TAM HOI PONG v. TOWN PLANNING BOARD

HCAL 20/2014

[2020] HKCFI 2265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 20 OF 2014

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.  This judicial review concerns the applicant’s challenge against the decision (“the Decision”) made by the Town Planning Board (“TPB”)[1] to approve with conditions an application (“the Application”) made by Mutual Luck Investment Ltd (the interested party herein) under section 16 of the Town Planning Ordinance (Cap 131) (“the TPO”).  The applicant is the chief executive of Green Sense, an environmental concern group.

2.  In the Application, the interested party applied for planning permission in relation to a development project at Lot 1457 RP in DD 123 and Adjoining Government Land at Fung Lok Wai, Lau Fau Shan, Yuen Long (“the Development Site”).  The Development Site is in the Deep Bay Area, which is an internationally renowned wetland habitat, and is of recognised high conservation value.

3.  In this judicial review, the applicant is represented by Mr Jeffrey Tam, and the TPB by Mr Johnny Mok SC, leading Ms Eva Sit.

4.  Although the applicant has raised four grounds of challenge in the Amended Form 86, Mr Tam has confirmed at the hearing that he would only pursue the following three grounds[2]:

(1) Ground 1: The Decision is tainted with illegality as the TPB acted ultra virus or made an error of law in approving the Application with certain specified conditions (“the Illegality Ground”)[3].

(2) Ground 2: The Decision is made in breach of the applicant’s legitimate expectation in that the TPB did not adhere to the relevant policy in approving the Application with certain specified conditions (“the Legitimate Expectation Ground”)[4].

(3) Ground 3: The Decision is tainted with procedural irregularity as the TPB circumvented the necessary and relevant public consultation requirements (“the Procedural Irregularity Ground”)[5].

5.  Before I deal with these grounds in detail, in order to properly understand them and the issues arising therefrom, it is necessary to set out the relevant background in some details.  The following background facts are in all material aspects uncontroversial[6].

B. BACKGROUND

B1. The Development Site

6.  The town planning of the Development Site was governed by the Lau Fau Shan and Tsim Bei Tsui Outline Zoning Plan No S/YL-LSF/7 (“the OZP”) approved in June 2001.  The Development Site is designated in the OZP for “Other Specified Uses (Comprehensive Development and Wetland Enhancement Area)” (“OU(CDWEA)”).

7.  The Development Site comes within the Deep Bay Area and the Mai Po Nature Reserve (“MPNR”). Deep Bay is an internationally renowned wetland habitat for a variety of species of waterfowls and a stopover point for thousands of migratory birds. The Inner Deep Bay, Mai Po Marshes and its adjacent area have been listed as a “Wetland of International Importance” (“Ramsar Site”) under the Convention on Wetlands of International Importance especially as Waterfowl Habitat (also known as the Ramsar Convention) since 1995.

8.  Given the ecological importance and significance of the Deep Bay Area and the MPNR, the TPB has over the time devised its own guidelines for considering applications for planning permissions for development in these areas. Separately, the Government has also announced a nature conservation policy generally for Hong Kong, which also covers the areas.

9.  Relevant for the present purposes, the respective promulgations of the TPB guidelines and the Government’s nature conservation policy are as follows.

B2. The TPB guidelines for planning applications in the Deep Bay Area

10.  Even before the designation of the Ramsar Site, the TPB had already designated two buffer zones in the Deep Bay Area and promulgated guidelines (TPB PG-No 12A) for considering planning application there.

11.  In 1997, a consultancy study commissioned by the Government on the fish ponds in the Deep Bay Area was completed, which confirmed the ecological value of the fish ponds in the Deep Bay Area and made various recommendations on conservation and land planning strategy for the same (“the Fish Pond Study”).

12.  The Fish Pond Study has provided the scientific basis to confirm the intrinsic value of fish ponds which is fundamentally linked with Mai Po as a wildlife habitat.  The Fish Pond Study recommends the continued adoption of the “precautionary principle” and a new “no-net-loss in wetland” principle.  Buffer Zones 1 and 2 were replaced with Wetland Conservation Area (“WCA”) and Wetland Buffer Area (“WBA”) respectively.  All existing and contiguous active or abandoned fish ponds should be conserved within the WCA where no new development would be permitted unless it is required to support the conservation of the area or it is an essential infrastructure project with overriding public interest.  A buffer area of about 500m along the landward boundary of the WCA is designated as WBA within which developments are possible but would require an ecological impact assessment (“EcoIA”) to be carried out[7].

13.  In taking forward the recommendations of the Fish Pond Study, the TPB adopted the Planning Department (“the PlanD”)’s “Modified Option” as proposed in the TPB Paper No 5022 considered by the TPB on 18 December 1998.  The boundaries of the WCA and WBA were modified.  Under this option, instead of blanket conservation of all fish ponds (as one of the proposals made in the Fish Pond Study), an alternative private-public partnership approach (“the PPP Approach”) permitting limited development in the WCA areas, adopting a “precautionary approach” and “no-net-loss in wetland principle”, in exchange for a long-term and better management for the conservation of fish ponds was accepted.  These were explained at paragraphs 30 and 31 of the TPB Paper No 5022[8]:

“The land use zoning designation as WCA/CA, despite providing a clear intention to guide future use, is not an effective mechanism to promote positive actions to enhance the ecological function of the ponds. Some may even argue that long-term wetland conservation could not be achieved simply by prohibiting development. Undoubtedly, the conservation objectives of WCA/CA zoning would be better achieved if the zoning is accompanied by an appropriate wetland management scheme. However, as most of the fish ponds (656 ha) in the area are under private ownership, the cost involved in acquiring them and undertaking the enhancement/management scheme would be prohibitively high. Given the Ramsar Convention also acknowledges that the private sector do have a role to play in wetland conservation, a private-public partnership approach could be an attractive alternative for positive consideration.

The partnership approach is to allow limited private development by filling up a small portion of fish ponds say (5% - 10%) in exchange for a better management of the remaining ponds within the development site. As the ‘no-net-loss principle’ of the Study refers to both ‘area’ and ‘function’ of wetland, any proposal of this kind must demonstrate that the development would not result in the loss of ecological function of the original ponds in the site. A wetland enhancement scheme would be necessary to compensate the loss of wetland function and to mitigate the impact of the development. The developer could be required to surrender the wetland area and/or be responsible for the long-term management of the conservation/enhancement areas, either directly or possibly through investment in a trust arrangement.” (emphasis added)

14.  The TPB has then incorporated the PPP Approach, the “precautionary approach” and the “no-net-loss in wetland principle” into the revised TPB PG-No 12B (“the TPB Guidelines”) it adopted on 19 March 1999[9].  This laid down the cornerstone for development control in the Deep Bay Area and has since represented the TPB’s policy for considering planning permission applications concerning developments in the area.

15.  Relevantly, in the TPB Guidelines:

(1) The “no-net-loss in wetland” principle was defined at paragraph 5 as:

“5. … The no-net-loss can refer to both loss in ‘area’ and ‘function’. No decline in wetland or ecological functions served by the existing fish ponds, especially as a source to provide abundant and accessible food and roosting grounds to ardeids and other species, should occur. As the fish ponds form an integral part of the Deep Bay Area wetland ecosystem, alternative uses could be considered suitable only if it could be demonstrated that they would not result in the loss of ecological function of the original ponds and if they complement the ecological functions of the wetlands and fish ponds in and/or around the Deep Bay Area.” (emphasis added)

(2) Further, the PPP Approach was also referred to in paragraph 6.3 as follows:

“6.3 While the primary planning intention of the WCA is to conserve the ecological value of fish ponds, if there are strong planning justifications and positive measures to enhance the ecological functions of the existing fish ponds, the Board may consider development with conservation objectives within the WCA under a private-public partnership approach. Having regard to the precautionary principle and the ‘no-net-loss in wetland’ concept, the approach would allow consideration of limited low-density private residential/recreational development at the landward fringe of the WCA in exchange for committed long-term conservation and management of the remaining ponds within the development site. Development of this nature should require minimum pond filling and be located as far away from the Deep Bay and/or adjoining to existing development site. Adherence to the ‘no-net-loss’ principle would be important to ensure no decline in the wetland functions of the fish ponds within the development site and surrounding ponds. Any such development proposal should be accompanied by an ecological impact assessment with an acceptable and feasible wetland enhancement and management scheme to demonstrate that the development would not result in, or be able to fully compensate for, any loss of the total ecological function of the original ponds on the site and that the development impact can be mitigated. The proposal should also include a mechanism to ensure that the long-term management of the wetland could be practically implemented and monitored. A development proposal of this kind would be carefully scrutinized either through the objection consideration process or by way of a request to rezone the site to ‘Other Specified Uses (Comprehensive Development and Wetland Enhancement Area)’. (emphasis added)

16.  The TPB’s said policy relating to the PPP Approach, the “precautionary approach” and the “no-net-loss in wetland” was later reflected in and incorporated into the OZP in the Note to the OZP (“the Note”) and the Explanatory Statement of the OZP (“the Explanatory Statement”).

17.  Insofar as the Note is concerned:

(1) The PPP Approach is referred to in “the planning intention” in relation to OU(CDWEA) as follows:

“The ‘OU(CDWEA)’ zone is intended for conservation and enhancement of ecological value and functions of the existing fish ponds or wetland, through consideration of application for development or redevelopment under the ‘PPP approach’. Low-density private residential or passive recreational development within this zone in exchange for committed long-term conservation and management of the remaining fish ponds or wetland within the development site may be permitted subject to the ‘no-net-loss in wetland’ principle and planning permission from the Board. Any new building should be located farthest away from Deep Bay. Development and/or redevelopment shall not result in a total development and/or redevelopment in excess of a maximum gross floor area (GFA) of 148,000 m².” (emphasis added)

(2) It is further stated under “Remarks” at (a) that:

“(a) Application for permission of use or development shall be in the form of a comprehensive development scheme with minimum pond filling and no decline in the wetland function of the fish ponds within and near the development site. An applicant shall prepare a layout plan and any other documents showing the following information for consideration of the Town Planning Board:

…” (emphasis added)

18.  In the Explanatory Statement, they have been set out at paragraphs 9.8.1 - 9.8.3:

“9.8.1 Within the ‘OU(CDWEA)’ zone, the ecological value of the existing continuous and contiguous fish ponds should be conserved and the ‘precautionary approach’ and the ‘no-net-loss in wetland’ principle shall apply. According to the ‘precautionary approach’, these existing continuous and contiguous fish ponds are to be protected and conserved in order to maintain the ecological integrity of the Deep Bay wetland ecosystem as a whole. ‘No-net-loss in wetland’ can refer to both loss in area and function. No decline in wetland or ecological functions served by the existing fish ponds should occur.

9.8.2 Having regard to the ‘precautionary approach’ and the ‘no-net-loss in wetland’ principle, the planning intention of the ‘OU(CDWEA)’ zone is to conserve and enhance the ecological value and functions of the existing fish ponds or wetland through consideration of application for development or redevelopment under a ‘private-public partnership approach’. Under the ‘private-public partnership approach’, the Board may, subject to the ‘no-net-loss in wetland’ principle, allow limited low-density private residential or passive recreational development within this zone in exchange for committed long-term conservation and management of the remaining ponds or wetland within a development site. Development of this nature should involve minimum pond filling and no decline in wetland function of the fishponds within and near the development site. Any new development should be located as far away from the Deep Bay and/or adjoining to existing developments in the area. Compensation for loss of wetland area and its ecological functions is required for any development involving pond filling.

9.8.3 New development or redevelopment should be developed in a comprehensive manner and would require planning permission from the Board under section 16 of the Ordinance to ensure that such development or redevelopment would adhere to the ‘precautionary approach’ and ‘no-net-loss in wetland’ principle. An applicant should submit such a development or redevelopment proposal to the Board in the form of a comprehensive development scheme to include a layout plan with supporting documents, including an environmental impact study report which should include, inter alia, an ecological impact assessment (EcoIA) and a visual impact assessment; and traffic impact, drainage and sewerage impacts study reports as well as information on programming, phasing and implementation schedule of the development. The applicant should also submit a wetland conservation and enhancement scheme, including its detailed design, wetland buffer proposals to mitigate the potential impacts on the existing wetland, a maintenance and management plan with implementation details, arrangements of funding and monitoring programme to ensure the long-term management of the wetland. The EcoIA should demonstrate that such development or redevelopment proposal would not result in, or be able to to fully compensate for, any loss of the total ecological function of the original fish ponds within this zone as well as the ponds nearby, and that the development or redevelopment impact can be fully mitigated through positive measures. The submission should demonstrate that the development would not cause a net increase of pollution load into Deep Bay.” (emphasis added)

B3. The Government’s nature conservation policy

19.  Separately, the Government has a nature conservation policy which applies to Hong Kong as a whole.  Following a public consultation exercise in 2003, the Government revised its nature conservation policy which became the New Nature Conservation Policy (“the NNCP”) in 2004.  In November 2004, the NNCP was presented to the Legislative Council Panel on Environmental Affairs in the paper entitled: LC Paper CB(1) 214/04-05 (01) (“the NNCP LC Paper”) prepared by the Environment, Transport and Works Bureau.

20.  In the NNCP LC Paper, the policy statement of the NNCP is stated at paragraph 10 as follows:

“Our nature conservation policy is to regulate, protect and manage natural resources that are important for the conservation of biological diversity of Hong Kong in a sustainable manner, taking into account social and economic considerations, for the benefit and enjoyment of the present and future generations of the community. The policy objectives are —

...

(c) to promote the protection of ecosystems and important habitats, and the maintenance of viable populations of species in natural surroundings;

...

(i) to collaborate with the private sector including the business community, non-governmental organisations and the academia to promote nature conservation, and to conduct research and surveys as well as to manage ecologically important sites for such purpose…”

21.  It is further stated at paragraphs 36 and 37 of the NNCP LC Paper that:

“The new policy statement is in line with the sustainability principle of maintaining the biodiversity in Hong Kong. The establishment of the Expert Group together with the scoring system has provided a more objective and participatory mechanism for identifying a list of priority sites for enhanced conservation. …

The two new measures, viz. management agreement and PPP, aim to encourage support and participation of key stakeholders, including landowners, developers and NGOs, in conserving ecologically important sites, and are consistent with the ‘partnership’ principle of sustainable development. However, their precise sustainability implications could only be assessed when the implementation details are drawn up if it is decided to implement the two measures on a long-term basis. Notwithstanding that, a number of sensitive issues involving land, planning and environmental matters will require early attention. ...”

22.  In short:

(1) A scoring system was introduced to identify priority sites in Hong Kong for enhanced conservation, so that the Government’s limited resources could be allocated first towards conservation of these priority sites (see paragraphs 11 - 13 of the NNCP LC Paper).  Applying this scoring system, the Ramsar Site and the Deep Bay Wetland outside the Ramsar Site were among the 12 priority sites identified;

(2) The Government introduced a private-public partnership measure (“the NNCP PPP Scheme”) under the NNCP, whereunder developments at an agreed scale would be allowed at the less ecologically sensitive portion of a priority site provided that the interested party undertakes to conserve and manage the rest of the site that is ecologically more sensitive on a long-term basis (see paragraph 17 of the NNCP LC Paper);

(3) Submissions under the NNCP PPP Scheme of the NNCP would be considered by a task force specially established and chaired by the Environment, Transport and Works Bureau (now the Environment Bureau (“the EB”)), and selected proposals would be submitted to the Executive Council for approval (see paragraph 19 of the NNCP LC Paper);

(4) Thereafter, to implement the proposal, the developer would still be required to fulfil the statutory requirements including those under the TPO and the Environmental Impact Assessment Ordinance (Cap 499) (“the EIAO”) (see paragraph 21 of the NNCP LC Paper).

23.  In June 2011, the Environmental Protection Department (“the EPD”) set up a funding and land management framework under the NNCP PPP Scheme to sustain the long-term management of the ecologically sensitive portion of the priority sites (“the 2011 NNCP Arrangements”). These were presented and explained to members of the Legislative Council in a paper prepared by the EPD in May 2011[10].  As stated in the paper (“the ECF Paper”), the arrangements specifically applied to Fung Lok Wai, which covered the Development Site, and the relevant funding arrangement that should be set up under the 2011 NNCP Arrangements was further stated at paragraphs 6 and 7 as follows:

“6. Both the Fung Lok Wai and Sha Lo Tung developers have undertaken in their EIA/EA reports to be fully responsible for the construction, creation, enhancement, maintenance and proper management of the Wetland Nature Reserve / Ecological Reserve proposed in the EIA reports. While the two project proponents have indicated that they are willing to set aside certain funds as seed money to support the long term conservation of the ecologically sensitive portions, concerns have been raised on how the funding support can be sustained particularly when the developments are completed and sold to small individual owners. Having considered various options including that made by the developers to set up a private trust, we consider that an upfront lump sum donation sufficient to generate recurrent incomes to support the pledged conservation programmes could be made to the [Environment Conservation Fund (‘ECF’)], which is established under the ECF Ordinance (Cap. 450) and is under the oversight of Secretary for the Environment as the trustee. The ECF provides funding to education and research as well as other projects which are related to environmental protection and conservation. As a statutory trust, the ECF has in place a credible and accountable mechanism for holding the donations by the project proponents. …

7. To ensure that the conservation works are properly conducted, the developers will be required to identify competent bodies (e.g. green groups) as their conservation agents to manage the ecologically sensitive portion of the concerned sites. The developers should advise their conservation agents to apply for funding support from the ECF for carrying out conservation projects, the details of which should be consistent with that in the approved EIA reports and set out in their ECF applications. Moreover, the conservation agent should demonstrate in the application that members of the public will be allowed access to the ecologically sensitive site under private ownership, for nature appreciation or education purposes with suitable control such that the ecological features of the site would not be adversely affected. … In the event that the project proponent could not identify a competent conservation agent, or the ECF Committee disapproves the applications of the conservation agents identified by the project proponents, the Agriculture, Fisheries and Conservation Department (AFCD) will be prepared to identify competent agencies to apply for funding from the ECF, and will take up such work as the conservation agents during the interim period if necessary.” (emphasis added)

24.  The 2011 NNCP Arrangements were then presented to the TPB by way of the TPB Paper 8869[11] and at the TPB meeting held on 15 July 2011.  At the meeting, the Deputy Director of the EPD explained the background and essence of the 2011 NNCP Arrangements as follows[12]:

“22. Mr. Albert Lam made a presentation covering the following main points as detailed in the ACE paper at the Annex to the Paper:

(a) under the New Nature Conservation Policy (NNCP) that was launched since 2004, 12 priority sites of high ecological importance were identified for enhanced conservation. As a substantial portion of those sites were in private ownership, EPD had launched amongst others, the PPP scheme to better protect these sites;

(b) under the PPP scheme, developments of an agreed scale would be allowed at the less ecologically sensitive portions of the priority sites, provided that the developer undertook to conserve and manage the rest of the site that was ecologically more sensitive on a long-term basis. Some PPP schemes would require planning permission from the Board;

(c) when the Advisory Council on the Environment (ACE) considered the Fung Lok Wai and Sha Lo Tung proposals and their Environmental Impact Assessment (EIA) /Environmental Assessment (EA) Reports, it had asked the Government to develop necessary mechanism to ensure that the ecological mitigation and enhancement measures proposed would be fully implemented and sustained;

(d) the Government had decided to implement a funding and land management framework to sustain the long-term management of the ecologically sensitive portion of the priority sites to take forward the PPP schemes. This briefing would focus on the funding arrangement whilst the land management arrangement was set out in paragraph 7 of the ACE paper in the Annex of the Paper; and

(e) it was proposed that an upfront lump sum donation sufficient to generate recurrent incomes to support the pledged conservation programmes of the PPP schemes would be made to the Environment and Conservation Fund (ECF). ECF was a statutory fund established under the ECF Ordinance (Cap. 450) and was overseen by the Secretary for the Environment as a trustee. As a statutory trust, the ECF had put in place a credible and accountable mechanism for holding the donations by the project proponents.”

25.  At the end of the presentation, the TPB expressed their support of the arrangements[13].

B4. The Application

B4.1  The proposed development at the Development Site

26.  As stated in the Schedule of Uses in the Note for the “OU(CDWEA)” zone, any development and filling of land/pond or excavation of land require planning permission from the TPB under the PPP Approach and the “no-net-loss in wetland” principle.

27.  The Development Site covers an area of 80 hectares and the proposed development involves conversion of about 76 hectares of fish ponds (95% of the Development Site) into a Wetland Nature Reserve (“WNR”) and 4 hectares (5% of the Development Site) into a residential development.  The proposed residential development under the Application comprises 19 blocks for 1,958 units with a gross floor area of 147,985m² located at the southern landward fringe of the Development Site.  The WNR comprises an area of 61.6 hectares retained and ecologically enhanced fish ponds and a created freshwater marsh habitat of about 14.4 hectares.  The existing 31 ponds will be consolidated to form 18 large ponds.  The interested party proposes to enhance the ecological values and functions through reprofiling pond bunds to form larger ponds with shallow sloping and irregular margin to increase feeding opportunities for water birds as well as active ongoing management.  A potential alternative egretry (a nesting colony for egrets and other birds) of approximately 2,000m² to replace an abandoned egretry near Shing Uk Tsuen is also proposed.

B4.2  The documents submitted for the Application

28.  The interested party first submitted the Application to the TPB on 4 August 2011, together with a supplementary planning statement, technical appendices including an EcoIA[14], Further Analysis of the Ecological Impacts of the Refined Development Layout, draft Habitat Creation[15] and Management Plan (“Draft HCMP”) for the WNR, Management Proposal for the Wetland Nature Reserve, Traffic Impact Assessment, Tree Survey and Master Landscape Submission, Environmental Monitoring and Audit (“EM&A”) Manual, Visual Impact Assessment, Environmental Assessment (“EA”) and Sewerage and Drainage Impact Assessment.

29.  The documents were submitted in accordance with the requirements in Remark (a) in the Schedule of Uses and paragraph 9.8.3 of the Explanatory Statement.

30.  From August 2011 to November 2013, the interested party requested the TPB to defer consideration of its application on four occasions and submitted further information providing clarification, revised or updated technical assessments, and responses to departmental comments on 20 occasions.  More notably, a revised EcoIA and revised Draft HCMP for the WNR were received on 8 February 2013 and a consolidated paper on Hong Kong Bent-winged Firefly (Pteroptyx maipo) on 11 November 2013[16].

31.  The Application was circulated to relevant government departments for comment.  It was also published for public inspection and comment on nine occasions between September 2011 and September 2013.  All of the further information submitted by the interested party had also been made available for public inspection[17].

32.  A total of 745 public comments were received, with 663 objecting to and 82 in support of the Application.

33.  The interested party’s submissions, the departments’ views, public views as well as the PlanD’s views were then consolidated into a RNTPC Paper No A/YL-LFS/224F (“the RNTPC Paper”) prepared by the PlanD for the TPB’s consideration at the Meeting.

B4.3  No departmental objection

34.  As set out in the RNTPC Paper, most of the departments circulated with the Application were satisfied with the technical details therein and had no objection to it.

35.  But relevant for the present purposes, and more importantly, the Director of Environmental Protection (“DEP”) and the Director of Agriculture, Fisheries and Conservation (“DAFC”) had the following comments.

36.  The DEP confirmed that the environmental issues and findings mentioned in the environmental assessment were in line with the EcoIA Report approved under the EIAO in 2009.  However, she pointed out that the implementation arrangement for the WNR proposed by the interested party did not comply with the funding and land arrangement under the 2011 NNCP Arrangements.  This is so as under the 2011 NNCP Arrangements, funding of the conservation plan is to be arranged through the ECF established pursuant to the Environment and Conservation Fund Ordinance (Cap 450) (“the ECFO”).  The DEP took the view that proposed long-term maintenance and management plan proposed by the interested party using a private trust arrangement did not provide for a comparable assurance on long-term viability of the conservation plan as compared to the use of the ECF, and hence from the point of view of nature conservation policy, she had reservation on this aspect of the application.

37.  Despite the above concern, the DEP however made it clear that she would have no objection if the interested party was to follow the land and funding arrangement in the 2011 NNCP Arrangements.  The DEP therefore recommended two planning conditions (ie, Conditions (o) and (p) (see below at [42])), which she believed would be sufficient to address this aspect, for TPB’s consideration in case it was to approve the Application[18].

38.  As for the DAFC:

(1) She was satisfied that the “no-net-loss in wetland” principle had been met[19];

(2) She was also satisfied with the further information submitted with respect to the Hong Kong Bent-winged Firefly, which had largely addressed the AFCD’s comments.  It considered that the aforesaid responses should be included in a revised environmental impact assessment, which should be addressed by way of approval conditions[20].

B4.5  The Meeting and the Decision

39.  The Application was considered by the TPB at the Meeting.  Detailed presentation was made by the Senior Town Planner/Tuen Mun and Yuen Long on (among other things) the proposal and the departmental comments, and the members raised questions with representatives of the PlanD, the AFCD and the EPD on issues including the NNCP PPP Scheme and the EPD’s views on the proposed funding arrangement of the interested party, the meaning of the “no-net-loss in wetland” principle, the meaning of minimum pond filling and why it was considered that the interested party’s proposal was acceptable, the advantages of the proposed freshwater marsh compared to the retained fish ponds, opening arrangement of the WNR, the environmental impact assessment and also the revised EcoIA reports.

40.  At the deliberation of the Meeting:

(1) Green Sense’s letter dated 22 October 2013[21] setting out its objections to the Application[22] was tabled before and considered by the TPB.  See: Minutes, paragraphs 48 and 62.

(2) The members had particular concerns over (a) visual compatibility; (b) funding arrangement and implementation; and (c) monitoring of the project, which were discussed during the meeting.  See: Minutes, paragraphs 63 - 71.

(3) In relation to funding arrangement and implementation, a member expressed reservation at one point that all the details of the funding arrangement should be made available before the TPB gave its approval.  However, at the end, having regard to the position of the DEP (being the responsible authority for implementing the 2011 NNCP Arrangements) and the precedent in another TPB decision, the TPB decided that the issue concerning the 2011 NNCP Arrangements could be dealt with by way of approval conditions as suggested by the DEP.  See: Minutes, paragraph 66; and Affidavit of Ophelia Wong at paragraphs 33 and 42.

(4) Further, although the same member also queried whether all the required technical assessments should be submitted to the satisfaction of the relevant departments first before the TPB gave its approval, upon the explanation by the Chairman that all the information had already been submitted and found to be acceptable to the departments and the revised assessments by way of conditions are only to update the reports, there was no further issue concerning the same.  See: Minutes, paragraphs 64 - 65.

41.  In the end, the Application was approved with 17 planning conditions (including those proposed by the DEP) (ie, the Decision).

42.  Relevantly, the imposed conditions (o) and (p) (“respectively “Condition (o)” and “Condition (p)”) state as follows:

“(o) the submission and implementation of a funding arrangement proposal for ensuring the long-term maintenance and management of the proposed Wetland Nature Reserve to the satisfaction of the Director of Environmental Protection and the Director of Agriculture, Fisheries and Conservation, or of the TPB;

(p)   land exchange and/or lease modification for the proposed development, if considered and approved by the Director of Lands, should not be executed prior to the compliance with condition (o) to the satisfaction of the Director of Environmental Protection and the Director of Agriculture, Fisheries and Conservation, or of the TPB;”

43.  Thus, Condition (o) requires the interested party to submit and implement a funding management proposal for ensuring the long term maintenance and management of the WNR to the satisfaction of the DEP and the DAFC, or the TPB.

44.  The applicant later applied to judicially review the Decision.

C. THIS JUDICIAL REVIEW

C1. Ground 1 – the Illegality Ground

45.  It is common ground that for the Development Site, the TPB may consider granting planning permission for limited development thereat with conservation objectives under (a) the PPP Approach, (b) the “precautionary approach” and (c) the “no-net-loss in wetland” principle.

46.  Under this ground, Mr Tam contends that the Decision is tainted with illegality on three different bases, which relate respectively to the PPP Approach, the “precautionary approach” and the “no-net-loss in wetland” principle.  All these bases are effectively premised principally on the complaint that it is unlawful for the TPB to approve the Application by way of imposition of Condition (o).

47.  I will look at each of them in turn.

C1.1 The Decision is ultra vires in relation to the issue concerning the PPP Approach

48.  Under this basis of the challenge, Mr Tam says the TPB in approving the Application by imposing, among others, Condition (o) has exceeded the extent shown or provided for or specified in the OZP.  Thus, the TPB in making the Decision had acted ultra vires.  Mr Tam’s arguments run as follows.

49.  Section 16(4) of the TPO provides that the TPB may grant permission only to the extent shown or provided for or specified in the relevant OZP.

50.  As mentioned above, in the TPB’s own policy, which has been incorporated into the planning intention as set out in the Note and the Explanatory Statement, it is clear that in considering the Application, the TPB was required to see if the development proposal satisfied, among others, the PPP Approach.  Hence, under section 16(4), the TPB can only lawfully approve the Application if it itself is satisfied, among others, that the PPP Approach was met.

51.  In this respect, Mr Tam contends that the PPP Approach adopted by the TPB includes the 2011 NNCP Arrangements, under which there are two key elements that are required to ensure sustainable long-term management of the ecologically sensitive portion of the priority sites in the private-public partnership approach.  They are that:

(1) The funding arrangement be in the form of a statutory trust made with the ECF established under the ECFO (“the Funding Requirement”); and

(2) The development be required to identify competent bodies (eg, green groups) as their conservation agents to manage the ecologically sensitive portion of the concerned sites (although in the event that the interested party could not so identify one, the AFCD would be prepared to identify competent agencies to apply for funding from the ECF and would take up the work as conservation agents in the interim period if necessary) (“the Conservation Agent Requirement”).

52.  However, the Application did not meet the Funding Requirement and the Conservation Agent Requirements:

(1) In respect of the Funding Requirement, the partnership proposed by the interested party was based on a private trust model, which is inconsistent with the funding arrangement under the 2011 NNCP Arrangements[23]. See also [36] - [37] above.

(2) In respect of the Conservation Agent Requirement, in May 2013, World Wildlife Fund for Nature Hong Kong (“WWF”) withdrew from the partnership with the interested party by reason of the above mentioned private trust funding model[24].  Thus, there lacks a competent conservation agent to manage the site.

53.  Mr Tam therefore says the TPB could not be satisfied that the Application met the required PPP Approach.

54.  However, the TPB sought to side-step this issue by imposing Condition (o) in approving the Application, which is effectively asking the DEP and the DAFC (instead of the TPB itself) to decide whether the Application satisfied the PPP Approach.  This is not permissible and thus ultra vires.

55.  In this respect, Mr Tam further relies on Town Planning Board v Town Planning Appeal Board [2014] 1 HKLRD 1056 at [76] per G Lam J on the observation that the TPB has no legal basis to defer part of the consideration and decision of a planning permission application to a subsequent stage after an initial decision, or to delegate or share the responsibility with Government departments.

56.  In response, Mr Johnny Mok SC (together with Ms Eva Sit) for the TPB submits that the applicant’s contentions are misconceived.

57.  Mr Mok’s forefront and principle argument is this: the applicant’s contentions have confused the TPB’s PPP Approach with the NNCP PPP Scheme under the Government’s NNCP.

58.  Mr Mok refers the court to the above undisputed background leading to the respective promulgations of the TPB policy adopting the PPP Approach and the NNCP PPP Scheme under the NNCP adopted by the Government, and says they are two separate and distinct policies.  The 2011 NNCP Arrangements are part of the Government’s NNCP PPP Scheme but not the PPP Approach as adopted by the TPB.  It is only under the NNCP PPP Scheme, but not the PPP Approach, which has the Funding Arrangement and Conservation Agent Requirements.  For those two requirements, it is the DEP and the DAFC within the Government that are vested with the specific responsibilities in vetting those requirements.  The TPB was therefore entitled to take into account their views on these and impose the necessary conditions which the DEP and the DAFC had specifically said that they would have no objection to the Application if these conditions were imposed.

59.  Second, and alternatively, Mr Mok says whether or not the 2011 NNCP Arrangements form part of the PPP Approach, they only relate to the implementation details of the management scheme and thus can be dealt with by conditions imposed for the planning permission.  Mr Mok’s contentions in this respect run as follows.

60.  Counsel submits that, properly construed in context, the PPP Approach as explained under paragraph 6.3 of the TPB Guidelines[25] only requires the private developer to put forward an environmental impact assessment to demonstrate that the proposed management scheme would not result in any loss of the total ecological function and that any impact can be mitigated.  Thus, the TPB policy requires only that there is a mechanism to ensure that the management could be practically implemented and monitored.  In this respect, the funding arrangement of the long-term management is but only a part of the function of that mechanism because it takes years and years to continue the scheme.  However, the TPB policy does not say or require specifically what that mechanism must be.  Hence, under the PPP Approach, all that the TPB needs to be satisfied is that there is a mechanism with sufficient details which the TPB can be satisfied could be used practically to implement and monitor the proposed scheme.

61.  In the present case, Mr Mok submits that the TPB was already satisfied that the PPP Approach was met by way of the detailed mechanism proposed in the EcoIA and the Draft HCMP (including their respective revised versions).  The rest relates to the implementation details of the scheme which can be dealt with by conditions imposed for the planning permission.  In support, counsel relies on Delight World Ltd v Town Planning Appeal Board [1997] HKLRD 1106, where Keith J observed at 1115D that there is a “well-settled distinction in planning law between the grant of planning permission and its implementation”.

62.  Mr Mok further points out that under section 16(5) of the TPO, the TPB is expressly given the authority to grant permission subject to such conditions as it thinks fit.  In the premises, the TPB cannot be regarded as having acted ultra vires in imposing Condition (o) in making the Decision.

63.  With respect to Mr Mok, for the following reasons, I am unable to accept his submissions.

64.  There are two principal issues that arise from the contentions raised by Mr Tam and Mr Mok.  They are:

(1) Whether the 2011 NNCP Arrangements have been adopted by the TPB to constitute part of the requirements of the PPP Approach in the TPB policy and the relevant planning intention.

(2) In any event, whether the funding arrangements relate to implementation details of the scheme and hence can properly be dealt with by way of conditions imposed for the granted planning permission.

65.  Both issues relate to a proper construction of the TPB policy and the planning intention.

66.  There is no dispute that the construction of a government or administrative policy is a question for the court, which should be considered in its proper contexts, background and with common sense.  In carrying out the exercise, noting that this is in relation to an administrative policy, the court should not adopt an overly technical approach as in interpreting statutes or legal or constitutional documents.  See: Hong Kong Television Network Ltd v Chief Executive in Council [2016] 2 HKLRD 1005 at [55] per A Cheung CJHC (as he then was).

67.  Bearing this approach in mind, for the purpose of construing the TPB policy and the planning intention, it is obvious (as supported by the undisputed background set out above) that the relevant context is that the Deep Bay Area is of recognised important ecological and conservation value, and thus it is of significant public interest that it should be protected and conserved on a long-term basis.

68.  Considered against this context, and coupled with the plain words of the TPB Guidelines, the Note and the Explanatory Statement (as highlighted in bold as quoted above), two objectives are clearly intended to be achieved in the TPB policy and the relevant planning intention.

69.  The first one is the objective to conserve and enhance the ecological value and functions of the existing fish ponds or wetland on a long-term basis, which is to be achieved through the consideration of application for development in the Deep Bay Area under the PPP Approach.  The PPP Approach is specifically adopted to enable a long-term conservation and management of the remaining ponds or wetland within a development site.  The PPP Approach therefore constitutes an important element of the policy and the planning intention regarding application for development in the Deep Bay Area.

70.  In this respect, the relevant funding and monitoring programme in a development proposal is in my view plainly an essential facet of the PPP Approach, as it is only through the funding and monitoring programme which could ensure the long-term management of the wetland, and that it could be practically implemented and monitored.  See: paragraph 6.3 of the TPB Guidelines and paragraphs 9.8.2 and 9.8.3 of the Explanatory Statement as quoted above (in particular the words in bold).

71.  The second objective is that the proposal for development under the PPP Approach is to be subject to close scrutiny through the planning application process.  Thus, it is expressly stated at paragraph 6.3 of the TPB Guidelines that a development proposal of this kind would be “carefully scrutinized either through the objection consideration process or by way of a request to rezone the site to [OU(CDWEA)]” (emphasis added). Similarly, at paragraph 9.8.3 of the Explanatory Statement, it is stated that the applicant for development should submit a wetland conservation and enhancement scheme, including “…a maintenance and management plan with implementation details, arrangements of funding and monitoring programme to ensure the long-term management of the wetland” (emphasis added).  This objective is also consistent with the context that, given the recognised high ecological and conservation value of the Deep Bay Area, it is in the public interest that development proposals relating to the area must be subject to stringent assessment to see if it be able to achieve the long-term conservation objective.

72.  In order to be able to properly and practically assess whether a development proposal submitted could meet these objectives, viewed objectively, it must also be part of the requirements under the TPB policy and the planning intention that a proposed development application at a site governed by the OZP should be coupled with sufficient and necessary details of the funding arrangements. This is so as it is only with those details that a practical and useful exercise of close scrutiny (both by the public and the TPB) can be properly conducted in the application process to ensure that the proposal is able to sustain and achieve the objective of long-term conservation and management of the subject protected site.

73.  Bearing these objectives and requirements, I am of the view that when the TPB expressed its support of the 2011 NNCP Arrangements when they were presented to the TPB by the EB, objectively it must have adopted those arrangements to constitute part of the requirements under the PPP Approach.  This is particularly so as the both PPP Approach adopted in the TPB policy and the NNCP PPP Scheme (which includes the 2011 NNCP Arrangements) are to serve the same objective to secure the long-term conservation and enhancement of the ecological value and functions of the protected sites.

74.  Alternatively, at the least, the TPB must have adopted the 2011 NNCP Arrangements as part of the requirements under the PPP Approach for the specific purpose of considering development planning application at Fung Lok Wai, which included the Development Site.  As mentioned at [23] above, when the 2011 NNCP Arrangements were presented to the TPB in 2011, the EB specifically stated that the arrangements were promulgated for the development proposal at Fung Lok Wai (and Sha Lo Tung).  In these circumstances and in such context, objectively viewed, when the TPB expressed support for the 2011 NNCP Arrangements, the TPB must have adopted these as part of requirements for the purpose of its own PPP Approach for considering planning permission application in relation to the Development Site[26].

75.  Hence, as the 2011 NNCP Arrangements constitute part of the requirements under the PPP Approach either generally or specifically for application in relation to the Fung Lok Wai, the TPB in considering whether to approve the Application had to satisfy itself that they had been so met.

76.  As indicated above, Mr Mok then further contends that the details of the funding arrangement in the development proposal (whether in the form of the 2011 NNCP Arrangements or otherwise) are only implementation details of the scheme and thus can be properly dealt with by the TPB by way of conditions attached to the planning permission.

77.  I also do not agree.

78.  First, as explained above, in my view the funding arrangement is an essential facet of the PPP Approach, which in turn is a fundamental planning consideration required for assessing a planning application at the Development Site.  Further, sufficient and necessary details of the funding arrangement are required to enable any meaningful and useful scrutiny can be carried out as expressly required under the policy and the planning intention.  In the premises, they are essential details that are important to the decision as to whether the relevant planning permission should be granted, and cannot be regarded as mere implementation details of a planning permission that can be disposed of by way of conditions.

79.  Second, it is in any event expressly stated at paragraph 9.8.3 of the Explanatory Statement that the applicant for development should submit a wetland conservation and enhancement scheme, including “…a maintenance and management plan with implementation details, arrangements of funding and monitoring programme to ensure the long-term management of the wetland.” (emphasis added).

80.  When paragraph 9.8.3 is understood in the context and policy that the development proposal is to be “carefully scrutinized” through the objection consideration process, it seems clear to me that the “implementation details of the maintenance and management plan” and the “funding and monitoring arrangements” of the conservation and enhancement scheme constitute part of the planning considerations which, before planning permission is granted for the development, (a) must be subject to proper scrutiny under the objection process, and (b) the TPB (after taking into account any objections) has to satisfy itself that they are workable to ensure that the scheme could achieve the long-term conservation of the Development Site.

81.  In the premises, the 2011 NNCP Arrangements plainly constitute the essential details of “the funding and monitoring programme” that needed to be included in the Application.  Alternatively, even if, as Mr Mok has submitted above, the 2011 NNCP Arrangement only relates to “implementation details” of the scheme itself, they must therefore similarly be required to be included for the TPB’s considerations as expressly stated at paragraph 9.8.3 as the implementation details of “the maintenance and management plan”.

82.  Finally, it should also be noted that the TPB serves as an important statutory body independent of the Government to determine planning matters.  For a proper discharge of that independent duty, it is an important and essential part of the statutory regime that the public has an opportunity to make proper presentations (whether in support or in opposition) in relation to an application for planning permission, and the TPB shall only properly determine a planning permission application after taking into account the relevant public comments and presentations.  Hence, the relevant statutory provisions require the TPB to publish the relevant application materials for public inspection and mandate the holding of public meetings to determine those applications.  For example, for a section 16 application, sections 16 (2C) - (2I) provide for making the application available for public inspection and for the public to submit comments, and section 16(3) mandates the TPB to consider the application at a public meeting.

83.  This is particularly so in the present context since, as mentioned above, it is part of the TPB policy and the planning intention that the development proposal with the PPP Approach has to be accompanied with “… a maintenance and management plan with implementation details, arrangements of funding and monitoring programme to ensure the long-term management of the wetland” and be subject to “close scrutiny” in the objection consideration process.

84.  In the premises, the statutory regime generally and the OZP specifically have prescribed that, before approving a development application in the Development Site, the TPB has to allow the public to have a proper opportunity to closely scrutinise such an application to assess if it has met all the requirements under the TPB policy and planning intention.

85.  However, by imposing Condition (o) in approving the Application, the public will be deprived of a proper opportunity to comment and make presentations on the details (if and when they later become available) of the funding arrangements proposed under the Development Site which are said to be in compliance with the 2011 NNCP Arrangements.  Viewed against this context of the statutory regime and the OZP, it cannot be a proper discharge of the TPB’s obligation in deferring to the DEP to decide whether or not such requirements are met.

86.  It must however be emphasized that the TPB is of course legitimately entitled to take into account and give weight to the final views of the DEP and the AFCD as to whether a proposed funding arrangement with the necessary details does satisfy the 2011 NNCP Arrangements.  However, that should only be done after the DEP and the AFCD have already formed a conclusion based on the details that have in fact been provided, and that the public has had an opportunity to present to the TPB their comments on those details and the DEP and AFCD’s conclusions.

87.  Indeed, the inability to properly scrutinize the proposal without the details of the funding arrangement in the present case is highlighted by the comments expressed by a TPB member at the Meeting, recorded at paragraph 64 of the Minutes as follows:

“Funding Arrangement and Implementation

64. A Member raised objection to the application. The Member had reservation on the proposed conservation arrangement by the applicant. The applicant had not provided the details of the funding arrangement, including the amount of seed money committed by the applicant; when a successor for the management of the WNR could be identified; and whether the applicant would bear the responsibility of managing the WNR if no such successor could be identified. The Member doubted whether the developer could follow through and implement the committed measures. The Member further said that all required technical assessments should be submitted to the satisfaction of the relevant government departments before the Committee could approve the application.” (emphasis added)

88.  In this respect, Delight World does not assist Mr Mok, as it is clearly distinguishable from the present case for all the reasons I have explained above.  Quite to the contrary, it is pertinent to note that, similar to the present case, on the facts of Delight World, the court indeed concluded at 1116D-G that the conditions proposed by the applicant (and the planning department) to be attached to the granting of planning permission related to details which “were critical to the decision as to whether planning permission should be granted at all”, and thus was rightly rejected by the Town Planning Appeal Board.

89.  Mr Mok’s reliance on section 16(5) also does not help.  On a proper construction, the TPB’s authority to impose condition in making a decision can only be related to matters or issues that do not constitute essential requirements under the relevant planning intention and policy which the TPB has a statutory obligation to make decision on its own.

90.  For all the above reasons, I agree that the TPB had acted ultra vires in approving the Application by imposing Condition (o) as it had deferred its own duty to satisfy itself that the Application met the PPP Approach (with the 2011 NNCP Arrangements) to the DEP and DAFC.

C1.2 The Decision is tainted with legality in relation to the “precautionary approach”

91.  Under this basis, Mr Tam says the TPB had also misinterpreted or misapplied the “precautionary approach” in granting the approval to the Application.  Counsel’s contentions run as follows.

92.  The “precautionary approach” has been set out in the TPB policy at paragraph 4 of the TPB Guidelines.  The approach is an essential element of the policy to conserve the ecological value of fish ponds in Deep Bay Area and the Ramsar Site.

93.  Mr Tam submits that in construing the meaning of this approach, the following relevant international instruments should form part of the relevant context for that purpose[27]:

(1) Principle 15 of the Rio Declaration on Environment and Development 1992 provides that:

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

(2) The Convention on Wetlands of International Importance especially as the Ramsar Convention is applicable in Hong Kong as China entered into the Ramsar Convention in 1992.  Article 3(2) of the Ramsar Convention [LA/11] provides that:

“Each Contracting Party shall arrange to be informed at the earliest possible time if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference.”

(3) The International Union for Conservation of Nature issued the guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management in May 2007 (“the IUCN Guidelines”).  In particular, Guideline 4 of the IUCN Guidelines states that:

“precautionary decision-making involves making decisions where there is uncertainty about the underlying threat. This means that judgments, values and cultural perceptions of risk, threat and required action must play a role.” (emphasis added)

(4) Guideline 12 of the IUCN Guidelines states that an adaptive management approach should be adopted, which “involves taking such measures in the face of uncertainty ... [a]pplying the Precautionary Principle may sometimes require strict prohibition of activities.  This is particular pertinent in situations where urgent measures are required to avert imminent potential threats, where the potential damage is likely to be immediately irreversible (such as the spread of an invasive species), where particularly vulnerable species or ecosystem are concern, and where other measures are likely to be ineffective. ...”

94.  In the present case, Mr Tam says the TPB misinterpreted or misapplied the “precautionary approach” in that it granted the planning permission despite the following uncertainties:

(1) The TPB only had for their consideration a Draft HCMP which was also required to be revised to the satisfaction of the DAFC or the TPB under approval condition (c).

(2) The interested party was also required to submit a revised EM&A Manual to the satisfaction of the DAFC or the TPB under approval condition (d).

(3) The approval conditions stipulated that the interested party had to submit a revised Master Layout Plan, a revised Landscape Master Plan, an implementation programme with phasing proposal and a funding arrangement proposal to the satisfaction of the relevant government authorities or the TPB.

95.  With respect, I am not persuaded by Mr Tam’s above submissions.

96.  Bearing in mind the approach on the construction of a policy set out in [66], I agree with Mr Mok’s following submissions that the applicant’s challenge under this basis is without merit.

97.  First, the meaning of the words (in this case, the meaning of “precautionary approach”) must be gleaned from the instrument in which it is deployed and the context in which it is used.  In this case, the TPB Guidelines provides relevantly as follows:

“PRECAUTIONARY APPROACH TO CONSERVE THE ECOLOGICAL VALUE OF FISH PONDS

3. The ecological value of a habitat is defined as its contribution in sustaining the wildlife communities and essential ecological processes of a wider ecosystem. The Study on the Ecological Value of Fish Ponds in the Deep Bay Area (the Study) completed in 1997 has confirmed the unique international and regional importance of the fish pond system in the Deep Bay Area particularly for ardeids (i.e. herons and egrets). It has established that fish ponds in the area have intrinsic value as they function ecologically as a substantial source of food supply for the birds and as an important habitat for roosting and foraging of waterbirds. The fish pond system is fundamentally linked with the Mai Po Marshes and is part of the Deep Bay Area wetland ecosystem. Different ponds are used preferentially by birds in different seasons, and it would be difficult to justify removal of certain individual fish ponds. Higher bird usage was observed to correlate with ponds which are contiguous to each other and with a greater and continuous area as against fragmented and isolated ponds. Developments resulting in the loss of fish ponds would reduce the food source to birds and certain developments adjoining or in the vicinity of fish ponds with disturbance impact, in particular open storage uses, industrial uses, dispersed village type development and roads, would lead to a reduction in bird usage.

4. A ‘precautionary approach’ has be adopted by the Board in view of the known intrinsic value of fish ponds in ecological terms and the complex response of birds to future landuse changes and carrying capacity which has not been fully understood. The intention is to protect and conserve the existing ecological functions of fish ponds in order to maintain the ecological integrity of the Deep Bay wetland ecosystem as a whole. This ‘precautionary approach’ is formulated with the support of scientific surveys and analysis as provided in the Study.

THE PRINCIPLE OF ‘NO-NET-LOSS IN WETLAND’

5.   In considering development proposals in the Deep Bay Area, the Board adopts the Study's recommended principle of ‘no-net-loss in wetland’ which provides for the conservation of continuous fish ponds. The no-net-loss can refer to both loss in ‘area’ and ‘function’. No decline in wetland or ecological functions served by the existing fish ponds, especially as a source to provide abundant and accessible food and roosting grounds to ardeids and other species, should occur. As the fish ponds form an integral part of the Deep Bay Area wetland ecosystem, alternative uses could be considered suitable only if it could be demonstrated that they would not result in the loss of ecological function of the original ponds and if they complement the ecological functions of the wetlands and fish ponds in and/or around the Deep Bay Area. It is important that the alternative wetland habitat to replace the fish ponds can provide food supplies in a sustainable manner so that birds, particularly, the egret and heron population, are not put at risk.”

98.  As submitted by Mr Mok, properly read objectively, the TPB Guidelines has made it clear that the precautionary approach it refers to has already been embodied in and manifests itself in the “no-net-loss in wetland” principle:

(1) The TPB Guidelines (intituled “Precautionary Approach to Conserve the Ecological Value of Fish Ponds”) referred to the Fish Pond Study and explained it was by reference to that that the TPB had adopted a precautionary approach.

(2) How that precautionary approach manifests itself is explained in paragraph 5 thereof, which makes clear that in considering development proposals in the Deep Bay Area, the TPB adopts the “no-net-loss in wetland” principle recommended in the Fish Pond Study, such that no decline in wetland functions served by the existing fish ponds should occur.

(3) This is entirely consistent with the Fish Pond Study, which makes clear that it recommended the adoption of a different precautionary approach from the one with respect to the buffer zones, and this new precautionary approach — in the form of “no net loss to wetland” — is to ensure that no decline in ecological functions served by the fish ponds should occur[28].

(4) Accordingly, it is clear that (a) there are different concepts or meaning to the precautionary approach (as can be seen from the Fish Pond Study which refers to two different meanings); and (b) it is not for the Applicant to lift a meaning (in this case out of the IUCN Guidelines) out of context and superimposed it to the TPB Guidelines.  In this respect, it is noteworthy that the applicant has not even attempted to explain why and how the international instruments he refers to would have informed the interpretation of the TPB Guidelines which makes no reference thereto but specifically refers to the Fish Pond Study and the precautionary approach adopted thereunder.

(5) Reading the TPB Guidelines as a whole and in context (namely the Fish Pond Study), the precautionary approach has been applied through the “no-net-loss in wetland” principle, in that the former is already embodied in and given meaning to by the latter.

99.  In any event, the applicant’s argument does not work, as the applicant has not even purported to give a meaning to his rendition of the precautionary approach in the context of the TPB approval process.  The mere recitation of the IUCN Guidelines and the use of “uncertainties” in it[29] does not even begin to articulate how the TPB should have acted in its decision-making process had these principles been relevant or applicable, in particular when the underlying threats or risks had already been identified and mitigation measures had been proposed and found to be acceptable by the AFCD.

100.  Second, I also agree with Mr Mok that the applicant’s contention fails also on the facts.  The documentary and unchallenged evidence is that (a) the relevant EcoIA, Draft HCMP, EM&A Manual and Master Layout and other Plans had all been submitted and considered acceptable; (b) the further information submitted had also been found to be acceptable and insofar as updating of the reports and assessment to reflect these materials.  In these circumstances, there is therefore no question of any uncertainties.  In any event, as pointed out by Mr Mok, it makes good sense to require that Draft HCMP and EM&A Manual to be updated closer to the time of the actual implementation given the development process usually spans a very long period of time and the Draft HCMP and EM&A which concern the actual operation of the project should reflect the situation on the ground at the time when it comes into operation[30].

101.  I therefore reject this basis of challenge.

C1.3 The Decision is tainted with illegality in relation to the “no-net-loss in wetland” principle

102.  Finally, Mr Tam says the TPB also misinterpreted or misapplied the “no-net-loss in wetland” principle under the TPB policy.

103.  The “no-net-loss in wetland” principle is set out in the TPB Guidelines at paragraph 5:

“… The no-net-loss can refer to both loss in ‘area’ and ‘function’. No decline in wetland or ecological functions served by the existing fish ponds, especially as a source to provide abundant and accessible food and roosting grounds to ardeids and other species should occur. As the fish ponds form an integral part of the Deep Bay Area wetland ecosystem, alternative uses could be considered suitable only if it could be demonstrated that they would not result in the loss of ecological function of the original ponds and if they complement the ecological functions of the wetlands and fish ponds in and/or around the Deep Bay Area.”

104.  Central to counsel’s contention is that the principle properly construed requires that there be no loss both in the area and ecological function in the existing fish ponds in a proposed development.  However, in the Application, it is only said that the proposed recreation of fish ponds after the filling up of some of the fish ponds in the Development Site would have resulted in no loss in “ecological function” of the fish ponds.  There will therefore be net loss in the area of fish ponds.  This therefore cannot satisfy the principle and the TPB in accepting this part of the proposal erred in misconstruing or applying the principle.

105.  In any event, Mr Tam says the proposal indeed involves net loss in both the area and the ecological functions of the fish ponds.  He explains as follows.

106.  In respect of wetland area, Mr Tam points out that although the interested party has claimed that there will be no net loss of water body area, its approach seems to have excluded pond bunds in the calculation of wetland areas.  For instance, paragraph 3.12.11 of the EcoIA Report states that:

“The removal of terrestrial bund habitats of low ecological value and replacement with further wetland area and shallow to result in a design more suitable and sympathetic to wetland birds also resulted in no net loss in water body area. It is predicted that pond enlargement and marsh habitat creation will increase the area of open water by approximately 4.4 ha (achieved through the removal of pond bund) which will more than compensate for the area of fishpond lost under the development footprint.”

107.  The approach of excluding pond bunds in the calculation of wetland areas is not a correct approach.  A similar approach had indeed been rejected by the DAFC in relation to a proposed Comprehensive Development with Wetland Enhancement of Nam Sang Wai and Lut Chau, Yuen Loi.  This has been explained in the relevant Minutes of the 1051^st meeting of the TPB on 14 February 2014 discussing (TPB Paper No 9545) as follows:

“the DAFC could not accept the applicants’ approach of excluding the pond bunds in the calculation of wetland areas as the bunds had wetland ecological function and such omission would underestimate the area of wetland loss.”

108.  Therefore, the “no-net-loss in wetland” principle could not be achieved because the bunds were disregarded in the calculation of the wetland area.

109.  In respect of the loss of ecological function, Mr Tam says the interested party has claimed that there will be no loss of ecological function as it has considered the bund habitats to be of low ecological value and will replace them with wetland area and shallow.

110.  However, Mr Tam contends that the bunds form an integral part of the wetland ecosystem because of the following reasons:

(1) The insects and amphibians in the bunds, together with the birds (which may stay in the bunds or the shallow water), form a food chain.  Bunds are part of the fish ponds and they serve as an inseparable part of the wetland.

(2) The bund habitats serve as a roosting place for birds to stand on, the edges of the bund providing shallow water areas for birds as forage, the land surface of the bunds giving dragonflies and amphibians a place to transform and rest at, as well as vegetated bunds supporting insects which in turn provide feeding opportunities for insectivore bird species and are all important ecological functions which will be permanently lost.

(3) Removing the animals in the part of the food chain will subsequently affect other animals, eg, the birds.  The inter-relationship between the different species of different parts of the pond was not sufficiently considered.

111.  Since the functions served by the bund habitats have not been fully compensated, Mr Tam submits that there is also a net loss in the ecological functions.

112.  I am also unable to accept these contentions.

113.  First, I agree with Mr Mok that the construction proposed by Mr Tam is untenable:

(1) The construction of this aspect of the policy must be made objectively against its plain words in its proper context and with common sense.

(2) Paragraph 5 of the TPB Guidelines when referring to the principle states: (a) “the no-net-loss can refer to both loss in ‘area’ and ‘function’…” (emphasis added), (b) “no decline in wetland or ecological functions served by the existing fish ponds … should occur” (emphasis added), and (c) “as fish ponds form an integral part of the Deep Bay Area wetland ecosystem, alternative uses could be considered suitable only if it could be demonstrated that they would not result in the loss of ecological function of the original ponds…” (emphasis added).

(3) The planning intention stated under OU(CDWEA) of the Schedule of Uses in Note expressly provides that limited development of the Development Site is permissible under the PPP Approach in exchange for committed long-term conservation and management of “the remaining fish ponds or wetland” (emphasis added), subject to the “no-net-loss in wetland” principle.  Under the “Remarks” that follows, it is further expressly stated that development application shall be in the form of comprehensive development scheme with minimum pond filling and “no decline in wetland function of fish ponds within and near the development site” (emphasis added).  (see the quotes at [17] - [18] above)

(4) Further, paragraph 9.8.1 of the Explanatory Statement in referring to the “no-net-loss in wetland” requirement also states that “‘No-net-loss in wetland’ can refer to both loss in area and function.  No decline in wetland or ecological functions served by the existing fish ponds should occur” (emphasis added).

(5) On a plain reading of these statements (in particular with the italicised words), it is obvious that the principle is objectively intended to refer to no-net-loss in either the total area or ecological functions when existing fish ponds are affected by a proposed development in the Deep Bay Area, and (as fairly accepted by Mr Tam at the hearing) the emphasis is indeed on the requirement that there should be no-net-loss of the ecological functions.

(6) This is also objectively consistent with the underlying context of the policy to allow limited development in the area, and hence filling up of the fish ponds is expected, although such filling up should be kept to the minimum[31]. As stated at paragraph 9.8.2 of the Explanatory Statement, filling up of the fish ponds is indeed allowed although that should be kept to the minimum[32].  See also [13] above.

(7) Mr Tam’s contended construction of the meaning of the principle is therefore inconsistent with the plain meaning of the words understood in its proper context.

114.  I therefore reject Mr Tam’s proposed construction and conclude that, on a proper construction, the “no-net-loss in wetland” principle refers to there being no net loss in either the total area or ecological functions of the original ponds in the site.

115.  Second, as pointed out by Mr Mok, the evidence of the DAFC is that the loss of the bunds had been taken into account and the DAFC considered that the proposed removal and reprofiling of the bunds would enhance the ecological value of the wetland[33]. Where the existence or non-existence of the fact is left to the judgment of a public body, it is the duty of the court to leave the decision of that fact to the public body to whom the legislature has entrusted the decision-making power, save in a case where it is obvious that the public body (consciously or unconsciously) is acting perversely[34].

116.  Finally, Mr Tam’s third argument concerns the alleged failure to appreciate that impact assessment and planning permission that must be done and obtained prior to the actual development of the site.  This is misconceived.  The assessment in this case was conducted on the basis of the factual situation of the site as known and the proposed development thereon, measuring the different impacts between the two scenarios, accompanied by proposed mitigation or compensation measures that would reduce the impacts (if any) identified.  The decision-maker’s task was to assess the information pertaining to such scenarios to see if they are adequate and feasible.  The approval was granted on the premise that the proposed mitigation or compensation measures would be implemented (by way of approval conditions in the context of the TPO and conditions in the environmental permit in the context of the EIAO).  There is nothing wrong with the TPB accepting (on the recommendation of the DAFC) that the proposed development and the proposed measures in the Draft HCMP would be sufficient to ensure that there would be “no-net-loss in wetland” function in this case.

117.  In the premises, I will also reject this basis of the challenge[35].

C2. Ground 2 – The Legitimate Expectation Ground

118.  Under this ground, the applicant says he had a legitimate expectation that the TPB would ensure that the PPP Approach with the 2011 NNCP Arrangements would be taken into account and that the requirements therein be met.  Based on the same submissions he made under the Illegality Ground concerning the PPP Approach, the applicant says the TPB in making the Decision by imposing Condition (o) had breached the legitimate expectation in not requiring the 2011 NNCP Arrangements be met.

119.  In opposition, Mr Mok submits, as the 2011 NNCP Arrangements do not form part of the TPB policy, the contended legitimate expectation simply does not arise, as all that the applicant can legitimately expect is that the TPB would take into account those arrangements when considering the Application.  As the TPB did take into account the 2011 NNCP Arrangements, this ground must fail.

120.  Given that I have accepted above that the TPB has adopted the 2011 NNCP Arrangements as part of the requirements under the PPP Approach, I must reject Mr Mok’s submissions.  In the premises, as the TPB in making the Decision did not proceed on the basis that those requirements had been satisfied, I would also allow this ground of challenge.

C3. Ground 3 – The Procedural Irregularity Ground – Circumvention of public consultation

121.  Under this ground, the applicant says the Decision is tainted with procedural irregularity as the TPB has circumvented the requirement for public consultation.

122.  Mr Tam’s submissions are these.

123.  The TPB is required to conduct public consultation in relation to a section 16 application.  The statutory requirements of public consultation under the TPO are as follows:

(1) The TPB shall, as soon as reasonably practicable after any application is made to it, make the application available for public inspection, until the application has been considered at a meeting: section 16(2C) of the TPO.

(2) The public may make comment to the TPB within the first three weeks any application is available for the public inspection: section 16(2F) of the TPO.

(3) The applicant may submit further information to the TPB to supplement the information included in the planning application before it is considered by the TPB, provided that the further information does not result in a material change in the nature of the application: section 16(2J) of the TPO.

(4) Where the TPB accepts further information from the applicant, it is deemed to have been included in the planning application and must be made publicly available for comment in the same manner as the original application, unless the TPB considers there to be reasonable grounds to exempt the further information from those requirements: sections 16(2K) and (2L) of the TPO.

124.  The requirement of public inspection is also explained by the TPB in the TPB Guidelines on Publication of Applications for Amendment of Plan, Planning Permission and Review and Submission of Comments on Various Applications under the TPO published in April 2005 (TPB PG-No 30) at paragraph 3:

“Further information to supplement an application may be submitted to the Board before an application is considered by the Board or its Committee. If the further information does not result in a material change in the nature of the application and is accepted by the Board or its Secretary, it will be made available for public inspection until the Board or its Committee has decided on the application. … If the further information does not affect the substance of the application, the Board or its Secretary may exempt it from the requirement of publication for public comments. ... “

125.  Further, it is trite that the consultation must be conducted properly and fairly[36].

126.  In this respect, the TPB may, upon consideration of a request or of its own volition, decide to defer a decision on the applications if there is a need to consult other relevant government departments, or provision of important supplementary information, or awaiting recommendations of major government planning related study or infrastructure proposal.  See paragraph 3 of the TPB Guidelines on Deferment of Decision on Representations, Comments, Further Representations and Applications made under the TPO published in April 2005 (TPB PG-No 33).

127.  Given the above requirements to conduct a proper and fair public consultation, Mr Tam submits that, in relation to the Application, the TPB should have deferred consideration of the Application on its own volition since important supplementary information, eg, the funding arrangement proposal, should have been supplied before the TPB could properly come to a decision. Had the TPB done so, upon submission of further information regarding the funding arrangement proposal, the TPB would have to consider whether the funding arrangement proposal resulted in a material change of the Application, and whether to grant exemption from publication for public comments.

128.  In this situation, the TPB ought not to grant exemption from publication for public comments.  This is because there is a significant change in circumstances, ie, the withdrawal of WWF leading to not satisfying both the Funding Requirement and Conservation Agent Requirement.  Fairness requires there to be a further consultation by the TPB so that the public can deal with the change in circumstances.

129.  By purporting to resolve the issue of non-compliance with the Funding Requirement and Conservation Agent Requirement by way of approval Conditions (o) and (p), the TPB circumvented the requirement for further public consultation.

130.  With respect, I am unable to accept these submissions.

131.  Under this ground, what the applicant is saying is in substance that the TPB should have deferred the consideration of the Application pending the interested party to supply further information on the funding arrangement which would be said to be complying with the 2011 NNCP Arrangements, and when such information is indeed provided, the TPB should have to make it available for further public inspection.

132.  In my view, this ground of challenge is misconceived.  In the present application, the challenge is made against the Decision.  In making the Decision, there was in fact no further submission of such information which needed to be made available for inspection.  There is thus also no question of granting exemption as contended by the applicant.  The TPB proceeded to deal with the Application on the (mis)understanding that it itself did not have to be satisfied that the requirements under the 2011 NNCP Arrangements were complied with.  Even though that basis is liable to be challenged under other grounds as discussed above, it does not mean that the TPB had committed a procedural irregularity by granting an exemption from publication for public comments.

133.  I therefore reject this ground.

D. CONCLUSION

134.  For all the above reasons, I will allow this judicial review on part of the Illegality Ground and the Legitimate Expectation Ground as explained above.  I will reject all the other bases of challenge.

135.  I will therefore quash the Decision and remit the matter to the TPB to be reconsidered in accordance with the findings of the court.

136.  There is no reason why costs should not follow the event.  I will therefore make an order nisi that costs of this application be to the applicant, to be taxed if not agreed.  The applicant’s own costs will also be taxed in accordance with legal aid regulations.

137.  I thank counsel for their assistance in the matter.