Bills Committee on Protection of the Harbour Bill Six Possible Scenarios for Decision at the Meeting on 30 May 1997

1. To accept the entire Bill as it stands, together with Committee stage amendments to repeal clause 4 (reclamation in the harbour subject to approval by the Legislative Council) after a specified period or under certain conditions.

2. To accept clause 3 (presumption against reclamation in the harbour) and reject clause 4.

3. To accept clause 3 and amend clause 4 to replace the Legislative Council with the Town Planning Board as the approving body for harbour reclamation.

4. To reject clause 3 and amend clause 4 to replace the Legislative Council with the Town Planning Board as the approving body for harbour reclamation.

5. To accept Hon Edward HOs proposal to consider the harbour as a land use so that future reclamation of the harbour would be considered as a land use in the Outline Zoning Plan and the Town Planning Board would be the legitimate body in overseeing harbour reclamation.

6. To oppose the Bill totally.

The Administration has been requested to provide a paper setting out their views and stand with respect to each scenario, particularly with regard to the legal implications and charging effects, which will be circulated to members for consideration once available.

1. To accept the entire Bill as it stands, together with Committee stage amendments to repeal clause 4 (reclamation in the harbour subject to approval by the Legislative Council) after a specified period or under certain conditions.

Hon Christine LOH has prepared three different sets of Committee stage amendments to repeal clause 4 for members consideration (LegCo Paper No. CB(1) 1611/96-97). She explains that her original legislative proposal is for the Town Planning Board to scrutinize reclamation in the harbour but this has been ruled as having a charging effect and hence could not be presented as a Members Bill. As it may not be a totally satisfactory long term solution for the Legislative Council to approve reclamation in the harbour, the Committee stage amendments are proposed so that if the Bill is passed, the Administration could consider setting up an appropriate body to take over the Legislative Councils responsibility in this respect.

2. To accept clause 3 (presumption against reclamation in the harbour) and reject clause 4.

As to the usefulness of clause 3 without clause 4, the Legal Service Division advises that the Bill would still be effective in imposing a duty on public officers and all statutory bodies to consider alternatives other than reclamation before making a decision. Judicial review could be sought under certain circumstances if public authorities ignored the presumption. The clause does not direct the public authorities as to a particular course of action. It directs them as to a principle that they must in good faith take into account when making decisions on harbour reclamation.

3. To accept clause 3 and amend clause 4 to replace the Legislative Council with the Town Planning Board as the approving body for harbour reclamation.

This scenario fundamentally alters the statutory relationship between the Town Planning Board and the Governor in Council.

4. To reject clause 3 and amend clause 4 to replace the Legislative Council with the Town Planning Board as the approving body for harbour reclamation.

This scenario fundamentally alters the statutory relationship between the Town Planning Board and the Governor in Council but it may offer some relief to the Administrations concern about the legal proceedings that might arise in respect of the presumption against reclamation in the harbour. Procedurally, this is similar to what is being practised by the Administration and the Town Planning Board under the existing Administrative agreement for the Board to examine reclamation proposals.

5. To accept Hon Edward HOs proposal to consider the harbour as a land use so that future reclamation of the harbour would be considered as a land use in the Outline Zoning Plan and the Town Planning Board would be the legitimate body in overseeing harbour reclamation.

Under this proposal, there would be less drastic change to the statutory relationship between the Town Planning Board and the Government. The Boards decision could still be rejected by the Executive Council. Compared to scenario 4, it is anticipated that there would be less of a charging effect problem because the Board is already charged with the responsbility of approving the Outline Zoning Plan. It also raises fewer constitutional problems but still requires careful evaluation of necessary consequential legislative changes.

6. To oppose the Bill totally.

Supplementary Notes

The Legal Service Divisions advice regarding clause 4:

Constitutional implication - this is the first time the Legislative Council is being mandated to act as an approving authority for specific factual cases (other than in its established role as monitor of public finances):
The Legislative Council would be subject to judicial review over its actions in this area; and
Resource implications - the Legislative Council should have the necessary procedures within its own systems to implement the provision so that the necessary degree of experience and expertise could be applied to the reclamation issues which it is being given power to decide.

The Administration has been requested to provide a paper setting out their views and stand with respect to each scenario, particularly with regard to the legal implications and charging effects, which will be circulated to members for consideration once available.

Legislative Council Secretariat
26 May 1997

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Bills Committee on Protection of the Harbour Bill Six Possible Scenarios for Decision at the Meeting on 30 May 1997

1. To accept the entire Bill as it stands, together with Committee stage amendments to repeal clause 4 (reclamation in the harbour subject to approval by the Legislative Council) after a specified period or under certain conditions.

2. To accept clause 3 (presumption against reclamation in the harbour) and reject clause 4.

3. To accept clause 3 and amend clause 4 to replace the Legislative Council with the Town Planning Board as the approving body for harbour reclamation.

4. To reject clause 3 and amend clause 4 to replace the Legislative Council with the Town Planning Board as the approving body for harbour reclamation.

5. To accept Hon Edward HOs proposal to consider the harbour as a land use so that future reclamation of the harbour would be considered as a land use in the Outline Zoning Plan and the Town Planning Board would be the legitimate body in overseeing harbour reclamation.

6. To oppose the Bill totally.

The Administration has been requested to provide a paper setting out their views and stand with respect to each scenario, particularly with regard to the legal implications and charging effects, which will be circulated to members for consideration once available.

5. To accept Hon Edward HOs proposal to consider the harbour as a land use so that future reclamation of the harbour would be considered as a land use in the Outline Zoning Plan and the Town Planning Board would be the legitimate body in overseeing harbour reclamation.