Nam Chun Investment Co. Ltd. v. The Director of Lands

LDLR 3 OF 2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LANDS RESUMPTION APPLICATION NO. 3 OF 2000

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J U D G M E N T

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This is an application by the Applicant for compensation in respect of Lot Nos. 828 R. P., 873 R. P., 874 R. P., 892, 894, 895, 896 R. P. and 897 all in D. D. 124 ("the Lots"), which were resumed on 1.3.1999, pursuant to a Government Notice No. 293 dated 14.1.1999 gazetted and published on 22.1.1999.

2. The Lands Tribunal is empowered under section 10 of the Lands Resumption Ordinance ("the Ordinance") to determine the amount of compensation payable in respect of a claim submitted to it on the basis of the loss or damage suffered by the claimant due to the resumption of the land specified in the claim.

3. Section 12 of the Ordinance provides for additional rules for determining compensation, which are set out as follows : -

"In the determination of the compensation to be paid under this Ordinance -

(a) no allowance shall be made on account of the resumption being compulsory;

(aa) no account shall be taken of the fact that the land lies within or is affected by any area, zone or district reserved or set apart for the purposes specified in section 4(1)(a), (c), (d), (e), (f), (g), (h) or (i) of the Town Planning Ordinance (Cap. 131);

(b) no compensation shall be given in respect of any use of the land which is not in accordance with the terms of the Government lease under which the land is held;

(c) no compensation shall be given in respect of any expectancy or probability of the grant or renewal or continuance, by the Government or by any person, of any licence, permission, lease or permit whatsoever :

Provided that this paragraph shall not apply to any case in which the grant or renewal or continuance of any licence, permission, lease or permit could have been enforced as of right if the land in question had not been resumed; and

(d) subject to the provisions of section 11 and to the provisions of paragraphs (aa), (b) and (c) of this section, the value of the land resumed shall be taken to be the amount which the land if sold by a willing seller in the open market might be expected to realize."

4. Since the loss suffered by the Applicant is the value of the land resumed, paragraph (d) is the proper basis for determining compensation. Before evaluating the open market value of the land resumed, the Tribunal has to ascertain whether the provisions of section 11 and the provisions of paragraphs (aa), (b) and (c) of section 12 have to be taken into account for the purpose of determining compensation.

5. Section 11 and paragraph (b) are not relevant to the present application, and they do not apply to this case. As far as paragraph (aa) is concerned, since the land resumed does not lie within or is affected by any area, zone or district reserved or set apart for the purposes specified in section 4(1)(a), (c), (d), (e), (f), (g), (h) and (i) of the Town Planning Ordinance, this paragraph also does not apply to this case.

6. In respect of paragraph (c), the Tribunal has to decide whether or not the "licence, permission, lease or permit" refer to the land resumed. Under the proviso, it is stipulated that this paragraph does not apply to any case where the grant, renewal or continuance of any licence, permission, lease or permit could have been enforced as of right if the land in question had not been resumed. It is implicit in this proviso that the grant, renewal or continuance of these rights could not have been enforced if the land had been resumed. The said enforcement is therefore dependent upon the condition that the land in question had not been resumed, and it follows that these rights must be those the grant, renewal or continuance of which can only be enforced against the land resumed. If the grant, renewal or continuance of these rights can only be enforced against a piece of land other than the land resumed, such enforcement will not be related to the land resumed, and it would be meaningless to make the said enforcement conditional upon the "non-resumption" of the land in question. The licence, permission, lease or permit must therefore be rights pertaining to the land resumed, and paragraph (c) can only apply to such a piece of land.

7. No evidence has been adduced before this Tribunal that prior to the date of resumption there was in existence any licence, permission, lease or permit in respect of the land resumed, and there was no issue relating to the expectancy or probability of the grant or renewal or continuance of such rights. Consequently paragraph (c) is inapplicable to this case.

8. Value of the land resumed

The compensation payable in this case is to be determined on the basis of the value of the land resumed, which, according to paragraph (d) of section 12, is the amount which the land if sold by a willing seller in the open market might be expected to realize. In this regard, the Applicant's valuer adopted a "like-with-like" comparison approach by using relevant comparables. At page 5 of the compensation assessment report, the Applicant's valuer stated : -

".............. In valuing agricultural land, it would be necessary to adopt a "like-with-like comparison" approach. The "Lots", agricultural by status, are to be compared with agricultural land subject to similar land use zoning and in similar locality.

Ideally the best comparable would come from land transactions within the same R(A)3 zone but none, unfortunately, exists. Lands with similar development prospect or subject to similar land use zoning in the same vicinity are used for comparison."

The use of comparables has been recognized by the Tribunal as a proper and permitted approach adopted in the determination of compensation. In Watford Construction Co. Ltd. v. Secretary for the New Territories [1978] HKLTLR 253 at 260, President Power stated : -

"...... the Tribunal can see nothing in s. 12 that would prevent it from approaching the valuation of land restricted to agricultural use by using the sales of comparable land which is similarly restricted. Indeed, in the present case, the Tribunal is satisfied not only that this is a proper and permitted approach under s. 12 but also that it is the approach to the problem of valuation most likely to result in a correct valuation."

9. The comparables adopted by the Applicant were challenged by the Respondent's valuer, Mr. Chan Ping Hung, on two grounds: firstly, they are special purchasers' bids; secondly, they carry an element of hope value, and as such they should not be used. During the course of trial, the Respondent abandoned the first ground of criticism, and the Tribunal is only required to deal with the second ground of criticism. In paragraphs 5, 6 and 7 of his supplementary report, Mr. Chan made adverse comments on the comparables adopted by the Applicant : -

"5. I note the pattern of these agricultural land sales. However, I wish to point out that the exceptionally high sale prices paid out by the two individual consortia for these two groups of lots reflected that they were buying the "development potential and prospect of land" (as the Applicant's Surveyor called them), not just the value of the agricultural lots concerned. Also, the consortia were too anxious to secure and to assemble sizable land parcels, irrespective of the prevailing climate. Their purpose was to apply to Government for land exchange (which the two consortia did ) to permit residential development to accord with the residential zoning on the OZP. These comparables, in my view, invariably carry a large element of "hope value", which can be defined in this case as the amount a special purchaser is willing to pay over and above the market price of the original use permitted under the lease with an expectation of approval from the lessor (in this case the Government) for a lease modification to permit a more lucrative use.

6. I agree that these additional comparables were "dictated more by the development potential and prospect of the land than by any other sentimental factors." The question is whether it is right to apply these sales evidence with development potential in this compensation assessment. In my view, they should not be used because the said "development potential and prospect of the land" are not compensatable at all under Section 12(c) of the Lands Resumption Ordinance (LRO).

7. The next question is whether such "hope value" could be taken into consideration in this compensation assessment. I hold the view that "hope value" should not be taken into consideration due to the operation of Section 12(c) of LRO. This statutory provision clearly stipulates that "no compensation shall be given in respect of any expectancy or probability of the grant or renewal or continuance, by the Crown or by any person, of any licence, permission, lease or permit whatsoever." As such, the additional comparables with such "hope value" should be disregarded."

10. Mr. Chan is of the view that due to the operation of section 12(c) the "hope value" of the comparables should not be taken into account, and these comparables should be disregarded. But section 12(c) only applies to the land resumed. It does not apply to the land involved in the comparables, which is not the land resumed. Section 12(c) only operates on the "hope value" of the land resumed, and not on the "hope value" of the land involved in the comparables. Mr. Chan's view is wrong and his second ground of criticism is therefore untenable.

11. The location, use and tenancy of the Lots

The Lots, comprising two parcels of land in irregular shapes, were situation on the west side of Hung Tin Road to the north west of its junction with Castle Peak Road, in the western part of Yuen Long near Shek Po Tsuen, Hung Shui Kiu. Vehicular access to or from the Lots was available via a slip road branching off from Hung Tin Road, a major thoroughfare serving the vicinity of the Lots. The immediate neighbourhood was characterized by a large scattering of temporary structures situated amongst large patches of agricultural land.

12. According to Mr. Lau Yuet Ming, Alain, the Applicant's expert witness, "part of the Lots amounting to about 4,056.11 sq. m. were tenanted and let at a rent of $33,000 per month, inclusive of rates and government rent for a term of 2 years from 1 December 1998 to 1 December 2000. The tenancy was for use of the site for open storage use. The tenant vacated from the tenancy area before the reversion to make way for the resumption."

13. Agreement between the parties on the valuation of the Lots

The two parties agreed on the following facts : -

(a) The relevant date of valuation of the Lots was 1 March 1999, being the date of reversion of the Lots.

(b) The Lots were agricultural land held under Block Government Lease. Pursuant to the covenants of the Block Government Lease, no building was to be erected on the Lots except buildings ancillary to agricultural purposes.

(c) The Lots were covered by the then draft Outline Zoning Plan for Ping Shan (No. S/YL-PS/2) and fell within an area zoned "Residential (Group A)3".

(d) The Lots had a total area of 5,475.4 sq. m. or 58,937.2 sq. ft.

(e) The valuation of the Lots should be based on the Open Market Value of the Lots as at the date of resumption. Open Market Value should be the amount which the Lots, if put up for sale in the open market by a willing seller, might reasonably be expected to realize.

(f) The best method of valuation for the Lots was the direct comparison method under which comparable sale transactions of land were collated, analyzed and adjusted before arriving at an adjustment unit rate that was appropriate for the Lots.

14. Highest and best use analysis

Analysis of the highest and best use of the Lots is essential in the valuation process. Through the highest and best use analysis, the valuer interprets the market forces that influences the Lots, and identifies the use upon which the final value estimate is based. For unimproved agricultural land such as the Lots, the land value is directly related to the highest and best use.

15. Mr. Lau for the Applicant opined that "the zoning of the Lots as 'R(A)3' clearly indicates, from a land use and infrastructure point of view, the lands in question are suitable for medium density residential development. This is plainly manifested on the statutory outline zoning plan and attached notes. Were it not intended as a public housing project, the area could, according to the OZP, be developed into a medium density housing scheme of equal magnitude and scale by private initiatives. The fact that the Lots entail potential for residential development should be taken into account in determining the dimension of the compensation."

16. On the other hand, Mr. Chan Ping Hung, the Applicant's expert witness, in his valuation report dated 30 May 2000 (Exhibit A1, page 46), accepted that the valuation of the subject Lots "shall take into account the best use to which the land may reasonably be put." However, Mr. Chan opined that "the effect of the existing 'Residential (Group A)3' zoning of the subject Lots and the intended use of the subject Lots for public housing development at plot ratio 3 are to be disregarded under the 'Pointe Gourde' principle." For this reason, Mr. Chan concluded that the highest and best use of the Lots was as land with potential for open storage use. This was because he considered that "open storage use of the subject Lots is permissible under the Town Planning Ordinance as such use can be regarded as an 'existing use', bearing in mind that the use of the subject Lots has not constituted any material change in land use since the relevant Interim Development Permission Area Plan which was gazetted on 18 June 1993." (Exhibit A1, page 46).

17. We have earlier cited section 12 of the Ordinance which provides additional rules for determining compensation. In particular, paragraph (aa) of section 12 of the Ordinance refers to section 4(1) of the Town Planning Ordinance which reads: -

"(1) The Board's draft plans prepared under section 3(1)(a) for the lay-out of any such area may show or make provision for -

(a) streets, railways and other main communications;

(b) zones or districts set apart for use for residential, commercial, industrial or other specified uses;

(c) reserves for Government, institution or community purposes;

(d) parks, recreation grounds and similar open spaces;

(e) zones or districts set apart for undermined uses;

(f) comprehensive development areas;

(g) country parks, coastal protection areas, sites of special scientific interest, green belts or other specified uses that promote conservation or protection of the environment;

(h) zones or districts set apart for use for village type development agriculture or other specified rural uses;

(i) zones or districts set apart for use for open storage,"

18. Therefore, it is permissible for the Tribunal, in determining the compensation for the Lots under the Ordinance, to take into account the factor that the Lots may be zoned for "residential, commercial, industrial or other specified uses." There is no requirement under the Ordinance that the Tribunal must assume that the Lots, demised as agricultural land by the Government, could only be used for open storage use, as submitted by the Respondent. In our view, the decision on the valuation assumption as to whether the Lots may be zoned for residential or one of the other specified uses should be a matter of facts to be determined on the basis of evidence adduced by the parties.

19. We are convinced from our findings of the facts of this case that the Lots, at the valuation date, were suitable in being developed into some kind of building lots in the future. Notwithstanding that parts of the Lots were used for storage and there were open storage uses in the lands nearby, we find that the Lots were close to the trunk roads in the region and were also geographically close to the central part of Hung Shui Kiu, a town in between Tuen Mun and Yuen Long. Furthermore, having regard to the zoning of the Lots and the adjacent land at the valuation date, we agree with Mr. Lau that the most likely highest and best use that the Lots could be put to at the said date would be as land with potential for medium density residential development. As development of adjacent land in the area takes place, it is very likely that the Lots will also be ripe for development in the near future. This is the case even after we have ignored entirely the effects of the scheme underlying the resumption, being the "Resumption of land for Yuen Long - Tuen Mun Corridor Public Housing Development in Area 13 in Hung Shui Kiu" (Exhibit A1, page 50).

20. In this connection, we disagree with the Respondent that in applying the "Pointe Gourde" principle to the present case, "the Tribunal must consider the value of the resumed land on the basis that there was no scheme to redevelop the Hung Shui Kiu - Ping Shan area, i.e. no OZP, no re-zoning." The "scheme" of the "Pointe Gourde" principle had to be extended very far in terms of time, scale and substance, if the Respondent's standpoint were to be accepted. As submitted by the Applicant, the subject compulsory resumption scheme started much later than the entire zoning exercise of the "Ping Shan" area and was plainly independent of it. We agree with the Applicant that both as a matter of law and a matter of fact, the zoning was independent of the resumption scheme. Hence, it is wrong for the Respondent to argue that in applying the "Pointe Gourde" principle to the present case, the Tribunal must ignore the fact that the Lots were zoned for residential use at the valuation date.

21. Therefore, we determine that the highest and best use of the Lots at the valuation date should be as land with potential for medium density residential development, but not as land for storage purpose.

22. Choice of the best comparables

Mr. Lau, the Applicant's expert in his valuation report dated June 1999 collated and analyzed sales comparables of agricultural land in the near vicinity of the Lots transacted in the period between January 1998 and March 1999. These comparables relate to two clusters of land within the two specific residential zones "R(A)2" and "R(B)2", near to the "R(A)3" zone under which the Lots were situated. Mr. Lau reported that there was a complete absence of transaction activities in the said "R(A)3" zone in the two to three years prior to the date of resumption. He suggested that this was probably due to the area being earmarked by Government for public housing development.

23. Mr. Chan, the Applicant's expert in his valuation report dated 30 May 2000 collated and analyzed sales comparables of agricultural land in other parts of Yuen Long for the period between July 1998 and May 1999. There were altogether seven land sales (Exhibit A1, page 48): item nos. 1 and 7 situated in Ha Tsuen, item no. 2 situated in Sheung Cheung Wai, Ping Shan, item nos. 3 and 6 situated in Tai Tao Tsuen, Hung Shui Kiu, item no. 4 situated near San Lee Uk Tsuen in Hung Shui Kiu and item no. 5 near Shek Po Tsuen in Hung Shui Kiu. Mr. Chan opined that of these 7 comparables, item nos. 1, 2 and 7 were the most relevant for comparison with the Lots. We note from Mr. Chan's report that for his comparable item nos. 1 and 7, they were both zoned "Undetermined" and were accessible from Ping Ha Road, and for comparable item 2, it was zoned "village type development" and was accessible by a motorable track.

24. From our concluded highest and best use of Lots, in the absence of the resumption scheme, it is plainly obvious that the comparables adopted by Mr. Lau are much more relevant for the purpose of this valuation than the comparables used by Mr. Chan. Mr. Lau's comparables were sales of similarly "residential" zoned land in the vicinity of the Lots transacted close to the valuation date. On the other hand, all of Mr. Chan's comparables had zoning other than residential. Besides, from the valuation point of view, Mr. Chan's comparables were very differently situated and had different accessibility relative to the major trunk roads serving the areas of the comparables. Therefore, given that Mr. Lau's comparables are much more relevant than Mr. Chan's, we decide to discard the latter's comparables entirely in the remaining part of this Judgement.

25. The Respondent in the submission conceded that the comparables adopted by the Respondent were based on agricultural land with existing use (as permitted under the Melhado principle). The Respondent submitted that "if the Tribunal finds that the land should be valued on the basis of land with some development potential (i.e. as the Tribunal had done in the Suen Sun-yau case) but not the high density residential development potential contended for by the Applicant, the Tribunal may direct that the Respondent's comparables should be re-adjusted on that basis." We do not find this approach to be appropriate because if the Respondent had decided it appropriate to comment on the Applicant's valuation including the adjustment of comparables, the Respondent should have done so during the course of the hearing. It would be grossly inappropriate for the Tribunal to firstly decide on the type of comparables that are most relevant for the valuation of the Lots and then to direct the parties to further give evidence or submission on the chosen comparables.

26. Determination of the Open Market Value of the Lots

In adopting his so-called "like-with-like comparison" approach, Mr. Lau had collated and analyzed in his valuation report comparables transactions of land with similar or comparable land use potential that occurred in the near vicinity of the subject Lots. (Exhibit A1, page 4). Among the comparables, Mr. Lau opined that his Comparable Nos. 3 and 13 were particularly suited for direct comparison purposes because they were both larger plots of land and were, similar to the Lots, not subject to any squatter or tolerated structures or occupations. In his supplementary report dated May 2000, Mr. Lau produced 24 additional comparables which show a price range of between $5,490 and $28,364 per sq. m. (Exhibit A1, page 86). Summing up and after taking into account the differences between the Lots and the comparables, Mr. Lau concluded that the open market value of the Lots, on vacant possession basis, was $12,000 per sq. m. at the date of valuation. The Respondent's expert submitted that Mr. Lau's comparables should be disregarded since they should be regarded as "special purchaser's bids with the expectancy of approval of a land exchange by the Government" and/or carried an element of "hope value". Mr. Chan estimated that based on his comparables of land for open storage use, the open market value of the Lots on vacant possession basis was $2,200 per sq. m.

27. The Respondent's legal challenge to the suitability of Mr. Lau's comparables has been dealt with earlier in this Judgement. It will suffice to say that we decide that Mr. Lau's comparables are perfectly acceptable. There is also no proof that they are not transactions at arms length in the market. In the circumstances, we agree with Mr. Lau's opinion that based on his comparables, it would be reasonable to estimate that the open market value of the Lots was in the region of $12,000 per sq. m. on vacant possession basis.

28. Mr. Lau further carried out his valuation on the basis of the summation of the value of the term of the tenancy and the value of the reversionary interest. A rate of 5% was adopted by Mr. Lau in both the capitalization of the term interest and the discounting of the reversion. On the other hand, the capitalization and discount rate, based on the yield for agricultural land used for open storage use was taken by Mr. Chan to be 12%. Other than this difference in the capitalization rate and the discounting rate, and the fundamental difference in the assessment of the open market value of the Lots on vacant possession basis, Mr. Chan's approach was identical to that of Mr. Lau. We decide that the capitalization rate and the discounting rate adopted by Mr. Chan is to be preferred to Mr. Lau's.

29. Therefore, following the approach and workings of Mr. Lau, we have estimated the value of the resumed Lots, as follows :

Valuation of resumed Lots

a.	Tenanted Area
	Term
		Monthly Rent	$33,000
		Rate and Govt Rent @ 8%	$2,640
		Net rent	$30,360
		12 months	12
			----------
		Net annual incomes	$364,320
		YP@ 12% for 1.75 yrs	1.4991
		Term Interest		$546,152
	Reversion
		Tenancy area resumed	4,056.11 m2
		OMV (VP value)	$12,000/m2
			$48,673,320
		PV @ 12% for 1.75 yrs	0.8201
		Reversionary interest		$39,916,990
		Market value of interest in Tenancy Area		$40,463,142
b.	Untenanted Area
		Untenanted area resumed	1,419.29m2
		OMV (VP value)	$12,000/m2
		Market value of interest in Untenanted Area		$17,031,480
		Open market value of resumed Lots		$57,494,622
		say		$57,495,000
				=========

30. Orders

Accordingly, we order that the Respondent pays the Applicant compensation in the sum of $57,495,000. Leave is reserved to apply for the rate of interest, if not agreed, to be determined under section 17(3A) of the Lands Resumption Ordinance, Cap. 124. There will also be an order nisi that the Respondent pays the Applicant's costs on the High Court party and party scale with certificate for counsel, to be taxed if not agreed, to be made absolute unless application is made by either party within 21 days for an order in place thereof. Liberty to apply is also reserved for ancillary and consequential matters