Doubts cleared: Secretary for Housing, Planning & Lands Michael Suen says the Court of Final Appeal's ruling has cleared people's doubts on the reclamation issue.

The Court of Final Appeal today handed down its judgment on the Town Planning Board's appeal of the High Court's judgment on the Draft Wan Chai North Outline Zoning Plan.

In respect of the presumption against reclamation as contained in the Protection of the Harbour Ordinance, the court has substituted three tests the High Court laid down earlier with a single test of "overriding public need".

Welcoming the judgement, Secretary for Housing, Planning & Lands Michael Suen said he is confident that the Central reclamation, which has undergone due and diligent scrutiny, can meet the legal requirements.

Ruling clears doubts over reclamation

Mr Suen said: "We are pleased to note that the single test now laid down by CFA carries a widened definition and coverage. The court judgment has removed doubts over reclamation which have prevailed in the community in recent months.

"It also provides room for the Government and the public to deliberate on the need to strike a balance between protecting the harbour and meeting social, economic and environmental needs."

He reiterated that the Government is committed to protecting and preserving the harbour. As to future reclamations, a set of clear operational guidelines on how to comply with the Protection of the Harbour Ordinance and the court judgment will be worked out.

"We will observe the court judgment and ensure that reclamation only takes place under special and reasonable circumstances, with the new test laid down met," he said.

"To address public concern that the use of reclaimed land may be changed, we propose to ensure in the town-planning process that reclaimed land could only be used for the intended purpose in respect of which reclamation was approved."

Court, Town Planning Board's viewpoints similiar

There are many similarities between the court's explanation on what amounts to an "overriding public need" and the viewpoints the Town Planning Board's Counsel expressed during the Court of Final Appeal enquiry. These include:

* Public needs that support reclamation need not be something that the community cannot do without.  As a matter of fact, the court opines that to describe such needs as something which the public cannot do without would be "going much too far";

* Public needs that may rebut the presumption against reclamation under the Protection of the Harbour Ordinance would include "the economic, environmental and social needs of the community";

* Apart from reclamation, such public needs cannot be met by another reasonable alternative. In considering whether there are reasonable alternatives, all circumstances should be considered, including the economic, environmental and social implications of each alternative as well as the cost, the time and delay involved.

Regarding the court judgment that upholds the High Court's decision relating to the Draft Wan Chai North Outline Zoning Plan, Mr Suen pointed out that the board has already given up the Harbour Park proposal.

Review on two projects to start soon

"We will conduct such review expeditiously in accordance with the law with a view to meeting essential needs for transport infrastructure. We will review the Southeast Kowloon reclamation in an equally vigilant and cautious manner," he said.

On phase three of the Central reclamation project, Mr Suen said the judicial review and the court judgment are not against the relevant outline zoning plan.

Despite this, the Government completed a review in November last year and has confirmed that the project can meet the three tests previously laid down by the High Court.

"Compared with the Court of Final Appeal's widened definition, we are confident that the Central reclamation can meet the legal requirements," he added.

Mr Suen pledged that the Government will promptly ascertain, in the light of the court judgment, that the Central reclamation meets the single test as well as other relevant factors such as the cost and related considerations.

Central project reasonable, justified

He also stressed that the project is reasonable and justified to meet essential transport infrastructure needs.  Moreover, it has undergone due and diligent scrutiny, with the extent of reclamation reduced from 32 hectares to 18 hectares.

The hearing on the Central reclamation judicial review will take place from February 9 to 12.

Mr Suen said the Government respects the rule of law as always, and will continue to suspend the marine piling and reclamation works until the legal proceedings have taken their course.

"However, we note that the court has in its judgment given guidance on the timing of judicial review challenge," he noted.

Reconsideration of judicial review urged

The court has emphasised that there must not be any undue delay in applying for judicial review against any reclamation proposal and that it is of obvious importance that the earliest opportunity for any challenge to a reclamation proposal should be promptly taken or else the courts have the discretion to refuse relief.

"We wish to point out that Central Reclamation Phase 3 was first proposed in 1998. It has undergone due and diligent scrutiny. Works started in February last year whereas the Society for Protection of the Harbour only applied for judicial review against the project in September," Mr Suen said.

"In view of this, we hope the Society for the Protection of the Harbour will reconsider whether it should continue to proceed with the judicial review."

Town planners welcome judgment

The Town Planning Board welcomed the judgment, saying that in lodging the appeal last July, it had no intention of saving the Wan Chai North Outline Zoning Plan.

It said it only wished to seek a clarification from the court on the interpretation of the ordinance in view of the significant implications of such an interpretation on the planning and development of harbour-front areas.

The judgment provides clear guidance for the board in planning harbour-front areas.