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 environmental permit.
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
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
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;
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:
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 granted.
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:
"environmental impact", for a designated project, means-
whether the change or effect occurs within or outside the site of the project;
"mitigation", for a designated project-
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 Memorandum.
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 Technical Memorandum.
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:-
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
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 report exhibited."
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:
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
The DAFC suggested the following reason be given for rejecting
She also said
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:-
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 construction begins.
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:
In his detailed reasons the Director refers (inter-alia) to the
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 Valley.
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 function.
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 Director's approval.
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 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:
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 appeals.
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 dispute.
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.
5.4.5(g) states that:
With the above 2 perspectives in mind, we now discuss the evidence given on the ecological mitigation measures and the construction programmes.
(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 construction phase.
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 habitat creation.
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) begins.
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
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
The necessary circumstances are therefore that the amendments
will not affect:
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:-
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 account.
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 case.
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
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:
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 circumvent it.
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 discretion.
The Director's reasons for rejecting the report to which we have
already referred include:
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:
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 :
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 effectiveness.
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 of them.
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:-
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 sources.
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 study 'alternatives'.
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 provides:-
3 General Principle
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
Consequently he says that KCRC have complied with the principle
and the other guidance because:
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
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:-
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 process.
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 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 have outlined.
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 concerns.
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