CHINA CONCRETE CO LTD v. ENVIRONMENTAL PROTECTION DEPARTMENT AND ANOTHER

HCAL 241/2022

[2023] HKCFI 211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 241 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant (“CCC”) has spared no punches in its criticism of and challenge to the Environmental Protection Department (“EPD”). CCC goes so far as to assert that the EPD pre-determined to decide against CCC, and has deliberately and unlawfully targeted CCC, with the view to driving it out of business.

2.  CCC has operated a concrete batching plant at 22 Tung Yuen Street, Yau Tong, Kowloon (“CBP”) since around 2000, under a Specified Process Licence (“SPL”) as granted and renewed from time to time by the EPD.

3.  An SPL is issued under the Air Pollution Control Ordinance Cap 311 (“APCO”). The last renewed SPL granted to CCC expired on 31 December 2019. Before and after that date, CCC and the EPD were engaged in correspondence and discussions about a further potential renewal. However, no renewed SPL was granted.

4.  By its Amended Form 86 dated 13 June 2022, CCC seeks leave to apply for judicial review to challenge:

(1)  the decision of the EPD dated 29 April 2021 (“Decision 1”) refusing CCC’s application to renew its SPL for the CBP; and

(2)  the decision of the Air Pollution Control Appeal Board (“Board”) dated 27 January 2022 (“Decision 2”) dismissing CCC’s appeal against Decision 1.

5.  I directed the EPD to provide an Initial Response to CCC’s application, which was provided on 11 July 2022, and I directed an oral hearing of the application for leave.

6.  At the oral hearing of the application for leave: CCC was represented by Mr Rimsky Yuen SC, leading Mr Anthony Chan and Mr Enzo Chow of Counsel; and the EPD was represented by Mr Gary CC Lam of Counsel together with Ms Carmen Siu, Senior Government Counsel. The Board took a neutral position and its attendance was excused.

7.  As is settled law, in order to be granted leave to apply for judicial review, CCC has to satisfy the Court that its proposed grounds of review are reasonably arguable, being ones which enjoy realistic prospects of success.

8.  At the end of the hearing, I reserved my decision. This is my Decision.

B.  Background Facts

9.  As stated, CCC has operated the CBP since around 2000, with the grant and renewal of the SPL. The CBP at all material times produced pre-mixed concrete. Its maximum production capacity – permissible under the SPL – was at the time 240 cubic metres per hour and 240,000 cubic metres annually. In short, raw materials were delivered to the CBP by barges disembarking in Yau Tong Bay adjacent to the CBP, and the pre-mixed concrete was delivered by mixer trucks to various places in Hong Kong where construction works were carried out.

10.  CCC says that, generally speaking, pre-mixed concrete should be delivered from a construction batching plant to a construction site within two hours, and excessive transportation distance might affect the quality of the concrete. Therefore, the location of a construction batching plant is important for a reliable concrete supply in building and infrastructure construction in Hong Kong. The CBP at all material times supplied pre-mix concrete to many construction sites in eastern Kowloon, and also other construction sites in Hong Kong and North District of the New Territories.

11.  Within the vicinity of the CBP, there were two other concrete batching plants, one at 20 Tung Yuen Street (“CBP 20”) also operated by CCC, and one at 6 Tung Yuen Street operated by Redland Concrete Ltd (“Redland”). It has been suggested by CCC that it may be relevant to the present consideration that the CBP is closer to residential developments than that operated by Redland. A further concrete batching plant situated at 8 Tung Yuen Street operated by different company closed in May 2019.

12.  The CBP is located in southern Yau Tong in what is called the Yau Tong Industrial Area (“YTIA”). As the name suggests, the YTIA was historically an industrial area, but in around 1998 it was re-zoned to Comprehensive Development Area, Residential and Commercial zones. Gradually, new residential buildings have been developed in the area, and that continues. Specifically, a large-scale residential development has been under construction at 3 Yan Yue Wai, directly across the street facing the CBP.

13.  On 16 February 2022, the Government announced a proposal (which it had been studying since at least June 2021) to relocate the concrete batching plants in the YTIA to a site in Tseung Kwan O Area 137.

14.  One key requirement for the operation of an CBP is the capability to provide and maintain the Best Practical Means (“BPM”) for preventing emission of air pollutants: see section 15(3) of the APCO.

15.  On 13 January 2017, the EPD renewed the SPL for CCC to use or permit to be used the CBP for the conduct of the specified process of Cement Works, subject to the terms and conditions described in the SPL. The SPL was effective from 16 January 2017 to 31 December 2019.

16.  The terms and conditions in the SPL are the statutory requirements which should be agreed before the renewal of the SPL: see section 15(4) of the APCO. Amongst the terms and conditions of the SPL were the following:

STANDARD OF EMISSIONS

1. The licence holder shall, with respect to fixed point emissions, not emit or discharge air pollutants except from the 14 emission points only [listed] as detailed in the plans [identified]. For fugitive emissions, the licence holder shall take all practical measures to minimise the emission of any air pollutant to prevent the visible dust emission from all fugitive sources including but not limited to emissions caused by vehicle movements and the delivery, handling and storage of cement, pulverised fuel ash (PFA), micro silica, aggregate, sand and any other raw materials used for the cement works. No visible dust emission is to be achieved at all times.

2. In the event of a malfunction or breakdown in the air pollution control equipment and/or the process equipment associated with the operations, the emission point(s) and/or the relevant process equipment may emit visible emission, but in any case, if such emission continues for more than 5 minutes, the relevant process equipment shall be shut down immediately. Regardless of the duration of the emission, the licence holder shall report such incident to the Authority in the manner as stated in Condition 43 hearing.

…

OTHER CONTROLS OF FUGITIVE EMISSIONS

…

Cleaning of Vehicles Leaving the Premises

31. Vehicle cleaning facilities shall be provided at the site exit of the premises and used to clean leaving vehicles as follows:

(a) All vehicle cleaning activities shall be carried out within the site boundary. During cleaning, the whole vehicle body shall be glued within the site boundary, and shall be raised above the ground by means of an elevated platform formed by steel bar grid. Dust/mud washed off from the vehicle body and wheels shall flow through the platform onto the ground below. The platform shall be able to be raised to allow easy cleaning of the ground to prevent built up of dust/mud (referred to Figure 4 & 5 in Appendix II of the Air Pollution Control Plan – Revison 3). There shall be no splashing of wash water to public area outside the site boundary at all times.

(b) During the loading of concrete onto the concrete trucks, effective vehicle cleaning facilities and/or arrangement, including adequate number of effective pressurised water spray nozzles, shall be in place and operated to thoroughly wash down muddy materials from the vehicle body and wheels. Manual housing by trained labour shall also be supplemented to ensure thorough removal of dust/mud and no muddy water on the vehicle body and wheels before vehicles leave the site exit.

(c) Effective vehicle stopping device, such as a barrier gate, and interlocking system shall be installed at the exit of the cleaning area inside the site boundary to ensure sufficient time for cleaning of the vehicles. Detailed inspection of the vehicles after cleaning shall be conducted to ensure thorough removal of dust and no carrying over of muddy water on the vehicle body and wheels before allowing vehicles to leave the site.

(d) A slurry water handling system shall be provided and operated effectively to intercept all wash water from the vehicle cleaning process. There should be a peripheral U-channel or suitable alternative to ensure no discharge or spillage of the wash water beyond the site boundary and to prevent dust deposit accumulation on the public roads.

32. There shall be no visible run-off of sediment-laden water from the vehicle cleaning facilities to areas outside the premises.

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GENERAL OPERATION AND MAINTENANCE

…

42. In the event of a malfunction or breakdown in

(a) the process equipment that may result in dust emission; and/or

(b) the air pollution control equipment including dust collector, enclosure, water spray, silo over-filling alarm and filling line interlock,

the licence holder shall shut down the relevant process equipment and/or stop operating the part(s) of the plant served by the control equipment within 5 minutes after the malfunction occurs. The concerned part(s) shall be put into operation again only when the concerned equipment has been repaired and can be operated properly.

17.  On 21 January 2019, the EPD wrote to CCC about having received numerous complaints from residents and District Council members against environmental nuisance arising from the operation of CBPs in their neighbourhood. The letter stated:

The Environmental Protection Department (EPD) has been receiving numerous complaints from residents and District Council members against environmental nuisance arising from the operation of concrete batching plants (CBPs) in their neighborhood. In addition to the concrete batching process, significant impacts arise from the large fleet of concrete delivery vehicles releasing fugitive dust or dripping water or patches of concrete adhered to the body of the vehicles while travelling out of or returning to the CBP. In order to minimize such nuisance from concrete delivery vehicles in their return journey to the CBPs affecting nearby residents, the Government has already adopted a set of enhanced measures into contracts signed on or after 1 Jan 2019 to require contractors to thoroughly clean concrete delivery vehicles before leaving construction sites of Government housing or public works projects. A copy of the concerned guideline on “Control of Dust Emission from Concrete Delivery Vehicles Leaving Construction Sites” is attached at Annex I for your information.

The Specific Process Licences (SPL) issued by EPD under the Air Pollution Control Ordinance (APCO) to CBPs required you as the CBP operators to minimize air pollutant emissions and prevent a nuisance situation to the area outside the plants in accordance with the “Guidance Note on Technical, Management and Monitoring requirements for Specified Process, Cement Works (Concrete Batching Plants)”. To meet this requirement, the SPL requires you to adopt the best practicable control measures to suppress dust emission and prevent noxious or offensive emissions arising from the operation of the CBPs. When considering renewal of SPL, the APCO also requires the applicant to satisfy the Authority that the CBP would provide and maintain the best practicable measures with the latest technology available at the time of the renewal application to prevent any environmental nuisance from the operation of the CBP (including vehicles moving into and out of the CBP), taking into account the circumstances of the prevailing environment including any new developments in the vicinity of the concerned CBP.

In this connection, you are strongly advised, when considering application for SPL renewal, to plan ahead and propose enhanced nuisance control measures for cleaning concrete delivery vehicles before leaving from and returning to your CBP in the Air Pollution Control Plan as part of the application submission for consideration by the Authority. Failure to do so might result in a refusal of the SPL renewal.

18.  On 23 August 2019, the EPD wrote to CCC reminding that the existing SPL would expire on 31 December 2019, and of the need for an application for renewal. By a separate letter also dated 23 August 2019, the EPD notified CCC of new requirements as follows:

Further to my letter dated 23 August 2019 reminding you to renew your [SPL], I would like to inform you that your present loading bay setup and operation will not meet our requirement for licence renewal. In addition to the requirements set in the Guidance Note (BPM 3/2 (16)), our new requirement requires thorough cleaning of all concrete trucks before they leave the concrete batching plant (CBP), as well is all vehicles returning to the CBP. The enhanced measures includes but not limited to: (i) Vehicles are required to drip dry for at least 3 minutes before they are allowed to leave the CBP; (ii) Street watching by street washing truck with suction ability is required; (iii) CCTV to monitor the vehicle washing is required; (iv) A lockable control lever at the truck to ensure correct rotation direction of the mixer drum; and (v) A water tank installed at the mixer truck for flushing and discharge chute in construction site, etc.

In view of the recent frequent dust emission incidents, you are also required to review and strengthen your maintenance and checking protocol, and install additional monitoring devices, such as CCTV to monitor the silos, pressure sensors and alarming system to detect leakage and automatically stop the relevant operation.

Failure to meet the new requirements will result in refusal of your [SPL] renewal application.

The above requirements would also apply to the renewal of the [SPL] at No. 20 Tung Yuen Street, Yale Tong, Kowloon, which your company is the licence holder.

We are prepared to have a meeting with you to discuss our requirements.

19.  On 6 September 2019, CCC replied to that letter as follows:

We regret for the recent frequent dust emission incidents. Appropriate corrective measures as suggested in your letter will be implemented shortly for limiting the dust emission, includes but not limited to:

1. Install CCTV for monitoring the condition of our concrete batching plants at 20 and 22 Tung Yuen Street;

2. Ensure the pressure sensors, alarming system and automatic stopping mechanism are well installed and operated in good conditions;

3. Implement effective monitoring and maintenance schedule to ensure the requirements of [SPL] are strictly followed.

In the meantime, we will pay attention to these kinds of problems to prevent them from happening again. Thank you for your attention.

20.  Nevertheless, on 17 September 2019 and 16 December 2019, CCC twice failed to ensure proper vehicle washing procedures to prevent causing nuisance to the surrounding area, breaching the terms and conditions of the SPL. CCC was prosecuted and convicted on 21 May 2020 and 9 July 2020 respectively.

21.  In the meantime, on 28 October 2019, CCC made its application to renew the SPL.

22.  On 4 and 11 March 2020, the EPD and CCC conducted joint on-site visits to inspect the operation of the CBP. However, the EPD observed that the vehicle washing and drying facility could not avoid causing nuisance.

23.  On 20 March 2020, a meeting took place between CCC and the EPD at the EPD’s office. During the meeting, the EPD provided feedback on requirements for the operations of the CBP, particularly emphasising that all cleaning activities of mixer trucks should be carried out within the site boundary and that the then present loading bay setup and operation would not meet EPD’s requirements for licence renewal. The EPD also urged CCC to provide the Air Pollution Control Plan (“APCP”) and to propose measures to rectify other nuisance situations including dust emission.

24.  On 27 August 2020, at another on-site demonstration on the vehicle washing and drying facility, the EPD found that the issues had not been rectified.

25.  On 5 September 2020, CCC submitted its APCP (“1^st APCP”), which was itself dated August 2020. By the time of its submission, the SPL had expired for nine months. Amongst other aspects, the 1^st APCP referred to: the need to attain and maintain the new air quality objectives; the plant and process characteristics; the steps for minimising dust emission; the air pollution control measures following the BPM; vehicle movement inside the CBP; other aspects of good operation and maintenance; air sensitive receptors and air quality objectives. There was also an air pollution impact assessment.

26.  The section relating to vehicle movement stated the following:

Vehicle Movement inside the Plant

	The plant area will be paved and regularly wetted with water spraying in order to reduce the dust emission caused by the vehicles delivering material to and out of the plant.
	All vehicle cleaning activities will be carried out within the site boundary. During cleaning, the whole vehicle body will be located within the site boundary, and there will be no splashing of wash water to public area outside the site boundary at all times. (Please refer to Figure 5 in Appendix II for reference.)
	Vehicle cleaning facilities will be provided and used by vehicle leaving the plant to wash off any dust deposited on the vehicle bodies and wheels including following procedure/features: (Please refer to Figure 4 in Appendix II for reference.)
	Pressurized water spray nozzles will be in places and operated to thoroughly wash down muddy materials from the vehicle body and wheels before vehicles leave the site exit.
	If necessary, manual hosing by trained labourer will also be available to ensure thorough removal of dust and no muddy water on the vehicle body and wheels.
	Vehicle stopping device will be installed to ensure that the vehicle body and wheels have undergone thorough and effective cleaning before leaving the site boundary, details of the operation of the vehicle stopping device are given as follows.
		a vehicle stopping bar will be installed at the ceiling level of the concrete truck loading bay
		Once the concrete truck is parked into the loading bay, the stopping bar controlled by the quality control personnel will swing out to a position stopping the vehicle from leaving.
		The swinging back operation of this vehicle stopping bar will be interlocked with the pressured water spray nozzles vehicle cleaning system. Only after the preset washing time has been operated successfully, then the vehicle stopping bar will swing back to original position.
		A final visual inspection by the quality control personnel will be carried out to ensure effective washing of the vehicle before releasing the vehicle to leave the site boundary.
	A slurry water collection system will be provided and in operation to intercept all wash water from the vehicle cleaning process. There will be a peripheral U-channel to ensure no discharge or spillage of the wash water beyond the site boundary and to prevent dust deposit accumulation on the public roads.
	There will be no visible run-off sediment-laden water from the vehicle cleaning facilities to areas outside the site boundary.
	Work Instructions agreed with EPD for cleaning Mixer Truck leaving the plant is attached as Appendix V.

27.  The provision of comments by the EPD in the context of renewal applications for SPL is described by CCC in the present proceedings as the “EPD Practice” (see below). On 21 September 2020 and 7 October 2020, the EPD provided comments on the 1^st APCP. In the comments, amongst other things, the EPD pointed out that the APCP should provide a plan or scheme to monitor the specified process including installing CCTVs to monitor the operation of critical pollution control equipment and process of the plant, and further stated:

Vehicle Movement before leaving plant:

	Please clarify that manual hosing trained labourer other than mixer trucks drivers shall also be supplemented.
	A separate area with blowers to dry the mixer truck and to allow a minimum of three minutes for dripping of excess wash water from its body before leaving the plant boundary should be included in the APCP.
	Please be aware that EPD did not officially agree with the vehicle cleaning facilities which was demonstrated on 27 August, 2020.

28.  On 15 October 2020, CCC submitted a revised APCP (“2^nd APCP”). However, it also failed to provide sufficient information to address the issues mentioned in the EPD’s previous comments. The EPD provided other comments in October, November and December 2020 and requested resubmission of the APCP. It can be noted that in an email dated 24 November 2020, the EPD expressed the desire to follow up on the outstanding improvements that were in direct relation to compliance performance under the existing SPL and processing of licence renewal applications. The email stated that similar comments had already been made during the on-site demonstration on 27 August 2020, and also enclosed the summary sent by the EPD on 3 September 2020.

29.  Meanwhile, in October and November 2020, three serious dust emission incidents occurred during delivery and handling of cement from the barges berthing to the CBP, and CCC informed the EPD that it would provide enhancements so as to prevent dust emission incidents.

30.  On 23 December 2020, at a meeting with CCC, the EPD proposed a table detailing various environmental issues caused by the CBP and various measures for CCC to adopt to address those issues. Included in the ‘Enhanced Measures’ were the “additional measures to adequately demonstrate the capability to prevent nuisance situation”, one of which was the installation of CCTV. The relevant passage read:

41. Within 1 month after granting of the licence, Closed-Circuit Television Systems (CCTV) with at least 2 cameras at each locations with critical operations, connecting to a control room and by a designated employee during operation hours shall be installed to monitor the following operations, and the exact location shall be agreed by the Authority:

(a) the operation and discharge point of dust collectors and pressure relief valves;

(b) the unloading of aggregate/sand from barge(s)/ vessel(s) to the receiving hopper(s), including but not limited to the belt conveyors of the barge(s)/ Vessel(s), and the unloading points. In the event of over-filling, the operator of the barge/vessel shall be informed and the unloading of material shall cease immediately;

(c) the unloading of cement, PFA and micro silica from supply tanker/barges to the plant;

(d) the washing of mixer trucks;

(e) the peripheral U-channel(s) at the plant boundary.

31.  It seems to me clear from the wording and context that the exact locations of the CCTV were to be agreed with the EPD prior to the granting of the SPL, even though the installation of the CCTV might be completed within one month after its grant. The offered contrary interpretation, namely that the licence would be granted and there would still be one month to agree the exact locations, raises a suggestion which lacks common sense within the licensing framework. If the EPD had not already agreed the exact locations, it might be asked how it could be satisfied that the capability prevent nuisance situations had been adequately demonstrated.

32.  Importantly, on 28 January 2021, the EPD wrote to CCC regarding its application for renewal of the SPL. The letter included the following:

Having reviewed your revised APCP [i.e. the 2^nd APCP], we are of the view that you failed to demonstrate that the operation of your CBP could obtain the relevant AQO at all the Air Sensitive Receivers and satisfy the Authority that you have the capability to prevent the recurrence of all nuisance situations caused by the CBP and the non-compliance spotted at the existing SPL over the past years. To facilitate your consideration in proposing additional enhanced measures in your re-submission, we met with you and the Development Bureau via video conferencing on 23 Dec 2020. We stress that the following measures, amongst others, should be adopted to meet the requirements for SPL renewal:

a) measures to strictly ensure that all activities / operations of the plant, including concrete loading, washing and drying of mixer trucks, storage of equipment and other associated activities shall be carried out within the site boundary at all times;

b) providing a separate area within the site boundary where sufficient blowers will be installed to dry the mixer trucks for at least 3 minutes to ensure no dripping of excess wash water from the trucks after being washed before leaving the plant;

c) installing CCTVs to monitor the operation of critical pollution control equipment and process of the CBP to ensure prompt response towards equipment failure or malpractice leading to dust emission and nuisance; and

d) employing an Independent Environmental Team to assist in monitoring the environmental performance of the CBP.

Up to this moment, we have not received your re-submission of a revised APCP to address our comments. The present plant setup fails to meet our requirements, particularly the above mentioned requirements in items (a) and (b), unless you can make significant changes to the layout plan. If you remain interested in renewing the SPL, grateful if you would let us have a revised APCP on a before 25 Feb 2021 for our consideration. Otherwise, we will proceed to reject your application for SPL renewal based upon the information we receive before this date.

33.  Shortly after that letter, on 1 February 2021, an online meeting was held between the CPD and CCC. The minutes of the meeting record that:

The EPD reiterated that the 4 critical measures [highlighted in the 28 January 2021 letter] shall be adopted to meet the requirement for SPL renewal, particularly providing a separate drying area within the site boundary to ensure no dripping of excess wash water outside the plant boundary from washed mixer trucks. Also, all activities and operations of the CBP, including the vehicle washing and storage of equipment shall be carried out within the site boundary at all times. The control measures including the procedure of vehicle washing, site plan with the proposed vehicle washing and drying facilities and location and numbers of CCTV shall be included in the revised APCP.

34.  On 25 February 2021, CCC submitted its third APCP (“3^rd APCP”). CCC says that the 3^rd APCP proposed systems that would satisfy the four measures (“Core Requirements”) that the EPD required CCC to install as identified in the 28 January 2021 letter and at the 1 February 2021 meeting. In its Amended Form 86, CCC specifically makes reference to and relies on the following matters:

(1)  Table 4.3 mentions that “All vehicle cleaning activities are carried out within the site boundary, splashing of wash water to public area outside the site boundary will be prevented at all times. Slurry water will be recycled and stored in recycled tanks for other production use e.g. cleaning of conveyor belt.”

(2)  §4.2.5 identifies in detail the vehicle cleaning system. Notably, it mentions that (a) a gate will be installed at vehicular exits for vehicle stopping to ensure sufficient time for cleaning (b) wheels of vehicles will be thoroughly cleaned before a vehicle is allowed to leave the CBP (c) after washing, which as indicated would be carried out within the site boundary, a separate area with blowers is provided, which will operate for a minimum of 3 minutes to blow dry the vehicles (d) detailed inspection by trained labour will be carried out to ensure the vehicles do not carry muddy water on their bodies before they are allowed to leave the site (e) street cleaning will be carried out to remove dust and muddy water from the surrounding streets.

(3)  §4.2.11 provides that “The maintenance, repair or general cleaning of the plant facilities and vehicles within the site boundary shall be carried out in such a manner that the omission of fugitive dust is minimised. Malfunctioning or breakdown of equipment leading to abnormal emission shall be dealt with promptly. In any case, the abnormal emission due to equipment failure shall be stopped as soon as practicable.”

(4)  §5.1.3 states “An CCTV system would be set up around the plant’s boundary with reasonable recording period for any complaint or non-conformity follow-up.”

(5)  §5.1.5 indicates “An independent environmental checker would be hired to check, review verify and validates [sic] plant’s compliance with the terms and conditions as listed in the licence. They should not be carrying out EM&A works or consultancy for the same project and be able to audit environmental performance of the plant in an independent and objective manner.” §5.1.6 describes the job of the independent environmental checker.

35.  However, the EPD took the view that despite its comments on the first two APCPs, and the repeated reminders and warnings, the 3^rd APCP still failed to demonstrate CCC’s capability to provide effective vehicle washing and drying facility (i.e. separate area for washing and drying of mixer trucks), and effective dust emission control and monitoring measures (i.e. CCTV installation plan). In other words, the Core Requirements had not been satisfied.

36.  Having considered matters, the EPD refused CCC’s application to renew the SPL, notified by its letter dated 29 April 2021, namely Decision 1. The terms of Decision 1 were as follows:

We refer to your application received by this department on 28 Oct 2019 for the renewal of Specified Process Licence (SPL) of your concrete batching plant (CBP) at 22 Tung Yuen Street, Yau Tong, Kowloon.

Section 15(3) of the Air Pollution Control Ordinance requires that, in the exercise of the discretion to grant or refuse to grant a licence the Authority shall, among other things, have regard to the capability of the applicant to provide and maintain the best practicable means for the prevention of the emission from his premises of any air pollutant. During the previous SPL period, this department has received multiple complaints against dust emission from your plant. Since July 2017, we have issued as many as 10 warning letters because of malpractices found. Furthermore, you have been prosecuted and convicted three times for violating the relevant conditions of the SPL. Hence when considering the above application, this department has grave concern about your capability to provide and maintain the best practicable means for the prevention of dust emission from your plant to prevent nuisance situations to the surrounding areas. The issues have been clearly conveyed to you in previous communications. In the letter of 28 January 2021, we also put down a deadline for you to submit a revised Air Pollution Control Plan (APCP) before 25 February 2021 to address the concern.

After reviewing all documents submitted to support your application, including the last revised APCP of 25 February 2021, we are not satisfied that you have adequately addressed the above issues. The Authority hereby notifies you that your application of SPL renewal is refused. The reasons are detailed below:

(i) the revised plant layout plan failed to illustrate, with sufficient space requirements and operational workflow, etc. that all activities relating to the maneuvering of mixer trucks for concrete loading, washing and drying, the use of a loader for clearing concrete and wash water on the loading bay, and the associated processes will be carried out within the boundary of the CBP at all times to prevent causing nuisance outside the CBP;

(ii) the submissions failed to demonstrate, with clear illustration of space requirement, equipment, control devices, supervision and management measures, etc. that the concrete mixer trucks will be sufficiently washed and dried to ensure no dropping of concrete or dripping of wash water from the mixer trucks onto public roads before leaving the CBP;

(iii) the submissions failed to demonstrate with adequate mitigation measures and supervision plan that dust emission during the delivery and handling of cement will be adequately prevented; and

(iv) the submissions failed to demonstrate with measures, equipment, and implementation plan that all critical operations with pollution potential, including the vehicle washing area, the transfer process of cement and sand, and the dust collectors on the top of silo, will be adequately monitored to ensure prompt response towards any equipment failure or mal-practice leading to dust emission.

If you consider yourself aggrieved by the above decision, you may, pursuant to section 31 of the Air Pollution Control Ordinance, appeal to the Appeal Board in such manner and form as prescribed under the Air Pollution Control (Appeal Board) Regulations (Cap. 311, Sub. Leg.) within 21 days from the date of receiving this letter.

37.  The APCO prescribes a two tier administrative structure, where:

(1)  the EPD, as the Air Pollution Control Authority, may grant or refuse to renew a licence under section 16(4), and

(2)  a person who is aggrieved by a decision, requirement or specification of a public officer given under section 16(4) may appeal to the Board under section 31(1)(e).

38.  The Board is independent from the EPD/Authority and is presided over by a person with legal training. The nature of the appeal to the Board provides an opportunity for complete review of the primary decision, and the review is in the nature of a rehearing. Section 33(2) provides that the Board may confirm, reverse or vary the decision, requirement or specification appealed from. Section 33(5) empowers the Board to receive new evidence, whether or not it would be admissible as evidence in a court of law. The decision of the Board represents the final decision of the administrative process, as no further statutory appeal has been provided for in the APCO.

39.  By its Notice of Appeal dated 18 May 2021, CCC lodged an appeal to the Board. The appeal before the Board took place with the benefit of full witness statements and written opening and closing submissions, the contents of which do not need to be rehearsed at this juncture. The hearing of the appeal took place on 27 October 2021, with live oral evidence from the witnesses and oral submissions.

40.  The four grounds of appeal as summarised by the Board in its heading of the relevant sections of Decision 2 were as follows:

(1)  Ground 1: The EPD failed to specify what standards and/or specifications that the measures for air pollution control proposed by CCC were inadequate and/or insufficient to fulfil the EPD’s requirements.

(2)  Ground 2: The EPD did not pay adequate regard and weight to the measures adopted and proposed by CCC and that the EPD did not provide adequate opportunity to CCC to demonstrate the measures adopted.

(3)  Ground 3: The EPD accorded undue weight to pressures from the public media and complaints for dust emissions from the CBP during the previous SPL period and previous convictions of CCC for violating the relevant conditions of the SPL.

(4)  Ground 4: The EPD adopted differential treatments between the Renewal Application and renewal application made by another operator.

41.  The appeal was dismissed by the Board by its Decision dated 27 January 2022, namely Decision 2.

42.  In Decision 2, at §§20-23, the Board set out the relevant principles as follows (and they remain uncontroversial):

(1)  Section 16(1) of the ACPO empowers a licence holder to apply to the Director of the EPD to renew a licence.

(2)  Section 16(5) of the ACPO provides that sections 15(2) to (4) shall apply to the renewal of a licence as they apply to the grant or refusal of a licence under that section.

(3)  Section 15(3) of the ACPO provides that in the exercise of his discretion to grant or refuse a licence, the Director shall have regard to (a) the capability of the applicant to provide and maintain the best practical means for the prevention of the emission from his premises of any air pollutant; (b) the attainment and maintenance of any relevant air-quality objective; and (c) whether the emission of noxious or offensive emissions would be, or likely to be, prejudicial to health.

(4)  Section 2 of the ACPO provides that best practical means has reference not only to the provision and the efficient maintenance of appliances adequate for preventing such a mission, but also to the manner in which such appliances are used and to the proper supervision by the owner of the premises of any operation in which such an air pollutant is evolved.

43.  The Board dismissed the appeal on all four grounds of appeal advanced by CCC.

44.  As will be seen below, the same grounds of appeal are to be found within the proposed grounds of review in this application for leave to apply for judicial review.

C.  Leave to File Late Affirmation

45.  At the beginning of the hearing, I dealt with an application on the part of CCC to file further affidavit evidence, for which CCC recognised it required leave. The material within the new evidence was said to be particularly relevant to Ground 5 (being an allegation of improper motive or ulterior purpose: see below). In particular, it was said that, where ulterior purpose may not be easy to prove, the importance of subsequent developments might be of real assistance to the Court. As it was put by Mr Yuen, the more the factual issues are looked at, the more support there is for Ground 5. Mr Yuen also submitted that there would not be any prejudice to the EPD. Further, he said the application was plainly not designed to delay the hearing of the application, as there was no incentive for CCC to defer the intended judicial review challenge.

46.  Mr Lam opposed the late application on the basis of: (1) the unexplained delay for at least part of the period; (2) the apparent irrelevance of the material sought to be adduced (much of which appeared to be in relation to neither Decision 1 nor Decision 2); and (3) the prejudice that would be caused to the EPD.

47.  However, I allowed the new evidence for reasons to be included in this Judgment. The new evidence seeks to canvass certain separate or connected matters which have occurred since Decision 1 and Decision 2, which are said to point to a conclusion that the EPD has deliberately and unlawfully targeted CCC with a view to driving it and its connected parties out of business. In short, it seemed to me to be appropriate to have all available materials (including as might be relevant from updated materials) before the Court in considering the various intended points of challenge. In particular, where a serious allegation is being made that government offices have acted with an improper motive or for ulterior purpose, I did not think it appropriate simply to shut out materials said to be relevant to consideration of that point simply because those materials post-dated the decisions the subject of challenge and had been provided late in these proceedings. Further, I saw little if any unfairness or prejudice to the EPD in exercising my discretion to allow the material to be considered. I thought I was able to weigh that material in the light of submissions to be made on it, and that it did not require any specific answer on affidavit from the EPD.

D.  Proposed Grounds of Review

48.  It is CCC’s case that both Decision 1 and Decision 2 were made in breach of the duty to act fairly and, amongst other things, have also deprived CCC of its legitimate expectation that EPD would act consistently with its past practice (i.e. the EPD Practice) in having constructive dialogue with CCC in respect of any plans (including APCP) put forward by CCC.

49.  The Amended Form 86 puts forward no less than eight proposed Grounds of review. As the headings in the Amended Form 86 identify, those eight Grounds canvass almost every conceivable type of public law judicial review challenge. They are as follows:

(1)  Ground 1: criteria vague and uncertain

(2)  Ground 2: legitimate expectation

(3)  Ground 3: procedural unfairness

(4)  Ground 4: irrelevant considerations

(5)  Ground 5: improper motive / ulterior purpose

(6)  Ground 6: unequal treatment

(7)  Ground 7: actual or appearance of predetermination

(8)  Ground 8: reasons challenge against Decision 2.

50.  Each proposed Ground can be considered in turn, though it is accepted that some of the Grounds are overlapping. As will be seen, it also seems to me that some of the Grounds are in tension with each other.

51.  When considering each Ground, and this being a leave application, I do not propose to set out the full detail of the arguments canvassed by the parties, but I have re-read the written submissions and considered them together with the oral submissions. Similarly, it is unnecessary to traverse the numerous legal authorities cited, when there is little if any dispute between the parties as to applicable principles of public law. It is the application of those principles to the facts which is the real battleground.

E.  Ground 1 – criteria vague and uncertain

52.  This intended Ground is an echo of the first ground of appeal taken before the Board.

53.  This Ground is based upon the principle – the broad effect of which is not controversial – that an applicant should not be left in any doubt about the criteria upon which a licence will be renewed, and that he should be given sufficient opportunity to make representations as to why he meets the criteria. Therefore, a decision based on vague and uncertain criteria is unlawful in the public law sense, or may be irrational because nebulous criteria may produce a quixotic, arbitrary or whimsical result.

54.  Mr Yuen submits that throughout the entirety of the application process of the application for renewal of the SPL and the appeal process against Decision 1, the EPD has not disclosed the criteria (if any) or has failed to disclose sufficiently objective and certain criteria (if any) on which the adequacy or sufficiency of the air pollution control measures proposed by the Applicant would be judged for the purpose of deciding whether the SPL would be renewed. In particular, it is suggested that the EPD never explained in Decision 1 why CCC’s proposal in the 3^rd APCP was regarded as inadequate or insufficient, and the EPD’s view that the 3^rd APCP lacked any detailed location plan was plainly wrong, and would not solve the deficiency as to the absence of clear and objective criteria. The further submission is that the deficiency was not rectified during the appeal process, so that it follows that the Board also erred in law in upholding Decision 1 in Decision 2.

55.  In the EPD’s Initial Response, it identifies that for a decision or for criteria to be void for vagueness or uncertainty, it would have to be so uncertain as to have no ascertainable meaning or so unclear in its effect as to be incapable of certain application. I accept that principle, and that mere ambiguity would not suffice. Nor does potential difficulty in enforcement invalidate something for uncertainty.

56.  The EPD argues that the Core Requirements are not vague and not uncertain. Rather, what they require can be objectively and readily ascertained. It is for an applicant such as CCC to supply details as to how those requirements would be satisfied, and it is not for the EPD to act as the applicant’s consultant. Reference is also made to the facts that: (1) the Core Requirements were raised months before the 3^rd APCP was submitted; and (2) CCC never complained about the vagueness of the EPD’s requirements in the two years following the filing of its renewal application on 28 October 2019. Further, the actual vagueness and uncertainty was in the APCP submissions.

57.  Mr Yuen submits that the EPD has misunderstood CCC’s complaint under Ground 1, and it proceeds on the wrong footing. He says the duty lies with the decision-maker to make clear what the applicable criteria are, and it is not open to seek to shift blame to the applicant for not seeking clarification. The problem with that submission, of course, is that there was no contemporaneous suggestion that there was any lack of clarity or certainty. Nevertheless, Mr Yuen submits that CCC did exactly what the EPD suggests it should have done (by way of detail that I do not need to rehearse in this judgment), so that it remains unclear why the Core Requirements were nevertheless regarded as unsatisfied. Instead, Mr Yuen submits that the EPD has sought to deploy ex post facto justification for its decision.

58.  However, I agree with Mr Lam that it remains less clear as to what criteria CCC is complaining of as being vague and uncertain. The most relevant criteria are to be found in section 15 of the APCO, which the EBD applied. Whilst an applicant might challenge the assessment as to whether the criteria have been satisfied, on the basis that the assessment was Wednesbury unreasonable and/or irrational, that is not the same as saying that the criteria themselves are vague or uncertain. It also seems to me to be telling, as I have already touched on above, that after the repeated conveyance of the Core Requirements to CCC, and its being informed that it had not satisfied them by earlier attempts, CCC did not give any indication that it had any difficulty in understanding them or what the requirements entailed. There has also been no complaint about the fact that the EPD found the 1^st APCP and 2^nd APCP unacceptable.

59.  Ground 1 is not reasonably arguable.

F.  Ground 2 – legitimate expectation

60.  The argument put forward in the Amended Form 86 is that EPD’s representations made in the 28 January 2021 letter and at the 1 February 2021 meeting gave rise to a substantive legitimate expectation on CCC’s part that, whatever the position up to that point had been, going forward EPD would renew the SPL if CCC were to adopt the four systems required by the Core Requirements, which CCC did in the 3^rd APCP. However, Decision 1 was an unlawful departure from that legitimate expectation, because the EPD took into account new considerations, including past incidents, without giving CCC the opportunity to address why the EPD should not deviate from the legitimate expectation or why the new considerations should not impinge upon the renewal of the SPL.

61.  Secondly, it is argued that it had been the consistent practice – i.e. the “EPD Practice” – that EPD representatives would provide comments to plans or programs (such as APCP) and CCC would be given time to respond, submit further materials and/or to make the necessary amendments. Hence there was legitimate expectation that (1) EPD’s representatives would comment on the 3^rd APCP so that views can be exchanged and necessary further materials could be submitted and/or necessary amendments could be made by CCC, and (2) the EPD would renew the SPL and thereafter the EPD and CCC would further discuss and agree on the plans or measure to reduce air and other pollution, which CCC would implement. So, it is argued, when the EPD did not engage in any discussion on the 3^rd APCP, or provide any comments on it, before making Decision 1, CCC was deprived of the opportunity to chase the feedback from the EPD and revise the 3^rd APCP in such a way as would meet the requirements or to the satisfaction of the EPD.

62.  With respect, this does not instinctively strike as being sown in fertile ground. What it in effect suggests is that there could be either (1) a never-ending process in which the EPD would continue to tell CCC why it has not satisfied the requirements and CCC would have apparently unlimited opportunities to continue to try to satisfy those requirements, and/or (2) the SPL would simply be renewed, even before CCC’s demonstrating that it had satisfied or could satisfy the requirements, and discussions would continue to see if agreement might be reached as to how the requirements could be met.

63.  Nevertheless, Mr Yuen submits that it is reasonably arguable that a fair, objective and contextual reading of the 28 January 2021 letter and the 1 February 2021 meeting is that the EPD was saying that hitherto (based on past events) CCC’s standard did not meet the requisite requirements for SPL renewal, but going forward the SPL would be renewed if CCC adopts in the 3^rd APCP the four systems EPD required CCC to install. In answer to the point made by the EPD in its initial response – that the EPD plainly did not make any representation that it would grant the SPL renewal if the Core Requirements were met, not least because the Core Requirements were “amongst others” and the EPD had made clear that past conduct was another consideration – Mr Yuen submits that construction is plainly unsustainable. Therefore, there being no reasonably arguable competing construction to the one put forth by CCC, there is no rival construction to decide against. Mr Yuen also says that there is supporting evidence for the existence of the EPD Practice, including in the correspondence between them relating to the 1^st and 2^nd APCP’s, the proposed condition 41 to the SPL if renewed, the prior correspondence relating to the last renewal of the SPL for the CBP, and the process engaged in with Redland.

64.  However, in my view, in addition to the inherent difficulty with this Ground (touched on above), I agree with Mr Lam that the 28 January 2021 letter and 1 February 2021 meeting, understood in context, were making clear that the SPL renewal would be refused if CCC had not demonstrated that it had satisfied the Core Requirements. It is incorrect for CCC to ignore that clear warning, and just to focus on the part demanding satisfaction of the Court Requirements. Anyway, even if there were a legitimate expectation, it would come into play only if the Core Requirements had been satisfied, when the EPD ultimately considered that they had not.

65.  As to the EPD Practice, I do not think the evidence substantiates it. In fact, it seems to me that the evidence points to the contrary position, as well as pointing out that the EPD Practice is contrary to ordinary common sense. Whilst it might reasonably be expected that there would be some feedback from the EPD on a renewal application, it makes little sense to think that there would be a continuing process of to-ing and fro-ing, commenting and renewed attempts at compliance, for as long as it might take until the EPD is finally satisfied that CCC might have satisfied or be able to satisfy the requirements necessary for SPL renewal. I also reject Mr Yuen’s slightly softened submission that, even if there was not to be indefinite communications, there should have been at least one more communication after the provision of the 3^rd APCP. Indeed, on the facts of this case, sight should not be lost of the fact that the 1^st APCP was only submitted 9 months after the previous SPL had already expired, and the 3^rd APCP was only submitted 14 months after the previous SPL had already expired (and, then, only in response to what might be regarded as a ‘final’ warning or ultimatum).

66.  Insofar as it might be necessary, I also agree with Mr Lam’s submission that even had there been a representation in the form of the EPD Practice as alleged, it must have been clearly withdrawn or superseded by the ultimatum given in the 28 January 2021 letter and 1 February 2021 meeting.

67.  Ground 2 is not reasonably arguable.

G.  Ground 3 – procedural unfairness

68.  The procedural unfairness put forward in the Amended Form 86 is that the EPD’s for reasons for Decision 1 were only disclosed to CCC for the first time in the voluminous witness statements provided little more than two weeks before the appeal hearing before the Board. That is said to be a clear contravention of the fundamental tenets of procedural fairness because:

(1)  CCC was deprived of the right to be heard and the right to prior notice of the charges against it before Decision 1 was made;

(2)  such late provision of relevant and substantial materials caused serious procedural unfairness to CCC in the context of the appeal hearing, as CCC did not have sufficient time effectively to prepare for and answer the new points (which included reliance on complaints or materials contained in social media and obtained through flying drone surveillance);

(3)  it is contrary to natural justice for the Board to base Decision 2, which confirmed Decision 1, on the additional reasons; and

(4)  CCC had no effective means to challenge and contradict evidence based on anonymous complaints, complaint and social media and unattributed photos as hearsay evidence.

69.  Mr Yuen submits that the principle that procedural unfairness in an earlier decision may be corrected by subsequent (usually appellate) procedure with proper safeguards has no application in this case, bearing in mind that the hearing before the Board and its Decision 2 were also tainted by procedural unfairness and other public law areas. As he puts it, Decision 2 did not correct the unfair and unlawful Decision 1.

70.  I disagree that this gives rise to any reasonably arguable grounds for review. First, the very nature of the appeal hearing before the Board, where the Board was to make its own decision on a rehearing with whatever evidence was provided to it (which did not have to be admissible in a court of law) identifies that any relevant procedural error leading to Decision 1 was capable of being cured.

71.  Further, from the various written submission materials provided to the Board – which materials were included in the exhibits for these proceedings – it can be seen that CCC made no complaint to the Board about the late provision of witness statement or materials, nor made suggestion that it had been in any way prejudiced by the timing of that provision. Rather, having mentioned the new materials in its opening submissions, CCC went on to address them in both its opening and closing submissions. No application was made for an adjournment, or to exclude the later produced materials from consideration by the Board on the appeal. I also agree with Mr Lam that CCC has not really identified what response it would have had to those materials, had it been provided with them earlier. Further, in so far as CCC says that it has been prejudiced by an inability to adduce appropriate evidence in response to anonymous or hearsay materials, so that little weight should be given to them, that submission either was or could have been made to the Board. The weight to be given to the evidence was a matter for the Board.

72.  Ground 3 is not reasonably arguable.

H.  Ground 4 – irrelevant considerations

73.  The Amended Form 86 puts forward the argument that both Decision 1 and Decision 2 are unlawful as both the EPD and the Board considered irrelevant factors that were material to both decisions. Reliance is placed on three examples, being:

(1)  the incidents of 21 May 2021 and in June and September 2021, relied upon to justify the first reason in Decision 1 actually postdate Decision 1, so could not have been a relevant factor to support or uphold Decision 1;

(2)  the August 2021 prosecution, relied upon to justify the second reason in Decision 1 again post-dated it, and at any rate CCC has not been convicted; and

(3)  in respect of the instances on 10 July and 2 December 2019, used to justify the third reason in Decision 1, they were in fact instances when CCC provided reports of failure of equipment in full compliance with its obligations under clause 43 of the terms and conditions of the SPL, therefore demonstrating CCC’s mitigation measures and supervision plan were adequate and sufficient, and so could not have been a relevant factor to support or uphold Decision 1.

74.  Though this ground was apparently not vigorously pursued by Mr Yuen orally, his skeleton submissions argue that the EPD’s assertion that it did not take these incidents into account – and that they were mentioned by way of information only and for context – is evidently incorrect. I disagree. It is clear that the witness statements provided to the Board contained material which was expressly stated to be for “the Appeal Board’s reference only as it relates to post-decision events”. It is not arguable to suggest that the Board failed to recognise that fact.

75.  I also accept that there is a disconnect between the suggestion that CCC complied with its clause 43 obligations and the suggestion that proved that it is mitigation measures and supervision plan were adequate. Complying with an obligation to report equipment failures does not necessarily equate to adequate measures (as numerous pollution incidents over the years demonstrates), but in any event it was the assessment of the adequacy that was relevant to the decision whether to grant or refuse renewal of the SPL.

76.  Ground 4 is not reasonably arguable.

I.  Ground 5 – improper motive / ulterior purpose

77.  This Ground is a repetition of – and, indeed, a ‘ramping up’ of – Ground 3 in the appeal before the Board (see above).

78.  As originally framed in the Form 86, this Ground was based on the suggestion that it may reasonably be inferred from the evidence that Decision 1 was made because of, or was motivated or materially influenced by, significant political pressure brought by politicians and/or developers who have developed or are developing new residential developments in the Yau Tong area and/or residents of that area and/or the press. This is based on the suggestion that whilst (a) before 2000, complaints against the CBP were few and far between, (b) since 2000, the number of complaints is noticeably risen without significant changes to or deterioration of the operation of the CBP, and (c) from around 2019, politicians have made a concerted and sustained effort to pressurise the Government to shut down the concrete batching plants in the YTIA in favour of the new residential developments.

79.  The amendments made in the Amended Form 86 assert that, after Decision 1 and Decision 2 the EPD resorted to highly unusual, unheard-of and illegal conduct designed to drive CCC out of the concrete batching plant business, which is consistent with reinforces the conclusion of the suggestion previously made. Against the various factors set out in the amendment, it is said that Decision 1 was plainly part and parcel of, or materially driven or influenced by, the EPD’s improper motives or ulterior purposes. As it is put by Mr Yuen in his submissions, the EPD had pre-determined it would refuse to renew the SPL even before CCT lodged its renewal application.

80.  With respect, this extremely serious allegation has no proper foundation. First, it is inherently implausible. Secondly, there is real force in Mr Lam’s submission that it is disingenuous for CCC to seek to equate or elevate public complaints (arising from its own failures) to improper public or political pressure on the EPD. There is also nothing to suggest that the Core Requirements were imposed other than because of the statutory requirement of BPM applying to the circumstances of the case. CCC’s argument also appears to overlook the fact that the very role of the EPD in this context is in large part to protect the public from air pollution through the regulatory and licencing regime. Further, applying CCC’s own argument in the context of its Ground 4, the post-decision events canvassed in its amendments should be irrelevant to the making of Decision 1 and Decision 2. Whilst I do not think it necessary to traverse each of the points advanced by CCC, I do not accept that the assertions there made (and including in the new evidence) reasonably arguably support the allegation of improper purpose or ulterior motive.

81.  I also note that – as is common ground – the same Core Requirements were imposed on Redland, whose license was renewed in 2021 (on the basis that the EPD was satisfied that Redland could provide adequate protection and meet the BPM). That shows that there was no intent to shut down concrete batching plants in the YTIA in favour of new residential development (where it is also common ground that concrete demand was high in part precisely because of nearby development). Rather, it shows the intent that such concrete batching plants meet the necessary standards for continued operation. Further, the grant or renewal of a licence for CCC’s concrete batching plant in Sha Ling negates the idea that the EPD was attempting to force CCC out of business – and the baseless suggestion is not saved by the submission that the renewal was handed by different regional division of the EPD, where there was no political or public pressure.

82.  In any event, Ground 5 is and could only be a challenge to Decision 1. As Mr Yuen makes clear, there is no allegation that the Board was under any political pressure and/or was in any way motivated to seek to drive CCC out of business, when it reached its own independent views expressed in Decision 2.

83.  Ground 5 is not reasonably arguable.

J.  Ground 6 – unequal treatment

84.  This Ground is an echo or repeat of Ground 4 in the appeal before the Board – where the Board pointed out that CCC had not produced any objective evidence in support of its assertions other than the hearsay suspicions that Redland’s renewal application had submitted a APCP similar to CCC’s 3^rd APCP, whereas the EPD gave direct evidence refuting the suspicion.

85.  In the Amended Form 86, the suggestion is that the two APCPs submitted by Redland and CCC were for all practical purposes the same, and that contrary to the EPD’s evidence at the appeal before the Board, Redland’s SPL renewal application had not located any CCTV location plan. As a result, less stringent requirements had been imposed on Redland without any valid justification, and the EPD Practice had also been applied by the EPD throughout Redland’s renewal application and continued afterwards.

86.  In his submissions, Mr Yuen says that CCC is unable to fully address this Ground because the EPD has refused to disclose full particulars concerning Redland’s successful new renewal of its SPL. On an application for leave to apply for judicial review based upon an assertion of unequal treatment, that submission is clearly misplaced. In any event, the evidence before the Board permitted the Board properly to reach its conclusion that there was no unequal treatment. There is no arguable basis for interference with the Board’s conclusion in this respect. On the facts set out at length above, there is also nothing in the suggestion that the EPD failed to engage CCC at all in the material respect.

87.  In passing, it can be noted that this proposed Ground is one of the many which appears (at least in part) to invite the Court to reach a different conclusion as to the merits of the grant or refusal of the SPL. That is not the role of the Court on an application for judicial review, which focuses on the decision-making process of the decision the subject of intended challenge.

88.  Ground 6 is not reasonably arguable.

K.  Ground 7 – actual or appearance of predetermination

89.  In the Amended Form 86, it is asserted that the only inference to be drawn from the available evidence as to how the EPD made Decision 1 is that the EPD has actually predetermined, or alternatively that there is an appearance that the EPD has predetermined, that it would refuse to renew the SPL.

90.  Particular pleaded reliance is placed upon the context of the allegation made under Ground 5 (see above). But, I have already rejected Ground 5 as being not reasonably arguable.

91.  Reference is also made to the EPD’s letter dated 23 August 2019 as somehow suggesting that the EPD had decided (even before CCC applied to renew the SPL) that it would not renew the SPL if the present loading bay setup of the CBP were to remain unchanged. But, as Mr Lam points out, what that letter identified was new and enhanced requirements, necessary in view of frequent dust emission incidents for reviewing and strengthening and installing additional protections. The letter merely identified that a failure to meet the new requirements would result in refusal of the SPL renewal, and it obviously did not say that any SPL renewal had in effect been predetermined. Nor was there any such appearance of predetermination. Indeed, save as regards the baseless challenge as to their uncertainty, CCC has not challenged the new requirements (Core Requirements), which related to both the loading bay setup and its operation. There were numerous meetings, inspections and discussions conducted as to how the necessary improvements might be achieved, demonstrating the lack of any predetermination. Nor did CCC say before Decision 1 that it simply would never be possible for it to meet the requirements; CCC’s primary argument is that it in fact did meet the requirements.

92.  Ground 7 is not reasonably arguable.

L.  Ground 8 – reasons challenge against Decision 2

93.  There is no dispute that what amounts to adequate reasons for a decision given by a public authority would depend on the context in which the decision-maker is operating and the circumstances of the case in question. The reasons given must be intelligible and adequate, enabling the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important or controversial issues. Recognition must be given to the fact that the decision letter is addressed to parties well aware of the issues involved and the arguments they advanced. Reasons may be briefly stated, may refer only to the main issues in dispute, and need not canvass every material consideration no address every single issue that has arisen.

94.  The essential question for the Court when assessing a challenge as to adequacy of reasons is to determine whether, when viewed objectively and the specific factual context of the case and the information and materials objectively known to the parties at the material time, the reasons as provided in the decision were adequate to enable the applicant understand why the respondent decided as it did.

95.  The criticism of the reasons in Decision 2 put forward in the Amended Form 86 essentially rests on the argument that Decision 2 failed to address the particular arguments advanced, or why certain matters were accepted.

96.  I have considered the factual materials (part of which has been set out at some length above), the written submissions of the parties presented to the Board, and Decision 2. It seems to me that, in that context, the reasons provided in Decision 2 were certainly adequate to enable CCC to understand why the Board decided as it did. By way of summary:

(1)  As to Ground 1 of the appeal, the Board set out the three statutory criteria to which the EPD was to have regard in consideration of the renewal of SPL. It identified what is meant by BPM, and that there was no requirement on the part of the EPD to provide guidance to CCC to attain the capability required or to reach BPM. It also identified that there is no duty imposed upon the EPD to provide standards and/or specifications, but rather the responsibility fell on CCC to show that it could satisfy the necessary considerations. Notwithstanding that, the Board noted that the EPD had set out some standards in the 21 January 2019 letter (which it summarised and partly quoted, and also referred to the annexed guidance). It also referred to the BPM Guidance Note, and the 28 January 2021 letter. The Board considered the reasons given by the EPD for rejection and explained why it took the view that those were good reasons so that the ground of appeal must fail.

(2)  As to Ground 2 in the appeal, the Board stated that even if CCC’s case would be taken at its highest, the fact remained that the SPL renewal application had not proposed adequate measures in accordance with the previously noted requirements. The Board also recognised that prior incidents showed that CCC was incapable of providing and maintaining the best practical means for prevention of omission of air pollutants from the CBP.

(3)  As to Ground 3 in the appeal, the Board explained why it considered CCC’s assertion to be self-serving. It also explained its view that the ground of appeal was not substantiated by any objective evidence.

(4)  As to Ground 4 in the appeal, the Board again contrasted the lack of objective evidence produced by CCC, other than suspicion, with the clear statement from the EPD’s witness.

97.  Ground 8 is not reasonably arguable.

M.  Result

98.  There is also force in Mr Lam’s submission that the two-tier administrative structure which led to the making of Decision 1 and Decision 2 means that CCC is in effect attempting to have a ‘second bite of the cherry’ in relation to Decision 1, by challenging it again after an unsuccessful appeal to the Board. The repetition of grounds is obvious.

99.  Indeed, like some other two-tier processes, here: (1) when carrying out its review function, the Board is not required to find appellate error before it can vary or reverse the decision under review; (2) the review function permits the appellant to raise with the Board any defect it says occurred in the process leading to the decision under appeal; (3) the Board is independent and presided over by a lawyer; (4) the Board can receive new evidence which was not before the original decision-maker (and that evidence does not need to meet the requirements of admissibility for a court of law); (5) the Board will give a reasoned decision on the appeal; and (6) the appeal to the Board is intended to bring finality to the process. Hence, the EPD’s decision under appeal will be superseded by the decision of the Board.

100.  Therefore, I agree with Mr Lam that it should follow that, in addition to the reasons already given above, Grounds 2, 5, 6 and 7 must necessarily fail.

101.  There is also the point that any challenge to Decision 1 is well out of time, and would ordinarily have been barred by the alternative available remedy of the appeal, which was in fact pursued.

102.  In any event, none of the proposed Grounds of review is reasonably arguable with reasonable prospect of success. Therefore, CCC’s application for leave to apply for judicial review is refused on all proposed Grounds.

103.  I see no reason why costs should not follow the event. Therefore, I order the EPD’s costs of these proceedings to be paid by CCC, to be taxed if not agreed, with certificate for two Counsel.