SOCIETY FOR PROTECTION OF THE HARBOUR v. SECRETARY FOR JUSTICE (ON BEHALF OF SECRETARY FOR TRANSPORT AND HOUSING)

HCAL 116/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 116 OF 2007

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Dates of Hearing : 4 and 5 February 2008

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J U D G M E N T

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Introduction

1. The harbour, it has been said, is the jewel in Hong Kong’s crown.  Over the years, however, it has been much diminished – sometimes dramatically so – by the reclaiming of land from its waters.

2. In 1997, the Protection of the Harbour Ordinance, Cap.531 (‘the Ordinance’), was brought into law, enshrining the harbour as a ‘special public asset and a natural heritage’ of all Hong Kong people.

3. It is a succinct statute but one which the Court of Final Appeal has described as giving to the harbour ‘a unique legal status’ : Town Planning Board v. Society for the Protection of the Harbour Limited [2004] 7 HKCFAR 1, at 15G.  That status is protected by incorporating into the Ordinance a presumption against reclamation.  The pivotal section is s.3 which provides that —

(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.”

4. The presumption against reclamation is not a principle to which public officers may afford mere lip service.  In its judgment to which I have just referred, the Court of Final Appeal directed (at 17D) :

“In order to implement the strong and vigorous statutory principle of protection and preservation, the presumption must be interpreted in such a way that it can only be rebutted by establishing an overriding public need for reclamation.”

5. As to the meaning of ‘reclamation’, s.2 of the Ordinance defines it as being ‘any works carried out or intended to be carried out for the purpose of forming land from the sea-bed or foreshore’.

6. Hong Kong’s history of reclamation is explained by an ever-increasing demand for housing and commercial buildings, for factories and infrastructure; for more roads and greater port facilities.  It is not surprising therefore that, in its judgment, the Court of Final Appeal spoke of the permanence of reclamation.  By way of illustration (at 8E) the following was said :

“It should be immediately observed that reclamation is practically irreversible.  Once land is formed by reclamation, it cannot be undone and part of the harbour is lost forever.”

7. The Ordinance, however, does not differentiate in specific terms between reclamation that is intended to result in the permanent formation of land or reclamation that is intended to result only in its temporary formation.

8. The word ‘temporary’, of course, while it describes reclamation carried out to meet a passing need, is able to accommodate a broad spectrum of circumstances and degrees.

9. In the present case, the applicant, the Society for Protection of the Harbour, seeks a declaration that, on a true construction of the Ordinance, even reclamation works that are intended to be entirely transitory, indeed works that are intended to avoid the very need for permanent reclamation, are nevertheless subject to the presumption against reclamation and may not lawfully be carried out unless it can be demonstrated that they are necessary to meet an overriding public need.

Background

10. This application arises out of the following history.

11. The Government has sought to build a trunk road along much of the north shore of Hong Kong Island, diverting traffic away from the existing east-west corridor and thereby avoiding fears of future gridlock along that corridor.

12. Where the Wan Chai and Causeway Bay foreshore meets the harbour, just to the east of the Hong Kong Convention and Exhibition Centre, the Government has concluded that the trunk road should take the form of a tunnel running beneath the sea-bed of the harbour.  A tunnel has been chosen for this part of the trunk road in order to minimise the need for permanent reclamation.

13. The plans show that the tunnel will run beneath a short stretch of water known as the ex-Public Cargo Working Area (‘the ex-PCWA’) and then, a little further to the east, will run beneath a much bigger stretch of water known as the Causeway Bay Typhoon Shelter (‘the CBTS’).  The CBTS 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.

14. The tunnel, as I have said, is intended to minimise the need for permanent reclamation of the foreshore.  However, it is Government’s position that, in order to build the tunnel, it will be necessary to undertake fairly extensive temporary reclamation works.  It is these proposed works which form the subject matter of this application for judicial review.

15. By ‘temporary’, I mean that all reclamation will be removed, the foreshore and sea-bed being returned to their previous state.

16. It is said by Government that temporary reclamation is required because the most practical and feasible method of construction of the tunnel is a method known as ‘cut-and-cover’.

17. Perhaps the best way of describing this method of construction is to cite from a report dated February 2007 prepared by Maunsell Consultants Asia Ltd in respect of a planning study known as the Wan Chai Development Phase II Planning and Engineering Review.  In para.4.2.3 of the report the following explanation of the method was given :

“Cut-and-cover tunnel construction involves first installing the tunnel walls by using diaphragm walls (these are reinforced concrete wall panels constructed in existing ground from ground level down to the required depth, usually to the underlying rock layer) on both sides of the tunnel, then excavating the soil from between the diaphragm walls, constructing reinforced concrete top and bottom slabs between the diaphragm walls to form the tunnel box and, finally, backfilling over the tunnel.  This form of construction is carried out in existing or formed land to provide the necessary construction access from the surface …”

18. The explanation continues by stating the following :

“… should the tunnel alignment cross over seabed, reclamation will be required to first form the land through which the diaphragm walls need to be constructed.”

19. The Maunsell report considers alternative forms of tunnel construction, particularly what is described as the ‘immersed tube tunnel’ method.  In respect of this method, the report says the following (para.4.2.5) :

“Immersed tube tunnel form of construction may be used where the tunnel lies just below seabed level; reclamation would not be required for this form of tunnel construction.  However, this form of construction is not suitable where the tunnel level rises above seabed level, as the exposed tunnel section would then be at risk of damage from ship impact, anchors, etc, the tunnel structure would be more susceptible to degradation in the aggressive marine environment, and the protrusion of the tunnel structure above the seabed would restrict marine access to the shoreline.  Also, even where the tunnel lies below seabed level, the soft seabed material would need to be excavated so that the immersed tube units lie in a trench on a firm foundation.  Along the Wan Chai shoreline, this would involve excavating a deep trench immediately adjacent to the existing seawalls, which would undermine these seawalls.”

20. The report comes out in favour of the cut-and-cover method, saying :

“Use of immersed tube is therefore considered not feasible in this instance, and the most practical and reasonable form of construction for the Trunk Road tunnel along the Wan Chai shoreline is cut-and-cover, constructed through reclaimed land.”

21. But that being said, while, from an engineering standpoint, the cut-and-cover method might be the most feasible for the construction of the tunnel, it is accepted that it will create the need for what I have earlier described as fairly extensive temporary reclamation.

22. But just how extensive is this proposed temporary reclamation to be and just how ‘temporary’?

23. In an affirmation dated 4 December 2007, Mr Chow Ying Shun, the head of the Major Works Project Management Office of the Highways Department has estimated that the ‘overall minimum temporary reclamation requirements’ in and near to the ex-PCWA will be 1.9 hectares while in the CBTS it will be 6.4 hectares.  This makes for a total of 8.3 hectares.  However, Mr Chow has emphasised that the tunnel will be built in stages and that —

“Upon completion of each stage, the temporary reclamation would be removed and the sea-bed reinstated to its original levels.”

24. Allowing for some overlap between stages, Mr Chow has estimated that temporary reclamation in the ex-PCWA would vary between 0.4 and 0.8 hectares and in the CBTS would vary between 1.8 and 3.7 hectares.

25. As to just how ‘temporary’ this temporary reclamation would be, Mr Chow has estimated that all necessary stages of the tunnel construction will take about 6 years.  Over that period of time therefore, to a greater or lesser extent, some temporary reclamation will be in place.

26. The temporary reclamation of most of the CBTS, of course, will mean that the small craft that presently use it as a shelter will have to find shelter elsewhere.  To provide for this, Government intends to build temporary breakwaters 200 metres or so further out into the harbour.  These will require further temporary reclamation.

27. As to the extent of this further reclamation, Mr Chow has estimated that the ‘footprint of the main breakwater, together with the plan areas of the entrance wave walls’ will be approximately 2.4 hectares.  The temporary breakwaters will have to be in place, according to Mr Chow, for the full 6 years, indeed in all probability, as they will have to be built before the tunnel work commences and remain until all temporary reclamation needed to construct the tunnel is cleared, they will be in place perhaps as long as 6.5 years.

How this application came to be made

28. By a notice published in the Gazette on 23 July 2007, the Government gave notice under s.3(3) of the Roads (Works, Use and Compensation) Ordinance, Cap.370, that it proposed to commence the construction of the trunk road.  The proposed works include ‘ancillary works’ which themselves include :

“… construction of noise barriers and noise semi-enclosures along IEC [Island Eastern Corridor], central medians/refuge islands, amenity areas, landscaped decks, temporary breakwater, temporary piled wave walls, phased temporary reclamation works; and drainage and landscaping works.”

29. As to these ancillary works, the notice continued :

“After the construction of sections of the proposed road tunnel, the temporary breakwater, temporary piled wave walls and phased temporary reclamation works will be removed; and areas to the immediate west of and within the ex-Public Cargo Working Area, areas within the Causeway Bay Typhoon Shelter and the existing sea-bed will be reinstated.”

30. In a letter date 30 August 2007 addressed to the Permanent Secretary for Transport and Housing (Transport), the applicant’s solicitors sought confirmation that Government had determined that temporary reclamation was necessary in strict compliance with the constraints of the Ordinance.  In particular, the following information was sought :

“How is the intended reclamation justified in the light of the Harbour Ordinance and the CFA judgment [Town Planning Board v. Society for the Protection of the Harbour Limited]?

How have you complied with the ‘overriding public need’ test as prescribed by the CFA judgment?

How have you satisfied yourself that there is no reasonable alternative?

How have you satisfied yourself that the reclamation is the minimum and does not go beyond what is required?

What ‘cogent and convincing materials’, as required by the CFA judgment, have you relied on in reaching your above decision?”

31. In a letter dated 13 September 2007, a Chief Engineer in the Highways Department replied to the following effect :

“The areas affected by the temporary reclamation are not considered as areas affecting the harbour under the Protection of the Harbour Ordinance, insofar as they are short term and solely for the purpose of achieving the end product (i.e. in order to ultimately achieve minimum reclamation of the Trunk Road tunnel).  The temporary reclamation will not cause permanent damage to the harbour.  Hence [the Ordinance] does not apply to the temporary reclamation.”

32. It is this decision; namely, that the temporary reclamation works are not considered by Government to fall within the constraints of the Ordinance, that is challenged by the applicant as being wrong in law.

33. It is self-evident, I believe, that in respect of the protection of the harbour, the challenge goes to issues that are presently and potentially of considerable significance.

The challenge itself

34. The decision challenged is described in the applicant’s notice of application in specific terms.  It is —

“The decision communicated by the Highways Department on behalf of the Secretary for Housing and Transport to the Applicant in a letter dated 13 September 2007 stating that the Protection of the Harbour Ordinance does not apply to the proposed harbour reclamation works referred to in Gazette Notice 4767 and more particularly delineated in the plans referred thereto.”

35. The remedy sought is equally specific.  It is —

“A declaration that the Protection of the Harbour Ordinance and the presumption against reclamation contained therein does apply to the proposed harbour reclamation works referred to in Gazette Notice 4767 published on 27 July 2007 and more particularly delineated in the plans referred thereto.”

The applicant’s stance

36. On behalf of the applicant, leading counsel, Mr Anthony Neoh, SC, has stressed that the applicant is not opposed to the trunk road per se.  Nor, as I have understood him, is it opposed in principle to the construction of the tunnel.  The fundamental concern of the applicant, as a society created in order to ensure the long-term protection of the harbour, is that all reclamation work – permanent or temporary – that diminishes the harbour is only permitted to go ahead if it meets the constraints of the Ordinance as interpreted by the Court of Final Appeal and is thereby lawful.  The present application has been brought, Mr Neoh has said, because the applicant is of the view that Government, in saying that the proposed temporary reclamation works are not subject to the constraints of the Ordinance, is acting in error of the law. 

Does the Ordinance apply to the intended works?

37. In seeking a true construction of the Ordinance, I believe it is important to emphasise again that it gives to the harbour a unique status as a ‘special public asset and a natural heritage’.  It is an asset so central to Hong Kong’s identity that it is afforded special protection.  That protection, as I have said, takes the form of a presumption against reclamation.

38. As to what constitutes ‘reclamation’, the Ordinance provides its own definition.  It means “any works carried out or intended to be carried out for the purpose of forming land from the sea-bed or foreshore”.

39. There is therefore no stated limitation on the nature of the works.  The definition encompasses ‘any’ works; that is, works of all kinds.

40. As Mr Anthony Neoh expressed it, the definition does not draw any distinction between permanent reclamation and temporary reclamation.  Indeed, as he observed, the concept of temporary reclamation is nowhere to be found in the Ordinance.

41. Interpreting the Ordinance, as I believe I must, on a purposive basis, the reason why there is no distinction is entirely understandable.  The Ordinance seeks to protect the harbour from all reclamation whether it be intended to be permanent, as will almost invariably be the case, or is intended to be in existence for some finite period only.

42. If it was otherwise, the protection of the Ordinance would be avoided if a reclamation was intended to be used for say five years only, no matter how extensive the reclamation area or the level of permanent degradation to the waters of the harbour that it may cause.

43. In any event, if the Ordinance, on a true construction, is to apply only to permanent reclamation, where is the line to be drawn between what is permanent and what is not?

44. Other problems arise.  For example, what if land is reclaimed temporarily but later imperatives dictate that it should be permanent?  Does it then, perhaps several years after it has been formed and the damage has been done, fall under the constraints of the Ordinance?

45. In my judgment, the intention of the legislature is clear : any (and thereby ‘all’) works of reclamation, whether intended to be permanent or temporary, fall under the constraints of the Ordinance.

46. The Ordinance does provide, however, that the works should be for a purpose.  That purpose is to form ‘land’.  What is or is not to be considered ‘land’ is not defined in the Ordinance.  Accordingly, its ordinary meaning is to be adopted.

47. The word ‘land’, which finds its origins in Old English, is capable of containing a broad range of meanings.  It may be described as the solid part of the earth’s surface as distinguished from the sea and the sky.  In that sense, the word implies a degree of permanence, as being part of this planet’s crust.  Equally, however, reduced from the global context to the purely local, since the time of Lord Coke ‘land’ has been understood to encompass “any ground, soile, or earth whatsoever”.

48. 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’.

49. 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? 

50. On behalf of the Government, however, leading counsel, Mr Jat Sew Tong SC, has approached the problem from a different angle.  The definition of ‘reclamation’ demands that works must be carried out ‘for the purpose of forming land’.  It is clear, he has argued, that the true purpose of the proposed works is not to form land; the true purpose is to construct a tunnel.  When the proposed works are considered in their entirety, as they should be, that can be the only conclusion.

51. Mr Jat has advocated his interpretation in the following manner.  The ‘reclamation’ works are a transitional part of the construction process.  They are properly to be viewed therefore as the creation of temporary ‘work platforms’ and no more.  As an integral part of the construction process, just as scaffolding around a building under construction will be removed, so they too will be removed.

52. While, from an engineering perspective, I see the force of this argument, the Ordinance is not a statute concerned with technical dimensions.  It has a far broader scope : social, cultural, historical and reflecting territorial identity.  As such, while I accept that the end result of the proposed works is to construct a tunnel, I do not see that the Ordinance permits the end result to be divorced from the means.  In my judgment, it is more correct to say that the purpose of the proposed works is, first, to form land from the foreshore and the sea-bed and, second, once that land is formed, to use that land as a working platform for the construction of the tunnel.  What cannot be avoided, however, whatever the ultimate purpose of the works, is that the primary purpose is the formation of ‘land’ as that term is ordinarily understood and is understood therefore for the purposes of the Ordinance.

53. For the reasons given, I am satisfied that the temporary reclamation works – in respect of both the tunnel construction and the provision of temporary breakwaters – constitute works which are subject to the provisions of the Ordinance.

54. During the course of the hearing, considerable time was taken up with argument as to whether, if the proposed temporary reclamation works fall within the ambit of the Ordinance, Government has or has not rebutted the statutory presumption against reclamation by showing that there is an overriding public need for the works.

55. As I have understood it, however, the applicant has not made this a second and consequential part of its application.  To the contrary, it has raised its concerns solely to bolster its request for the only remedy it has sought; namely, a declaration that the proposed reclamation works do fall within the ambit of the Ordinance.

56. In judicial review, the granting of remedies is discretionary.  This is a basic principle.  This gives the Court scope to consider the substance of an application and, even though some public law wrong may be identified, to refuse to grant a remedy if it is not justified.  In the present case, the applicant has expressed its concerns as to whether or not the proposed works do meet the test of overriding public need to show that they have not brought their application to seek confirmation of some fine academic point of no real consequence but have sought a declaration as to the construction of the Ordinance because there is in the present case a practical need for it.

57. I am satisfied – both in respect of the present case and in order to give guidance in respect of future works that involve some form of reclamation – that it is just and convenient to grant a declaration in the terms sought.

Has an overriding public need nevertheless been demonstrated?

58. The granting of a declaration in the terms sought by the applicant does not have the consequence of condemning the proposed temporary reclamation works as being contrary to the constraints of the Ordinance.  The applicant has not sought (in its application) to go that far.  What it has sought is no more than recognition of the fact that even works of the kind proposed by Government, in so far as they require the formation of land from the foreshore and/or sea-bed, create an obligation to comply with the requirements of the Ordinance.

59. But, while it has been the primary assertion of Government that the temporary reclamation works are not affected by the Ordinance – an assertion which I have rejected – the secondary assertion is that in any event an overriding public need for the proposed works has been demonstrated by cogent and convincing materials.  I am therefore invited to determine whether, on a consideration of all relevant materials and other evidence, the statutory presumption has been rebutted.

60. I have given anxious consideration to this invitation but I do not see that it falls properly within the ambit of this judicial review.

61. As I have already attempted to make clear, the applicant has not formally joined issue on this point.  Indeed, it has considered the issue to be essentially irrelevant.  As yet therefore there has been no challenge.

62. Indeed, there may well be no challenge.  I say that because, as a common sense observation, and no more, it must surely be the case that the presumption against reclamation can much more easily be rebutted when it is shown, first, that the works are temporary in nature and, second, that the very purpose of the works is to avoid the need for permanent reclamation.

63. It is of course understandable that Government wishes, if possible, to dispose of all uncertainties in respect of the proposed works so that it may get started with them.  I sympathise with that view but I do not see that it is for me, at this time, to render what in many ways would be an advisory judgment because Government, by way of a pre-emptive strike, seeks to clear the way towards an early commencement of the works.

Orders

64. For the reasons given, my orders therefore are as follows :

1. That there will be a declaration in the form sought; namely :

“… That the Protection of the Harbour Ordinance (Cap. 531) and the presumption against reclamation contained therein does apply to the proposed harbour reclamation works referred to in Gazette Notice 4767 published on 27 July 2007 and more particularly delineated in the plans referred thereto.”

2. That there will be an order for costs in favour of the applicant.