Hong Kong Golf Club v. Director of Environmental Protection

HCAL 1258/2023

[2023] HKCFI 1946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1258 OF 2023

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D E C I S I O N

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A.  Introduction

1.In 2019, an environmental impact assessment (“EIA”) study brief (“Study Brief”) was issued under section 5(1)(a) of the Environmental Impact Assessment Ordinance Cap 499 (“EIAO”), relating to a proposed housing development (“Project”) on a 32 ha site, being land held by the Fanling Golf Club (“FGC”) and comprising part of the ‘Old Course’, operated by the Hong Kong Golf Club (“Club”). The project proponent is the Civil Engineering and Development Department (“CEDD”).

2.The statutory process continued up to and including May 2023, including generation of the Environmental Impact Assessment Report (“EIA Report”) finalised in May 2022 – though it was then subject to further queries and provision of information.

3.By letter dated 11 May 2023 (“Decision”), issued expressly pursuant to section 8(3) of the EIAO, the Director of Environmental Protection (“DEP”) approved the EIA Report, though subject to certain annexed conditions (“Conditions”). The Conditions include the requirement that the CEDD perform a review of the project (“CEDD Review”).

4.The Decision is the subject of the application for judicial review made by the Club in these proceedings, for which I gave leave on 25 July 2023.

5.The Club applied for an interim stay of the Decision, pending the determination of the substantive application for judicial review (“JR Application”), since fixed to be heard over three days commencing 9 May 2024 (though it may be that earlier dates will be found).

6.The DEP, as respondent to the proceedings, opposes the interim stay.

7.The interim stay application was heard by me on 17 August 2023. At the hearing, the Club was represented by Mr Benjamin Yu SC leading Mr Timothy Parker, and the DEP was represented by Mr Rimsky Yuen SC leading Mr Martin Ho. The attendance of the CEDD, as interested party remaining neutral, was excused.

8.During the hearing, Mr Yuen offered an undertaking which might he suggested might be accepted in lieu of the grant of an interim stay. However, the undertaking was not acceptable to Mr Yu. Nor, as it happens, would it have been acceptable to the Court. Therefore, the matter was fully argued.

9.At the end of the hearing, I reserved my decision. However, I continued until my decision the ‘interim interim’ stay granted by me at the same time as I granted leave to apply for judicial review.

10.This is my Decision.

B.  Applicable Legal Principles

11.Before turning to the evidence filed for this application, and to the competing submissions, it is helpful to identify the principles applicable to an application for the grant of interim relief or an interim stay in judicial review proceedings. Save as to one matter, where there is a dispute which I think will be immaterial for present purposes, the principles are well-settled and common ground between the parties.

12.The interim stay sought by the Club is directed at, and would have the effect of suspending the operation of the Decision, and temporarily to treat it as being of no effect. The intention is to preserve the status quo, and thereby aid the judicial review process and make it more effective by ensuring, as far as possible, that if a party is ultimately successful in his challenge he will not be denied the full benefit of his success: see, for example, R (H) v Ashworth Hospital Authority [2003] 1 WLR 127 at §§42 and 47.

13.Both Mr Yu and Mr Yuen made reference to the summary of the principles given by Chow J (as Chow JA then was) in Re Leung Chung Hang Sixtus [2018] 5 HKC 138 at §§12-14. They can be referred to in full. But, in essence, the well-known American Cyanamid principles are applicable, subject to necessary modifications to take account of the public law context.

14.The American Cyanamid principles require the Court to consider (1) whether there is a serious issue to be tried, (2) whether damages would be an adequate remedy, and (3) whether the balance of convenience favours the grant or refusal of the interim relief sought.

15.In the public law context, the relevance of damages as an alternative remedy will vary depending on the nature of the decision under challenge, though that does not mean that financial consequences are to be ignored. However, in cases involving the public interest, for example where a party is a public body performing public duties, the decision to grant or withhold interim injunctive relief will usually be made not on the basis of adequacy of damages but on the balance of convenience test.

16.Further, when assessing the balance of convenience in the public law context, the court takes a wider view than just the interests of the immediate parties to the application, and must take into account the public interest in the balancing exercise. The degree of importance that may be attached to the element of public interest would depend on the nature of the decision under challenge.

17.Ultimately, the test requires the court to take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense of granting an injunction to a party who fails to establish his right at the trial or substantive hearing (or would fail if there was a trial or substantive hearing), or alternatively in failing to grant an injunction to a party who succeeds (or who would succeed) at the trial or substantive hearing.

18.The possible area of difference between Mr Yu and Mr Yuen was as to the appropriate merits threshold to apply. I think it was common ground between them that, simply because I have granted leave to apply for judicial review, that does not of itself identify that the necessary merits threshold has been met for the purposes of the grant of interim relief. But, the difference is where the proper threshold lies.

19.The authorities identify that where an injunction is sought to restrain a government authority from enforcing what is prima facie the law of the land, the applicant normally has to show a strong prima facie case that the law is invalid (although, exceptionally, the applicant may suffer such serious and irreparable harm in the event of the law being enforced against him that it is just and convenient to restrain any enforcement action even though this higher threshold is not met). On the basis that this is not a case in that category, Mr Yu submits that the higher threshold does not apply.

20.On the other hand, Mr Yuen says that it does. He submits that the courts should normally refuse to grant a stay unless satisfied there is a strong, and not merely arguable, case that the impugned decision was unlawful. By reference to R (on the application of Hussain) v Secretary of State for Health & Social Care [2020] EWCH 1392 (Admin) at §9, and R (on the application of Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin) at §6, Mr Yuen submits that the Club must first show a real prospect that at the substantive hearing it will succeed in obtaining substantive relief, taking account of the fact that any decision to grant such relief would include consideration of the public interest. If the required real prospect exists, the next issue is whether or not the balance of convenience favours the grant of relief.

21.However, I note that in the Medical Justice case, the concept of ‘real prospect of succeeding at trial’ was equated with being ‘something more than fanciful prospect of success’. The concept was also thought to state the same test as ‘whether the action was not frivolous or vexatious’ and ‘whether there is a serious question to be tried’.

22.More helpful is the comment made in R (The Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA Civ 594 at §66, where Lindblom LJ recognised that there is support at first instance for the proposition that, in a public law claim, the court will generally be reluctant to grant interim relief in the absence of a ‘strong prima facie case’ to justify the granting of an interim injunction. But he went on to state that the relevant case law does not support that concept being deployed as a ‘threshold’ or ‘gateway’ test, but rather that the underlying strength of the substantive challenge is likely to be a significant factor in the balance of considerations when deciding for or against the granting of an injunction.

23.That seems to me to be the correct approach, and I shall respectfully adopt it. Whether properly reviewed by reference to a ‘threshold’ or ‘gateway’ test, the underlying strength of the substantive challenge is likely to be a significant factor in the balance of considerations when deciding for or against the granting of an injunction or a stay.

24.On the basis that part of Mr Yuen’s argument turned on the suggestion that these proceedings are ‘academic’, it may be helpful to identify what an academic claim is. Mr Yuen pointed to authority that emphasised that an academic claim is a claim where there was once, but is no longer, a live issue between the parties so that the claimant no longer has any practical need of a final remedy. Mr Yuen emphasised the aspect of the practical need of a final remedy: see, for example Auburn et al on ‘Judicial Review, Principles and Procedure’ at §32.44.

25.Similarly, a court will unlikely grant a final remedy if it concludes that, even though a decision or action of a public body is unlawful, the same decision or action would have been taken even if the public body had acted lawfully, or that no one was actually prejudiced by the relevant unlawfulness: see, for example Auburn at §32.51.

26.Nevertheless, I would also point out that the last mentioned paragraph goes on to state that in a case where such a ‘no difference’ point is made out, if the final remedy is granted, it is likely to be limited to a declaration. In other words, there may still be value in exercising the discretion in favour of granting some form of relief, though perhaps only declaratory relief.

27.I also bear in mind the settled test identified in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at §20, as to the circumstances when a court will realistically or likely properly deal with questions which have become hypothetical or academic.

28.In so far as Mr Yuen sought to place reliance on the decision in R (on the application of Edwards) v Environment Agency (Cemex UK Cement Ltd, intervening) [2009] 1 All ER 57 at §§62-65, I think that reliance was misplaced. In that case, it was held to be correct to exercise the discretion against quashing the permit (given in that case) because whereas previously there had been a need to rely on projections, the passage of time meant that it was since known what had actually happened. The pointlessness in quashing the permit was because the public would then be consulted on out-of-date data based on predictions, when up-to-date data based on actualities was available. That is far from the circumstances of the present case.

29.I would also point out that many of the authorities relied upon by Mr Yuen seem to be to focus on whether a remedy is appropriate at the time of an exercise of discretion following a Court’s accepting that proper grounds for judicial review have been established. Ordinarily, the time for considering the exercise of that discretion will be when the potential exercise of it has been triggered. In that regard, I respectfully suggest that Mr Yuen’s emphasis on the “practical need” of remedy has been overstated – at least for the context of this interim stay application.

C.  Further Background

30.It is unnecessary for present purposes to explore much more of the factual background than was traversed in the Introduction above. The following further points will suffice.

C.1  EIA Process

31.In September 2017, a Task Force on Land Supply was established to consider options for addressing Hong Kong’s land supply challenges. It reported in December 2018, including a suggestion that the Government should accord priority to studying and resuming the 32 ha of land of the FGC to the east of Fan Kam Road (“Land”). The recommendations of the Task Force were accepted in February 2019, and priority was to be accorded to studying and resuming the Land.

32.On 29 May 2019, CEDD as project proponent applied to the DEP for issuance of an EIA study brief called ‘Technical Study on Partial Development of Fanling Golf Course Site – Feasibility Study’. As the name ought to suggest, feasibility was not being assumed but was being assessed. After the CEDD had submitted a ‘Project Profile’, exhibited for public comment under the EIAO, an EIA study brief (i.e. the Study Brief) was then issued on 9 July 2019 under section 5(1)(a) of the EIAO.

33.In March 2020, CEDD’s consultant made a presentation. The consultant had conducted initial appraisal of the site constraints, and tabled three development options with different public/private housing development mix, plot ratios etc. For this purpose, the Land was divided into four Sub-Areas. Options 1 and 2 involved housing development at Sub-Areas 1 and 3, whereas Option 3 involved housing development at Sub-Areas 1, 2 and 3. After discussion, it was agreed that it was more viable to focus on a refined version of Option 2, namely to have public housing development at Sub-Area 1 only.

34.In January 2021, a briefing for the Secretary for Development put forward the proposal that Sub-Area 1 should be used for public housing, whereas Sub-Areas 2 to 4 should be preserved as a public park with minimal development. Later in 2021 it was confirmed that housing development should not be recommended in those three sub-areas.

35.The EIA Report was submitted by CEDD to the DEP in May 2022, and also made available for public inspection. The EIA Report covered the entire 32 ha.

36.From the above, I think it is clear that the original intention was for potential residential development across the entirety of the 32 ha. That is, the Land was to be resumed for the purposes of developing housing on all of it. Subsequently, the potential area of development was restricted to the 9.5 ha, primarily because the view was taken that such more restricted development would avoid areas of high ecological values in Sub-Areas 2 to 4, whereas Sub-Area 1 was – correctly or not – regarded as being of relatively lower ecological value.

37.Mr Yuen has sought to emphasise that the option chosen from those identified was one which would not involve any development in Sub-Area 3, which forms a strong ecological linkage and a complex mosaic together with Sub-Areas 2 and 4. Hence, it seems to me that the whole thrust of decision-making envisages the least impact to the environment.

38.Against the background and context, I agree that it is at least strongly arguably implicit that if the technical studies concluded and identified that the Project could not viably be built, even if restricted to Sub-Area 1, there would be no reason to cease playing golf on the 32 ha – and indeed, perhaps no need even to have taken back that land – as that might be thought contrary to the public interest in maintaining the cultural heritage of the Old Course, and the benefits to Hong Kong of an increasing number of international golf tournaments hosted at FGC.

39.This is why I think Mr Yuen was correct to accept that one end of the extremes of possible outcomes is that the 32 ha could revert to being used as a golf course. But it is fair also to note Mr Yuen’s submission that, if the EIA Report and the Decision are quashed, the Government can and will still find a way eventually to develop the land for housing. But, that submission aside, if no part of the 32 ha were able to be subject to any viable residential development, that would suggest that the original purpose of resuming it would have failed, as it was not originally resumed simply for the Land or some part of it to be maintained merely as some form of static or “conservation and recreation” park.

40.Part of the EIA process involved lengthy consideration of the EIA Report by the Advisory Council on the Environment (“ACE”). The ACE requested and was provided with further information as part of its considerations. It did so in part because a number of members of the ACE were clearly not satisfied with the EIA Report.

41.As already stated, the EIA Report was approved by the DEP on 11 May 2023 by the Decision, albeit made subject to the Conditions.

C.2  Legislative Amendments

42.Flowing from the Chief Executive’s Policy Address 2021, legislative amendments were made to Schedule 3 to the EIAO, intended to streamline the workflow and existing statutory and administrative procedures relating to housing development, including the EIA process under the EIAO.

43.Prior to the legislative amendments, Schedule 3 to the EIAO encapsulated “Engineering feasibility study of urban development projects with a study area covering more than 20 ha or involving a total population of more than 100,000”.

44.By the legislative amendment, which took effect on 30 June 2023, Schedule 3 was revised to cover only “An urban development or redevelopment project covering an area of more than 50 ha”.

45.I think many people would not have a real sense of how big an area of land 50 ha is. To help people envisage that area, it may be helpful to refer to Victoria Park, Hong Kong’s largest public park, which has an area of 19 ha. Hence, an area of urban development or development project covering around 2½ times the area of Victoria Park – also equivalent to about 46 standard football pitches – now falls outside the list of designated projects which requires an environmental impact assessment under the EIAO.

C.3  Town Planning Board

46.On 24 July 2023, the Town Planning Board (“TPB”) agreed to rezone the Project site from “R(A)” to “U”, partially to meet some representations in respect of the draft area Outline Zoning Plan (“OZP”).

47.It is tolerably clear that both the Government and the TPB are proceeding on the basis that there is no potential problem with the EIA Report and its approval by the Decision. For example, the DEP’s own evidence says in terms that the current TPB process is premised on the EIA Report.

C.4  Land Reversion

48.The short-term tenants in respect of the Land (in favour of the Club) will expire on 31 August 2023, and the Land will revert to the Government on 1 September 2023.

49.It has been announced that the Land will thereafter be managed by the Leisure and Cultural Services Department (“LCSD”), of which about 22 ha will be used for conservation and passive recreational use for public enjoyment. The Government has made clear that it has no intention of using the Land as a public golf course.

50.The LCSD is currently discussing handover issues with the Club, and is willing to provide assistance to the Club in its organisation of international golf tournaments scheduled for October and November 2023 – a matter for which the Club has expressed its thanks.

D.  Overview of Submissions

51.The Club submits that it is just and convenient that the Court grant the interim stay of the Decision, so as to ‘hold the ring’ while the substantive JR Application is determined. This is on the broad basis that the operation of the Decision in the interim would pose a real risk of irreparable harm:

(1)  Absent a stay, there is serious risk of a change in the environmental status quo of the FGC site – both in terms of its cultural heritage value and its ecology. (Here, it is worth noting that the relevant status quo identified is the environmental status quo.)

(2)  A stay will also serve to avert the risk of other decision-makers – in particular the TPB – discharging their functions in reliance on the EIA Report and its approval by the Decision (which would have highly undesirable knock-on consequences if the Decision were later quashed).

52.The Club further submits that, conversely – and contrary to what has been claimed by the DEP – the grant of the stay would have no adverse impact whatsoever on the progress of the Project (assuming it is ultimately considered viable and desirable). This is because the evidence in fact shows that the Government intends only to pursue planning work in relation to the project for now, with no on-site work contemplated before the end of 2024. The Club submits that such planning work can continue, notwithstanding any stay.

53.The DEP submits that the stay should be refused for the following reasons:

(1)  The entire JR Application is unmeritorious, in that it fails to cross the necessary merits threshold, is wholly academic and/or of no utility and/or of no useful purpose:

(a)  The currently proposed Project concerns only 9.5 ha out of the 32 ha of the Land in question, and as a matter of law that does not require undertaking any EIA under the EIAO at all. Hence, neither the EIA Report nor the Decision is in law a prerequisite to the Government’s intended implementation of the Project.

(b)  Whilst the original feasibility study put forward by CEDD concerned an area of 32 ha, which under the now repealed version of Schedule 3 to the EIAO required conducting an EIA, later decision was made to confine the Project to only 9.5 ha.

(c)  That was throughout a matter of public knowledge, as recorded in the meeting minutes of the ACE, where it was noted that CEDD decided to continue with the EIA process and submit the EIA Report only “as a gesture of goodwill”.

(d)  Pursuant to legislative amendment to Schedule 3 to the EIAO on 30 June 2023 – to cover only urban development projects covering an area of more than 50 ha of land – under the prevailing law, no EIA study under the EIAO would be required whether for the 32 ha or 9.5 ha areas of land.

(e)  Hence, it would be pointless for the Court to examine whether the EIA Report is technically compliant when (i) as a matter of law no EIA is required for the Project, (ii) as a matter of law, the Government can simply restart the entire development process and continue with the Project without going through the EIA procedure under the EIAO, and (iii) even if the Decision is to be quashed, there is nothing to remit for re-consideration, as under the prevailing laws even the original feasibility study would not require the undertaking of an EIA.

(2)  The JR Application also serves no useful purpose and/or lacks utility and/or is otherwise futile, because:

(a)  The academic nature of it is highly relevant: see above.

(b)  The Applicant is most concerned with whether the Old Course can be maintained as a golf course.

(c)  But the present JR Application has no correlation with whether the Land can continue to be used as a golf course. The Land will revert to the Government on 1 September 2023, upon expiration of the short-term tenancy, and will thereafter be managed by the LCSD, where the Government has stated in unequivocal terms that it has no plan to operate a golf course on the Land.

(d)  The Government’s decision as to the use to which the Land is put is a decision not amenable to judicial review.

(e)  So that, even if successful the JR Application would not prevent the Land from being reverted to the Government for usage other than the operation of the golf course.

(3)  The balance of convenience is firmly against the grant of any interim stay, because:

(a)  There will be no irreversible harm of prejudice, when the earliest which any form of construction works can commence will be by the end of 2025. The Government will also not enter into any construction contracts until the CEDD Review is completed, expected to be no earlier than the end of 2024.

(b)  On the other hand, an interim stay would create much uncertainty in the various steps to be taken, including (i) in the current TBP process, and (ii) the processing of the CEDD Review to address the Conditions imposed by the Decision.

(c)  Public interest is of paramount importance, where it cannot be gainsaid that Hong Kong is facing a serious housing problem, which in turn led to a host of social and incidental issues.

54.From the above, it is fair to say that in addressing the application, Mr Yuen has not sought to grapple with the merits of the individual complaints underlying the JR Application itself, but has instead – as he said – focused on remedies.

E.  “As a Gesture of Goodwill”

55.In light of some of the other aspects of the argument, I think it is helpful to deal with this point first. For present purposes, it probably turns out to be a red herring.

56.From the above overview, it can be seen that Mr Yuen on behalf of the DEP opposes the interim stay in part on the basis that the EIA process was continued and the EIA Report was submitted only “as a gesture of goodwill”, because the Project (as it became) did not and does not as a matter of law require the undertaking of any EIA under the EIAO.

57.At first blush reading of the written submissions – see §53(1) above – the DEP’s suggestion that the entire EIA process was continued “as a gesture of goodwill” seemed to me to give rise to one of two inferences:

(1)  the process or its continuation was simply a charade, perhaps as some form of window-dressing to disguise a decision which had already been made or was bound to be made; or

(2)  the process and its continuation was genuinely performed, presumably on the basis that it would be genuinely properly performed.

58.On my assumption that the Government did not engage in this lengthy process simply as a charade, then it must have been the case that the process and its continuation was intended to have been genuinely and properly performed. Now by its application for judicial review, the Club raises the argument – which, by my grant of leave, I have already decided is at least a reasonable argument with real prospects of success – that the EIA has not been properly performed, as a result of various individual and/or cumulative public law errors.

59.Fortunately, it seems my above assumption was correct. This is because, at the beginning of his oral submissions, Mr Yuen sought to emphasise that the Government has throughout been handling this matter in good faith, with the need for environmental protection well in mind.

60.I have also noted, and taken into account for present purposes, that the Government has a Heritage Conservation Policy, which has an introductory statement, recording that on 25 September 2007 the Executive Counsel advised and the Chief Executive ordered, amongst other things, as follows:

[The] following policy statement should be adopted to guide our heritage conservation work –

“To protect, conserve and revitalise as appropriate historical and heritage sites and buildings through relevant and sustainable approaches for the benefit and enjoyment of present and future generations. In implementing this policy, due regard should be given to development needs in the public interest, respect for private property rights, budgetary considerations, cross-sector collaboration and active engagement of stakeholders and the general public”.

61.I have some serious doubt as to whether the reference to “a gesture of goodwill” made at, and recorded in §77 of the notes for, the ACE Meeting in August 2022 really supports the submission that was apparently being made upon it. But, as it happens, in an updated affirmation filed on behalf of the DEP shortly before the hearing, the following clarification was provided:

(1)  The Technical Study put forward by CEDD concerned all 32 ha of the Land.

(2)  As such, it was a designated project which required the conduct of an EIA report under the EIAO.

(3)  Therefore, the EIA Report was considered and approved under the EIAO.

(4)  The “goodwill” comment at the ACE Meeting merely referred to the fact that the CEDD could potentially opt to revise the scope of the feasibility study to cover only the 9.5 ha area.

(5)  As the Study Brief for the Project and the EIA process had already been made known to the public, and in view of the concerns of some quarters of the community about the ecological and other environmental impact of it and given its controversy, CEDD decided to complete the process and submit the EIA Report to the DEP under the EIAO, which entails well established and recognised standards and opportunities for public consultation and consultation with the ACE, to substantiate that there would not be any insurmountable environmental problem.

62.This is consistent with the introductory submissions made by Mr Yuen. In the light of that evidence, it seems to me that for present purposes I can proceed on the basis that the EIA began, continued and was concluded under the EIAO. It occurred in that way because it was recognised that the process should continue and be concluded under the EIAO, with its established and recognised standards and opportunities for public consultation and consultation with the ACE, so that there would not be any insurmountable environmental problem.

63.It would be contrary to the Government’s stated position to proceed on the basis that the EIA was made outside any statutory process. Indeed, the Decision itself states that it was made pursuant to the EIAO.

64.There would also be a significant logical mismatch if the DEP were to argue both (1) there is no need to follow any statutory process whatsoever, and (2) an interim stay should not be granted because it would prejudicially delay the CEDD Review required as a Condition of the Decision which was made under the statute.

65.This is why I think that the “goodwill” point is really a red herring. It is in the end a forensic point of little merit – and, incidentally, poor and unattractive as to its presentation. Rather than saying something to the effect of “well, we don’t need to follow the statute anyway, so you can’t challenge us or it is pointless to do so”, it might be thought that it would have been far better to have said something like “we take environmental protection seriously, so we have decided to follow through on the statutory process which requires adherence to the high standards of environmental protection on which we insist, and we will seek to demonstrate that the assessment in this case has met those standards”.

66.There is also a further consequence to this point, which is that if the Decision were to be quashed, and the matter were to be remitted for re-consideration, that re-consideration would at least strongly arguably have to take place within the statutory EIA process so far conducted under the EIAO – but which, on this hypothesis, would have been interrupted by a decision found to be flawed as a matter of public law.

67.Of course, I note Mr Yuen’s submission that it would be open to the Government to take some future different course of action as would not require a statutory EIA process (not least as a result of the amendment to Schedule 3). However, in so far as it is necessary, I would also express the view that – where the Government has been keen to burnish its environmental protection credentials, and to stress that it has chosen to go through the statutory process even when (it suggests) it need not have done so – it seems to me to be at least unlikely that the Government would do a U-turn, and suddenly decide that it would commence the process all over again in a way which seeks to avoid any environmental impact assessment – not least where this is on the hypothesis that the DEP would have been told by this Court that there were public law flaws in the process leading to the assessment so far, so that there might be significant adverse environmental impact not yet properly identified. Of course, the Government might in due course choose to make that U-turn, but I do not think that I should proceed for present purposes on that basis.

68.At this point I can also perhaps note two further matters arising from the first part of Mr Yuen’s oral submissions:

(1)  First, there was an expression of understanding and full appreciation of the Club’s stance, as well as the recognition of the need to maintain Hong Kong as an international city and sporting event location.

(2)  Secondly, Mr Yuen rightly drew attention to the complicated balancing exercise in which the Government has to engage, sometimes dealing with potentially competing policy considerations – here the needs for housing development, environmental protection and the maintenance of Hong Kong as an international sporting location.

69.As to the first point, I think both sides to these proceedings have entirely properly recognised and appreciated the stance of the other. If nothing else, this makes for civilised litigation. As to the second point, I expressly acknowledge that matters of policy are of course ultimately for the Executive, and not for the Courts, to decide (subject only to the supervisory jurisdiction engaged through judicial review).

F.  Merits Threshold

F.1  Introduction

70.Mr Yu makes submissions as to the merits threshold in three main areas, and a few minor areas, as canvassed below. Though, as already mentioned, Mr Yuen does not seek directly to address these particular aspects of complaint made in the Form 86, it is necessary for me to make some assessment of the merits.

71.I do so for present purposes only, and no views expressed for present purposes should be taken to prejudice any future consideration, by reference to the totality of evidential materials and full submissions to be made at the substantive hearing. I expressly acknowledge Mr Yuen’s point that the evidence so far filed by the DEP and CEDD has focused on opposing the application for an interim stay, and that there may be significant further evidence filed to address the overall merits of the substantive application for judicial review. As Mr Yuen submits, the Court has at present only one side’s evidential view – though there is also force in Mr Yu’s submission that that is the result of a decision made by the DEP and CEDD as to what evidence they wish to rely on for present purposes.

F.2  Cultural Heritage

72.The application for Study Brief was issued under section 5 of the EIAO, seeking the preparation of an EIA report. As already stated, there is no dispute that the Study Brief covered the 32 ha of Land.

73.Amongst other things, the Study Brief set out the various technical requirements to be followed by CEDD including for evaluating and assessing the impact of cultural heritage, as well as landscape and visual impacts.

74.The criteria for evaluating impact on sites of cultural heritage – set out at Annex 10 – was expressly to include:

(a) The general presumption in favour of the protection and conservation of all sites of cultural heritage because they provide an essential, finite and irreplaceable link between the past and the future and are points of reference and identity for culture and tradition.

(b) Adverse impacts on sites of cultural heritage shall be kept to the absolute minimum.

75.Further, Annex 19 identified that, whilst there is no quantitative standard in deciding the relative importance of sites of cultural heritage, in general sites of unique archaeological, historical or architectural value will be considered as highly significant. Annex 19 also made clear that:

Total destruction must be taken as the very last resort in all cases, and shall only be recommended with a meticulous and careful analysis balancing the interest of preserving the archaeological, historical, architectural and other cultural values as against that of the community as a whole.

76.In the EIA Report, certain classifications of impact were described as being adopted in the report. They included:

Unacceptable Impact: If the adverse effects are considered to be too excessive and are unable to mitigate practically; and

Undetermined Impact: If the significant adverse effects are likely, but the extent to which they may occur or may be mitigated cannot be determined from the study. Further detailed study will be required for the specific effects in question.

77.The EIA Report noted that there were no historical villages within the project development area, but that the FGC was itself first constructed in the early 20^th century, and so was over 100 years old and should be considered a heritage place in itself. It further recognised that the Old Course is the oldest surviving golf course in Hong Kong, and its heritage value is to be appraised and grading, if appropriate, confirmed by the AAB. The EIA Report specifically noted the following, at §12.4.2.7 (references omitted):

[FGC] was originally designed as an 18-hole course, this early course was later named Old Course and its holes 1 to 3 cover the main area of interest in this assessment. It was laid out during – what is known as – the Golden Age of golf course development, i.e. the early decades of the 20^th century. Golf courses began to be designed following a coherent process that involved a pre-build study of the existing site terrain, design of the course on the drawing board, and on-site inspection by the architect during construction. It is not clear in how much this was followed at the Old Course, but course designer Paul Jansen personal communication on the Old Course identifies the original and current 18-hole landscape as characterising early 20^th-century golf course design. He states that the ‘land dictates the play and gives rise to a layout that is unique in style and character and different from anything else in Hong Kong and indeed China’. The Old Course is the only 18-hole golfing of such design in Hong Kong.

78.The EIA Report also noted that the Old Course: has a design which still includes elements no longer used in contemporary golf course design, including blind shots over fairways; is deemed one of the finest and most scenic golf courses in Asia; and has been the site for numerous professional championship events.

79.In the assessment of potential impacts as regards Holes 1 to 3 in Sub-Area 1 and Holes 4 to 9 within Sub-Areas 2 to 4, the following was noted (bold and italics in original):

Holes 1 to 3  The development may directly and adversely impact holes 1 to 3 which is an integral part of the Old Course’s 18-hole playing area. It may thus also directly affect the rest of Old Course.

The Old Course has been upgraded and modified over time but the use of topography which characterises early golf course design (such as at holes 1, 2, 10 and 13) and the original play philosophy remains unaffected.

The golf courses associated with international recognised tournaments and golf legends. If the golf course is recognised as a heritage site and development goes ahead within the Old Course, direct impacts are expected.

Undetermined impact

Holes 4 to 9  The change of use may directly affect the Old Course and playing of golf. The golf courses associated with international recognised tournaments and golf legends. If the golf course is recognised as a heritage site and development goes ahead within the Old Course, direct impacts are expected.

Undetermined impact

80.In the Form 86, the Club criticises the conclusion that there is an “undetermined impact” as having patently failed to comply with the Study Brief and the Technical Memorandum, so being wrong in law, and that it was in any event manifestly irrational for the DEP to have accepted that conclusion.

81.For present purposes, it suffices for me to say that there seem to be strong merits in the criticism. The Old Course as a whole is correctly recognised to be of important cultural heritage. It is at least a strong argument to say that building residential property on part of the course will not have an “undetermined impact”, as the impact is readily determined. The impact is that the integrity of the Old Course as a whole would be lost. That might well properly require an assessment of there being an “unacceptable impact” in accordance with the definitions set out above.

82.This argument seems to me to be rather more than just reasonably arguable.

F.3  Old and Valuable Trees

83.The Study Brief required CEDD to review relevant plans and conduct surveys/studies to identify existing sensitive landscape characters and landscape resources, including but not limited to any Old and Valuable Tree (“OVT”), tree of large size, and protected/rare plant speeches such as Aquilaria sinensis.

84.The Government has a policy relating to the registration and preservation of OVTs (“OVT Policy”). The OVT Policy states, amongst other things, the following:

6. It is Government policy to provide priority protection to the OVTs in the Register. Trees must satisfy one or more of the following criteria for registration as OVTs –

(a)  Tree of large size (e.g. tree trunk diameter ≥ 1 m, measured 1.3 m above ground level);

(b)  Tree of precious or rare species;

(c)  Tree of particularly old age (e.g. ≥ 100 years old);

(d)  Tree of cultural, historical or memorable significant; or

(e)  Tree of outstanding form.

…

11. For public works projects requiring tree surveys to be carried out, the responsible project departments should assist to identify potentially registrable trees in the surveys and submit the relevant details to GLAMS for assessment using the nomination form at Appendix C.

12. Similarly, LandsD will arrange tree surveys for selected sites prior to their land sales, in order to identify any existing valuable trees within the sites, including potentially registrable trees, and arrange to submit relevant details to GLTMS using the nomination form at Appendix C. …

…

15. It is Government policy to provide priority protection to the OVTs in the Register. …

…

21. Except under the situation as stated in paragraph 20 above [i.e. in the event that an OVT has died], removal of OVTs is prohibited. If retaining an OVT at its existing location is not practicable, transplanting of the tree should be considered first and the transplanting and compensatory planting proposal shall be prepared and processed according to the control procedures set out in DEVB TC(W) No. 4/2020 or its latest version. If removal of an OVT is unavoidable, the responsible tree maintenance department concerned should demonstrate that removal of the tree is the best available and only practicable option.

85.It is correct that only trees on unleased government land within built-up areas or tourist attraction spots in village areas are eligible for inclusion in the Register. But, as Mr Yu submits, the 32 ha of Land were envisaged to be taken back into (unleased) government ownership, and the identification of OVTs expressly extends to the need to identify potentially registrable trees.

86.The EIA Report did include a tree survey, which at §11.6.3.5 noted that amongst the 1,255 trees recorded in Sub-Area 1, 267 are proposed to be retained, while 988 existing trees are estimated to be affected by the proposed public housing development works. Of those 988 trees, 954 are proposed to be removed and 34 proposed to be transplanted.

87.But, in the EIA Report at §11.6.3.11, it was recorded that no registered OVTs were recorded during the tree survey. That is not surprising where, at the time of the survey, the land surveyed was not unleashed government land. But where the whole purpose of the EIA Report was in relation to potential development of land to be taken back into government ownership, it is at least strongly arguable that the EIA Report simply failed to take into account something which it ought to have done. To put it another way, and by reference to the affidavit of a Landscape Architect who has filed expert evidence on behalf of the Club, it seems to me to be strongly arguable that there was a failure to advise the DEP of the existence of about 80 potentially registrable OVTs, in consequence of which there was no OVT review process as was otherwise required by the OVT Policy.

88.I also note – as seems particularly relevant for present purposes – that by reference to a plan (found at Annex 3 to the Form 86), it can be seen that when the locations of potentially registrable OVTs are considered in conjunction with Condition (a) in the Decision (which requires a revised layout plan aiming to protect the woodland of 0.39 ha in the centre of Sub-Area 1), it appears to identify that any large-scale development in Sub-Area 1 becomes at least extremely difficult, if not impossible.

89.This is because the proposed locations of at least 8 of 11 intended housing blocks, as well as the proposed transport interchange and special needs school, apparently partly or completely overlap with locations where potentially registrable OVTs now stand.

90.I also note that – as set out in the Form 86 at §136 – the Club expressly identified the presence of potentially registrable OVTs when it made its statutory submission in the EIA process. But neither CEDD nor the DEP has yet responded to the point, so that it remains unknown whether the DEP considered the point at all, or whether he rejected it for some reason known only to him.

F.4  Chinese Swamp Cyprus

91.The Club has filed expert opinion evidence – which I acknowledge is yet to be answered by the DEP or CEDD – identifying that:

(1)  Any changes in the maintenance regime of the golf course will have an impact on the balance between overland and groundwater flow.

(2)  Without monitoring data, for which there is none to date, it is not possible to quantify these impacts and therefore apply an effective hydrological management regime.

(3)  The potential consequences range from increased run-off, transportation of debris and vegetation, blockage of existing drainage inlets and conduits and increased incidence of downstream flooding events.

(4)  At the other extreme, waterlogging of the ground or drought has the potential adversely to impact flora and fauna.

(5)  A collection of Chinese Swamp Cyprus (“CSC”) are located at the Swampy Woodland near Hole 7 of the Old Course.

(6)  At least 29 of them have been independently estimated to be over 100 years old, and the oldest is considered to be 214 years old.

(7)  The variation in size and estimated age indicate that these CSC were not planted.

(8)  The CSC is a tree species that requires a specialised habitat and which is highly sensitive to hydrological change.

(9)  The CSC is also listed as ‘critically endangered’ by the International Union for the Conservation of Nature.

(10)  The CSC population in the Old Course comprises 15% of the entire global population of the species, and is possibly the only population that is considered to be reproducing viable seedlings in the wild.

(11)  This is a rare case in which the “precautionary principle” is engaged, meaning that even the smallest risk of (or uncertainty as to) irreversible catastrophic impact – such as on a critically endangered species such as the CSC – requires nothing to be done to change the status quo unless such changes have been carefully studied in advance and will certainly cause no adverse impact.

92.The EIA Report does not appear to contain any impact analysis as to the consequences for the CSC of ceasing the maintenance of the Old Course as it now stands, and in particular the ramifications of ceasing or otherwise changing the existing watering arrangements – where the impact may be even more so, given the absence of any independent water source for the site.

93.Without needing to go into any further detail, it seems to me that there is a reasonably strong argument that the EIA Report has material shortcomings in this regard, and may be incompatible with the requirements of the Study Brief and the Technical Memorandum.

F.5  Other Matters

94.Mr Yu also made brief submissions in relation to concerns about the bat and moth populations, as well as what he suggested as a failure to have taken into account the changed circumstances from the announcement of the Northern Metropolis.

95.I mean no disrespect to any of the bats or moths, or to Mr Yu’s submissions, if I express that I do not think I need for present purposes to take those matters into account. Nor is it necessary to deal in particular with Ground 4 as raised by the Form 86, save to say that I think it is of some apparent merit (comfortably sufficient to meet the threshold for the grant of leave, which I have already given).

F.6  Conclusion on Merits Threshold

96.Overall, I am satisfied that if the necessary ‘threshold’ or ‘gateway’ hurdle were to be for the Club to establish a strong prima facie case, it has done so. However, in accordance with my view of the correct approach is a matter of legal principle, I simply take my current and provisional assessment of the merits of the challenge raised by the Form 86 as a substantial factor weighing in the balance of whether or not to grant an interim stay.

G.  Whether Application is Academic

97.I have set out above the principles relating to when an application can properly be regarded as academic, and the circumstances in which a Court may nevertheless decide to deal with an application which is regarded as academic.

98.However, I agree with Mr Yu that it is not possible to re-characterise the Project as being one involving only 9.5 ha, so that it does not come within Schedule 3 of the EIAO. As I have dealt with above, it is clear that the EIA Report proceeded on the basis that the Project does fall within, and should be treated as falling within, Schedule 3 to the EIAO. That is why the Decision itself identifies that it was made pursuant to section 8 (3) of the EIAO. It is also at least strongly arguable that the whole of the 32 ha in question remains part of a single project.

99.I also accept that it is at least strongly arguable that the amendments to the EIAO would not have retroactive/retrospective effect in this context. The Decision concerns an application for approval dated 22 April 2022, and the Decision itself was made on 11 May 2023 – both in advance of the amendment to Schedule 3.

100.Further, the focus placed by Mr Yuen on whether the judicial review application would determine, directly or otherwise, whether the Land would continue to be used as a golf course arguably misses the point. It is correct that the termination of the short term tenancy, and the resumption of Government ownership of the 32 ha, is not amenable to judicial review. It is also correct that the Government is prima facie entitled to use the land for whatever purpose it sees fit. But, as I have already pointed out, the practical reality is that the Land was taken back for residential development purposes (originally intended or potentially to be on all of it). If it were to turn out that development of the land as intended would not be viable, there is no reason to think that the Government would blindly wish to interfere with a cultural heritage site and leave the land as a static park. There is no evidence at present that the Government has considered uses of the site for purposes other than golf or for a housing development (with any area not developed being left ‘static’). I recognise that the Government has stated in unequivocal terms that it has no plan to operate a golf course on the Land, but that is simply because its primary plan is to build residential accommodation on the Land, and it likely has no relevant experience or expertise to be able to operate a golf course. Hence, I accept Mr Yu’s submission that the outcome of the present challenge and any reconsideration that may result would be a highly material step in connection with the future use of the site.

101.I have already stated my judicial reluctance to assume that the Government would restart the entire development process and continue with the Project without going through the EIA procedure under the EIAO, when it has so far emphasised that it wishes to go through that process in part specifically in order to meet public concerns. I acknowledge that Mr Yuen has identified that the Government has not yet committed to a future course of conduct were the EIA Report and Decision to be quashed. Hence, it seems to me that it is at least strongly arguable that (on the hypothesis that the EIA performed hitherto has been found to be flawed as a matter of public law) it would not be academic to require the DEP to re-consider the matter with the benefit of any guidance given in the judgment.

102.In short, I agree that the challenge is not likely academic, at least not to any extent as points strongly against the grant of an interim stay.

H.  Irreparable Harm or Adequacy of Damages

103.I agree that no real question of damages (monetary damages) arises in this case. The real question then relates to potential irreparable harm.

104.As I see it, no irreparable harm would be caused by the grant of an interim stay, precisely because it is said that no ground investigation works or actual construction will commence until late 2024 (when the current substantive JR Application is to be heard at latest in May 2023).

105.I agree with Mr Yu that it would be wrong to proceed on any basis that it is ultimately inevitable that a housing development will be built on the 9.5 ha (or any part of it). If the Decision is quashed, and the matter remitted for a further EIA in light of the issues dealt with in the judgment, a new EIA Report may conclude that housing development on the site is either not acceptable at all, or simply unviable. Further, and I think obviously, the statutory process must have proceeded on the basis that the proposed development was not a fait accompli, so that it would be wrong now to proceed on the basis that it is a fait accompli.

106.I also accept the basic proposition that if, as the Government has agreed, the Old Course might yet continue to be used in the coming months for international golf competitions, it is important that the course is maintained in playable condition. That brings into play the myriad of features, including water supply, canvassed in the Club’s expert evidence (and which will need to be carefully considered on the substantive JR Application in due course). That is not to say that an interim stay would dictate to Government how it should go about managing the 32 ha, after it has taken back position of them on 1 September 2023. But, the grant of an interim stay would seek to ensure that the status quo is preserved so that at least one potential decision of the Court in future would not be rendered nugatory by action taken (or not taken) in the meantime.

I.  Balance of Convenience

107.Mr Yuen submits that an interim stay, once granted, would create much uncertainty in the various steps to be taken by (amongst other bodies) the TPB, due to uncertainties arising from the status of the EIA Report and its findings. However, that seems to me to be a reason pointing strongly in favour of the grant of an interim stay. It is precisely the uncertainties arising from the status of the EIA Report which identify that those persons who might rely upon it should know that the EIA Report is under challenge, and might not survive that challenge.

108.Of course, the matters dealt with by the TPB fall under a separate statutory regime, independent of the parties to these proceedings. But, so far, it is clear that the TPB is proceeding in reliance upon the Decision as being valid: see, for example, the Minutes of the meeting of the TPB held on 24 July 2023, which specifically relies upon the confirmation that the use of Sub-Area 1 for public housing development is technically feasible, upon implementation of mitigation measures, shown by the assessment “conducted in accordance with established guidelines and requirement and accepted by concerned departments with the implementation of suitable mitigation measures”.

109.The comment in the DEP’s evidence that the current TPB process is premised on the EIA Report was made in the context of the assertion that whilst the town planning regime is separate and distinct from the EIAO regime, the uncertainty in the status of the Decision and the extent to which it may be considered in the zoning context may hinder the decision of the TPB. I note that comment, but (as I say) it seems to me to point to precisely why the balance of convenience is in favour of the grant of the interim stay. To refuse an interim stay would not remove the uncertainty, but would merely possibly mask it from those who might act upon it. Like it or not, the fact is that there is uncertainty in the status of the Decision, and it would be unfortunate if the zoning decisions were made without that point being fully taken into account.

110.Therefore, it would seem to me to be important to disabuse the TPB (and others) of any assumption that the Decision is sacrosanct and not potentially subject to being quashed. What the TPB (and others) may then make of that information is of course a matter for them, but the grant of an interim stay would make clear to the TPB that it should be cautious in anchoring any decision-making on the reliance that the Decision is valid and correct and will continue to be regarded as such.

111.I also accept Mr Yu’s submission that if (as is a hypothetical possibility) the Decision is quashed and the EIA Report is found to be invalid, the potential knock-on effects are serious and manifold.

112.I have taken into account that the Government has expressed willingness to lend the Land back to the Club, for it to be able to operate international golfing tournaments in the latter part of this year. However, I do not think that point is of any great weight in the overall consideration of whether or not to grant an interim stay.

113.Mr Yuen has submitted that one consideration highly relevant to the balance of convenience is the fact that the Government may lawfully restart the entire development process without going through the EIA procedure (as a result of the legislative amendments to Schedule 3 of the EIAO). However, as already indicated, against the history of matters and the Government’s publicly stated approach hitherto, I do not think this possibility of any great weight for present purposes.

114.I have taken into account that CEDD is only intended to commence the CEDD Review in December 2023, and that no ground investigation works in Sub-Area 1 are contemplated until the end of 2024, and no construction work will commence within the next 24 months. I agree with Mr Yu that the absence of any plan to carry out significant ground works or construction before the end of 2024 illustrates why no prejudice would be caused by the interim stay, and why the interim stay would not serve to delay the Project, if it is still considered viable and appropriate at the end of the day.

115.Therefore, the public interest in the timely provision of public housing would not seem to me to be significantly impacted by the grant of an interim stay of the Decision.

116.I also take into account that there is a real risk of serious, potentially irreversible, damage to the environment of the site – including as to its ecology and cultural heritage. Those are also matters of wide public interest. The grant of an interim stay would mark the requirement to preserve the site to cater properly for all possible future action that may be taken if the EIA Report and the Decision were to be quashed, whilst the rights and wrongs of the process leading to the EIA Report and the Decision are considered by the Court at the substantive JR Application, which can take place within a few months.

117.I am satisfied that, in the particular circumstances of this case, including consideration of the wider public interest, the balance of convenience points firmly in favour of the grant of the interim stay, rather than its refusal.

118.In reaching that conclusion, I have also taken into account there should be a ‘carve out’ from the operation of the interim stay, so as to permit the CEDD Review to go ahead: see below.

J.  CEDD Review

119.As explained in the affirmation of Lau Tin Lap Daniel, filed on behalf of the CEDD, to follow up on the Conditions which form part of the Decision, the next step is for the CEDD to conduct the CEDD Review. Mr Lau explains that CEDD will not commence the CEDD Review until the TPB has completed discussion of the relevant draft OZP for rezoning the major part of Sub-Area 1 from “Residential (Group A)” to “Undetermined”, currently targeted to end in November 2023.

120.In his §15, Mr Lau stated that:

The [CEDD Review] will entail desktop studies and site inspections including spatial survey, tree survey, taking photo record by CEDD and its consultant. Assessment will be conducted after the Review to ascertain the impact of the revised scheme on various aspects including visual, landscape, air ventilation, air quality, noise, traffic, etc., which are not only required to support the revised scheme to be resubmitted to the [DEP], but also subsequent rezoning submission to TPB. Relevant government departments will also be consulted. The Review will not involve any construction works whatsoever at the site, and will not result in any environmental damage at all.

121.Mr Lau goes on to explain that the CEDD Review will take about 12 months. Upon completion of it, CEDD would submit the revised scheme, including the revised layout plan, detailed landscape and visual plan, the development plan and measures to the DEP for approval around end of 2024.

122.In this context, it can also be noted that in the additional information provided after the EIA Report – in answer to a request for additional information made of CEDD following the ACE Meeting on 19 August 2022 – CEDD responded to a request for a detailed layout plan of the Project to illustrate the preservation of the additional 0.39 ha of secondary woodland. The CEDD answer was to state (bold in original):

•  It is reconfirmed that the ecological value of the 0.39 ha woodland is “low to medium”. Its removal would not result in adverse ecological impact.

•  That said, considerations (i.e. relocating building blocks, further increasing the building height) were given to preserve an additional 0.39 ha woodland.

•  It is concluded that there will be adverse impact on the scale of public housing and range of commercial and public facilities proposed for the development as presented in the detailed layout plan in the EIA report if the woodland in concern is to be preserved.

123.For present purposes, it seems to me that the point to be drawn from that answer provided by CEDD is that there is a potentially significant impact on the viability of the Project if the requested environmental concerns are to be fully met.

124.I acknowledge that if there is simply an interim stay of the Decision, then it might be thought that there is no basis upon which the CEDD could conduct the CEDD Review, as that is simply the requirement of the Conditions to the Decision. If the Decision has no effect, it can be said that neither have any of the Conditions.

125.Nevertheless, Mr Yu has made clear that the application for an interim stay is not intended to prevent the CEDD from carrying out the CEDD Review, if it wishes to do so, in accordance with the description of it given by Mr Lau in his §15.

126.Once that position was made absolutely clear during the oral submissions, Mr Yuen sought to build on it by the offer of the undertaking. However, leaving aside that the proposed terms of the undertaking were not acceptable, it seems to me that the appropriate way of dealing with this is to create a ‘carve out’ from the effect of the interim stay so as to permit the CEDD Review as described to go ahead.

K.  Result

127.In conclusion, I grant an interim stay of the Decision, pending the determination of the judicial review application.

128.However, the grant of the interim stay will not operate so as to prevent the CEDD from conducting the CEDD Review, on the basis and requirement that:

(1)  The CEDD will entail desktop studies and site inspections including spatial survey, tree survey, taking photo record by CEDD and its consultant.

(2)  Assessment may be conducted after the Review to ascertain the impact of the revised scheme on various aspects including visual, landscape, air ventilation, air quality, noise, traffic, etc., which are not only required to support the revised scheme to be resubmitted to the DEP, but also subsequent rezoning submission to TPB.

(3)  Relevant government departments may also be consulted.

(4)  The CEDD Review will not involve any construction works whatsoever at the site, and will not result in any environmental damage at all.

129.Finally, I propose to reserve the question of costs to the substantive JR Application.

Mr Benjamin Yu SC and Mr Timothy Parker, instructed by Mayer Brown, for the applicant

Mr Rimsky Yuen SC and Mr Martin Ho, instructed by the Department of Justice, for the respondent

The interested party was excused from court attendance