PLC Paper No. CB(1) 4/97-98
(These minutes have been seen by the Administration
and cleared with the Chairman)
Ref: CB1/BC/6/96

Bills Committee on Protection of the Harbour Bill

Minutes of the meeting
held on Monday, 2 June 1997,
at 12:30 pm in Conference Room B of the Legislative Council Building

Members present :

    Hon Albert CHAN Wai-yip (Chairman)
    Hon Edward S T HO, OBE, JP
    Hon Howard YOUNG, JP
    Hon Christine LOH Kung-wai
    Hon IP Kwok-him
    Dr Hon LAW Cheung-kwok

Members absent :

    Dr Hon Samuel WONG Ping-wai, OBE, FEng, JP
    Hon James TIEN Pei-chun, OBE, JP
    Hon TSANG Kin-shing

Public officers attending :

Mr Stanley WONG
Principal Assistant Secretary for Planning,
Environment and Lands
Mr Raymond CHIU Tat-loi
Government Town Planner (Technical Services)
Planning Department

Clerk in attendance :

Ms Estella CHAN
Chief Assistant Secretary (1)4

Staff in attendance :

Mr Jonathan Daw
Consultant (Legal Service)
Mr Daniel HUI
Senior Assistant Secretary (1)7

I. Discussion with the Administration

(LegCo Paper No. CB(1)1786/96-97)

The Principal Assistant Secretary for Planning Environment and Lands (PAS/PEL) presented the Administration’s response to the points raised at the last meeting as set out in the Administration’s information paper.

2. The Chairman noted that section 3(1)(a) of the Town Planning Ordinance, Cap.131, (TPO) empowered the Town Planning Board (TPB) to prepare draft lay-out plans of "such areas of Hong Kong as the Governor may direct" and the Administration’s view was that "areas of Hong Kong" covered both land and sea. He enquired whether the Governor had issued any directive on the definition of "areas of Hong Kong" with respect to s.3(1)(a) of TPO. PAS/PEL responded that the Administration’s broad interpretation of "areas of Hong Kong" was consistent with the spirit of the preamble of TPO. Moreover, the "Boundaries of the Colony" as defined in the Interpretation and General Clauses Ordinance, Cap. 1, covered both land and sea areas. As such, the Governor had the authority under s.3(1)(a) of TPO to direct TPB to prepare draft OZP for the Victoria Harbour in order to implement Mr Edward HO’s proposal. The Administration would proceed with implementation of Mr Edward HO’s proposal if the Bills Committee agreed that this approach would be a substitute for the Bill.

3. Members enquired whether a change in interpretation of "areas of Hong Kong" in s.3(1)(a) of TPO by the Administration would be subject to challenge. PAS/PEL replied that the coverage of s.3(1)(a) of TPO had remained the same since its enactment, i.e., it covered both land and sea areas of Hong Kong. In the past the Governor had only directed TPB to prepare OZP on land areas, but he could, if he wished, direct TPB to prepare OZP covering sea areas. The crux of the existing problem related to the planning procedures on reclamation because under the existing system there might be chances that reclamation would have been approved under the Foreshore and Sea-bed (Reclamations) Ordinance (FS(R)O) before OZP on the reclamation was gazetted for public objection. Implementation of Mr Edward HO’s proposal would ensure that public consultation under TPO on reclamation would be conducted prior to approval of the reclamation under FS(R)O.

4. Consultant (Legal Service) (CONS/LS) agreed that a challenge to the Administration’s interpretation of coverage of "areas of Hong Kong" would unlikely be successful because the coverage of s.3(1)(a) of TPO was wide and it was for the Governor to decide to what extent he wished to exercise his power.

5. Mr Edward HO enquired whether the OZP for the harbour would be prepared under s.4(1)(g) of TPO which specified that TPB could prepare lay-out plans to make provision for "country parks, coastal protection areas.... or other specified uses that promote conservation or protection of the environment". PAS/PEL replied that the Administration was discussing with TPB on details of implementation and proceeding along the lines of s.4(1)(g) of TPO was a possibility.

6. Mr HO suggested that the Secretary for Planning Environment and Lands (SPEL) could give an undertaking to implement his proposal at resumption of Second Reading debate on the Bill. The Administration’s undertaking would then be recorded in the Hansard. PAS/PEL responded that the undertaking would be given during resumption of Second Reading debate if members accepted that the Administration’s commitment to implement Mr HO’s proposal would be a substitute for the Bill.

7. Ms Christine LOH said that the Administration’s undertaking had to indicate that the Governor would, before 1 July 1997, direct TPB to prepare the OZP in accordance with section 3(1) of TPO.

8. The Chairman enquired about the legal consequences for the Administration to give an undertaking to the Legislature and later revoked its commitment on grounds of administrative convenience. CONS/LS advised that if the Administration chose to depart from an undertaking which it had made to the Legislature and the Administration was challenged in a judicial review, the Executive would have to explain the change of circumstances which had caused it to depart from its undertaking.

9. PAS/PEL advised that the Administration was opposed to MS LOH’s proposed amendment to clause 4 (LegCo Paper No. CB(1)1736/96-97(01) dated 29 May 1997) through which LegCo would be replaced by TPB as the approving body for reclamation proposals, for reasons stated in the Administration’s paper. In essence, the proposed amendments did not spell out the relationship between the TPO and the amendments, and this might cause confusion. Moreover, TPB had expressed the view that the Board should be consulted on proposed legislative amendments which would effect the Board’s functions under TPO.

10. The Chairman enquired whether the proposed amendments to clause 4 would have any charging effect. CONS/LS advised that the President of the Legislative Council would have to rule on the issue, taking into account the Administration’s view. Ms LOH said that she believed that her proposed amendment would have no charging effect.

11. Mr HO expressed concern that the proposed amendment to replace LegCo with TPB as the approving body on reclamation would lead to parallel legislation, as TPB was currently authorized under TPO to carry out its functions.

II. Discussion among members

12. Ms LOH said that if the undertaking to be given by the Administration at resumption of Second Reading debate on the Bill met the conditions set out in her letter to the Governor (LegCo Paper No. CB(1)1756/96-97), she would be prepared to withdraw the Bill. Otherwise the Bill would proceed.

13. Mr IP kwok-him said that he supported the Administration’s proposal which did not involve any legislative amendment and yet TPB would be authorized to scrutinize reclamation proposals.

14. Mr HO and Dr LAW Cheung-kwok both supported that the Administration should give an undertaking before resumption of Second Reading debate on the Bill. There was no need to pass the Bill if the Administration’s undertaking met the conditions set out in Ms LOH’s letter to the Governor. Mr HO supplemented that the Administration’s undertaking should indicate that the Governor would give a direction before 1 July 1997 to TPB in accordance with section 3(1) of TPO.

15. The Chairman said that the Democratic Party did not support clause 3 as the presumption against reclamation in Victoria Harbour would put pressure on development in other areas of Hong Kong thereby hampering a balanced development. As regards clause 4, it would be more appropriate for TPB, rather than LegCo, to be the approving body for reclamation. Therefore, if the Administration’s undertaking to be made before resumption of Second Reading debate on the Bill did not spell out that TPB would be the approving body for all future reclamation projects of the harbour, he would support a Committee stage amendment (CSA) to amend clause 4 to replace LegCo with TPB as the approving authority for reclamation. If the CSA to clause 4 was voted down, the Democratic Party would consider the original version of clause 4.

16. The Chairman said that the Bills Committee had completed its deliberation and a verbal report would be given to the House Committee at its meeting on 6 June 1997 recommending resumption of Second Reading debate of the Bill at the sitting on 23 June 1997. A written report would be presented to the House Committee on 13 June 1997.

17. The meeting ended at 1:30 pm

Provisional Legislative Council Secretariat
3 July 1997

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