Victory for Victoria Harbour
Government must stop Central Reclamation immediately
In a clear and unambiguous judgment, the Court of Final Appeal (CFA) unanimously upheld the High Court Judgment of Madam Justice Chu on the correct interpretation of the Protection of the Harbour Ordinance (“the Ordinance”). The Society for Protection of the Harbour Limited (“the Harbour Society”) calls upon the HKSAR Government to stop all reclamation works in Central Reclamation Phase III (CR3) immediately and to ask the Town Planning Board (TPB) to conduct a proper review of the plans in light of the Judgment handed down today.
“Now that the law has been clearly defined, the Secretary for Housing, Planning and Lands has the duty to stop CR3 works to ensure that the law is properly observed and that Victoria Harbour is not encroached upon in an unlawful manner,” said Christine Loh, chairperson of the Harbour Society. “The review for CR3 should be a thorough and honest one and not perfunctory”, Loh added.
The CFA handed down its long-awaited judgment today on the appeal by the TPB against the High Court Judgment of the Honourable Madam Justice Chu, which was in favour of the Harbour Society. The CFA as the highest Law Court of Hong Kong has now provided the most authoritative interpretation on the Protection of the Harbour Ordinance by confirming the judgment of the High Court handed down on 8 July 2003.
The Ordinance comprises of three parts: (a) an obligation for all public officers and public bodies to protect and preserve the Harbour; (b) designation of the Harbour as a special public asset and a natural heritage of Hong Kong people; and (c) prescribing a presumption against reclamation.
The CFA declared that these principles are mandatory statutory instructions for all public officers and public bodies in the exercise of any powers vested in them, and they have the statutory duty to have regard to the principle of protection and preservation as well as the presumption against the reclamation.
The CFA noted that the presumption against reclamation is “a heavy one” imposed on those seeking to rebut it. The CFA also confirmed there shall not be any reclamation unless the “public overriding need test” is satisfied. This test is by its nature a demanding one. It follows from this test that:-
(i) A need should only be regarded as overriding if it is a compelling and present need;
(ii) That there should be no reasonable alternative;
(iii) That the proposed reclamation should be kept to a minimum; and
(iv) That these matters should be demonstrated by cogent and convincing materials.
By adopting a wrong interpretation of the Harbour Ordinance, the Government had tried to reclaim a total of 584 hectares of the Harbour within the past 7 years and had gazetted the following projects. But for the actions taken by our Society over the past 7 years, the Harbour would already have become a river by now.
| Year | Reclamation | Area | Government’s Justification |
| 1996 | Green Island Reclamation | 190 hectares | a. Housing for 168,000 people b. Traffic grounds |
| 1998 | Central Reclamation Phase III | 38 hectares | a. Creation of 15 hectares of additional land for office and commercial development b. Sale of land to earn HK$14.76 billion c. Traffic relief |
| 1998 | South East Kowloon Reclamation (Kowloon Bay) | 300 hectares | a. Housing for 350,000 people |
| 1999 | Tsuen Wan Bay | 30 hectares | a. Housing |
| 2002 | Wanchai Reclamation Phase II | 26 hectares | a. Provision of amenities b. Traffic relief |
Now that the CFA has clarified the proper interpretation of the Ordinance, the Government should conscientiously comply with its legal duty to protect and preserve the Harbour against reclamation and stop all current reclamation projects.
The Wanchai Reclamation and CR3 together form one indivisible scheme as the Central-Wanchai Bypass and the waterfront promenade run through both areas. Now each piece of the Wanchai reclamation, including that for the Bypass and that for the promenade, has to be individually reviewed by the TPB to see if the reclamation would satisfy the tests pronounced by the CFA. Given current public opinion and the latest traffic studies, the Board may find that the Bypass does not satisfy the tests laid down by the CFA.
The only logical and sensible course of action for Government to take is to stop the CR3 works pending the outcome of such review by the TPB. It would be most irresponsible of Government to allow the CR3 works to proceed when the fate of the Wanchai section of the Bypass is still unknown.
Further, any attempt to pre-empt the decision of the TPB shows disrespect for the Order of the Court of Final Appeal. To allow the CR3 works to proceed may be seen as such an attempt. In the award of the construction contract for the CR3 works, the Government has already been accused by the Review Body on Bid Challenges (chaired by our former Judge Mr. Neil Kaplan) that the contract was awarded with “undue haste” and that “precipitous action” on the part of Government has rendered “nugatory any substantive recommendation that the Review Body could make”. The Government should not commit the same error in the present case.
In conclusion, Government should immediately stop all CR3 works and that the Chief Executive in Council should refer the CR3 Plan back to the TPB so that the Board can do a comprehensive and coherent review of the Wanchai Plan and the CR3 Plan together as one scheme.
“I hope that the matter is now clear and that the HKSAR Government will stop looking for excuses not to stop works on CR3. Loh noted.
The Society wishes to thank its legal team for its tremendous work.