The government has repeatedly underestimated the impact of harbour protection laws. It is now paying a heavy price. A High Court judge ruled in March that temporary reclamation to build a tunnel for the Central and Wan Chai bypass required the same stringent test of overriding public interest as permanent reclamation. Officials have complained that this could delay the massive project for years.
It appears the Sha Tin to Central rail link may also be affected because key sections of its underwater tunnels will go under the proposed temporary reclamation. The rail link is one of 10 major infrastructure projects the chief executive announced in his last policy address. In other words, someone in the government developed two showcase infrastructure projects on the mistaken assumption that temporary reclamation did not amount to full reclamation in law. This was a big mistake, with potentially serious consequences. The reclamation would involve more than 10 hectares in and around the Causeway Bay typhoon shelter. Common sense alone should have suggested this is by no means insignificant and has legal implications.
Nevertheless, the government has had the good sense to decide not to appeal against the March ruling. Success would by no means be guaranteed if it went ahead with an appeal, and prolonged legal action could cause further delays whether it won or lost. Let us hope its new-found respect for harbour protection laws is genuine. It must now go back to the drawing board to determine whether there are alternative designs which will enable the two major transport projects to go ahead without long delays. It may well be that temporary reclamation turns out to be the most economical and feasible solution, but this is not clear. Officials should not insist on reclamation, whether temporary or not, without considering alternatives seriously.
For decades, harbour reclamation has been used to provide new space for transport and property development. This has been a formula for economic success and has determined the mindset of many government officials. But since the handover, a sea change in public opinion has occurred as people realise the harbour is our city's most precious natural asset and that reclamation, in most cases, is irreversible. The courts have shown their willingness to give the Protection of the Harbour Ordinance its due. This crucially includes a strong presumption against reclamation unless an overriding public interest can be demonstrated.
The projected completion date for the bypass in 2016 and that for the rail link in 2019 have been thrown in doubt. There may be a temptation for officials to exaggerate projected delays in the hope that this will lead people to accept that there is an overriding need for temporary reclamation. But delays to both projects now appear inevitable. The most cost-effective and acceptable option is to come up with alternative building plans that will not involve reclamation. But if this is not possible, the government should revise plans to minimise the extent of the temporary reclamation. Officials would then need to build a convincing case of overriding public interest - because reclamation, on any scale, is likely to be contested in court.