Protection of the Harbour Ordinance

The Protection of the Harbour Ordinance, Cap. 531, is an ordinance in the Hong Kong Law that aims to limit land reclamation in the Victoria Harbour.

Content

The ordinance states, in section 3, that:

#"The harbour is to be protected and preserved as a special public asset and a natural heritage of Hong Kong people, and for that purpose there shall be a presumption against reclamation in the harbour."
#"All public officers and public bodies shall have regard to the principle stated in subsection (1) for guidance in the exercise of any powers vested in them." [cite web|url=http://www.legislation.gov.hk/blis_ind.nsf/e1bf50c09a33d3dc482564840019d2f4/aedef9823e95e4e248256529002902ee?OpenDocument|title=Bilingual Laws Information System, Cap. 531 Section 3]

History

The ordinance was proposed by the Society for Protection of the Harbour in 1996 and presented to the Legislative Council by Christine Loh. The bill was passed on 1997-06-27, and applied to the area of the harbour around Central. On 1999-11-03 the Secretary for Planning, Environment and Lands moved for an amendment to the ordinance, which made it apply to the entire area of the Victoria Harbour as definied by Schedule 3 of the Interpretation and General Clauses Ordinance (Cap. 1).cite web|url=http://www.harbourfront.org.hk/eng/content_page/protection.html?s=2#1|title=Protection of the Harbour Ordinance and the Court of Final Appeal Judgment|publisher=Harbour-front Enhancement Committee]

Reclamation controversy and judicial review

The Government proposed the Central and Wan Chai Reclamation project in the 1980s, long before the inception of the ordinance. When the ordinance was passed, the first phases for Central and Wan Chai were already near completion. The ordinance does not have effect on those projects, since it is stated in Section 4 of the ordinance that the ordinance does not apply to reclamation projects authorized before the ordinance commenced. [cite web|url=http://www.legislation.gov.hk/blis_ind.nsf/e1bf50c09a33d3dc482564840019d2f4/fca3af9fb55766594825652900295975?OpenDocument|title=Bilingual Laws Information System, Cap. 531 Section 4] However, when the Government later planned to start the remaining phases of the reclamation, conservationists saw the ordinance as a method to stop the projects.

The Society for Protection of the Harbour applied for a stay of order and judicial review on September 25 2003, prohibiting the government from continuing with the third phase of the Central reclamation project.

The SPH requested judicial reviews on the Reclamation, on February 27 2003 and September 25 2003 respectively. On October 6 2003 the High Court announced that the society had failed in its bid to get hold of a court order to provisionally halt work ahead of December's judicial review, and so the Government may proceed with the Central Reclamation. The government resumed work to reclaim 230,000 m² of the harbour.

On September 1 2004 the Court of Final Appeal rejected the Town Planning Board's proposal on the draft Wan Chai North outline zoning plan (OZP), and the Wan Chai Development Phase 2 had to be reviewed. [ [http://www.hplb.gov.hk/reclamation/eng/basic/central_chronology040331.htm Chronology of Events Relating to Central Reclamation Phase III ("CRIII")] ] [Teddy Ng, [http://www.thestandard.com.hk/news_detail.asp?pp_cat=&art_id=28344&sid=&con_type=1&d_str=20030926&sear_year=2003 Bid to halt harbour work] , The Standard, September 26 2003]

The three tests

On 2003-07-08 Madam Justice Chu of the High Court laid down three tests regarding the presumption made in Section 3.1 of the ordinance, which are:

#Compelling, overriding and present need
#No viable alternative
#Minimum impairment

The tests are carried out on a per-case basis, not only on the project-in-question's purpose, but also on its extent. This resulted in the Government and those concerned often citing the three tests to justify or dejustify reclamation projects under planning. [cite news|title=海濱長廊擬中環直達北角|publisher=Ming Pao|date=2008-02-21]

References