ENVIRONMENTAL

MANAGEMENT

AND PRACTICE IN

THE RURAL NEW

TERRITORIES

(An Examination of

Democracy and the

Rule of Law)

David NEWBERY BSc (Hons)

Environmental Sciences

Secretary:

Friends of Hoi Ha

• Friends of Hoi Ha.

• Competing Interests & Pressures in the Rural New Territories.

• Management.

• Convention on Bio-Diversity.

• Planning.

• Small House Policy.

• Enforcement.

• Democracy.

• Solutions.

• Conclusions.

• Questions?

WHERE IS THIS?

FRIENDS OF HOI HA Small group initially set up 10 years ago to improve the

management of Hoi Ha Marine Park.

Has since grown to encompass environmental and planning issues

within Sai Kung Country Park.

Has gone beyond the “gweilos against development” label.

Has built up a large network of advisors from the local community, in Government and experts in various fields (including Prof. Maxwell).

Works closely with other environmental groups, such as Friends of Sai Kung, Civic Exchange, Designing Hong Kong etc.

Lobbies and argues for improved Environmental Planning and Governance in the Rural New Territories.

Currently working to ensure that the Town Planning Board makes sensible decisions with regard to the zoning of Hoi Ha Development Permission Area.

Competing Interests in the

Rural New Territories

Country Parks (for Conservation and Recreation)

Marine Parks (“There is a need to protect and conserve the marine environment for the purposes of Conservation, Education and Recreation) – AFCD website

Village Enclaves ( Villages, some of them unoccupied, surrounded by Country or Marine Parks)

Competing Pressures

Pollution

Tourism

Recreation

Development

Small House Policy

MANAGEMENT No Published Management Plans for Country

and Marine Parks – only maps.

Development-led approach to land management.

“Ring Fencing” of Government Departmental Responsibilities. Example 1 - Sewage

Government looks for loopholes in its own legislation. Example 2 - Street Lights

Government Officials desperate not be seen to have made a mistake.

Convention on Bio-Diversity Signed by Hong Kong in 2012.

Requires:

National Strategies.

Environmentally sound and sustainable development in areas adjacent to protected areas.

Reporting of plans and measures taken for implementation of Convention.

Subject to international audit.

PLANNING

There is

ZERO

effective planning in the rural New

Territories

WHY?

Applications for development under the

Small House Policy are not subject to

normal planning rules.

Developers and indigenous villagers

cheat, exploit loopholes and break the

Law. Example 3 - Pak Sha O

Measures designed to improve planning

are ineffective. Example 4 - HH DPA

CHOICES:

HOI HA

PAK SHA O

OR:

TSENG TAU

SAI KENG

WHAT IS PLANNING?

Proactively designating land suitable for development.

Balancing the needs of the environment and human activities.

Balancing the needs of various stakeholders.

Assessing Infrastructure needs.

Developing holistic solutions.

Making a:

PLAN

SMALL HOUSE POLICY

Outdated.

An Administrative Procedure not a Right.

A “Legitimate Expectation”?

Intended as a Short-Term Measure.

Mired in Corruption and Illegality.

Housing not required by most applicants.

Responsible for Environmental destruction.

Few Applications obey Letter and Intent of

Policy.

Huge amounts of money involved ≈ HK$10

million each.

Responsible for ugly ruination of many NT

villages.

Has become, effectively, a free hand-out

of money to Indigenous Villagers.

Has little to do with providing housing.

Responsible for Social Strife.

Overseen by Heung Yee Kuk. Example 5 - HYK

ENFORCEMENT

The rule of law does not

exist in the rural New

Territories

EXAMPLES

Open selling of “Ding Rights”

Environmental Destruction Example 6 - To Kwa Peng

Intimidation Example 7 - Car Parking Example 8 - Intimidation

Extortion Example 9 - Extortion

Illegal Dumping Example 10 - Dumping

Collusion of Government Example 11 - Tree Cutting

Government Failure to Follow-Up Illegal Activities

Government Indifference

RESULT

Prosecution Rate and Scale of Punishments

are no Deterrent to Illegal Acts.

Many New Territories Indigenous Villagers

consider themselves to be

ABOVE THE LAW

DEMOCRACY

Despite changes in NT Village Demographics

NEW TERRITORIES RURAL POLITICS IS

COMPLETELY DOMINATED BY THE INDIGENOUS

AND THE HEUNG YEE KUK

VILLAGE ELECTIONS

Now 2 Village representatives:

Indigenous Village Representative

Resident Village Representative

WHY HAS DEMOCRATISATION

FAILED?

Eligibility – have to live in village for 3 years whereas 30 days for other HK elections.

Only open to Permanent HKID Card holders.

No checks of credentials – only if individual makes a specific complaint – retribution?

Electoral officials show favouritism to Indigenous and allow Indigenous who do not have a “sole or main home” in the village to vote. Example 12 - Election

END RESULT?

Voices of Non-Indigenous majority are not

heard.

Indigenous completely control NT politics,

and social development.

Small House Policy dominates NT Planning.

SOLUTIONS EFFECTIVE GOVERNANCE

Government departments working together to develop and

implement holistic solutions.

Sensitive areas put under unitary control.

Rule of Law extended to New Territories.

Electoral Ordinance amended to provide better representation.

Environmental crime appropriately punished.

All “Enclaves” made DPAs or incorporated within Country Parks.

Small House Policy Repealed.

Country and Marine Parks given more than the statutory minimum

protection.

Interim Solutions for Small

House Policy

Enforce Spirit and Intent of Policy.

Revert to prohibition of sale within 5 years

of building.

Consider “Land Swaps”.

Consider flats in NT New Towns to meet

genuine housing needs.

CONCLUSIONS Environmental Management is absent from the rural NT.

“One Country, 2 Laws”.

Democracy is absent from the rural NT.

Government is Reactive and should be Pro-active.

Government Departments incapable of working in consort.

Small House Policy must be reformed.

Long Term Plans required for NT villages in sensitive areas.

Environmental Laws must be strengthened and enforced.

Enclaves should be DPAs and developments frozen.

DECISIONS MADE CONCERNING AREAS

SUCH AS HOI HA HAVE HUGE

IMPLICATIONS FOR THE FUTURE OF THE

COUNTRY AND MARINE PARKS AND THE

STATUS OF ENVIRONMENTAL

MANAGEMENT AND PLANNING IN HONG

KONG.

WE MUST GET IT RIGHT!

CRUCIAL FACTORS

PLANNING

ENFORCEMENT

SMALL HOUSE POLICY

Example 1 Hoi Ha Sewage Treatment

• No Sewage disposal system in Hoi Ha village, adjacent to Hoi Ha Marine Park.

• “Grey Water” flows directly into the Wan.

• Sewage “treated’ by septic tanks.

• Inadequately treated sewage enters Hoi Ha Marine Park, which is administered by AFCD.

• AFDC does not oppose new building because the applications are not “in” the Marine Park.

• EPD does not oppose building because waters of Hoi Ha conform to single water quality standard in HK.

• EPD does not inform planners of Hoi Ha Wan’s status as an SSSI, which requires a 100 metre spacing between a septic tank and a SSSI as stipulated by the Water Pollution Control Ordinance.

• Tai Po District Council considers Hoi Ha to be too small to warrant a sewage treatment facility (ignoring visitors).

• Planners (LandsD and TPB) assess every application individually and do not assess cumulative impacts.

Result:

Pollution of Hoi Ha Wan is increasing as buildings proliferate and

environmental damage is inevitable.

Example 2 Street Lights in Sai Kung Country Park

• Street Lights were placed on the single road running through the middle of Sai Kung Country Park.

• This road is in a Restricted Area and less than 10 vehicles per hour use the road during darkness.

• Studies in N America, Europe and Australasia show that street lighting decreases road safety on rural roads and should be confined to areas such as junctions.

• Street lighting has a significant effect on animals and insects and affects their behaviour and migratory patterns.

• Sai Kung Country Park is one of the few areas in HK where you can clearly see the stars.

• Under the Country and Marine parks Ordinance, the scheme should have been subject to an EIA.

• The EIA was avoided because EPD signed-off the project as:

“MINOR UNDERGROUND CABLING WORKS”.

Example 3 Pak Sha O

• Beautiful “fortified” village of largely intact old Hakka houses which have been restored and cared for by mainly expatriate families over a number of years. Surrounded by Country Park (an “enclave”) and not accessible by road.

• Old paddy fields surrounding the village became an ecologically important wetland with many rare and interesting plants, animals and insects.

• Farming land has been bought by a developer. • Indigenous are about to apply for village houses under the SHP.

• Expatriates are not having leases renewed.

• Wetland has been drained and plants totally destroyed on the

pretext of “farming”.

• Obvious intention is to destroy the old village and build a large complex of “village-type” houses in place of the old houses and covering the wetland.

• Pak Sha O deserves conservation and preservation for the people

of Hong Kong but Government is actively assisting developers who wish to destroy this area purely for commercial gain.

LETTERS IN SCMP: Historic Pak Sha O must be preserved Hong Kong's best conserved village, Pak Sha O, has been targeted by a developer. Green groups warn that if the government doesn't take action to stop further work, this historic village with its unspoiled natural habitat will face destruction. I strongly agree with the arguments being put forward by these groups. I think this village should be zoned to ensure protection of its heritage and ecological features. It is a thriving habitat for many species, some of which are rare, and I am concerned that if there is further development, we might lose the endangered species. Extensive development work can put at risk the entire ecosystem. Also, this is a well-preserved Hakka village and is therefore a unique part of Hong Kong's past and traditions. It is not easy to find similar buildings that have been restored. I do not want to see this place turned into high-rises and shopping malls. I really hope the government will act to protect this precious village, so that future generations can enjoy it. Valerie Suen, Tai Wai

Threat of losing village unacceptable The words of Cat Stevens' 1970 song Where do the Children Play? could perhaps be adopted as the anthem for saving what is left of Hong Kong's natural beauty. Hong Kong has indeed come a long way, we are changing day to day, but tell us, Chief Executive Leung Chun-ying, where do the children play? The threat of losing Pak Sha O, home to 75 species of butterflies as well as numerous other animals, including rare and endangered species such as the Chinese softshell turtle and the hauntingly beautiful eagle owl, is simply unacceptable. Built by the Hakka, Hong Kong's indigenous villagers, Pak Sha O represents our unique history. Allowing it to fall victim to development reflects an administration more in tune with corporate profit than community improvement. Pak Sha O must be saved; it is Hong Kong's memory. Mark Peaker, The Peak

Example 4 Hoi Ha DPA

• There was a public outcry over plans to build a large housing complex along the shoreline at Hoi Ha by a Japanese developer.

• Village and surrounds of Hoi Ha were designated a Development

Permission Area in 2011, the intention being to “zone” the area, delineating land uses and to publish an Outline Zoning Plan (OZP) in 2013.

• This should have been the means by which a

comprehensive plan for Hoi Ha could be drawn up, taking into account:

o Conservation needs

o Tourism needs

o Residents’ needs

o Demand for development

DRAFT HABITAT MAP OF HOI HA

DRAFT ZONING PROPOSALS

However, the Town Planning Board has the right to consider individual applications and assess them on individual merit before the publishing of the OZP. The result:

• In the 17 years before the DPA was gazetted, there were a

total of 6 new houses built at Hoi Ha.

• Since the gazetting of the DPA in 2011, there have been 32 applications for building at Hoi Ha – there is a rush to get applications approved before the zoning comes in to force, which might, in future, prohibit building in the approved locations.

• Applications are being approved before the zoning of the DPA

has been fixed and without assessing the cumulative environmental and social impact of the new developments.

• The imposition of the DPA has increased the number of

applications for Small Houses – the Indigenous Village representative has told the TPB that there is a demand for 85 small Village Houses at Hoi Ha (Hoi Ha presently has about 30 houses).

•

• The TPB is assessing a zoning plan without any assessment of the ownership of the land – whether any future developments will be private or under the SHP.

• The TPB is making no assessment of and has no control over

the number of Small Houses which will be applied for or approved in the future.

Example 5 Heung Yee Kuk

• Originally the New Territories “Triad”.

• Legalised by the Colonial Government.

• Legitimised in Post-Colonial times by the Heung Yee Kuk Ordinance

(CAP 1097).

• Preamble:

o “…a constitution so framed as to ensure that it will as far as possible be truly representative of informed and responsible opinion in the New Territories.”

• Part III – Functions of the Kuk

o a. To promote and develop mutual co-operation and understanding among the people of the New Territories.

o b. To promote and develop co-operation and understanding between the Government and the people of the New Territories.

o c. To advise the Government on social and economic developments in the interests of the welfare and prosperity of the people of the new Territories………

Note: • According to the Ordinance, the Kuk exists to further the interests of “the

people of the New Territories”.

• This implies that Residence in the New Territories is more important than Ethnicity.

• The word “Indigenous” does not appear in the Ordinance.

In Practice: • The HYK only puts forward views of “Indigenous” Villagers - irrespective of

whether or not they live in the New Territories.

• The majority of Indigenous people now live elsewhere in HK or abroad.

• The Kuk exists almost exclusively to make money for Indigenous Villagers.

• Cultural and heritage values do not feature in HYK deliberations (unless linked to monetary compensation).

• What is the HYK’s opinion of the potential destruction of Pak Sha O?

Example 6 To Kwa Peng

• Developer buys land in and around abandoned village of To Kwa Peng, which is an “enclave” surrounded by Sai Kung Country Park.

• Village is in an area of Outstanding Natural Beauty, on the coast and has a large mangrove area (mangroves are not protected in HK).

• Village is inaccessible by road, so developer plans to build illegal road.

• Developer puts in application to build 37 houses.

• Application is rejected, partly on the grounds that the abandoned houses are home for bats (bats are protected in HK).

• Developer demolishes the remains of the houses, displacing the bats.

• Developer re-applies for planning permission for 37 houses.

• The application is presently pending.

Irrespective of whether or not the Government applies its policy of not rewarding the “trashing” of areas, the environmental damage has already been caused.

Example 7 Car Parking

• “New” villagers (7th generation Hong Kong Chinese) refuse to pay indigenous villagers for car parking on Government land.

• Car is vandalised.

• Couple receive death threats – razor blades put in the post.

Example 8 Intimidation

• Indigenous villager believes, wrongly, that a non-indigenous villager is objecting to his application for a Small House.

• IV (who has a criminal record for violent crime) mounts an

intimidation campaign consisting of: o Waking up family at 4 o’clock in the morning by banging gongs

and drums and shouting obscenities outside bedroom window. o Following villager around the village, shouting obscenities and

threatening to kill her, whilst preventing the victim from talking to anyone in the village.

o Spreading false rumours around the village.

• Criminal Intimidation?

• Police are called on several occasions, video of the incidents are

provided as evidence. • Court bounds the IV to keep the peace for a year for the offence of

illegally playing a musical instrument.

Example 9 Extortion

• New couple (Chinese) move into NT village.

• Huge pile of bricks is dumped in front of their house.

• Person demands HK$20,000 to remove the bricks.

Example 10 Illegal Dumping

• Indigenous villager illegally demolishes his house and dumps the rubble on Government land at the side of the village.

• Residents call the Police who witness the dumping.

• IV is served a summons from the District Council.

• IV tears up the summons in front of the District Officers.

• IV rebuilds his house, again, without permission.

• Government place sign on the pile of rubble stating “No Dumping Allowed”.

Example 11 Tree Cutting

• Numerous trees are cut down on Government land in a village preparatory to a planning application.

• Destruction is witnessed by residents and Police called.

• Photographs of workers destroying trees are taken.

• Police stop activities and take details and ID Card numbers of contractors.

• Contractors have map provided by the developer showing the trees to be destroyed.

• Police make a report which specifies 6 mature trees being demolished on Government land.

• Police pass details to AFCD to initiate prosecution.

• AFCD alters report to show only 2 trees, both within 1.5 metres of private land, being destroyed and passes report to DoJ.

• DoJ decides not to prosecute.