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1. Court `had no right to seek harbour tests'

2. Kerry ties up with developers on $7.5b projects

3. Planning board 'protector of harbour'

1. Court `had no right to seek harbour tests'
Paris Lord, The Standard 10 December 2003

The Court of First Instance did not have the right to demand the Town Planning Board (TPB) apply three tests to determine if harbour reclamation was to proceed, a court has heard.

Presenting his opening submission to the full-bench of the Court of Final Appeal yesterday, TPB senior counsel Robert Tang also said only the board could protect the harbour, not the courts.

The TPB is appealing against a verdict in July by Madame Justice Carlye Chu that ruled out the government's second phase of the Wan Chai reclamation.

She quashed the board's approval of the draft Wan Chai north outline zoning plan and suggested the board reconsider it.

Justice Chu introduced three tests for each proposed reclamation:

Having a compelling overriding and present need;

No viable alternative;

Minimum impairment.

The hearing was sought by the Society for the Protection of the Harbour, which argued that the TPB acted unlawfully by approving the plan.

Tang said the board's appeal centred on the interpretation of section three of the Protection of the Harbour Ordinance.

Section 3.1 stated ``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'', he said.

Section 3.2 stated ``all public officers and public bodies shall have regard to the principle stated in sub-section one for guidance in the exercise of any powers vested in them'', Tang said.

Section 3.1 did not prohibit reclamation, but instead created the presumption against it, and this presumption could be rebutted, he said. ``To have regard to it does not, in my view, mean `slavishly to adhere to'.

``It requires the planning authority to consider the development plan, but does not oblige them to follow it.''

It was only the 40-member TPB that could decide if reclamation was necessary, Tang said. ``The protector of the harbour is the Town Planning Board, not the court.''

Whatever test may be adopted for compliance with section three of the ordinance, ``the judicial review court should not intrude into the merits of the decision in question''.

Reading from the TPB's `vision statement for the harbour', Tang said two of its goals were to ``bring the people to the harbour and the harbour to the people'' and ``enhance the scenic views of the harbour and maintain visual access to the harbour-front''.

As for reclamation, the board believed it ``should only be carried out to meet essential community needs and public aspirations''.

Those aspirations included being able to walk along the harbour on a promenade, because developments such as the Island East Corridor now prevented that, he added.

Chief Justice Andrew Li said that if the harbour was considered the territory's ``asset'', reclaiming it would be ``irreversible'' or ``practically irreversible''.

Justice Anthony Mason said section three of the ordinance elevated the harbour against normal TPB decisions.

``We submit that is not the case,'' senior counsel Tang replied.

Justice Mason said Tang's submission was to ``downgrade the presumption'' to the equivalent of a normal TPB decision.

If that was so, then Tang had to argue what was the ``strength of the presumption'', Justice Mason said. ``It doesn't appear to me you are achieving your presumption.''

Tang later said the ruling in a similar court case in Australia involving a planned hotel development beside the World Heritage-listed Great Barrier Reef applied to Hong Kong.

In the 1997 case, the Convention of the Protection of World Culture and Natural Heritage allowed development work, so therefore even if Victoria Harbour was heritage listed, reclamation would be permitted under certain circumstances. These included to make a bypass between Central and Wan Chai, to build a promenade and improve water quality, Tang said.

Justice Kemal Bokhary asked if it was possible to built a promenade on stilts which would not require reclamation. Tang said the board and society wanted a promenade like Sydney's Darling Harbour.

Former society chairman Winston Chu was present with his mother, Chu Fok Wing-yue. In October, Chu stepped down after receiving two letters threatening him and his family, and fled to London.

The hearing continues.

2. Kerry ties up with developers on $7.5b projects
Raymond Wang, The Standard 10 December 2003

Warehouse operator Kerry Properties will team up with major developers on two residential projects costing HK$7.5 billion.

The company has linked up with Sun Hung Kai Properties (SHKP) and China Resources Group to demolish the Kerry Hung Kai Warehouse in Cheung Sha Wan to make way for a HK$5 billion residential project.

The company also plans to raze the 100 per cent-owned Kwai Chung Kerry BCI Warehouse and replace it with a residential project, which could comprise of about 2,000 flats.

Kerry Properties director Simon Tam said the government was expected to issue a land premium offer soon for changing the usage of the Cheung Sha Wan site from a godown to residential development. ``We hope to see a land premium offer of HK$300 to HK$400 per square foot, amounting to more than HK$500 million, by early next year,'' Tam said. The estimated development cost is equivalent to HK$3,000 per sqft, and Kerry is expecting a profit margin of more than 30 per cent.

Kerry will take a 12.5 per cent stake in the project, which will generate a total gross floor area of about 1.6 million sqft. SHKP will also take 12.5 per cent, with China Resources Group holding 75 per cent.

``Financially, it won't be a problem for Kerry, as part of the investment cost could be financed through bank borrowings,'' Tam said. He added that the Kwai Chung project would cost about HK$2.5 billion, or about HK$2,500 per sqft, and produce a floor area of 1 million sqft.

Separately, Kerry is expected to confirm its Enterprise Square 5 office development project in Kowloon Bay in the next two months. The company is considering a hotel element in the project to take advantage of the growing number of mainland tourists.

Chief financial officer Chew Fook Aun said Kerry, which has a total floor area of about 3.7 million sqft under construction in Hong Kong, may bid for luxury residential lots in Mid-Levels and Hong Kong South when land sales through the application list are resumed next month.

The firm has doubled its sales target for next year. It plans to launch three new projects, with an expected sales income of about HK$4 billion.

New flat sales this year have raised about HK$2 billion, including HK$1 billion from the sale of Constellation Cove units. Shares in Kerry Properties rose 0.97 per cent to end the day at HK$10.40.

3. Planning board 'protector of harbour'
SARA BRADFORD, SCMP 10 December 2003

The role of "protector" of Victoria Harbour lay in the hands of the Town Planning Board and not the courts, the Court of Final Appeal heard yesterday.

The submission came as the board mounted a last-ditch effort to overturn an earlier court decision which ordered the board to reconsider its green-light approval of the Central-Wan Chai reclamation project.

That landmark decision, by Madam Justice Carlye Chu Fun-ling in the Court of First Instance in July, found the board's approach to the Protection of the Harbour Ordinance was "flawed as a matter of law".

The legal challenge was sparked by the Society for the Protection of the Harbour which claimed Victoria Harbour was in danger of being transformed into Victoria river if the level of reclamation continued unabated under the board's direction and reading of the ordinance.

The society claimed the board had breached the ordinance when it found the reclamation project carried substantial public benefits that outweighed the need to protect the harbour.

The case also spurred other legal challenges concerning the Central reclamation, a project involving the Central-Wan Chai bypass plan.

Yesterday, counsel for the board, Robert Tang SC, told the full bench of the Court of Final Appeal that it had to spell out how the ordinance's anti-reclamation presumption could be overridden as the law was "silent on the matter".

"The critical issue in the appeal is what matters are relevant and material to the rebuttal of the presumption," he said.

"The only questions for the court are whether the considerations which the Town Planning Board regarded as material and relevant were considerations to which the Town Planning Board was entitled to have regard and whether, looked at as a whole, the decision was rational." He added that Madam Justice Chu had applied the wrong test in deciding whether the board had complied with the ordinance.

"At the end of the day, the question is who is to decide [on the approach to the presumption] and what is the role of the courts in the decision-making process," he said.

"We submit that the role of the court is a very limited one in so far as necessary to give guidance to the interpretation of the [Protection of the Harbour Ordinance].

"The protector of the harbour is the Town Planning Board."

Mr Tang also said the board had complied with its "Vision for the Harbour" statement which it believed was within the ordinance's boundaries.

The guiding principle of the statement was to "bring the people to the harbour and the harbour to the people", he said.

Mr Tang also said the project did not breach any international covenants which sought to protect sites of natural heritage.

The appeal, before Chief Justice Andrew Li Kwok-nang, Mr Justice Kemal Bokhary, Mr Justice Patrick Chan Siu-oi, Mr Justice Robert Ribeiro and Sir Anthony Mason continues today.