Summary The decision of the Hong Kong Court of Final Appeal in the
Town Planning Board v Society for the Protection of the Harbour
Ltd, handed down on 9 January 2004, provides clear guidance on
the proper interpretation of s.3 of the Protection of the Harbour
Ordinance, Cap. 531. Full article Background
This was a 'leap frog' appeal direct from a decision of the Court of First Instance in which the Society for Protection of the Harbour Ltd (the "Harbour Society") successfully challenged the lawfulness of the Wanchai Reclamation Plan on the basis that the principles enshrined in s.3 of the Protection of the Harbour Ordinance ("Harbour Ordinance") had not been applied.
Section 3 of the Harbour Ordinance states:
(1) 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.
(2) All public officers and public bodies shall have regard to the principle stated in sub-s.(1) for guidance in the exercise of any powers vested in them.
The Court of First Instance rejected the submission of the Town Planning Board (the "Board") that the protections enshrined in s.3 of the Harbour Ordinance were no more than one of the material considerations to be taken into account by public planning bodies. Chu J held that in order to comply with s.3, the purpose and extent of each proposed reclamation ought to be individually assessed by reference to the three tests of (i) compelling overriding and present need, (ii) no viable alternative and (iii) minimum impairment.
Question Before The Court Of Final Appeal
The question before the Court was the proper interpretation of s.3 of the Harbour Ordinance. The Court emphasised that this was a question of great general and public importance since their interpretation of the Harbour Ordinance would apply to any reclamation proposal in the harbour.
The Board's Case
The Board's primary argument was that the presumption against reclamation was no more than a material consideration, albeit a compulsory one.
The Board argued that a common sense approach should be adopted in construing s.3 of Harbour Ordinance. That is, the presumption under s.3(1) merely creates a compulsory material consideration, and that public officers are required to pay due regard to this material consideration by undertaking a weighing exercise. Where the public benefits of the proposed reclamation are so important that they outweigh the need to preserve every part of the Harbour, then the presumption against reclamation is rebutted.
The Harbour Society's Case
The Harbour Society argued that the interpretation adopted by Chu J was plainly correct for the reasons set out in her judgment.
The Decision Of The Court Of Final Appeal
The decision of Li CJ, Bokhary PJ, Chan PJ, Ribeiro PJ and Sir Anthony Mason NPJ was unanimous.
The Court adopted a purposive approach in construing s.3. In doing so, the Court identified the purpose of the legislation was to ensure that the harbour will be protected against excessive reclamation. The Court observed that the harbour was undoubtedly a central part of Hong Kong's identity "it is at the heart of the metropolis both physically and metaphorically" and should not only be protected but preserved as well.
The Court having found that there was a statutory presumption against reclamation, then considered what would be sufficient to rebut such a presumption. The Court considered that it would be plainly wrong to interpret the presumption against reclamation as merely a compulsory material consideration and accordingly rejected the Board's approach.
The overriding public need test
The Court held that in order to implement the strong and vigorous statutory principle of protection and preservation, the presumption must be interpreted in such a way that it can only be rebutted by establishing an overriding public need for reclamation ("the overriding public need test"). Public needs would include economic, environmental and social needs of the community. A need would only be regarded as overriding if it was a compelling and present need. A compelling and present need goes far beyond something which is "nice to have", desirable, preferable or beneficial. But on the other hand, is not something in the nature of a last resort, or something which the public cannot do without. The Court stated that in future, public officers and public bodies should refer to the formulations adopted in their judgment (i.e. the overriding public need test) for the proper interpretation of s.3 of the Harbour Ordinance.
The Court also added that where there was a reasonable alternative to reclamation, an overriding need for reclamation would not be made out. Further, it would be necessary for each proposed area of reclamation to be justified separately.
As the Board had failed to adopt such an interpretation, the Court held that the Board had erred in law. Accordingly, the Board's decisions were quashed and remitted to the Board for reconsideration.
As to what the Board will decide when it reconsiders the matter now remains to be seen. It may be the case that the infrastructure associated with the Central-Wanchai Bypass may satisfy the overriding public need test but other areas such as the harbour park and waterfront promenade may not.
What also remains to be seen is the effect of this decision on the Central Reclamation Plan which is also subject to judicial review. In that matter, it was common ground that the decision of the Court of Final Appeal may consequently decide the issue of that judicial review. In that matter, the Court allowed the Government to proceed with work associated with the Central Reclamation Plan, but warned it that if the courts rule against them and the reclamation work is found to be unlawful, the work will have to be removed to the extent that it is unlawful.
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