NO. 2 of 2000
ENVIRONMENTAL IMPACT ASSESSMENT
NO. 2 OF 2000
|KOWLOON-CANTON RAILWAY CORPORATION
|DIRECTOR OF ENVIRONMENTAL PROTECTION
||Mr. Barry Mortimer, GBS, QC, Chairman|
Hun-wei Lee, Member
Mr. Stanley Cho-tat Yip, Member
|Dates of Hearing :
||10 - 12, 17 - 20, 24 April, 2 - 4, 8 - 10, 16 - 18, 22 -
25, 29 - 30 May, 21 - 24 June 2001|
|Date of Handing Down Judgment :
||30 July 2001|
This is the unanimous judgment of the Appeal Board.
By a notice of appeal dated 10 November 2000 the Kowloon-Canton
Railway Corporation (KCRC) appeals under section 17(1)(c)(v) of the
Environmental Impact Assessment Ordinance (Cap. 499) (the Ordinance)
as a person aggrieved against two decisions of the Director of
Environmental Protection (the Director) dated 16 October 2000. In
the first decision, the Director rejected the KCRC's environmental
impact assessment report (the Report) under section 8 of the
Ordinance and by his second decision under section 10 of the
Ordinance he rejected the associated application for an
These are the first appeals to be heard under the Ordinance.
The KCRC seeks a permit under the environmental impact assessment
procedure to construct a new railway line linking the existing East
Rail system from Sheung Shui Station to a new border crossing into
the Mainland at Lok Ma Chau (the Spur Line). A new three-storey
station building with departure and arrival halls will have a
double-deck footbridge across the Shenzhen River to link with a new
Huanggang metro station on the Mainland side. The construction of
the metro station has already begun.
The proposal is to build a double-track line at grade, on
embankment, through a cutting and on viaducts. It will be 7.3 km
long. In due course, a new Sheung Shui Station is contemplated as
well as a station for the development of the Kwu Tung Strategic
Development Area. The precise alignment and location of the Spur
Line is shown on Annex 1.
Although KCRC is the proponent, the construction of the Spur Line
is the fulfillment of HKSAR government policy. This policy is
- to relieve congestion at the present East Rail crossing to the
Mainland at Lo Wu;
- to provide a second rail crossing into the Mainland; and
- to provide access to rail transport for the proposed Kwu Tung
Strategic Development Area.
The Preliminary Ruling
Before the beginning of the appeals Mr. Benjamin Yu, S.C. applied
for the Chairman's ruling as to the Appeal Board's jurisdiction when
hearing these appeals. Having heard counsel the Chairman ruled as
||"The Appeal Board may hear and receive such evidence (as
defined by S.19 of the Ordinance) as is relevant to its
determinations whether to confirm, reverse or vary the
decisions appealed against. The Appeal Board has the same
powers in making these determinations as those of the DEP but
it decides the appeals on the evidence which it hears and
In determining the questions whether to confirm, reverse or
vary the decisions of the DEP, or either of them, the Appeal
Board cannot hear and determine any new application but it may
exercise such powers as were open to the DEP under the
Ordinance (in particular S.8(3)(c) and S.10 (5) and (6)) when
he made the decisions appealed against."
In its application to the evidence and the submissions of the
parties this ruling is further explained in our following reasons.
In spite of the ruling there remained a serious issue between the
parties upon the Board's jurisdiction and powers to exercise its
discretion to vary the Director's order and approve the Report and
take account of evidence elaborating upon the Report or making
additional proposals by adding conditions.
The nature of these appeals are that they are rehearings of the
issues in the decisions appealed against in which each party calls
evidence. We keep in mind that the two decisions appealed against
are first the Director's decision to reject the environmental impact
assessment report and secondly his refusal to grant the applicant an
environmental permit to allow the KCRC to construct the Spur Line.
All questions of law which have arisen before us in the appeals
have been determined by the Chairman alone. (section 19(3))
The Orders sought by KCRC are for approval of the Report with
conditions and for the grant of a permit with conditions. The
conditions which the KCRC submits are appropriate to cover its new
proposals, and to which it agrees to be subject, were put before the
Appeal Board. There are at least 50 pages of them.
For reasons given later we have concluded that in this case it is
not open to the Appeal Board (nor was it to the Director) to grant a
permit without first approving the Report.
The Environmental Process and the Spur Line
The Ordinance establishes a legal framework for the control of
projects which are likely to have adverse environmental impacts. The
purpose of the Ordinance is expressed in its title;
||"an Ordinance to provide for assessing the impact on the
environment of certain projects and proposals, for protecting
the environment and for incidental
Those projects which usually cause adverse environmental impacts
are specified as designated projects in Schedule 2 of the Ordinance.
It is to those projects that the Ordinance applies. The major steps
and decisions to be taken by the Director are set out in the
Ordinance but in carrying out these functions the Director is
assisted by a detailed Technical Memorandum on the Environmental
Impact Assessment Process (the Technical Memorandum) which is made
under section 16 of the Ordinance. Section 16(1) provides that the
Technical Memorandum is to set out the "principles, procedures,
guidelines, requirements and criteria" for the Director to apply in
various steps and decisions which he takes in the process. For the
purposes of these appeals the Technical Memorandum applied to:
- the technical content of the project profile;
- the technical content of the study brief and environmental
impact assessment report;
- the decision whether the designated project is environmentally
- the decision whether the assessment report met the
requirements of the study brief;
- the taking of advice from other authorities, in this case the
Director of Agriculture, Fisheries and Conservation (DAFC); and
- the issue of an environmental permit.
Although the Director's decision whether to approve the Report is
not listed in section 16(1), section 16(4) provides that the
Director shall be guided by the Technical Memorandum when deciding
matter under Sections 5, 6, 8, 10, 12, 13 and 14. Section 8 concerns
his decision to approve, the subject of the first appeal.
The Technical Memorandum is also relevant to the imposition of
monitoring and audit requirements as a condition in any permit
Under section 4(1) and Schedule 2 Part I A.2 of the Ordinance a
railway and its associated stations is a designated project. In
pursuing its application for an environmental permit therefore it
was necessary for the KCRC to follow the process.
Environment, Environmental Impact and Mitigation Defined
It is useful to refer to environment, environmental impact and
mitigation as defined in the Ordinance:
- means the components of the earth; and
- land, water, air and all layers of the atmosphere;
- all organic and inorganic matter and living organisms; and
- the interacting natural systems that include any of the
things referred to in subparagraph (i) or (ii);
"environmental impact", for a designated project, means-
- an on-site or off-site change that the project may cause in
- an effect of the change on-
- the well being of people, flora, fauna and ecosystems;
- the physical and cultural heritage;
- a structure, site or other thing that is of historical or
- an on-site or off-site effect on any of the things referred to
in paragraph (b) from activities carried on for the project;
- a change to the project that the environment may cause,
whether the change or effect occurs within or outside the site of
"mitigation", for a designated project-
- means the elimination, reduction or control of the adverse
environmental impact of the project;
- includes restitution by replacement, restoration, compensation
or other means for damage to the environment caused by the impact.
The EIA Process Described
We turn to a brief description of the EIA process and the steps
taken within it by KCRC and the Director.
The Project Profile
On the 23 December 1998 KCRC submitted to the Director a project
profile with an application for a study brief under section 5(1)(a)
of the Ordinance. The project profile complied with section 2 and
Annex I of the Technical Memorandum. As required it included
information about the project, how and when it was to be implemented
together with its broad environmental implications.
The Study Brief
As is required by section 5(2)(c), the project profile was
advertised and the Advisory Council on the Environment (ACE) was
informed. Under section 5(6) the Director must consider comments
received from ACE and the public in drawing up the study brief for
the project under the guidance of section 3 of the Technical
On 10 February 1999 the Director provided the study brief to the
KCRC so that it could undertake an environmental impact assessment
study and thereafter provide an Environmental Impact Assessment
Report. Again, there is detailed guidance in the Technical
Memorandum and its annexes upon the contents of the report. See for
example Annex 16 - Guidelines for Ecological Assessment.
Submission of the Report for Approval
On 28 January 2000 KCRC submitted a report to the Director but
the Director indicated that he wanted alternative alignments to be
further investigated. After further study on 27 April 2000 KCRC
submitted the Report which is now the subject of appeal and applied
for the Director's approval of it under section 6. At that stage,
the Director had to decide under section 6(3) within 60 days whether
the assessment met the requirements of the study brief and the
Director's Decision under Section 6(3) of the Ordinance
On 12 June 2000 the Director decided under section 6(3) that the
report met the requirements of the study brief and the Technical
Memorandum and that it should be exhibited for public inspection. At
the same time ACE which had been being informed, required a
presentation upon the Report.
The Public Consultation
In the public consultation period the Director received 225
submissions from the public each of which opposed the project. On 7
August 2000 under section 7 of the Ordinance ACE provided its
comments in a letter to the Director. It indicated that views were
divided whether the Report should be endorsed but enclosed four
comments which we set out verbatim:-
- Certain parts of the EIA report particularly that relating to
ecological baseline information need to be strengthened and
updated; for example, there has been no field survey on reptiles,
amphibians, and mammals and little information on the Black-faced
Spoonbill which is found in the Lok Ma Chau area. The availability
of such additional information may have bearing on the selection
of design and alignment, and may even necessitate revision of the
mitigation measures proposed which should be target and species
- The proponent acknowledged in their final submission to ACE
that the proposed central alignment had greater ecological impact
on Long Valley than any of the other considered options. There is
much concern that such an alignment would bring serious ecological
impacts and significant habitat fragmentation to Long Valley. Some
members feel that cutting into the center of Long Valley is not
acceptable. They are not fully convinced that the project
proponent has exhausted all possible alignment options and that
the constraints (e.g. the problem with the Shek Wu Hui Sewage
Treatment Works) mentioned in the alternative alignments explored
are indeed insurmountable. To minimise the impact on Long Valley,
they would prefer an alignment either running close to River Beas
or to the north of the River.
- Some members are concerned about the lack of information on
benchmark functional value, both for the meanders and for the
existing Lok Ma Chau fishponds which are proposed for
compensation. In the case of the meanders, the mitigation proposed
to be carried out by Territory Development Department has not yet
been implemented; there is therefore no way to measure the
benchmark value there. Given the lack of information on the
benchmark ecological value, some members therefore prefer
ecological compensation on a "like-for-like" basis in terms of
- Some members are not satisfied that the proponent has produced
sufficient evidence to demonstrate that the proposed mitigation
measures will work and can attain with certainty the stated
ecological functionality, noting in particular information
available overseas that the failure rate of re-created wetland has
been as high as 50% to 73%. In view of this high failure rate
overseas and the lack of comparable experience in Hong Kong, the
proposed mitigation measures, which allow for an error margin of
only 20% are considered insufficient. The project proponent has
also failed to provide adequate contingency or fallback plans in
the event of failure."
The Director's Request for Information
On the 18 August 2000 the Director exercised his power under
section 8(1) of the Ordinance to request from the KCRC
||"...the information he requires to decide whether to
He provided the 225 submissions from the public together with the
above comments of ACE and asked for "further written information and
response to the comments raised by the ACE members and the public".
He added that "...the very substantive nature of the comments by the
ACE and the members of the public would appear to cast doubts on the
adequacy and acceptability of the EIA report you exhibited...it also
appears that to adequately address the comments raised would require
substantial information to be submitted, and in such case, it would
then again cast doubts on the adequacy and acceptability of the EIA
The Information Provided
On 18 September 2000 KCRC provided a considerable volume of
further information in answer to the Director's request. This
information is an appendix to and part of the Report (see Annex 11
of the Technical Memorandum). KCRC contended that it had carefully
considered the comments of the public and the ACE and had fully
complied. But in correspondence to the Director it complained "we
believe that this is the information you require....albeit we do not
believe that we have had adequate or sufficient guidance from you as
to the specific information you require to make your decision...."
The Director Takes Advice from the Director of Agriculture,
Fisheries and Conservation (DAFC)
On the same day the Director sought the advice of the DAFC. He is
required to do this by section 9 of the Technical Memorandum. The
Director forwarded to DAFC all the public comments and the further
information provided by the KCRC together with the Director's
detailed "initial" views for refusing to approve the report and for
not granting a permit. The Director called an urgent meeting four
days later (22 September 2000) and asked for written advice by 23
September. This was provided by the DAFC in considerable detail on
the day requested and must have been prepared well in advance.
However, at subsequent meetings, the DAFC agreed upon three matters:
- that the KCRC had not considered all possible alignment
alternatives to avoid Long Valley;
- that the cumulative impact of this and other proposals had not
been fully considered; and
- having regard to other major projects in Hong Kong, there were
concerns that the impact would exceed the prediction during the
construction stage and consequently there were uncertainties as to
whether the proposed mitigation measures would succeed.
Apart from these concerns the DAFC nevertheless considered that
"there is little justification from ecological point of view in
objecting the EIA report."
The DAFC gave the Director assistance in drafting his reasons for
refusing the KCRC application. The DAFC's final view on the
important issue of wetland compensation was expressed in a
memorandum dated 4 October 2000. On this point, the memorandum
||"Concerning the successful rate of wetland compensation,
it should be noted that there are always uncertainties
associated with habitat compensation works. However, as we
have commented before, the wetland compensation proposed in
the Spur Line EIA Report is basically restoration/enhancement
of existing wetlands and, based on our experience, is reported
to have a high successful rate. There are also successful
local experience and overseas examples of such habitat
compensation works, as discussed in our meetings. The present
uncertainties about the effectiveness of the proposed
temporary compensation area mainly arise from the anticipated
practical problems associated with the construction stage. In
addition, we have also explained in our meetings that under
Hong Kong's sub-tropical climatic conditions, natural
vegetation would establish itself within a short period of
time and the process could be speeded up through translocating
soil from Long Valley area and pre-prepared areas of marsh in
a manner similar to grass turf." |
The DAFC suggested the following reason be given for rejecting
||"In view of the practical problems that may arise during
the construction stage, the director has little confidence
that the proposed temporary wetland would be properly restored
to compensate for the impact during construction
She also said
||"I hope that you would appreciate that it is important for
us to provide advice based on our professional expertise and
judgment, and in an objective manner. More important, I hope
the above comments would help strengthen our arguments on the
Although it was not applicable to this case we note the
provisions of section 10 of the Technical Memorandum on the
resolution of conflicts between the Director and other authorities.
The Director's decision under Section 8
On 16 October 2000 the Director rejected the report and refused
to grant a permit (the decisions appealed against) and gave written
reasons to which we will refer.
The final steps in the process
These decisions marked the end of the environmental impact
assessment process in the instant case. Where a report is approved
and a permit granted, however, important steps in the process
follow. These are:-
- The Director will often impose conditions on both the report
and the permit (see Schedule 4 of the Ordinance). These are to
ensure (for example) that Habitat Creation and Maintenance Plans
and Environmental Monitoring and Audit Programmes outlined in the
Report are later approved; that mitigation measures and the like
are in place and satisfactory before the project proceeds.
- The report will be placed in the register under section 8(5).
This is available for public inspection and if relevant may be
relied upon for the granting of a permit for other projects
without a further EIA study and report.
- The Director continues to monitor compliance before, during
and after construction and will if necessary use his considerable
powers under the enforcement provisions of the Ordinance.
There is a difference in emphasis between conditions to the
approval of a report, which usually are to ensure that matters dealt
with in the report are completed. The Director's approval of a
Habitat Creation Plan for example. The conditions to a permit are
related to the construction work and are to ensure that the report
is complied with before, during and after construction. For example
a condition that a mitigation area is functioning before
The Reasons for the Decision Appealed Against
The Director gave the same reasons for each of his decisions. The
full reasons are found in Annex 2 to this decision. It is necessary
to put them into perspective. His concerns relate primarily to Long
Valley. This area is described later.
In summary his reasons are:
- The high ecological value and high diversity of birds in the
area affected by the project.
- The high direct environmental impact during the construction
stage and the likely residual impact from the lengthy construction
phase having regard to proposed mitigation measures which were
unlikely to be effective or practicable.
- In the light of comments from the public and ACE, the KCRC had
not proved the absence of other practicable or reasonable
- The environmental impacts were likely to be prejudicial to the
well-being of the flora, fauna or ecosystem in the areas affected.
In his detailed reasons the Director refers (inter-alia) to the
- The impact upon the high diversity of threatened species of
birds of conservation importance caused in particular by the
lengthy fragmentation effect of the linear construction site which
will cause significant disturbance and habitat destruction. In
Long Valley about 2.4 hectares will be subject to direct habitat
destruction. Additionally, during construction disturbance
sensitive birds will be disturbed.
- The mitigation measures proposed during construction for
minimizing habitat fragmentation, silt runoff, hydrological
disruption, concrete washing and other pollutants are unlikely to
be practical or effective. The Director did not accept that these
problems could be overcome. Further, because of the need for
storage, handling and transportation, construction impacts are
likely to be greater than predicted particularly because of a lack
of proper drainage system in Long Valley and the likelihood of
heavy rainfall or flooding which will exacerbate silty run-off and
cause problems with other pollutants. Therefore the Director
concluded significant adverse impacts during construction.
- The proposed 1.8 hectares of temporary wetland are unlikely to
be effective to compensate for habitat loss during construction.
- That having regard to Annex 16 of the Technical Memorandum
this project will result in adverse ecological impacts in an area
of ecological importance and it should not normally be permitted
unless it has been shown to be necessary and that no other
practical or reasonable alternatives are available. The Director
was not satisfied that all alternative means had been explored nor
did he believe that all constraints claimed by the KCRC are
insurmountable. The Director noted the key principle stated in
section 4 of the Technical Memorandum that methodology proposed
for mitigation should give priority to avoidance of impacts.
- That on the information available, and as a result of comments
received from the public, the Director was of the view that
cumulative adverse impacts are likely because the impacts arising
from existing, committed and planned projects such as the river
channeling, Fanling Bypass, West Rail Phase II, and the Strategic
Growth Area for Kwu Tung North had not been adequately addressed.
It became clear during the hearing that of the 7.3 kilometer line
proposed the only remaining concerns are for the possible adverse
environmental impacts upon Long Valley caused by the 700 meters of
viaduct which cross it. Further, that the real concerns are confined
to the construction phase. The residual impacts during the
operational phase are likely to be small if those in the
construction phase are avoided or mitigated. It is a short distance
of track over an area of high ecological value.
Is it open to the Director (and therefore the Appeal Board) to
grant a permit for a project without approving the EIA report?
Mr. Lindblom, Q.C. flirted with the proposition (but in the
result did not press it) that it was open to the Appeal Board to
grant a permit with conditions without approving the Report. It is
convenient to deal with this point at this stage. If correct this
submission would allow the Board to consider dismissing the first
appeal against the rejection of the Report but allowing the second
appeal by granting a permit with conditions.
This situation could arise if the Board were satisfied that the
project would be environmentally acceptable on the proposals
presented in evidence but not on those in the report. In our view
Mr. Lindblom, Q.C. was right not to press the point because the
steps in the EIA process including the approval of an EIA report and
its subsequent registration for future reference can be avoided only
in circumstances clearly set out in section 5(9) of the Ordinance.
This applies to circumstances in which a permit may be issued
without an approved EIA report where there is a relevant EIA report
in the register which adequately assesses the impacts.
Additionally, section 11 of the Technical Memorandum spells out
guidance on the use of previously approved EIA reports in this way.
We are satisfied that save in the circumstances set out in
section 5 there is no power to grant a permit with conditions even
if proposals made after the report render the project
environmentally acceptable, absent an approved EIA report which will
be subsequently registered under section 15.
The Ecological Importance of Long Valley
We turn to consider the ecological importance of Long Valley.
Long Valley (sometimes known as 'core' Long Valley) is an area of
predominantly agricultural freshwater wetland of about 33 hectares
bounded broadly on the West and North West by the River Beas and on
the East by the River Sutlej. The settlement of Yin Kong is to the
South; there is development to the South East adjacent to the River
Sutlej and the village of Ho Sheung Hueng is to the North West on
the opposite side of the River Beas. The agricultural habitat and
the proposed alignment are shown generally on Annex 4.
It is agreed to be an area of high ecological importance even
though it has no special legal protection as a Conservation Area or
the like. It is the single largest remaining area of freshwater
wetland agriculture in Hong Kong and is made up of a mosaic of small
plots distinguished by their variety. There is active and inactive
wetland agriculture, there is seasonal wetland agriculture, there
are bloodworm ponds, intermittently there is marsh and other areas
are abandoned. The ecology is almost entirely manmade. It is dynamic
in that it is continually changing.
At the time of the EIA study there was an ecologically important
area of marshland beneath the proposed alignment. For this a fish
pond site to the West of the River Beas is proposed as off-site
mitigation during the construction period. This marsh has now
largely disappeared with agricultural changes that have taken place
since last year. Recently new lotus ponds have been established.
Although at one level the habitats created by the agricultural
activity (or lack of it) are largely fragmented, the area as a whole
is regarded as unfragmented. It supports a high diversity of bird
species. Over 200 different species have been recorded, 29 of which
are of conservation importance. Of particular concern is the
Greater Painted Snipe which breeds in the summer in Long
Both the active and inactive agriculture appears to create an
attractive habitat for birds. This is in spite of disturbance by
human activity both in farming and during extensive channelization
work on both the River Beas and the River Sutlej. The present
ecological value depends upon the continuance of wetland
agriculture. If this were abandoned for economical or any other
reason the present eco-system may disappear.
There are proposals that in due course Long Valley should be made
a nature park as mitigation for the Kwu Tung Special Growth Area.
The intention is to manage, preserve and enhance the ecology but at
present this is no more than a proposal.
However, a description of the ecological value of Long Valley is
not complete without a reservation. As the ecology is related to the
agricultural activities it is an area of ecological uncertainty;
there is no guarantee that the ecological significance of Long
Valley will continue into the future as the agricultural practices
may change. Likewise a change of policy or even of external factors
may lead to an improvement or deterioration in its ecological
The EIA Report under Appeal
The information provided to the Director under section 8(1) of
the Ordinance becomes an Appendix to the Report. (See Annex 11 of
the Technical Memorandum) Together these form the material for the
The Report concerns the whole of the 7.3 kilometer Spur Line from
Sheung Shui to Lok Ma Chau, but the issues concerning its approval
or rejection are now narrowed to the 700 meters of line or viaduct
where it passes over Long Valley. Further, as we have pointed out,
the real concerns are that during construction of this section, by
the methods and program proposed and with the mitigation suggested
in the report, the adverse impacts will be irreversible.
The proposal to cross Long Valley on a viaduct is designed to
reduce residual impacts during operation. The Report recognizes the
need for temporary mitigation during construction. This is provided
by draining an old fish pond, preparing an appropriate soil base,
water and planting to provide freshwater wetland of 1.8 hectares as
a roosting habitat. This is particularly, but not exclusively, for
the Greater Painted Snipe.
The permanent mitigation proposed during operation is the
provision of wetlands beneath the viaduct and in old meander areas
left after river channelization work. The construction methods and
design described in the Report submitted to the Director either
explicitly or implicitly, are the same as KCRC is using in the
construction of West Rail. These are the use of large-diameter bored
piles; stonefill temporary access roads (which cause soil
compaction); concrete and construction materials to be delivered
along the access road by lorry; and construction both of the piers
and platforms from ground level. Usual methods are proposed for
mitigating fragmentation; interference with drainage; silty run-off;
concrete washing; dealing with pollutants and for waste-disposal.
The Report and the information provided under section 8(1)
examines many alternatives to the Central Alignment proposed to
determine whether any is 'practical and reasonable' (See Annex 16
section 3.1(a) of the Technical Memorandum). Those include:-
- The extension of Lo Wu Terminal;
- The construction of the Northern Link (NOL) to Lok Ma Chau;
- Alternative alignments:-
These alternative alignments
are shown on Annex 3 to this decision.
- The Lo Wu Route;
- The Northern Route;
- 2 Southern Routes;
- The Fanling Highway Route; and
- The Beas River Route.
- Tunnel options:-
- for the Fanling Highway Route
- for the Central Alignment.
The adverse ecological impacts are addressed both in the Report
and further in the information. The ecology of Long Valley as it
supports the avifauna is the subject of detailed study and the bird
species of conservation concern are individually considered.
The well known difficulties in establishing, re-creating and
enhancing wetlands are examined and the adequacy of the proposed
mitigation - both temporary and permanent is addressed.
For Long Valley the temporary and permanent mitigation areas
proposed in the Report are the 'fishpond' area, the Meander areas
and the areas beneath and at the side of the viaduct. The conclusion
of the annexure on Long Valley is:
||"Some habitat loss and disturbance impacts will affect
Species of conservation Concern occurring in the ecologically
important area of Long Valley (Tables 1 and 2). Areas of
suitable compensation land outside the zones of disturbance
impacts have not yet been identified to compensate for habitat
loss and disturbance in this area. This issue needs to be
resolved if substantial residual impacts from the Spur Line
are to be avoided."|
It is not necessary to summarise all the contents of the Report
for our purposes it is enough to say that the Report is a detailed
and highly professional document. The Director was satisfied that it
met the requirements of the Study Brief and the Technical Memorandum
under section 6(3) of the Ordinance
Evidence on appeal was called to support the Report by the KCRC.
The Director called evidence to throw doubt upon its adequacy and
conclusion. We now consider the broad thrust of this evidence.
The Report and the Evidence on Appeal
We turn to a brief discussion of the KCRC's evidence on the
Whereas much of the evidence called was in support of and to
elaborate the assessment, the overall results and the conclusions in
the Report, a significant body was called which was additional to
and outside the study for the Report.
The additional evidence was called on the basis that even under
the Preliminary Ruling the Appeal Board is entitled to give effect
to new proposals by approving the Report but with conditions to take
account of those proposals. This latter proposition is seriously in
Apart from this consideration, we also note that section 5 of
Annex 16 of the Technical Memorandum gives guidance on impact
mitigation. Particularly, section 5.4.5(a) and (g) provide
guidelines on on-site and off-site ecological mitigation measures.
||"all possible design measures and all practicable on-site
ecological mitigation measures shall be fully investigated in
the EIA study and exhausted to minimize the loss or the damage
caused by the project to the ecological habitats or
5.4.5(g) states that:
||"Their feasibility, constraints, reliability, design and
method of construction, time scale, monitoring, management and
maintenance shall be confirmed during the EIA
With the above 2 perspectives in mind, we now discuss the
evidence given on the ecological mitigation measures and the
(a) Ecological mitigation measures
Although the Report concerns the length of the Spur Line the
evidence has concentrated upon that part which concerns Long Valley
and in particular the adverse impacts which may occur during the
The Report's description of and conclusions about the wide
diversity of avifauna with emphasis upon those birds of conservation
importance and especially the Greater Painted Snipe were enlarged
upon in the evidence we accept from Mr. David Melville, Mr. Paul
Leader and Mr. Michael Leven. Each is a highly experienced and
practical ornithologist. Mr. Melville and Mr. Leven are also
respected ecologists. Field studies have continued since the Report
was completed and these include radio-telemetry of movements of the
Greater Painted Snipe. Dr. Lew Young called for the Director sought
to limit the value of the findings because mainly young birds had
been caught for the study. He also thought the way the data was
analyzed was confusing because too much had been read into it.
Bearing in mind its limitations we agree with the witnesses called
by KCRC that the study was helpful. These included Mr. Leader the
acknowledged expert on the Greater Painted Snipe. Both Dr. Lew Young
and Professor Dudgeon (who was also called by the Director) gave
evidence of the limits of knowledge upon the Greater Painted Snipe,
its food and habitat requirements and the ecology of Long Valley.
Even giving appropriate weight to this evidence we are satisfied
that more is known about this and other birds and their habitat in
Long Valley than in any other similar area in Hong Kong.
We were also impressed by Mr. Kelley's experience and expertise
in the creation of wetlands. Our reservation is that he may be a
little over confident in achieving success for the wetlands proposed
in the project.
Taking into account the doubts of Dr. Hau Chi-hang, Dr. Lew Young
and Professor Dudgeon who were called for the Director, on all the
evidence we are of the opinion that with active management it is
likely that the mitigation areas will be successful and the
necessary habitats will be created or enhanced. The farmers achieve
it unintentionally and we are inclined to accept Mr. Melville's view
that this can be replicated. This success however is dependent upon
a demonstrated sufficiency of water and we note that the evidence
does not make the link between agricultural practices and the
It is important to note that it is accepted by Mr. Melville and
possibly Mr. Kelley (both key witnesses for KCRC) that the temporary
and permanent mitigation proposed and available at the time of the
study and the Report is not sufficient.
At the hearing KCRC proposed an additional 3 hectares of
ecological mitigation. This 3 hectares area has become available
since the Report was completed. It is in Long Valley contiguous with
Meander 2A and part of the area of high ecological importance. Mr.
Leven was clearly of the opinion when he gave evidence that all the
mitigation proposed including the extra 3 hectares was 'critical'.
He said, "the more the better.". The new proposal is to enhance this
habitat for the Greater Painted Snipe and a suite of other birds of
conservation importance by managing it actively and adaptively for
both temporary and permanent mitigation. The importance of the extra
3 hectares now available and not studied in the Report is clear from
the evidence of the three witnesses mentioned. The plan proposed is
to establish it as temporary mitigation before construction (using a
different method and program from that implied in the Report)
All witnesses agreed (and we accept) that adequate Baseline
Studies must be carried out. Suitable targets and proper management
must be established and appropriate monitoring undertaken for the
adversely affected parts and the mitigation areas. But, provided the
Report has adequately assessed the feasibility and other
requirements of the mitigation measures, these often may be
completed after approval of the Report provided they are later
approved by the Director.
The Board was impressed with the mitigation proposals now made
and with the determination of KCRC to provide adequate mitigation
for the project to make it environmentally acceptable. Nevertheless
even this evidence did not satisfy the requirements under section
5.4.5(a) and (g) of Annex 16.
There are two selected examples upon which the success of the
mitigation hinges. First, the sufficiency of water in the dry season
for both mitigation and the farmers is critical. Yet, we accept Dr.
Jayawardena's evidence that the tests so far carried out do not
satisfactorily demonstrate this. This throws doubt upon Mr. Paz's
evidence on the availability of enough water in the dry season.
A further example is a failure to demonstrate the relationship
between the farming practices and habitat creation. We were
impressed by Professor Dudgeon's elaboration of the complex
relationship between the elements of the eco-system and particularly
the lack of knowledge of what makes Long Valley so attractive for
avifauna. This ought not to be difficult to study yet for
enhancement of the 3 hectares will be important.
To complete the mitigation proposed in KCRC's evidence the new
construction program will allow the early establishment of wetlands
beneath the viaduct as soon as the piers are complete. These
proposals become clear when the evidence on the proposed new
construction program is considered.
(b) Construction methods and program
In KCRC's evidence further avoidance of adverse impacts and
mitigation of them is proposed by methods of construction and a
program which were not part of the EIA study.
First the proposal (in summary) is to avoid disturbance and
linear fragmentation and to maintain ecological corridors and
- constructing the viaduct piers only in 2 successive dry
seasons. The eastern half in the first and the western in the
- The use of small-diameter pre-bored H-piles to minimize
excavation and risk of silty runoff. The formation of an access
road and works areas on Dura-base plates (or similar artificial
weight bearing surface), with an impermeable geotextile drainage
membrane beneath, to minimize disruption to topsoil and other
- The piers to be in pre-cast sections.
- Concrete to be pumped from off-site (not delivered by lorry).
- Once the piers for the eastern 'half' are complete, the
Dura-base road to be removed and wetland areas beneath viaduct to
- the viaduct platforms to be constructed without ground access
using an advancing overhead gantry supported on the piers. The
pre-cast sections of the platform to be delivered from off-site
along the already constructed platform using a vehicle yet to be
Detailed evidence was given by Mr. Geoffrey Harris on these
construction methods and the program. Also, he produced a detailed
plan of the way in which the Dura-base road with the drainage
membrane beneath would be used to avoid silty run-off, concrete
washings, oil, grease, piling pollutants and the like from
contaminating the soil by being drained and pumped off-site in
channels. Thereafter to be dealt with appropriately.
He also described how contamination from the boring would be
avoided, how water-courses would be maintained and monitored and how
waste would be dealt with.
His evidence on noise impacts and the calculation for one noise
sensitive receiver was shown by Mr. Maurice Yeung (called by the
Director) to be in error. On the evidence this is unlikely to be a
major difficulty nevertheless if the viaduct is constructed the
point must be resolved.
Apart from the Dura-base road and the drainage membrane most of
Mr. Harris' evidence of drainage precautions and the like is
properly regarded as elaborating upon the precautions envisaged in
the Report. The use of Dura-base or a similar product is new and Mr.
Harris had no experience of it. We are persuaded by Mr. Lovegrove, a
witness for the Director, that tests are necessary to demonstrate
that Dura-base or a similar product is feasible for use on Long
Valley soil. Dr. Lee Kin-man questioned whether the drainage
membrane would stand up to the weight and use of heavy equipment. If
Dura-base is tested under the conditions proposed it would be wise
to test the membrane at the same time. On KCRC's evidence these are
important to the success of avoidance of construction impacts.
If Dura-base (or similar) and the membrane are shown to be
effective, much will then depend upon the contractors and whether
there is confidence that they will be persuaded to behave
appropriately with a concern for the environmental issues. We were
impressed by Mr. Harris's approach and attitude to this but think
contractors require positive financial incentives to encourage
compliance with any conditions.
Additional to that summarized above there was evidence from each
party upon the practicality and reasonableness of the alternatives
considered in the Report and the further information. We consider
this evidence later.
One of the most important issues for our consideration is the
evidence called by KCRC upon these important new proposals. The most
significant were the additional 3 hectares and the detailed
construction method and program.
The Report and the Appeal Board's discretion under Section
4.5.2 of the Technical Memorandum
Mr. Benjamin Yu, S.C. submits that these appeals must fail
because the Appeal Board does not have the jurisdiction to approve
the report with KCRC's proposals now advanced in evidence. He points
out that the Board is asked to approve this report but with detailed
conditions to take into account new proposals which he submits
require to be studied, assessed and included in the report so as to
form part of the report's results and conclusions.
He accepts that in an appeal of this nature the parties may call
evidence which elaborates upon the report but that a proponent may
not introduce new proposals as a reaction to the Director's reasons
for rejecting the report. This, he says, is KCRC's approach to these
appeals and it amounts to circumventing the EIA process. In
particular it circumvents the important step of public consultation.
Mr. Yu concedes that section 4.5.2 of the Technical Memorandum
provides the Director and the Appeal Board with a discretion to
approve a report with conditions when the report requires amendment
but only in limited circumstances which are not present here.
Section 4.5.2 provides
||"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
The necessary circumstances are therefore that the amendments
will not affect:
- the validity of the assessment;
- the overall results; and
- the conclusions of the report.
In these appeals, Mr. Yu suggests, much of the evidence called by
KCRC goes well beyond the limits within which such amendments are
permissible. He says that major new proposal are made for the
mitigation of adverse impacts which are not included in the report.
In particular he refers to the evidence of:-
- the additional 3 hectares of managed wetland proposed as
temporary and permanent mitigation;
- the proposed new methods of construction of the viaduct over
Long Valley with the new program for piers to be built in two dry
seasons and a Dura-base construction road.
For KCRC Mr. Lindblom, Q.C. submits (in summary) that it is open
to the Appeal Board to approve this report and grant a permit with
conditions as it is invested with all the powers of the Director in
similar circumstances. The evidence called is no more than an
elaboration of the matters which appear in the assessment and
results and conclusions of the report given that with the passage of
time there are new circumstances which have to be taken into
He submits that the first and only time in which evidence is
heard and evaluated is during the appeals. This is a re-hearing in
which the Appeal Board itself can make the necessary assessments. In
this way the appellate proceedings greatly add to the value of the
environmental impact assessment process.
The process is iterative, he submits. Where there are changed
circumstances such as the 3 hectares of wetland which was not
available during the study and the new methods of construction which
had not then been fully developed, the Appeal Board may hear and
assess this evidence. In particular it may do so if since the report
there are new proposals which either lessen potential adverse
environmental impacts or provide greater mitigation - as in this
Further, he submits that even if some of the evidence goes beyond
elaboration and support for the report and would require amendments
to it, none of the evidence affects the validity of the assessment,
the overall results and the conclusions of the report. In these
circumstances the Appeal Board has the jurisdiction and a wide
enough discretion to approve the report with conditions under
section 4.5.2 of the Technical Memorandum.
He rightly repeats that from the outset of the appeals he has
relied upon this section and has invited the Appeal Board to approve
the Report and impose conditions. The same conditions, he contends,
should be imposed upon the permit.
He further says that if he brings himself within the provisions
of section 4.5.2 this procedure takes place after the time for
public consultation has come to an end under the Ordinance and he is
not circumventing this consultation. The times for public
consultation are clearly provided, first under section 5(5) for
consultation upon the Director's drawing up the study brief for the
project, and secondly when the Director has decided that the report
meets the requirements of the brief and the Technical Memorandum.
The Report is then advertised under section 7 unless there are
circumstances which require the report to be amended and
re-advertised. Also, he notes for our assistance that the public has
no participation when further information is provided to the
Director on his request under section 8(1).
The Submissions Considered
The underlying aim of the impact assessment process is to ensure
that no designated project is undertaken unless it is shown to be
environmentally acceptable. While the end result is important, this
is achieved by a series of steps in the process which lead to the
decision whether to approve the EIA report and grant a permit. The
Ordinance provides the outline and the steps in the process. The
Technical Memorandum, issued under section 16 of the Ordinance,
provides the detailed criteria to be applied at each stage.
Even though the overall aim of the Ordinance is to achieve a
decision that a project is environmentally acceptable, the decisions
to be taken by this Appeal Board are more specific. The Appeals are
against the two decisions of the Director to reject the Report and
not to grant a permit. Not against the general issue whether the
whole project is environmentally acceptable as now proposed. We sit
as an appellate tribunal not a tribunal of enquiry.
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.
In spite of this however the Director and therefore this Appeal
Board, has a residual discretion. It is a discretion to be execised
in limited circumstances.
Section 4.5 of the Technical Memorandum sets out the criteria for
approval of the EIA report:
"4.5 Approval of the EIA Report
||After the public inspection of the report and, if
required, the consultation with the Advisory Council on the
Environment, the EIA report shall be approved with or without
conditions if |
- the requirements in the EIA study brief have been met;
- 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;
- it addresses relevant environmental issues raised by the
public and the Advisory Council on the Environment during
the public inspection period; and
- 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.
||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
As can be seen from section 4.5.1 if the Director decides that
the four criteria have been met he must approve the report but has a
wide discretion whether to impose conditions for matters arising out
of the report. In these circumstances, conditions are used to
implement an approved report. Under 4.5.2 he has a discretion to
approve a report with relevant and appropriate conditions but only
if he concludes:
- that the report requires amendment; and
- that such amendment, or amendments, will not affect (i) the
validity of the assessment and (ii) the overall results and (iii)
the conclusions of the report.
In deciding the Appeal this Board applies the same principles but
exercises its own discretion.
Clearly it is not the intention that either the Director, nor an
appeal board, should exercise this discretion so widely as to defeat
the integrity of the EIA process. We note that if the power under
section 4.5.2 is exercised it does not require the amendments to be
made to the report, which if approved, will be registered with the
amendments as part of it.
The Discretion under Section 4.5.2
We turn to consider the effect of section 4.5.2 of the Technical
Memorandum. The discretion provided by this section is to allow the
approval of an EIA report with appropriate conditions in
circumstances where the report requires an amendment which will not
affect its validity as provided by the section. It is a "safety net"
provision. 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
This Appeal Board has the power to exercise its own discretion
under this section for the same purpose. We turn to a brief summary
of the circumstances in which we are invited to exercise the
The Director's reasons for rejecting the report to which we have
already referred include:
- the lengthy fragmentation effect of the linear construction
- the mitigation proposed for fragmentation, silty run-off,
hydrological disruption, concrete washing and other pollutants is
unlikely to be practical or effective during construction.
Particularly having regard to the poor drainage system in Long
Valley, heavy rainfall, and flooding; and
- 1.8 hectares of proposed temporary wetland is unlikely to be
effective to compensate for habitat loss during construction.
Much of KCRC's evidence elaborates upon the contents of the
report. In this re-hearing of the issue whether the report should
now be approved by the Appeal Board it is admissible and valuable.
However, important parts of the evidence go much further. They add
new and different proposals designed to negate the Director's
reasons for rejecting the report. We have considered these new and
important proposals above.
Mr. Lindblom, Q.C, argues with some force that if these measures
are successfully carried out with the detailed mitigation measures
proposed the impacts during construction will be minimized.
He suggests that:
- the water-courses will be maintained;
- the Dura-base road, the impervious drainage membrane and the
separate drainage channels for run-off pollutants etc. will
- the 3 hectares additional wetland makes the overall mitigation
more than sufficient when the precautionary principle is applied;
- the permanent wetland beneath the viaduct will be established
early in the process;
- soil will not be compacted by the use of Dura-base;
- linear fragmentation will be avoided;
- ecological corridors will be maintained; and
- noise and movement will be kept to a minimum.
Mr. Benjamin Yu, S.C. categorized these proposals as
afterthoughts and reactions to the Director's reasons for refusal.
He contends that they are major changes which must affect the
validity of the assessment, overall results and conclusions of the
report. They should be part of the EIA study otherwise the process
is circumvented and public participation improperly avoided.
Mr. Lindblom, Q.C. replies that this is the iterative process.
His case is that it is the Board's task to superintend the
assessment process and decide upon it with the great advantage of
hearing the evidence. In this way these appeals are valuable
additions to the process. He contends for the application of our
discretion under the section and has helpfully provided lengthy
draft conditions to which the KCRC agrees to be subject and which
provide for the new proposals in the evidence.
We are mindful that it is much in the public interest and also in
the interest of the parties that all outstanding issues concerning
the construction and operation of that part of the Spur Line which
is proposed to pass over Long Valley are resolved. We have been
concerned to find a way of achieving this but we have concluded that
we must accede to Mr. Yu's submission.
Faced with these completely new proposals which are not in the
report or the assessment it is not open to the Appeal Board to
properly exercise its discretion under section 4.5.2 and approve the
report with a raft of conditions as a substitute for amendment and
proper assessment and (if appropriate) approval and registration of
an amended report, which the public can access and rely upon.
The reasons for this decision are as follows :
- The report cannot be approved without it being amended to
include new and significant proposals of this kind.
- The validity of the assessment in the report will be affected
by the new proposals. Annex 16 of the Technical Memorandum
provides the principles to be applied in an assessment. The
assessment of mitigation measures is as important as other
factors. Sections 5.4.5(a) and (g) provide for the assessment of
both on-site and off-site mitigation measures in the study and the
These new matters are radical additions or
variations and should all be confirmed and assessed as part of the
study and the report.
It is not possible to say that the
overall results and conclusions will not be affected. It is likely
that they will be affected.
Critical matters should be
assessed in the report. We have referred to the necessity to
demonstrate the sufficiency of water in the dry season for the
proposed permanent wetlands in order to show that the mitigation
is feasible. We consider it inappropriate to make this the subject
of a condition when feasibility of the mitigation must be
demonstrated in the EIA study.
The same point arises in
relation to demonstrating the feasibility of using Dura-base
plates and the impermeable drainage membrane for the construction
of an access road on the Long Valley soil. Similarly, it is
necessary to demonstrate the relationship between the farming
practices and habitat creation.
- It is not the intention of section 4.5.2 that either the
Director, when he makes his decision, or the Appeal Board on
appeal, should exercise their discretion for major new proposals
of the kind under consideration to be accepted with conditions as
a substitute for amendment of the report, its re-exhibition for
the public and its re-submission to ACE.
- New proposals of this nature at the appeal stage circumvent
the assessment process laid down in the Ordinance and the
Technical Memorandum. In particular they circumvent proper public
participation and the participation of ACE. If the process is to
be successful its integrity must be maintained. We refer to the
importance of each step in the process being properly taken.
- That when approved the report must be entered in the register.
It then acquires a special status and can be relied upon during
the period that it remains relevant for other projects. It is not
appropriate to substitute detailed conditions for assessments
which must be in the body of the report and available for future
reference. Until the appeal stage the process is mainly
documentary. Each step is important to achieving an approved
report followed by a permit. Setting an appropriate standard of
reports in the register is necessary. Normally the permit will
contain conditions to ensure that the measures defined in the
report are carried out. (See Schedule 4 of the Ordinance)
- It has not been suggested to the Appeal Board that any other
or wider relevant discretion is available to the Appeal Board
either in the ordinance or the Technical Memorandum. In our view
there is none.
Lastly we note again that the appeal is to reverse the Director's
decision to reject this report. The order sought is to approve this
report with conditions. There can be no question of approving the
Report as it stands without taking account of the new proposals.
Indeed one of KCRC's key witnesses, Mr. David Melville felt unable
to support the sufficiency of the temporary mitigation assessed in
the report and Mr. Kelley and Mr. Leven were clearly uncomfortable
with the mitigation proposed in the report and were greatly
re-assured by the new proposals of the additional 3 hectares and the
new method and program for construction.
It is also our opinion that if new proposals are assessed in
appeals in the manner urged upon us by Mr. Lindblom, Q.C. the
appellate process will become lacking in clear issues, unfocused,
difficult to handle and unnecessarily lengthy. This would reduce the
validity of the EIA process and would damage its integrity and
For these reasons both appeals must be dismissed.
During the hearing we have received detailed and helpful
submissions upon various aspects of the EIA process. It may be
helpful if this Appeal Board makes some suggestions based upon some
The Precautionary Principle
There has been frequent reference in the appeals to the
"precautionary principle" with each party suggesting somewhat
different approaches to it. Section 4.4.3(a)(x) of the Technical
Memorandum refers to the application of the principle in the
evaluation of residual impacts but without defining it. We turn to
consider how it should be applied in the present circumstances.
The definition in the Ramsar Convention on Wetlands is:-
||"If the impact of specific actions is not clearly
understood, then these actions should be prohibited even if
there is insufficient evidence to prove a direct link between
the activities and resulting wetland
This applies to Ramsar sites and no doubt is appropriate when
applied to Sites of Special Scientific Interest and Conservation
Areas. It may be too stringent an approach to areas of high
ecological value which do not have legal protection and we note that
other less stringent definitions are to be found in other respected
However much study has been made into ecology and wildlife, as
with most subjects, the more that is learnt, the more there is to
learn. Because of the lack of knowledge, the success of ecological
mitigation cannot be predicted with certainty. For these reasons,
avoidance of adverse environmental impacts is preferred over
mitigation. And, where impacts are assessed and mitigation is
provided caution is necessary. Assumptions should be made that the
impacts may be greater than assessed and that the mitigation may not
be as effective as hoped for. If mitigation is the issue, it is
better to provide more rather than less; to have a baseline from
which to start; and monitoring so that management may have a better
chance of making the mitigation effective.
With these principles in mind, several witnesses have criticized
the proposals made by the KCRC on the basis that not enough is known
about the subject under consideration or that not enough research
has yet been undertaken. When such evidence is evaluated it may
assist a balanced and cautious approach.
The more ecologically important the site, the more caution is
necessary. The necessary test is, on balance, whether a particular
measure has a reasonably high chance of success. This we consider
appropriate for this project.
The Technical Memorandum and Alternatives
At the hearing Mr. Lindblom, Q.C. raised questions concerning the
legal effect of the Technical Memorandum and KCRC's obligation to
Turning first to the Technical Memorandum.
As we have said earlier this is issued under section 16 of the
Ordinance. It is approved by the Legislative Council and section 16
gives the Secretary the power to set out "principles, procedures,
guidelines, requirements and criteria for certain specified
purposes". By subsection (4) the Director is required to be guided
by the applicable parts of the Technical Memorandum when deciding
matters under section 5, 6, 8, 10, 12, 13 & 14 of the Ordinance.
The Ordinance provides the outline of the ecological assessment
process with little guidance upon the principles to be applied
either by the Director in his decision making or by a proponent who
has the burden of complying with it. The detailed requirements of
the process (for the assistance of both) is provided in the
Technical Memorandum. It follows that if any part of the Technical
Memorandum is made for purposes outside those specified in section
16 it is of no effect. Note, however, that in section 16(1) he has
power to provide for the purpose of deciding whether a designated
project is environmentally acceptable, to provide for the technical
content of the Study Brief or the report and for deciding whether
the report meets the requirements of the Study Brief. The decision
to approve or reject a report is not listed under this Subsection
but reference to it is made in Subsection (4).
Although under section 19(6) of the Ordinance the contents of a
Technical Memorandum may not be 'called into question in an appeal'
this would not prevent a challenge to its legal effect. There is no
doubt that the Technical Memorandum applies to the EIA procedure
including the Report and the decision whether or not to approve it.
In this case the issue bears upon the guiding principles in Annex
16 of the Technical Memorandum. In particular section 3.1(a) which
3 General Principle
||The guiding principle for ecological assessment shall be
- areas and/or habitats of ecological importance (e.g.
those listed in Note 1 and 2 of Appendix A) shall be
conserved as far as possible. Any project that is likely to
result in adverse ecological impacts in areas of ecological
importance shall not normally be permitted unless the
project is necessary; it has been proven that no other
practical and reasonable alternatives are available and,
adequate on-site and/or off-site mitigation measures are to
In the same context the Director relied on section 5.4.1(a) of
Annex 16 and section 4.3.1(d) of the Technical Memorandum.
On the question whether KCRC had shown that no other practical or
reasonable alternative was available Mr. Lindblom, Q.C. submits that
section 3.1(a) above does not require KCRC to exclude alternatives
which amount to different projects and in any event this was not
required in the Study Brief. In summary he takes the following
- there is no reference to the assessment of alternatives in the
Ordinance or in the main body of the Technical Memorandum;
- that the Technical Memorandum does not impose a general
requirement to consider other potential schemes as alternatives.
Note for example that Annex 20 "Guidelines for the Review of an
EIA Report" does not require the study of different alignments or
designs for the project under consideration and there is no
requirement to evaluate alternatives which amount to other
- that where avoidance is considered it is a reference to
mitigation for the impacts of a project.
Consequently he says that KCRC have complied with the principle
and the other guidance because:
- that it applies only to a project that is "likely to result in
adverse ecological impacts". The word 'result' applies not to all
impacts "arising from a project" as in section 1.1 of Annex 16 but
only to residual impacts;
- that with a mitigation in place there are no residual impacts,
or no unacceptable residual impacts, in this project; and
- in any event "other practical and reasonable alternatives" do
not refer to studying or excluding other schemes or projects. Only
he submits the type of alternative which involves "modification of
layout and design".
Finally, on this point Mr. Lindblom, Q.C. contends that KCRC were
misled by the Study Brief particularizing alternatives in Clause
3.9.3(IX) which required the assessment to "recommend all possible
alternatives(such as modifications of layout and design)...." He
points out the importance of the Study Brief in setting the agenda
for that which the Director requires to be studied in order to make
his decisions for the protection of the environment. Therefore when
under 3.9.2 the Study Brief required "the relevant criteria and
guidelines and requirements laid down in Annexes 8 and 16 of the
Technical Memorandum respectively shall be followed." he cannot be
taken to have required study on alternatives other than he has
specifically requested under Clause 3.9.3(IX) above.
Although we have determined the appeal on other grounds, we set
out Mr. Lindblom, Q.C.'s contentions because they draw attention to
some issues and difficulties which are likely to arise in future.
The various provisions in the Technical Memorandum for the study
of alternatives, the avoidance of impacts, the priority for
mitigation and for ecological assessment include the following broad
- Habitats of ecological importance (such as Long Valley) shall
be conserved as far as possible;
- Projects which are likely to have residual ecological impacts
on sites of ecological importance should not normally be permitted
- project is shown to be necessary;
- no other practical and reasonable alternative is available;
- adequate on-site and/or off-site mitigation is employed;
- impacts should be avoided to the maximum extent practicable
but if they cannot be avoided they should be minimized or
It is in their application that these principles cause
difficulty. A careful but balanced approach is required which takes
into account all the circumstances.
Here there was no dispute that there is an urgent need for the
congestion at Lo Wu to be relieved. The issue is whether KCRC had
fulfilled its obligation to consider all possible alternatives to a
viaduct on the proposed alignment.
Certainty on the nature of 'alternatives' to be studied at an
early stage must be beneficial to the process. The language of
section 3.1(a) of Annex 16 (above) is unspecific. With hindsight,
and without attaching blame of any kind, the Study brief was not as
specific as is desirable.
The general indication was to follow the requirements of Annex 16
but specifically KCRC were to:-
||"...recommend all possible alternatives (such as
modifications of layout and design)..."|
We do not consider this would normally lead a proponent to think
that he was required to study specific alternatives other than
structural ones or detailed alignment. We doubt therefore that the
Study Brief alone sufficiently indicates that the feasibility of
extending Lo Wu or of recommending major changes to policy by
bringing forward the Northern Link of West Rail for the rail access
to Lok Ma Chau were required for study. These are possible
alternatives to be investigated in an EIA process but they also
hinge upon further strategic and policy decisions outside the scope
of an engineering project. We return to this general point when we
make some suggestions concerning the implementation of the EIA
The Assessment of Alternatives
As we have indicated, when applying the principle to an area of
ecological importance and assessing whether an alternative is
'practical and reasonable' all the circumstances must be taken into
account and a balanced judgment reached.
In our view section 3.1(a) of Annex 16 focuses chiefly upon
residual impacts. 'Need' is an illusive concept in the balance and
the word 'normally' indicates it to be one factor in the discretion.
Clearly, the primary consideration is whether applying the
precautionary principle the project is environmentally acceptable.
But, of many matters which must be weighed in assessing 'practical
and reasonable' included are adverse impacts, engineering
constraints, extra-time involved, additional cost and even
government policy (accepting it as a fact). No alternative is likely
to be practical if government policy will not enable it.
We note that none of the KCRC witnesses in the result was able to
support the contention in the Report that the engineering
constraints for the alternatives studied were 'insurmountable' but
this is not the test.
We have each reached a view on the practicability and
reasonableness of the alternatives advanced. For what it is worth we
disclose it. On all the evidence we heard the possible alternatives
which could be practical and reasonable were reduced to three:-
- the viaduct as proposed;
- the bored tunnel on the same alignment; and
- the Northern Link.
The Northern Link, however, is outside any useful consideration
for this appeal. This alternative would require a major change of
government policy even if it would be possible to implement it in a
timely fashion to satisfy the need.
On Dr. Lee Kin-man's evidence we think the bored tunnel to be
feasible from an engineering point of view. We noted his expertise
in this field and accept that the constraints spoken of by KCRC's
witnesses could be overcome. However, if the additional cost is
anywhere in the region of HK$1.4 billion as estimated by Mr. Jesse,
this would put the reasonableness of this alternative in doubt when
the viaduct remains a possible solution.
Turning to the proposed viaduct. It has not been suggested in
evidence that the operational phase is likely to result in adverse
impacts which cannot be mitigated, with the critical proviso that
water is available and the wetlands for temporary and permanent
mitigation can be successfully established, recreated or enhanced to
provide the necessary habitats.
We believe that the viaduct as now proposed may have merit. Our
view is that with the expertise and long term financial support
available the mitigation is likely to succeed. We are comforted in
this view by the similar opinion expressed by the DAFC in her advice
to the Director.
But the KCRC have fallen short of demonstrating on the evidence
put forward on appeal that the mitigation proposed is feasible and
effective and therefore likely to be successful for the reasons we
The Implementation of the EIA Process
Having considered the EIA process when hearing these appeals we
offer some suggestions for consideration. The Ordinance gives the
EIA process a legal structure. It is not a process which lies
comfortably within a detailed legal framework. Much of its success
depends therefore upon the manner in which it is implemented within
the outline structure provided assisted by the Technical Memorandum.
The consequence is that all involved are learning how best the
various steps required can be implemented.
Our suggestions are an attempt to advance the process to increase
its certainty and effectiveness. In fact, we believe that the object
of putting the EIA process into a legal framework is to provide
certainty in the process, the roles and the timing. If implemented
effectively the EIA Ordinance will improve efficiency in decision
making for major projects.
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 infrastructual projects (roads,
railways, tunnels, reclamation works and the like) which may cause a
variety of adverse environmental impacts are proposed.
The Ordinance is almost bare of detail save for definitions and
matters which may be specified in a permit (Schedule 4). On the
other hand the Technical Memorandum has over 80 pages of detailed
"principles, procedures, guidelines, requirements and criteria" for
the purposes specified in Section 16(1). The burden of fulfilling
these requirements rests firmly on the proponent but they are so
lengthy and often expressed in such general terms that he may
require assistance from the Director to clarify his requirements and
In a substantial project involving many different environmental
concerns, it is daunting for the Director to apply the process and
it is equally daunting for the proponent to comply with it. There is
ample scope for misinterpreting general provisions and for
misunderstanding detailed requirements.
The task of ensuring that the process is implemented in a
certain, efficient and timely manner is not easy but ought to be
achievable. The key to its success is good communication. We suggest
- At all stages of the process there should be open, ready and
frank communication between the Director and the proponent.
Cooperation in achieving projects which are environmentally
acceptable is the essence of the process.
- Each step of the process is of obvious importance. We mention
three in particular:
- The drafting of the Study Brief
This follows the
exhibiting of the project profile and the receipt of comments
from the public and ACE. The drafting of the Study Brief then
reflects the relevant concerns of the public and ACE. These
concerns and any further matters which the Director requires to
be studied should be particularized in it. Where possible the
terms should be specific rather than general. The drafting is
essential to what follows. Mr. Lindblom, Q.C. submits that it
sets the agenda for the rest of the process. We agree. Where
clarification is required this should be readily requested and
- The decision under Section 6(3) of the
This is the Director's decision whether the EIA
report meets the requirements of the Study Brief and the
Technical Memorandum. It is of particular importance. The
Director must ensure that the report complies. Should the report
not meet the requirements in anyway he should not allow it to be
exhibited and should indicate the defects.
communications between the Director and the proponent at this
stage will often resolve future problems. If the report does not
meet the requirements, or may not do so, such issues should be
resolved. Amendments to the report and a re-submission at this
stage will assist the decision making process and cause little
delay. Further, this may avoid delay and expense later in the
If the report is allowed to go to the next
stage by default (Section 6(5)) or by a mistaken decision when
it does not meet the necessary requirements the following public
consultation and submission to ACE will be a waste of time and
money. A report cannot be approved unless it meets those
requirements. (Technical Memorandum Section 4.5.1(a))
The Section 6(3) decision demands care because if the
Director decides that the report meets the requirements, he
should not revisit this decision at the approval stage.
- The Director's request for further information under
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
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
||"may....ask an applicant in writing to give him the
information he requires to decide whether to approve
In passing, we do not think that in requesting
information at this stage the Director is confined specifically
to matters raised by the public or ACE. Their comments may lead
the Director to require some indirectly related information for
Our belief is that provided the concerns about the feasibility
of the mitigation and the construction methods are overcome the
project may be shown to be environmentally acceptable.
We note that Counsel for the Director suggested during the
hearing that the appropriate course for KCRC to take is to amend
the Report after some further research to include necessary
assessments, results and conclusions based upon the evidence of
the new proposals given in the appeals. If done, this would
involve a further decision under 6(3) by the Director,
re-exhibition, re-submission to ACE and the remaining steps in the
These are matters entirely for the parties.
For the reasons given both appeals are dismissed.
We order nisi that the costs will follow the event, in other
words that the Director shall have the costs of both appeals.
If either party wishes to disturb this order for costs it must
indicate that it wishes to do so in writing to the Secretary to
the Appeal Board on or before 14 August 2001. The Chairman will
then make necessary directions.
Environmental Impact Assessment Appeal Board
Joseph Hun-wei Lee
Stanley Cho-tat Yip
Barry Mortimer GBS QC
30 July 2001
Mr. Keith Lindblom, QC, Mr. Ian Lloyd, QC with him, (instructed
by Denton Wilde Sapte) for the appellant
Mr. Benjamin Yu, SC, Mr. Anselmo Reyes SC with him, (instructed
by Lovells) for the respondent
NO. 2 of 2000
ENVIRONMENTAL IMPACT ASSESSMENT APPEAL BOARD
NO. 2 OF 2000
|KOWLOON-CANTON RAILWAY CORPORATION
|DIRECTOR OF ENVIRONMENTAL PROTECTION
Environmental Impact Assessment Appeal
10/F Citibank Tower