香港容積獎勵的法律與實踐──都市更新背景下的相關法律問題

Law and Practice of Gross Area Concession Measures in Hong Kong-Relevant Legal Issues Against the Background of Urban Renewal

本文第一部分探討都市更新背景下，容積獎勵措施在香港的法規與實踐，包括2010年左右進行的重大法律框架的修改，第二部分探討三個實踐中的相關法律問題：規管框架的問題，提出容積獎勵措施應該在住宅權及可持續發展的框架下與都市更新的目標統一；政策調整及調整中的政府定位問題，及實施中對容積措施的負面影響的控制及監督問題。本文第三部分通過對域外法的觀察及比較，如與《深圳市城市更新單元規劃容積率審查規定》（審查意見稿）中容積率獎勵相關的部分比較，提出獎勵措施在大陸城市多作為都市更新的經濟誘因而存在，而獎勵政策之細化，涉及的公共利益之界定，以及如何衡量政策效果等探討尚有所欠缺。結論部分筆者建議大陸相關法例應當：明確獎勵措施如何促進該公益的實現，並持續評估政策效果，以及因應需要定期檢討相關政策。

This first part of this paper discusses the law and practices in Hong Kong in relating to gross floor area (GFA) concession measures, against the background of urban renewal, including the adjustment of those measures during the recent revision of regulatory framework in the year of 2010. The second part raises three legal issues: the first is how the right to adequate housing and sustainable development could serve as legal framework, under which GFA measures could align with the goal of urban renewal; the second issue is given the rationale for the adjustment of GFA measures is public interest, how the government defines public interest in relating to GFA measures; and the third issue is how to contain the negative impact of GFA measures via supervision. The third part of paper by the observation of and comparison with GFA measures in other jurisdiction, notably the measures in Regulation on Review of Planned Floor Ratio of Urban Renewal Unit in Shenzhen City (DRAFT) issued by Shenzhen government in 2018, points out that GFA exists in most mainland cities mainly as economic incentives to induce developers to construct space/facilities that benefits the public during urban renewal. However, since current measures lack detailed design and do not clearly delineate public interest in specific measures, it becomes difficult to assess its effectiveness in promoting those public interest. The author suggests the relevant legislation to clarify the rationale for specific GFA measures, to continuous monitor the implementation of those measures, and to periodically adjust them to best achieve the desired policy goal.