HCAL 9/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 9 OF 2010

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REASONS FOR DECISION

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1.  On 1 November 2010, I ruled that the argument advanced by the Applicant at paras. 46 to 69, 89 to 99 of the skeleton submissions filed on her behalf cannot be entertained without the necessary amendment to the Form 86A filed herein. I now give reasons for that ruling.

2.  In a nutshell, the argument advanced in those paragraphs launched a challenge based on the non-disclosure of the raw data fed into the PATH model in the EIA Report.  Mr Dykes SC explained in his submissions that it is not a free-standing challenge.  Rather, it should be understood as part of the argument as to why the Applicant said the EIA Report did not comply with the requirement of the Study Brief and as such not Section 6 compliant.

3.  In my view, for present purposes, the crucial question is not how the argument is presented forensically.  Rather one should ask whether a challenge based on the non-disclosure of the raw data has been clearly and specifically made in the Form 86A.  In an application for judicial review, the Form 86A identifies the grounds of the challenge.  The court decides whether to grant leave based on those grounds and, if leave is granted, the respondent decides how much evidence need to be put forward in answer to the challenge by reference to that as well.  Thus, it is of fundamental importance that each ground of challenge should be clearly and specifically set out in the Form 86A.  To permit new grounds to be slipped in by way of submissions is unfair to the respondent and bad case management not consistent with the underlying objectives in Order 1A.  Further, if a ground is not contained in the Form 86A, it means that the court has not granted leave for an application for judicial review based on that ground. 

4.  Mr Dykes took this court to several paragraphs in the Form  86A.  Having carefully considered those paragraphs, I agree with Mr Shieh SC that those paragraphs did not advance the attack now put forward in the objectionable paragraphs in the skeleton submissions.  It is not sufficient to tag the attack onto a general averment that the EIA Report is deficient or not providing a full picture of the likely environmental impact.  One should read the general averments in context to see whether the criticism as to the non-disclosure of raw data has fairly and squarely been raised.

5.  Mr Dykes initially only referred to para.72 and sub-para. (i) at the very beginning of the Form 86A.  Sub-para. (i) is a statement of a high level of generality, it reads,

“the failure of the EIA Studies to comply with the requirements and specifications as required by the Technical Memorandum and the Study Brief for the projects”.

6.  The sub-paragraph does not inform its reader the actual basis why the general assertion is made.  It could be anything.  One has to look elsewhere for the specifics of the ground of challenge.  If the non-disclosure point was not raise specifically elsewhere, it would be unfair and wrong to allow the argument to be slipped in by this general statement.

7.  Paragraph 72 of the Form 86A reads,

“It is submitted that the air quality assessment carried out by the consultants led to the absurd conclusion that there will not be any residual air quality impacts caused by the HZMB projects … The HKLR / HKBCF EIA report have presented the Director with carefully selected information that tends to support this conclusion. Instead, the HKLR / HKBCF EIA report should have presented the Director with the full picture of the likely environmental impact of the projects.”

8.  With respect, I do not see how this paragraph can be regarded a fair notice to the court and the Respondent that the Applicant is challenging the EIA report on the ground that the raw data fed into the PATH model had not been disclosed in the report. 

9.  The only paragraph in the Form 86A dealing specifically with the PATH model is at para. 61(w) and it reads,

“The use of the PATH model by the consultant should be subject to rigorous sensitivity analysis and interpretation. In a paper published by the EPD in 2006 titled “The Challenges of Modelling Air Quality in Hong Kong” (author: Christopher Fung), it is accepted that the PATH model tends to underestimate / under-predict short term and average pollution values, and the annual average RSP, SO2 and NO2 levels. In the opinion of the experts, the PATH model underestimation of air pollutant levels could reach up to 25% - 50%. It is unclear and not apparent from the EIA report that the consultant has taken into account of the deficiencies inherent in the PATH model. In the HKLR / HKBCF EIA report, comparisons between PATH predicted results for recent years and the observed data in the same years were not shown. These comparisons are essential to ensure the validity of the PATH model results presented by the consultant throughout this EIA report.”

10.  Quite understandably, the Respondent read this as an attack on the soundness of using the PATH model and evidence was led from Mr Christopher Fung to deal with this challenge. There is no suggestion in this paragraph that quite apart from the inherent soundness of the PATH model the Applicant challenged its use in the report on the ground that the raw data fed into the model was not disclosed in the report.

11.  All general statements about the deficiencies of the report has to be read in this light.

12.  Mr Dykes, in his reply, referred this court to some other paragraphs in the Form 86A.  These are paragraphs added to the Form 86A by way of amendment after the Applicant has obtained her expert report of Mr Ormerod in July 2010.  I must say I have some misgivings about the way in which the Applicant set out her case in the Form 86A by reference to that report. Instead of formulating proper grounds of challenge under public law, the Applicant simply described how the report was obtained and summarized the findings of the expert.  It is very difficult to discern from such a summary as to the relevance of the report in the context of the public law challenges advanced in the Form 86A.

13.  It is trite law that judicial review is not the forum for adjudicating on competing expert opinions as to the control of air quality.  In the course of the hearing on 1 November I referred counsel to the judgment of Collins J in R (Lynch) v General Dental Council [2004] 1 All ER 1159 and invited counsel to consider the proper scope of expert evidence in the present case.  Counsel agreed to provide this court with a memorandum on expert evidence identifying the relevant evidence on each issue that the court has to decide.            

14.  The task should have been performed in the course of drafting the amendments to the Form 86A to include references to the expert evidence.  Be that as it may, I turn to the additional paragraphs relied upon by Mr Dykes.  Paragraph 64 (d), (e) and (h) summarized part of the Ormerod Report.  Sub-paragraph (d) criticized the EIA report in terms of the “failure to adequately detail model assumptions, inputs and uncertainties in respect of all models relied upon for the assessment.”  Sub-paragraph (e) dealt with the worst case scenario and is not relevant for present purposes.  Sub-paragraph (h) refers to the “failure to provide clearly presented information on model inputs in a readily understood way.”

15.  Similar averment was added by way of Paragraph 70 (c) in the Form 86A, also relied upon by Mr Dykes.  As a general allegation, it gives no clue as to what “input” the expert was referring to.  It may or may not include the raw data input into the PATH model.  As quite rightly submitted by Mr Shieh, since these are pleaded as a summary of the Ormerod Report, these general statements should be understood in the light of what was said in that report.  And the relevant paragraph in that report identified by Mr Dykes is Paragraph 5 which reads,

“Part 3.4.1.4.(v)(a) [of the Study Brief] requires that the methodology for quantitative assessment be documented such as to allow readers of the EIA to grasp how the models has been set up without referring to model input files. There is no ready accessible information of this type provided, particularly for the more complex PATH model that provides the important background concentration predictions. PATH is presented essentially as a ‘black box’ with little explanation. However, even the CALINE4 and ISC3ST setup details are not presented in a manner that satisfies the SB requirements.” (emphasis supplied by me)

16.  I agree with Mr Shieh that the words in italics clearly indicated to a reasonable reader that in that paragraph, Mr Ormerod did not refer to non-disclosure of the data fed into the PATH model. 

17.  It is no answer that Mr Ormerod referred specifically to the raw data at para.10 of his supplemental report of 1 October 2010.  This was not referred to in the Form 86A and paragraphs 64 and 70 cannot be read as such.

18.  For these reasons, as things stand, my conclusion is that the Form 86A does not permit the Applicant to advance the submissions in the objectionable paragraphs as mentioned above.