LegCo Paper No. CB(1) 1792/96-97
(These minutes have been seen by the Administration)
Ref: CB1/BC/6/96

Bills Committee on Protection of the Harbour Bill

Minutes of the meeting
Tuesday, 13 May 1997, at 10:30 am
in Conference Room A 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

Members absent :

    Dr Hon Samuel WONG Ping-wai, OBE, FEng, JP
    Hon James TIEN Pei-chun, OBE, JP
    Hon IP Kwok-him
    Dr Hon LAW Cheung-kwok
    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
General Manger (Planning) (Acting)
Marine Department
Senior Environmental Protection Officer
Environmental Protection Department

Attendance by invitation :

For Agenda Item II

Town Planning Board

Professor Anthony Walker
Mr Edward C PONG
Mr C N Brooke
Professor Anthony M J Cooray
Ms Esther W F CHAN

Clerk in attendance :

Ms Estella CHAN
Chief Assistant Secretary (1)4

Staff in attendance :

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

I Confirmation of minutes

(LegCo Paper No. CB(1)1564/96-97 and 1565/96-97)

The minutes of the meetings held on 21 and 24 April 1997 were confirmed.

II Discussion with Town Planning Board (TPB)

(LegCo Paper No. CB(1) 1492/96-97(01)

2. Professor Anthony Walker presented TPB’s views as set out in its written submission. In essence, TPB held a neutral attitude towards reclamation and considered harbour reclamation part of an overall effort in the provision of land for housing, transportation, recreation and commercial development needs. TPB had three particular concerns on the Bill :

  1. A legal presumption against reclamation would create a constraint in the planning process, which required much flexibility in order to cater for the rapid development in Hong Kong. The Bill did not provide clear objective criteria as regards how a reclamation proposal could be approved under the presumption, thereby creating difficulties for the Administration in processing reclamation proposals. A restriction only within the Victoria Harbour would also put pressure on the development of other areas in Hong Kong.

  2. Empowering LegCo to approve reclamation proposals would upset the division of responsibilities between the Executive and the Legislature. Moreover, with the lack of technical expertise in LegCo and its heavy workload the approval process might be delayed, hindering Hong Kong’s development. As reclamation was one of the many complex issues related to a development project, it would be counter-productive if reclamation was singled out for approval by LegCo. Under the existing system, LegCo already had the power to reject funding requests for reclamation projects.

  3. Since late 1995, there had been an administrative arrangement between the Administration and TPB whereby reclamation projects would not be authorized by the Administration under the Foreshore and Sea-bed (Reclamations) Ordinance (FS(R)O) until after completion of the statutory planning procedures including preparation and exhibition of outline zoning plans (OZP) and consideration of objections under the Town Planning Ordinance (TPO). The Governor in Council would also consider objections under FS(R)O and TPO before making a decision on reclamation. The Administration was taking action in transforming the Administrative arrangement into a statutory requirement.

3. Mr C N Brooke supplemented that the Administration’s action of transforming the administrative arrangement into a statutory requirement should be able to address the concerns of the community in overseeing harbour reclamation projects. TPB considered a presumption against reclamation a controversial suggestion.

4. Members noted that an administrative arrangement was different from statutory requirement and enquired whether legislative proposals were in the pipeline and whether TPB had the resources to take on the statutory duty of overseeing reclamation proposals. Professor Walker replied that he did not know about the legislative timetable. As regards resources TPB was at present overseeing reclamation plans in accordance with the administrative arrangements for reclamation work, and there should not be any resources problem if this function became statutory. Mr Brooke added that at the last TPB meeting, the Secretary for Planning, Environment and Lands had indicated his support for changing the administrative arrangement on reclamation work into a statutory requirement.

5. As regards whether TPB saw any merits in having an independent chairman and secretariat if it was given the statutory power of overseeing reclamation projects, Professor Walker responded that TPB had not formally considered these suggestions, but his personal view was that TPB members recognized the benefit of an independent secretariat for the independent functioning of the Board.

6. Ms Christine LOH pointed out that under the current legislation, TPB’s statutory role was limited to examination of OZP submitted to it by the Administration. Furthermore, TPB had no capability of drawing alternative plans and could only be responsive to any initiative of the Administration. TPB therefore neither had the authority nor the resources in overseeing territorial planning. Professor Walker agreed that a strict interpretation of the present law would mean TPB had no role to play in territorial planning. However, the Administration had recently implemented administrative arrangements on reclamation work under which TPB could advise on reclamation plans before they were approved. Moreover, TPB could and in fact had taken the initiative of identifying a particular problem area and asked for a review by the Administration in order to put up proposed changes in OZP. On alternative plans, Mr Brooke said that TPB did not necessarily agree with OZP prepared by the Administration and could ask the Administration to put up alternative plans.

7. Ms LOH commented that TPB would need to be drastically reorganized before it could have the authority and ability to oversee territorial planning and this process would take a long time. The Bill therefore had to go ahead before any permanent solution was in place.

8. Professor Anthony M J Cooray remarked that planning was a complex process and a lot of flexibility was required in drawing up development plans. Most countries had both statutory and non-statutory planning systems. In the United Kingdom, more flexibilities were being provided to the government on planning issues. In Hong Kong, territorial planning was carried out by the Administration and regional planning was overseen by TPB. In fact OZP took precedence over territorial plans because OZP were statutory plans. TPB could ignore a territorial plan while making a decision on OZP if considered necessary. Professor Cooray emphasized that reclamation had to be viewed in the context of strategic planning. A presumption against reclamation would restrain the Administration’s flexibility in performing strategic planning. The preferred choice was to reorganize TPB so that it could be charged with the duty of overseeing territorial planning. He remarked that there was no other country with a legal presumption against reclamation.

9. Ms LOH said that every country had different circumstances. While reclamation might never be a problem in other countries, the extent of harbour reclamation in Hong Kong would soon become a problem. The presumption against reclamation was not a new idea as Hong Kong had similar provisions for protection of country parks under the Country Park Ordinance (Cap 208). The extent of harbour reclamation proposed in the Territorial Development Strategy Review (TDSR) was so large that a presumption against reclamation was necessary in order to present excessive reclamation.

10. The Chairman commented that a presumption against reclamation was different from prohibition of reclamation. With the presumption, the Administration could still proceed with reclamation if it was satisfied that it had considered other alternatives and the reclamation work was the last resort in addressing a problem. Professor Walker responded that TPB understood that the presumption was not equivalent to prohibition but considered that it would be going too far to have a presumption against reclamation. This might cause further delays in the planning process. Moreover, as there was no objective criteria in determining whether a reclamation proposal should be approved under the presumption, there would be difficulties in assessing reclamation proposals.

11. Ms LOH enquired about the reasons for TPB’s preference in protecting country park areas but not the Victoria Harbour. Professor Walker replied that TPB had not discussed whether the country park or the harbour was more important for protection. However, the country park area was a land use and any change to it was a change of land use; therefore TPB was involved in considering the relevant OZP if there was any proposed change to the country park area.

12. Mr Edward HO enquired whether it was possible to specify Victoria Harbour as a land use in OZP so that future reclamation in the harbour would be a change of land use and TPB would then be the legitimate body to approve reclamation proposals. Professor Walker replied that TPB had not discussed this option although it appeared possible.

13. The Chairman enquired whether public consultation was conducted on reclamation projects under the administrative arrangement agreed between TPB and the Administration, and if there was public consultation, whether it should be conducted by TPB or the Administration. Professor Walker responded that some public consultation was conducted under the existing arrangement but he would consult other Board members and provide a written reply after the meeting.

14. The Consultant of Legal Service Division (CONS/LS) pointed out that paragraph 8 of TPB’s information paper seemed to imply that the Bill covered any reclamation in all Hong Kong water areas, but in fact the Bill covered reclamation in the Victoria Harbour only.

III Discussion with the Administration

(LegCo Paper No. CB(1) 1563/96-97)

15. Referring to paragraph 5 of the information paper, Ms LOH enquired whether the Administration considered public consultation on reclamation work adequate and the territorial planning process problem-free. The Principal Assistant Secretary for Planning, Environment and Lands (PAS(PEL) responded that the main point referred to was that the Administration had received many commented from the public on the TDSR and was in the process of examining these comments . It would be unfair to pass the Bill at this stage as it would pre-empt the outcome of TDSR.

16. Members pointed out that although the Administration had initiated legislation to protect country park areas under the Country Parks Ordinance (Cap 208), the Administration was opposed to the Bill. They asked whether this was a conscious policy of the Administration. PAS(PEL) replied that there were specific reasons for protecting country park areas. The Administration too was committed to protection of the harbour but the question was with respect to the method of protection and the point of balance. The Administration had already proposed legislation protecting certain coastal areas under the Marine Parks Ordinance (Cap 476) and there was legislation for the protection of water qualities in certain water areas around Hong Kong. However, the coast lines on the two sides of Victoria Harbour were of particular significance to Hong Kong. Other than as Hong Kong’s heritage, the harbour served particular functions related to recreation, transportation, housing and other development purposes which were not the case for country park areas.

17. Members enquired whether there were any proposals from the Administration for improving the existing system of territorial planning, and the timetable for implementing the proposals. PAS(PEL) replied that a white bill containing legislative amendments to the Town Planning Ordinance to address weaknesses in the current planning process was released for public consultation in July 1996. Public comments on the white bill were being analysed and would be incorporated into a blue bill. The Administration aimed to introduce the Bill in 1998. At the end of 1995, the Administration agreed with TPB on an administrative arrangement whereby the Governor in Council would only approve reclamation work after TPB had endorsed the OZP on the reclaimed land. The Administration was considering the need for incorporation of this administrative arrangement into the Town Planning (Amendment) Bill (TP(A) Bill).

18. Members expressed concern that when the Administration’s legislative proposal became law in 1998, harbour reclamation projects proposed in TDSR would have obtained all necessary approval under the existing legislation, thus defeating the purpose of protecting the harbour from excessive reclamation. PAS(PEL) responded that time was required for preparation of the TP(A) Bill which covered a wide scope of issues including reclamation. However, the administrative arrangement for reclamation work was already in place and all harbour reclamation would be covered.

19. The Chairman requested a copy of the Administrative arrangement between the Administration and TPB on reclamation works and the relevant press release.

20. Mr HO enquired about the Administration’s response to the proposal for Victoria Harbour to be considered as a land use under OZP, so that future reclamation of the harbour would be a change of land use and TPB would be the legitimate body to oversee harbour reclamation work. The advantage of this proposal was that its implementation required no legislative amendment. The Chairman remarked that if this approach was acceptable, the Administration should provide a timetable for its implementation. PAS(PEL) advised that this was a possible approach but the Administration would need to examine it thoroughly and provide a written reply after the meeting.

21. Referring to paragraph 7 of the Administration’s information paper, Ms LOH requested an information paper on the respective roles and functions of different Government departments in processing reclamation proposals under the Foreshore and Sea-bed (Reclamations) Ordinance. PAS(PEL) agreed to provide the requisite information paper and clarified that paragraph 7 of the Administration’s paper aimed at highlighting difficulties which the presumption in clause 3 of the Bill would create for Government officers in processing reclamation proposals, as there was no objective criteria for determining the conditions under which reclamation proposal could be approved.

22. The Chairman opined that the procedures and considerations for processing a reclamation proposal would be the same whether or not there was any presumption against reclamation. The Administration should have considered alternatives other than reclamation before making a decision under the existing system. He asked the Administration to illustrate with an simple how the processing of a reclamation proposal would differ under the existing legislation and under clause 3 of the Bill. PAS(PEL) agreed that the factors to be considered for a reclamation proposal would be the same whether or not there was the presumption, but since there were no objective criteria in defining how the presumption would be satisfied, there would be difficulties in its implementation.

23. CONS/LS advised that the legal effect of clause 3 was in providing a supervisory capacity to the courts. It did not purport to specify practical procedures for public officers to follow in carrying out their duties. In future, if any citizen was concerned that the principle in clause 3 had been ignored, the court’s assistance could be sought. The court would not substitute its decision for the decision of the Administration but would ensure that the Administration had given due consideration to the statutory presumption. Clause 3(2) required the Administration to take all relevant issues into account and balance the situation before making a decision on reclamation of the harbour. If LegCo had the power to approve reclamation proposals (clause 4), LegCo would also be subject to clause 3 of the Bill. Ms LOH remarked that if clause 3 was passed, a challenge against the Administration’s decision on reclamation could be by way of a judicial review or suing for breach of statutory duty.

24. Ms LOH enquired whether the Administration’s stance would be different if there was a time limit for the Bill to be repealed. PAS(PEL) responded that it would be up to LegCo to decide whether there should be a time limit for the Bill to be repealed, having regard to the overall interest of Hong Kong. However, the Administration remained opposed to the Bill as it was considered unnecessary.

25. The Chairman requested the Administration to provide the time schedule for completion of the proposed reclamation in the harbour as set out in the TDSR, including the intended timing for gazetting the reclamation proposals and promulgating the OZP.

IV Any other business

26. At the request of the Chairman, CONS/LS would prepare a note comparing provisions in Country Parks Ordinance (Cap 208) and Marine Parks Ordinance (Cap 476) relating to protection of specific areas in Hong Kong with those of the bill.

27. Ms LOH tabled a paper setting out three options of proposed Committee stage amendments to clause 4 of the Bill, which specified a time limit for the clause to be repealed. She invited members to consider the options and make a decision at the next meeting.

    (Post-meeting note : Ms LOH’s paper has been circulated to members vide LegCo Paper No. CB(1) 1611/96-97 dated 16 May 1997)

28. In order to allow sufficient time for the Administration to prepare the information as requested in the meeting, members agreed that the next meeting be rescheduled for Thursday, 22 May 1997 at 2:30 pm.

29. The meeting ended at 12:30 pm.

Legislative Council Secretariat
5 June 1997

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