|
CACV 573 & 574/2024
(Heard together)
[2026] HKCA 1525
On Appeal from [2024] HKCFI 1279
CACV 573/2024
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 573 OF 2024
(ON APPEAL FROM HCAL NO 1258 OF 2023)
____________
|
BETWEEN
|
| |
HONG KONG GOLF CLUB |
Applicant |
| |
and |
|
| |
DIRECTOR OF ENVIRONMENTAL PROTECTION |
Respondent |
| |
and |
|
| |
GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION,
BY THE CIVIL ENGINEERING AND DEVELOPMENT DEPARTMENT |
Interested Party |
____________
CACV 574/2024
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 574 OF 2024
(ON APPEAL FROM HCAL NO 1258 OF 2023)
____________
|
BETWEEN
|
| |
HONG KONG GOLF CLUB |
Applicant |
| |
and |
|
| |
DIRECTOR OF ENVIRONMENTAL PROTECTION |
Respondent |
| |
and |
|
| |
GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION,
BY THE CIVIL ENGINEERING AND DEVELOPMENT DEPARTMENT |
Interested Party |
___________
(Heard Together)
| Before: |
Hon Poon CJHC, Kwan VP and G Lam JA in Court
|
| Dates of Hearing: |
3 and 4 March 2026 |
| Date of Judgment: |
31 August 2026 |
_________________
J U D G M E N T
_________________
Table of contents
The Court:
A. Introduction
1. This case concerns the environmental impact assessment
report
submitted on behalf of the Civil Engineering and Development Department (“CEDD”) for its study of
developing part of the Fanling Golf Course for residential and other purposes. The Director of
Environmental Protection (“DEP”), tasked by statute with assessing the acceptability of the report,
approved it with conditions. On the application by the Hong Kong Golf Club (“Club”) for
judicial
review, Coleman J quashed the DEP’s decision. Both the DEP and CEDD have appealed to this court.
2. The scope of these proceedings should be made clear at
the
outset. The court is not asked to review the Government’s decision to take back the land and to build
residential towers on it. These decisions, on which strongly held views have been expressed from
different
quarters, are not the subject matter of the application for judicial review. The court is only
concerned
with CEDD’s environmental impact assessment study. Even then, the essence of the question for the
court is
not whether the intended project is environmentally acceptable, but whether in approving the EIA Report, the
DEP
committed the alleged public law errors.
3. In his judgment dated 2 December 2024
(“Judgment”),[1] Coleman J found
that a number of the
alleged public law errors were established, including deficiencies in public consultation, failure to take
into
account relevant materials, misinterpretation of certain mandatory requirements or irrationality in
concluding
that the report met them, and lack of power in imposing some of the conditions attached to the approval of
the
report. The question for this court is whether the grounds advanced for impugning the judge’s decision
are
made out.
B. Factual background
(1) Proposed development at the Fanling Golf Course
4. The Fanling Golf Course (“FGC”), with an area of
172 ha, comprised three 18-hole golf courses called the Old Course, the New Course and the Eden Course,
all
run by the Club which is a private club founded in 1889. The Old Course was laid by the end of
1911.
The New Course was added in 1931, and the Eden Course in 1970. A road called Fan Kam Road runs through
the
FGC. To the east of the road is an elongated area of 32 ha covering eight holes of the Old Course
and
various amenities, with the remaining 10 holes and the other two Courses lying in the 140 ha to the
west. Both parts were (and the western part still is) run by the Club, on land leased from the
Government.
5. Established by the Government in September 2017, the Task
Force on Land Supply (“TFLS”) set about its task of identifying land supply options, conducted a
public
engagement exercise, and reported in December 2018. One of the options considered was making use of
sites
held on private recreational lease for development. Within this category, two options for developing
FGC,
as the largest of these sites, were canvassed: developing the entire FGC, and developing only the 32 ha
to
the east of Fan Kam Road. The TFLS recorded that the responses they received on FGC were polarised
but,
from the perspective of increasing land supply, it recommended that the Government should accord priority to
studying and resuming the smaller portion of 32 ha.
6. On 20 February 2019, the Government announced that it
endorsed the TFLS’s recommendation, and decided to develop the 32 ha to the east of Fan Kam Road (which
will be referred to below as the “Land”) for the purpose of housing development, with emphasis on
public
housing. A project for such partial development of FGC (“Project”) was initiated under the
management of CEDD.
(2) The EIA process
7. The statutory process with which we are concerned here is
laid down in the Environmental Impact Assessment Ordinance (Cap 499) (“EIAO” or
“Ordinance”),
whose purpose as stated in its long title is “to provide for assessing the impact on the environment of
certain
projects and proposals, for protecting the environment and for incidental matters.” Under the
Ordinance,
environmental impact assessment (“EIA”) is required for “designated projects”, which, as defined,
include
those listed in Schedule 3 to the EIAO. At all relevant times until an amendment on 30
June 2023, Schedule 3 contained two items, namely:
“ 1. 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.
2. Engineering feasibility study of redevelopment projects with a
study
area covering more than 100 000 existing or new population.”
8. Since the Project covered a study area of 32 ha, it
fell
within item 1 and was a “designated project”, to which the relevant requirements of the statute
accordingly
applied. In particular, an EIA report needed to be prepared for approval by the DEP.
9. The process leading to the approval of an EIA report
consists
of a number of steps on which ss 5 to 8 of the EIAO make detailed provisions. For ease of
reference
those sections are set out in the Appendix to this judgment.
(3) The project profile and application for study brief
10. As the first step, s 5(1) provides that a person
who
is planning a designated project shall apply to the DEP for an EIA study brief to proceed with an EIA
study
for the project (or, if certain conditions are satisfied, which are not relevant in this case, apply for
approval to apply directly for an environmental permit). The statutory machinery is set in motion by
the
project proponent submitting (i) an application for an EIA study brief, and (ii) a project profile
which has to comply with the “technical memorandum” issued by the Secretary for Environment and Ecology[2] under s 16 (see s 5(2)(b)).
The
technical memorandum is a document which applies generally to all designated projects; a study brief, on the
other hand, is project-specific and sets the agenda for the rest of
the
EIA study process.[3]
11. The technical memorandum applicable in this case is
the
Technical Memorandum on Environmental Impact Assessment Process issued by the Secretary and published in the
Gazette of 16 May 1997 (“TM”). It is a substantial document of 83 pages which include 22
annexes. The project profile of the Project (“Project Profile”) with the title “Technical Study
on
Partial Development of Fanling Golf Course Site – Feasibility Study” was submitted by CEDD to the DEP on 29
May
2019.
(4) Consultation on the project profile
12. Under s 5 the DEP has to forward a copy of the
project profile to the Advisory Council on the Environment (“ACE”), a non-statutory advisory body on
matters relating to environmental protection and conservation. Its chairman and members are
non-Government
officials drawn from different sectors in the community. A day after lodging the project profile with
the
DEP, the project proponent has to advertise its availability to the public. Within 14 days of the
advertisement, the ACE and any person may comment on the project profile. The DEP has to consider any
comments received in drawing up the study brief. See ss 5(2)(c), 5(3) and 5(6).
13. Further, within 14 days of receiving the application,
the
DEP may request the applicant (i.e. project proponent) to give further information concerning the project
profile. The DEP may also require the applicant to advertise the availability of the additional
information or details relating to the information. See ss 5(4) and 5(5).
14. In the present case, CEDD duly advertised in
newspapers to
inform the public that the Project Profile was available for inspection for a period of 14 days (30 May to
12
June 2019). During this period, the DEP received a total of 13 written public comments from the Club
and
others, raising concerns on the impact of the Project on various matters. We shall refer to the Club’s
submission at this stage as the Club’s “Project Profile Submission”.
(5) The study brief
15. Under s 5(7), the DEP has to issue the EIA study
brief within 45 days of receiving the application or further information. The study brief in this
case
(“SB”) was issued on 9 July 2019. The SB is also a substantial document of 47 pages which
include
14 appendices, setting out detailed requirements for the EIA study. A project proponent may appeal to
the
EIA Appeal Board against the content of the study brief (s 17(1)(a) & (i)). CEDD did not
lodge
any appeal against the SB in this case. Like the Project Profile, the SB was placed on the register
kept
by the DEP for public inspection pursuant to s 15.
(6) The preparation and submission of the EIA report
16. The next stage is the preparation of the EIA report by
the
project proponent and its submission to the DEP. There is no prescribed time for this step, but the
report
has to be prepared in accordance with the technical memorandum and the study brief: s 6(1).
Depending
on the project, this may take a substantial period of time. In the present case it took over 33 months
after the SB was issued for the report to be prepared and submitted.
17. On 30 September 2019, CEDD appointed a consultant, WSP
(Asia) Limited (“WSP”), to undertake the technical study and prepare the EIA report.
18. Although the Project covered the entire 32 ha of
the
Land, by 2020 there was already a broad consensus among various Government departments and the consultant
that
urban development would be confined to one of four sub-areas into which the Land was conceptually divided,
namely, Sub-Area 1, with an area of 9.5 ha lying at the northern tip of the Land and covering
three
holes of the Old Course as well as an open air car park, football and tennis courts and staff accommodations
of
the Club, while Sub-Areas 2, 3 and 4, assessed to be too ecologically sensitive, would be preserved as
a
public park with minimal development.
19. On 22 April 2022, CEDD submitted the EIA report for
the
Project (“EIA Report”) to the DEP pursuant to s 6(2).
(7) DEP’s decision under s 6(3)
20. After receiving an EIA report, the DEP has to decide,
within 60 days, whether it meets the requirements of the study brief and the technical memorandum:
s 6(3). If he does not issue a decision within 60 days, he is taken to have decided that the
report
meets those requirements: s 6(5). The DEP’s decision that the report meets the requirements leads
on
to the next stage, that is to say, consultation with the ACE and the public: s 6(4) & (7) and
s 7.
21. In the present case, the DEP decided that the EIA
Report
did meet the requirements of the SB and the TM. Pursuant to s 6(4), he notified CEDD by letter of
17
May 2022 that the EIA Report was suitable for public inspection and requested CEDD to make it available for
public inspection in accordance with published guidelines.
(8) Consultation on the EIA report
22. What follows within the statutory process is
consultation
on the EIA report. The project proponent has to make the report available for public inspection for 30
days and advertise, as the DEP may require, such availability once every 10 days: s 7(1) &
(2).
Members of the public may give written comments on the report before the period of public inspection
expires:
s 7(2)(c). The ACE may give any comments it has on the report within 60 days of receiving a copy
of
the report: s 7(5).
23. There is also a provision in s 7(3) that the DEP:
“ shall require an applicant to readvertise 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 [i.e. Part II,
consisting of ss 4‑8] or a direction that the Director gives to an applicant under this section unless
the
Director is satisfied that the failure is not significant.”
24. In the present case, advertisements were published on
20 May 2022 for public inspection of the EIA Report for 30 days starting from that date.
There
was no re-advertisement or extension directed under s 7(3). During the inspection period the DEP
received a total of 1,451 public comments (including those from the Club), which were provided to the ACE on
5
July 2022 for their consideration. Following the nomenclature below, we shall refer to the Club’s
comments
on the EIA Report as its “Statutory Submission”.
25. The EIA Report was not given to the ACE at the start
of
the period of public inspection, but well after it ended, on 30 June 2022 (so that the 60‑day period for the
ACE
to comment on it would expire on 28 August 2022). The EIA Subcommittee of the ACE met on 18
July
2022 to discuss the report as well as the Club’s Statutory Submission. The Subcommittee could not
reach a
consensus but agreed to invite CEDD to attend the full Council meeting and provide additional information on
a
number of issues.
26. On 5 August 2022, CEDD submitted supplementary
information
dealing with the comments of the Subcommittee.
27. On 8 August 2022, the EIA Report was discussed at
the
254th meeting of the ACE. Due to time constraints, the meeting was adjourned. On
18
August, CEDD submitted supplementary information in response to the issues raised at the ACE meeting. In
the
resumed meeting on 19 August, the ACE completed its discussions and, on 24 August, provided the DEP with its
comments on the EIA Report in a letter that stated as follows:
“ … While understanding that the report had met the requirements set out in the [TM],
relevant
Guidance Notes … as well as the [SB], 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 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 …”
A list of eight items was then set out, which was substantially reproduced in the DEP’s request to CEDD for
additional information referred to in §29 below.
(9) DEP’s request for further information
28. The next stage is for the DEP to consider whether he
has
all the information he requires to decide whether to approve the EIA report. If not, he may (but only
if
comments have been received from the public consultation or the ACE), within 14 days of the expiry of the
public
inspection period or the receipt of comments from the ACE, whichever is later, ask the project proponent to
give
him the information he requires: s 8(1) & (2).
29. In the present case, based on the ACE’s list referred
to
above, the DEP asked CEDD for further information pursuant to s 8(1) by letter dated 31 August 2022
seeking, as summarized by the judge:
“ (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.”
30. The letter also stated that the information was sought
for
the DEP to decide whether to approve the EIA Report under s 8(3) and that the information provided
would
“form part of the EIA report” and would be uploaded to the department’s EIAO website for public access.
(10) The supply of further information
31. The statute imposes no time limit for the project
proponent to compile and supply further information in response to the DEP’s request under
s 8(1). In
this case, CEDD took 7.5 months and, on 18 April 2023, submitted the information requested (“Additional
Information”) in draft to the DEP and ACE. Responding to items 1 to 4 and 6 to 7 of the DEP’s
request, the Additional Information contained an additional bird survey, an additional moth survey, details
of
the previous bat survey, tree compensation and management plans, a hydrological impact assessment, and a
shading
impact analysis. In relation to item 5, however, no revised layout plan was put forward in the
Additional
Information, the reason given being that there would be adverse impact on the scale of public housing and
range
of commercial and public facilities if the woodland in question was to be preserved.
32. The draft Additional Information was placed online and
came to the notice of the Club. On 25 April 2023, the Club wrote to the DEP requesting an opportunity
to
submit written comments on the information and also asked the DEP to confirm whether he would consider such
written comments. The DEP did not reply. The Club nevertheless provided its comments to the ACE
on 2
May 2023 and to DEP on the next day. We shall refer to these comments as the Club’s “Response to
the
Additional Information”, which included (as summarised by the judge):
“ (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 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;
(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.”
33. The ACE held a meeting on 3 May 2023 to consider the
draft
Additional Information. While the chairman did invite CEDD and EPD to address the Club’s comments,
from
the minutes the judge observed that the Club’s Response to the Additional Information – provided to the
members
on or just prior to that day – “(though briefly referenced) had not really been taken into any proper
consideration”.[4]
34. In a press statement issued following the meeting, the
ACE
indicated that its members considered that, for six of the eight topics (namely, bird survey, moth survey,
bat
survey, tree compensation and management plans, hydrological impact and shading impact), the Additional
Information was in general sufficient to establish the conclusions of the EIA Report. As to the other
two
topics (detailed layout plan and a grave), members agreed that the project proponent had not fully addressed
the
ACE’s 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 that would preserve the 0.39 ha of
woodland. The ACE’s views were formally sent to CEDD by letter on 10 May 2023.
35. On 4 May 2023, CEDD formally submitted the Additional
Information to the DEP pursuant to his request under s 8(1).
(11) The DEP’s decision on the EIA report
36. Under s 8(3), the DEP shall, within 30 days of
(a) the expiry of the public inspection period, (b) the receipt of comments from the ACE, or
(c) the receipt of information under s 8(1), whichever is the later, make a decision on the
environmental impact assessment report for the designated project. The DEP may approve it, approve it
with
conditions, or reject it. The deadline in this case was 3 June 2023, being 30 days from the DEP’s
receipt of the Additional Information.
37. In reaching his decision under s 8(3) the DEP has
to
be guided by the TM (s 16(4)). TM §4.5 provides:
“ 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.”
38. Eventually, on 11 May 2023, the DEP decided to approve
the
EIA Report with conditions (“Decision”). The DEP’s letter to CEDD of that date stated:
“ 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.”
39. Annex 1 to the letter set out the conditions of
approval (“Conditions”) as follows:
“ (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 …”
40. The body of the letter went on to refer to the revised
Layout Plan and the detailed Landscape and Visual Plan required by the Conditions and stated:
“ 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.”
41. The letter also added:
“ In addition, recommendations from the ACE are contained in Annex 2 for your attention and
action.”
The ACE’s recommendations (“Recommendations”) were as follows:
“ (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.”
42. The approved EIA Report was placed on the register in
accordance with s 8(5).
(12) Subsequent events
43. Two matters that occurred after the Decision are
relevant
to this appeal. Both of these matters feature in the DEP’s argument, discussed below, that the
judicial
review was academic and should not have been entertained.
44. First, Schedule 3 to the EIAO was amended, with effect
from 30 June 2023.[5] The original item 2
was
deleted, and item 1 was amended to:
“ An urban development or redevelopment project covering an area of more than 50 ha.”
45. Secondly, at the time of the TFLS’s study, the Land
was
held by the Club on a private recreational lease from the Government for a term expiring at the end of
August
2020. Because the Government accepted the recommendation to study the development of the Land, the
lease
was, upon its expiry, replaced by a short-term tenancy for a term ending on 31 August 2023. Upon
the
expiry of that tenancy, 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, with the primary intention
that
about 22 ha of it (Sub-Areas 2, 3 and 4) 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, though the Land has continued to be made available to the Club under licence arrangements for
periods when international golf championship tournaments require use of all three courses at FGC.
C. The judicial review proceedings
46. Shortly after the Club filed an application on 21 July
2023 for leave to apply for judicial review of the DEP’s Decision, Coleman J granted leave. On 24
August
2023,[6] the judge granted an interim stay of
the
Decision pending judicial review but made clear that it would not prevent CEDD from conducting a review of
the
Project as required by the Conditions provided it did not involve any construction works at the site or
result
in any environmental damage.
47. The Club advanced four grounds for judicial review as
follows:
(1) Ground 1 contends that the Additional Information supplied by CEDD in response to the
DEP’s
request was, by reason of its scope, nature and significance, required to be put out for public
consultation, and that the failure to do so rendered the Decision unlawful and the process by which it
was
reached unfair. We shall call this the “Consultation issue”.
(2) Ground 2 contends that the DEP acted in breach of duty, unfairly and unreasonably in
failing
to take into consideration the Club’s Response to the Additional Information. We shall refer to
this
as the “Consideration issue”.
(3) Ground 3 argues that the Decision was ultra vires because the EIA Report did not
comply
with the requirements of the TM and the SB. We shall refer to this as the “Compliance
issue”. It is said that no rational decision-maker, properly directing himself, could have
approved the EIA Report, and that the DEP failed to take into account relevant matters and took into
account
irrelevant matters. This ramulose ground was advanced with reference to 11 specific topics,
namely: (a) Old and Valuable Trees; (b) tree survey
and
compensation; (c) hydrology and Chinese swamp cypress; (d) cultural heritage;
(e) bats; (f) moths; (g) Northern
Metropolis;
(h) waste; (i) noise (with two sub-topics relating to the widening of Fan Kam Road and the
golf course as a noise-sensitive receiver); (j) drainage–sewage capacity; and (k) land
contamination. Two other matters, shading impact and air quality, were mentioned in the
papers
but not pursued at the hearing below as part of this ground.[7]
(4) Ground 4 has two limbs:
(a) Ground 4A argues that the Conditions imposed by the Decision are such that the approval
supposedly given was in reality no approval at all. They seek substantial revisions to the Project
which should have been subject to consultation with the ACE and the public. It is also said that
the
Conditions were impermissibly vague. We shall call this the “Conditions issue”.
(b) Ground 4B complains that the DEP irrationally failed to impose any condition in his
Decision
requiring CEDD to give effect to the mitigation measures identified in the EIA Report, effectively
rendering
them voluntary at its option.
48. In a very detailed and comprehensive judgment,
Coleman J rejected the DEP’s argument that the application for judicial review was academic, and went
on to
find that Ground 1, Ground 2, Ground 3 (except in relation to drainage–sewage capacity, noise and land
contamination) and Ground 4A were established. By way of relief, the judge quashed the Decision
and
awarded costs to the Club. In very brief terms, his Lordship’s reasons were as follows:
(1) The statutory scheme is premised on the EIA report containing all necessary assessment to
permit meaningful public participation within the time-limited process. The Additional Information
subsequently supplied by CEDD contained materials which could and should have been ventilated in the
consultation process and made available for public scrutiny and ACE consideration. The fairness
and
integrity of the process demanded re-consultation after the Additional Information was produced to form
part
of the EIA Report. Ground 1 was established.
(2) If Ground 1 is established, then so is Ground 2. But even if re-consultation is
not
required, it may be unfair and Wednesbury unreasonable for the DEP not to consider the responses
actually provided to the further information received pursuant to s 8(1). In this case the
DEP
was obliged but failed to take into account the Club’s Response to the Additional Information.
Ground
2 was established.
(3) For the detailed reasons set out in relation to each topic, the EIA Report did not meet
the
requirements of various provisions of the TM and the SB in respect of Old and Valuable Trees, tree
survey
and compensation, hydrology and Chinese swamp cypress, cultural heritage, bats, moths, Northern
Metropolis,
and waste. Ground 3 was established in part, but not in relation to drainage–sewage capacity,
noise,
and land contamination.
(4) The Conditions were substantial and extensive in scope. They effectively required
CEDD
to go away and redesign the Project and submit new plans to the DEP for his consideration. Whilst
framed as approved with conditions, the real flavour is that the EIA Report had not actually been
approved. The Conditions contained qualifications which were too vague. Ground 4A was
established.
(5) It was unnecessary for every approval of an EIA report to be coupled with a condition
requiring the mitigation measures identified in the report to be implemented. The approval,
together
with the specific mitigation steps identified, will stand on the register, and the mitigation steps can
be
enforced through the operation of any permit issued. Ground 4B was rejected.
D. The appeals
49. Both the DEP and CEDD appeal against the Judgment.[8] They both contend that the judge erred on
the
Consultation issue, the Consideration issue, the Compliance issue and the Conditions issue
(i.e. Grounds 1,
2, 3 and 4A below), with the DEP further contending that the judge should have refused judicial review on
the
ground that it was academic and served no useful purpose. As was the case below, the arguments
advanced on
appeal on behalf of the DEP have concentrated on the Consultation issue, the Consideration issue, the
Conditions
issue and the “academic” point, while CEDD’s submissions have focussed on the Compliance issue.
50. For its part, the Club has filed a respondent’s notice
raising additional points in support of the judge’s conclusions but also contending that the judge should
have
found the complaints under the Compliance issue established in relation to noise (both sub-topics) and land
contamination. At the hearing, however, Mr Benjamin Yu SC who appeared for the Club
confirmed
that the points relating to FGC as a noise-sensitive receiver and land contamination would not be pursued.
51. Starting with the broader grounds before descending to
the
detailed points on the individual environmental topics, we shall deal with the matters arising in the
following
sequence:
(1) whether the application for judicial review was academic;
(2) the Consultation issue (i.e. Ground 1 below);
(3) the Consideration issue (i.e. Ground 2 below);
(4) the Conditions issue (i.e. Ground 4A below); and
(5) the Compliance issue (i.e. Ground 3 below), with specific reference to nine topics
relevant to these appeals.
E. Whether the application for judicial review was academic
52. There is no dispute on the general principles that the
court will usually refuse to entertain an application for judicial review when the issue involved has become
academic and that the court may in its discretion decline to grant a remedy in judicial review if an order
would
be pointless or serve no practical purpose.
53. Relying on three matters, Mr Rimsky Yuen SC
submitted on behalf of the DEP that the Club’s application for judicial review was academic. We do not
accept this argument.
54. The first is that under the Project, the proposed
housing
development would only take place over an area of 9.5 ha. It is argued that as such, it would not
fall
within a “designated project” as set out in Schedule 3 to the EIAO even before its amendment in
2023.
Like the judge,[9] we do not agree. The
Project Profile submitted was for a project covering the entirety of the Land with an area of
32 ha.
The SB was prepared and issued by the DEP on that basis. The fact that CEDD subsequently decided that
the
housing development would be concentrated within an area smaller than 20 ha does not mean that the
Project
did not have “a study area covering more than 20 ha” (item 1 of Schedule 3 prior to its
amendment).
The EIA Report itself stated that the “Potential Development Area” covers 32 ha and that the Project is
therefore a “designated project” requiring an EIA report.[10]
55. The second matter relied on is that the Club’s
short-term
tenancy came to an end and the Land reverted to the Government after 31 August 2023, which as indicated
has
no intention of operating a golf course there. We do not think this made the judicial review
academic. The Club did not seek to challenge the Government’s decision to take back the Land and to
use it
for purposes other than a golf course. The judicial review was about the validity of the DEP’s
approval of
the EIA Report for the housing development project. There is no suggestion that the Club lacked standing
for
seeking judicial review because it was no longer the tenant of the Land.
56. The third matter is that, as mentioned in §44 above,
Schedule 3 to the EIAO was amended with effect from 30 June 2023. Mr Yuen submitted that
this
has two consequences which render the Club’s application academic. First, the DEP no longer has any
statutory power to consider an EIA report or to approve or reject it. Secondly, the Government can
proceed
with the proposed housing development outside the EIAO regime, i.e. without an EIA report approved under the
Ordinance.
57. In our view neither point renders the proceedings
academic. As to the first, whereas there is provision in s 4(3) of the EIAO concerning the effect
on
an existing project of the addition of a designated project to Schedule 2 or 3, there is no
equivalent provision in relation to an existing project that, by reason of an amendment, ceases to be
a
designated project. Nevertheless, having regard to the other provisions of the EIAO, we are not
persuaded
that the DEP was, by the 2023 amendment, completely deprived of powers with respect to the Project as
Mr Yuen submitted. The trigger for the EIA process is s 5 which provides that a person “who
is
planning a designated project” shall submit a project profile and apply for a study brief. Thereafter
the
process continues, leading eventually to the submission of an EIA report under s 6 and its approval or
rejection by the DEP under s 8(3). The DEP’s duty to consider the report and his power to approve
or
reject it accrue by reference to the expiry of the public inspection period, receipt of ACE’s comments or
receipt of requested further information from the project proponent, whichever is the later. In the
present case all of this occurred prior to 30 June 2023, at a time when the Project was a designated
project. The quashing of the Decision on the grounds complained of would make it a nullity[11] and thus leave the DEP’s duty under
s 8(3) unfulfilled. Nothing in s 8(3) suggests that the DEP can simply forget about an EIA
report submitted for approval once the project it concerns ceases to be a designated project by reason of an
amendment of Schedule 2 or 3. We do not think that the amendment of Schedule 3 has the
effect of removing all accrued obligations and powers.[12]
58. In any event, even assuming that immediately upon the
amendment, the DEP lost all powers to assess any EIA report in relation to the Project because it ceased to
be a
designated project, the fact remains that he had approved the EIA Report with conditions. There was a
live
question whether the Decision should be quashed and the EIA Report taken off the register as a
consequence. Mr Yuen submitted that after the amendment, the EIA Report, albeit registered, has
no
legal effect and has “at most, reference value”. We do not think this accurately states the legal
position. EIA reports placed in the register become, as it were, public goods under the EIAO. Where
relevant, they can be relied upon by any person for the purposes of applying for permission to apply
directly
for an environmental permit without obtaining a study brief and preparing another EIA report (s 5(9)),
or
applying for an environmental permit (s 10(1)(b) & 10(2)(e)). Section 11 of the TM
provides
guidance on the use of previously approved EIA reports. As the EIA Appeal Board, chaired by
Mr Barry
Mortimer GBS QC, wrote in Kowloon-Canton Railway Corporation v Director of Environmental
Protection (EIA Appeal Board No. 2 of 2000, 30 July 2001) (“KCRC v DEP”), once
entered in the register, an EIA report “acquires a special status and can be relied upon during the period
that
it remains relevant for other projects.” We can see no basis for suggesting that by the time of the
proceedings below, the EIA Report had become so obsolete or otherwise irrelevant that it could no longer
conceivably be relied upon by anyone for purposes under the EIAO, including CEDD in relation to any
subsidiary
Schedule 2 designated projects on the Land. It follows that a quashing order, even without
leading to
re-consideration by the DEP, was not pointless.
59. This also answers Mr Yuen’s second point, that
after
the amendment the Government could pursue the Project without going through the EIAO process at all.
The
evidence was that, even after June 2023, CEDD was pursuing the Project and seeking to fulfil the Conditions
with
a view to submitting revised plans and measures to the DEP for approval. Further, without presuming
whether or not the Government would make a “U-turn” as the judge described it,[13] the EIA Report and the complaints raised against it in
the judicial review
are plainly matters which the Government at least can and may well take into account in any further
deliberation, even outside of the EIAO regime, on the Project and on the future use of the site. The
judge
was entitled to think that there was sufficient public interest for the matters to be ventilated and, to the
extent required, ruled upon by the court in these proceedings.
60. Mr Yuen placed considerable reliance on R (on
the
application of Edwards) v Environment Agency (Cemex UK Cement Ltd, intervening) [2008] UKHL 22, but
it
concerned very different facts. There was an application to the agency for a permit for activities
involving the use of shredded tyres as fuel. The agency got its in-house experts on air-quality to run
their own computer model and report. The report, produced in January 2003, predicted that the
relevant environmental standards would be breached locally, but the agency decided to grant the permit in
August
2003 nonetheless, taking the view that breaches were unlikely to occur in practice. The local residents,
seeking
judicial review, complained that there was a failure to publish the in-house reports and thus a failure in
properly discharging the duty of consultation. The lower courts accepted there was such a failure, but
found that it was in all the circumstances not a sufficient reason for quashing the permit. In
particular,
since the grant of the permit, there had been reports prepared on the actual emissions from the
plant,
showing they did not exceed applicable standards. In the House of Lords, though the point was not the
subject matter of appeal, Lord Hoffmann (with whom Lord Hope and Lord Walker agreed) said he would not have
held
that there was a common law duty to disclose and consult on the in-house reports (§44). But he also
said,
agreeing with the lower courts, that relief should in any event be refused for the breach of that duty
because
it would be pointless to quash the permit to enable the public to be consulted on out-of-date data based on
predictions when there were reports clearing the actual emissions (§65).
61. The present case is plainly quite different. The
proposed
development has not yet been built. There has not been any assessment of the actual environmental
impact
of that development and there have not been any reports stating that the actual impact meets all relevant
standards. With respect, R (Edwards) v Environment Agency provides no assistance to the DEP’s
argument. On the contrary, the argument is undermined by what Lord Hoffmann said there at §63, that
“in
most cases in which a decision has been found to be flawed, it would not be a proper exercise of the
discretion
to refuse to quash it.” The same point was made in Shiu
Wing
Steel Ltd v Director of Environmental Protection & Airport Authority (No 2) (2006) 9
HKCFAR
478 at §91, where the Court of Final Appeal, having found the EIA report to be non-compliant with
the
technical memorandum and the study brief because of the absence of a particular quantitative risk
assessment,
said that there would have to be some “exceptional reason” to justify refusing to grant judicial review of a
decision to approve it. We do not think that the DEP has shown any exceptional reason why, even if the
court is satisfied that the Decision was ultra vires, it should in its discretion decline to quash
it.
62. For the above reasons we agree with the judge that the
challenge was not academic and that it was not pointless to grant a quashing order. Even if the
application for judicial review had become academic, the judge had a discretion to entertain it: Chit Fai
Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, §20. It seems to us that the DEP
has
not been able to establish any ground that would have entitled this court to interfere with the judge’s
exercise
of discretion to entertain the application.
F. The Consultation issue – whether the Decision should be impugned for
failure to
consult on the Additional Information
(1) The interpretation of the statutory scheme
63. The judge held that the requirements of the EIAO were
breached because the public were not consulted on the Additional Information which in substance formed part
of
the EIA Report and that fairness and integrity of the statutory process demanded there be
re-consultation.
On behalf of the DEP Mr Yuen submitted that the judge erred in law. His argument may be
summarised as
follows:
(1) The EIAO provides a highly prescriptive and exhaustive statutory timetable for public
participation, which deliberately limits public consultation to two specific stages: (i) commenting
on
the project profile (14 days); and (ii) commenting on the EIA report (30 days for the public, 60
days
for ACE). The legislation reflects a clear legislative intent to strike a balance between public
participation and the need for efficient processing of development projects. Notably, the EIAO
contains no provision requiring public consultation on further information supplied under s 8(1),
nor
does it empower the DEP to extend time limits or conduct further rounds of consultation. The
“deemed
approval” mechanism (in both ss 6(5) and 8(4)) – by which the DEP is taken to have given a decision
favourable to the applicant if he has not issued a different decision within the prescribed periods –
reinforces that timetables must be strictly adhered to.
(2) The extent to which the public are to be allowed to participate in the EIA process is
primarily a matter for the legislature. The legislative materials confirm that the EIAO was
designed
to “allow earlier and wider public participation … while keeping it as short and simple as
practicable”. Imposing an extra duty to re-consult on further information would subvert and
undermine
the statutory scheme. As Lord Hoffmann observed in R (Edwards) v Environment Agency, where
the
legislature has comprehensively addressed public involvement, the courts should not impose a broader
duty.
(3) The decision in KCRC v DEP does not assist the Club. That case involved a
project
proponent seeking to introduce entirely new mitigation proposals on appeal to the Appeal Board against
the
DEP’s decisions rejecting the EIA report and refusing an environmental permit, which would circumvent
the
statutory process. Here, the Additional Information merely reaffirmed or elaborated upon existing
findings in the EIA Report – it did not alter the report’s conclusions or introduce new mitigation
measures.
(4) Even before the Additional Information was supplied, both the DEP and the ACE had already
concluded that the EIA Report met the requirements of the TM and the SB. The Additional
Information
was requested only to address the ACE’s concerns that went beyond those legal requirements. In
such
circumstances, there is no basis for finding any common law duty to re-consult, nor was there any
procedural
unfairness in not holding further consultation.
(5) Requiring re-consultation would make it impossible for the DEP to meet the statutory
30-day
deadline under s 8(3), as no power exists to extend time. The judge’s ruling therefore
imposes an
obligation inconsistent with the clear legislative design.
64. We see the force of these submissions but it seems to
us
that, on analysis, the judge’s conclusion is correct.
65. We accept that the statute sets out a structured and
prescriptive regime for public participation, with public consultation at two specific stages: first,
pursuant
to s 5(6), on the project profile; and secondly, pursuant to s 7, on the EIA report. There
is no
express provision requiring another round of consultation on any further information supplied on the DEP’s
request pursuant to s 8(1). Instead, under s 8(4), the DEP has to reach a decision within 30
days. The structure is consistent with the sentiments discernible from the legislative materials[14] that the EIA process should be
streamlined
and checked by time limits so as to strike a balance between protection of the environment and progressing
important development projects efficiently. These two interests were highlighted by the Appeal Board
in
the early case of KCRC v DEP in a passage cited with approval by Tang VP (with whom Hartmann and
Chu JJA agreed) in Chu Yee Wah v Director of
Environmental
Protection [2011] 5 HKLRD 471, §31:
“ There are two main matters of public interest involved. Both are important. The
first
is
the
public interest in the protection of the environment upon which the quality of life in Hong Kong will
increasingly depend. The second is the public interest in ensuring that major designated projects are
brought to fruition in a timely and efficient manner. The time constraints put upon the Director for
steps
in the process and for his decisions show that the Ordinance aims to satisfy both interests. It is
necessary
in the implementation of the process that both should be kept in mind. This is so especially when
major
infrastructural projects (roads, railways, tunnels, reclamation works and the like) which may cause a
variety of adverse environmental impacts are proposed.”
66. Having regard to the detailed structure laid out with
a
purpose of controlling the length and complexity of the EIA process and reducing uncertainty to projects, it
is
understandable that the DEP has placed reliance on Lord Hoffmann’s observation in R (Edwards) v
Environment
Agency (supra) at §44 that “[w]hen the whole question of public involvement has been
considered
and dealt with in detail by the legislature, I do not think it is for the courts to impose a broader
duty.” Similarly, in Ho Loy & Anor v Director of Environmental Protection (HCAL 21
&
22 /2015, 22 December 2016), at §45, Chow J said, generally speaking, compliance with the express
obligations imposed by the EIAO should be regarded as a sufficient discharge of the DEP’s duties in relation
to
the environmental impact assessment process and the court should not readily impose additional obligations
on
the DEP over and above what is expressly required by the Ordinance.
67. Given this carefully calibrated balance in the EIAO,
it
would, we accept, be wrong to hold that a duty to consult the public invariably arises whenever further
information has been requested and obtained by the DEP under s 8(1). To graft upon the detailed
statutory scheme an extra layer of consultation as a general duty would not be justified. But this is
not
what Coleman J did. His Lordship only held that on the facts of this case, the integrity of the
statutory process and fairness required further public consultation on the Additional Information. The
correct analysis leading to that conclusion, which is reflected in the judge’s reasoning, seems to us to be
as
follows.
68. The starting point is that the statute imposes a
general
duty to consult on the EIA report. But not every EIA report submitted to the DEP will necessarily go
out
directly for consultation. This only applies where the DEP decides (provisionally) that the assessment
“meets the requirements of the environmental impact assessment study brief and technical memorandum”
(s 6(3)-(4)) and the report is thus “suitable for public inspection” (s 7(4)). As the Appeal
Board stated in KCRC v DEP, should the EIA report not meet the requirements of the study brief and
technical memorandum in any way, the DEP should not allow it to be exhibited but should indicate the defects
(see s 6(6)) so that the report may be amended and re-submitted; otherwise “the following public
consultation and submission to ACE will be a waste of time and money”, since the report cannot be approved
under
s 8(3) unless it meets those requirements.
69. As a matter of public law, where consultation is
undertaken, whether voluntarily or as required by statute, it has to be done properly and fairly:
PCCW-HKT
Telephone Ltd v Telecommunications Authority [2008] 2 HKLRD 282, §12. Where the consultation
is
mandated by statute, the content of the attendant duty of procedural fairness will be informed by the
objects of
the statute in requiring consultation and by its place in the entire statutory process. In the context
of
the EIAO, as the judge said, the premise of the statutory scheme is 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. The process is intended to be “highly transparent” with
“full opportunity” for stakeholders including members of the public concerned about environmental issues to
comment and state their views (Leung Hon Wai v Director of Environmental Protection (2015) 18 HKCFAR
568,
§26). The fact that there is ordinarily only one chance for the public to comment on the report makes
it
all the more important that it should be as comprehensive as required.[15] Further, the study brief, which sets the agenda for the process
that
follows, has itself been prepared after considering comments from the public on the project profile
(s 5(6)) and reflects the relevant concerns of the public. In particular, therefore, the EIA
report
ought to contain such information as is necessary in order for the public to express meaningful views on the
project proponent’s response to those concerns. Mr Yuen submitted that common law principles can
be
impliedly modified by statute, but we do not understand him to be saying that the principle that the
consultation on the EIA report mandated by ss 6 and 7 must be fair has been displaced.
70. Where a deficient EIA report is exhibited for public
inspection, the consultation may be unfair and defective because it is conducted without sufficient
information
being provided to the public, contrary to the common law requirements of fair consultation, and possibly
also
because it is based on an erroneous decision under s 6(3) and (4) that the report meets the
requirements of the technical memorandum and the study brief when in fact it does not.
71. Whilst, after the consultation, further information
that
remedies the deficiencies may be requested and supplied under s 8(1), this does not in itself redress
the
defect in the prior consultation; otherwise public consultation could be circumvented in part by critical
material being provided only afterwards. In our view it could not have been the legislative intention
for
public participation – a central pillar to the statutory scheme – to be side-stepped in this way.
72. In other words, where the EIA report is deficient, and
matters that could and should have been put out for public inspection as part of the report are only
provided as
further information pursuant to s 8(1), the consultation may consequently be unfair and defective, and
any
decision to approve the report under s 8(3) liable to be quashed for that reason.
73. In such circumstances, instead of requiring
consultation
on the entire report to be re-conducted under s 6, what Coleman J held is that the position may be
salvaged by conducting a further but limited consultation only on the further information provided – a
benevolent interpretation that allows deficiencies in the public consultation to be cured. As the judge
put
it
in his Judgment at §135: “In essence, re-consultation will arise where a prior step in the statutory scheme
or
process has not been properly completed.” It arises as an opportunity to cure any prior defect in the
process, rather than out of any obligation as such to consult on the further information. It is not
the
DEP’s position, as we understand it, that as a matter of law no such defect is capable of being cured.
An
example of a defective environmental report being cured by subsequent material is Cogent Land LLP v
Rochford
District Council [2013] 1 P & CR 2, where Singh J held that a defect in the adequacy of a
report prepared for a strategic environmental assessment required by EU directive may be cured by the
production
of supplementary material by the plan-making authority, subject to there being consultation on that
material. His reasoning was approved by the UK Supreme Court in R (Friends of the Earth Ltd) v
Secretary of State for Transport [2020] UKSC 52 at §66. Both cases were cited by
Coleman J in
his Judgment at §34. The statutory scheme with which we are concerned is of course different, but as a
matter of general principle we see no reason why an inadequacy or defect in a report prepared under the EIAO
cannot equally be remedied by the production of and consultation on supplementary material.
74. Does the Ordinance either provide for or preclude such
supplementary or remedial consultation? At the hearing reference was made to s 7(3) (quoted in
§23
above). The judge appears to have placed some reliance on it,[16] but Mr Yu made clear that the Club does not directly rely on the
power to
re-advertise under s 7(3). For our part we also doubt whether s 7(3), read in its context,
is
apt to apply to consultation on further information obtained subsequently under s 8(1), as opposed to
consultation on the report itself. Nor is it clear that every defect in the original consultation can
properly be described as a failure to comply with a requirement under Part II of the EIAO as referred to in
s 7(3).
75. But just as the Ordinance does not expressly provide
for
re-consultation on the further information, neither does it preclude it. In the present case, the ACE
was
in substance consulted on the Additional Information, even though there was no provision for this in the
EIAO.
Nor does the limited time of 30 days under s 8(3) implicitly preclude consultation. Even
without
using the method of providing the further information in draft (as was adopted in the present case), one
should
not assume that no consultation can possibly be done in time on the further information, which ought not to
have
been of a fundamental and substantial nature in the first place. In the present case, the Club was
able to
compile its Response to the Additional Information within 8 business days.
76. Mr Yuen referred to s 5(4)-(5) which provide
that, at the earlier stage of applying for the study brief, the DEP may request for further information
concerning the project profile, and may require the applicant to advertise the availability of the
additional
information. In comparison, he observed, there is no similar provision in s 8 for advertisement
following the provision of further information. In our view this does not support his argument.
The
s 8 process which follows consultation on the report presupposes that the report was correctly cleared
by
the DEP as suitable for consultation (ss 6(3), 6(4), 6(6), 7(1), 7(4)) and that the consultation was
fair. Little can be read into the absence of provision for further consultation where the original
consultation was deficient.
77. The judge derived some support from KCRC v
DEP.[17] The facts of that case are
different, but
in our view it sheds light on the principles involved. There, after public inspection of the EIA
report,
further information was sought under s 8(1), which became an appendix to the report, but the DEP
ultimately
rejected the report under s 8(3). In the appeal, the applicant put forward new assessments and
proposals in response to the DEP’s reasons for rejecting the report. The applicant argued that the
Appeal
Board had jurisdiction to entertain the new evidence and approve the report with conditions under
TM §4.5.2
(quoted in §37 above). The applicant submitted that the §4.5.2 procedure takes place after the time
for
public consultation has come to an end and the applicant was not circumventing this consultation, noting
that
“the public has no participation when further information is provided to the Director on his request under
section 8(1).”[18] In response to this
argument the Appeal Board stated:
“ The basic principle is that major proposals which are not assessed in the report must at
least be the subject of a further assessment and an amended report. Normally this will require further
exhibiting of the amended report for public consultation and re-submission to ACE.”
After noting that there is a discretion under §4.5.2 to approve the report with conditions instead of
insisting
on amendments to the report but that it is a “residual” discretion, a “safety net” provision, the Appeal
Board
continued:
“ It allows approval and therefore allows projects to go ahead in a timely way after a
relatively minor oversight, omission, change of circumstance and the like without unnecessarily
requiring an
amendment which may entail the report being re-exhibited and returned to ACE for comments.
Public participation in the process prior to the Director’s approval or
rejection
of the report is an important step in the process. The discretion under the section is available
and
should be used to avoid unnecessary return to the public arena. Without it the process could
become
legalistic and inefficient. In other words the power is to be used to preserve the integrity of
the
process not to circumvent it.”
78. These comments were directed in that case at the
discretion under TM §4.5.2. But the emphasis on public participation in the process is in our
view
equally applicable in the present context. The power to seek further information under s 8(1) and
to
approve the report after receiving such information must likewise be used in a way that preserves the
integrity
of the process not to circumvent it. As explained above this may entail consultation on the further
information supplied where fairness seen in the context of the statutory scheme requires it.
(2) The nature of the Additional Information
79. If this is the correct analysis of the position under
the
statutory scheme, the question that arises in a given case is whether, on the facts, the process of public
inspection and comment would be deficient and unfair without further consultation on the supplementary
information. This requires an examination of the further information supplied, in comparison with what
was
and was not contained in the original report.
80. By definition, the information requested under
s 8(1)
is not contained in the exhibited report and is something new. Again, by definition, it is information
that
the
DEP requires for the purpose of deciding whether to approve the report, and is therefore, in that
sense,
of significance. It may well be something that arises out of or responds to consultation comments of
the
public or the ACE. Indeed the DEP can only request further information where such comments have been
received: see s 8(2). But all this does not show that there must be further consultation;
otherwise
it becomes a requirement superimposed on s 8(1) in every case, which does not seem to us to be the
legislative intention. Whilst public participation is important, there is nothing in the Ordinance to
suggest that the public must have the “last word” in the process. On the contrary, TM §4.5.1(c)
(quoted in §37 above) requires an EIA report to address relevant environmental issues raised by the public
and
the ACE during the public inspection period. Since the report precedes public inspection, this
requirement
may entail further information being requested by the DEP under s 8(1). Thus the Appeal Board
advised
in KCRC v DEP at pp 24-25 as follows:
“ After the report has gone for public consultation and submission to ACE and comments have
been made, the Director may seek further information from the proponent under Section 8(1). This
section
provides that he
‘ may … ask an applicant in writing to give him the information he requires to decide
whether
to approve a … report.’
This enables the Director to ask for specific information which he requires for
his
decision. Therefore, it may not always be helpful either to the applicant, or to the Director’s
decision making process, if he simply provides the comments and asks for further information based upon
them. The proponent’s task under Section 4.5.1(c) of the Technical Memorandum is that his report
should address ‘relevant environmental issues’ raised during the public inspection period. It
would be
helpful if at this stage the Director indicates what relevant information he requires for his decision.”
The fact that further information is thus provided which is not in the original report does not in itself
mean
that there should be further consultation on that information.
81. Nor, in our view, can much weight be attached to the
fact
that the DEP directs that the further information be treated as part of the approved report to be placed on
the
register. This treatment ensures that the totality of the material emanated from the applicant, once
approved, is put on the register and accessible to the public, and should not in our view be read as an
admission by the DEP that the information should have been exhibited for consultation.
82. On the other hand, contrary to Mr Yuen’s
submissions,
the mere fact that the further information supports or affirms rather than changes the conclusions in the
EIA
report does not imply that no further consultation will be necessary. Depending on the circumstances,
the
assessments and methodologies may be debatable and a proper subject matter for consultation.
Ultimately it
is a question of whether, given the object of public participation in the EIA process, fairness requires
that
there be consultation on the further information.
83. In the present case, the judge concluded that the
Additional Information did contain information which ought to have been substantially included within the
original EIA Report, giving hydrological impact assessment (“HydroIA”) as an example.[19]
84. We agree that this is a clear example that supports
the
judge’s conclusion. The topic of hydrology and Chinese swamp cypress (“CSC”) is dealt with in
greater detail below in §§161-205 as a sub-head under the Compliance issue. For present purposes it is
sufficient to note the following:
(1) §3.2.1 of the SB states that the EIA study must address the “key issues” there described,
including (as set out in (viii)) potential ecological impact on species of conservation importance
expressly
including CSC.[20] Appendix H to the
SB,
with the title “Requirements for Ecological Impact Assessment (Terrestrial and Aquatic)”, specifies that
the
Project must avoid or minimise impact on species of conservation importance, of which CSC is admittedly
one. §1 and §2(vii) state that the assessment must, “using suitable methodologies”, “identify and
quantify as far as possible” the potential ecological impact of the Project, including indirect impact
through changes in “hydrodynamics properties” and “hydrology”. §3.4.9 of the SB states that the
applicant must follow the criteria and guidelines for evaluating and assessing ecological impacts as
stated
in Annex 16 of the TM.
(2) Annex 16 of the TM states that the main objective of ecological assessment is to
provide
sufficient and accurate ecological data to allow a complete and objective identification, prediction and
evaluation of the potential ecological impacts. Based on baseline information gathered, the
assessment
has to identify and predict potential ecological impacts. “Predictions must be made with sound
scientific basis.” Whilst value or professional judgment may be involved, the significance of an
impact
must
be evaluated “as systematically as practicable using well-defined criteria”.[21]
(3) Despite these requirements in the SB and the TM, the EIA Report, whilst recognising CSC is
a
globally critically endangered species, deals with hydrological disruption in two paragraphs[22] without any study. They are
quoted in the Judgment at §276. Essentially what was stated is that effects on hydrology and
groundwater table were “not expected” and potential ecological impact was considered “insignificant”
because
there would be no deep tunnel or deep foundation in the Project, there would be no building on
Sub-Areas 2 to 4, and compensation planting would be done in Sub-Areas 2 and 3, rather than in
Sub-Area
4 (where the CSC are located).
(4) Mr Yuen submits that these are “substantive reasons”. But the fact is that
there
was no data provided, no quantification of any impact or sensitivity of CSC to hydrological changes, and
no
real study or assessment carried out. We agree with the judge that the conclusion in the report
was
simply an assertion, without analysis or assessment.[23]
(5) Clearly the ACE was not satisfied with the EIA Report in this respect. At its
meeting on
18 July 2022, the EIA subcommittee expressed concerns and asked for supporting data on hydrology
impact. Even after CEDD provided some supplementary information, the ACE at its full council
meeting
considered that a “detailed analysis of the hydrological impact” was required, leading to the DEP’s
decision
to seek further information under s 8(1).
85. The judge held that, so far as HyrdoIA and CSC are
concerned, even the Additional Information produced in May 2023 did not meet the requirements of the SB and
the
TM. As will be seen below, we reject the challenge against this holding. It follows, for even
stronger reasons, that the original EIA Report itself did not comply with the SB and the TM. It did
not
contain any real assessment of hydrological impact and the ecological impact on CSC. The public was
not
provided with any such assessment on which to give meaningful comments. The EIA Report failed to pass
the
requirements of fair consultation at least in this respect. The Additional Information, produced in an
attempt to meet the deficiency, ought to have been exhibited for public comments, to redress that
unfairness.
86. In its respondent’s notice, the Club contends that the
other matters in the Additional Information should also have been exhibited for supplementary
consultation. It is unnecessary for us to deal with them.
87. For the above reasons, the appeals fail in relation to
the
Consultation issue.
G. The Consideration issue –
whether
there
was a public law error in failing to consider the Club’s Response to the Additional Information
(1) On the basis there ought
to have been further
consultation on the Additional Information
88. Under Ground 2 of the judicial review, the Judge held
that
if Ground 1 is established, so that there ought to have been further consultation on the Additional
Information, then the Club’s Response to the Additional Information necessarily had to be taken into account
by
the DEP in deciding whether to approve the report under s 8(3). We do not understand Mr Yuen
to
dispute this reasoning, which seems to us to be correct. One of the established requirements of proper
consultation is that the responses received must be conscientiously taken into account in reaching the
decision
about which the public body is consulting: Lam Yuet Mei v Permanent Secretary for Education and Manpower
of
the Education and Manpower Bureau [2004] 3 HKLRD 524, §50; R (Moseley) v Haringey London Borough
Council [2014] UKSC 56, §25.
(2) Assuming there was no
duty to consult on the
Additional
Information
89. What is the position if the public have provided
responses
to the further information supplied under s 8(1) even though the scope and nature of the further
information is such that the DEP was not obliged to and did not in fact undertake a supplementary
consultation? In the light of our conclusion on the Consultation issue, the question does not arise in
this case but we shall state our views as the matter has been fully argued.
90. The DEP submits that TM §4.5.1(c) (quoted in §37
above)
expressly limits the DEP’s consideration to environmental issues raised by the public and the ACE “during
the
public inspection period”. This reflects the legislative intent that public consultation should be
confined to what is expressly stipulated in the EIAO. Requiring consideration of unsolicited responses
submitted voluntarily after the consultation period would subvert the statutory scheme. Under
s 8(3),
the DEP has only 30 days from receipt of additional information to reach a decision. There is no power
to
extend this deadline. Requiring the DEP to consider late responses would make compliance impossible.
91. TM §4.5.1(c) does not in our view have the effect of
precluding the DEP from considering comments on the further information. In fact, there is no dispute
that
despite TM §4.5.1(c), the DEP can and did in this case take into consideration the ACE’s comments on the
Additional Information.
92. Neither the EIAO nor the TM contains any provision
precluding the DEP from taking into account such comments. Equally neither contains any provision
requiring him to do so. That being the case, as a matter of general principle, such comments fall
within
the category of matters “to which the decision-maker may have regard if in its judgment and discretion it
thinks
it right to do so”: Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, 439,
per Godfrey JA. Depending on the facts, however, a matter may be so obviously
material to
a decision that it would be irrational not to take it into consideration.
93. On the facts in this case, the judge held that it
would be
Wednesbury unreasonable not to take account of the Club’s Response to the Additional
Information.
They were materials prepared by qualified and independent consultants addressing data on the central
questions
to be addressed, and directly in response to materials of a similar nature in the Additional Information
which
had not been exhibited for public comment but which had been requested by the DEP to enable himself to make
the
required decision. There was no lack of time to consider the materials, given that the Club presented
them
on 3 May 2023, even before CEDD formally submitted the Additional Information to the DEP initiating the
30-day period. There is no real ground advanced to challenge this conclusion of the judge.
(3) Whether the Club’s Response to the Additional Information was in
fact taken into consideration
94. Separately, Mr Yuen submits that as a matter of
fact,
both ACE and the DEP did consider the Club’s Response to the Additional Information. The DEP
maintained
his legal position that he was not obliged to do so, but nonetheless reviewed the Club’s submissions.
95. The judge rejected this contention below. He
noted
that the Decision itself identifies that whilst the Additional Information was taken into account, the
Club’s
response was not. The evidence goes no further than saying that the EPD “conducted an internal review
of
[the Club’s Response to the Additional Information] before recommending DEP’s approval” of the EIA
Report.
The exhibit relating to this review shows that a line-to-take document was prepared at the time which
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 press conference “if pressed”. There was ample basis for the judge to find as a
fact
that the Club’s response had not been taken into account. There is no basis for this court to
interfere
with this finding.
96. For these reasons, the appeals also fail in relation
to
the Consideration issue.
H. The Conditions issue –
whether the
conditions imposed were improper and unlawful
97. In the Decision, the DEP stated that the EIA Report
was
approved subject to the Conditions, which have been set out in §39 above. In brief, they require,
among
other things: (a) revision of the Layout Plan to minimise tree felling and preserve a 0.39 ha
woodland
“as far as practicable”; (b) submission of a detailed Landscape and Visual Plan with stepped building
heights; (c) development of a “spongy city” concept to protect groundwater; (d) a tree management
plan; and (e) incorporation of the Additional Information into the approved report.
98. The judge acknowledged that the DEP has a broad
discretion
under s 8(3) of the EIAO to approve an EIA report with conditions provided they serve the objectives of
the
EIAO, but he found the Conditions problematic for three main reasons. First, they effectively require
CEDD
to go back and redesign significant aspects of the Project, suggesting that the EIA Report was not truly
approved. Second, the Conditions contain vague and subjective terms (e.g., “as far as practicable”,
“substantially affecting”) that lack objective criteria for compliance, making enforcement difficult.
Third, the condition requiring submission of revised plans for the DEP’s approval circumvents the statutory
consultation process, depriving the public and ACE of the opportunity to comment on material changes.
99. On behalf of the DEP Mr Yuen contended that the
judge
erred in impugning the Conditions. He submitted:
(1) There is no express statutory limit on the nature of the conditions that the DEP may
impose
when approving an EIA report under s 8(3) EIAO. Section 40(2)(b) of the Interpretation
and
General Clauses Ordinance (Cap 1) provides that where any Ordinance confers power to grant
approval,
such power includes the power to impose reasonable conditions. The touchstone is rationality.
(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.[24]
(3) The premise for assessing this ground is that the EIA Report (even without fulfilling any
further conditions) already complied with the TM and SB. An EIA report enables the DEP to
determine
the “worst case scenario” pursuant to TM §4.3.1(b)(v). The Conditions were imposed as an
additional
safeguard to improve the Project from an environmental perspective – to make something already good
enough
even better. Conditions (a), (b) and (c) were prerequisites for commencement of construction, not
for
approval of the EIA Report.
(4) The Conditions do not entail redesigning the Project. Condition (a) aims to
minimise tree-felling and preserve woodland; Condition (b) addresses landscape and visual
impact.
Both merely reduce residual environmental impacts.
(5) The imposition of conditions of this nature is a common practice of the DEP. As far
as
government projects are concerned, there is an established mechanism, in the funding approval procedures
of
the Public Works Subcommittee,[25] for
the
DEP to clear the environmental implications of a project and thus ensure that the required mitigation
measures are in place.
(6) There is nothing in principle that prevents the DEP from imposing conditions of an
aspirational nature.
100. Despite these arguments, we do not think that the
judge
erred in upholding this ground of challenge.
101. As a matter of general principle, whilst the
statutory
wording is general, suggesting that the discretion on the part of the DEP to impose conditions is wide,[26] it is not in dispute that a condition
may be invalid if it lacks certainty or finality. Nor does the DEP dispute that an approval
with
conditions is invalid if the conditions require or permit a fundamental alteration of the project that is
the
subject matter of the EIA report.
102. These constraints arise from a correct appreciation
of
the statutory scheme itself. Under s 8(3) of the EIAO, the DEP is empowered to do one of three
things: approve a report, approve it with conditions, or reject it; and he must do it within 30 days of
(i) the expiry of the public inspection period, (ii) the receipt of comments from the ACE, or
(iii) the receipt of further information under s 8(1), whichever is the later. This is a
decision finally disposing of the application for approval of the report initiated by the applicant under
s 6(2). An appeal from a decision not to approve an EIA report lies to the Appeal Board under
ss 17(1)(c) and 17(1)(v). A condition that renders an approval lacking in finality, such as one
that
in substance defers to a later stage the final decision subject to a potential revision of the project in a
fundamental aspect, seems to us to fall outside the contemplation of the Ordinance.
103. Further, TM §4.5.2 (quoted in §37 above)
envisages
that an EIA report may be approved with conditions that require amendments to be made, but only if the
amendments “will not affect the validity of the assessment and the overall results and conclusions of the
report”. Actions required by the conditions imposed necessarily take place after the consultation of
the
public and ACE has ended. If by stipulating conditions, approval is in effect given for a report
subject
to major revisions, the process of public participation that is a central element in the statutory scheme
would
be bypassed. This is the mischief identified by the Appeal Board in KCRC v DEP when it opined
that
TM §4.5.2 is a “safety net”, “to be used to preserve the integrity of the process not to circumvent it” (see
§77
above). It follows that it could not have been the legislative intention for an approval to take
effect as
one for a development significantly different from that for which the EIA study was conducted.
104. On the other hand, as the judge accepted, a
condition
will not necessarily be invalid because it 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. Questions of degree are involved in determining whether a condition is so
uncertain or leaves so much to be decided subsequently as to be outside the power conferred.[27]
105. In the present case Condition (a) called for
CEDD
to revise the Layout Plan with a view to minimising tree-felling and preserving the 0.39 ha of
woodland,
and Condition (b) required CEDD to submit a detailed Landscape and Visual Plan adopting a stepped
building
height profile with a view to reducing the footprint whilst minimising the visual impact. The Decision
itself further stated:
“ 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.”
106. Coupled with two of the Recommendations annexed to
the
Decision, namely (b) and (c) (see §41 above), it is fair to say that CEDD was in effect being told to go
away
and redesign and rethink the Project, and to submit new plans for the DEP’s approval.
107. Although the aims for the re-design were specified
in
Conditions (a) and (b), no parameters were set and no constraints were specified, permitting therefore
a
significant or even fundamental change in the layout of the proposed development. Nor is it clear by
what
criteria the DEP will decide whether to approve the subsequent plans.
108. It cannot be assumed that any revision by the
project
proponent along the lines of Conditions (a) and (b) would be an improvement in terms of environmental
impact in every respect. Significant revisions to the layout plan such as permitted by the Conditions
could result in quite a different creature to that consulted upon in the EIA Report. Thus, for
example,
when the DEP requested pursuant to s 8(1) for further information including a revised layout plan for
preserving the woodland of 0.39 ha at the centre of Sub-Area 1 (see §§29 and 31 above), CEDD
declined, stating that preserving the woodland “would displace a residential block, the integrated
commercial
cum carpark building and part of the PTI cum GIC building.”[28] Compliance with Condition (a) – essentially a repetition of the same
request – could therefore result in a substantially different design.
109. The evidence shows that changes in housing
footprint,
disposition and density may well have an impact on hydrology and underground and surface water regimes,
landscape and visual impact as well as light and noise impacts. As the judge observed:[29]
“ … 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.”
It cannot be assumed that revisions to the Layout Plan and to building heights as required by the Conditions
will
necessarily lessen the adverse impact on the environment in all respects.
110. As explained above, the Ordinance requires a
decision
to be made under s 8(3) for the final disposition of the application within the prescribed time.
An
approval “subject to” the condition of submitting these revised or further plans for approval seems to
suggest
that approval was deferred, and that the EIA Report could not be regarded as approved unless and until those
subsequent plans were submitted and approved. Hence the judge found that there was as yet no real
approval. Such an “approval” subject to conditions seems to us to lack the requisite finality and
certainty.
111. Mr Yuen submitted that the approval granted
was
final and that the EIA Report should be regarded as having been approved even if the Conditions were not
fulfilled – such as if CEDD refused or failed to submit any revised plans as required or the submitted plans
were not approved by the DEP. It is, with respect, difficult to see the legal basis of this
contention. An approval “with conditions” (s 8(3) of the EIAO) or “subject to” conditions
(s 40(2)(b) of Cap 1) suggests that the approval is conditional. To say that such approval
is
effective whether or not the conditions are satisfied would, as the judge observed, make a mockery of the
idea
of giving conditional approval.[30]
112. Further, irrespective of whether the Conditions
could
be said to be merely “aspirational,” they called for the re-submission of revised plans and purported to
empower
the DEP to approve such plans. But it is wholly unclear what the legal status of such plans and their
approval would be. Mr Yuen submitted that the approval (or lack of it) would not affect the EIA
Report but was instead for the construction stage. This suggests that it is contemplated that approval
may
thereby be given – presumably through or coupled with an environmental permit – for the construction of a
project which has been substantially altered from that studied in the EIA Report and which has not
separately
gone through any consultation exercise. In our view this is not a process envisaged in the statutory
scheme.
113. For these reasons, the appeals also fail in
relation to
the Conditions issue.
I. The Compliance issue –
whether the
EIA
Report failed to comply with the requirements of the TM and the SB
(1) Introduction and
relevant legal
principles
114. Under the Compliance issue (Ground 3 of the
judicial
review), the Club argued that the EIA Report does not comply with the requirements of the TM or the
SB.
Further, no rational decision maker could have come to the decision that the EIA Report complies with the
requirements of the TM or the SB, or that the Project was environmentally acceptable. That being so,
the
Decision to approve the EIA Report is ultra vires and Wednesbury unreasonable.
115. The non-compliances identified by the Club are
summarised in a table in Annex 2 to its Form 86. That table of 43 pages is a synopsis of the alleged
errors and omissions raised in the Club’s Project Profile submissions in mid-2019, its Statutory Submission
made
in June 2022 and its Response to the Additional Information made in May 2023. The judge was urged to
decide practically every point in dispute, because some of the arguments and the decisions on them may have
an
impact beyond this case and the Project. As a result, the Judgment has “covered more ground and
information than is strictly necessary for the decision-making critical path”.[31]
116. Of the rulings made by the judge under this Ground,
nine are the subject of the appeals of the DEP and CEDD and the respondent’s notice of the Club.[32] The topics are: (a) Old and
Valuable
Trees (“OVTs”); (b) tree survey and compensation; (c) hydrology and CSC; (d) cultural
heritage; (e) bats; (f) moths; (g) Northern Metropolis; (h) waste; and (i) noise –
Fan
Kam Road widening. On these topics the Club largely succeeded, as the judge ruled in its favour on all
but
the last one.
117. Before dealing with each of these nine topics, we
set
out succinctly the relevant legal principles. Many of them have been discussed in some detail in the
Judgment with citation of the relevant authorities.[33] We do not understand the parties to have raised any substantial dispute
regarding
them on appeal, save in one respect.
118. The DEP has no power to approve an EIA report under
s 8(3) of the EIAO if it does not comply with the requirements of the technical memorandum or the study
brief.
119. The correct definition of what the technical
memorandum
and the study brief require is a question of law for the court. 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. It
must find the single meaning of the relevant provisions of the technical memorandum and the study brief, and
the
procedure they prescribe, to determine the scope of the DEP’s power to approve the EIA report. The
matter
is to be determined objectively, and is not a question of whether the DEP acted reasonably in attributing a
given meaning to the technical memorandum and the study brief. As technical instruments, they must be
understood as an expert risk assessor, properly understanding the legal requirements they create, would
understand them.
120. Whilst there is a single meaning of the technical
memorandum and the study brief, that meaning may apply to one or more sets of facts.[34] Technical evidence may be needed to show that an EIA
report meets or does not meet the requirements as determined by the court.[35] It has also been said that although it is a matter of
construction
for the court to decide what is required by the technical memorandum or the study brief, it is often a
question of professional judgment what information is required to be contained in an EIA report to enable
the
DEP to perform his duties. In that case unless the judgment is Wednesbury unreasonable, the
court
is not entitled to interfere.[36] The
above
seems to us a more accurate description than the statement in the Judgment at §31 that “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.” Accordingly, on appeal to this court, the question that arises
will
be whether the judge is correct in his construction of the technical memorandum and the study brief or in
finding the DEP’s relevant judgment Wednesbury unreasonable, as appropriate.
121. The only significant legal point where the parties
differ is whether the DEP has power to approve the report if the non-compliance is “minor, insignificant or
inconsequential”, where the breach is “purely technical and has no material impact on the decision or on the
environment”. For the DEP, Mr Yuen submitted that compliance does not require “strict
compliance”; so
long as there is “substantial compliance”, the court is entitled not to grant relief in the exercise of its
discretion. The standard of compliance is not one of absolute perfection. There must be imported
into the statutory obligation a concept of reasonableness and practicality. Substantial compliance
without
being overly technical or astute to find fault is the appropriate test. The fact that the report does
not
cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or
require a
finding that it does not substantially comply with the statutory requirements.[37] Mr Anthony Chan SC made a similar
submission on behalf of
CEDD that not every non-compliance with the technical memorandum or the study brief would necessarily result
in
the invalidation of DEP’s approval of the report, and whether the decision to approve a non-compliant report
should be treated as unlawful should depend on the circumstances, including the nature and seriousness of
non-compliance.
122. Mr Yuen also repeated a separate point made before
the
judge that where the approval of the report involves or is based upon an evaluation of “scientific,
technical
and predictive assessments” by those with appropriate expertise, the court should afford the decision-maker
an
“enhanced margin of appreciation”.[38] The
judge
accepted this point.[39]
123. The judge did not agree with the submissions on
substantial compliance. He did not find it necessary or helpful to add the words “strict” or
“substantial”
before compliance, because compliance either exists or it does not. He referred to the firm statements
in
decided cases in Hong Kong that if an EIA report does not meet the requirements of the technical memorandum
or
the study brief, the DEP has no power to approve it.[40] As for the statements in the Australian authorities mentioned by Mr Yuen, even
accepting what was said, that does not inject some form of proportionality assessment or filter.
124. Those statements were made in the context of a
statutory obligation to take into account “to the fullest extent possible all matters affecting or likely to
affect the environment”.[41] Although
the
EIAO follows a broad pattern of similar legislation in other jurisdictions, it contains provisions which are
unique to Hong Kong.[42] There may also
be
applicable technical memorandums by which the DEP must be guided when deciding, inter alia, whether
to
approve an EIA report: s 16(4). Section 6(3) makes clear the legislative intent that an EIA report
must
meet the requirements of the technical memorandum and the study brief, and it would be contrary to the duty
of
the DEP to approve a report that did not meet the requirements.
125. Like the judge, we do not think it helpful to
characterise non-compliance in a general way as “substantial” or “minor, insignificant or
inconsequential”. Detailed provisions are made in the TM on the approval of an EIA report, and one
should
focus on these provisions in assessing whether approval could properly be granted in a given
situation.
The provisions in §4.5.1 and §4.5.2 of the TM, on approval of an EIA report, have been set out in §37
above. §4.4 of the TM governs the review of an EIA report and §4.4.2 relevantly provides as follows:
“ 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 [Guidelines for the Review of an EIA Report] 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.
…”
126. §4.4.2 then sets out a non-exhaustive list of
factors
in (a) to (m) that shall be considered for a report to be regarded as adequate; notable ones include:
“ (b) whether the information and descriptions in the EIA report are factually correct;
(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
disbenefits 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”.
127. In light of these detailed and specific provisions,
it
is unhelpful and inappropriate to have regard to general epithets in considering any non-compliance of the
TM
and SB.
128. In any event, in the circumstances of the present
case,
it appears to us that the arguments on “minor, insignificant or inconsequential” non-compliance and whether
“substantial compliance” would suffice are somewhat academic. Based on the rulings made by the judge
under
Ground 3, and if he should be upheld by this court on all or most of them, it could hardly be said
there is
substantial compliance with the requirements of the TM and SB. The errors and omissions in the EIA
report
found by the judge are plainly not “minor, insignificant or inconsequential” or “purely technical [with] no
material impact on the decision or on the environment”.
(2) OVT (Old and Valuable
Trees)
129. The judge found the non-compliance in the EIA
report
with regard to OVTs compelling and is sufficient of itself to warrant setting aside the Decision. He
held
that the report failed to comply with TM §4.4.2(b) (whether information and descriptions in the report are
factually correct) and §4.4.2(d) (whether the identification and descriptions of potential environmental
impacts
in the report are complete), and hence §4.5.1(b) (the quality of the report meets the requirements as set
out in
§4.4 and the results and conclusions are technically sound and reliable) and §4.5.1(c) (the report addresses
relevant environmental issues raised by the public and ACE during the public inspection period).[43] The Club supports the judge’s finding
on
the further ground that there was breach of Appendix J to the SB.[44]
130. OVT is a special term referred to in Development
Bureau
Technical Circular (Works) No 5/2020 on Registration and
Preservation of Old and Valuable Trees dated 26 February 2020 (“Circular 5/2020”). For
registration
as OVTs, trees must satisfy one or more of the following criteria: (a) tree of large size (eg 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 (eg ≥ 100 years old); (d) tree of cultural, historical or memorable significance; or
(e)
tree of outstanding form.[45] OVTs are
accorded
“priority protection” as a matter of government policy. Only trees on unleased government land within
built-up areas or tourist attraction spots in villages are eligible for inclusion in the Register of Old and
Valuable Trees. The Land then held by the Club was envisaged to revert to the government on expiry of
the
tenancy in August 2023. As the judge noted, it is obvious that the Land may have on it potentially
registrable OVTs.
131. The Register currently lists 435 OVTs in the whole
of
Hong Kong. After the Land reverted to the government, in September 2023 the Club’s consultants
submitted
OVT nominations to the Greening, Landscape and Tree Management Section of the Development Bureau for 62
trees in
Sub-Area 1 and 160 trees in Sub-Areas 2 to 4.[46]
The only other sites in Hong Kong with comparable OVT numbers are Kowloon Park (28) and Victoria Park (14).
132. The EIA report asserted in §11.6.3.11: “No
registered
[OVTs] were recorded during the tree survey.”
133. This is because CEDD’s consultant proceeded on the
basis that by definition OVTs only exist on unleased government land and as the Land was leased to the Club
at
the time of the survey, there were no OVTs on the site. CEDD took the position it was not required to
identify OVTs, contending that this is the proper interpretation of §1 of Appendix J to the SB, which
provided
that “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 …)”.
134. The judge disagreed and held that the proper
interpretation of the SB as regards the reference to OVTs in Appendix J includes potential OVTs. His
reasons in §199 of the Judgment are as follows:
“ (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.”
135. The judge’s interpretation of the SB was made with
regard to the factual matrix of relevant documents[47] which specifically mentioned “potential” OVTs, in recognition of constraints
upon
development at the FGC that might encroach on potential OVTs.
136. CEDD and WSP[48] were clearly aware they were required to conduct a tree survey to
identify any OVTs
or potential OVTs affected by the development and recommend tree preservation proposal.
137. Mr Chan submitted that the judge erred in §199 in
finding that potential OVTs were covered by the term “existing sensitive landscape characters and landscape
resources” in §1 of Appendix J to the SB. He further contended that a reasonable reader would recognise
from
the
EIA Report (section 11 on Landscape and Visual Impact Assessment, §11.6.3 under the heading “Tree Survey” at
§§11.6.3.1 to 11.6.3.6)[49] that at least
some of
the trees mentioned may be registrable and registered as OVTs in due course. Hence, the judge was
wrong to
find in §217 of the Judgment that there was failure to advise the DEP of the existence of about 80 potential
OVTs, and that as a result there was no OVT review process as was required by Circular 5/2020 and
another
circular, namely, Development Bureau Technical Circular (Works) No 4/2020 on Tree Preservation dated 26
February 2020 (“Circular 4/2020”).
138. We have no hesitation in rejecting the above
submissions of Mr Chan. The judge is clearly right in interpreting the provisions in
Appendix J
to the SB contextually and purposively to include potential OVTs, as explained in §199 of the
Judgment. As
pointed out by Mr Yu, the reference to “OVT” in Appendix J to the SB would be meaningless on CEDD’s
interpretation, as the Land was still leased to the Club at the time of the SB and the survey. We also
agree with the judge that the failure to advise the DEP of the existence of about 80 potential OVTs cannot
be
overlooked merely because the report referred to 70 Trees of Particular Interest (“TPIs”) in Sub-Area
1,
with characteristics which might meet the criteria for registration as OVTs. The fact remains that no
attention was drawn to the existence of potential OVTs which would have triggered the OVT review process
required by government policy.
139. Mr Chan made these further submissions:
(1) As §2 of Appendix J to the SB provided “Broad brush tree and vegetation survey shall be
carried out and the impacts on existing trees shall be addressed”, what was required at the EIA stage
was
just a broadbrush tree survey, not an individual tree survey.[50]
(2) The judge erred in finding at §202 and §217 of the Judgment that Circular 5/2020 imposed
an
obligation to identify potential OVTs at the EIA feasibility stage. A detailed tree survey to
identify
specific trees as potential OVTs should be done only after the EIA feasibility stage. Mr Chan
relied
in particular on §34 of Circular 4/2020, which provides that at the planning stage (which comes after
the
feasibility stage), a tree survey plan and a tree assessment schedule should be prepared that would form
part of the Tree Preservation and Removal Proposal (“TPRP”). Appendix C to Circular 4/2020
provides that the tree survey plan (for government projects only) must be undertaken prior to the main
site
layout design to avoid potential land-use conflicts. This again indicates that the tree survey
should
be done after the EIA feasibility stage. Further, EIAO Guidance Note No 6/2010[51] provides at §19 that a tree survey, as
distinguished
from a vegetation survey, is a detailed survey of existing trees covering the details of each individual
tree to be affected by the works and its main purpose is to facilitate the tree felling application
process
at the later detail design or construction stage.
(3) The judge erred in finding at §221 and §224 that CEDD’s failure to identify potential OVTs
was
material, taking the view that trees to be given priority preservation should be identified at the
feasibility stage, and that the large-scale development in Sub-Area 1 would be extremely difficult if
not
impossible unless potential OVTs are removed or transplanted, given their partial or complete overlap
with 8
out of 12 intended housing blocks, the proposed transport interchange and the special needs
school.
Mr Chan attacked the finding in §218 of the overlap with intended housing blocks, which was based
on a
layout plan mapping the locations of potential OVTs using tree protection zones (“TPZs”) with
diameters wider than the standard dripline method, which (Mr Chan said) is neither necessary nor
appropriate. The overlap is not based on the trees themselves but on the wider TPZs. He
further
contended that assuming the intended housing blocks were to be reduced in scale due to potential OVTs,
it
has not been demonstrated that a development on Sub-Area 1 which fulfilled the main objective of
housing supply would be impossible.
(4) The judge failed to give weight to the “iterative design” process in Circulars 5/2020 and
4/2020. If a potential OVT is registered as an OVT, consideration would be given whether removal
can
be avoided through revision of the layout. No OVT will be removed without approval. It must
be
demonstrated that removal is “the best available and only practicable option” (Circular 5/2020,
§21).
An application for removal must be supported by relevant details such as justifications for removal,
results
of consultation procedures, details of compensatory planting and any mitigation proposals if applicable
(Circular 5/2020, §22). Given the stringent process stipulated in the Circulars, it would be
premature
to assume the removal of any potential OVTs.
140. We do not accept the above submissions.
141. §1 of Appendix J to the SB clearly requires the
applicant to “identify existing sensitive landscape characters and landscape resources (including but not
limited to Old and Valuable Tree …)”. §2 of Appendix J provided inter alia that “Broad brush
tree
and vegetation survey shall be carried out and the impacts on existing trees shall be addressed.” We
agree
with Mr Yu that the requirements in §§1 and 2 are cumulative. There is no conflict between the
two.
An individual tree survey was in fact performed in Sub-Area 1, but a detailed tree survey to identify
potential
OVTs that may be affected was not done.[52]
Nor was there any or any proper assessment in the EIA Report of the degree of compatibility of potential
OVTs
with the Project, or any discussion of realistic means to alleviate the potential significant adverse
environmental impact.[53] In these
respects
the EIA Report simply failed to take into account something which it ought to encompass.
142. We do not think §34 of Circular 4/2020, which
relates
to the planning stage, assists Mr Chan’s argument. §31 of the Circular provided clearly: “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 …”. Under the feasibility stage, §32 provided: “Due consideration
should be given to ensure that the purposes of the government project can be satisfied while assigning
priority
to preserve valued tree assets. Trees of particular interest should be identified for priority
preservation”. Also under the feasibility stage, §33 provided that in accordance with Circular 5/2020,
“the removal of [OVTs] should only be permitted under very special circumstances with full
justifications.” The judge’s finding that CEDD was obliged to identify potential OVTs at the EIA
feasibility stage is supported by a proper reading of Circular 4/2020 and Circular 5/2020 and accords with
common sense. The fact that a tree survey is required at the planning stage does not remove the need
to
identify potential OVTs at the feasibility stage, for the “priority protection” accorded to OVTs in Circular
5/2020. As rightly submitted by Mr Yu, they are cumulative obligations. The judge put this
neatly at
§221 of the Judgment:
“ … §32 [of Circular 4/2020] 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.”
143. As for §19 of EIAO Guidance Note No 6/2010,
this
is to elucidate the distinction between a vegetation survey and a tree survey. It does not support
Mr Chan’s contention that a tree survey to identify potential OVTs would not be required at the
feasibility
stage.
144. We do not propose to go into the details of Mr
Chan’s
submission regarding the appropriateness of the method in fixing the TPZs or his demonstration that a
development on a reduced scale would still meet the flat yield. We agree with Mr Yu this seems to miss
the
focus, which is on the legality of approving the EIA Report, not the viability of the Project or a project
on a
reduced scale as postulated. The issue of OVTs and the TPZs around them was raised squarely by the
Club,
at the Project Profile stage and in its Statutory Submission. Contrary to §4.5.1(c) of the TM, the EIA
Report failed to address this.[54] The
non-compliance with the TM and the SB meant that the report should not have been approved. It makes no
difference whether a development on Sub-Area 1 which fulfilled the objective of the housing supply
would or
would not be feasible.
145. As for Mr Chan’s submission on the “iterative
design”
process in the two Circulars, this was raised before the judge and we agree with his reasons stated in §210
of
the Judgment for not giving weight to this.
146. There was debate before the judge on the meaning of
the
word “removal” in §§20 to 22 of Circular 5/2020. Mr Yu argued that the correct meaning is “felling” of
a
tree and not other forms of removal such as transplantation. The judge found in favour of CEDD’s
construction set out in detail in §§205 to 206 of the Judgment. In short, he held that reading §§20 to
24
together, except under the situation in which an OVT has died (§20), removal is prohibited unless an
application
under §22 is approved. As expressly provided in §22, irrespective of whether an OVT is alive or dead,
removal requires the necessary application and approval. The judge opined in §207 that this
interpretation
does not open the door wide to transplanting OVTs based on some general view that retaining it at its
existing
location is not practicable, as that would turn the spirit and intention of the Circular on its head.
The
circumstances when there would be any consideration of transplanting an OVT must be “extremely rare”.
Mr
Yu renewed his contention on appeal. We see this dispute of little moment and do not propose to deal
with
it.
147. For the above reasons, we reject CEDD’s contentions
on
OVTs. We uphold the judge’s finding of non-compliance with TM §§4.4.2(b), 4.4.2(d), 4.5.1(b) and
4.5.1(c). We would add that there was non-compliance with SB Appendix J §1 as well.
(3) Tree Survey and
Compensation
148. This topic, which is connected to OVTs, brings into
play the inadequate tree survey, which we have touched upon, and compensatory tree planting. The judge
held there was failure to comply with SB §3.4.1 (this requires the EIA study to address all environmental
aspects of the activities as described in the scope, which shall cover the Project and associated works, and
that the assessment shall be based on the best and latest information available during the course of the EIA
study); SB Appendix J §2 (this requires the applicant to describe, appraise, analyse and evaluate the
existing
and planned landscape resources and landscape character); TM §4.4.2(k) (whether the EIA report has assessed
and
determined the feasibility, practicability, programming and effectiveness of the recommended mitigation
measures); and TM §4.5.1(c) (the report addresses relevant environmental issues raised by the public and
ACE).[55]
149. There are two major flaws in the EIA Report on this
topic. First, the individual tree survey performed in Sub-Area 1 undercounted around 300 trees of
the
requisite size and made other serious errors.[56]
Second, CEDD’s plans assumed the retention of 116 trees that currently sit on a hill at ~27.6 mPD when the
site
plans specify that this will be lowered to ~16 mPD. Despite that the Club had raised this issue, no
explanation was given in the EIA Report to reconcile these conflicting features of the proposal.
150. There is no serious dispute that the EIA Report
does
contain these flaws. They clearly support the judge’s holding that there was failure to comply with
the
provisions in the SB and TM as mentioned.
151. CEDD sought to down play the flaws. In
respect of
the first, Mr Chan submitted that the undercounting of trees is irrelevant. This is because
undercounting would be covered by CEDD’s compensatory tree planting plan, according to which the proposed
compensatory planting area would be 5.1 ha, larger than the woodland loss of 4.11 ha. Even if
compensatory
planting cannot be placed entirely within Sub-Areas 2 and 3, there could be off-site planting to avoid any
encroachment on Sub-Area 4, where a collection of CSC is located at the swampy woodland. Partial
off-site
compensatory planting is a mitigation option “that would deal with the particular concern about sufficiency
of
the area for compensatory planting”.[57] As
such,
the judge should have exercised his discretion to refuse relief.
152. We do not agree with his submissions. The SB
specifically provides that the assessment shall be based on the best and latest information available during
the
course of the EIA study, and the applicant is required to describe, appraise, analyse and evaluate the
existing
and planned landscape resources and landscape character. One cannot overlook that very detailed provisions
are
made in Appendix C to Circular 4/2020 on tree survey plan for government projects,[58] which do not allow for slipshod surveys. The TM
requires the EIA report to assess and determine the feasibility, practicability, programming and
effectiveness
of the recommended mitigation measures and to address relevant environmental issues raised by the public and
ACE. Part of the information requested by the ACE in August 2022 related to tree compensation plan (as
incorporated in the DEP’s request for further information, item (4)), seeking details of planting
numbers
with a compensation ratio of at least 1:1.5. This did not appear to have been addressed in the
Addition
Information provided by CEDD in April 2023. Thus in the concluding comment of the ACE in its letter to
CEDD dated 10 May 2023, it was stated that a detailed tree management plan should be put in place to set out
the
arrangement for tree compensation and maintenance.
153. We do not think the above requirements can be
circumvented by CEDD putting forward an open-ended mitigation proposal, with off-site planting as a reserve
option. The concern is not just about sufficiency of the area for compensatory planting. The
amenity
value of the trees in Sub-Area 1 had not been properly assessed in the tree survey, with a failure to
identify protected species, the mis-identification of species, the errors in recording tree dimensions and
plotting in wrong locations. In the absence of complete and accurate tree data, the concern is how the
feasibility, practicability, programming and effectiveness of the recommended mitigation measures are to be
determined and assessed. The DEP ought not to have approved the EIA Report in this situation.
154. As for the flaw regarding the level difference
between
the cluster of 116 trees and the site formation, Mr Chan first repeated the pleading point taken before the
judge that the Club should not be allowed to raise this because it was not identified in the Form 86.
This
objection has no merit and was rightly rejected.[59] As pointed out by the judge, this point was not entirely new and had been
addressed
in the evidence[60] and former counsel for
CEDD
was able to address it by reference to materials before the court. There is no basis to interfere with
the
judge’s exercise of discretion in allowing this point to be raised without an amendment to the Form 86.
155. The judge accepted the evidence of
Mr Alexander
Main Duggie, one of the Club’s experts, that there are two hillcrests both covered in trees separated by a
saddle in an area of continuous higher ground in the south-west of Sub-Area 1. The southern
hillock
crests at approximately 30 mPD and the northern hillock at approximately 28 mPD, with the saddle dipping to
approximately 24 mPD. As pointed out by Mr Duggie, no cross-sections were provided in the EIA Report
to
explain the feasibility of the proposed retention of the 116 trees sitting on them. In the planning
report
commissioned by CEDD for preparing the OZP, it was stated in §4.1.1 that “Taking into account the topography
of
Sub-Area 1, the site formation levels are proposed from approximately +14.0 mPD to +19.0 mPD, dipping
from
south to north.” This shows that the existing topography would be flattened, lowering the terrain from
approximately 30 mPD to approximately 18 mPD.
156. Mr Duggie explained that given the site formation
platform is approximately 18 mPD, any proposed retention of the tree cluster on the hill would necessitate
building a retention wall along the northern façade of the nearest planned block of about 90 m long rising
to
approximately 15 m high at the mid-point. Yet there is no such proposal in the EIA Report or the
planning
report.
157. Mr Chan repeated the point made by CEDD in evidence
that it was not necessary for the EIA Report to deal with matters like formation levels, ground levels of
existing trees and TPZs of individual trees and that a TPRP addressing those issues is only required to be
submitted at the design stage after the EIA stage. This was rejected by the judge at §260:
“ … 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.”
158. We respectfully agree with the judge’s
reasoning.
We reject the further contention of Mr Chan that neither the SB nor the TM requires such issue to be
addressed. As stated by the judge at §262, “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.”
Like
CEDD’s former counsel as recorded in the Judgment at §261, Mr Chan did his best to address these issues in
submissions, but these matters ought instead to have been addressed in the EIA Report.
159. We also reject Mr Chan’s contention that the
judge
erred in §264 and §265 in confusing the “1:1 plus DBH question” with the compensation ratio of at least
1:1.5. As pointed out by Mr Yu, the judge was not making a separate finding of non-compliance in
relation
to the proposed tree compensation ratio in those paragraphs but was merely explaining why he rejected CEDD’s
submission summarised in §263 that details of site formation and tree preservation could be dealt with at
the
design stage.
160. The contentions of CEDD under tree survey and
compensation are rejected for the reasons mentioned above.
(4) Hydrology and CSC
161. The CSC[61] is listed as critically endangered by the International Union for the
Conservation
of Nature and is a tree species that requires a specialised habitat highly sensitive to hydrological
change. A collection of CSC are located at the swampy woodland near Hole 7 of the Old Course which
falls
within Sub-Area 4. At least 29 of the CSC have been independently estimated to be over 100 years old,
and
the oldest is considered to be 216 years old. This CSC population comprises about 15% of the entire
global
population, and is possibly the only population reproducing viable seedlings in the wild. The
existence of
the CSC is specifically mentioned in §3.6.2 of the Project Profile. The conservation importance of CSC
was
probably the main driver for limiting the proposed development to Sub-Area 1.
162. Appendix H to the SB was headed “Requirements
for
Ecological Impact Assessment (Terrestrial and Aquatic)”. §1 required the applicant to “examine the
flora,
fauna and other components of the ecological habitats”, with the aim to “protect, maintain or rehabilitate
the
natural environment.” It provided in particular that “the Project shall avoid or minimize impacts on
recognised sites of conservation importance and other ecologically sensitive areas and species of
conservation
importance”. It stated: “The assessment shall 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”.
163. §2 of Appendix H provided that the assessment shall
include various “major tasks”, including:
“ (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. … changes in water qualities, hydrodynamics properties, hydrology … and other disturbance
generated by the construction and operational activities, etc.), on-site, off-site, primary, secondary
and
cumulative ecological impacts on the … habitats identified such as direct loss of habitat, potential
diversion or modification of stream courses, … destruction of habitats, reduction of species
abundance/diversity, … 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;”.
164. Notwithstanding the above specific requirements,
the
EIA Report did not contain a HydroIA (hydrology impact assessment), as mentioned in §84 above. The
report
only dealt with “Hydrological Disruption” in three paragraphs[62] and drew this conclusion at §9.12.1.2:
“ 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 are thus not likely. With the implementation of the
proposed
management with the aims 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.”
165. The judge agreed with the Club’s submission that
the
above conclusion is simply an assertion without analysis or assessment.[63]
166. The EIA subcommittee of the ACE, in its meeting on
18
July 2022, sought supporting data on the hydrology impact of the development and expressed concern about the
possible adverse hydrology impact which should be carefully assessed. This led to the ACE’s request
followed by that of the DEP for further information pursuant to s 8(1) of the EIAO. Item (f) of the
request
for further information directed CEDD to provide:
“ 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.”
167. The Additional Information subsequently provided
contained a HydroIA performed for the first time by Prof Ting Fong May Chui, a hydrology and sustainable
water
resources engineering expert.[64]
Prof Chui acknowledged, however, that the HydroIA she was asked by CEDD to perform was limited in scope
in
that:
“ 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.”[65]
168. Prof Chui also stated:
“ … the scope of my study was strictly confined to hydrological issues. In particular, my
assessment was not intended to cover wider ecological issues such as the potential impact of development
on
the various fauna or flora present in the 4 Sub-Areas, including the CSC which I understand is one of
the
focal points of [the Club’s] complaints in these proceedings. As a hydrologist, such issues fall
outside
my
scope of expertise and I therefore express no views on those issues.”[66]
169. The judge did not think that limited approach
provided
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. He noted also that the HydroIA conducted
proceeded on the stated assumption of an isotropic and homogeneous acquifer, but it was identified elsewhere
in
the assessment that the soil texture and saturated hydraulic conductivity varied considerably at different
locations, indicating significant variations in the physical properties in the soil – in other words, it was
not
homogeneous. That suggests it is not possible to predict the direction of groundwater flow to be in
accordance with the surface flow.[67]
170. The EIA Report has 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: (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.[68]
171. The Club adduced expert evidence from an ecologist
Mr Paul James Leader and a hydrological and engineering expert, Ms Gillian Hancer Castka. In
addition, the Club engaged Prof Jiu Jimmy Jiao to build a three-dimensional hydrological model to
simulate
the groundwater flow before the housing development in Sub-Area 1 and calibrate the model by collected
water level data in order to predict the water level change east of Fan Kam Road in the FGC after the
construction of buildings in Sub-Area 1 and compensatory tree planting in Sub-Areas 2 and 3.[69]
172. Ms Castka opined that the HydroIA performed by
Prof Chui was “seriously deficient”. There was no assessment of how the CSC might be affected by
the
hydrological changes arising from the proposed development and compensatory tree planting. Instead,
the
HydroIA only attempted to provide details of the flow of surface water and the potential impacts the
proposed
development may have on the sources of groundwater and does not answer the question of hydrological impact[70].
173. Ms Castka gave evidence that the hydrogeology in
the
swampy woodland area where the CSC are found, and its soil profile, are something of an anomaly. It
consists of a thin layer of clay/silt alluvium and this is an anomaly because clay is not typically
deposited at
this elevation (>20 mPD) in a uniformly sloping valley. Her hypothesis was that this anomalous
clay/silt alluvium layer in this location could possibly explain the further anomaly of the CSC thriving and
reproducing in the swampy woodland. These unusual hydrogeological features of the swampy woodland remain
unstudied, and therefore the interaction between the clay layer, the hydrology of the swampy woodland, and
the
vitality of the CSC stand is not known, despite the ACE’s and DEP’s request for an assessment of
hydrological
impact including available information on the profile of soil and bedrock conditions.[71]
174. Mr Leader gave evidence that the CSC trees have
been
thriving in the current conditions with the surrounding land as a managed golf course for over a
century.
Important management activities in the area surrounding the CSC include the current irrigation regime,
maintenance of the turf grass and roughs, the upkeep and clearance of storm drains, pipes and ditches.[72] All contribute to the hydrological
conditions currently supporting the CSC. He pointed out that the hydrological consequences of any
changes
to these activities are entirely unknown and opined that this is a rare case in which the “precautionary
principle”[73] is engaged as part of any
responsible land use management exercise by the government.[74]
175. The application of the precautionary principle and
the
concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent
or
thresholds which are cumulative: a threat of serious or irreversible environmental damage and scientific
uncertainty as to the environmental damage. Once the conditions or thresholds are satisfied, a
precautionary measure may be taken to avert the anticipated threat, but it should be proportionate.
The
judge agreed with Mr Leader that the precautionary principle comes into play for the reasons given in
§§311
and 312 of the Judgment:
“ 311. … 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.”
176. The judge held there was a failure to comply with
the
requirement for a detailed hydrological assessment and consequently a breach of the SB Appendix H
§§2(vii)(a)
and (c) and the TM §4.4.1 (compliance with the SB and TM), §4.4.2(d) (whether the identification and
descriptions of the potential environmental impacts in the EIA report are complete), §4.5.1(b) (the quality
of
the report meets the requirements in §4.4 and the results and conclusions are technically sound and
reliable),
§4.5.1(c) (the report addresses relevant environmental issues raised by the public and ACE), §4.5.1(d) (all
relevant environmental principles and criteria in the TM 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), and §4.4.3(a)(x) (if 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).[75]
177. CEDD challenged the judge’s findings of
non-compliance
with the SB and TM on seven bases. We will consider them in the order as raised.
178. First, it was submitted that the judge
should
not have rejected the DEP’s professional opinion simply because there might be another way of performing an
assessment. He should defer to those exercising professional judgment and should have accepted that the
hydrological assessment methodology used by CEDD complied with SB Appendix H §§2(vii)(a) and (c).
179. In support of the above contention, Mr Chan made
these
points:
(1) Past EIA assessments for large scale housing developments were conducted and approved with
only qualitative (as opposed to quantitative) hydrological assessments.[76]
(2) The key reason to develop in Sub-Area 1 only is to keep the CSC in Sub-Area 4 as
far
away from the proposed development as possible. Sub-Area 1 lies 1.1 km away from the CSC.
The
general ground profile and sub-soil rockhead profile dip from south to north, ie from Sub-Area 1 to 4.[77] Given the effect of gravity, the
catchment of the water sources of the CSC in Sub-Area 4 does not cover Sub-Area 1.[78] Hence, the proposed development could not
affect
the sources of surface water or underground water for the CSC.[79]
180. We do not agree with Mr Chan. The DEP cannot
say
he relied on his professional judgment to dispense with an assessment that is expressly required by the SB
Appendix H §2(vii). As mentioned above, Prof Chui made clear that the HydroIA she was asked to
perform was limited in scope and her assessment was not intended to cover the potential impact of the
proposed
development on the CSC. This is hardly a case of deferring to professional judgment.
181. As for the assertion by WSP’s director, Mr Wan,
that
based on his professional experience in the EIA field, the hydrological aspects of the EIA Report satisfy
the
requirements of the SB and the TM and that the proposed development cannot affect the sources of surface
water
or underground water for the CSC, it should be noted that Mr Wan is not an expert in hydrology. His
views
were not adopted by Prof Chui who conducted the HydroIA. Such assertions were rightly rejected by
the
judge.[80] We also find it irrelevant
that
past EIAs did not require the same type of hydrological assessment as was needed in this study in light of
the
presence of the hydrologically sensitive CSC.
182. Mr Chan focused on the words “using suitable
methodologies” in the introductory general words in SB Appendix H §2(vii) to support his argument for
deferring to the professional judgment that there might be another way of performing an assessment. We
agree with Mr Yu this misses the focus, as the central obligation in §2(vii) is to “identify and quantify as
far
as possible” potential ecological impacts, especially in relation to species of ecological importance.
The
judge found that the EIA Report, even including the Additional Information, does not contain sufficient
information to enable an assessment to be made as to the level of risk posed to the CSC by the proposed
development. This is in the context where the impact of even small hydrological changes could be
devastating and irreversible to the CSC, which are highly sensitive and critically endangered. The
judge
was in our view fully entitled to find that CEDD’s studies and analysis fail to assess adequately whether
the
Project would risk causing hydrological changes harmful to the CSC.
183. Second, it was submitted that the judge
erred in
finding fault with the original hydrological assessment despite its conclusion was corroborated by the
HydroIA
of Prof Chui.
184. Mr Chan made these submissions in support of this
contention:
(1) The judge found fault with the HydroIA in that it was limited to surface water flows, in
contradistinction to the underground water table, and considered that the limited approach did not
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”.[81] Such analysis is not required under the TM or SB, which do not contain any
express stipulation for groundwater analysis.
(2) The judge further erred in holding that “the detailed assessment was in any event required
as
a result of ACE/DEP’s request for one”.[82]
The ACE/DEP cannot impose additional obligations on CEDD to carry out work extraneous to the
requirements
under the TM or SB.
(3) In any case, the ACE/DEP’s request was for 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.” Apart from water flow, CEDD was not asked to study any other aspects of the
underground
hydrology, such as potential changes in the water table. The HydroIA studied surface and
underground
water flows and complied with the request.[83]
185. We have already rejected the contention that SB
Appendix H §2(vii) does not require a hydrological study to identify and quantify as far as possible
the
habitat and ecological loss, including specifically sufficient information to determine whether hydrological
changes caused by the proposed development could put the CSC at risk. We reject the further contention
that the detailed assessment was not required in the request for Additional Information. Further, as
stated earlier, the judge’s finding that the EIA Report with the Additional Information and HydroIA do not
contain sufficient information to enable a proper assessment to be made on the critical question cannot be
faulted.
186. Third, it was contended that the judge erred
in
questioning the validity of the assumption of an isotropic and homogeneous aquifer adopted in the HydroIA.
187. Mr Chan’s arguments ran as follows:
(1) Assumptions are standard in and critical to scientific studies. Its utility lies in
proportionality, by not spending unnecessary time, effort and costs to explore every possible variable.
(2) What assumptions should be adopted is for the hydrological experts. Where competing
expert views are advanced as to what assumptions are appropriate, the judge should have accorded an
enhanced
margin of appreciation to Prof Chui’s opinion. At a minimum, he should have declined to form
any
view as to which of the competing views might be correct.
(3) The judge failed to have regard to the fact that Prof Jiao agreed with
Prof Chui’s
conclusions on water flow. It follows that Prof Jiao must have agreed that Prof Chui’s
underlying assumptions were appropriate. There was no proper evidential basis for the judge to
question the assumptions.
188. The contention about appropriate assumptions is of
little moment. Even if they are appropriate, they would not yield an answer to the critical question
about
risks to the CSC. Besides, the judge was entitled to find Prof Chui’s assumptions incorrect and
this
undermines the limited conclusions she reached. This is not a case where experts offered differing
opinion
evidence as to which assumptions are appropriate. As noted in the Judgment at §293, factual evidence
was
identified elsewhere in Prof Chui’s assessment showing her assumption of an isotropic and homogeneous
aquifer to be incorrect.
189. As for Prof Jiao, he did not discuss or test
Prof Chui’s assumptions. He merely agreed with her view as to the sources of water. We do
not
think his opinion provides support to CEDD’s contention here.
190. Fourth, it was contended that the judge
erred in
construing SB Appendix H §2(vii) as requiring a more detailed hydrological study than that conducted by
CEDD.
191. Mr Chan submitted that SB Appendix H §2(vii) only
requires the applicant to identify hydrological impact “using suitable methodologies (including but not
limited
to those adopted in other relevant EIA studies in Hong Kong)” and to identify and quantify “as far as
possible”
any direct or indirect impact on hydrology. This is imbued with notions of professional judgment and
proportionality, including factors like the timeframe (bearing in mind the public interest in ensuring that
major designated projects are brought to fruition in a timely and efficient manner) and financial cost.
The
words “as far as possible” should be construed to mean “as far as practically possible”. The judge
overlooked this and effectively imposed an absolute standard in the name of applying the precautionary
principle. He should have found the extensive groundwater study alleged by the Club to be necessary
wholly
impractical and unnecessary, and extraneous to the requirements of the SB.[84]
192. Mr Chan further argued that the detailed assessment
as
required should be dealt with not at the EIA stage but at a later stage, as the exact sites for woodland
compensation and compensatory planting are subject to future site planning.[85]
193. We do not accept Mr Chan’s submissions. A
similar
argument was raised before the judge.[86] As
pointed out by Mr Yu, the EIA Report did not say that CEDD refused to resolve the scientific uncertainty
about
whether the proposed development would cause the loss of an extremely valuable ecological resource due to
concerns of time and financial costs. Rather, it claimed that certainty was achieved. That claim
has
been shown to be wrong. The real problem was the failure to recognise and act on the need for a
hydrological study at the start. Had WSP dealt with the need for a hydrological study when it was
appointed in September 2019 instead of embarking on the process only after August 2022 when the ACE/DEP
requested for further information, WSP could have minimised the time required with appropriate measures and
completed a reliable hydrological study.[87] Nor do we accept the argument that the detailed assessment should be
carried
out at a later stage. SB Appendix H §1 specifically required that the assessment should identify and
quantify as far as possible potential ecological impacts associated with the project such as change of water
quality and/or hydrodynamic regime to natural environment. See also §2(vii)(c).
194. Furthermore, CEDD’s submissions fail to engage with
the
precautionary principle in the discussion of proportionality. The ecological resource at risk is of
the
highest possible value and damage would likely be irreversible. The judge rightly held the
circumstances
“clearly mandate a necessarily high degree of caution to be taken”.[88] Unquantified time and cost considerations would not sway the
balance in favour
of proceeding with the development when the risks the Project poses to the CSC are simply untested.
195. Fifth, it was said that the judge erred in
holding that the watering needs of the proposed compensatory woodland might affect the hydrology of the
Project
site.[89] He should have held that based on
Prof Chui’s conclusions in the HydroIA, there is no real prospect of any material adverse hydrological
change resulting from compensatory tree planting.
196. This is another challenge to the judge’s assessment
that is not of any substance. The fact that there was sufficient water available to make provision for
compensatory planting and that CEDD intended to adopt a habitat management plan, does not prove the absence
of
effects. Without a proper study of the baseline hydrological conditions, there would be no basis upon
which to devise appropriate management strategies.
197. Sixth, it was contended that the judge
wrongly
held that the foundation design of the proposed buildings and compensatory planting might give rise to
changes
in hydrodynamic properties such that the changes cannot be accurately assessed without the final layout.[90]
198. Mr Chan made these submissions in support of his
contention:
(1) This criticism advanced by the Club was answered by CEDD’s expert consultant, Mr Wan, who
explained that as currently designed, it is most unlikely that the construction materials expected to be
used in the project would hamper groundwater discharge. Mr Wan further expressed the view that it
is
difficult to see how individual piles for the foundations (bored piles with diameter of around 2 m
or
percussive piles of less than 0.5 m) could hamper groundwater discharge in any significant way.[91] Mr Wan’s evidence was not
challenged by
Ms Castka.
(2) The judge’s holding is contrary to the unchallenged evidence. Even if Mr Wan’s
evidence
had been challenged, the judge should not attempt to resolve this divergence of professional or
technical
opinion.
(3) In finding that changes to hydrodynamic
properties
and hydrology cannot be accurately assessed until the final layout is confirmed, the judge has
imposed an impossible obligation on CEDD that far exceeds the purpose of the EIA stage.
199. We do not accept the argument. It is not
correct
to say that Ms Castka did not challenge Mr Wan’s evidence.[92] Mr Wan is not a hydrological expert. By contrast, Ms Castka’s expertise is
in
engineering hydraulics and hydrology. She had identified why his untested assertions that the proposed
development in Sub-Area 1 would not affect the hydrology of Sub-Area 4 were factually incorrect and
misleading.[93]
200. As for the finding that changes in hydrodynamic
properties and hydrology required by the SB cannot be accurately assessed until the final layout is
confirmed,
we do not think that is placing an impossible obligation on CEDD that far exceeds the purpose of the EIA
stage. As the judge explained in §§311 and 312 of the Judgment, this is where the precautionary
principle
comes into play in this context.
201. Seventh, it was argued that the judge was
wrong
to hold that the precautionary principle requires a detailed hydrological assessment of the nature and scale
proposed by the Club. He should have concluded that such an assessment was disproportionate,
unrealistic
and extraneous to the ambit of the EIA stage.
202. We think the above contention is misconceived.
The
need
for a detailed hydrological assessment arose from the requirement in SB Appendix H §§1 and 2(vii) to
quantify
habitat and species loss, especially for rare and endangered species like the CSC.
203. Mr Chan raised a new point in his oral submissions
to
counter the evidence of the Club’s ecology expert Mr Leader that the CSC is highly sensitive to hydrological
change and that the impact on the balance between overland and groundwater flow arising from any changes in
the
maintenance regime of the golf course would not be possible to identify and therefore to address with an
effective hydrological management. Mr Chan submitted that as the CSC have survived the laying of the
Old
Course and the tree planting programmes after the Second World War, it should be inferred that properly
managed
compensatory planting in Sub-Areas 2 and 3 would not produce any threat to the CSC and the impact
on
swampy woodland is unlikely.[94] This was not
mentioned in the Judgment.
204. This new point was not raised in any of the
affidavits
filed by CEDD. We do not think it right to allow Mr Chan to raise it for the first time in his oral
submissions on appeal. The Club is not able to respond to this with evidence from its ecology
expert. We decline to deal with it.
205. The contentions raised by CEDD under this topic are
rejected.
(5) Cultural Heritage
206. FGC is composed of three distinct 18-hole courses –
the
Old, New and Eden Courses, built in 1911, 1931 and 1970 respectively. FGC is deemed one of the finest
and
most scenic golf courses in Asia and has been the site for numerous professional championship events.
It
is the only golf course in Hong Kong that can meet the international requirements for holding major golf
events.
207. The Old Course at FGC was inspired by the Old
Course at
the home of golf in St Andrews, Scotland. It is the oldest golf course in China. It was laid out
in
what has been called the ‘Golden Age’ of golf course development, and includes elements no longer used in
contemporary golf design, including blind shots over fairways. It presents golfers with challenging
shots
created by the landscape’s existing topography. During the golden period in the early 20th
century, golf course architects were allowed more freedom to create daring and unconventional holes that
require
an element of luck and ingenuity to get around difficulties and overcome new and unexpected
situations.
Golf courses built after 1950 have limited more creative designs to eliminate luck and become relatively
standardised. In contrast, the land dictates the play in the Old Course and gives rise to a layout
unique
in style and character. The Old Course has been regarded as an architectural gem and a focal point for
Hong Kong golf.
208. The majority of the Land of 32 ha as covered in the
EIA
Report is within the Old Course. It contains the first eight holes. Subsequently, it was recommended
that
housing development would be restricted to Sub-Area 1 of 8.1 ha or 9.5 ha, and Sub-Areas 2 to 4 would be
preserved as a public park with minimal development. Holes 1 to 3 are within Sub-Area 1; holes 4
to 8
are within Sub-Areas 2 to 4.
209. The Project Profile noted that a cultural heritage
impact assessment (“CHIA”) would be carried out under the EIA study. It was stated at §5.7.1
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.
210. §3.2.1(xi) of the SB identified the requirement of
the
study to address the “key issue” of:
“ potential cultural heritage impacts, in particular impacts on built heritage including
Fanling 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”.
211. The listed items are not exhaustive.
212. §3.4.12.1 of the SB 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 to be followed.
213. TM Annex 10 at §2.1 provides that the criteria for
evaluating impact on sites of cultural heritage 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.”
214. TM Annex 19 at §2.1 identifies 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.
215. As to impact assessment, TM Annex 19 at §§2.6 and
2.7
identify that preservation in totality will be a beneficial impact and will enhance the cultural and
socio-economical 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. §2.8 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.”
216. The EIA Report followed the Guidelines for Cultural
Heritage Impact Assessment of the Antiquities and Monuments Office (“AMO”) in classifying the
evaluation
of CHIA into 5 levels of significance, based on type and extent of the effects found in the CHIA
study.
They are: Beneficial Impact, Acceptable Impact, Acceptable Impact with Mitigation Measures, Unacceptable
Impact[95] and Undetermined Impact.[96] As stated in the Judgment at §327,
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. The present focus is on the distinction
between
Unacceptable Impact and Undetermined Impact.
217. The EIA Report at §12.4.2.1 noted that FGC was
first
constructed in the early 20th century, and so was over 100 years old and should be considered a heritage
place
in itself. At §12.4.2.2, it recognised that the Old Course is the oldest surviving golf course in Hong
Kong, and its heritage value is to be appraised with its grading, if appropriate, confirmed by the
Antiquities
Advisory Board (“AAB”).[97]
218. The EIA Report recognised in §12.5.4.1 at Table 3
that
“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”, and “direct impacts are expected”. The same was true of holes 4 to 8, which
would
be covered over by compensatory planting and become a static park. Hence, “direct impacts are
expected”.
219. At §12.5.5.1, it was again noted that the proposed
development 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 the grading of the golf course by AAB and
that mitigation measures, where necessary, will be proposed to AMO for agreement.
220. Notwithstanding all the above, the conclusion
reached
in the EIA Report as to the impact of the proposed Project on the Old Course was Undetermined Impact.
The
Club criticised the conclusion as having failed to comply with the SB and TM, so being wrong in law, and
argued
that it was in any event manifestly irrational for the DEP to have accepted that conclusion.
221. The judge took the view that there is no “may”
about
the adverse impact, which is that several holes would be lost and the integrity of the Old Course as a whole
would be lost.
222. CEDD submitted (supported by the DEP) that the
statutory definition of “site of cultural heritage” in the EIAO should be adopted in construing this term in
the
TM. In Schedule 1 to the EIAO, “site of cultural heritage” is defined to mean: “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.” TM §1.3.1
provides: “This technical memorandum uses standard scientific terms. Where [EIAO] defines a term, that
term applies.” CEDD submitted a site of cultural heritage is therefore limited to things which have
already been designated or declared a monument under the Antiquities and Monuments Ordinance (Cap. 53)
(“A&MO”). As it is uncertain that the Old Course would be graded by the AAB and declared a
monument under the A&MO, the extent of the adverse effects and mitigation of the potential impact can
properly be described as “undetermined”. The judge rejected this submission.
223. The judge found it difficult to see why the extent
of
the adverse effects on the Old Course cannot be determined from the study as the adverse impact is “massive”
and
“blindingly obvious”. He did not think the adverse impact on the recognised culturally and
historically
valuable Old Course should turn on whether it is or is not one day graded by the AAB. He considered it
a
red herring whether AAB grades the Old Course.[98]
224. The judge said at §357 of the Judgment:
“ 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).”
225. The judge concluded that for the DEP to accept and
approve categorising the adverse impact on the Old Course, a place of obvious and recognised cultural and
historical 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, he found 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.[99] As regards
the
assessment of impact to cultural and historical heritage, he accepted there was a failure to comply with the
SB
§3.2.1(xi), and the TM §4.4.2(e) (whether the assumptions and methodologies used are sound and adequate) and
§4.5.1(b) (the quality of the report meets the requirements set out in §4.4 and the results and conclusions
are
technically sound and reliable).[100]
226. On appeal, CEDD seeks to defend the conclusion of
Undetermined Impact by running the same argument that the adverse impact of the project on the Old Course
cannot
be determined because there is a pending application for assessment and grading by AAB. Mr Chan
stressed
that the grading system is objective and a declared monument under the A&MO would trigger stringent
provisions regarding preservation and mitigation in TM Annexes 10 and 19 as well as under the EIAO. In
contrast, non-declared sites would receive less stringent non-statutory protection short of full
preservation. He argued that it is rational to classify the impact as “undetermined” as it
acknowledges
that significant adverse effects are likely but the extent to which they may occur or may be mitigated
remains
undetermined. The judge’s view that the only rational classification would be “unacceptable” was wide
of
the mark. He had conflated “function” of the Land with heritage value and preservation needs,
prejudged
the issue and substituted his own views for the professional views of AAB and AMO.
227. We do not agree with Mr Chan. As rightly
pointed
out by Mr Yu, the short answer to this is that the responsibility for conducting a CHIA – including
reaching a conclusion on residual impact – fell on CEDD, not AAB. These are the requirements of the TM
and
SB.[101] It is not right that an
assessment of
the impact of the project should be left hanging on the decision of AAB which has not been and will not be
involved in the EIA process. Absent a grading by the AAB, the project proponent is required to reach
its
own conclusion as to the heritage value. CEDD did so and duly recognised the Old Course to be of
important
cultural heritage. The only matter said to be “undetermined” was the impact. As for the argument
that the extent to which adverse effects may be mitigated remains undetermined, there was no obstacle to
CEDD
assessing whether mitigation was possible, and a grading by AAB would have no bearing on that
question.
What the judge said at §357 of the Judgment is plain common sense.
228. In his oral submissions, Mr Chan referred to TM
§9.1
which provided that the DEP shall take advice from the Secretary for Broadcasting, Culture and Sport (since
changed to the Secretary for Development) on matters relating to antiquities and monuments. AMO serves
as
the executive arm of the Secretary for Development and provides secretariat support to AAB, the statutory
body
set up to advise the Secretary for Development. He referred to exchanges between WSP (the consultant
of
CEDD) and AMO, showing the latter giving advice to WSP on relevant parts of the draft EIA report regarding
CHIA. He repeated the submission made below[102] that CEDD was acting pursuant to AMO’s advice and the classification of
Undetermined Impact was in accordance with the Guidelines for CHIA of AMO.
229. We do not think this obligation to consult AMO
assists
Mr Chan’s argument. As already mentioned, the responsibility for conducting CHIA and reaching a
conclusion on the residual impact rested with the project proponent, CEDD.
230. The above is sufficient to dispose of CEDD’s
challenge
to the judge’s conclusion that it is irrational and in breach of the requirements of the SB and TM for the
DEP
to accept and approve classifying the adverse impact on the Old Course as “undetermined”. The judge
regarded it a red herring whether the term “site of cultural heritage” in the TM should be construed by
adopting
the statutory definition of “site of cultural heritage” in the EIAO and did not find it necessary to resolve
the
debate.[103] We are inclined to
agree.
Besides, §3.2.1(xi) of the SB, which is specific to this Project, plainly required the assessment of
“potential
cultural heritage impacts” in the general sense, not in the sense of the statutory definition.[104] As stated in §359 of the
Judgment:
“ … 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).”
231. It is not strictly necessary to address in detail
the
arguments of Mr Chan on how the term “site of cultural heritage” in the TM should be construed.
In
any event, we are inclined to agree with Mr Yu it would not be right to construe this term in the relevant
parts
of the TM in such a restrictive manner where it is apparent from the context that it is not intended to
adopt
the narrow statutory definition in the EIAO, and where this may lead to internal inconsistency or even
absurdity.[105] It cannot be squared with
the
Heritage Conservation Policy of the government or the Guidelines for CHIA of AMO, which were discussed in
the
Judgment at §§321 to 326.
(6) Bats
232. SB Appendix H §2(v) specifically requires the
assessment, as a major task, to investigate and describe the existing wildlife uses of various habitats with
special attention to wildlife groups and habitats with conservation importance, including the categories
specified there. Mammalian examples expressly mentioned in the list include three bat species.[106]
233. The EIA Report claimed that only one bat species
(the
common Japanese Pipistrelle) was present with scarce number recorded and no roosting or breeding habitats
found
within Sub-Area 1, and that only a roost of Short-nosed Fruit Bat was found away from the project site.
It concluded that potential impacts on bats were minor.
234. Two major pieces of evidence contradicted the EIA
Report’s conclusions. First, the Club’s bat surveys (done in 2018-2021 and 2022-2023) identified 15
bat
species in abundant numbers across Sub-Areas 1, 2, and 4. Survey results available at the time were
provided to the DEP in June 2019 as part of the Club’s Project Profile Submission, in June 2022 as part of
the
Club’s Statutory Submission, and in May 2023 as part of the Club’s Response to the Additional Information.
235. Second, the Agriculture, Fisheries and Conservation
Department (“AFCD”) had conducted its own survey for the purposes of scrutinising the EIA study and
for
cross-checking other bat surveys. Over just one month in June/July 2020, AFCD recorded 17 bat species, 14
of
which were of local, regional, or global conservation importance. These results were entirely consistent
with
the Club’s findings but inconsistent with CEDD’s survey, which had found scarcely any bats. AFCD did
not
however disclose its results to CEDD during the EIA process.
236. The EIA Report itself contained no engagement with
the
Club’s survey results, no attempt to explain or reconcile the vast differences, and no reference to AFCD’s
data.
The report simply proceeded on the assumption that only one bat species was present. The judge
noted
that the DEP appears to have accepted this without questioning the evident disparities.
237. When asked to provide details of the bat survey
methodology, CEDD explained in the Additional Information that more attention was paid to the preferred
roosting
habits along the transects for the species listed on the review literature, and in addition potential
commuting,
foraging and drinking sites of bats were searched. The judge considered that the Club’s response to
the
Additional Information fairly summarised it in stating, among other things, as follows:[107]
“ 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 [Potential
Development Area] are considered misleading.” (bold in original)
238. The judge concluded that the failure to take into
account the data produced by the Club or at least to grapple with and seek to understand the radically
different
survey results, breached the requirements of TM §§4.4.2 and 4.5.1(a), (b) and (c).[108] In other words, there were omissions of
deficiencies
identified which may affect the results and conclusions of the assessment; the requirements of the SB were
not
met; the quality of the report was not such that the results and conclusions were technically sound and
reliable; and relevant environmental issues raised by the Club were not addressed.
239. Mr Chan advanced four main points against the
Judgment.
240. First, he submitted that the Club’s bat surveys
were
taken into account in the EIA Report and formed part of the baseline data. CEDD did not need to survey
for
the same data and instead conducted an incremental survey focusing on bat roosts. The difference in
survey
results is explained by the adoption of different methodologies and focuses. The focus in the EIA
study on
roosting sites, which is supported by relevant Guidance Notes (namely, EIAO GN No. 7/2010 and 10/2010),
cannot be faulted. Divergent results in themselves do not support an inference that CEDD’s methodology
was
flawed. TM §4.5.1(c) does not call for an express rebuttal to each query raised in the
consultation.
241. We agree with the Club’s submission that this
argument
does not meet the fundamental point that the EIA Report did not grapple with the stark difference in the
results
between its own bat survey and the Club’s surveys. The judge said there is no evidence from the EIA
Report
itself that it actually took into account the Club’s surveys in its evaluation, nor is there any engagement
with
them.[109] Mr Chan pointed to certain
paragraphs of the EIA Report but they merely stated that the literature reviewed included the ecological
survey
results in the consultancy study provided by the Club and referred to two bat species mentioned by the Club
being sighted by CEDD’s consultants.[110] As Mr Yu submitted, there is nothing there that actually engaged
with
or addressed the striking difference in the data. The judge observed at §377 of the Judgment,
correctly in
our view, that there was no evidence from the EIA Report itself that it did take into account or engage with
the
Club’s surveys in its evaluation. The contention that CEDD’s methodology is defensible and explained
the
difference does not provide an answer, as none of the hypotheses and explanations proffered in the
proceedings
appeared in the EIA Report. Reliance on the Guidance Notes (EIAO GN No 10/2010) prepared by AFCD
is
hardly conclusive when AFCD’s own survey produced results quite inconsistent with CEDD’s.
242. Secondly, Mr Chan argued that the judge had no
basis to find that had the bat species mentioned in the Club’s submissions been taken into account, the
overall
ecological value assigned to Sub-Area 1 would have been “Medium” rather than “Low to medium”. We
disagree. There was ample evidential basis, such as in the affirmations of the Club’s expert,
Mr David Stanton,[111] for the judge
to
think that, if the Club’s survey results had been properly taken into account, it was “at least possible”
that
the overall ecological value to be attributed to Sub-Area 1 should have been “Medium”.
243. Thirdly, Mr Chan made a new point orally that
the
difference in ecological value between “Medium” and “Low to medium” was not material and was anyhow a
legitimate
difference in professional opinion which did not justify the court’s intervention. We do not accept
this
submission. The question is not merely a difference in the classification of ecological value, but
whether
or not the EIA Report, which simply proceeded on the basis of its compiler’s surveys and results in apparent
disregard of the vastly different data from the Club’s surveys (which we now know are largely consistent
with
AFCD’s results), was compliant with the TM and the SB. If it was not, the DEP had no power to approve
it. There is no basis to contend that if the approval was ultra vires, the judge’s decision to
quash it can be impugned for any vitiating error.
244. Fourthly, it was submitted that the judge was wrong
to
make use of AFCD’s bat survey to cast doubt on the soundness of the EIA Report, as CEDD was not aware of
AFCD’s
results. The judge accepted that CEDD was not aware of AFCD’s bat survey when the EIA Report was
prepared
and that this was an excuse for not dealing with it.[112] But it seems to us that this does not preclude the judge from taking the view
that
AFCD’s survey reinforced the point that the EIA study ought to have addressed the Club’s results, explaining
the
difference if possible, and that the technical soundness and reliability of the results and conclusions in
the
EIA Report were thrown into doubt by the failure to grapple with the Club’s surveys.
245. In his oral submissions Mr Chan also made a
subsidiary point that the judge misunderstood the evidence of the Club and thought that the Club had found
12
roosts when in fact it had only found two in the survey area. On our reading of the relevant part of
the
Judgment (§388, 4th bullet point), we do not think that there was any misunderstanding.
246. Accordingly we reject CEDD’s contentions relating
to
bats survey.
(7) Moths
247. Another wildlife group with conservation importance
specifically mentioned in SB Appendix H at §2(v) is moths. This was the first time in Hong Kong that
the
study brief for an EIA covered moths as part of the ecological assessment. §2(iv)(c) of Appendix H
requires the provision of details of each habitat type “such as … species present, dominant species found,
species diversity and abundance of major taxa groups, community structure, seasonal patterns …”
248. As in the case of bats, the dispute that has arisen
concerns the establishment of accurate ecological baseline information and in particular whether the EIA
Report
failed to take account of survey findings from the Club.
249. The Club’s expert, Dr Roger Clive Kendrick,
conducted three sets of moth survey in 2018, 2020 and 2022/23. The results were provided to the DEP by
the
Club respectively in its Project Profile Submission in June 2019, its Statutory Submission in June 2022, and
its
Response to the Additional Information in May 2023. All together Dr Kendrick recorded at least
729
moth species, including 107 species of conservation concern. Among these were four moth species
meeting
the International Union for the Conservation of Nature “critically endangered” criteria and seven meeting
“endangered” criteria – some found within Sub-Area 1 itself.
250. In contrast, the EIA Report’s moth survey recorded
only
38 species within the Project site, with just two species of conservation importance.[113]
251. After consultation on the EIA Report, on the ACE’s
recommendation, pursuant to s 8(1) of the EIAO the DEP asked for an additional moth survey and further
details of the methodology. They were provided in the Additional Information. Nevertheless, the
Club’s expert said that multiple deficiencies remained.
252. In the judicial review proceedings, CEDD defended
its
methodology, arguing that its survey was designed to focus specifically on the four Sub-Areas, whereas the
Club’s broader survey using brighter lights attracted moths from further away. However, the judge
noted
that this comparative reasoning and justification did not appear anywhere in the EIA Report itself.
253. The judge rejected CEDD’s argument that rationality
only requires looking at one approach. The essence of a proper EIA process is not to examine partial
information in a vacuum. Both CEDD’s and the Club’s methodologies might appear rational in isolation,
but
the significant disparity in results demanded explanation. The EIA Report should have identified why
one
approach was chosen over another, or attempted to reconcile the two sets of findings. More
fundamentally,
the Club’s survey data – directly relevant to the ecological baseline – was simply ignored. The EIA
Report
referenced the existence of a 2018 Club survey but took none of its substantive information into account
when
designing methodology or conducting habitat analysis.
254. The judge found this constituted a failure to
address
relevant environmental issues raised by the Club during the inspection period, in breach of TM §4.5.1(c).
255. In this appeal Mr Chan reiterated the point
that
CEDD’s moth survey was based on a rational approach and it was open to CEDD adopt it. With respect,
this
does not address the point. The judge was not required to and did not rule on which of the survey
methodology adopted by Dr Kendrick and CEDD’s expert, Prof Wang Min, is the better one. He
did
not find Prof Wang’s approach irrational. Rather, the point is that significant and relevant
materials such as moth survey results vastly different from those relied on by the project proponent should
be
grappled with and addressed by the project proponent in the EIA process, and not only subsequently in the
evidence filed for judicial review proceedings.
256. Mr Chan also argued that TM §4.5.1(c) only requires
a
project proponent to address the environmental issues, not the arguments, raised by the public. CEDD
had
addressed the substance of the moth issue raised by the Club, by designing and conducting a moth
survey.
The project proponent is not required to justify its methodology in express terms and in a pre-emptive
rebuttal
of potential arguments that opponents to the project may raise. Otherwise project proponents would be
forced to practise “defensive EIA assessment” and a well-resourced opponent would be enabled to delay the
process by raising myriad arguments and allegations.
257. We refer to our discussion of TM §4.5.1(c) in §80
above. We do not think the judge meant to suggest that the project proponent has to address each and
every
argument raised during the public inspection as in an exercise of pleading. What we are concerned with
here is survey data, not arguments, especially those provided by the Club in its Statutory Submission.
In
fact §2(i) of Appendix H to the SB requires, for an ecological impact assessment, that the assessment shall
review the findings of relevant studies/surveys, collate the available information on all habitat/species of
conservation importance, and evaluate the information collected.
258. Finally, Mr Chan submitted that given
Prof Wang’s
methodology was rational, a failure to address the Club’s surveys was a purely technical breach with no
impact
on the environment, and that the court should therefore withhold relief in the exercise of its
discretion.
We do not accept the submission. On the basis that there was non-compliance with the TM, the Decision
to
approve the EIA Report was ultra vires. As mentioned in §61 above, it would require an
exceptional
reason to allow the Decision to stand. We are not satisfied that the non-compliance would have no
consequence on
the environment.
(8) Northern Metropolis
259. In October 2021 – after the SB was issued but
before
the EIA Report was completed – the Northern Metropolis was announced in the Chief Executive’s Policy
Address. A Northern Metropolis Development Strategy Report dated 6 October 2021 was published.
In
broad terms, the question that has arisen is whether relevant provisions of the TM and the SB require the
EIA
study to take account of the Northern Metropolis.
260. TM §3.4 provides:
“ 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 EIA study brief.”
261. TM §4.4.2 sets out a list of specific factors to be
considered in reviewing the quality of an EIA report. §4.4.2(g) asks:
“ whether the assessment has considered and compared the environmental benefits and
disbenefits
of various scenarios with or without the project”.
262. The relevant provisions of the SB include:[114]
“ 3.2.1 … 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 …:
…
(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 …
3.3.1 Purpose(s) and Objectives of the Project
The Applicant shall provide information on the purpose(s) and objectives of the
Project, describe the need of the Project, describe the benefit of the Project and scenarios with and
without the Project.”
263. There is no dispute that the FGC is within the
conceptual boundaries of the Northern Metropolis but the Northern Metropolis was not referred to or
considered
in the EIA Report or the Additional Information.
264. There was evidence from CEDD 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. The Project was
expected for completion in 2029, which would be much earlier than the housing supply from Northern
Metropolis.
265. The Club argued before the judge that the Northern
Metropolis was significant in two respects: first, it presented opportunities for greater public housing
yields
without the same environmental and cultural damage; secondly, building housing over the Old Course
conflicted
with government policy, which regarded the FGC as a green corridor and open space amenity at the heart of
the
planned Northern Metropolis area.
266. In contrast, CEDD contended that the EIAO was
concerned
only with environmental acceptability, not land policy, and that the Northern Metropolis was not an
alternative
to the Project but part of a long-term housing strategy.
267. The judge rejected CEDD’s interpretation of TM
§3.4,
holding that it specifically requires assessment of cumulative impacts of other developments in the
vicinity.
The announcement of the Northern Metropolis – involving large-scale development near the Golf Course –
could materially affect whether the Project’s adverse environmental impacts were acceptable. A
proposal
viewed in isolation might be seen differently when the whole environs is subject to much wider
development. The judge said at §429 of his Judgment:
“ 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.”
268. In conclusion, the judge found a breach of TM
§4.4.2(g)
and SB §3.2.1(xiii) and §3.3.1.
269. With great respect, whilst the Northern Metropolis
may
be a relevant matter for the Government to take into account in deciding ultimately whether to proceed with
the
Project in the form and scale envisaged or at all – a question which does not arise on this appeal and on
which
we express no opinion – we do not agree that it came within the purview of the provisions of the TM and SB
relied upon.
270. The first point to note is that the EIA Report is
an
environmental impact study. TM §3.4, which governs the preparation of the SB and provides that
the
SB may set out issues relating to combined or cumulative impacts, underlines that the focus is on the
environmental acceptability of the project. TM §4.3.1(c)(ii) requires the assessment
methodologies to be capable of addressing “the projected environmental conditions with the project in place
and
the sum total of the environmental impacts taking into account all relevant existing, committed and planned
projects”. The requirements of the SB are to be read in that light. SB §3.2.1 sets out the
scope of the EIA study required, and SB §3.4 sets out the technical requirements. SB §3.4.1
provides
that the project component should conduct the EIA study “to address all environmental aspects of the
activities as described in the scope as set out above.” Thus the EIA Report duly assessed the
cumulative
impacts of the Project and existing, committed and planned developments in the vicinity in respect of air
quality, noise, water quality and landscape and visual impact.
271. The assessment called for by the TM and the SB was
not
about whether the Project was desirable given that there might be other housing developments in the
horizon. Questions such as how the Project “might fit into the bigger picture of the Northern
Metropolis”
and whether there are other sources of housing land supply, are matters of land policy which are, as the
judge
described it, “big-picture policy decisions”.[115] These questions may well be relevant for the Government at a high level
to
consider at some point, but it does not follow that they are therefore questions to be assessed in the EIA
study
and decided by the DEP.
272. The Northern Metropolis is a policy initiative that
covers very large areas in the northern part of Hong Kong, including new towns in Tin Shui Wai, Yuen Long,
Fanling, Sheung Shui, various New Development Areas in different planning and development stages and their
neighbouring areas, with a total area of 30,000 hectares (over one-third of the total land area of Hong
Kong). It would be meaningless to speak of assessing the environmental impact of this development
strategy
as a whole – especially at its infancy – in conjunction with the Project.
273. Further, if potential housing supply generated from
future developments within the Northern Metropolis is required to be taken into account as affecting the
“environmental acceptability” of the Project, it is difficult to see why housing developments elsewhere in
Hong
Kong should not also be required to be taken into consideration, which seems to us to lie far beyond what is
intended by the TM and the SB.
274. TM §4.4.2(g) (and see also §4.3.1(c)(i)[116]) and SB §3.3.1 require an
assessment of
benefits and disbenefits “with or without the project”, not some other project.
SB §3.2.1(xiii) (like SB §3.2.1(i) & (vii)) requires an assessment of the potential cumulative
impacts of the Project through interaction or in combination with other “existing, committed and planned”
projects in the vicinity. This reflects the reference in TM §3.4 to “existing, committed and
planned”
developments in the vicinity. As the judge implicitly accepted in the part of his Judgment relating to
“Noise – Fan Kam Road widening” (§§446-448), this phrase imports a state of established certainty, readiness
or
obligation, and does not mean just any conceivable potential future development. Thus the Project
Profile
and the EIA Report listed the specific ongoing or planned developments that would interface with the
Project. But these provisions are not apt to apply to the Northern Metropolis as a whole. The
Northern Metropolis was, at the relevant time at any rate, a high-level extensive development strategy or
broad
policy initiative with a very large geographical coverage – not a specific development project – designed
inter
alia to promote Hong Kong’s integration into the overall development of the country and the Greater Bay
Area. It would not be meaningful to speak of a study of the environmental impact of that strategy,
whether
on its own or cumulatively with the Project. The Club has not identified any “existing, committed and
planned” projects in the vicinity of the site of the Project arising from that strategy.
275. Mr Yu prayed in aid Recommendation (b)
contained
in Annex 2 to the Decision that 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.”
This recommendation was simply an exhortation from the ACE for CEDD, which the DEP saw fit to include in an
annex
to his Decision, and underlines the fact that there was little concrete data available about the Northern
Metropolis strategy. It does not affect the proper interpretation of the TM and the SB. The
judge
referred to Mr Yu’s argument relating to it[117] but, correctly in our view, did not rely on it.
276. For the above reasons, we conclude that the alleged
breach of the TM and SB in relation to the Northern Metropolis was not made out.
(9) Waste
277. This issue relates to the removal of waste from the
project site during the construction period.
278. TM Annex 15 §3.3 provides:
“ The impact caused by handling (including labelling, packaging & storage), collection,
and
disposal of wastes shall be addressed in detail. This assessment shall cover but not be limited to the
following areas:
- potential hazard;
- air & odour emission;
- noise;
- wastewater discharge; and
- public transport.
When large quantities of wastes are identified, the impact on the capacity of
waste
collection, transfer and disposal facilities, especially the existing or strategic solid waste disposal
facilities have to be assessed.”
279. SB §3.4.3.2 provides:
“ … 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.”
280. §2(iii) of Appendix F to the SB, which deals with
waste
management, requires the EIA report to state the transportation routings and the frequency of the trucks
involved. §2(iv) requires that the impacts caused by, inter alia, transportation of wastes
“shall
be addressed in detail”.
281. The EIA Report contained a table of estimated
C&D[118] materials generated from
different
construction phases, setting out their types and estimated amounts.[119] The report identified that land transport should be utilised to
deliver the
materials. It was anticipated there would be a maximum of 30 vehicles per day for transporting the
wastes
identified during a 6-year construction phase.[120]
282. The EIA Report did not set out the calculations,
but as
revealed in the evidence filed in the judicial review, the assessment in the report was based on total
volume of
C&D materials of 611,200 m3, to be transported by 38-tonne trucks (with an estimated
capacity of 13.75 m3 each). Since the detailed construction sequence was not yet
available, the truck trips were assumed to be equally distributed over the 6-year construction period with
301 working days a year. A factor of 20% was added out of prudence. The calculations
resulted
in around 30 vehicles per day.
283. In the Form 86, the Club stated there were
inaccuracies
in the calculations of truck trips in the EIA Report.[121] It was said that the report did not take account of the uneven
distribution
of truck trips, and that the initial site formation works would be likely to generate more waste than later
stages. It was also said that the report underestimated the volume of inert C&D materials.
As a
result, it was said that the report failed to meet the TM quality requirements in §4.4.2(b) (“whether the
information and descriptions in the EIA report are factually correct”) and §4.5.1(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”).
284. In the expert evidence of Mr Alexi Kumar
Bhanja
filed by the Club, he said that the capacity of construction waste trucks used to determine truck trips
generally ranges between 5.5 m3 and 7.5 m3 in most EIA reports and that he
had
not come across one based on 13.75 m3. He further said that the calculation on which
the
report was based ignored information showing that the majority of C&D materials would be removed within
the
first 21 months, which would mean around 90 vehicles per day during that time even assuming the larger truck
was
used.
285. In response, CEDD pointed out in its evidence that
the
use of 38‑tonne trucks was supported by relevant literature, and explained that as shown in the EIA Report,
the
site formation works (concentrated in the earlier years) were estimated to account for 60% of the C&D
waste,
while the building works (concentrated in the later years) would account for 40%, so that, taking into
account
the 20% buffer added to the estimated truck trips, the assumption of equal distribution was rational and
reasonable.
286. In the Judgment, Coleman J noted that there
was no
dispute over the estimated total waste amounts generated. He did not doubt that genuine calculations
had
been done to support the estimates given in the EIA Report. He did not construe the TM or the SB to
require underlying calculations for estimates to be included in the report itself (although he noted that
provision of such calculations could be beneficial for proper understanding of the report).
Critically, as
we understand the Judgment, the judge did not find that the EIA Report did not meet quality requirements or
was
technically unsound because of the use of 38-tonne trucks or the assumption of even distribution in the
assessment or otherwise. He did not find any breach of TM §4.4.2(b) or §4.5.1(b) as alleged by the
Club.
287. Instead, the judge concluded at §488 of his
Judgment:
“ Basis that [sic] 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).”
288. Perhaps because breach of TM §4.5.1(c) was not
the
Club’s complaint in its Form 86 (though the pleading point has not been taken by CEDD on appeal), this
passage is somewhat cryptic. In particular, the EIA Report obviously cannot be expected to address the
points raised by the Club in its Statutory Submission, which came after the report. It may be that the
judge had in mind the power of the DEP to seek further information under s 8(1) of the EIAO to ensure
that
the report, in combination with supplementary information, addresses relevant issues raised by the public
during
the public inspection period within the meaning of TM §4.5.1(c) – see the discussion in §80
above. As
the request actually made and the Additional Information provided did not encompass this issue, the judge’s
conclusion can be sustained on the basis that the EIA Report and the Additional Information as a whole did
not
comply with TM §4.5.1(c).
289. Mr Chan submitted that TM §4.5.1(c) does
not
require CEDD to address the Club’s arguments and criticisms per se and does not mean that CEDD had to
provide the underlying calculations. §4.5.1(c) requires that the EIA report addresses “relevant
environmental issues” raised during the public inspection period. It seems to us that its meaning and
therefore what it in substance requires will depend on the facts of the case. Whilst it could not have
been intended that in every case the project proponent should lodge a “reply” after the public inspection
period, traversing each and every point raised by the public and the ACE, there may be specific matters
raised
that properly call for response or explanation before the DEP can decide whether or not to approve the
report.
290. In the present case the Club had in its Statutory
Submission put forward information and calculations relating to truck capacity and construction programme,
supporting its apparently credible challenge to the estimate of an average of 30 trucks per day stated in
the
EIA Report without much explanation. Given in addition the requirement in the TM and the SB for
environmental impact caused by the transportation of wastes to be “addressed in detail”, the judge’s view
that
what the Club raised was an environmental issue that needed to be addressed within the meaning of
TM §4.5.1(c) cannot be faulted.
(10) Noise – Fan Kam Road
widening
291. As specified in the SB, the EIA study needed to
include
noise impact assessment. §3.2.1(iii) of the SB required the EIA study to address key issues including
potential noise impacts during the construction and operation of the Project.
292. In the EIA Report, the noise impact on future
residential blocks in Sub-Area 1 facing Fan Kam Road was assessed on the basis that there was a
10 m
wide strip, being a “proposed amenity area”, at the western edge of the project site alongside Fan Kam
Road. But it was also recognised there was a possibility that the Highways Department might decide to
utilise that strip of land for the purpose of widening Fan Kam Road under another project, and so the EIA
Report
in another diagram showed the 10 m strip as “10m setback reserved for future road”. In a section
on
concurrent projects, the EIA Report also referred to Road Improvement Works at Fan Kam Road, though the
commencement and completion years were not available.
293. The Club’s complaint is that the EIA study only
assessed the noise impact based on the 10 m strip being used as an amenity area, and did not make an
assessment on the basis it became part of the widened Fan Kam Road. The Club relied on SB §3.2.1
which required the EIA study to address key issues including:
“ (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 widening of Fan Kam Road and/or other road works …; to ascertain whether the
findings of this EIA study have adequately assessed and addressed the environmental impacts of those
DPs;
and where necessary to identify the outstanding issues that need to be assessed and addressed in any
further
detailed EIA studies.”
294. The Club contended that the traffic noise impact
during
the operation stage of the Project had as a result been underestimated in the EIA Report. There was
accordingly a breach of the TM quality requirements in §§4.4.2 and 4.5.1(b) as there were omissions or
deficiencies so that the results and conclusions of the assessment could not be said to be “technically
sound
and reliable”.
295. In the Judgment, the judge rejected this complaint
as
follows:
“ 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.”
296. Mr Yu submitted that the judge’s reasoning
overlooked that SB §3.2.1(xiv) specifically refers to the potential widening of Fan Kam Road. He
argued that the widening of that road was expressly listed as a key issue to be addressed, and how CEDD
“regarded” that project cannot detract from the objective meaning of the SB.
297. In our view, the judge’s conclusion is sound.
To
put it in context, SB §1.3 sets out three individual work items included in the Project (namely, sewage
treatment works, a sewage pumping station, and an activity for the reuse of treated sewage effluent from a
treatment plant) that fall within Schedule 2 to the EIAO and are therefore designated projects as
such. SB §3.2.1(xiv) requires CEDD to identify additional individual Schedule 2 designated
projects “proposed under the Project”, to ascertain whether the findings of the EIA study at hand have
adequately assessed and addressed the environmental impacts of those designated projects, and where
necessary,
to identify the outstanding issues that need to be assessed and addressed in any further detailed EIA
studies. Properly construed, the widening of Fan Kam Road was mentioned in para (xiv) as a
possible
candidate but that provision would only apply to it and require it to be identified as such if it was indeed
a
Schedule 2 designated project proposed under the Project. There is no dispute that, as it
turned out, there was in fact no such road widening proposed under the Project. On the contrary, it
was
proposed under the Project that the strip of land in question be used as an amenity area. Accordingly,
there was no relevant breach of the SB in this respect.
298. If the Highways Department should subsequently
decide
to proceed with the road widening, that would be a different project initiated by a different project
proponent
for which a separate EIA study or Environmental Review would have to be undertaken, including a noise impact
assessment.
299. As explained in §274 above, SB §3.2.1(xiii)
does
not cover any possible or potential project but only those that are existing, committed or planned.
The
evidence is that at the time, the relevant phase of the improvement of Fan Kam Road was still in the
feasibility
study stage. The judge did not consider this to be an “existing, committed or planned” project and we
agree with him.
300. For these reasons, the Club’s respondent’s notice
on
this point is dismissed.
J. Conclusion
301. In summary:
(1) The judicial review proceedings were not academic and no basis has been shown why a
quashing
order should be withheld even if the Decision is vitiated on the relevant grounds.
(2) We agree with the judge that in particular cases where the consultation on the EIA report
is
deficient, fairness may require that there be consultation on the further information supplied by the
project proponent pursuant to s 8(1) after the original consultation. In the present case the
Additional Information, at least as far as the HydroIA is concerned, was material that ought to have
been
but was not included in the EIA report for public inspection. The failure to remedy this
deficiency by
holding a further consultation meant that there was unfairness in the consultation overall.
(3) The DEP did not take into consideration the Club’s Response to the Additional Information
in
deciding under s 8(3) whether to approve the EIA Report and such failure was Wednesbury
unreasonable.
(4) The judge was correct to hold that the Conditions imposed by the DEP in approving the EIA
Report fell outside the permissible scope.
(5) The EIA Report did not meet the requirements of the TM and the SB in relation to the
topics of
OVTs, tree survey and compensation, hydrology and CSC, cultural heritage, bats, moths and waste, but not
in
relation to Northern Metropolis and noise – Fan Kam Road widening.
302. For the reasons given, the appeals are dismissed.
303. We make an order nisi that the DEP and CEDD
do
pay the Club’s costs of the appeals, not including the costs of the respondent’s notice as to which there
will
be no order of costs. The costs are to be taxed if not agreed.
(Jeremy Poon)
Chief Judge of the
High Court |
(Susan Kwan)
Vice President |
(Godfrey Lam)
Justice of Appeal |
Mr Rimsky Yuen SC, Ms Anna Chow and Mr Martin Ho, instructed by Department of Justice, for
the
Respondent (Appellant)
Mr Anthony Chan SC, Ms Leticia Tang and Mr Zenith Chan, instructed by Department of Justice,
for
the Interested Party (Appellant)
Mr Benjamin Yu SC and Mr Timothy Parker SC, instructed by Messrs. Johnson Stokes & Master, for the
Applicant
(Respondent)
APPENDIX
Part II (sections 4 to 8) of the
Environmental Impact Assessment Ordinance
(Cap 499)
4. Certain projects to be designated projects
(1) The projects listed in Schedules 2 and 3 are designated projects.
(2) The Secretary may by order published in the Gazette amend the lists of
designated
projects in Schedules 2 and 3 by adding projects to or removing projects from the lists.
(3) The addition of a designated project to Schedule 2 or 3 does not affect an
existing project—
(a) if the existing project has been approved, permitted or authorized, or
consented
to, by the Government or a statutory authority under an Ordinance specified by the Secretary in the
order
amending the Schedule; or
(b) if construction of the project commences within 6 months of the addition of
the
project to the Schedule.
(4) The Secretary may after consulting the Director specify in writing as a
designated
project, contiguous projects which, if taken individually, do not meet the specified levels in Schedule
2 or
3 to qualify as a designated project, and which are proposed by the same person or associated persons,
if he
is satisfied that the purpose behind the separation of the projects is to avoid the purposes of this
Ordinance. The Director must give the person or associated persons who propose or are carrying out the
contiguous projects a copy of the specification of the projects as a designated project.
(5) A person or associated persons may apply to the Director for confirmation as
to
whether contiguous projects proposed by him or them are to be treated as designated projects. The
Director
must advise the person or associated persons within 14 days that the projects are to be treated as a
designated project.
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 readvertise 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.
___________
[1] [2024] HKCFI 1279.
[2] Previously called the Secretary for
the
Environment, Transport and Works.
[3] Chu Yee Wah v Director of
Environmental Protection [2011] 5 HKLRD 471, §31.
[4] Judgment, §81.
[5] See Environmental Impact Assessment
Ordinance (Amendment of Schedules 2 and 3) Order 2023.
[6] [2023] HKCFI 1946.
[7] See Judgment, §§489-491.
[8] CACV 573/2024 is the appeal by the
DEP. CACV 574/2024 is the appeal by CEDD.
[9] Judgments, §533.
[10] See Sections 1.4 and 1.5 of the
EIA
Report and §2.4.1 of the Executive Summary.
[11] See e.g. Shiu Wing Steel
Ltd
v Director of Environmental Protection (2006) 9 HKCFAR 478 at §90, at p 525H; Fordham,
Judicial
Review Handbook (7th ed), Chapter P44.
[12] Cf. s 23(c) of the
Interpretation and General Clauses Ordinance (Cap 1), which provides: “Where an Ordinance repeals in
whole
or in part any other Ordinance, the repeal shall not … (c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under any Ordinance so repealed …”
[13] See Judgment, §536.
[14] See e.g. the speech of the Deputy
Secretary for Planning, Environment and Lands in Official Record of Proceedings of the Legislative
Council, 29 January 1997, pp 76-77; Paper for the House Committee meeting on 10 January 1997
Report of the Bill Committee on Environmental Impact Assessment Bill, LegCo Paper
No. CB(1)/96-97,
§12-14.
[15] Judgment, §132(3) & §133.
[16] Judgment, §§136 & 142.
[17] See the principles his Lordship
set
out in Judgment, §32.
[18] See p 15/26.
[19] Judgment §141.
[20] mentioned there by its scientific
name, Glyptostrobus pensilis.
[21] TM, Annex 16, §§1.2, 5.2.1, 5.2.3
& 5.3.1.
[22] §9.7.2.24 and §9.7.2.25.
[23] Judgments, §279.
[24] Citing: Gerry Bates,
Environmental
Law in Australia (11th edn), §13.57 (pp. 900-901); Ulan Coal Mines Ltd v Minister
for
Planning [2008] NSWLEC 185, §§77-78; Rivers SOS Inc v Minister for Planning [2009] NSWLEC
213, §§114-136; and Northern Inland Council for the Environment Inc v Minister for the
Environment
[2013] FCA 1419, §§32-42.
[25] See Environment, Transport and
Works
Bureau – Technical Circular (Works) No. 13/2003 and Finance Circular No. 2/2021 – User Guide on
the
Finance Committee, Establishment Subcommittee and Public Works Subcommittee.
[26] Judgment, §494.
[27] Judgment, §§516-517.
[28] Additional Information, §6.5.3.
[29] Judgment, §524.
[30] Judgment, §525.
[31] Judgment, §§12, 13
[32] The Club did not pursue two other
rulings against it stated in the respondent’s notice.
[33] Judgment, §§24 to 31
[34] Shiu Wing Steel Ltd v Director
of
Environmental Protection & Airport Authority, §28.
[35] Shiu Wing Steel Ltd v Director
of
Environmental Protection & Airport Authority, §30.
[36] Chu Yee Wah v Director of
Environmental Protection, §84.
[37] Citing Ho Loy & Anr v
Director
of Environmental Protection, HCAL 21 & 22/2015, 22 December 2016 at §§55 to 58,
per
Chow J; Environmental Law in Australia (11th ed) by Gerry Bates, §§6.13 to 6.19;
Prineas v
Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417
[38] Citing R (Mott) v Environment
Agency [2016] 1 WLR 4338 at §69; R (Spurrier) v Secretary of State for Transport [2020] PTSR
240
at §179; R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] Env L R
29
at §61.
[39] Judgment, §§118, 119, 178(3).
[40] Join Smart Ltd v Director of
Environment Protection [2022] 1 HKLRD 1110 at §27(2), per Chow JA (sitting as an additional
judge
of the Court of First Instance), summarising the principles stated in Shiu Wing Steel Ltd v Director of
Environmental Protection (2006) 9 HKCFAR 478 at §19.
[41] Prineas v Forestry Commission
of
New South Wales at 417, sections 111 and 112 of the Environmental Planning and Assessment Act 1979
(NSW).
[42] Shiu Wing Steel Ltd v Director
of
Environmental Protection, at §6.
[43] Judgment, §§227 to 229.
[44] §1 (the applicant shall review
relevant plan(s) and conduct surveys/studies to identify existing sensitive landscape characters and
landscape
resources including OVT, tree of large size, and protected/rare plant species), and §2 (the applicant shall
describe, appraise, analyse and evaluate the existing and planned landscape resources and character of the
assessment area … 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.)
[45] Circular 5/2020, §6.
[46] No decision has been made to date
to
register the trees nominated.
[47] Preliminary Feasibility Study on
Developing the New Territories North, co-authored by CEDD in December 2017, §6.1.2, footnote 80, and the
Appendix under the heading “Development Constraints and Considerations”, stating there are about 80
potentially
registrable OVTs found within the FGC according to a tree survey conducted by the Club, with a diameter at
breast height (“DBH”) over 1,000 mm, the majority of which are estimated to be over 100 years old and
scattered across the golf course; the Project Profile issued by CEDD in May 2019 at §§3.9.1 and 3.9.2 (which
noted the cluster of trees in the PDA with many considered as potential OVTs, stating that the survival rate
of
potential OVTs after transplanting is low due to their maturity), and §5.9.5 (on mitigation measures to be
incorporated in the design stage of the PDA, stating that the design should take into account the location
of
potential OVTs and associated clearance zones and avoid disturbance of the soil levels around these trees).
[48] Consultancy Brief issued by CEDD
to
WSP in September 2019, §§6.15.1 and 6.15.2.
[49] A summary of these paragraphs is
at
§4.1.6 of the Executive Summary of the EIA report, quoted in the Judgment at §211.
[50] There was some confusion in the
affirmations of the witnesses for DEP and CEDD what kind of tree survey was actually carried out. The
EIA
report stated at §11.5.1.3 that 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”. The judge found in §242 of the Judgment that an
individual tree survey was in fact performed in Sub-Area 1. §11.6.3.3 of the EIA report stated that
among
the 1,255 trees surveyed in Sub-Area 1, 70 TPIs were identified. Table 11.10 on Recommended Mitigation
Measures set out a precise number of trees to be removed in Sub-Area 1 and the adjacent area.
[51] Issued by the Agriculture,
Fisheries
and Conservation Department in conjunction with the Environmental Protection Department.
[52] Judgment, §213.
[53] Judgment, §§225, 226.
[54] Judgment, §216.
[55] Judgment, §266.
[56] Judgment, §§241 to 242.
According to the survey conducted by URBIS Limited for the Club in February and March 2023 to verify the
findings of the tree survey in the EIA report, the EIA survey missed 460 trees including 26 rare and/or
protected species and 5 TPIs; mis-identified 57 tree species; plotted over 60 trees in wrong locations;
recorded
most tree dimensions incorrectly (at averages of only 86% of actual DBH, 76% of actual tree heights, 66% in
woodland areas and 60% in open areas of actual tree canopy spreads); failed to identify that 25 of the 29
large
TPIs in Sub-Area 1 are directly comparable in size and quality with existing OVTs.
[57] Judgment, §251.
[58] Quoted in the Judgment at §238.
[59] Judgment, §259
[60] Judgment, §§253 to 258. The
Club has consistently identified this issue since its Statutory Submission on 17 June 2022. It is not
the
case that this was raised only in the 3rd affidavit of Alexander Main Duggie filed in May 2024
one
week before the hearing.
[61] Glyptostrobus pensilis,
also
known as Chinese Swamp Cypress
[62] At §§9.7.23 to 9.7.25; summarised
in
the Judgment at §§275 to 276.
[63] Judgment, §279.
[64] The conclusions of the HydroIA
are
quoted in the Judgment at §303.
[65] 1st affirmation of
Prof
Chui filed on 27 November 2023, §20, quoted in the Judgment at §291.
[66] 1st affirmation of
Prof
Chui, §19.
[67] Judgment, §§292, 293, 308.
[68] Judgment, §300.
[69] The conclusions of Prof Jiao are
set
out in the Judgment at §295. He opined that compensatory tree planting in Sub-Areas 2 and 3 can lead
to
about 0.7 m decrease of water level in Sub-Areas 2 to 4, which may influence the hydrological environment
for
the living of CSC.
[70] 1st affidavit of Ms
Castka
filed on 24 July 2023, §§19, 23.
[71] 3rd affidavit of Ms
Castka
filed on 7 February 2024, §§21 to 24, summarised in the Judgment at §300.
[72] These activities have continued
following the expiry of the Club’s lease in August 2023.
[73] See Judgment at §§179 to 191,
citing
Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 at §§125 to 188.
[74] 2nd affirmation of Mr
Leader filed on 10 August 2023, §§8 to 10.
[75] Judgment, §313.
[76] 2nd affirmation of
Tsang
Sai Wing Terence, Assistant Director (Environmental Assessment) in Environmental Protection Department,
filed on
4 December 2023, §113. This is disputed by Ms Castka in her 3rd affidavit at §37, where she
noted that the Lok Ma Chau Spurline project required detailed groundwater studies to determine the impacts
on
the ecologically sensitive Long Valley.
[77] Ms Castka pointed out in her
3rd affidavit at §§61 to 63 it is fallacious to assume a linear relationship between surface
profile
and water flow and the rockhead map shows that the underground geology does not match the surface contours
at
all. See Judgment at §297.
[78] Additional Information to the EIA
report, §§7.3.8 to 7.3.9, 7.4.1 to 7.4.6; CEDD’s response to Annex 2 of Form 86, §2(vii) 7 to 10.
[79] 1st affidavit of Wan
Wai
Keung filed on 27 November 2023 at §§22 to 27. Mr Wan was an executive director of WSP, CEDD’s
consultant.
[80] Judgment, §§297 to 298.
[81] Judgment, §292.
[82] Judgment, §312.
[83] Additional Information to the EIA
report, §§7.2 to 7.7.
[84] Citing in support the
1st
affirmation of Prof Chui at §§21.3 to 21.5.
[85] EIA report, §9.8.3.3.
[86] Judgment, §310.
[87] 3rd affidavit of Ms
Castka, §§31 to 37.
[88] Judgment, §311.
[89] Judgment, §315.
[90] Judgment, §316.
[91] 1st affidavit of Mr
Wan,
§34.
[92] 3rd affidavit of Ms
Castka, §§75 to 76.
[93] Judgment, §297.
[94] CEDD’s responses to comments of
ACE.
[95] “Unacceptable Impact” is defined
as
“if the adverse effects are considered to be too excessive and are unable to mitigate practically”.
[96] “Undetermined Impact” is defined
as
“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.”
[97] An application for grading by AAB
was
made by the Club in 2018. That application is still pending and has not been determined.
[98] Judgment, §§351 to 356.
[99] Judgment, §363.
[100] Judgment, §364.
[101] TM §§4.2.1(e), 4.3.1(a),
4.4.3(a)(viii), Annex 10, Annex 19; SB §§2.1(vi), 3.2.1(xi), 3.4.12.
[102] Skeleton submission for CEDD
dated 30 April 2024, §84.
[103] The judge’s finding at §364
there
was a failure to comply with TM §§4.4.2(e) and 4.5.1(b) would seem to suggest that he did not accept CEDD’s
contention. If and to the extent that he accepted the argument of CEDD that the term “site of cultural
heritage” in the TM should follow the definition of this term in EIAO, the Club has contended in the
respondent’s notice this would be incorrect.
[104] Judgment, §344.
[105] Judgment, §§330 to 335.
[106] Cynopterus sphinx,
Tylonycteris pachypus and Scotophilus kuhlii.
[107] Judgment, §388.
[108] Judgment, §390.
[109] Judgment, §377.
[110] §§9.3.1.1, 9.5.2.6 and
9.5.2.8.
[111] See Mr Stanton’s
2nd affirmation §§48-50 and 3rd affirmation §§25-26.
[112] Judgment, §390.
[113] §§9.5.8.1-9.5.8.3, 9.7.2.29
and
9.7.2.54.
[114] The reference in §§413 and
432 of
the Judgment to §3.3.2 of the SB is a typographical error which should read §3.2.1 instead.
[115] Judgment, §426 and §427.
[116] This requires that the
assessment
methodologies shall be capable of addressing “the existing or projected environmental conditions without the
project in place”.
[117] Judgment, §§418-419.
[118] Construction &
Demolition.
[119] Table 7.5.4.
[120] §7.5.36.
[121] Form 86, Annex 2, Item 13,
§§5-9.
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