| 1. |
Introduction
The Environmental Impact Assessment (Appeal Board) Regulation was introduced on 29 September 1997 under section 32 of the Environmental Impact Assessment Ordinance and came into operation on 1 April 1998. The Regulation provides the regulation of appeals under Part VI of the Environmental Impact Assessment Ordinance and the practice and procedure of the Appeal
Board.
This booklet is intended to serve as a guide to the provision of the Regulation and the procedure for appeal. In case of doubt, the reader is advised to consult the Regulation. Copies of the Regulation are available for sale at the Government Publications Centre. The content of the Regulation is also accessible at the Environmental Impact Assessment Ordinance website at
(http://www.info.gov.hk/epd/eia)
Enquiries concerning the Regulation may be made to the
The Environmental Impact Assessment Ordinance Register Office
Environmental Protection Department
27/F, Southorn Centre
130, Hennessy Road
Wanchai, Hong Kong
Telephone No. 2835 1835
Fax No. 2147 0894
|
| 2. |
Definitions
Except where the context otherwise
requires, the terms in the Regulation are defined as follows :-
"appellant" means a person who lodges a notice of appeal in accordance
with section 3 of the Regulation;
"Appeal Board" means the appeal board
constituted under section 19 of the Ordinance.
"Chairman" means the Chairman of the
Appeal Board panel appointed under section 18(2)of the Ordinance
"Director" means the Director of Environmental
Protection.
"respondent" in relation to an appeal
for the purposes of section 17(1) of the Ordinance, means the Director;
and in relation to an appeal for the purposes of section 17(2) of
the Ordinance, means the Secretary.
|
| 3. |
Initiating an appeal by appellant
(Section 3 and 4 of Regulation; Section 17 of the Ordinance)
Under section 17 of the Ordinance,
an environmental permit holder or an applicant may appeal to the
Appeal Board if he feels aggrieved by a decision of the Director-
| (i) |
as to the content of an environmental
impact assessment study brief issued by the director; |
| (ii) |
not to issue an environmental
permit; |
| (iii) |
not to permit an applicant to
apply directly for an environmental permit; |
| (iv) |
as to the conditions imposed
under section 5(12) on a permission to apply directly for an
environmental permit; |
| (v) |
not to approve an environmental
impact assessment report; |
| (vi) |
to impose conditions on the issue
or variation of an environmental permit; |
| (vii) |
to vary or to cancel an environmental
permit; |
| (viii) |
to claim costs incidental to
remedying environmental damage under the Ordinance. |
A person whose project is specified as a designated project under section 4(4) of the Ordinance may also appeal to the Appeal Board against the decision to designate the
project.
Any appellant may initiate an appeal within 30 days of receipt of the notice of a decision by the Director by completing the form of notice of appeal (Form A or B as the case may be) and preparing a statement of particulars in accordance with section 4(1) of the Regulation. The form and the statements of particulars should be lodged with the Chairman via the Secretariat of the Environmental Impact Assessment Appeal Board at the following
address:
33/F, Revenue Tower
5 Gloucester Road
Wan Chai, Hong Kong
The form of the notice of appeal and the statement of particulars should also be sent to the respondent. Within 60 days of receipt of the notice of appeal, the respondent should provide to the appellant and the Chairman the statements of particulars in accordance with section 4(2) of the Regulation.
|
| 4. |
Further Particulars (Section 5 of
Regulation)
Within 21 days the appellant or the respondent can request the other party to provide further particulars. The Chairman may allow a longer period for the application. The particulars should be furnished within 21 days of receipt of the request.
|
| 5. |
Inspection of Documents (Section
6 of Regulation)
The appellant or respondent may request the other party to produce within 21 days any document relating to the appeal and to permit him or her to take copies of the document. Any party who fails to comply with the request will not be allowed to tender any such documents as evidence unless the Appeal Board is satisfied with his reason for failing to comply.
|
| 6. |
Failure to serve notice of appeal
or to furnish particulars (Section 14 of Regulation)
Failure to serve a notice of appeal, furnish a statement of particulars to or provide further particulars by the appellant may lead to the dismissal of the appeal by the Appeal Board.
|
| 7. |
Processing of an appeal by the Board
|
| 7.1 |
Fixing the date, time and place
of hearing (Section 7 of Regulation)
The Chairman will fix the date, time and place of hearing as soon as reasonably practicable after the expiry of 60 days period referred in section 4(2) of the Regulation or the serving of a notice by the respondent under that section, whichever is earlier. Not less than 28 days before the hearing date, the Chairman should notify the appellant and the respondent using the Form C of the date, time and place of the hearing.
|
| 7.2 |
Summons to witness (Section 8 of
Regulation, Section 19 of Ordinance)
Upon application in Form D by appellant or respondent, the Chairman may issue a witness summons in Form E to any person named in the application requiring that person to produce any document or to give evidence before the Appeal Board. A witness who fails to perform his required duty or does anything considered to be contempt of court before the Appeal Board may be subject to inquiry by the High Court and could be punishable if proved guilty of contempt of court. A witness before the Appeal Board has the same immunities and privileges as if he were a witness in civil proceedings before the High Court.
|
| 7.3 |
Procedure before the hearing (Section
9 of Regulation)
Not less than 7 days before the hearing the appellant and the respondent should lodge with the Chairman and the other party, a copy of witness statements, documents and any other thing to be given or produced in evidence at the hearing of the appeal.
|
| 7.4 |
Hearing of appeal (Section 10 to
12 of Regulation)
The hearing of an appeal should be held in public unless the Chairman of his own motion, or upon application by any party to the appeal, orders the exclusion of all or any persons from the whole or any part of the
hearing.
The appellant may be represented at the hearing by a barrister or solicitor, whilst the respondent may also be similarly represented to include legal officers. In the event that the appellant decides to abandon all or any of his grounds of appeal, he should lodge such a notice with the Chairman and a copy to the respondent.
|
| 7.5 |
Failure of appellant to attend hearing
(Section 13 of Regulation)
On the day of hearing, if the appellant fails to attend the hearing either in person or by a barrister or solicitor, the Board may postpone or adjourn the hearing, proceed to hear the appeal, or dismiss the
appeal.
If the Board has dismissed the appeal, the appellant may within 30 days, apply to the Appeal Board to review its order. A copy of such written notice should be sent to the respondent. If the Board is satisfied that the appellant's absence was due to sickness or any other reasonable cause, the Appeal Board may set aside the order for dismissal and proceed to hear the
appeal.
Where the Appeal Board has set aside the order for dismissal, in not less than 14 days before the hearing date, the Chairman will fix the date, time, and place for the hearing by notifying the appellant and respondent using Form C.
|
| 7.6 |
Records of Proceeding (Section 15
of Regulation)
The Chairman will take or cause to be taken a full minutes of matters relating to the proceedings as far as circumstances permits.
|
