Public rights over private property

With the intensification of our land use, there is a benefit in having public rights established over private property for street widening, passage, recreation, or for community facilities such as stations, parking, transport interchanges, etc. However, we should discuss how far we should go.

 

1.     There is not enough street widening and more needs to be done. The architects and planners have for many decades called for setbacks when buildings are redeveloped to provide circulation space for the increase in people and traffic.

 

2.     There are world class examples of public passages – especially in ‘old’ Central where the elevated network provides a high quality additional pedestrian network – and there are many calls to extend this network further. However, there are an increasing number of bad examples in the new areas of West Kowloon, Tai Kok Tsui, Ma On Shan, Hung Hom, Wanchai North and the future Central Harbourfront, where the public is made entirely dependent on elevated walkways and podium decks in private property and the public street is turned into barren dead zones. Elevated networks should be seen as additional capacity or as strategic links but never to the detriment of the outdoor, public, street level environment.

 

3.     The lack of public open space in urban areas is made worse by counting open space in private developments to meet the requirement of 2 sq.m. per person. In North Point today, 50,600sq.m. - half of the existing 106,063sq.m. local open space - is now within private property and are either inaccessible or badly maintained. Many private open spaces do NOT meet the Hong Kong Planning Standards and Guidelines specifically those on elevated levels and incorporated in the development. The guidelines state in Chapter 4 that the use of open space is for active and passive recreation, for the enjoyment of the general public, that open space should be visible from public roads, accessible for all segments of the population and not isolated. The entrance should be easily identifiable. It also says that the space should not be the remainder of other land uses.

 

4.     The cumulative effect of bonus, unaccountable and free GFA 'paid' as incentives in return for public rights and facilities is resulting in massive bulk and height of buildings well above and beyond what was intended under planning.

5.     The public gains are limited as public rights over private property are often limited to pass and re-pass subject to opening hours and with few rights for recreation, sitting, congregating, handing out leaflets, playing music, etc. The location of the space and passage in developments is such that access is limited, no seating is available or possible, and there are genuine security concerns.

6.     The system of establishing public rights over private property has failed. Decisions on 'how suitable is the space', 'what public rights can be agreed’, 'what incentives are given in return', and 'how is the space classified' are made behind closed doors. The losers are the public users who ‘paid’ dearly with development rights or other forms of compensation. Often it is the developer who enjoys the benefit from the additional saleable area or the betterment of its development. When properties are sold the ongoing maintenance cost and public nuisance is left with the unhappy new owners.

Examples of public rights over private property

7.     How can the Times Square Piazza have been classified as 'public open space' when it really is circulation space and rights are limited to ensure safe passage? The piazza should have been required under building regulations and not been paid for with additional floor area.

 

8.     The corner of Central Tower (Marks and Spencer) is dedicated for street widening. By failing to resume this land, the government has failed to ensure that public rights on that ‘private’ pavement are identical to those on the public pavement immediately next to it. These rights are set out in the law with respect to the public highway (public road or street): a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and re-pass: within these qualifications there is a public right of peaceful assembly on the highway. (DPP v. Jones [1999] 2 AC at 257.)

 

9.     The podium of Central Station (IFC2) and the Kowloon Station (above Elements) are unsuitable as public open space given the security concerns of the owners, the access through the shopping malls, and cost of the conveniences available. Rooftops and podiums are by nature private public spaces. Now that these are declared as public open spaces, commercial al fresco dining under the Outdoor Seating Accommodation licensing system is not applicable. None of these problems would have occurred had these been declared private open spaces, with access for the public by leave and license of the owner. Moreover, no additional development rights or a reduction in land premiums would have been required.

 

10.  The ‘Portofino’ residential low rise complex is in the middle of a nature conservation area in Clearwater Bay. A completely unnecessary public open space is included on private property here and one can only guess how the developer benefited. Neither the new owners nor the public has gained any benefits.

 

11.  The public open space on the podium of Metro Harbour View has no benefit for the surrounding community and the location creates security and nuisance concerns for the residents. The new strata owners should be given an option to convert the land lease and buy back the obligation to provide public access at a nominal sum.

 

12.  Both Portofino and Metro Harbour View demonstrate the need for a better mechanism and more transparency of any commitments to the public when flats in these properties are sold.

 

13.  Island Place and Tanner Garden in North Point are examples of developments with public spaces at both street level and podium level. The street level spaces are well designed and easily accessible. Although it is unclear what the public rights are, the development or premium incentives are worth it and these are properly classified as public open space and beat any LCSD park hands down. However, the podium gardens should have been classified as private open spaces and, as with club houses, it is unclear the developer should have been awarded incentives for these.

 

14.  The residual space around the drop off and road to the car park of Belcher’s are counted as 4,000 sq. m. of public open space, in complete disregard of the Hong Kong Planning Standards and Guidelines. The set back and road should have been required under building regulations for a development of this size and nature, and no incentive should have to be provided to achieve this.

The phenomenon of private rights over public property
  

15.  An example of private rights over public land is the Public Open Space on Government land immediately to the west of the Bank of China on Garden Road. This is designed, constructed, managed and maintained by the Bank of China. There are no seats, there is no access. For a small cost savings on the side of the Government, the public has lost all rights over public land.

The phenomenon of ‘no’ rights over public property 
 

16.  The Director of Administration has advised that the public open space on Tamar will be open to the public ‘subject to security and operational requirements’. If so, then these should be classified as private gardens with public access by leave and license of the Government.

Conclusions regarding public rights over private property
 

a.      Priority should be given to have public open space on Government land at street level;

 

b.     Podium and elevated levels are unsuitable for public open space, although negotiation of public rights of access may be desirable for certain places (viewing platforms);

 

c.      More street widening and set-backs are required, with the Government resuming land for street widening, or otherwise guaranteeing the same rights as for the street;

 

d.     Extending the network of elevated passages is required as ADDITIONAL capacity and should never be done to the detriment of an active street level environment designed for the pleasure and use of pedestrians. Any and all planning for new areas and developments need to reviewed urgently to reverse this trend;

 

e.      Agreements regarding public rights over private property can no longer be a private matter between Government and land owner/developer. An open and transparent system is required, including obtaining District Council feed-back and seeking Town Planning Board approval;

 

f.       A review is required of all existing agreements taking into account the local circumstances, and where necessary the public rights and responsibility for maintenance should be re-negotiated and space reclassified.

 

g.      The Government must lead by example for its own developments.

 

The text above is based on the presentation by ‘Designing Hong Kong’ to the Legislative Council on 31 May 2008. For more presentations, go to http://www.legco.gov.hk/yr07-08/english/panels/plw/papers/plw_g.htm