Planning applications: the applicant must own or have a realistic prospect of controlling the site

In Ashley 121 Ltd v Appeal Tribunal (Buildings) ([2011] 2 HKLRD 728) ML owned 3 adjoining plots of land. It agreed to surrender A to form part of an intended MTR station. It agreed to surrender B to form part of a road. It retained C and built a mixed-use development on it. The relevant government authority had agreed with the owner that it could use the development potential of Plots A and B when calculating the permitted development on C. The owner mistakenly did not use up the development potential of B which it later surrendered and which became a road. A later owner of A submitted two planning applications. One of these concerned plots A and C. The other concerned plot A only. These applications were rejected and the Appeal Tribunal (Buildings) rejected the owner’s appeal. The Court of First Instance upheld the earlier decisions concerning the application that involved both plots A and C: the applicant had failed to show that it owned or had a reasonable prospect of controlling plot C. The application concerning plot A alone was remitted to the Tribunal. In reconsidering the case it should look at whether any of the development potential of plot A remains available for use (and whether unused potential of B – now a road – could be allocated to A). Finally, is there enough unused development potential to support the owner’s planned development?


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