PPLC Paper No. CB(1) 2/97-98
(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 Tuesday, 22 May 1997,
at 2:30 pm in Conference Room A
of the Legislative Council Building

Members present :

    Hon Albert CHAN Wai-yip (Chairman)
    Hon Edward S T HO, OBE, JP
    Dr Hon Samuel WONG Ping-wai, OBE, FEng, JP
    Hon Christine LOH Kung-wai
    Hon IP Kwok-him

Members absent :

    Hon Howard YOUNG, JP
    Hon James TIEN Pei-chun, OBE, JP
    Dr Hon LAW Cheung-kwok
    Hon TSANG Kin-shing

Public officers attending :

For Agenda Item I

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 Division
Mr Daniel HUI
Senior Assistant Secretary (1)7

I. Disscussion with the Administration

(LegCo Paper No. CB(1)1651/96-97)

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

2. Members noted that areas of the harbour could be included in a draft outline zoning plan (OZP) as part of the planning process under the Town Planning Ordinance (TPO) if necessary. Mr Edward HO doubted whether the non-statutory administrative arrangement between the Town Planning Board (TPB) and the Administration regarding public consultation on reclamation work could address the public’s wish for an established mechanism to control excessive reclamation. Moreover, TPB’s recommendation could still be rejected by the Executive Council (ExCo). PAS/PEL responded that under the administrative arrangement, the Administration was committed to not authorizing reclamations under the Foreshore and Sea-bed (Reclamations) Ordinance (FS(R)O) until ExCo had a chance to consider TPB’s advice on OZP on the reclamation. The Administration would respect TPB’s views but was not obliged to follow its advice.

3. As regards the progress of transforming the administrative arrangement into a statutory requirement, PAS/PEL advised that public consultation on a white bill, the Town Planning (Amendment) Bill (TP(A) Bill), had just been completed. The Administration was reviewing the comments received and considering the need for incorporation of the administrative arrangement into the TP(A) Bill before preparation of a blue bill.

4. PAS/PEL summarised the Administration’s stance on the Bill as follows :

  1. The Administration considered the Bill unnecessary as existing planning process was open and transparent, and the public had proper channels to voice their views;

  2. Under the existing system, the Legislative Council (LegCo) had the authority to reject funding requests for reclamation projects;

  3. A presumption against reclamation would create difficulties for the Administration to process reclamation proposals, because there was no objective criteria for deciding whether a reclamation proposal could be approved;

  4. Empowering LegCo to approve reclamation would upset the division of responsibilities between the Executive and the Legislature; and

  5. Harbour reclamation served a particular function on future development of Hong Kong. The Administration was examining the public’s comments on the Territorial Development Strategy Review (TDSR) and it would be unfair to pass the Bill at that stage which would pre-empt the outcome of the TDSR.

5. Members noted that the Country Parks Ordinance (Cap 208) had provisions on the protection of country parks and queried the Administration’s unwillingness to protect the Victoria Harbour. PAS/PEL replied that it was not appropriate to compare country parks with the harbour as they had different roles and characteristics. The Administration was also committed to protecting the harbour and the only disagreement was with regard to the method used and the point of balance. The Victoria Harbour had a particular role to play for economic development in Hong Kong which was not the case for country parks.

6. Referring to paragraph 11 of the Administration’s comments on the LegCo Brief on the Bill (LegCo Paper No. CB(1)1616/96-97(01)), Consultant, Legal Service Division (CONS/LS) sought clarification on the Administration’s comment that the LegCo Brief’s interpretation of section 6(1) and 6(2) of the FS(R)O was too restrictive. According to his reading of section 6(1) and 6(2) of FS(R)O, the LegCo Brief was correct in saying that only persons with legal (land or property) rights in a reclamation area could object to a proposed reclamation under the Ordinance. PAS/PEL advised that the main purpose of paragraph 11 of the information paper was to compare the views adopted in the LegCo Brief with the practice of the Administration. In practice, the Administration did consider objections to reclamation proposals from organizations which might not have a legal right in the reclamation area. For example, objections from the World Wide Fund For Nature (WWF) to the West Kowloon reclamation received in 1990 were considered and dealt with even though WWF did not have a legal right in the reclamation area. He reiterated that the Administration had taken a broad interpretation of section 6(1) and 6(2) of FS(R)O in handling objections to reclamations.

7. CONS/LS advised that the legal meaning of section 6(1) and 6(2) in FS(R)O was clear and that the former president of the Land Tribunal shared the view that only persons with a legal right in the reclamation area were entitled to compensation under FS(R)O. Reliance on the Administration’s interpretation of the law was not a satisfactory approach because the Administration’s interpretation of the law was liable to change. This would have a bearing on the channel available to the public without legal right in the reclamation area to raise objections. Ms Christine LOH commented that the Administration’s concession to the objection of an environmental group was made only out of convenience and this practice could be changed any time.

8. Referring to paragraph 12 of the Administration’s paper (LegCo Paper No. 1616/96-97(01)), Mr HO said that according to his understanding, the Green Island reclamation had not been considered by the Public Works Subcommittee of the Finance Committee and queried the Administration’s statement that the Green Island reclamation would eventually require Finance Committee’s funding approval. PAS/PEL replied that the Green Island reclamation had been gazetted under FS(R)O and 19 objections had been received. To address some of the concerns raised, two more consultancy studies on environmental protection and transport safety issues would be conducted. He emphasized that the reclamation had yet to be approved by the Governor in Council. Moreover, as this project was an item in the Public Works Programme, funding approval from LegCo would be needed in due course.

II Discussion among members

Clause 3

9. As regards the usefulness of clause 3 without clause 4, CONS/LS advised that the Bill would still be useful in imposing a duty on public officers and statutory bodies to consider alternatives other than reclamation before making a decision. The clause did not direct the public authorities as to a particular course of action. It directed them as to a principle that they had to in good faith take into account when making decisions on harbour reclamation.

Clause 4

10. The Chairman suggested a possible scenario of amending clause 4 by replacing LegCo with TPB as the body for approving reclamation proposals. Ms LOH said that this was a possible option as it would give statutory authority to TPB in overseeing strategic planning. However, the Administration might object to this proposal on the ground of it having a charging effect.

11. CONS/LS advised that in determining whether a Bill would have a charging effect, the President of LegCo would have to consider the views of the Administration. Since the Administration had held the view in response to a previous legislative proposal that requiring TPB to oversee territorial planning would have a charging effect, it was unlikely that this view would be changed. A positive authorization from the Administration would be required if TPB was to be given statutory responsibilities in overseeing reclamation.

12. CONS/LS further advised that replacing LegCo with TPB in clause 4 would fundamentally alter the statutory relationship between TPB and the Governor in Council. Moreover, the legal drafting to give effect to this amendment would be more than simply replacing the words ‘Legislative Council’ with ‘Town Planning Board’ in clause 4 because the legal implication of the clause on the TPO would need to be considered.

13. Ms LOH explained that her original legislative proposal was for TPB to scrutinize reclamation of the harbour but this had been ruled as having a charging effect and hence could not be presented as a Member’s Bill. As it might not be a totally satisfactory long term solution for LegCo to approve reclamation in the harbour, she had prepared three options of Committee stage amendments to repeal clause 4 (LegCo Paper No. CB(1)1611/96-97) after a specified period or under certain conditions. She invited members to consider the CSAs when clause 4 was being examined.

14. CONS/LS advised that members should take the following into consideration if they wished to retain clause 4 :

  1. The clause had constitutional implication as this was the first time LegCo was being mandated to take on executive action;

  2. LegCo would be subject to judicial review over its actions in this area; and

  3. LegCo should have the necessary procedures within its own systems to implement the provision. In particular, the necessary degree of experience and expertise would have to be made available within the Council in order to decide on reclamation proposals.

15. Mr IP Kwok-him opined that he did not support clause 4 of the Bill because providing executive power to LegCo in approving reclamation proposals would have the implications as highlighted by CONS/LS.

16. Mr Edward HO invited members to consider the option of including Victoria Harbour as a land use in OZP and future reclamation of the harbour would therefore be a change of land use and subject to endorsement by TPB. This approach raised less constitutional problems because it would not alter the relationship between TPB and the Governor in Council. There should also be less of a charging effect problem as TPB was already charged with the responsibility of approving the OZP. CONS/LS advised that under the existing legislation, the Administration would take into account, but had no obligation to accept, TPB’s recommendation. Mr HO’s proposal would not change this situation.

17. Ms LOH pointed out that if TPB were to be the body to approve reclamation, it should be given the ultimate authority to approve reclamation and be empowered to do so by legislation rather than by administrative arrangement.

18. The Chairman summarised the six possible scenarios developed so far as follows :

  1. To accept the entire Bill as it stood, together with Committee stage amendments to repeal clause 4 after a specified period or under certain conditions;

  2. To accept clause 3 and reject clause 4;

  3. To accept clause 3 and amend clause 4 to replace LegCo with TPB as the approving body for harbour reclamation;

  4. To reject clause 3 and amend clause 4 to replace LegCo with TPB as the approving body for harbour reclamation;

  5. To accept Mr Edward HO’s proposal to include the harbour as a land use in OZP and future reclamation of the harbour would be a change in land use in the OZP; and TPB would be the legitimate body in overseeing harbour reclamation; and

  6. To oppose the Bill totally.

19. As requested by the Chairman, the Clerk would prepare a paper summarising the six possible scenarios on the Bill. The paper would be circulated to members and the Administration for comments.

III. Any other business

20. Members noted that TPB was not able to attend the meeting as it would deliberate at its meeting on 23 May 1997 the consultation process on reclamation proposals under the administrative arrangement with the Administration. TPB’s substantive reply would be available after 23 May 1997.

21. Members agreed that the next meeting would be held on 30 May 1997 at 8:30 to decide on the way forward on the basis of the six possible scenarios so far developed from the discussions, and to conduct clause-by-clause examination of the Bill.

22. The meeting ended at 3:50 pm.

Provisional Legislative Council Secretariat
3 July 1997

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