Hong Kong: Approval Of An Environmental Impact Assessment Report And The Issuance Of An Environmental Permit By The Director Of Environmental Protection In The Capacity As Both Applicant And Grantor Of Approval

Last Updated: 10 September 2013
Article by Geoffrey Chan and Mei Ling Lew
Most Read Contributor in Hong Kong, October 2018
Keywords: Environmental Protection, Environmental Permit, Hong Kong

Legal principles which apply when challenges are made to the approval of an Environmental Impact Assessment (EIA) Report and the issuance of an Environmental Permit (EP) by the Director of Environmental Protection (Director) in the Director's capacity as both the applicant and grantor of approval.

The Court of First Instance considered the legal principles which apply in the above circumstance in Leung Hon Wai v. Director of Environmental Protection and Town Planning Board (HCAL 49/2012), which concerns a judicial review relating to a "designated project"1 to construct and operate a muncipal wastes incinerator (Project).

Under the EIA Ordinance (Cap. 499)(EIAO), the project proponent (Proponent) of a designated project shall apply to the Director for an EIA study brief (Brief). Upon receipt of such an application, the Director shall issue a Brief. Thereafter, the Proponent shall prepare an EIA report in accordance with the requirements of the Brief issued, and the Technical Memorandum (TM) applicable to the assessment. The Director shall then decide whether or not the EIA report meets the requirements of the Brief and the TM, and approve, approve with conditions, or reject the EIA report. Upon approval of the EIA report, the Proponent shall apply to the Director for an EP. Otherwise, the Proponent cannot construct and operate the designated project2.

The facts of the above case, in brief, are that the Environmetal Protection Department (EPD) is the Project's Proponent. The head of the EPD is the Director. In March 2008, the EPD submitted an application for a Brief to the Director. The Director issued the Brief in May 2008. An EIA report for the Project was first submitted in January 2011 for approval. After a few rounds of submissions, the Director approved a revised EIA report under section 8(3) of the EIAO in January 2012 (EIA Report). Subsequently, the Director granted the EP. The EP was issued to the Director (being the head of EPD, the Proponent) and signed by a Senior Environmental Protection Officer for the Director3.

In the judicial review, the Applicant challenged, amongst other things, the Director's respective decisions to approve the EIA Report (1st Decision) and to grant the EP (2nd Decision). The Applicant sought to quash the 1st and 2nd Decisions on various judicial review grounds, which include the following:

  • The 1st and 2nd Decisions were unlawfully made, as the EIA Report did not comply with various provisions or requirements set out in the TM and the Brief, and the 1st and 2nd Decisions were in any event Wednesbury unreasonable.
  • There was a breach of natural justice where the Director acted both as the Proponent for and the grantor of the approval of the EIA Report and the EP. In other words, the Director was the judge in the Director's own cause. The 1st and 2nd Decisions are in any event tainted by apparent bias given that the Director was both the applicant and the judge in the EIA process. In this context, the Applicant also raised the argument of "illegality", namely, that on a proper construction, the "applicant" under the EIAO cannot include the Director for various reasons.

THE 1ST AND 2ND DECISIONS WERE UNLAWFULLY MADE AND WEDNESBURY UNREASONABLE?

In considering whether or not the EIA Report complied with the TM and the Brief, the Court reiterated the following general legal principles on the question of the construction of the TM and the Brief4:

  • Whether or not the EIA report meets the requirements of the TM and the Brief is a question of law for the court to decide. The court should ascertain the meaning of the TM and the Brief, and the procedure they prescribe in order to determine the scope of the Director's power to approve the EIA report: Shiu Wing Steel Ltd v. Director of Environmental Protection5.
  • The above question is to be determined objectively. The TM and the Brief are to be construed not as legislative instruments, but as they would be understood by an expert risk assessor and should be read in a "down-to-earth way". Technical evidence may be needed to show that an EIA report meets or does not meet the requirements so determined.
  • The TM is a document which applies generally to all designated projects, while a Brief is project-specific. The Brief sets the agenda for the rest of the process. (The Court added that as a matter of construction, the general requirements of the relevant provisions in the TM should be informed of and prescribed by what has been set out at corresponding provisions of the Brief (if any), which is made specifically for the project)6.
  • Although it is a matter of construction for the court to decide what is required by the TM and the Brief, it is often a question of professional judgment what information is required to be contained in the EIA report to enable the Director to perform the Director's duties. Unless the judgment is Wednesbury unreasonable, the court will not interfere.

On the facts of the case7, the Court found that the EIA Report complied with the TM and the Brief. Accordingly, the 1st and 2nd Decisions were not unlawful and were not Wednesbury unreasonable. The Court made clear that the questions of what are environmentally acceptable standards in Hong Kong are questions of policy and are thus outside the purview of the Court8.

BREACH OF NATURAL JUSTICE

In considering whether or not natural justice has been breached in circumstances where the Director acted both as the applicant and the grantor of the approval of the EIA Report, the Court stated that this relates to the question whether as a matter of fact, the Director did act as a judge in the Director's own cause in the EIA process9.

The Court found that on the facts (which were not disputed by the Applicant)10 that there was factual segregation of personnel and duties within the EPD in (i) the infrastructure planning aspect including the preparation of the EIA Report, and (ii) the EIA process relating to the Project. Accordingly, the Court was satisfied that the Director has played no actual or active role in either the planning of the MWI (including the preparation of the EIA Report) or the approval of the EIA Report and the decision to issue the EP. Since the Director's name was used only nominally as the Proponent on the one hand, and the approval of the EIA Report and issue of the EP on the other hand as the Director is the head of the EPD, the Court concluded that the Director was not being the judge in the Director's own cause. The allegation of breach of natural justice was simply not made out on the evidence11.

APPARENT BIAS

On the question of apparent bias, the Court stated that the following principles were relevant:

  • The question to be asked is whether all the relevant circumstances would lead a fair-minded and informed objective observer to conclude that there is a reasonable apprehension of bias. Such an observer is assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind it is the appearance that these facts give rise to that matters, not what is in the mind of the person under scrutiny. The observer is neither complacent nor unduly sensitive or suspicious when he examines the facts and will be able to distinguish what is relevant and what is irrelevant, and decide what weight should be given to the facts that are relevant when exercising his judgment12.
  • The courts do have regard to the actual segregation of personnel and duties within the subject administrative or government department in applying the principle of apparent bias. If there is clear segregation of responsibilities and personnel in the complaint decision making process, which would be taken to be the background the observer is informed of, the court has held that there is no actual or apparent bias in the circumstances of those cases13.

On the facts14, the Court found that that the fair-minded and informed observer would not conclude that there was a reasonable apprehension of bias on the part of the decision maker.

ILLEGALITY

The Court dismissed the Applicant's arguments on "illegality"15 on various grounds16:

  • The EIAO does not by any express language exclude the Director as an applicant. Quite to the contrary, the plain words of the EIAO do not seek to exclude any identified person or party, not least the Director, as an applicant17. To construe otherwise would involve departing from the natural and plain meaning of the EIAO.
  • There are procedures and practices that could be adopted to ensure that there would be no breach of natural justice even if the Director is to act nominally as an applicant. Hence, the ordinary and plain construction of the EIAO of the meaning of an applicant to include the Director would not necessarily lead to breach of natural justice or absurdity.
  • The segregation of responsibilities and duties would equally eliminate the alleged absurdity of their operations.
  • However, if in fact there is a breach of natural justice in a particular case by reason of the Director being the applicant in an EIA process under the EIAO, the decision so rendered would be subject to judicial review on that basis. But that is not because of the construction of the meaning of applicant in the EIAO.

Footnotes

  1. A designated project, which is listed in Part I, Schedule 2 of the EIAO, requires the Director to approve an EIA report and to grant an EP to construct and operate the same
  2. See paragraph 9 of the Judgment
  3. See paragraphs 11 to 20 of the Judgment
  4. See paragraphs 27 to 30 of the Judgment
  5. (2006) 9 HKCFAR 478, at paragraphs 23, 26-28
  6. See paragraph 29 of the Judgment
  7. See paragraphs 32 to 171 of the Judgment
  8. See paragraph 169 of the Judgment
  9. See paragraph 176 of the Judgment
  10. See paragraphs 176 of the Judgment
  11. See paragraphs 177 – 178 of the Judgment
  12. See paragraph 182 of the Judgment
  13. See paragraph 183 of the Judgment
  14. See paragraph 184 of the Judgment
  15. See paragraphs 189 – 190 of the Judgment
  16. See paragraphs 192 to 197 of the Judgment
  17. See sections 3(1) and 5 of the EIAO and paragraph 192 of the Judgment

Originally Published - 3 September, 2013

Visit us at www.mayerbrownjsm.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2013. The Mayer Brown Practices. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions