Read the full judgment text of HCAL 000102/2003 on BabelCite. This High Court CFI judgment was delivered on 6 October 2003 before Hartmann J.
Civil law – judicial review – interim injunctive relief – public law – Town Planning Ordinance (Cap 131) s.9(1)(a) – Harbour Ordinance (Cap 531) s.3 – presumption against reclamation in the harbour – Central District (Extension) Outline Zoning Plan No.S/H24/6 (Central Reclamation Plan) – reclamation of approximately 18 to 23.11 hectares along the Hong Kong Island waterfront in Central district – reclaimed land intended to accommodate the Central-Wanchai Bypass (largely a tunnel) and a waterfront promenade – applicant seeks interim injunction restraining all reclamation works pending judicial review – whether interim relief should be granted – principles for interim injunctive relief in public law – paramount consideration is the wider public interest and balance of convenience, not the adequacy of damages – where public works of great cost are challenged, damages adequacy is effectively irrelevant – court looks widely to the interests of the general public to whom public duties are owed – strength of the prima facie case – s.3 Harbour Ordinance creates a presumption against harbour reclamation and requires all public officers and public bodies to have regard to that principle – Chu J's prior judgment in Society for Protection of the Harbour Ltd v. Town Planning Board established that s.3 requires three tests: a compelling, overriding and present public need which clearly outweighs the public need to protect the harbour; no alternative; and minimum impairment of the harbour – Central Reclamation Plan approved on 17 December 2002 before the Wanchai plan, and on the principles then applied by the Town Planning Board – applicant contends plan was approved on a legally misconceived basis – respondents accepted a serious question to be tried – court unable to assess strength of prima facie case at interlocutory stage – alleged irreparable and irreversible harm disputed – reclamation work at an early stage and estimated to take approximately two years to complete – work is staged, with first area (IRAW, just over two hectares) underway and second area (1RAE) not commencing until January 2004 – reclamation is physically capable of being scaled back or removed – Court of Final Appeal scheduled to hear Wanchai appeal from 9 December 2003 – court prepared to set provisional February 2004 hearing date if needed – financial implications – HK$3,790 million contract awarded on 10 February 2003, seventeen days before applicant commenced proceedings against the Wanchai plan – government must take steps to minimise losses but cannot be intimidated by size of figures – environmental impact – ecological review indicated harbour already degraded, reclamation area not an important habitat, marine impact assessment concluded no unacceptable impact – environmental permit issued 7 March 2002 under Environmental Impact Assessment Ordinance (Cap 499) – balance of convenience in the wider public interest favours respondents – application for interim injunctive relief dismissed – costs in the cause (order nisi).
Legal issues: Grant of interim injunctive relief in public law judicial review of public works · Strength of applicant's prima facie case under s.3 Harbour Ordinance
Outcome: Application for interim injunctive relief dismissed.
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