LegCo Paper No.CB(1)52/96-97
(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 Thursday, 18 July 1996 at 2:30 p.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)
    Hon Ronald ARCULLI, OBE, JP
    Hon Emily LAU Wai-hing
    Dr Hon Samuel WONG Ping-wai, MBE, FEng, JP
    Dr Hon LAW Cheung-kwok
    Hon MOK Ying-fan
    Dr Hon John TSE Wing-ling
Members absent:
    Dr Hon LEONG Che-hung, OBE, JP
    Hon IP Kwok-him
    Hon NGAN Kam-chuen

Public Officers attending:

    Miss Joey LAM
    Principal Assistant Secretary for Planning, Environment and Lands (Environment)
    Mr Elvis AU
    Principal Environmental Protection Officer (Territory Assessment Group)
    Mr Sunny CHAN
    Acting Senior Assistant Law Draftsman
    Attorney General’s Chamber

Staff in attendance:

    Mr LEE Yu-sung, SALA
    Miss Odelia LEUNG, CAS(1)1
    Ms Sarah YUEN, SAS(1)1

I. Confirmation of minutes of meetings and matters arising

(LegCo Paper Nos. CB(1)1859/95-96 and CB(1)1860/95-96)

The minutes of the meetings held on 21 and 28 May 1996 were confirmed.

2. Following up matters raised at previous meetings, Mr Elvis AU advised that the sewage treatment works would need to have an installed capacity of about 2,400 m³ per day to serve a residential development of 2,000 units. Miss Joey LAM said that in the light of some members’ comments, the Administration intended to move a Committee Stage amendment (CSA) to delete clause 32(3), which provided for the maximum penalties for contravention of the regulations made under the Ordinance. Addressing Ms Emily LAU’s concern that this amendment might diminish the deterrent effect of penalties, Miss Joey LAM explained that Part VIII of the Ordinance already dealt with contravention of the provisions of the Bill and any related regulations would be administrative in nature. Hence, the amendment should not affect the operation of the Bill.

3. The Senior Assistant Legal Advisor (SALA) advised that the intention of clause 32(3) was to allow the imposition of fines at levels higher than that provided for under the Interpretation and General Clauses Ordinance (Cap. 1), which specified that the fines imposed for contravention of subsidiary legislation should not exceed $5,000.

II. Deliberation on the submission from The Hong Kong Institute of Architects (HKIA)

(Letter tabled at the meeting and circulated to members not present vide LegCo Paper No. CB(1) 1871/95-96)

Schedule 1

4. At members’ suggestion, the Administration agreed to consider rearranging the interpretation provision as part of the principal Ordinance to bring it in line with the usual format of an ordinance. Admin

Schedule 2

5. Referring to para. 2.3 of HKIA’s submission regarding the definition of ‘new access roads’ the construction of which required environmental permits (item Q.1), Mr Elvis AU explained that only new access roads partly or wholly in an ecologically sensitive area would require an environmental permit. Minor roads were exempted because the term as used in the Bill referred to small roads built for special or maintenance purposes which in general had little or no adverse impact on the environment. Mr Sunny CHAN would advise on the definition of ‘minor roads’ as used in the Buildings Ordinance (Cap. 123) and whether the usage was consistent with that in the Bill.

6. Dr Samuel WONG requested the Administration to consider including catchment areas of reservoirs in Schedule 2 so that they would be free from pollution.

Admin

Schedule 4

7. On para. 2.5 of the submission (item 1 in Schedule 4), which stated that it was unnecessary and potentially dangerous to include visual appearance of a designated project in an environmental permit, representatives of the Administration said that the Bill only stated that visual appearance of a designated project might be specified in an environmental permit. The decision as to whether or not to specify this in the permit would be based on the consolidated views of all relevant government departments and views of the public. Moreover, the Technical Memorandum (TM) would be specific on the criteria for requiring a project to address the visual impact and include guidelines on assessment procedures. Since visual appearance was a factor to be considered at the land use planning stage, the Planning Department would have inputs on the formulation of the TM.

8. Regarding para. 2.6 of the submission (item 6 in Schedule 4), which stated that conservation of cultural heritage should fall outside the scope of the Bill and should be dealt with at the town planning stage, the representatives of the Administration stated that the Bill provided the taking of mitigation measures to prevent actual damage to antiquities and monuments. The Administration had consulted the Antiquities Advisory Board and the Board agreed that the EIA Bill should cover the impacts of projects on sites of cultural heritage and should allow for the protection of these sites from adverse impacts.

Clause 19

9. Miss Joey LAM agreed to consider HKIA’s suggestion that representatives from different professional disciplines should be included in the Appeal Board to be set up to determine appeals lodged under the Ordinance.

Admin

III. Examination of Draft Committee Stage Amendments

(LegCo Paper No. CB(1)1849/95-96)

Clause 3 - remedy of environmental damage

10. In reply to Miss Christine LOH’s concern about the possibility of taking a citizen suit against the Government for environmental damage, Miss Joey LAM said the Administration maintained its view that inclusion of such a provision in the Bill might not be necessary as under the present legal system, a citizen might apply for a judicial review should he consider that the Government’s action was prejudicial to his interest. Members of the public might complain to the Commissioner for Administrative Complaints for maladministration. The question of citizen suits was a general legal issue which should be examined in a broader context. Miss Christine LOH was concerned whether a citizen without a direct interest in the case would have locus standi. Miss LOH stated that she might move a CSA to provide for citizen suits under the Bill.

Clause 4 - split projects

11. In reply to Mr Ronald Arculli’s questions, representatives of the Administration explained that to specify a series of projects as a designated project, the projects had to be contiguous and proposed by the same person or associated persons and the Secretary for Planning, Environment and Lands (SPEL) had to be satisfied that the purpose behind the separation of the projects was to avoid the purposes of this Ordinance. As a balance to the use of this power, provisions had also been made for the project proponent to ascertain with the Director of Environmental Protection (DEP) on whether a series of contiguous projects would be treated as a designated project and to appeal in case he disagreed. At members’ request, the Administration agreed to add a subclause under clause 17 to provide for the right of a project proponent to appeal to the Appeal Board against a decision of the DEP regarding an EIA study brief.

Admin

Clause 5 - public participation at the study brief stage

12. Responding to Mr Ronald Arculli’s questions, representatives of the Administration clarified that under the proposed subclause (3A), the applicant was only required to advertise ‘the availability’ of additional information or details relating to the information. The project profile and any additional information would be placed in a Public Register set up under the EIA Bill. Through administrative means, the District Offices under the Home Affairs Department would be informed.

Admin

13. In relation to public participation, some members expressed concern about the adequacy of the public inspection period. In response, representatives of the Administration made the following point -

  1. The proposed CSAs required the applicant for a study brief to advertise the availability of the project profile and allowed 14 days for the public to comment in parallel to the preparation of the study brief by DEP in consultation with other relevant departments. The public would have several opportunities to comment on a project including at the land use planning stage, the study brief stage and the EIA report stage.
  2. The Bill provided that the Advisory Council on the Environment (ACE) would be given a statutory period of 60 days to consider an EIA report. In formulating its views, ACE might take into consideration public comments and consult the relevant district boards.

14. Some members, on the other hand, were concerned about the length of the EIA process and that increased public participation in the process might prolong it further. In response, representatives of the Administration made the following comments -

  1. The proposed EIA process would expedite the current administrative procedures through simplified procedures, and provide certainty in respect of the processing time on the part of EPD. EPD would endeavour to live up to the performance pledges in handling applications.
  2. DEP would need 45 days to prepare the study brief because he had to consult other government departments and consider public comments. Clause 5(3) provided that DEP might within 14 days of receiving the application request the applicant to provide further information.
  3. The EIA process could be carried out in parallel to other stages of a project such as project design, preparation and approval of the building plan. In fact, the majority of residential developments would not be covered by the Bill except those of not less than 2,000 flats and not served by public sewage networks by the time the flats were occupied, and those within ecologically sensitive areas.
  4. Under clause 5(5), DEP might permit an applicant to apply directly for an environmental permit if he was satisfied that, having regard to the project profile, the environmental impact of the project was adequately assessed in an EIA report in the register, and that the information and findings of the EIA report in the register were still relevant. Clause 5(7) empowered DEP, with the consent of SPEL, to permit an applicant to apply directly for an environmental permit if he was satisfied that, having regard to the project profile, the environmental impact of the designated project was unlikely to be adverse and the mitigation measures described in the project profile met the requirements of the TM.
  5. To facilitate the EIA process, the Administration would provide a copy of public submissions on the project profile to the project proponent. The project proponent might also outline in the project profile the scope of issues that require assessment. The TM would facilitate the preparation of the study brief by specifying the information to be contained in the project profile. The Administration would review the EIA process 12 months after the coming into operation of the Bill.

15. Mr Ronald Arculli stated that he would consult the Real Estate Developers Association of Hong Kong on the timetable for the EIA process proposed in the Bill.

Clause 16 - Technical Memorandum

16. Members were concerned about the proposed negative vetting procedures for the TM. Subclause (5) stated that the Legislative Council could repeal the TM but did not provide for amendment. Members questioned the effect of the proposed CSA which stipulated that the TM was not to be regarded as subsidiary legislation.

17. In response, representatives of the Administration stated that the proposed CSA was intended to limit the volume of law books and to place the responsibility of publishing the TM on the EPD instead of on the Law Draftsman. The latter was considered appropriate as the TM was essentially a technical document, and should be prepared or amended by the executive department, hence the negative approval procedures. The Administration allayed members’ concern that there would be wide consultation on the TM before it was tabled for Members’ consideration.

18. Members remained of the view that the period provided under the Bill for scrutiny of the TM by the Legislative Council was inadequate. They requested the Administration to consider the alternative of providing for the positive vetting procedures. Admin

19. The next meeting would be held on 27 September 1996 at 10:45 a.m. to discuss outstanding issues.

20. The meeting ended at 4:45 p.m.
LegCo Secretariat 4 October 1996

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