The Society for Protection of the Harbour went to court in the past in order to protect and preserve a natural heritage and public asset of Hong Kong people. That is Victoria Harbour, half of which has already disappeared to reclamation. Each step we took was strategic, with the ultimate aim of changing the way the government looked at development of the waterfront.
First, we worked with the Legislative Council in 1996-1997 to get the Protection of the Harbour Ordinance passed. Second, in 1997, we successfully lobbied the Provisional Legislature not to delete this piece of legislation, as the executive had wanted to do. Third, in 1998-1999, we worked with the secretary for planning, environment and lands to expand the area of protection by amending the ordinance.
Fourth, we lobbied the Town Planning Board (TPB) on many occasions to minimise reclamation in various town plans. Fifth, we worked with many people and groups to provide alternative ideas to reclamation.
It was only when the TPB made the decision to proceed with the Wan Chai reclamation in 2002 that the society had no choice but to litigate. We were sure that in making the plan, the TPB had ignored its duties under the ordinance.
That first court case set in motion a series of cases that eventually led to the ordinance receiving a final interpretation this year from the Court of Final Appeal.
We felt we had to litigate over the Central reclamation project - which was approved before the Wan Chai plan - because the first series of court cases showed that the Central plan had been prepared on the basis of a fundamental error of law. Thus, in our view, it had to be redone in order to restore legal validity to the scheme.
Our argument was that the executive on its own was not empowered to redo the plan because the TPB was the only town planning authority in Hong Kong. This was the whole point of the Central reclamation litigation. The High Court decided the executive did not need to send the flawed plan back to the TPB, because the executive could perform the role of reviewing the Central plan.
In considering whether there are good legal grounds for an appeal, the society is now taking legal advice about the powers of the chief executive in council (representing the executive) in town planning. This may well be an extremely important point of law that could have wide implications for the whole town planning process.
If we should appeal, it will be to seek clarification on legal questions.
What of the 18 hectares of planned reclamation in Central that the government wants to proceed with? The court ruling does not touch on whether the government is right in claiming that this is the minimum amount necessary.
It should not be overlooked that the Central plan includes 1 million sq ft of reclamation that is not needed by the Central-Wan Chai bypass. Furthermore, 5.1 hectares are for commercial use and could well be sold for development. Had these aspects of the plan been reviewed in accordance with the ordinance, they would likely have been found not in compliance with it. Therefore, the public still has the option of urging the government to consider reducing the size of the reclamation. The society certainly believes much more can be done.
The problem with the Central reclamation plan has never been that the government could not re-think the plan with a view to minimising damage to the harbour. The problem is that the government had already given out a $3.8 billion reclamation contract and prefers not to change things.
If Hong Kong could start over again, looking at a minimal reclamation plan for Central and Wan Chai, we are sure that much better ideas could be found to deal with traffic congestion and to provide a waterfront promenade. The reason Hong Kong has not been given an opportunity to do so has more to do with bureaucracy than anything else. What hurts is not losing the court case but the loss of opportunity to do things better.
What of the government's plan to form a Harbour Front Advancement Advisory Committee? We urge the public to continue to voice their concerns to both the government, TPB and this new committee. There are many problems in our planning process that have resulted in our harbourfront being the wasteland that it is today.
To change things fundamentally requires a complete overhaul of both the legal and administrative practices related to strategic as well as town and transport planning. This is long-term work that requires a high level of civic participation.
There will be times when the right thing to do is to say 'No' to the executive authorities and to powerful interests. That voice can only come from the people.
Christine Loh Kung-wai is chairwoman of the Society for Protection of the Harbour and runs the think-tank Civic Exchange
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