Decision to incorporate Sai Wan into country park was 'in public interest'

Villagers' land rights do not outweigh policy to protect integrity of parks, judge says as he rules out review of Sai Wan enclave's incorporation

PUBLISHED : Saturday, 01 March, 2014, 4:09am
UPDATED : Saturday, 01 March, 2014, 4:40am

The rights of individual landowners did not outweigh the interests of the public, a judge ruled yesterday as he dismissed a Sai Kung villager's challenge to the policy of incorporating private land into country parks.

Court of First Instance judge Mr Justice Godfrey Lam Wan-ho refused to grant leave to Thomas Lai to seek a judicial review of the chief executive's decision to designate his home village of 60 years, Sai Wan Tsuen, as part of the Sai Kung East Country Park.

Lai had argued that the incorporation of Sai Wan, a coastal enclave, into the country park deprived villagers of their right to build houses on their land.

But Lam said the government drafted its land-use plans for country park enclaves in 2010 out of a commitment to protect the beauty and integrity of the parks.

"One is here concerned with land use and planning, where a decision can have a direct and substantial effect not only on the applicant but also the public," Lam wrote in his judgment. "The expectation of an individual or a group of individuals has to be balanced against the interests and needs of the public."

Lai argued that the authorities in the 1970s promised villagers their land would not be included in the country park. He also argued that incorporation would deprive indigenous villagers of their rights under the New Territories small-house policy, which grants men over 18 the right to apply to build three-storey homes on ancestral land.

Lai acknowledged filing the application five months after the chief executive's decision in May to incorporate the 17-hectare enclave into the park, breaking a three-month limit on judicial review applications.

But the judge said even without the delay, Lai did not have a case to argue in his claim that the incorporation thwarted the "legitimate expectation" of villagers.

The judge wrote that villagers could still apply to build homes, and the authorities had always had the right to block applications for small houses in the enclave if the development had an adverse impact on the park.

"In other words, the building of small houses in an enclave has never been entirely free from the control of the authorities," Lam wrote. "Even if the applicant had a legitimate expectation, the decision to incorporate the Sai Wan enclave into the country park was justifiable and not an abuse of power."

Villagers have run a high- profile campaign against the incorporation, preventing participants in last year's Oxfam Trailwalker charity hike from entering the village and blocking the main path in on weekdays.

Village representative Lai Yan said villagers would now consider extending their blockade of the path to weekends.

"We have heard nothing from the government so far on how to improve our livelihood, and we therefore will not rule out extending the blockade," he said.

Joseph Mo Ka-hung, an executive member of the Heung Yee Kuk, which represents indigenous residents of the New Territories, said the kuk would discuss the ruling with lawyers before deciding the way forward.

The Environmental Protection Department pledged to work with villagers to "better conserve the area".

Additional reporting by Cheung Chi-fai



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