'HK is losing its harbour without the government's plans having been tested'
Reports by Nick Gentle
The Central reclamation plans have not been held up despite the Court of Final Appeal's ruling on how the Protection of the Harbour Ordinance should be interpreted
Effect of the judgment
The Court of Final Appeal pronounced on January 9, 2004, that the Town Planning Board had erred in law in the correct interpretation of the Harbour Ordinance with regard to the government's Wan Chai reclamation project; that the board's decisions must be quashed; that the Wan Chai Outline Zoning Plan must be remitted back to the board for reconsideration; and that the judgment applies to any reclamation proposal in the Harbour.
Importance of the harbour
The court pronounced the harbour as undoubtedly a central part of Hong Kong's identity. It is the heart of the metropolis and something extraordinary to be transmitted from generation to generation. Reclamation that had already taken place renders what remains of the Harbour even more precious and makes the need to protect and preserve it more important and compelling.
The Harbour Ordinance accords to the Harbour a unique legal status. There is a great public need to protect and preserve it having regard to its unique character. There must be preservation which means maintenance and conservation in its present state. It must be kept from harm, defended and guarded. Such a principle is strong and vigorous.
Overriding Public Need Test
The presumption prescribed by the Harbour Ordinance can only be rebutted by establishing an overriding public need for reclamation. Such need must be of greater public importance than the importance of the harbour.
Definitions under the test
Overriding means a compelling and present need which has the requisite force to prevail over the strong public need for protection and preservation.
Present means that the need must arise within a definite and reasonable time frame.
Public needs include economic, environmental and social needs of the community
Minimum means not to go beyond what is required
No Reasonable Alternative: where costs, time and delay would be relevant
Rebuttal of Presumption: each area proposed to be reclaimed must be justified. It is imperative that there shall be no reclamation unless the Overriding Public Need Test is satisfied. The test is by its nature a demanding one and the burden to rebut the presumption is therefore a heavy one.
Cogent & Convincing Materials: due to the demanding nature of the test, it is not sufficient to incant the test or just to pay lip service to it. The materials relied on must be cogent and convincing.
Following the court's decision, the Society for Protection of the Harbour asked for a judicial review of the Central reclamation project, but this was rejected.
Former society head Winston Chu now says it has obtained advice from leading counsel that it would have a good chance of winning an appeal against the decision. Because the government would not agree to suspend the reclamation works pending the hearing of the appeal and refused to take the appeal direct to the Court of Final Appeal, however, it could be two years before the final result was known.
'By that time the reclamation would have been completed and there would be no way to restore the harbour. Hence we had to give up our appeal to the courts and instead appeal to the Hong Kong people,' Mr Chu said. 'We remain of the view that the Central reclamation is in breach of the Protection of the Harbour Ordinance.' He said the government had misled the public, Legco and the Town Planning Board about the legality of what they were doing by wrongly interpreting the Harbour Ordinance as requiring evidence of a public benefit rather than an overriding public need. Thus the government should have resubmitted the plan for approval.
'As a result Hong Kong is losing its central harbour without ... the government's plans having been properly tested against the principles laid down by the Court of Final Appeal judgment,' Mr Chu said. 'This is a historic tragedy for Hong Kong.'