the developer with main features substantially also proposed in subsequent application (such as the 2004 Application seeking Wall Design + Convention and the 2014 Application seeking the same), no subsequent application should be entertained where the previous application was rejected by TPB, rejected on review and the lodged appeal was abandoned.  The immediate dismissal of such subsequent application is on the ground of abandonment, res judicata and vexatious application.   The Government, the government departments, the Community, the public and the TPB should be saved from the vexatious and abuse of process of the subsequent application.  

10. In circumstances, where a controversial development application had been agreed as a result of a compromise by the developer, the Government (as protector of the public interest on town planning and head landlord) and the Community (as happened in the 2009 Approval), and everyone had acted on the 2009 Approval including the Government Land Re-grant and works started by the developer Hopewell on the compromised basis), no re-opening of the project or amended application should be entertained by the TPB.   The Government, the government departments, the Community, the public and the TPB should be saved from the vexatious and abuse of process of subsequent application.  

11. In the case of a subsequent application to amend and change the project, unless it can be shown clearly that the subsequent application is a minor modification in reality and substance, the subsequent application should not be entertained by the TPB as an amendment.  A new application for the whole project (if not vexatious and abuse of process) should be made. The burden of demonstrating clearly that the subsequent application is a minor modification, in reality and substance, is on the developer applicant. The Government, the government departments, the Community, the public and the TPB should be saved from the abuse of process of such subsequent application.

12. The statutory Town Planning scheme does not provide the public and the Community Interests to be fully represented in the planning application process under Section 16 (participation limited to comments).  The Community and the public rely on the Government and its specialist departments to be the responsible goal and gate keeper vis-à-vis the developer applicant.  The Government therefore must ensure that every department of the Government will fulfil their public and fiduciary duty to ensure that the Community Interests are fully protected.  

13. The whole town planning process in HK is a class-room example of inequality of arms, with the developer having the huge resources, with professionals working for long periods to prepare and advance the development project but on the other hand, with ordinary persons in the Community, generally in isolation, without the necessary resources or professional assistance to be able to properly scrutinize the development application, within the short time scale provided to respond.  In reality the developers prevail practically every time on the uneven playing field of town planning in Hong Kong.  In the absence of any substantial change in the statutory scheme of town planning in Hong Kong, it is incumbent on the Town Planning Board (in loco parentis) to protect the Community Interests.  This is particularly important having regard to the statutory scheme where the developer applicant has the exclusive right of review and appeal to the Appeal Board under Section 17 and Section 17B of the Ordinance.  No one else does.  Both for Review and Appeal, the public and the Community has apparently no locus standi.  The Ordinance which purports to advance and protect the Community Interests, in fact gives to the developers the weapon and the means to destroy the protection of Community Interests.  The TPB and the relevant Government departments have together the onerous public and professional duty to ensure that the Community Interests of the public are properly protected.   This is specially pertinent as the Government departments are reluctant and have refused to render any assistance to the public and members of the protected Community in relation to applications made to the TPB. 

14. A full and complete picture of the Community Interests potential loss and potential gain under the development application needs to be given by the Applicant developer to enable all concerned to effect proper analysis and give full consideration.  It is incumbent upon the Applicant to present a full and complete scheme, down to the details rather than the totally unacceptable practice of being indecently vague again and again and rely on the frequent promises to give fuller details later.   Any application without the fullest details (to enable proper analysis of the future Community Interests potential loss and potential gain) should be regarded as inadequate and therefore a failed application.  The burden is throughout on the Applicant to show with full details on:-

     (a) every aspect of the proposed development;
     (b) the presence and/or the full extent of any Community Interests gain;
     (c) the absence and/or the full extent of any Community Interests loss.

No compelling case can be made by the Applicant unless full details are given. 

15. In considering the potential Community Interests gain and the potential Community Interests loss, having regard to the inequality of arms and the in loco parentis position, it is incumbent on the TPB to treat any non-agreed assumption alleged by the applicant developer on the basis of the worst scenario in favour of the Community and not on the most optimistic scenario advanced by the applicant developer and their professional advisers.   Inadequacy of the details presented and vagueness would compel the reaching of a conclusion that the Applicant is unable to provide a truly compelling case of the proposed development.

16. On any crucial particular aspect of a proposed development, a failure by the applicant to show a compelling case of substantial Community Interests gain and/or no substantial Community Interests loss should generally result in the application failing at an early stage.  The Government, the government departments, the Community and the public should be spared at an early stage of being vexed with an application incapable of providing a compelling case of development.

 

C. FATAL ASPECTS OF THE 2014 APPLICATION

17. As a necessary application of the principles stated in Section A earlier, having regard to the history of this Hopewell II town planning applications, the 2014  Application must be immediately dismissed as being vexatious, abuse of process, res judicata, abandonment and for the good reasons stated in relevant paragraphs in Section A.  The case for immediate dismissal of the 2014 Application is compelling.

18. If it is necessary to go into the merits of the 2014 Application, it is submitted that the Applicant must succeed convincingly on four key features of the 2014 Application, in order for the TPB to give serious consideration to the 2014 Application:-

     (1) Convention Theatre;
     (2)  Wing Design;
     (3)  Vehicular and pedestrian traffic on Kennedy Road;
     (4)  Roof Garden.

19. If it is accepted that at least three of these aspects (Convention Theatre, Wing Design and Roof Garden) are important and new, then it is incapable of serious debate that the 2014 Application is not a minor modification.  It is an insult to our intelligence for professionals to label them minor.  Wing Design and Convention in fact are the very key factors of the 2004 Application which failed at TBP, on Review and was abandoned on Appeal.

20. On the aforesaid compelling basis that the 2014 Application is not a minor modification of the 2009 TPB Approval, this 2014 Application should be thrown out ab initio.   Much time and public money will be saved.

 

Convention Theatre

21. The 2009 TPB Approval was the result of a Compromise arrived at by Hopewell giving up on:-

     (a) The 93 Floors;
     (b) The Wing design;
     (c) The Convention.

Hopewell secured the Government support and gained the non-opposition of the Kennedy Road Community by agreeing to the above package deal.  The 2009

Approval is a Hopewell compromise undertaking which is not capable of being now reneged by Hopewell.   Having taken the full benefit of the 2009 TPB Approval and gained the Land Re-Grant as well as the crucial steps of chopping down 400 plus mature trees, it is not open to Hopewell to reopen and now apply to TPB for what had been abandoned.   The 400 plus mature trees cut down by Hopewell cannot be given back to the Community.

22. The Convention Theatre is a key component of the 2014 Application if not its justification.  And as such, it is not a minor modification.

23. If it is necessary to go into the particular merits of the Convention point, reliance is placed on the reasons of TPB against Hopewell in the failed 2004 Application for Wing Design Convention Hotel.

24. The argument presented by Hopewell that the proposed Convention Theatre is hotel related is not however supported by sufficient evidence or details.  The size of the proposed Convention Theatre is at the minimum, a seating capacity of 1,500 which is very very large by comparison with any other hotel in Hong Kong with convention facility.  Hopewell’s assumption that 80% of the users of the Convention Theatre will be hotel guests is based on Macau gambling hotel model which is wholly inapplicable to Hong Kong.  In the absence of reliable and solid study and the discovery of the business models studies undertaken by Hopewell on the viability of the Convention Theatre hotel, it is impossible to say who would be the users of the Convention facilities and who would be the users of the Theatre facilities but one thing is certain just by sheer common sense, there will be an addition of a huge number of users of Kennedy Road (as the only vehicular access is on Kennedy Road) and that therefore it will be a radical transformation of Kennedy Road from a basically residential Community to a commercial, tourist, Convention, Theatre, traffic congested community.  That usage is totally contrary to the letter and the spirit of Mid-Levels East OZP Plan.    It is submitted that Convention Theatre must be construed in that sense of not ancillary to the hotel usage but an independent separate usage with a life of its own of large Convention and large Theatre, so alien to Kennedy Road Community.  The OZP Planning Intention in the Notes to the Mid-Levels East OZP on Comprehensive Development Area says:-

“This zone is intended for comprehensive redevelopment in the area for residential with supporting commercial uses, open space and other related facilities.”

Neither the large hotel nor the huge Convention Theatre can be said to be

supporting residential usage.

                     

Wing Design

25. Wing Design was abandoned under the 2009 TPB Approval and is incapable of being resurrected now in 2014.   If this is accepted, then the 2014 Application must fail.

26. Wing Design is not a minor modification of the 2009 Approval and as such this 2014 Application must fail.

27. If it is necessary to go into the particular merits of the Wing Design point, reliance is placed on the reasons of TPB against Hopewell in the 2004 Application for Wing Design.

28. The Applicant promoted the Trident Design as being both positive and great gain for the Community Interests resulting in the 1994 Approval and in the 2009 Approval.  Now for commercial reasons wishing to add the Convention Theatre, Hopewell is promoting the Wing Design as a better design which design it had abandoned by the 2009 Approval and which design was rejected by the TPB and on Review.   Credibility of Hopewell is such a debased commodity that neither the Community, the Government, the Government departments nor the TPB can place much trust in representations made by Hopewell.  Every Hopewell representation must be closely scrutinized by all concerned, in particular by all government departments, before it can be properly accepted.

29. As to the details of the demerits of the Wing Design, others in the Kennedy Road Community will give comments.  I will adopt such adverse comments.

 

Vehicular and Pedestrian Traffic on Kennedy Road

30. The use of Kennedy Road for Hopewell II vehicular access is the key to the success as well to the failure of the 2014 Application. Without Kennedy Road vehicular access, there can be no Hopewell II.  This is to be contrasted with Hopewell Centre where Kennedy Road vehicular access is in addition to the QRE access.

31. There are three aspects under this heading which require to be considered.

First is the detailed design and construction of the elaborate roadwork on Kennedy Road for Hopewell II and the impact of such construction on the traffic conditions on Kennedy Road.

Second is the impact of vehicular usage of Hopewell II Hotel + Convention Theatre on Kennedy Road traffic.

Third is the pedestrian traffic walkway from St. Francis School to Hopewell Centre and its impact on Kennedy Road Community.

Proper consideration of the Second point depends on the knowledge of the complete design and construction of the roadwork under the First Point.

32. The papers (including the drawings and plans) in the 2014 Application only disclose the most cursory design for the necessary elaborate Kennedy Road roadwork. Not only the fullest details of the proposed road works for Kennedy Rod vehicular access and egress need to be given now but must be given both in the form of plans, models and video demonstration and cover both of three Points referred to in the previous paragraph and with assumptions and basis of the assumptions all clearly stated.

33. During the construction period, the first point referred to earlier needs to address not only the safety of the construction but also its adverse impact on the Community Interests. (see the revealing exchange on Kennedy Road vehicular and pedestrian traffic in Appendix 3 under Section J. Public Comments Traffic Pedestrian Issues, where the vagueness of the Applicant on this whole crucial issue can be plainly seen).

34. The second point referred to earlier need to address in full and in great detail the adverse Community Interests loss arising from the much heavier projected traffic conditions on Kennedy Road.  To enable the necessary Government Departments to discharge its professional and public duty to the public, complete details and information on the projected traffic conditions ranging from the best assumptions and the worst assumption must be given by the Applicant.  An example of such worst assumption will be the very very bad traffic condition at 6.30 pm on a working Friday afternoon.  A failure to do what is required must lead to the conclusion that the Applicant is unable to present a compelling case on Kennedy Road traffic implications arising from the 2014 Application project.   

35. The third point referred relates to the preservation of the pedestrian walkway from St. Francis School to Hopewell Centre at all times, namely before construction, during construction and after construction and the extent it has adverse impact on the Community Interests.  This point is of particular importance to my wife and I because we visit our daughter and her baby daughter every day and several times a day.  The walk is between Wing Fook Court, 68 Kennedy Road to Ewan Court, 54 Kennedy Road.  The pedestrian walkway must be safe, healthy and convenient both for the elderly (I am over 70) and the very young (baby is 1 month) in all circumstances including pedestrians with shopping, pram, wheelchair, handicapped, in small groups and in all weather conditions.  Ultimately it is the well-being of the pedestrians using the pedestrian walkway which Hopewell must demonstrate clearly and convincingly are being protected under the 2014 Application.

36. I will emphasis again that there can be no question of deferment of full details of projected vehicular roadwork, projected vehicular and pedestrian traffic until later.  Unless the Applicant can satisfy now the very high burden on this vital issue, the Community, the public and the Government and its departments will be unable to properly study, assess and comment and the TPB will be in no position to be completely satisfied that in 4 years time (and many years thereafter), the proposed traffic conditions on Kennedy Road can support this 2014 Application with a huge Convention Theatre and with unknown number of coaches, trucks and cars using Kennedy Road for the vehicular access to and from Hopewell 2. 

37. The Applicant says that the proposed Hopewell II Hotel + Convention Theatre will have no adverse impact on the Kennedy Road traffic.  Hopewell Centre has car park for 250 cars.  Proposed Hopewell II will have car parking for 350 cars and 5 coaches and in addition has large loading bays for cars, taxis, trucks and coaches.   Common sense (without the help of so called Hopewell professionals) will tell us that the traffic conditions on Kennedy Road is bound to be much much worse.

38. It must not be forgotten that for very good reason, Kennedy Road from Bowen Road to QRE is out of limit to large trucks, buses and coaches.   Hopewell Centre on Kennedy Road only allows access by taxis and private cars and never coaches.  This is in keeping with the residential nature of Kennedy Road with tall mature trees and with walkable pedestrian pathway.  If this 2014 Application succeeds, it will permanently change the nature and ambience of Kennedy Road from quiet residential to noisy, chaotic, commercial, touristic, convention, theatre, traffic congested and anything but quiet residential.  The destruction of the green quiet residential nature of Kennedy Road will be the disastrous result of permitting the 2014 Application.

 

Roof Garden

39. The final insult to the Kennedy Road Community is the proposed roof garden on top of the Convention Theatre.  Instead of a natural garden with tall mature trees from earth level up (7th floor level), Hopewell is proposing to build a huge Convention Theatre Block of some 5 floor height (14th to 18th floor level) and put on top of the concrete roof (on 18th Floor), a Roof Garden.   The Roof Garden is of course not a natural real garden but will be filled with ornamental plants and trees.  There will be no tall mature trees with roots going really down deep into earth and the ground as there is no earth/ground under but only concrete.    Instead of the promised natural replanting, Hopewell is offering what many will regard as a synthetic garden.  What is proposed as a Roof Garden is a disastrous Community Interests loss after Hopewell murdered one of the few remaining natural garden filled with really old mature trees.

40. Hopewell must be held to its 2009 TPB Approval compromise and must be made to replant the trees and will not be allowed to build a Convention Theatre.  There must be no release of Hopewell’s obligation of the natural garden.  The 2014 Application therefore must be rejected.

41. The Roof Garden is not a minor modification and therefore the 2014 Application must fail.

 

D. ALLEGED COMMUNITY INTERESTS GAIN

42. Hopewell relies on two alleged gains for the Community: First, improved pedestrian linkage and second, increased saving of trees and improved local roadwork.

43. Others in the Community will no doubt give comments on this and the government departments as well as the TPB will be able to assess the nature and the extent of such alleged Community Interests gain.

44. Speaking only from personal experience, I find the pedestrian linkage from my home in Kennedy Road to Wanchai and the MTR perfectly acceptable if not a major plus for our families living on Kennedy Road, near the Hopewell Centre. The alleged pedestrian linkage gain is more apparent than real or necessary.  As for the so called saving in trees and improved local roadwork, they are minor and pale in degree and significance to the disaster which will be brought to Kennedy Road if the proposed 2014 Application succeeds.   There is therefore no contest between the gains and the losses.  In reality of course the gain is all commercial and financial for Hopewell and their specialist professionals.  

 

E. CONCLUSION

45. I conclude by reminding all of us, that Kennedy Road East is a unique area of old Hong Kong with tall mature trees built for residential usage.  What Hopewell is proposing with this outrageous 2014 Application is a misuse of Kennedy Road for its purely commercial interest.

46. The Hong Kong town planning system provides for the Government and the civil servants to be the goal and gate keepers to achieve the primary purpose of the Town Planning Ordinance “to promote the health, safety, convenience and general welfare of the community”.  We as ordinary civilians of the Kennedy Road Community (whether as 70+ grandfather or as a baby of one month) are not equipped to engage in this unequal contest and we must therefore look to the Government and its specialists Departments and ultimately to the law to protect our Community Interests.

47. Due to the very special circumstances of the history of this case, this is a unique occasion when Hong Kong can speak out, on the line to be drawn against the unrelenting onslaught by the commercial developments for unmeritorious planning applications.  This is a wake-up situation when the TPB must show that the Hong Kong Government, the various Government Departments, the TPB, the Hong Kong people, the Community and the law have the backbone to resist destruction of our core assets and values – our land, our environment, our heritage and our Community Interests.

48. This 2014 Application should be publicly dismissed immediately.

 

William Waung Sik Ying

Dated 25th August 2014

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