Hong Kong: Environmental Law Sharpens its Teeth

Last Updated: 3 February 2004
Most Read Contributor in Hong Kong, October 2018

Written by Kevin Owen (Partner) and Peter Borg (Registered Foreign Lawyer (Australia))

Environmental law is gaining a higher profile in Hong Kong. In this article, Kevin Owen and Peter Borg examine the recent decisions of the Hong Kong courts in the Central Reclamation case and in Shiu Wing Steel Ltd v Director of Environmental Protection.

Central Reclamation

Reclaiming land from Victoria Harbour is not a new concept. Since the early 1940's over 3,000 hectares (almost half of the harbour) has been filled in. However, there is now a growing public concern that Victoria Harbour is in danger of being turned into Victoria River - particularly given that there are proposals to reclaim a further 600 hectares. It is not surprising then that the most recent attempt to reclaim an additional 46 hectares (approximately 75 football fields) along the Central and Wanchai waterfront met with significant resistance. Apart from public protests, there were two separate actions in the Court of First Instance to stop the reclamation. One action was successful while the other (for now at least) was unsuccessful. The successful action has been appealed directly to the Court of Final Appeal and the outcome of that appeal will almost certainly determine the fate of the unsuccessful second action. Despite this, the Victoria Harbour reclamation continues to proceed, as evidenced by the fleet of reclamation barges at work near the Star Ferry Pier. The question is, will the reclamation as a whole be completed in the form currently proposed.

Background

The idea for the current reclamation goes back over 20 years. In 1983, the Harbour Reclamation and Urban Growth Study (SHRUG) recommended that reclamation be carried out in several locations to provide land to meet the growth requirements of Hong Kong. In particular, SHRUG recommended that land be reclaimed along the Central and Wanchai waterfronts.

In 1987, the Territory Development Department commissioned the Central and Wanchai Reclamation Feasibility Study (CWRFS), which was completed in 1989. The CWRFS recommended the reclamation of some 108 hectares along the waterfront from Central to Causeway Bay. The main objective of the proposed reclamation was to provide land for the Central-Wanchai Bypass, the Island Eastern Corridor Link, the MTR North Hong Kong Island line and to improve the existing waterfront by making it more pedestrian friendly and easily accessible by the public.

Specifically, the CWRFS recommended that reclamation be carried out in five phases:

(i) Central Reclamation Phase I – for accommodating the Hong Kong MTR and Airport Express Stations. This phase was completed in June 1998.

(ii) Central Reclamation Phase II – reclaiming the previous Tamar Basin. This phase was completed in September 1997.

(iii) Wanchai Reclamation Phase I – for the extension of the Hong Kong Convention & Exhibition Centre. This phase was completed in July 1997.

(iv) Central Reclamation Phase III – work has just started.

(v) Wanchai Reclamation Phase II – pending.

It is the last two phases, the Central Reclamation Phase III (Central Reclamation) and the Wanchai Reclamation Phase II (Wanchai Reclamation), which are the subject of the current actions.

The Central Reclamation proposes to reclaim approximately 20 hectares of land along Central's waterfront. The reclaimed land will provide for the Central-Wanchai Bypass (a tunnel beneath the reclaimed land which will divert traffic around Central) and a waterfront promenade and associated facilities.

The Wanchai Reclamation will reclaim approximately 26 hectares of land along Wanchai's waterfront. In addition to the Central-Wanchai Bypass and a waterfront promenade, the reclaimed land will provide for a harbour park and for commercial, hotel, entertainment and exhibition development.

The Central and Wanchai Reclamations complement each other to the extent that one is of no value without the other. This is because the Central-Wanchai Bypass will lie underneath both the Central and Wanchai Reclamations.

The Society for Protection of the Harbour

The Society for Protection of the Harbour (Harbour Society) was formed in 1995 and maintains a close interest in the preservation of Victoria Harbour. The Harbour Society's main objects include taking legal action for the protection of the Harbour and to stop reclamation it considers contrary to public interest. The Chairman of the Harbour Society over the past eight years was Winston Chu Ka Sun. However, due to a 'serious threat of personal harm to [my] family specifically mentioning my aged Mother', Mr Chu resigned as Chairman on 11 October 2003. The new Chairperson is Christine Loh.

The Protection of Harbour Ordinance

During 1995 and 1996, the Harbour Society undertook a 'Save Our Harbour' campaign to oppose the Government's proposals to further fill in the Harbour. In March 1996, a motion proposed by the Harbour Society's then Deputy Chairperson, Christine Loh, was passed by the Legislative Council. The motion primarily called upon the Government to withdraw plans for reclamation in the Harbour and to take urgent measures to protect and preserve the Harbour.

Later that year, the Harbour Society presented the Protection of the Harbour Bill 1996 as a Private Member's Bill through Miss Loh. Although the Bill did not have the support of the Government, it passed in June 1997 and became the Protection of the Harbour Ordinance (Cap 531) (Harbour Ordinance). The Bill, when initially proposed, applied to the entire harbour of Hong Kong as defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1). However, as a result of amendments introduced by other legislators during the Committee stage, the Ordinance that was passed only applied to the Central Harbour. The amendments were made to ensure that major public housing developments on certain proposed reclamation sites would not be frustrated by the enactment of the Ordinance.

In November 1999, the Secretary for Planning Environment and Lands moved an amendment to the Harbour Ordinance. The amendment extended the geographical scope under the Harbour Ordinance to cover the whole of Victoria Harbour. As a result, the Harbour Ordinance now covers the entire Victoria Harbour.

The all important section of the Harbour Ordinance is s 3, which states:

(1) The harbour is to be protected and preserved as a special public asset and a natural heritage of Hong Kong people, and for that purpose there shall be a presumption against reclamation in the harbour.

(2) All public officers and public bodies shall have regard to the principle stated in sub-s.(1) for guidance in the exercise of any powers vested in them.

Section 3 sounds good but what does it actually mean? This would be answered, initially at least, in the Harbour Society's first action to stop the Wanchai Reclamation.

The First Action: Harbour Society v Town Planning Board

In summary, the Harbour Society brought a successful judicial review action against the Town Planning Board (Board). The Court found that the Board had failed to comply with s 3 of the Harbour Ordinance. As a consequence, progress on the Wanchai Reclamation was effectively stalled (for now). The basis for the decision is set out below.

The Board's decisions

From 1999 to 2002, numerous studies, assessments and consultations were completed in respect of the Wanchai Reclamation and various draft Wanchai North Outline Zoning Plans were produced. During this period the Territory Development Department, the Legislative Council Panel on Planning, Lands and Works, the Wanchai District Council, the Eastern District Council, and of course the Board were involved. These studies and assessments culminated in the Wanchai North Outline Zoning Plan No S/H25/1 (Wanchai Reclamation Plan) together with its Notes and Explanatory Statement being exhibited for public inspection in April 2002.

During the two-month exhibition period, a total of 770 valid objections, including one from the Harbour Society, were received. Of the 770 objections, 753 appeared in the form of a standard letter.

In November 2002, the Board heard the Harbour Society together with the other objectors. At its meeting on 6 December 2002, the Board rejected all of the Harbour Society's objections apart from one in respect of building height restrictions. The Board later resolved to propose five amendments to the Wanchai Reclamation Plan.

In January 2003, the Board's proposed amendments to the Plan were exhibited for public inspection. One further objection and two further representations were received during the two-week notification period.

At it's meeting on 14 February 2003, the Board heard the further objector. The original objectors, including the Harbour Society, were also heard. After deliberations, the Board decided that the Wanchai Reclamation Plan, as subsequently amended, was suitable for submission to the Chief Executive in Council for approval.

The Wanchai Reclamation Plan

The amended Wanchai Reclamation Plan covered approximately 76 hectares, of which 26 was for the land to be reclaimed along the Wanchai waterfront. The reclaimed land was to provide for:

(i) the Central–Wanchai Bypass and associated infrastructure;

(ii) a waterfront promenade;

(iii) a commercial, hotel, entertainment and exhibition development; and

(iv) a Harbour park.

Application for Judicial Review

On 27 February 2003, the Harbour Society applied for judicial review of the Board's decisions made on 6 December 2002 and 14 February 2003, respectively. The grounds ultimately relied upon by the Harbour Society were:

(i) the Board made an error in law in reaching the decisions in that it had misinterpreted the Harbour Ordinance and failed to apply the correct legal principles; and

(ii) the decisions were irrational.

On 28 February 2003, Hartmann J granted leave for judicial review. On 14 March 2003, upon the Harbour Society's application, Hartmann J ordered a stay of the submission of the Wanchai Reclamation Plan to the Chief Executive in Council, pending the final determination of the judicial review proceedings.

Question before the Court

In respect of s 3 of Harbour Ordinance, the question before the Court was (i) what must be done to satisfy the requirement to have regard to the duty to protect and preserve the Harbour, and (ii) what would be required to rebut the presumption against reclamation.

The Harbour Society's case

The Harbour Society submitted that in order to satisfy the obligation imposed under s 3(2) of the Harbour Ordinance, ie to have regard to the principle and presumption against reclamation in s 3(1), the Board must submit the proposed reclamation to three tests, namely:

(i) The compelling, overriding and present need test.

The presumption against reclamation in s 3(1) can only be displaced by a greater public need which clearly outweighs the public need to protect and preserve the Harbour as a special public asset and a natural heritage of Hong Kong people. There has to be clear, cogent, persuasive and objective evidence that the competing public need is truly exceptional, so urgent and compelling that it ought to override the public need to protect and preserve the Harbour.

(ii) The no alternative test.

The proposed reclamation must additionally be shown by clear, cogent and persuasive evidence to be unavoidable in that there is no other alternative available to implement the undertaking for which the reclamation is proposed.

(iii) The minimum impairment test.

Further, the scale of the reclamation proposed should be restricted to what is strictly necessary to implement the undertaking.

The Board's case

The Board argued that a common sense approach should be adopted in construing s 3 of the Harbour Ordinance. That is, the presumption under s 3(1) merely creates a compulsory material consideration, and that public officers are required to pay due regard to this material consideration by undertaking a weighing exercise. Where the public benefits of the proposed reclamation are so important that they outweigh the need to preserve every part of the Harbour, then the presumption against reclamation is rebutted. The Board argued that there should not be a rule that reclamation should be treated as a last resort as that would give too much weight to the presumption.

Additionally, the Board submitted that in conducting the weighing exercise, the Board should weigh the public benefits of a scheme as a whole against the presumption against reclamation and that it is not necessary to consider the individual components requiring reclamation separately and individually. The Board further submitted that reclamation that enhances or helps the presentation of the Harbour as a special public asset and a natural heritage of Hong Kong people may be permitted.

The decision of Chu J

In interpreting s 3 of the Harbour Ordinance, Chu J considered the section's plain wording, the purposive construction, the mischief rule, the Board's Vision Statement for the Harbour and Statement on Intent on Reclamation, international treaties and obligations, and fundamental principles of law.

Ultimately, Chu J rejected the submission of the Board that the protections enshrined in s 3 were no more than one of the material considerations to be taken into account by public planning bodies. Chu J held that in order to comply with s 3, the purpose and extent of each proposed reclamation ought to be individually assessed by reference to the three tests of (i) compelling overriding and present need, (ii) no viable alternative and (iii) minimum impairment.

Importantly, Chu J held that the purpose and extent of each proposed reclamation should be individually assessed by reference to the three tests. In this case, the fact that the Central–Wanchai Bypass and associated infrastructure may have satisfied the three tests cannot justify reclamation for other needs such as a Harbour park and waterfront promenade which would not have satisfied the tests on their own.

In a judgment handed down in July 2003, Chu J granted an order of certiorari to quash the decisions of the Board and further ordered that the cause be remitted to the Board to reconsider the Wanchai Reclamation Plan and the objections thereto according to law, in particular, the Harbour Ordinance.

The Appeal

The Board appealed the decision of Chu J directly to the Court of Final Appeal. In doing so, the Board's application was the first of its kind to bring a civil appeal directly from the Court of First Instance to the Court of Final Appeal. The Board was able to 'leap-frog' the Court of Appeal by the recently introduced Div 3 of Part II of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

On 29 September 2003, the Court of Final Appeal found that they were satisfied that (i) the case involves a question of law which, by reason of its great public importance, ought to be submitted to the Court of Final Appeal for decision and (ii) that such decision was so urgently required that a 'leap-frog' appeal was warranted. The Board's application was not contested as the Harbour Society, quite sensibly, consented to both the leave to appeal and the 'leap frog' application.

Accordingly, the Board's appeal was set down for hearing for six days from 9 December 2003.

The Second Action: Harbour Society v Chief Executive In Council

In summary, the Harbour Society applied for judicial review of the Chief Executive In Council's decision to approve the Central District (Extension) Outline Zoning Plan No S/H24/6 (Central Reclamation Plan) based upon the Harbour Society's successful challenge of the Wanchai Reclamation Plan. The Harbour Society, as part of its judicial review application, also applied for interim relief. In substance, the Harbour Society sought orders that all work under the Central Reclamation Plan connected to the reclamation of the harbour be stopped. Although Hartmann J granted leave for judicial review, he refused the Harbour Society's application for interim injunctive relief. As a consequence, the Central Reclamation was allowed to proceed (again only for now). The basis for the decision is set out below.

Application for judicial review

The Harbour Society applied for judicial review on 25 September 2003. Hartmann J granted leave on 26 September 2003. The matter was heard on 3 October 2003 and a decision was handed down on 6 October 2003. There can be no doubt that the application was dealt with in a timely manner.

Question before the Court

It was common ground in this action that the decision of the Court of Final Appeal would provide final and definitive guidance on how the principles in s 3 of the Harbour Ordinance must be applied and consequently was likely to decide the issue of the present judicial review.

Therefore, the question before the Court was whether the balance of convenience was in favour of stopping the reclamation work or in favour of allowing it to continue until the Court of Final Appeal's decision is given (expected in mid-January 2004 - some four or five months away at the time).

The Harbour Society's case

The Harbour Society contended that allowing the reclamation work to proceed, even on an interim basis, would result in irreparable and irreversible damage to the Harbour. It was submitted that once the reclaimed land was formed, which would only take a matter of months, it would be impossible to dig it up again. Essentially, it was submitted that the reclamation work would advance to a stage where, for all practical purposes, it would become a fait accompli.

Further, the Harbour Society submitted that the reclamation work could have an adverse effect on the ecology of the Harbour which could not be undone even if the reclamation work itself could be removed.

The Government's case

The Government submitted that (i) the reclamation would take two years to complete and not 'a matter of months', and (ii) the reclamation work would not be irreversible. In order to understand these submissions a basic understanding of the reclamation process is required.

To begin with, the reclamation work would take place in stages, one area at a time as opposed to reclaiming the entire area in one exercise. The first area, where work is presently taking place, is an area of approximately two hectares adjacent to the piers recently constructed in front of the IFC Tower 2. This work will allow the Star Ferry piers to be moved. Dredging work on the second area (Area 2) at the HMS Tamar Site, which comprises approximately six hectares, is due to commence in January 2004.

In physical terms, the reclamation work begins with dredging of the polluted silt from the sea bed (approximately 580,000 cubic metres of silt will be removed containing some 300,000 tonnes of contaminated mud). Thereafter channels are dug and impacted with hard fill so that prefabricated sea walls may be dropped into place. Then the enclosed area is filled with sand.

The Government submitted that within the relatively short time span contemplated before definitive guidance is obtained from the courts, the reclamation work will not have reached the advanced state alleged by the Harbour Society. By mid-January 2004, the removal of polluted silt from Area 2 would have only just commenced and so the reclamation work would still be in its relatively early stages and the work if necessary could be scaled back or undone. Therefore, for all practical purposes, the reclamation work was capable of being reversed to the extent demanded by law. Even if the work had reached the stage of filling the area with sand, the Government contended that the sand could be excavated and the sea walls moved without it constituting a work of daunting complexity.

The Government also submitted that if the HK$3.79 billion reclamation works were stopped now, material delay would be caused to the Central-Wanchai Bypass. This material delay would result in contractual claims running into hundreds of millions of dollars and would outweigh the financial losses that may have to be incurred if, at a later stage, the reclamation work has to be scaled back or removed entirely.

Finally, the Government submitted that ecological reviews, field surveys and marine impact assessments had been completed in respect of the reclamation. All of which indicated minimal impact on the Harbour. Further, an environmental permit under the Environmental Impact Assessment Ordinance (Cap 499) had been issued on the basis that the reclamation works would not have adverse long term environmental implications.

The decision of Hartmann J

On the basis that the reclamation work to be done in the next four or five months could, if necessary, be undone and that the ecological damage to the already degraded waters would be minimal, Hartmann J held that the balance of convenience in the wider public interest favoured that reclamation work should continue.

But Hartmann J warned the Government that should the courts subsequently rule against them and the reclamation work is found to be unlawful, the work will have to be removed.

The Government Reconsiders

Following Hartmann J's decision, public interest in the reclamation increased and the Government was required to respond to the growing public concern.

On 7 October 2003, the day after Hartmann J's rejection of the Harbour Society's application to suspend all work, the Executive Council considered whether to allow the return of the fleet of reclamation barges to Victoria Harbour, even though the ruling was in the Government's favour. Michael Suen Ming Yeung (Secretary for Housing Planning and Lands) informed the public that the Housing, Planning and Lands Bureau would consider several factors and present a report to the Executive Council before deciding whether to call back the dredging fleet. In particular, he said 'Public opinion will be taken into account before we resume'.

Later that same day the Executive Council decided to resume work. But only preparatory work involving the dredging of sludge from the sea bed would be carried out. Rocks would not be dumped into the Harbour.

The Court of Final Appeal is currently considering the meaning of s 3 of the Harbour Ordinance. It is likely to deliver its judgment in early 2004 when the ultimate fate of both the Central and Wanchai reclamations will be known.

Shiu Wing Steel Ltd v Director of Environmental Protection

The second interesting case is the decision of the Court of First Instance in Shiu Wing Steel. It is one of the first decisions in which the Hong Kong courts have examined the language and purpose of the Environmental Impact Assessment Ordinance (EIAO) and the Technical Memorandum produced under s 16 of the Ordinance.

Background

The Hong Kong Airport Authority (HKAA), since the opening of Chek Lap Kok Airport in 1998, has needed to construct a Permanent Air Fuel Farm (PAFF), (the existing fuel farm being only a temporary one). A number of possible sites were considered and a site known as Tuen Mun 38 was chosen as the most suitable. The HKAA then started to implement the various procedures necessary to get the project underway, including compliance with the EIAO as the PAFF amounted to a 'Designated Project'.

The Director of the Environmental Protection Department (Director) made two decisions; first, to approve the EIA Report submitted by the HKAA in relation to the PAFF under s 8(3) of the EIAO; and the second, to issue an Environmental Permit (with conditions attached) in respect of the Project, pursuant to s 10(2) of the EIAO.

It is these two decisions which were made the subject of an application for judicial review by the Applicant (Shiu Wing) who operated a steel mill near the site of the proposed PAFF to be constructed by the HKAA.

The factual background to the case is somewhat complex. Before considering the facts and the judgment of the court, it may be useful to provide a brief summary of the principal provisions of the EIAO.

Statutory framework

Under s 5 of the EIAO, a Developer is required to apply to the Director for a 'Study Brief' and, at the same time, to submit and advertise a project profile. The Director also informs the Advisory Council on the Environment (ACE), which is an independent advisory committee and performs the role of a watchdog. The ACE and the public have 14 days within which to comment on the project profile and the Director is then obliged to issue a Study Brief within 45 days.

Under s 6 of the EIAO, the Developer is required to prepare an Environmental Impact Assessment Report (EIA Report) which complies with the requirements of the Study Brief and to deliver it to the Director. The Director is then required within 60 days to decide if the Report meets the requirements of the Study Brief and the Technical Memorandum produced by the Secretary for the Environment, Transport and Works, pursuant to the provisions of s 16 of the EIAO. (The Technical Memorandum sets out the principles, procedures, guidelines, requirements and criteria for determining whether EIA Reports meet the requirements of Study Briefs).

If the Director decides that the Report meets the requirements of the Study Brief, then it is made available for public inspection for 30 days and the ACE may also give its comments within 60 days.

Under s 8 of the Ordinance, within 30 days after the public inspection, the Director may either approve, conditionally approve or reject the EIA Report.

If the EIA Report is approved, the Developer may then apply for an Environmental Permit to proceed with the Project which the Director may grant, again, subject to such conditions as he thinks fit.

Basis of Shiu Wing's complaint

Shiu Wing complained that the Director's decisions to approve the EIA Report and to grant the Environmental Permit were either unlawful or unreasonable pursuant to the principle enunciated in the case of Associated Provincial Picture Houses Limited v Wednesbury Corporation ([1948] 1 KB 223) (Wednesbury Principle), because the Report did not meet the requirements of the Study Brief and the Technical Memorandum. As Shiu Wing had no right to appeal against the Director's decision (as it was not itself a party involved in the Project), the only course of action open to Shiu Wing was to seek judicial review of the Director's decisions.

One of the principal grounds on which Shiu Wing sought to overturn the Director's decisions was that the EIA Report prepared on behalf of the HKAA did not contain a quantitative assessment of a '100% instant loss scenario' (such as the complete loss of the contents of a fuel tank in the event of an accident or failure) and that the Report only assessed this scenario qualitatively.

A quantitative assessment of a 100% instant loss scenario would require a statistical analysis which would result in a numerical likelihood of deaths occurring from a particular type of accident, and at what frequency and in what numbers. A qualitative analysis, however, is more subjective and does not require preparation of statistical data.

Shiu Wing argued that the failure to include a quantitative assessment of the 100% instant loss scenario in the EIA Report rendered it deficient, so that the Director's approval of it was unlawful.

Shiu Wing's principal argument therefore was that the EIA Report did not meet the requirements of the Technical Memorandum, as all reasonable hazardous scenarios had not been considered, and that certain assumptions and methodologies used in the EIA Report were questionable and/or inaccurate. In the expert's report produced on behalf of Shiu Wing, it was concluded that the construction of the proposed PAFF may produce hazardous conditions that would result in a greater hazard to life than intended by the EIAO.

The Court's decision

As mentioned previously, the issues before the court were both factually and procedurally complex and it is not the objective of this article to deal in detail with all of the issues which were decided by the Court. The principal purpose of this article is to briefly examine the court's decision on whether the Director acted lawfully and reasonably (in the public law sense) in approving the EIA Report and allowing HKAA not to carry out a quantitative risk assessment on the instantaneous release of 100% of a fuel storage tank in the PAFF.

Shiu Wing's principal case was that the EIA Report was deficient in that it failed to comply with the legal requirements of the EIAO and in particular the requirements of the Study Brief and the Technical Memorandum.

Central to this issue is how the provisions of the EIAO should be construed and in particular whether it was mandatory for the EIA Report to contain a quantitative risk assessment on all hazards to life that had been identified.

Burrell J indicated that where the meaning and effect of a statutory provision is the subject of legal argument, the court should construe the provision purposively and the interpretation of the provision should be consistent with the objects of the legislation as a whole.

The Judge stated that from an overview of the EIAO, it had a dual objective of first, striking a balance between the protection of the environment, and secondly, providing a regime by which important projects in Hong Kong may be completed in a timely and efficient way, provided that all the requirements of the EIAO are complied with.

The Judge held that while the Study Brief requires the carrying out of an 'assessment' (which was defined as 'an evaluation or an estimate of the nature of' a particular issue), there is nothing in the Technical Memorandum which requires a quantitative risk assessment for all hazardous scenarios to be carried out. The Judge stated that it was sufficient for a quantitative risk assessment to be conducted only for those scenarios which, in the Director's judgment, needed to be addressed and assessed.

The Judge also stated that to require a quantitative risk assessment to be carried out for all scenarios would include all incredible scenarios and those which it was known would not occur. This, he stated, could not have been the intention of the Study Brief.

The Judge also made a number of observations about the status of the Technical Memorandum produced under the EIAO, confirming that it is not legislation and that it is merely a guide for the Director in deciding matters under certain Sections of the EIAO.

The Technical Memorandum itself states that EIA Reports should comprise a 'detailed assessment in quantitative terms, wherever possible, and in qualitative terms of the likely environmental impacts and environmental benefits of the project'.

The Judge held that it was not sensible to extract the words 'wherever possible' from the Technical Memorandum and conclude that because a quantitative risk assessment on the 100% loss scenario was 'possible', that a failure to carry it out rendered the entire statutory process under the EIAO unlawful. The Judge stated that such an approach would be 'unduly literal', 'mechanistic' and not in accordance with the objectives and purposes of the EIAO.

The Judge went on to state that while the Technical Memorandum should be applied responsibly and with care, it should not be applied unduly literally and with blinkers. A failure to comply with every requirement of the Technical Memorandum will not automatically render an EIA Report invalid.

Shiu Wing's complaint that there was a non compliance which rendered the EIA Report invalid, therefore failed.

In relation to the second limb of Shiu Wing's claim (that the Director's decisions were 'unreasonable', pursuant to the Wednesbury Principle), the Judge again briefly recapped the basic legal principles to be applied in considering a claim for judicial review, namely, that the Court is not concerned with the correctness (or otherwise) of a particular decision, and that the court will examine whether the relevant decision was 'unreasonable' on the basis of the material which was available to the relevant administrative decision maker.

The Judge held that because neither the Technical Memorandum nor the Study Brief required a quantitative risk assessment to be carried out for every identified risk, it could not be argued that a decision not to carry out a quantitative risk assessment for an incredible scenario was either unreasonable, nor Wednesbury unreasonable. Accordingly, it was held that the Director was acting within his power when he decided that the EIA Report should be approved because it complied with the Study Brief and the Technical Memorandum.

Conclusion

The recent decisions in the Central Reclamation and Shiu Wing Steel cases demonstrate the increasing importance of environmental law in Hong Kong. Both Government agencies and developers of projects need to pay particular attention to the environmental implications of project proposals and the consequences for interested parties. Such interests, if ignored, will be at the peril of the relevant agency or developer undertaking the Project.

The original email legal update is copyright Johnson Stokes & Master at the date written first above. All rights reserved. This publication provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is intended to provide a general guide to the subject matter and is not intended to provide legal advice or a substitute for specific advice concerning individual situations. Readers should seek legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.

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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