Mottershead, TL

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Title The environment impact assessment bill: one step forward ortwo steps back?Author(s) Mottershead, TLCitation Hong Kong Lawyer, 1994, Jul, p. 16-18Issued Date 1994URL http://hdl.handle.net/10722/57073Rights Creative Commons: Attribution 3.0 Hong Kong Licenseb y T e r r i M o t t e r s h e a dBackgroundIn 1980, the first pieces of anti-pollution legislationwere introduced in Hong Kong. The proposedEnvironmental Impact Assessment Bill ("the Bill") andthe proposed amendments to the Town PlanningOrdinance should be the most significant additions toenvironmental legislation since that date. However,those who have seen whathas been released in thesenew proposed pieces oflegislation are concerned thatthey may not live up toexpectation. Past errors appearto have been repeated withlittle prospect that these willbe corrected before thelegislation is enacted.On 1 October 1994, thesix-week consultancy periodfor the Bill closed. Although anumber of representativebodies were consulted, these were mostly from industryand excluded any direct contact with lawyers. Thecomments received by the government will thereforestrongly reflect industry's point of view. The governmentwill not learn from the mistakes and difficultiesencountered in other jurisdictions where litigation hasdecided issues relating to environmental impactassessment. : :Environmental impact assessmentUnder the terms of the Bill, environmental impactassessment will take: place either pursuant to theprovisions of the Bill- itself or with reference to theEnvironmental Protection Department ("EPD").The Bill states that all "designated projects", ie thoseprojects capable of causing significant environmentalimpact, as defined under the Bill, will require anenvironmental permit.:To obtain this permit, the projectproponent must prepare an initial environmental report.The EPD then decides whether or not the projectrequires a detailed environmental impact study. Afterreceiving the initial environmental report and/or theDoes the Environmental Impact AssessmentBill adequately tackle HK's problems?environmental impact study, the EPD will then decidewhether or not to issue a permit. However, before apermit is issued the EPD will make the report availableto the public and, in certain instances, to the AdvisoryCouncil on the Environment, for comment. The abilityof the proponent or the public to challenge the decisionof the EPD to grant or refuse apermit is unclear. •The terms of reference forboth the initial environmentalreport and the environmentalimpact study will be detailed intechnical memoranda ("TM").The TM will be laid beforeLegCo. However, it is unclear atwhat stage (if at all) the TM willbe made available for publiccomment, or if it will form partof the Bill. If it does not formpart of the Bill, the public willnot know, what is required of either an initialenvironmental report or an environmental impact study.Proponents will be particularly disadvantaged becauseif they do not cover all aspects expected of them, theymay find themselves penalised by unacceptable permitconditions. .'/.','•'••'.'.'....'•..••..'•.Veto of consultants ' . - ;. * : ; . . ' / ' " ' •:Developers and environmental consultants are alsoconcerned by the provision which gives the EPD theright to veto consultants chosen by proponents toprepare either the initial environmental report orenvironmental impact study. No detailed criteria exist,setting out the basis upon which a consultant is deemedto be acceptable. However, the proponent does havethe right to appeal against the EPD's decision. Thisprovision will greatly affect the relationship organisationshave with their: consultants and will imon the consultants themselves. Theto be hinting at an informalconsultanton the one hand, without providiformal licensing system would guarantee onHong Kong Lawyer December 1994The Legal EagleLiability under the BillIt is proposed that carrying out designated projectswithout a permit, or contrary to the conditions of thepermit, will constitute an offence with a maximum fineof HK$5 million, plus a term of imprisonment. If anoffence results in damage to the environment, the EPDwill be permitted to clean up the damage and claimagainst the polluter for costs incurred. The scope ofliability otherwise remains uncertain. Clearly there shouldhe consistency with other anti-pollution legislation interms of the categories of person to whom liability couldbe extended. The issue of whether the Hong KongGovernment will itself be bound remains unclear.EnforcementOf further concern is that there is no provision formonitoring permits once granted. Also, there is noindication that permits will be granted for a limited timeonly. If the burden of monitoring is to fall on thegovernment then there must be a system to ensure thatthe monitoring takes place. If not. there is no prospectof enforcement and any penalty proposed, severe orotherwise, is in reality, no penalty at all. As the imposi-tion of a penalty has been the only incentive whichensures industry's compliance with environmental leg-islation in Hong Kong, the absence of any real prospectof enforcement, will result in there being no real prospectof compliance.Town Planning OrdinanceSome commonality is proposed between the Bill andthe amendments to the Town Planning Ordinance. Thisfocuses on the necessity for an initial environmentalreport: and/or environmental impact study, and the useof this information for planning and environmentprotection purposes. However, there is other legislationthat needs to be considered, in order to avoid a multiplicityof permits and formalities. Much more should have beendone and needs to be clone to integrate all aspects of landdevelopment with the environment, or to put it moresimply, to ensure sustainable development.Environmental courtIn keeping with this theme of integration andsustainability and in recognition of the. fact that thepresent system is not working and must be overhauled,perhaps the government should consider setting up anEnvironmental Court or Tribunal. This would decide onthe practicalities of an environmental impact assessmentsystem and would adjudicate on all matters arising fromThe Lovell White Durrant environmental and planningteam, l-r Tony Marshall, Rona Westgate, TerriMottershead and Martin Davidit, or anything else affecting the environment.Such a court or tribunal should also have somejurisdiction over planning law. As the Town PlanningOrdinance is being reviewed, perhaps now is the time toconsider combining the unique requirements ofadjudicating environmental matters with their planningcounterparts and have them dealt with by one court ortribunal. The government would have to undertake aproper feasibility study to establish the viability of sucha court or tribunal. However, some of the possiblebenefits include the fact that multi-disciplinaryadjudicators could be chosen, it could adopt a mediationand arbitration role, it could relax the strict rules ofevidence and of standing, so the public could have readyaccess to it, it would allow real expertise and precedentsto be acquired through a body of decision-making, andit could allow legal representation for the opponents ofdevelopment schemes.ConclusionWe have waited a long time for the proposedlegislation on environmental impact assessment and thereview of the Town Planning Ordinance. These briefcomments cannot address all of the issues that need tobe considered. However, they do highlight the sorts ofmatters that still need to be dealt with by the government.Reviewing these concerns may result in further delay,but would be considered time well spent for HongKong's environment if the: government seizes theopportunity to get it right the second time around. Weneed this review to be comprehensive — as given therate of deterioration in Hong Kong's environment, wecannot afford personally or financially to ignore asecond chance! •Terri Mottershead is a Lecturer in the Faculty of Law,The University of Hong Kong, and a Consultant to LovellWhite Durrant, Hong KongHong Kong Lawyer December 1994The Legal Eagleidi (^ mfe, ^8 '•b y G r a e m e R o b e r t s/% revised Town Planning Ordinance (Cap 131)ft is expected to be ready for public consultationas part of the legislative process in early 1995. Willthis be a help or a hindrance to the developmentprocess and are we going in the right direction?The current situationThe current Town Planning Ordinance (Cap131) was originally enacted in 1939 and has onlybeen sparingly modified since that date. It is,therefore, reasonable to assume that as a piece oflegislation it may no longer be suited to the needsof a modern Asian city. In its defence, however, letme say that I believe that it has served us well,largely as a result of its simplicity. It has two majorvirtues, in my opinion:8 firstly, it is simple enough to be understood bylaypersons .,,.,.„>,......... ..,...-.. .•.-.,.,..*:li;*~,i,5s?-~«,,.^ ,,9 secondly, the plans prepared under it are similarlysimple and applications for planning consent,when necessary, are relatively straightforward.This means that property owners, developersand investors clearly know what their rights and/or obligations are with respect to planningretirements. We do not have a maze of codifieddocumentation which requires legal assistance todecipher. In general, professional assistance froma qualified planner will facilitate negotiation of thesystem, but unless you need planning consent orwish to object to a statutory plan, you don't eventhat. • : ' • ' • ' . ' . " . • • ' . 'for review.of the need forthat a; thorough review beundertaken of the existing ordinance with a view tothe introduction of newlegislation. In July 1991, thenewly formed PlanningDepartment published aconsultative document setting outthe proposed areas of change tothe existing ordinance for publiccomment. The consultationperiod ended on 30 November1991 and since that date little has been heard outsidethe Planning Department of the revised legislation.As such, speculation on what might be in a whitebill, once it emerges in the legislative process, isnothing more than that. There are, however, a fewcommon themes which have emerged from theconsultation document and public reaction to it,which are potentially illuminating.The speed of the planning processTwo aspects are relevant here:9 The speed with which new plans are formulatedand amendments to plans are promulgated. Ingeneral, I feel we can expect to see bothprocesses take even longer than at present. Isay this for two reasons. Firstly, the planmaking and amendment process is likely to getmore professionally demanding in terms of thesupporting information, documentation andjustification required. While in some senses this,, ,is to be welcomed, in that the public will have'• ;^:::;more information to judge whether or not the •planners have got it right, in other respects thelonger process will cause its own problems. Forexample, legitimate development initiatives maybe rejected because the planning process hasnot been completed. The second reason I^ • consider the process may take longer is relatedto the number of persons potentially involved.This will arise due to wider rights of public• participation and consultation during the process.. •' This can also be viewed as a generally positive.••'.'development in open government with• .potentially negative consequences for the.'development process,• The second besignificantforTown Planning Ordinance an application for aHong Kong Lawyer DecemberThe Legal EagO O'use' contained within an Outline Zoning Plan(OZP) must be considered by the Town PlanningBoard (TPB) within two months of its submission.It has been proposed that the revised ordinanceshould provide for public notification andcomments on planning applications. If thisprovision makes it into the legislation, I believewe will very quickly see the paralysis in ourplanning system that we see in other jurisdictions.The prospect of commercially motivatedobjections to applications for planning consentis a worrying possibility. The TPB has verywisely looked after the public interest for almost43 years since it first met in 1951, why not letthem continue to do so?Enforcement powersAt present the Town Planning Ordinance onlyprovides enforcement powers for land withinDevelopment Permission Area (DPA) plans in theNew Territories. These powers, introduced by anamendment in 1991, will be carried forward asthose DPA plans are replaced by OZPs.It is quite clear from the consultative documentthat enforcement powers are going to be sought forall areas, regardless of the plan type. In practicalterms this may mean that in addition to LandsDepartment enforcement actions under the Sandlease, the Planning Department wi l l haveconsiderable enforcement ,:powers which mayoverride the less restrictive provisions of the lease.This section of the new ordinance is likely to beclosely scrutinised and will attract considerableTie TPB as judge and juryUnder the current Town Planning Ordinance,objections to draft Outline Zoning Plans which havebeen gazetted for public inspection are consideredby the Town Planning Board. Initially this occurs inthe absence of the objector and then subsequently,if the objection is not accepted, the objector canrequest further consideration of his objection at ameeting of the board. At that meeting he may, if hedesires, be heard. There has been a legal viewexpressed that this provision and practice is contraryto Article 10 Bill of Rights. Article 10 states, interalia, that "...everyone shall be entitled to a fair andpublic hearing by a competent, independent andimpartial tribunal established by law". The legalview is that as the TPB has caused the OZP to beprepared (s3(l)) and then approved for publication(s5), it can not then be viewed as independent andimpartial in considering objections to the plan.In 1991, the Town Planning Ordinance wasamended to provide for an independent AppealBoard which was to review decisions of the TPBarising from applications for planning consent.Interestingly, the Appeal Board is not permitted toreview decisions in respect of objection procedures.The requirements of Article 10 Bill of Rights would,therefore, appear to be met in respect of applications,but not for objections. The reasons for thisdistinction, if indeed there are any, have not beenmade explicit., ,The proposals for the revised ordinance outlinedin the consultativefor the removalof this anomaly. I would be verysurprised, particularly if a judicial challenge on thispoint is successful, if this is not amended in then "Thet" given at a Legal Business inAsia seminar on Current Issues and Developments Residential Property, earlier' 'is a Registered • Professionalonsultants LtdHong Kong Lawyer December 1994

The environment impact assessment bill: one step forward or two steps back?

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The environment impact assessment bill: one step forward or two steps back?

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