November 04, 2003

Central & Wanchai Reclamations

Doubts as to Government's Good Faith

Summary of Concerns

New evidence raises doubts as to the good faith of the HKSAR Government and the Town Planning Board (TPB) in making or not making decisions as the case may be in relation to Central Reclamation 3rd Phase (CR3).

1. Present a ‘fait accompli’ to foil legal proceedings

The new evidence indicates that decisions to proceed with CR3 was expedited as soon as the Society for Protection of the Harbour (SPH) made known its intention to seek a Court pronouncement on the correct legal interpretation of the Protection of the Harbour Ordinance (PHO) in November 2002 (see Appendix ‘Order of Events’).

The award for the tender works relating to CR3 was made hastily in February 2003 (as per the Ruling of the Review Body on Bid Challenges 14/7/03) whereas the proper procedure would have been to call a re-tender. The Review Body noted in its Ruling that the government’s “precipitous action” in making the award instead of calling a re-tender “rendered nugatory any substantive recommendation” that the Review Body could make. In other words, the circumstances present a fait accompli.

The SPH is concerned that the true reason for not calling a re-tender at the time could have been to foil the pending legal proceedings so as to present another ‘fait accompli’, which would have the effect of ensuring that it would be too late or too expensive to stop or rectify the reclamations works in the event that the SPH wins the appeal set for early December 2003.

2. Serious conflict of interest

The application for reclamation is made by government officials, the same officials who under the PHO have a continuing duty to protect and preserve Victoria Harbour. The officials must demonstrate that they have been acting fairly, conscientiously and completely above-board in strict compliance with the law in reviewing CR3.

The TPB needs to inform the public whether and when it may have met to review CR3 in terms of the three tests set by the Judgment for WD2 (compelling overriding and present need; no viable alternative; and minimum impairment). The Government claimed to have carried out a review but has released no information on timing or the process it followed to review CR3.

Background

1. CR3 & ED2 are connected

CR3 and Wanchai Development Plan (WD2) need to be viewed together as there is a significant degree of overlap and inter-connection between them, especially since the main justification for both plans is the provision of the Central-Wanchai By-Pass (CWB).

2. Duty to Review

The Judgment for WD2 handed down on 7 July 2003 effectively meant that the authorities needed to review both present and future harbour reclamation projects to ensure that such projects comply with the PHO in light of the judgment. This point is not in dispute.

• On 18 August 2003, the TPB noted that it:

“ … will take the necessary steps to review those draft OZPs involving reclamation schemes to ensure they comply with the Judgment and are within the law”.

• On 25 August, the Secretary for Housing, Planning & Lands (SHPL) said that:

“… it is our intention to recommend to the Chief Executive-in-Council to refer the relevant approved OZPs to the TPB for review, where found necessary”.

3. Who has duty to review?

The SHPL acknowledged that the proper body to review all projects (including CR3) is the TPB and not government units. The Chief Executive-in-Council has no plan-making function or power under the law. Its function is only to approve OZPs made by the TPB (Section 9(1)(a) TPO).

4. Has that duty been carried out?

(a) It appears that the TPB has not reviewed CR3.

(b) However, governments unit have instead. On 24 September 2003, the DoJ advised that:

“… the Director of Territory Development, in consultation with his consultants, the Transport Department and the Highways Department, has initiated a review of CR3 to ascertain if it meets the three tests set out in the Judgment. The Government is satisfied that the reclamation works currently underway are in compliance with the three tests, and are hence lawful”.

(c) In any event, how that review conducted by DTD, TD and HD was performed has not been explained in terms of either timing or process.

(d) In the mean time, the government has continued to reclaim under CR3.

Posted by RealityMaster at November 4, 2003 06:17 PM