22
SCHEDULE.
23
629
ARTICLES OF AGREEMENT made the day of 188.
Between [Name] Acting for and on behalf of the Governor of Hongkong (hereinafter called the Governor) of the one part and [Name] (hereinafter with his executors administrators and assigns called the lessee) of the other part.
WHEREAS the lessee is a Crown Lessee of Marine Lot No. (or is the registered holder or assign of the Crown Lease of Marine Lot No. or of section of Marine Lot No. as the case may be) and has agreed to contribute towards the cost of the works authorized by the Praya Reclamation Ordinance, 1889, the sum of $... and such further or other sums as hereinafter mentioned upon the terms and subject to the conditions hereinafter contained.
NOW IT IS HEREBY AGREED by and between the parties hereto as follows:—
1. The lessee shall contribute towards the works authorized by the said Ordinance the sum of $... of which 25% have been this day paid by the lessee to the Governor as a guarantee for the due performance by the lessee of this Agreement.
2. The sum of $... being the balance of the said contribution shall be paid by the lessee to the Governor in such instalments and at such times as shall be required by the Governor provided that 30 days' previous notice in writing of each such payment be required shall be given by the said Governor to the lessee or to his Agent in Hongkong or left at his or their last known place of abode in Hongkong.
3. In addition to the said sum of $... to be contributed by the lessee towards the said works and paid as aforesaid the lessee shall also contribute a proportion of the sum or sums that may be required to make good any loss damage or expense which may have been caused to or rendered necessary for the said works or for any portion thereof from time to time previous to the completion thereof by or in consequence of any unforeseen difficulties that may have presented themselves in the progress thereof or by or in consequence of any typhoon or storm or other catastrophe the said proportion of the said sum or sums to be ascertained and determined as provided by the said Ordinance, and to be paid by the lessee to the Governor at such time or times as shall be required by the Governor thirty days' previous notice in writing of every such payment being required being given by the Governor as aforesaid: Provided always that if the actual cost of the reclamation of the land hereby agreed to be granted shall exceed or be less than the said sum of $..., the excess or less sum shall be paid by the lessee or refunded to him as the case may require and if any difference shall arise as to such actual cost the same shall be decided by the Governor in Council.
4. If the lessee shall make default in payment of any instalment as hereinbefore provided or shall make default in payment of any sum or sums of money which may become payable by him under the third clause of this agreement as thereby provided the said guarantee and all instalments and other moneys (if any) previously paid by him and all his rights under this Agreement shall be forfeited. And if the lessee shall make default in taking up a Crown Lease, in the manner hereinafter provided, of that portion of the Reclamation herein after more particularly mentioned his right thereto and all other rights under this Agreement and all moneys paid by him thereunder shall also be forfeited.
5. Upon completion of the portion of the said works in the area of Reclamation described as Section ... on plan deposited in the Land Office pursuant to Section 7 of the said Ordinance, and upon payment by the lessee of the whole of the said balance of $... (if any) and of all such sum or sums of money as may have become payable under the third clause hereof the Governor will grant to the lessee a Crown Lease of all that portion of the Reclamation provided for by the said Ordinance as is delineated on the plan hereunto annexed and thereon coloured Red for a term of 999 years and so far as circumstances permit upon similar terms and conditions and subject to similar covenants declarations exceptions easements and reservations (save as to rent hereinafter provided) as are contained in Crown Leases of Marine Lots now in use.
Provided always that nothing in this agreement contained shall be held to give the lessee any right or rights over the new foreshore or otherwise in respect of or in connection with the portion of the reclamation hereby agreed to be granted to him, of a nature different to or in a degree greater or less than such rights as the lessee (or as the case may be) immediately may have had in respect of or in connection with the said Marine Lot No. before the coming into operation of this Ordinance.
6. The Crown rent to be reserved by the said Crown Lease for the said portion of the Reclamation shall be at the rate of $200 per quarter acre.
7. The said Crown Lease so to be granted as aforesaid shall provide that:
(a.) Any buildings to be erected by the said lessee on the said portion of Land to be leased to him as aforesaid shall be erected subject to the following structural provisions as to light space and ventilation: --
Houses of a depth of 50 feet or less shall have 10 foot yards,
Do. do. from 50 to 60 feet do. 11 ft.
Do. do. from 60 to 70 feet do. 12 do.
Do. do. from 70 to 80 feet do. 13 ft.
Do. do. from 80 to 90 feet do. 14 ft.
Do. do. from 90 to 100 feet do. 15 ft.
and no private lane on which any such buildings shall front shall be of a less width than 15 feet.
IN WITNESS whereof the said parties to these presents have hereunto set their hands the day and year first above written.
Appendix IV.
SUPREME COURT.
24th November, 1890.
IN ORIGINAL JURISDICTION.
BEFORE THE FULL COURT.
RYRIE v. THE ATTORNEY-GENERAL.
In this suit, in which Hon. P. Ryrie as trustee for the City Hall sought to restrain the Government from filling in the Harbour in front of that building, their Lordships gave judgment.
Mr. Robinson, instructed by Messrs. Dennys and Mossop, was for the plaintiff; the Acting Attorney-General appeared in person.
The Chief Justice (Sir Jas. Russell) said:-The plaintiff is a merchant and member of the Legislative Council of the Colony, and the defendant is sued under section 183 of Ordinance 13 of 1873, which provides the means of bringing actions against the Crown in the nature of petitions of right. The Government of Hongkong, under the authority of a local Ordinance, are engaged in large reclamations of the Harbour of Hongkong along its southern boundary; and the plaintiff claims that as the Crown lessee of marine lot 82 his property will be injuriously affected, and has filed a petition praying that the Government, its agents, workmen and contractors may be restrained from proceeding with the works in front of this lot, as the effect of such reclamation will be to interfere with his right of access and proximity to the sea, convert his holding into an inland lot and thus diminish the value of his property.
The matter comes at present before the Court in the return to a rule calling upon the defendant to show cause why an interim injunction should not issue restraining the Government, its agents, &c., from filling up the harbour in front of marine lot 82, &c. Ordinance 16 of 1889-the Praya Reclamation Ordinance-was passed to carry out a scheme for the reclamation of the foreshore opposite the City of Victoria, and the preamble states that "Whereas the foreshore of the Harbour of Victoria is in process of silting up to the detriment of the health and commerce of the Colony, and it is expedient to put a stop to such process and to provide a deep frontage; and whereas the area of level land for building and for roads and quays and open spaces along the sea front of the City of Victoria is insufficient to meet the growing wants of the Colony, and it is expedient to enlarge the same, &c." The 2nd section declares that the works referred to in the Ordinance are for the improvement of the colony and for a "public purpose" within the meaning of that term in Crown leases.
Section 3 enacts that it shall be lawful for the Governor to carry out the works according to certain plans which are open to inspection. The 4th section enumerates the works authorised by the Ordinance. The 5th enables the Governor to remove all obstructions to the work, as piers, wharves, &c. The 6th section is of rather a sweeping nature and is as follows:-" All the land and foreshore and bed of the sea to be reclaimed under this Ordinance and all the land occupied by the present Praya roadway and wall along the line of the intended reclamation is hereby declared to be absolutely the property of the Crown free from any restrictions...