Society for the Protection of Harbour v Secretary for Justice (20 March 2008)
Background
The declaration sought by the applicant arises out of a plan of the Hong Kong government to build a trunk road along the north shore of the Hong Kong Island to avoid future gridlock on the island 'east-west corridor'. The government proposed that the trunk road should take the form of a tunnel beneath the sea bed of the harbour and that, to build the tunnel, it would be necessary to carry out fairly extensive 'temporary' reclamation works around the Causeway Bay Typhoon Shelter.
The [Causeway Bay Typhoon Shelter] is, of course, an iconic feature of the foreshore, serving as a mooring for many small craft. Those vessels are sheltered behind long walls that rise out of the water and are known as breakwaters
A Chief Engineer in the Highway Department of the government was of the opinion that the reclamation work, being 'temporary' (i.e. would be dismantled after the completion of the tunnel) and solely for the purpose of facilitate the building of the tunnel, should be outside the ambit of the Protection of the Harbour Ordinance. The Ordinance provides (in Section 3):
“(1) The harbour is to be protected and preserved as a special public asset and a natural heritage of Hong Kong people, and for that purpose there shall be a presumption against reclamation in the harbour.
(2) All public officers and public bodies shall have regard to the principle stated in subsection (1) for guidance in the exercise of any powers vested in them.”
It is this decision that the challenge was taken out by the applicant.
Decision
The judge granted the declaration sought by the applicant namely that the Ordinance and the presumption against reclamation ('not a principle to which public officers may afford mere lip service') apply to the proposed harbour reclamation works.
It was clear that the applicant was not opposing to the construction of the trunk road or tunnel per se but was seeking to ensure that all reclamation work that diminished the harbour should meet the constraints set out in the Ordinance.
In deciding whether the works constitute “land” (and therefore “reclamation”) the judge also had this to say:
“In my judgment, what does or does not constitute 'land' for the purposes of the Ordinance does not require a geological or indeed philosophical analysis. The reasonable man can tell well enough what is or is not 'land'.
A reasonable man looks onto the harbour. At an earlier time, he saw just water. But now, above the water level, he sees a swathe – several hectares in extent – of bonded rock and gravel, of soil and sand. On the surface of that bonded swathe he sees men walking and sees machinery set down. More than that, he is told that this new geographical feature will remain in place for several years. Would he not say, and be entitled to say, that where there was water there is now 'land' or, put simply, that reclamation has taken place?”
Secondary Issue
The judge however declined to determine whether, on a consideration of all relevant materials and other evidence, the statutory presumption has been rebutted by an overriding public need demonstrated by 'cogent and convincing material'.
I have given anxious consideration to this invitation but I do not see that it falls properly within the ambit of this judicial review.
The judge noted that, while he 'sympathised' with the government's desire to dispose of all uncertainties in that proceedings, he could not see how he could render what would amount to an 'advisory' judgment because the government wished to 'clear the way' by way of a 'pre-emptive' strike. Further, the applicant had not join issue on the second point.
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