HONG KONG GOLF CLUB v. DIRECTOR OF ENVIRONMENTAL PROTECTION

HCAL 1258/2023

[2024] HKCFI 1279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1258 OF 2023

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J U D G M E N T

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A.  Introduction

1.  During the Battle of Copenhagen in 1801, when told of an unwelcome flag signal from his superior officer ordering him to disengage, Lord Nelson lifted his spyglass to his blind eye, said “I see no flag”, and explained “I have only one eye and am entitled to be blind sometimes”. The Director of Environmental Protection (“DEP”) has no such entitlement.

2.  Rather, the DEP is charged by statute to be vigilant (in terms which actually render it irrelevant whether the DEP does or does not take the Nelsonian view). That statute is the Environmental Impact Assessment Ordinance Cap 499 (“EIAO”), the long title of which declares a purpose which governs and informs the interpretation of the EIAO as follows:

An Ordinance to provide for assessing the impact on the environment of certain projects and proposals, for protecting the environment and for incidental matters.

3.  Indeed, Article 119 of the Basic Law requires the Government to pay regard to the protection of the environment, reflecting at a constitutional level the value placed on environmental protection in the community. The EIAO may be said to be at the centre of a range of legislation and policies by which that aspiration is given expression.

4.  I can return to the detail of the statutory regime and process in due course, but suffice it to say by way of introduction that:

(1)  The process of assessment of the impact on the environment of projects and proposals has at its forefront the protection of the environment.

(2)  Protection of the environment is a matter of genuine public interest and concern, so that there must be transparency and genuine public engagement and participation in the process in assessing whether any designated project is or is not environmentally acceptable.

(3)  Hence, public participation in the environmental impact assessment (“EIA”) process and the provision of specialist advice by the Advisory Council on the Environment (“ACE”) are central pillars of the legislative scheme.

(4)  The pivotal point in the EIA process is the approval by the DEP of an Environmental Impact Assessment Report.

(5)  That step of approval is only open to the DEP if the EIA report meets the requirements of the relevant Study Brief (“SB”) and Technical Memorandum (“TM”).

(6)  In short, non-compliance of the EIA report with the SB and TM precludes approval of it by the DEP.

5.  In 2019, a SB was issued under section 5(1)(a) of the EIAO, relating to a proposed housing development (“Project”) on a 32 ha site, being land then held by the Fanling Golf Club (“FGC”) and comprising part of the ‘Old Course’, operated by the Hong Kong Golf Club (“Club”). The project proponent is the Civil Engineering and Development Department (“CEDD”).

6.  The statutory process continued up to and including May 2023, including generation of an EIA report (“EIA Report”) supposedly finalised in May 2022 – though that report was nevertheless then still subject to further queries and the provision of additional information. This is because, and with respect to its authors, few people thought the EIA Report was in every respect of the highest or even sufficient quality.

7.  By letter dated 11 May 2023 (“Decision”), the DEP approved the EIA Report, though subject to certain annexed conditions (“Conditions”) and recommendations (“Recommendations”). The Conditions included the requirement that the CEDD perform a review of the project (“CEDD Review”).

8.  The Decision was on its face expressly issued pursuant to section 8(3) of the EIAO.

9.  The Decision is the subject of the application for judicial review made by the Club in these proceedings, for which I gave leave on 25 July 2023.

10.  By my Decision dated 24 August 2023, [2023] HKCFI 1946 (“Stay Decision”), I granted an interim stay of the Decision, pending the determination of the judicial review application. But, the grant of the interim stay was expressly not to operate so as to prevent the CEDD from conducting the CEDD Review, on the basis and requirements I also set out.

11.  The substantive hearing was heard over five days of argument in May and July 2024. At the hearing: the Club was represented by Mr Benjamin Yu SC leading Mr Timothy Parker; the DEP was represented by Mr Rimsky Yuen SC leading Ms Anna Chow and Mr Martin Ho; and the CEDD was represented by Mr Jin Pao SC leading Ms Leticia Tang and Mr Zenith Chan.

12.  I think it fair to say that – across those five days – the arguments range was rather ramulose. Although to decide the case overall it may not be necessary for me to reach the extremity of every small branch, I have been urged to consider deciding practically every point in dispute. As I understand it, this is not merely to provide more scope for the parties to appeal, but because some of the arguments (and the decisions on them) may have an impact beyond the four corners of this case and the particular project involved, and my views on individual topics might provide assistance down the line.

13.  As a result, I have covered more ground and information than is strictly necessary for the decision-making critical path. Nevertheless, I will not make reference to every single point raised or piece of evidence produced and referenced in argument, though I have had regard to them (with the benefit of a full transcript of the hearing).

14.  At the end of the hearing, I reserved my decision to be handed down. This is my Judgment.

B.  Statutory Regime and Process

15.  Before turning to the material facts and analysis of the particular EIA process leading to the Decision now under challenge, it is helpful to put matters into their proper statutory context.

16.  The following provisions of the EIAO are material for present purposes, looking at: Part II ‘Environmental Impact Assessment’, sections 4 to 8; Part III ‘Environmental Permits’, sections 9 to 14; Part V ‘Technical Memorandum’, section 16; and Schedule 1 ‘Interpretation’.

17.  Under section 4, certain projects are to be “designated projects”, as listed in Schedules 2 and 3, which may be amended by the Secretary for Environment and Ecology (“Secretary”) by order published in the Gazette. At the time of its commencement in 2019, the Project – with a study area of 32 ha – fell within the description of a designated project.

18.  However, it can be noted that, following on from the Chief Executive’s Policy Address 2021, legislative amendments were made to Schedule 3 to the EIAO, said to be intended to streamline the workflow and existing statutory and administrative procedures relating to housing development, including the EIA process under the EIAO.

19.  Prior to the legislative amendments, Schedule 3 to the EIAO encapsulated “Engineering feasibility study of urban development projects with a study area covering more than 20 ha or involving a total population of more than 100,000”. By the legislative amendment, which took effect on 30 June 2023, Schedule 3 was revised to cover only “An urban development or redevelopment project covering an area of more than 50 ha”. Hence, a development project covering around 2½ times the area of Victoria Park, Hong Kong’s largest public park – equivalent to about 46 standard football pitches – now falls outside the list of designated projects which requires an environmental impact assessment under the EIAO.

20.  The core provisions of the process relevant to this case are to be found in sections 5, 6, 7 and 8, which provide:

5. Application for brief or permission to apply directly for environmental permit

(1) A person who is planning a designated project shall apply to the Director—

(a) for an environmental impact assessment study brief to proceed with an environmental impact assessment study for the project; or

(b) if the requirements of subsection (9), (10) or (11) are relevant, for approval to apply directly for an environmental permit.

(2) The applicant shall—

(a) submit the application in the form approved by the Director;

(b) submit a project profile that complies with the technical memorandum;

(c) advertise in the form the Director may require the availability of the project profile on the day following the lodging of the project profile with the Director in a Chinese language daily newspaper and an English language daily newspaper, each of which circulate generally in Hong Kong; and

(d) pay the prescribed application fee.

(3) The Director shall inform the Advisory Council on the Environment on the receipt of a project profile and forward a copy of the project profile to it.

(4) The Director may within 14 days of receiving the application request the applicant to give further information concerning the project profile or notify the applicant of any defects in the application.

(5) If the Director requires further information, the Director may also require the applicant to advertise the availability of the additional information or details relating to the information.

(6) The Advisory Council on the Environment and any person may comment on a project profile to the Director on environmental issues covered by the technical memorandum relevant to the designated project within 14 days of its being advertised. The Director is to consider any comments received in drawing up the study brief for the designated project.

(7) The Director shall within 45 days of receiving the application or further information under subsection (4)—

(a) issue to the applicant an environmental impact assessment study brief; and

(b) notify the Advisory Council on the Environment that he has issued the environmental impact assessment study brief; or

(c) by notice in writing permit the applicant to apply directly for an environmental permit.

(8) The Director is taken to have given his consent for an applicant under subsection (7)(c) to apply directly for an environmental permit if the Director has not given notice in writing refusing permission within 45 days of receiving the application or further information under subsection (4).

(9) The Director may permit an applicant to apply directly for an environmental permit if he satisfies the Director, having regard to the project profile, that—

(a) the environmental impact of the project is adequately assessed in an environmental impact assessment report in the register; and

(b) the information and findings of the environmental impact assessment report in the register are still relevant.

(10) The Director may permit an applicant to apply directly for an environmental permit for a material change to an exempted project by notice in writing if the applicant satisfies the Director, having regard to the project profile, that the impact of the material change to the project and the mitigation measures described in the project profile meet the requirements of the technical memorandum.

(11) The Director may, with the consent of the Secretary, permit an applicant to apply directly for an environmental permit if he satisfies the Director, having regard to the project profile, that the environmental impact of the designated project is unlikely to be adverse and the mitigation measures described in the project profile meet the requirements of the technical memorandum.

(12) The Director may impose conditions on a permission to apply directly for an environmental permit that include, without limiting the power to impose any reasonable condition, requirements to be complied with for the issue and holding of an environmental permit for the designated project, but shall be guided by the relevant technical memorandum.

6. Environmental impact assessment report

(1) An applicant shall prepare an environmental impact assessment report in accordance with—

(a) the requirements of the environmental impact assessment study brief; and

(b) the technical memorandum applicable to the assessment.

(2) The applicant shall deliver an environmental impact assessment report to the Director for approval and pay the prescribed application fee. The Director may require the applicant to supply sufficient copies of the report so that the Director is able to circulate copies to relevant parties as defined in the technical memorandum.

(3) The Director shall, within 60 days of receiving the environmental impact assessment report, decide if the assessment—

(a) meets the requirements of the environmental impact assessment study brief and technical memorandum; or

(b) does not meet the requirements of the environmental impact assessment study brief and technical memorandum.

(4) If the Director decides that the environmental impact assessment report meets the requirements of the brief and the technical memorandum, he shall advise the applicant when the report must be exhibited for public inspection, whether the advertisement is to contain any specific material and whether a submission to the Advisory Council on the Environment or its subcommittee is required.

(5) The Director is taken to have decided that the environmental impact assessment report meets the requirements of the environmental impact assessment study brief and the technical memorandum if the Director has not given notice in writing that the report does not meet the requirements of the brief and the technical memorandum within 60 days of receiving the report. The applicant is required to submit the number of copies of the report as set out in the brief.

(6) If the Director decides that the environmental impact assessment report does not meet the requirements of the brief and the technical memorandum, he shall advise the applicant of the reasons why the report is unacceptable.

(7) The applicant shall present his environmental impact assessment report to the Advisory Council on the Environment at the times and places advised by the Director if the applicant is required to submit the report to the Council.

7. Public inspection of reports

(1) The applicant shall as soon as reasonably practicable after he has been notified under section 6(3)(a) that an environmental impact assessment report meets the requirements of the environmental impact assessment study brief—

(a) make the report available in such numbers as the Director may reasonably require at locations approved by the Director for public inspection free of charge for a period of 30 days;

(b) advertise as the Director may require the availability of the report once every 10 days of the period in a Chinese language newspaper and an English language newspaper, each of which circulate generally in Hong Kong; and

(c) provide free of charge sufficient quantities as the Director may require of the report to comply with paragraph (a).

(2) The applicant shall set out in the advertisement—

(a) the nature of the designated project and the site where the project is proposed to be carried out;

(b) the period for which, the places at which and the hours during which the report is available for public inspection;

(c) that a member of the public may give the Director written comments on the report before the period of public inspection expires;

(d) the address to which the comments are to be sent; and

(e) any other information that the Director may reasonably require relating to the project.

(3) The Director shall require an applicant to re-advertise or extend the period of public inspection for up to another 30 days if the applicant fails to comply with any requirement under this Part or a direction that the Director gives to an applicant under this section unless the Director is satisfied that the failure is not significant.

(4) The Director shall notify the Advisory Council on the Environment if an environmental impact assessment report is suitable for public inspection.

(5) The Advisory Council on the Environment may give any comments it has on the report to the Director within 60 days of its receiving a copy of the report.

8. Approval of environmental impact assessment report

(1) The Director may, within 14 days of the expiry of the public inspection period or the receipt of comments from the Advisory Council on the Environment, whichever is later, ask an applicant in writing to give him the information he requires to decide whether to approve an environmental impact assessment report. The Director shall supply the applicant with one set of written comments received from members of the public and the Advisory Council on the Environment free of charge where comments have been received.

(2) The Director shall not make a request for further information where comments have not been submitted to him on the report as a result of the public consultation or from the Advisory Council on the Environment.

(3) The Director shall, within 30 days of—

(a) the expiry of the public inspection period;

(b) the receipt of comments from the Advisory Council on the Environment; or

(c) the receipt of information under subsection (1),

whichever is the later, approve, approve with conditions or reject an environmental impact assessment report for the designated project.

(4) The Director is taken to have approved without conditions an environmental impact assessment report if the Director has not given notice in writing rejecting the report or approving it with conditions within 30 days of the happening of the later of the events set out in subsection (3)(a), (b) or (c).

(5) The Director shall place an approved environmental impact assessment report on the register.

(6) If the Director rejects an environmental impact assessment report, he shall give the applicant the reasons for the rejection.

21.  In Part III relating to environmental permits, it is fair to identify that sections 10, 12 and 13 also include a process with a timetable, which include default provisions such that if the DEP has not given particular notices in writing within the required 30 days, he will be deemed to have taken particular steps such as issuing a first or further environmental permits without conditions, or on the same conditions as previously imposed.

22.  In Part V, section 16 provides as follows:

16. Technical memorandum

(1) The Secretary may issue technical memorandums setting out principles, procedures, guidelines, requirements and criteria for—

(a) the technical content of a project profile;

(b) the technical content of an environmental impact assessment study brief or environmental impact assessment report;

(c) deciding whether a designated project is environmentally acceptable;

(d) deciding whether an environmental impact assessment report meets the requirements of the environmental impact assessment study brief;

(e) deciding whether the Director will permit an applicant to apply directly for an environmental permit under section 5(9), (10) or (11);

(f) resolving conflicts on the content of the environmental impact assessment study brief and the environmental impact assessment report;

(g) taking advice from other authorities;

(h) deciding what is a material change, addition or alteration to an environmental impact or to a designated project;

(i) the issue of environmental permits;

(j) the imposition of environmental monitoring and audit requirements for designated projects as conditions in environmental permits.

(2) A technical memorandum may require or authorize the Director to follow the advice of the Secretary.

(3) In giving advice pursuant to a technical memorandum, the Secretary shall ensure that the effect of his advice is to protect the environment.

(4) The Director shall be guided by all applicable technical memorandums when deciding on matters under sections 5, 6, 8, 10, 12, 13 and 14.

(5) A technical memorandum is to be published in the Gazette and laid on the table of the Legislative Council at the next sitting after its publication.

(6) The Legislative Council may, by resolution passed at a sitting of the Legislative Council held before the expiration of a period of 28 days of the sitting at which a technical memorandum was laid on the table of the Legislative Council, repeal the technical memorandum.

(7) If the period for debate would but for this subsection expire—

(a) after the end of a session of the Legislative Council or a dissolution; but

(b) on or before the day of the second sitting of the Legislative Council in the next session,

the period extends to and expires on the day after that second sitting.

(8) Before the expiry of the period referred to in subsection (6) or that period as extended by virtue of subsection (7), the Legislative Council may by resolution in relation to a technical memorandum specified therein—

(a) in the case of the period referred to in subsection (6), extend that period to the first sitting of the Legislative Council held not earlier than the twenty-first day after the day of its expiry;

(b) in the case where the period referred to in subsection (6) has been extended by virtue of subsection (7), extend that period as so extended to the first sitting of the Legislative Council held not earlier than the twenty-first day after the day of the second sitting in that next session.

(9) A resolution passed by the Legislative Council in accordance with this section is to be published in the Gazette within 14 days of its passing or within the further period the Chief Executive may allow in a particular case.

(10) A technical memorandum issued under this section is to come into operation on the expiry of the period for debate of the technical memorandum in the Legislative Council.

(11) In this section, sitting (會議), when used to calculate time, means the day on which the sitting commences and only includes a sitting at which subsidiary legislation is included on the order paper.

(12) A technical memorandum is not subsidiary legislation.

23.  The definitions within Schedule 1 include the following:

environmental impact (環境影響), for a designated project, means—

(a) an on-site or off-site change that the project may cause in the environment;

(b) an effect of the change on—

(i) the well-being of people, flora, fauna and ecosystems;

(ii) physical and cultural heritage;

(iii) a structure, site or other thing that is of historical or archaeological significance;

(c) an on-site or off-site effect on any of the things referred to in paragraph (b) from activities carried on for the project;

(d) a change to the project that the environment may cause,

whether the change or effect occurs within or outside the site of the project;

environmental impact assessment report (環境影響評估報告) means a report prepared under section 6;

environmental impact assessment study brief (環境影響評估研究概要) means a study brief issued under section 5(7)(a);

environmental permit (環境許可證) means an environmental permit issued under section 10(5);

site of cultural heritage (文化遺產地點) means an antiquity or monument, whether being a place, building, site or structure or a relic, as defined in the Antiquities and Monuments Ordinance (Cap. 53) and any place, building, site, or structure or a relic identified by the Antiquities and Monuments Office to be of archaeological, historical or palaeontological significance.

24.  The operation of the EIAO has been considered in a number of cases, including by the Court of Final Appeal (“CFA”) in Shiu Wing Steel Ltd v Director of Environmental Protection (2006) 9 HKCFAR 478 and Leung Hon Wai v Director of Environmental Protection (2015) 18 HKCFAR 568. Reference can also be made to a decision of the Environmental Impact Assessment Appeal Board in Kowloon-Canton Railway Corp v Director of Environmental Protection (EIA Appeal Board 2/2000, 30 July 2001).

25.  From those cases, and the provisions themselves under review, the following propositions can be drawn:

(1)  Although the EIAO follows a broad pattern of similar legislation in other jurisdictions, it contains provisions which are unique to Hong Kong.

(2)  The purpose of the EIAO declared in its long title governs the interpretation of it.

(3)  Section 16 authorises the Secretary to issue a technical memorandum (e.g. the TM relevant to this case) to set out particular principles, procedures, guidelines, requirements and criteria.

(4)  Whilst the TM is not subordinate legislation, the Director is mandated to be guided by all applicable TMs when deciding on matters under sections 5, 6, 8, 10, 12, 13 and 14.

(5)  The process leading to issuing an environmental permit commences with the submission of a project profile by an applicant / project proponent.

(6)  A person planning a designated project shall apply to the DEP for an EIA SB to proceed with an EIA study for the project: see section 5(1) and 5(2)(a).

(7)  The project profile must comply with the TM: see section 5(2)(b).

(8)  The project profile must be advertised: see section 5(2)(c).

(9)  The DEP must inform the ACE of the receipt of a project profile and forward a copy of the project profile to it: see section 5(3).

(10)  The DEP may within 14 days request the applicant to give further information concerning the project profile, and may also require the applicant to advertise the availability of additional information or details relating to the information: see section 5(4) and (5).

(11)  The ACE and any person may within 14 days comment on a project profile to the DEP, and the DEP must consider any comments received in drawing up the SB: see section 5(6).

(12)  The DEP has 45 days after receipt of the application or further information either to (a) issue a SB, and notify the ACE that he has done so, or (b) permit the applicant to apply directly for an environmental permit: see section 5(7).

(13)  If the DEP fails to give notice in writing refusing permission within 45 days, he is taken to have given consent to the direct application for an environmental permit: see section 5(8).

(14)  When the DEP issues the SB, the applicant must prepare an EIA report in accordance with the requirements of the SB and the TM applicable to the assessment: see section 6(1).

(15)  The applicant shall deliver the EIA report to the DEP: see section 6(2).

(16)  The DEP has 60 days after receiving the EIA report to decide if the assessment does or does not meet the requirements of the SB and TM: see section 6(3).

(17)  The section 6(3) decision leads to the process of public consultation and submission to the ACE.

(18)  But, whilst a decision made under section 6(3) that an EIA report meets the requirements of the SB and TM leads immediately to the advertising and publication of the report, it is, for the purposes of approval under section 8(3), provisional only and may be changed, usually in the light of public or ACE comments (with the possible rejection of the report), or be affirmed by and subsumed into the decision to approve the report.

(19)  If the DEP fails within 60 days to give notice in writing that the report does not meet the requirements of the SB and TM, then he is taken to have decided that it does meet those requirements: see section 6(5).

(20)  If the DEP decides that the EIA report does meet the requirements, he shall advise the applicant when the report must be exhibited for public inspection, whether the advertisement is to contain any specific material and whether a submission to the ACE or its subcommittee is required: see section 6(4).

(21)  If the DEP decides that the EIA report does not meet the requirements, he shall advise the applicant of the reasons why the report is unacceptable: see section 6(6).

(22)  The applicant shall, as soon as reasonably practicable after notification that the EIA report meets the requirements of the SB, make the report available for public inspection for a period of 30 days, and provide such advertisements of its availability as the DEP may require: see section 7(1).

(23)  The DEP shall require an applicant to re-advertise or extend the period of public inspection for up to another 30 days if the applicant fails to comply with any requirement under Part II or any direction given by the DEP: see section 7(3).

(24)  The ACE may give any comments it has on the report to the DEP within 60 days of its receiving a copy of the report: see section 7(5).

(25)  Logically, the longer 60-day period given to the ACE than the 30-day period given to the public, permits and is intended to permit the ACE specifically to take into account the views of the public when the ACE formulates its own comments.

(26)  Within 14 days of the later of expiry of the public inspection period or the date of receipt of the ACE’s comments, the DEP may ask the applicant to provide information required to decide whether to approve the EIA report, and shall supply the applicant with the written comments from members of the public and the ACE: see section 8(1).

(27)  Within 30 days of the later of (a) the expiry of the public inspection period, (b) the receipt of comments from the ACE, or (c) the receipt of information under section 8(1), the DEP must approve, approve with conditions or reject the EIA report for the designated project: see section 8(3).

(28)  The section 8(3) decision opens the gate to the issuance of an environmental permit (see below), and it is the final and only decision on compliance with the SB and TM.

(29)  If the DEP does not give notice in writing rejecting the report or approving it with conditions within those 30 days, he shall be taken to have approved the EIA report without conditions: see section 8(4).

(30)  Once approved, the EIA report is placed by the DEP upon the register: see section 8(5).

(31)  The placing of the report on the register opens the way for an applicant to apply for an environmental permit for the designated project.

(32)  The DEP’s opinion as to what the SB and TM require is not sufficient to establish a lawful exercise of the power of approval under section 8(3).

(33)  The correct definition of what the SB and TM require is a question of law for the Court if the DEP’s decision is challenged by way of judicial review.

(34)  If the section 8(3) decision is quashed, there is no approved EIA report on the register and there is no EIA report to which the DEP might have regard in exercising his powers under section 10(3).

26.  As to the Court’s task upon a judicial review challenge to a decision of the DEP under section 8(3), on the basis that there has been a failure to comply with the requirements of the TM and SB, the following points can be made:

(1)  Although the SB and TM are not legislative instruments, they are expressed to impose duties and to prescribe procedures.

(2)  The question as to whether the relevant EIA report meets the requirements of the TM and the SB is to be determined objectively.

(3)  So, to ascertain whether an EIA report meets their requirements, their provisions must be properly understood.

(4)  As technical instruments, the SB and TM must be understood as an expert risk assessor, properly understanding the legal requirements they create, would understand them.

(5)  The TM is a document which applies generally to all designated projects, while the SB is project-specific.

(6)  Hence, the SB sets the agenda for the rest of the process, and the general requirements of the relevant provisions in the TM should be informed by what has been set out at corresponding provisions (if any) of the SB.

(7)  In construing language which affects legal rights and duties, the Court is constrained to arrive at a single meaning to define those rights and duties.

(8)  The Court must find the single meaning of the relevant provisions of the SB and TM, and the procedure they prescribe, in order to determine the scope of the DEP’s power to approve the EIA report.

(9)  Only in that way can the Court determine whether the power was validly exercised or whether the purported approval fell outside the scope of the power.

(10)  In interpreting the SB and TM, the EIAO’s purpose of protecting the environment must inform the meaning attributed to the instruments created under the EIAO’s authority.

27.  Reference can also be made to the case of Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at §38, where Chow J (as Chow JA then was) emphasised that the structured and defined timetable for various steps to be taken relating to the approval of EIA reports and the granting of environmental permits is an aspect of the public interest also “inbuilt” within the legislative scheme, and is not a separate or independent purpose.

28.  In passing, I also note that Chow J suggested at §§45, 51 and 57 that:

(1)  Generally speaking, compliance with the express obligations imposed by the EIAO (including the TM and SB created under it) should be regarded as a sufficient discharge of the DEP’s duties in relation to the EIA process, and the Court should not readily impose additional obligations on the DEP over and above what is expressly required by the EIAO.

(2)  Traditional administrative law principles include that a decision-maker exercising a statutory power must ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.

(3)  If the DEP approves a report which does not in fact fully meet the requirements of the TM and SB, it is strongly arguable that whether his decision should be treated as being a decision made without jurisdiction, or unlawful, should depend on the circumstances of the case, including the nature and seriousness of the non-compliance.

(4)  In any event, if the Court comes to the view that non-compliance (or breach) is purely technical and has no material impact on the decision or on the environment, the Court is entitled not to grant any relief in the exercise of its discretion.

29.  I do not think that those latter comments were intended to suggest there is room to approve an EIA report which is flawed – even if only by a deviation or breach that is regarded as minor, insignificant or inconsequential, or purely technical. But if they were, that is contrary to the firm statements otherwise made – for example by the Court of Appeal in Join Smart Ltd v Director of Environmental Protection [2022] 1 HKLRD 1110 at §27(2) – namely that if an EIA report does not meet the requirements of the TM and the SB, the DEP has no power to approve it under section 8(3) of the EIAO.

30.  It has been pointed out in the Australian context by Gerry Bates in ‘Environmental Law in Australia’ 11^th Ed at §6.13 that the standard of compliance for the TM and SB may not be one of absolute perfection. There can be imported into the statutory obligation some concept of reasonableness and practicality, without being overly technical or astute to finding fault. It is also suggested that, depending on the particular circumstances, it may not necessarily invalidate an EIA report that it does not explore every avenue advocated by experts, or cover every possible alternative, and instead only sets out what the project proponent considers feasible. But, it seems to me that, even accepting those matters, that does not inject some form of proportionality assessment or filter, because compliance either exists or it does not (and it is unnecessary and unhelpful to add the words “strict” or “substantial” before “compliance”).

31.  Once the requirements of the SB and the TM have been determined, the question whether the EIA report is in compliance with those requirements is a question of fact. The Court will be looking to see if the relevant EIA report is comprehensive in its treatment of the subject matter, objective in its approach, and that it alerts the decision-maker and others to the effect of the activity on the environment and the consequences to the public inherent in carrying out or not carrying out that activity. It must be written in understandable language and contain material that would properly alert both laypersons and specialists to the environmental impacts inherent in carrying out the proposed activity. But the core point is that the report must meet the requirements of the TM and SB.

32.  As to the process of public consultation, the cases show (and it seems to me to be obvious) that:

(1)  The approval process is intended to be highly transparent.

(2)  During the approval process, other stakeholders – including members of the public concerned about environmental issues – should have full opportunity to comment and to state their views.

(3)  Hence, when proposals are made which are not assessed in the report, they should at least be the subject of a further assessment and amended report, which will normally require further exhibiting of the amended report for public consultation and re-submission to the ACE.

(4)  The TM at §4.5.2 may permit that, if the report requires certain amendments but such amendments will not affect the validity of the assessment and the overall results and conclusions of the report, then the DEP may approve the report with conditions.

(5)  But, it is clearly not the intention that the DEP should exercise that discretion so widely as to defeat the integrity of the EIA process.

(6)  Indeed, it would be inappropriate if the DEP could decide to vary or depart from the process of assessment in a manner not provided for or intended under the EIAO, the SB and the TM, and in a manner which would not involve public consultation or public accountability.

(7)  TM §4.5.2 is a safety net provision, allowing approval and therefore for projects to go ahead in a timely manner after a relatively minor oversight, omission, change of circumstances and the like.

(8)  But the power is to be used to preserve the integrity of the process, not to circumvent it.

(9)  That is because public participation in the process prior to the DEP’s approval or rejection of the report is an important step in that process.

(10)  Public consultation affords the public the opportunity for critical evaluation of environmental assessments made by the project proponent, and the soundness of the underlying methodologies, and the chance to offer comments upon them.

(11)  In short, new and substantive additions or variations should all be confirmed and assessed as part of the study and the report.

(12)  Critical matters should be assessed in the report and, if they have not been, it is no answer to suggest that the overall results and conclusions might not be affected – as whether they are or are not affected is precisely the reason why those matters must be assessed in and/or in reaction to the report.

(13)  That is what the requirements of the integrity of the process demand.

33.  This is consistent with general public law principles relating to consultations, explained for example in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at §108, R (Holborn Studios Ltd) v Hackney London Borough Council [2018] PTSR 997 at §§74-80, and Keep Wythenshawe Special Ltd v University Hospital of South Manchester NHS Foundation Trust [2016] EWHC 17 (Admin) at §§70-76. I might summarise those principles as follows:

(1)  Whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly.

(2)  The specific steps necessary to take in respect of consultation to ensure that the decision-maker acted fairly is to be measured bearing in mind the purpose and the context of the consultation and the decision it is intended to inform.

(3)  In other words, fair consultation must be shaped to its purpose and from its context.

(4)  To be proper, consultation must be undertaken at a time when proposals are still at a formative stage.

(5)  The role that the consultation is playing in the decision-making process must be considered.

(6)  For example, the consultation may be taking place in the context of a staged decision-making process and may be part of the sequence of consultation to be undertaken during that process. So the requirements of fairness will be shaped by the needs of the stage that the decision-making has reached, and the recognition that there may or may not be further consultation and further decisions to be made later in the process.

(7)  The consultation must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response.

(8)  Adequate time must be given for this purpose.

(9)  The product of consultation must be conscientiously taken into account when the ultimate decision is taken.

(10)  The purpose of the requirements for consultation are manifold, but include at least (a) contributing to better decision-making when the decision is under consideration, by ensuring that the decision-maker receives all relevant information, (b) ensuring procedural fairness for those whose interests may be adversely affected, and (c) to provide for public participation and involvement in decision-making on applications involving the public interest.

(11)  The question whether re-consultation is required if there is a change to the proposal on which there has already been consultation depends on what fairness requires.

(12)  That will depend on factors including the purpose for which the requirement of consultation is imposed, the nature and extent of any changes, and their potential significance for those who might be consulted.

(13)  The requirements of fairness in considering whether or not to re-consult must start from an understanding of any differences between the proposal and material consulted upon and the decision that the public body in fact intends to make.

(14)  But, the test for whether re-consultation is required if an amendment is proposed to an application is not simply whether it involves a ‘fundamental change’ or a ‘substantial difference’, or whether it results in a proposal that is in substance different from that applied for – because depending on how each is interpreted, it is possible that the test would indicate re-consultation was not required when fairness would require it.

(15)  It is preferable instead to ask simply what fairness requires in the circumstances.

(16)  Though the Court should not be too liberal in the use of its power of judicial review to compel further consultation on any change, it is not the function of the Court merely to review the reasonableness of a decision-maker’s judgment of what fairness required.

(17)  Rather, what fairness requires is ultimately for the Court itself to determine.

34.  This does not conflict with a general proposition that certain types of inadequacy or shortcoming in an EIA report might be fairly remedied by subsequent steps, such as by production of supplementary documents or information. Yet, on occasions, fairness may require that supplementary documentation or information to be the subject of further consultation. An example of this to be found in a recent case – although not referred to by the parties in this application – is the decision of the UK Supreme Court in R (on the application of Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52, where at §66 the holding made by Singh J in Cogent Land LLP v Rochford District Council [2012]  EWHC 2542 (Admin) was summarised in the following terms:

A defect in the adequacy of an environmental report prepared for the purposes of the SEA Directive may be cured by the production of supplementary material by the plan-making authority, subject to there being consultation on that material.

35.  Anyway, in an area of law where it is frequently said that what fairness demands is context-specific, the ultimate question remains whether in the particular circumstances fairness requires re-consultation.

C.  Material Background and Chronology

C.1  The FGC and the Old Course

36.  The Club was founded in 1889, and after a period of operation in Happy Valley and Deep Water Bay, the Club relocated to Fanling to build a full 18-hole course. The ‘Old Course’ was laid by the end of 1911.

37.  The Old Course was inspired by the Old Course at the home of golf in St Andrews, Scotland. It was laid out in what has been called the ‘Golden Age’ of golf course development, and is the oldest golf course in all of China. It presents golfers with challenging shots created by the landscape’s existing topography. As noted by one expert in golf course architecture:

The primary inspiration back when the Old Course was built in 1911 was the Scottish way of playing close to the ground which differs greatly from the modern courses built post-1950 where the layout requires the golfer to attack the target more through the air. This is evident on the Old Course where it would be possible to get around with a putter and where there is typically always an open route into a green or landing area. During the golden period in the early twentieth century match play was the preferred format for playing golf. This allowed architects more freedom to create daring and unconventional holes that would often produce high scores. Golf is very different today. Stroke play is the primary competition where the goal is to complete around in the fewest number of shots. Anything that is deemed too quirky or unconventional and requires an element of luck is seen in the negative because it is possible that a player will produce a high score which will impact the end score. This is one of the reasons why there are few courses left that look and play like the Old Course at foundling today.

During the golden age period of architecture “luck” was regarded as part of the legitimate fun of the game, without which as a sport the game would suffer. The attraction that counted most was the test of ingenuity in getting round difficulties and overcoming new and unexpected situations. Contrary to this, modern golf course architects and superintendents are asked to do everything in their power to eliminate luck, which limits more creative design concepts and unconventional golf. The outcome being that all of our modern golf courses have become relatively standardised in their demands and hazards to the point that the golfer seldom encounters a bad lie in the fairway or bunker, or a bad bounce on his approach. …  The principal thought in designing and building golf courses of the golden age era was to limit the hand of man and in doing so provide a constant adventure in a natural setting like is the case at St Andrews and the Old Course at Fanling.

38.  A former golf Hall-of Famer player, who played at the very first Hong Kong Open staged at the FGC in 1959 (and later won that tournament on three occasions) wrote prior to his death in 2018:

[The] Hong Kong Golf Club is an incredibly special place in the world of golf. Not only is it historically important – its courses, notably the Old Course, are architectural gems that have been laid out over pristine ancient terrain – but its role as the focal point for all of Hong Kong golf cannot be understated.

39.  Following the Old Course, the New Course was added in 1931 on additional land acquired by the Club. The Eden Course was added in 1970.

40.  Prior to the matters relating to the specific proposed development in this case, there was apparently a wider North East New Territories New Development Areas Planning and Engineering Study-Investigation, leading to a final EIA report in 2013. At §13.6.1.15, reference is made to the FGC in the following terms:

Part of [FGC] is located in the south of the Study Area. Golf courses are highly modified landscape with high maintenance short grassland and tree patches, largely of exotic species; these are often managed to reduce or minimise understorey. Other than ground-truthing to check that this habitat was as shown in aerial photographs, field surveys were not undertaken in this habitat and the evaluation was based on a desktop review. This review found no evidence that golf course in the Study Area is of significance for any flora or fauna species.

41.  That paragraph was followed by Table 13.45, headed ‘Ecological evaluation of golf course’, which was as follows (bold in original):

Criteria	Assessment
Naturalness	An artificial habitat used for active recreation.
Size	A relatively large area occupying 30.72 ha in the south of the Study Area.
Diversity	From aerial photographs and ground-truthing it was evident that plant species diversity was highly influenced by the management regime and hence likely to be low. Fauna diversity was not assessed.
Rarity	One of six golf courses in Hong Kong.
Re-creatability	Easily re-creatable.
Fragmentation	Not fragmented.
Ecological linkage	Few ecological linkages to other habitats.
Potential value	Ecological value would be increased by permitting establishment of understorey vegetation and by managing water features for wildlife.
Nursery/breeding ground	No nursery or breeding grounds known and unlikely due to management regime and high level of human activity.
Age	Present for many years but succession arrested by management activities.
Abundance/Richness of wildlife	Low
Ecological value	Low Ecological Value

42.  Even acknowledging these matters were stated on the basis of a desktop review, prior to any detailed assessment, some of the above statements – such as the suggested easy re-creatability, and low abundance/richness of wildlife – demonstrate what some might consider to be a high level of naïveté and/or are rather startlingly wide of the mark.

C.2  Background to the Project

43.  In September 2017, a Task Force on Land Supply (“TFLS”) was established to consider options for addressing Hong Kong’s land supply challenges. The TFLS reported in December 2018, including a suggestion that the Government should accord priority to studying and resuming the 32 ha of land of the FGC to the east of Fan Kam Road (“Land”). The TFLS noted that public views on the subject of building on the FGC were “polarised”. It also qualified its recommendation with the caveat that:

Uses of PRL sites are not only a land supply matter, but also touch upon policy areas concerning sports, recreation, ecological conservation, as well as the issue of whether the PRL sites should be opened up further to the public. The Task Force has formulated its recommendations to the Government mainly from the perspective of increasing land supply.

44.  The recommendations of the Task Force were accepted in February 2019, and priority was to be accorded to studying and resuming the Land, for the purpose of housing development (with emphasis on public housing).

45.  On 29 May 2019, the CEDD as project proponent (“Project Proponent”) applied to the DEP for issuance of an EIA study brief called ‘Technical Study on Partial Development of Fanling Golf Course Site – Feasibility Study’ (“Project Profile”). As the name identifies, feasibility was not being assumed, but was being assessed. The Project Profile was directed at a proposed development of an area of about 32 ha, thus recognising that it fell within Item 1 of Schedule 3 of the EIAO. It also recognised that certain construction elements (in particular potential sewage treatment works and pumping station) may be proposed which would be designated projects under Schedule 2.

46.  The Project Profile also identified that the EIA study would investigate the environmental impacts and propose the appropriate mitigation measures with the intention that all proposals would be environmentally acceptable and cost effective. It stated that the measures to minimise environmental impacts as listed in Annex 1 of the TM had been reviewed.

C.3  The Study Brief

47.  After the CEDD had submitted the Project Profile, exhibited for public comment under the EIAO, an EIA study brief (i.e. the SB) was then issued on 9 July 2019 under section 5(1)(a) of the EIAO.

48.  The purpose of the study was stated at §1.5 of the SB as follows:

The purpose of this EIA study is to provide information on the nature and extent of environmental impacts arising from the construction and operation of the Project under different development scenarios and associated activities that will take place concurrently. This information will contribute to decisions by the Director on:

(i) the overall acceptability of any adverse environmental consequences that are likely to arise as a result of the Project and its staged implementation;

(ii) the conditions and requirements for the detailed design, construction and operation of the Project to mitigate against adverse environmental consequences wherever practicable; and

(iii) the acceptability of residual impacts after the proposed mitigation measures are implemented.

49.  The objectives of the EIA study were set out at §2.1, as follows:

2.1 The objectives of the EIA study are as follows:

(i) to describe the Project and associated works together with the requirements and environmental benefits for carrying out the Project;

(ii) to identify and describe the elements of the community and environment likely to be affected by the Project, and/or likely to cause adverse impacts to the Project, including both the natural and man-made environment and the associated environmental constraints:

(iii) to identify and quantify emission sources and determine the significance of impacts on sensitive receivers and potentially affected uses;

(iv) to identify and quantify any potential ecological and fisheries impacts arising from the construction and operation of the Project and to propose measures to mitigate these impacts;

(v) to identify any potential landscape and visual impacts and to propose measures to mitigate these impacts;

(vi) to identify any negative impacts on sites of cultural heritage and to propose measures to mitigate these impacts;

(vii) to propose measures/actions to avoid or minimise potential archaeological impact if any archaeological remains are identified during the construction of the Project;

(viii) to identify and quantify contaminated land within the Project area for development works, and to propose measures to avoid disposal in the first instance;

(ix) to propose the provision of infrastructure or mitigation measures to minimise pollution, environmental disturbance and nuisance during the construction and operation of the Project;

(x) to investigate the feasibility, effectiveness and implications of the proposed mitigation measures;

(xi) to identify, predict and evaluate the residual (i.e. after practicable mitigation) environmental impacts and the cumulative effects expected to arise during the construction and operation phases of the Project in relation to the sensitive receivers and potential affected uses;

(xii) to identify, assess and specify methods, measurements and standards, to be included in the detailed design, construction and operation of the Project which are necessary to mitigate these residual environmental impacts and cumulative effects and reduce them to acceptable levels;

(xiii) to investigate the extent of secondary environmental impacts that may arise from the proposed mitigation measures and to identify constraints associated with the mitigation measures recommended in the EIA study, as well as the provision of any necessary modifications;

(xiv) to identify, assess and evaluate the cumulative impacts arising from all the elements and works of the Project;

(xv) to design and specify the environmental monitoring and audit requirements to ensure the implementation and effectiveness of the environmental protection and pollution control measures adopted;

(xvi) to identify any additional studies necessary to implement the mitigation measures or monitoring and proposals recommended in the EIA report; and

(xvii) to identify DP(s) listed under Schedule 2 of the EIAO as part of the Project for assessment under the EIA study.

50.  Hence, the objectives included at least the need for:

(1)  a sufficient description of the Project and associated works, together with the requirements and the environmental benefits for it (i.e. not just the adverse effects of it);

(2)  a description of the elements of the environment likely to be affected by the Project, and those elements as might adversely impact the Project (apparently implicitly recognising that some environmental impacts might hinder or prevent the ability to carry out the Project as described);

(3)  identification and quantification of any potential ecological impacts arising, and a proposal of measures to mitigate those impacts;

(4)  an investigation of the feasibility, effectiveness and implication of the proposed mitigation measures;

(5)  identification, prediction and evaluation of the residual environmental impacts, and the cumulative effects expected;

(6)  identification of methods, measures and standards which must be included in the detailed design stage, construction and operation of the Project, necessary to mitigate the residual environmental impacts and cumulative effects so as to reduce them to acceptable levels;

(7)  identification of the impact of the proposed mitigation measures themselves;

(8)  identification, assessment and evaluation of the cumulative impacts arising from all of the elements and the works of the Project;

(9)  design for monitoring and audit to ensure implementation and effectiveness of environmental protection measures adopted.

51.  The Scope of the SB was defined at §3.2.1 (as is material for present purposes), as follows:

The scope of this EIA study shall cover the Project and associated works mentioned in sections 1.2 and 1.3 of this EIA Study Brief. For the purpose of assessing whether the environmental impacts shall comply with the criteria of the TM, the EIA study shall address the key issues described below, together with any other key issues identified during the course of the EIA study:

(i) environmental benefits and dis-benefits of different land use options and layout options under different development scenarios, design and construction methods of the Project with a view to deriving the preferred land use option(s) and layout option(s) that will avoid or minimize adverse environmental impact. Particular attention shall be given to the acceptability of the overall environmental performance of the Project and associated works at all stages of implementation and cumulative effects due to interfacing existing, committed and planned projects in the vicinity of the Project;

(vi) potential extent of land contamination arising from natural occurrence and anthropogenic input within any Project area for development works and relevant mitigation measures;

(vii) potential sewerage and sewage treatment implications to cope with discharges from population and any development from the Project, taking into account the capacity requirements for the existing, committed and planned developments within the same sewage catchment and the capacity of the Shek Wu Hui Sewage Treatment Works;

(viii) potential terrestrial and aquatic ecological impacts, in particular impacts on habitats including but not limited to semi-natural/natural streams, marshes, ponds, secondary woodlands, grasslands, plantation; and species of conservation importance …, Arising from the construction and operation of the Project;

(x) potential landscape impacts arising from the Project and potential visual impacts arising from the above-ground structures of the Project, including impacts to the existing landscape resources, the users of the Fanling Golf Course and residents of the nearby residential areas;

(xi) potential cultural heritage impacts, in particular impacts on built heritage including Foundling Lodge, Clubhouse of The Hong Kong Golf Club Fanling Golf Course, Half-way House of The Hong Kong Golf Club Fanling golf Course, and No. 5 Ng Uk Tsuen, as well as Graves, due to the Project;

(xii) measures/actions to avoid or minimise potential human health impacts associated with the use of treated sewage effluent during the operation of the Project;

(xiii) potential cumulative impacts of the Project, through interaction or in combination with other existing, committed and planned projects in the vicinity of the Project; and

(xiv) identification of individual DPs [i.e. designated projects] proposed under the Project that fall under Schedule 2 of the EIAO, in addition to those mentioned in section 1.3 of this EIA Study Brief, including but not limited to the potential whitening of Fan Kam Road.

52.  The SB at §3.1.1 required the Project Proponent to describe the need of the Project, and to describe the benefit of the Project and scenarios with and without the Project. §3.4.1 required the EIA study to address all environmental aspects of the activities as described in the scope, and that the assessment shall be based on the best and latest information available during the course of the EIA study (obviously recognising that potentially better and later information might become available during the course of the study).

53.  Material for present purposes, the SB had various Appendices, including:

(1)  Appendix G – ‘Requirements for Land Contamination Assessment’;

(2)  Appendix H – ‘Requirements for Ecological Impact Assessment (Terrestrial and Aquatic)’;

(3)  Appendix J – ‘Requirements for Landscape and Visual Impact Assessment’.

54.  As an example, Appendix H had as its stated aim to protect, maintain or rehabilitate the natural environment. In particular, the Project should avoid or minimise impacts on recognised sites of conservation importance and other ecologically sensitive areas and species of conservation importance. The assessment was required to identify and quantify as far as possible the potential ecological impacts associated with the Project, both directly by loss of habitat, and indirectly by potential impacts such as human disturbance and/or change of water quality and/or hydrodynamic regime to natural environment. The Assessment was also required to include, amongst other things, the following major tasks (as numbered in Appendix H):

(v) investigate and describe the existing wildlife uses of various habitats with special attention to those wildlife groups and habitats with conservation importance, including but not limited to the following:

(e) vertebrates, including … mammals (both terrestrial and flying …) …

(g) macroinvertebrates, including butterflies … odonates and moths; and

(h) any other habitats and wildlife groups identified as having special conservation importance by the EIA study.

(vii) using suitable methodologies (including but not limited to those adopted in other relevant EIA studies in Hong Kong), and considering also any works activities from other projects reasonably likely to occur at the time, identify and quantify as far as possible any direct (e.g. loss of habitats), indirect (e.g. light pollution, changes in water qualities, hydrodynamics properties, hydrology, noise and other disturbance generated by the construction and operational activities, etc.), on-site, off-site, primary, secondary and cumulative ecological impacts on the wildlife groups and habitats identified such as direct loss of habitat, potential diversion or modification of stream courses, disturbance to wildlife, destruction of habitats, reduction of species abundance/diversity, loss of roosting, feeding and breeding grounds, reduction of ecological carrying capacity and habitat fragmentation and any other possible disturbance caused by the Project and the activities of the residents and visitors; and in particular the following:

(a) ecological impacts of loss of habitats of conservation importance, in particular woodland, marshes, semi-natural/natural streams and ponds due to the construction of the Project;

(c) indirect ecological impacts due to potential hydrological disruption and/or deterioration of the water quality in the marshes, semi-natural/natural streams, ponds or other wetland habitats in the assessment area due to drainage diversification works, surface run-off, drainage and effluent discharge, waste dumping/spillage, etc. during the construction and operation phases.

C.4  The Technical Memorandum

55.  Though I am setting out some of the matters relating to the TM after I have set out various provisions of the SB, it is to be remembered that the TM was in place before the SB, and is of more general application.

56.  The TM had, amongst others, the following material provisions:

1.3.1 This technical memorandum uses standard scientific terms. Where the [EIAO] defines a term, that term applies.

3.4 The EIA study brief may set out issues relating to the combined impacts of the entire project or the cumulative impacts of the existing, committed and planned developments in the vicinity of the project, but such issues shall be limited to those that may have a bearing on the environmental acceptability of the project. Such assessment shall be based on the best available information at the time of the assessment. Such information shall be that which the applicant has access to or as is provided by the [DEP] in the [SB].

57.  In the context of the provisions of the TM relating to the review of and approval of the EIA Report, these can be found in §§4.4 and 4.5 (underlining in original), as follows:

4.4 The Review of the EIA Report

The EIA report shall be reviewed according to the following steps:

4.4.1 Compliance with the Study Brief and Technical Memorandum: The coverage and approaches adopted in the EIA report shall be reviewed against the EIA study brief and the guidelines in this technical memorandum.

4.4.2 Quality of the EIA Report: The quality of the EIA report shall be reviewed having regard to the guidelines in Annex 20 and in Section 4.3 [General Approaches and Methodologies for Assessment]. The report shall be considered as adequate if there are no omissions or deficiencies identified which may affect the results and conclusions of the assessment. In particular the following factors shall be considered:

(d) whether the identification and descriptions of the potential environmental impacts in the EIA report are complete and whether all applicable criteria in Annexes 4 to 10 inclusive have been considered;

(e) whether the assumptions and methodologies used are sound and adequate;

(f) whether adverse environmental effects are avoided to the maximum practicable extent;

(g) whether the assessment has considered and compared the environmental benefits and this benefits of various scenarios with or without the project;

(k) whether the report has assessed and determined the feasibility, practicability, programming and effectiveness of the recommended mitigation measures;

(m) whether the report has listed out in schedule the environmental protection requirements and mitigation measures that the applicant is prepared to implement.

4.4.3 Evaluation of the Residual Environmental Impacts: The residual environmental impacts refer to the net environmental impacts after mitigation, taking into account the background environmental conditions and the impacts from existing, committed and planned projects. When evaluating the residual environmental impacts (the net impacts with the mitigation measures in place), the following factors shall be considered:

(a) the importance of the residual environmental impacts in terms of the following factors:

(i) effects on public health and health of biota or risk to life …

(ii) the magnitude of the adverse environmental impacts …

(iii) the geographic extent of the adverse environmental impacts …

(iv) the duration and frequency of the adverse environmental impacts …

(v) the likely size of the community or the environment that may be affected by the adverse impacts …

(vi) the degree to which the adverse environmental impacts are reversible or irreversible …

(vii) the ecological context …

(viii) the degree of disruption to sites of cultural heritage …

(ix) international and regional importance …

(x) both the likelihood and degree of uncertainty of adverse environmental impacts: If the adverse environmental impacts are uncertain, they shall be treated more cautiously than impacts for which the effects are certain and the precautionary principle shall apply.

…

4.5 Approval of the EIA Report

4.5.1 After the public inspection of the report and, if required, the consultation with the [ACE], the EIA report shall be approved with or without conditions if

(a) the requirements in the EIA study brief have been met;

(b) the quality of the report meets the requirements as set out in Section 4.4 and the results and conclusions are technically sound and reliable;

(c) it addresses relevant environmental issues raised by the public and the [ACE] during the public inspection period; and

(d) all relevant environmental principles and criteria laid down in this technical memorandum can be met and the residual environmental impacts are within the relevant criteria, unless with sound environmental justifications and without long-term serious environmental implications.

4.5.2 In case the report requires certain amendments but such amendments will not affect the validity of the assessment and the overall results and conclusions of the report, the Director may approve the report with conditions.

58.  Annex 16 to the TM provides the guidelines for ecological assessment. The guiding principle is set out at §3.1, including §3.1(a) which states that:

areas and/or habitats of ecological importance (e.g. those listed in Note 1 and 2 of Appendix A) shall be conserved as far as possible. Any project that is likely to result in adverse ecological impacts in areas of ecological importance shall not normally be permitted unless the project is necessary; it has been proven that no other practical and reasonable alternatives are available, and, adequate on-site and/or off-site mitigation measures are to be employed.

59.  Annex 16 also provides for assessment methodology, setting an ecological baseline, by a study which shall at least review existing information, and include a habitat survey. At §5.1.2.2, it is provided that:

To ensure that the baseline information obtained are accurate, reproducible and can be easily verified, the methodology used must be clearly stated in the ecological assessment report. The methods employed must be sound and scientific. References shall be made to those standardised or accepted internationally. Results of the survey shall be recorded in specifically designed standard forms as appropriate. Data obtained shall be quantified and statistical analysis shall be applied whenever appropriate.

C.5  The EIA Report

60.  In March 2020, the CEDD’s consultant – WSP Ltd (“WSP”) – made a presentation. The consultant had conducted initial appraisal of the site constraints, and tabled three development options with different public/private housing development mix, plot ratios etc. For this purpose, the Land was divided into four Sub-Areas. Options 1 and 2 involved housing development at Sub-Areas 1 and 3, whereas Option 3 involved housing development at Sub-Areas 1, 2 and 3. After discussion, it was agreed that it was more viable to focus on a refined version of Option 2, namely to have public housing development at Sub-Area 1 only.

61.  In January 2021, a briefing for the Secretary for Development put forward the proposal that Sub-Area 1 should be used for public housing, whereas Sub-Areas 2 to 4 should be preserved as a public park with minimal development. Later in 2021, it was confirmed that housing development should not be recommended in those three sub-areas.

62.  The EIA Report was submitted by the CEDD to the DEP in May 2022, and was also made available for public inspection. The EIA Report covered the entire 32 ha. However, it stated that only 8.1 ha at the northern tip of the site was suitable for housing development, i.e. Sub-Area 1. The remaining areas, that is Sub-Areas 2 to 4, were assessed to be too ecologically sensitive for housing development.

63.  Hence, I think it is clear that the original intention was for potential residential development across the entirety of the 32 ha. That is, the Land was to be resumed for the purposes of developing housing on perhaps all of it. Subsequently, the potential area of development was restricted to 8.1 ha (or 9.5 ha), primarily because the view was taken that a more restricted development would avoid the areas of high ecological value in Sub-Areas 2 to 4, whereas Sub-Area 1 was regarded – correctly or not – as being of relatively lower ecological value.

64.  As I noted in my Stay Decision, that background and context suggested that if the technical studies concluded that the Project could not viably be built even if restricted to Sub-Area 1, there would be no reason to cease playing golf on the 32 ha – and indeed, perhaps no need even to have taken back the Land, as that might be thought contrary to the public interest in maintaining the cultural heritage of the Old Course, and the benefits to Hong Kong of an increasing number of international golf tournaments hosted at the FGC.

65.  The development option proposed contemplates the construction of 12 high-rise housing blocks of up to 164m in height, yielding an estimated 12,000 public housing rental units and subsidised sale flats, with a plot ratio of 7. Provision is also made for commercial and retail facilities, a transport interchange, and educational and social facilities.

66.  The EIA Report included assessments relating to various matters including an Ecological Impact Assessment (“EcoIA”), a Landscape and Visual Impact Assessment (“LVIA”) and Tree Survey, and a Cultural Heritage Impact Assessment (“CHIA”). Relevantly, it did not have a Hydrology Impact Assessment (“HydroIA”).

67.  It can also be noted that subsequent stages and activities were envisaged for the Project. For example, the EIA Executive Summary, under the heading ‘Environmental Monitoring and Audit Requirements’, stated:

An Environmental Monitoring and Audit (EM&A) programme will be implemented during the construction and operation phases to regularly monitor the environmental impacts on the neighbouring sensitive receivers. Any action required during the construction and/or operation phases are also recommended for implementation. EM&A requirements for air quality, noise, water quality, sewerage and sewage treatment, waste implications, land contamination, ecology, fisheries, landscape and visual and cultural heritage have been recommended. Regular site inspection and audits will be conducted during construction phase who ensure that the recommended mitigation measures are properly implemented. The EM&A requirements are specified and detailed in the EM&A Manual.

68.  On 17 May 2022, the CEDD was informed of the suitability of the EIA Report for public inspection, and it was thereafter exhibited for public comment from 20 May 2022 to 18 June 2022.

C.6  Public Inspection and Comments

69.  During the public inspection period, 1,451 sets of written comments were received from members of the public, including the Club. I am told that 1,449 (i.e. all but 2) of the written comments objected to the proposed Project. The Club made a Statutory Submission.

70.  The Club’s Statutory Submission comprised expert reports based on independent scientific studies conducted by the Club’s consultants, addressing each of the topics identified in the SB, and technical reviews of the EIA Report, prepared by the Club’s independent consultants, analysing the accuracy and completeness of the EIA Report, and assessing whether it complies with the TM and the SB.

71.  The Club says that its consultants found gross errors in nearly every technical section of the EIA Report, such that the assessments as to environmental value and impact were wholly unsustainable. The Club’s consultants included a checklist identifying 303 apparent major instances of non-compliance with the TM and/or the SB.

C.7  Consideration by the ACE

72.  Part of the EIA process also involved lengthy consideration of the EIA Report by the ACE. The ACE variously and on many occasions requested and was provided with further information as part of its considerations. It did so in part because a number of members of the ACE were clearly not satisfied with the EIA Report. For example, at the end of a meeting on 18 July 2022, three quarters of the members of the ACE were recorded to have reservations about the comprehensiveness, accuracy and adequacy of the ecological survey carried out, and that the information provided was insufficient to support endorsement of the report at that stage.

73.  The CEDD was invited to attend the ACE full Council meeting on 8 August 2022, and to provide additional information in advance. Issues of concern continued to be raised, and the meeting was adjourned to continue on 19 August 2022. Some supplementary information was provided by the CEDD in advance of that meeting. Apparently steered by its Chairman – who had expressed his view that the EIA Report had “basically” fulfilled the requirements set out in the TM and SB, and while there was room for improvement, he supported its approval with conditions and recommendations – the ACE decided that the EIA Report should not be rejected, but that further information would be required from the Project Proponent to facilitate the DEP’s final decision. It is clear that a majority of the ACE members either voted against endorsing the EIA Report with conditions, or abstained.

74.  By letter to the DEP dated 24 August 2022, the ACE identified matters on which it thought the DEP should seek further information. The letter includes the following:

While understanding that the report had met the requirements set out in the Technical Memorandum on the EIA process, relevant Guidance Notes under the [EIAO] as well as the EIA study brief, Members still had reservations on various aspects including the ecological impact, hydrological impact, layout plan and tree preservation and compensation of the project.

Members considered that the information provided by the Project Proponent was insufficient to allow the Council to support the endorsement of the report at this juncture. The Council thus recommended that the Project Proponent should provide the following additional information to the [DEP] to facilitate the conclusion of a decision.

75.  The particular matters of additional information sought to facilitate a conclusion were then set out. Though it has been suggested otherwise, I do not read the letter in context as any final agreement on the part of the ACE (beyond the purposes of section 6(3) of the EIAO) that the EIA Report had met all requirements of the TM and SB. Rather, the ACE seems to me to have been saying that there was missing information, giving rise to its continuing reservations on various aspects, and that the missing information should be provided in addition to what had already been provided, as that would be necessary to facilitate an actual conclusion on a decision. In any event, even if it is assumed that the ACE had at that stage been satisfied of compliance with the TM and SB, that view was not binding on the DEP, nor on this Court.

C.8  The Additional Information

76.  On 31 August 2022, the DEP wrote to the CEDD requesting under section 8(1) of the EIAO various additional studies, information and revised proposals (“Additional Information”) as had been identified by the ACE, namely (in summary):

(1)  an additional bird survey covering from before sunrise to 10pm twice a month over a seven-month period from September 2022 to March 2023;

(2)  an additional moth survey (again at different hours from the CEDD’s original survey);

(3)  details of the survey methodology underpinning the bat survey in the EIA Report;

(4)  a tree compensation plan, which shall include details of planting numbers with a compensation ratio of at least 1:1.5 (in contrast to the originally proposed mitigation ratio of 1:1), as well as a management plan taking into account the water demand of the compensatory tree;

(5)  a detailed layout plan of the proposed housing development, which shall illustrate with the help of an overlay plan of the proposed housing blocks the preservation of an additional 0.39 ha of secondary woodland in Sub-Area 1, with the location of the trees to be retained, the location, disposition and design of the proposed housing blocks with a view to minimising adverse ecological impact;

(6)  a detailed analysis of the hydrological impact to show the flow of water, including available information on the profile of soil and bedrock conditions of the project site;

(7)  additional analysis on the shading impact of the proposed housing blocks to the trees and the potential development area taking into account the revised layout plan; and

(8)  elaborations on how the grave situated in Sub-Area 1 will be handled and whether the grave could be retained.

77.  The DEP’s request for the Additional Information was expressly identified as being for the purpose of deciding whether to approve the EIA Report under section 8(3). The letter also identified that the Additional Information provided would form part of the EIA Report – itself a telling point in this context – and that it would be uploaded to the Environmental Protection Department (“EDP”) website for the public to access. It also requested the Additional Information in both hard and soft copies to facilitate dissemination.

78.  The Additional Information was first provided in draft only on 18 April 2023, and uploaded to the internet as an annex to ACE Paper No. 8/2023 on 21 April 2023. It was indicated that the draft Additional Information would be discussed at an ACE meeting on 3 May 2023. From the Decision letter, it seems the finalised version of the Additional Information was provided to the DEP only on 4 May 2023.

79.  Prior to that meeting, the Club wrote to the DEP on 25 April 2023, noting the upload of the draft Additional Information and asking whether the DEP and/or ACE would consider representations on the Additional Information, and if so what was the deadline for further comments. The DEP never replied – not even to say, “Do not bother, as I cannot and will not look at them anyway”.

80.  The Club nevertheless on 2 and 3 May 2023 sent its responses to the Additional Information, both to the ACE and the DEP (who therefore had the Club’s materials prior to reaching the Decision). The Club’s responses included (in summary):

(1)  a further detailed technical analysis of each section of the EIA Report explaining why, in the Club’s view, the EIA Report remained grossly defective and incompatible with the TM and the SB, even taking into account the Additional Information;

(2)  a new moth survey, as well as a response analysis of the CEDD’s own new moth study;

(3)  responsive analysis addressing the new, post-consultation bird survey conducted by the CEDD;

(4)  a fresh, 7-month study on bats replicating the methodology said to have been adopted by the CEDD’s consultants, but with markedly different results;

(5)  a detailed audit of the CEDD’s tree survey and critique of the tree compensation plan;

(6)  an analysis of the ecological consequences of the CEDD’s insistence on removing the 0.39 ha of secondary woodland (being the woodland for which the ACE had requested a revised layout plan, to illustrate its preservation);

(7)  an independent hydrological impact assessment, and counter-analysis of the CEDD’s new hydrological study, and projected impact on the critically endangered Chinese Swamp Cyprus (“CSC”) located in Sub-Area 4;

(8)  a counter-analysis of the CEDD’s new shading impact assessment;

(9)  a new study on the heritage and cultural landscape of FGC;

(10)  further observations on the significance in the EIA assessment of the pending grading of FGC by the Antiquities Advisory Board (“AAB”);

(11)  a 12-page table summarising the specific instances of what the Club said had been identified as non-compliance with the TM and the SB.

81.  The ACE held its meeting on 3 May 2023 to consider the Additional Information. From the meeting minutes – which were published more than two months after the Decision had been taken – it is apparent that the Club’s responses to the Additional Information (though briefly referenced) had not really been taken into any proper consideration. That is also perhaps obvious, against the chronology that they had only been sent to the ACE on or just prior to that same day.

82.  At a press conference following the meeting, the ACE indicated its members considered that, for six of the eight topics, the Additional Information was in general sufficient to establish the conclusion of the EIA Report. Those six topics were: conducting an additional bird survey for 7 months and an additional moth survey for 2 months; providing further details of the bat survey; formulating tree compensation and management plans; submitting detailed analysis on the hydrological impact and the shading impact of the proposed housing blocks to the trees. These conclusions were made without the benefit of consideration of the Club’s comments.

83.  As to the other two topics – including the detailed layout plan of the proposed housing development – the ACE members agreed that the Project Proponent had still not fully addressed its concerns, so that if the DEP were to decide to approve the EIA Report, he should consider imposing a condition to request an amended detailed housing development layout plan to entail the preservation of the 0.39 ha of woodland.

84.  It might also be noted that in a letter dated 10 May 2023 from the ACE to the CEDD, reporting the ACE’s deliberations on 3 May 2023, the ACE stated (amongst other things) the following:

While noting the differences of the CEDD’s findings in the bird, moth and bat surveys as compared with those carried out by other parties could be caused by factors such as differences in purpose, scope or duration of the surveys, the ACE considered that the CEDD could better illustrate and convey the matter to the public to facilitate the latter’s understanding of the causes of the differences.

85.  As I read that paragraph, whilst (perhaps tentatively) noting that the differences in survey results “could be caused” by certain factors, those matters had not yet been illustrated or conveyed to the public in a way which would facilitate understanding of the causes of the differences.

86.  Presumably, the ACE thought this to be so, even after the Additional Information was produced and made part of the EIA Report. But it might be thought that the proper identification of the differences in survey findings and understanding as to their potential causes were matters which were actually supposed to have been canvassed in the EIA Report itself.

C.9  Approval and Subsequent Events

87.  As already stated, the EIA Report was approved by the DEP on 11 May 2023 by the Decision, albeit made subject to the Conditions, and with the attached Recommendations – see further detail below.

88.  On 24 July 2023, the Town Planning Board (“TPB”) agreed to rezone the Project site from “R(A)” to “U”, partially to meet some representations in respect of the draft area Outline Zoning Plan (“OZP”).

89.  The tenancy in respect of the Land in favour of the Club expired on 31 August 2023, and the Land reverted to the Government on 1 September 2023. Since then, the Land has been under the management of the Leisure and Cultural Services Department (“LCSD”), with the primary intention that about 22 ha of it will be used for conservation and passive recreational use for public enjoyment. The Government has made clear that it has no intention of using the Land as a public golf course.

90.  However, the LCSD has been providing assistance to the Club in its organisation of international golf tournaments scheduled for, and which took place in, October and November 2023, involving use of the land.

91.  I think the CEDD Review has been underway, since it was not caught by the stay of the Decision granted by me.

D.  The Decision, its Conditions and its Recommendations

92.  By virtue of the provisions of section 8 of the EIAO (see above), the 30-day period for the DEP to consider and either approve, approve with conditions or reject the EIA Report apparently ran from 4 May 2023, and would have expired on 2 June 2023. The DEP did not take that long, and apparently did not use the extra time available to take into account for example the Club’s detailed and direct responses to the Additional Information.

93.  At 7:52pm on 10 May 2023, the Assistant Director (Environmental Assessment) (“AD(EA)”) in the EPD was sent by email “the full set of EIA approval minute & LTT [i.e. ‘line to take’] (with Q&As), for seeking clearance from senior management”.

94.  At 8:09pm on 10 May 2023, the AD(EA) forwarded that email to the DEP, saying:

We refer to CEDD’s application for approval of the EIA report on “Technical Study on Partial Development of Fanling Golf Course Site – Feasibility Study”. After careful consideration of the EIA report, the relevant requirements stipulated in the EIAO-TM and Study Brief, advice from relevant authorities, comments received from the Public and the ACE during the public inspection period, and the Additional Information submitted by the Applicant on 4 May 2023, we recommend to you that the above EIA report should be approved with conditions under s.8(3) of the EIAO.

The detailed analysis and supporting information are contained in the email below for your consideration, please. A folder containing the hard copy of the documents will be submitted to you by hand tomorrow morning for your clearance.

95.  I do not know what time the following morning the hard copy documents were submitted. But, by email as early as 9:32am on that following morning 11 May 2023, the DEP replied saying (only):

Thanks. It looks fine to me.

96.  The Decision letter to approve the EIA Report, subject to the Conditions and Recommendations, was issued on that day, 11 May 2023.

97.  The Decision letter referred to the Project Proponent’s application received on 22 April 2022 for approval of the EIA Report and the 17 May 2022 advice to exhibit the EIA Report for public inspection. It then continued:

Having considered the public comments received during the public inspection period from 20 May 2022 to 18 June 2022, the comments from the [ACE] given to us on 24 August 2022, and the Additional Information you submitted to us under Section 8(1) of the [EIAO] on 4 May 2023, I now advise you under Section 8(3) of the [EIAO] the above EIA report as exhibited under Section 7(1) of the [EIAO] is approved subject to the conditions at Annex 1.

98.  The Decision Letter also notified that under section 15 of the EIAO, the approved EIA Report would be placed on the Register.

99.  Annex 1 to the Decision letter sets out the Conditions of approval, in the following terms:

(a) The project proponent shall review and revise the Layout Plan (LP) by adjusting the housing footprint, disposition and density with an aim to minimising the number of tree to be felled and preserving the 0.39 ha of woodland at the centre of Sub-Area 1 as far as practicable. The revised LP shall be submitted to the DEP for approval before commencement of construction of the relevant phase of the project;

(b) The project proponent shall submit a detailed Landscape and Visual Plan (LVP) which covers a review of the building heights for the proposed housing development and adoption of a stepped height profile with the building height descending from north to south, with a view to reducing the footprint while at the same time minimising the visual impact to the surrounding rural environment. The project proponent shall also minimise tree felling in Sub-Area 1 to reduce visual impact and to use the trees and woodland for generating a natural outlook as well as a barrier to minimise light impact to the surrounding rural environment. The detailed LVP shall be submitted to the DEP for approval before commencement of construction of the relevant phase of the project;

(c) The project proponent shall develop the Sub-Area 1 with spongy city concept with a view to preserving the hydraulic performance of the site to avoid substantially affecting the groundwater level, minimising flooding risk of the site during heavy rain storms, and identify necessary measures to avoid the storm water runoff which would contaminate the surrounding rural environment, in particular, the important swampy would land in Sub-Area 4. The development plan and measures shall be submitted to the DEP for approval before commencement of construction of the relevant phase of the project;

(d) The project proponent shall prepare and deposit a tree management plan covering the compensatory planting of trees in Sub-Areas 2 & 3 as well as maintenance and monitoring program to ensure tree survival rate of compensatory trees; and

(e) The set of Additional Information received from the Applicant on 4 May 2023 under Section 8(1) of the [EIAO] shall form part of the approved EIA report, and shall be placed on the Ordinance Register and the Ordinance website.

100.  Though I can return to a more detailed consideration of them, the Conditions at least demonstrate that there remained significant concerns about (1) the Layout Plan, and the number of trees to be felled, (2) the footprint and building heights of the Project, and its visual impact on the surrounding rural environment, (3) the preservation of hydraulic performance and potential effect on groundwater level, flood risks and the contamination of the surrounding rural environment, in particular the swampy woodland at Sub-Area 4, and (4) the compensatory planting of trees.

101.  Also attached as Annex 2 to the Decision letter are Recommendations from the ACE, presumably endorsed by the DEP as they were attached by him to the Decision and required the CEDD’s “attention and action”, in the following terms:

The project proponent is recommended to –

(a) make good use of Sub-Areas 2 & 3 to provide an active area for public education and enjoyment, as well as maintaining a good balance between recreational activities and habitat conservation, through developing a comprehensive public education and ecological management plan;

(b) review the scale of the development at Sub-Area 1 in view of the potential ecological and visual impact on the surrounding environment, as well as the integration of the site to the development of the Northern Metropolis;

(c) review the cultural heritage importance and function of the site in connection to the surrounding land uses, and consider how to mitigate the potential impact of the development of Sub-Area 1 on the cultural heritage impacts on the entire Fanling Golf Course area; and

(d) review the traffic impact and arrangement for the site.

102.  It might be thought that these Recommendations identify continuing concerns as to (1) the very scale of the development at Sub-Area 1 and its potential ecological and visual impact, (2) the integration of the Project within the development of the Northern Metropolis, (3) the need to mitigate the potential impact of developing Sub-Area 1 on the cultural heritage of the entire FGC area, as well as (4) the potential traffic impact and arrangements for the site. So that I need not repeat the point later, I can helpfully state now that I do not think that these are matters “beyond” the TM or SB.

103.  I can return to the detail of the Conditions and Recommendations in due course. But, it is not inappropriate to note at this juncture that these are matters which are supposed to have been traversed and grappled with (including as to mitigating factors) in the EIA Report itself, because of the requirements of the SB and TM.

104.  It is also of interest that the LTT (line-to-take) document to be used for public presentation of the Decision had attached to it a number of “Prepared Q&As”, the very first of which was (bold in original):

Q.1 In approving the EIA report, did the EPD take into account the supplementary information submitted by Hong Kong Golf Club (HKGC) on 3 May 2023?

A.1 The 30-day public inspection period under the EIAO for the EIA report … ended on 18 June 2022. Therefore, the supplementary information submitted by HKGC on 3 May 2023 is not a document submitted within the statutory period. The EPD duly received the Additional Information submitted by the Project Proponent under the EIAO on 4 May 2023. In accordance with the EIAO, the DEP decided to approve the EIA report with conditions after careful consideration of the requirements of the relevant EIA Study Brief and the EIAO-TM, as well as the comments submitted by the public and the ACE during the public inspection period (including the comments and report submitted by HKGC last year).

105.  This prepared question and answer at least identifies a real perception that the public might be interested in whether the detailed supplementary information submitted by the Club in response to the new Additional Information had been taken into account before the Decision was made, and perhaps whether there was any response to the Club’s points. Indeed, underneath that prepared question and answer there was additional material which was apparently to be spoken to “if pressed”. This stated:

The supplementary information submitted by HKGC on 3 May 2023 stated that there were errors and omissions in the Additional Information submitted by the CEDD. The main issues and the detailed considerations given by the EPD are set out below …

106.  There followed a series of the Club’s claimed errors and omissions in the Additional Information, and some answers to those points as offered by the EPD. Hence the first part of the answer to Q.1 seems to be saying clearly that the Club’s supplementary information was not taken into account because it was submitted outside the 30-day public inspection period. But the section of the answer to Q.1 to which reference might be made “if pressed” appears to suggest that the EPD (if not the DEP himself) had given at least some consideration to the Club’s supplementary information.

107.  That consideration has been incorporated into the rather fuller response covered by the evidence filed for these proceedings.

108.  In passing – and perhaps relevant to Ground 4, see below – reference can also be made to prepared Q&A4. That says (bold in original):

Q.4 Do the conditions that come with the approval of the EIA report carry any legal effect? How can the EPD ensure that the Project Proponent complies with the conditions?

A.4 The EPD approved the EIA report with conditions on 11 May 2023. The CEDD is required to submit documents to the EPD for approval in accordance with the Conditions of Approval. The documents to be submitted include a reviewed and revised detailed Layout Plan of the proposed housing development to preserve around 0.4 hectares of woodland in Sub-Area 1 as far as practicable, and a detailed Landscape and Visual Plan to minimise the impact of the proposed housing development on tree preservation, landscape and visual resources. The EIA report will only be deemed formally approved if all Conditions of Approval have been met.

109.  Prepared Q&A4 shows that the EPD was alive to potential concerns that Conditions drafted in these terms may not be legally enforceable.

E.  Grounds of Review

110.  There are four grounds of judicial review advanced, which can be considered separately but which are clearly to an extent interlinked.

111.  Ground 1 asserts a public law failure to put out for public consultation the further materials (i.e. the Additional Information) received by the Director in response to his own request for those materials, as part of the statutory process. It is said that the Additional Information provided by CEDD pursuant to the DEP’s requisition should have been exhibited for public comment, and the failure to do so was incompatible with the requirements of transparency and public participation which underpinned the EIAO process, and was also procedurally unfair.

112.  Ground 2 complains of the failure of the DEP to take any account of the Club’s responses provided to the Additional Information. That document contains data and analysis of substantial significance to the questions which the DEP had to consider, and it is argued that no decision-maker properly directing himself, or acting reasonably, would fail to have considered its contents.

113.  Contrary to the suggestion of Mr Yuen, I do not think Grounds 1 and 2 must stand or fall together. Rather, I think it fair to say that if the Club succeeds on Ground 1, then it will also likely succeed on Ground 2 (or at least the answer to Ground 1 will inform the answer to Ground 2). This is because, if the Club succeeds on Ground 1, the materials that the Club produced to which reference has been made under Ground 2 would have been taken into account, since it would have been part of the materials produced as a result of the public re-consultation. It may not be the case the other way round.

114.  Ground 3 argues that the Decision was ultra vires because the EIA Report did not comply with the TM or the SB. Further and/or alternatively, the Decision was Wednesbury unreasonable in that no rational decision maker, properly directing himself, could have approved the EIA Report and/or that the DEP failed to take into consideration matters which are plainly relevant and which ought reasonably (in the public law sense) to have been considered, or he took into account matters which are plainly irrelevant.

115.  Ground 4 is split into two aspects in the Form 86. Ground 4A argues that the Conditions imposed in the Decision are such that the “approval” supposedly given with conditions was in reality no approval at all. The Conditions require or request substantial changes to the proposed project, and its attendant environmental impact, so that they should have been opened up for public comment and comment by the ACE. It is said that the DEP acted unlawfully and/or unfairly by purporting to require a substantial revision of the proposed project without the public and/or ACE the opportunity to comment on it. Further, the Recommendations attached to the Decision for the “attention and action” of the CEDD provide uncertainty as to whether they were part of the Conditions for approval.

116.  Ground 4B complains that the Decision did not impose any condition requiring the CEDD to give effect to the mitigation measures identified in the EIA Report, effectively rendering them voluntary at the CEDD’s option. This is said to amount to irrationality, because the mitigation proposed in the EIA Report was an essential precondition to the EIA Report being approved at all.

117.  I can address the Grounds each in turn, though there is some degree of overlap between them. As will be apparent, the contest on Grounds, 1, 2 and 4 is mainly between the Club and the DEP, and the contest on Ground 3 is mainly between the Club and the CEDD.

118.  But, before turning to the Ground themselves, it is also appropriate to acknowledge the preliminary points urged upon the Court by Mr Yuen. The first point is that the present application for judicial review is not to question the wisdom of whether it is appropriate to construct residential buildings on the Land, nor is this case concerned with whether the part of the Old Course that might be affected should or should not be kept as a golf course. The second point is that in deciding any complaint against the DEP as to whether he has discharged his duty, there must be an objective yardstick. The third point is that a number of the issues involve matters of professional judgment, in technical areas, where the Court will give deference to those exercising professional judgment. Therefore, where there are legitimate differences of opinion, the Court should not likely reject the professional judgment or decision of the DEP simply because there might be another way of having performed the relevant assessment, or another way of construing the outcome or data derived from steps in the assessment. The fourth point is that the entire history of the matter should be taken into account, from the TFLS onwards, but in particular to include the scrutiny brought to the EIA Report by the ACE (where its overall conclusion should be the focus, not individual comments made by specific members of the ACE in the course of deliberation). Mr Yuen submitted that the history shows a transparent and detailed process, in compliance with the EIAO.

119.  I accept those points and will keep them in mind, except to the extent that Grounds 1 and 2 seem to me to require some consideration as to whether there was a full transparent and detailed process as required by the governing documents and actually in compliance with the EIAO.

F.  Ground 1

120.  As already identified above, the Club’s complaint under Ground 1 is that the Additional Information submitted by CEDD in response to the section 8(1) request made by the DEP was not exhibited for public inspection and comment, which was incompatible with the requirements of transparency and full and appropriate public participation underpinning the EIA process, and so was procedurally unfair.

121.  It is the Club’s position that the Additional Information contained entirely new studies, details of the methodology of earlier studies that the ACE had identified as being necessary to evaluate the validity and robustness of the CEDD’s conclusions, as well as new proposals for mitigation. The new studies and details of previous studies included a HydroIA (there having previously been none at all), additional information regarding the Tree Compensation Plan, revised layout plans marking the location of the Trees of Particular Interest (“TPIs”), shading impact assessment, additional moth surveys and details of the original survey methodology in relation to bats and moths.

122.  As I understand it, neither the DEP nor the CEDD dispute the proposition that the Additional Information was “new”, in the sense that it was mainly not previously included in the EIA Report. But they would submit that the surveys and studies supported, or simply elaborated upon, what was already in the EIA Report. I can return to this point later.

123.  Mr Yuen has directed some argument at the suggestion that the Club is arguing for a basic legal duty to be imposed on the DEP for public inspection of further information provided under section 8(1), which would be unsustainable. Those submissions have some force, but I think they are misdirected. First, the Club is essentially complaining that the Additional Information should have been included in the EIA Report in the first place, so that it would have been made available for public consultation (and the longer period of consultation by the ACE with the benefit of public comments) during the statutory consultation period. Therefore, secondly, the Club is submitting that where that did not occur, but material of the character which ought to have been originally included was subsequently provided, that material should be treated in a like manner and be put out to public consultation.

124.  However, Mr Yuen stressed by way of overview the various time limits in the EIAO, which have been canvassed by me in my review of the statutory regime and process. Mr Yuen stressed the relatively tight timetable, not just for the EIA process itself, but right from the start, and with the automatic deeming provisions that if the DEP does not take a particular decision at some point he will be deemed to have decided the positive (automatic approval).

125.  He also made reference to the various Hansard materials. For example, on 29 January 1997, the Chairman of the Bills Committee formed to study the then Environmental Impact Assessment Bill noted a major concern lay with the proposed EIA process taking 195 days to complete. He said members of the Committee expressed concern over a possible increase in development time and delays in the completion of projects, but the Administration had repeatedly assured members that the proposed EIA process would shorten development time through simplified procedures and the imposition of statutory time limits on all actions by the DEP, and that the public inspection period and the time given to the ACE were clearly stipulated. Further, the Administration had accepted the suggestion to deem an application approved if the DEP did not respond within the statutory time limits.

126.  At the same LegCo meeting, the Deputy Secretary for Planning, Environment and Lands emphasised the two main purposes of the EIA process: first to require the proper evaluation, at the earliest possible stage, of the environmental impacts of development projects; and second, to ensure the satisfactory implementation of necessary prevention and mitigation measures to protect the environment. He also emphasised the obligation to make the EIA report available for public inspection and comment, and the enhancement of the transparency of the EIA decision-making process. As to timing, the Deputy Secretary offered reassurance that the EIA process had been significantly streamlined and that statutory time limits on the process had been imposed, so that the Bill represented a balance between the need to protect the environment and the need to allow important development projects to proceed efficiently.

127.  It might also be noted that as to residential developments, the Deputy Secretary clarified that the majority of residential development housing sites are outside the scope of the EIA process, so that there is no question of EIA arrangements delaying the overall housing production programme. Of course, the identified exception was those residential developments in ecologically sensitive areas, and those exceeding 2,000 flats in unsewered areas. On that basis, it might be thought that there was recognition (if only implicit) that a project such as that now proposed at the FGC may have to face greater delay than as regards the majority of proposed residential developments.

128.  Mr Yuen also made reference to a paper prepared for the House Committee on the Bill earlier in January 1997, which emphasised similar matters relating to timing.

129.  On the back of those extracts, Mr Yuen emphasised the important point that throughout the statutory scheme, there is only one provision which empowers the DEP to extend a period of time (though he said not relevantly for present purposes). But the rest of the provisions set out and deal with a timetable making the legislative intention clear, as is also divined from the Hansard materials. There is an intended level of certainty as to the specific steps required to be taken in the entire EIA process, and the time available for those steps to be taken without delay. The objective of introducing a statutory scheme in place of the prior administrative EIA process was to streamline and shorten the overall time, in part to meet the concerns of an overly lengthy or complicated process.

130.  I have already accepted above that the EIAO does seek to balance (1) the public interest in protecting the environment and (2) the public interest in ensuring that major designated projects are brought to fruition in a timely and efficient manner, with both aspects built into the legislative scheme for the EIA process.

131.  But Mr Yu is correct to draw attention to the fact that the time limits set by the EIAO are mainly imposed on the decision-maker, albeit with some time limits imposed on the ACE and the public. On the other hand, importantly, there is no time limit as far as the applicant / project proponent is concerned. There is no limit of time within which the EIA report must be produced, whether by reference to the date of the issue of the SB or not. There is no time limit set for the provision of any additional information as might be requested (and I note that in this case it took around 8 months). There is no overall time within which an EIA report must either be approved or disapproved following the filing of a project profile. There is also the emphasis on wide and proper public participation and transparency.

132.  I therefore consider that the way in which time limits are dealt with – including by the default or deeming provisions relating to acts or decisions required from the DEP – points to the following:

(1)  First, it is obviously one objective of the EIAO that important public projects should not be unnecessarily delayed, or even should be dealt with quite expeditiously.

(2)  Secondly, the need for expedition is in large part met by imposing deadlines and default provisions upon the DEP. The decision-maker charged with giving or withholding approval cannot drag his feet, or approval or permission will be deemed.

(3)  Thirdly, where there is no time limit for the provision of the EIA report, there must be an underlying assumption that the EIA report must contain all the necessary assessment and the entire proposal to be presented to the public for there to be meaningful public participation within the time-limited process.

(4)  Indeed, what the DEP is to assess – albeit on a provisional basis – under section 6(3) is ultimately whether the EIA Report meets the requirements such that it is suitable to be put out for public inspection and consideration by the ACE.

(5)  That is one of the reasons why, under section 6(6), the DEP is to advise an applicant of the reasons why he thinks the EIA report is unacceptable, as that would permit the applicant to make revisions to try to make it acceptable.

(6)  Any concern as to an ‘endless cycle’ of re-consideration will dissipate if the project proponent covers all of the necessary ground sufficiently in the first offered EIA report.

(7)  Where there is no time limit for the provision of any requested additional information, there must be an underlying assumption that the additional information must contain the remaining materials so as to constitute (or re-constitute) the EIA report with everything necessary for full assessment and the entire proposal.

(8)  But, where an EIA report is deficient in any material way – for example in failing to comply with the terms of the SB and/or TM – there is nothing to suggest that the integrity of the process as a whole, involving full and meaningful public participation, is to be sacrificed to expediency.

133.  In this regard, Mr Yuen’s submission that the EIA process envisages only one round of public consultation in respect of the EIA report may actually count against him. Ordinarily, the public would indeed have only one chance to comment on a report, making it all the more important that the EIA report should be as ‘comprehensive’ as possible, or as required. In this regard, it seems to me that comprehensiveness means that the EIA report should include not only the assessment results and conclusions, but also detailed explanations of the methodologies employed in conducting those assessments, and the rationale or justifications for using the chosen methodologies. It is important that readers of the EIA report are informed not only of its conclusions, but also the steps by which those conclusions have been arrived at. This is because the correctness of the conclusions is inevitably affected by the soundness of the underlying assessment methodologies. The ACE saw this very point in this instance when it sought various clarifications and when it suggested seeking the Additional Information.

134.  Further, the EIAO itself recognises that the project proponent may not have provided an EIA report which contains everything which the DEP requires to decide whether to approve it. That is why the DEP is empowered to seek from the applicant the (missing) information which he requires for that purpose. It is readily conceivable that the missing required information may be either a little or a lot, and it may vary in terms of its apparent importance to the process. But – unless it is obviously simply to correct a minor error or something similar – it is perhaps inherently unlikely to be wholly insignificant, if the DEP has had to request it (exercising the power to do so) precisely because he requires it to be able to decide at all whether to approve the EIA report or not, especially where what is given in response is expressly to be incorporated as part of the EIA report.

135.  Contrary to the submission of Mr Yuen, I do not think whether to allow or require the public to be consulted again to give comments is simply “a procedural point”. Whilst I accept that the question raised by Ground 1 is to be answered primarily by reference to the ‘four corners’ of the EIAO, I have set out above why I do not think the statutory terms prevent re-consultation when fairness demands it in the circumstances. In essence, re-consultation will arise where a prior step in the statutory scheme or process has not been properly completed. That does not seem to me to be contrary to the spirit of the relevant statutory regime laid down, as Mr Yuen submitted. Rather, it is in support of that spirit.

136.  In that regard, I note that the DEP has the power to require an applicant to re-advertise or extend the period of public inspection for up to another 30 days if the applicant fails to comply with any requirement under Part II or any direction given by the DEP: see section 7(3) of the EIAO. Hence, where the DEP request additional information which is necessary for him to make his decision and which is expressly to be included as part of the EIA Report, it can be said that the DEP has recognised (albeit only implicitly) that the applicant has failed to comply with a requirement under Part II, opening the door to re-advertisement and the extension of the period of public inspection.

137.  As to Mr Yuen’s submission that the additional assessment of additional information only confirmed or affirmed the result in the EIA report, I agree with Mr Yu that this submission has not really identified the correct test. The correct test is whether it is fair for the additional information and any assessment of it not to be put into the public domain for public comment. Further, first, you cannot “affirm” or “confirm” something which was not previously in the report. Secondly, even if it was to some extent previously there but further information is being produced, some people might say it affirms or confirms what was previously there, but others might disagree – or there may remain a debate about the methodologies adopted. That is why it may require assessment with the benefit of forthcoming comments, which may not all point in the same direction.

138.  It seems to me that the Additional Information was requested, at the instigation of the ACE, because it was thought to be necessary and appropriate and highly relevant to whether the EIA Report could be seen to comply with the requirements under the TM and SB. That is so, irrespective of whether the studies and details of methodologies in the Additional Information are in fact capable of supporting the EIA Report. It was specifically required that the Additional Information provided would form part of the EIA Report. There can be no real doubt that the Additional Information contained materials which were capable of affecting the conclusions previously set out in the EIA Report – and the reasoning for and the requests for those materials also identified the same thing.

139.  The core point is that those materials could and should have been ventilated in the EIA process, when they would have been made available for public scrutiny and for consideration by the ACE, aspects of the process which are of considerable importance to the statutory scheme as a whole. It is also telling that upon receipt of the (draft) Additional Material, the DEP referred it to the ACE for its comments.

140.  It may be necessary to address the detail in relation to Ground 3, but it can be said for present purposes that it is clear that there is a significant volume of information which has been produced by the Club in its responses to the Additional Information, and now by the DEP and CEDD in reply to those responses. But, the reply is in essence only available as a result of the filing of evidence in these proceedings. Indeed, in at least one sense, the problem which faces this Court in the necessary consideration under Ground 3 arises from the fact that the ‘contest’ on the various expert and other views, including as to which methodology is or may be appropriate or inappropriate, is being played out in these proceedings – when that is the kind of ‘contest’ or debate which is intended to be played out primarily in the statutory process involving public consultation and consideration by the ACE.

141.  Ultimately, I am persuaded that the Additional information did contain information which ought to have been substantially included within the original EIA Report. A clear example is the Hydro AI, the first time one was prepared, which is a vital matter relating to the question of survival of a critically endangered species. As I have already noted, when the Additional Information was sought, it was expressly said that it would form part of the EIA Report and be available for public information.

142.  Had the DEP expressed the view at the section 6 stage that the EIA Report would not be put out to public consultation because it lacked certain materials (or was not compliant with the SB and TM), it is undeniable that if those materials were produced in a revised EIA Report satisfactory to the DEP, all of the revised EIA Report would have been put out for public consultation. Furthermore, all of it would then have been considered by the ACE with the benefit of any public comments. I cannot see that the necessary requirement for public consultation is somehow defeated because the missing material which is then specifically made part of the EIA Report is only produced in response to the DEP’s request at the section 8(1) stage. I have already also made reference to section 7(3)above. Once the DEP recognised that he was requesting additional information of the sort that would have to be included in – and would in fact form part of – the EIA Report, that at least suggested re-consultation might be necessary.

143.  At least on the points canvassed within the Additional Information, and ignoring any knock-on or overlapping effect, those points are clearly of substance and relevance to the assessment undertaken in the EIA Report – including as to mitigation measures – and the conclusions stated in it. Further, though the ACE did have some opportunity to comment on the Additional Information, the statutory process envisages that the ACE should have that opportunity to make its comments with the benefit of any other comments received from members of the public. That did not happen.

144.  As a matter of fact, the public were only consulted on part of the EIA Report in its final form. That is contrary to the requirements of the EIAO. Proceeding on that basis, was not within the power of the DEP.

145.  In short, I find that the fairness and integrity of the process, set out in the EIAO properly construed, demanded re-consultation once the Additional Information was produced to form part of the EIA Report.

146.  Ground 1 is established.

G.  Ground 2

147.  As I have already stated, it seems to me that if Ground 1 is established, then it will likely follow that so is Ground 2. This is because if there ought to have been re-consultation, then the Club’s responses would have formed part of the re-consultation process, and would necessarily have been taken into account by the ACE in its consideration of its further comments, and then by the DEP in reaching his decision as to whether to approve, approve with conditions, or reject the EIA Report.

148.  I think Mr Yuen also at least accepted that the answer to Ground 1 may inform how Ground 2 is approached, though it might not be the simple answer to Ground 2.

149.  Nevertheless, Ground 2 can exist – and requires separate consideration – on the assumption that Ground 1 fails. Then, Ground 2 proceeds on the basis that, even if a necessary and fair proper consultation was not statutorily permitted and/or required on the Additional Information, the Club had nevertheless put in a response, which was relevant and material to the decision-maker’s decision under consideration, and it would not be fair or Wednesbury reasonable for the DEP to ignore that available information.

150.  It may also be relevant to note that the arguments advanced by both sides on Ground 2 do not make complaint of any deliberate delay in either the provision of the Additional Information or in the Club’s response to it. But, purely as a matter of chronology, it can be noted that:

(1)  the Additional Information was requested in late August 2022, and provided in draft form only towards late April 2023 and officially on 4 May 2023 (so, around 8 months later); and

(2)  the draft Additional Information was seen by the public including the Club when it was uploaded on 21 April 2023, and the Club provided its responses before 3 May 2023 (so, less than 2 weeks later).

151.  Anyway, the broad proposition underpinning the Ground 2 challenge is that, where the DEP has re-opened the door for the Project Proponent to put in additional materials which are quite substantial on a number of different areas, he cannot then fairly say that he will ignore those materials produced by the Club on the other side of that door.

152.  Mr Yuen’s offered answer is twofold. First he says that the Club provided materials to the DEP outside the statutory period, and the DEP simply has no duty to have regard to them. But I do not think that provides the answer.

153.  As the ground was summarised in the Amended Form 86, the Decision is said to be flawed because the DEP’s failure to consider the Club’s Response to the Additional Information involved him ignoring relevant materials, breaching his Tameside duty, and/or acting Wednesbury unreasonably, or unfairly.

154.  On the other hand, the Club has accepted that the scope of the Tameside duty to enquire may be narrower in the context where, as here, the legislation is quite prescriptive as to the information that is to be taken into account. But, the Club has asserted that, where in the present case the decision-maker had placed before him a detailed set of materials prepared by highly qualified, independent consultants analysing and presenting relevant scientific data on the very question he had to address, then a duty was triggered for the DEP to engage with that material. Not to do so was procedurally unfair and Wednesbury unreasonable.

155.  Mr Yuen’s criticism of that approach has some force. He submitted that it cannot be correct that – where the Tameside duty is modified or must be considered in light of the applicable statute – whether or not the decision-maker has a duty to look at further materials depends on whether it was or was not prepared by qualified professionals. That, Mr Yuen submitted, would create uncertainty, of the kind which the legislature intended to avoid. I agree. There is no legal justification for stepping outside structured legislative provisions merely because the decision-maker has been prepared by highly experienced professionals.

156.  However, I do not think the Club was actually asserting that the duty is triggered depending on whether the materials produced are the product of qualified professionals. Indeed, for my part, I think the specific reference to the Tameside duty is something of a red herring (where that duty is in any event simply a facet of Wednesbury reasonableness).

157.  Instead, I think the Club was asserting that the fact that the materials produced were prepared by qualified and independent consultants addressing data on the central questions to be addressed by the decision-maker – and directly in response to other similar materials requested by the decision-maker precisely to enable him to make the relevant decision – was something to be taken into account in assessing whether fairness and reasonableness required it to be taken into account.

158.  With that contention, I agree – albeit keeping in mind that the establishment of Wednesbury unreasonableness is a high hurdle. However, I also think it correct that what fairness and reasonableness demand in the particular circumstances would be tested against the statutory regime.

159.  I have already above touched on the point that, under section 8(1), the power given to the DEP to request additional information is predicated on the fact that that information is required by him to be able to decide whether or not to approve the EIA Report. If information is of the character that the DEP simply cannot perform his statutory task of approving or not approving the report without it, a reasonable starting position might be that the additional information was requested because it is required and is not likely low in significance. Of course, there may be the need to correct a relatively minor oversight, omission or change of circumstance, but that may not be why the information is required in the particular case.

160.  In this particular case, the Additional Information was sought – and considered to be required – because of a series of continued concerns voiced by the ACE, which the DEP accepted. The Additional Information was not sought on just one narrow area of the EIA Report or to correct a minor error or omission, but rather it was sought across eight different areas. Amongst other things, it sought new surveys or explanations of methodologies, a hydrological impact assessment, a revised tree compensation plan and a revised development layout. When produced, it was expressly to become part of the EIA Report itself, and it was passed to the ACE for its comments.

161.  Mr Yuen relied on the fact that additional information can be requested by the DEP under section 8 in any EIA process. On each occasion, the additional information would presumably be requested because it is thought to be relevant and potentially material. So, Mr Yuen submitted that point must be neither here nor there. However, it does not seem to me to matter that the section 8 power is potentially exercisable in any EIA process. I accept that asking for something which the DEP thinks is relevant and which he is likely to take into account does not of itself necessarily trigger the corresponding obligation to accept, let alone invite, any responses to it. But, depending on the particular circumstances, it may do. Here, it did.

162.  Mr Yuen also relied on the two points that: (1) there is the provision in the EIAO that after 30 days from the provision of the additional information, the EIA Report would be deemed approved if no other prior decision has been made; and (2) there is no power to extend that time. But, in this case, I do not think there was any particular rush which would have prevented the DEP from engaging with the materials provided by the Club in response to the Additional Information (or, indeed, in permitting time for the ACE properly to take into account the Club’s response before making its own final comments).

163.  On the chronology, the ACE considered the Additional Information in draft only – and the final version was provided to the DEP only on 4 May 2023, that being the date which would have commenced the 30-day period. The Decision was taken and notified on 11 May 2023. So the DEP still had over three weeks more than the time he actually took in order to make his decision, and thereby avoid the deeming provision.

164.  I also note that (1) the ACE was able to consider the Additional Information within around two weeks after first being provided with it in draft (notwithstanding that it took eight months to be produced), and (2) the DEP was able to consider the Additional Information and the ACE’s comments on it and reach his decision within just a further 7 or 8 days. (In passing, I also note that the DEP does not say that he did not have time to consider the materials from the Club.)

165.  Of course, I see some force in Mr Yuen’s submission that against a deadline, if there are comments which may invite further comments, then the question might arise: where is the end? But an understandable desire for finality does not mean that the demands of fairness and reasonableness must be sacrificed. Perhaps a further answer to that submission is to be found in the answer to Ground 1. The only reason why there is a potential rush is because the underlying intention in the EIAO that there should be transparency and public consultation on the entirety of the material EIA report has been thwarted. Had it been recognised, as I think it should have been, that the EIA Report in this EIA exercise was only complete once the Additional Information was added to it, it would also have been recognised that the statutory requirement for public consultation and ACE comments had not yet been met. Once that was met, in accordance with appropriate statutory deadlines, there would not have been any potential comments upon comments upon comments, and the matter would have ended by the DEP’s decision or by the deeming provision coming into play.

166.  I also note the tension between the DEP saying that taking the Club’s responses into account would have been outside the statutory framework, whereas he specifically referred the Additional Information for the consideration by and comments of the ACE, when it has not been made clear to me how that fell inside the statutory framework. Logically, if the ACE is being consulted, so should the public.

167.  The second main answer offered by Mr Yuen was that the materials were in fact considered by the EPD, if not by the DEP himself (nor by the ACE).

168.  I would first note that, if correct, this supports my own conclusion on the first point, namely that there was the ability and sufficient time to have considered the Club’s response. But there is obviously some tension between saying (1) “I could not take the material into account legally”, and (2) “I did in fact take it into account”. However, this tension is probably resolved by the evidence filed overall.

169.  As Mr Yu identifies, the starting point is that the Decision itself identifies what was, and therefore what was not, taken into account. I agree. The Decision is plain that, whilst it did take the Additional Information into account, it did not take into account the Club’s response those materials. Further, the LTT produced along with the Decision also emphasised that the Club’s response was not taken into account and why, even though some comments on those responses were to be spoken to at a news conference “if pressed”.

170.  In conclusion, the DEP having requested the Additional Information in a range of areas necessary for him to be able to exercise his power to decide whether to approve or reject the EIA Report, and having been presented with that information as well as other materials on the same points, I do not think he could fairly or reasonably in the particular circumstances of this case have looked only at one set of materials and not the other set. But that is what he did.

171.  Ground 2 is established.

H.  Ground 3

H.1  Introduction

172.  Under Ground 3, the Club submits that the DEP was wrong to approve the EIA Report, because it does not comply with the requirements of the TM and the SB, and because no reasonable decision-maker could have concluded that the proposed Project is environmentally acceptable.

173.  In this context – and though some aspects may for convenience be repeated below, or further references added – reference can also be made to the extracts of the provisions of the SB and the TM relating to the review of and approval of the EIA Report, set out above.

174.  The Club relies on various expert consultants who have identified what they say is an array of deficiencies in the EIA Report. Annex 2 to the Form 86 analyses these deficiencies in some detail. There is, of course, a significant volume of material produced by the DEP and the CEDD in response, which has also been taken into a revised Annex 2. Against that, the Club says that the evidence nevertheless fails to salvage the many fundamental problems in the EIA Report identified by the Club.

175.  By way of introduction, it can be recognised that a number of aspects of argument have highlighted the difference between the approaches to methodology and/or respective survey results. For example in the specific context of moths (see further below), in partial answer to the Club’s argument that its survey results were vastly different from those results of the survey performed for the CEDD, the CEDD has suggested the Club was seeking to perform an exhaustive academic study. During argument, I wondered out loud if that was maybe the point, namely to count everything that is present, in order to know what might be impacted and by how much, and how the impact might be mitigated, if possible. That might also seem consistent with the requirement in the SB to identify and quantify as far as possible potential ecological impacts.

176.  But, perhaps this only highlights that – though survey results may be thought intended to be objective – the choice of what to measure and the choice of measurement methodology are subjective decisions. Seek, and ye shall find; but what you seek and how you seek it will affect what you find.

177.  Without being naïve to the possibility that one side or another may make a subjective choice influenced (consciously or otherwise) by a perhaps preferred outcome, it is a fact that the Club has advanced its materials from the standpoint of the body that has been the ecological steward of the land in question over the past several decades. Though the Club’s Statutory Submissions (and the Response to the Additional Information) might be part of the ‘public comments’, it would be expected that they be given the most careful consideration. Of course, on the other hand, it must also be noted that the CEDD has engaged consultants and experts on the areas now under discussion.

178.  The various individual topics under Ground 3 can be taken in turn. As already noted, most of the contest as regards Ground 3 has been conducted in these proceedings between the Club and the CEDD. But it is also worth keeping in mind now and throughout that:

(1)  The Court is not the primary decision-maker.

(2)  That is and was the DEP.

(3)  Matters of judgment on technical matters are involved in the decision-making, and the Court will ordinarily give some deference to the decision-maker exercising that judgment.

(4)  The Court might only interfere if there has been a failure of the EIA Report to comply with the terms of the SB and/or TM (or, perhaps, on other standard judicial review grounds).

(5)  The SB and the TM are to be understood as an expert risk assessor, properly understanding the legal requirements they create, would understand them.

H.2  The Precautionary Principle

179.  Before turning to the individual topics, it is useful to consider the concept, and potential meanings, of what is known as the “precautionary principle”, or the “precautionary approach”.

180.  At its core, it is an approach to uncertainty, and provides for action to avoid serious or irreversible environmental harm in advance of scientific certainty of such harm. It can be viewed as a mechanism to counter any regulatory presumption in favour of allowing development or economic activity to proceed in the absence of clear evidence about its impacts. However, it is clear that this principle – which has been described as “intuitively sensible” – has given rise to some controversy and confusion in its acceptance into law, policy and implementation in practice.

181.  Part of the reason for the controversy or confusion is that there are a number of different formulations of the principle, ranging from what are described as “weak” to “strong”.

182.  Reference can helpfully be made to Rosie Cooney’s paper entitled ‘The Precautionary Principle in Biodiversity Conservation and Natural Resource Management’ published in 2004 by the IUCN World Conservation Union. It identifies that:

(1)  With the increasing scale of human changes and impacts on the human environment, and with growing awareness of its complexity, it has become increasingly clear that science and human knowledge generally cannot provide definitive evidence of all forms of harm in advance.

(2)  Hence the development of the precautionary principle.

(3)  There may be little benefit in debating between the terminology of “precautionary principle” and “precautionary approach”, despite possible perceptions that one seems more mandatory and less flexible than the other.

(4)  The general content of the precautionary principle has given rise to different formulations in policy, legal, advocacy and analytical instruments and documents.

(5)  Some are “weak” and some are “strong”. Some demand or exhort action while some enable or authorise. Some involve a very broad scope of operation for proportion while some are limited to specified conditions.

(6)  At the very minimum, the precautionary principle will require that scientific certainty of environmental harm is not required as a prerequisite for taking action to avert it.

(7)  Where the principle is given its fullest effect, however, it may lead to prohibition of activities which pose any environmental threat, and require proponents of any proposed activity to demonstrate that it is safe.

(8)  Much debate around the precautionary principle is confused by the fact that antagonists have very differing conceptions of the principle in mind, involving one of these extremes or any point on a continuum between them.

183.  On the precautionary principle, I have also been referred to the Australian case of Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256, which considers the formulation adopted in section 6(2)(a) of the Protection of the Environment Administration Act 1991 (NSW), being that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. It also provides that in the application of the precautionary principle, public and private decisions should be guided by (1) careful evaluation to avoid, wherever practicable, serious and irreversible damage to the environment, and (2) an assessment of the risk-weighted consequences of various options.

184.  The case goes on to explore the precautionary principle: see §§125-188. It does so on the basis that the need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: (1) a threat of serious or irreversible environmental damage and (2) scientific uncertainty as to the environmental damage. These conditions or thresholds were said to be cumulative, and once the conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate.

185.  Assessing the degree of scientific uncertainty was also said to involve a process of analysis of many factors, and that the assessment of the degree of uncertainty might include consideration of: (1) the sufficiency of the evidence that there might be serious or irreversible environmental harm caused by the development plan, programme or project; (2) the level of uncertainty, including the kind of uncertainty (such as technical, methodological or epistemological uncertainty); and (3) the potential to reduce uncertainty having regard to what is possible in principle, economically and within a reasonable timeframe.

186.  As to how much scientific uncertainty must exist, the Court rejected the suggestion of a literal interpretation of “full” scientific uncertainty since it would render the condition meaningless, and reaching “full” scientific certainty would be an unattainable goal. It cannot be unequivocally stated that a particular phenomenon will never cause adverse effects, because a null hypothesis can never be proven through processes of inductive logic.

187.  It was also held that the precautionary principle should not be used to try to avoid all risks. A zero risk precautionary standard is inappropriate. The precautionary principle should not open the door wide to irrationality, but rather should establish itself as an aspect of the rational management of risks, designed not to achieve a zero risk (which everything suggests does not exist), but to limit the risks to which citizens are exposed to the lowest level reasonably imaginable.

188.  The conclusions reached included that:

(1)  The precautionary principle, where triggered, does not necessarily prohibit the carrying out of a development plan, programme or project until scientific certainty is attained.

(2)  If the precautionary principle were to be interpreted in this way, it would result in a paralysing bias in favour of the status quo and against taking precautions against risk. That would construe the precautionary principle to ban the very steps that it requires.

(3)  The solution is to assess the risk-weighted consequences of various options and select the option that affords the appropriate degree of precaution for the set of risks associated with the option.

189.  I respectfully agree that that is an appropriate solution, and an appropriate way to address the precautionary principle. By way of example, if the degree of uncertainty is quite high and the particular risk concerned is one of high importance, then the precautionary principle would tend to give the environment the benefit of the doubt.

190.  This also seems to me to chime with the stated aim of the EIAO, to protect the environment.

191.  I have also found helpful the way the matter was put by Mr Paul Leader, the Club’s ecology expert. He stated that contrary to doing nothing when the ecological impact is uncertain, it is his experience that it is necessary to conduct more extensive studies to fill the gap in knowledge and understanding so that any impacts can be assessed, and if need be and if possible, mitigated with a sufficient degree of certainty.

H.3  Old and Valuable Trees

192.  The starting point is to recognise that Old and Valuable Trees (“OVTs”) can only formally exist, or be registrable because they are, on unleased government land. But it is obvious that land which is about to be taken back and become unleased government land may have on it potentially registrable OVTs.

193.  In a preliminary feasibility study on developing the New Territories North performed in December 2017, there was in the executive summary a specific section – section 6 – on the FGC. At §6.1.2, it was stated that:

The development intensity and layout of both development options [partial development and full development] have taken into consideration the major development constraints of FGC, which include the presence of large, old and well-grown tree clusters (about 30,000 trees with a diameter at breast height of over 150mm) including potential Old and Valuable Trees and protected tree species, and secondary woodland.

194.  The reference to OVTs was footnoted to state that there are about 80 potentially registrable OVTs. This was further explained in an appendix, as follows:

According to the broad brush tree/vegetation survey conducted by the Hong Kong Golf Club (HKGC), there are about 30,000 trees in the golf course (with a diameter at breast height (DBH) over 150mm). Registration of Old and Valuable Trees (OVTs) within FGC has yet to be carried out. There are about 80 trees potentially meeting the criteria for OVTs (with a DBH over 1,000mm, the majority of which are estimated to be over 100 years old and scattered across the golf course), and at least another 84 trees protected species … found within the FGC. In addition, there are large tree clusters and secondary woodland of considerable sizes with mature trees with ecological value within the FGC.

195.  In other words, in 2017, the recognised constraints upon development at the FGC included that any development might encroach upon OVTs or potential OVTs.

196.  The Project Profile addressed this matter under the heading ‘Landscape and Visual’ at §§3.9.1 and 3.9.2, which expressly noted that (1) the cluster of trees in the project development area are landscape, fairway and woodland with many trees considered as potential OVTs, (2) they symbolize the long history of FGC development since 1911, (3) the potential OVTs and protected species possess significant amenity value, and (4) the survival rate of potential OVTs after transplanting is low due to their maturity.

197.  At §5.9.5, dealing with mitigation measures to be incorporated in the design stage, the measures to be adopted would include that the design should take into account the location of the potential OVTs and associated clearance zones and avoid disturbance of the soil levels around these trees.

198.  The SB at Appendix J dealt with ‘Requirements for Landscape and Visual Impact Assessment’, and included the following:

1. The Applicant shall review relevant plan(s) and conduct surveys/studies to identify existing sensitive landscape characters and landscape resources (including but not limited to Old and Valuable Tree (OVT), tree of large size, and protected/rare plant species such as Aquilaria sinensis) … . Any guidelines on landscape and urban design strategies and frameworks that may affect the appreciation of the Project shall also be reviewed. The aim is to gain an insight to the future outlook of the area affected so as to assess whether the Project can fit into the surrounding setting. …

2. The Applicant shall describe, appraise, analyse and evaluate the existing and planned landscape resources and character of the assessment area. …  The Applicant shall identify the degree of compatibility of the Project with the existing and planned landscape setting, recreation and tourism related uses, and scenic spot. The landscape impact assessment shall quantify the potential landscape impact as far as possible so as to illustrate the significance of such impacts arising from the proposed development. Clear mapping of the landscape impact is required. Broad brush tree and vegetation survey shall be carried out and the impacts on existing trees shall be addressed. Cumulative landscape and visual impacts of the Project and other committed and planned developments shall be assessed.

…

6. The mitigation measures shall also include the preservation of vegetation and natural landscape resources, e.g. transplanting trees in good condition and value, provision of screen planting, re-vegetation of disturbed lands, compensatory planting, woodland restoration, peripheral landscape treatment to blend in with the surrounding environment …

199.  It seems to me to be clear that the proper interpretation of the SB as regards the reference to OVTs in Appendix J is that it includes potential OVTs. I reject the submission made by both Mr Yuen and Mr Pao to the contrary, because:

(1)  There must be identification of existing sensitive landscape characters and landscape resources “including but not limited to” OVT.

(2)  A potential OVT would logically fall into that category.

(3)  That is even more obvious when it is understood that an OVT could only be registered if it is located on unleased government land, and the very EIA is directed at a site where development is being considered on the basis that the Land will be taken back by the government after the end of the then current lease.

(4)  This is in the context that those involved in assessing the Project would know that there could not be any already registered OVTs, which is also consistent with the Project Profile specifically identifying potential OVTs.

(5)  The aim of the relevant assessment is to gain an insight into the future outlook of the area affected, and the future must envisage potential OVTs and their registration as such.

(6)  Further, the necessary assessment is as to whether the Project can fit into the surrounding setting, which setting might by the relevant time include registered OVTs, the potential for which is evident at the time of assessment.

(7)  There must also be identification of the degree of compatibility of the Project with the existing and planned landscape setting, where the assessment should quantify the potential landscape impact as far as possible so as to illustrate the significance of such impacts arising from the proposed development.

(8)  Clear mapping of the landscape impact is required, and it seems to me to make little sense to imagine that the landscape mapped could ignore trees which are potential OVTs, where there is a general recognition that a potential project’s impact on OVTs may be significantly adverse, and potentially unacceptable.

200.  Indeed, under the Development Bureau Technical Circular (Works) No. 5/2020 ‘Registration and Preservation of Old and Valuable Trees’ (“Circular 5/2020”), emphasis is placed upon the fact that OVTs should be given “priority protection”.

201.  As there has been considerable argument about the appropriate meaning to be given to Circular 5/2020, it may be appropriate to set out some of its provisions, as follows:

6. It is Government policy to provide priority protection to the OVTs in the Register. Trees must satisfy one or more of the following criteria for registration as OVTs –

(a) Tree of large size (e.g. tree trunk diameter ≥ 1 m, measured 1.3 m above ground level);

(b) Tree of precious or rare species;

(c) Tree of particularly old age (e.g. ≥ 100 years old);

(d) Tree of cultural, historical or memorable significant; or

(e) Tree of outstanding form.

…

11. For public works projects requiring tree surveys to be carried out, the responsible project departments should assist to identify potentially registrable trees in the surveys and submit the relevant details to GLTMS for assessment using the nomination form at Appendix C.

12. Similarly, LandsD will arrange tree surveys for selected sites prior to their land sales, in order to identify any existing valuable trees within the sites, including potentially registrable trees, and arrange to submit relevant details to GLTMS using the nomination form at Appendix C. For trees that warrant special protection, including OVTs and trees that are potentially registrable in the Register, stonewalled trees and other trees of particular interest according to paragraph 2.6.1 of the Guidelines for Tree Risk Assessment and Management Arrangement (TRAM Guidelines), the trees will be identified as “trees of particular value” in the corresponding land lease with specific preservation requirements set out in the lease conditions.

…

15. It is Government policy to provide priority protection to the OVTs in the Register. The OVTs in the Register should be preserved throughout the different stages of their life cycles irrespective of the working situations in which they may interact with the operations of tree maintenance departments …

…

20. In the event that an OVT has died, the responsible tree maintenance department … or its agent shall report promptly to GLTMS and provide details for investigation. The OVT can only be removed with GLTMS’s written consent unless the tree poses an imminent danger to the public as stipulated in paragraph 24. The responsible tree maintenance department shall include a remark in the Register to record the cause of death. If replacement planting at the affected site is deemed necessary by GLTMS, the planting should be carried out or arranged by the responsible tree maintenance department.

21. Except under the situation as stated in paragraph 20 above, removal of OVTs is prohibited. If retaining an OVT at its existing location is not practicable, transplanting of the tree should be considered first and the transplanting and compensatory planting proposal shall be prepared and processed according to the control procedures set out in DEVB TC(W) No. 4/2020 or its latest version. If removal of an OVT is unavoidable, the responsible tree maintenance department concerned should demonstrate that removal of the tree is the best available and only practicable option.

22. For removal of an OVT, irrespective of whether it is alive or dead, the responsible tree maintenance department shall submit an application to GLTMS for initial comment, which shall respond within 28 calendar days upon receipt of all necessary information and documents, setting out the following information –

(a) updated details of the tree(s) as required in Section I of the application form at Appendix C;

(b) justifications for removal of the tree(s);

(c) results of the consultation procedures as required in Section 2.6 of the TRAM Guidelines; and

(d) details of the compensatory planting and any mitigation proposals, if applicable.

The responsible tree maintenance department shall update the application incorporating GLTMS’s comments and submit the updated application to the relevant Tree Work Venting Panel (TWVP) for approval.

23. The TWVP shall respond to the applicant within 42 calendar days from the date of receipt of the application. The TWVP shall also notify GLTMS of its decision. Upon completion of the tree removal, the responsible tree maintenance department shall update the Register.

24. The requirements under paragraphs 21 to 23 of this Circular are not applicable to emergency works when public safety is at stake, e.g. the OVT poses an imminent danger to the public. For each OVT removal, GLTMS relevant District Officer should be alerted as soon as practicable. The responsible tree maintenance department shall also prepare line-to-take and press release on the emergency OVT removal as soon as possible, and in any event within three calendar days, preferably before removal of the OVT. It shall also take full photographic records of the OVT(s) concerned before removal. The photographs should be in colour, imprinted with date and time and covered the ground conditions surrounding each of the OVT(s), the fallen parts and the exposed roots and/or root crown of the OVT(s) in applicable. A tree failure/tree assessment report (where applicable) for each of the OVT(s) concerned should be prepared and submitted to GLTMS, and the Urban Forestry Advisory Panel, if applicable, within 21 calendar days from the date of completion of the emergency tree removal.

202.  As can be seen from §11, public projects such as the Project trigger a policy requirement that the Department initiating the project should identify potentially registrable OVTs. This is again consistent with, and perhaps relevant context for, my interpretation of the material requirements of the SB.

203.  Contrary to the submission made by Mr Pao, I do not think that the interpretation is somehow affected by the fact that §6 contains different categories or criteria which must or can be satisfied by a tree before it is registrable as an OVT.

204.  But the main argument has been as to the proper approach to §§20-22. Mr Yu argues that the correct meaning is that, unless the OVT has died (§20), it cannot be removed (§21), and removal includes not just felling the tree but attempting its transplantation. As he put it, if you remove the tree by removing it from its existing location to another location, that is prohibited. He also submitted that it would be perverse to read §§20-21 to mean that a tree can just be removed when it is not practicable to retain it because a building is proposed to be developed or built in that location. That, he said, would turn the spirit and intention of the Circular upside down. Reference was also made to the fact that the Club’s landscape architect expert, Mr Alexander Duggie, identifies that he is not aware of any case where an OVT has been removed or transplanted to make way for a new development, whether under a Government lease or in a public works project on unreleased Government land. Nor has he encountered, since the creation of the Register, the situation where a land lease prepared for sale of Government land to a private developer allows the removal of an OVT, and, public works projects have never adopted a less stringent approach. The CEDD’s deponent does not identify any instance where an OVT has been moved and transplanted elsewhere.

205.  On the other hand, Mr Pao argued that:

(1)  Circular 5/2020 does not impose a blanket prohibition on the transplanting or removal of living, non-dangerous OVTs, but such removal is subject to stringent safeguards under the prescribed procedures that the removal would be (a) subject to further revisions of the layout plan so as to be avoided if possible, (b) even if unavoidable must be fully justified, and (c) is by no means a foregone conclusion.

(2)  Where retention of an OVT is “not practicable”, under §21 transplanting is endorsed as a primary option.

(3)  The Club’s construction of “not practicable” ignores §24.

(4)  The word “removal” in the first sentence of §21 refers to “felling” only.

(5)  Even where removal is unavoidable, it must be demonstrated that it is the best and available and only practical option.

(6)  Ultimately, §22 means that no removal of an OVT (whether alive or dead) can be effected without approval.

(7)  In short, reading the various provisions together, they mean that except under the situation stated in §20, removal of an OVT is prohibited unless an application under §22 is approved.

(8)  Therefore, there is no force in any suggestion that OVTs would enjoy less protection than TPIs under Circular 4/2020.

206.  In my view, Mr Pao’s offered interpretation of the word “removal” in §§20-22 is correct. It means “felling”, and does not include an attempt at transplantation. In essence, the only OVT which can be removed is one which has died, or one which though still alive can nevertheless be justified for removal (such as because it is dangerous). As Mr Pao submits, removal of an OVT, irrespective of whether it is alive or dead, still requires necessary application and approval – unless there is an imminent danger to public safety, which triggers the approach mandated by §24.

207.  On the other hand, I do not think §21 somehow opens the door wide to transplanting of OVTs because of some general view that retaining it at its existing location is not practicable, for example because someone wants to build something where the OVT is located. I accept Mr Yu’s submission that that would turn the general spirit and intention of the Circular on its head. Though not ruled out altogether, the circumstances when there would be any consideration of transplanting an OVT must be extremely rare – described elsewhere as “very special circumstances and fully justified” – and would not be for mere convenience because the OVT is thought to be in the way of a proposed potential development. That seems to me to be the most likely explanation for why Mr Duggie is unaware of any case where an OVT has been removed or transplanted to make way for new development, and why the CEDD has not produced evidence to identify the circumstances when an OVT has been moved or transplanted elsewhere.

208.  It is also important to keep in mind that it is recognised elsewhere that transplanting an OVT is unlikely to be successful, and so the Government policy to provide “priority protection” to the OVTs in the Register (as well as potentially registrable trees identified through tree surveys) – see §§6 and 11 of Circular 5/2020 – would also point to the extreme rarity of circumstances when it might ever be thought acceptable to remove or even attempt transplantation of an OVT.

209.  Reference was also made in argument to part of the responses to comments made by the ACE on 18 July 2022, as regards the general tree felling plan. It was stated that the tree felling plan was based on the statistics formulated by reference to the housing block layout in the EIA Report, which would be subject to further review in the subsequent design phase of the Project. A further and detailed tree survey would be carried out to provide a complete inventory and to re-examine the condition of all the existing trees within Sub-Area 1, and the housing block layout would be revised based on, amongst other aspects, findings of the further detailed tree survey, with a view to preserving the existing trees as far as practical. The active measures to be taken to minimise the impact to existing trees may include adoption of non-standard housing blocks, relocation of the housing blocks, reducing the number of housing blocks without affecting the targeted flat yield. Tree preservation and removal proposal would be prepared based on the recommended housing block layout with tree preservation as a major consideration. Mr Pao described this as an “iterative design” process.

210.  That may be so, but it is obviously one aimed at trees in general, and not aimed at potential OVTs, trees of large sizes or rare species. I do not think the intention to ‘tweak’ or finalize the design of the buildings to try to preserve trees in general really meets the complaint about the other more important trees.

211.  In the EIA Report, at §4.1.6 of the Executive Summary, it was stated:

Consideration of avoiding the impacts of rare/protected plant species has been taken into account during the initial stage of the study. In order to minimise the impact of construction towards the existing rare and protected plant species, the proposed public housing development will be located at Sub-Area 1. As a result, amongst the 70 nos. of Trees of Particular Interest (TPIs) found in Sub-Area 1 including 24 nos. mature trees with DBHs equal to or over 1000mm and 46 nos. rare/protected plant species, 11 nos. mature trees are feasible to be preserved in-situ, 2 nos. of mature trees are to be transplanted to nearby receptor site within the PDA and 11 nos. mature trees are to be removed due to proximity with the proposed building layout. Amongst 32 nos. rare/protected plant species, all of them are proposed to be transplanted to nearby suitable receptor site.

212.  A little further into the contents of the EIA Report itself is Table 2.1, which sets out key comments received from the public and ‘Green Group’, and the responses to those comments. Materially relevant to ‘landscape and visual’ for present purposes is the following:

Commenters showed their concerns about the trees, especially on OVT (Old Valuable Tree) and they shall be valued and assessed with complex ecological and biodiversity values under Development Bureau Handbook on Tree Management.

According to database of Old and Valuable Tree (OVT) provided by LCSD and our site tree survey, there is currently no registered OVTs found within the study area (Sub-Areas 1 to 4). However, a detailed tree survey has been conducted in Sub-Area 1 to identify the potential Old and Valuable Trees that may be affected. Mitigation methods such as retaining the Potential OVTs in-situ and transportation are proposed in our development. Besides, landscape resources and characters within the study area have been identified and evaluated in the Landscape and Visual Impact Assessment. Assessment of landscape resources is based on the criteria of distinctiveness, maturity and quality of the landscape resources. The importance of each resource has been evaluated in the Landscape and Visual Impact Assessment.

213.  Though there is the suggestion that there had been a detailed tree survey to identify potential OVTs that may be affected, I think it is tolerably clear that that was not in fact done (and the argument advanced for the DEP and the CEDD is that it did not need to be done).

214.  The EIA Report has a section on LVIA. As to Tree Survey, the assessment methodology is identified in §11.5.1.3, which suggests that a tree survey will be undertaken to estimate the numbers of existing trees, dominant species, maturity, rarity, OVTs. Also, based on the proposed development Option 2 – where Sub-Area 1 is proposed for development while Sub-Areas 2-4 are proposed to be preserved for compatible use – therefore an individual tree survey will be carried out for Sub-Area 1, while broad brush tree survey will be provided for Sub-Areas 2-4. There is no reference to potential OVTs.

215.  Instead, the conclusion on Tree Survey includes at §11.6.3.11 that no registered OVTs were recorded during the tree survey. That is not surprising where, at the time of the survey, the land surveyed was not unleased government land. But – as I have already canvassed – where the whole purpose of the EIA Report was in relation to potential development of land to be taken back into government ownership, the EIA Report simply failed to take into account something which it ought to have done. This is so despite the fact that Project Profile had referenced potential OVTs and the Club had expressly identified the presence of potentially registrable OVTs when it made its statutory submission in the EIA process.

216.  The fact that these (and other) public comments were not addressed in the EIA Report is also contrary to the requirement of the TM at §4.5.1(c) which requires the EIA Report to have addressed relevant environmental issues raised by the public and the ACE during the public inspection period.

217.  To put it another way, and by reference to the affidavit of Mr Duggie, there was a failure to advise the DEP of the existence of about 80 potentially registrable OVTs, in consequence of which there was no OVT review process as was otherwise required by the OVT Policy. I also do not think that the failure can be overlooked because, somewhere else in the tree survey (perhaps buried in a small-print schedule), there may be reference to a number of trees with particular characteristics which might meet the criteria for registration as OVTs. Even if there were some sort of “overlapping definition”, as Mr Pao submitted, the fact remains that there was no attention drawn to the existence of the potentially registrable OVTs as would have triggered the process required by the OVT Policy.

218.  As I also noted in my Stay Decision, by reference to a plan, it can be seen that when the locations of potentially registrable OVTs are considered in conjunction with Condition (a) in the Decision (which requires a revised layout plan aiming to protect the woodland of 0.39 ha in the centre of Sub-Area 1), it appears to identify that any large-scale development in Sub-Area 1 becomes at least extremely difficult, if not impossible – unless the trees are removed or transplanted. This is because the proposed locations of at least 8 of 11 intended housing blocks, as well as the proposed transport interchange and special needs school, apparently partly or completely overlap with locations where potentially registrable OVTs now stand.

219.  Whether OVTs could be moved is both a practical and a policy point. On the practical level, I have already noted (1) the governmental recognition that the survival rate of OVTs and potential OVTs after transplanting is low due to their maturity, and (2) as the Project Profile says, that means mitigation measures must be incorporated to take into account the location of the potential OVTs and associated clearance zones and avoid disturbance of the soil levels around these trees.

220.  As to policy, I have already considered Circular 5/2020, but reference can also be made to Development Bureau Technical Circular (Works) No. 4/2020 ‘Tree Preservation’ (“Circular 4/2020”), which was issued at the same time, and which includes the following provisions:

6. It is Government policy to preserve trees as far as practicable. No tree shall be unnecessarily removed or excessively pruned, both during implementation of government projects and under arboricultural maintenance.

7. The following order of priority shall be observed for preservation of healthy trees in government projects –

(a) retain the tree(s) at its/their existing location(s);

(b) if (a) is not practicable, transplant the affected tree(s) to other permanent locations within the project site or the maintenance area to minimise the loss of vegetation in the local environments; or

(c) if both (a) and (b) are not practicable, transplant the affected tree(s) to other permanent location(s), which should preferably be in adjacent areas in order to maintain its/their amenity value to the neighbourhood.

…

12. Trees should be preserved as far as practicable. If removal of a tree or tree(s) is absolutely necessary, whether in government projects or arboricultural maintenance, a Tree Preservation and Removal Proposal (TPRP) shall be prepared to justify the need for tree removal. …

…

Trees in government projects

31. The need to preserve and protect trees must be borne in mind in all stages of a government project from feasibility to post-construction maintenance stages including but not be limited to the establishment period of the government project.

Feasibility stage

32. Due consideration should be given to ensure that the purposes of the government project can be satisfied while assigning priority to preserve value tree assets. Trees of particular interest should be identified for priority preservation.

33. In accordance with [Circular 5/2020], the removal of Old and Valuable Trees should only be permitted under very special circumstances with full justifications.

Planning Stage

34. A tree survey plan and tree assessment schedule should be prepared that form part of the TPRP. The tree survey should be carried out for all trees that will be affected, including dead trees, within and, if appropriate, adjacent to the project site (including works areas). Guidelines for preparing the tree survey plan and tree assessment schedule are given in Appendices C and C(1) respectively.

…

Design Stage

…

37. Tree Protection Zones (“TPZs”) should be provided in the design stage for trees identified for preservation. TPZs, which should be clearly demarcated in the overall layout plan, should be free from compaction, excavation, construction materials and debris throughout the construction stage and adequately protected by robust fencing at the commencement of the site formation and/or construction works. Any special measures required to preserve the tree(s) should be documented in the contract. For major works projects involving large number of trees to be retained, the demarcation of the TPZs could be in group for ease of illustration.

38. A tree protection plan, as part of the TPRP, should be formulated to eliminate the risk of construction damage to the retained trees. Guidelines for preparing the tree protection plan are set out in Appendix C.

39. Should works within a TPZ be considered unavoidable, a detailed arboricultural assessment should be made to assess the impacts of the proposed works to the tree(s) that are proposed to be retained. The project Department should minimise the anticipated impacts and avoid irreversible and/or irreparable damage to these trees as far as practicable.

40. The TPRP should include the full justifications to transplant and remove trees and the proposed compensatory planting. The TPRP should be properly planned for implementation to ensure a balance of the following factors – … (d) functional requirements of the government projects such as site formation or excavation, space for TPZs and tree growth (both vertical and horizontal) in the future; …

221.  I think some of those provisions show that at the feasibility stage trees to be given priority preservation should be identified, and at the design stage it is worked out how to give that priority, including ensuring that the trees are not damaged through the construction process. However, §32 states that what has to be done at the feasibility stage is to assess whether the purpose of the intended government project can be performed whilst at the same time being satisfied that priority has been assigned to the trees identified for priority preservation. Only if the view is taken that that is possible or feasible does one go on to work out, at the design stage, how to protect those trees.

222.  Appendix C to Circular 4/2020 deals, amongst other things, with tree survey plan for government projects. It identifies that the tree survey must be undertaken prior to the main site layout design to avoid potential land-use conflicts and ensure proper allocation of space for trees that will remain. The survey should document all trees within and, if appropriate, adjacent to the site, and should include various details, amongst which are locations of trees together with their crown spread on a plan showing the spotlight of existing levels and above-ground features, together with an identification number provided adjacent to each tree. There should also be an overlay of site formation plan showing the proposed layout of the development so as to ensure that the Tree Protection Zones (“TPZs”) should not be encroached upon or affected by the works.

223.  This links back to the point I have already made above about what is indicated by a comparison between the relevant plans in this case, namely that at least 8 of 11 intended housing blocks of the Project, as well as the proposed transport interchange and special needs school, appear partly or completely to overlap with locations where potentially registrable OVTs now stand.

224.  As to the materiality of this failure, it seems to me to have been significant in the context of the necessary impact assessment. It is not made less significant because there might be a tree management plan put in place later. If a proposed development of a building or buildings is in a location where there are OVTs, that may simply mean that development in that location is not possible – or at least, there must be recognition of the significant adverse environmental impact – likely to be regarded as unacceptable – which would be caused if the OVTs are removed to permit placement of built structures.

225.  That is not to say that there should have been inserted into the EIA Report a blanket caveat on the alleged potential non-feasibility of the Project. Indeed, I accept that the final assessment of risk of adverse environmental impact may change if designs change. But I do not think that means the potential significant adverse environmental impact on potentially registrable OVTs can in effect be ignored until the “design stage”.

226.  That significant adverse environmental impact does not seem, on the evidence, to be in any realistic way alleviated by the theoretical possibility of moving OVTs to a new location. These are matters which were not canvassed in the EIA Report.

227.  Mr Yu chose to deal with the topic of OVTs first in the context of his argument on Ground 3, and his argument generally. This was apparently on the basis that the failure of the EIA Report in this regard is compelling, and is sufficient of itself to set aside the Decision.

228.  I agree.

229.  In conclusion, the failure to have identified potential OVTs meant that the EIA Report failed to comply with TM §§4.4.2(b) and (d), and hence 4.5.1 (b) and (c).

H.4  Tree Survey and Compensation

230.  This topic – which is in addition to the topic of OVTs above – brings into play connected matters relating to what the Club says is an inadequate tree survey, and the point about compensatory tree planting.

231.  The connection arises because the adverse impact of removing a number of trees will need to be mitigated by planting other trees in compensation. The area required for compensatory tree planting will be determined by the number of those trees to be planted in compensation for the number removed. If, therefore, there is a miscalculation (undercounting) of the number of trees which will be removed, there will be a consequential miscalculation (undercounting) of the area needed for compensatory tree planting. There may also be a debate about the space required for each individual compensatory tree. Whilst the CEDD says the compensatory tree planting can fit within Sub-Areas 2 and 3, the Club says it would not fit in Sub-Areas 2 and 3 and would have to extend into Sub-Area 4.

232.  But, before going into those details, it may be relevant to note that the landscape impact overall had already been assessed as “substantial adverse” before mitigation. That was the highest adverse impact significance possible, and I accept that the undercounting of trees would not itself have made a meaningful difference to that impact significance assessment. The issue currently in dispute addresses a different point – and focuses more on whether the impact significance of “acceptable with mitigation measures” was incorrectly reached or based (and perhaps should have been “unacceptable”, meaning that the adverse effects are too excessive and cannot be mitigated practically).

233.  It is convenient to start with Appendix J to the SB, which Mr Pao emphasised had the “aim” to gain an insight to the future outlook of the area affected so as to assess whether the Project can fit into the surrounding setting. He said that provided context, and the requirement under Appendix J was therefore for a broad brush survey, and not one to the standard of an individual survey.

234.  He also referred to Guidance Note No. 8/2010 ‘Preparation of Landscape and Visual Impact Assessment’ under the EIAO, and in particular paragraph 3.4(a) which states that baseline conditions are not static and may change over time according to the planning framework, and 3.4(d) which requires a broad brush tree/vegetation survey to be prepared as an integral part of the landscape baseline study, and unless specified elsewhere in the SB, a detailed tree survey is usually not necessary for the preparation of landscape impact assessment.

235.  Hence, Mr Pao submitted that the information was provided in the EIA Report enables a reasonable assessment of whether the Project can fit into its surrounding setting, to meet the aim set out in Appendix J.

236.  Reference can also be made to Appendix C to Circular 4/2020, which states that the TPRP (i.e. Tree Preservation and Removal Proposal) should contain all necessary information for assessing the impact of trees brought about by the implementation of the proposed development, and that fundamental information should be provided, including (amongst other things) a compensatory planting proposal prepared in accordance with the following (bold in original):

a. Basic principle

Compensatory planting should be realistic, practicable and sustainable with holistic consideration to balance the quantity and quality of tree planting.  The principles of “right tree for the right place” should be followed so that trees are selected to match the site, environmental conditions, surrounding landscape character and design intent. Above and below ground space should be sufficient to cater for establishment and healthy growth of the selected tree species to maturity. The selection of tree species for compensatory planting proposal should be commensurate to its proposed amenity values, intended ecological value and cost-effectiveness in subsequent maintenance and long-term management. Off-site compensatory planting should preferably be in proximity to the project site for retention of amenity and ecological values within the area. Prior mutual agreement from maintenance departments for long-term maintenance and management, for both on-site and off-site compensatory planting, should be sought and appropriately accounted for from the design stage.

b. Quantity of compensation

1. As far as practicable, implementation of compensatory tree planting should be of a ratio not less than 1:1 in terms of number, i.e. the number of compensatory trees on-site and offsite not be lower than that of the number of trees removed including dead trees, but excluding trees of undesirable species. In principle, size of compensatory trees at their maturity, should be appropriate to the location and function. …  Sufficient space should be provided for the compensatory trees from establishment to maturity to maximise tree health and stability. Proposals which deviate from the above requirements should be supported with full justifications and an alternative proposal in quantity and quality.

2. In case the requirement in the above paragraph can be met, and sufficient growing space for tree planting can be identified, further planning and design consideration with an objective to achieve the compensatory planting ratio of 1:1 in terms of aggregated DBH, i.e. the total DBH of planted trees to have the same total DBH of removed trees should be undertaken as far as practicable. In situations where this compensatory planning criterion cannot be achieved, the difficulties should be demonstrated.

237.  The footnotes to that section identified that: (1) sufficient growing space implies aerial space for tree canopy/crown, ground level space for root collar and main stem, as well as below ground space for tree root system, all commensurable to growing habit of the selected tree species; (2) the compensatory planting in terms of aggregated DBH for removed trees should take into consideration of the space required for the normal growth of the proposed species up to maturity, and avoid planting that would lead to over-congestion in the long run.

238.  Further, Appendix C noted:

II. Tree survey plan (for government projects only)

The tree survey must be undertaken prior to the main site layout design to avoid potential land-use conflicts and ensure proper allocation of space for trees that will remain. The survey should document all trees within and if appropriate, adjacent to the site, and should include the following details:

(i) location of trees together with their crown spread within and, if appropriate, adjacent to the site on a plan showing the spot height of existing levels and above-ground features, together with an identification number provided adjacent to each tree;

(ii) trees to be retained, transplanted within the site, transplanted off-site or removed presented in different colour;

(iii) an overlay of site formation plan showing the proposed layout of the development, extent of excavation works, proposed utilities, vehicular access and traffic sight line, the formation or finished levels as well as the extent of temporary works and facilities (e.g. site offices, storage areas, etc.) so as to ensure that the TPZs should not be encroached upon or affected by the works;

(iv) TPZs around all trees proposed to be retained. Assessment should be made on the potential impacts of building foundations and other structures on the TPZs; and

(v) where appropriate, a cross-section showing the proposed architectural and engineering features around the TPZs should be provided to show that sufficient vertical and horizontal space can be reserved for TPZs. On the other hand, for trees proposed to be removed due to changes in level, a cross-section showing the original and finished levels should be provided if the features that my affect nearby TPZs cannot be shown on a plan.

239.  Some of the comments provided in response to ACE Members’ concerns expressed at the 8 August 2022 meeting were directed at the elaboration of the tree felling plan, and the possibility of minimising the number of trees to be felled through strategic design and layout plan for the residential housing units while considering the possibility that the total number of buildings could be reduced by extending the height and number of floors in each building. Many of the comments in response – which seems directed at trees in general – was under the heading ‘Further Effort to Preserve Existing Trees’ and stated:

The tree felling plan based on the statistics above is formulated based on the housing block layout in the EIA Report. The housing block layout will be subject to further review in the subsequent design phase of this project.

With respect to the tree felling, a further and detailed tree survey will be carried out in the subsequent phase of this project. The further detailed tree survey will provide a complete inventory and re-examine the condition of all the existing trees within Sub-Area 1. The housing block layout will be reviewed and revised based on, amongst other aspects, findings of the further detailed tree survey, with a view of preserving the existing trees as far as practical as the Government tree preservation policy. By reviewing the housing block layout, active measures will be taken to minimise the impact to the existing trees. The active measures may include adoption of non-standard housing blocks, relocation of the housing blocks, reducing the number of housing blocks without affecting the targeted flat yield by increasing the number of flats on each floor, taking account of the visual impact, and ventilation impact etc. intensive effort will be taken for ensuring the housing block layout scheme will be technically feasible and balancing different technical aspects, including preserving the existing trees as far as practical.

Tree preservation and removal proposal (TPRP) will be prepared based on the recommended housing block layout with tree preservation as a major consideration. The TPRP will be subject to vetting by the relevant departments of the Government. Justifications shall be provided for any tree felling. Approval by the relevant departments will only be given upon the Government policy of tree preservation is satisfied.

240.  It seems to me that these comments are perhaps the precursor to some of the Conditions as were subsequently attached to the approval given by the Decision. The ACE seemed to be seeking for elaboration, namely detail, by reference to the provision of the strategic design and layout plan. The comments, however, appeared simply to raise a number of possibilities, framed as generalities, without detail and without any strategic design and layout plan. Whilst I acknowledge that a subsequent design phase might be the time to provide precise design detail, I think the ACE was asking for sufficient detail at the EIA stage to be able to assess whether the proposed Project – and in this context in particular regarding the loss of trees – could be regarded as environmentally acceptable.

241.  I note that the Executive Summary of the technical review of tree-related issues in ACE Paper 8/2023, compiled for and submitted by the Club, included the following:

Furthermore, in February-March 2023 [URBIS] undertook a detailed site survey (the “HKGC Tree Survey”) to check and verify the findings of the EIA Tree Survey. The findings of the HKGC Tree Survey are reported in the “Technical Review Report of the EIA Tree Survey” (TRR) dated April 2023. Major errors are found. The EIA Tree Survey missed 460 trees (approx. one quarter of trees on site) including 26 rare and/or protected species and 5 large Trees of Particular Interest (TPIs); misidentified 57 tree species; plotted over 60 trees in wrong locations; and recorded most tree dimensions incorrectly at averages of only 86% of actual tree trunk diameters (DBH), 76% of actual tree heights and 66% (in woodland areas) and 60% (in open areas) of actual tree canopy spreads. Furthermore, the tree survey failed to identify that 25 of the 29 large TPIs in Sub-Area 1 are directly comparable in size and quality with existing Old and Valuable Trees (OVTs) on Government’s OVT Register, meaning these trees are likely to be registered as OVTs if Government resumes the land and therefore, they should not be touched. The only other sites in HK with comparable OVT numbers are Kowloon Park (28) and Victoria Park (14). ACE Paper 8/2023 does nothing to address these deficiencies of the EIA tree survey.

242.  There does not seem to be any real dispute as to the potential undercounting of trees. Indeed it seems to be accepted that around 300 trees of the adequate size were missed at the time – though there is some suggestion of the adoption of different standards, and that the counting occurred at different times (not that one would expect hundreds of trees suddenly to appear or disappear). Rather, the CEDD’s case is that that is the result of doing a broad brush counting exercise. But, as I have already canvassed above, that does not seem to me to be what factually occurred. Though there was a broad brush approach taken to the tree survey in Sub-Areas 2 to 4, an individual tree survey was in fact performed in Sub-Area 1. This is evident from the documents which say so, and from the plans which mark individual trees, and give numbers which are apparently not approximations or rounded. This is also consistent with the Consultancy Brief from the CEDD to the consultants which expressly required a comprehensive tree survey of all existing trees within the development area that are likely to be affected by construction works (so those in Sub-Area 1).

243.  The tree survey plan of Sub-Area 1 shows individual trees by type. The EIA Report at §11.6.3.3 notes that among the 1,255 survey trees in Sub-Area 1, 70 TPIs were identified. Of them, 24 are mature trees with DBHs equal to or over 1000 mm, and 46 are rare/protected species. §11.6.3.7 notes that among the approximately 3090 existing trees in Sub-Areas 2 to 4 recorded in a broad-brush tree survey represented by 73 tree groups, 395 TPIs were recorded. Of them, 41 are mature trees with DBHs equal to or over 1000 mm and 18 are rare/protected species. §11.6.3.9 identifies that to compensate the loss of 996 trees (the specific number set out in a mitigation measure table), 996 compensatory trees are proposed to be planted in Sub-Areas 2 and 3 or other suitable location (with the exact numbers and locations to be subjected to further review and to be provided under the compensatory tree planting plan in later design stage).

244.  In the part of the EIA Report dealing with compensation woodland planting, §9.8.3.1 recognises that, if taking a conservative approach, all the mixed woodland and woodland in Sub-Area 1 are assumed to be lost during construction phase at this stage for compensation planning. It suggests the actual loss, however, should be smaller when the layout is confirmed during the detailed design stage with the consideration of minimising direct impact to woodland habitats.

245.  The EIA Report at §9.8.3.3 recognises the need to avoid large-scale planting works which might affect the hydrology for sensitive wetland habitats, such as in Sub-Area 4. It suggests a proposed location of woodland compensation of approximately 5.1 ha, larger than the woodland loss of 4.11 ha. Further, as tree felling will be required and compensatory trees are proposed to be planted in Sub-Area 3, that overlaps with the proposed location of woodland compensation. The exact sites for woodland compensation and compensatory planting would be subject to future site planning.

246.  Mr Yu referred to a plan relating to the proposed 5.1 ha of woodland compensation depicted in the EIA Report. But, he submitted, what had been overlooked was that the 5.1 ha overlooks existing trees, and that compensatory tree planting cannot occur on areas which are already occupied by trees. Hence, to give a compensatory area of 5.1 ha, that would protrude down into Sub-Area 4. That is so, even if the tree counting in the EIA Report is correct. However, the problem is exacerbated if another 30% is added. In addition, he submitted that compliance with the technical circular to provide sufficient space for each compensatory tree would then require compensatory planting space of 6.88 ha.

247.  Mr Pao’s submission in response was that, irrespective of the correctness of the tree numbers, there simply will be no compensatory tree planting in Sub-Area 4. The CEDD’s position is that it has adopted a very conservative approach towards the calculation of the compensatory planting, but even if part of the compensation cannot be placed within Sub-Areas 2 and 3, consideration can be given to off-site planting to avoid any encroachment on Sub-Area 4. In the hierarchy of mitigation measures, that is a measure which is slightly lower than on-site compensatory planting, but a reserve option.

248.  Further, Mr Pao submitted that, in terms of the assessment for the CSC, whether talking about an extra or fewer hundred trees or so, the level of what is required for the maintenance of those trees is so relatively small that the source of water from the reclaimed water treatment plant is more than sufficient to take care of any additional need.

249.  During argument, Mr Pao also handed up a calculation on tree compensation. A preliminary point identified that the “current” intention is to retain the 0.39 ha of woodland containing 186 trees, so that the “additional” number of alleged missing trees to be compensated for should be 118, not 304. By deducting the alleged overlapping area with existing woodland (0.88 ha) from the proposed area for compensation (5.1 ha) the compensatory area needed would be 4.22 ha. That can be compared to the existing area of either 4.11 ha or 3.72 ha (i.e. with or without the 0.39 ha). The land required for tree compensation on a 1:1 by number ratio at 4 m² spacing would be either 1.59 ha (on the EIA tree count of 996), 2.08 ha (on the Club’s tree count of 1300), or 1.78 ha (using the Club’s count but taking into account the retention of 0.39 ha containing 186 trees). On that basis, Mr Pao submitted there is more than enough space for compensatory planting, without encroaching on Sub-Area 4.

250.  Mr Pao also pointed out that, on the assumptions behind the Club’s claimed compensatory area using Mr Duggie’s assumptions, 6.88 ha is 1.7 times the current land on which the trees to be replaced now stand. That also relies on the suggestion that 4,300 trees will be needed to replace either the 996 trees, or any number between 996 and 1,300. Mr Pao said that Mr Duggie’s assumptions, though clever, are simply mathematically incorrect by reference to the proper principles.

251.  But, the answer to this point seems to me that, though it is far preferable to have compensatory planting on-site, it remains a mitigation option to have compensatory planting at least partially off-site. If, as seems the clear statement on behalf of the CEDD, there will simply not be any compensatory planting on Sub-Area 4 under any circumstances, that would deal with the particular concern about sufficiency of the area for compensatory planting.

252.  There is also a separate question arising out of a potential failure in the EIA Report to have taken into account the fact of the location at which at least 116 trees are located in Sub-Area 1. By reference to a “Technical Study on Partial Development of Fanling Golf Course” – a planning report for preparing the OZP – it can be seen that site formation levels are proposed from approximately +14.0mPD to +19.0mPD, dipping from south to north, which would require trimming of existing ground. Using the evidence of Mr Duggie, Mr Yu submitted that it would be impossible to retain the 116 trees because the CEDD’s site formation proposes to remove the hill upon which they sit.

253.  In the ‘Technical Review of Landscape Impact Assessment’ provided by the Club’s consultant URBIS Ltd, amongst the points made are that (1) there is no evidence presented to support retention of 11 TPIs (i.e. trees of particular interest) in Sub-Area 1, and (2) there is no evidence presented to support proposed retention of hillock containing approximately 100 trees in the centre of Sub-Area 1.

254.  The former point criticises the lack of spot levels to indicate ground levels at or around any survey trees; the absence of evidence relating to the relationship between the proposed formation levels and the existing ground levels of the proposed retained trees; the absence of discussion on how level differences would be resolved in ways which have dramatically different impacts on existing topography entries; the absence of any three-dimensional analysis; and the absence of identification of any ‘Tree Protection Areas’ on any plan to protect the trees during the site formation contracts and building construction contracts, which would be essential for any proposed tree preservation.

255.  But Mr Tang Ming Chak, in evidence for the CEDD, addressed the feasibility of retaining the 11 large TPIs, and attached a table provided to him by WSP. The 11 TPIs were the matter addressed when Mr Duggie first raised the complaint in his affidavit, and are dispersed across Sub-Area 1, and not just where the 116-tree cluster is located. The WSP table compares the ground level of the trees (as shown by contour lines of the base map of the tree survey plan) with the proposed formation levels of the proposed housing development. It shows the approximate level difference between the ground-level and existing tree in the future housing development of between -1.3 m and +3 m. Mr Tang suggested that, given the relatively small level difference, there would not be any significant issue in enclosing the trees within tree islands or tree wells to accommodate the level difference, or to construct any remaining structure (if needed) for the tree islands or tree wells. He also pointed to previous examples of the use of a tree island in other projects to accommodate an even larger level difference.

256.  It was Mr Duggie’s response to that matter which raised the latter point about the removal of the hillock, which is explained in the technical review as follows:

The LVIA proposes that approximately 100 trees can be retained on a hillock in the centre of Sub-Area 1 between blocks 6 and 12. This hillock rises to 27.6mPD which is at least 11m above the site formation level of 16mPD. The criticisms described [above] apply with equal force to the claim that these 100 trees could realistically be retained. Once again, like [the item relating to the 11 TPIs], the complete lack of any explanation or demonstration as to how these 100 trees can be physically retained means that the effectiveness of the mitigation is not demonstrated to be practical or achievable, which requires the mitigation to be discounted in the EIA.

257.  In response to that particular evidence, Mr Lau for the CEDD suggested in his evidence that there had been a misunderstanding as to the relevant hills. He said there were two hills in the vicinity, one in the southern side and one near the northern side, and it is only the southern side which would be removed, whereas the northern hill on which the tree cluster sits would not be removed. This was the evidence relied upon by Mr Pao in his submissions – subject to his primary point, to which I shall return.

258.  In reply to that evidence, Mr Duggie suggested there are not really separate hills, but two hillcrests, both covered in trees, separated by a saddle (containing the fairway of the second hole), in an area of continuous higher ground in the south-west of Sub-Area 1. By reference to the spot heights in the tree survey plans in the EIA Report, the southern hillock crests at approximately 30mPD, the Northern hillock at approximately 28mPD, with the saddle dipping to a low point of approximately 24mPD. Mr Duggie explained that there are no cross-sections provided to explain the feasibility of the tree retention proposals in the EIA Report. But given the site formation platform is +18mPD , any proposed retention of the tree cluster on the hill would necessitate building a retaining wall along the northern facade of the nearest planned block, that would be about 90 m long rising to approximately 15 m high at the midpoint. Yet there is no such proposal included in the EIA Report or in the Planning Report.

259.  Mr Duggie also pointed out that the Club has consistently identified this issue since its statutory submission made in June 2022. On that basis, whilst I have some sympathy with Mr Pao’s primary submission that this point should not be allowed to be run because it is not identified in the Form 86, and its Annex 2 particularising Ground 3, what might be called ‘the three-dimensional point’ is not an entirely new point and it has been addressed in the evidence, and Mr Pao was able to address it from the Bar table by reference to some of the materials in the bundle. Therefore, though not without some regret, I do not think it would be right to accept Mr Pao’s invitation not to address the point at all.

260.  Of course, Mr Lau has also suggested in his evidence that the sort of information required by Mr Duggie, such as formation levels, ground levels of existing trees and TPZs of individual trees, is not required at the EIA Report stage, and that a TPRP (addressing those issues) is only required to be submitted at the Design Stage. However, first, it seems to me to be obvious that some consideration should be given to the relationship between the existing levels where trees are located and proposed formation levels if they differ. Secondly, where existing and proposed levels differ, there should be some explanation as to how the change in topography would or would not impact the trees proposed to be retained, and how any impact might be mitigated. Thirdly, this approach is at least implicit from the Consultancy Brief for the EIA between the CEDD and WSP, the consultants performing the EIA. Therefore, I accept the point that if matters are not looked at on a proper three-dimensional spatial basis, the EIA Report would not sufficiently investigate, analyse and predict the true consequences of the design intent, and conclusions may be advanced on what turns out to be a false premise.

261.  Mr Pao was able to make the following submissions on the basis of the materials already in the bundle. He pointed to the intention to build a car park block up to a height of +32mPD, meaning that there would be car park floors above ground. Therefore, obviously if the car park block is of that height, it is higher than the 27.5m or 28m of the adjacent cluster of trees, so that the car park block can serve as a support or retaining wall for the hillock on which the relevant cluster of trees stands.

262.  I accept that Mr Pao was doing his best to deal with this point on instructions, and the above explanation may or may not be correct. However, it remains the case that the three-dimensional issues were bound to arise for a project where significant changes were envisaged from existing levels to the proposed site formation levels. These particular matters ought to have been, but were not addressed in the EIA Report.

263.  Mr Pao also made reference to Appendix C to Circular 4/2020 (which I have set out above), and submitted – echoing Mr Lau’s evidence – that the necessary detail of matters relating to site formation and tree preservation would be dealt with at the design stage of the project, not at the feasibility or the EIA stage of the project.

264.  However, when it came to the Additional Information requested, there obviously remained concerns as to trees and tree compensation. One of the requests related to the tree compensation plan, where the ACE wanted details of planting numbers with a compensation ratio of at least 1:1.5. This was obviously because the ACE did not think this was a matter which could be left in abeyance until the design stage. I agree. The Additional Information when it came was summarised as follows:

It is appreciated that ACE’s request arose from a concern that not all compensatory trees will survive after planting. ACE members are assured that the responsible departments will seek to keep the trees in satisfactory condition, and will replace trees not survived, hence fully and continuously complying with the established compensatory requirement of 1:1.

To address the particular concern on survival rate of initial trees being compensated, a tree compensation plan is prepared to require a longer than normal establishment period (i.e. 3 years) and proper following up with the tree management plan.

Over the above established tree compensation requirement of 1:1, trees will be planted following the established practice within the housing site at Sub-Area 1.

Water demand of compensatory trees have been calculated under hydrological impact analysis.

265.  Obviously, the last sentence recognized the relevant potential connection between water demand, tree compensation and hydrological impact. As to the other matters, they do not seem really to answer the 1:1 plus DBH question, but address a slightly re-formulated question. Indeed, at its meeting on 3 May 2023, the ACE’s concluding comment as regards tree compensation plan was summarised in its letter dated 10 May 2023 to the CEDD as being that the ACE considered that a detailed Tree Management Plan should be put in place to set out the arrangement for tree compensation and maintenance.

266.  Ultimately, on the tree counting and survey, and on compensation planting, I accept that there was a failure to comply with the SB §3.4.1 (requiring use of the best and latest information), and the SB Appendix J §2 (requiring description, appraisal, analysis and evaluating the existing and planned landscape resources and landscape character). There seems to me also to have been a breach of TM §4.4.2(k) (requiring an assessment of the feasibility, practicality, programming and effectiveness of the recommended mitigation measures), and §4.5.1(c) (addressing relevant environmental issues raised by the public and the ACE).

H.5  Hydrology and Chinese Swamp Cyprus

267.  These two matters have been addressed together. I can deal with them at some length, because they are to an extent emblematic of the disputes in this case.

268.  A collection of CSC are located at the Swampy Woodland near Hole 7 of the Old Course. This is in Sub-Area 4 of the Site. At least 29 of the CSC have been independently estimated to be over 100 years old, and the oldest is considered to be 214 years old. The variation in size and estimated age indicate that these CSC were not planted.

269.  The CSC is a tree species that requires a specialised habitat and which is highly sensitive to hydrological change. The CSC is also listed as ‘critically endangered’ by the International Union for the Conservation of Nature (“IUCN”). Strikingly, the CSC population on the Old Course comprises 15% of the entire global population of the species, and is possibly the only population that is considered to be reproducing viable seedlings in the wild. It is obviously a population deserving the highest protection status.

270.  In summary, the CSC are both highly precious, in ecological terms, and extremely hydrologically sensitive. I think it is fair to note that the conservation importance of the CSC has all along been common ground, and was itself highlighted in the EIA Report. Indeed, the conservation importance of the CSC was probably the main driver for limiting the development to Sub-Area 1 (though that, of course, does not necessarily mean that there would be no impact from the Project on the CSC in Sub-Area 4). Mr Pao sought to emphasise in his submissions what he described as the “significant buffer” of the distance between Sub-Areas 1 and 4, being about 1.1km.

271.  I have referred above to Appendix H to the SB, which sets out the requirements for Ecological Impact Assessment (Terrestrial and Aquatic). There was an express requirement (amongst other things) for the assessment to identify and quantify as far as possible the potential ecological impacts associated with the Project, both directly by loss of habitat, and indirectly by potential impact such as human disturbance and/or change of water quality and/or hydrodynamic regime to natural environment.

272.  The core dispute between the Club and the CEDD is whether the EIA Report met the requirements of Appendix H.

273.  On this topic, it can be noted that one of the “major tasks” required of the assessment was:

(vii) using suitable methodologies (including but not limited to those adopted in other relevant EIA studies in Hong Kong), and considering also any works activities from other projects reasonably likely to occur at the time, identify and quantify as far as possible any direct (e.g. loss of habitats), indirect (e.g. light pollution, changes in water qualities, hydrodynamics properties, hydrology, noise and other disturbance generated by the construction and operational activities, etc.), on-site, off-site, primary, secondary and cumulative ecological impacts on the wildlife groups and habitats identified such as direct loss of habitat, potential diversion or modification of stream courses, disturbance to wildlife, destruction of habitats, reduction of species abundance/diversity, loss of roosting, feeding and breeding grounds, reduction of ecological carrying capacity and habitat fragmentation and any other possible disturbance caused by the Project and the activities of the residents and visitors; and in particular the following:

(a) ecological impacts of loss of habitats of conservation importance, in particular woodland, marshes, semi-natural/natural streams and ponds due to the construction of the Project;

(c) indirect ecological impacts due to potential hydrological disruption and/or deterioration of the water quality in the marshes, semi-natural/natural streams, ponds or other wetland habitats in the assessment area due to drainage diversification works, surface run-off, drainage and effluent discharge, waste dumping/spillage, etc. during the construction and operation phases;

(d) indirect ecological impacts on Long Valley due to potential hydrological disruption, e.g. reduction in groundwater infiltration; …

274.  Hence, the SB required an ecological impact assessment which identified and quantified so far as possible both direct and indirect impacts, including (materially for present purposes) hydrological impact and potential hydrological disruption. On that basis, Mr Yu submitted that once the CSC had been identified as hydrologically sensitive, it was obviously necessary to understand the hydrology regarding the habitat on which the CSC stand is found, and whether the Project as a whole – not just the proposed building upon Sub-Area 1, but also the proposed substantial compensatory planting on Sub-Areas 2 and 3 – might impact the hydrology of Sub-Area 4.

275.  The EIA Report then produced recognises at §9.7.2.23 that hydrological disruption as a result of changes to surface water flow or impacts on the underground water table could impact surrounding water bodies and other habitats. Most habitats which are considered to be potentially sensitive to hydrological disruption are primarily wetlands, including the wetland habitats within the Project Site such as pond, marsh and swampy woodland. It also recognised that, in practice, hydrological disruption to wetland habitats is likely to be of much greater significance ecologically.

276.  But §§9.7.2.24 and 9.7.2.25 stated (bold in original):

Excavation works are required for various construction activities during construction. Different construction methods will be employed to minimise the intrusion of groundwater into works areas. According to the chapter of what equality impact assessment, in case seepage of groundwater occurs, groundwater would be pumped out from works area and discharged to the storm drain system via silt trap. As there would be no deep tunnel nor deep foundation due to the Project, the change of groundwater table is therefore not anticipated. The potential impacts due to change of groundwater table to ecology are considered insignificant.

For Sub-Areas 2 to 4, these areas will only provide recreational facilities and ancillary facilities, effects on groundwater table / hydrology / flow regime that affect ecology are not expected. Adverse impacts to nearby receivers due to change of infiltration are also not expected. Besides, large-scale of planting works might potentially affect the hydrology for the sensitive wetland habitats i.e. marsh and swampy woodland in Sub-Area 4, it is recommended the location for woodland compensation and compensatory planting should avoid Sub-Area 4 to preserve the hydrology that supports the wetland habitats. Hydrological disruption is not expected if woodland compensation planting works are conducted in Sub-Areas 2 and 3, which contain large area of open area (turfgrass) with gentle topography and sufficient sunlight.

277.  Mr Yu submitted that the thinking behind those paragraphs was simply an assertion that the impacts were not expected because there would be no building in Sub-Area 4 and the compensatory planting would be restricted to Sub-areas 2 and 3. But, he said, hydrology is obviously not just concerned with surface water, but also with underground water.

278.  What was said earlier in the EIA Report is what apparently led to the conclusion expressed in §9.12.1.2, which states:

Based on the selected Development Option, the associated ecological impacts have been considered and assessed. The proposed development will avoid areas of higher ecological values i.e. Sub-Areas 2 to 4 (medium or medium to high ecological values), only Sub-Area 1 with relatively lower ecological value (low to medium) will be developed. Direct impacts to most of the important habitats (e.g. swampy woodland with very rare Glyptostrobus pensilis) and species of conservation importance are not expected. Besides, the hydrological disruption due to the proposed development is not expected, potential impacts to the hydrology of the swampy woodland thus not likely. With the implementation of the proposed management with the aim is to protect the important habitats and species of conservation importance in Sub-Areas 2 to 4 , the ecological conditions will be conserved and probably be enhanced.

279.  There seems to me to be some force in Mr Yu’s submission that the offered conclusion is really simply an assertion, without analysis or assessment.

280.  Mr Paul Leader, an ecologist giving expert evidence for the Club, referred in his evidence to §§9.8.3.3 and 9.8.3.4 of the EIA Report, which recognised that large-scale compensatory planting works might affect the hydrology for the sensitive wetland habitats in Sub-Area 4, so that it is recommended the location for woodland compensation should avoid that period to preserve the hydrology that supports the wetland habitats. It also suggested a woodland compensation plan and tree compensation plan with the consideration of impacts to wetland hydrology in Sub-Area 4 will be submitted. Hence, Mr Leader described as “cavalier” that the authors of the EIA Report recognised that the compensatory tree planting does in fact pose a risk to hydrology of the swampy woodland, but then proceeded on the untested and unexamined assumption that avoiding planting within Sub-Area 4 should avoid affecting the hydrology of that area.

281.  Mr Pao made reference to a slightly earlier paragraph, §9.11.1.3, which stated that a monitoring programme should be included in the management plan to evaluate the effectiveness of the management strategies; an ecological baseline information including habitat conditions including the swampy woodland and the conditions of the floral and faunal species of conservation importance shall be updated prior to the operation of Sub-Areas 2 to 4; and during that operation, regular monitoring of the ecological conditions as well as the conditions of the species of conservation importance shall also be monitored.

282.  But, it seems to me that a statement that matters would continue to be monitored to evaluate the effectiveness of management strategies does not compensate for or provide any missing analysis and assessment, as would actually be necessary in order to devise the appropriate strategy.

283.  In any event, these were also matters of obvious concern to the ACE, which debated at some length issues relating to the sensitivity of the CSC and the impact of hydrology.

284.  The minutes of the EIA subcommittee on 18 July 2022 record the Chairperson and members seeking supporting data on the hydrology impact of the development and feasibility of retaining some 200 trees in the area, expressing concern about the possible adverse hydrology impact which might threaten the survival of retained trees, the requirement that the soil and hydrology impact of the housing development in Sub-Area 1 should be carefully assessed. In the internal discussions, the Chairperson suggested that the CEDD should provide concrete data on the hydrology of the site including the water sources, water volume, species in the habitats as well as the anticipated hydrological impact on Sub-Areas 2 to 4 in both dry and wet seasons to illustrate the feasibility of retaining the large number of trees in the area.

285.  In a document relating to the ACE’s seeking additional information on issues of concern in July 2022, a specific request was made for the provision of justifications for the methodologies, coverage and frequency of the ecological surveys conducted, including flora and fauna. As regards hydrology and hydrological impact, elaboration was sought of the hydrological impact on the CSC and woodland habitats, with consideration of tree plantation mitigation measures, and available water sources in both wet and dry seasons in sensitive areas.

286.  The comments in response included that:

The [CSC] are located within the swampy woodland in Sub-Area 4. The approximate level of the swampy woodland is +22mPD. Based on the existing topography, the existing hillock with maximum level of +90mPD approximately in the south-east area of Sub-Area 4 and the FGC to the west of Fan Kam Road with approximate level of +34mPD in the north-west side of Sub-Area 4 are much higher than the swampy woodland. The hillock and the FGC in the west of Fan Kam Road are the main water catchments of the swampy woodland. Run-off from these two catchments is discharged into the swampy woodland. The catchment area plan is shown in Attachment 1. As the 2 catchment areas are not within the PDA and Sub-Area 4 is proposed to be preserved it is expected that the Swampy Woodland would not be affected.

287.  To facilitate the ACE’s further deliberation, the Project Proponent was requested to provide additional information in writing on certain issues with reference to the comments provided by Members at the meeting on 8 August 2022. The additional information was sought by reference to ecological impact, which led to comments relating to a  habitat management plan (with targets, design and management methods, daily management, and monitoring). The habitat monitoring was said to include but was not limited to hydrological conditions and in particular at swampy woodland; coverage, number and health of CSC and seedlings if any; vegetation diversity, conditions of the habitats, and fauna usage of the habitats.

288.  There was also a request to provide hydrology impact assessment and mitigation measures to demonstrate the feasibility of the proposed layout of the building blocks for the 12,000 residential units. Mr Pao has emphasised one aspect of the answer , which stated:

Potential Impact of Housing Development to Hydrology:

Hydrological impact to the trees retained within the housing development during the construction phase has been considered. The housing development for this project does not consist of basement. Deep excavation, which would require drawing down of water level, would not be required. Foundation of the housing development in Hong Kong is usually designed based on large-diameter board piles. Drawing down of water table will not be required for construction of board pile, as tremie concrete, i.e. casting of concrete underwater, is used for construction of bored pile.

289.  The DEP clearly agreed that further information in this regard was required for him to decide whether to approve the EIA Report. One of the aspects of the additional information pursued related specifically to seeking:

a detailed analysis of the hydrological impact to show the flow of water, including available information on the profile of soil and bedrock conditions of the project site.

290.  In the Additional Information, which was supposed to address the request initiated by the ACE for that “detailed analysis”, a HydroIA was performed for the first time, following the engagement of Professor Ting Fong May Chui. The analysis consisted of the following sections:

(1)  analyse if the proposed housing development will affect the surface water sources of the swampy woodland in Sub-Area 4;

(2)  analyse if the proposed housing development will affect the groundwater sources of the swampy woodland in Sub-Area 4;

(3)  quantify the potential loss of surface water infiltrating into ground due to the proposed housing development in Sub-Area 1;

(4)  quantify the potential additional water demand for the compensatory tree planting in Sub-Area 3.

291.  As these points identify, the focus was mainly on surface water flow, and the sources of groundwater. That was confirmed by Professor Chui in her affirmation filed for these proceedings, where she acknowledged that the scope of the HydroIA she was asked to perform was limited. She stated:

The focus of my assessment was to estimate the likely hydrological impact of development insofar as surface water was concerned. I was not asked to assess or quantify the likely impact of the proposed development on the underground water table (as distinct from surface water) in the Sub-Areas.

292.  Mr Yu submitted that that failed to answer the actual question posed in the request for additional information, which was not limited to surface water. I agree that the limited approach did not obviously provide the required detailed analysis of the hydrological impact to show the flow of water, including available information on the profile of soil and bedrock conditions.

293.  I also note that the HydroIA proceeds on the stated assumption of an isotropic and homogeneous aquifer. But, elsewhere in the assessment, it is identified that the soil texture and saturated hydraulic conductivity varied considerably at different locations, indicating significant variations in the physical properties of the soil – in other words, it was not homogeneous. That suggests, and the Club’s hydrological and civil engineering consultant expert Ms Gillian Castka says, it is not possible actually to predict the direction of groundwater flow to be in accordance with the surface flow.

294.  One part of the materials provided by the Club in response to the Additional Information was the report of Professor Jiu Jimmy Jiao, on the potential impact of the Project on groundwater flow system. The professor says that his project covered (including other matters): building a three-dimensional hydrogeological model to simulate the groundwater flow before the housing development in Sub-Area 1 and calibrate the model by collected water level data; predict the water level change in East FGC after the construction of buildings in Sub-Area 1; and predict the future water level change in East FGC after the construction of buildings in Sub-Area 1 and the compensatory tree planting in East FGC.

295.  The Conclusion and Comments sections can be set out at some length and state:

4 CONCLUSIONS

This study assesses the ecological impact of proposed public housing and infrastructure development at Fanling Golf Course on the groundwater flow system in the surrounding areas by developing a 3D regional groundwater flow model. Among the areas, the ecological value of sub-areas 2-4 and the Long Velley Nature Reserve are evaluated to be moderate to high. Notably, sub-area 4 is home to 38 endangered Chinese swamp cypresses that require a specialized habitat and are sensitive to changes in the water table. To establish the groundwater flow model, three types of data are collected, which include borehole logging, water level, and hydraulic conductivity data from CEDD library, K-sat experiment and falling-head test at FGC. The hydraulic conductivity and rainfall infiltration rate are the two parameters to be calibrated by the models with uniform rainfall recharge and non-uniform rainfall recharge. The calibrated hydraulic conductivity values for the first and second layers of the model are at the order of 10^-5 m/s and 10^-6 m/s, respectively. The calibrated rainfall infiltration is 1% in the model with uniform rainfall recharge, and 5% at the evaluation above 50 mPD in the model with non-uniform rainfall recharge. The low rainfall infiltration rate is consistent with high risk of flooding problem in the model area.

The groundwater flow model is used to simulate the water level changes in East FGC before and after the construction of buildings in sub-area 1 and the compensatory tree planting in sub-areas 2-3. The model predictions indicate that the construction of buildings in sub-area 1 would result in a slightly increase in water levels in the upstream of sub-area 1. However, compensatory tree planting in sub-areas 2 and 3 can lead to about 0.7 m decrease of water level in sub-areas 2-4, which may influence the hydrological environment for the living of Chinese swamp cypress.

5 COMMENTS ON CHAPTER 7 OF THE EIA REPORT

We read Chapter 7 of the EIA report and have the following comments.

This chapter includes five conclusions. The first two conclusions essentially state that the proposed housing development in Sub-Area 1 and the compensatory tree planting in Sub-Area 3 would not impact the sources of surface water and groundwater for the swampy woodland in Sub-Area 4. These statements are correct; however, they can be inferred solely by examining the topographic map. As Sub-Area 1 is downstream of Sub-Area 4, it is evident that any development in Sub-Area 1 will not affect the sources of surface water and groundwater in Sub-Area 4.

Although the “sources” of surface water and groundwater in Sub-Area 4 will not be affected by the housing development in Sub-Area 1 and the compensatory tree planting, this does not mean that these activities will not impact the water regimes in Sub-Area 1. They will modify the water regimes by changing the conditions of groundwater discharge. The housing development, with deep foundations consisting of almost impermeable construction materials down to the bedrock, will hamper groundwater discharge, potentially elevating the water table upstream. The compensatory tree planting will have opposite effect, that is, to increase groundwater discharge, potentially leading to a decrease in the water table in Sub-Area 1. Unfortunately, these issues are not touched upon in the report.

The last three conclusions essentially state that if there is any water loss due to housing development or tree planting, water can be added to the affected areas since there is sufficient reclaimed water available. These conclusions can be made without conducting any research.

However, putting this plan into action is no easy feat, as the saying goes, “the devil is in the details”. The Chinese Swamp Cypress have adapted well to the current water environment, specifically the water table depth and its variation. Even assuming that all the estimate figures (406 m3/day, 37 m/3day, etc) are correct, the challenge remains of determining when, where and how much water to add to ensure the preservation or restoration of the original water environment, particularly the water table in the area with the Swamp Cypress. Another aspect of concern is guaranteeing sufficient irrigation for the planted area, given the varying rates of evapotranspiration and water demand of the trees over time.

The depth of infiltrated rainwater for different types of soils was modeled using the Green-Ampt infiltration method (Section 7.5.4). This method is simplified vertical one dimensional infiltration model focusing on the infiltration in the shallow unsaturated zone (https://open.library.okstate.edu/rainorshine/chapter/6-2-green-ampt-infiltration-model/). The Storm Water Management Model (SWMM) is a dynamic rainfall-runoff-subsurface runoff simulation model (https:/en.wikipedia.org/wiki/Storm_Water__Management_Model) and is not about groundwater flow in saturated zones. This model cannot provide any information on the water table change due to housing development and water loss from tree planting. The root system of Swamp Cypress is below water table, so the water table information is more important than soil moisture above the water table.

Hydrogeology and groundwater regime in these areas, especially in the Sub-Area 1 are very important. Because SWMM is not about groundwater flow and hydrogeology. Their discussion is not based on the geology and hydrogeology of the site.

It seems that the infiltration rate is too high, averaging about 1.5 m/yr. With a porosity of about 0.3, this implies that the water table must rise by 5 m, or there must be an unsaturated zone of 5 m to accommodate the infiltrated water. However, many areas have a high water table almost near the land surface, making it difficult to find enough soil space to handle such a significant volume of water per year.

Furthermore, the infiltration test was conducted in November, which is the dry season. Therefore, it is possible that the infiltration rate may have been overestimated. During the wet season, when the soil is wetter and the water table is higher, the infiltration rate may be lower. We need to know the net rainfall recharge after considering evatransporation, but it is unclear how the net infiltration could be if evatransporation is considered from their report.

296.  Mr Yu took me to this report, not on the basis that he was asking the Court to deal with the merits of the debate, but in particular to identify that there was a professional viewpoint put forward by the Club, but ignored by the DEP. Professor Jiao’s report has been criticised by Professor Chui in the evidence, but Mr Yu’s submission was that the material would, and should, have contributed to the decision-making because the Director would have seen the stated prima facie deficiency in the study undertaken by the Project Proponent in the HydroIA.

297.  Ms Castka also identifies that the relationship between the layout and the impact on the groundwater regime is not a simple linear one, and points to the fact that there is a failure in the HydroIA to have recognised that the rock head in the area dips from west to east, not simply following the perhaps surface topology from south to north. Hence, the CEDD’s conclusion or assertion that the housing development of Sub-Area 1 will not affect the hydrology of Sub-Area 4, because the HydroIA are shown at the groundwater of Sub-Area 1 flows from the north side, away from Sub-Areas 2 to 4, is factually incorrect and may be misleading.

298.  Ms Castka says that the HydroIA has taken an over-simplistic approach to assessing the hydrodynamic groundwater system, not least in the context that (as explained by the General Manager of the Club) there is no direct water supply to the Old Course. Instead, the FGC is watered with recycled treated water from Shek Wu Hui Sewage Treatment Works, which is piped directly to a storage tank located near the Clubhouse for secondary treatment by the Club. The Club’s water supply system was installed and is owned by the Club, and the entire underground irrigation system on Holes 1-8 of the Old Course is directly connected to that supply system, and is the only practical source for irrigation in that location.

299.  Ms Castka also suggests that there has been a breach of §3.4.5.2 of the SB, which deals with the assessment area for water quality impact assessment – though it seems to me that paragraph and its internal reference Annexes 6 and 14 of the TM, whilst referring to hydrology, in fact focus on water quality and water pollution.

300.  Ms Castka states that the Club’s submissions in relation to the EIA Report have identified a number of features of the Project that have the propensity to alter the groundwater table to a significant extent, thus threatening the hydrology of the swampy woodland in Sub-Area 4. These include, among other things: (a) the cessation of watering and water management activities previously carried out by the Club on a stable basis for many decades; (b) excavation and earthmoving for building formation and foundations; (c) laying building foundations and piling; (d) felling a large number of trees and planting other trees in new locations; and (e) adopting new watering arrangements for compensatory tree planting. Even after reading the evidence filed by the DEP and CEDD in these proceedings, Ms Castka remains of the view that the Project gives rise to a serious risk of affecting the hydrological conditions of the CSC, and hence to the health and well-being of the CSC. Her key point seems to me to be that the hydrogeology in the swampy woodland area where the CSC are found, and its soil profile, are something of an anomaly, which could provide the explanation for the further anomaly that there are CSC trees thriving and reproducing in that location. She says the unusual hydrogeological features of that location remain unstudied, and so the interaction between the clay layer, the hydrology of the swampy woodland, and the vitality of the CSC stand is not known despite ACE/DEP’s request for an assessment of hydrological impact including available information on the profile of soil and bedrock conditions.

301.  Ms Castka also points out that, as a result, certain assumptions made by Professor Chui, on which her comments about groundwater flow are based, are invalid – itself also invalidating the untested assumption by the CEDD that the compensatory tree planting planned for Sub-Areas 2 and 3, and attendant watering activities, will have no impact on the hydrology of the swampy woodland in Sub-Area 4. As Ms Castka puts it, the dismissive conclusion in the HydroIA that the Project will have no significant impact on the groundwater equilibrium is unscientific and cannot be sustained on the limited studies conducted and evidence presented in the HydroIA.

302.  In addition to the distance between Sub-Areas 1 and 4, Mr Pao emphasised in his submissions the two water catchment areas for the swampy woodland, from which run-off is discharged into the swampy woodland. As is set out in the Additional Information, because those catchment areas are not within the PDA and Sub-Area 4 is proposed to be preserved, it is expected that the swampy Woodland would not be affected. Further, as set out in §7.3.9 of the Additional Information (HydroIA), the compensatory tree planting in Sub-Area 3 will not influence the surface water flow conditions and will not reduce the inflow volume of the swampy woodland in Sub-Area 4.

303.  Mr Pao also drew attention to the evidence of Professor Chui, where she summarised the conclusions reached in the HydroIA as being:

35.1 The proposed housing development in Sub-Area 1 and the compensatory tree planting in Sub-Area 3 would not affect the surface water sources of the swampy woodland in Sub-Area 4.

35.2 The proposed housing development area in Sub-Area 1 and the compensatory tree planting areas in Sub-Area 3 are not the sources of groundwater for the swampy woodland in Sub-Area 4.

35.3   Assuming that the area of the proposed housing development in Sub-Area 1 would be entirely hard paved, the potential loss of surface water (resulting from rainfall) infiltrating into ground due to the proposed housing development is estimated to be less than 406 m³/day in average, which I am given to understand by WSP is only 13.5% of the 3,000 m³/day in average of reclaimed water provided by Shek Wu Hui Sewage Treatment Works (SWHSTW) currently being used for irrigation in the FGC.

35.4 The potential additional water demand for the compensatory tree planting in Sub-Area 3 is estimated to be less than 37 m³/day in average, which I am again given to understand by WSP is only 1% of the 3,000 m³/day in average of reclaimed water provided by SWHSTW currently being used for irrigation in the FGC.

35.5 The total volume of water required by Sub-Areas 1 and 3 for compensating the loss of surface water infiltration and supporting compensatory tree planting is estimated to be 443 m³/day. According to WFP, the volume of reclaimed water produced by SWHSTW is over 73,000 m³/day, which is 165 times of the potential loss of groundwater recharge due to the housing development and compensated trees (namely 443 m³/day on the most conservative estimate). Hence, SWHSTW’s capacity is more than sufficient to supplement the potential groundwater loss due to the housing development in Sub-Area 1 and provide irrigation water for the compensated trees in Sub-Area 3, if necessary.

304.  Emphasising §35.4, Mr Pao also pointed to §7.6.7 of the HydroIA, which concluded that the extra planting area is expected to have less plant water requirement compared to that required by the existing grasses.

305.  Mr Pao further referred to one of the other earlier answers provided in response to the ACE’s request for information on 18 July 2022, which referred to a Habitat Management Plan for Sub-Areas 2 to 4. So far as may be material for present purposes, the answer included the following (extracts only):

Adverse ecological impact to Sub-Areas 2 to 4 will be avoided by preserving the existing habitats and ensuring that the existing habitats will not be affected by the development. A Habitat Management Plan will be formulated setting the targets, the design and management methods, daily management measures, and monitoring measures to ensure that the existing habitats will be well maintained after the PDA is reverted to the Government. Outlines of the Habitat Management Plan are as follows:

Targets:

• Target includes protection of existing habitats (e.g., swampy woodland, woodland), enhancement of existing habitats and/or the overall ecological functions of the managed area, and promotion of nature conservation education.

• Approach to achieve the targets, such as maintenance of hydrological regime, planting to enhance ecological corridors, expansion of the swampy woodland extent (for example to investigate the feasibility on removal of existing obstacles near its boundary such as hard-paved path, enlarging the waterlogged soil area,etc.), planning of core zone and education zone

• Proposes sizes, locations and species of the compensation woodland planting, as well as the transplanted floral species of conservation importance, and if necessary, buffer planting, without affecting hydrological regime and existing habitats.

Design and Management Methods:

• Design/approach for maintaining hydrological regime and water sources for swampy woodland and marsh (such as diversion of rain runoff, contingency water sources).

Monitoring:

• Habitat monitoring, including but not limited to, hydrological conditions in particular at swampy woodland; coverage, number and health of Chinese Swampy Cyprus, and seedlings if any; vegetation diversity, conditions of the habitats, and fauna usage of the habitats.

306.  Having identified the above, Mr Pao submitted that the Court need not debate or evaluate who is or might be better at managing the Old Course. I accept that point. Indeed, if they want, people can form their own view as to whether better management would be provided by the Club (which has been the steward or guardian of the Old Course for over a century) or by the LCSD. However, with respect, and acknowledging it is an outline, the language of the above answer, though perhaps infused with general statements of management intent, is almost entirely devoid of any actual substance. I am not alone in forming that view, because (as I have already traversed above) the ACE continued to press for more information, and the ACE and the DEP eventually required the “detailed analysis” relating to matters of hydrology.

307.  Mr Pao referred to the consequent HydroIA provided as part of the Additional Information, and submitted that Professor Chui did in fact perform the groundwater flow analysis she was asked to perform, which was detailed and modelled. Further, §7.4.1 identified analysis of the groundwater flow direction of the PDA to study the potential impact of the Project on the groundwater sources of the PDA, particularly around Sub-Area 4 – using bore holes to permit measurements by piezometers and standpipes. Using the information collected, inferences were made as to the conditions of the aquifer. Mr Pao submitted that the HydroIA therefore did involve a quantitative analysis, ultimately identifying that the ground water flow trend would be away from Sub-Area 4 to Sub-Area 1.

308.  But I have already mentioned that the underlying assumption of isotropic and homogeneous unconfined aquifer may not be well-placed.

309.  By reference to the opinion from Professor Jiao, Mr Pao submitted that having considered his report, and given the detailed studies that were conducted at the Additional Information stage, there is still no evidence to run contrary to the EIA Report’s “prediction and evaluation … that there would be no adverse impact”.

310.  He further submitted that, whilst the SB at Appendix H had a general requirement to use suitable methodologies to identify and quantify as far as possible, there is no specific or explicit requirement for the quantitative assessment suggested by the Club to be undertaken with respect to groundwater flow. As he put it, the words “quantify as far as possible” do not identify a requirement to adopt an absolute standard, and necessarily embrace the existence of limitations to the process of quantification.

311.  This seems to me to be where the applicability of the precautionary principle comes into play in this context, and I think the following points can be made. In the absence of an appropriate qualitative and then quantitative analysis about the hydrology, it may not even be possible to assess the level of risk to the CSC. But, in any event, there is little uncertainty in terms of the gravity or seriousness of that risk were it to eventuate. That risk is potentially catastrophic to a critically endangered species, where the CSC stand in Sub-Area 4 comprises about 15% of the world population, and possibly the only reproducing population in the wild. Put in ordinary language, those circumstances clearly mandate a necessarily high degree of caution to be taken.

312.  The TM provided scope for an EIA to be undertaken in a practical manner to identify and assess site-specific issues, and the SB identified the requirement for a detailed hydrological assessment. I also accept that, once the endangered nature and sensitivity of the CSC to hydrological change was identified, a more detailed quantitative study was required to assess quantifiable hydrological changes. Whether or not this was required in accordance with the precautionary principle, and I think it was, the detailed assessment was in any event required as a result of ACE/DEP’s request for one.

313.  I am of the view that there was a failure to comply with this requirement. I find that there was a breach of the SB Appendix H §2(vii)(a) and (c) and the TM §§4.4.1, 4.4.2(d), 4.5.1(b), (c) and (d) and 4.4.3(a)(x), relating to the precautionary principle.

314.  I acknowledge that an assessment was provided in the Additional Information. But, the debate engaged in above (as a result of the reams of evidence filed in these proceedings) only emphasises the original breach and the failure to have provided a proper assessment in the EIA Report itself.

315.  This point is also relevant to Ground 1. It is further relevant to Ground 4 (see below), and Condition (a) to the Decision, which relates to changing the layout to minimise the number of trees to be felled, where no consideration of the impacts on hydrogeology are mentioned. Whilst the CEDD suggests that the reduction in the proposed compensatory woodland would likely result in a net decrease in the water demand if trees are planted in lieu of the present turf grass, Ms Castka says that is another gross and unfounded assumption about the relationship between the surface water and groundwater regime. Where the DEP is suggesting that the revised layout would alter building heights, and hence loads to the ground, that would presumably impact the foundation locations and dimensions down to the varying rock head levels, and the volume of voids replaced by concrete piled foundations will also vary depending on the revised site layout plan.

316.  There is force in the point that, essentially, changes in hydrodynamic properties and hydrology as required by the SB cannot be accurately assessed until the final layout including foundation design and compensatory planting are confirmed. I also accept that the implementation of a “spongy city” concept is not the kind of detail that can be left to be sorted out at a later date with sufficient confidence that it would not affect the hydrology.

H.6  Cultural Heritage

317.  This is a point which may have relevance to all projects falling under the EIAO. But it falls to be decided on the terms of the documents in this case.

318.  The TM at §1.3.1 includes as an interpretation provision that where the EIAO defines a term, that term applies. That provision is at the core of the argument advanced for the CEDD and the DEP. It can be noted that the provision does not say that where the EIAO defines a term, that term applies “unless the context otherwise requires”. Hence, the DEP/CEDD position is that the meaning of a term defined in the EIAO is its unequivocal meaning for the purposes of the TM. There is obvious force in that as a starting submission.

319.  Relevantly for this topic, the definitions within Schedule 1 of the EIAO include the following:

environmental impact (環境影響), for a designated project, means—

(a) an on-site or off-site change that the project may cause in the environment;

(b) an effect of the change on—

(i) the well-being of people, flora, fauna and ecosystems;

(ii) physical and cultural heritage;

(iii) a structure, site or other thing that is of historical or archaeological significance;

(c) an on-site or off-site effect on any of the things referred to in paragraph (b) from activities carried on for the project;

(d) a change to the project that the environment may cause,

whether the change or effect occurs within or outside the site of the project;

site of cultural heritage (文化遺產地點) means an antiquity or monument, whether being a place, building, site or structure or a relic, as defined in the Antiquities and Monuments Ordinance (Cap. 53) and any place, building, site, or structure or a relic identified by the Antiquities and Monuments Office to be of archaeological, historical or palaeontological significance.

320.  On the face of the definition of “environmental impact”, the impact means (amongst other things) at least the effect of the change on physical and cultural heritage, as well as a structure, site or other thing that is of historical significance. There is no apparent limiting or narrowing of those matters to things which have already been designated or declared a monument under the Antiquities and Monuments Ordinance Cap 53 (“A&MO”). But the definition of “site of cultural heritage” is limited to such a declared monument. It is those differences which frame the contest between the parties in this case.

321.  The Government has a Heritage Conservation Policy, which can be found in Legislative Council Brief DEVB(CR)(W) 1-55/68/01. The following policy statement was identified as one to be adopted to guide heritage conservation work:

To protect, conserve and revitalise as appropriate historical and heritage sites and buildings through relevant and sustainable approaches for the benefit and enjoyment of present and future generations. In implementing this policy, due regard should be given to development needs in the public interest, respect for private property rights, budgetary considerations, cross-sector collaboration and active engagement of stakeholders and the general public.

322.  The reference to “historical and heritage sites and buildings” does not appear to limit the policy to those buildings which have already been declared a monument, and it would be surprising if that limit were intended.

323.  In the same policy document, there is a section headed ‘Making use of the EIAO’, which states as follows:

11. In the EIAO, there is a reference to “site(s) of cultural heritage”. Under Schedule 1 of the Ordinance, a “site of cultural heritage” is defined as “an antiquity or monument, whether being a place, building, site or structure or a relic, as defined in the A&M Ordinance and any place, building, site or structure or a relic identified by the Antiquities and Monuments Office (AMO) to be of archaeological, historical or palaeontological significance”. Once a building/site is identified as a “site of cultural heritage”, construction works partly or wholly within it can only proceed after the statutory procedures under the EIAO have been complied with and an environmental permit has been issued. The criteria laid down in the Technical Memorandum issued under the EIAO for evaluating impacts which include a general presumption in favour of the protection and preservation of “site of cultural heritage” have to be complied with. Moreover, certain projects in the vicinity of “sites of cultural heritage”, whether public or private would be subject to environmental permits under the EIAO before construction work may start.

12. So far, only declared monuments under the A&M Ordinance are classified as “sites of cultural heritage” subject to environmental permits under the EIAO. We have considered the feasibility and implications for drawing up a list of graded buildings which, though not being justified to be declared as monuments, are nonetheless justified to be classified as “sites of cultural heritage” and hence can be covered under the EIAO. However, after detailed deliberations, we come to the view that the identification process would be extremely complex involving debates on the sites identified, the identification criteria, the gazetting of the identified sites, and the handling of appeals or objections from private owners if affected. The site identification may also render some private owners feeling aggrieved with the decision on having their properties included in the list or by those who consider a specific heritage site should be included in the list but has not been so included. Hence, we do not recommend to pursue this for the time being.

324.  These paragraphs do seem to say that at least the EIAO definition of “sites of cultural heritage” is really intended to be limited to declared monuments.

325.  The AMO’s Guidelines for Cultural Heritage Impact Assessment (as at 4 May 2020) include the following (bold and underline in original):

Introduction

The purpose of the guidelines is to assist the understanding of the requirements in assessing impact(s) on Site of Cultural Heritage, i.e. an antiquity or monument, whether being a place, building, site or structure or a relic, as defined in the Antiquities and Monuments Ordinance (Cap. 53) and any place, building, site, or structure or relic identified by the Antiquities and Monuments Office (“AMO”) to be of archaeological, historical or palaeontological significances. The guidelines which will be revised by AMO from time to time, where appropriate, and when required should be followed in the interest of professional practice.

A comprehensive Cultural Heritage Impact Assessment (CHIA) includes baseline study, methodology, impact assessment study associated with the appropriate mitigation measures proposed and to be implemented by project proponent in collaboration with the works agent and/or consultant.

(1) Baseline Study

1.1 A baseline study shall be conducted:

a. To compile a comprehensive inventory of “Heritage Sites” within the proposed project area, which shall include:

(i) all recorded sites of archaeological interest (both terrestrial and marine);

(ii) all declared monument;

(iii) all proposed monuments;

(iv) all buildings/structures/sites graded or proposed to be graded by the Antiquities Advisory Board (AAB);

(v) Government historic sites identified by AMO;

For the purpose of this guideline, the following item shall also include in the baseline study:

(vi) buildings/structures/sites of high archaeological / historical significance and interest which are not included in items (i) to (v) above; and

(vii) cultural landscapes include places associated with historic event, activity, or person or exhibiting other cultural or aesthetic values, such as sacred religious sites, battlefields, a setting for buildings or structures of architectural or archaeological importance, historic field patterns, clan graves, old tracks, fung shui woodlands and ponds, and etc.

…

(2) Impact Assessment Study

2.1 Identification of impact on heritage

…

2.1.4 The evaluation of CHIA may be classified into five levels of significance based on type and extent of the effects concluded in the CHIA study:

a. Beneficial impact: the impact is beneficial if the project will enhance the preservation of the heritage site(s) such as improving the flooding problem of the historic building after the sewerage project of the area;

b. Acceptable impact: if the assessment indicates that there will be no significant effect on the heritage site(s);

c. Acceptable impact with mitigation measures: if there will be some adverse effects, but these can be eliminated, reduced or offset to a large extent by specific measures, such as conduct a follow-up Conservation Proposal or Conservation Management Plan for the affected heritage site(s) before commencement of work in order to avoid any inappropriate and unnecessary interventions to the building;

d. Unacceptable impact: if the adverse effects are considered to be too excessive and are unable to mitigate practically;

e. Undetermined impact: if the significant adverse effects are likely, but the extent to which they occur or may be mitigated cannot be determined from the study. Further detailed study will be required for the specific effects in question.

2.1.5 Preservation in totality shall be taken as the first priority as it will be a beneficial impact and will enhance the cultural and socio-economical environment if suitable measures to integrate the heritage site(s) into the proposed project are carried out.

2.1.6 If, due to site constraints and other factors, only preservation in part as possible, this shall be fully justified with alternative proposals or layout designs which confirmed the impracticability of total preservation.

2.1.7 Total destruction shall be taken as the very last resort in all cases and shall only be recommended with a meticulous and careful analysis balancing the interest of preserving local heritage as against that of the community as a whole. Assessment of impacts on heritage sites will also take full account of, and follow where appropriate, paragraph 4.3.1(c), item 2 of Annex 10, items 2.6 to 2.9 of Annex 19 and other relevant parts of the TM on EIA Process, S.16.

326.  Those matters referred to in §1.1(vi) and (vii) extend the baseline study assessment beyond declared monuments, to other places or buildings or structures which are of cultural and historical heritage importance. The Old Course fits in to that description.

327.  The approach in §2.1.4 is taken into the EIA Report at §12.3.2.11. Obviously, building a residential complex and carrying out compensatory tree planting on a significant proportion of the Old Course could never be described as of ‘Beneficial Impact’, ‘Acceptable Impact’ or unlikely even ‘Acceptable Impact with Mitigation Measures’ in accordance with their definitions. Hence, the present focus is on the distinction between ‘Unacceptable Impact’ and ‘Undetermined Impact’.

328.  If starting from the general before dealing with the particular – or if moving from ‘macro to micro’, as one keen golfer and former judge liked to say – it is appropriate to look at the TM before turning to the SB.

329.  The criteria for evaluating impact on sites of cultural heritage – set out at §2.1 of TM Annex 10 – was expressly to include:

(a) The general presumption in favour of the protection and conservation of all sites of cultural heritage because they provide an essential, finite and irreplaceable link between the past and the future and are points of reference and identity for culture and tradition.

(b) Adverse impacts on sites of cultural heritage shall be kept to the absolute minimum.

330.  Further, TM Annex 19 at §2.1 identified that, whilst there is no quantitative standard in deciding the relative importance of sites of cultural heritage, in general sites of unique archaeological, historical or architectural value will be considered as highly significant. §2.2 states that:

A baseline study shall be conducted

(a) to compile a comprehensive inventory of places, buildings, sites and structures of architectural, archaeological and historical value within the proposed project area; and

(b) to identify possible threats of, and their physical extent, destruction in whole or in part of sites of cultural heritage arising from the proposed project.

331.  Paragraph (a) is not limited to “sites of cultural heritage”, though paragraph (b) apparently is. However, it might be asked why it is a requirement to compile the comprehensive inventory under the former, if it is only necessary to identify possible threats to “sites of cultural heritage” in the EIAO defined sense in the latter.

332.  The Methodology at §2.3 suggests assembling the best information with an entry point of the AMO, public libraries and archives and tertiary institutions, with a view to an assessment which shall provide detailed geographical, historical, archaeological, ethnographical and other cultural data. The methodology at §2.5 says that, in cases where the above sources of information prove to be inadequate or where the proposed project area has not been adequately studied before, field surveys and site investigations shall also be conducted as necessary to assemble the necessary data.

333.  As to Impact Assessment, §§2.6 and 2.7 identify that preservation in totality will be a beneficial impact and will enhance the cultural and socio-economic or environment if suitable measures to integrate the sites of cultural heritage into the proposed project are carried out. If, due to site constraints and other factors, only preservation in part is possible, this must be fully justified with alternative proposals or layout designs which confirm the impracticability of total preservation. Annex 19 at §2.8 also makes clear that:

Total destruction must be taken as the very last resort in all cases, and shall only be recommended with a meticulous and careful analysis balancing the interest of preserving the archaeological, historical, architectural and other cultural values as against that of the community as a whole.

334.  I note that the interest of preserving the “archaeological, historical, architectural and other cultural values” echoes the phrasing used in §2.2(a), rather than the narrower EIAO defined sense of “sites of cultural heritage” apparently used in §2.2(b),

335.  Indeed, there is some force in Mr Yu’s submission that it is difficult to reconcile these provisions with the suggestion that Annex 19 is only concerned with or limited to assessment of the impact on declared monuments. It would be thought that if a site has been declared a monument, it must have been investigated, and information and necessary data about it would be available, and the identified methodology and impact assessment provisions would be largely otiose. But Mr Pao suggested that, this not being a box-ticking exercise, an EIA report should provide detailed geographical and historical background relating to a monument, so as to enable a fuller assessment. Mr Yuen submitted that how Annex 19 is construed is just one of the factors as to how the overall context should be considered, including that the draughtsman of the TM did not insert any explanation if he intended a meaning different from the statutory meaning for the phrase “site of cultural heritage”.

336.  Annex 19 at §2.9 requires assessment of impacts on sites of cultural heritage also to take full account of, and follow where appropriate, the Guidelines for Landscape and Visual Impact Assessment at Annex 18. It can be noted that Annex 18 at §4.1 requires a baseline study to cover at least human aspects such as cultural features, landscape history, buildings and settlements, people affected and their perception of the landscape’s character. §4.2 requires the baseline study to present an appraisal of the landscape and visual resource of the study area, which must focus particularly on the sensitivity of the landscape and visual system and its ability to accommodate change.

337.  In the Project Profile for this particular Project, it was noted that a cultural heritage impact assessment (“CHIA”) would be carried out under the EIA study. It was stated that impacts on cultural heritage sites would be avoided as far as practicable, by amending the layout plan to allow preservation of the heritage resources in-situ. If unavoidable, mitigation measures to the direct and indirect impact on built heritage resources would be implemented.

338.  The SB included at §2.1(vi), as one of the objectives of the EIA study, to identify any negative impacts on sites of cultural heritage and to propose measures to mitigate these impacts.

339.  But, §3.2.1(xi) of the SB identified the requirement of the study to address the “key issue” of:

(xi) potential cultural heritage impacts, in particular impacts on built heritage including Foundling Lodge, Clubhouse of The Hong Kong Golf Club Fanling Golf Course, Half-way House of The Hong Kong Golf Club Fanling Golf Course, and No. 5 Ng Uk Tsuen, as well as Graves, due to the Project.

340.  Those listed items (which are not an exhaustive list) are clearly not confined to declared monuments. In fact, none of them is a declared monument. But, as identified above, the question still arises on this application as to whether matters of heritage impact assessment are confined to declared monuments.

341.  Incidentally, the SB at §3.2.1 also identified the requirement for the study to address any other key issues identified during the course of the study.

342.  Further, §3.4.12.1 required the criteria and guidelines for evaluating and assessing the cultural heritage impacts as stated in §2 of Annex 10 and §2 of Annex 19 of the TM respectively to be followed, and §3.4.12.2 requires the cultural heritage impact assessment to “include” a Built Heritage Impact Assessment (“BHIA”) and an Archaeological Impact Assessment (“AIA”) for the construction and operation of the Project. Whilst no attention is drawn to other potential cultural heritage impacts, and that paragraph does focus on the BHIA and AIA, I think the word “include” is again non-exhaustive.

343.  Mr Pao submitted that accepting Mr Yu’s arguments would be tantamount to accepting that any kind of building which someone believes has some cultural or historical value would fall within, and would enjoy the same stringent protection as specified, under Annex 10 and Annex 19 as is offered to “sites of cultural heritage” as defined in the statute (i.e. to declared monuments). That, Mr Pao said, cannot have been the intention. Whilst it is recognised that the SB does not limit or qualify the assessment of cultural heritage to sites of cultural heritage only, nevertheless the stringent protections in Annex 10 and Annex 19 are reserved only for the sites of cultural heritage as statutorily defined. That is a matter of policy, and though different persons may have different views as to the correctness of the policy, that is not a topic with which the Court should interfere.

344.  But, even if the stringent protections in Annex 10 and Annex 19 are reserved only for “sites of cultural heritage”, that surely cannot mean that other sites of cultural and historical value can in effect be ignored in the EIA process. Indeed, Mr Pao was constrained to accept that the phrase “cultural heritage impacts” found in the SB at §3.2.1(xi) is being used in the general sense, i.e. the non-statutory definition sense, because the matters there set out are not monuments (though they may be or become graded by the Antiquities Advisory Board (“AAB”)).

345.  The EIA Report at §12.4.2.1 noted that there were no historical villages within the project development area, but that the FGC was itself first constructed in the early 20^th century, and so was over 100 years old and should be considered a heritage place in itself. It further recognised at §12.4.2.2 that the Old Course is the oldest surviving golf course in Hong Kong, and its heritage value is to be appraised and graded, if appropriate, confirmed by the AAB. At §12.5.5.1, it was noted that the FGC to be graded by AAB may impact directly and adversely on holes 1 to 3 which are integral parts of the 18-hole Old Course, though the impact is subject to further assessment pending to the grading of the golf course conducted by AAB and that mitigation measures, where necessary, will be proposed to AMO for agreement.

346.  The EIA Report specifically noted the following, at §12.4.2.7 (references omitted):

[FGC] was originally designed as an 18-hole course, this early course was later named Old Course and its holes 1 to 3 cover the main area of interest in this assessment. It was laid out during – what is known as – the Golden Age of golf course development, i.e. the early decades of the 20^th century. Golf courses began to be designed following a coherent process that involved a pre-build study of the existing site terrain, design of the course on the drawing board, and on-site inspection by the architect during construction. It is not clear in how much this was followed at the Old Course, but course designer Paul Jansen personal communication on the Old Course identifies the original and current 18-hole landscape as characterising early 20^th-century golf course design. He states that the ‘land dictates the play and gives rise to a layout that is unique in style and character and different from anything else in Hong Kong and indeed China’. The Old Course is the only 18-hole golfing of such design in Hong Kong.

347.  The EIA Report also noted that the Old Course: (1) has a design which still includes elements no longer used in contemporary golf course design, including blind shots over fairways; (2) is deemed one of the finest and most scenic golf courses in Asia; and (3) has been the site for numerous professional championship events.

348.  The EIA Report at §12.5.1.3 considered built heritage impact assessment, and added the FGC as a ‘new item’, on the basis that the golf course and Old Course in particular was constructed by 1911 as an 18-hole golf course, and had “thus an ongoing authentic history and use as a golf course for over 100 years”.

349.  In the assessment of potential impacts as regards Holes 1 to 3 in Sub-Area 1 and Holes 4 to 9 within Sub-Areas 2 to 4, the following was noted (bold and italics in original):

Holes 1 to 3	The development may directly and adversely impact holes 1 to 3 which is an integral part of the Old Course’s 18-hole playing area. It may thus also directly affect the rest of Old Course.
	The Old Course has been upgraded and modified over time but the use of topography which characterises early golf course design (such as at holes 1, 2, 10 and 13) and the original play philosophy remains unaffected.
	The golf course is associated with international recognised tournaments and golf legends. If the golf course is recognised as a heritage site and development goes ahead within the Old Course, direct impacts are expected.
	Undetermined impact
Holes 4 to 9	The change of use may directly affect the Old Course and playing of golf. The golf course is associated with international recognised tournaments and golf legends. If the golf course is recognised as a heritage site and development goes ahead within the Old Course, direct impacts are expected.
	Undetermined impact

350.  The Club criticises the conclusion that there is an “undetermined impact” as having patently failed to comply with the SB and the TM, so being wrong in law, and that it was in any event manifestly irrational for the DEP to have accepted that conclusion.

351.  In my Stay Decision, I noted that where the Old Course as a whole is recognised to be of important cultural heritage, there was at least a strong argument to say that building residential property on part of the Old Course will not have an “undetermined impact”, as the impact is readily determined. It seems to me that there is no “may” about the adverse impact. The impact is that several holes would be lost and the integrity of the Old Course as a whole would be lost.

352.  But focusing on the statutory definition of “site of cultural heritage”, Mr Pao (supported by Mr Yuen) submitted that the possibility that the Old Course would be graded by the AAB, which was uncertain, would obviously have a potential impact on the non-statutory protection that graded sites would receive. Therefore, appropriate attention was drawn to the fact that if the Old Course is recognised as a heritage site, direct impact is expected, but the extent of it or mitigation cannot yet be determined.

353.  If the approach is limited to “site of cultural heritage” as defined in the EIAO, with that definition taken into the TM, then it might be correct to recognise that the golf course might one day be granted status under the AMO, but has not been granted that status as yet so that the impact can properly be described as “undetermined”. That is because, as Mr Yuen emphasised, the definition of “undetermined impact” that the existence or likelihood of adverse impact is undetermined. Rather the term “undetermined” recognises that significant adverse effects are likely, but proceeds on the basis that the extent of those adverse effects, or the extent to which they may be mitigated, cannot be determined from the study.

354.  However, as I have already mentioned, it is difficult to see why the extent of the adverse effects on the Old Course – whether on certain holes or as an integral whole – of building residential and other properties on Sub-Area 1 and performing significant compensatory tree planting on Sub-Areas 2 and 3 cannot be determined from the study. Surely, the significant adverse impact is obvious. In fact, Mr Yuen was constrained to accept as much – though he suggested that there might be undetermined mitigation steps.

355.  In any event, there would then remain a huge lacuna in considering the adverse impact on a place of recognised cultural and historical significance. Indeed, the problem with the CEDD’s submission is that the adverse impact on the recognised culturally and historically valuable Old Course does not turn simply on whether it is or is not one day graded by the AAB. This seems to have been recognized in the Recommendations. Mr Pao also himself noted that even if the Old Course is graded as a historic site by the AAB, that does not mean it would become a “site of cultural heritage” as defined by the EIAO.

356.  The practical effect of taking the line adopted in the EIA Report, and in the DEP’s approval of it (without any relevant condition attached), is that the obvious and massive adverse impact on and effect to the Old Course is to all intents and purposes simply ignored in the overall assessment. As I say, that adverse impact does not turn simply on whether the AAB grades the Old Course. Indeed, I think that is to an extent a red herring, where the AAB would not assess the impact of the CEDD’s proposal to build a housing estate over part of the Old Course, and use another part of it for compensatory tree planting. The practical effect of taking the approach adopted is so, even in the face of the express recognition in the EIA Report itself that the Old Course is recognised as a heritage site – which many people might think is merely the recognition of the blindingly obvious.

357.  There is no uncertainty about the extent to which the Project would impact the Old Course, and no apparent uncertainty about the possibility of mitigation. The proposal involves building housing blocks over holes 1 to 3 and engaging in compensatory tree planting over a large part of holes 4 to 8. Where a number of holes are destroyed as such, the only rational conclusion is that the proposed Project involves the destruction of the Old Course as an integral whole. Assessing that impact and any possible mitigation of it is largely unaffected by any potential AAB grading (though that would provide additional recognition of value).

358.  In other words, though the Old Course (as an integral whole) is recognised to have obvious historical and cultural significance and importance, the approach taken seems to ignore the very existence of the Old Course as such, as if to proceed on the basis and assessment that the Project is proposed to be developed on land which is currently used for no other purpose. That cannot be right where the defining feature of the Land is that it was currently in use as a golf course, namely the Old Course.

359.  Indeed, it seems to me that it is not right because, though the TM (which covers numerous projects) may appear to limit the range of impact assessment threats to the statutory definition of “site of cultural heritage”, the SB which is specific to this Project is not so limited. Everybody involved must have been fully aware throughout the process that the Land was part of the Old Course. It beggars belief to imagine that those who, with the benefit of public comments and input from the Club, drafted the SB overlooked or ignored that fact. That seems to me to be the reason why the SB looks beyond merely “sites of cultural heritage” and requires the EIA study to address the “key issue” of “potential cultural heritage impacts” (a phrase not given definition in the EIAO, and whose meaning is clearly much wider than the limited meaning in the EIAO).

360.  There is some further support for that view from the approach taken by the DEP in the Recommendations attached to the Decision. Recommendation (c) specifically recommends that the Project Proponent “review the cultural heritage importance and function of the site in connection to the surrounding land uses, and consider how to mitigate the potential impact of the development of Sub-Area 1 on the cultural heritage impacts on the entire [FGC] area”. That recommendation only makes sense if cultural heritage is being considered in a wider context than the narrow statutory definition of “site of cultural heritage”.

361.  Further, contrary to the requirement in TM Annex 18 at §4.2, I do not see how the EIA Report put any focus on the sensitivity of the landscape and the ability of the Old Course to accommodate the change as would occur from building a multi-block multi-storey residential project and performing compensatory tree planting across almost half of its eighteen holes.

362.  In that regard, I note that Mr Lau, in his evidence for the CEDD has suggested that there might be possible mitigation measures including: (1) a review of the development scale and layout plan to minimise impacts on the FGC, where it is obvious that not all of the buildings or structures located within the FGC are of historical or heritage value; (2) potential re-alignment of holes on the golf course (on the basis that some changes have been made to the Old Course over time). Mr Lau suggested that mitigation measures may be proposed to the AMO in the event that the FGC is graded by the AAB, though this is not a mandatory requirement under the EIAO. With respect, not only are those matters not traversed in any way in the EIA Report, they remain largely tied to the question of grading by the AAB. For reasons I have already explained, that seems simply to miss the real point, and the gaping lacuna in the consideration of cultural and historical importance remains. Further, any focus on buildings misses the point about the Old Course, and it is not clear how several holes covered with buildings and compensatory tree planting might be “re-aligned”.

363.  I reach the conclusion that for the DEP to accept and approve categorising the adverse impact on the Old Course, a place of obvious and recognised cultural and significance as “undetermined” without more is irrational and in breach of the requirements under the SB and TM. Further, where no actual mitigation steps are put forward in the EIA Report and the other assessment options – ‘Beneficial Impact’, ‘Acceptable Impact’ or ‘Acceptable Impact with Mitigation Measures’ – are realistically ruled out, there is great force in the argument that the only rational conclusion would be that the impact is “unacceptable” because the adverse effects are considered to be too excessive and are unable to be mitigated practically.

364.  As regards the assessment of impact to cultural and historical heritage, I accept that there was a failure to comply with the SB §3.2.1(xi), and the TM §§4.4.2(e) and 4.5.1(b).

H.7  Bats

365.  Appendix H to the SB specifically mentioned that the assessment should include the major task of investigating and describing the existing wildlife uses of the various habitats with special attention to those wildlife groups and habitats with conservation importance.

366.  The EIA Report at §§9.7.2.29-30 recognised that 46 species of conservation importance were recorded within the assessment area, including 16 species of birds, 8 species of mammals, 5 species of herpetofauna, 10 species of butterflies, 3 species of odonates, 2 species of moth and 2 species of aquatic fauna. However, although 30 fauna species of conservation importance were recorded within the Project site, only 4 species were recorded within Sub-Area 1. One of them was the Japanese Pipistrelle bat, but it is suggested that is the most common bat species found in urban areas, and no roosting and breeding habitats were found within Sub-Area 1, and only a scarce number of the species were recorded.

367.  §9.7.2.57 states that only a roost of Short-nosed Fruit Bat was found, but away from the Project Site. No other bat roost was found within the assessment area, and with the future management plan of the habitats within the Project Site, the potential indirect impacts to flying mammals are considered minor.

368.  In a document where the ACE sought additional information on issues of concern in July 2022, a specific request was made for the provision of justifications for the methodologies, coverage and frequency of the ecological surveys conducted, including flora and fauna.

369.  As regards bats, the comments offered in response included the following:

Bat roosting/breeding sites were searched actively during the day-time according to the preferred roosting habitats of each species (including the 3 species stated in the EIA SB, i.e. the Short-nosed Fruit Bat roosts in Chinese Fan-palm and Petticoat Palm; Lesser Bamboo Bat roosts in bamboo and trees; and Lesser Yellow Bat roosts in building and Petticoat Palm).

Additionally, handheld bat detectors (Wildlife Acoustic EM3+) were used to detect bats emerging from potential habitats in evening according to the emerging time from roosts …  At hand-held back detector is commonly used in other EIAs.

As all bat species reported in the area started their activities and were most active in the evening and after sunset, the surveys inside the PDA had already covered their most active duration of a day.

Based on a survey, though bat roosting/breeding sites were identified within the assessment area (i.e. within the New/Eden Course), no bat roost was found inside the PDA. As no roosting/breeding site within the PDA was recorded, no significant impact to the population of bats due to the proposed development is expected. Besides, bat is highly mobile flying animal and may utilise a large area as foraging habitats, and its important feeding habitat types (i.e. agricultural, wetland areas and wooded area) will be either not directly affected, preserved or mitigated. Potential impact of this project to that is considered as minor.

370.  There were, however, two major pieces of evidence available during the EIA process which at the very least cast significant doubt on the conclusions in the EIA Report. Those two pieces of evidence are the survey put in by the Club, and a “cross-checking” survey produced by the Agriculture, Fisheries and Conservation Department (“AFCD”).

371.  The Club carried out bat surveys, by its consultant, mainly using static bat recorders and supplemented by portable hand-held recorders. The operating time of static bat recorders was from half an hour before sunset to half an hour after sunrise, and only data obtained during the wet season (from April to October) was analysed. The survey effort appears to have focused on Sub-Areas 1, 2 and 4, and the number of bat species recorded in each was 13, 14 and 8 respectively, and the total number of bat species recorded was 15.

372.  Only during the course of these proceedings did it become apparent that another survey had also been undertaken by the AFCD. The Assistant Director (Conservation) of that department, Mr KF Chan, has sought in his evidence to explain the purpose of the AFCD’s bat surveys. He says they were not to establish an inventory on bats, nor a comprehensive ecological baseline to give a detailed account of the ecological profile of the Project site. Instead the objective was to collect independent ecological data on bats for cross-checking the results of other bat surveys, and searching for the presence of bat roost. A total of eight bat species was recorded during the transect walk on 24 June 2020, whereas 17 bat species were recorded by the two static recorders that AFCD installed from 24 June 2020 to 22 July 2020 (a one month period).

373.  These numbers are obviously entirely consistent with the results of the Club’s surveys.

374.  Indeed, Mr KF Chan has stated that when AFCD was scrutinising the EIA Report, it was fully appreciated that data collected by the AFCD was different from those referred to in the EIA Report. But he deposed that the differences could be explained by various reasons, including the different sampling methods and efforts in the surveys. He stated that the differences neither meant nor provided any valid basis to suggest that the CEDD’s bat surveys had not met the requirements of the TM and SB. He further stated that the difference in bat species recorded did not affect the overall assessment of the EIA Report, for reasons including that because the EIA Report had, in addition to other literatures, considered both the bat data from the CEDD and the Club’s bat survey at the SB stage.

375.  With respect, the idea that the various differences did not even “suggest” that the CEDD’s bat surveys had not met the requirements – and Mr KF Chan’s conclusion that “the methodology for bat survey used in the EIA Report was appropriate and that the survey results are reliable and representative” – seems illogical against the materials:

(1)  The CEDD survey suggests that over a 10-month survey period, only scarce numbers of one species of bat were discovered.

(2)  Whereas, in its cross-checking exercise, the AFCD discovered over just a one month survey period a total of 17 bat species, 8 of them apparently on just one night.

(3)  The Club’s evidence from Mr Stanton is that, of those 17 species, 14 species were of local, regional or global conservation importance.

(4)  Indeed those figures identify that the FGC is the most diverse site for bats in Hong Kong, comprising a large proportion of the total number of species in Hong Kong.

(5)  The AFCD’s survey results are entirely consistent with those of the Club, but inconsistent with the results of the CEDD’s survey.

376.  Further, where Mr KF Chan suggests that the AFCD did consider the approach to the question of bats taken in the EIA Report, I agree with Mr Stanton that it is inexplicable why the AFCD chose not to advise the CEDD of the results of its own survey, which on their face at least directly contradicted the results and findings of the EIA Report. Nor is there explanation as to why, when scrutinising the EIA Report, the AFCD did not draw attention to the fact that Table 9.3 (listing the species of conservation importance recorded within the assessment area) does not reflect the latest information available to the AFCD from its own surveys. That table does not mention any of the 17 species recorded by the AFCD.

377.  Indeed, there is no evidence from the EIA Report itself that it did actually take into account of the Club’s surveys in its evaluation, or somehow seek to explain or reconcile the vast differences. I do not think that point is answered by pointing out that the CEDD did take into account the ecological survey results published by the Club on 26 September 2018 (on the basis that it was considered at the material time as the most up-to-date and relevant study), as seen from listing out the bat species identified in that study. Nowhere in the EIA Report is there any further engagement with those matters, or with any subsequent materials provided by the Club.

378.  As I understand it, the challenge is not simply that the EIA Report evaluation is wrong because it is different from the Club’s evaluation. Rather, the challenge is that the significant differences ought to have raised questions, and they should have been addressed on the face of the EIA Report (including, as appropriate, by testing the methodologies and assumptions). Had the Club’s submissions regarding rarity, diversity and abundance of bats been brought into account, it is at least possible that the overall ecological value to be attributed to Sub-Area 1 would not have been “Low to medium”, but “Medium”.

379.  Nor does the EIA Report refer in any way to the AFCD survey results – let alone using it for “cross-checking” – and seek to explain or reconcile the vast differences with the results of the CEDD’s survey. Rather, the EIA Report proceeds on the simple assumption that there is only one species. The DEP appears simply to have accepted that, without asking questions about the disparity evident from the materials (though I acknowledge the CEDD at least were apparently not even aware of the AFCD survey at the time).

380.  Part of the additional information sought by the DEP on the advice of the ACE was by way of a request for details of the survey methodology underpinning the bat survey used in the EIA Report.

381.  In the Additional Information relating to bats, the point was made that, based on the review literature, there was no information of the presence of bat roosting/breeding sites. As the protection of roosting sites is the major approach from a bat conservation perspective, investigation of whether there are any bat roosting/breeding sites within the assessment area, especially the project development area (“PDA”), is important for assessing the ecological value of the PDA. Hence, an important target of the bat survey was to find out if any bat roosting/breeding sites were present, and their locations if any – and in particular in any of the Sub-Areas. In addition, potential commuting, foraging, and drinking sites of bats were to be searched.

382.  Mr Pao sought to place emphasis in his submissions on what is the ecological value in terms of bats, which he said was finding where they roost. He said this can be seen from the Guidance Note No. 10/2010 at §5.4, which is headed ‘Surveys for bats’ and states:

In general, surveys of bats can be done by direct counting at their roosting sites or foraging areas. Direct counting of bats is to determine community composition, species richness, and abundance and it can be done at their roost sites (e.g. counts at winter roosting site and maternity colonies) or when they are leaving their roost (e.g. nightly emergence counts and dispersal counts). If roosting sites could not be identified, surveying efforts could be directed toward potential commuting, foraging, and drinking sites of bats. If capturing of flying bats is required for a more detailed study, missed nets are the most effective devices. …  Other than the above, bat detectors are widely used as indirect survey tools for bat surveys. Such ultrasonic detectors identified bat species by recording the species-specific echolocation calls produced by bats when they are flying. Two ultrasound systems, i.e. zero-crossing and time-expansion systems, are widely used for acquiring bat acoustic information for species identification as well as for estimating their population in the study area.

383.  Mr Pao pointed to the evidence of Mr Lai Chi Shing, the managing director of the consultant employed by the CEDD for ecological assessment. Mr Lai drew attention to a number of points, including: (1) direct counting of bats in their roosting sites is the primary survey method for bats; (2) it is common practice to conserve bat roosts as direct impact on bat roosts would affect the species population level; (3) though baseline literature review identified 8 species of bat have been found within the FGC, there was no information on the presence or location of bat roosting/breeding sites; (4) hence, the primary aim of the CEDD’s bat survey was to ascertain the existence and locations, if any, of the bat roosting/breeding sites within the assessment area (and not simply to re-establish the same baseline information as was already established from a review of the existing literature).

384.  Mr Pao also referred to the part of the answers given to the ACE’s enquiries made on 18 July 2022 (which I mentioned above), where it was explained that bat roosting/breeding sites were searched actively during the daytime according to the preferred roosting habitats of each species. Additionally, handheld bat detectors were used to detect bats emerging from potential habitats in evening according to the emerging time from roosts.

385.  In the Additional Information – which was provided in answer to the requirement to give details of the survey methodology adopted for the bat survey in the EIA Report – §4.2.3 explained (amongst other things) that more attention was paid to the preferred roosting habits along the transects for those species listed on the review literature, and in addition potential commuting, foraging and drinking sites of bats were searched, if any. The bat survey locations under the EIA Report were shown in a drawing, Figure 4A.

386.  Hence, Mr Pao submitted, in terms of methodology, in terms of the choice of model that was used as a bat detector, in the desire to use an active search to search from roosts, those were all entirely defensible and valid ways of conducting the bat survey. He suggested that no matter if one looks at the CEDD bat survey, or the AFCD survey of which it was unaware at the time, or the information from the Club, none revealed the existence of any bat roost within Sub-Area 1. Though Mr Pao accepted that after the EIA Report was produced, the Club did discover two vegetation roosts within that Sub-Area 1, that does not mean they were present during the EIA, or that they are long-term roosts. As to roosts, Mr Pao submitted that the various surveys spoke with one voice, and insofar as there are differences of other results from the different surveys, that does not mean that the underlying methodology was necessarily flawed or in any way unreliable. The detailed methodology was spelt out in the responses to the ACE and in the Additional Information.

387.  As to mitigation proposals with respect to bats, it was argued that both direct and indirect impacts on bats were assessed in the EIA. In terms of direct impact, it was assessed as minor given that no bat roost was recorded inside Sub-Area 1 up to the submission of the EIA Report, and the bats recorded when flying would have a vast area of foraging habitat and foraging grounds in the vicinity. Hence no specific mitigation is required. As to potential indirect impact, mitigation measures were expressly proposed during the construction and operations phases, reference to restricted working hours, temporary noise barriers or acoustic screens, and level planning of lighting to avoid light glare. Further, it was said that woodland compensation would re-provide woodlands lost from the development.

388.  But, it seems to me that matters were fairly summarised in the Executive Summary of the Club’s Bat Survey Report dated 2 May 2023, provided in response to the Additional Information, and where the Club’s expert had sought to replicate the EIA bat survey. That summary stated (bold in original):

• This study was conducted during September 2022 to March 2023. This covers the months i.e. December to February when temperatures are cooler and bat activity (and prey availability) is much reduced, and is thus not the optimal time to survey bats in Hong Kong.

• Nonetheless, 15 species (60% of bat species found in Hong Kong) were recorded in [FGC] during the surveys for this 7-month study.

• Short-nosed Fruit Bat, Lesser Bamboo Bat and Yellow House Bat were recorded from all four Sub-Areas across the 7-month study period.  All were specifically mentioned in the EIA Study Brief …

• A total of 12 bat roost locations were recorded for Japanese Pipistrelle, Least Pipistrelle, Short-nosed Fruit Bat and Lesser Bamboo Bat, the latter two species specifically mentioned in the EIA Study Brief … were recorded from roosts in Sub-Area 1. No bat roost were recorded by the EIA; whilst the two surveys did not overlap temporally, the differences are considered to reflect shortcomings in the EIA survey methodology rather than an actual increase in roosting bats within Sub-Area 1. Any statements to the effect that no roost sites were found within the PDA are considered misleading.

• A key component of the study was to directly compare the efficacy of handheld bat detectors and Static Bat Detectors. No differences were found regarding the overall number of species recorded; both methods recorded 14 bat species.  The EIA Study recorded 1 bat species using hand-held detectors from a 12-month study.

• However, transect surveys using hand-held detectors (the same method employed by the EIA Study) allowed for the detection of a greater number of bat species in each Sub-Area.

• Data from this study, combined with historical data collected by the [Club] between 2018-2022, demonstrate that FGC (Sub-Areas 1-4) is the best site for bats in Hong Kong.

389.  Of course, I accept that the Club’s materials produced in response to the Additional Information were not available at the time of the EIA Report, but then neither was the Additional Information. This only points out the problem giving rise to Grounds 1 and 2. Further, as already stated, it was not known at the time of that Executive Summary that the AFCD had carried out its “cross-checking” survey, with results consistent with those generated from the Club’s survey. This also identifies a different problem.

390.  But, by way of conclusion, it seems to me that the failure to grapple with the Club’s submissions and bat survey results (and, though with a better excuse, with the AFCD’s bat survey results) means that there was an omission or deficiency which may affect the results and conclusions of the assessment as set out in TM §4.4.2, hence also being a breach of §4.5.1(a), (b) and (c).

H.8  Moths

391.  Argument as regard the moths was one area where the difference between the approach to methodology and respective survey results was very much highlighted. Indeed, in partial answer to the Club’s argument that its survey results were vastly different from those results of the survey performed for the CEDD, the CEDD has suggested the Club was seeking to perform an exhaustive academic study. As already stated above, I wondered out loud during argument if that was perhaps the point, namely to count everything that is present, in order to know what might be impacted and by how much, and how the impact might be mitigated. That might also seem consistent with the requirement in the SB to identify and quantify as far as possible potential ecological impacts. Of course, it is also necessary to look at the specific context.

392.  At §2(v)(c) and (g) of Appendix H to the SP, the SB required that moths be studied in their habitat, and that details be provided such as:

size, vegetation and/or substrate type, species present, dominant species found, species diversity and abundance of major taxa groups, community structure, seasonal patterns, ecological value, inter-dependence of the habitats and species, and presence of any features of ecological importance.

393.  However, it seems that the EIA exercise in relation to the Project Site at the FGC was the first occasion on which a Hong Kong EIA study brief had included specific provisions relating to moths. As a result, there was no pre-existing framework or set of standards for the study of moths and moth ecology specifically, to which the CEDD could have had regard.

394.  In these circumstances, the CEDD or its consultant turned to seek the assistance of Professor Wang Ming, from the Department of Entomology of the South China Agricultural University. Professor Wang also filed affirmation evidence for the CEDD in these proceedings. There, he explained that he advised that the moth survey to be conducted should comprise two main elements, namely (1) deployment of moth traps at night (the primary surveying method in all moth studies, given their predominantly nocturnal nature) and (2) active search (for both mature moths and caterpillars) at both daytime and nighttime. He also stated that the methodology used was tailored to the specific needs of the EIA study, including as to the wattage of the moth lights employed, and the duration of deployment.

395.  As to the former, a deliberate choice was made to use light sources with lower power, so that the traps could collect moth data at the specific Sub-Area. Professor Wang criticised the survey methodology adopted by the Club, as covering the moth species present in the general area covering the FGC and surrounding vicinity, and not providing specific information on the moth species actually inhabiting the four Sub-Areas of the PDA. He stated that the results of the Club’s research could not simply be transposed onto the Sub-Areas, and there was “a distinct logical possibility” that the results from the Club’s study might be significantly different from those conducted during the EIA. The higher number of moth species recorded by the Club might be the result of being attracted from further away by stronger, or overly bright, light traps. Hence, Professor Wang stated that the results of the Club’s survey (which involve results since 2015) are not invalid per se, but the methodology used would not be apposite if the aim is to identify and confirm the specific species which inhabit the Sub-Areas.

396.  However, none of this comparative reasoning is to be found in the EIA Report.

397.  Reference in the EIA Report to moth survey is at §9.5.8, which sets out that moth traps were deployed at 23 locations within the assessment area, 15 within the Project Site, with 8 more outside the Project Site but within the assessment area. 59 species of moths were recorded within the assessment area, of which 38 species were recorded within the Project Site. Only two species of conservation importance were found in the assessment area, only one of which was in the Project Site at Sub-Area 2. Hence, Table 9.20 – giving an overall ecological value of ‘low to medium’ for Sub-Area 1 makes no reference to any moth under the criteria of rarity.

398.  The EIA Report at §9.7.2.58 refers to a management plan to be formulated (i.e. in the future) which would consider the impacts to moths, amongst other things. Hence, it says, with the future management plan, the potential impacts to the macro-invertebrates of conservation importance as well as light glare impact to moths are considered insignificant.

399.  On the recommendation of the ACE, the DEP required the CEDD to carry out an additional moth survey, and also to provide further details of the survey methodology. This was apparently on the basis that the original moth study contained in the EIA Report did not supply sufficient information to allow an assessment of whether its methodology was adequate, and the results of the survey conducted did not give a clear or complete picture of the ecological baseline. (This of itself identifies a perceived failure up to that point with the DIA Report.)  The further information was sought as part of the Additional Information.

400.  Mr Yu submitted that the failure of the EIA Report to meet the requirements as regards moths is similar to the failure on which he made submissions in relation to bats. First, there seems to have been a failure to evaluate, and identify why there exist differences between, available surveys. Secondly, the Club’s survey data was apparently ignored, in the sense that it is not taken into the evaluation of the ecological value of the Project Site in the EIA Report.

401.  Hence, the Club’s criticism of the EIA Report in this regard begins at the first stage of the process in engaging an incomplete literature review, resulting in a flawed moth recording methodology. As the Club’s moth expert, Dr Roger Kendrick – who has been recording moth data, moth biodiversity and moth ecology for the Club since 2018, during which time he has produced three sets of moth survey reports – states, unless the baseline state is correctly characterised, the further stages of the assessment will also necessarily be unsound. The assessment of the impact the project will have on the existing ecology, what mitigation measures required, and whether the residual impact after mitigation is acceptable, will be invalid if there are material errors at the baseline stage. A further risk is that there may be failure to apply the precautionary principle in cases where it should be applied.

402.  The Club’s position is that the inadequacies and inaccuracies in the ecological baseline information remained, even after the provision of the Additional Information – most notably evident from the wide gap in moth data recorded by the CEDD and its consultant team and that recorded by Dr Kendrick for the Club in a parallel moth survey conducted during the same period as the additional survey requested by the DEP. The CEDD moth study found 38 moth species, whilst Mr Kendrick found at least 729 moth species present in the FGC in the same period.

403.  In the Summary for the Moth Survey of 2022-2023, Dr Kendrick stated the following (bold in original):

In the 2022-2023 dry season moth survey, 323 species were recorded, including four species new to Hong Kong, and at least one unique (likely undescribed) species to [FGC]. Of the scientifically described species, 12 are endemic to (i.e. only known to occur in) Hong Kong (Table 1) and two are nearly endemic to Hong Kong (table 2), all 14 of which meet International Union for the Conservation of Nature [IUCN] Red List criteria for species at risk, or greater threat, of extinction globally. There are a further 14 species of international (Table 2) and 6 species of local conservation concern (Table 3), giving a total of 34 moth species of conservation concern found during this dry season survey. A further 14 species are data deficient, suspected to be undescribed species currently not known outside Hong Kong.

The 2022-2023 survey data adds 109 moth species recorded at the [FGC]. Together with the data from the 2018 & 2020, 729 moth species are documented, and the number of species of conservation concern to 107 species (16 described Hong Kong endemics, 41 further species of international concern and 50 species of local concern.

404.  Dr Kendrick also pointed out that the CEDD did not identify the presence of 4 moth species that meet IUCN “critically endangered” red list criteria (two in Sub-Area 1, one in Sub-Area 2, one in Sub-Areas 2 and 3), and 7 moth species that meet the IUCN “endangered” red list criteria (two only found in Sub-Area 1, two in Sub-Areas 1 and 2, one in Sub-Area 2, and two in Sub-Area 3).

405.  Dr Kendrick has opined that this has occurred, notwithstanding what has been said in the CEDD’s evidence from Professor Wang, and in the DEP’s evidence from Mr Tsang Sai Wing Terence, because:

(1)  The literature review in the EIA Report, specifically in relation to moth recording methodology, was incomplete and led to an inadequate and inaccurate collection of ecological baseline data. Further, six pieces of key literature on moth recording technology now cited by Professor Wang were not previously referenced in the EIA Report, or in the Additional Information, or in the methodology statement submitted by the CEDD’s consultant WSP to the DEP. Multiple methods of moth recording are required in order to obtain good (though not necessarily comprehensive) baseline data, but the survey adopted was in substance a single moth recording methodology, in contrast to the methodology adopted by the Club, whose surveys recorded many other moth species (though this was not addressed in any assessment in the EIA Report).

(2)  The data collected in the moth survey for the EIA Report was no more than an initial attempt at a habitat survey, and relevant baseline information in the form of moth surveys conducted by the Club were ignored. Professor Wang’s criticism of the Club’s surveys is misplaced, where they were intended to be (descriptive) baseline surveys. Further, even if the Club’s moth surveys were more of a broad-based recording exercise, they nevertheless contained information that should have been considered as forming part of the ecological baseline information. However, the abundance of moths (quantitative statistical or qualitative descriptive) was not discussed at all in the EIA Report

(3)  There was an absence of any ecological analysis (statistical or otherwise), in the EIA Report moth survey that looked at the ecological components of the species distributions across habitats.

406.  Dr Kendrick refuted in his evidence the approach offered by Professor Wang and Mr Tsang in their evidence filed, in five responsive observations:

(1)  The use of the label “academic” to describe the Club’s survey is a red herring. Whatever the purpose of the study, there is a component of statistical analysis of the data collected, whether descriptive (i.e. qualitative) or analytical (i.e. quantitative). The requirement of a statistical approach in an EIA is clear from both the TM and the SB.

(2)  The Club’s moth surveys are, and were intended to be, descriptive baseline surveys, designed to investigate what species were in the target areas selected on the basis of where the most moths were expected to be found. That is not a blanket approach.

(3)  It is incorrect to say that overly powerful light sources were used in the Club’s moth surveys. The low-powered mercury vapour lights used are the general standard form of baseline surveys around the world.

(4)  It is absurd to talk about “total” moth inventory, as they can never be a total inventory.

(5)  Even on the basis of the views now expressed by Professor Wang and Mr Tsang that the Club’s moth surveys were more broad-based recording exercises, the surveys nevertheless contained information that should have been considered as forming part of the ecological (descriptive) baseline information. However, the abundance of moths (quantitative statistical or qualitative descriptive) identified was not discussed at all in the EIA Report. The Club’s moth surveys were entirely ignored in the sense that, other than referencing the existence of the 2018 survey, none of the information contained was taken into account, either in designing the methodology or in the supposed habitat analysis that was required by the SB.

407.  But, Mr Pao’s core submission was that the EIA moth study was conducted in terms of methodology professionally designed by a leading expert in the field in Southern China, who has given convincing reasons which are supported by his evidence for his choice of methodology, which was fit for purpose, namely to focus on Sub-Areas 1 to 4. The Court should not be concerned about the merits or about designs of moth traps, or how bright the lights should be, or how long they should be operated. Instead, if the focus is on rationality, it is a rational view to take to say that the Club’s studies were for a different purpose, and there was no breach or non-compliance with the TM or SB.

408.  With respect, I do not think that rationality involves looking only at one approach adopted by the consultants employed by the CEDD. Of course, I accept that there may not be any standardised or one-size-fits-all recording methodology, and that it might be correct to say that, looked at in a vacuum, there seems to be no irrationality in adopting the approach put forward by the CEDD. But the essence of a proper EIA process does not look at only partial information in a vacuum. Indeed, on its face, there also seemed to be no irrationality in adopting the approach put forward by the Club. Hence, there may be need to identify why one approach is chosen over the other, or an attempt to reconcile the two approaches.

409.  One of the reasons for a proper baseline study is to be able to take the information from it into the wider consideration which flows from (in this case) literature review and surveys conducted. Another reason is to be able to test, or cross-check, the results of surveys conducted against the available results of other surveys conducted. Further, the other available information which is directly relevant to the assessment part of the EIA must surely be taken into consideration, and if apparently of significance, the consideration must grapple with it (or explain on the face of the EIA Report why that need not occur).

410.  The approach explained above does not intend to advocate that the EIA report in any given situation must deal with every single potential piece of information or area for dispute. However, it seems to me to be for the benefit of everyone concerned in the EIA process for significant and relevant information to be dealt with as part of the required fairness and transparency of the process. Indeed, I would think it is in the interests of the project proponent, who wishes to proceed with the proposed development as soon as possible, to grapple with such materials; if nothing else, this will demonstrate that the materials have been properly considered and what is the considered reaction to them, in itself making a challenge less likely (and, if made, less likely to succeed). It also makes less likely that there would be requests for further explanation and clarification from the ACE and/or from the DEP exercising his statutory power under section 8.

411.  In this case, I think there was a failure – directly relevant to Grounds 1 and 2 – to have addressed relevant environmental issues raised by the public, in particular by the Club, during the inspection period, in breach of TM §4.5.1(c).

H.9  Northern Metropolis

412.  The relevant provision in the SB is in §3.3.1, which required a description of the need of the Project and a description of the benefit of the Project and scenarios with and without the Project. This can also be found in the TM at §4.4.2(g).

413.  One of the “key issues” to be addressed as required by §3.3.2(xiii) of the SB was the potential cumulative impacts of the Project, through interaction or in combination with other existing, committed and planned projects in the vicinity of the Project.

414.  In October 2021, in the Chief Executive’s Policy Address, the ‘Northern Metropolis’ was announced. This was seven months prior to the publication of the EIA Report, but it is not referenced in nor was considered in either the EIA Report or in the Additional Information.

415.  A Northern Metropolis Development Strategy Report dated 6 October 2021 was released. Under the heading ‘Strategic Directions’, at the National, Greater Bay Area (“GBA”) and Hong Kong Levels, it is stated respectively that:

Our country proposes the development goals of “Construction of Ecological Civilisation” and “Construction of Beautiful Villages”, which places emphasis on the harmonious advancement of economic development and ecological conservation and the balanced development of urban and rural areas.

The Outline Development Plan puts forward six basic principles, namely “to be driven by innovation and led by reform”, “to coordinate development and plan holistically”, “to pursue green development and ecological conservation”, “to open up and cooperate and achieve a win-win outcome”, …

… In addition, the Government proposes development goals of biodiversity and carbon neutrality.

416.  Under the heading ‘Planning Principles’, the following is set out:

(1) Urban-Rural integration

The rich cultural and natural resources in the Northern New Territories, comprising urban areas, rural townships, villages, hilly terrains, rivers, wetlands, fishponds, agricultural land, countryside areas, bay areas, islands, etc., should be suitably utilised, revitalised and conserved in such a way as to create the Northern Metropolis with unique metropolitan landscape featured with “Urban-Rural Integration and Co-existence of Development and Conservation”. This unique landscape will be no less spectacular than that along both sides of the Victoria Harbour, a world-class metropolitan landscape with a beautiful blend of mountain ranges, cityscape and harbour.

(2) Proactive conservation

Proactive conservation measures should be adopted, and plans for building a major ecological habitat network should be formulated. Efforts should be made to enhance the ecological value of ecological sensitive areas, expand environmental capacity and preserve the integrity of strategic ecological corridors. Steps should also be taken to guard against damage to the ecosystem by unauthorised development, and reasonably compensate for the environmental impact of development activities.

(3) High-quality outdoor eco-recreation/tourism outlets

In anticipation of a considerable growth of the residential and working population in the Northern Metropolis, quality outdoor eco-recreation/tourism outlets of high landscape value should be created in a timely manner. This can enrich people’s lives and encourage a healthy lifestyle while avoiding damage to cultural and natural resources caused by unregulated recreation and tourism activities.

417.  Mr Yu submitted that the Northern Metropolis is significant in at least two major respects:

(1)  First, the Northern Metropolis presents the opportunity to generate far greater public housing yields without the same degree of damage to the environment and cultural heritage.

(2)  Secondly, the proposal to build housing over the Old Course is in tension with the Government’s published policy with respect to the Northern Metropolis, which regards the FGC as a green corridor and open space amenity lying at the very heart of the planned Northern Metropolis area.

418.  Mr Yu submitted that these two matters ought to have been brought into consideration in the EIA Report, but they were not. It is in that context that the ACE made one of the Recommendations that the CEDD should review the scale of the development at Sub-Area 1 in view of the potential ecological and visual impact on the surrounding environment, as well as the integration of the site to the development of the Northern Metropolis. In effect, the ACE was recommending what should have been performed as was required by the SB and TM, demonstrating the prior breach of them both.

419.  Mr Yu further submitted that because the DEP included this recommendation as part of his Decision, he also considered it was actually necessary to consider the compatibility of the Project with the Northern Metropolis, and that it is odd that he had not considered (or realised) that there had been a failure to meet the SB and the TM in the first place. In effect, the DEP was turning a blind eye to the fact that the requirement had not been met, but was asking or recommending that the requirement should now be met.

420.  On the other hand, Mr Pao submitted that it was important to consider the TM at §3.4, which provides that:

3.4 The EIA study brief may set out issues relating to the combined impacts of the entire project or the cumulative impacts of the existing, committed and planned developments in the vicinity of the project, but such issues shall be limited to those that may have a bearing on the environmental acceptability of the project. Such assessment shall be based on the best available information at the time of the assessment. Such information shall be that which the applicant has access to or as is provided by the [DEP] in the [SB].

421.  This, Mr Pao submitted, identified that the focus is really upon the environmental acceptability of the Project, for example looking at considering different layout options and development scenarios for the area which is studied in the EIA report. He then referred to the EIA Report and its formulation of the potential development options, leading to the choice of option 2, for public housing development in Sub-Area 1, with Sub-Areas 2 to 4 being preserved with only minimal works (and no works in Sub-Area 4). So, the argument ran, when talking about the benefits and dis-benefits of different land-use options and layout options under different development scenarios, there is no requirement to examine the contents of the policy relating to the Northern Metropolis or to evaluate to what extent the proposed development would be compatible. Mr Pao submitted that made sense or was common sense, because questions of land policy and land development are not issues with which the EIAO or the project proponent are concerned. Mr Pao said that those questions are matters of policy for other persons (of course, not the Court), and that should be the end of the matter.

422.  Nevertheless, as an additional point, Mr Pao referred to Mr Lau’s evidence, where he noted that the proposed Northern Metropolis development is not an alternative to the Project. Both proposed developments form part of the Government’s long-term strategy to alleviate the pressing housing demand in Hong Kong. Mr Lau quoted from the minutes of the ACE Meeting on 8 August 2022, where it was recorded:

Pointing out that the development of the FGC site was proposed in the context of land search for housing development before the Northern Metropolis was announced in 2021, a Member suggested the Government to review the need of the project given that large-scale housing development options in the Northern Metropolis was available. Mr John Chung responded that the Northern Metropolis was proposed to address the housing demand in Hong Kong in the long run on top of the existing and planned housing development projects. In other words, the development of the FGC would be necessary even with the housing supply to be provided by the Northern Metropolis. In response to another Member’s inquiry, Mr Chung said that the current project was expected for completion in 2029 to alleviate the pressing housing need which would be much earlier than the supply from the Northern Metropolis. Mr Chung pointed out that the Project proponent had considered and balanced the need of environmental protection against the development need of the society in planning the current project. He hoped that Members would give weight to the housing demand and the interest of the society as a whole.

423.  Mr Lau sought to emphasise in his evidence that the Project is not inconsistent with the development strategy of the Northern Metropolis, and that the SB and TM do not require the CEDD, as project proponent, to consider the desirability of the Project from a holistic, policy perspective. He did so, despite the fact that the last sentence of the passage quoted above suggests that the project proponent had done precisely what Mr Pao submitted and Mr Lau said that it need not and should not do.

424.  I reject Mr Pao’s submission as to the meaning of TM §3.4. It seems to me that paragraph specifically requires an assessment of the cumulative impacts of other developments in the vicinity of the Project, though such issues are limited to those developments that may have a bearing on the environmental acceptability of the Project. The limitation identified merely means that other developments in the vicinity of the Project need not be taken into account if they have no bearing on the environmental acceptability of the Project. But where the requirement is to look at matters occurring or planned in the vicinity, it would make no sense then to suggest that those matters are ignored even if they have a cumulative impact together with the environmental impact on the Project site, as might together have a bearing on the environmental acceptability of the Project.

425.  In any event, it seems to me that part of the purpose of the EIA is to have materials relevant to the ultimate policy decision which might fall to be made. As Mr Lau himself notes, the Northern Metropolis Strategy Report itself envisages development of various areas within the Northern Metropolis for major infrastructure projects, innovation and technology uses, public facilities, and housing land supply, which would inevitably have an impact on the environment.

426.  Therefore, where the Project might fit into the bigger picture of the Northern Metropolis, and where the environmental impact of the Project might be seen in the context of the envisaged significant environmental impact on the environment which will be caused by the much wider scope of development proposed for the Northern Metropolis, then it seems to me that some assessment in context is obviously important to the overall policy decision, and the overall assessment of the environmental impact acceptability.

427.  For example, it might be thought that a long-time existing, historically and culturally important, well-maintained, and ecologically significant site, providing some sort of ‘green lung’, with the additional attraction of hosting internationally recognised high-level sporting events, would come into the potential weighing process for big-picture policy decisions.

428.  Of course, those decisions are not for the Court to make. But one reason why the SB and TM require consideration of other potential projects in the vicinity of the Project is to facilitate a proper approach to those types of decision.

429.  Put another way, the Project was first proposed prior to the announcement of the Northern Metropolis. But, now that the Northern Metropolis has been announced, which involves proposed development on a much wider scale in the vicinity of the FGC, and where that wider development will necessarily cause significant environmental impact, it is at least possible that a rather different view might be formed as to the acceptability of the adverse environmental impacts which would be caused by the Project when judged against the wider context.

430.  Building on a century old golf course in use (amongst other things) for the sort of large-scale sporting events the Government is keen to promote, if it is the only likely development site in the vicinity, may be seen in a rather different light from building on it when the whole environs is intended to be subject to much wider development, even if the timings differ.

431.  I do not think it is “way above the project proponent’s paygrade” (as Mr Pao suggested) to do precisely what the TM and SB require – namely to provide a description in environmental impact terms of scenarios both with and without the Project, including by reference to potential cumulative impacts of the Project with that of other projects in the vicinity. For example, it might have been pointed out that a scenario without the Project:

(1)  would remove altogether the potential adverse environmental impacts on the Old Course Project site as might otherwise add cumulatively to the environmental impacts already envisaged as inevitable in the proposed development of the Northern Metropolis;

(2)  might remove the possible tension with the Government’s published policy with respect to the Northern Metropolis, which apparently regards the FGC as a green corridor and open space amenity lying at the heart of the planned Northern Metropolis area.

432.  On the topic of Northern Metropolis, I accept that there was a failure to have complied with TM §4.4.2(g) and SB §§3.3.1 and 3.3.2.

H.10  Drainage – Sewage Capacity

433.  The Project Profile at §1.5.1 envisaged the proposed development for the Project area of 32 ha, with a preliminary estimated total population of about 13,000. Hence, the Project fell within Item 1 under Schedule 3 of the EIAO. §1.5.2 recognised that Schedule 2 Designated Projects under the EIAO may be identified in the course of the technical studies. The first of the designated projects included in the Project Profile related to the potential construction of sewage treatment works with an installed capacity of more than 5,000 m³/day and the boundary of which is less than 200m from the nearest boundary of an existing or planned residential area.

434.  This was essentially mirrored in the SB at §1.3, in its reference to potential designated projects. The SB Appendix D ‘Requirements for Water Quality Impact Assessment’ at §4(ix) also required a report on the adequacy of the existing sewerage and sewage treatment facilities for the handling, treatment and disposal of wastewater arising from the Project as required in §3.4.6 of the SB.

435.  Hence, both the Project Profile and the SB identified potential designated projects falling within Schedule 2 of the EIAO, in the form of sewage treatment works and/or a sewage pumping station. However, as Mr Pao submitted, I think it is quite clear that they were recognised for assessment because of their potential inclusion as designated projects, and not because they necessarily were to be included in the Project as ultimately put forward.

436.  In fact, ultimately, the construction of a new sewage treatment works was not considered to be necessary, for reasons which do not seem to me to be open to review by this Court. This was made plain in the EIA Report at §2.11.17, which stated that based on the design scheme assessment results, construction works for sewage treatment works and sewage pumping stations were not anticipated under the Project.

437.  In the EIA Report, Table 6.3.1 estimates the sewage flow generated by the proposed development as ADWF of 4468.8 and 2721.6 m³/day for the two residential areas respectively, with a further assumed ADWF of 200m³/day for 3,200 visitors in use of Sub-Areas 2 to 4. The issue of proposed sewerage was dealt with in §6.7.1, which identifies that new PVC lined precast concrete sewers connecting the PDA to existing DN1800 sewer along the cycling track of San Wan Road with some upgrading works are proposed. As stated in §6.7.3, the proposed sewerage scheme including upgrading works as shown in particular drawings provided, and as stated in §6.7.5, based on the relevant calculations, the existing and proposed sewers were found to have adequate capacity to cater for the sewage flow from the proposed development.

438.  In the evidence of Mr Tsang for the DEP, he described the proposed new sewer as a gravity sewer, of approximately 4 km in length, and Mr Pao took me to the relevant drawings which appear to support this gravity sewer concept in the relevant location. Mr Lau, in evidence for the CEDD, gave a similar, albeit slightly fuller, description of the proposed new gravity sewer.

439.  As Mr Pao put it in submissions, the use of a gravity sewer was to avoid the environmental impacts of actually installing a sewage treatment works. Fortunately, with the gradient and the topography of the site and the existing connections, that is entirely possible.

440.  The conclusions of the EIA Report at §6.8 include the assumed total sewage flow as would be generated on the then latest development parameters of the proposed development, and that the new sewers proposed to connect along the existing trunk would cause only manageable impact to the downstream sewerage networks.

441.  I really see no reason to doubt these matters, or somehow to consider that there was any breach of the SB or TM.

442.  The complaint about drainage and sewage fails.

H.11  Noise

443.  Mr Yu submitted that there are two discrete sub-topics about noise. The first relates to the concurrent project relating to the widening of Fan Kam Road, and the second relates to the continued use of neighbouring ground as a golf course.

444.  The relevant provisions of the SB are to be found in the Scope section, §3.2.1(xiii) and (xiv), which materially read as follows:

(xiii) potential cumulative impacts of the Project, through interaction or in combination with other existing, committed and planned projects in the vicinity of the Project; and

(xiv) identification of individual DPs [i.e.designated projects] proposed under the Project that fall under Schedule 2 of the EIAO … including but not limited to the potential whitening of Fan Kam Road …

445.  Reference can also be made to the TM at Annex 13 ‘Guidelines for Noise Assessment’ at §3.1 which identifies potential noise receivers as those which could be, but are not limited to those set out in the list under three headings, ‘residential uses’, ‘institutional uses’ and ‘others’. Amongst the ‘others’ are country parks.

446.  In the EIA Report itself, §1.7 deals with Concurrent Projects, and states that various cumulative impacts for different concurrent projects have been identified, and detailed justification from consideration of various cumulative environmental impacts from individual concurrent projects have been included in the corresponding chapters. One of those projects relates to Road Improvement Works at Fan Kam Road, albeit that the commencement/completion of construction is not available.

447.  In his evidence, Mr Lau explains that at the time of the EIA study, the potential widening of Fan Kam Road was still in the feasibility study stage. As such, it was not regarded by the CEDD as being a committed or planned project, nor was it an individual designated project proposed under the Project for the purposes of SB §3.2.1(xiv). The assessment of traffic noise and other environmental impacts arising from that planned widening project would be conducted in subsequent technical assessments of that project.

448.  I do not think there is anything in the Club’s criticism in this regard. Similarly, there is no proper criticism to be made of any different description of the 10m strip of land as either a potential amenity area or a setback for future road, if the road project does materialise.

449.  As to the second point, the complaint is essentially about the choice of noise sensitive receivers (“NSRs”) for the assessment of construction noise impact, and the fact that the Eden Course, New Course and the Clubhouse of the FGC were not included as NSRs.

450.  It is helpful to look first at the EIA Report, of which §4.5 dealt with the Construction Noise Impact Assessment. Under the heading ‘Identification of Noise Sensitive Receivers’, §4.5.1.1 identified that the assessment area for construction noise impact is 300m from the PDA boundary. The first layer of NSRs located close to the construction activities have been selected from a Table 4.4.1, and noise assessment points (“NAPs”) closest to the construction activities have been assigned for construction noise impact assessment and summarised in Table 4.5.1.

451.  The EIA Report then goes on to deal with the noise sources during construction phase, the assessment methodology, the prediction and evaluation of construction noise impacts (unmitigated scenario), and the mitigation measures proposed. On that basis, §4.5.5 sets out the prediction and evaluation of construction noise impacts (mitigated scenario). §4.5.5.1 identifies the equipment inventory under the mitigated scenario, confirmed by the Project Engineer to be appropriate and practicable for completing the works within the proposed construction programme, and set out in a Table 4.5.5 the mitigated construction noise levels at representative NSRs. §4.5.5.2 states that, with the implementation of the proposed mitigation measures, it is anticipated that adverse construction noise impact is not expected at the representative NSRs, except during examination periods at the approximate school.

452.  Mr Yu referred to the Technical Memorandum on Noise from Construction Work other than Percussive Piling at §2.1, which identifies that Step 1 of the assessment of noise is as follows:

Step 1 – Location of the Most Affected Noise Sensitive Receiver (NSR)

The NSR which will be most affected by noise from the construction work shall be identified.

For the purpose of this Technical Memorandum any domestic premises, hotel, hostel, temporary housing accommodation, hospital, medical clinic, educational institution, place of public worship, library, court of law or performing arts centre shall be considered to be a NSR. Any other premises or place, not being in the nature of either industrial or commercial premises, which is considered by the Authority to have a similar sensitivity to noise as the premises and places above shall also be considered to be a NSR. Any premises or place shall, however, be considered to be a NSR only when it is in use for its intended purpose.

453.  Mr Yu submitted that the simple point is that everyone knows playing golf as a silent game, so it is irrational for the DEP not to take that into account, omitting FGC as a Noise Sensitive Receiver (“NSR”). Mr Yu submitted that was a breach of the SB §2.1(iii) – to identify and quantify emission sources and determine the significance of impacts on sensitive receivers and potentially affected uses – as well as §3.2.1(xiii) and (xiv) set out above.

454.  Mr Pao also referred to the Technical Memorandum on Noise from Construction Work other than Percussive Piling at §2.1, and emphasised that the first step is to identify the NSR which will be the most affected by noise from the construction work. By reference to the Table 4.5.1 in the EIA Report, Mr Pao showed that the NSRs identified nearby Sub-Area 1 (where the construction activity would take place) included a housing estate, a home for the aged, a hospital and two schools. He submitted that those NSRs were chosen because they were closest to the noise to be generated from construction activities, and because they are particularly sensitive. The EIA Report includes an assessment of those NSRs. Other than during exam taking at the schools, when construction work would be interrupted, everything was otherwise within the maximum mitigated noise level.

455.  Therefore, Mr Pao invited the application of a dose of reality (his words), because there is a primary school right next to the construction activities, which has been assessed as a NSR with noise levels which are acceptable or acceptable with mitigation. Therefore, it is not realistic to suggest that the FGC, which is further away and across the Fan Kam Road, should enjoy any higher protection than schools.

456.  In short, Mr Pao offered two answers to this noise complaint. First, in terms of the choice of the NAPs and NSRs, it was entirely appropriate to choose the ones which are closest to the construction activities, rather than the parts of the FGC which are further away. Secondly, in any event, even for the highest sensitivity receivers which are located right next to the construction works, noise was assessed as acceptable with mitigation. I accept those submissions.

457.  The CEDD also accepts that the lack of specific mention of the FGC as a NSR in the SB and the TM is not conclusive. But, the CEDD has taken the view that neither the FGC nor the Clubhouse should be considered NSR’s. The golf courses are essentially open spaces or outdoor sports fields, and the Clubhouse is a two-story building used for recreational purposes. But it is considered that they do not have a similar sensitivity to noise as the premises listed in the TM at Annex 13 §3.1. Whilst I have already noted that the non-exhaustive list of potential NSRs in that paragraph includes country parks, which might be thought to have some similarity with outdoor sports fields or a golf course, against the other points dealt with above, I do not think it was irrational to have reached that view.

458.  Therefore, the Club’s complaints about noise fail.

H.12  Land Contamination

459.  Compared to some others, this is a relatively short factual point.

460.  The SB makes provision for a land contamination assessment at §3.4.8. It requires the guidelines to be followed as set out in Annex 19 of the TM and following the detailed requirements given in Appendix G of the SB.

461.  Appendix G sets out the ‘Requirements for Land Contamination Assessment’, and §3 identifies that if any contaminated land uses as stated in §3.1 and 3.2 of Annex 19 in the TM is identified, the Applicant shall carry out the land assessment as detailed, and propose measures to avoid disposal. Essentially, those provisions require consideration to be given to historical land uses which have potential to cause or have caused land contamination, and require submission of a contamination assessment plan (“CAP”) prior to conducting a contamination assessment of the relevant site.

462.  Appendix G at §3(iii) provides that if there are potential contaminated sites which are inaccessible for conducting sampling and analysis during the course of the EIA study, for example due to site access problems, the CAP should include various other matters there set out.

463.  Section 8 of the EIA Report deals with land contamination, describing its meaning as an area or spot of land that has been polluted by hazardous substances due to historical or current land use activities that may cause hazardous risks or adverse effects to human health and the surrounding environment.

464.  At §8.3.2, the EIA Report identifies the steps taken to characterise and identify if potential contamination exists or may be present at the development area, being a desktop review, history of development applications and approvals, site inspection, information provided by site representatives, and consideration of the land use changes.

465.  At §§8.3.6 to 8.3.8, the EIA Report deals with the preparation of a contamination assessment plan, but suggest that due to site accessibility issues and given that the golf course will still be in operation until commencement of construction, undertaking site investigation works so as to sample locations and depths for soil and groundwater within the PDA are not feasible. Other works, including re-appraisal and submission of supplementary contamination assessment plan are recommended to be conducted in the later stage of the Project.

466.  However, §8.4.44 refers to an inventory of fertilisers, pesticides and herbicides applied at the golf course maintained by the Club, and that a review of the inventory list concluded that all fertilisers and chemicals used at the golf course are organic, branded and of high quality, applied using best management practices. Reference is also made at subsequent paragraphs to the confirmation of no chemical spillage, a site inspection to cover the full extent of the FGC footprint, the absence of the type of land use as might potentially contaminate land, and review of historical aerial photographs.

467.  Though I do not think it important to the present analysis, I can mentioned that there was a CAP provided by WSP, which was endorsed by the DEP on 11 May 2022. Amongst other things, it identified in section 4 the ‘Sampling Strategy’, providing some detail as to the proposed sampling location and scale – essentially seeking to achieve a 95% confidence level with a proposed number of sampling locations.

468.  There is no particular criticism of those matters, except as regards the claimed inaccessibility to the site. The factual issue in that respect arises as follows. Correspondence was entered into with the Club in relation to ground investigation works relevant to the land contamination assessment. On 16 February 2021, the Club wrote to WSP, the CEDD’s consultant. As the present issue turns in part on that letter, it is convenient to set it out in full:

HKGC have no objection to your ground investigation (GI) works to provide information for assessment of the existing environmental condition, and we thank you for your detailed reply. We appreciate your attempts to minimise nuisance and disturbance to our golf course.

Our comments, provided by our Buildings Sub-committee who have met to discuss this GI, are below:

1) Can the GI areas required be made smaller or can smaller and lighter plant be used or can the pits not be dug by hand to minimise the impact to the turf grass. We also note the GI areas’ size has increased from 6x10m to 10x10m.

2) As you advise, the particular golf hole will have to be closed, but we observe that as golf flights are operationally ‘time separated’ by 8-10 minute intervals between groups, can you not require GI staff to have a ‘traffic light or red/green flag’ system at the affected GI area such as on small-scale road excavation works? We observe that such a simple system will allow golf play to continue shot by shot, whilst also allowing your GI works to continue at the affected hole in full safety for golfers, members of the public needing access to their village and GI workers.

3) Can your GI program be streamlined to minimise the period of the particular Old Course whole closure?

4) Can specific areas be adjusted to a location outside the direct field of golf play, as the pit seem to have been chosen that 100m distance apart, with no regard to our requirement to provide golf to Club members and the Hong Kong public; the latter which comprises above 44% of golf played at HKGC?

5) The ‘certain level of noise’ seems acceptable for your GI purposes, but can your environmental colleagues tell us the exact noise source levels and mitigation you will be employing?

6) Regarding “creation of tyre marks on the golf playing surface” that you refer to, we believe our recommendations made in point 2 (above) should reduce this greatly, but we would obviously wish to see your plans showing where the exact access and routes to the GI areas will be with heavy goods vehicles, so we can advise if this is agreeable re: tyre marks on crucial playing areas.

7) We note and thank you for your site safety measures to be deployed, but would hope that you consider the ‘traffic light or red/green flag system’ (mentioned in point 2 above) to allow your GI and our member and public golf play to coexist harmoniously.

8) It would be better for ‘one set of drilling machine’ to be deployed at any one time.

Thank you for your attention to this matter.

469.  Mr Yu submitted that this letter constituted a clear consent, not a conditional consent. There was apparently no response to the letter.

470.  But, from the CEDD’s evidence, it seems that there was internal thinking on their part effectively reaching the conclusion that it would not be possible to achieve what was requested by the Club, so that the letter can be taken as a denial of consent. The CEDD considered that there was no realistic likelihood that it would be able to devise a methodology which would be acceptable to the Club to address its concerns as stated in the letter. The conclusion was that it was impracticable to conduct site investigation works because there was a problem of inaccessibility. Some reliant was apparently also placed on the fact that chemicals would continue to be applied to the soils before resumption of the Land to the Government in September 2023, and that further investigation works would be required at a later stage in any event.

471.  I accept that one way of reading the Club’s letter was to see it as a clear consent to access for ground investigation, with a number of requests raised as to a possible way of going about the works for which consent had been given. On the other hand, I do not think it entirely unreasonable for the letter to be read in a different way, namely that the comments and requests essentially either negatived or made conditional the primary consent offered. I also accept the submission made by Mr Pao that this issue does not entirely turn on any interpretation of the Club’s letter, but matters more in the round should be looked at, including taking into account the site constraints faced and the developments on the CAP front (which I have reviewed, but need not rehearse here). I do not think it could be described as unreasonable or irrational to have formed the view in context that the letter in reality identified practical problems of accessibility.

472.  The Club’s complaint about the land contamination matters as canvassed in the EIA Report fails.

H.13  Waste

473.  This topic is concerned with construction waste, and its transportation from the Project site.

474.  In the EIA Report, there is a table of estimated construction and demolition (“C&D”) materials generated from different construction phases (preliminary estimate). The EIA Report at §7.5.36 identifies that land transport should be utilised to deliver and dispose of the waste generated from the Project area to the designated disposal outlets. It is anticipated that a maximum of 30 vehicles per day for transporting the waste identified during the construction phase of the Project (year 2024 to 2029). The frequency of trucks for inert C&D materials is estimated at 16 vehicles per day during the construction phase. With the implementation of appropriate mitigation measures (i.e. using water-type containers and covered trucks), no adverse environmental impacts are expected due to the transportation of waste.

475.  There is also a Table 7.5.4 summarising the waste types, handling procedures and disposal routes during the construction phase. There is no challenge to the estimated total waste amounts generated, as would require removal with trucks.

476.  There is at Appendix 4.5.1 to the EIA Report a tentative construction programme, which identifies that the bulk of site clearance, land decontamination and site formation (including construction of retaining structure and slope work) is envisaged to last a combined (and overlapping) 21 months. This is the period when the majority of C&D materials would be removed, and it has given rise to part of the Club’s criticism of the EIA Report dealing with waste. The other part relates to the size/capacity of trucks used. Both aspects relate to the calculation of the number of trucks needed to transport the C&D materials.

477.  In the EIA Report itself, there is no identification of the calculation (or basis of calculation) of the estimated number of trucks, being a maximum of 30 trucks: see above. As a result, an inquiry was made in correspondence, and the consultant provided a one-page assessment. But, Mr Yu submitted, even that page does not identify any calculation.

478.  However, in the evidence filed, Mr Lau and Mr Tsang have claimed that large dump trucks with the loading capacity of 13.75m³ were adopted by the CEDD in its calculations for the number of trucks in the EIA Report. By way of response to Annex 2 to the Form 86, calculations have also been provided by reference to the amount of materials to be transported. As stated, there is no particular dispute as to the calculation or estimation of materials (except as to the amount of materials that might be reused on site), and the dispute is mainly as regards to other factors in the calculation.

479.  Without descending unnecessarily into the detail of the calculation, it made two assumptions: (1) as to the size/capacity of the trucks to be used, and (2) as to the period of time over which the C&D materials would be removed. The calculation also identified an element of “conservativeness”, with an additional factor of 20% adopted to evaluate the maximum number of vehicles required per day to transport inert and non-inert C&D materials generated from the Project area to the designated disposal area. The calculation leads to a conclusion of 29.5 (~30) vehicles per day.

480.  The Club’s response is found in the evidence of Mr Alexi Bhanja. As well as pointing out the absence of any reference within the EIA Report to the gross vehicle weight of the trucks intended to be used, Mr Bhanja says that the capacity of construction waste trucks used to determine truck trips generally ranges between 5.5m³ and 7.5m³ in most EIA reports. He has himself never come across one that assumes trucks with a 13.75m³ capacity, and explains that the reason why smaller trucks are ordinarily used is because of the physical constraints at construction and demolition locations. In any event, Mr Bhanja identifies that the hypothetical calculation using larger trucks is based over the incorrect period of time. Whereas the CEDD’s calculation is based upon an assumption that the number of vehicles required per day would be equally distributed over the 6-year construction period, that nonetheless ignores the information identifying that the majority of C&D materials would be removed within the first 21 months. As a result, even assuming the larger truck is sued, the number of trucks necessary is actually around 90 vehicles per day, namely three times more than the estimate included in the EIA Report.

481.  Further, if the smaller 7.5m³ capacity dump trucks commonly adopted elsewhere were to be used for the calculations, the number of vehicle movements would rise to 330 per day – around 27 per hour, or almost one every two minutes, spread over two years. The impact during that two-year period would then be calculated at 11 times more than the 30 vehicles per day spread over six years assumed in the EIA Report.

482.  Mr Yu submitted that the significant under-estimation of truck trips is in breach of the requirements of the SB at Appendix F (Requirements for Assessment of Waste Management Implications) at §2(iv) to address in detail and propose appropriate mitigation measures for the impacts caused by handling and transportation and re-use/disposal of waste. It is argued that the conclusion in the EIA Report that no adverse environmental impacts are expected due to the transportation of waste is unsupported by analysis or proper explanation, even after an explanation has been offered.

483.  Mr Pao described the issue relating to waste and dump truck estimates and the requirements of the SB as “really quite simple”. Albeit under the heading of ‘Air Quality Impact’, part of §3.4.3.2 stated that:

The Applicant shall describe the transportation routings and frequency of the dump trucks, if any, with a view to addressing potential nuisance caused by dump truck movements during the construction phase of the Project.

484.  Mr Pao emphasised that there is no express requirement in the SB requiring the proponent to explain the calculations which give rise to the estimate of frequency of the dump trucks within the EIA Report itself. Nevertheless, Mr Pao suggested that Table 7.5.4 in the EIA Report did actually provide the basis on which the calculations were made, in that it showed the anticipated amounts of inert and non-inert C&D materials.

485.  But those figures only identify the amount of waste to be removed, and provide no basis of the calculation of the number of trucks as would be required to remove it. It is really only in the CEDD’s response to Annex 2 to the Form 86 (and the evidence filed in these proceedings) that any underlying assumptions for the calculation, and the calculations themselves are actually provided. Of course, Mr Pao may be right when he submitted that the Court is not here to do a maths check the estimates provided in the EIA Report, and there is no real basis to doubt that there were genuine calculations that were done to support the estimates that were given. That seems to me to miss the main point of the criticism.

486.  Nevertheless, I also note that the TM at Annex 15 (Guidelines for Assessment of Waste Management Implications), which describes the commonly adopted approaches and methodologies for assessment of waste Management implications, at § 3.3 requires the impact caused by handling, collection, and disposal of wastes to be “addressed in detail”. It requires the assessment cover, but not be limited to, the areas of potential hazard, air and odour emission, noise, water discharge, and public transport, as well as the impact on the capacity of waste collection, transfer and disposal facilities.

487.  I do not construe that Annex, or any other part of the TM or the SB, specifically to require underlined calculations for estimates to be included on the face of the EIA Report. Obviously, in many cases, provision of the underlying calculations would be at least beneficial for proper understanding of the report, even if they are not strictly required.

488.  Basis that the EIA Report was issued without any calculation underpinning the estimated number of trucks, notwithstanding and in the face of the Club’s statutory submission made on 17 June 2022, which specifically referenced not just an underestimated volume of the C&D materials to be removed, but the incorrect adoption of the full six year construction phase, and the usual truck capacity of 7.5 m³. There was, therefore, a failure to address relevant environmental issues raised by the public during the public inspection period, in breach of TM §4.5.1(c).

H.14  Shading

489.  I do not think I need to deal with this topic at any length. During argument, Mr Yu clarified that the Club’s stance as regards shading impact assessment is not so much about Ground 3, but provides part of the context for the argument on Grounds 1 and 2.

490.  As a matter of formality, I would reject the complaint insofar as it is pursued as part of Ground 3.

H.15  Air Quality

491.  Though raised in the Form 86, this matter was expressly not pursued at the substantive hearing.

H.16  Cumulative Effect

492.  The matter of cumulative effect has in essence been addressed through the matters already canvassed. It is only necessary to state that if any one aspect of environmental impact is addressed differently and reaches a different assessment, that will have to be taken into account in the overall cumulative assessment as to whether the Project is or is not environmentally acceptable.

I.  Ground 4

I.1  Ground 4A

493.  Ground 4 has two limbs. By Ground 4A, the Club contends that the Conditions accompanying the Decision to approve the EIA Report render the Decision unlawful.

494.  It is first important to recognise that the DEP is plainly entitled under section 8(3) of the EIAO to approve the EIA Report with conditions. It is also necessary to acknowledge upfront that the wording empowering the approval with conditions is general, suggesting that the discretion on the part of the DEP to impose conditions is wide, though they would have to be conditions which are conducive to the objective of the EIAO.

495.  Of course, the Club’s case is not based upon the fact that there are conditions, but upon the terms of the Conditions.

496.  I have set out the terms of those Conditions above, but it is convenient to rehearse them here. The Conditions are:

(a) The project proponent shall review and revise the Layout Plan (LP) by adjusting the housing footprint, disposition and density with an aim to minimizing the number of tree to be felled and preserving the 0.39 ha of woodland at the centre of Sub-Area 1 as far as practicable. The revised LP shall be submitted to the DEP for approval before commencement of construction of the relevant phase of the project;

(b) The project proponent shall submit a detailed Landscape and Visual Plan (LVP) which covers a review of the building heights for the proposed housing development and adoption of a stepped height profile with the building height descending from north to south, with a view to reducing the footprint while at the same time minimising the visual impact to the surrounding rural environment. The project proponent shall also minimise tree felling in Sub-Area 1 to reduce visual impact and to use the trees and woodland for generating a natural outlook as well as a barrier to minimise light impact to the surrounding rural environment. The detailed LVP shall be submitted to the DEP for approval before commencement of construction of the relevant phase of the project;

(c) The project proponent shall develop the Sub-Area 1 with spongy city concept with a view to preserving the hydraulic performance of the site to avoid substantially affecting the groundwater level, minimising flooding risk of the site during heavy rain storms, and identify necessary measures to avoid the storm water runoff which would contaminate the surrounding rural environment, in particular, the important swampy woodland in Sub-Area 4. The development plan and measures shall be submitted to the DEP for approval before commencement of construction of the relevant phase of the project;

(d) The project proponent shall prepare and deposit a tree management plan covering the compensatory planting of trees in Sub-Areas 2 & 3 as well as maintenance and monitoring program to ensure tree survival rate of compensatory trees; and

(e) The set of Additional Information received from the Applicant on 4 May 2023 under Section 8(1) of the [EIAO] shall form part of the approved EIA report, and shall be placed on the Ordinance Register and the Ordinance website.

497.  Not least when read together with the Recommendations, which were advanced by the ACE but adopted by the DEP as part of the Decision, I think these Conditions make good Mr Yu’s preliminary observation that although framed as “conditions” imposed together with the decision “approving” the EIA Report, the real flavour is that the EIA Report has not actually been approved.

498.  Presumably, the DEP has imposed Conditions on the basis that they should be met, and he has also attached the Recommendations expressly on the basis that they require the CEDD’s “attention and action”. The DEP has in effect required the CEDD to go away and redesign and rethink the Project, and to submit any new plans for his consideration.

499.  But it was actually one of the detailed requirements of the EIA study – to be found in the SB at §3.2.1(i) – that the EIA Report should address the environmental benefits and dis-benefits of different land-use options and layout options under different development scenarios, design and construction methods of the Project with a view to deriving the preferred land use option and layout option that will avoid or minimise adverse environmental impacts. If that requirement was not properly met, the problem cannot be avoided by making it a condition of approval that it be met.

500.  Further, the Conditions are obviously substantial and extensive in scope. Indeed, as the Decision letter itself states:

The conditions have asked for, among others, the submission of a revised Layout Plan (LP) and a detailed Landscape and Visual Plan to the Director of Environmental Protection (DEP). The revised LP shall, by adjusting the housing footprint, disposition and density, aim to minimising the number of trees to be felled and preserving the 0.39 ha of woodland at the centre of Sub-Area 1 as far as practicable. The detailed LVP shall review the building heights for the proposed housing development and adopt a stepped height profile with the building height descending from north to south, with a view to reducing the footprint while at the same time minimising the visual impact to the surrounding rural environment. Before these are submitted and approved, the project proponent should review if the currently assumed development parameters for the proposed housing development in Sub-Area 1 remain valid and consider whether it is appropriate to propose high-density and high-rise development for Sub-Area 1.

501.  The last part of that description of the Conditions is striking. It appears to include, as a condition, an element of evaluative judgment, requiring the CEDD to review the very validity of the development parameters of the proposed housing development in the Project whose impacts on the environment were supposedly the subject of the EIA Report and/or to consider whether it is “appropriate”. It also begs the question as to how compliance with this type of condition can be or will be judged. A similar comment can be made in respect of the Recommendations, which require review of a number of important aspects of the current proposal.

502.  The Conditions also contain numerous qualifications which beg further questions. For example, what does “substantially” mean in the context of affecting the groundwater level? What is the meaning of “as far as practicable” in the context of preserving the 0.39 ha of woodland, and how will compliance with the required “aim to minimizing the number of trees to be felled” be assessed?

503.  Reliance was placed by Mr Yu on §7-239.78 of the ‘Encyclopaedia of Planning Law and Practice’ (2024), which described “vague conditions” in the following manner:

A condition which is not sufficiently precise for the applicant to be able to ascertain what must be done to comply with it is ultra vires and cannot be imposed. A condition which uses ambiguous terms such as ‘to an acceptable level’ or is subject to qualifications such as ‘if it is desirable’ are too vague and give the applicant little idea of what is expected of them. Such conditions may be difficult or even impossible to enforce. Similarly, a condition will generally be too vague and not sufficiently precise if it requires that development is carried out ‘to the satisfaction of the local planning authority’ and is also likely to be enforceable. Conditions should provide an objective or criteria by which the applicant can ascertain what is required.

504.  I accept those points have some analogical value in the present consideration, and I take them into account.

505.  In this context, I acknowledge that Mr Lau in his evidence filed for the CEDD has confirmed the updated position that the current plan of CEDD is to preserve the 0.39 ha of woodland by revising the design, layout and development parameters of the Project. But I do not think that statement takes away from the nature of the Conditions themselves.

506.  In fact, as regards the woodland, the DEP had already asked for the necessary materials when seeking the Additional Information. Paragraph (e) required:

A detailed layout plan of the proposed housing development which shall illustrate, with the help of an overlay plan of the proposed housing blocks, the preservation of an additional 0.39 hectares of secondary woodland in Sub-Area 1 (on top of those woodland, mixed woodland and Trees of Particular Interest (TPI) recommended for preservation in the EIA report), the locations of the trees to be retained, the location, disposition and design of the proposed housing blocks with a view to minimising adverse ecological impact.

507.  The response to this requirement was provided in section 6 of the Additional Information, and the relevant location was shown in a plan marked Figure 6A. Under the heading ‘Consideration of relocating building blocks’, §6.5.2 noted from that plan that “the woodland in concern is in conflict with” the integrated commercial cum car park building and the public transport interchange cum government institution and community facilities, as well as one of the residential blocks above the car park building. Hence, §6.5.3 noted that:

Preserving the woodland would displace a residential block, the integrated commercial cum car park building and part of the PTI cum GIC building. It would be difficult for the affected housing block as well as commercial and public facilities to be relocated elsewhere within the proposed development, as sufficient space in other area of Sub-Area 1 would not be available.

508.  The following paragraph §6.5.4 concluded that increasing the building height of the proposed housing development would be undesirable and would result in adverse visual impact to the surrounding environment. The conclusion at §§6.6.1 to 6.6.3 included that the scale of the proposed public housing and range of commercial and public facilities to be provided under the development would be affected if the woodland has to be preserved; increasing the proposed building heights may impose adverse visual impact; and removal of the woodland would unlikely cause adverse ecological impact. At §6.6.4, it was stated:

Taking account of the adverse impact on the scale of proposed public housing and range of commercial and public facilities to be provided under the development, as well as the limited ecological impact for removal of the woodland, preservation of the woodland in concern is not recommended.

509.  In other words, when seeking the Additional Information, the DEP specifically required a detailed layout plan illustrating the preservation of the woodland. By the Additional Information, the CEDD in effect stated that was not possible without adversely impacting the scale of the proposed development, that there was insufficient space for relocating the building blocks, so that preservation of that woodland was not recommended.

510.  Pausing here, it can be noted that the reason why preservation of the woodland was not recommended was not because of the adverse impact on the environment, but because of the adverse impact on the proposed building. Whilst it may be that balancing those matters must be performed by someone, I am not sure that the balance should be put that way in an EIA report.

511.  In any event, and despite the stance taken by the CEDD in the Additional Information, by Condition (a) the DEP required a revised layout plan – adjusting the housing footprint, disposition and density – with the aim of preserving the woodland, albeit “as far as practicable”. There is clear force in Mr Yu’s submission that – leaving aside the inherent vagueness in that term – the DEP asked once; the CEDD said ‘no’ on the basis that it was not practicable; but the DEP has asked again; which raises the question what the DEP would do if (as at least seemed likely at the time he asked again) the CEDD say ‘no’ again. This essentially identifies that the imposition of a condition subject to the caveat of practicability, to be determined by the project proponent CEDD and not by the DEP (even if he says any revision remains to be approved before commencement of construction of the relevant phase of the Project), is problematic.

512.  Again, here I recognise the current plan as stated in evidence is to preserve the 0.39 ha of woodland by revising the design, layout and development parameters of the Project. But until the exercise of revision is actually performed, it cannot be known whether the stated current plan can will be maintained.

513.  It also seems to me that the procedure proposed in the Conditions, namely the re-submission of revised plans to the DEP for approval, is in any event not a step contemplated by the statutory scheme (see above). That itself tends to identify that the nature of the Conditions is not such as one would ordinarily envisage falling within the concept of “approve with conditions” permitted by section 8(3) of the EIAO, however wide the discretion.

514.  Indeed, the wording of Condition (c) requires the CEDD to submit a development plan and necessary measures (i.e. mitigating steps) to the DEP for approval. But, surely that was what was required of the EIA Report itself. Just as importantly, this suggested procedure has the effect of sidestepping the otherwise applicable statutory requirements, in that parties who have an interest in being heard on such matters are deprived of the opportunity to comment on the revised plan.

515.  As pointed out by Gerry Bates in ‘Environmental Law in Australia’ 11^th Ed at §13.56, on which Mr Yuen placed reliance, sometimes the question may not be so much whether the decision-maker actually had the jurisdiction or power to make the decision, but whether the decision itself is sufficiently certain in its effect so as to enable people to understand what it means or how to comply with it. One aspect of certainty is to what extent conditions of approval might enable development to be carried out substantially differently to the concept for which approval was sought. This is to recognise that, although courts will always seek to give practical effect to approval conditions in order to avoid questions of uncertainty, conferment of a condition that would allow a significant alteration to the development for which approval had been sought may lead a decision-maker into approving the condition for an improper purpose.

516.  However, Mr Yuen emphasised §13.57, which suggests that:

(1)  This principle is to be balanced against the desirability in many projects of incorporating some flexibility to respond to circumstances as the project progresses.

(2)  A condition will be invalid because it lacks certainty or finality if it falls outside the class of conditions that the statute impliedly or expressly permits, not because (for example) it may allow for some adaptive management within the conditions contemplated by the statutory scheme.

(3)  As a general principle, a condition of approval will not necessarily be considered invalid because the condition retains in the decision-maker some ongoing flexibility in relation to implementation of the approved activity, or because it delegates some authority in relation to implementation to some other person or agency.

517.  I accept that may be so. But the passage in the text also emphasises that questions of degree are always involved in determining whether a condition is sufficiently uncertain so as to be outside the power conferred. Where a condition falls outside what the statute permits, and assuming the condition is not separable, the purported approval is not an approval under the statute at all.

518.  Mr Yuen also relied on the decision of the New South Wales Land and Environment Court in Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213, in which it was argued that the condition of approval in that case left open what is a suitable or the range of possible ‘offset’ steps, so that the Minister failed to determine the application for approval in relation to the issue of mitigation of impacts, and as a result the approval lacked finality. In short, it was argued that the project as approved would be a significantly different project from that in respect of which application was made. However, it was not accepted that meant the condition had the consequences that the applicant submitted. It was pointed out that:

(1)  The condition must be read in the particular context of the other conditions of approval and the limited circumstances in which it was likely to operate.

(2)  Another condition required the project proponent to carry out the project generally in accordance with the environmental assessment, the preferred project report and the conditions of approval.

(3)  A further condition required the proponent to ensure that the project does not cause any exceeding of the performance measures set out in a table.

(4)  The proponent was required by many conditions of the approval to prepare and implement strategies, plans and programs.

(5)  The proponent was required to prepare and implement a rehabilitation management plan and a rehabilitation strategy in accordance with specific objectives.

519.  On that basis, it was held that the impugned condition was intended to address only the contingency that the other measures have been unsuccessful, and that the condition operated together with the other conditions “in a cascading manner”.

520.  With respect, that is obviously not the position as regards the Conditions in this case. There is no ‘cascading’, and no addressing of only a contingency.

521.  In this case, I do not think the Conditions merely provide for some ongoing flexibility in relation to implementation of the approved activity. Nor do the Conditions merely delegate some authority in relation to implementation to some other person or agency. Rather, the Conditions attached to the Decision in this case go somewhat further. This was not a case of the retention of practical flexibility, leaving matters of detail to later determination, nor delegation of supervision at some stage or aspect of the development desirable and in accordance with the statutory scheme.

522.  Mr Yuen argued that the scenario envisaged in the EIA Report is already the “worst case scenario” pursuant to §4.3.1(b)(v) of the TM, and because the EIA Report complies with the requirements in the TM and the SB all along, the conditions would only represent an improvement of the development plan or a reduction of environmental impact. On this basis, he submitted, whatever changes are made to the development plan pursuant to the Conditions, the conclusions reached and the underlying assessment of the EIA Report would still stand.

523.  I disagree. The invoked §4.3.1 of the TM is concerned with the general approaches to be adopted by the DEP in evaluating the assessment methodologies, and §4.3.1(b)(v) deals with impact prediction in the following terms:

Impact Prediction: the guidelines on assessment methodologies are given in Annexes 12 to 19. The assessment methodology is proposed shall be relevant to the issues to be addressed, shall have been used successfully in similar situations or be demonstrated as acceptable by recognised national/international organisations, and shall be capable of: …

(v) describing and predicting the reasonable case scenario and/or the worst-case scenario, or such scenarios as required in the EIA study brief.

524.  Hence, that subparagraph simply states one of the aims which the assessment methodology as proposed should be able to achieve. Where, as in this case, compliance of the EIA Report with the TM is the very issue in dispute, it cannot be assumed that the scenario contemplated in the EIA Report is already the worst case scenario. In any event, the relevant assessment must be made by looking at the Project as a coherent whole. As the expert evidence produced on both sides of the argument shows, changes to one part of the development plan may have a consequential effect on other parts of the plan, and hence on environmental impacts, which may in turn affect the overall environmental acceptability. Indeed, this potential ‘knock-on effect’ is recognised in the Conditions themselves.

525.  Further, I do not think it is factually correct to think that the Conditions amount to the DEP saying that the Project Proponent should try to do better, which would be great, but if not possible, well, he has already approved what has already been stated. That would make a mockery of the very idea of imposing conditional approval.

526.  Ground 4A is established.

I.2  Ground 4B

527.  By Ground 4B, the Club contends that the Decision is unlawful given its failure to require, as a condition of approval, that the CEDD carries into effect the mitigation measures identified in the EIA Report. The argument is put on the basis that the intention of the EIAO is that enforcing environmental standards, and ensuring the implementation of mitigation measures, is a matter to be dealt with under the legislation itself, and not as a matter of planning control or under administrative public finance procedures.

528.  With respect, this argument seems to me to make little sense. If it were correct, every approval of every EIA report would require the imposition of a condition that the project proponent carry into effect the mitigation measures identified in the report.

529.  I might also add that if the EIA Report has failed to comply with the SB and the TM, then any conditions attached to the approval of it are irrelevant; but if the EIA Report has complied with the SB and the TM, the approval of it (and the specific mitigation steps identified in it) will stand on the Register, and the relevant mitigation steps can be enforced through the operation of any permit issued.

530.  Ground 4B is rejected.

J.  Whether Academic / Exercise of Discretion

531.  Though somewhat tentatively in light of my (of course, preliminary) comments in my Stay Decision, Mr Yuen pressed with his argument that this application is academic, and the Court should generally refuse to entertain a judicial review application when the issue involved has become academic, or where exercising a discretion to provide a remedy would serve no practical purpose or would otherwise be a pointless exercise of discretion.

532.  Mr Yuen submitted the short point as being that the proposed public housing Project only concerns 9.5 ha of land, and is not subject to any requirement of undertaking an EIA under the now amended legislative provisions. Even the clinical study as originally formulated would, he submitted, fall outside the EIAO regime altogether. Therefore, the submission continued, in circumstances where the DEP is not obliged (and is in fact not empowered) to conduct any re-consideration of the EIA Report if the Decision is quashed, it is pointless and of no utility for this Court to grant any relief on a wholly academic question that serves no useful purposes.

533.  I disagree. As I stated in my Stay Decision, and re-state on a concluded basis, it is not possible to re-characterise the Project as being one involving only 9.5 ha, so that it does not come within Schedule 3 of the EIAO. It is clear that the EIA process and the EIA Report proceeded on the basis that the Project does fall within, and should be treated as falling within, Schedule 3 to the EIAO. The EIA began, continued and was concluded under the EIAO. It occurred in that way because it was recognised that the process should continue and be concluded under the EIAO, with its established and recognised standards and opportunities for public consultation and consultation with the ACE, so that there would not be any insurmountable environmental problem. That is why the Decision itself identifies that it was made pursuant to section 8 (3) of the EIAO.

534.  I do not think it is an answer to suggest that if the whole consideration of the Project began only after June 2023, then no such EIA process would be required. The Decision flows from a Project Profile in May 2019 and the SB in July 2019, and concerns an application for approval dated 22 April 2022, where the Decision itself was made on 11 May 2023 – all well in advance of the amendment to Schedule 3.

535.  I have previously recognised that the termination of the short term tenancy, and the resumption of Government ownership of the 32 ha, is not amenable to judicial review. It is also correct that the Government is prima facie entitled to use the Land for whatever purpose it sees fit. But, as I have also previously pointed out, the practical reality is that the Land was taken back for residential development purposes (originally intended or potentially to be on all of the 32 ha). If it were to turn out that development of the Land as intended would not be viable, there is no reason to think that the Government would blindly wish to interfere with a cultural and historical heritage site and leave the Land as a ‘static park’. There remains no evidence that the Government has considered uses of the site for purposes other than golf or for a housing development (with any area not developed being left ‘static’). I recognise that the Government has stated in unequivocal terms that it has no plan to operate a golf course on the Land, but that is simply because its primary plan is to build residential accommodation on the Land, and it likely has no relevant experience or expertise to be able to operate a golf course. The outcome of the present challenge and the reconsideration that should result would be a highly material step in connection with decisions relating to the future use of the site.

536.  I have already previously stated my judicial reluctance (which I continue to have) to assume that the Government would restart the entire development process and continue with the Project without going through the EIA procedure under the EIAO, when it has been keen to burnish its environmental protection credentials, and to stress that it has chosen to go through the statutory process even when (it has suggested) it need not have done so. It still seems to me to be at least unlikely that the Government would do a U-turn, and suddenly decide that it would commence the process all over again in a way which seeks to avoid any environmental impact assessment – not least where the DEP has now been told by this Court that there were public law flaws in the process leading to the assessment so far, so that there are or might be significant adverse environmental impacts not yet properly identified – and which may affect the overall view as to acceptability.

537.  Further, it seems to me that the logical effect of quashing the Decision is to put the process back into the position that it was before the Decision. In short, the EIA process which was started as regards this Project has in practical terms been interrupted by the making of a Decision, which I consider to have been made unlawfully, and by the time taken by these proceedings to identify that the Decision was made unlawfully. The interrupted process can now restart.

538.  In short, the challenge is not academic.

539.  Further, in light of the grounds for judicial review which I have found to be established, this seems to me to be a case where the exercise of discretion points firmly in favour of the grant of relief.

K.  Result and Relief

540.  The substantive application for judicial review succeeds on Ground 1, Ground 2, Ground 3 (in part only) and Ground 4A. The challenges mounted against the other parts of Ground 3 and Ground 4B are rejected.

541.  It follows that the applicant Club is entitled to the order of certiorari quashing the Decision.

542.  The Club also sought such further or other remedy, relief or order as the Court may provide. I shall I leave to further submissions any specific further or other consequential relief, or next steps, which can be addressed in writing. But I would note here that:

(1)  If based upon the establishment of Grounds 1 and 2, I have already given a steer as to where I think the quashing of the decision could lead, namely back to a public consultation and ACE comments with the benefits of the fruits of that re-consultation.

(2)  On my finding on Ground 4A, the Conditions as were imposed render the Decision unlawful, in part because they in effect identify that compliance of the EIA report with the TM and SB was not met.

(3)  Indeed, on my findings on Ground 3, it would seem not to be open to the DEP to approve the EIA Report at all (whether with or without properly formulated conditions), because it fails in a number of material respects to comply with the TM and SB.

543.  As to costs, I see no reason at present why costs should not follow the event, so that the Club’s costs shall be paid by the DEP and the CEDD, to be taxed if not agreed, with certificate for two Counsel. However, as I have not heard any costs argument, I shall make that order in the first instance on a nisi basis. The costs order will become absolute if no party makes application for variation of the nisi order within 14 days.