Lawyering Up: The Fight for Hoi Ha (and friends) goes legal.

War on many fronts.  Let the Judicial Reviews begin.

The battle to save the Country Parks – Update

The first three rounds of presentations to the Town Planning Board (TPB) have just been completed, with 30,000 + objections to the Draft Outline Zoning Plans (OZPs) at Hoi Ha, So Lo Poon and Pak Lap.

The general consensus amongst the green and conservation groups and others, like Professional Commons, is the swift integration of the enclaves into Country Parks should proceed. Whilst noting that the TPB cannot authorize Country Park status (only the AFCD can recommend this), the zoning of Conservation Area (CA) offers the highest level of environmental protection that the TPB can assign.  CA assignment should be used as a stepping stone to Country Park (CP) assignment.   Once the TPB assigns CA, then the TPB should push the AFCD to assign CP status as soon as possible. The key consensus issue has now switched to the matter of village houses. But all green, conservation and some of the pro-village house groups are totally against the developers being allowed into the enclaves.

But as the battle progresses, it is becoming obvious that the TPB has opened itself up to possible legal action on several fronts.  The two main potential challenges at Hoi Ha are:

1. The lack of any Environmental Impact Assesment (EIA) and the non-justification of zone boundaries.
The planned extensions of the village areas are more than one hectare, and therefore they are not exempt under the EIA Ordinance. Also, the zones seem to be just lines on a map – AFCD and PlanD have given no scientific reasons for these delineations. The zones in the original Draft OZP were delineated well before any data from environmental investigations were submitted by numerous groups. These groups included Hong Kong University, Kadoorie Farm and Botanic Garden and Professional Commons. AFCD made no data available to the TPB, resulting in, for example, V-zone assignment in a floodplain. Even the Revised Draft OZP does not take any of this data into account.

“Schedule 2 – Designated  Projects Requiring Environmental Permits,  Category Q – Miscellaneous, Q.1  All projects including…a site of cultural heritage …” in the EIAO also considers cultural heritage. According to source related with The Hong Kong Archaeological Society , three sites in Hoi Ha are identified with cultural heritage value, and the area of archaeological interest in Hoi Ha is also larger than one hectare. Therefore an EIA must be carried out to determine the best level of protection. This has not been done. At the same time, the TPB and AFCD recognize this, as  in the response to a complaint to LegCo from Save Our Country Park Alliance, they refer to the fact that the area had “cultural heritage” no less than 15 times.

2. Not catering to the impacts to the surrounding Country Park and Marine Park areas
The Country Park and Marine Park Ordinance states that the highest possible protection must be given to areas adjacent to either Country Park or Marine Park (MP). A Coastal Protection (CPA) Area – as planned for Hoi Ha, for example  – does not give this; in the absence of CP designation, Conservation Area zoning gives more protection. This is in direct contravention of the CP and MP Ordinance.

Last week the first Judicial Review (JR) was filed with the court. This focused on the lack of proper procedure when deciding what to do with the enclaves. The plaintiff argues that the Authority should, under the Country Parks Ordinance, have consulted the Country and Marine Parks Board. Instead, it accepted the verdict of the director of the AFCD, who ruled that incorporating the enclaves was not suitable. We expect that more JRs will be filed in the near future.

Robin BRADBEER/ Paul HODGSON/ Stanley NG,
Licensed Town Planner
Professional Commons Working Group on Country Park Enclaves