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Central Reclamation Phase III - HCAL 102 of 2003
The Central Reclamation Judicial Review was necessitated by the recent
Court of Final Appeal ("CFA") Judgment in respect of the Wanchai
Judicial Review.
The CFA Judgment pronounced that the Government has been using the wrong interpretation and application of the Protection of the Harbour Ordinance and that the decision affected all reclamation proposals by the Government. This CFA decision therefore also affects the Central Reclamation Outline Zoning Plan ("the Plan") which was unlawfully made and needs to be reviewed in accordance with the 'overriding public need' test prescribed by the CFA Judgment.
The Harbour Society had written to the Chief Executive-in-Council ("Exco") that the Plan be reviewed by the Town Planning Board ("the Board") which was the maker of the original Plan. Exco refused to do so. The Harbour Society therefore had no alternative but to institute the Central Reclamation Judicial Review to seek the Court's assistance to order the Government to send the Plan back to the Board for review in order to ensure that the Plan will properly complied with the 'overriding public need' test.
The 'overriding public need' test requires Exco to show that there is a compelling present public need for reclamation which must be the minimum and there must be no reasonable alternative.
The Society based its case on the following grounds:-
1. As the Plan was unlawfully made, it must be reviewed by the Board as the original maker of the Plan. Under the Town Planning Ordinance, the Board is the only authority empowered by law to make outline zoning plans for Hong Kong and not Exco.
2. Exco's decisions are made behind close doors and there is no opportunity for public objections and public participation. Under the Town Planning Ordinance, the Board must consult the public and give the public an opportunity of raising objections.
3. Exco is the applicant of reclamation and should not be the judge of its own cause.
4. The plan includes one million square feet of reclamation which is not needed for the Central Wanchai Bypass. Furthermore, 5.1 hectares are for commercial use and will be sold to developers for commercial development. Therefore the Plan on the face of it does not comply with the CFA Judgment as the proposed reclamation is excessive.
The present Judgment does not pronounce the Central Reclamation to be lawful nor that the Plan complies with the test prescribed by the CFA Judgment. It only pronounces that Exco has no legal duty to refer the plan to the Board for review. The Judgment nevertheless states: "It may well have been preferable to remit the Plan to the Board, at least regarding the extent of reclamation". Therefore even the Judge could see the good sense in Exco referring the plan to the Board for review even if the Judgment is correct that Exco had no legal duty to do so.
Our Society is examining the present Judgment and seeking Counsel's advice on the possibility and advisability of an appeal to the Court of Final Appeal.