Hign Court's judgement on the draft WanChai OZP (Sep 2003)

We respect the judgement of the High Court regarding the judicial review lodged against the decision of the Town Planning Board on the Draft Wan Chai North Outline Zoning Plan No. S/H25/1.  The judgement sets out the basis on which the Protection of the Harbour Ordinance should be interpreted.  Of particular importance is the application of three tests in evaluating reclamation proposals within the context of the “presumption against reclamation in the harbour” under Section 3 of the Protection of the Harbour Ordinance.  The three tests are, namely the compelling, overriding and present need test; the no viable alternative test and the minimum impairment test.


No doubt the interpretation of the Protection of the Harbour Ordinance is a matter for the court and we note the Town Planning Board’s decision to lodge an appeal against the High Court’s judgement.  While the present judgement is binding, how the law should eventually be interpreted remains to be seen.


We fully agree that Victoria Harbour is a precious natural asset and should be protected and preserved.  We also firmly believe that the waterfront should be of high quality design and vibrant, and should be easily accessible by the public – a feature that will surely contribute to Hong Kong’s aspiration to become Asia’s world city.  However, there are divergent views among members of the Institute.  Some  members welcome the judgement which clarifies the interpretation of the Protection of the Harbour Ordinance.  With successive reclamation over the years, time has come to take a more prudent approach in future reclamation around the harbour.   They consider that the waterfront can still be improved with imaginative design. 


Others are very concerned about ramifications of the judgement on the future planning of waterfront around the harbour in view of the stringent “compelling, overriding and present need test”.  They consider that it will be easier for roads, utilities and other infrastructure that can be justified by quantifiable data, to satisfy the three tests.  On the other hand, good planning intention, good urban design and good-quality public space to cater for activities that are conducive to fostering the vibrancy of the waterfront are inherently subjective and “unquantifiable”.  They would hence be extremely difficult to pass the tests.  However, they are of utmost importance to the well-being of the community.  It is not hard to imagine the future waterfront featuring mostly roads, utilities and infrastructure and opportunities to improve the existing waterfront along North Point and Quarry Bay, which is dominated by the Island Eastern Corridor, will be severely curtailed.  It may be necessary to revisit the Protection of the Harbour Ordinance if it is eventually confirmed that interpretation should indeed follow that of the High Court.


We believe that the general public’s views would be an appropriate test on the “need”.  If the public is able to submit positive representations on new planning proposals in addition to lodging objections, the Town Planning Board would be in a better position to judge whether the proposed harbour reclamation is indeed meeting the community's aspiration.  In giving precedence to Protection of the Harbour Ordinance, the Town Planning Board should then abandon any proposed harbour reclamation if there are substantial objections relative to support.


The wider implications that the judgment may have on other reclamation projects like South East Kowloon Development and Central Reclamation Phase III, which are currently at different stages of planning and development, are also of concern.  Some proposals have been approved under the Foreshore and Seabed (Reclamations) Ordinance and the Town Planning Ordinance and others with funding approved by the Legislative Council.  If the High Court judgement necessitates the reconsideration of all these proposals by the Town Planning Board, it will delay their implementation and some projects, no matter how well justified, may have to be abandoned because it would be very difficult to satisfy the stringent tests.  We urge that whether the judgement would have legal implications on other on-going Harbourfront projects should be clarified in the Appeal lodged. 



Public Affairs Committee

Hong Kong Institute of Planners

4 September 2003