The High Court rules today (October 6) that the Government can continue to implement the work under the Central Reclamation III which was suspended on September 28 pending court decision, a Government spokesman said.
The Society for Protection of the Harbour (SPH) contested the Government's implementation of the work and filed an application with the High Court in an attempt to stop the work pending the outcome of the judicial review.
The case was heard before the Hon Mr Justice Hartmann, Judge of the Court of First Instance of the High Court last Friday (October 3) and the judgment was handed down this afternoon.
Mr Justice Hartmann ruled in favour of the respondents (the Government) after assessing the balance of convenience in the wider public interest and allow for a continuance of the work.
The court accepted that the financial losses at risk if work was stopped now, allied to delay, must outweigh the financial losses, that may have to be incurred if at a later stage the reclamation work has to be scaled back or removed entirely. In reaching his decision, Mr Justice Hartmann has taken into account the possible financial consequences which involve public moneys to be utilised for the benefit of the public.
The court accepted the Government's view that the progress of the reclamation would not have advanced to the stage where it was simply irreversible and noted that the reclamation work could be undone.
It noted that if work was stopped now, before the Court of Final Appeal had had an opportunity in the reasonably near future to consider the principles that flow from the Harbour Ordinance, the Government would certainly suffer material financial loss and run a real risk of grave loss.
The court also noted that the Central Reclamation Plan was the product of a number of feasibility studies commissioned by the Government as long ago as the early 1980s.
Those studies recommended that extensive reclamation should take place along the Victoria Harbour waterfront of Hong Kong Island in the areas of Central and Wan Chai in order to provide for infrastructural projects and to improve the existing waterfront for both commercial and recreational purposes.
The reclamation work comprises five phases. Three of those phases have already been approved in terms of the Town Planning Ordinance and the relevant works completed.
This leaves just two phases. The first is the Central Reclamation Plan which is the subject of this judgment, work having only just commenced on this phase. The second is the Wan Chai Reclamation Phase II in respect of which work has not yet commenced.
The court noted that the Central Reclamation Plan was approved by the Chief Executive in Council on December 18, 2002, having undergone all necessary procedures mandated by the Town Planning Ordinance.
The court therefore accepted that it could not be said that the Government committed itself imprudently in the knowledge of an impending legal challenge to an adjacent and entirely complementary scheme as the contract for the Central Reclamation III was awarded some 17 days before the SPH commenced judicial review proceedings in respect of anotherreclamation plan in Wan Chai.
In his conclusion, the Hon Mr Justice Hartmann said that:
"I confess that I have found it profoundly difficult attempting in the wider public interest to ascertain where at this time the balance of convenience must lie, whether in favour of an immediate cessation of work or whether to allow it to continue. However, the more I have considered the matter, the more I have been drawn to the conclusion that the applicant's assertion that a continuance of the work, even on an interim basis, will result in 'irreparable and irreversible' damage to the harbour is not supported by the available evidence.
"I am persuaded by the evidence of the respondents that work is at a very early stage and that it is not scheduled to proceed at the all-enveloping speed anticipated by the applicant.
"I am persuaded that, bearing in mind the relatively tight timeframe before the courts are able to pronounce substantively on the contested issues, the reclamation work that has been done can, if necessary, be undone, either entirely or to the degree demanded by law. Importantly, within this context, I am satisfied that ecological damage to our already degraded waters will be minimal".
End/Monday, October 6, 2003