During the first round of public consultation on the Area 6f proposals, the topic that attracted the greatest number of objections was HKR’s proposal to use the brick roadway at the Woods as the main access route to the new tower blocks.
The submissions pointed out that Parkvale owners have been paying for maintenance of this roadway for the past 28 years. Therefore, the road must be Village Common Area, and HKR has no right to provide access through Parkvale to Area 6f.
HKR replied that it has not designated the road as Village Common Area, and therefore it retains “ownership” of the road. As such, it has the right to grant a right of way over the road in favour of Area 6f.
This defies logic.
HKR cannot simply claim “ownership” of any part of DB at will. Rights over a piece of land or a facility or unit in DB are always based on possession of undivided shares, and are subject to the Land Grant, the DMC and any relevant Sub-DMC.
According to the Land Grant, HKR must allocate undivided shares to the roads within DB in the DMC. However, all undivided shares in DB are bound to certain uses, as described in this earlier post. Therefore, when allocating undivided shares, HKR must allocate a certain type of share. Only two types of undivided shares are appropriate: Retained Area shares, by which HKR remains responsible for the area; and Common Area shares, by which all owners are responsible for the area.
HKR admitted in its submission that the Passageways are not part of the Village Retained Area. The Parkvale sub-DMC allocates Retained Area Undivided Shares to the Village Retained Areas, but no undivided shares to the Passageways. Hence, HKR does not “own” the Passageways by virtue of the Sub-DMC.
HKR may argue that it has allocated City Retained Area Undivided Shares. However, if this is the case, there is no provision under either the DMC or the Sub-DMC that would allow the Manager, City Management, to charge the owners of Parkvale Village for the maintenance of the Passageways, as it has done for the past 28 years.
HKR has three choices:
- Declare the Passageways to be City Retained Area and allocate the appropriate number of City Retained Area undivided shares. HKR will then need to take over maintenance responsibility for all Passageways in DB, and compensate all villages for all past expenditure for maintaining HKR’s passageways. HKR may then grant right of way through Parkvale Village to Area 6f.
- Declare the Passageways to be City Common Area. HKR will need to pay its portion of the City expenses for maintaining all Passageways in DB, and compensate all villages for past expenditure. Area 6f will have automatic right of access through the City Common Area.
- Maintain the status quo, whereby the Passageways are treated as Village Common Area. Area 6f will have no right of access through the Parkvale Passageway. It could easily be argued that this is established practice; HKR has allowed the practice to continue uninterrupted for more than 30 years across DB.
The Town Planning Board must exercise extreme caution when dealing with matters concerning the control of any area in DB, especially those village areas for which no undivided shares have been allocated in the Sub-DMC. A clear understanding of the operation of the share regime at Discovery Bay is essential to avoid making mistakes. Naturally, any decisions by the TPB that ignore the share regime and established practice would be subject to judicial review.
Please feel free to copy some or all of the above when replying to the TPB. Don’t wait until your submission is “complete”. You may make multiple submissions at any time on different topics, up to the 15 July deadline.