Hong Kong Golf Club v. Director of Environmental Protection
Read the full judgment text of HCAL 1258/2023 on BabelCite. This High Court CFI judgment was delivered on 2 December 2024.
1. During the Battle of Copenhagen in 1801, when told of an unwelcome flag signal from his superior officer ordering him to disengage, Lord Nelson lifted his spyglass to his blind eye, said “I see no flag”, and explained “I have only one eye and am entitled to be blind sometimes”. The Director of Environmental Protection (“DEP”) has no such entitlement.
Cited by 3 cases · Cites 5 cases
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HCAL 1258/2023 [2024] HKCFI 1279 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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___________________ J U D G M E N T ___________________ A. Introduction 1.During the Battle of Copenhagen in 1801, when told of an unwelcome flag signal from his superior officer ordering him to disengage, Lord Nelson lifted his spyglass to his blind eye, said “I see no flag”, and explained “I have only one eye and am entitled to be blind sometimes”. The Director of Environmental Protection (“DEP”) has no such entitlement. 2.Rather, the DEP is charged by statute to be vigilant (in terms which actually render it irrelevant whether the DEP does or does not take the Nelsonian view). That statute is the Environmental Impact Assessment Ordinance Cap 499 (“EIAO”), the long title of which declares a purpose which governs and informs the interpretation of the EIAO as follows:
3.Indeed, Article 119 of the Basic Law requires the Government to pay regard to the protection of the environment, reflecting at a constitutional level the value placed on environmental protection in the community. The EIAO may be said to be at the centre of a range of legislation and policies by which that aspiration is given expression. 4.I can return to the detail of the statutory regime and process in due course, but suffice it to say by way of introduction that:
5.In 2019, a SB was issued under section 5(1)(a) of the EIAO, relating to a proposed housing development (“Project”) on a 32 ha site, being land then 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”). 6.The statutory process continued up to and including May 2023, including generation of an EIA report (“EIA Report”) supposedly finalised in May 2022 – though that report was nevertheless then still subject to further queries and the provision of additional information. This is because, and with respect to its authors, few people thought the EIA Report was in every respect of the highest or even sufficient quality. 7.By letter dated 11 May 2023 (“Decision”), the DEP approved the EIA Report, though subject to certain annexed conditions (“Conditions”) and recommendations (“Recommendations”). The Conditions included the requirement that the CEDD perform a review of the project (“CEDD Review”). 8.The Decision was on its face expressly issued pursuant to section 8(3) of the EIAO. 9.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. 10.By my Decision dated 24 August 2023, [2023] HKCFI 1946 (“Stay Decision”), I granted an interim stay of the Decision, pending the determination of the judicial review application. But, the grant of the interim stay was expressly not to operate so as to prevent the CEDD from conducting the CEDD Review, on the basis and requirements I also set out. 11.The substantive hearing was heard over five days of argument in May and July 2024. At the hearing: the Club was represented by Mr Benjamin Yu SC leading Mr Timothy Parker; the DEP was represented by Mr Rimsky Yuen SC leading Ms Anna Chow and Mr Martin Ho; and the CEDD was represented by Mr Jin Pao SC leading Ms Leticia Tang and Mr Zenith Chan. 12.I think it fair to say that – across those five days – the arguments range was rather ramulose. Although to decide the case overall it may not be necessary for me to reach the extremity of every small branch, I have been urged to consider deciding practically every point in dispute. As I understand it, this is not merely to provide more scope for the parties to appeal, but because some of the arguments (and the decisions on them) may have an impact beyond the four corners of this case and the particular project involved, and my views on individual topics might provide assistance down the line. 13.As a result, I have covered more ground and information than is strictly necessary for the decision-making critical path. Nevertheless, I will not make reference to every single point raised or piece of evidence produced and referenced in argument, though I have had regard to them (with the benefit of a full transcript of the hearing). 14.At the end of the hearing, I reserved my decision to be handed down. This is my Judgment. B. Statutory Regime and Process 15.Before turning to the material facts and analysis of the particular EIA process leading to the Decision now under challenge, it is helpful to put matters into their proper statutory context. 16.The following provisions of the EIAO are material for present purposes, looking at: Part II ‘Environmental Impact Assessment’, sections 4 to 8; Part III ‘Environmental Permits’, sections 9 to 14; Part V ‘Technical Memorandum’, section 16; and Schedule 1 ‘Interpretation’. 17.Under section 4, certain projects are to be “designated projects”, as listed in Schedules 2 and 3, which may be amended by the Secretary for Environment and Ecology (“Secretary”) by order published in the Gazette. At the time of its commencement in 2019, the Project – with a study area of 32 ha – fell within the description of a designated project. 18.However, it can be noted that, following on from the Chief Executive’s Policy Address 2021, legislative amendments were made to Schedule 3 to the EIAO, said to be intended to streamline the workflow and existing statutory and administrative procedures relating to housing development, including the EIA process under the EIAO. 19.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”. 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”. Hence, a development project covering around 2½ times the area of Victoria Park, Hong Kong’s largest public park – equivalent to about 46 standard football pitches – now falls outside the list of designated projects which requires an environmental impact assessment under the EIAO. 20.The core provisions of the process relevant to this case are to be found in sections 5, 6, 7 and 8, which provide:
21.In Part III relating to environmental permits, it is fair to identify that sections 10, 12 and 13 also include a process with a timetable, which include default provisions such that if the DEP has not given particular notices in writing within the required 30 days, he will be deemed to have taken particular steps such as issuing a first or further environmental permits without conditions, or on the same conditions as previously imposed. 22.In Part V, section 16 provides as follows:
23.The definitions within Schedule 1 include the following:
24.The operation of the EIAO has been considered in a number of cases, including by the Court of Final Appeal (“CFA”) in Shiu Wing Steel Ltd v Director of Environmental Protection (2006) 9 HKCFAR 478 and Leung Hon Wai v Director of Environmental Protection (2015) 18 HKCFAR 568. Reference can also be made to a decision of the Environmental Impact Assessment Appeal Board in Kowloon-Canton Railway Corp v Director of Environmental Protection (EIA Appeal Board 2/2000, 30 July 2001). 25.From those cases, and the provisions themselves under review, the following propositions can be drawn:
26.As to the Court’s task upon a judicial review challenge to a decision of the DEP under section 8(3), on the basis that there has been a failure to comply with the requirements of the TM and SB, the following points can be made:
27.Reference can also be made to the case of Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at §38, where Chow J (as Chow JA then was) emphasised that the structured and defined timetable for various steps to be taken relating to the approval of EIA reports and the granting of environmental permits is an aspect of the public interest also “inbuilt” within the legislative scheme, and is not a separate or independent purpose. 28.In passing, I also note that Chow J suggested at §§45, 51 and 57 that:
29.I do not think that those latter comments were intended to suggest there is room to approve an EIA report which is flawed – even if only by a deviation or breach that is regarded as minor, insignificant or inconsequential, or purely technical. But if they were, that is contrary to the firm statements otherwise made – for example by the Court of Appeal in Join Smart Ltd v Director of Environmental Protection [2022] 1 HKLRD 1110 at §27(2) – namely that if an EIA report does not meet the requirements of the TM and the SB, the DEP has no power to approve it under section 8(3) of the EIAO. 30.It has been pointed out in the Australian context by Gerry Bates in ‘Environmental Law in Australia’ 11th Ed at §6.13 that the standard of compliance for the TM and SB may not be one of absolute perfection. There can be imported into the statutory obligation some concept of reasonableness and practicality, without being overly technical or astute to finding fault. It is also suggested that, depending on the particular circumstances, it may not necessarily invalidate an EIA report that it does not explore every avenue advocated by experts, or cover every possible alternative, and instead only sets out what the project proponent considers feasible. But, it seems to me that, even accepting those matters, that does not inject some form of proportionality assessment or filter, because compliance either exists or it does not (and it is unnecessary and unhelpful to add the words “strict” or “substantial” before “compliance”). 31.Once the requirements of the SB and the TM have been determined, the question whether the EIA report is in compliance with those requirements is a question of fact. The Court will be looking to see if the relevant EIA report is comprehensive in its treatment of the subject matter, objective in its approach, and that it alerts the decision-maker and others to the effect of the activity on the environment and the consequences to the public inherent in carrying out or not carrying out that activity. It must be written in understandable language and contain material that would properly alert both laypersons and specialists to the environmental impacts inherent in carrying out the proposed activity. But the core point is that the report must meet the requirements of the TM and SB. 32.As to the process of public consultation, the cases show (and it seems to me to be obvious) that:
33.This is consistent with general public law principles relating to consultations, explained for example in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at §108, R (Holborn Studios Ltd) v Hackney London Borough Council [2018] PTSR 997 at §§74-80, and Keep Wythenshawe Special Ltd v University Hospital of South Manchester NHS Foundation Trust [2016] EWHC 17 (Admin) at §§70-76. I might summarise those principles as follows:
34.This does not conflict with a general proposition that certain types of inadequacy or shortcoming in an EIA report might be fairly remedied by subsequent steps, such as by production of supplementary documents or information. Yet, on occasions, fairness may require that supplementary documentation or information to be the subject of further consultation. An example of this to be found in a recent case – although not referred to by the parties in this application – is the decision of the UK Supreme Court in R (on the application of Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52, where at §66 the holding made by Singh J in Cogent Land LLP v Rochford District Council [2012] EWHC 2542 (Admin) was summarised in the following terms:
35.Anyway, in an area of law where it is frequently said that what fairness demands is context-specific, the ultimate question remains whether in the particular circumstances fairness requires re-consultation. C. Material Background and Chronology C.1 The FGC and the Old Course 36.The Club was founded in 1889, and after a period of operation in Happy Valley and Deep Water Bay, the Club relocated to Fanling to build a full 18-hole course. The ‘Old Course’ was laid by the end of 1911. 37.The Old Course was inspired by the Old Course at the home of golf in St Andrews, Scotland. It was laid out in what has been called the ‘Golden Age’ of golf course development, and is the oldest golf course in all of China. It presents golfers with challenging shots created by the landscape’s existing topography. As noted by one expert in golf course architecture:
38.A former golf Hall-of Famer player, who played at the very first Hong Kong Open staged at the FGC in 1959 (and later won that tournament on three occasions) wrote prior to his death in 2018:
39.Following the Old Course, the New Course was added in 1931 on additional land acquired by the Club. The Eden Course was added in 1970. 40.Prior to the matters relating to the specific proposed development in this case, there was apparently a wider North East New Territories New Development Areas Planning and Engineering Study-Investigation, leading to a final EIA report in 2013. At §13.6.1.15, reference is made to the FGC in the following terms:
41.That paragraph was followed by Table 13.45, headed ‘Ecological evaluation of golf course’, which was as follows (bold in original):
42.Even acknowledging these matters were stated on the basis of a desktop review, prior to any detailed assessment, some of the above statements – such as the suggested easy re-creatability, and low abundance/richness of wildlife – demonstrate what some might consider to be a high level of naïveté and/or are rather startlingly wide of the mark. C.2 Background to the Project 43.In September 2017, a Task Force on Land Supply (“TFLS”) was established to consider options for addressing Hong Kong’s land supply challenges. The TFLS 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 TFLS noted that public views on the subject of building on the FGC were “polarised”. It also qualified its recommendation with the caveat that:
44.The recommendations of the Task Force were accepted in February 2019, and priority was to be accorded to studying and resuming the Land, for the purpose of housing development (with emphasis on public housing). 45.On 29 May 2019, the CEDD as project proponent (“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’ (“Project Profile”). As the name identifies, feasibility was not being assumed, but was being assessed. The Project Profile was directed at a proposed development of an area of about 32 ha, thus recognising that it fell within Item 1 of Schedule 3 of the EIAO. It also recognised that certain construction elements (in particular potential sewage treatment works and pumping station) may be proposed which would be designated projects under Schedule 2. 46.The Project Profile also identified that the EIA study would investigate the environmental impacts and propose the appropriate mitigation measures with the intention that all proposals would be environmentally acceptable and cost effective. It stated that the measures to minimise environmental impacts as listed in Annex 1 of the TM had been reviewed. C.3 The Study Brief 47.After the CEDD had submitted the Project Profile, exhibited for public comment under the EIAO, an EIA study brief (i.e. the SB) was then issued on 9 July 2019 under section 5(1)(a) of the EIAO. 48.The purpose of the study was stated at §1.5 of the SB as follows:
49.The objectives of the EIA study were set out at §2.1, as follows:
50.Hence, the objectives included at least the need for:
51.The Scope of the SB was defined at §3.2.1 (as is material for present purposes), as follows:
52.The SB at §3.1.1 required the Project Proponent to describe the need of the Project, and to describe the benefit of the Project and scenarios with and without the Project. §3.4.1 required the EIA study to address all environmental aspects of the activities as described in the scope, and that the assessment shall be based on the best and latest information available during the course of the EIA study (obviously recognising that potentially better and later information might become available during the course of the study). 53.Material for present purposes, the SB had various Appendices, including:
54.As an example, Appendix H had as its stated aim to protect, maintain or rehabilitate the natural environment. In particular, the Project should avoid or minimise impacts on recognised sites of conservation importance and other ecologically sensitive areas and species of conservation importance. The assessment was required to identify and quantify as far as possible the potential ecological impacts associated with the Project, both directly by loss of habitat, and indirectly by potential impacts such as human disturbance and/or change of water quality and/or hydrodynamic regime to natural environment. The Assessment was also required to include, amongst other things, the following major tasks (as numbered in Appendix H):
C.4 The Technical Memorandum 55.Though I am setting out some of the matters relating to the TM after I have set out various provisions of the SB, it is to be remembered that the TM was in place before the SB, and is of more general application. 56.The TM had, amongst others, the following material provisions:
57.In the context of the provisions of the TM relating to the review of and approval of the EIA Report, these can be found in §§4.4 and 4.5 (underlining in original), as follows:
58.Annex 16 to the TM provides the guidelines for ecological assessment. The guiding principle is set out at §3.1, including §3.1(a) which states that:
59.Annex 16 also provides for assessment methodology, setting an ecological baseline, by a study which shall at least review existing information, and include a habitat survey. At §5.1.2.2, it is provided that:
C.5 The EIA Report 60.In March 2020, the CEDD’s consultant – WSP Ltd (“WSP”) – 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. 61.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. 62.The EIA Report was submitted by the CEDD to the DEP in May 2022, and was also made available for public inspection. The EIA Report covered the entire 32 ha. However, it stated that only 8.1 ha at the northern tip of the site was suitable for housing development, i.e. Sub-Area 1. The remaining areas, that is Sub-Areas 2 to 4, were assessed to be too ecologically sensitive for housing development. 63.Hence, 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 perhaps all of it. Subsequently, the potential area of development was restricted to 8.1 ha (or 9.5 ha), primarily because the view was taken that a more restricted development would avoid the areas of high ecological value in Sub-Areas 2 to 4, whereas Sub-Area 1 was regarded – correctly or not – as being of relatively lower ecological value. 64.As I noted in my Stay Decision, that background and context suggested that if the technical studies concluded 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 the 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 the FGC. 65.The development option proposed contemplates the construction of 12 high-rise housing blocks of up to 164m in height, yielding an estimated 12,000 public housing rental units and subsidised sale flats, with a plot ratio of 7. Provision is also made for commercial and retail facilities, a transport interchange, and educational and social facilities. 66.The EIA Report included assessments relating to various matters including an Ecological Impact Assessment (“EcoIA”), a Landscape and Visual Impact Assessment (“LVIA”) and Tree Survey, and a Cultural Heritage Impact Assessment (“CHIA”). Relevantly, it did not have a Hydrology Impact Assessment (“HydroIA”). 67.It can also be noted that subsequent stages and activities were envisaged for the Project. For example, the EIA Executive Summary, under the heading ‘Environmental Monitoring and Audit Requirements’, stated:
68.On 17 May 2022, the CEDD was informed of the suitability of the EIA Report for public inspection, and it was thereafter exhibited for public comment from 20 May 2022 to 18 June 2022. C.6 Public Inspection and Comments 69.During the public inspection period, 1,451 sets of written comments were received from members of the public, including the Club. I am told that 1,449 (i.e. all but 2) of the written comments objected to the proposed Project. The Club made a Statutory Submission. 70.The Club’s Statutory Submission comprised expert reports based on independent scientific studies conducted by the Club’s consultants, addressing each of the topics identified in the SB, and technical reviews of the EIA Report, prepared by the Club’s independent consultants, analysing the accuracy and completeness of the EIA Report, and assessing whether it complies with the TM and the SB. 71.The Club says that its consultants found gross errors in nearly every technical section of the EIA Report, such that the assessments as to environmental value and impact were wholly unsustainable. The Club’s consultants included a checklist identifying 303 apparent major instances of non-compliance with the TM and/or the SB. C.7 Consideration by the ACE 72.Part of the EIA process also involved lengthy consideration of the EIA Report by the ACE. The ACE variously and on many occasions 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. For example, at the end of a meeting on 18 July 2022, three quarters of the members of the ACE were recorded to have reservations about the comprehensiveness, accuracy and adequacy of the ecological survey carried out, and that the information provided was insufficient to support endorsement of the report at that stage. 73.The CEDD was invited to attend the ACE full Council meeting on 8 August 2022, and to provide additional information in advance. Issues of concern continued to be raised, and the meeting was adjourned to continue on 19 August 2022. Some supplementary information was provided by the CEDD in advance of that meeting. Apparently steered by its Chairman – who had expressed his view that the EIA Report had “basically” fulfilled the requirements set out in the TM and SB, and while there was room for improvement, he supported its approval with conditions and recommendations – the ACE decided that the EIA Report should not be rejected, but that further information would be required from the Project Proponent to facilitate the DEP’s final decision. It is clear that a majority of the ACE members either voted against endorsing the EIA Report with conditions, or abstained. 74.By letter to the DEP dated 24 August 2022, the ACE identified matters on which it thought the DEP should seek further information. The letter includes the following:
75.The particular matters of additional information sought to facilitate a conclusion were then set out. Though it has been suggested otherwise, I do not read the letter in context as any final agreement on the part of the ACE (beyond the purposes of section 6(3) of the EIAO) that the EIA Report had met all requirements of the TM and SB. Rather, the ACE seems to me to have been saying that there was missing information, giving rise to its continuing reservations on various aspects, and that the missing information should be provided in addition to what had already been provided, as that would be necessary to facilitate an actual conclusion on a decision. In any event, even if it is assumed that the ACE had at that stage been satisfied of compliance with the TM and SB, that view was not binding on the DEP, nor on this Court. C.8 The Additional Information 76.On 31 August 2022, the DEP wrote to the CEDD requesting under section 8(1) of the EIAO various additional studies, information and revised proposals (“Additional Information”) as had been identified by the ACE, namely (in summary):
77.The DEP’s request for the Additional Information was expressly identified as being for the purpose of deciding whether to approve the EIA Report under section 8(3). The letter also identified that the Additional Information provided would form part of the EIA Report – itself a telling point in this context – and that it would be uploaded to the Environmental Protection Department (“EDP”) website for the public to access. It also requested the Additional Information in both hard and soft copies to facilitate dissemination. 78.The Additional Information was first provided in draft only on 18 April 2023, and uploaded to the internet as an annex to ACE Paper No. 8/2023 on 21 April 2023. It was indicated that the draft Additional Information would be discussed at an ACE meeting on 3 May 2023. From the Decision letter, it seems the finalised version of the Additional Information was provided to the DEP only on 4 May 2023. 79.Prior to that meeting, the Club wrote to the DEP on 25 April 2023, noting the upload of the draft Additional Information and asking whether the DEP and/or ACE would consider representations on the Additional Information, and if so what was the deadline for further comments. The DEP never replied – not even to say, “Do not bother, as I cannot and will not look at them anyway”. 80.The Club nevertheless on 2 and 3 May 2023 sent its responses to the Additional Information, both to the ACE and the DEP (who therefore had the Club’s materials prior to reaching the Decision). The Club’s responses included (in summary):
81.The ACE held its meeting on 3 May 2023 to consider the Additional Information. From the meeting minutes – which were published more than two months after the Decision had been taken – it is apparent that the Club’s responses to the Additional Information (though briefly referenced) had not really been taken into any proper consideration. That is also perhaps obvious, against the chronology that they had only been sent to the ACE on or just prior to that same day. 82.At a press conference following the meeting, the ACE indicated its members considered that, for six of the eight topics, the Additional Information was in general sufficient to establish the conclusion of the EIA Report. Those six topics were: conducting an additional bird survey for 7 months and an additional moth survey for 2 months; providing further details of the bat survey; formulating tree compensation and management plans; submitting detailed analysis on the hydrological impact and the shading impact of the proposed housing blocks to the trees. These conclusions were made without the benefit of consideration of the Club’s comments. 83.As to the other two topics – including the detailed layout plan of the proposed housing development – the ACE members agreed that the Project Proponent had still not fully addressed its concerns, so that if the DEP were to decide to approve the EIA Report, he should consider imposing a condition to request an amended detailed housing development layout plan to entail the preservation of the 0.39 ha of woodland. 84.It might also be noted that in a letter dated 10 May 2023 from the ACE to the CEDD, reporting the ACE’s deliberations on 3 May 2023, the ACE stated (amongst other things) the following:
85.As I read that paragraph, whilst (perhaps tentatively) noting that the differences in survey results “could be caused” by certain factors, those matters had not yet been illustrated or conveyed to the public in a way which would facilitate understanding of the causes of the differences. 86.Presumably, the ACE thought this to be so, even after the Additional Information was produced and made part of the EIA Report. But it might be thought that the proper identification of the differences in survey findings and understanding as to their potential causes were matters which were actually supposed to have been canvassed in the EIA Report itself. C.9 Approval and Subsequent Events 87.As already stated, the EIA Report was approved by the DEP on 11 May 2023 by the Decision, albeit made subject to the Conditions, and with the attached Recommendations – see further detail below. 88.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”). 89.The tenancy in respect of the Land in favour of the Club expired on 31 August 2023, and the Land reverted to the Government on 1 September 2023. Since then, the Land has been under the management of the Leisure and Cultural Services Department (“LCSD”), with the primary intention that about 22 ha of it 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. 90.However, the LCSD has been providing assistance to the Club in its organisation of international golf tournaments scheduled for, and which took place in, October and November 2023, involving use of the land. 91.I think the CEDD Review has been underway, since it was not caught by the stay of the Decision granted by me. D. The Decision, its Conditions and its Recommendations 92.By virtue of the provisions of section 8 of the EIAO (see above), the 30-day period for the DEP to consider and either approve, approve with conditions or reject the EIA Report apparently ran from 4 May 2023, and would have expired on 2 June 2023. The DEP did not take that long, and apparently did not use the extra time available to take into account for example the Club’s detailed and direct responses to the Additional Information. 93.At 7:52pm on 10 May 2023, the Assistant Director (Environmental Assessment) (“AD(EA)”) in the EPD was sent by email “the full set of EIA approval minute & LTT [i.e. ‘line to take’] (with Q&As), for seeking clearance from senior management”. 94.At 8:09pm on 10 May 2023, the AD(EA) forwarded that email to the DEP, saying:
95.I do not know what time the following morning the hard copy documents were submitted. But, by email as early as 9:32am on that following morning 11 May 2023, the DEP replied saying (only):
96.The Decision letter to approve the EIA Report, subject to the Conditions and Recommendations, was issued on that day, 11 May 2023. 97.The Decision letter referred to the Project Proponent’s application received on 22 April 2022 for approval of the EIA Report and the 17 May 2022 advice to exhibit the EIA Report for public inspection. It then continued:
98.The Decision Letter also notified that under section 15 of the EIAO, the approved EIA Report would be placed on the Register. 99.Annex 1 to the Decision letter sets out the Conditions of approval, in the following terms:
100.Though I can return to a more detailed consideration of them, the Conditions at least demonstrate that there remained significant concerns about (1) the Layout Plan, and the number of trees to be felled, (2) the footprint and building heights of the Project, and its visual impact on the surrounding rural environment, (3) the preservation of hydraulic performance and potential effect on groundwater level, flood risks and the contamination of the surrounding rural environment, in particular the swampy woodland at Sub-Area 4, and (4) the compensatory planting of trees. 101.Also attached as Annex 2 to the Decision letter are Recommendations from the ACE, presumably endorsed by the DEP as they were attached by him to the Decision and required the CEDD’s “attention and action”, in the following terms:
102.It might be thought that these Recommendations identify continuing concerns as to (1) the very scale of the development at Sub-Area 1 and its potential ecological and visual impact, (2) the integration of the Project within the development of the Northern Metropolis, (3) the need to mitigate the potential impact of developing Sub-Area 1 on the cultural heritage of the entire FGC area, as well as (4) the potential traffic impact and arrangements for the site. So that I need not repeat the point later, I can helpfully state now that I do not think that these are matters “beyond” the TM or SB. 103.I can return to the detail of the Conditions and Recommendations in due course. But, it is not inappropriate to note at this juncture that these are matters which are supposed to have been traversed and grappled with (including as to mitigating factors) in the EIA Report itself, because of the requirements of the SB and TM. 104.It is also of interest that the LTT (line-to-take) document to be used for public presentation of the Decision had attached to it a number of “Prepared Q&As”, the very first of which was (bold in original):
105.This prepared question and answer at least identifies a real perception that the public might be interested in whether the detailed supplementary information submitted by the Club in response to the new Additional Information had been taken into account before the Decision was made, and perhaps whether there was any response to the Club’s points. Indeed, underneath that prepared question and answer there was additional material which was apparently to be spoken to “if pressed”. This stated:
106.There followed a series of the Club’s claimed errors and omissions in the Additional Information, and some answers to those points as offered by the EPD. Hence the first part of the answer to Q.1 seems to be saying clearly that the Club’s supplementary information was not taken into account because it was submitted outside the 30-day public inspection period. But the section of the answer to Q.1 to which reference might be made “if pressed” appears to suggest that the EPD (if not the DEP himself) had given at least some consideration to the Club’s supplementary information. 107.That consideration has been incorporated into the rather fuller response covered by the evidence filed for these proceedings. 108.In passing – and perhaps relevant to Ground 4, see below – reference can also be made to prepared Q&A4. That says (bold in original):
109.Prepared Q&A4 shows that the EPD was alive to potential concerns that Conditions drafted in these terms may not be legally enforceable. E. Grounds of Review 110.There are four grounds of judicial review advanced, which can be considered separately but which are clearly to an extent interlinked. 111.Ground 1 asserts a public law failure to put out for public consultation the further materials (i.e. the Additional Information) received by the Director in response to his own request for those materials, as part of the statutory process. It is said that the Additional Information provided by CEDD pursuant to the DEP’s requisition should have been exhibited for public comment, and the failure to do so was incompatible with the requirements of transparency and public participation which underpinned the EIAO process, and was also procedurally unfair. 112.Ground 2 complains of the failure of the DEP to take any account of the Club’s responses provided to the Additional Information. That document contains data and analysis of substantial significance to the questions which the DEP had to consider, and it is argued that no decision-maker properly directing himself, or acting reasonably, would fail to have considered its contents. 113.Contrary to the suggestion of Mr Yuen, I do not think Grounds 1 and 2 must stand or fall together. Rather, I think it fair to say that if the Club succeeds on Ground 1, then it will also likely succeed on Ground 2 (or at least the answer to Ground 1 will inform the answer to Ground 2). This is because, if the Club succeeds on Ground 1, the materials that the Club produced to which reference has been made under Ground 2 would have been taken into account, since it would have been part of the materials produced as a result of the public re-consultation. It may not be the case the other way round. 114.Ground 3 argues that the Decision was ultra vires because the EIA Report did not comply with the TM or the SB. Further and/or alternatively, the Decision was Wednesbury unreasonable in that no rational decision maker, properly directing himself, could have approved the EIA Report and/or that the DEP failed to take into consideration matters which are plainly relevant and which ought reasonably (in the public law sense) to have been considered, or he took into account matters which are plainly irrelevant. 115.Ground 4 is split into two aspects in the Form 86. Ground 4A argues that the Conditions imposed in the Decision are such that the “approval” supposedly given with conditions was in reality no approval at all. The Conditions require or request substantial changes to the proposed project, and its attendant environmental impact, so that they should have been opened up for public comment and comment by the ACE. It is said that the DEP acted unlawfully and/or unfairly by purporting to require a substantial revision of the proposed project without the public and/or ACE the opportunity to comment on it. Further, the Recommendations attached to the Decision for the “attention and action” of the CEDD provide uncertainty as to whether they were part of the Conditions for approval. 116.Ground 4B complains that the Decision did not impose any condition requiring the CEDD to give effect to the mitigation measures identified in the EIA Report, effectively rendering them voluntary at the CEDD’s option. This is said to amount to irrationality, because the mitigation proposed in the EIA Report was an essential precondition to the EIA Report being approved at all. 117.I can address the Grounds each in turn, though there is some degree of overlap between them. As will be apparent, the contest on Grounds, 1, 2 and 4 is mainly between the Club and the DEP, and the contest on Ground 3 is mainly between the Club and the CEDD. 118.But, before turning to the Ground themselves, it is also appropriate to acknowledge the preliminary points urged upon the Court by Mr Yuen. The first point is that the present application for judicial review is not to question the wisdom of whether it is appropriate to construct residential buildings on the Land, nor is this case concerned with whether the part of the Old Course that might be affected should or should not be kept as a golf course. The second point is that in deciding any complaint against the DEP as to whether he has discharged his duty, there must be an objective yardstick. The third point is that a number of the issues involve matters of professional judgment, in technical areas, where the Court will give deference to those exercising professional judgment. Therefore, where there are legitimate differences of opinion, the Court should not likely reject the professional judgment or decision of the DEP simply because there might be another way of having performed the relevant assessment, or another way of construing the outcome or data derived from steps in the assessment. The fourth point is that the entire history of the matter should be taken into account, from the TFLS onwards, but in particular to include the scrutiny brought to the EIA Report by the ACE (where its overall conclusion should be the focus, not individual comments made by specific members of the ACE in the course of deliberation). Mr Yuen submitted that the history shows a transparent and detailed process, in compliance with the EIAO. 119.I accept those points and will keep them in mind, except to the extent that Grounds 1 and 2 seem to me to require some consideration as to whether there was a full transparent and detailed process as required by the governing documents and actually in compliance with the EIAO. F. Ground 1 120.As already identified above, the Club’s complaint under Ground 1 is that the Additional Information submitted by CEDD in response to the section 8(1) request made by the DEP was not exhibited for public inspection and comment, which was incompatible with the requirements of transparency and full and appropriate public participation underpinning the EIA process, and so was procedurally unfair. 121.It is the Club’s position that the Additional Information contained entirely new studies, details of the methodology of earlier studies that the ACE had identified as being necessary to evaluate the validity and robustness of the CEDD’s conclusions, as well as new proposals for mitigation. The new studies and details of previous studies included a HydroIA (there having previously been none at all), additional information regarding the Tree Compensation Plan, revised layout plans marking the location of the Trees of Particular Interest (“TPIs”), shading impact assessment, additional moth surveys and details of the original survey methodology in relation to bats and moths. 122.As I understand it, neither the DEP nor the CEDD dispute the proposition that the Additional Information was “new”, in the sense that it was mainly not previously included in the EIA Report. But they would submit that the surveys and studies supported, or simply elaborated upon, what was already in the EIA Report. I can return to this point later. 123.Mr Yuen has directed some argument at the suggestion that the Club is arguing for a basic legal duty to be imposed on the DEP for public inspection of further information provided under section 8(1), which would be unsustainable. Those submissions have some force, but I think they are misdirected. First, the Club is essentially complaining that the Additional Information should have been included in the EIA Report in the first place, so that it would have been made available for public consultation (and the longer period of consultation by the ACE with the benefit of public comments) during the statutory consultation period. Therefore, secondly, the Club is submitting that where that did not occur, but material of the character which ought to have been originally included was subsequently provided, that material should be treated in a like manner and be put out to public consultation. 124.However, Mr Yuen stressed by way of overview the various time limits in the EIAO, which have been canvassed by me in my review of the statutory regime and process. Mr Yuen stressed the relatively tight timetable, not just for the EIA process itself, but right from the start, and with the automatic deeming provisions that if the DEP does not take a particular decision at some point he will be deemed to have decided the positive (automatic approval). 125.He also made reference to the various Hansard materials. For example, on 29 January 1997, the Chairman of the Bills Committee formed to study the then Environmental Impact Assessment Bill noted a major concern lay with the proposed EIA process taking 195 days to complete. He said members of the Committee expressed concern over a possible increase in development time and delays in the completion of projects, but the Administration had repeatedly assured members that the proposed EIA process would shorten development time through simplified procedures and the imposition of statutory time limits on all actions by the DEP, and that the public inspection period and the time given to the ACE were clearly stipulated. Further, the Administration had accepted the suggestion to deem an application approved if the DEP did not respond within the statutory time limits. 126.At the same LegCo meeting, the Deputy Secretary for Planning, Environment and Lands emphasised the two main purposes of the EIA process: first to require the proper evaluation, at the earliest possible stage, of the environmental impacts of development projects; and second, to ensure the satisfactory implementation of necessary prevention and mitigation measures to protect the environment. He also emphasised the obligation to make the EIA report available for public inspection and comment, and the enhancement of the transparency of the EIA decision-making process. As to timing, the Deputy Secretary offered reassurance that the EIA process had been significantly streamlined and that statutory time limits on the process had been imposed, so that the Bill represented a balance between the need to protect the environment and the need to allow important development projects to proceed efficiently. 127.It might also be noted that as to residential developments, the Deputy Secretary clarified that the majority of residential development housing sites are outside the scope of the EIA process, so that there is no question of EIA arrangements delaying the overall housing production programme. Of course, the identified exception was those residential developments in ecologically sensitive areas, and those exceeding 2,000 flats in unsewered areas. On that basis, it might be thought that there was recognition (if only implicit) that a project such as that now proposed at the FGC may have to face greater delay than as regards the majority of proposed residential developments. 128.Mr Yuen also made reference to a paper prepared for the House Committee on the Bill earlier in January 1997, which emphasised similar matters relating to timing. 129.On the back of those extracts, Mr Yuen emphasised the important point that throughout the statutory scheme, there is only one provision which empowers the DEP to extend a period of time (though he said not relevantly for present purposes). But the rest of the provisions set out and deal with a timetable making the legislative intention clear, as is also divined from the Hansard materials. There is an intended level of certainty as to the specific steps required to be taken in the entire EIA process, and the time available for those steps to be taken without delay. The objective of introducing a statutory scheme in place of the prior administrative EIA process was to streamline and shorten the overall time, in part to meet the concerns of an overly lengthy or complicated process. 130.I have already accepted above that the EIAO does seek to balance (1) the public interest in protecting the environment and (2) the public interest in ensuring that major designated projects are brought to fruition in a timely and efficient manner, with both aspects built into the legislative scheme for the EIA process. 131.But Mr Yu is correct to draw attention to the fact that the time limits set by the EIAO are mainly imposed on the decision-maker, albeit with some time limits imposed on the ACE and the public. On the other hand, importantly, there is no time limit as far as the applicant / project proponent is concerned. There is no limit of time within which the EIA report must be produced, whether by reference to the date of the issue of the SB or not. There is no time limit set for the provision of any additional information as might be requested (and I note that in this case it took around 8 months). There is no overall time within which an EIA report must either be approved or disapproved following the filing of a project profile. There is also the emphasis on wide and proper public participation and transparency. 132.I therefore consider that the way in which time limits are dealt with – including by the default or deeming provisions relating to acts or decisions required from the DEP – points to the following:
133.In this regard, Mr Yuen’s submission that the EIA process envisages only one round of public consultation in respect of the EIA report may actually count against him. Ordinarily, the public would indeed have only one chance to comment on a report, making it all the more important that the EIA report should be as ‘comprehensive’ as possible, or as required. In this regard, it seems to me that comprehensiveness means that the EIA report should include not only the assessment results and conclusions, but also detailed explanations of the methodologies employed in conducting those assessments, and the rationale or justifications for using the chosen methodologies. It is important that readers of the EIA report are informed not only of its conclusions, but also the steps by which those conclusions have been arrived at. This is because the correctness of the conclusions is inevitably affected by the soundness of the underlying assessment methodologies. The ACE saw this very point in this instance when it sought various clarifications and when it suggested seeking the Additional Information. 134.Further, the EIAO itself recognises that the project proponent may not have provided an EIA report which contains everything which the DEP requires to decide whether to approve it. That is why the DEP is empowered to seek from the applicant the (missing) information which he requires for that purpose. It is readily conceivable that the missing required information may be either a little or a lot, and it may vary in terms of its apparent importance to the process. But – unless it is obviously simply to correct a minor error or something similar – it is perhaps inherently unlikely to be wholly insignificant, if the DEP has had to request it (exercising the power to do so) precisely because he requires it to be able to decide at all whether to approve the EIA report or not, especially where what is given in response is expressly to be incorporated as part of the EIA report. 135.Contrary to the submission of Mr Yuen, I do not think whether to allow or require the public to be consulted again to give comments is simply “a procedural point”. Whilst I accept that the question raised by Ground 1 is to be answered primarily by reference to the ‘four corners’ of the EIAO, I have set out above why I do not think the statutory terms prevent re-consultation when fairness demands it in the circumstances. In essence, re-consultation will arise where a prior step in the statutory scheme or process has not been properly completed. That does not seem to me to be contrary to the spirit of the relevant statutory regime laid down, as Mr Yuen submitted. Rather, it is in support of that spirit. 136.In that regard, I note that the DEP has the power to require an applicant to re-advertise or extend the period of public inspection for up to another 30 days if the applicant fails to comply with any requirement under Part II or any direction given by the DEP: see section 7(3) of the EIAO. Hence, where the DEP request additional information which is necessary for him to make his decision and which is expressly to be included as part of the EIA Report, it can be said that the DEP has recognised (albeit only implicitly) that the applicant has failed to comply with a requirement under Part II, opening the door to re-advertisement and the extension of the period of public inspection. 137.As to Mr Yuen’s submission that the additional assessment of additional information only confirmed or affirmed the result in the EIA report, I agree with Mr Yu that this submission has not really identified the correct test. The correct test is whether it is fair for the additional information and any assessment of it not to be put into the public domain for public comment. Further, first, you cannot “affirm” or “confirm” something which was not previously in the report. Secondly, even if it was to some extent previously there but further information is being produced, some people might say it affirms or confirms what was previously there, but others might disagree – or there may remain a debate about the methodologies adopted. That is why it may require assessment with the benefit of forthcoming comments, which may not all point in the same direction. 138.It seems to me that the Additional Information was requested, at the instigation of the ACE, because it was thought to be necessary and appropriate and highly relevant to whether the EIA Report could be seen to comply with the requirements under the TM and SB. That is so, irrespective of whether the studies and details of methodologies in the Additional Information are in fact capable of supporting the EIA Report. It was specifically required that the Additional Information provided would form part of the EIA Report. There can be no real doubt that the Additional Information contained materials which were capable of affecting the conclusions previously set out in the EIA Report – and the reasoning for and the requests for those materials also identified the same thing. 139.The core point is that those materials could and should have been ventilated in the EIA process, when they would have been made available for public scrutiny and for consideration by the ACE, aspects of the process which are of considerable importance to the statutory scheme as a whole. It is also telling that upon receipt of the (draft) Additional Material, the DEP referred it to the ACE for its comments. 140.It may be necessary to address the detail in relation to Ground 3, but it can be said for present purposes that it is clear that there is a significant volume of information which has been produced by the Club in its responses to the Additional Information, and now by the DEP and CEDD in reply to those responses. But, the reply is in essence only available as a result of the filing of evidence in these proceedings. Indeed, in at least one sense, the problem which faces this Court in the necessary consideration under Ground 3 arises from the fact that the ‘contest’ on the various expert and other views, including as to which methodology is or may be appropriate or inappropriate, is being played out in these proceedings – when that is the kind of ‘contest’ or debate which is intended to be played out primarily in the statutory process involving public consultation and consideration by the ACE. 141.Ultimately, I am persuaded that the Additional information did contain information which ought to have been substantially included within the original EIA Report. A clear example is the Hydro AI, the first time one was prepared, which is a vital matter relating to the question of survival of a critically endangered species. As I have already noted, when the Additional Information was sought, it was expressly said that it would form part of the EIA Report and be available for public information. 142.Had the DEP expressed the view at the section 6 stage that the EIA Report would not be put out to public consultation because it lacked certain materials (or was not compliant with the SB and TM), it is undeniable that if those materials were produced in a revised EIA Report satisfactory to the DEP, all of the revised EIA Report would have been put out for public consultation. Furthermore, all of it would then have been considered by the ACE with the benefit of any public comments. I cannot see that the necessary requirement for public consultation is somehow defeated because the missing material which is then specifically made part of the EIA Report is only produced in response to the DEP’s request at the section 8(1) stage. I have already also made reference to section 7(3)above. Once the DEP recognised that he was requesting additional information of the sort that would have to be included in – and would in fact form part of – the EIA Report, that at least suggested re-consultation might be necessary. 143.At least on the points canvassed within the Additional Information, and ignoring any knock-on or overlapping effect, those points are clearly of substance and relevance to the assessment undertaken in the EIA Report – including as to mitigation measures – and the conclusions stated in it. Further, though the ACE did have some opportunity to comment on the Additional Information, the statutory process envisages that the ACE should have that opportunity to make its comments with the benefit of any other comments received from members of the public. That did not happen. 144.As a matter of fact, the public were only consulted on part of the EIA Report in its final form. That is contrary to the requirements of the EIAO. Proceeding on that basis, was not within the power of the DEP. 145.In short, I find that the fairness and integrity of the process, set out in the EIAO properly construed, demanded re-consultation once the Additional Information was produced to form part of the EIA Report. 146.Ground 1 is established. G. Ground 2 147.As I have already stated, it seems to me that if Ground 1 is established, then it will likely follow that so is Ground 2. This is because if there ought to have been re-consultation, then the Club’s responses would have formed part of the re-consultation process, and would necessarily have been taken into account by the ACE in its consideration of its further comments, and then by the DEP in reaching his decision as to whether to approve, approve with conditions, or reject the EIA Report. 148.I think Mr Yuen also at least accepted that the answer to Ground 1 may inform how Ground 2 is approached, though it might not be the simple answer to Ground 2. 149.Nevertheless, Ground 2 can exist – and requires separate consideration – on the assumption that Ground 1 fails. Then, Ground 2 proceeds on the basis that, even if a necessary and fair proper consultation was not statutorily permitted and/or required on the Additional Information, the Club had nevertheless put in a response, which was relevant and material to the decision-maker’s decision under consideration, and it would not be fair or Wednesbury reasonable for the DEP to ignore that available information. 150.It may also be relevant to note that the arguments advanced by both sides on Ground 2 do not make complaint of any deliberate delay in either the provision of the Additional Information or in the Club’s response to it. But, purely as a matter of chronology, it can be noted that:
151.Anyway, the broad proposition underpinning the Ground 2 challenge is that, where the DEP has re-opened the door for the Project Proponent to put in additional materials which are quite substantial on a number of different areas, he cannot then fairly say that he will ignore those materials produced by the Club on the other side of that door. 152.Mr Yuen’s offered answer is twofold. First he says that the Club provided materials to the DEP outside the statutory period, and the DEP simply has no duty to have regard to them. But I do not think that provides the answer. 153.As the ground was summarised in the Amended Form 86, the Decision is said to be flawed because the DEP’s failure to consider the Club’s Response to the Additional Information involved him ignoring relevant materials, breaching his Tameside duty, and/or acting Wednesbury unreasonably, or unfairly. 154.On the other hand, the Club has accepted that the scope of the Tameside duty to enquire may be narrower in the context where, as here, the legislation is quite prescriptive as to the information that is to be taken into account. But, the Club has asserted that, where in the present case the decision-maker had placed before him a detailed set of materials prepared by highly qualified, independent consultants analysing and presenting relevant scientific data on the very question he had to address, then a duty was triggered for the DEP to engage with that material. Not to do so was procedurally unfair and Wednesbury unreasonable. 155.Mr Yuen’s criticism of that approach has some force. He submitted that it cannot be correct that – where the Tameside duty is modified or must be considered in light of the applicable statute – whether or not the decision-maker has a duty to look at further materials depends on whether it was or was not prepared by qualified professionals. That, Mr Yuen submitted, would create uncertainty, of the kind which the legislature intended to avoid. I agree. There is no legal justification for stepping outside structured legislative provisions merely because the decision-maker has been prepared by highly experienced professionals. 156.However, I do not think the Club was actually asserting that the duty is triggered depending on whether the materials produced are the product of qualified professionals. Indeed, for my part, I think the specific reference to the Tameside duty is something of a red herring (where that duty is in any event simply a facet of Wednesbury reasonableness). 157.Instead, I think the Club was asserting that the fact that the materials produced were prepared by qualified and independent consultants addressing data on the central questions to be addressed by the decision-maker – and directly in response to other similar materials requested by the decision-maker precisely to enable him to make the relevant decision – was something to be taken into account in assessing whether fairness and reasonableness required it to be taken into account. 158.With that contention, I agree – albeit keeping in mind that the establishment of Wednesbury unreasonableness is a high hurdle. However, I also think it correct that what fairness and reasonableness demand in the particular circumstances would be tested against the statutory regime. 159.I have already above touched on the point that, under section 8(1), the power given to the DEP to request additional information is predicated on the fact that that information is required by him to be able to decide whether or not to approve the EIA Report. If information is of the character that the DEP simply cannot perform his statutory task of approving or not approving the report without it, a reasonable starting position might be that the additional information was requested because it is required and is not likely low in significance. Of course, there may be the need to correct a relatively minor oversight, omission or change of circumstance, but that may not be why the information is required in the particular case. 160.In this particular case, the Additional Information was sought – and considered to be required – because of a series of continued concerns voiced by the ACE, which the DEP accepted. The Additional Information was not sought on just one narrow area of the EIA Report or to correct a minor error or omission, but rather it was sought across eight different areas. Amongst other things, it sought new surveys or explanations of methodologies, a hydrological impact assessment, a revised tree compensation plan and a revised development layout. When produced, it was expressly to become part of the EIA Report itself, and it was passed to the ACE for its comments. 161.Mr Yuen relied on the fact that additional information can be requested by the DEP under section 8 in any EIA process. On each occasion, the additional information would presumably be requested because it is thought to be relevant and potentially material. So, Mr Yuen submitted that point must be neither here nor there. However, it does not seem to me to matter that the section 8 power is potentially exercisable in any EIA process. I accept that asking for something which the DEP thinks is relevant and which he is likely to take into account does not of itself necessarily trigger the corresponding obligation to accept, let alone invite, any responses to it. But, depending on the particular circumstances, it may do. Here, it did. 162.Mr Yuen also relied on the two points that: (1) there is the provision in the EIAO that after 30 days from the provision of the additional information, the EIA Report would be deemed approved if no other prior decision has been made; and (2) there is no power to extend that time. But, in this case, I do not think there was any particular rush which would have prevented the DEP from engaging with the materials provided by the Club in response to the Additional Information (or, indeed, in permitting time for the ACE properly to take into account the Club’s response before making its own final comments). 163.On the chronology, the ACE considered the Additional Information in draft only – and the final version was provided to the DEP only on 4 May 2023, that being the date which would have commenced the 30-day period. The Decision was taken and notified on 11 May 2023. So the DEP still had over three weeks more than the time he actually took in order to make his decision, and thereby avoid the deeming provision. 164.I also note that (1) the ACE was able to consider the Additional Information within around two weeks after first being provided with it in draft (notwithstanding that it took eight months to be produced), and (2) the DEP was able to consider the Additional Information and the ACE’s comments on it and reach his decision within just a further 7 or 8 days. (In passing, I also note that the DEP does not say that he did not have time to consider the materials from the Club.) 165.Of course, I see some force in Mr Yuen’s submission that against a deadline, if there are comments which may invite further comments, then the question might arise: where is the end? But an understandable desire for finality does not mean that the demands of fairness and reasonableness must be sacrificed. Perhaps a further answer to that submission is to be found in the answer to Ground 1. The only reason why there is a potential rush is because the underlying intention in the EIAO that there should be transparency and public consultation on the entirety of the material EIA report has been thwarted. Had it been recognised, as I think it should have been, that the EIA Report in this EIA exercise was only complete once the Additional Information was added to it, it would also have been recognised that the statutory requirement for public consultation and ACE comments had not yet been met. Once that was met, in accordance with appropriate statutory deadlines, there would not have been any potential comments upon comments upon comments, and the matter would have ended by the DEP’s decision or by the deeming provision coming into play. 166.I also note the tension between the DEP saying that taking the Club’s responses into account would have been outside the statutory framework, whereas he specifically referred the Additional Information for the consideration by and comments of the ACE, when it has not been made clear to me how that fell inside the statutory framework. Logically, if the ACE is being consulted, so should the public. 167.The second main answer offered by Mr Yuen was that the materials were in fact considered by the EPD, if not by the DEP himself (nor by the ACE). 168.I would first note that, if correct, this supports my own conclusion on the first point, namely that there was the ability and sufficient time to have considered the Club’s response. But there is obviously some tension between saying (1) “I could not take the material into account legally”, and (2) “I did in fact take it into account”. However, this tension is probably resolved by the evidence filed overall. 169.As Mr Yu identifies, the starting point is that the Decision itself identifies what was, and therefore what was not, taken into account. I agree. The Decision is plain that, whilst it did take the Additional Information into account, it did not take into account the Club’s response those materials. Further, the LTT produced along with the Decision also emphasised that the Club’s response was not taken into account and why, even though some comments on those responses were to be spoken to at a news conference “if pressed”. 170.In conclusion, the DEP having requested the Additional Information in a range of areas necessary for him to be able to exercise his power to decide whether to approve or reject the EIA Report, and having been presented with that information as well as other materials on the same points, I do not think he could fairly or reasonably in the particular circumstances of this case have looked only at one set of materials and not the other set. But that is what he did. 171.Ground 2 is established. H. Ground 3 H.1 Introduction 172.Under Ground 3, the Club submits that the DEP was wrong to approve the EIA Report, because it does not comply with the requirements of the TM and the SB, and because no reasonable decision-maker could have concluded that the proposed Project is environmentally acceptable. 173.In this context – and though some aspects may for convenience be repeated below, or further references added – reference can also be made to the extracts of the provisions of the SB and the TM relating to the review of and approval of the EIA Report, set out above. 174.The Club relies on various expert consultants who have identified what they say is an array of deficiencies in the EIA Report. Annex 2 to the Form 86 analyses these deficiencies in some detail. There is, of course, a significant volume of material produced by the DEP and the CEDD in response, which has also been taken into a revised Annex 2. Against that, the Club says that the evidence nevertheless fails to salvage the many fundamental problems in the EIA Report identified by the Club. 175.By way of introduction, it can be recognised that a number of aspects of argument have highlighted the difference between the approaches to methodology and/or respective survey results. For example in the specific context of moths (see further below), in partial answer to the Club’s argument that its survey results were vastly different from those results of the survey performed for the CEDD, the CEDD has suggested the Club was seeking to perform an exhaustive academic study. During argument, I wondered out loud if that was maybe the point, namely to count everything that is present, in order to know what might be impacted and by how much, and how the impact might be mitigated, if possible. That might also seem consistent with the requirement in the SB to identify and quantify as far as possible potential ecological impacts. 176.But, perhaps this only highlights that – though survey results may be thought intended to be objective – the choice of what to measure and the choice of measurement methodology are subjective decisions. Seek, and ye shall find; but what you seek and how you seek it will affect what you find. 177.Without being naïve to the possibility that one side or another may make a subjective choice influenced (consciously or otherwise) by a perhaps preferred outcome, it is a fact that the Club has advanced its materials from the standpoint of the body that has been the ecological steward of the land in question over the past several decades. Though the Club’s Statutory Submissions (and the Response to the Additional Information) might be part of the ‘public comments’, it would be expected that they be given the most careful consideration. Of course, on the other hand, it must also be noted that the CEDD has engaged consultants and experts on the areas now under discussion. 178.The various individual topics under Ground 3 can be taken in turn. As already noted, most of the contest as regards Ground 3 has been conducted in these proceedings between the Club and the CEDD. But it is also worth keeping in mind now and throughout that:
H.2 The Precautionary Principle 179.Before turning to the individual topics, it is useful to consider the concept, and potential meanings, of what is known as the “precautionary principle”, or the “precautionary approach”. 180.At its core, it is an approach to uncertainty, and provides for action to avoid serious or irreversible environmental harm in advance of scientific certainty of such harm. It can be viewed as a mechanism to counter any regulatory presumption in favour of allowing development or economic activity to proceed in the absence of clear evidence about its impacts. However, it is clear that this principle – which has been described as “intuitively sensible” – has given rise to some controversy and confusion in its acceptance into law, policy and implementation in practice. 181.Part of the reason for the controversy or confusion is that there are a number of different formulations of the principle, ranging from what are described as “weak” to “strong”. 182.Reference can helpfully be made to Rosie Cooney’s paper entitled ‘The Precautionary Principle in Biodiversity Conservation and Natural Resource Management’ published in 2004 by the IUCN World Conservation Union. It identifies that:
183.On the precautionary principle, I have also been referred to the Australian case of Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256, which considers the formulation adopted in section 6(2)(a) of the Protection of the Environment Administration Act 1991 (NSW), being that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. It also provides that in the application of the precautionary principle, public and private decisions should be guided by (1) careful evaluation to avoid, wherever practicable, serious and irreversible damage to the environment, and (2) an assessment of the risk-weighted consequences of various options. 184.The case goes on to explore the precautionary principle: see §§125-188. It does so on the basis that the need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: (1) a threat of serious or irreversible environmental damage and (2) scientific uncertainty as to the environmental damage. These conditions or thresholds were said to be cumulative, and once the conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate. 185.Assessing the degree of scientific uncertainty was also said to involve a process of analysis of many factors, and that the assessment of the degree of uncertainty might include consideration of: (1) the sufficiency of the evidence that there might be serious or irreversible environmental harm caused by the development plan, programme or project; (2) the level of uncertainty, including the kind of uncertainty (such as technical, methodological or epistemological uncertainty); and (3) the potential to reduce uncertainty having regard to what is possible in principle, economically and within a reasonable timeframe. 186.As to how much scientific uncertainty must exist, the Court rejected the suggestion of a literal interpretation of “full” scientific uncertainty since it would render the condition meaningless, and reaching “full” scientific certainty would be an unattainable goal. It cannot be unequivocally stated that a particular phenomenon will never cause adverse effects, because a null hypothesis can never be proven through processes of inductive logic. 187.It was also held that the precautionary principle should not be used to try to avoid all risks. A zero risk precautionary standard is inappropriate. The precautionary principle should not open the door wide to irrationality, but rather should establish itself as an aspect of the rational management of risks, designed not to achieve a zero risk (which everything suggests does not exist), but to limit the risks to which citizens are exposed to the lowest level reasonably imaginable. 188.The conclusions reached included that:
189.I respectfully agree that that is an appropriate solution, and an appropriate way to address the precautionary principle. By way of example, if the degree of uncertainty is quite high and the particular risk concerned is one of high importance, then the precautionary principle would tend to give the environment the benefit of the doubt. 190.This also seems to me to chime with the stated aim of the EIAO, to protect the environment. 191.I have also found helpful the way the matter was put by Mr Paul Leader, the Club’s ecology expert. He stated that contrary to doing nothing when the ecological impact is uncertain, it is his experience that it is necessary to conduct more extensive studies to fill the gap in knowledge and understanding so that any impacts can be assessed, and if need be and if possible, mitigated with a sufficient degree of certainty. H.3 Old and Valuable Trees 192.The starting point is to recognise that Old and Valuable Trees (“OVTs”) can only formally exist, or be registrable because they are, on unleased government land. But it is obvious that land which is about to be taken back and become unleased government land may have on it potentially registrable OVTs. 193.In a preliminary feasibility study on developing the New Territories North performed in December 2017, there was in the executive summary a specific section – section 6 – on the FGC. At §6.1.2, it was stated that:
194.The reference to OVTs was footnoted to state that there are about 80 potentially registrable OVTs. This was further explained in an appendix, as follows:
195.In other words, in 2017, the recognised constraints upon development at the FGC included that any development might encroach upon OVTs or potential OVTs. 196.The Project Profile addressed this matter under the heading ‘Landscape and Visual’ at §§3.9.1 and 3.9.2, which expressly noted that (1) the cluster of trees in the project development area are landscape, fairway and woodland with many trees considered as potential OVTs, (2) they symbolize the long history of FGC development since 1911, (3) the potential OVTs and protected species possess significant amenity value, and (4) the survival rate of potential OVTs after transplanting is low due to their maturity. 197.At §5.9.5, dealing with mitigation measures to be incorporated in the design stage, the measures to be adopted would include that the design should take into account the location of the potential OVTs and associated clearance zones and avoid disturbance of the soil levels around these trees. 198.The SB at Appendix J dealt with ‘Requirements for Landscape and Visual Impact Assessment’, and included the following:
199.It seems to me to be clear that the proper interpretation of the SB as regards the reference to OVTs in Appendix J is that it includes potential OVTs. I reject the submission made by both Mr Yuen and Mr Pao to the contrary, because:
200.Indeed, under the Development Bureau Technical Circular (Works) No. 5/2020 ‘Registration and Preservation of Old and Valuable Trees’ (“Circular 5/2020”), emphasis is placed upon the fact that OVTs should be given “priority protection”. 201.As there has been considerable argument about the appropriate meaning to be given to Circular 5/2020, it may be appropriate to set out some of its provisions, as follows:
202.As can be seen from §11, public projects such as the Project trigger a policy requirement that the Department initiating the project should identify potentially registrable OVTs. This is again consistent with, and perhaps relevant context for, my interpretation of the material requirements of the SB. 203.Contrary to the submission made by Mr Pao, I do not think that the interpretation is somehow affected by the fact that §6 contains different categories or criteria which must or can be satisfied by a tree before it is registrable as an OVT. 204.But the main argument has been as to the proper approach to §§20-22. Mr Yu argues that the correct meaning is that, unless the OVT has died (§20), it cannot be removed (§21), and removal includes not just felling the tree but attempting its transplantation. As he put it, if you remove the tree by removing it from its existing location to another location, that is prohibited. He also submitted that it would be perverse to read §§20-21 to mean that a tree can just be removed when it is not practicable to retain it because a building is proposed to be developed or built in that location. That, he said, would turn the spirit and intention of the Circular upside down. Reference was also made to the fact that the Club’s landscape architect expert, Mr Alexander Duggie, identifies that he is not aware of any case where an OVT has been removed or transplanted to make way for a new development, whether under a Government lease or in a public works project on unreleased Government land. Nor has he encountered, since the creation of the Register, the situation where a land lease prepared for sale of Government land to a private developer allows the removal of an OVT, and, public works projects have never adopted a less stringent approach. The CEDD’s deponent does not identify any instance where an OVT has been moved and transplanted elsewhere. 205.On the other hand, Mr Pao argued that:
206.In my view, Mr Pao’s offered interpretation of the word “removal” in §§20-22 is correct. It means “felling”, and does not include an attempt at transplantation. In essence, the only OVT which can be removed is one which has died, or one which though still alive can nevertheless be justified for removal (such as because it is dangerous). As Mr Pao submits, removal of an OVT, irrespective of whether it is alive or dead, still requires necessary application and approval – unless there is an imminent danger to public safety, which triggers the approach mandated by §24. 207.On the other hand, I do not think §21 somehow opens the door wide to transplanting of OVTs because of some general view that retaining it at its existing location is not practicable, for example because someone wants to build something where the OVT is located. I accept Mr Yu’s submission that that would turn the general spirit and intention of the Circular on its head. Though not ruled out altogether, the circumstances when there would be any consideration of transplanting an OVT must be extremely rare – described elsewhere as “very special circumstances and fully justified” – and would not be for mere convenience because the OVT is thought to be in the way of a proposed potential development. That seems to me to be the most likely explanation for why Mr Duggie is unaware of any case where an OVT has been removed or transplanted to make way for new development, and why the CEDD has not produced evidence to identify the circumstances when an OVT has been moved or transplanted elsewhere. 208.It is also important to keep in mind that it is recognised elsewhere that transplanting an OVT is unlikely to be successful, and so the Government policy to provide “priority protection” to the OVTs in the Register (as well as potentially registrable trees identified through tree surveys) – see §§6 and 11 of Circular 5/2020 – would also point to the extreme rarity of circumstances when it might ever be thought acceptable to remove or even attempt transplantation of an OVT. 209.Reference was also made in argument to part of the responses to comments made by the ACE on 18 July 2022, as regards the general tree felling plan. It was stated that the tree felling plan was based on the statistics formulated by reference to the housing block layout in the EIA Report, which would be subject to further review in the subsequent design phase of the Project. A further and detailed tree survey would be carried out to provide a complete inventory and to re-examine the condition of all the existing trees within Sub-Area 1, and the housing block layout would be revised based on, amongst other aspects, findings of the further detailed tree survey, with a view to preserving the existing trees as far as practical. The active measures to be taken to minimise the impact to existing trees may include adoption of non-standard housing blocks, relocation of the housing blocks, reducing the number of housing blocks without affecting the targeted flat yield. Tree preservation and removal proposal would be prepared based on the recommended housing block layout with tree preservation as a major consideration. Mr Pao described this as an “iterative design” process. 210.That may be so, but it is obviously one aimed at trees in general, and not aimed at potential OVTs, trees of large sizes or rare species. I do not think the intention to ‘tweak’ or finalize the design of the buildings to try to preserve trees in general really meets the complaint about the other more important trees. 211.In the EIA Report, at §4.1.6 of the Executive Summary, it was stated:
212.A little further into the contents of the EIA Report itself is Table 2.1, which sets out key comments received from the public and ‘Green Group’, and the responses to those comments. Materially relevant to ‘landscape and visual’ for present purposes is the following:
213.Though there is the suggestion that there had been a detailed tree survey to identify potential OVTs that may be affected, I think it is tolerably clear that that was not in fact done (and the argument advanced for the DEP and the CEDD is that it did not need to be done). 214.The EIA Report has a section on LVIA. As to Tree Survey, the assessment methodology is identified in §11.5.1.3, which suggests that a tree survey will be undertaken to estimate the numbers of existing trees, dominant species, maturity, rarity, OVTs. Also, based on the proposed development Option 2 – where Sub-Area 1 is proposed for development while Sub-Areas 2-4 are proposed to be preserved for compatible use – therefore an individual tree survey will be carried out for Sub-Area 1, while broad brush tree survey will be provided for Sub-Areas 2-4. There is no reference to potential OVTs. 215.Instead, the conclusion on Tree Survey includes at §11.6.3.11 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 unleased government land. But – as I have already canvassed – where the whole purpose of the EIA Report was in relation to potential development of land to be taken back into government ownership, the EIA Report simply failed to take into account something which it ought to have done. This is so despite the fact that Project Profile had referenced potential OVTs and the Club had expressly identified the presence of potentially registrable OVTs when it made its statutory submission in the EIA process. 216.The fact that these (and other) public comments were not addressed in the EIA Report is also contrary to the requirement of the TM at §4.5.1(c) which requires the EIA Report to have addressed relevant environmental issues raised by the public and the ACE during the public inspection period. 217.To put it another way, and by reference to the affidavit of Mr Duggie, 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. I also do not think that the failure can be overlooked because, somewhere else in the tree survey (perhaps buried in a small-print schedule), there may be reference to a number of trees with particular characteristics which might meet the criteria for registration as OVTs. Even if there were some sort of “overlapping definition”, as Mr Pao submitted, the fact remains that there was no attention drawn to the existence of the potentially registrable OVTs as would have triggered the process required by the OVT Policy. 218.As I also noted in my Stay Decision, by reference to a plan, 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 – unless the trees are removed or transplanted. 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. 219.Whether OVTs could be moved is both a practical and a policy point. On the practical level, I have already noted (1) the governmental recognition that the survival rate of OVTs and potential OVTs after transplanting is low due to their maturity, and (2) as the Project Profile says, that means mitigation measures must be incorporated to take into account the location of the potential OVTs and associated clearance zones and avoid disturbance of the soil levels around these trees. 220.As to policy, I have already considered Circular 5/2020, but reference can also be made to Development Bureau Technical Circular (Works) No. 4/2020 ‘Tree Preservation’ (“Circular 4/2020”), which was issued at the same time, and which includes the following provisions:
221.I think some of those provisions show that at the feasibility stage trees to be given priority preservation should be identified, and at the design stage it is worked out how to give that priority, including ensuring that the trees are not damaged through the construction process. However, §32 states that what has to be done at the feasibility stage is to assess whether the purpose of the intended government project can be performed whilst at the same time being satisfied that priority has been assigned to the trees identified for priority preservation. Only if the view is taken that that is possible or feasible does one go on to work out, at the design stage, how to protect those trees. 222.Appendix C to Circular 4/2020 deals, amongst other things, with tree survey plan for government projects. It identifies that the tree survey must be undertaken prior to the main site layout design to avoid potential land-use conflicts and ensure proper allocation of space for trees that will remain. The survey should document all trees within and, if appropriate, adjacent to the site, and should include various details, amongst which are locations of trees together with their crown spread on a plan showing the spotlight of existing levels and above-ground features, together with an identification number provided adjacent to each tree. There should also be an overlay of site formation plan showing the proposed layout of the development so as to ensure that the Tree Protection Zones (“TPZs”) should not be encroached upon or affected by the works. 223.This links back to the point I have already made above about what is indicated by a comparison between the relevant plans in this case, namely that at least 8 of 11 intended housing blocks of the Project, as well as the proposed transport interchange and special needs school, appear partly or completely to overlap with locations where potentially registrable OVTs now stand. 224.As to the materiality of this failure, it seems to me to have been significant in the context of the necessary impact assessment. It is not made less significant because there might be a tree management plan put in place later. If a proposed development of a building or buildings is in a location where there are OVTs, that may simply mean that development in that location is not possible – or at least, there must be recognition of the significant adverse environmental impact – likely to be regarded as unacceptable – which would be caused if the OVTs are removed to permit placement of built structures. 225.That is not to say that there should have been inserted into the EIA Report a blanket caveat on the alleged potential non-feasibility of the Project. Indeed, I accept that the final assessment of risk of adverse environmental impact may change if designs change. But I do not think that means the potential significant adverse environmental impact on potentially registrable OVTs can in effect be ignored until the “design stage”. 226.That significant adverse environmental impact does not seem, on the evidence, to be in any realistic way alleviated by the theoretical possibility of moving OVTs to a new location. These are matters which were not canvassed in the EIA Report. 227.Mr Yu chose to deal with the topic of OVTs first in the context of his argument on Ground 3, and his argument generally. This was apparently on the basis that the failure of the EIA Report in this regard is compelling, and is sufficient of itself to set aside the Decision. 228.I agree. 229.In conclusion, the failure to have identified potential OVTs meant that the EIA Report failed to comply with TM §§4.4.2(b) and (d), and hence 4.5.1 (b) and (c). H.4 Tree Survey and Compensation 230.This topic – which is in addition to the topic of OVTs above – brings into play connected matters relating to what the Club says is an inadequate tree survey, and the point about compensatory tree planting. 231.The connection arises because the adverse impact of removing a number of trees will need to be mitigated by planting other trees in compensation. The area required for compensatory tree planting will be determined by the number of those trees to be planted in compensation for the number removed. If, therefore, there is a miscalculation (undercounting) of the number of trees which will be removed, there will be a consequential miscalculation (undercounting) of the area needed for compensatory tree planting. There may also be a debate about the space required for each individual compensatory tree. Whilst the CEDD says the compensatory tree planting can fit within Sub-Areas 2 and 3, the Club says it would not fit in Sub-Areas 2 and 3 and would have to extend into Sub-Area 4. 232.But, before going into those details, it may be relevant to note that the landscape impact overall had already been assessed as “substantial adverse” before mitigation. That was the highest adverse impact significance possible, and I accept that the undercounting of trees would not itself have made a meaningful difference to that impact significance assessment. The issue currently in dispute addresses a different point – and focuses more on whether the impact significance of “acceptable with mitigation measures” was incorrectly reached or based (and perhaps should have been “unacceptable”, meaning that the adverse effects are too excessive and cannot be mitigated practically). 233.It is convenient to start with Appendix J to the SB, which Mr Pao emphasised had the “aim” to gain an insight to the future outlook of the area affected so as to assess whether the Project can fit into the surrounding setting. He said that provided context, and the requirement under Appendix J was therefore for a broad brush survey, and not one to the standard of an individual survey. 234.He also referred to Guidance Note No. 8/2010 ‘Preparation of Landscape and Visual Impact Assessment’ under the EIAO, and in particular paragraph 3.4(a) which states that baseline conditions are not static and may change over time according to the planning framework, and 3.4(d) which requires a broad brush tree/vegetation survey to be prepared as an integral part of the landscape baseline study, and unless specified elsewhere in the SB, a detailed tree survey is usually not necessary for the preparation of landscape impact assessment. 235.Hence, Mr Pao submitted that the information was provided in the EIA Report enables a reasonable assessment of whether the Project can fit into its surrounding setting, to meet the aim set out in Appendix J. 236.Reference can also be made to Appendix C to Circular 4/2020, which states that the TPRP (i.e. Tree Preservation and Removal Proposal) should contain all necessary information for assessing the impact of trees brought about by the implementation of the proposed development, and that fundamental information should be provided, including (amongst other things) a compensatory planting proposal prepared in accordance with the following (bold in original):
237.The footnotes to that section identified that: (1) sufficient growing space implies aerial space for tree canopy/crown, ground level space for root collar and main stem, as well as below ground space for tree root system, all commensurable to growing habit of the selected tree species; (2) the compensatory planting in terms of aggregated DBH for removed trees should take into consideration of the space required for the normal growth of the proposed species up to maturity, and avoid planting that would lead to over-congestion in the long run. 238.Further, Appendix C noted:
239.Some of the comments provided in response to ACE Members’ concerns expressed at the 8 August 2022 meeting were directed at the elaboration of the tree felling plan, and the possibility of minimising the number of trees to be felled through strategic design and layout plan for the residential housing units while considering the possibility that the total number of buildings could be reduced by extending the height and number of floors in each building. Many of the comments in response – which seems directed at trees in general – was under the heading ‘Further Effort to Preserve Existing Trees’ and stated:
240.It seems to me that these comments are perhaps the precursor to some of the Conditions as were subsequently attached to the approval given by the Decision. The ACE seemed to be seeking for elaboration, namely detail, by reference to the provision of the strategic design and layout plan. The comments, however, appeared simply to raise a number of possibilities, framed as generalities, without detail and without any strategic design and layout plan. Whilst I acknowledge that a subsequent design phase might be the time to provide precise design detail, I think the ACE was asking for sufficient detail at the EIA stage to be able to assess whether the proposed Project – and in this context in particular regarding the loss of trees – could be regarded as environmentally acceptable. 241.I note that the Executive Summary of the technical review of tree-related issues in ACE Paper 8/2023, compiled for and submitted by the Club, included the following:
242.There does not seem to be any real dispute as to the potential undercounting of trees. Indeed it seems to be accepted that around 300 trees of the adequate size were missed at the time – though there is some suggestion of the adoption of different standards, and that the counting occurred at different times (not that one would expect hundreds of trees suddenly to appear or disappear). Rather, the CEDD’s case is that that is the result of doing a broad brush counting exercise. But, as I have already canvassed above, that does not seem to me to be what factually occurred. Though there was a broad brush approach taken to the tree survey in Sub-Areas 2 to 4, an individual tree survey was in fact performed in Sub-Area 1. This is evident from the documents which say so, and from the plans which mark individual trees, and give numbers which are apparently not approximations or rounded. This is also consistent with the Consultancy Brief from the CEDD to the consultants which expressly required a comprehensive tree survey of all existing trees within the development area that are likely to be affected by construction works (so those in Sub-Area 1). 243.The tree survey plan of Sub-Area 1 shows individual trees by type. The EIA Report at §11.6.3.3 notes that among the 1,255 survey trees in Sub-Area 1, 70 TPIs were identified. Of them, 24 are mature trees with DBHs equal to or over 1000 mm, and 46 are rare/protected species. §11.6.3.7 notes that among the approximately 3090 existing trees in Sub-Areas 2 to 4 recorded in a broad-brush tree survey represented by 73 tree groups, 395 TPIs were recorded. Of them, 41 are mature trees with DBHs equal to or over 1000 mm and 18 are rare/protected species. §11.6.3.9 identifies that to compensate the loss of 996 trees (the specific number set out in a mitigation measure table), 996 compensatory trees are proposed to be planted in Sub-Areas 2 and 3 or other suitable location (with the exact numbers and locations to be subjected to further review and to be provided under the compensatory tree planting plan in later design stage). 244.In the part of the EIA Report dealing with compensation woodland planting, §9.8.3.1 recognises that, if taking a conservative approach, all the mixed woodland and woodland in Sub-Area 1 are assumed to be lost during construction phase at this stage for compensation planning. It suggests the actual loss, however, should be smaller when the layout is confirmed during the detailed design stage with the consideration of minimising direct impact to woodland habitats. 245.The EIA Report at §9.8.3.3 recognises the need to avoid large-scale planting works which might affect the hydrology for sensitive wetland habitats, such as in Sub-Area 4. It suggests a proposed location of woodland compensation of approximately 5.1 ha, larger than the woodland loss of 4.11 ha. Further, as tree felling will be required and compensatory trees are proposed to be planted in Sub-Area 3, that overlaps with the proposed location of woodland compensation. The exact sites for woodland compensation and compensatory planting would be subject to future site planning. 246.Mr Yu referred to a plan relating to the proposed 5.1 ha of woodland compensation depicted in the EIA Report. But, he submitted, what had been overlooked was that the 5.1 ha overlooks existing trees, and that compensatory tree planting cannot occur on areas which are already occupied by trees. Hence, to give a compensatory area of 5.1 ha, that would protrude down into Sub-Area 4. That is so, even if the tree counting in the EIA Report is correct. However, the problem is exacerbated if another 30% is added. In addition, he submitted that compliance with the technical circular to provide sufficient space for each compensatory tree would then require compensatory planting space of 6.88 ha. 247.Mr Pao’s submission in response was that, irrespective of the correctness of the tree numbers, there simply will be no compensatory tree planting in Sub-Area 4. The CEDD’s position is that it has adopted a very conservative approach towards the calculation of the compensatory planting, but even if part of the compensation cannot be placed within Sub-Areas 2 and 3, consideration can be given to off-site planting to avoid any encroachment on Sub-Area 4. In the hierarchy of mitigation measures, that is a measure which is slightly lower than on-site compensatory planting, but a reserve option. 248.Further, Mr Pao submitted that, in terms of the assessment for the CSC, whether talking about an extra or fewer hundred trees or so, the level of what is required for the maintenance of those trees is so relatively small that the source of water from the reclaimed water treatment plant is more than sufficient to take care of any additional need. 249.During argument, Mr Pao also handed up a calculation on tree compensation. A preliminary point identified that the “current” intention is to retain the 0.39 ha of woodland containing 186 trees, so that the “additional” number of alleged missing trees to be compensated for should be 118, not 304. By deducting the alleged overlapping area with existing woodland (0.88 ha) from the proposed area for compensation (5.1 ha) the compensatory area needed would be 4.22 ha. That can be compared to the existing area of either 4.11 ha or 3.72 ha (i.e. with or without the 0.39 ha). The land required for tree compensation on a 1:1 by number ratio at 4 m² spacing would be either 1.59 ha (on the EIA tree count of 996), 2.08 ha (on the Club’s tree count of 1300), or 1.78 ha (using the Club’s count but taking into account the retention of 0.39 ha containing 186 trees). On that basis, Mr Pao submitted there is more than enough space for compensatory planting, without encroaching on Sub-Area 4. 250.Mr Pao also pointed out that, on the assumptions behind the Club’s claimed compensatory area using Mr Duggie’s assumptions, 6.88 ha is 1.7 times the current land on which the trees to be replaced now stand. That also relies on the suggestion that 4,300 trees will be needed to replace either the 996 trees, or any number between 996 and 1,300. Mr Pao said that Mr Duggie’s assumptions, though clever, are simply mathematically incorrect by reference to the proper principles. 251.But, the answer to this point seems to me that, though it is far preferable to have compensatory planting on-site, it remains a mitigation option to have compensatory planting at least partially off-site. If, as seems the clear statement on behalf of the CEDD, there will simply not be any compensatory planting on Sub-Area 4 under any circumstances, that would deal with the particular concern about sufficiency of the area for compensatory planting. 252.There is also a separate question arising out of a potential failure in the EIA Report to have taken into account the fact of the location at which at least 116 trees are located in Sub-Area 1. By reference to a “Technical Study on Partial Development of Fanling Golf Course” – a planning report for preparing the OZP – it can be seen that site formation levels are proposed from approximately +14.0mPD to +19.0mPD, dipping from south to north, which would require trimming of existing ground. Using the evidence of Mr Duggie, Mr Yu submitted that it would be impossible to retain the 116 trees because the CEDD’s site formation proposes to remove the hill upon which they sit. 253.In the ‘Technical Review of Landscape Impact Assessment’ provided by the Club’s consultant URBIS Ltd, amongst the points made are that (1) there is no evidence presented to support retention of 11 TPIs (i.e. trees of particular interest) in Sub-Area 1, and (2) there is no evidence presented to support proposed retention of hillock containing approximately 100 trees in the centre of Sub-Area 1. 254.The former point criticises the lack of spot levels to indicate ground levels at or around any survey trees; the absence of evidence relating to the relationship between the proposed formation levels and the existing ground levels of the proposed retained trees; the absence of discussion on how level differences would be resolved in ways which have dramatically different impacts on existing topography entries; the absence of any three-dimensional analysis; and the absence of identification of any ‘Tree Protection Areas’ on any plan to protect the trees during the site formation contracts and building construction contracts, which would be essential for any proposed tree preservation. 255.But Mr Tang Ming Chak, in evidence for the CEDD, addressed the feasibility of retaining the 11 large TPIs, and attached a table provided to him by WSP. The 11 TPIs were the matter addressed when Mr Duggie first raised the complaint in his affidavit, and are dispersed across Sub-Area 1, and not just where the 116-tree cluster is located. The WSP table compares the ground level of the trees (as shown by contour lines of the base map of the tree survey plan) with the proposed formation levels of the proposed housing development. It shows the approximate level difference between the ground-level and existing tree in the future housing development of between -1.3 m and +3 m. Mr Tang suggested that, given the relatively small level difference, there would not be any significant issue in enclosing the trees within tree islands or tree wells to accommodate the level difference, or to construct any remaining structure (if needed) for the tree islands or tree wells. He also pointed to previous examples of the use of a tree island in other projects to accommodate an even larger level difference. 256.It was Mr Duggie’s response to that matter which raised the latter point about the removal of the hillock, which is explained in the technical review as follows:
257.In response to that particular evidence, Mr Lau for the CEDD suggested in his evidence that there had been a misunderstanding as to the relevant hills. He said there were two hills in the vicinity, one in the southern side and one near the northern side, and it is only the southern side which would be removed, whereas the northern hill on which the tree cluster sits would not be removed. This was the evidence relied upon by Mr Pao in his submissions – subject to his primary point, to which I shall return. 258.In reply to that evidence, Mr Duggie suggested there are not really separate hills, but two hillcrests, both covered in trees, separated by a saddle (containing the fairway of the second hole), in an area of continuous higher ground in the south-west of Sub-Area 1. By reference to the spot heights in the tree survey plans in the EIA Report, the southern hillock crests at approximately 30mPD, the Northern hillock at approximately 28mPD, with the saddle dipping to a low point of approximately 24mPD. Mr Duggie explained that there are no cross-sections provided to explain the feasibility of the tree retention proposals in the EIA Report. But given the site formation platform is +18mPD , any proposed retention of the tree cluster on the hill would necessitate building a retaining wall along the northern facade of the nearest planned block, that would be about 90 m long rising to approximately 15 m high at the midpoint. Yet there is no such proposal included in the EIA Report or in the Planning Report. 259.Mr Duggie also pointed out that the Club has consistently identified this issue since its statutory submission made in June 2022. On that basis, whilst I have some sympathy with Mr Pao’s primary submission that this point should not be allowed to be run because it is not identified in the Form 86, and its Annex 2 particularising Ground 3, what might be called ‘the three-dimensional point’ is not an entirely new point and it has been addressed in the evidence, and Mr Pao was able to address it from the Bar table by reference to some of the materials in the bundle. Therefore, though not without some regret, I do not think it would be right to accept Mr Pao’s invitation not to address the point at all. 260.Of course, Mr Lau has also suggested in his evidence that the sort of information required by Mr Duggie, such as formation levels, ground levels of existing trees and TPZs of individual trees, is not required at the EIA Report stage, and that a TPRP (addressing those issues) is only required to be submitted at the Design Stage. However, first, it seems to me to be obvious that some consideration should be given to the relationship between the existing levels where trees are located and proposed formation levels if they differ. Secondly, where existing and proposed levels differ, there should be some explanation as to how the change in topography would or would not impact the trees proposed to be retained, and how any impact might be mitigated. Thirdly, this approach is at least implicit from the Consultancy Brief for the EIA between the CEDD and WSP, the consultants performing the EIA. Therefore, I accept the point that if matters are not looked at on a proper three-dimensional spatial basis, the EIA Report would not sufficiently investigate, analyse and predict the true consequences of the design intent, and conclusions may be advanced on what turns out to be a false premise. 261.Mr Pao was able to make the following submissions on the basis of the materials already in the bundle. He pointed to the intention to build a car park block up to a height of +32mPD, meaning that there would be car park floors above ground. Therefore, obviously if the car park block is of that height, it is higher than the 27.5m or 28m of the adjacent cluster of trees, so that the car park block can serve as a support or retaining wall for the hillock on which the relevant cluster of trees stands. 262.I accept that Mr Pao was doing his best to deal with this point on instructions, and the above explanation may or may not be correct. However, it remains the case that the three-dimensional issues were bound to arise for a project where significant changes were envisaged from existing levels to the proposed site formation levels. These particular matters ought to have been, but were not addressed in the EIA Report. 263.Mr Pao also made reference to Appendix C to Circular 4/2020 (which I have set out above), and submitted – echoing Mr Lau’s evidence – that the necessary detail of matters relating to site formation and tree preservation would be dealt with at the design stage of the project, not at the feasibility or the EIA stage of the project. 264.However, when it came to the Additional Information requested, there obviously remained concerns as to trees and tree compensation. One of the requests related to the tree compensation plan, where the ACE wanted details of planting numbers with a compensation ratio of at least 1:1.5. This was obviously because the ACE did not think this was a matter which could be left in abeyance until the design stage. I agree. The Additional Information when it came was summarised as follows:
265.Obviously, the last sentence recognized the relevant potential connection between water demand, tree compensation and hydrological impact. As to the other matters, they do not seem really to answer the 1:1 plus DBH question, but address a slightly re-formulated question. Indeed, at its meeting on 3 May 2023, the ACE’s concluding comment as regards tree compensation plan was summarised in its letter dated 10 May 2023 to the CEDD as being that the ACE considered that a detailed Tree Management Plan should be put in place to set out the arrangement for tree compensation and maintenance. 266.Ultimately, on the tree counting and survey, and on compensation planting, I accept that there was a failure to comply with the SB §3.4.1 (requiring use of the best and latest information), and the SB Appendix J §2 (requiring description, appraisal, analysis and evaluating the existing and planned landscape resources and landscape character). There seems to me also to have been a breach of TM §4.4.2(k) (requiring an assessment of the feasibility, practicality, programming and effectiveness of the recommended mitigation measures), and §4.5.1(c) (addressing relevant environmental issues raised by the public and the ACE). H.5 Hydrology and Chinese Swamp Cyprus 267.These two matters have been addressed together. I can deal with them at some length, because they are to an extent emblematic of the disputes in this case. 268.A collection of CSC are located at the Swampy Woodland near Hole 7 of the Old Course. This is in Sub-Area 4 of the Site. At least 29 of the CSC have been independently estimated to be over 100 years old, and the oldest is considered to be 214 years old. The variation in size and estimated age indicate that these CSC were not planted. 269.The CSC is a tree species that requires a specialised habitat and which is highly sensitive to hydrological change. The CSC is also listed as ‘critically endangered’ by the International Union for the Conservation of Nature (“IUCN”). Strikingly, the CSC population on 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. It is obviously a population deserving the highest protection status. 270.In summary, the CSC are both highly precious, in ecological terms, and extremely hydrologically sensitive. I think it is fair to note that the conservation importance of the CSC has all along been common ground, and was itself highlighted in the EIA Report. Indeed, the conservation importance of the CSC was probably the main driver for limiting the development to Sub-Area 1 (though that, of course, does not necessarily mean that there would be no impact from the Project on the CSC in Sub-Area 4). Mr Pao sought to emphasise in his submissions what he described as the “significant buffer” of the distance between Sub-Areas 1 and 4, being about 1.1km. 271.I have referred above to Appendix H to the SB, which sets out the requirements for Ecological Impact Assessment (Terrestrial and Aquatic). There was an express requirement (amongst other things) for the assessment to identify and quantify as far as possible the potential ecological impacts associated with the Project, both directly by loss of habitat, and indirectly by potential impact such as human disturbance and/or change of water quality and/or hydrodynamic regime to natural environment. 272.The core dispute between the Club and the CEDD is whether the EIA Report met the requirements of Appendix H. 273.On this topic, it can be noted that one of the “major tasks” required of the assessment was:
274.Hence, the SB required an ecological impact assessment which identified and quantified so far as possible both direct and indirect impacts, including (materially for present purposes) hydrological impact and potential hydrological disruption. On that basis, Mr Yu submitted that once the CSC had been identified as hydrologically sensitive, it was obviously necessary to understand the hydrology regarding the habitat on which the CSC stand is found, and whether the Project as a whole – not just the proposed building upon Sub-Area 1, but also the proposed substantial compensatory planting on Sub-Areas 2 and 3 – might impact the hydrology of Sub-Area 4. 275.The EIA Report then produced recognises at §9.7.2.23 that hydrological disruption as a result of changes to surface water flow or impacts on the underground water table could impact surrounding water bodies and other habitats. Most habitats which are considered to be potentially sensitive to hydrological disruption are primarily wetlands, including the wetland habitats within the Project Site such as pond, marsh and swampy woodland. It also recognised that, in practice, hydrological disruption to wetland habitats is likely to be of much greater significance ecologically. 276.But §§9.7.2.24 and 9.7.2.25 stated (bold in original):
277.Mr Yu submitted that the thinking behind those paragraphs was simply an assertion that the impacts were not expected because there would be no building in Sub-Area 4 and the compensatory planting would be restricted to Sub-areas 2 and 3. But, he said, hydrology is obviously not just concerned with surface water, but also with underground water. 278.What was said earlier in the EIA Report is what apparently led to the conclusion expressed in §9.12.1.2, which states:
279.There seems to me to be some force in Mr Yu’s submission that the offered conclusion is really simply an assertion, without analysis or assessment. 280.Mr Paul Leader, an ecologist giving expert evidence for the Club, referred in his evidence to §§9.8.3.3 and 9.8.3.4 of the EIA Report, which recognised that large-scale compensatory planting works might affect the hydrology for the sensitive wetland habitats in Sub-Area 4, so that it is recommended the location for woodland compensation should avoid that period to preserve the hydrology that supports the wetland habitats. It also suggested a woodland compensation plan and tree compensation plan with the consideration of impacts to wetland hydrology in Sub-Area 4 will be submitted. Hence, Mr Leader described as “cavalier” that the authors of the EIA Report recognised that the compensatory tree planting does in fact pose a risk to hydrology of the swampy woodland, but then proceeded on the untested and unexamined assumption that avoiding planting within Sub-Area 4 should avoid affecting the hydrology of that area. 281.Mr Pao made reference to a slightly earlier paragraph, §9.11.1.3, which stated that a monitoring programme should be included in the management plan to evaluate the effectiveness of the management strategies; an ecological baseline information including habitat conditions including the swampy woodland and the conditions of the floral and faunal species of conservation importance shall be updated prior to the operation of Sub-Areas 2 to 4; and during that operation, regular monitoring of the ecological conditions as well as the conditions of the species of conservation importance shall also be monitored. 282.But, it seems to me that a statement that matters would continue to be monitored to evaluate the effectiveness of management strategies does not compensate for or provide any missing analysis and assessment, as would actually be necessary in order to devise the appropriate strategy. 283.In any event, these were also matters of obvious concern to the ACE, which debated at some length issues relating to the sensitivity of the CSC and the impact of hydrology. 284.The minutes of the EIA subcommittee on 18 July 2022 record the Chairperson and members seeking supporting data on the hydrology impact of the development and feasibility of retaining some 200 trees in the area, expressing concern about the possible adverse hydrology impact which might threaten the survival of retained trees, the requirement that the soil and hydrology impact of the housing development in Sub-Area 1 should be carefully assessed. In the internal discussions, the Chairperson suggested that the CEDD should provide concrete data on the hydrology of the site including the water sources, water volume, species in the habitats as well as the anticipated hydrological impact on Sub-Areas 2 to 4 in both dry and wet seasons to illustrate the feasibility of retaining the large number of trees in the area. 285.In a document relating to the ACE’s seeking additional information on issues of concern in July 2022, a specific request was made for the provision of justifications for the methodologies, coverage and frequency of the ecological surveys conducted, including flora and fauna. As regards hydrology and hydrological impact, elaboration was sought of the hydrological impact on the CSC and woodland habitats, with consideration of tree plantation mitigation measures, and available water sources in both wet and dry seasons in sensitive areas. 286.The comments in response included that:
287.To facilitate the ACE’s further deliberation, the Project Proponent was requested to provide additional information in writing on certain issues with reference to the comments provided by Members at the meeting on 8 August 2022. The additional information was sought by reference to ecological impact, which led to comments relating to a habitat management plan (with targets, design and management methods, daily management, and monitoring). The habitat monitoring was said to include but was not limited to hydrological conditions and in particular at swampy woodland; coverage, number and health of CSC and seedlings if any; vegetation diversity, conditions of the habitats, and fauna usage of the habitats. 288.There was also a request to provide hydrology impact assessment and mitigation measures to demonstrate the feasibility of the proposed layout of the building blocks for the 12,000 residential units. Mr Pao has emphasised one aspect of the answer , which stated:
289.The DEP clearly agreed that further information in this regard was required for him to decide whether to approve the EIA Report. One of the aspects of the additional information pursued related specifically to seeking:
290.In the Additional Information, which was supposed to address the request initiated by the ACE for that “detailed analysis”, a HydroIA was performed for the first time, following the engagement of Professor Ting Fong May Chui. The analysis consisted of the following sections:
291.As these points identify, the focus was mainly on surface water flow, and the sources of groundwater. That was confirmed by Professor Chui in her affirmation filed for these proceedings, where she acknowledged that the scope of the HydroIA she was asked to perform was limited. She stated:
292.Mr Yu submitted that that failed to answer the actual question posed in the request for additional information, which was not limited to surface water. I agree that the limited approach did not obviously provide the required detailed analysis of the hydrological impact to show the flow of water, including available information on the profile of soil and bedrock conditions. 293.I also note that the HydroIA proceeds on the stated assumption of an isotropic and homogeneous aquifer. But, elsewhere in the assessment, it is identified that the soil texture and saturated hydraulic conductivity varied considerably at different locations, indicating significant variations in the physical properties of the soil – in other words, it was not homogeneous. That suggests, and the Club’s hydrological and civil engineering consultant expert Ms Gillian Castka says, it is not possible actually to predict the direction of groundwater flow to be in accordance with the surface flow. 294.One part of the materials provided by the Club in response to the Additional Information was the report of Professor Jiu Jimmy Jiao, on the potential impact of the Project on groundwater flow system. The professor says that his project covered (including other matters): building a three-dimensional hydrogeological model to simulate the groundwater flow before the housing development in Sub-Area 1 and calibrate the model by collected water level data; predict the water level change in East FGC after the construction of buildings in Sub-Area 1; and predict the future water level change in East FGC after the construction of buildings in Sub-Area 1 and the compensatory tree planting in East FGC. 295.The Conclusion and Comments sections can be set out at some length and state:
296.Mr Yu took me to this report, not on the basis that he was asking the Court to deal with the merits of the debate, but in particular to identify that there was a professional viewpoint put forward by the Club, but ignored by the DEP. Professor Jiao’s report has been criticised by Professor Chui in the evidence, but Mr Yu’s submission was that the material would, and should, have contributed to the decision-making because the Director would have seen the stated prima facie deficiency in the study undertaken by the Project Proponent in the HydroIA. 297.Ms Castka also identifies that the relationship between the layout and the impact on the groundwater regime is not a simple linear one, and points to the fact that there is a failure in the HydroIA to have recognised that the rock head in the area dips from west to east, not simply following the perhaps surface topology from south to north. Hence, the CEDD’s conclusion or assertion that the housing development of Sub-Area 1 will not affect the hydrology of Sub-Area 4, because the HydroIA are shown at the groundwater of Sub-Area 1 flows from the north side, away from Sub-Areas 2 to 4, is factually incorrect and may be misleading. 298.Ms Castka says that the HydroIA has taken an over-simplistic approach to assessing the hydrodynamic groundwater system, not least in the context that (as explained by the General Manager of the Club) there is no direct water supply to the Old Course. Instead, the FGC is watered with recycled treated water from Shek Wu Hui Sewage Treatment Works, which is piped directly to a storage tank located near the Clubhouse for secondary treatment by the Club. The Club’s water supply system was installed and is owned by the Club, and the entire underground irrigation system on Holes 1-8 of the Old Course is directly connected to that supply system, and is the only practical source for irrigation in that location. 299.Ms Castka also suggests that there has been a breach of §3.4.5.2 of the SB, which deals with the assessment area for water quality impact assessment – though it seems to me that paragraph and its internal reference Annexes 6 and 14 of the TM, whilst referring to hydrology, in fact focus on water quality and water pollution. 300.Ms Castka states that the Club’s submissions in relation to the EIA Report have identified a number of features of the Project that have the propensity to alter the groundwater table to a significant extent, thus threatening the hydrology of the swampy woodland in Sub-Area 4. These include, among other things: (a) the cessation of watering and water management activities previously carried out by the Club on a stable basis for many decades; (b) excavation and earthmoving for building formation and foundations; (c) laying building foundations and piling; (d) felling a large number of trees and planting other trees in new locations; and (e) adopting new watering arrangements for compensatory tree planting. Even after reading the evidence filed by the DEP and CEDD in these proceedings, Ms Castka remains of the view that the Project gives rise to a serious risk of affecting the hydrological conditions of the CSC, and hence to the health and well-being of the CSC. Her key point seems to me to be that the hydrogeology in the swampy woodland area where the CSC are found, and its soil profile, are something of an anomaly, which could provide the explanation for the further anomaly that there are CSC trees thriving and reproducing in that location. She says the unusual hydrogeological features of that location remain unstudied, and so the interaction between the clay layer, the hydrology of the swampy woodland, and the vitality of the CSC stand is not known despite ACE/DEP’s request for an assessment of hydrological impact including available information on the profile of soil and bedrock conditions. 301.Ms Castka also points out that, as a result, certain assumptions made by Professor Chui, on which her comments about groundwater flow are based, are invalid – itself also invalidating the untested assumption by the CEDD that the compensatory tree planting planned for Sub-Areas 2 and 3, and attendant watering activities, will have no impact on the hydrology of the swampy woodland in Sub-Area 4. As Ms Castka puts it, the dismissive conclusion in the HydroIA that the Project will have no significant impact on the groundwater equilibrium is unscientific and cannot be sustained on the limited studies conducted and evidence presented in the HydroIA. 302.In addition to the distance between Sub-Areas 1 and 4, Mr Pao emphasised in his submissions the two water catchment areas for the swampy woodland, from which run-off is discharged into the swampy woodland. As is set out in the Additional Information, because those catchment areas are not within the PDA and Sub-Area 4 is proposed to be preserved, it is expected that the swampy Woodland would not be affected. Further, as set out in §7.3.9 of the Additional Information (HydroIA), the compensatory tree planting in Sub-Area 3 will not influence the surface water flow conditions and will not reduce the inflow volume of the swampy woodland in Sub-Area 4. 303.Mr Pao also drew attention to the evidence of Professor Chui, where she summarised the conclusions reached in the HydroIA as being:
304.Emphasising §35.4, Mr Pao also pointed to §7.6.7 of the HydroIA, which concluded that the extra planting area is expected to have less plant water requirement compared to that required by the existing grasses. 305.Mr Pao further referred to one of the other earlier answers provided in response to the ACE’s request for information on 18 July 2022, which referred to a Habitat Management Plan for Sub-Areas 2 to 4. So far as may be material for present purposes, the answer included the following (extracts only):
306.Having identified the above, Mr Pao submitted that the Court need not debate or evaluate who is or might be better at managing the Old Course. I accept that point. Indeed, if they want, people can form their own view as to whether better management would be provided by the Club (which has been the steward or guardian of the Old Course for over a century) or by the LCSD. However, with respect, and acknowledging it is an outline, the language of the above answer, though perhaps infused with general statements of management intent, is almost entirely devoid of any actual substance. I am not alone in forming that view, because (as I have already traversed above) the ACE continued to press for more information, and the ACE and the DEP eventually required the “detailed analysis” relating to matters of hydrology. 307.Mr Pao referred to the consequent HydroIA provided as part of the Additional Information, and submitted that Professor Chui did in fact perform the groundwater flow analysis she was asked to perform, which was detailed and modelled. Further, §7.4.1 identified analysis of the groundwater flow direction of the PDA to study the potential impact of the Project on the groundwater sources of the PDA, particularly around Sub-Area 4 – using bore holes to permit measurements by piezometers and standpipes. Using the information collected, inferences were made as to the conditions of the aquifer. Mr Pao submitted that the HydroIA therefore did involve a quantitative analysis, ultimately identifying that the ground water flow trend would be away from Sub-Area 4 to Sub-Area 1. 308.But I have already mentioned that the underlying assumption of isotropic and homogeneous unconfined aquifer may not be well-placed. 309.By reference to the opinion from Professor Jiao, Mr Pao submitted that having considered his report, and given the detailed studies that were conducted at the Additional Information stage, there is still no evidence to run contrary to the EIA Report’s “prediction and evaluation … that there would be no adverse impact”. 310.He further submitted that, whilst the SB at Appendix H had a general requirement to use suitable methodologies to identify and quantify as far as possible, there is no specific or explicit requirement for the quantitative assessment suggested by the Club to be undertaken with respect to groundwater flow. As he put it, the words “quantify as far as possible” do not identify a requirement to adopt an absolute standard, and necessarily embrace the existence of limitations to the process of quantification. 311.This seems to me to be where the applicability of the precautionary principle comes into play in this context, and I think the following points can be made. In the absence of an appropriate qualitative and then quantitative analysis about the hydrology, it may not even be possible to assess the level of risk to the CSC. But, in any event, there is little uncertainty in terms of the gravity or seriousness of that risk were it to eventuate. That risk is potentially catastrophic to a critically endangered species, where the CSC stand in Sub-Area 4 comprises about 15% of the world population, and possibly the only reproducing population in the wild. Put in ordinary language, those circumstances clearly mandate a necessarily high degree of caution to be taken. 312.The TM provided scope for an EIA to be undertaken in a practical manner to identify and assess site-specific issues, and the SB identified the requirement for a detailed hydrological assessment. I also accept that, once the endangered nature and sensitivity of the CSC to hydrological change was identified, a more detailed quantitative study was required to assess quantifiable hydrological changes. Whether or not this was required in accordance with the precautionary principle, and I think it was, the detailed assessment was in any event required as a result of ACE/DEP’s request for one. 313.I am of the view that there was a failure to comply with this requirement. I find that there was a breach of the SB Appendix H §2(vii)(a) and (c) and the TM §§4.4.1, 4.4.2(d), 4.5.1(b), (c) and (d) and 4.4.3(a)(x), relating to the precautionary principle. 314.I acknowledge that an assessment was provided in the Additional Information. But, the debate engaged in above (as a result of the reams of evidence filed in these proceedings) only emphasises the original breach and the failure to have provided a proper assessment in the EIA Report itself. 315.This point is also relevant to Ground 1. It is further relevant to Ground 4 (see below), and Condition (a) to the Decision, which relates to changing the layout to minimise the number of trees to be felled, where no consideration of the impacts on hydrogeology are mentioned. Whilst the CEDD suggests that the reduction in the proposed compensatory woodland would likely result in a net decrease in the water demand if trees are planted in lieu of the present turf grass, Ms Castka says that is another gross and unfounded assumption about the relationship between the surface water and groundwater regime. Where the DEP is suggesting that the revised layout would alter building heights, and hence loads to the ground, that would presumably impact the foundation locations and dimensions down to the varying rock head levels, and the volume of voids replaced by concrete piled foundations will also vary depending on the revised site layout plan. 316.There is force in the point that, essentially, changes in hydrodynamic properties and hydrology as required by the SB cannot be accurately assessed until the final layout including foundation design and compensatory planting are confirmed. I also accept that the implementation of a “spongy city” concept is not the kind of detail that can be left to be sorted out at a later date with sufficient confidence that it would not affect the hydrology. H.6 Cultural Heritage 317.This is a point which may have relevance to all projects falling under the EIAO. But it falls to be decided on the terms of the documents in this case. 318.The TM at §1.3.1 includes as an interpretation provision that where the EIAO defines a term, that term applies. That provision is at the core of the argument advanced for the CEDD and the DEP. It can be noted that the provision does not say that where the EIAO defines a term, that term applies “unless the context otherwise requires”. Hence, the DEP/CEDD position is that the meaning of a term defined in the EIAO is its unequivocal meaning for the purposes of the TM. There is obvious force in that as a starting submission. 319.Relevantly for this topic, the definitions within Schedule 1 of the EIAO include the following:
320.On the face of the definition of “environmental impact”, the impact means (amongst other things) at least the effect of the change on physical and cultural heritage, as well as a structure, site or other thing that is of historical significance. There is no apparent limiting or narrowing of those matters to things which have already been designated or declared a monument under the Antiquities and Monuments Ordinance Cap 53 (“A&MO”). But the definition of “site of cultural heritage” is limited to such a declared monument. It is those differences which frame the contest between the parties in this case. 321.The Government has a Heritage Conservation Policy, which can be found in Legislative Council Brief DEVB(CR)(W) 1-55/68/01. The following policy statement was identified as one to be adopted to guide heritage conservation work:
322.The reference to “historical and heritage sites and buildings” does not appear to limit the policy to those buildings which have already been declared a monument, and it would be surprising if that limit were intended. 323.In the same policy document, there is a section headed ‘Making use of the EIAO’, which states as follows:
324.These paragraphs do seem to say that at least the EIAO definition of “sites of cultural heritage” is really intended to be limited to declared monuments. 325.The AMO’s Guidelines for Cultural Heritage Impact Assessment (as at 4 May 2020) include the following (bold and underline in original):
326.Those matters referred to in §1.1(vi) and (vii) extend the baseline study assessment beyond declared monuments, to other places or buildings or structures which are of cultural and historical heritage importance. The Old Course fits in to that description. 327.The approach in §2.1.4 is taken into the EIA Report at §12.3.2.11. Obviously, building a residential complex and carrying out compensatory tree planting on a significant proportion of the Old Course could never be described as of ‘Beneficial Impact’, ‘Acceptable Impact’ or unlikely even ‘Acceptable Impact with Mitigation Measures’ in accordance with their definitions. Hence, the present focus is on the distinction between ‘Unacceptable Impact’ and ‘Undetermined Impact’. 328.If starting from the general before dealing with the particular – or if moving from ‘macro to micro’, as one keen golfer and former judge liked to say – it is appropriate to look at the TM before turning to the SB. 329.The criteria for evaluating impact on sites of cultural heritage – set out at §2.1 of TM Annex 10 – was expressly to include:
330.Further, TM Annex 19 at §2.1 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. §2.2 states that:
331.Paragraph (a) is not limited to “sites of cultural heritage”, though paragraph (b) apparently is. However, it might be asked why it is a requirement to compile the comprehensive inventory under the former, if it is only necessary to identify possible threats to “sites of cultural heritage” in the EIAO defined sense in the latter. 332.The Methodology at §2.3 suggests assembling the best information with an entry point of the AMO, public libraries and archives and tertiary institutions, with a view to an assessment which shall provide detailed geographical, historical, archaeological, ethnographical and other cultural data. The methodology at §2.5 says that, in cases where the above sources of information prove to be inadequate or where the proposed project area has not been adequately studied before, field surveys and site investigations shall also be conducted as necessary to assemble the necessary data. 333.As to Impact Assessment, §§2.6 and 2.7 identify that preservation in totality will be a beneficial impact and will enhance the cultural and socio-economic or environment if suitable measures to integrate the sites of cultural heritage into the proposed project are carried out. If, due to site constraints and other factors, only preservation in part is possible, this must be fully justified with alternative proposals or layout designs which confirm the impracticability of total preservation. Annex 19 at §2.8 also makes clear that:
334.I note that the interest of preserving the “archaeological, historical, architectural and other cultural values” echoes the phrasing used in §2.2(a), rather than the narrower EIAO defined sense of “sites of cultural heritage” apparently used in §2.2(b), 335.Indeed, there is some force in Mr Yu’s submission that it is difficult to reconcile these provisions with the suggestion that Annex 19 is only concerned with or limited to assessment of the impact on declared monuments. It would be thought that if a site has been declared a monument, it must have been investigated, and information and necessary data about it would be available, and the identified methodology and impact assessment provisions would be largely otiose. But Mr Pao suggested that, this not being a box-ticking exercise, an EIA report should provide detailed geographical and historical background relating to a monument, so as to enable a fuller assessment. Mr Yuen submitted that how Annex 19 is construed is just one of the factors as to how the overall context should be considered, including that the draughtsman of the TM did not insert any explanation if he intended a meaning different from the statutory meaning for the phrase “site of cultural heritage”. 336.Annex 19 at §2.9 requires assessment of impacts on sites of cultural heritage also to take full account of, and follow where appropriate, the Guidelines for Landscape and Visual Impact Assessment at Annex 18. It can be noted that Annex 18 at §4.1 requires a baseline study to cover at least human aspects such as cultural features, landscape history, buildings and settlements, people affected and their perception of the landscape’s character. §4.2 requires the baseline study to present an appraisal of the landscape and visual resource of the study area, which must focus particularly on the sensitivity of the landscape and visual system and its ability to accommodate change. 337.In the Project Profile for this particular Project, it was noted that a cultural heritage impact assessment (“CHIA”) would be carried out under the EIA study. It was stated that impacts on cultural heritage sites would be avoided as far as practicable, by amending the layout plan to allow preservation of the heritage resources in-situ. If unavoidable, mitigation measures to the direct and indirect impact on built heritage resources would be implemented. 338.The SB included at §2.1(vi), as one of the objectives of the EIA study, to identify any negative impacts on sites of cultural heritage and to propose measures to mitigate these impacts. 339.But, §3.2.1(xi) of the SB identified the requirement of the study to address the “key issue” of:
340.Those listed items (which are not an exhaustive list) are clearly not confined to declared monuments. In fact, none of them is a declared monument. But, as identified above, the question still arises on this application as to whether matters of heritage impact assessment are confined to declared monuments. 341.Incidentally, the SB at §3.2.1 also identified the requirement for the study to address any other key issues identified during the course of the study. 342.Further, §3.4.12.1 required the criteria and guidelines for evaluating and assessing the cultural heritage impacts as stated in §2 of Annex 10 and §2 of Annex 19 of the TM respectively to be followed, and §3.4.12.2 requires the cultural heritage impact assessment to “include” a Built Heritage Impact Assessment (“BHIA”) and an Archaeological Impact Assessment (“AIA”) for the construction and operation of the Project. Whilst no attention is drawn to other potential cultural heritage impacts, and that paragraph does focus on the BHIA and AIA, I think the word “include” is again non-exhaustive. 343.Mr Pao submitted that accepting Mr Yu’s arguments would be tantamount to accepting that any kind of building which someone believes has some cultural or historical value would fall within, and would enjoy the same stringent protection as specified, under Annex 10 and Annex 19 as is offered to “sites of cultural heritage” as defined in the statute (i.e. to declared monuments). That, Mr Pao said, cannot have been the intention. Whilst it is recognised that the SB does not limit or qualify the assessment of cultural heritage to sites of cultural heritage only, nevertheless the stringent protections in Annex 10 and Annex 19 are reserved only for the sites of cultural heritage as statutorily defined. That is a matter of policy, and though different persons may have different views as to the correctness of the policy, that is not a topic with which the Court should interfere. 344.But, even if the stringent protections in Annex 10 and Annex 19 are reserved only for “sites of cultural heritage”, that surely cannot mean that other sites of cultural and historical value can in effect be ignored in the EIA process. Indeed, Mr Pao was constrained to accept that the phrase “cultural heritage impacts” found in the SB at §3.2.1(xi) is being used in the general sense, i.e. the non-statutory definition sense, because the matters there set out are not monuments (though they may be or become graded by the Antiquities Advisory Board (“AAB”)). 345.The EIA Report at §12.4.2.1 noted that there were no historical villages within the project development area, but that the FGC was itself first constructed in the early 20th century, and so was over 100 years old and should be considered a heritage place in itself. It further recognised at §12.4.2.2 that the Old Course is the oldest surviving golf course in Hong Kong, and its heritage value is to be appraised and graded, if appropriate, confirmed by the AAB. At §12.5.5.1, it was noted that the FGC to be graded by AAB may impact directly and adversely on holes 1 to 3 which are integral parts of the 18-hole Old Course, though the impact is subject to further assessment pending to the grading of the golf course conducted by AAB and that mitigation measures, where necessary, will be proposed to AMO for agreement. 346.The EIA Report specifically noted the following, at §12.4.2.7 (references omitted):
347.The EIA Report also noted that the Old Course: (1) has a design which still includes elements no longer used in contemporary golf course design, including blind shots over fairways; (2) is deemed one of the finest and most scenic golf courses in Asia; and (3) has been the site for numerous professional championship events. 348.The EIA Report at §12.5.1.3 considered built heritage impact assessment, and added the FGC as a ‘new item’, on the basis that the golf course and Old Course in particular was constructed by 1911 as an 18-hole golf course, and had “thus an ongoing authentic history and use as a golf course for over 100 years”. 349.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):
350.The Club criticises the conclusion that there is an “undetermined impact” as having patently failed to comply with the SB and the TM, so being wrong in law, and that it was in any event manifestly irrational for the DEP to have accepted that conclusion. 351.In my Stay Decision, I noted that where the Old Course as a whole is recognised to be of important cultural heritage, there was at least a strong argument to say that building residential property on part of the Old Course will not have an “undetermined impact”, as the impact is readily determined. It seems to me that there is no “may” about the adverse impact. The impact is that several holes would be lost and the integrity of the Old Course as a whole would be lost. 352.But focusing on the statutory definition of “site of cultural heritage”, Mr Pao (supported by Mr Yuen) submitted that the possibility that the Old Course would be graded by the AAB, which was uncertain, would obviously have a potential impact on the non-statutory protection that graded sites would receive. Therefore, appropriate attention was drawn to the fact that if the Old Course is recognised as a heritage site, direct impact is expected, but the extent of it or mitigation cannot yet be determined. 353.If the approach is limited to “site of cultural heritage” as defined in the EIAO, with that definition taken into the TM, then it might be correct to recognise that the golf course might one day be granted status under the AMO, but has not been granted that status as yet so that the impact can properly be described as “undetermined”. That is because, as Mr Yuen emphasised, the definition of “undetermined impact” that the existence or likelihood of adverse impact is undetermined. Rather the term “undetermined” recognises that significant adverse effects are likely, but proceeds on the basis that the extent of those adverse effects, or the extent to which they may be mitigated, cannot be determined from the study. 354.However, as I have already mentioned, it is difficult to see why the extent of the adverse effects on the Old Course – whether on certain holes or as an integral whole – of building residential and other properties on Sub-Area 1 and performing significant compensatory tree planting on Sub-Areas 2 and 3 cannot be determined from the study. Surely, the significant adverse impact is obvious. In fact, Mr Yuen was constrained to accept as much – though he suggested that there might be undetermined mitigation steps. 355.In any event, there would then remain a huge lacuna in considering the adverse impact on a place of recognised cultural and historical significance. Indeed, the problem with the CEDD’s submission is that the adverse impact on the recognised culturally and historically valuable Old Course does not turn simply on whether it is or is not one day graded by the AAB. This seems to have been recognized in the Recommendations. Mr Pao also himself noted that even if the Old Course is graded as a historic site by the AAB, that does not mean it would become a “site of cultural heritage” as defined by the EIAO. 356.The practical effect of taking the line adopted in the EIA Report, and in the DEP’s approval of it (without any relevant condition attached), is that the obvious and massive adverse impact on and effect to the Old Course is to all intents and purposes simply ignored in the overall assessment. As I say, that adverse impact does not turn simply on whether the AAB grades the Old Course. Indeed, I think that is to an extent a red herring, where the AAB would not assess the impact of the CEDD’s proposal to build a housing estate over part of the Old Course, and use another part of it for compensatory tree planting. The practical effect of taking the approach adopted is so, even in the face of the express recognition in the EIA Report itself that the Old Course is recognised as a heritage site – which many people might think is merely the recognition of the blindingly obvious. 357.There is no uncertainty about the extent to which the Project would impact the Old Course, and no apparent uncertainty about the possibility of mitigation. The proposal involves building housing blocks over holes 1 to 3 and engaging in compensatory tree planting over a large part of holes 4 to 8. Where a number of holes are destroyed as such, the only rational conclusion is that the proposed Project involves the destruction of the Old Course as an integral whole. Assessing that impact and any possible mitigation of it is largely unaffected by any potential AAB grading (though that would provide additional recognition of value). 358.In other words, though the Old Course (as an integral whole) is recognised to have obvious historical and cultural significance and importance, the approach taken seems to ignore the very existence of the Old Course as such, as if to proceed on the basis and assessment that the Project is proposed to be developed on land which is currently used for no other purpose. That cannot be right where the defining feature of the Land is that it was currently in use as a golf course, namely the Old Course. 359.Indeed, it seems to me that it is not right because, though the TM (which covers numerous projects) may appear to limit the range of impact assessment threats to the statutory definition of “site of cultural heritage”, the SB which is specific to this Project is not so limited. Everybody involved must have been fully aware throughout the process that the Land was part of the Old Course. It beggars belief to imagine that those who, with the benefit of public comments and input from the Club, drafted the SB overlooked or ignored that fact. That seems to me to be the reason why the SB looks beyond merely “sites of cultural heritage” and requires the EIA study to address the “key issue” of “potential cultural heritage impacts” (a phrase not given definition in the EIAO, and whose meaning is clearly much wider than the limited meaning in the EIAO). 360.There is some further support for that view from the approach taken by the DEP in the Recommendations attached to the Decision. Recommendation (c) specifically recommends that the Project Proponent “review the cultural heritage importance and function of the site in connection to the surrounding land uses, and consider how to mitigate the potential impact of the development of Sub-Area 1 on the cultural heritage impacts on the entire [FGC] area”. That recommendation only makes sense if cultural heritage is being considered in a wider context than the narrow statutory definition of “site of cultural heritage”. 361.Further, contrary to the requirement in TM Annex 18 at §4.2, I do not see how the EIA Report put any focus on the sensitivity of the landscape and the ability of the Old Course to accommodate the change as would occur from building a multi-block multi-storey residential project and performing compensatory tree planting across almost half of its eighteen holes. 362.In that regard, I note that Mr Lau, in his evidence for the CEDD has suggested that there might be possible mitigation measures including: (1) a review of the development scale and layout plan to minimise impacts on the FGC, where it is obvious that not all of the buildings or structures located within the FGC are of historical or heritage value; (2) potential re-alignment of holes on the golf course (on the basis that some changes have been made to the Old Course over time). Mr Lau suggested that mitigation measures may be proposed to the AMO in the event that the FGC is graded by the AAB, though this is not a mandatory requirement under the EIAO. With respect, not only are those matters not traversed in any way in the EIA Report, they remain largely tied to the question of grading by the AAB. For reasons I have already explained, that seems simply to miss the real point, and the gaping lacuna in the consideration of cultural and historical importance remains. Further, any focus on buildings misses the point about the Old Course, and it is not clear how several holes covered with buildings and compensatory tree planting might be “re-aligned”. 363.I reach the conclusion that for the DEP to accept and approve categorising the adverse impact on the Old Course, a place of obvious and recognised cultural and significance as “undetermined” without more is irrational and in breach of the requirements under the SB and TM. Further, where no actual mitigation steps are put forward in the EIA Report and the other assessment options – ‘Beneficial Impact’, ‘Acceptable Impact’ or ‘Acceptable Impact with Mitigation Measures’ – are realistically ruled out, there is great force in the argument that the only rational conclusion would be that the impact is “unacceptable” because the adverse effects are considered to be too excessive and are unable to be mitigated practically. 364.As regards the assessment of impact to cultural and historical heritage, I accept that there was a failure to comply with the SB §3.2.1(xi), and the TM §§4.4.2(e) and 4.5.1(b). H.7 Bats 365.Appendix H to the SB specifically mentioned that the assessment should include the major task of investigating and describing the existing wildlife uses of the various habitats with special attention to those wildlife groups and habitats with conservation importance. 366.The EIA Report at §§9.7.2.29-30 recognised that 46 species of conservation importance were recorded within the assessment area, including 16 species of birds, 8 species of mammals, 5 species of herpetofauna, 10 species of butterflies, 3 species of odonates, 2 species of moth and 2 species of aquatic fauna. However, although 30 fauna species of conservation importance were recorded within the Project site, only 4 species were recorded within Sub-Area 1. One of them was the Japanese Pipistrelle bat, but it is suggested that is the most common bat species found in urban areas, and no roosting and breeding habitats were found within Sub-Area 1, and only a scarce number of the species were recorded. 367.§9.7.2.57 states that only a roost of Short-nosed Fruit Bat was found, but away from the Project Site. No other bat roost was found within the assessment area, and with the future management plan of the habitats within the Project Site, the potential indirect impacts to flying mammals are considered minor. 368.In a document where the ACE sought additional information on issues of concern in July 2022, a specific request was made for the provision of justifications for the methodologies, coverage and frequency of the ecological surveys conducted, including flora and fauna. 369.As regards bats, the comments offered in response included the following:
370.There were, however, two major pieces of evidence available during the EIA process which at the very least cast significant doubt on the conclusions in the EIA Report. Those two pieces of evidence are the survey put in by the Club, and a “cross-checking” survey produced by the Agriculture, Fisheries and Conservation Department (“AFCD”). 371.The Club carried out bat surveys, by its consultant, mainly using static bat recorders and supplemented by portable hand-held recorders. The operating time of static bat recorders was from half an hour before sunset to half an hour after sunrise, and only data obtained during the wet season (from April to October) was analysed. The survey effort appears to have focused on Sub-Areas 1, 2 and 4, and the number of bat species recorded in each was 13, 14 and 8 respectively, and the total number of bat species recorded was 15. 372.Only during the course of these proceedings did it become apparent that another survey had also been undertaken by the AFCD. The Assistant Director (Conservation) of that department, Mr KF Chan, has sought in his evidence to explain the purpose of the AFCD’s bat surveys. He says they were not to establish an inventory on bats, nor a comprehensive ecological baseline to give a detailed account of the ecological profile of the Project site. Instead the objective was to collect independent ecological data on bats for cross-checking the results of other bat surveys, and searching for the presence of bat roost. A total of eight bat species was recorded during the transect walk on 24 June 2020, whereas 17 bat species were recorded by the two static recorders that AFCD installed from 24 June 2020 to 22 July 2020 (a one month period). 373.These numbers are obviously entirely consistent with the results of the Club’s surveys. 374.Indeed, Mr KF Chan has stated that when AFCD was scrutinising the EIA Report, it was fully appreciated that data collected by the AFCD was different from those referred to in the EIA Report. But he deposed that the differences could be explained by various reasons, including the different sampling methods and efforts in the surveys. He stated that the differences neither meant nor provided any valid basis to suggest that the CEDD’s bat surveys had not met the requirements of the TM and SB. He further stated that the difference in bat species recorded did not affect the overall assessment of the EIA Report, for reasons including that because the EIA Report had, in addition to other literatures, considered both the bat data from the CEDD and the Club’s bat survey at the SB stage. 375.With respect, the idea that the various differences did not even “suggest” that the CEDD’s bat surveys had not met the requirements – and Mr KF Chan’s conclusion that “the methodology for bat survey used in the EIA Report was appropriate and that the survey results are reliable and representative” – seems illogical against the materials:
376.Further, where Mr KF Chan suggests that the AFCD did consider the approach to the question of bats taken in the EIA Report, I agree with Mr Stanton that it is inexplicable why the AFCD chose not to advise the CEDD of the results of its own survey, which on their face at least directly contradicted the results and findings of the EIA Report. Nor is there explanation as to why, when scrutinising the EIA Report, the AFCD did not draw attention to the fact that Table 9.3 (listing the species of conservation importance recorded within the assessment area) does not reflect the latest information available to the AFCD from its own surveys. That table does not mention any of the 17 species recorded by the AFCD. 377.Indeed, there is no evidence from the EIA Report itself that it did actually take into account of the Club’s surveys in its evaluation, or somehow seek to explain or reconcile the vast differences. I do not think that point is answered by pointing out that the CEDD did take into account the ecological survey results published by the Club on 26 September 2018 (on the basis that it was considered at the material time as the most up-to-date and relevant study), as seen from listing out the bat species identified in that study. Nowhere in the EIA Report is there any further engagement with those matters, or with any subsequent materials provided by the Club. 378.As I understand it, the challenge is not simply that the EIA Report evaluation is wrong because it is different from the Club’s evaluation. Rather, the challenge is that the significant differences ought to have raised questions, and they should have been addressed on the face of the EIA Report (including, as appropriate, by testing the methodologies and assumptions). Had the Club’s submissions regarding rarity, diversity and abundance of bats been brought into account, it is at least possible that the overall ecological value to be attributed to Sub-Area 1 would not have been “Low to medium”, but “Medium”. 379.Nor does the EIA Report refer in any way to the AFCD survey results – let alone using it for “cross-checking” – and seek to explain or reconcile the vast differences with the results of the CEDD’s survey. Rather, the EIA Report proceeds on the simple assumption that there is only one species. The DEP appears simply to have accepted that, without asking questions about the disparity evident from the materials (though I acknowledge the CEDD at least were apparently not even aware of the AFCD survey at the time). 380.Part of the additional information sought by the DEP on the advice of the ACE was by way of a request for details of the survey methodology underpinning the bat survey used in the EIA Report. 381.In the Additional Information relating to bats, the point was made that, based on the review literature, there was no information of the presence of bat roosting/breeding sites. As the protection of roosting sites is the major approach from a bat conservation perspective, investigation of whether there are any bat roosting/breeding sites within the assessment area, especially the project development area (“PDA”), is important for assessing the ecological value of the PDA. Hence, an important target of the bat survey was to find out if any bat roosting/breeding sites were present, and their locations if any – and in particular in any of the Sub-Areas. In addition, potential commuting, foraging, and drinking sites of bats were to be searched. 382.Mr Pao sought to place emphasis in his submissions on what is the ecological value in terms of bats, which he said was finding where they roost. He said this can be seen from the Guidance Note No. 10/2010 at §5.4, which is headed ‘Surveys for bats’ and states:
383.Mr Pao pointed to the evidence of Mr Lai Chi Shing, the managing director of the consultant employed by the CEDD for ecological assessment. Mr Lai drew attention to a number of points, including: (1) direct counting of bats in their roosting sites is the primary survey method for bats; (2) it is common practice to conserve bat roosts as direct impact on bat roosts would affect the species population level; (3) though baseline literature review identified 8 species of bat have been found within the FGC, there was no information on the presence or location of bat roosting/breeding sites; (4) hence, the primary aim of the CEDD’s bat survey was to ascertain the existence and locations, if any, of the bat roosting/breeding sites within the assessment area (and not simply to re-establish the same baseline information as was already established from a review of the existing literature). 384.Mr Pao also referred to the part of the answers given to the ACE’s enquiries made on 18 July 2022 (which I mentioned above), where it was explained that bat roosting/breeding sites were searched actively during the daytime according to the preferred roosting habitats of each species. Additionally, handheld bat detectors were used to detect bats emerging from potential habitats in evening according to the emerging time from roosts. 385.In the Additional Information – which was provided in answer to the requirement to give details of the survey methodology adopted for the bat survey in the EIA Report – §4.2.3 explained (amongst other things) that more attention was paid to the preferred roosting habits along the transects for those species listed on the review literature, and in addition potential commuting, foraging and drinking sites of bats were searched, if any. The bat survey locations under the EIA Report were shown in a drawing, Figure 4A. 386.Hence, Mr Pao submitted, in terms of methodology, in terms of the choice of model that was used as a bat detector, in the desire to use an active search to search from roosts, those were all entirely defensible and valid ways of conducting the bat survey. He suggested that no matter if one looks at the CEDD bat survey, or the AFCD survey of which it was unaware at the time, or the information from the Club, none revealed the existence of any bat roost within Sub-Area 1. Though Mr Pao accepted that after the EIA Report was produced, the Club did discover two vegetation roosts within that Sub-Area 1, that does not mean they were present during the EIA, or that they are long-term roosts. As to roosts, Mr Pao submitted that the various surveys spoke with one voice, and insofar as there are differences of other results from the different surveys, that does not mean that the underlying methodology was necessarily flawed or in any way unreliable. The detailed methodology was spelt out in the responses to the ACE and in the Additional Information. 387.As to mitigation proposals with respect to bats, it was argued that both direct and indirect impacts on bats were assessed in the EIA. In terms of direct impact, it was assessed as minor given that no bat roost was recorded inside Sub-Area 1 up to the submission of the EIA Report, and the bats recorded when flying would have a vast area of foraging habitat and foraging grounds in the vicinity. Hence no specific mitigation is required. As to potential indirect impact, mitigation measures were expressly proposed during the construction and operations phases, reference to restricted working hours, temporary noise barriers or acoustic screens, and level planning of lighting to avoid light glare. Further, it was said that woodland compensation would re-provide woodlands lost from the development. 388.But, it seems to me that matters were fairly summarised in the Executive Summary of the Club’s Bat Survey Report dated 2 May 2023, provided in response to the Additional Information, and where the Club’s expert had sought to replicate the EIA bat survey. That summary stated (bold in original):
389.Of course, I accept that the Club’s materials produced in response to the Additional Information were not available at the time of the EIA Report, but then neither was the Additional Information. This only points out the problem giving rise to Grounds 1 and 2. Further, as already stated, it was not known at the time of that Executive Summary that the AFCD had carried out its “cross-checking” survey, with results consistent with those generated from the Club’s survey. This also identifies a different problem. 390.But, by way of conclusion, it seems to me that the failure to grapple with the Club’s submissions and bat survey results (and, though with a better excuse, with the AFCD’s bat survey results) means that there was an omission or deficiency which may affect the results and conclusions of the assessment as set out in TM §4.4.2, hence also being a breach of §4.5.1(a), (b) and (c). H.8 Moths 391.Argument as regard the moths was one area where the difference between the approach to methodology and respective survey results was very much highlighted. Indeed, in partial answer to the Club’s argument that its survey results were vastly different from those results of the survey performed for the CEDD, the CEDD has suggested the Club was seeking to perform an exhaustive academic study. As already stated above, I wondered out loud during argument if that was perhaps the point, namely to count everything that is present, in order to know what might be impacted and by how much, and how the impact might be mitigated. That might also seem consistent with the requirement in the SB to identify and quantify as far as possible potential ecological impacts. Of course, it is also necessary to look at the specific context. 392.At §2(v)(c) and (g) of Appendix H to the SP, the SB required that moths be studied in their habitat, and that details be provided such as:
393.However, it seems that the EIA exercise in relation to the Project Site at the FGC was the first occasion on which a Hong Kong EIA study brief had included specific provisions relating to moths. As a result, there was no pre-existing framework or set of standards for the study of moths and moth ecology specifically, to which the CEDD could have had regard. 394.In these circumstances, the CEDD or its consultant turned to seek the assistance of Professor Wang Ming, from the Department of Entomology of the South China Agricultural University. Professor Wang also filed affirmation evidence for the CEDD in these proceedings. There, he explained that he advised that the moth survey to be conducted should comprise two main elements, namely (1) deployment of moth traps at night (the primary surveying method in all moth studies, given their predominantly nocturnal nature) and (2) active search (for both mature moths and caterpillars) at both daytime and nighttime. He also stated that the methodology used was tailored to the specific needs of the EIA study, including as to the wattage of the moth lights employed, and the duration of deployment. 395.As to the former, a deliberate choice was made to use light sources with lower power, so that the traps could collect moth data at the specific Sub-Area. Professor Wang criticised the survey methodology adopted by the Club, as covering the moth species present in the general area covering the FGC and surrounding vicinity, and not providing specific information on the moth species actually inhabiting the four Sub-Areas of the PDA. He stated that the results of the Club’s research could not simply be transposed onto the Sub-Areas, and there was “a distinct logical possibility” that the results from the Club’s study might be significantly different from those conducted during the EIA. The higher number of moth species recorded by the Club might be the result of being attracted from further away by stronger, or overly bright, light traps. Hence, Professor Wang stated that the results of the Club’s survey (which involve results since 2015) are not invalid per se, but the methodology used would not be apposite if the aim is to identify and confirm the specific species which inhabit the Sub-Areas. 396.However, none of this comparative reasoning is to be found in the EIA Report. 397.Reference in the EIA Report to moth survey is at §9.5.8, which sets out that moth traps were deployed at 23 locations within the assessment area, 15 within the Project Site, with 8 more outside the Project Site but within the assessment area. 59 species of moths were recorded within the assessment area, of which 38 species were recorded within the Project Site. Only two species of conservation importance were found in the assessment area, only one of which was in the Project Site at Sub-Area 2. Hence, Table 9.20 – giving an overall ecological value of ‘low to medium’ for Sub-Area 1 makes no reference to any moth under the criteria of rarity. 398.The EIA Report at §9.7.2.58 refers to a management plan to be formulated (i.e. in the future) which would consider the impacts to moths, amongst other things. Hence, it says, with the future management plan, the potential impacts to the macro-invertebrates of conservation importance as well as light glare impact to moths are considered insignificant. 399.On the recommendation of the ACE, the DEP required the CEDD to carry out an additional moth survey, and also to provide further details of the survey methodology. This was apparently on the basis that the original moth study contained in the EIA Report did not supply sufficient information to allow an assessment of whether its methodology was adequate, and the results of the survey conducted did not give a clear or complete picture of the ecological baseline. (This of itself identifies a perceived failure up to that point with the DIA Report.) The further information was sought as part of the Additional Information. 400.Mr Yu submitted that the failure of the EIA Report to meet the requirements as regards moths is similar to the failure on which he made submissions in relation to bats. First, there seems to have been a failure to evaluate, and identify why there exist differences between, available surveys. Secondly, the Club’s survey data was apparently ignored, in the sense that it is not taken into the evaluation of the ecological value of the Project Site in the EIA Report. 401.Hence, the Club’s criticism of the EIA Report in this regard begins at the first stage of the process in engaging an incomplete literature review, resulting in a flawed moth recording methodology. As the Club’s moth expert, Dr Roger Kendrick – who has been recording moth data, moth biodiversity and moth ecology for the Club since 2018, during which time he has produced three sets of moth survey reports – states, unless the baseline state is correctly characterised, the further stages of the assessment will also necessarily be unsound. The assessment of the impact the project will have on the existing ecology, what mitigation measures required, and whether the residual impact after mitigation is acceptable, will be invalid if there are material errors at the baseline stage. A further risk is that there may be failure to apply the precautionary principle in cases where it should be applied. 402.The Club’s position is that the inadequacies and inaccuracies in the ecological baseline information remained, even after the provision of the Additional Information – most notably evident from the wide gap in moth data recorded by the CEDD and its consultant team and that recorded by Dr Kendrick for the Club in a parallel moth survey conducted during the same period as the additional survey requested by the DEP. The CEDD moth study found 38 moth species, whilst Mr Kendrick found at least 729 moth species present in the FGC in the same period. 403.In the Summary for the Moth Survey of 2022-2023, Dr Kendrick stated the following (bold in original):
404.Dr Kendrick also pointed out that the CEDD did not identify the presence of 4 moth species that meet IUCN “critically endangered” red list criteria (two in Sub-Area 1, one in Sub-Area 2, one in Sub-Areas 2 and 3), and 7 moth species that meet the IUCN “endangered” red list criteria (two only found in Sub-Area 1, two in Sub-Areas 1 and 2, one in Sub-Area 2, and two in Sub-Area 3). 405.Dr Kendrick has opined that this has occurred, notwithstanding what has been said in the CEDD’s evidence from Professor Wang, and in the DEP’s evidence from Mr Tsang Sai Wing Terence, because:
406.Dr Kendrick refuted in his evidence the approach offered by Professor Wang and Mr Tsang in their evidence filed, in five responsive observations:
407.But, Mr Pao’s core submission was that the EIA moth study was conducted in terms of methodology professionally designed by a leading expert in the field in Southern China, who has given convincing reasons which are supported by his evidence for his choice of methodology, which was fit for purpose, namely to focus on Sub-Areas 1 to 4. The Court should not be concerned about the merits or about designs of moth traps, or how bright the lights should be, or how long they should be operated. Instead, if the focus is on rationality, it is a rational view to take to say that the Club’s studies were for a different purpose, and there was no breach or non-compliance with the TM or SB. 408.With respect, I do not think that rationality involves looking only at one approach adopted by the consultants employed by the CEDD. Of course, I accept that there may not be any standardised or one-size-fits-all recording methodology, and that it might be correct to say that, looked at in a vacuum, there seems to be no irrationality in adopting the approach put forward by the CEDD. But the essence of a proper EIA process does not look at only partial information in a vacuum. Indeed, on its face, there also seemed to be no irrationality in adopting the approach put forward by the Club. Hence, there may be need to identify why one approach is chosen over the other, or an attempt to reconcile the two approaches. 409.One of the reasons for a proper baseline study is to be able to take the information from it into the wider consideration which flows from (in this case) literature review and surveys conducted. Another reason is to be able to test, or cross-check, the results of surveys conducted against the available results of other surveys conducted. Further, the other available information which is directly relevant to the assessment part of the EIA must surely be taken into consideration, and if apparently of significance, the consideration must grapple with it (or explain on the face of the EIA Report why that need not occur). 410.The approach explained above does not intend to advocate that the EIA report in any given situation must deal with every single potential piece of information or area for dispute. However, it seems to me to be for the benefit of everyone concerned in the EIA process for significant and relevant information to be dealt with as part of the required fairness and transparency of the process. Indeed, I would think it is in the interests of the project proponent, who wishes to proceed with the proposed development as soon as possible, to grapple with such materials; if nothing else, this will demonstrate that the materials have been properly considered and what is the considered reaction to them, in itself making a challenge less likely (and, if made, less likely to succeed). It also makes less likely that there would be requests for further explanation and clarification from the ACE and/or from the DEP exercising his statutory power under section 8. 411.In this case, I think there was a failure – directly relevant to Grounds 1 and 2 – to have addressed relevant environmental issues raised by the public, in particular by the Club, during the inspection period, in breach of TM §4.5.1(c). H.9 Northern Metropolis 412.The relevant provision in the SB is in §3.3.1, which required a description of the need of the Project and a description of the benefit of the Project and scenarios with and without the Project. This can also be found in the TM at §4.4.2(g). 413.One of the “key issues” to be addressed as required by §3.3.2(xiii) of the SB was the potential cumulative impacts of the Project, through interaction or in combination with other existing, committed and planned projects in the vicinity of the Project. 414.In October 2021, in the Chief Executive’s Policy Address, the ‘Northern Metropolis’ was announced. This was seven months prior to the publication of the EIA Report, but it is not referenced in nor was considered in either the EIA Report or in the Additional Information. 415.A Northern Metropolis Development Strategy Report dated 6 October 2021 was released. Under the heading ‘Strategic Directions’, at the National, Greater Bay Area (“GBA”) and Hong Kong Levels, it is stated respectively that:
416.Under the heading ‘Planning Principles’, the following is set out:
417.Mr Yu submitted that the Northern Metropolis is significant in at least two major respects:
418.Mr Yu submitted that these two matters ought to have been brought into consideration in the EIA Report, but they were not. It is in that context that the ACE made one of the Recommendations that the CEDD should review the scale of the development at Sub-Area 1 in view of the potential ecological and visual impact on the surrounding environment, as well as the integration of the site to the development of the Northern Metropolis. In effect, the ACE was recommending what should have been performed as was required by the SB and TM, demonstrating the prior breach of them both. 419.Mr Yu further submitted that because the DEP included this recommendation as part of his Decision, he also considered it was actually necessary to consider the compatibility of the Project with the Northern Metropolis, and that it is odd that he had not considered (or realised) that there had been a failure to meet the SB and the TM in the first place. In effect, the DEP was turning a blind eye to the fact that the requirement had not been met, but was asking or recommending that the requirement should now be met. 420.On the other hand, Mr Pao submitted that it was important to consider the TM at §3.4, which provides that:
421.This, Mr Pao submitted, identified that the focus is really upon the environmental acceptability of the Project, for example looking at considering different layout options and development scenarios for the area which is studied in the EIA report. He then referred to the EIA Report and its formulation of the potential development options, leading to the choice of option 2, for public housing development in Sub-Area 1, with Sub-Areas 2 to 4 being preserved with only minimal works (and no works in Sub-Area 4). So, the argument ran, when talking about the benefits and dis-benefits of different land-use options and layout options under different development scenarios, there is no requirement to examine the contents of the policy relating to the Northern Metropolis or to evaluate to what extent the proposed development would be compatible. Mr Pao submitted that made sense or was common sense, because questions of land policy and land development are not issues with which the EIAO or the project proponent are concerned. Mr Pao said that those questions are matters of policy for other persons (of course, not the Court), and that should be the end of the matter. 422.Nevertheless, as an additional point, Mr Pao referred to Mr Lau’s evidence, where he noted that the proposed Northern Metropolis development is not an alternative to the Project. Both proposed developments form part of the Government’s long-term strategy to alleviate the pressing housing demand in Hong Kong. Mr Lau quoted from the minutes of the ACE Meeting on 8 August 2022, where it was recorded:
423.Mr Lau sought to emphasise in his evidence that the Project is not inconsistent with the development strategy of the Northern Metropolis, and that the SB and TM do not require the CEDD, as project proponent, to consider the desirability of the Project from a holistic, policy perspective. He did so, despite the fact that the last sentence of the passage quoted above suggests that the project proponent had done precisely what Mr Pao submitted and Mr Lau said that it need not and should not do. 424.I reject Mr Pao’s submission as to the meaning of TM §3.4. It seems to me that paragraph specifically requires an assessment of the cumulative impacts of other developments in the vicinity of the Project, though such issues are limited to those developments that may have a bearing on the environmental acceptability of the Project. The limitation identified merely means that other developments in the vicinity of the Project need not be taken into account if they have no bearing on the environmental acceptability of the Project. But where the requirement is to look at matters occurring or planned in the vicinity, it would make no sense then to suggest that those matters are ignored even if they have a cumulative impact together with the environmental impact on the Project site, as might together have a bearing on the environmental acceptability of the Project. 425.In any event, it seems to me that part of the purpose of the EIA is to have materials relevant to the ultimate policy decision which might fall to be made. As Mr Lau himself notes, the Northern Metropolis Strategy Report itself envisages development of various areas within the Northern Metropolis for major infrastructure projects, innovation and technology uses, public facilities, and housing land supply, which would inevitably have an impact on the environment. 426.Therefore, where the Project might fit into the bigger picture of the Northern Metropolis, and where the environmental impact of the Project might be seen in the context of the envisaged significant environmental impact on the environment which will be caused by the much wider scope of development proposed for the Northern Metropolis, then it seems to me that some assessment in context is obviously important to the overall policy decision, and the overall assessment of the environmental impact acceptability. 427.For example, it might be thought that a long-time existing, historically and culturally important, well-maintained, and ecologically significant site, providing some sort of ‘green lung’, with the additional attraction of hosting internationally recognised high-level sporting events, would come into the potential weighing process for big-picture policy decisions. 428.Of course, those decisions are not for the Court to make. But one reason why the SB and TM require consideration of other potential projects in the vicinity of the Project is to facilitate a proper approach to those types of decision. 429.Put another way, the Project was first proposed prior to the announcement of the Northern Metropolis. But, now that the Northern Metropolis has been announced, which involves proposed development on a much wider scale in the vicinity of the FGC, and where that wider development will necessarily cause significant environmental impact, it is at least possible that a rather different view might be formed as to the acceptability of the adverse environmental impacts which would be caused by the Project when judged against the wider context. 430.Building on a century old golf course in use (amongst other things) for the sort of large-scale sporting events the Government is keen to promote, if it is the only likely development site in the vicinity, may be seen in a rather different light from building on it when the whole environs is intended to be subject to much wider development, even if the timings differ. 431.I do not think it is “way above the project proponent’s paygrade” (as Mr Pao suggested) to do precisely what the TM and SB require – namely to provide a description in environmental impact terms of scenarios both with and without the Project, including by reference to potential cumulative impacts of the Project with that of other projects in the vicinity. For example, it might have been pointed out that a scenario without the Project:
432.On the topic of Northern Metropolis, I accept that there was a failure to have complied with TM §4.4.2(g) and SB §§3.3.1 and 3.3.2. H.10 Drainage – Sewage Capacity 433.The Project Profile at §1.5.1 envisaged the proposed development for the Project area of 32 ha, with a preliminary estimated total population of about 13,000. Hence, the Project fell within Item 1 under Schedule 3 of the EIAO. §1.5.2 recognised that Schedule 2 Designated Projects under the EIAO may be identified in the course of the technical studies. The first of the designated projects included in the Project Profile related to the potential construction of sewage treatment works with an installed capacity of more than 5,000 m³/day and the boundary of which is less than 200m from the nearest boundary of an existing or planned residential area. 434.This was essentially mirrored in the SB at §1.3, in its reference to potential designated projects. The SB Appendix D ‘Requirements for Water Quality Impact Assessment’ at §4(ix) also required a report on the adequacy of the existing sewerage and sewage treatment facilities for the handling, treatment and disposal of wastewater arising from the Project as required in §3.4.6 of the SB. 435.Hence, both the Project Profile and the SB identified potential designated projects falling within Schedule 2 of the EIAO, in the form of sewage treatment works and/or a sewage pumping station. However, as Mr Pao submitted, I think it is quite clear that they were recognised for assessment because of their potential inclusion as designated projects, and not because they necessarily were to be included in the Project as ultimately put forward. 436.In fact, ultimately, the construction of a new sewage treatment works was not considered to be necessary, for reasons which do not seem to me to be open to review by this Court. This was made plain in the EIA Report at §2.11.17, which stated that based on the design scheme assessment results, construction works for sewage treatment works and sewage pumping stations were not anticipated under the Project. 437.In the EIA Report, Table 6.3.1 estimates the sewage flow generated by the proposed development as ADWF of 4468.8 and 2721.6 m³/day for the two residential areas respectively, with a further assumed ADWF of 200m³/day for 3,200 visitors in use of Sub-Areas 2 to 4. The issue of proposed sewerage was dealt with in §6.7.1, which identifies that new PVC lined precast concrete sewers connecting the PDA to existing DN1800 sewer along the cycling track of San Wan Road with some upgrading works are proposed. As stated in §6.7.3, the proposed sewerage scheme including upgrading works as shown in particular drawings provided, and as stated in §6.7.5, based on the relevant calculations, the existing and proposed sewers were found to have adequate capacity to cater for the sewage flow from the proposed development. 438.In the evidence of Mr Tsang for the DEP, he described the proposed new sewer as a gravity sewer, of approximately 4 km in length, and Mr Pao took me to the relevant drawings which appear to support this gravity sewer concept in the relevant location. Mr Lau, in evidence for the CEDD, gave a similar, albeit slightly fuller, description of the proposed new gravity sewer. 439.As Mr Pao put it in submissions, the use of a gravity sewer was to avoid the environmental impacts of actually installing a sewage treatment works. Fortunately, with the gradient and the topography of the site and the existing connections, that is entirely possible. 440.The conclusions of the EIA Report at §6.8 include the assumed total sewage flow as would be generated on the then latest development parameters of the proposed development, and that the new sewers proposed to connect along the existing trunk would cause only manageable impact to the downstream sewerage networks. 441.I really see no reason to doubt these matters, or somehow to consider that there was any breach of the SB or TM. 442.The complaint about drainage and sewage fails. H.11 Noise 443.Mr Yu submitted that there are two discrete sub-topics about noise. The first relates to the concurrent project relating to the widening of Fan Kam Road, and the second relates to the continued use of neighbouring ground as a golf course. 444.The relevant provisions of the SB are to be found in the Scope section, §3.2.1(xiii) and (xiv), which materially read as follows:
445.Reference can also be made to the TM at Annex 13 ‘Guidelines for Noise Assessment’ at §3.1 which identifies potential noise receivers as those which could be, but are not limited to those set out in the list under three headings, ‘residential uses’, ‘institutional uses’ and ‘others’. Amongst the ‘others’ are country parks. 446.In the EIA Report itself, §1.7 deals with Concurrent Projects, and states that various cumulative impacts for different concurrent projects have been identified, and detailed justification from consideration of various cumulative environmental impacts from individual concurrent projects have been included in the corresponding chapters. One of those projects relates to Road Improvement Works at Fan Kam Road, albeit that the commencement/completion of construction is not available. 447.In his evidence, Mr Lau explains that at the time of the EIA study, the potential widening of Fan Kam Road was still in the feasibility study stage. As such, it was not regarded by the CEDD as being a committed or planned project, nor was it an individual designated project proposed under the Project for the purposes of SB §3.2.1(xiv). The assessment of traffic noise and other environmental impacts arising from that planned widening project would be conducted in subsequent technical assessments of that project. 448.I do not think there is anything in the Club’s criticism in this regard. Similarly, there is no proper criticism to be made of any different description of the 10m strip of land as either a potential amenity area or a setback for future road, if the road project does materialise. 449.As to the second point, the complaint is essentially about the choice of noise sensitive receivers (“NSRs”) for the assessment of construction noise impact, and the fact that the Eden Course, New Course and the Clubhouse of the FGC were not included as NSRs. 450.It is helpful to look first at the EIA Report, of which §4.5 dealt with the Construction Noise Impact Assessment. Under the heading ‘Identification of Noise Sensitive Receivers’, §4.5.1.1 identified that the assessment area for construction noise impact is 300m from the PDA boundary. The first layer of NSRs located close to the construction activities have been selected from a Table 4.4.1, and noise assessment points (“NAPs”) closest to the construction activities have been assigned for construction noise impact assessment and summarised in Table 4.5.1. 451.The EIA Report then goes on to deal with the noise sources during construction phase, the assessment methodology, the prediction and evaluation of construction noise impacts (unmitigated scenario), and the mitigation measures proposed. On that basis, §4.5.5 sets out the prediction and evaluation of construction noise impacts (mitigated scenario). §4.5.5.1 identifies the equipment inventory under the mitigated scenario, confirmed by the Project Engineer to be appropriate and practicable for completing the works within the proposed construction programme, and set out in a Table 4.5.5 the mitigated construction noise levels at representative NSRs. §4.5.5.2 states that, with the implementation of the proposed mitigation measures, it is anticipated that adverse construction noise impact is not expected at the representative NSRs, except during examination periods at the approximate school. 452.Mr Yu referred to the Technical Memorandum on Noise from Construction Work other than Percussive Piling at §2.1, which identifies that Step 1 of the assessment of noise is as follows:
453.Mr Yu submitted that the simple point is that everyone knows playing golf as a silent game, so it is irrational for the DEP not to take that into account, omitting FGC as a Noise Sensitive Receiver (“NSR”). Mr Yu submitted that was a breach of the SB §2.1(iii) – to identify and quantify emission sources and determine the significance of impacts on sensitive receivers and potentially affected uses – as well as §3.2.1(xiii) and (xiv) set out above. 454.Mr Pao also referred to the Technical Memorandum on Noise from Construction Work other than Percussive Piling at §2.1, and emphasised that the first step is to identify the NSR which will be the most affected by noise from the construction work. By reference to the Table 4.5.1 in the EIA Report, Mr Pao showed that the NSRs identified nearby Sub-Area 1 (where the construction activity would take place) included a housing estate, a home for the aged, a hospital and two schools. He submitted that those NSRs were chosen because they were closest to the noise to be generated from construction activities, and because they are particularly sensitive. The EIA Report includes an assessment of those NSRs. Other than during exam taking at the schools, when construction work would be interrupted, everything was otherwise within the maximum mitigated noise level. 455.Therefore, Mr Pao invited the application of a dose of reality (his words), because there is a primary school right next to the construction activities, which has been assessed as a NSR with noise levels which are acceptable or acceptable with mitigation. Therefore, it is not realistic to suggest that the FGC, which is further away and across the Fan Kam Road, should enjoy any higher protection than schools. 456.In short, Mr Pao offered two answers to this noise complaint. First, in terms of the choice of the NAPs and NSRs, it was entirely appropriate to choose the ones which are closest to the construction activities, rather than the parts of the FGC which are further away. Secondly, in any event, even for the highest sensitivity receivers which are located right next to the construction works, noise was assessed as acceptable with mitigation. I accept those submissions. 457.The CEDD also accepts that the lack of specific mention of the FGC as a NSR in the SB and the TM is not conclusive. But, the CEDD has taken the view that neither the FGC nor the Clubhouse should be considered NSR’s. The golf courses are essentially open spaces or outdoor sports fields, and the Clubhouse is a two-story building used for recreational purposes. But it is considered that they do not have a similar sensitivity to noise as the premises listed in the TM at Annex 13 §3.1. Whilst I have already noted that the non-exhaustive list of potential NSRs in that paragraph includes country parks, which might be thought to have some similarity with outdoor sports fields or a golf course, against the other points dealt with above, I do not think it was irrational to have reached that view. 458.Therefore, the Club’s complaints about noise fail. H.12 Land Contamination 459.Compared to some others, this is a relatively short factual point. 460.The SB makes provision for a land contamination assessment at §3.4.8. It requires the guidelines to be followed as set out in Annex 19 of the TM and following the detailed requirements given in Appendix G of the SB. 461.Appendix G sets out the ‘Requirements for Land Contamination Assessment’, and §3 identifies that if any contaminated land uses as stated in §3.1 and 3.2 of Annex 19 in the TM is identified, the Applicant shall carry out the land assessment as detailed, and propose measures to avoid disposal. Essentially, those provisions require consideration to be given to historical land uses which have potential to cause or have caused land contamination, and require submission of a contamination assessment plan (“CAP”) prior to conducting a contamination assessment of the relevant site. 462.Appendix G at §3(iii) provides that if there are potential contaminated sites which are inaccessible for conducting sampling and analysis during the course of the EIA study, for example due to site access problems, the CAP should include various other matters there set out. 463.Section 8 of the EIA Report deals with land contamination, describing its meaning as an area or spot of land that has been polluted by hazardous substances due to historical or current land use activities that may cause hazardous risks or adverse effects to human health and the surrounding environment. 464.At §8.3.2, the EIA Report identifies the steps taken to characterise and identify if potential contamination exists or may be present at the development area, being a desktop review, history of development applications and approvals, site inspection, information provided by site representatives, and consideration of the land use changes. 465.At §§8.3.6 to 8.3.8, the EIA Report deals with the preparation of a contamination assessment plan, but suggest that due to site accessibility issues and given that the golf course will still be in operation until commencement of construction, undertaking site investigation works so as to sample locations and depths for soil and groundwater within the PDA are not feasible. Other works, including re-appraisal and submission of supplementary contamination assessment plan are recommended to be conducted in the later stage of the Project. 466.However, §8.4.44 refers to an inventory of fertilisers, pesticides and herbicides applied at the golf course maintained by the Club, and that a review of the inventory list concluded that all fertilisers and chemicals used at the golf course are organic, branded and of high quality, applied using best management practices. Reference is also made at subsequent paragraphs to the confirmation of no chemical spillage, a site inspection to cover the full extent of the FGC footprint, the absence of the type of land use as might potentially contaminate land, and review of historical aerial photographs. 467.Though I do not think it important to the present analysis, I can mentioned that there was a CAP provided by WSP, which was endorsed by the DEP on 11 May 2022. Amongst other things, it identified in section 4 the ‘Sampling Strategy’, providing some detail as to the proposed sampling location and scale – essentially seeking to achieve a 95% confidence level with a proposed number of sampling locations. 468.There is no particular criticism of those matters, except as regards the claimed inaccessibility to the site. The factual issue in that respect arises as follows. Correspondence was entered into with the Club in relation to ground investigation works relevant to the land contamination assessment. On 16 February 2021, the Club wrote to WSP, the CEDD’s consultant. As the present issue turns in part on that letter, it is convenient to set it out in full:
469.Mr Yu submitted that this letter constituted a clear consent, not a conditional consent. There was apparently no response to the letter. 470.But, from the CEDD’s evidence, it seems that there was internal thinking on their part effectively reaching the conclusion that it would not be possible to achieve what was requested by the Club, so that the letter can be taken as a denial of consent. The CEDD considered that there was no realistic likelihood that it would be able to devise a methodology which would be acceptable to the Club to address its concerns as stated in the letter. The conclusion was that it was impracticable to conduct site investigation works because there was a problem of inaccessibility. Some reliant was apparently also placed on the fact that chemicals would continue to be applied to the soils before resumption of the Land to the Government in September 2023, and that further investigation works would be required at a later stage in any event. 471.I accept that one way of reading the Club’s letter was to see it as a clear consent to access for ground investigation, with a number of requests raised as to a possible way of going about the works for which consent had been given. On the other hand, I do not think it entirely unreasonable for the letter to be read in a different way, namely that the comments and requests essentially either negatived or made conditional the primary consent offered. I also accept the submission made by Mr Pao that this issue does not entirely turn on any interpretation of the Club’s letter, but matters more in the round should be looked at, including taking into account the site constraints faced and the developments on the CAP front (which I have reviewed, but need not rehearse here). I do not think it could be described as unreasonable or irrational to have formed the view in context that the letter in reality identified practical problems of accessibility. 472.The Club’s complaint about the land contamination matters as canvassed in the EIA Report fails. H.13 Waste 473.This topic is concerned with construction waste, and its transportation from the Project site. 474.In the EIA Report, there is a table of estimated construction and demolition (“C&D”) materials generated from different construction phases (preliminary estimate). The EIA Report at §7.5.36 identifies that land transport should be utilised to deliver and dispose of the waste generated from the Project area to the designated disposal outlets. It is anticipated that a maximum of 30 vehicles per day for transporting the waste identified during the construction phase of the Project (year 2024 to 2029). The frequency of trucks for inert C&D materials is estimated at 16 vehicles per day during the construction phase. With the implementation of appropriate mitigation measures (i.e. using water-type containers and covered trucks), no adverse environmental impacts are expected due to the transportation of waste. 475.There is also a Table 7.5.4 summarising the waste types, handling procedures and disposal routes during the construction phase. There is no challenge to the estimated total waste amounts generated, as would require removal with trucks. 476.There is at Appendix 4.5.1 to the EIA Report a tentative construction programme, which identifies that the bulk of site clearance, land decontamination and site formation (including construction of retaining structure and slope work) is envisaged to last a combined (and overlapping) 21 months. This is the period when the majority of C&D materials would be removed, and it has given rise to part of the Club’s criticism of the EIA Report dealing with waste. The other part relates to the size/capacity of trucks used. Both aspects relate to the calculation of the number of trucks needed to transport the C&D materials. 477.In the EIA Report itself, there is no identification of the calculation (or basis of calculation) of the estimated number of trucks, being a maximum of 30 trucks: see above. As a result, an inquiry was made in correspondence, and the consultant provided a one-page assessment. But, Mr Yu submitted, even that page does not identify any calculation. 478.However, in the evidence filed, Mr Lau and Mr Tsang have claimed that large dump trucks with the loading capacity of 13.75m³ were adopted by the CEDD in its calculations for the number of trucks in the EIA Report. By way of response to Annex 2 to the Form 86, calculations have also been provided by reference to the amount of materials to be transported. As stated, there is no particular dispute as to the calculation or estimation of materials (except as to the amount of materials that might be reused on site), and the dispute is mainly as regards to other factors in the calculation. 479.Without descending unnecessarily into the detail of the calculation, it made two assumptions: (1) as to the size/capacity of the trucks to be used, and (2) as to the period of time over which the C&D materials would be removed. The calculation also identified an element of “conservativeness”, with an additional factor of 20% adopted to evaluate the maximum number of vehicles required per day to transport inert and non-inert C&D materials generated from the Project area to the designated disposal area. The calculation leads to a conclusion of 29.5 (~30) vehicles per day. 480.The Club’s response is found in the evidence of Mr Alexi Bhanja. As well as pointing out the absence of any reference within the EIA Report to the gross vehicle weight of the trucks intended to be used, Mr Bhanja says that the capacity of construction waste trucks used to determine truck trips generally ranges between 5.5m³ and 7.5m³ in most EIA reports. He has himself never come across one that assumes trucks with a 13.75m³ capacity, and explains that the reason why smaller trucks are ordinarily used is because of the physical constraints at construction and demolition locations. In any event, Mr Bhanja identifies that the hypothetical calculation using larger trucks is based over the incorrect period of time. Whereas the CEDD’s calculation is based upon an assumption that the number of vehicles required per day would be equally distributed over the 6-year construction period, that nonetheless ignores the information identifying that the majority of C&D materials would be removed within the first 21 months. As a result, even assuming the larger truck is sued, the number of trucks necessary is actually around 90 vehicles per day, namely three times more than the estimate included in the EIA Report. 481.Further, if the smaller 7.5m³ capacity dump trucks commonly adopted elsewhere were to be used for the calculations, the number of vehicle movements would rise to 330 per day – around 27 per hour, or almost one every two minutes, spread over two years. The impact during that two-year period would then be calculated at 11 times more than the 30 vehicles per day spread over six years assumed in the EIA Report. 482.Mr Yu submitted that the significant under-estimation of truck trips is in breach of the requirements of the SB at Appendix F (Requirements for Assessment of Waste Management Implications) at §2(iv) to address in detail and propose appropriate mitigation measures for the impacts caused by handling and transportation and re-use/disposal of waste. It is argued that the conclusion in the EIA Report that no adverse environmental impacts are expected due to the transportation of waste is unsupported by analysis or proper explanation, even after an explanation has been offered. 483.Mr Pao described the issue relating to waste and dump truck estimates and the requirements of the SB as “really quite simple”. Albeit under the heading of ‘Air Quality Impact’, part of §3.4.3.2 stated that:
484.Mr Pao emphasised that there is no express requirement in the SB requiring the proponent to explain the calculations which give rise to the estimate of frequency of the dump trucks within the EIA Report itself. Nevertheless, Mr Pao suggested that Table 7.5.4 in the EIA Report did actually provide the basis on which the calculations were made, in that it showed the anticipated amounts of inert and non-inert C&D materials. 485.But those figures only identify the amount of waste to be removed, and provide no basis of the calculation of the number of trucks as would be required to remove it. It is really only in the CEDD’s response to Annex 2 to the Form 86 (and the evidence filed in these proceedings) that any underlying assumptions for the calculation, and the calculations themselves are actually provided. Of course, Mr Pao may be right when he submitted that the Court is not here to do a maths check the estimates provided in the EIA Report, and there is no real basis to doubt that there were genuine calculations that were done to support the estimates that were given. That seems to me to miss the main point of the criticism. 486.Nevertheless, I also note that the TM at Annex 15 (Guidelines for Assessment of Waste Management Implications), which describes the commonly adopted approaches and methodologies for assessment of waste Management implications, at § 3.3 requires the impact caused by handling, collection, and disposal of wastes to be “addressed in detail”. It requires the assessment cover, but not be limited to, the areas of potential hazard, air and odour emission, noise, water discharge, and public transport, as well as the impact on the capacity of waste collection, transfer and disposal facilities. 487.I do not construe that Annex, or any other part of the TM or the SB, specifically to require underlined calculations for estimates to be included on the face of the EIA Report. Obviously, in many cases, provision of the underlying calculations would be at least beneficial for proper understanding of the report, even if they are not strictly required. 488.Basis that the EIA Report was issued without any calculation underpinning the estimated number of trucks, notwithstanding and in the face of the Club’s statutory submission made on 17 June 2022, which specifically referenced not just an underestimated volume of the C&D materials to be removed, but the incorrect adoption of the full six year construction phase, and the usual truck capacity of 7.5 m³. There was, therefore, a failure to address relevant environmental issues raised by the public during the public inspection period, in breach of TM §4.5.1(c). H.14 Shading 489.I do not think I need to deal with this topic at any length. During argument, Mr Yu clarified that the Club’s stance as regards shading impact assessment is not so much about Ground 3, but provides part of the context for the argument on Grounds 1 and 2. 490.As a matter of formality, I would reject the complaint insofar as it is pursued as part of Ground 3. H.15 Air Quality 491.Though raised in the Form 86, this matter was expressly not pursued at the substantive hearing. H.16 Cumulative Effect 492.The matter of cumulative effect has in essence been addressed through the matters already canvassed. It is only necessary to state that if any one aspect of environmental impact is addressed differently and reaches a different assessment, that will have to be taken into account in the overall cumulative assessment as to whether the Project is or is not environmentally acceptable. I. Ground 4 I.1 Ground 4A 493.Ground 4 has two limbs. By Ground 4A, the Club contends that the Conditions accompanying the Decision to approve the EIA Report render the Decision unlawful. 494.It is first important to recognise that the DEP is plainly entitled under section 8(3) of the EIAO to approve the EIA Report with conditions. It is also necessary to acknowledge upfront that the wording empowering the approval with conditions is general, suggesting that the discretion on the part of the DEP to impose conditions is wide, though they would have to be conditions which are conducive to the objective of the EIAO. 495.Of course, the Club’s case is not based upon the fact that there are conditions, but upon the terms of the Conditions. 496.I have set out the terms of those Conditions above, but it is convenient to rehearse them here. The Conditions are:
497.Not least when read together with the Recommendations, which were advanced by the ACE but adopted by the DEP as part of the Decision, I think these Conditions make good Mr Yu’s preliminary observation that although framed as “conditions” imposed together with the decision “approving” the EIA Report, the real flavour is that the EIA Report has not actually been approved. 498.Presumably, the DEP has imposed Conditions on the basis that they should be met, and he has also attached the Recommendations expressly on the basis that they require the CEDD’s “attention and action”. The DEP has in effect required the CEDD to go away and redesign and rethink the Project, and to submit any new plans for his consideration. 499.But it was actually one of the detailed requirements of the EIA study – to be found in the SB at §3.2.1(i) – that the EIA Report should address the environmental benefits and dis-benefits of different land-use options and layout options under different development scenarios, design and construction methods of the Project with a view to deriving the preferred land use option and layout option that will avoid or minimise adverse environmental impacts. If that requirement was not properly met, the problem cannot be avoided by making it a condition of approval that it be met. 500.Further, the Conditions are obviously substantial and extensive in scope. Indeed, as the Decision letter itself states:
501.The last part of that description of the Conditions is striking. It appears to include, as a condition, an element of evaluative judgment, requiring the CEDD to review the very validity of the development parameters of the proposed housing development in the Project whose impacts on the environment were supposedly the subject of the EIA Report and/or to consider whether it is “appropriate”. It also begs the question as to how compliance with this type of condition can be or will be judged. A similar comment can be made in respect of the Recommendations, which require review of a number of important aspects of the current proposal. 502.The Conditions also contain numerous qualifications which beg further questions. For example, what does “substantially” mean in the context of affecting the groundwater level? What is the meaning of “as far as practicable” in the context of preserving the 0.39 ha of woodland, and how will compliance with the required “aim to minimizing the number of trees to be felled” be assessed? 503.Reliance was placed by Mr Yu on §7-239.78 of the ‘Encyclopaedia of Planning Law and Practice’ (2024), which described “vague conditions” in the following manner:
504.I accept those points have some analogical value in the present consideration, and I take them into account. 505.In this context, I acknowledge that Mr Lau in his evidence filed for the CEDD has confirmed the updated position that the current plan of CEDD is to preserve the 0.39 ha of woodland by revising the design, layout and development parameters of the Project. But I do not think that statement takes away from the nature of the Conditions themselves. 506.In fact, as regards the woodland, the DEP had already asked for the necessary materials when seeking the Additional Information. Paragraph (e) required:
507.The response to this requirement was provided in section 6 of the Additional Information, and the relevant location was shown in a plan marked Figure 6A. Under the heading ‘Consideration of relocating building blocks’, §6.5.2 noted from that plan that “the woodland in concern is in conflict with” the integrated commercial cum car park building and the public transport interchange cum government institution and community facilities, as well as one of the residential blocks above the car park building. Hence, §6.5.3 noted that:
508.The following paragraph §6.5.4 concluded that increasing the building height of the proposed housing development would be undesirable and would result in adverse visual impact to the surrounding environment. The conclusion at §§6.6.1 to 6.6.3 included that the scale of the proposed public housing and range of commercial and public facilities to be provided under the development would be affected if the woodland has to be preserved; increasing the proposed building heights may impose adverse visual impact; and removal of the woodland would unlikely cause adverse ecological impact. At §6.6.4, it was stated:
509.In other words, when seeking the Additional Information, the DEP specifically required a detailed layout plan illustrating the preservation of the woodland. By the Additional Information, the CEDD in effect stated that was not possible without adversely impacting the scale of the proposed development, that there was insufficient space for relocating the building blocks, so that preservation of that woodland was not recommended. 510.Pausing here, it can be noted that the reason why preservation of the woodland was not recommended was not because of the adverse impact on the environment, but because of the adverse impact on the proposed building. Whilst it may be that balancing those matters must be performed by someone, I am not sure that the balance should be put that way in an EIA report. 511.In any event, and despite the stance taken by the CEDD in the Additional Information, by Condition (a) the DEP required a revised layout plan – adjusting the housing footprint, disposition and density – with the aim of preserving the woodland, albeit “as far as practicable”. There is clear force in Mr Yu’s submission that – leaving aside the inherent vagueness in that term – the DEP asked once; the CEDD said ‘no’ on the basis that it was not practicable; but the DEP has asked again; which raises the question what the DEP would do if (as at least seemed likely at the time he asked again) the CEDD say ‘no’ again. This essentially identifies that the imposition of a condition subject to the caveat of practicability, to be determined by the project proponent CEDD and not by the DEP (even if he says any revision remains to be approved before commencement of construction of the relevant phase of the Project), is problematic. 512.Again, here I recognise the current plan as stated in evidence is to preserve the 0.39 ha of woodland by revising the design, layout and development parameters of the Project. But until the exercise of revision is actually performed, it cannot be known whether the stated current plan can will be maintained. 513.It also seems to me that the procedure proposed in the Conditions, namely the re-submission of revised plans to the DEP for approval, is in any event not a step contemplated by the statutory scheme (see above). That itself tends to identify that the nature of the Conditions is not such as one would ordinarily envisage falling within the concept of “approve with conditions” permitted by section 8(3) of the EIAO, however wide the discretion. 514.Indeed, the wording of Condition (c) requires the CEDD to submit a development plan and necessary measures (i.e. mitigating steps) to the DEP for approval. But, surely that was what was required of the EIA Report itself. Just as importantly, this suggested procedure has the effect of sidestepping the otherwise applicable statutory requirements, in that parties who have an interest in being heard on such matters are deprived of the opportunity to comment on the revised plan. 515.As pointed out by Gerry Bates in ‘Environmental Law in Australia’ 11th Ed at §13.56, on which Mr Yuen placed reliance, sometimes the question may not be so much whether the decision-maker actually had the jurisdiction or power to make the decision, but whether the decision itself is sufficiently certain in its effect so as to enable people to understand what it means or how to comply with it. One aspect of certainty is to what extent conditions of approval might enable development to be carried out substantially differently to the concept for which approval was sought. This is to recognise that, although courts will always seek to give practical effect to approval conditions in order to avoid questions of uncertainty, conferment of a condition that would allow a significant alteration to the development for which approval had been sought may lead a decision-maker into approving the condition for an improper purpose. 516.However, Mr Yuen emphasised §13.57, which suggests that:
517.I accept that may be so. But the passage in the text also emphasises that questions of degree are always involved in determining whether a condition is sufficiently uncertain so as to be outside the power conferred. Where a condition falls outside what the statute permits, and assuming the condition is not separable, the purported approval is not an approval under the statute at all. 518.Mr Yuen also relied on the decision of the New South Wales Land and Environment Court in Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213, in which it was argued that the condition of approval in that case left open what is a suitable or the range of possible ‘offset’ steps, so that the Minister failed to determine the application for approval in relation to the issue of mitigation of impacts, and as a result the approval lacked finality. In short, it was argued that the project as approved would be a significantly different project from that in respect of which application was made. However, it was not accepted that meant the condition had the consequences that the applicant submitted. It was pointed out that:
519.On that basis, it was held that the impugned condition was intended to address only the contingency that the other measures have been unsuccessful, and that the condition operated together with the other conditions “in a cascading manner”. 520.With respect, that is obviously not the position as regards the Conditions in this case. There is no ‘cascading’, and no addressing of only a contingency. 521.In this case, I do not think the Conditions merely provide for some ongoing flexibility in relation to implementation of the approved activity. Nor do the Conditions merely delegate some authority in relation to implementation to some other person or agency. Rather, the Conditions attached to the Decision in this case go somewhat further. This was not a case of the retention of practical flexibility, leaving matters of detail to later determination, nor delegation of supervision at some stage or aspect of the development desirable and in accordance with the statutory scheme. 522.Mr Yuen argued that the scenario envisaged in the EIA Report is already the “worst case scenario” pursuant to §4.3.1(b)(v) of the TM, and because the EIA Report complies with the requirements in the TM and the SB all along, the conditions would only represent an improvement of the development plan or a reduction of environmental impact. On this basis, he submitted, whatever changes are made to the development plan pursuant to the Conditions, the conclusions reached and the underlying assessment of the EIA Report would still stand. 523.I disagree. The invoked §4.3.1 of the TM is concerned with the general approaches to be adopted by the DEP in evaluating the assessment methodologies, and §4.3.1(b)(v) deals with impact prediction in the following terms:
524.Hence, that subparagraph simply states one of the aims which the assessment methodology as proposed should be able to achieve. Where, as in this case, compliance of the EIA Report with the TM is the very issue in dispute, it cannot be assumed that the scenario contemplated in the EIA Report is already the worst case scenario. In any event, the relevant assessment must be made by looking at the Project as a coherent whole. As the expert evidence produced on both sides of the argument shows, changes to one part of the development plan may have a consequential effect on other parts of the plan, and hence on environmental impacts, which may in turn affect the overall environmental acceptability. Indeed, this potential ‘knock-on effect’ is recognised in the Conditions themselves. 525.Further, I do not think it is factually correct to think that the Conditions amount to the DEP saying that the Project Proponent should try to do better, which would be great, but if not possible, well, he has already approved what has already been stated. That would make a mockery of the very idea of imposing conditional approval. 526.Ground 4A is established. I.2 Ground 4B 527.By Ground 4B, the Club contends that the Decision is unlawful given its failure to require, as a condition of approval, that the CEDD carries into effect the mitigation measures identified in the EIA Report. The argument is put on the basis that the intention of the EIAO is that enforcing environmental standards, and ensuring the implementation of mitigation measures, is a matter to be dealt with under the legislation itself, and not as a matter of planning control or under administrative public finance procedures. 528.With respect, this argument seems to me to make little sense. If it were correct, every approval of every EIA report would require the imposition of a condition that the project proponent carry into effect the mitigation measures identified in the report. 529.I might also add that if the EIA Report has failed to comply with the SB and the TM, then any conditions attached to the approval of it are irrelevant; but if the EIA Report has complied with the SB and the TM, the approval of it (and the specific mitigation steps identified in it) will stand on the Register, and the relevant mitigation steps can be enforced through the operation of any permit issued. 530.Ground 4B is rejected. J. Whether Academic / Exercise of Discretion 531.Though somewhat tentatively in light of my (of course, preliminary) comments in my Stay Decision, Mr Yuen pressed with his argument that this application is academic, and the Court should generally refuse to entertain a judicial review application when the issue involved has become academic, or where exercising a discretion to provide a remedy would serve no practical purpose or would otherwise be a pointless exercise of discretion. 532.Mr Yuen submitted the short point as being that the proposed public housing Project only concerns 9.5 ha of land, and is not subject to any requirement of undertaking an EIA under the now amended legislative provisions. Even the clinical study as originally formulated would, he submitted, fall outside the EIAO regime altogether. Therefore, the submission continued, in circumstances where the DEP is not obliged (and is in fact not empowered) to conduct any re-consideration of the EIA Report if the Decision is quashed, it is pointless and of no utility for this Court to grant any relief on a wholly academic question that serves no useful purposes. 533.I disagree. As I stated in my Stay Decision, and re-state on a concluded basis, 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. It is clear that the EIA process and 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. 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. That is why the Decision itself identifies that it was made pursuant to section 8 (3) of the EIAO. 534.I do not think it is an answer to suggest that if the whole consideration of the Project began only after June 2023, then no such EIA process would be required. The Decision flows from a Project Profile in May 2019 and the SB in July 2019, and concerns an application for approval dated 22 April 2022, where the Decision itself was made on 11 May 2023 – all well in advance of the amendment to Schedule 3. 535.I have previously recognised 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 also previously 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 the 32 ha). 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 and historical heritage site and leave the Land as a ‘static park’. There remains no evidence 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. The outcome of the present challenge and the reconsideration that should result would be a highly material step in connection with decisions relating to the future use of the site. 536.I have already previously stated my judicial reluctance (which I continue to have) 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 been keen to burnish its environmental protection credentials, and to stress that it has chosen to go through the statutory process even when (it has suggested) it need not have done so. It still 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 the DEP has now been told by this Court that there were public law flaws in the process leading to the assessment so far, so that there are or might be significant adverse environmental impacts not yet properly identified – and which may affect the overall view as to acceptability. 537.Further, it seems to me that the logical effect of quashing the Decision is to put the process back into the position that it was before the Decision. In short, the EIA process which was started as regards this Project has in practical terms been interrupted by the making of a Decision, which I consider to have been made unlawfully, and by the time taken by these proceedings to identify that the Decision was made unlawfully. The interrupted process can now restart. 538.In short, the challenge is not academic. 539.Further, in light of the grounds for judicial review which I have found to be established, this seems to me to be a case where the exercise of discretion points firmly in favour of the grant of relief. K. Result and Relief 540.The substantive application for judicial review succeeds on Ground 1, Ground 2, Ground 3 (in part only) and Ground 4A. The challenges mounted against the other parts of Ground 3 and Ground 4B are rejected. 541.It follows that the applicant Club is entitled to the order of certiorari quashing the Decision. 542.The Club also sought such further or other remedy, relief or order as the Court may provide. I shall I leave to further submissions any specific further or other consequential relief, or next steps, which can be addressed in writing. But I would note here that:
543.As to costs, I see no reason at present why costs should not follow the event, so that the Club’s costs shall be paid by the DEP and the CEDD, to be taxed if not agreed, with certificate for two Counsel. However, as I have not heard any costs argument, I shall make that order in the first instance on a nisi basis. The costs order will become absolute if no party makes application for variation of the nisi order within 14 days.
Mr Benjamin Yu SC and Mr Timothy Parker, instructed by Johnson Stokes & Master, for the applicant Mr Rimsky Yuen SC, Ms Anna Chow and Mr Martin Ho, instructed by the Department of Justice, for the respondent Mr Jin Pao SC, Ms Leticia Tang and Mr Zenith Chan, instructed by the Department of Justice, for the interested party | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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