Decision by Hong Kong officials not to designate enclaves as country park land was unlawful, judge rules

High Court backs environmental activist and says conservation and preservation values of the land were not properly considered

PUBLISHED : Thursday, 27 April, 2017, 11:33pm
UPDATED : Friday, 28 April, 2017, 12:25pm

Hong Kong’s High Court on Thursday ordered the government to reconsider the fate of six enclaves that officials had refused to designate as country park land, ruling that it was an unlawful decision based on defective assessments.

The successful judicial review launched by an environmental activist centred on the Country and Marine Parks Authority’s decision in December 2013 not to recommend incorporating them into surrounding country parks.

The six enclaves are located in Hoi Ha, Pak Lap, To Kwa Peng, Pak Tam Au, So Lo Pun and Tin Fun Tsai.

In a written judgement, Mr Justice Thomas Au Hing-cheung ruled in favour of environmentalist Chan Ka-lam, of Save Our Country Parks, concluding that the authority’s decision was unlawful.

“I am not satisfied that the authority had in discharge of his ... statutory duties properly made sufficient inquiries as to the conservation and preservation values of each of the six enclaves before deciding not to recommend them to be designated as country parks,” he said.

Under the Country Parks Ordinance, the authority has a duty to make recommendations to the chief executive for the designation of areas as country parks and to protect their vegetation and wildlife.

As all new developments in country parks require the authority’s consent, their designation could be seen as offering better protection to the enclaves.

Officials change tack in country park plans to avoid further disputes

The assessment was sparked by an incident in June 2010, when unauthorised excavation work within the country park enclave of Sai Wan raised significant public concern and prompted the government to revise its guiding principles and criteria in making such decisions.

The judge found the authority’s assessments of the six enclaves did not specifically address their conservation, landscape and aesthetic values as required by the new guidelines.

He also observed that no explanation was given in those assessments as to why it was not necessary to look at those values.

The six were among 54 country park enclaves which had not been covered by the outline zoning plans, meaning that developments on private land within the enclaves were not subject to any restrictions, save for any conditions in the land lease.

But the authority emphasised that these enclaves were subject to draft outline zoning plans, which would offer effective protection and conservation.

Lawmaker Eddie Chu Hoi-dick, a veteran conservationist, said he was not optimistic about the new assessment exercise but he expected environmental groups to continue pressuring the government.

The Agriculture, Fisheries and Conservation Department said it would study the judgment in detail and seek legal advice from the Department of Justice before deciding on follow-up action.