PLC Paper No. CB(1) 3/97-98
(These minutes have been seen by the Administration
and cleared with the Chariman)
Ref: CB1/BC/6/96

Bills Committee on Protection of the Harbour Bill

Minutes of the meeting
held on Friday, 30 May 1997,
at 8:30 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
    Hon IP Kwok-him
    Hon TSANG Kin-shing

Members absent :

    Dr Hon Samuel WONG Ping-wai, OBE, FEng, JP
    Hon James TIEN Pei-chun, OBE, JP
    Dr Hon LAW Cheung-kwok

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

Attendance by invitation :

For Agenda Item I

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 LEE Yu-sung
Senior Assistant Legal Adviser
Mr Daniel HUI
Senior Assistant Secretary (1)7

I. Discussion with Town Planning Board (TPB)

(LegCo Paper No. CB(1)1726/96-97 and CB(1)1727/96-97)

Professor Anthony Walker presented TPB’s further submission on the Bill as set out in the information paper. He said that under the current arrangement, District Boards would be consulted on reclamation proposals. In parallel with this action, and as provided in the administrative arrangement between the Administration and TPB, a draft outline zoning plan (OZP) on the proposed reclamation would be gazetted for the public to lodge objections. As TPB members did not have time to carry out public consultation personally, they would consider views collected in the consultation conducted by the Administration. TPB considered the existing arrangement on public consultation satisfactory. In addition, although TPB was not responsible for strategic planning, the Administration had sought advice from the Board on the Territorial Development Strategy Review (TDSR).

2. The Chairman enquired if there was a formal agreement on the arrangement under which the Administration would prepare a list of all future reclamation proposals for TPB’s consideration (paragraph 6 of TPB’s information paper). Professor Walker replied that the list would serve as an early warning system. If TPB objected to any of the reclamation proposal on the list, the Administration would not proceed with the reclamation. The Administration’s commitment on this arrangement had been recorded in the minutes of the Board’s meeting.

3. Ms Christine LOH commented that it would be more appropriate to give statutory power to TPB in overseeing reclamation as administrative arrangements were non-statutory and liable to change.

4. Professor Walker advised that the Administration’s commitment to the adminsitrative arrangement had been recorded in TPB’s official records of meetings and implementation of the administrative arrangement had been smooth so far.

5. As regards Mr Edward HO’s proposal for including Victoria Harbour as a specified land use in an OZP, Professor Walker said that TPB supported the proposal as a means for formalizing the arrangement under which TPB would examine the OZP of a reclamation before approval for reclamation would be given under the Foreshore and Sea-bed (Reclamations) Ordinance.

6. Ms Christine LOH enquired whether TPB supported legislative amendments to empower the Board to oversee reclamation. Professor Walker replied that TPB had not deliberated the question formally but the Board would support an approach along the line of Mr Edward HO’s proposal.

II. Discussion with the Administration

(LegCo Paper No. CB(1)1748/96-97(01))

7. The Principal Assistant Secretary for Planning Environment and Lands (PAS/PEL) tabled the Administration’s response to the six possible scenarios developed from the discussions on the Bill and advised that only options 5 (i.e. Mr Edward HO’s proposal for specifying Victoria Harbour as a land use in an OZP) and 6 were acceptable. There were two possible ways to implement option 5, neither of which required legislative amendment. However, this option would be preempted if the Bill was enacted.

8. Ms LOH considered that clause 3 of the Bill could still be enacted even if the Administration proceeded with implementation of option 5. PAS/PEL responded that clause 3, if enacted, could lead to a lot of litigation. In the absence of objective criteria in clause 3 for TPB to base its decisions on reclamation proposals, TPB might be subject to challenge in court and the result of litigation would be unpredictable. Such a situation would be unacceptable as reclamation of the harbour had an important function in the economic development in Hong Kong.

9. The Chairman enquired about the reasons for the Administration’s rejection of option 4 in which clause 3 would be deleted and clause 4 would be amended to replace the Legislative Council with TPB as the approving body on reclamation. PAS/PEL responded that the amended clause 4 of the Bill would alter the relationship between TPB and the Governor in Council. Under the existing arrangement, the Governor might direct TPB to prepare OZPs, including OZPs on proposed reclamation. Under the revised clause 4, the Governor would submit reclamation proposals to TPB for approval. Moreover, no details on the submission and appeal procedures were available in the proposed amendment to clause 4 of the Bill.

10. Mr Edward HO opined that if Victoria Harbour was specified as a land use in an OZP, the notes to the OZP could provide that the harbour was an area to be protected. This could then achieve the effect of a presumption against reclamation. PAS/PEL responded that if option 5(b) in the Administration’s paper (LegCo Paper No. CB(1)1748/96-97(01)) was to be implemented, a planning study on reclamation of the harbour would be conducted. Findings of the study would be submitted to TPB for consideration and approval. Thereafter, an OZP covering the whole Victoria Harbour, together with notes to the OZP as mentioned by Mr HO would be prepared. Future reclamation of the harbour would then be a change to this OZP and would be subject to TPB’s approval under the Town Planning Ordinance (TPO). The notes to an OZP would be considered by TPB in the course of examining a change to an OZP.

11. PAS/PEL further advised that the procedures for implementing option 5(a) in the Administration’s paper was that the Administration would prepare a list of reclamation proposals and submit to TPB for consideration. For those reclamation proposals supported by TPB, the Administration would consult the public including District Boards. OZPs on the proposed reclamations would also be gazetted for the public to lodge objections. TPB would consider the objections to the reclamation proposals before making a decision. A reclamation proposal would be dropped if TPB did not support it.

12. Ms LOH invited members to support clause 3 and pointed out that the extent of reclamation in the harbour had not reduced despite the existence of the administrative arrangement between the Administration and TPB on reclamation. The crux of the problem was that there was no effective mechanism to control excessive reclamation in the harbour. She believed that the Administration would still object to clause 3 even if details which the Administration had to follow in approving reclamation projects were specified, claiming that such a clause would put processing of reclamation proposals under unnecessary restraints. As previously advised by CONS/LS, if the Administration had considered alternatives to reclamation and concluded that reclamation was the last resort, the Administration could process the reclamation proposal in the same way as it was currently doing. Furthermore, even if there might be judicial review on reclamation decisions, the court would not simply replace the Administration’s decision with the court’s decision.

13. PAS/PEL advised that the full effect of the administrative arrangement between the Administration and TPB had not been realized because the Administration had committed not to propose major reclamation projects before 1 July 1997. As regards the presumption in clause 3, the Attorney General’s Chambers (AGC) had advised that since the clause had not specified the conditions under which the presumption would be considered satisfied, a lot of litigation might arise if the clause was enacted.

14. The Chairman enquired about the reasons for the Administration’s failure to consult the public in the past on reclamation proposals even though such a mechanism was allowable under procedures provided in TPO. PAS/PEL replied that the Administration had consulted the public on proposed reclamations in various contexts, for example, in the context of construction of the new airport. Public comments were mixed but the majority view supported the reclamation proposals. The public became more concerned about reclamations in the harbour when some of the projects were nearing completion and became visible in 1995. Subsequently, the Administration had reviewed the subject of public consultation on reclamation.

15. In response to the Chairman, PAS/PEL agreed to provide an information paper addressing the following points :

  1. The relevant sections of ordinance(s) which provided for the arrangements proposed in option 5(a) of the Administration’s paper;

  2. The time frame for implementing option 5(b) of the Administration’s paper;

  3. The circumstances under which the Administration would revise the procedures proposed in options 5(a) and 5(b); and

  4. The Administration’s response to Ms Christine LOH’s proposed amendment to clause 4 to replace the Legislative Council with TPB as the approving body for reclamation proposals.

(Post meeting note: The Administration’s response to these points was tabled at the meeting on 2 June 1997 and has been circulated to members vide LegCo Paper No. CB(1)1786/96-97 dated 4 June 1997)

III. Any other business

16. Members agreed that the next meeting would be held on 2 June 1997 at 12:30 pm to wrap up discussions on the Bill.

17. The meeting ended at 9:25 am.

Provisional Legislative Council Secretariat
3 July 1997

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