LegCo Paper No. CB(1)1873/95-96
(These minutes have been seen by the Administration)
Ref : CB1/BC/20/95/2

Bills Committee on
Environmental Impact Assessment Bill

Minutes of Meeting
held on Tuesday, 11 June 1996 at 8:30 a.m.
in Conference Room B of the Legislative Council Building

Members Present :

    Hon Edward S T HO, OBE, JP (Chairman)
    Hon Christine LOH Kung-wai (Deputy Chairman)
    Dr Hon LEONG Che-hung, OBE, JP
    Dr Hon Samuel WONG Ping-wai, MBE, FEng, JP
    Hon IP Kwok-him
    Hon MOK Ying-fan
    Hon NGAN Kam-chuen
    Dr Hon John TSE Wing-ling

Members Absent :

    Hon Ronald ARCULLI, OBE, JP
    Hon Emily LAU Wai-hing
    Dr Hon LAW Cheung-kwok

Public Officers Attending :

Mr Bowen LEUNG
Secretary for Planning, Environment and Lands
Miss Joey LAM
Principal Assistant Secretary for Planning, Environment and Lands (Environment)
Mr Raymond CHAN
Assistant Director (Environmental Assessment)
Mr Elvis AU
Principal Environmental Protection Officer
(Territory Assessment Group)
Mr Anthony Watson-Brown
Senior Assistant Law Draftsman
Attorney General’s Chambers

Staff in Attendance :

Mr Arthur CHEUNG
ALA5
Miss Odelia LEUNG
CAS(1)1
Ms Sarah YUEN
SAS(1)1

I. Confirmation of Minutes of Meeting

(LegCo Paper No. CB (1)1411/95-96)

The minutes of the meeting held on 18 April 1996 were confirmed.

II. Discussion with the Administration on the Bill

(LegCo Paper No. CB(1)1572/95-96, LegCo Paper No. CB(1)1583/95-96 and LegCo Paper No. CB(1)1592/95-96)

2. The Chairman stated that there were some press reports on the slow progress of the scrutiny of the Bill. He wished to clarify that the Bills Committee had been and would continue to examine the Bill expeditiously.

3. Responding to members’ questions on the relationship between the Bill and the planning process, representatives of the Administration stressed the following points:

  1. The operation of the Town Planning Board (TPB) in the past years had shown that broad environmental concerns were given due consideration together with other important planning issues. Hence, even under the current arrangements, it was highly unlikely that a project which would give rise to insurmountable environmental problems or be incompatible with fundamental land use would be granted planning approval. In fact, in the 15 years of operation of the environmental impact assessment (EIA) arrangements, there had been no single case where a project with planning approval could not proceed because of environmental problems identified in an EIA.
  1. It was a worldwide practice that project-specific EIAs would be done after strategic environmental assessments. The former covered project-specific and site-specific environmental requirements and the latter focussed on land use compatibility, cumulative development impacts and long-term development objectives. These two processes were equally important to the effective protection of the environment and were complementary to each other. At members’ request, the Administration would provide further informaiton on strategic development EIAs.
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  1. Planning approval by the TPB and the Advisory Council on the Environment (ACE) was normally conditional on the completion of the strategic environmental assessment. Cumulative impacts would be considered when environmental assessments were conducted for the Territorial Development Strategy and its regular reviews.
  2. Due to the large amount of preparatory work involved, strategic planning had to be made at least ten years ahead. The Bill would help realise planning intentions at the project level by ensuring optimal environmental performance of development during their design, construction and operational phases.
  3. Only a small number of designated projects under the Bill were subject to case-specific planning approval. Hence a separate EIA Bill remained necessary to control the majority of the designated projects for which specific planning approval apart from compliance with statutory land use plan was not required.

4. Addressing some members’ concern over the Bill’s inability to ensure public participation at the strategic planning stage, Mr Bowen LEUNG explained that under the existing arrangements, there was already public consultation at an early stage. A new draft plan had to be accepted by the TPB and ACE before release for public consultation. The District Boards and the relevant organisations would be consulted on the draft plan. The TPB would then take account of public views and decide when amendments to the draft plan were necessary before submission to the Executive Council for consideration. The Administration intended to advance the public consultation stage in future so that the public would be consulted before the draft plan was prepared. On the strategic planning level, public consultation was available too. Public views were invited in the Territorial Development Strategy. During the past three years, two consultation papers had already been issued and another one would soon be released.

5. Concerning the exemption provision in the Bill, Mr Bowen LEUNG and Miss Joey LAM explained that the Governor-in-Council might only exempt a new project from the provisions of the Bill in the public interest under exceptional circumstances. Such an exemption would be granted in the form of an order published in the gazette, which would be subject to the negative approval by the Legislative Council.

6. As regards members’ questions and comments on the mitigation of noise impacts arising from roads, representatives of the Administration made the following points:

  1. Under the Bill, proponents of road projects would be requested to assess, among other things, noise impacts on both the existing and planned noise sensitive uses, identify suitable alignment, consider options to prevent and mitigate traffic noise impacts, and propose the best practicable package of noise mitigation measures to protect both existing and planned sensitive uses. In short, the initial onus of providing noise mitigation measures was put on the road projects.
  2. In assessing the practicability of noise mitigation measures, technical viability instead of costs was the major criterion for weighing the different options. If the planned sensitive uses were to be developed at a later date, the proponent would, where practicable, provide the foundation work and install the noise mitigation measures before completion of the planned sensitive uses.
  3. The Government had already engaged consultants to study the remedial noise mitigation measures for existing roads. This study would be completed in two years.
  4. The Bill only covered developments with potential for adverse environmental impacts. Developments adjacent to roads would not be asked to undertake their own EIAs. Instead, the Bill would protect existing and planned sensitive uses such as schools from excessive traffic noise by making the implementation of practicable mitigation measures on the roads recommended by EIA obligatory and enforceable. Moreover, school sites were normally marked in the statutory plans and the public already had the opportunity to make suggestions to address potential environmental problems at the planning stage.

III. Clause-by-Clause Examination

Clause 1

Short Title and Commencement

7. The Administration stated that the Bill would take immediate effect upon its enactment. At members’ request, the Administration agreed to start consulting the professional bodies, trade associations, environmental groups and the ACE on the draft Technical Memorandum (TM) as soon as possible.

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Clause 3

Application

8. Members opined that it was unfair that Sections 26 and 27 would not have effect to permit proceedings to be taken against, or to impose criminal liability on, the Government or on a person doing anything in the course of carrying out his duties as a public officer in the service of the Government, as provided under clause 3.

9. In response, representatives of the Administration emphasised that non-application of cirminal liability on the Govenrment and public officers was a constitutional issue. Although public officers were exempted from criminal liability, they were subject to other rules in carrying out duties. This system was not unique to Hong Kong but was adopted by other overseas countries. As far as compliance with the provisions of the Bills was concerned, the Environmental Protection Department (EPD) would act as a watchdog and report any government actions in contravention of the Bill. Under clause 24, the Director of Environmental Protection (DEP) might, with the consent of the Secretary for Planning, Environment and Lands, issue an order requiring other government departments to cease working on a project and/or carry out work on the project to remedy environmental damage identified by him. Control over government projects could also be exercised through monitoring the work of the contractors, who would be criminally liable for commission of an offence under the Bill. Moreover, the affected parties might apply to the court for an injunction order to restrain the Government from proceeding with a particular project. However, the Administration stressed that the question concerning citizen suits should be covered by a general provision and was not specific to the Bill. As such, it would not be appropriate to include in the Bill such a provision.

10. Members considered it necessary to expressly state in the Bill that the Chief Secretary might require actions be taken to remedy the damage done to the environment. The Administration agreed to tighten subclause (4) to achieve this effect. At Members’ request, the Administration would advise on the following:

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  1. the mechanism adopted by overseas countries in ensuring compliance with EIA legislation by public officers; and
  2. the possibility of taking a citizen suit against the Government for environmental damage.

Clause 4

Certain projects to be designated projects

11. In reply to members’ questions relating to this clause, representatives of the Administration made the following clarifications:

  1. The power of SPEL to add or remove projects from the lists of designated projects in Schedules 2 and 3 was intended to allow flexibility. Any addition or deletion of designated projects would be subject to the negative approval by the Legislative Council.
  2. Subclause (3)(b) ensured that the addition of a designated project to Schedules 2 or 3 would not affect projects the construction of which commenced within six months of the addition of the project to the Schedule because such projects were already mature projects.
  3. Schedule 3 dealt with engineering feasibility studies, which were composite projects with great impacts. An overall EIA report would be required for such projects to deal with the cumulative impacts and avoid duplication of efforts. For the commencement of individual projects under them, an environmental permit was necessary.

12. To facilitate Members’ understanding of the operation of the Bill, the Administration agreed to provide a paper, using the Black Point 400 KV Transmission System as an example, to illustrate the whole process in obtaining an environmental permit.

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Clause 5

Application for brief or permission to apply directly for environmental permit

13. Representatives of the Administration informed members that in response to various deputations’ comments, the Administration was considering a mechanism to provide for public inputs at the study brief stage. The initial thinking was that the DEP would, in preparing the study brief, consult the ACE in addition to the relevant government departments and authorities. However, the merits of such a mechanism should be weighed against the additional time required to finalise the brief, hence lengthening the EIA process.

14. Some members opined that to ensure that the best environmental option would be chosen, public inputs at the study brief stage was indispensable. In response, representatives of the Administration said that the project proponent already had to provide information on the site selection process in the project profile. The TM which set out the objective criteria would ensure that the minimal environmental standards would be met. The project proponent, in applying for planning approval, had to satisfy the vetting done by the TPB in terms of site selection.

IV. Date of Next Meeting

15. The Chairman reminded members that the next meeting of the Bills Committee had been scheduled for Thursday, 27 June 1996 at 2:30 p.m.

The meeting ended at 10:30 a.m.

LegCo Secretariat
19 July 1996

Last Updated on 25 Oct, 1996