TNAG-2073-FCO40-2952-Hong-Kong-Town-Planning-(Amendment)-Bill-1990-1990 — Page 7

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From:

Paul Fifoot

Legal Advisers

Date: 10 December 1990

NCA STATEMENT ON TOWN PLANNING (AMENDMENT) BILL

1.

Town planning or the law of property are not matters within the specific responsibilities of the CPG, nor do they relate to the relationship between the Central Authorities and the Region; they are therefore, prima facie, matters which may be regarded as falling within the high degree of autonomy to be accorded to the SAR. In particular, the SAR could amend the legislation now proposed, or make new legislation concerning town planning, after 1997, and any such law would be outside the power of the Standing Committee of the NPC to return a law under the third paragraph of Article 17 of the Basic Law.

2.

However, the fact that an existing law may fall within an area which is within the high degree of autonomy of the SAR would not prevent it from being considered under Article 160 of the Basic Law. That Article enables the Standing Committee to declare an existing law to be in contravention of the Basic Law. The Standing Committee's competence under Article 160 is not limited by its competence under Article 17 but could extend to any case of inconsistency between the Basic Law and a Hong Kong statute. Although the original NCNA statement apparently referred to inconsistency with Article 40 of the Basic Law, the Heung Yee Kuk does not base its case on the traditional rights of the inhabitants of the New Territories. It puts its case on Article 105 of the Basic Law which provides for the protection of rights of individuals with regard to the use of property and their right to compensation for lawful deprivation of property see also JD 86. Hong Kong will need to be prepared, in case this issue is revived in seven years' time, to argue the consistency with Article 105 of town planning legislation which "freezes", but does not deprive the owner of his rights in, land as a result of planning legislation. However, even taking account of Article 105 and 160, the NCNA's statement was a gratuitous interference in the current administration of Hong Kong.

6PFABI

Paul Fifoot