Hong Kong Golf Club v. Director of Environmental Protection
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CACV 573 & 574/2024 [2026] HKCA 1525 On Appeal from [2024] HKCFI 1279 CACV 573/2024 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 573 OF 2024 (ON APPEAL FROM HCAL NO 1258 OF 2023) ____________
____________ CACV 574/2024 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 574 OF 2024 (ON APPEAL FROM HCAL NO 1258 OF 2023) ____________
___________ (Heard Together)
_________________ J U D G M E N T _________________ Table of contents
The Court: 1.This case concerns the environmental impact assessment report submitted on behalf of the Civil Engineering and Development Department (“CEDD”) for its study of developing part of the Fanling Golf Course for residential and other purposes. The Director of Environmental Protection (“DEP”), tasked by statute with assessing the acceptability of the report, approved it with conditions. On the application by the Hong Kong Golf Club (“Club”) for judicial review, Coleman J quashed the DEP’s decision. Both the DEP and CEDD have appealed to this court. 2.The scope of these proceedings should be made clear at the outset. The court is not asked to review the Government’s decision to take back the land and to build residential towers on it. These decisions, on which strongly held views have been expressed from different quarters, are not the subject matter of the application for judicial review. The court is only concerned with CEDD’s environmental impact assessment study. Even then, the essence of the question for the court is not whether the intended project is environmentally acceptable, but whether in approving the EIA Report, the DEP committed the alleged public law errors. 3.In his judgment dated 2 December 2024 (“Judgment”),[1] Coleman J found that a number of the alleged public law errors were established, including deficiencies in public consultation, failure to take into account relevant materials, misinterpretation of certain mandatory requirements or irrationality in concluding that the report met them, and lack of power in imposing some of the conditions attached to the approval of the report. The question for this court is whether the grounds advanced for impugning the judge’s decision are made out. (1) Proposed development at the Fanling Golf Course 4.The Fanling Golf Course (“FGC”), with an area of 172 ha, comprised three 18-hole golf courses called the Old Course, the New Course and the Eden Course, all run by the Club which is a private club founded in 1889. The Old Course was laid by the end of 1911. The New Course was added in 1931, and the Eden Course in 1970. A road called Fan Kam Road runs through the FGC. To the east of the road is an elongated area of 32 ha covering eight holes of the Old Course and various amenities, with the remaining 10 holes and the other two Courses lying in the 140 ha to the west. Both parts were (and the western part still is) run by the Club, on land leased from the Government. 5.Established by the Government in September 2017, the Task Force on Land Supply (“TFLS”) set about its task of identifying land supply options, conducted a public engagement exercise, and reported in December 2018. One of the options considered was making use of sites held on private recreational lease for development. Within this category, two options for developing FGC, as the largest of these sites, were canvassed: developing the entire FGC, and developing only the 32 ha to the east of Fan Kam Road. The TFLS recorded that the responses they received on FGC were polarised but, from the perspective of increasing land supply, it recommended that the Government should accord priority to studying and resuming the smaller portion of 32 ha. 6.On 20 February 2019, the Government announced that it endorsed the TFLS’s recommendation, and decided to develop the 32 ha to the east of Fan Kam Road (which will be referred to below as the “Land”) for the purpose of housing development, with emphasis on public housing. A project for such partial development of FGC (“Project”) was initiated under the management of CEDD. 7.The statutory process with which we are concerned here is laid down in the Environmental Impact Assessment Ordinance (Cap 499) (“EIAO” or “Ordinance”), whose purpose as stated in its long title is “to provide for assessing the impact on the environment of certain projects and proposals, for protecting the environment and for incidental matters.” Under the Ordinance, environmental impact assessment (“EIA”) is required for “designated projects”, which, as defined, include those listed in Schedule 3 to the EIAO. At all relevant times until an amendment on 30 June 2023, Schedule 3 contained two items, namely:
8.Since the Project covered a study area of 32 ha, it fell within item 1 and was a “designated project”, to which the relevant requirements of the statute accordingly applied. In particular, an EIA report needed to be prepared for approval by the DEP. 9.The process leading to the approval of an EIA report consists of a number of steps on which ss 5 to 8 of the EIAO make detailed provisions. For ease of reference those sections are set out in the Appendix to this judgment. (3) The project profile and application for study brief 10.As the first step, s 5(1) provides that a person who is planning a designated project shall apply to the DEP for an EIA study brief to proceed with an EIA study for the project (or, if certain conditions are satisfied, which are not relevant in this case, apply for approval to apply directly for an environmental permit). The statutory machinery is set in motion by the project proponent submitting (i) an application for an EIA study brief, and (ii) a project profile which has to comply with the “technical memorandum” issued by the Secretary for Environment and Ecology[2] under s 16 (see s 5(2)(b)). The technical memorandum is a document which applies generally to all designated projects; a study brief, on the other hand, is project-specific and sets the agenda for the rest of the EIA study process.[3] 11.The technical memorandum applicable in this case is the Technical Memorandum on Environmental Impact Assessment Process issued by the Secretary and published in the Gazette of 16 May 1997 (“TM”). It is a substantial document of 83 pages which include 22 annexes. The project profile of the Project (“Project Profile”) with the title “Technical Study on Partial Development of Fanling Golf Course Site – Feasibility Study” was submitted by CEDD to the DEP on 29 May 2019. (4) Consultation on the project profile 12.Under s 5 the DEP has to forward a copy of the project profile to the Advisory Council on the Environment (“ACE”), a non-statutory advisory body on matters relating to environmental protection and conservation. Its chairman and members are non-Government officials drawn from different sectors in the community. A day after lodging the project profile with the DEP, the project proponent has to advertise its availability to the public. Within 14 days of the advertisement, the ACE and any person may comment on the project profile. The DEP has to consider any comments received in drawing up the study brief. See ss 5(2)(c), 5(3) and 5(6). 13.Further, within 14 days of receiving the application, the DEP may request the applicant (i.e. project proponent) to give further information concerning the project profile. The DEP may also require the applicant to advertise the availability of the additional information or details relating to the information. See ss 5(4) and 5(5). 14.In the present case, CEDD duly advertised in newspapers to inform the public that the Project Profile was available for inspection for a period of 14 days (30 May to 12 June 2019). During this period, the DEP received a total of 13 written public comments from the Club and others, raising concerns on the impact of the Project on various matters. We shall refer to the Club’s submission at this stage as the Club’s “Project Profile Submission”. 15.Under s 5(7), the DEP has to issue the EIA study brief within 45 days of receiving the application or further information. The study brief in this case (“SB”) was issued on 9 July 2019. The SB is also a substantial document of 47 pages which include 14 appendices, setting out detailed requirements for the EIA study. A project proponent may appeal to the EIA Appeal Board against the content of the study brief (s 17(1)(a) & (i)). CEDD did not lodge any appeal against the SB in this case. Like the Project Profile, the SB was placed on the register kept by the DEP for public inspection pursuant to s 15. (6) The preparation and submission of the EIA report 16.The next stage is the preparation of the EIA report by the project proponent and its submission to the DEP. There is no prescribed time for this step, but the report has to be prepared in accordance with the technical memorandum and the study brief: s 6(1). Depending on the project, this may take a substantial period of time. In the present case it took over 33 months after the SB was issued for the report to be prepared and submitted. 17.On 30 September 2019, CEDD appointed a consultant, WSP (Asia) Limited (“WSP”), to undertake the technical study and prepare the EIA report. 18.Although the Project covered the entire 32 ha of the Land, by 2020 there was already a broad consensus among various Government departments and the consultant that urban development would be confined to one of four sub-areas into which the Land was conceptually divided, namely, Sub-Area 1, with an area of 9.5 ha lying at the northern tip of the Land and covering three holes of the Old Course as well as an open air car park, football and tennis courts and staff accommodations of the Club, while Sub-Areas 2, 3 and 4, assessed to be too ecologically sensitive, would be preserved as a public park with minimal development. 19.On 22 April 2022, CEDD submitted the EIA report for the Project (“EIA Report”) to the DEP pursuant to s 6(2). (7) DEP’s decision under s 6(3) 20.After receiving an EIA report, the DEP has to decide, within 60 days, whether it meets the requirements of the study brief and the technical memorandum: s 6(3). If he does not issue a decision within 60 days, he is taken to have decided that the report meets those requirements: s 6(5). The DEP’s decision that the report meets the requirements leads on to the next stage, that is to say, consultation with the ACE and the public: s 6(4) & (7) and s 7. 21.In the present case, the DEP decided that the EIA Report did meet the requirements of the SB and the TM. Pursuant to s 6(4), he notified CEDD by letter of 17 May 2022 that the EIA Report was suitable for public inspection and requested CEDD to make it available for public inspection in accordance with published guidelines. (8) Consultation on the EIA report 22.What follows within the statutory process is consultation on the EIA report. The project proponent has to make the report available for public inspection for 30 days and advertise, as the DEP may require, such availability once every 10 days: s 7(1) & (2). Members of the public may give written comments on the report before the period of public inspection expires: s 7(2)(c). The ACE may give any comments it has on the report within 60 days of receiving a copy of the report: s 7(5). 23.There is also a provision in s 7(3) that the DEP:
24.In the present case, advertisements were published on 20 May 2022 for public inspection of the EIA Report for 30 days starting from that date. There was no re-advertisement or extension directed under s 7(3). During the inspection period the DEP received a total of 1,451 public comments (including those from the Club), which were provided to the ACE on 5 July 2022 for their consideration. Following the nomenclature below, we shall refer to the Club’s comments on the EIA Report as its “Statutory Submission”. 25.The EIA Report was not given to the ACE at the start of the period of public inspection, but well after it ended, on 30 June 2022 (so that the 60‑day period for the ACE to comment on it would expire on 28 August 2022). The EIA Subcommittee of the ACE met on 18 July 2022 to discuss the report as well as the Club’s Statutory Submission. The Subcommittee could not reach a consensus but agreed to invite CEDD to attend the full Council meeting and provide additional information on a number of issues. 26.On 5 August 2022, CEDD submitted supplementary information dealing with the comments of the Subcommittee. 27.On 8 August 2022, the EIA Report was discussed at the 254th meeting of the ACE. Due to time constraints, the meeting was adjourned. On 18 August, CEDD submitted supplementary information in response to the issues raised at the ACE meeting. In the resumed meeting on 19 August, the ACE completed its discussions and, on 24 August, provided the DEP with its comments on the EIA Report in a letter that stated as follows:
A list of eight items was then set out, which was substantially reproduced in the DEP’s request to CEDD for additional information referred to in §29 below. (9) DEP’s request for further information 28.The next stage is for the DEP to consider whether he has all the information he requires to decide whether to approve the EIA report. If not, he may (but only if comments have been received from the public consultation or the ACE), within 14 days of the expiry of the public inspection period or the receipt of comments from the ACE, whichever is later, ask the project proponent to give him the information he requires: s 8(1) & (2). 29.In the present case, based on the ACE’s list referred to above, the DEP asked CEDD for further information pursuant to s 8(1) by letter dated 31 August 2022 seeking, as summarized by the judge:
30.The letter also stated that the information was sought for the DEP to decide whether to approve the EIA Report under s 8(3) and that the information provided would “form part of the EIA report” and would be uploaded to the department’s EIAO website for public access. (10) The supply of further information 31.The statute imposes no time limit for the project proponent to compile and supply further information in response to the DEP’s request under s 8(1). In this case, CEDD took 7.5 months and, on 18 April 2023, submitted the information requested (“Additional Information”) in draft to the DEP and ACE. Responding to items 1 to 4 and 6 to 7 of the DEP’s request, the Additional Information contained an additional bird survey, an additional moth survey, details of the previous bat survey, tree compensation and management plans, a hydrological impact assessment, and a shading impact analysis. In relation to item 5, however, no revised layout plan was put forward in the Additional Information, the reason given being that there would be adverse impact on the scale of public housing and range of commercial and public facilities if the woodland in question was to be preserved. 32.The draft Additional Information was placed online and came to the notice of the Club. On 25 April 2023, the Club wrote to the DEP requesting an opportunity to submit written comments on the information and also asked the DEP to confirm whether he would consider such written comments. The DEP did not reply. The Club nevertheless provided its comments to the ACE on 2 May 2023 and to DEP on the next day. We shall refer to these comments as the Club’s “Response to the Additional Information”, which included (as summarised by the judge):
33.The ACE held a meeting on 3 May 2023 to consider the draft Additional Information. While the chairman did invite CEDD and EPD to address the Club’s comments, from the minutes the judge observed that the Club’s Response to the Additional Information – provided to the members on or just prior to that day – “(though briefly referenced) had not really been taken into any proper consideration”.[4] 34.In a press statement issued following the meeting, the ACE indicated that its members considered that, for six of the eight topics (namely, bird survey, moth survey, bat survey, tree compensation and management plans, hydrological impact and shading impact), the Additional Information was in general sufficient to establish the conclusions of the EIA Report. As to the other two topics (detailed layout plan and a grave), members agreed that the project proponent had not fully addressed the ACE’s 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 that would preserve the 0.39 ha of woodland. The ACE’s views were formally sent to CEDD by letter on 10 May 2023. 35.On 4 May 2023, CEDD formally submitted the Additional Information to the DEP pursuant to his request under s 8(1). (11) The DEP’s decision on the EIA report 36.Under s 8(3), the DEP shall, within 30 days of (a) the expiry of the public inspection period, (b) the receipt of comments from the ACE, or (c) the receipt of information under s 8(1), whichever is the later, make a decision on the environmental impact assessment report for the designated project. The DEP may approve it, approve it with conditions, or reject it. The deadline in this case was 3 June 2023, being 30 days from the DEP’s receipt of the Additional Information. 37.In reaching his decision under s 8(3) the DEP has to be guided by the TM (s 16(4)). TM §4.5 provides:
38.Eventually, on 11 May 2023, the DEP decided to approve the EIA Report with conditions (“Decision”). The DEP’s letter to CEDD of that date stated:
39.Annex 1 to the letter set out the conditions of approval (“Conditions”) as follows:
40.The body of the letter went on to refer to the revised Layout Plan and the detailed Landscape and Visual Plan required by the Conditions and stated:
41.The letter also added:
The ACE’s recommendations (“Recommendations”) were as follows:
42.The approved EIA Report was placed on the register in accordance with s 8(5). 43.Two matters that occurred after the Decision are relevant to this appeal. Both of these matters feature in the DEP’s argument, discussed below, that the judicial review was academic and should not have been entertained. 44.First, Schedule 3 to the EIAO was amended, with effect from 30 June 2023.[5] The original item 2 was deleted, and item 1 was amended to:
45.Secondly, at the time of the TFLS’s study, the Land was held by the Club on a private recreational lease from the Government for a term expiring at the end of August 2020. Because the Government accepted the recommendation to study the development of the Land, the lease was, upon its expiry, replaced by a short-term tenancy for a term ending on 31 August 2023. Upon the expiry of that tenancy, 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, with the primary intention that about 22 ha of it (Sub-Areas 2, 3 and 4) 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, though the Land has continued to be made available to the Club under licence arrangements for periods when international golf championship tournaments require use of all three courses at FGC. C. The judicial review proceedings 46.Shortly after the Club filed an application on 21 July 2023 for leave to apply for judicial review of the DEP’s Decision, Coleman J granted leave. On 24 August 2023,[6] the judge granted an interim stay of the Decision pending judicial review but made clear that it would not prevent CEDD from conducting a review of the Project as required by the Conditions provided it did not involve any construction works at the site or result in any environmental damage. 47.The Club advanced four grounds for judicial review as follows:
48.In a very detailed and comprehensive judgment, Coleman J rejected the DEP’s argument that the application for judicial review was academic, and went on to find that Ground 1, Ground 2, Ground 3 (except in relation to drainage–sewage capacity, noise and land contamination) and Ground 4A were established. By way of relief, the judge quashed the Decision and awarded costs to the Club. In very brief terms, his Lordship’s reasons were as follows:
49.Both the DEP and CEDD appeal against the Judgment.[8] They both contend that the judge erred on the Consultation issue, the Consideration issue, the Compliance issue and the Conditions issue (i.e. Grounds 1, 2, 3 and 4A below), with the DEP further contending that the judge should have refused judicial review on the ground that it was academic and served no useful purpose. As was the case below, the arguments advanced on appeal on behalf of the DEP have concentrated on the Consultation issue, the Consideration issue, the Conditions issue and the “academic” point, while CEDD’s submissions have focussed on the Compliance issue. 50.For its part, the Club has filed a respondent’s notice raising additional points in support of the judge’s conclusions but also contending that the judge should have found the complaints under the Compliance issue established in relation to noise (both sub-topics) and land contamination. At the hearing, however, Mr Benjamin Yu SC who appeared for the Club confirmed that the points relating to FGC as a noise-sensitive receiver and land contamination would not be pursued. 51.Starting with the broader grounds before descending to the detailed points on the individual environmental topics, we shall deal with the matters arising in the following sequence:
E. Whether the application for judicial review was academic 52.There is no dispute on the general principles that the court will usually refuse to entertain an application for judicial review when the issue involved has become academic and that the court may in its discretion decline to grant a remedy in judicial review if an order would be pointless or serve no practical purpose. 53.Relying on three matters, Mr Rimsky Yuen SC submitted on behalf of the DEP that the Club’s application for judicial review was academic. We do not accept this argument. 54.The first is that under the Project, the proposed housing development would only take place over an area of 9.5 ha. It is argued that as such, it would not fall within a “designated project” as set out in Schedule 3 to the EIAO even before its amendment in 2023. Like the judge,[9] we do not agree. The Project Profile submitted was for a project covering the entirety of the Land with an area of 32 ha. The SB was prepared and issued by the DEP on that basis. The fact that CEDD subsequently decided that the housing development would be concentrated within an area smaller than 20 ha does not mean that the Project did not have “a study area covering more than 20 ha” (item 1 of Schedule 3 prior to its amendment). The EIA Report itself stated that the “Potential Development Area” covers 32 ha and that the Project is therefore a “designated project” requiring an EIA report.[10] 55.The second matter relied on is that the Club’s short-term tenancy came to an end and the Land reverted to the Government after 31 August 2023, which as indicated has no intention of operating a golf course there. We do not think this made the judicial review academic. The Club did not seek to challenge the Government’s decision to take back the Land and to use it for purposes other than a golf course. The judicial review was about the validity of the DEP’s approval of the EIA Report for the housing development project. There is no suggestion that the Club lacked standing for seeking judicial review because it was no longer the tenant of the Land. 56.The third matter is that, as mentioned in §44 above, Schedule 3 to the EIAO was amended with effect from 30 June 2023. Mr Yuen submitted that this has two consequences which render the Club’s application academic. First, the DEP no longer has any statutory power to consider an EIA report or to approve or reject it. Secondly, the Government can proceed with the proposed housing development outside the EIAO regime, i.e. without an EIA report approved under the Ordinance. 57.In our view neither point renders the proceedings academic. As to the first, whereas there is provision in s 4(3) of the EIAO concerning the effect on an existing project of the addition of a designated project to Schedule 2 or 3, there is no equivalent provision in relation to an existing project that, by reason of an amendment, ceases to be a designated project. Nevertheless, having regard to the other provisions of the EIAO, we are not persuaded that the DEP was, by the 2023 amendment, completely deprived of powers with respect to the Project as Mr Yuen submitted. The trigger for the EIA process is s 5 which provides that a person “who is planning a designated project” shall submit a project profile and apply for a study brief. Thereafter the process continues, leading eventually to the submission of an EIA report under s 6 and its approval or rejection by the DEP under s 8(3). The DEP’s duty to consider the report and his power to approve or reject it accrue by reference to the expiry of the public inspection period, receipt of ACE’s comments or receipt of requested further information from the project proponent, whichever is the later. In the present case all of this occurred prior to 30 June 2023, at a time when the Project was a designated project. The quashing of the Decision on the grounds complained of would make it a nullity[11] and thus leave the DEP’s duty under s 8(3) unfulfilled. Nothing in s 8(3) suggests that the DEP can simply forget about an EIA report submitted for approval once the project it concerns ceases to be a designated project by reason of an amendment of Schedule 2 or 3. We do not think that the amendment of Schedule 3 has the effect of removing all accrued obligations and powers.[12] 58.In any event, even assuming that immediately upon the amendment, the DEP lost all powers to assess any EIA report in relation to the Project because it ceased to be a designated project, the fact remains that he had approved the EIA Report with conditions. There was a live question whether the Decision should be quashed and the EIA Report taken off the register as a consequence. Mr Yuen submitted that after the amendment, the EIA Report, albeit registered, has no legal effect and has “at most, reference value”. We do not think this accurately states the legal position. EIA reports placed in the register become, as it were, public goods under the EIAO. Where relevant, they can be relied upon by any person for the purposes of applying for permission to apply directly for an environmental permit without obtaining a study brief and preparing another EIA report (s 5(9)), or applying for an environmental permit (s 10(1)(b) & 10(2)(e)). Section 11 of the TM provides guidance on the use of previously approved EIA reports. As the EIA Appeal Board, chaired by Mr Barry Mortimer GBS QC, wrote in Kowloon-Canton Railway Corporation v Director of Environmental Protection (EIA Appeal Board No. 2 of 2000, 30 July 2001) (“KCRC v DEP”), once entered in the register, an EIA report “acquires a special status and can be relied upon during the period that it remains relevant for other projects.” We can see no basis for suggesting that by the time of the proceedings below, the EIA Report had become so obsolete or otherwise irrelevant that it could no longer conceivably be relied upon by anyone for purposes under the EIAO, including CEDD in relation to any subsidiary Schedule 2 designated projects on the Land. It follows that a quashing order, even without leading to re-consideration by the DEP, was not pointless. 59.This also answers Mr Yuen’s second point, that after the amendment the Government could pursue the Project without going through the EIAO process at all. The evidence was that, even after June 2023, CEDD was pursuing the Project and seeking to fulfil the Conditions with a view to submitting revised plans and measures to the DEP for approval. Further, without presuming whether or not the Government would make a “U-turn” as the judge described it,[13] the EIA Report and the complaints raised against it in the judicial review are plainly matters which the Government at least can and may well take into account in any further deliberation, even outside of the EIAO regime, on the Project and on the future use of the site. The judge was entitled to think that there was sufficient public interest for the matters to be ventilated and, to the extent required, ruled upon by the court in these proceedings. 60.Mr Yuen placed considerable reliance on R (on the application of Edwards) v Environment Agency (Cemex UK Cement Ltd, intervening) [2008] UKHL 22, but it concerned very different facts. There was an application to the agency for a permit for activities involving the use of shredded tyres as fuel. The agency got its in-house experts on air-quality to run their own computer model and report. The report, produced in January 2003, predicted that the relevant environmental standards would be breached locally, but the agency decided to grant the permit in August 2003 nonetheless, taking the view that breaches were unlikely to occur in practice. The local residents, seeking judicial review, complained that there was a failure to publish the in-house reports and thus a failure in properly discharging the duty of consultation. The lower courts accepted there was such a failure, but found that it was in all the circumstances not a sufficient reason for quashing the permit. In particular, since the grant of the permit, there had been reports prepared on the actual emissions from the plant, showing they did not exceed applicable standards. In the House of Lords, though the point was not the subject matter of appeal, Lord Hoffmann (with whom Lord Hope and Lord Walker agreed) said he would not have held that there was a common law duty to disclose and consult on the in-house reports (§44). But he also said, agreeing with the lower courts, that relief should in any event be refused for the breach of that duty because it would be pointless to quash the permit to enable the public to be consulted on out-of-date data based on predictions when there were reports clearing the actual emissions (§65). 61.The present case is plainly quite different. The proposed development has not yet been built. There has not been any assessment of the actual environmental impact of that development and there have not been any reports stating that the actual impact meets all relevant standards. With respect, R (Edwards) v Environment Agency provides no assistance to the DEP’s argument. On the contrary, the argument is undermined by what Lord Hoffmann said there at §63, that “in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it.” The same point was made in Shiu Wing Steel Ltd v Director of Environmental Protection & Airport Authority (No 2) (2006) 9 HKCFAR 478 at §91, where the Court of Final Appeal, having found the EIA report to be non-compliant with the technical memorandum and the study brief because of the absence of a particular quantitative risk assessment, said that there would have to be some “exceptional reason” to justify refusing to grant judicial review of a decision to approve it. We do not think that the DEP has shown any exceptional reason why, even if the court is satisfied that the Decision was ultra vires, it should in its discretion decline to quash it. 62.For the above reasons we agree with the judge that the challenge was not academic and that it was not pointless to grant a quashing order. Even if the application for judicial review had become academic, the judge had a discretion to entertain it: Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, §20. It seems to us that the DEP has not been able to establish any ground that would have entitled this court to interfere with the judge’s exercise of discretion to entertain the application. F. The Consultation issue – whether the Decision should be impugned for failure to consult on the Additional Information (1) The interpretation of the statutory scheme 63.The judge held that the requirements of the EIAO were breached because the public were not consulted on the Additional Information which in substance formed part of the EIA Report and that fairness and integrity of the statutory process demanded there be re-consultation. On behalf of the DEP Mr Yuen submitted that the judge erred in law. His argument may be summarised as follows:
64.We see the force of these submissions but it seems to us that, on analysis, the judge’s conclusion is correct. 65.We accept that the statute sets out a structured and prescriptive regime for public participation, with public consultation at two specific stages: first, pursuant to s 5(6), on the project profile; and secondly, pursuant to s 7, on the EIA report. There is no express provision requiring another round of consultation on any further information supplied on the DEP’s request pursuant to s 8(1). Instead, under s 8(4), the DEP has to reach a decision within 30 days. The structure is consistent with the sentiments discernible from the legislative materials[14] that the EIA process should be streamlined and checked by time limits so as to strike a balance between protection of the environment and progressing important development projects efficiently. These two interests were highlighted by the Appeal Board in the early case of KCRC v DEP in a passage cited with approval by Tang VP (with whom Hartmann and Chu JJA agreed) in Chu Yee Wah v Director of Environmental Protection [2011] 5 HKLRD 471, §31:
66.Having regard to the detailed structure laid out with a purpose of controlling the length and complexity of the EIA process and reducing uncertainty to projects, it is understandable that the DEP has placed reliance on Lord Hoffmann’s observation in R (Edwards) v Environment Agency (supra) at §44 that “[w]hen the whole question of public involvement has been considered and dealt with in detail by the legislature, I do not think it is for the courts to impose a broader duty.” Similarly, in Ho Loy & Anor v Director of Environmental Protection (HCAL 21 & 22 /2015, 22 December 2016), at §45, Chow J said, generally speaking, compliance with the express obligations imposed by the EIAO should be regarded as a sufficient discharge of the DEP’s duties in relation to the environmental impact assessment process and the court should not readily impose additional obligations on the DEP over and above what is expressly required by the Ordinance. 67.Given this carefully calibrated balance in the EIAO, it would, we accept, be wrong to hold that a duty to consult the public invariably arises whenever further information has been requested and obtained by the DEP under s 8(1). To graft upon the detailed statutory scheme an extra layer of consultation as a general duty would not be justified. But this is not what Coleman J did. His Lordship only held that on the facts of this case, the integrity of the statutory process and fairness required further public consultation on the Additional Information. The correct analysis leading to that conclusion, which is reflected in the judge’s reasoning, seems to us to be as follows. 68.The starting point is that the statute imposes a general duty to consult on the EIA report. But not every EIA report submitted to the DEP will necessarily go out directly for consultation. This only applies where the DEP decides (provisionally) that the assessment “meets the requirements of the environmental impact assessment study brief and technical memorandum” (s 6(3)-(4)) and the report is thus “suitable for public inspection” (s 7(4)). As the Appeal Board stated in KCRC v DEP, should the EIA report not meet the requirements of the study brief and technical memorandum in any way, the DEP should not allow it to be exhibited but should indicate the defects (see s 6(6)) so that the report may be amended and re-submitted; otherwise “the following public consultation and submission to ACE will be a waste of time and money”, since the report cannot be approved under s 8(3) unless it meets those requirements. 69.As a matter of public law, where consultation is undertaken, whether voluntarily or as required by statute, it has to be done properly and fairly: PCCW-HKT Telephone Ltd v Telecommunications Authority [2008] 2 HKLRD 282, §12. Where the consultation is mandated by statute, the content of the attendant duty of procedural fairness will be informed by the objects of the statute in requiring consultation and by its place in the entire statutory process. In the context of the EIAO, as the judge said, the premise of the statutory scheme is that the EIA report must contain all the necessary assessment and the entire proposal to be presented to the public for there to be meaningful public participation within the time-limited process. The process is intended to be “highly transparent” with “full opportunity” for stakeholders including members of the public concerned about environmental issues to comment and state their views (Leung Hon Wai v Director of Environmental Protection (2015) 18 HKCFAR 568, §26). The fact that there is ordinarily only one chance for the public to comment on the report makes it all the more important that it should be as comprehensive as required.[15] Further, the study brief, which sets the agenda for the process that follows, has itself been prepared after considering comments from the public on the project profile (s 5(6)) and reflects the relevant concerns of the public. In particular, therefore, the EIA report ought to contain such information as is necessary in order for the public to express meaningful views on the project proponent’s response to those concerns. Mr Yuen submitted that common law principles can be impliedly modified by statute, but we do not understand him to be saying that the principle that the consultation on the EIA report mandated by ss 6 and 7 must be fair has been displaced. 70.Where a deficient EIA report is exhibited for public inspection, the consultation may be unfair and defective because it is conducted without sufficient information being provided to the public, contrary to the common law requirements of fair consultation, and possibly also because it is based on an erroneous decision under s 6(3) and (4) that the report meets the requirements of the technical memorandum and the study brief when in fact it does not. 71.Whilst, after the consultation, further information that remedies the deficiencies may be requested and supplied under s 8(1), this does not in itself redress the defect in the prior consultation; otherwise public consultation could be circumvented in part by critical material being provided only afterwards. In our view it could not have been the legislative intention for public participation – a central pillar to the statutory scheme – to be side-stepped in this way. 72.In other words, where the EIA report is deficient, and matters that could and should have been put out for public inspection as part of the report are only provided as further information pursuant to s 8(1), the consultation may consequently be unfair and defective, and any decision to approve the report under s 8(3) liable to be quashed for that reason. 73.In such circumstances, instead of requiring consultation on the entire report to be re-conducted under s 6, what Coleman J held is that the position may be salvaged by conducting a further but limited consultation only on the further information provided – a benevolent interpretation that allows deficiencies in the public consultation to be cured. As the judge put it in his Judgment at §135: “In essence, re-consultation will arise where a prior step in the statutory scheme or process has not been properly completed.” It arises as an opportunity to cure any prior defect in the process, rather than out of any obligation as such to consult on the further information. It is not the DEP’s position, as we understand it, that as a matter of law no such defect is capable of being cured. An example of a defective environmental report being cured by subsequent material is Cogent Land LLP v Rochford District Council [2013] 1 P & CR 2, where Singh J held that a defect in the adequacy of a report prepared for a strategic environmental assessment required by EU directive may be cured by the production of supplementary material by the plan-making authority, subject to there being consultation on that material. His reasoning was approved by the UK Supreme Court in R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52 at §66. Both cases were cited by Coleman J in his Judgment at §34. The statutory scheme with which we are concerned is of course different, but as a matter of general principle we see no reason why an inadequacy or defect in a report prepared under the EIAO cannot equally be remedied by the production of and consultation on supplementary material. 74.Does the Ordinance either provide for or preclude such supplementary or remedial consultation? At the hearing reference was made to s 7(3) (quoted in §23 above). The judge appears to have placed some reliance on it,[16] but Mr Yu made clear that the Club does not directly rely on the power to re-advertise under s 7(3). For our part we also doubt whether s 7(3), read in its context, is apt to apply to consultation on further information obtained subsequently under s 8(1), as opposed to consultation on the report itself. Nor is it clear that every defect in the original consultation can properly be described as a failure to comply with a requirement under Part II of the EIAO as referred to in s 7(3). 75.But just as the Ordinance does not expressly provide for re-consultation on the further information, neither does it preclude it. In the present case, the ACE was in substance consulted on the Additional Information, even though there was no provision for this in the EIAO. Nor does the limited time of 30 days under s 8(3) implicitly preclude consultation. Even without using the method of providing the further information in draft (as was adopted in the present case), one should not assume that no consultation can possibly be done in time on the further information, which ought not to have been of a fundamental and substantial nature in the first place. In the present case, the Club was able to compile its Response to the Additional Information within 8 business days. 76.Mr Yuen referred to s 5(4)-(5) which provide that, at the earlier stage of applying for the study brief, the DEP may request for further information concerning the project profile, and may require the applicant to advertise the availability of the additional information. In comparison, he observed, there is no similar provision in s 8 for advertisement following the provision of further information. In our view this does not support his argument. The s 8 process which follows consultation on the report presupposes that the report was correctly cleared by the DEP as suitable for consultation (ss 6(3), 6(4), 6(6), 7(1), 7(4)) and that the consultation was fair. Little can be read into the absence of provision for further consultation where the original consultation was deficient. 77.The judge derived some support from KCRC v DEP.[17] The facts of that case are different, but in our view it sheds light on the principles involved. There, after public inspection of the EIA report, further information was sought under s 8(1), which became an appendix to the report, but the DEP ultimately rejected the report under s 8(3). In the appeal, the applicant put forward new assessments and proposals in response to the DEP’s reasons for rejecting the report. The applicant argued that the Appeal Board had jurisdiction to entertain the new evidence and approve the report with conditions under TM §4.5.2 (quoted in §37 above). The applicant submitted that the §4.5.2 procedure takes place after the time for public consultation has come to an end and the applicant was not circumventing this consultation, noting that “the public has no participation when further information is provided to the Director on his request under section 8(1).”[18] In response to this argument the Appeal Board stated:
After noting that there is a discretion under §4.5.2 to approve the report with conditions instead of insisting on amendments to the report but that it is a “residual” discretion, a “safety net” provision, the Appeal Board continued:
78.These comments were directed in that case at the discretion under TM §4.5.2. But the emphasis on public participation in the process is in our view equally applicable in the present context. The power to seek further information under s 8(1) and to approve the report after receiving such information must likewise be used in a way that preserves the integrity of the process not to circumvent it. As explained above this may entail consultation on the further information supplied where fairness seen in the context of the statutory scheme requires it. (2) The nature of the Additional Information 79.If this is the correct analysis of the position under the statutory scheme, the question that arises in a given case is whether, on the facts, the process of public inspection and comment would be deficient and unfair without further consultation on the supplementary information. This requires an examination of the further information supplied, in comparison with what was and was not contained in the original report. 80.By definition, the information requested under s 8(1) is not contained in the exhibited report and is something new. Again, by definition, it is information that the DEP requires for the purpose of deciding whether to approve the report, and is therefore, in that sense, of significance. It may well be something that arises out of or responds to consultation comments of the public or the ACE. Indeed the DEP can only request further information where such comments have been received: see s 8(2). But all this does not show that there must be further consultation; otherwise it becomes a requirement superimposed on s 8(1) in every case, which does not seem to us to be the legislative intention. Whilst public participation is important, there is nothing in the Ordinance to suggest that the public must have the “last word” in the process. On the contrary, TM §4.5.1(c) (quoted in §37 above) requires an EIA report to address relevant environmental issues raised by the public and the ACE during the public inspection period. Since the report precedes public inspection, this requirement may entail further information being requested by the DEP under s 8(1). Thus the Appeal Board advised in KCRC v DEP at pp 24-25 as follows:
The fact that further information is thus provided which is not in the original report does not in itself mean that there should be further consultation on that information. 81.Nor, in our view, can much weight be attached to the fact that the DEP directs that the further information be treated as part of the approved report to be placed on the register. This treatment ensures that the totality of the material emanated from the applicant, once approved, is put on the register and accessible to the public, and should not in our view be read as an admission by the DEP that the information should have been exhibited for consultation. 82.On the other hand, contrary to Mr Yuen’s submissions, the mere fact that the further information supports or affirms rather than changes the conclusions in the EIA report does not imply that no further consultation will be necessary. Depending on the circumstances, the assessments and methodologies may be debatable and a proper subject matter for consultation. Ultimately it is a question of whether, given the object of public participation in the EIA process, fairness requires that there be consultation on the further information. 83.In the present case, the judge concluded that the Additional Information did contain information which ought to have been substantially included within the original EIA Report, giving hydrological impact assessment (“HydroIA”) as an example.[19] 84.We agree that this is a clear example that supports the judge’s conclusion. The topic of hydrology and Chinese swamp cypress (“CSC”) is dealt with in greater detail below in §§161-205 as a sub-head under the Compliance issue. For present purposes it is sufficient to note the following:
85.The judge held that, so far as HyrdoIA and CSC are concerned, even the Additional Information produced in May 2023 did not meet the requirements of the SB and the TM. As will be seen below, we reject the challenge against this holding. It follows, for even stronger reasons, that the original EIA Report itself did not comply with the SB and the TM. It did not contain any real assessment of hydrological impact and the ecological impact on CSC. The public was not provided with any such assessment on which to give meaningful comments. The EIA Report failed to pass the requirements of fair consultation at least in this respect. The Additional Information, produced in an attempt to meet the deficiency, ought to have been exhibited for public comments, to redress that unfairness. 86.In its respondent’s notice, the Club contends that the other matters in the Additional Information should also have been exhibited for supplementary consultation. It is unnecessary for us to deal with them. 87.For the above reasons, the appeals fail in relation to the Consultation issue. G. The Consideration issue – whether there was a public law error in failing to consider the Club’s Response to the Additional Information (1) On the basis there ought to have been further consultation on the Additional Information 88.Under Ground 2 of the judicial review, the Judge held that if Ground 1 is established, so that there ought to have been further consultation on the Additional Information, then the Club’s Response to the Additional Information necessarily had to be taken into account by the DEP in deciding whether to approve the report under s 8(3). We do not understand Mr Yuen to dispute this reasoning, which seems to us to be correct. One of the established requirements of proper consultation is that the responses received must be conscientiously taken into account in reaching the decision about which the public body is consulting: Lam Yuet Mei v Permanent Secretary for Education and Manpower of the Education and Manpower Bureau [2004] 3 HKLRD 524, §50; R (Moseley) v Haringey London Borough Council [2014] UKSC 56, §25. (2) Assuming there was no duty to consult on the Additional Information 89.What is the position if the public have provided responses to the further information supplied under s 8(1) even though the scope and nature of the further information is such that the DEP was not obliged to and did not in fact undertake a supplementary consultation? In the light of our conclusion on the Consultation issue, the question does not arise in this case but we shall state our views as the matter has been fully argued. 90.The DEP submits that TM §4.5.1(c) (quoted in §37 above) expressly limits the DEP’s consideration to environmental issues raised by the public and the ACE “during the public inspection period”. This reflects the legislative intent that public consultation should be confined to what is expressly stipulated in the EIAO. Requiring consideration of unsolicited responses submitted voluntarily after the consultation period would subvert the statutory scheme. Under s 8(3), the DEP has only 30 days from receipt of additional information to reach a decision. There is no power to extend this deadline. Requiring the DEP to consider late responses would make compliance impossible. 91.TM §4.5.1(c) does not in our view have the effect of precluding the DEP from considering comments on the further information. In fact, there is no dispute that despite TM §4.5.1(c), the DEP can and did in this case take into consideration the ACE’s comments on the Additional Information. 92.Neither the EIAO nor the TM contains any provision precluding the DEP from taking into account such comments. Equally neither contains any provision requiring him to do so. That being the case, as a matter of general principle, such comments fall within the category of matters “to which the decision-maker may have regard if in its judgment and discretion it thinks it right to do so”: Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, 439, per Godfrey JA. Depending on the facts, however, a matter may be so obviously material to a decision that it would be irrational not to take it into consideration. 93.On the facts in this case, the judge held that it would be Wednesbury unreasonable not to take account of the Club’s Response to the Additional Information. They were materials prepared by qualified and independent consultants addressing data on the central questions to be addressed, and directly in response to materials of a similar nature in the Additional Information which had not been exhibited for public comment but which had been requested by the DEP to enable himself to make the required decision. There was no lack of time to consider the materials, given that the Club presented them on 3 May 2023, even before CEDD formally submitted the Additional Information to the DEP initiating the 30-day period. There is no real ground advanced to challenge this conclusion of the judge. (3) Whether the Club’s Response to the Additional Information was in fact taken into consideration 94.Separately, Mr Yuen submits that as a matter of fact, both ACE and the DEP did consider the Club’s Response to the Additional Information. The DEP maintained his legal position that he was not obliged to do so, but nonetheless reviewed the Club’s submissions. 95.The judge rejected this contention below. He noted that the Decision itself identifies that whilst the Additional Information was taken into account, the Club’s response was not. The evidence goes no further than saying that the EPD “conducted an internal review of [the Club’s Response to the Additional Information] before recommending DEP’s approval” of the EIA Report. The exhibit relating to this review shows that a line-to-take document was prepared at the time which 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 press conference “if pressed”. There was ample basis for the judge to find as a fact that the Club’s response had not been taken into account. There is no basis for this court to interfere with this finding. 96.For these reasons, the appeals also fail in relation to the Consideration issue. H. The Conditions issue – whether the conditions imposed were improper and unlawful 97.In the Decision, the DEP stated that the EIA Report was approved subject to the Conditions, which have been set out in §39 above. In brief, they require, among other things: (a) revision of the Layout Plan to minimise tree felling and preserve a 0.39 ha woodland “as far as practicable”; (b) submission of a detailed Landscape and Visual Plan with stepped building heights; (c) development of a “spongy city” concept to protect groundwater; (d) a tree management plan; and (e) incorporation of the Additional Information into the approved report. 98.The judge acknowledged that the DEP has a broad discretion under s 8(3) of the EIAO to approve an EIA report with conditions provided they serve the objectives of the EIAO, but he found the Conditions problematic for three main reasons. First, they effectively require CEDD to go back and redesign significant aspects of the Project, suggesting that the EIA Report was not truly approved. Second, the Conditions contain vague and subjective terms (e.g., “as far as practicable”, “substantially affecting”) that lack objective criteria for compliance, making enforcement difficult. Third, the condition requiring submission of revised plans for the DEP’s approval circumvents the statutory consultation process, depriving the public and ACE of the opportunity to comment on material changes. 99.On behalf of the DEP Mr Yuen contended that the judge erred in impugning the Conditions. He submitted:
100.Despite these arguments, we do not think that the judge erred in upholding this ground of challenge. 101.As a matter of general principle, whilst the statutory wording is general, suggesting that the discretion on the part of the DEP to impose conditions is wide,[26] it is not in dispute that a condition may be invalid if it lacks certainty or finality. Nor does the DEP dispute that an approval with conditions is invalid if the conditions require or permit a fundamental alteration of the project that is the subject matter of the EIA report. 102.These constraints arise from a correct appreciation of the statutory scheme itself. Under s 8(3) of the EIAO, the DEP is empowered to do one of three things: approve a report, approve it with conditions, or reject it; and he must do it within 30 days of (i) the expiry of the public inspection period, (ii) the receipt of comments from the ACE, or (iii) the receipt of further information under s 8(1), whichever is the later. This is a decision finally disposing of the application for approval of the report initiated by the applicant under s 6(2). An appeal from a decision not to approve an EIA report lies to the Appeal Board under ss 17(1)(c) and 17(1)(v). A condition that renders an approval lacking in finality, such as one that in substance defers to a later stage the final decision subject to a potential revision of the project in a fundamental aspect, seems to us to fall outside the contemplation of the Ordinance. 103.Further, TM §4.5.2 (quoted in §37 above) envisages that an EIA report may be approved with conditions that require amendments to be made, but only if the amendments “will not affect the validity of the assessment and the overall results and conclusions of the report”. Actions required by the conditions imposed necessarily take place after the consultation of the public and ACE has ended. If by stipulating conditions, approval is in effect given for a report subject to major revisions, the process of public participation that is a central element in the statutory scheme would be bypassed. This is the mischief identified by the Appeal Board in KCRC v DEP when it opined that TM §4.5.2 is a “safety net”, “to be used to preserve the integrity of the process not to circumvent it” (see §77 above). It follows that it could not have been the legislative intention for an approval to take effect as one for a development significantly different from that for which the EIA study was conducted. 104.On the other hand, as the judge accepted, a condition will not necessarily be invalid because it retains in the decision-maker some ongoing flexibility in relation to implementation of the approved activity, or because it delegates some authority in relation to implementation to some other person or agency. Questions of degree are involved in determining whether a condition is so uncertain or leaves so much to be decided subsequently as to be outside the power conferred.[27] 105.In the present case Condition (a) called for CEDD to revise the Layout Plan with a view to minimising tree-felling and preserving the 0.39 ha of woodland, and Condition (b) required CEDD to submit a detailed Landscape and Visual Plan adopting a stepped building height profile with a view to reducing the footprint whilst minimising the visual impact. The Decision itself further stated:
106.Coupled with two of the Recommendations annexed to the Decision, namely (b) and (c) (see §41 above), it is fair to say that CEDD was in effect being told to go away and redesign and rethink the Project, and to submit new plans for the DEP’s approval. 107.Although the aims for the re-design were specified in Conditions (a) and (b), no parameters were set and no constraints were specified, permitting therefore a significant or even fundamental change in the layout of the proposed development. Nor is it clear by what criteria the DEP will decide whether to approve the subsequent plans. 108.It cannot be assumed that any revision by the project proponent along the lines of Conditions (a) and (b) would be an improvement in terms of environmental impact in every respect. Significant revisions to the layout plan such as permitted by the Conditions could result in quite a different creature to that consulted upon in the EIA Report. Thus, for example, when the DEP requested pursuant to s 8(1) for further information including a revised layout plan for preserving the woodland of 0.39 ha at the centre of Sub-Area 1 (see §§29 and 31 above), CEDD declined, stating that preserving the woodland “would displace a residential block, the integrated commercial cum carpark building and part of the PTI cum GIC building.”[28] Compliance with Condition (a) – essentially a repetition of the same request – could therefore result in a substantially different design. 109.The evidence shows that changes in housing footprint, disposition and density may well have an impact on hydrology and underground and surface water regimes, landscape and visual impact as well as light and noise impacts. As the judge observed:[29]
It cannot be assumed that revisions to the Layout Plan and to building heights as required by the Conditions will necessarily lessen the adverse impact on the environment in all respects. 110.As explained above, the Ordinance requires a decision to be made under s 8(3) for the final disposition of the application within the prescribed time. An approval “subject to” the condition of submitting these revised or further plans for approval seems to suggest that approval was deferred, and that the EIA Report could not be regarded as approved unless and until those subsequent plans were submitted and approved. Hence the judge found that there was as yet no real approval. Such an “approval” subject to conditions seems to us to lack the requisite finality and certainty. 111.Mr Yuen submitted that the approval granted was final and that the EIA Report should be regarded as having been approved even if the Conditions were not fulfilled – such as if CEDD refused or failed to submit any revised plans as required or the submitted plans were not approved by the DEP. It is, with respect, difficult to see the legal basis of this contention. An approval “with conditions” (s 8(3) of the EIAO) or “subject to” conditions (s 40(2)(b) of Cap 1) suggests that the approval is conditional. To say that such approval is effective whether or not the conditions are satisfied would, as the judge observed, make a mockery of the idea of giving conditional approval.[30] 112.Further, irrespective of whether the Conditions could be said to be merely “aspirational,” they called for the re-submission of revised plans and purported to empower the DEP to approve such plans. But it is wholly unclear what the legal status of such plans and their approval would be. Mr Yuen submitted that the approval (or lack of it) would not affect the EIA Report but was instead for the construction stage. This suggests that it is contemplated that approval may thereby be given – presumably through or coupled with an environmental permit – for the construction of a project which has been substantially altered from that studied in the EIA Report and which has not separately gone through any consultation exercise. In our view this is not a process envisaged in the statutory scheme. 113.For these reasons, the appeals also fail in relation to the Conditions issue. I. The Compliance issue – whether the EIA Report failed to comply with the requirements of the TM and the SB (1) Introduction and relevant legal principles 114.Under the Compliance issue (Ground 3 of the judicial review), the Club argued that the EIA Report does not comply with the requirements of the TM or the SB. Further, no rational decision maker could have come to the decision that the EIA Report complies with the requirements of the TM or the SB, or that the Project was environmentally acceptable. That being so, the Decision to approve the EIA Report is ultra vires and Wednesbury unreasonable. 115.The non-compliances identified by the Club are summarised in a table in Annex 2 to its Form 86. That table of 43 pages is a synopsis of the alleged errors and omissions raised in the Club’s Project Profile submissions in mid-2019, its Statutory Submission made in June 2022 and its Response to the Additional Information made in May 2023. The judge was urged to decide practically every point in dispute, because some of the arguments and the decisions on them may have an impact beyond this case and the Project. As a result, the Judgment has “covered more ground and information than is strictly necessary for the decision-making critical path”.[31] 116.Of the rulings made by the judge under this Ground, nine are the subject of the appeals of the DEP and CEDD and the respondent’s notice of the Club.[32] The topics are: (a) Old and Valuable Trees (“OVTs”); (b) tree survey and compensation; (c) hydrology and CSC; (d) cultural heritage; (e) bats; (f) moths; (g) Northern Metropolis; (h) waste; and (i) noise – Fan Kam Road widening. On these topics the Club largely succeeded, as the judge ruled in its favour on all but the last one. 117.Before dealing with each of these nine topics, we set out succinctly the relevant legal principles. Many of them have been discussed in some detail in the Judgment with citation of the relevant authorities.[33] We do not understand the parties to have raised any substantial dispute regarding them on appeal, save in one respect. 118.The DEP has no power to approve an EIA report under s 8(3) of the EIAO if it does not comply with the requirements of the technical memorandum or the study brief. 119.The correct definition of what the technical memorandum and the study brief require is a question of law for the court. In construing language which affects legal rights and duties, the court is constrained to arrive at a single meaning to define those rights and duties. It must find the single meaning of the relevant provisions of the technical memorandum and the study brief, and the procedure they prescribe, to determine the scope of the DEP’s power to approve the EIA report. The matter is to be determined objectively, and is not a question of whether the DEP acted reasonably in attributing a given meaning to the technical memorandum and the study brief. As technical instruments, they must be understood as an expert risk assessor, properly understanding the legal requirements they create, would understand them. 120.Whilst there is a single meaning of the technical memorandum and the study brief, that meaning may apply to one or more sets of facts.[34] Technical evidence may be needed to show that an EIA report meets or does not meet the requirements as determined by the court.[35] It has also been said that although it is a matter of construction for the court to decide what is required by the technical memorandum or the study brief, it is often a question of professional judgment what information is required to be contained in an EIA report to enable the DEP to perform his duties. In that case unless the judgment is Wednesbury unreasonable, the court is not entitled to interfere.[36] The above seems to us a more accurate description than the statement in the Judgment at §31 that “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.” Accordingly, on appeal to this court, the question that arises will be whether the judge is correct in his construction of the technical memorandum and the study brief or in finding the DEP’s relevant judgment Wednesbury unreasonable, as appropriate. 121.The only significant legal point where the parties differ is whether the DEP has power to approve the report if the non-compliance is “minor, insignificant or inconsequential”, where the breach is “purely technical and has no material impact on the decision or on the environment”. For the DEP, Mr Yuen submitted that compliance does not require “strict compliance”; so long as there is “substantial compliance”, the court is entitled not to grant relief in the exercise of its discretion. The standard of compliance is not one of absolute perfection. There must be imported into the statutory obligation a concept of reasonableness and practicality. Substantial compliance without being overly technical or astute to find fault is the appropriate test. The fact that the report does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statutory requirements.[37] Mr Anthony Chan SC made a similar submission on behalf of CEDD that not every non-compliance with the technical memorandum or the study brief would necessarily result in the invalidation of DEP’s approval of the report, and whether the decision to approve a non-compliant report should be treated as unlawful should depend on the circumstances, including the nature and seriousness of non-compliance. 122.Mr Yuen also repeated a separate point made before the judge that where the approval of the report involves or is based upon an evaluation of “scientific, technical and predictive assessments” by those with appropriate expertise, the court should afford the decision-maker an “enhanced margin of appreciation”.[38] The judge accepted this point.[39] 123.The judge did not agree with the submissions on substantial compliance. He did not find it necessary or helpful to add the words “strict” or “substantial” before compliance, because compliance either exists or it does not. He referred to the firm statements in decided cases in Hong Kong that if an EIA report does not meet the requirements of the technical memorandum or the study brief, the DEP has no power to approve it.[40] As for the statements in the Australian authorities mentioned by Mr Yuen, even accepting what was said, that does not inject some form of proportionality assessment or filter. 124.Those statements were made in the context of a statutory obligation to take into account “to the fullest extent possible all matters affecting or likely to affect the environment”.[41] Although the EIAO follows a broad pattern of similar legislation in other jurisdictions, it contains provisions which are unique to Hong Kong.[42] There may also be applicable technical memorandums by which the DEP must be guided when deciding, inter alia, whether to approve an EIA report: s 16(4). Section 6(3) makes clear the legislative intent that an EIA report must meet the requirements of the technical memorandum and the study brief, and it would be contrary to the duty of the DEP to approve a report that did not meet the requirements. 125.Like the judge, we do not think it helpful to characterise non-compliance in a general way as “substantial” or “minor, insignificant or inconsequential”. Detailed provisions are made in the TM on the approval of an EIA report, and one should focus on these provisions in assessing whether approval could properly be granted in a given situation. The provisions in §4.5.1 and §4.5.2 of the TM, on approval of an EIA report, have been set out in §37 above. §4.4 of the TM governs the review of an EIA report and §4.4.2 relevantly provides as follows:
126.§4.4.2 then sets out a non-exhaustive list of factors in (a) to (m) that shall be considered for a report to be regarded as adequate; notable ones include:
127.In light of these detailed and specific provisions, it is unhelpful and inappropriate to have regard to general epithets in considering any non-compliance of the TM and SB. 128.In any event, in the circumstances of the present case, it appears to us that the arguments on “minor, insignificant or inconsequential” non-compliance and whether “substantial compliance” would suffice are somewhat academic. Based on the rulings made by the judge under Ground 3, and if he should be upheld by this court on all or most of them, it could hardly be said there is substantial compliance with the requirements of the TM and SB. The errors and omissions in the EIA report found by the judge are plainly not “minor, insignificant or inconsequential” or “purely technical [with] no material impact on the decision or on the environment”. (2) OVT (Old and Valuable Trees) 129.The judge found the non-compliance in the EIA report with regard to OVTs compelling and is sufficient of itself to warrant setting aside the Decision. He held that the report failed to comply with TM §4.4.2(b) (whether information and descriptions in the report are factually correct) and §4.4.2(d) (whether the identification and descriptions of potential environmental impacts in the report are complete), and hence §4.5.1(b) (the quality of the report meets the requirements as set out in §4.4 and the results and conclusions are technically sound and reliable) and §4.5.1(c) (the report addresses relevant environmental issues raised by the public and ACE during the public inspection period).[43] The Club supports the judge’s finding on the further ground that there was breach of Appendix J to the SB.[44] 130.OVT is a special term referred to in Development Bureau Technical Circular (Works) No 5/2020 on Registration and Preservation of Old and Valuable Trees dated 26 February 2020 (“Circular 5/2020”). For registration as OVTs, trees must satisfy one or more of the following criteria: (a) tree of large size (eg tree trunk diameter ≥ 1 m, measured 1.3 m above ground level); (b) tree of precious or rare species; (c) tree of particularly old age (eg ≥ 100 years old); (d) tree of cultural, historical or memorable significance; or (e) tree of outstanding form.[45] OVTs are accorded “priority protection” as a matter of government policy. Only trees on unleased government land within built-up areas or tourist attraction spots in villages are eligible for inclusion in the Register of Old and Valuable Trees. The Land then held by the Club was envisaged to revert to the government on expiry of the tenancy in August 2023. As the judge noted, it is obvious that the Land may have on it potentially registrable OVTs. 131.The Register currently lists 435 OVTs in the whole of Hong Kong. After the Land reverted to the government, in September 2023 the Club’s consultants submitted OVT nominations to the Greening, Landscape and Tree Management Section of the Development Bureau for 62 trees in Sub-Area 1 and 160 trees in Sub-Areas 2 to 4.[46] The only other sites in Hong Kong with comparable OVT numbers are Kowloon Park (28) and Victoria Park (14). 132.The EIA report asserted in §11.6.3.11: “No registered [OVTs] were recorded during the tree survey.” 133.This is because CEDD’s consultant proceeded on the basis that by definition OVTs only exist on unleased government land and as the Land was leased to the Club at the time of the survey, there were no OVTs on the site. CEDD took the position it was not required to identify OVTs, contending that this is the proper interpretation of §1 of Appendix J to the SB, which provided that “the Applicant shall review relevant plan(s) and conduct surveys/studies to identify existing sensitive landscape characters and landscape resources (including but not limited to Old and Valuable Tree (OVT), tree of large size, and protected/rare plant species …)”. 134.The judge disagreed and held that the proper interpretation of the SB as regards the reference to OVTs in Appendix J includes potential OVTs. His reasons in §199 of the Judgment are as follows:
135.The judge’s interpretation of the SB was made with regard to the factual matrix of relevant documents[47] which specifically mentioned “potential” OVTs, in recognition of constraints upon development at the FGC that might encroach on potential OVTs. 136.CEDD and WSP[48] were clearly aware they were required to conduct a tree survey to identify any OVTs or potential OVTs affected by the development and recommend tree preservation proposal. 137.Mr Chan submitted that the judge erred in §199 in finding that potential OVTs were covered by the term “existing sensitive landscape characters and landscape resources” in §1 of Appendix J to the SB. He further contended that a reasonable reader would recognise from the EIA Report (section 11 on Landscape and Visual Impact Assessment, §11.6.3 under the heading “Tree Survey” at §§11.6.3.1 to 11.6.3.6)[49] that at least some of the trees mentioned may be registrable and registered as OVTs in due course. Hence, the judge was wrong to find in §217 of the Judgment that there was failure to advise the DEP of the existence of about 80 potential OVTs, and that as a result there was no OVT review process as was required by Circular 5/2020 and another circular, namely, Development Bureau Technical Circular (Works) No 4/2020 on Tree Preservation dated 26 February 2020 (“Circular 4/2020”). 138.We have no hesitation in rejecting the above submissions of Mr Chan. The judge is clearly right in interpreting the provisions in Appendix J to the SB contextually and purposively to include potential OVTs, as explained in §199 of the Judgment. As pointed out by Mr Yu, the reference to “OVT” in Appendix J to the SB would be meaningless on CEDD’s interpretation, as the Land was still leased to the Club at the time of the SB and the survey. We also agree with the judge that the failure to advise the DEP of the existence of about 80 potential OVTs cannot be overlooked merely because the report referred to 70 Trees of Particular Interest (“TPIs”) in Sub-Area 1, with characteristics which might meet the criteria for registration as OVTs. The fact remains that no attention was drawn to the existence of potential OVTs which would have triggered the OVT review process required by government policy. 139.Mr Chan made these further submissions:
140.We do not accept the above submissions. 141.§1 of Appendix J to the SB clearly requires the applicant to “identify existing sensitive landscape characters and landscape resources (including but not limited to Old and Valuable Tree …)”. §2 of Appendix J provided inter alia that “Broad brush tree and vegetation survey shall be carried out and the impacts on existing trees shall be addressed.” We agree with Mr Yu that the requirements in §§1 and 2 are cumulative. There is no conflict between the two. An individual tree survey was in fact performed in Sub-Area 1, but a detailed tree survey to identify potential OVTs that may be affected was not done.[52] Nor was there any or any proper assessment in the EIA Report of the degree of compatibility of potential OVTs with the Project, or any discussion of realistic means to alleviate the potential significant adverse environmental impact.[53] In these respects the EIA Report simply failed to take into account something which it ought to encompass. 142.We do not think §34 of Circular 4/2020, which relates to the planning stage, assists Mr Chan’s argument. §31 of the Circular provided clearly: “The need to preserve and protect trees must be borne in mind in all stages of a government project from feasibility to post-construction maintenance stages …”. Under the feasibility stage, §32 provided: “Due consideration should be given to ensure that the purposes of the government project can be satisfied while assigning priority to preserve valued tree assets. Trees of particular interest should be identified for priority preservation”. Also under the feasibility stage, §33 provided that in accordance with Circular 5/2020, “the removal of [OVTs] should only be permitted under very special circumstances with full justifications.” The judge’s finding that CEDD was obliged to identify potential OVTs at the EIA feasibility stage is supported by a proper reading of Circular 4/2020 and Circular 5/2020 and accords with common sense. The fact that a tree survey is required at the planning stage does not remove the need to identify potential OVTs at the feasibility stage, for the “priority protection” accorded to OVTs in Circular 5/2020. As rightly submitted by Mr Yu, they are cumulative obligations. The judge put this neatly at §221 of the Judgment:
143.As for §19 of EIAO Guidance Note No 6/2010, this is to elucidate the distinction between a vegetation survey and a tree survey. It does not support Mr Chan’s contention that a tree survey to identify potential OVTs would not be required at the feasibility stage. 144.We do not propose to go into the details of Mr Chan’s submission regarding the appropriateness of the method in fixing the TPZs or his demonstration that a development on a reduced scale would still meet the flat yield. We agree with Mr Yu this seems to miss the focus, which is on the legality of approving the EIA Report, not the viability of the Project or a project on a reduced scale as postulated. The issue of OVTs and the TPZs around them was raised squarely by the Club, at the Project Profile stage and in its Statutory Submission. Contrary to §4.5.1(c) of the TM, the EIA Report failed to address this.[54] The non-compliance with the TM and the SB meant that the report should not have been approved. It makes no difference whether a development on Sub-Area 1 which fulfilled the objective of the housing supply would or would not be feasible. 145.As for Mr Chan’s submission on the “iterative design” process in the two Circulars, this was raised before the judge and we agree with his reasons stated in §210 of the Judgment for not giving weight to this. 146.There was debate before the judge on the meaning of the word “removal” in §§20 to 22 of Circular 5/2020. Mr Yu argued that the correct meaning is “felling” of a tree and not other forms of removal such as transplantation. The judge found in favour of CEDD’s construction set out in detail in §§205 to 206 of the Judgment. In short, he held that reading §§20 to 24 together, except under the situation in which an OVT has died (§20), removal is prohibited unless an application under §22 is approved. As expressly provided in §22, irrespective of whether an OVT is alive or dead, removal requires the necessary application and approval. The judge opined in §207 that this interpretation does not open the door wide to transplanting OVTs based on some general view that retaining it at its existing location is not practicable, as that would turn the spirit and intention of the Circular on its head. The circumstances when there would be any consideration of transplanting an OVT must be “extremely rare”. Mr Yu renewed his contention on appeal. We see this dispute of little moment and do not propose to deal with it. 147.For the above reasons, we reject CEDD’s contentions on OVTs. We uphold the judge’s finding of non-compliance with TM §§4.4.2(b), 4.4.2(d), 4.5.1(b) and 4.5.1(c). We would add that there was non-compliance with SB Appendix J §1 as well. (3) Tree Survey and Compensation 148.This topic, which is connected to OVTs, brings into play the inadequate tree survey, which we have touched upon, and compensatory tree planting. The judge held there was failure to comply with SB §3.4.1 (this requires the EIA study to address all environmental aspects of the activities as described in the scope, which shall cover the Project and associated works, and that the assessment shall be based on the best and latest information available during the course of the EIA study); SB Appendix J §2 (this requires the applicant to describe, appraise, analyse and evaluate the existing and planned landscape resources and landscape character); TM §4.4.2(k) (whether the EIA report has assessed and determined the feasibility, practicability, programming and effectiveness of the recommended mitigation measures); and TM §4.5.1(c) (the report addresses relevant environmental issues raised by the public and ACE).[55] 149.There are two major flaws in the EIA Report on this topic. First, the individual tree survey performed in Sub-Area 1 undercounted around 300 trees of the requisite size and made other serious errors.[56] Second, CEDD’s plans assumed the retention of 116 trees that currently sit on a hill at ~27.6 mPD when the site plans specify that this will be lowered to ~16 mPD. Despite that the Club had raised this issue, no explanation was given in the EIA Report to reconcile these conflicting features of the proposal. 150.There is no serious dispute that the EIA Report does contain these flaws. They clearly support the judge’s holding that there was failure to comply with the provisions in the SB and TM as mentioned. 151.CEDD sought to down play the flaws. In respect of the first, Mr Chan submitted that the undercounting of trees is irrelevant. This is because undercounting would be covered by CEDD’s compensatory tree planting plan, according to which the proposed compensatory planting area would be 5.1 ha, larger than the woodland loss of 4.11 ha. Even if compensatory planting cannot be placed entirely within Sub-Areas 2 and 3, there could be off-site planting to avoid any encroachment on Sub-Area 4, where a collection of CSC is located at the swampy woodland. Partial off-site compensatory planting is a mitigation option “that would deal with the particular concern about sufficiency of the area for compensatory planting”.[57] As such, the judge should have exercised his discretion to refuse relief. 152.We do not agree with his submissions. The SB specifically provides that the assessment shall be based on the best and latest information available during the course of the EIA study, and the applicant is required to describe, appraise, analyse and evaluate the existing and planned landscape resources and landscape character. One cannot overlook that very detailed provisions are made in Appendix C to Circular 4/2020 on tree survey plan for government projects,[58] which do not allow for slipshod surveys. The TM requires the EIA report to assess and determine the feasibility, practicability, programming and effectiveness of the recommended mitigation measures and to address relevant environmental issues raised by the public and ACE. Part of the information requested by the ACE in August 2022 related to tree compensation plan (as incorporated in the DEP’s request for further information, item (4)), seeking details of planting numbers with a compensation ratio of at least 1:1.5. This did not appear to have been addressed in the Addition Information provided by CEDD in April 2023. Thus in the concluding comment of the ACE in its letter to CEDD dated 10 May 2023, it was stated that a detailed tree management plan should be put in place to set out the arrangement for tree compensation and maintenance. 153.We do not think the above requirements can be circumvented by CEDD putting forward an open-ended mitigation proposal, with off-site planting as a reserve option. The concern is not just about sufficiency of the area for compensatory planting. The amenity value of the trees in Sub-Area 1 had not been properly assessed in the tree survey, with a failure to identify protected species, the mis-identification of species, the errors in recording tree dimensions and plotting in wrong locations. In the absence of complete and accurate tree data, the concern is how the feasibility, practicability, programming and effectiveness of the recommended mitigation measures are to be determined and assessed. The DEP ought not to have approved the EIA Report in this situation. 154.As for the flaw regarding the level difference between the cluster of 116 trees and the site formation, Mr Chan first repeated the pleading point taken before the judge that the Club should not be allowed to raise this because it was not identified in the Form 86. This objection has no merit and was rightly rejected.[59] As pointed out by the judge, this point was not entirely new and had been addressed in the evidence[60] and former counsel for CEDD was able to address it by reference to materials before the court. There is no basis to interfere with the judge’s exercise of discretion in allowing this point to be raised without an amendment to the Form 86. 155.The judge accepted the evidence of Mr Alexander Main Duggie, one of the Club’s experts, that there are two hillcrests both covered in trees separated by a saddle in an area of continuous higher ground in the south-west of Sub-Area 1. The southern hillock crests at approximately 30 mPD and the northern hillock at approximately 28 mPD, with the saddle dipping to approximately 24 mPD. As pointed out by Mr Duggie, no cross-sections were provided in the EIA Report to explain the feasibility of the proposed retention of the 116 trees sitting on them. In the planning report commissioned by CEDD for preparing the OZP, it was stated in §4.1.1 that “Taking into account the topography of Sub-Area 1, the site formation levels are proposed from approximately +14.0 mPD to +19.0 mPD, dipping from south to north.” This shows that the existing topography would be flattened, lowering the terrain from approximately 30 mPD to approximately 18 mPD. 156.Mr Duggie explained that given the site formation platform is approximately 18 mPD, any proposed retention of the tree cluster on the hill would necessitate building a retention wall along the northern façade of the nearest planned block of about 90 m long rising to approximately 15 m high at the mid-point. Yet there is no such proposal in the EIA Report or the planning report. 157.Mr Chan repeated the point made by CEDD in evidence that it was not necessary for the EIA Report to deal with matters like formation levels, ground levels of existing trees and TPZs of individual trees and that a TPRP addressing those issues is only required to be submitted at the design stage after the EIA stage. This was rejected by the judge at §260:
158.We respectfully agree with the judge’s reasoning. We reject the further contention of Mr Chan that neither the SB nor the TM requires such issue to be addressed. As stated by the judge at §262, “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.” Like CEDD’s former counsel as recorded in the Judgment at §261, Mr Chan did his best to address these issues in submissions, but these matters ought instead to have been addressed in the EIA Report. 159.We also reject Mr Chan’s contention that the judge erred in §264 and §265 in confusing the “1:1 plus DBH question” with the compensation ratio of at least 1:1.5. As pointed out by Mr Yu, the judge was not making a separate finding of non-compliance in relation to the proposed tree compensation ratio in those paragraphs but was merely explaining why he rejected CEDD’s submission summarised in §263 that details of site formation and tree preservation could be dealt with at the design stage. 160.The contentions of CEDD under tree survey and compensation are rejected for the reasons mentioned above. 161.The CSC[61] is listed as critically endangered by the International Union for the Conservation of Nature and is a tree species that requires a specialised habitat highly sensitive to hydrological change. A collection of CSC are located at the swampy woodland near Hole 7 of the Old Course which falls within Sub-Area 4. At least 29 of the CSC have been independently estimated to be over 100 years old, and the oldest is considered to be 216 years old. This CSC population comprises about 15% of the entire global population, and is possibly the only population reproducing viable seedlings in the wild. The existence of the CSC is specifically mentioned in §3.6.2 of the Project Profile. The conservation importance of CSC was probably the main driver for limiting the proposed development to Sub-Area 1. 162.Appendix H to the SB was headed “Requirements for Ecological Impact Assessment (Terrestrial and Aquatic)”. §1 required the applicant to “examine the flora, fauna and other components of the ecological habitats”, with the aim to “protect, maintain or rehabilitate the natural environment.” It provided in particular that “the Project shall avoid or minimize impacts on recognised sites of conservation importance and other ecologically sensitive areas and species of conservation importance”. It stated: “The assessment shall 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”. 163.§2 of Appendix H provided that the assessment shall include various “major tasks”, including:
164.Notwithstanding the above specific requirements, the EIA Report did not contain a HydroIA (hydrology impact assessment), as mentioned in §84 above. The report only dealt with “Hydrological Disruption” in three paragraphs[62] and drew this conclusion at §9.12.1.2:
165.The judge agreed with the Club’s submission that the above conclusion is simply an assertion without analysis or assessment.[63] 166.The EIA subcommittee of the ACE, in its meeting on 18 July 2022, sought supporting data on the hydrology impact of the development and expressed concern about the possible adverse hydrology impact which should be carefully assessed. This led to the ACE’s request followed by that of the DEP for further information pursuant to s 8(1) of the EIAO. Item (f) of the request for further information directed CEDD to provide:
167.The Additional Information subsequently provided contained a HydroIA performed for the first time by Prof Ting Fong May Chui, a hydrology and sustainable water resources engineering expert.[64] Prof Chui acknowledged, however, that the HydroIA she was asked by CEDD to perform was limited in scope in that:
168.Prof Chui also stated:
169.The judge did not think that limited approach provided 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. He noted also that the HydroIA conducted proceeded on the stated assumption of an isotropic and homogeneous acquifer, but it was identified elsewhere in the assessment that the soil texture and saturated hydraulic conductivity varied considerably at different locations, indicating significant variations in the physical properties in the soil – in other words, it was not homogeneous. That suggests it is not possible to predict the direction of groundwater flow to be in accordance with the surface flow.[67] 170.The EIA Report has 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: (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.[68] 171.The Club adduced expert evidence from an ecologist Mr Paul James Leader and a hydrological and engineering expert, Ms Gillian Hancer Castka. In addition, the Club engaged Prof Jiu Jimmy Jiao to build a three-dimensional hydrological model to simulate the groundwater flow before the housing development in Sub-Area 1 and calibrate the model by collected water level data in order to predict the water level change east of Fan Kam Road in the FGC after the construction of buildings in Sub-Area 1 and compensatory tree planting in Sub-Areas 2 and 3.[69] 172.Ms Castka opined that the HydroIA performed by Prof Chui was “seriously deficient”. There was no assessment of how the CSC might be affected by the hydrological changes arising from the proposed development and compensatory tree planting. Instead, the HydroIA only attempted to provide details of the flow of surface water and the potential impacts the proposed development may have on the sources of groundwater and does not answer the question of hydrological impact[70]. 173.Ms Castka gave evidence that the hydrogeology in the swampy woodland area where the CSC are found, and its soil profile, are something of an anomaly. It consists of a thin layer of clay/silt alluvium and this is an anomaly because clay is not typically deposited at this elevation (>20 mPD) in a uniformly sloping valley. Her hypothesis was that this anomalous clay/silt alluvium layer in this location could possibly explain the further anomaly of the CSC thriving and reproducing in the swampy woodland. These unusual hydrogeological features of the swampy woodland remain unstudied, and therefore the interaction between the clay layer, the hydrology of the swampy woodland, and the vitality of the CSC stand is not known, despite the ACE’s and DEP’s request for an assessment of hydrological impact including available information on the profile of soil and bedrock conditions.[71] 174.Mr Leader gave evidence that the CSC trees have been thriving in the current conditions with the surrounding land as a managed golf course for over a century. Important management activities in the area surrounding the CSC include the current irrigation regime, maintenance of the turf grass and roughs, the upkeep and clearance of storm drains, pipes and ditches.[72] All contribute to the hydrological conditions currently supporting the CSC. He pointed out that the hydrological consequences of any changes to these activities are entirely unknown and opined that this is a rare case in which the “precautionary principle”[73] is engaged as part of any responsible land use management exercise by the government.[74] 175.The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds which are cumulative: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. Once the conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat, but it should be proportionate. The judge agreed with Mr Leader that the precautionary principle comes into play for the reasons given in §§311 and 312 of the Judgment:
176.The judge held there was a failure to comply with the requirement for a detailed hydrological assessment and consequently a breach of the SB Appendix H §§2(vii)(a) and (c) and the TM §4.4.1 (compliance with the SB and TM), §4.4.2(d) (whether the identification and descriptions of the potential environmental impacts in the EIA report are complete), §4.5.1(b) (the quality of the report meets the requirements in §4.4 and the results and conclusions are technically sound and reliable), §4.5.1(c) (the report addresses relevant environmental issues raised by the public and ACE), §4.5.1(d) (all relevant environmental principles and criteria in the TM can be met and the residual environmental impacts are within the relevant criteria, unless with sound environmental justifications and without long term serious environmental implications), and §4.4.3(a)(x) (if adverse environmental impacts are uncertain, they shall be treated more cautiously than impacts for which the effects are certain and the precautionary principle shall apply).[75] 177.CEDD challenged the judge’s findings of non-compliance with the SB and TM on seven bases. We will consider them in the order as raised. 178.First, it was submitted that the judge should not have rejected the DEP’s professional opinion simply because there might be another way of performing an assessment. He should defer to those exercising professional judgment and should have accepted that the hydrological assessment methodology used by CEDD complied with SB Appendix H §§2(vii)(a) and (c). 179.In support of the above contention, Mr Chan made these points:
180.We do not agree with Mr Chan. The DEP cannot say he relied on his professional judgment to dispense with an assessment that is expressly required by the SB Appendix H §2(vii). As mentioned above, Prof Chui made clear that the HydroIA she was asked to perform was limited in scope and her assessment was not intended to cover the potential impact of the proposed development on the CSC. This is hardly a case of deferring to professional judgment. 181.As for the assertion by WSP’s director, Mr Wan, that based on his professional experience in the EIA field, the hydrological aspects of the EIA Report satisfy the requirements of the SB and the TM and that the proposed development cannot affect the sources of surface water or underground water for the CSC, it should be noted that Mr Wan is not an expert in hydrology. His views were not adopted by Prof Chui who conducted the HydroIA. Such assertions were rightly rejected by the judge.[80] We also find it irrelevant that past EIAs did not require the same type of hydrological assessment as was needed in this study in light of the presence of the hydrologically sensitive CSC. 182.Mr Chan focused on the words “using suitable methodologies” in the introductory general words in SB Appendix H §2(vii) to support his argument for deferring to the professional judgment that there might be another way of performing an assessment. We agree with Mr Yu this misses the focus, as the central obligation in §2(vii) is to “identify and quantify as far as possible” potential ecological impacts, especially in relation to species of ecological importance. The judge found that the EIA Report, even including the Additional Information, does not contain sufficient information to enable an assessment to be made as to the level of risk posed to the CSC by the proposed development. This is in the context where the impact of even small hydrological changes could be devastating and irreversible to the CSC, which are highly sensitive and critically endangered. The judge was in our view fully entitled to find that CEDD’s studies and analysis fail to assess adequately whether the Project would risk causing hydrological changes harmful to the CSC. 183.Second, it was submitted that the judge erred in finding fault with the original hydrological assessment despite its conclusion was corroborated by the HydroIA of Prof Chui. 184.Mr Chan made these submissions in support of this contention:
185.We have already rejected the contention that SB Appendix H §2(vii) does not require a hydrological study to identify and quantify as far as possible the habitat and ecological loss, including specifically sufficient information to determine whether hydrological changes caused by the proposed development could put the CSC at risk. We reject the further contention that the detailed assessment was not required in the request for Additional Information. Further, as stated earlier, the judge’s finding that the EIA Report with the Additional Information and HydroIA do not contain sufficient information to enable a proper assessment to be made on the critical question cannot be faulted. 186.Third, it was contended that the judge erred in questioning the validity of the assumption of an isotropic and homogeneous aquifer adopted in the HydroIA. 187.Mr Chan’s arguments ran as follows:
188.The contention about appropriate assumptions is of little moment. Even if they are appropriate, they would not yield an answer to the critical question about risks to the CSC. Besides, the judge was entitled to find Prof Chui’s assumptions incorrect and this undermines the limited conclusions she reached. This is not a case where experts offered differing opinion evidence as to which assumptions are appropriate. As noted in the Judgment at §293, factual evidence was identified elsewhere in Prof Chui’s assessment showing her assumption of an isotropic and homogeneous aquifer to be incorrect. 189.As for Prof Jiao, he did not discuss or test Prof Chui’s assumptions. He merely agreed with her view as to the sources of water. We do not think his opinion provides support to CEDD’s contention here. 190.Fourth, it was contended that the judge erred in construing SB Appendix H §2(vii) as requiring a more detailed hydrological study than that conducted by CEDD. 191.Mr Chan submitted that SB Appendix H §2(vii) only requires the applicant to identify hydrological impact “using suitable methodologies (including but not limited to those adopted in other relevant EIA studies in Hong Kong)” and to identify and quantify “as far as possible” any direct or indirect impact on hydrology. This is imbued with notions of professional judgment and proportionality, including factors like the timeframe (bearing in mind the public interest in ensuring that major designated projects are brought to fruition in a timely and efficient manner) and financial cost. The words “as far as possible” should be construed to mean “as far as practically possible”. The judge overlooked this and effectively imposed an absolute standard in the name of applying the precautionary principle. He should have found the extensive groundwater study alleged by the Club to be necessary wholly impractical and unnecessary, and extraneous to the requirements of the SB.[84] 192.Mr Chan further argued that the detailed assessment as required should be dealt with not at the EIA stage but at a later stage, as the exact sites for woodland compensation and compensatory planting are subject to future site planning.[85] 193.We do not accept Mr Chan’s submissions. A similar argument was raised before the judge.[86] As pointed out by Mr Yu, the EIA Report did not say that CEDD refused to resolve the scientific uncertainty about whether the proposed development would cause the loss of an extremely valuable ecological resource due to concerns of time and financial costs. Rather, it claimed that certainty was achieved. That claim has been shown to be wrong. The real problem was the failure to recognise and act on the need for a hydrological study at the start. Had WSP dealt with the need for a hydrological study when it was appointed in September 2019 instead of embarking on the process only after August 2022 when the ACE/DEP requested for further information, WSP could have minimised the time required with appropriate measures and completed a reliable hydrological study.[87] Nor do we accept the argument that the detailed assessment should be carried out at a later stage. SB Appendix H §1 specifically required that the assessment should identify and quantify as far as possible potential ecological impacts associated with the project such as change of water quality and/or hydrodynamic regime to natural environment. See also §2(vii)(c). 194.Furthermore, CEDD’s submissions fail to engage with the precautionary principle in the discussion of proportionality. The ecological resource at risk is of the highest possible value and damage would likely be irreversible. The judge rightly held the circumstances “clearly mandate a necessarily high degree of caution to be taken”.[88] Unquantified time and cost considerations would not sway the balance in favour of proceeding with the development when the risks the Project poses to the CSC are simply untested. 195.Fifth, it was said that the judge erred in holding that the watering needs of the proposed compensatory woodland might affect the hydrology of the Project site.[89] He should have held that based on Prof Chui’s conclusions in the HydroIA, there is no real prospect of any material adverse hydrological change resulting from compensatory tree planting. 196.This is another challenge to the judge’s assessment that is not of any substance. The fact that there was sufficient water available to make provision for compensatory planting and that CEDD intended to adopt a habitat management plan, does not prove the absence of effects. Without a proper study of the baseline hydrological conditions, there would be no basis upon which to devise appropriate management strategies. 197.Sixth, it was contended that the judge wrongly held that the foundation design of the proposed buildings and compensatory planting might give rise to changes in hydrodynamic properties such that the changes cannot be accurately assessed without the final layout.[90] 198.Mr Chan made these submissions in support of his contention:
199.We do not accept the argument. It is not correct to say that Ms Castka did not challenge Mr Wan’s evidence.[92] Mr Wan is not a hydrological expert. By contrast, Ms Castka’s expertise is in engineering hydraulics and hydrology. She had identified why his untested assertions that the proposed development in Sub-Area 1 would not affect the hydrology of Sub-Area 4 were factually incorrect and misleading.[93] 200.As for the finding that changes in hydrodynamic properties and hydrology required by the SB cannot be accurately assessed until the final layout is confirmed, we do not think that is placing an impossible obligation on CEDD that far exceeds the purpose of the EIA stage. As the judge explained in §§311 and 312 of the Judgment, this is where the precautionary principle comes into play in this context. 201.Seventh, it was argued that the judge was wrong to hold that the precautionary principle requires a detailed hydrological assessment of the nature and scale proposed by the Club. He should have concluded that such an assessment was disproportionate, unrealistic and extraneous to the ambit of the EIA stage. 202.We think the above contention is misconceived. The need for a detailed hydrological assessment arose from the requirement in SB Appendix H §§1 and 2(vii) to quantify habitat and species loss, especially for rare and endangered species like the CSC. 203.Mr Chan raised a new point in his oral submissions to counter the evidence of the Club’s ecology expert Mr Leader that the CSC is highly sensitive to hydrological change and that the impact on the balance between overland and groundwater flow arising from any changes in the maintenance regime of the golf course would not be possible to identify and therefore to address with an effective hydrological management. Mr Chan submitted that as the CSC have survived the laying of the Old Course and the tree planting programmes after the Second World War, it should be inferred that properly managed compensatory planting in Sub-Areas 2 and 3 would not produce any threat to the CSC and the impact on swampy woodland is unlikely.[94] This was not mentioned in the Judgment. 204.This new point was not raised in any of the affidavits filed by CEDD. We do not think it right to allow Mr Chan to raise it for the first time in his oral submissions on appeal. The Club is not able to respond to this with evidence from its ecology expert. We decline to deal with it. 205.The contentions raised by CEDD under this topic are rejected. 206.FGC is composed of three distinct 18-hole courses – the Old, New and Eden Courses, built in 1911, 1931 and 1970 respectively. FGC is deemed one of the finest and most scenic golf courses in Asia and has been the site for numerous professional championship events. It is the only golf course in Hong Kong that can meet the international requirements for holding major golf events. 207.The Old Course at FGC was inspired by the Old Course at the home of golf in St Andrews, Scotland. It is the oldest golf course in China. It was laid out in what has been called the ‘Golden Age’ of golf course development, and includes elements no longer used in contemporary golf design, including blind shots over fairways. It presents golfers with challenging shots created by the landscape’s existing topography. During the golden period in the early 20th century, golf course architects were allowed more freedom to create daring and unconventional holes that require an element of luck and ingenuity to get around difficulties and overcome new and unexpected situations. Golf courses built after 1950 have limited more creative designs to eliminate luck and become relatively standardised. In contrast, the land dictates the play in the Old Course and gives rise to a layout unique in style and character. The Old Course has been regarded as an architectural gem and a focal point for Hong Kong golf. 208.The majority of the Land of 32 ha as covered in the EIA Report is within the Old Course. It contains the first eight holes. Subsequently, it was recommended that housing development would be restricted to Sub-Area 1 of 8.1 ha or 9.5 ha, and Sub-Areas 2 to 4 would be preserved as a public park with minimal development. Holes 1 to 3 are within Sub-Area 1; holes 4 to 8 are within Sub-Areas 2 to 4. 209.The Project Profile noted that a cultural heritage impact assessment (“CHIA”) would be carried out under the EIA study. It was stated at §5.7.1 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. 210.§3.2.1(xi) of the SB identified the requirement of the study to address the “key issue” of:
211.The listed items are not exhaustive. 212.§3.4.12.1 of the SB 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 to be followed. 213.TM Annex 10 at §2.1 provides that the criteria for evaluating impact on sites of cultural heritage include:
214.TM Annex 19 at §2.1 identifies 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. 215.As to impact assessment, TM Annex 19 at §§2.6 and 2.7 identify that preservation in totality will be a beneficial impact and will enhance the cultural and socio-economical 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. §2.8 makes clear that:
216.The EIA Report followed the Guidelines for Cultural Heritage Impact Assessment of the Antiquities and Monuments Office (“AMO”) in classifying the evaluation of CHIA into 5 levels of significance, based on type and extent of the effects found in the CHIA study. They are: Beneficial Impact, Acceptable Impact, Acceptable Impact with Mitigation Measures, Unacceptable Impact[95] and Undetermined Impact.[96] As stated in the Judgment at §327, 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. The present focus is on the distinction between Unacceptable Impact and Undetermined Impact. 217.The EIA Report at §12.4.2.1 noted that FGC was first constructed in the early 20th century, and so was over 100 years old and should be considered a heritage place in itself. At §12.4.2.2, it recognised that the Old Course is the oldest surviving golf course in Hong Kong, and its heritage value is to be appraised with its grading, if appropriate, confirmed by the Antiquities Advisory Board (“AAB”).[97] 218.The EIA Report recognised in §12.5.4.1 at Table 3 that “the development may directly and adversely impact holes 1 to 3 which is an integral part of the Old Course’s 18-hole playing area”, and “direct impacts are expected”. The same was true of holes 4 to 8, which would be covered over by compensatory planting and become a static park. Hence, “direct impacts are expected”. 219.At §12.5.5.1, it was again noted that the proposed development 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 the grading of the golf course by AAB and that mitigation measures, where necessary, will be proposed to AMO for agreement. 220.Notwithstanding all the above, the conclusion reached in the EIA Report as to the impact of the proposed Project on the Old Course was Undetermined Impact. The Club criticised the conclusion as having failed to comply with the SB and TM, so being wrong in law, and argued that it was in any event manifestly irrational for the DEP to have accepted that conclusion. 221.The judge took the view that there is no “may” about the adverse impact, which is that several holes would be lost and the integrity of the Old Course as a whole would be lost. 222.CEDD submitted (supported by the DEP) that the statutory definition of “site of cultural heritage” in the EIAO should be adopted in construing this term in the TM. In Schedule 1 to the EIAO, “site of cultural heritage” is defined to mean: “an antiquity or monument, whether being a place, building, site or structure or a relic, as defined in the Antiquities and Monuments Ordinance (Cap. 53) and any place, building, site, or structure or a relic identified by the Antiquities and Monuments Office to be of archaeological, historical or palaeontological significance.” TM §1.3.1 provides: “This technical memorandum uses standard scientific terms. Where [EIAO] defines a term, that term applies.” CEDD submitted a site of cultural heritage is therefore limited to things which have already been designated or declared a monument under the Antiquities and Monuments Ordinance (Cap. 53) (“A&MO”). As it is uncertain that the Old Course would be graded by the AAB and declared a monument under the A&MO, the extent of the adverse effects and mitigation of the potential impact can properly be described as “undetermined”. The judge rejected this submission. 223.The judge found it difficult to see why the extent of the adverse effects on the Old Course cannot be determined from the study as the adverse impact is “massive” and “blindingly obvious”. He did not think the adverse impact on the recognised culturally and historically valuable Old Course should turn on whether it is or is not one day graded by the AAB. He considered it a red herring whether AAB grades the Old Course.[98] 224.The judge said at §357 of the Judgment:
225.The judge concluded that for the DEP to accept and approve categorising the adverse impact on the Old Course, a place of obvious and recognised cultural and historical 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, he found 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.[99] As regards the assessment of impact to cultural and historical heritage, he accepted there was a failure to comply with the SB §3.2.1(xi), and the TM §4.4.2(e) (whether the assumptions and methodologies used are sound and adequate) and §4.5.1(b) (the quality of the report meets the requirements set out in §4.4 and the results and conclusions are technically sound and reliable).[100] 226.On appeal, CEDD seeks to defend the conclusion of Undetermined Impact by running the same argument that the adverse impact of the project on the Old Course cannot be determined because there is a pending application for assessment and grading by AAB. Mr Chan stressed that the grading system is objective and a declared monument under the A&MO would trigger stringent provisions regarding preservation and mitigation in TM Annexes 10 and 19 as well as under the EIAO. In contrast, non-declared sites would receive less stringent non-statutory protection short of full preservation. He argued that it is rational to classify the impact as “undetermined” as it acknowledges that significant adverse effects are likely but the extent to which they may occur or may be mitigated remains undetermined. The judge’s view that the only rational classification would be “unacceptable” was wide of the mark. He had conflated “function” of the Land with heritage value and preservation needs, prejudged the issue and substituted his own views for the professional views of AAB and AMO. 227.We do not agree with Mr Chan. As rightly pointed out by Mr Yu, the short answer to this is that the responsibility for conducting a CHIA – including reaching a conclusion on residual impact – fell on CEDD, not AAB. These are the requirements of the TM and SB.[101] It is not right that an assessment of the impact of the project should be left hanging on the decision of AAB which has not been and will not be involved in the EIA process. Absent a grading by the AAB, the project proponent is required to reach its own conclusion as to the heritage value. CEDD did so and duly recognised the Old Course to be of important cultural heritage. The only matter said to be “undetermined” was the impact. As for the argument that the extent to which adverse effects may be mitigated remains undetermined, there was no obstacle to CEDD assessing whether mitigation was possible, and a grading by AAB would have no bearing on that question. What the judge said at §357 of the Judgment is plain common sense. 228.In his oral submissions, Mr Chan referred to TM §9.1 which provided that the DEP shall take advice from the Secretary for Broadcasting, Culture and Sport (since changed to the Secretary for Development) on matters relating to antiquities and monuments. AMO serves as the executive arm of the Secretary for Development and provides secretariat support to AAB, the statutory body set up to advise the Secretary for Development. He referred to exchanges between WSP (the consultant of CEDD) and AMO, showing the latter giving advice to WSP on relevant parts of the draft EIA report regarding CHIA. He repeated the submission made below[102] that CEDD was acting pursuant to AMO’s advice and the classification of Undetermined Impact was in accordance with the Guidelines for CHIA of AMO. 229.We do not think this obligation to consult AMO assists Mr Chan’s argument. As already mentioned, the responsibility for conducting CHIA and reaching a conclusion on the residual impact rested with the project proponent, CEDD. 230.The above is sufficient to dispose of CEDD’s challenge to the judge’s conclusion that it is irrational and in breach of the requirements of the SB and TM for the DEP to accept and approve classifying the adverse impact on the Old Course as “undetermined”. The judge regarded it a red herring whether the term “site of cultural heritage” in the TM should be construed by adopting the statutory definition of “site of cultural heritage” in the EIAO and did not find it necessary to resolve the debate.[103] We are inclined to agree. Besides, §3.2.1(xi) of the SB, which is specific to this Project, plainly required the assessment of “potential cultural heritage impacts” in the general sense, not in the sense of the statutory definition.[104] As stated in §359 of the Judgment:
231.It is not strictly necessary to address in detail the arguments of Mr Chan on how the term “site of cultural heritage” in the TM should be construed. In any event, we are inclined to agree with Mr Yu it would not be right to construe this term in the relevant parts of the TM in such a restrictive manner where it is apparent from the context that it is not intended to adopt the narrow statutory definition in the EIAO, and where this may lead to internal inconsistency or even absurdity.[105] It cannot be squared with the Heritage Conservation Policy of the government or the Guidelines for CHIA of AMO, which were discussed in the Judgment at §§321 to 326. 232.SB Appendix H §2(v) specifically requires the assessment, as a major task, to investigate and describe the existing wildlife uses of various habitats with special attention to wildlife groups and habitats with conservation importance, including the categories specified there. Mammalian examples expressly mentioned in the list include three bat species.[106] 233.The EIA Report claimed that only one bat species (the common Japanese Pipistrelle) was present with scarce number recorded and no roosting or breeding habitats found within Sub-Area 1, and that only a roost of Short-nosed Fruit Bat was found away from the project site. It concluded that potential impacts on bats were minor. 234.Two major pieces of evidence contradicted the EIA Report’s conclusions. First, the Club’s bat surveys (done in 2018-2021 and 2022-2023) identified 15 bat species in abundant numbers across Sub-Areas 1, 2, and 4. Survey results available at the time were provided to the DEP in June 2019 as part of the Club’s Project Profile Submission, in June 2022 as part of the Club’s Statutory Submission, and in May 2023 as part of the Club’s Response to the Additional Information. 235.Second, the Agriculture, Fisheries and Conservation Department (“AFCD”) had conducted its own survey for the purposes of scrutinising the EIA study and for cross-checking other bat surveys. Over just one month in June/July 2020, AFCD recorded 17 bat species, 14 of which were of local, regional, or global conservation importance. These results were entirely consistent with the Club’s findings but inconsistent with CEDD’s survey, which had found scarcely any bats. AFCD did not however disclose its results to CEDD during the EIA process. 236.The EIA Report itself contained no engagement with the Club’s survey results, no attempt to explain or reconcile the vast differences, and no reference to AFCD’s data. The report simply proceeded on the assumption that only one bat species was present. The judge noted that the DEP appears to have accepted this without questioning the evident disparities. 237.When asked to provide details of the bat survey methodology, CEDD explained in the Additional Information that more attention was paid to the preferred roosting habits along the transects for the species listed on the review literature, and in addition potential commuting, foraging and drinking sites of bats were searched. The judge considered that the Club’s response to the Additional Information fairly summarised it in stating, among other things, as follows:[107]
238.The judge concluded that the failure to take into account the data produced by the Club or at least to grapple with and seek to understand the radically different survey results, breached the requirements of TM §§4.4.2 and 4.5.1(a), (b) and (c).[108] In other words, there were omissions of deficiencies identified which may affect the results and conclusions of the assessment; the requirements of the SB were not met; the quality of the report was not such that the results and conclusions were technically sound and reliable; and relevant environmental issues raised by the Club were not addressed. 239.Mr Chan advanced four main points against the Judgment. 240.First, he submitted that the Club’s bat surveys were taken into account in the EIA Report and formed part of the baseline data. CEDD did not need to survey for the same data and instead conducted an incremental survey focusing on bat roosts. The difference in survey results is explained by the adoption of different methodologies and focuses. The focus in the EIA study on roosting sites, which is supported by relevant Guidance Notes (namely, EIAO GN No. 7/2010 and 10/2010), cannot be faulted. Divergent results in themselves do not support an inference that CEDD’s methodology was flawed. TM §4.5.1(c) does not call for an express rebuttal to each query raised in the consultation. 241.We agree with the Club’s submission that this argument does not meet the fundamental point that the EIA Report did not grapple with the stark difference in the results between its own bat survey and the Club’s surveys. The judge said there is no evidence from the EIA Report itself that it actually took into account the Club’s surveys in its evaluation, nor is there any engagement with them.[109] Mr Chan pointed to certain paragraphs of the EIA Report but they merely stated that the literature reviewed included the ecological survey results in the consultancy study provided by the Club and referred to two bat species mentioned by the Club being sighted by CEDD’s consultants.[110] As Mr Yu submitted, there is nothing there that actually engaged with or addressed the striking difference in the data. The judge observed at §377 of the Judgment, correctly in our view, that there was no evidence from the EIA Report itself that it did take into account or engage with the Club’s surveys in its evaluation. The contention that CEDD’s methodology is defensible and explained the difference does not provide an answer, as none of the hypotheses and explanations proffered in the proceedings appeared in the EIA Report. Reliance on the Guidance Notes (EIAO GN No 10/2010) prepared by AFCD is hardly conclusive when AFCD’s own survey produced results quite inconsistent with CEDD’s. 242.Secondly, Mr Chan argued that the judge had no basis to find that had the bat species mentioned in the Club’s submissions been taken into account, the overall ecological value assigned to Sub-Area 1 would have been “Medium” rather than “Low to medium”. We disagree. There was ample evidential basis, such as in the affirmations of the Club’s expert, Mr David Stanton,[111] for the judge to think that, if the Club’s survey results had been properly taken into account, it was “at least possible” that the overall ecological value to be attributed to Sub-Area 1 should have been “Medium”. 243.Thirdly, Mr Chan made a new point orally that the difference in ecological value between “Medium” and “Low to medium” was not material and was anyhow a legitimate difference in professional opinion which did not justify the court’s intervention. We do not accept this submission. The question is not merely a difference in the classification of ecological value, but whether or not the EIA Report, which simply proceeded on the basis of its compiler’s surveys and results in apparent disregard of the vastly different data from the Club’s surveys (which we now know are largely consistent with AFCD’s results), was compliant with the TM and the SB. If it was not, the DEP had no power to approve it. There is no basis to contend that if the approval was ultra vires, the judge’s decision to quash it can be impugned for any vitiating error. 244.Fourthly, it was submitted that the judge was wrong to make use of AFCD’s bat survey to cast doubt on the soundness of the EIA Report, as CEDD was not aware of AFCD’s results. The judge accepted that CEDD was not aware of AFCD’s bat survey when the EIA Report was prepared and that this was an excuse for not dealing with it.[112] But it seems to us that this does not preclude the judge from taking the view that AFCD’s survey reinforced the point that the EIA study ought to have addressed the Club’s results, explaining the difference if possible, and that the technical soundness and reliability of the results and conclusions in the EIA Report were thrown into doubt by the failure to grapple with the Club’s surveys. 245.In his oral submissions Mr Chan also made a subsidiary point that the judge misunderstood the evidence of the Club and thought that the Club had found 12 roosts when in fact it had only found two in the survey area. On our reading of the relevant part of the Judgment (§388, 4th bullet point), we do not think that there was any misunderstanding. 246.Accordingly we reject CEDD’s contentions relating to bats survey. 247.Another wildlife group with conservation importance specifically mentioned in SB Appendix H at §2(v) is moths. This was the first time in Hong Kong that the study brief for an EIA covered moths as part of the ecological assessment. §2(iv)(c) of Appendix H requires the provision of details of each habitat type “such as … species present, dominant species found, species diversity and abundance of major taxa groups, community structure, seasonal patterns …” 248.As in the case of bats, the dispute that has arisen concerns the establishment of accurate ecological baseline information and in particular whether the EIA Report failed to take account of survey findings from the Club. 249.The Club’s expert, Dr Roger Clive Kendrick, conducted three sets of moth survey in 2018, 2020 and 2022/23. The results were provided to the DEP by the Club respectively in its Project Profile Submission in June 2019, its Statutory Submission in June 2022, and its Response to the Additional Information in May 2023. All together Dr Kendrick recorded at least 729 moth species, including 107 species of conservation concern. Among these were four moth species meeting the International Union for the Conservation of Nature “critically endangered” criteria and seven meeting “endangered” criteria – some found within Sub-Area 1 itself. 250.In contrast, the EIA Report’s moth survey recorded only 38 species within the Project site, with just two species of conservation importance.[113] 251.After consultation on the EIA Report, on the ACE’s recommendation, pursuant to s 8(1) of the EIAO the DEP asked for an additional moth survey and further details of the methodology. They were provided in the Additional Information. Nevertheless, the Club’s expert said that multiple deficiencies remained. 252.In the judicial review proceedings, CEDD defended its methodology, arguing that its survey was designed to focus specifically on the four Sub-Areas, whereas the Club’s broader survey using brighter lights attracted moths from further away. However, the judge noted that this comparative reasoning and justification did not appear anywhere in the EIA Report itself. 253.The judge rejected CEDD’s argument that rationality only requires looking at one approach. The essence of a proper EIA process is not to examine partial information in a vacuum. Both CEDD’s and the Club’s methodologies might appear rational in isolation, but the significant disparity in results demanded explanation. The EIA Report should have identified why one approach was chosen over another, or attempted to reconcile the two sets of findings. More fundamentally, the Club’s survey data – directly relevant to the ecological baseline – was simply ignored. The EIA Report referenced the existence of a 2018 Club survey but took none of its substantive information into account when designing methodology or conducting habitat analysis. 254.The judge found this constituted a failure to address relevant environmental issues raised by the Club during the inspection period, in breach of TM §4.5.1(c). 255.In this appeal Mr Chan reiterated the point that CEDD’s moth survey was based on a rational approach and it was open to CEDD adopt it. With respect, this does not address the point. The judge was not required to and did not rule on which of the survey methodology adopted by Dr Kendrick and CEDD’s expert, Prof Wang Min, is the better one. He did not find Prof Wang’s approach irrational. Rather, the point is that significant and relevant materials such as moth survey results vastly different from those relied on by the project proponent should be grappled with and addressed by the project proponent in the EIA process, and not only subsequently in the evidence filed for judicial review proceedings. 256.Mr Chan also argued that TM §4.5.1(c) only requires a project proponent to address the environmental issues, not the arguments, raised by the public. CEDD had addressed the substance of the moth issue raised by the Club, by designing and conducting a moth survey. The project proponent is not required to justify its methodology in express terms and in a pre-emptive rebuttal of potential arguments that opponents to the project may raise. Otherwise project proponents would be forced to practise “defensive EIA assessment” and a well-resourced opponent would be enabled to delay the process by raising myriad arguments and allegations. 257.We refer to our discussion of TM §4.5.1(c) in §80 above. We do not think the judge meant to suggest that the project proponent has to address each and every argument raised during the public inspection as in an exercise of pleading. What we are concerned with here is survey data, not arguments, especially those provided by the Club in its Statutory Submission. In fact §2(i) of Appendix H to the SB requires, for an ecological impact assessment, that the assessment shall review the findings of relevant studies/surveys, collate the available information on all habitat/species of conservation importance, and evaluate the information collected. 258.Finally, Mr Chan submitted that given Prof Wang’s methodology was rational, a failure to address the Club’s surveys was a purely technical breach with no impact on the environment, and that the court should therefore withhold relief in the exercise of its discretion. We do not accept the submission. On the basis that there was non-compliance with the TM, the Decision to approve the EIA Report was ultra vires. As mentioned in §61 above, it would require an exceptional reason to allow the Decision to stand. We are not satisfied that the non-compliance would have no consequence on the environment. 259.In October 2021 – after the SB was issued but before the EIA Report was completed – the Northern Metropolis was announced in the Chief Executive’s Policy Address. A Northern Metropolis Development Strategy Report dated 6 October 2021 was published. In broad terms, the question that has arisen is whether relevant provisions of the TM and the SB require the EIA study to take account of the Northern Metropolis. 260.TM §3.4 provides:
261.TM §4.4.2 sets out a list of specific factors to be considered in reviewing the quality of an EIA report. §4.4.2(g) asks:
262.The relevant provisions of the SB include:[114]
263.There is no dispute that the FGC is within the conceptual boundaries of the Northern Metropolis but the Northern Metropolis was not referred to or considered in the EIA Report or the Additional Information. 264.There was evidence from CEDD 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. The Project was expected for completion in 2029, which would be much earlier than the housing supply from Northern Metropolis. 265.The Club argued before the judge that the Northern Metropolis was significant in two respects: first, it presented opportunities for greater public housing yields without the same environmental and cultural damage; secondly, building housing over the Old Course conflicted with government policy, which regarded the FGC as a green corridor and open space amenity at the heart of the planned Northern Metropolis area. 266.In contrast, CEDD contended that the EIAO was concerned only with environmental acceptability, not land policy, and that the Northern Metropolis was not an alternative to the Project but part of a long-term housing strategy. 267.The judge rejected CEDD’s interpretation of TM §3.4, holding that it specifically requires assessment of cumulative impacts of other developments in the vicinity. The announcement of the Northern Metropolis – involving large-scale development near the Golf Course – could materially affect whether the Project’s adverse environmental impacts were acceptable. A proposal viewed in isolation might be seen differently when the whole environs is subject to much wider development. The judge said at §429 of his Judgment:
268.In conclusion, the judge found a breach of TM §4.4.2(g) and SB §3.2.1(xiii) and §3.3.1. 269.With great respect, whilst the Northern Metropolis may be a relevant matter for the Government to take into account in deciding ultimately whether to proceed with the Project in the form and scale envisaged or at all – a question which does not arise on this appeal and on which we express no opinion – we do not agree that it came within the purview of the provisions of the TM and SB relied upon. 270.The first point to note is that the EIA Report is an environmental impact study. TM §3.4, which governs the preparation of the SB and provides that the SB may set out issues relating to combined or cumulative impacts, underlines that the focus is on the environmental acceptability of the project. TM §4.3.1(c)(ii) requires the assessment methodologies to be capable of addressing “the projected environmental conditions with the project in place and the sum total of the environmental impacts taking into account all relevant existing, committed and planned projects”. The requirements of the SB are to be read in that light. SB §3.2.1 sets out the scope of the EIA study required, and SB §3.4 sets out the technical requirements. SB §3.4.1 provides that the project component should conduct the EIA study “to address all environmental aspects of the activities as described in the scope as set out above.” Thus the EIA Report duly assessed the cumulative impacts of the Project and existing, committed and planned developments in the vicinity in respect of air quality, noise, water quality and landscape and visual impact. 271.The assessment called for by the TM and the SB was not about whether the Project was desirable given that there might be other housing developments in the horizon. Questions such as how the Project “might fit into the bigger picture of the Northern Metropolis” and whether there are other sources of housing land supply, are matters of land policy which are, as the judge described it, “big-picture policy decisions”.[115] These questions may well be relevant for the Government at a high level to consider at some point, but it does not follow that they are therefore questions to be assessed in the EIA study and decided by the DEP. 272.The Northern Metropolis is a policy initiative that covers very large areas in the northern part of Hong Kong, including new towns in Tin Shui Wai, Yuen Long, Fanling, Sheung Shui, various New Development Areas in different planning and development stages and their neighbouring areas, with a total area of 30,000 hectares (over one-third of the total land area of Hong Kong). It would be meaningless to speak of assessing the environmental impact of this development strategy as a whole – especially at its infancy – in conjunction with the Project. 273.Further, if potential housing supply generated from future developments within the Northern Metropolis is required to be taken into account as affecting the “environmental acceptability” of the Project, it is difficult to see why housing developments elsewhere in Hong Kong should not also be required to be taken into consideration, which seems to us to lie far beyond what is intended by the TM and the SB. 274.TM §4.4.2(g) (and see also §4.3.1(c)(i)[116]) and SB §3.3.1 require an assessment of benefits and disbenefits “with or without the project”, not some other project. SB §3.2.1(xiii) (like SB §3.2.1(i) & (vii)) requires an assessment of the potential cumulative impacts of the Project through interaction or in combination with other “existing, committed and planned” projects in the vicinity. This reflects the reference in TM §3.4 to “existing, committed and planned” developments in the vicinity. As the judge implicitly accepted in the part of his Judgment relating to “Noise – Fan Kam Road widening” (§§446-448), this phrase imports a state of established certainty, readiness or obligation, and does not mean just any conceivable potential future development. Thus the Project Profile and the EIA Report listed the specific ongoing or planned developments that would interface with the Project. But these provisions are not apt to apply to the Northern Metropolis as a whole. The Northern Metropolis was, at the relevant time at any rate, a high-level extensive development strategy or broad policy initiative with a very large geographical coverage – not a specific development project – designed inter alia to promote Hong Kong’s integration into the overall development of the country and the Greater Bay Area. It would not be meaningful to speak of a study of the environmental impact of that strategy, whether on its own or cumulatively with the Project. The Club has not identified any “existing, committed and planned” projects in the vicinity of the site of the Project arising from that strategy. 275.Mr Yu prayed in aid Recommendation (b) contained in Annex 2 to the Decision that CEDD should
This recommendation was simply an exhortation from the ACE for CEDD, which the DEP saw fit to include in an annex to his Decision, and underlines the fact that there was little concrete data available about the Northern Metropolis strategy. It does not affect the proper interpretation of the TM and the SB. The judge referred to Mr Yu’s argument relating to it[117] but, correctly in our view, did not rely on it. 276.For the above reasons, we conclude that the alleged breach of the TM and SB in relation to the Northern Metropolis was not made out. 277.This issue relates to the removal of waste from the project site during the construction period. 278.TM Annex 15 §3.3 provides:
279.SB §3.4.3.2 provides:
280.§2(iii) of Appendix F to the SB, which deals with waste management, requires the EIA report to state the transportation routings and the frequency of the trucks involved. §2(iv) requires that the impacts caused by, inter alia, transportation of wastes “shall be addressed in detail”. 281.The EIA Report contained a table of estimated C&D[118] materials generated from different construction phases, setting out their types and estimated amounts.[119] The report identified that land transport should be utilised to deliver the materials. It was anticipated there would be a maximum of 30 vehicles per day for transporting the wastes identified during a 6-year construction phase.[120] 282.The EIA Report did not set out the calculations, but as revealed in the evidence filed in the judicial review, the assessment in the report was based on total volume of C&D materials of 611,200 m3, to be transported by 38-tonne trucks (with an estimated capacity of 13.75 m3 each). Since the detailed construction sequence was not yet available, the truck trips were assumed to be equally distributed over the 6-year construction period with 301 working days a year. A factor of 20% was added out of prudence. The calculations resulted in around 30 vehicles per day. 283.In the Form 86, the Club stated there were inaccuracies in the calculations of truck trips in the EIA Report.[121] It was said that the report did not take account of the uneven distribution of truck trips, and that the initial site formation works would be likely to generate more waste than later stages. It was also said that the report underestimated the volume of inert C&D materials. As a result, it was said that the report failed to meet the TM quality requirements in §4.4.2(b) (“whether the information and descriptions in the EIA report are factually correct”) and §4.5.1(b) (“the quality of the report meets the requirements as set out in Section 4.4 and the results and conclusions are technically sound and reliable”). 284.In the expert evidence of Mr Alexi Kumar Bhanja filed by the Club, he said that the capacity of construction waste trucks used to determine truck trips generally ranges between 5.5 m3 and 7.5 m3 in most EIA reports and that he had not come across one based on 13.75 m3. He further said that the calculation on which the report was based ignored information showing that the majority of C&D materials would be removed within the first 21 months, which would mean around 90 vehicles per day during that time even assuming the larger truck was used. 285.In response, CEDD pointed out in its evidence that the use of 38‑tonne trucks was supported by relevant literature, and explained that as shown in the EIA Report, the site formation works (concentrated in the earlier years) were estimated to account for 60% of the C&D waste, while the building works (concentrated in the later years) would account for 40%, so that, taking into account the 20% buffer added to the estimated truck trips, the assumption of equal distribution was rational and reasonable. 286.In the Judgment, Coleman J noted that there was no dispute over the estimated total waste amounts generated. He did not doubt that genuine calculations had been done to support the estimates given in the EIA Report. He did not construe the TM or the SB to require underlying calculations for estimates to be included in the report itself (although he noted that provision of such calculations could be beneficial for proper understanding of the report). Critically, as we understand the Judgment, the judge did not find that the EIA Report did not meet quality requirements or was technically unsound because of the use of 38-tonne trucks or the assumption of even distribution in the assessment or otherwise. He did not find any breach of TM §4.4.2(b) or §4.5.1(b) as alleged by the Club. 287.Instead, the judge concluded at §488 of his Judgment:
288.Perhaps because breach of TM §4.5.1(c) was not the Club’s complaint in its Form 86 (though the pleading point has not been taken by CEDD on appeal), this passage is somewhat cryptic. In particular, the EIA Report obviously cannot be expected to address the points raised by the Club in its Statutory Submission, which came after the report. It may be that the judge had in mind the power of the DEP to seek further information under s 8(1) of the EIAO to ensure that the report, in combination with supplementary information, addresses relevant issues raised by the public during the public inspection period within the meaning of TM §4.5.1(c) – see the discussion in §80 above. As the request actually made and the Additional Information provided did not encompass this issue, the judge’s conclusion can be sustained on the basis that the EIA Report and the Additional Information as a whole did not comply with TM §4.5.1(c). 289.Mr Chan submitted that TM §4.5.1(c) does not require CEDD to address the Club’s arguments and criticisms per se and does not mean that CEDD had to provide the underlying calculations. §4.5.1(c) requires that the EIA report addresses “relevant environmental issues” raised during the public inspection period. It seems to us that its meaning and therefore what it in substance requires will depend on the facts of the case. Whilst it could not have been intended that in every case the project proponent should lodge a “reply” after the public inspection period, traversing each and every point raised by the public and the ACE, there may be specific matters raised that properly call for response or explanation before the DEP can decide whether or not to approve the report. 290.In the present case the Club had in its Statutory Submission put forward information and calculations relating to truck capacity and construction programme, supporting its apparently credible challenge to the estimate of an average of 30 trucks per day stated in the EIA Report without much explanation. Given in addition the requirement in the TM and the SB for environmental impact caused by the transportation of wastes to be “addressed in detail”, the judge’s view that what the Club raised was an environmental issue that needed to be addressed within the meaning of TM §4.5.1(c) cannot be faulted. (10) Noise – Fan Kam Road widening 291.As specified in the SB, the EIA study needed to include noise impact assessment. §3.2.1(iii) of the SB required the EIA study to address key issues including potential noise impacts during the construction and operation of the Project. 292.In the EIA Report, the noise impact on future residential blocks in Sub-Area 1 facing Fan Kam Road was assessed on the basis that there was a 10 m wide strip, being a “proposed amenity area”, at the western edge of the project site alongside Fan Kam Road. But it was also recognised there was a possibility that the Highways Department might decide to utilise that strip of land for the purpose of widening Fan Kam Road under another project, and so the EIA Report in another diagram showed the 10 m strip as “10m setback reserved for future road”. In a section on concurrent projects, the EIA Report also referred to Road Improvement Works at Fan Kam Road, though the commencement and completion years were not available. 293.The Club’s complaint is that the EIA study only assessed the noise impact based on the 10 m strip being used as an amenity area, and did not make an assessment on the basis it became part of the widened Fan Kam Road. The Club relied on SB §3.2.1 which required the EIA study to address key issues including:
294.The Club contended that the traffic noise impact during the operation stage of the Project had as a result been underestimated in the EIA Report. There was accordingly a breach of the TM quality requirements in §§4.4.2 and 4.5.1(b) as there were omissions or deficiencies so that the results and conclusions of the assessment could not be said to be “technically sound and reliable”. 295.In the Judgment, the judge rejected this complaint as follows:
296.Mr Yu submitted that the judge’s reasoning overlooked that SB §3.2.1(xiv) specifically refers to the potential widening of Fan Kam Road. He argued that the widening of that road was expressly listed as a key issue to be addressed, and how CEDD “regarded” that project cannot detract from the objective meaning of the SB. 297.In our view, the judge’s conclusion is sound. To put it in context, SB §1.3 sets out three individual work items included in the Project (namely, sewage treatment works, a sewage pumping station, and an activity for the reuse of treated sewage effluent from a treatment plant) that fall within Schedule 2 to the EIAO and are therefore designated projects as such. SB §3.2.1(xiv) requires CEDD to identify additional individual Schedule 2 designated projects “proposed under the Project”, to ascertain whether the findings of the EIA study at hand have adequately assessed and addressed the environmental impacts of those designated projects, and where necessary, to identify the outstanding issues that need to be assessed and addressed in any further detailed EIA studies. Properly construed, the widening of Fan Kam Road was mentioned in para (xiv) as a possible candidate but that provision would only apply to it and require it to be identified as such if it was indeed a Schedule 2 designated project proposed under the Project. There is no dispute that, as it turned out, there was in fact no such road widening proposed under the Project. On the contrary, it was proposed under the Project that the strip of land in question be used as an amenity area. Accordingly, there was no relevant breach of the SB in this respect. 298.If the Highways Department should subsequently decide to proceed with the road widening, that would be a different project initiated by a different project proponent for which a separate EIA study or Environmental Review would have to be undertaken, including a noise impact assessment. 299.As explained in §274 above, SB §3.2.1(xiii) does not cover any possible or potential project but only those that are existing, committed or planned. The evidence is that at the time, the relevant phase of the improvement of Fan Kam Road was still in the feasibility study stage. The judge did not consider this to be an “existing, committed or planned” project and we agree with him. 300.For these reasons, the Club’s respondent’s notice on this point is dismissed. 301.In summary:
302.For the reasons given, the appeals are dismissed. 303.We make an order nisi that the DEP and CEDD do pay the Club’s costs of the appeals, not including the costs of the respondent’s notice as to which there will be no order of costs. The costs are to be taxed if not agreed.
Mr Rimsky Yuen SC, Ms Anna Chow and Mr Martin Ho, instructed by Department of Justice, for the Respondent (Appellant) Mr Anthony Chan SC, Ms Leticia Tang and Mr Zenith Chan, instructed by Department of Justice, for the Interested Party (Appellant) Mr Benjamin Yu SC and Mr Timothy Parker SC, instructed by Messrs. Johnson Stokes & Master, for the Applicant (Respondent) Part II (sections 4 to 8) of the 4. Certain projects to be designated projects
5. Application for brief or permission to apply directly for environmental permit
6. Environmental impact assessment report
7. Public inspection of reports
8. Approval of environmental impact assessment report
___________ [2] Previously called the Secretary for the Environment, Transport and Works. [3] Chu Yee Wah v Director of Environmental Protection [2011] 5 HKLRD 471, §31. [4] Judgment, §81. [5] See Environmental Impact Assessment Ordinance (Amendment of Schedules 2 and 3) Order 2023. [7] See Judgment, §§489-491. [8] CACV 573/2024 is the appeal by the DEP. CACV 574/2024 is the appeal by CEDD. [9] Judgments, §533. [10] See Sections 1.4 and 1.5 of the EIA Report and §2.4.1 of the Executive Summary. [11] See e.g. Shiu Wing Steel Ltd v Director of Environmental Protection (2006) 9 HKCFAR 478 at §90, at p 525H; Fordham, Judicial Review Handbook (7th ed), Chapter P44. [12] Cf. s 23(c) of the Interpretation and General Clauses Ordinance (Cap 1), which provides: “Where an Ordinance repeals in whole or in part any other Ordinance, the repeal shall not … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any Ordinance so repealed …” [13] See Judgment, §536. [14] See e.g. the speech of the Deputy Secretary for Planning, Environment and Lands in Official Record of Proceedings of the Legislative Council, 29 January 1997, pp 76-77; Paper for the House Committee meeting on 10 January 1997 Report of the Bill Committee on Environmental Impact Assessment Bill, LegCo Paper No. CB(1)/96-97, §12-14. [15] Judgment, §132(3) & §133. [16] Judgment, §§136 & 142. [17] See the principles his Lordship set out in Judgment, §32. [18] See p 15/26. [19] Judgment §141. [20] mentioned there by its scientific name, Glyptostrobus pensilis. [21] TM, Annex 16, §§1.2, 5.2.1, 5.2.3 & 5.3.1. [22] §9.7.2.24 and §9.7.2.25. [23] Judgments, §279. [24] Citing: Gerry Bates, Environmental Law in Australia (11th edn), §13.57 (pp. 900-901); Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185, §§77-78; Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213, §§114-136; and Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419, §§32-42. [25] See Environment, Transport and Works Bureau – Technical Circular (Works) No. 13/2003 and Finance Circular No. 2/2021 – User Guide on the Finance Committee, Establishment Subcommittee and Public Works Subcommittee. [26] Judgment, §494. [27] Judgment, §§516-517. [28] Additional Information, §6.5.3. [29] Judgment, §524. [30] Judgment, §525. [31] Judgment, §§12, 13 [32] The Club did not pursue two other rulings against it stated in the respondent’s notice. [33] Judgment, §§24 to 31 [34] Shiu Wing Steel Ltd v Director of Environmental Protection & Airport Authority, §28. [35] Shiu Wing Steel Ltd v Director of Environmental Protection & Airport Authority, §30. [36] Chu Yee Wah v Director of Environmental Protection, §84. [37] Citing Ho Loy & Anr v Director of Environmental Protection, HCAL 21 & 22/2015, 22 December 2016 at §§55 to 58, per Chow J; Environmental Law in Australia (11th ed) by Gerry Bates, §§6.13 to 6.19; Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417 [38] Citing R (Mott) v Environment Agency [2016] 1 WLR 4338 at §69; R (Spurrier) v Secretary of State for Transport [2020] PTSR 240 at §179; R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] Env L R 29 at §61. [39] Judgment, §§118, 119, 178(3). [40] Join Smart Ltd v Director of Environment Protection [2022] 1 HKLRD 1110 at §27(2), per Chow JA (sitting as an additional judge of the Court of First Instance), summarising the principles stated in Shiu Wing Steel Ltd v Director of Environmental Protection (2006) 9 HKCFAR 478 at §19. [41] Prineas v Forestry Commission of New South Wales at 417, sections 111 and 112 of the Environmental Planning and Assessment Act 1979 (NSW). [42] Shiu Wing Steel Ltd v Director of Environmental Protection, at §6. [43] Judgment, §§227 to 229. [44] §1 (the applicant shall review relevant plan(s) and conduct surveys/studies to identify existing sensitive landscape characters and landscape resources including OVT, tree of large size, and protected/rare plant species), and §2 (the applicant shall describe, appraise, analyse and evaluate the existing and planned landscape resources and character of the assessment area … Clear mapping of the landscape impact is required. Broad brush tree and vegetation survey shall be carried out and the impacts on existing trees shall be addressed.) [45] Circular 5/2020, §6. [46] No decision has been made to date to register the trees nominated. [47] Preliminary Feasibility Study on Developing the New Territories North, co-authored by CEDD in December 2017, §6.1.2, footnote 80, and the Appendix under the heading “Development Constraints and Considerations”, stating there are about 80 potentially registrable OVTs found within the FGC according to a tree survey conducted by the Club, with a diameter at breast height (“DBH”) over 1,000 mm, the majority of which are estimated to be over 100 years old and scattered across the golf course; the Project Profile issued by CEDD in May 2019 at §§3.9.1 and 3.9.2 (which noted the cluster of trees in the PDA with many considered as potential OVTs, stating that the survival rate of potential OVTs after transplanting is low due to their maturity), and §5.9.5 (on mitigation measures to be incorporated in the design stage of the PDA, stating that the design should take into account the location of potential OVTs and associated clearance zones and avoid disturbance of the soil levels around these trees). [48] Consultancy Brief issued by CEDD to WSP in September 2019, §§6.15.1 and 6.15.2. [49] A summary of these paragraphs is at §4.1.6 of the Executive Summary of the EIA report, quoted in the Judgment at §211. [50] There was some confusion in the affirmations of the witnesses for DEP and CEDD what kind of tree survey was actually carried out. The EIA report stated at §11.5.1.3 that 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”. The judge found in §242 of the Judgment that an individual tree survey was in fact performed in Sub-Area 1. §11.6.3.3 of the EIA report stated that among the 1,255 trees surveyed in Sub-Area 1, 70 TPIs were identified. Table 11.10 on Recommended Mitigation Measures set out a precise number of trees to be removed in Sub-Area 1 and the adjacent area. [51] Issued by the Agriculture, Fisheries and Conservation Department in conjunction with the Environmental Protection Department. [52] Judgment, §213. [53] Judgment, §§225, 226. [54] Judgment, §216. [55] Judgment, §266. [56] Judgment, §§241 to 242. According to the survey conducted by URBIS Limited for the Club in February and March 2023 to verify the findings of the tree survey in the EIA report, the EIA survey missed 460 trees including 26 rare and/or protected species and 5 TPIs; mis-identified 57 tree species; plotted over 60 trees in wrong locations; recorded most tree dimensions incorrectly (at averages of only 86% of actual DBH, 76% of actual tree heights, 66% in woodland areas and 60% in open areas of actual tree canopy spreads); failed to identify that 25 of the 29 large TPIs in Sub-Area 1 are directly comparable in size and quality with existing OVTs. [57] Judgment, §251. [58] Quoted in the Judgment at §238. [59] Judgment, §259 [60] Judgment, §§253 to 258. The Club has consistently identified this issue since its Statutory Submission on 17 June 2022. It is not the case that this was raised only in the 3rd affidavit of Alexander Main Duggie filed in May 2024 one week before the hearing. [61] Glyptostrobus pensilis, also known as Chinese Swamp Cypress [62] At §§9.7.23 to 9.7.25; summarised in the Judgment at §§275 to 276. [63] Judgment, §279. [64] The conclusions of the HydroIA are quoted in the Judgment at §303. [65] 1st affirmation of Prof Chui filed on 27 November 2023, §20, quoted in the Judgment at §291. [66] 1st affirmation of Prof Chui, §19. [67] Judgment, §§292, 293, 308. [68] Judgment, §300. [69] The conclusions of Prof Jiao are set out in the Judgment at §295. He opined that compensatory tree planting in Sub-Areas 2 and 3 can lead to about 0.7 m decrease of water level in Sub-Areas 2 to 4, which may influence the hydrological environment for the living of CSC. [70] 1st affidavit of Ms Castka filed on 24 July 2023, §§19, 23. [71] 3rd affidavit of Ms Castka filed on 7 February 2024, §§21 to 24, summarised in the Judgment at §300. [72] These activities have continued following the expiry of the Club’s lease in August 2023. [73] See Judgment at §§179 to 191, citing Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 at §§125 to 188. [74] 2nd affirmation of Mr Leader filed on 10 August 2023, §§8 to 10. [75] Judgment, §313. [76] 2nd affirmation of Tsang Sai Wing Terence, Assistant Director (Environmental Assessment) in Environmental Protection Department, filed on 4 December 2023, §113. This is disputed by Ms Castka in her 3rd affidavit at §37, where she noted that the Lok Ma Chau Spurline project required detailed groundwater studies to determine the impacts on the ecologically sensitive Long Valley. [77] Ms Castka pointed out in her 3rd affidavit at §§61 to 63 it is fallacious to assume a linear relationship between surface profile and water flow and the rockhead map shows that the underground geology does not match the surface contours at all. See Judgment at §297. [78] Additional Information to the EIA report, §§7.3.8 to 7.3.9, 7.4.1 to 7.4.6; CEDD’s response to Annex 2 of Form 86, §2(vii) 7 to 10. [79] 1st affidavit of Wan Wai Keung filed on 27 November 2023 at §§22 to 27. Mr Wan was an executive director of WSP, CEDD’s consultant. [80] Judgment, §§297 to 298. [81] Judgment, §292. [82] Judgment, §312. [83] Additional Information to the EIA report, §§7.2 to 7.7. [84] Citing in support the 1st affirmation of Prof Chui at §§21.3 to 21.5. [85] EIA report, §9.8.3.3. [86] Judgment, §310. [87] 3rd affidavit of Ms Castka, §§31 to 37. [88] Judgment, §311. [89] Judgment, §315. [90] Judgment, §316. [91] 1st affidavit of Mr Wan, §34. [92] 3rd affidavit of Ms Castka, §§75 to 76. [93] Judgment, §297. [94] CEDD’s responses to comments of ACE. [95] “Unacceptable Impact” is defined as “if the adverse effects are considered to be too excessive and are unable to mitigate practically”. [96] “Undetermined Impact” is defined as “if the significant adverse effects are likely, but the extent to which they occur or may be mitigated cannot be determined from the study. Further detailed study will be required for the specific effects in question.” [97] An application for grading by AAB was made by the Club in 2018. That application is still pending and has not been determined. [98] Judgment, §§351 to 356. [99] Judgment, §363. [100] Judgment, §364. [101] TM §§4.2.1(e), 4.3.1(a), 4.4.3(a)(viii), Annex 10, Annex 19; SB §§2.1(vi), 3.2.1(xi), 3.4.12. [102] Skeleton submission for CEDD dated 30 April 2024, §84. [103] The judge’s finding at §364 there was a failure to comply with TM §§4.4.2(e) and 4.5.1(b) would seem to suggest that he did not accept CEDD’s contention. If and to the extent that he accepted the argument of CEDD that the term “site of cultural heritage” in the TM should follow the definition of this term in EIAO, the Club has contended in the respondent’s notice this would be incorrect. [104] Judgment, §344. [105] Judgment, §§330 to 335. [106] Cynopterus sphinx, Tylonycteris pachypus and Scotophilus kuhlii. [107] Judgment, §388. [108] Judgment, §390. [109] Judgment, §377. [110] §§9.3.1.1, 9.5.2.6 and 9.5.2.8. [111] See Mr Stanton’s 2nd affirmation §§48-50 and 3rd affirmation §§25-26. [112] Judgment, §390. [113] §§9.5.8.1-9.5.8.3, 9.7.2.29 and 9.7.2.54. [114] The reference in §§413 and 432 of the Judgment to §3.3.2 of the SB is a typographical error which should read §3.2.1 instead. [115] Judgment, §426 and §427. [116] This requires that the assessment methodologies shall be capable of addressing “the existing or projected environmental conditions without the project in place”. [117] Judgment, §§418-419. [118] Construction & Demolition. [119] Table 7.5.4. [120] §7.5.36. [121] Form 86, Annex 2, Item 13, §§5-9. | |||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Hong Kong Golf Club v. Director of Environmental Protection
Hong Kong Golf Club v. Director of Environmental Protection
Join Smart Ltd v. Director of Environmental Protection and Another
Ho Loy and Another v. Director of Environmental Protection
Deluxe Ascent Ltd v. Director of Lands
Law Mei Mei v. Airport Authority and Another
Further hearings and rulings under CACV 573/2024