By Terence Leung
At midnight on June 29, five pieces of subsidiary legislation came into effect to allow the transfer of the military dock at the Central harbourfront to the Chinese military.
Unsurprisingly, there was a standoff between protesters and the police at the dock. The tense scene was the culmination of years of debate over this controversial proposal.
Much of the debate took place in the Town Planning Board in 2013, when it proposed rezoning the present site of the dock from “Open Space” to a zone dedicated to military use.
One would have thought that for such a symbolically important military facility, the government would have gone to great lengths to make sure everything was impeccably done.
But the government was only able to turn the military dock proposal into reality through a series of questionable maneuvres.
In Hong Kong, outline zoning plans, carrying statutory effects, lay down the land use zones and the developments permitted within these zones.
The military dock proposal has been included in such a plan since 2000, but until the rezoning in 2013, it was only represented by a double-headed arrow with an annotation specifying “150m military berth (subject to detailed design).”
The arrow and the annotation had their origin in the Defence Land Agreement signed between the United Kingdom and China, which stated that 150m of the eventual permanent waterfront in Central would be left free for the construction of a military dock after 1997.
But the site of the military dock was not demarcated on the outline zoning plan.
The vague presentation seemed deliberate, considering that there were detailed descriptions of the proposed military facility in the non-statutory portion of the planning document.
It could have been made much clearer by simply replacing the arrow with an ellipse in dotted line encircling the approximate location of the military dock—a standard way to denote an unconfirmed proposal.
But no attempt had been made to update this part of the plan even after the size and the design of the military dock was later finalised.
As a result, the vague presentation had remained on the plan for years. In not taking any action, the government was simply asking for trouble, considering that the plan was not accurate enough to represent its intention.
Two major mistakes could be identified. In terms of location, unlike the completed military dock which now sits on a strip of the Central harbourfront, the arrow and the annotation were shown on the seaward side of the harbourfront without enclosing any land.
As for the intended land use, the site of the military dock was shown to fall within the “Open Space” zone, where a park was supposed to be developed.
Misinterpretation of the outline zoning plan
Although an “Open Space” zone generally means a park, it may also include other developments. The statutory provisions for the plan list out the developments which are allowed within that land use zone.
But the military dock, regarded as similar to a pier, is not one of the developments permitted.
To solve all these problems, the government could have followed a number of well-trodden statutory paths, but it decided instead to interpret the plan in a manner that seemed like wishful thinking: the arrow shown outside the “Open Space” zone was taken to mean that the military dock would occupy a site within that zone, and in doing so would override the statutory provisions for that zone.
Its main argument was simplistic: since the military dock has already been shown on the plan (albeit as an arrow and an annotation), it should be considered permitted development.
But for this argument to work, the statutory provisions had to be cast aside. Since the plan and the statutory provisions are from the same planning document and therefore of equal standing, it is wrong for the government to think that the plan can override the statutory provisions.
Another possible argument is that the phrase “subject to detailed design” in the annotation can provide the government with enough leeway to build the military dock at the present site.
But this would not help the government’s case. The phrase does not give anybody a licence to contravene the statutory provisions for the “Open Space” zone.
If the government wanted to do things properly, it should have interpreted the outline zoning plan according to what was shown on it.
This means that the present site of the military dock should form part of the gigantic open space along the harbourfront. The military dock should not occupy a site as it does now, although it can include some minor facilities, such as landing steps, along the coastline.
If the outline zoning plan had been strictly followed, the Central harbourfront would be a very different place.
The rezoning that came too late
The government’s mistakes are not limited to vague presentation and misinterpretation of the plan. It also failed to fix these problems before construction of the military dock.
It could have sought planning permission from the Town Planning Board, or revised the statutory provisions for the “Open Space” zone so that the military dock could be permitted within that zone. It could also have rezoned the site and dedicated the new zone to military use.
But nothing was done. Instead, in yet another questionable move, the government proceeded to build the military dock.
Since the plan was still fraught with problems, the government had to rely on its twisted interpretation of the plan to justify the construction works.
In 2013, when the military dock was near completion, the government finally asked the Town Planning Board to rezone the site.
The government characterised the contentious rezoning as just a “technical amendment” to reflect on the plan what was already built at the Central harbourfront.
More than 19,000 representations and comments against the rezoning were received by the Board. Only 10 representations were in support of the rezoning.
It took the Board 16 meetings to hear all the people who wanted to address the Board in person. Many of them made well-researched and impassioned speeches. Some people expressed concerns similar to those discussed above.
But the Board, relying in part on the government’s misinterpretation of the plan, rejected all the adverse representations.
The fact that the dock was a fait accompli meant that, even in the unlikely event that the Board was sympathetic to the public, there was not much it could do. The decision of the Board was therefore in no way a surprise.
Terence Leung is a urban planner.