CHEUNG YUEN NI v. CHIEF EXECUTIVE IN COUNCIL

HCAL 177/2015

[2019] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 177 OF 2015

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J U D G M E N T

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A.   INTRODUCTION

1.  This is the applicant’s judicial review seeking to challenge the decision (“the Decision”) of the Chief Executive in Council (“the CEIC”) dated 2 June 2015. The Decision was made pursuant to section 11 of the Road (Works, use and Compensation) Ordinance (Cap 370) (“the RWUCO”), authorising a project (“the Project”) relating to the widening works of Castle Peak Road – Castle Peak Section.

2.  The Project was initiated by the Transport Department (“the TD”), implemented by the Highways Department (“the HyD”) and overseen by the Transport and Housing Bureau (“the THB”).  The objective of the Project is to relieve the traffic congestion problem and cope with the growth of traffic demand in Tuen Mun East.  The Project principally involves the widening of a section (“the Section”) of Castle Peak Road – Castle Peak Bay of about 1.9 km between Hoi Wing Road and Castle Peak Road – So Kwun Wut (near Hong Kong Gold Coast Phase I) from a single two‑lane carriageway to a dual two‑lane carriageway.

3.  The applicant lives in Tuen Mun South and says she is very likely to be affected by the air and noise pollution of the Project.  She challenges the Decision as unlawful on the bases that the CEIC failed to properly discharge its Tameside duty when making the Decision, it is tainted by procedural unfairness during the Project’s consultation process, and the CEIC was wrong in not treating the Project as a Designated Projected as defined under the Environmental Impact Assessment Ordinance (Cap 499) (“the EIAO”).

4.  To better understand these challenges, it is necessary to set out the relevant statutory framework and background first.

B.   THE RELEVANT STATUTORY FRAMEWORK

5.  The RWUCO is enacted to provide for, among others, the publication of proposals as to works in relation to roads, objections to the proposals, authority to carry out the works.  Relevant for the present purposes, it provides as follows:

“5. Major works: The plan and the scheme

Where the Secretary proposes to execute works, other than under section 4, he shall cause to be prepared—

(a) a plan delineating the works area, being that area within which land may be resumed, easements or other rights in, under or over land may be created or rights affected for the purposes of or incidental to the works or the use; and

(b) a scheme, annexed to the plan, in which he shall—

(i) describe the general nature of the works which he proposes to carry out and the use to which he intends the road will be put;

(ii) describe the land which he proposes may be resumed under section 13;

(iii) describe the land in, under or over which he proposes there may be created an easement or other permanent or temporary right under section 15 and indicate the nature of that easement or right;

(iv) describe any road, Government foreshore or sea-bed in respect of which he proposes the Governor may exercise his powers under section 17 and describe the manner in which the road, foreshore or sea-bed will be affected;

(v) describe any land or building in respect of which he proposes he may exercise the powers under section 19 and describe the general nature of any operations which may be carried out;

(vi) describe the nature of any apparatus in respect of which he proposes he may exercise the powers under section 20;

(vii) describe the land or building in respect of which he proposes he may exercise the powers under section 21; and

(viii) describe any land or building works in respect of which he proposes the Building Authority may exercise its powers under section 22.

…

8. Deposit and publication

(1) A copy of the plan and scheme prepared for the purposes of section 5 or 7, signed by the Secretary, shall be deposited in the Land Registry and shall be available for inspection by the public free of charge at such offices of the Government as the Secretary may direct, during the hours when those offices are normally open to the public.

(2) The Secretary shall within 21 days of the deposit of a copy of a plan and scheme in the Land Registry or of any amendment to such copy or the deposit of a substitute plan and scheme cause a notice of such deposit or amendment to be published containing—

(a) a description of the general nature of the works or of the nature and extent of the amendment to the works; and

(b) particulars of the places and times at which a copy of the plan and scheme, or details of the amendment or a copy of the substitute plan and scheme may be inspected by the public in conformity with subsection (1).

(3) The notice mentioned in subsection (2) shall be published—

(a) in 2 issues of the Gazette in both the Chinese and English languages;

(b) in 2 issues of a Chinese language newspaper;

(c) in 2 issues of an English language newspaper; and

(d) by affixing copies in the Chinese and English languages in such prominent positions within the works area as may be appropriate for the purpose drawing the notice to the attention of the public.

(4) The Secretary shall, by notice in writing, advise the District Board of the District in which the works are to be situated of the deposit of the plan and scheme under subsection (1) and, at the same time, supply that District Board with a copy of the plan and scheme.

(5) A copy of the plan and scheme shall be supplied to any person on application and payment of the reasonable cost of producing that copy.

…

10. Objections

(1) Any person may, by notice in writing delivered to the Secretary not later than 60 days after the first publication of the notice mentioned in section 8(2), object to the works or the use or both and may, where relevant, object to the exercise of the power of the Secretary under section 42(2).

…

11. Procedure after publication of plan and scheme

(1) When the time for the lodging of objections has expired and where no objections have been lodged under section 10, the Secretary may execute the works; and the works and the use shall be authorized under this Ordinance.

(1A) Subject to subsection (1), the Secretary shall not later than—

(a) subject to paragraphs (b) and (c), 9 months after the expiration of the period for lodging objections under section 10(1);

(b) subject to paragraph (c), where there is any amendment to the plan or scheme under section 7, 3 months after the expiration of the period for lodging objections under section 10(1) in respect of any such amendment or, where there is more than one amendment, the last of any such amendment;

(c) such further period of not more than 6 months after the expiration of the period referred to in paragraph (a) or (b) (as the case may be) as the Chief Executive may, upon the application of the Secretary, allow having regard to the circumstances of the case,

submit to the Chief Executive in Council for consideration the plan and scheme and any objections lodged under section 10(1).

(1B) The Chief Executive in Council shall consider the plan and scheme submitted and any objections lodged under section 10(1).

(2) The Chief Executive in Council, after considering the plan and scheme submitted and any objections lodged under section 10(1), may—

(a) decline to authorize the works and the use; or

(b) authorize the works and the use, with or without modification and subject to such conditions, as to the amelioration or avoidance of the effects of the works and the use or otherwise, as the Chief Executive in Council thinks fit.

(3) Before exercising the power under subsection (2), the Governor in Council may refer the plan, the scheme and the objections to the Town Planning Board appointed under the Town Planning Ordinance (Cap. 131) and—

(a) the Board shall, whether or not the works are shown on any draft plan under that Ordinance, exhibit and advertise the plan and scheme under section 5 of that Ordinance as if it were a draft plan, and the provisions of that Ordinance shall apply accordingly; and

(b) without prejudice to the generality of paragraph (a), the objections lodged under section 10 shall be regarded as representations made to the Board in respect of the plan and scheme under section 6 of that Ordinance.

(c) …

(4) The Governor in Council may reconsider any plan and scheme and—

(a) authorize the works and the use which the Governor in Council has previously declined to authorize;

(b) remove or vary any modifications or conditions previously imposed.

(5) The Governor in Council may, after the expiry of at least 28 days notice served on any person affected, amend any plan and scheme already considered and authorize the works and use in accordance with that amended plan and scheme.

(6) Where any objection has been lodged under section 10, the Secretary may execute the works only to the extent authorized, and subject to any subsisting modifications or conditions imposed, by the Governor in Council.

…”

6.  Hence, in summary, under the RWUCO, if the Secretary for Transport and Housing (“the Secretary”) proposes to carry out any major works:

(1)   He must first cause a plan and scheme relating to the proposed works to be prepared (section 5).

(2)   He must deposit the plan and scheme in the Land Registry for public inspection, and publish a notice to the public (in the Gazette and newspapers) describing the nature of the proposed works and setting out the times at which the plan and scheme can be inspected.  He must also notify the District Board of the District in which the works are proposed to be carried out the deposit of the plan and scheme and supply the District Board with a copy of the same (section 8).

(3)   Within 60 days of the publication of the section 8 notice, any person may in writing raise objections to the proposed works with the Secretary (section 10(1)).

(4)   The Secretary shall then submit to the CEIC for consideration the plan and scheme, and any objections raised in relation to the proposed works.  After such consideration, the CEIC may decide whether to authorize the proposed works, with or without modification and conditions as the CEIC thinks fit (sections 11(1A) and (2)).

7.  Further, insofar as relevant for the present purposes, the EIAO provides that:

“4. Certain projects to be designated projects

(1) The projects listed in Schedules 2 and 3 are designated projects.

…

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.

…

9. Prohibition against carrying out designated project unless environmental permit has been issued, etc.

(1) A person shall not construct or operate a designated project listed in Part I of Schedule 2 or decommission a designated project listed in Part II of Schedule 2—

(a) without an environmental permit for the project; or

(b) contrary to the conditions, if any, set out in the permit.

…

SCHEDULE 2

DESIGNATED PROJECTS REQUIRING ENVIRONMENTAL PERMITS

PART I

A—ROADS, RAILWAYS AND DEPOTS

A.1 A road which is an expressway, trunk road, primary distributor road or district distributor road including new roads, and major extensions or improvements to existing roads.

…”

8.  In other words, if the Project should be regarded as a “Designated Project” (“DP”) listed under Schedule 2 of the EIAO, it cannot be commenced and carried out unless the TD has first caused an environmental impact assessment study to be prepared in relation to it, and obtained an environmental permit (“EP”) issued by the Director of Environmental Protection (“DEP”) based on the study report.

9.  In this respect, the applicant contends in this application that the Project is a DP under Item A1 in Part 1 of Schedule 2 (“Item A1”), as it relates to “a road which is an expressway, trunk road, primary distributor road or district distributor road including new roads, and major extensions or improvements to existing roads”.

C.   THE BACKGROUND FACTS[1]

C1.   The Project and its preparations

10.  As mentioned above, the Project involves the widening of a section of Castle Peak Road – Castle Peak Bay of about 1.9 km between Hoi Wing Road and Castle Peak Road – So Kwun Wat (ie, the Section) from a single two-lane carriageway to a dual two‑lane carriageway, associated junction improvement works, provision of noise mitigation measures, modification of an existing footbridge and construction of associated lifts, drainage and traffic-aid works.

11.  In or around July 2010, the HyD commenced the preparation of a Technical Feasibility Statement for the Project.

12.  Between August 2010 and September 2012, the TD repeatedly confirmed with the HyD its view that the Section was a “rural road”, and based on that, the Environmental Protection Department (“the EPD”) also advised that the Project on the Section was not a DP:

(1)   On 17 August 2010, the HyD sought the TD’s advice as to the road classification of the Section[2].  It was stated that the information sought would be used “as reference” as to consider whether the Project was a DP falling under the EIAO.

(2)   On 23 August 2010, the TD formed a view that the Section was a “rural road”[3].

(3)   On 30 August 2010, the HyD further sought advice from the EPD as to whether the latter would agree that the works on the Section was not a DP[4].

(4)   After further correspondence, on 6 October 2010[5], based on the then available information (including that the HyD’s own view that “the concerned section of the Castle Peak Road is classified as Rural Road and will remain the same road classification after the widening work”), the EPD concurred with the view that the Project was not a DP but nevertheless reminded that the HyD should, as a matter of their practice, conduct a Preliminary Environmental Review (“PER”)[6].

(5)   On 25 September 2012, the HyD sought agreement from the TD that the road classification of the Section remained as “rural road”. The HyD relied on, among others, the Appendix G of the Annual Traffic Census (“the ATC”) in 2011[7].

(6)   On 26 September 2012, the TD advised amongst other things that “having considered the major characteristics and design criteria of the CPR-CPB [Castle Peak Road-Castle Peak Bay] after the widening works as provided, it is concurred that there will not be material change in the operation environment of the road” and it was “a common understanding” that the Section remained was “rural road”[8].

13.  From March to May 2013, the HyD introduced the Project in three briefing sessions to local communities and organisations, and collected the initial view of members of the public on the Project as well as the proposed provision of noise mitigation measures.

14.  On 26 August 2013, the HyD sought the TD’s confirmation again that the classification of the Section would remain in its view as a “rural road” after completion of the Project, taking into consideration the Government’s new proposal for housing developments in Tuen Mun East.  On 27 August 2013, the TD confirmed that the “rural road” classification of the Section should remain[9].

15.  After the completion of the preliminary design of the Project, on 13 September 2013, the HyD consulted the Traffic and Transport Committee of the Tuen Mun District Council on the Project in a meeting.  The Traffic and Transport Committee agreed to the HyD’s proposal to proceed with the gazettal of the Project in accordance with the RWUCO.

16.  From September to December 2013, prior to the gazettal of the Project, the HyD held public consultation sessions with local residents of various residential developments along the Section.  Views from the local residents on such matters as the need for and design of the proposed noise barriers outside their respective estates were considered and incorporated into the Project as far as practicable.

17.  In the meantime, the HyD’s consultant proceeded with the preparation of a PER report for the Project.  On 31 May 2013, the consultant submitted a draft PER report to the EPD for comment, showing the detailed layout of the widening and improvement of the Section and other roads concerned under the Project and the environmental impacts.  Pursuant to the EPD’s request, the HyD’s consultant further circulated the draft PER to the Agriculture, Fisheries and Conservation Department (“the AFCD”) and the Planning Department (“the PlanD”) for comment. Having considered and incorporated comments from relevant Government departments, the HyD submitted the completed PER report to the EPD on 4 December 2013 and 24 December 2013 for consideration[10].

18.  On 27 December 2013, the EPD indicated that it had no further comment on those chapters in the PER report that were under its purview[11].

19.  Separately, the AFCD indicated that it had no major comment on the ecological aspects of the said PER report, which were under its purview and only suggested some textual amendments; and the PlanD indicated that it had no further comment on the landscape and visual aspects of the said PER report, which were under its purview[12]. The Lands Department, which also received the said PER report for information, did not provide any comment on the same.

20.  On 24 December 2013, the final report of the PER (“the PER Report”) was submitted to the EPD.

21.  Subsequently, the HyD prepared the plans in relation to the Project and the scheme annexed thereto for the THB’s endorsement.  Those plans and scheme were gazetted[13] and published on 10 and 17 January 2014 pursuant to section 8 of the RWUCO.

22.  During the statutory section 10 objection period from 10 January 2014 to 11 March 2014, the THB received 281 objections and referred the same to the HyD for consideration and resolution.  Out of the 281 objections, 11 duplicated objections were consolidated, resulting in 270 objections to be resolved.  The HyD followed up on the objections with objectors to address their concerns and requests, including those further raised by objectors during the objection resolution process.

23.  During the HyD’s consultation session held with the Traffic and Transport Committee of Tuen Mun District Council on 13 September 2013, the HyD also provided a summary of findings of the PER Report to its members.  Since then, the HyD conducted further public consultation sessions at residential developments along the Section from September to December 2013 prior to the gazettal of the Project in January 2014.  In those sessions and correspondence and follow-up meetings with some resident representatives, the HyD mentioned that the PER Report had been prepared.  In the course of the objection resolution process, one of the objectors actually inspected the PER Report in full at the HyD’s office on 2 September 2014[14].

C2.   Submission to the CEIC in 2015

24.  Having considered the objectors’ concerns and requests during the objection resolution process, the HyD assisted the THB in preparing the plans and scheme and organizing the objections lodged (including objection letters, notes of objection resolution meetings, and correspondence between the Government and the objectors including those exchanged in the objection resolution process) to be submitted to the CEIC.  The THB subsequently submitted the plans, scheme and relevant information to the Executive Council Secretariat for the CEIC’s consideration in accordance with section 11(1A)(c) of the RWUCO.

25.  On 2 June 2015, the CEIC made the Decision under section 11(2)(b) of the RWUCO.  The Decision was gazetted on 3 July 2015 and 10 July 2015 pursuant to section 11(9)(d) of the RWUCO.

C3.   Events after the Decision

26.  In July 2015, a “fair copy” of the Review Report (Final) – Rev1 (Environmental) in respect of Widening of Castle Peak Road – Castle Peak Bay – Design and Construction was published (the “Review Report”) “for record”.

27.  On 1 September 2015, the applicant lodged an ex parte application for leave to apply for judicial review against the Decision.

28.  On 8 December 2015, the CEIC filed its initial response objecting to the grant of leave to the applicant (“the Initial Response”).  A hearing of the leave application was held on 12 August 2016, and the court granted leave to the applicant on 4 October 2016.

29.  The applicant filed the Re-Amended Form 86 on 2 November 2017.

D.    THIS JUDICIAL REVIEW

30.  Mr Anson Wong SC (together with Mr Ernest Ng) has advanced three grounds of challenges in this judicial review.  He summarizes them as follows:

(1)   Ground 1 – Error of law: the CEIC committed an error or misunderstanding to regard that the Project did not constitute a DP under the EIAO, leading to the failure to conduct the mandatory EIA procedure under the EIAO[15].

(2)   Ground 2 – Failure to discharge the Tameside duty and error of facts:

(a)   the CEIC failed to sufficiently inquire into (i) whether the Project constituted a DP; and (ii) the environmental impact associated with air pollution (Ground 2A)[16]; and

(b)   the Decision was premised on errors of fact that there was compliance with the “prevailing” Air Quality Objectives (“AQOs”) and no mitigation measures was required (Ground 2B)[17].

(3)   Ground 3 – Procedural unfairness in the public consultation: the public consultation period under the RWUCO (and other legal consequences) was conducted unfairly in failing to disclose the PER during, and hence it was also conducted on the false basis that the prevailing environmental legislative standards have been and would be complied with[18].

31.  I will deal with these grounds in the order as Mr Wong has advanced them at the hearing and in his skeleton.

D1.   Ground 2B[19]

32.  It is trite that a public body has a duty to carry out a sufficient inquiry before making its decision.  This is commonly known as the Tameside duty[20].  Under this duty, the question for the court is whether the decision maker:

(1)   asked himself the right question; and

(2)   took reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.

33.  Insofar as the second limb relating to the reasonableness of the inquiry is concerned, it is also trite that it is for the decision maker to decide on the extent and sufficiency of the inquiry, subject only to a Wednesbury challenge[21].

34.  In order to understand the arguments advanced under this ground, one has to start with the following context first.

35.  The Air Pollution Control Ordinance (Cap 311) (“the APCO”) sets out the prevailing AQOs in its Schedule 5.  The prevailing AQOs at the time of the PER Report dates back to 1987 (“the 1987 AQOs”) and was revised in January 2014 (“the 2014 AQOs”), shortly after the PER Report was submitted but prior to the Decision.

36.  So far as relevant to this application:

(1)   The concentration limit of NO2 (Nitrogen Dioxide) in air averaged over an hour was revised from 300 to 200 µg/m³ and the same averaged over a calendar year was revised from 80 to 40 µg/m³.  See: the APCO, Schedule 5, paragraph 7;

(2)   The concentration limit of RSP (Respirable Suspended Particles) in air averaged over a day was revised from 180 to 100 µg/m³ and the same averaged over a calendar year was revised from 55 to 50 µg/m³.  See: the APCO, Schedule 5, paragraph 5.

37.  Furthermore, Mr Wong has pointed out that:

(1)   It is also the government’s express policy to “ensure that the [AQOs] for 7 common air pollutants, as laid down in Appendix 3.1 [of the Hong Kong Planning Standard and Guidelines], are met as soon as possible” (emphasis added)[22].

(2)   The Technical Memorandum (“the TM”) also provides that the AQOs shall be one of the criteria for evaluation of air quality impact[23].

38.  Relying on the above, it is the applicant’s case that the effect of the revision, ie, the introduction of the 2014 AQOs is that the CEIC must decide according to it (or at least have it properly considered).  The revision of the AQOs was a matter of public knowledge, the CEIC ought to have considered the PER Report against the prevailing 2014 AQOs.  Mr Wong emphasizes it is trite that a decision maker has to take into account all relevant consideration at the time of the decision even if the consideration arises after inquiry had been conducted and before the decision was made[24].

39.  In the premises, Mr Wong submits that the CEIC failed to discharge his Tameside duty as:

(1)   The CEIC had asked the wrong question as to whether the air quality of the Project would meet the prevailing standard as at the time when the PER was prepared instead of as at time of the Decision.

(2)   Alternatively, it is Wednesbury unreasonable, insofar as the extent and sufficiency of the inquiry is concerned, for the CEIC to only look at the relevant AQOs standard as at the time when the PER was prepared.

40.  In relation to the first complaint, Mr Wong’s contentions are in gist as follows:

(1)   There is no dispute that air quality is a relevant matter that the CEIC should take and indeed took into account when considering whether to make the Decision.

(2)   As a matter of law, the CEIC should look at the AQOs as at the time of the Decision. This is so because it is a matter of Government policy (as set out in the HKPSG quoted above) to apply the new standard “as soon as possible”.  In the premises, in the absence of any explanations, the Government cannot and should not depart from its policy.  Hence, when the CEIC was considering the “prevailing” air quality standard to decide whether to approve the Project, it must look at the new AQOs which were the then applicable standard but not the previous old standard.

(3)   As a result, the CEIC asked the wrong question by looking at the air quality factor based on the previous AQOs as the prevailing air quality assessment standard.

41.  In support of the submission that as a matter of law, the CEIC must look at the new AQOs when considering the factor of air quality impact, Mr Wong principally relies on De Smith’s Judicial Review (7^th ed) at paragraph 5-132, which states as follows:

“To what extent can a failure to have regard to a government non-statutory policy invalidate a decision for disregard of a material consideration? An authority is entitled to ignore or act contrary to a policy circular which misstates the law. A policy cannot make a matter that is an irrelevant consideration, or outside the purpose of the statute, relevant or lawful. If the decision-maker attaches a meaning to the words of the policy which they are not capable of bearing, he will have made an error of law. If there has been a change in the policy, it has been held that the decision must relate to the new policy, even if it has not been published and is not known to the parties. However, this proposition may be subject to any legitimate expectation on their part. If the decision-maker departs from the policy, clear reasons for doing so must be provided, in order that the recipient of the decision will know why the decision is made as an exception to the policy and the grounds upon which the decision is made as an exception to the policy and the grounds upon which the decision is taken. In Munjaz, the House of Lords held that the hospital could only depart from the Secretary of State’s code if it had provided ‘cogent reasoned justification’ for so doing, which the court ‘should scrutinize with the intensity which the importance and sensitivity of the subject matter requires’.” (footnote omitted, emphasis added)

42.  With respect, I am not persuaded by Mr Wong’s submissions that as a matter of law the CEIC must look at the new AQOs when he made the Decision.

43.  Fundamental to this contention is that the policy to “ensure that the [new AQOs] are met as soon as possible” means that the 2014 AQOs standard is to be applied by the Government immediately to any ongoing matters or projects.  This however depends on the proper construction of the meaning of the policy.

44.  In my view, objectively construed, when the words “as soon as possible” are used, instead of say “immediately”, it is intended by the Government in setting that policy to allow the Government and its relevant departments a degree of flexibility and latitude in deciding whether and when it was best and practicable to apply the newly legislated AQOs in relation to the implementation of any related administrative and government projects, schemes or decisions.  This must also be of common sense, as there may well be ongoing Government projects or administrative schemes which have been planned or implemented based on the previous AQOs standard to the extent that it would be unreasonable or impracticable to change them to conform with the new AQOs standard with immediate effect.  This is particularly so since, as submitted by Mr Man, the AQOs represent “objectives” aspired to be achieved, which by definition permits and entails a degree of flexibility to allow the relevant authority or entity time to take steps and measures seeking to meet them.

45.  In the premises, I do not agree that the policy mandates the CEIC to apply the 2014 AQOs to decide whether or not to approve the Project.  The CEIC therefore did not ask the wrong question as contended by Mr Wong in making the Decision.

46.  The leaves the question as to whether it is however irrational or Wednesbury unreasonable for the CEIC to look at only the 1987 AQOs standard but not the 2014 AQOs in making the Decision.

47.  In this respect, it must be noted that in considering whether to make the Decision, the CEIC was fully aware of the objections premised on the complaint that the PER Report was conducted by reference to the 1987 AQOs but not the 2014 AQOs, as well as the views of the concerned departments on the applicable AQOs[25].  It is the Government’s position that it decided not to re-do a PER based on the 2014 AQOs so as to ensure project certainty[26].

48.  I agree with Mr Man SC (together with Mr Mike Lui) for the CEIC that in the circumstances of the present case, it cannot be said to be irrational for the CEIC to accept the PER Report (which was based on the 1987 AQOs) in making the Decision.  It is common sense that large scale infrastructure projects such as the Project would generally involve years to prepare before the necessary approval is obtained to commence it.  Much public money, time and efforts would have been spent in the preparations.  If the preparations have been conducted and carried out in accordance with the statutory requirements or objectives then valid as at that time, those preparations are not invalidated retrospectively by reason of a later change in the relevant statutory requirements or objectives[27] to ensure project certainty[28]. In the circumstances, it clearly cannot be said that it is Wednesbury unreasonable or irrational for the decision maker to approve the project based on the preparations which were validly prepared and conducted over the years in order to ensure project certainty.

49.  For these reasons, I reject the applicant’s contentions that the CEIC had failed to properly discharge his Tameside duty in making the Decision.

50.  Both parties have also made extensive submissions in their respective skeletons and oral submissions seeking to demonstrate that the relevant air quality data already stated in the PER Report could (as contended by Mr Wong) or could not (as contended by Mr Man) show that the 2014 AQOs standard would not be satisfied if it had been applied.  This is part of the submissions made to support or rebuke the applicant’s error of fact challenge, which is premised on the complaint that the CEIC committed an error of fact by regarding that the Project having complied with the prevailing AQOs standard and no further mitigating measures would be required.

51.  However, given the above conclusion that it is neither unlawful nor Wednesbury unreasonable for the CEIC to accept the 1987 AQOs standard in approving the Project, whether the data contained in the PER Report could satisfy the 2014 AQOs is irrelevant to the CEIC’s consideration.  There can therefore be no question of any error of fact made by the CEIC in this respect.  Hence, it is unnecessary for me to decide the dispute in relation to this particular aspect.

52.  I would reject Ground 2B.

D2.   Ground 3

53.  Under this ground, Mr Wong’s contentions are in essence that the public consultation conducted by the HyD was procedurally unfair, as the PER Report was not disclosed during the consultation period (which is in effect the statutory period whereby objections can be raised).  Leading counsel emphasized that without the PER Report, no full and proper objections could be raised by the public as they were not fully informed of the content of the environmental assessment relating to the Project.  The consultation was hence procedurally unfair.

54.  I am not convinced by Mr Wong’s submissions.

55.  It is not in dispute that when public consultation is indeed carried out by the authority, it should be done in a fair way.  However, what would be regarded as procedurally fair is contextually based and is dependent on the circumstances of each case[29].

56.  It is also well established that in order to succeed in a judicial review for discretionary remedy based on a procedural fairness challenge, it is necessary to demonstrate that the procedural unfairness (even if established) would result in substantial prejudice on the complainant[30].

57.  This however cannot be shown in the present case.

58.  First, as rightly submitted by Mr Man, the applicant herself is not even of one of the persons who had raised objections about the Project.  It is therefore not open to her to challenge by way of judicial review procedural unfairness concerning the objection consultation exercise.

59.  Second, it is pertinent to note that the basis Mr Wong says the consultation was unfairly conducted without the disclosure of the PER Report is premised solely on his contention that the air quality assessment conducted was defective as it was based on the 1987 AQOs standard.  He therefore says the public was deprived of the opportunity to comment or raise objections based on that.

60.  However, I have concluded above that it was not unlawful or irrational for the CEIC to take into account the PER Report for air quality assessment based on the 1987 AQOs standard.  In the premises, even if the PER Report had been disclosed during the consultation period, there was indeed nothing which the public could properly and justifiably criticise in the eyes of the law in relation to the air quality assessment.  In other words, it cannot be demonstrated that the public has potentially suffered substantial prejudice without the disclosure of the PER Report during the consultation period.

61.  When pressed on this, Mr Wong seeks to argue that even though the air assessment may not be regarded as wrong in law, if the consulted section of the public was aware of the fact that the assessment was based on the 1987 AQOs standard but not the 2014 one, there may well be an outcry and a much larger group of people may oppose the Project on that basis.  This may well then have an effect on the CEIC when he considered whether or not to approve the Project.  The consulted public therefore was substantially prejudiced.

62.  I do not agree.

63.  This contention is not only speculative but also not supported by any evidence.

64.  Quite to the contrary, as submitted by Mr Man, the evidence shows clearly that:

(1)   The PER Report was indeed eventually disclosed by the HyD to a member of the public upon the demand, even though that was made after the statutory opposition period[31]. There is no suggestion that the disclosed report had been prevented from being circulated to others.

(2)   Further, there were in any event already objections and complaint made on the basis that the new AQOs should be applied, and the CEIC was also fully aware of such oppositions based on the complaint that the air quality assessment was carried out by reference to the previous AQOs standard but not the 2014 one[32].

65.  These therefore do not support Mr Wong’s contention that, if the PER Report had been disclosed during the objection period, there could well be a huge outcry, and that the CEIC might have been “swayed” by such an outcry.  In this respect, it must further be noted that this purported substantial prejudice was not even relied upon by the applicant in her Re-Amended Form 86.

66.  For all these reasons, the applicant fails to show that there could be substantial prejudice suffered by her or the consulted public even if the non-disclosure of the PER Report amounted to some form of procedural unfairness.  The applicant must fail under this ground on this basis alone.

67.  Further, in primary support of this ground, Mr Wong appears to submit that by reason of the general duty of fairness imposed by common law, the HyD in conducting the public consultation under the RWUCO should in any event provide the PER Report to the public on its own.

68.  In advancing this contention, leading counsel in particular relies on:

(1)   The authority of In re Caltex Oil Hong Kong Ltd [1995] 1 HKLR 122 to show that there exists a common law standard of fairness in relation to the “consultation process” carried out under the RWUCO. Based on this, Mr Wong says it supports the proposition that the court should imply a duty under the RWUCO on the government authority conducting the consultation to disclose on its own all relevant and necessary information and documents for the purpose of the consultation; and

(2)   the Government’s own position stated in the Project Administration Handbook for Civil Engineering Works (2014 Edition) (“the Handbook”) that when conducting public consultation under the RWUCO, “the objector should have available to him any relevant information that was taken into account by the Initiating Office [ie, the HyD in the present case] in the formulation of its proposal”[33].

69.  I do not think Mr Wong is correct.

70.  The subject challenged “consultation” is a statutory process provided and prescribed under the RWUCO.  Under the process, the objection period starts after the publication of the section 8(2) notice, and that notice is to be published within 21 days of the deposit of the plan and scheme in the Land Registry for public inspection required under section 8(1).

71.  Hence, properly read together, the RWUCO has expressly stipulated it is only the plan and the scheme that are required to be disclosed for the purpose of initiating that process.  As pointed out by Mr Man, the RWUCO does not require any other materials to be disclosed to facilitate the lodging of objections.  It will thus be wholly inconsistent with the express statutory provision to imply (as contended for by Mr Wong) an obligation to disclose on its own the PER Report in addition to the plan and scheme: R v Secretary of State for the Home Department, ex p Abdi [1996] 1 WLR 298 at 313F-351C perLord Lloyd.

72.  In Abdi, the applicants were Somalians claiming asylum in the United Kingdom after arriving from Spain.  Before going to the United Kingdom, they had stayed in Spain for a few days.  Their asylum claims under the relevant refugee convention were rejected as the Secretary of State certified their claims to be “without foundation” under the Asylum and Immigration Appeals Act 1993.  In particular, the Secretary of State stated in the decision letters that, on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences in returning passengers to Spain, he had no reason to believe that, in the applicants’ particular circumstances, the authorities in Spain would not comply with their obligations under the refugee convention. After their appeals against the certificates under section 8(1) of the 1993 Act were refused by the adjudicators, the applicants brought judicial reviews against the Secretary of State’s decisions to certify their asylum claims being without foundation, as well as the adjudicators’ decisions.  The applicants were successful before Sedley J.  The Court of Appeal by majority allowed the appeals by the Secretary of State.  The applicants appealed to the House of Lords.  By majority, the House of Lords dismissed the appeals.

73.  Relevant for the present purpose, one of the contentions raised by the applicants in the judicial reviews was that, in relation to the statutory appeals to the adjudicators, the Secretary of State was obliged under a duty implied for fairness to give discovery of the materials on which he had based his “without foundation” certificates.  In the absence of those materials, the applicants further contended there had been no evidence on which the adjudicators could have upheld his decisions.  On this, the majority of the House of Lords has concluded that, as the 1993 Rules (which govern the statutory asylum appeal to the adjudicators) have specifically provided under Rule 5(6) for the disclosure of certain particular documents, there is no room to argue that, for procedural fairness, the court should imply a further duty on the Secretary of State to disclose any material facts and relevant documents in relation to his decisions.

74.  Lord Lloyd (in the majority) has explained the reasons at pp313A‑314E as follows:

“Before turning to Mr. Pannick’s submissions in support of the majority judgments in the Court of Appeal, it is necessary to set out some further legislative provisions. The procedure which governs the general run of appeals under Part II of the Act of 1971 is contained in the Immigration Appeals (Procedure) Rules 1984. Under rule 8(1) the Secretary of State is obliged to serve an explanatory statement setting out the facts relating to his decision, and the reasons therefor. Nowhere in the Rules of 1984 is there any provision requiring the Home Secretary to give discovery of relevant documents. Instead the adjudicator and the Immigration Appeal Tribunal can require the Secretary of State to furnish particulars which are necessary for the determination of the appeal (rule 25), and can require the attendance of a witness to answer any question on behalf of the Secretary of State, and produce any document in his custody (rule 27). When it came to the making of new rules for asylum appeals, the Rules of 1984 were disapplied en bloc: see rule 3(2). Nowhere in the Rules of 1993 is there any provision corresponding to rule 8(1) of the Rules of 1984. It could not be suggested that the failure to re-enact rule 8(1) of the Rules of 1984 was an accidental omission. For the Rules of 1993 make specific provision for the re-enactment of rule 25 (power to require particulars) and rule 27 (summoning of witnesses), but not rule 8(1).

Mr. Pannick submits that the implication is clear. By approving the Rules of 1993 Parliament must have intended to relieve the Secretary of State of his obligation to serve an explanatory statement in the case of asylum appeals. Mr. Macdonald argues that the reason for the omission may have been to save time. But the difficulty with that explanation is that the omission applies to all asylum appeals under the Act of 1993, not just ‘without foundation’ appeals. In any event if, as Mr. Macdonald submits, the Secretary of State is obliged to disclose all material facts for the purpose of asylum appeals, an explanatory statement would be as quick a method for serving that purpose as any other. I cannot reconcile the omission of any requirement to serve an explanatory statement of facts, such as exists under rule 8(1) of the Rules of 1984, with an implied obligation on the part of the Secretary of State to disclose the same material facts by some other means.

I turn to the question of discovery. The Rules of 1993 do not impose on the Secretary of State any obligation to give discovery, any more than the Rules of 1984. But there is specific provision for the disclosure of particular documents. Under rule 5(6) of the Rules of 1993 the Secretary of State must send to the special adjudicator (1) a copy of the decision letter, (2) the notes of interview and (3) a copy of any document referred to in the decision letter.

Despite the limited scope of rule 5(6) Mr. Macdonald submits that a duty to disclose all relevant documents can nevertheless be implied. As Steyn L.J. put it in the Court of Appeal [1994] Imm.A.R. 402, 422, the omission to provide by rules for a duty to disclose material facts and relevant documents does not mean that Parliament sanctioned the exclusion of such a duty. On the contrary, Parliament assumes that procedural fairness will be observed, and legislates on that basis. In an appropriate case the courts have power to supplement the procedure laid down by Parliament: see Wiseman v. Borneman [1971] A.C. 297, 308, per Lord Reid.

But this is not a case of mere omission. It is not a case of Parliament having left a gap which the courts can fill. Mr. Pannick argues that an implied obligation to disclose all relevant documents is wholly inconsistent with the express obligation to disclose specific documents as set out in rule 5(6) of the Rules of 1993. I can see no answer to that argument…” (emphasis added)

75.  In my view, Lord Lloyd’s above analysis (as italicized) applies equally to the present case.

76.  Mr Wong seeks to distinguish Abdi by saying that Lord Lloyd’s reasoning is premised on the analysis of the particular legislative history of the 1993 Act and Rules (as set out in the first paragraph of the above quote), which is not the case here.  I am unable to agree.

77.  As can be seen from Lord Lloyd’s italicized quoted observations above, his analysis as to why the court could not imply a further duty to disclose other than those that had been expressly provided by the 1993 Rule has nothing to do with the legislative background of the 1993 Rule.  That was made in relation to the discussion of the former requirement under the 1984 Rules for the Secretary of State to serve an “explanatory statement”.  In particular, it is pertinent to note Lord Lloyd’s reference to the fact that the 1993 Rules do not impose the discovery obligation on the Secretary of State “any more than the Rules of 1984 [ie, the previous rules]”.  Further, as emphasized by Lord Lloyd, he could see no answer to the Secretary of State’s argument that “an implied obligation to disclose all relevant documents is wholly inconsistent with the express obligation to disclose specific documents as set out in rule 5(6) of the Rules of 1993”.  This unanswerable argument is not dependent upon the analysis of the legislative history of the 1993 Rules.

78.  I therefore reject Mr Wong’s contentions that Abdi is distinguishable from the present case insofar as this issue is concerned.

79.  Mr Wong’s reliance on Re Caltex Oil and the Handbook also does not assist him.

80.  In Re Caltex Oil, the applicant was an objector concerning a roadwork project proposed by the then Secretary of Transport under the RWUCO, which would require the demolition of the applicant’s petrol station.  In its objection, the applicant suggested and provided an alternative roadwork plan to the HyD. The HyD however criticised this alternative plan as unsafe.  The Governor in Council at the end approved the Transport Secretary’s proposed project based on the memorandum submitted to the Executive Council by the Transport Board.

81.  The applicant’s complaint in its judicial review against the decision was about the Transport Board’s failure to incorporate in its memorandum the applicant’s latest responses to the HyD’s initial criticisms concerning the applicant’s alternative plan.  Those responses included revisions made to the alternative plan to address the HyD’s concerns and criticisms.  The court accepted that these responses indeed rendered the HyD comments in the memorandum that the alternative plan was not acceptable in traffic terms wrong[34].

82.  It was in this context the court says that, as a matter of natural justice, the government had a duty to act fairly in presenting the objector’s views to the Governor in Council, and that on the particular facts of this case, the applicant had not been given a “fair crack of the whip”.   The court also said the applicant had a legitimate expectation that “their updated objection and the relevant correspondence and any other supporting material would (a) be dealt with and commented upon by the department; and (b) would have been brought to the attention of the Exco”, and as a result of which, the applicant had suffered serious prejudice[35].

83.  This is very different and thus distinguishable from the present case.  This authority has nothing to do with the project initiator’s duty, if any, to disclose anything further other than what have been prescribed under section 8 of the RWUCO.  Re Caltex therefore does not support the general and swiping proposition that, in addition to the statutorily required plan and scheme, the project initiator as a matter of fairness has a duty to disclose on its own to the public all relevant information and documents it has taken into account for a proposed project for the purpose of the section 10 objections process.

84.  In this respect, it must be noted that what this means is only that for the purpose of initiating the statutory process to solicit public comments by way of objections, the initiating office is only required to provide the plan and scheme.  Mr Man has not disputed that when objections have been or sought to be raised, and when dealing with those objections, as well as in presenting those objections to the CEIC, the government department must act fairly as observed in Re Caltex.  This includes providing the necessary information and documents relevant to the proposed project to the objectors upon reasonable request.

85.  In fact, as stated in the Handbook, the Government’s position is that, when reasonably requested by the objectors, to maintain fairness in the objection process, the initiating office would have to provide all relevant and necessary information to the objectors.  Hence, it is expressly stated at paragraph 4.1.10(b) of the Handbook as follows:

“(b) Procedure where objections are received

…

In handling unresolved objections, it is important that the Administration presents fairly to ExCo the objector’s case. For this reason, the following procedures should be followed:

(i) The Initiating Office should ensure that each objector is fully informed in writing of the way it intends to submit his objection to ExCo. Specifically, the objector should be advised that all correspondence relating to his objection, together with the records of any related meetings, will be submitted to ExCo for Members’ consideration;

(ii) The objector should have available to him any relevant information that was taken account of by the Initiating Office in the formulation of its proposals. To enable the objector to formulate his objection, the Initiating Office should, as far as possible, meet any reasonable request for such information;

(iii) If an objector submits any revised proposal, even if it is only minor variation to the original proposal, it must be annexed to the ExCo paper so that the ExCo Members have a complete dossier of all objections and the Initiating Office’s comments thereon. The objector must always be given the opportunity to have the last word; and

(iv) Where it appears that an objector is attempting to delay the matter by producing further alternatives, or is attempting to enter into protracted negotiations on a particular issue, the Initiating Office should – but allowing a reasonable time frame (this may vary depending on the issues involved but a one month period may be considered a reasonable maximum time frame for this purpose) – advise the objector of a cut-off date for him to finalize his submission. The submission will then be presented to Members in the normal way in order that account may be taken of it in the final decision process.

…” (emphasis added)

86.  What have been stated in the Handbook therefore address the matters concerning procedural fairness after the commencement of the objection period such as those observed in Re Caltex.  This also shows that Mr Wong’s reliance on the Handbook to say it supports a duty to be implied to require the initiating department to disclose on its own other relevant documents and information for the purpose of the section 10 statutory exercise is misplaced. For the same reason, Mr Wong’s reliance on this paragraph of the Handbook to alternatively say that the public has a legitimate expectation that department should voluntarily disclose all the relevant documents and information is also without basis.

87.  For all these reasons, the applicant also fails under Ground 3.

D3.   Ground 1

88.  Under this ground, the applicant in substance challenges the CEIC’s Decision in effectively accepting that the Project is not a DP.

89.  Mr Wong says given that neither the EIAO nor the RWUCO has prescribed who is the decision maker to determine whether a proposed project is a DP, it follows that it is for the court to decide that question ultimately.  Any decision made by the DEP or the CEIC in relation to that is only provisional.  Leading counsel calls this issue as “the Jurisdiction Issue”. 

90.  Mr Wong confirms with the court that the relevance or importance of the Jurisdiction Issue in this application is only in relation to the determination of the standard and basis of the court’s review of the CEIC’s Decision on whether the Project is a DP or not:

(1)   If he is correct on the Jurisdiction Issue, the court is the only and ultimate decision maker to determine the question of whether the Project is a DP on merits.  The court therefore should and could look at this question afresh and on its own, and come to its own conclusion.  He does not need to show that the CEIC’s Decision is Wednesbury unreasonable in order to succeed in the challenge against the CEIC’s conclusion that the Project is not a DP.

(2)   If he is however wrong on the Jurisdiction Issue, he accepts that he could only succeed in challenging the CEIC’s Decision in this respect on conventional judicial review grounds by showing that the CEIC has committed an error of law or is Wednesbury unreasonable in concluding that the Project is not a DP.

91.  If he is correct on the Jurisdiction Issue, Mr Wong further submits that on the proper consideration of all the factors relevant to the question of whether the Project is a DP, it is clear, and the court should find on its own that the Project is a DP.

92.  However, even if he is wrong on the Jurisdiction Issue, Mr Wong says the CEIC’s Decision on the facts of this case is in any event Wednesbury unreasonable.

93.  I will examine these arguments in turn.

94.  In relation to the Jurisdiction Issue, Mr Wong’s submissions run as follows:

(1)   Neither the EIAO nor the RWUCO prescribes precisely the gatekeeper to authoritatively decide whether a proposed project is a DP.

(2)   As far as the Government’s position is concerned, in the Technical Circular (Works) No 13/2003: Guidelines and Procedure for Environmental Impact Assessment of Government Projects and Proposals (“the Guidelines”), the Government set out in flow-chart formats as to the procedure involved.  It appears from the Guidelines that it is the project proponent who is to “check” whether the proposal will be a DP for both procedures under the EIAO and the RWUCO.  In fact, the CEIC’s position is that the EPD has no role to advise on or certify the proper classification of project (save and except as an informal consultant)[36]; nor has the CEIC accepted that it has the statutory duty to decide on the classification of the Project.

(3)   It would be absurd that a project proponent can unilaterally make a binding decision as to whether a project is or is not a DP, particularly when the proponent may well be non-government body (such as the Airport Authority with respect to work connecting to the Hong Kong International Airport).

(4)   Hence, the proper construction should be that the project proponent would “check” and make a provisional decision as to the nature of the project, and elect to go under either the EIAO or the RWUCO procedure.  If it is under the EIAO procedure, the DEP would have to come to a “view” as to whether a project is a DP; if it is under the RWUCO procedure, the CEIC would have to come to such view.  However, ultimately it is a matter for the court to decide.

(5)   Authorities support the view that unless the statute expressly or impliedly dedicates a primary decision maker to determine as to whether a project is a DP, it is the court itself who should make such determination (in the sense of able to substitute its own view and not merely review the view of the DEP or the CEIC).

(6)   In Australia, the Court of Appeal in New South Wales in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at paragraphs 34 - 44 held that where, as a matter of construction, the statute does not indicate who is the primary decision maker, then the relevant requirements of the statute would be jurisdictional facts for the court to determine for itself: see also Abraham v Wallonia (Case C-2/07) [2008] Env LR 32, at paragraph 39 (at p691).

(7)   In the premises, the court has the ultimate power and jurisdiction to decide whether a project is a DP under the EIAO, including (i) whether the Section is a district distributor and (ii) whether there will be major extension or improvement to the section under the Project.

95.  With respect, I am not persuaded by Mr Wong’s submissions.  I agree with Mr Man that these contentions are incorrect for the following reasons:

(1)   First, the applicant’s analysis is basically that at the stage when the subject initiating department (ie, the HyD in the present case) came to its view on whether the Project should be classified as designated project, any view reached by the HyD would not be “binding” because its job was to “check” the status of the Project and make a provisional decision only; and because the decision maker under the EIAO and the RWUCO is different (ie, the DEP under the EIAO, the CEIC under the RWUCO), the issue of classification of the Project should “ultimately” be decided by the court.

(2)   This analysis is however flawed.  As pointed out by Mr Man, in this judicial review, the applicant attacks the Decision made by the CEIC, not any decision reached (provisionally or not) by any other department involved in the Project.[37]

(3)   In this regard, given the legal basis for the making of the Decision is section 11 of the RWUCO, it does not matter who is the relevant decision maker for other purposes under the EIAO.

(4)   The Decision, made under section 11 of the RWUCO, necessarily entails the determination by the CEIC that the Project was not a designated project defined under the EIAO.  Thus, under the RWUCO, in terms of making of a decision under section 11, the CEIC must be the primary decision maker for the purpose of authorising the Project.  In so doing, the CEIC was correct in relying on or accepting the EPD’s opinion as to the status of the Project.  Any such reliance on or acceptance of the EPD’s opinion by the CEIC can only be challenged on recognised public law grounds[38].

(5)   Further, on proper reading, Timbarra at paragraphs 34 - 44 and Abraham v Wallonia at paragraph 39 (p691) do not support the proposition that if the statute does not identify who is the primary decision-maker, the relevant requirements of the statute will be “jurisdictional” facts for the court to determine for itself.  The cited paragraphs in Timbarraexplained that it is a matter of legislative interpretation as to whether the primary decision maker should have the power to authoritatively determine whether a jurisdictional fact exists or not (see in particular paragraph 41).  The cited paragraph in Abrahamonly held that it is not for the European Court to consider whether the competent national authorities correctly assessed whether the works were subject to a relevant environmental impact assessment under that particular European directive.

96.  I therefore reject the applicant’s contentions under the Jurisdiction Issue. Insofar as the RWUCO is concerned, the CEIC is the primary decision maker in relation to the authorization of a proposed project, including the questions as to whether the proposed project is a DP and, if so, whether the requirements under the EIAO have been satisfied.

97.  The second and third arguments can be dealt with together.

98.  It is Mr Wong’s submissions that when all the relevant considerations are taken together, the court should either on its own as a primary decision maker conclude that the Project is a DP, or alternatively, should find that it is in any event Wednesbury unreasonable for the CEIC to conclude that the Project not a DP.

99.  Before dealing with Mr Wong’s contentions, I will first look at the proper context for determining whether the Project should be regarded as a DP.

100.  It is not disputed that under Item A1, the Project would be regarded as a DP if it is a “road” that “is an expressway, trunk road, primary distributor road or district distributor road including new roads, and major extensions or improvement to existing roads”.

101.  As they are not further defined in the EIAO, it is both the applicant’s and the CEIC’s position (and hence common ground) that the respective meanings of “expressway”, “trunk road”, “primary distributor road” and “district distributor road” are the ones that are relevantly set out in the Transport Planning & Design Manual (“the TPDM”) issued by the TD as follows:

“3.2 Road Types

3.2.1 Rural Road Types

3.2.1.1 Trunk Roads — Roads connecting the main centres of population. High capacity roads with no frontage access or development, pedestrians segregated, widely spaced grade-separated junctions, and 24 hour stopping restrictions.

3.2.1.2 Rural Roads — Roads connecting the smaller centres of population or popular recreation areas with major road networks. Frontage access should be limited wherever possible and junction design whilst not necessarily grade separated should be of a high capacity standard.

3.2.1.3 Feeder Roads — Roads connecting villages or more remote settlements to Rural Roads.

3.2.2 Urban Road Types

3.2.2.1 Trunk Roads — Roads connecting the main centres of population. High capacity roads, with no frontage access or development, segregation of pedestrians, widely spaced grade separated junctions, and 24 hour stopping restrictions.

3.2.2.2 Primary Distributor — Roads forming the major network of the urban area. Roads having high capacity junctions, though may be at-grade, segregated pedestrian facilities wherever possible and frontage access limited if not entirely restricted, and 24 hour stopping restrictions.

3.2.2.3 District Distributors — Roads Linking Districts to the Primary Distributor Roads. High capacity at-grade junctions, with peak hour stopping restrictions and parking restrictions throughout the day.

3.2.2.4 Local Distributors — Roads within Districts linking developments to the District Distributor Roads.

3.2.3 Expressway

3.2.3.1 Roads are designated as Expressways under the Road Traffic (Expressway) Regulations. An expressway may be formed from a trunk road or a primary distributor road. Details of Expressway standards are contained in Chapter 6 of this Volume.

3.3.1 General Principles

…

3.3.1.3   Rural locations and urban locations are those areas where the Road Types referred to Section 3.2 occur.  Generally therefore, Hong Kong Island, Kowloon and new towns have urban locations, and the New Territories outside of new towns will have rural locations.”

102.  The applicant’s primary case is essentially this: the Section covers three sub-sub-sections in the Sam Shing – Tuen Hing sub-section of the road widening works which are clearly “district distributors”.  In the premises, the Project by definition as a matter of law falls under the definition of DP under the EIAO.

103.  The applicant elaborates its contentions as follows:

(1)   According to the plan[39] published and deposited by the Secretary, the Project extends to the North of Sam Shing Street up to the Hoi Wing Road Junction (“the Sam Shing – Hoi Wing Sub-sub-section”)[40] and into a portion of the Section at the east of the Hoi Wing Road Junction along Hoi Wing Road (“the Hoi Wing East Sub-sub-section”), and on Hoi Wing Road itself (the “Hoi Wing West Sub-sub-section”).

(2)   The general nature of the proposed works covering these three Sub-sub‑sections (“the Three Sub-sub-sections”) include reconstruction carriageway conversion of footpath to carriageway, construction of central reserve or traffic island, modification of slop, construction of new footpath and amenity area, modification of footbridge and so on[41].

(3)   According to the ATC conducted by the TD itself, the Sam Shing – Tuen Hing Road Sub-section has consistently been classified as “DD”, meaning, “district distributor”[42].

(4)   It can be seen from the plan that Sam Shing Street – Tuen Hing Road Sub-section includes both Sam Shing – Hoi Wing Sub‑sub‑section and Hoi Wing East Sub-sub-section.

(5)   Similarly, the Hoi Wing West Sub-sub-section has also consistently been classified as “DD”[43].

(6)   The CEIC has therefore erred in respect of the Three Sub-sub-sections.

(7)   None of the government departments involved including the TD, the HyD and the EPD referred to Appendix C of the ATC of any given year.

(8)   Even in the internal plan prepared by the TD and adduced by the CEIC as Document 6 to the Initial Response, the said plan shows clearly the “DD” marking as referring to Hoi Wing East & West Sub-sub‑sections (across the Hoi Wing Junction)[44].

(9)   Hence, the Project does cover portions of two “district distributors” which by definition falls under the definition of a DP under Item A1 of the EIAO.

104.  I am also not convinced by these submissions.

105.  As set out in the TPDM, a “district distributor” road classification is one which falls under “urban road” system.  On the other hand, if a road is classified as a “rural road”, there is no question of a “district distributor”.

106.  In this respect, the HyD and the TD’s position is that the Castle Peak Road section to be widened under the Project (ie, the Section) as a whole should be classified as a “rural road”, and hence it does not constitute a DP.

107.  It is unchallenged (and unchallengeable) evidence that, in essence, roads are classified with reference to different sets of road qualities including functions, characteristics and operational circumstances, which primarily hinge on the operation environment of a road.  The operation environment of a road is the key determining factor in deciding its type[45].  Indeed, the applicant also accepts that the operation environment is an important factor to determine the road type[46].

108.  In this context, it is the TD’s evidence that after taking into account the operation environment of the Section (ie, the widening section of the Castle Peak Road – Castle Peak Bay of the Project), it formed the view that it should be regarded as “rural road” both before and after the completion of the Project.

109.  Mr Wong Wai Man explains this at paragraphs 10 ‑ 14 of his affirmation as follows:

“TD’s Reply to HyD in 2010 on Classification of the Section

10. In response to the memo dated 17 August 2010 from HyD seeking advice on the road classification of the Section, TD, having considered the operation environment of the Section, which comprised mainly small centres of population (such as low-to-medium density residential estates of the Hong Kong Gold Coast Phase 1 and Pine Villas) or popular recreation areas (such as the Golden Beach), and that such environment would remain in the foreseeable future, replied on 23 August 2010 that it should be classified as a ‘rural road’ and this classification should remain the same after the widening works. Copies of the relevant memos between HyD and TD have been exhibited at ‘CYN-2’ to the Applicant’s 2nd Affirmation, Docs. Nos. 5 and 6.

TD’s Reply to HyD in 2012 and 2013 on Classification of the Section

11. In June 2012, HyD commissioned its consultant (URS/Scott Wilson) to carry out the investigation assignment for the Project. HyD’s consultant communicated with TD by email in July to September 2012 seeking TD’s concurrence that the Section would remain classified as a rural road. HyD also wrote to TD on 25 September 2012 on the same subject. TD replied on 26 September 2012 that, taking into account the information provided by HyD’s consultant and having considered the primary factor that the Section would remain serving small centres of population and that such operation environment would remain, TD agreed that the Section should remain classified as a rural road after the widening works. Copies of the said correspondence have been exhibited at ‘CYN-2’ to the Applicant’s 2nd Affirmation, Docs. Nos. 11 and 12.

12. On 26 August 2013, HyD sought TD’s advice again on the classification of the Section having regard to the new proposal for housing developments in Tuen Mun East. TD, having considered that the new housing development proposal, which involved individual new sites scattering along the Section all of which are not high-density developments, would not result in material change to the operation environment of the Section, replied to HyD on 27 August 2013 that the Section would remain classified as rural road. Copies of the relevant correspondence have been exhibited at ‘LYM-6’ to LAM, Yat Ming Philip’s Affidavit.

Justifications for TD’s Classification of the Section

13.     TD has always followed the guidelines in the TPDM in classifying roads. As expressly stated in TPDM Vol. 2 §3.22, ‘Rural Roads’ are defined as ‘Roads connecting the smaller centres of population or popular recreation areas with major road networks. Frontage access should be limited wherever possible ...’ The definition suggests, and in any event it has been the understanding and practice adopted by TD over the years, that in considering whether a road should be classified as a rural road, the primary factor is the operation environment of the road; in gist, whether the road is to serve smaller centres of population or popular recreation areas.

14.     TD considered the Section aside road branching off from Hoi Wing Road and Castle Peak Road-Castle Peak Bay junction. A copy of a plan prepared by TD showing the Section and the wider area of Tuen Mun Town Centre has been exhibited at ‘CYN-2’ to the Applicant’s 2nd Affirmation, Doc. No. 14. It can be seen that the Section serves the south-eastern part of Tuen Mun which has an operation environment different from the Tuen Mun Town Centre where the major roads there are classified as expressway, trunk road, primary distributor, or district distributor. The Section serves scattered and low/medium density of residential and recreational developments such as beaches and resort hotel, and is similar in nature to its eastern adjacent section in Siu Lam which is classified as a rural road. After the completion of the Project, the Section will remain as an at-grade carriageway connecting smaller centres of population and recreational areas, with certain run-in/run-out facilities and limited non-stopping restrictions. Taking into account its function, characteristics and operation environment, TD classified the Section as a rural road before and after the completion of the Project and took the view that such classification was in line with the definition in TPDM mentioned above.”

110.  Further, Mr Wong Wai Man then explains that as the Project involves the entire Section, one should look at the entire Section to decide whether it is the type of road that comes within the scope of a DP.  In relation to this, he explains that the Three Sub-sub-sections identified by the applicant to say to be “district distributors” only form a small part of the Project, and hence should not affect the road type classification of the Section[47]. The Three Sub-sub-sections are only about 110 m, 40 m and 325 m in length respectively, while the Section is about 1.9 km long.

111.  The minor nature of the works to be carried out at the Three Sub‑sub‑sections (when compared with the entire Section) has been further elaborated by Lam Yat Ming, Philip, Chief Engineer of the HyD, at paragraphs 13 and 14 of his Affidavit:

“13. I note that the Applicant has, in her Amended Form 86 §§38.3 to 38.7 and Figure 1, looked into what she defines for the purpose of these proceedings as the ‘Hoi Wing East Sub-sub-section’, ‘Hoi Wing West Sub-sub-section’ and ‘Sam Shing-Hoi Wing Sub-sub-section’ (collectively ‘3 Sub-sub-sections’). The 3 Sub-sub-sections are approximately 110 m, 40 m and 325 m in length respectively. The works on the 3 Sub-sub-sections, as authorized by the CEIC and gazetted thereafter, are as follows :-

(a) ‘Hoi Wing East Sub-sub-section’: Reconstruction of both bounds of the carriageway and the southern footpath while keeping the total number of lanes unchanged. Specifically, the original two south-bound lanes and one left-turn lane to the Castle Peak Road-Castle Peak Bay Section would be changed to one south-bound lane and two left-turn lanes to the Castle Peak Road-Castle Peak Bay Section.

(b) ‘Hoi Wing West Sub-sub-section’: Reconstruction of both bounds of the carriageway and the southern footpath while keeping the total number of lanes unchanged.

(c) ‘Sam Shing-Hoi Wing Sub-sub-section’: Reconstruction of both bounds of carriageway and footpath.

14. The proposed works on both ‘Hoi Wing East Sub-sub-section’ and ‘Hoi Wing West Sub-sub-section’ are to tie in with the junction improvement works at the junction of Castle Peak Road-Castle Peak Bay and Hoi Wing Road, and these proposed works are considered minor in nature, not major extensions or improvements to the existing roads.”

112.  Moreover, Mr Wong Wai Man has also clarified that in fact it was a mistake that the “Sam Shing – Hoi Wing Sub-sub-section” identified by the applicant was classified as a “district distributor” in the ATC for 2011 to 2014.  Hence, the ATC for 2015 has since corrected the mistake and been properly designated as a “rural road”[48].

113.  In my view, for the following reasons, the applicant cannot challenge the TD’s classification of the Section as a “rural road” as unlawful or irrational.

114.  It is common ground that the classification of the roads should be made in accordance with the criteria set out in the TPDM (which is issued by the TD) and the various factors as set out and explained in the TD’s evidence summarized in paragraph 107 above.  As such, the classification itself is clearly a matter of, and involves, professional and multi-faceted technical judgment.

115.  In the premises, for the proper classification of a road, the court (as well as the relevant decision maker) should defer to the view of the professional department or personnel unless it can be shown in that the professional view is one which is without any basis or Wednesbury unreasonable[49].

116.  In my view, the TD’s explanations as to the basis upon which it has classified the entire Section as a “rural road” notwithstanding that a small part of it (ie, the Three Sub-sub-sections) falls to be regarded as “district distributors” are well supported and clearly reasonable.  In particular, the TD has looked at all the relevant criteria, and in particular the operation environment of the Section, before coming to that classification.  In the circumstances, it certainly cannot be said to be a conclusion that no reasonable person in the position of the TD would have made[50].

117.  Mr Wong has also argued that the Section will become a “district distributor” after the completion of the Project given the “major extensions or improvements” made to the road segment by the various extensive works undertaken in the Project.  However, whether the entire Section will become a “district distributor” or remain a “rural road” after the completion of the Project is still a professional classification to be made by reference to those factors summarized in paragraph 107 above.

118.  For this, similarly, the TD has taken into account the particular function, characteristic and operation environment of the Section after the completion of the Project in classifying it still as “rural road”[51].  This cannot be regarded as Wednesbury unreasonable.

119.  In the premises, it is neither unlawful or Wednesbury unreasonable for the CEIC to rely on the TD’s said classification of the Section and accept the EPD’s view that the Project is not a DP as it does not fall within any of the prescribed roads under Item A1.

120.  Mr Wong has further raised a number of other submissions to support his contentions under this ground.  I agree with Mr Man that these submissions are similarly without merit.

121.  First, Mr Wong says the Section itself should be considered as a “district distributor” as it is located within the Tuen Mun New Town and serves one of the R(A) areas (ie, the densest residential zone) and a number of R(B) areas around the Castle Peak Bay and the “periphery” of the New Town.  In support of this, the applicant for the first time in these proceedings relies on the Outline Zoning Plan for Tuen Mun No S/TM/33 (“OZP”) (and its explanatory statement)[52].

122.  However, as pointed out by Mr Man, this assertion of fact has not been specifically and properly pleaded in the Re-Amended Form 86.  Although at its paragraph 40.1, there is a reference to the OZP, that is pleaded to specifically rebut the CEIC’s contention in the Initial Response at paragraph 3.15 that the Section from Sam Shing Street onwards only serves scattered low/medium density of residential and recreational developments.

123.  That particular reference to the OZP as pleaded has nothing to do with the point now taken which raises a specific question of fact about the location of the Section concerning essentially matters of town planning involving determination of how the OZP and explanatory statement are to be read.

124.  In the premises, I agree that the CEIC will suffer obvious prejudice if this new forensic point is allowed to be run because the CEIC does not have the chance to produce relevant evidence on this issue.  The applicant therefore is not entitled to rely on the OZP to run this unpleaded specific point that the Section is located in a “new town” as designated in the OZP.

125.  Alternatively, Mr Wong submits that the Section is a “district distributor” by looking at its operational environment, function and general design characteristics as:

(1)   The key differentiating feature is whether the Section is “connecting smaller centres of population or popular recreation areas with major road networks” or “linking districts to the Primary Distributor Roads”.

(2)   However, the TD’s view that it is the former is plainly wrong.  This is so as the Section is located with the Tuen Mun New Town and serves a cluster of closely connected zones of R(A) and R(B).  It is an integral part of the road system within Tuen Mun New Town to connect those high to medium residential zone to the only Primary Distributor nearby, being “Wong Chu Road”.

(3)   The Section is therefore plainly such road “linking districts to the Primary Distributor Road”.

126.  Insofar as this alternative argument has to be premised upon and supported by the OZP (and its explanatory statement), for the same reasons stated above, the applicant is not entitled to rely on the OZP to run it.  In any event, insofar as there is a difference in views between the TD and the applicant as to whether the Section is such road that “connecting smaller centres of population or popular recreation areas with major road networks” or “linking districts to the Primary Distributor Roads”, as I have emphasized above, this is a professional multi-faceted judgment.  There is nothing that could show that the TD’s professional view is without any basis or irrational.  I therefore do not accept Mr Wong’s contention that the TD’s view is plainly wrong.

127.  Second, the applicant argues that the PER Report also supports her view that the Section does not include “rural road” at all.  The air quality assessment therefore did not proceed on the basis of “rural road”[53].

128.  In relation to this, the CEIC has in evidence (through the HyD) explained in details the oversight on the part of the HyD’s consultant in omitting to make reference to rural roads in paragraph 3.7.5 and Table 3 - 5 of the PER Report[54]. These explanations of the oversight are backed and confirmed by the consultant in writing through correspondence.

129.  In these circumstances, there is nothing that could materially or seriously challenge the veracity of the evidence given by Mr Lam on affirmation.  I therefore reject Mr Wong’s submission that Mr Lam’s evidence is a post-facto attempt to “rationalize” the omission.  I accept that the failure to refer to the Section or any part thereof as “rural roads” by the consultant in the PER Report is a result of an oversight.  This therefore does not assist the applicant’s contention under this ground.

130.  Third, “major extensions or improvements to existing roads” as provided under Item A1 is defined in Schedule 1 of the EIAO to mean “a physical addition, alteration or re-alignment to existing roads which results in an adverse environmental impact as defined the [TM]”.  In relation to this, Mr Wong says Annex 3 of the TM provides a list of factors for consideration in identifying environmental impacts.  In particular, says Mr Wong, emission, discharges or releases to the environment (including persistent or toxic chemical or noise) would be factors showing adverse environmental impacts.

131.  In this respect, Mr Wong emphasizes that it is self-evident that the Project would cause adverse environmental impact because:

(1)   As identified by the PER Report itself (and as submitted above), the Project would cause operational noise impact to the surrounding environment (see the PER Report at paragraphs 2.5.36 - 40) without mitigation measures.  The PER Report suggests that even with mitigation measures, there will be residual noise impact (short of significant impact).  During the construction phrase, the PER Report accepts that there will be exceedance of construction noise criteria and even with mitigation measures, there will be residual noise impact (see the PER Report at paragraphs 3.6.39 - 43).

(2)   As to air quality impact, Mr Wong submits that the 2014 AQOs will be breached upon the completion of the Project.  Thus, there are clearly adverse environmental impacts.  In any event, even adopting the 1987 AQOs, the PER Report has opined that there would be adverse air quality impact (prior to the imposition of mitigation measures) (see the PER Report at paragraph 3.10.2).

132.  Premising on the above said adverse environmental impacts caused by the Project (at least with respect to noise and air quality impact), Mr Wong contends that both at the construction and operational phrases, the work under the Project ought to be considered as “major improvement” under Item A1.

133.  I am unable to accept these submissions.

134.  Mr Wong’s contentions amount to saying that so long as the Project has any degree (however small) of adverse impact by creating some noise and air pollution, then it ought to be treated as having an adverse environmental impact as defined in the TM (for the purpose of the definition of “major extensions or improvements to existing roads”) under Schedule 1 of the EIAO.

135.  This however cannot be correct.  As rightly submitted by Mr Man, if the applicant’s contentions are correct, the definition will become meaningless as any road works of the nature described in that definition will almost invariably be caught.  This cannot be the legislative intent.

136.  For all the above reasons, the applicant also fails under Ground 1.

D4.   Ground 2A

137.  Given my above conclusions, I can deal with this ground quickly.

138.  The applicant argues under this ground that the CEIC failed to properly discharge its Tameside duty with respect to:

(1)   Whether the Project was a DP[55].

(2)   Whether the PER Report complied with the most up-to-date AQOs[56].

139.  In this respect, it is common ground that the relevant principles regarding Tameside duty are that:

(1)   a decision maker is to ask himself the right question; and

(2)   take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly[57].

140.  In relation to the question of whether the Project is a DP, Mr Wong submits that as there was conflicting evidence at the time of the Decision (as identified by the applicant and summarized under Ground 1 above)[58] as to whether the Section should be classified as a rural road, no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision.  The CEIC therefore failed in his duty to properly inquire into this question.

141.  This contention is without merit.

142.  The complaint relates to the extent and sufficiency of the inquiry made by the CEIC.  This goes to the discretion of the CEIC and is only subject to a Wednesbury challenge[59].

143.  As I mentioned above, it is not Wednesbury unreasonable for the CEIC in a case like the present to rely on the professional view and judgment of the TD in classifying the road type of the Section.  In particular, as explained by the TD, even if all the Three Sub-sub-sections pointed out by the applicant were “district distributors”, it would and should not affect the proper classification of the entire Section to be a rural road.

144.  In the premises, I am not satisfied that the CEIC had failed to discharge its Tameside duty to properly inquire the question as to whether the Project was a DP.

145.  In relation to the AQOs, the applicant’s complaint is that under the misapprehension that the applicable standard was still 1987 AQOs, the CEIC had not inquired into the same and blindly adopted the conclusions in the PER Report.  The CEIC had therefore, says the applicant, failed to properly discharge its Tameside duty to properly inquire into this matter.

146.  Given my above conclusion that it was correct and lawful for the CECI to refer to the 1987 AQOs in making the Decision, this complaint must similarly fail.

147.  I will therefore also reject Ground 2A.

E.   CONCLUSION

148.  The applicant fails in all her grounds of judicial review.  I therefore dismiss her application.

149.  I further make an order nisi that costs of this application be to the CEIC, to be taxed if not agreed, with certificate for two counsel.  The applicant’s own costs is to be taxed in accordance with legal aid regulations.

150.  Lastly, I thank counsel for their helpful assistance in this matter.