LEUNG HON WAI v. DIRECTOR OF ENVIRONMENTAL PROTECTION AND ANOTHER

CACV 176/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 176 OF 2013

(ON APPEAL FROM HCAL NO. 49 OF 2012)

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J U D G M E N T

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Hon Lam VP:

1.  I agree with the judgment of Kwan JA.

Hon Kwan JA:

2.  On 2 September 2014, judgment was handed down in which this court, by a majority (Lam VP and Kwan JA), dismissed the appeal of the applicant against the judgment of Au J on 26 July 2013 in an application for judicial review relating to the project to construct and operate the Integrated Waste Management Facilities at Shek Kwu Chau, a designated project under the Environmental Impact Assessment Ordinance, Cap 499 (“EIAO”).  The decisions under challenge in the judicial review were (1) the decision of the Director of Environmental Protection (“the Director”) dated 17 January 2012 to approve with conditions an Environmental Impact Assessment Report (“EIA Report”) for the project, pursuant to section 8(3) of EIAO; and (2) the decision of the Director dated 19 January 2012 to grant an environmental permit (“EP”) to operate and construct the project with conditions, pursuant to section 10(3) of EIAO.  The majority of this court rejected all three grounds advanced by the applicant to challenge the decisions.

3.  McWalters JA agreed with the majority on their conclusions in respect of the first and second grounds but dissented in respect of the third ground, holding that the decisions of the Director to approve an EIA Report from her own department and to issue an EP to herself are illegal on a true and proper construction of EIAO.

4.  By an amended notice of motion filed on 17 October 2014, the applicant sought leave to appeal to the Court of Final Appeal contending that there are two questions of great general or public importance or which otherwise ought to be submitted to the Court of Final Appeal for decision.

5.  The first question is the third ground mentioned above and is as follows:

“Whether on a true and proper construction of the EIAO, the Director can be an “applicant” applying to herself for approval of an environmental impact assessment report or an “applicant” applying to herself for an environmental permit in respect of the construction and operation of a designated project?”

6.  There is no issue that this question is of great general or public importance.  The only consideration is whether it is reasonably arguable.  The applicant contended it is, and in support adopted the reasoning in the minority judgment.  Whilst noting the 1^st respondent’s arguments to the contrary, and the majority judgment the 1^st respondent has prayed in aid, I am prepared to accept that this question is reasonably arguable.  I would exercise my discretion to grant leave to appeal on the first question.

7.  The second question is a very different matter.  I do not propose to quote verbatim the question, which is of some length.  It relates to a sub-issue in the first ground, which was rejected unanimously by this court.  It has to do with the applicant’s contention that as §7b.8.4.5 of the EIA Report stated that a “further study” is to be carried out to review relevant previous studies and collate available information on the ecological characters of the proposed area for marine park designation, it cannot be said that the feasibility and other requirements of the proposed off-site measure (i.e. to designate a marine park in a suitable area nearest to the project) has been “confirmed during the EIA study” and therefore does not meet the requirement in the technical memorandum (“TM”) at annex 16 §5.4.5(g)[1].

8.  We rejected this contention for the reasons given in §§52 and 53 of our judgment, in which we affirmed the findings and holdings in §§50, 56 and 57 of Au J’s judgment.  In short, we agreed with Au J that the “further study” mentioned in §7b.8.4.5 of the EIA Report is plainly not a further EIA study, and does not “affect the confirmation of the proposed measures’ feasibility, constraints, reliability, design and method of construction, time scale, monitoring, management and maintenance already provided in the EIA Report, but are only to provide for the fine tuning for implementing the measures.”

9.  By the second question in the present application, the applicant contended that there is a question of construction arising, namely, what “confirm” means in §5.4.5(g) of annex 16 of the TM and what is required to be confirmed during the EIA study.  It was submitted that this involves a question of great general public importance as it concerns circumstances where off-site mitigation measures are required and whether the details of the proposed mitigation measures in the EIA study are sufficient to enable the Director to decide that the project is overall environmentally acceptable.

10.  I agree with the 1^st respondent that the real issue is not about the construction of §5.4.5(g) of annex 16 of the TM but whether on the facts of this case that provision has been complied with.  I do not think the second question is one of great general or public importance, as it is only concerned with the application of §5.4.5(g) to the particular facts of this case.

11.  Furthermore, it does not appear to me that the applicant has reasonable prospects of success on the second question, for the reasons given by Au J which we have affirmed.

12.  I would refuse to give leave to appeal on the second question.

13.  The applicant also relied on the “or otherwise” limb in the amended notice of motion but has not addressed this in any of his submissions.  In any event, I would refuse to give leave to appeal on this limb as there are no exceptional circumstances here.

14.  As the applicant fails to obtain leave to appeal on the second question which was introduced as an additional ground by amendment to the notice of motion, this should be reflected in the costs order.  I would make an order nisi that the applicant should pay half of the 1^st respondent’s costs of this application, to be taxed if not agreed and that half of the costs of this application should be in the cause of the appeal to the Court of Final Appeal.  I would also order that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

15.  I would further direct the applicant to apply within 14 days hereof to the Court of Final Appeal for setting the conditions on leave and further directions as to the prosecution of the appeal.

Hon McWalters JA:

16.  I agree.