LegCo Paper No. CB(1)1860/95-96
(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, 28 May 1996 at 2:30 p.m. in the Chamber 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
    Dr Hon LEONG Che-hung, OBE, JP
    Hon Emily LAU Wai-hing
    Hon IP Kwok-him
    Dr Hon LAW Cheung-kwok
    Hon NGAN Kam-chuen
    Dr Hon John TSE Wing-ling

Members Absent :

    Dr Hon Samuel WONG Ping-wai, MBE, FEng, JP
    Hon MOK Ying-fan
Public Officers Attending :
    Miss Joey LAM
    Principal Assistant Secretary for Planning, Environment and Lands (Environment)
    Miss Eva YAM
    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
Attendance by Invitation :
    The Conservancy Association

    Dr NG Cho-nam
    Chairman
    Mr HUNG Wing-tat
    Executive Committee Member

    Hong Kong Environmental Law Association

    Ms Terri Mottershead
    Task Force Coordinator
    Mr Bryan Bachner
    Chairman
    Ms Mary Gibbs
    Secretary

    Environmental Committee, the American Chamber of Commerce in Hong Kong

    Mr Kevin Shaw
    Chairman
    Mr John LOWE
    Member (Past Chairman)
    Ms Gael Ogilvie
    Member
    Mr Joe ZORN
    Member

    The Real Estate Developers Association of Hong Kong

    Mr Jim Dale
    Representative
    Mr S Y WAI
    General Secretary
    Mr Andrew CHAN
    Planning Consultant
    Ms Terri Mottershead
    Legal Adviser

    Townland Consultants Ltd.

    Ms Catherine Shaw
    Associate Director

Staff in Attendance :

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



I. Meeting with Conservancy Association (the Association)

(Report of the Survey on Land Use and Environmental Quality in North West New Territories was placed in the LegCo Secretariat for members’ reference. Members were informed of the availability of the Report vide LegCo Paper No. CB(1)1351/95-96)

Dr NG Cho-nam and Mr HUNG Wing-tat highlighted the following points :

  1. The Bill was already long overdue. The existing administrative arrangements were powerless in enforcing the implementation of environmental impact assessment (EIA) recommendations to achieve sustainable development for Hong Kong. The Report on Land Use and Environmental Quality in North West New Territories contained an abundance of such examples.

  2. The existing procedures failed to provide a clear and objective set of criteria for deciding whether an EIA report could meet the environmental requirements, especially ecological requirements. Every party concerned would benefit if the relevant criteria were more specific and transparent and that the project proponent could have an appeal channel if he was aggrieved by the decision of the DEP not to approve his report.

  3. With the existing administrative arrangements in place for two years, the experience gained should be able to provide the basis for the establishment of a set of more systematic and transparent legal procedures. The Bill was acceptable in its present form although minor technical refinements were necessary.

  4. The EIA of a project should be differentiated from the strategic environmental study of an area at the planning stage. While the latter was more of a rough estimate that fell within the purview of the Town Planning Ordinance (TPO), the former was more specific and aimed at prevention and fine-tuning the details of mitigation measures that had to be implemented in compliance with the general directions of environmental protection set at the planning stage.

Representatives of the Administration echoed the Association’s view on the relationship between environmental issues and planning. They stressed that while strategic environmental studies conducted at the planning stage would look at the impact of different land uses from a macro and strategic point of view, the Bill would ensure that the implementation of individual projects was conducted in an environmentally sound manner, taking into consideration ecological issues. By writing the EIA recommendations into the environmental permit, the public would also know what mitigation measures to look forward to.

On the role of the Advisory Council on the Environment (ACE) under the Bill, Dr NG Cho-nam said that the Bill might have the effect of restricting the powers and functions of the ACE by providing the project proponent with an appeal mechanism against ACE’s decisions, which could only be reversed by the Governor in Council under the present arrangements or through lengthy legal proceedings. In response, Miss Joey LAM emphasised that the appeal mechanism provided for in the Bill could help resolve disagreements and disputes. The main difference between ACE’s present role and its role under the Bill was that it would be subject to a 60-day time limit within which a decision had to be made. Coupled with the appeal mechanism, this time limit would help shorten the duration of the EIA process and benefit all parties concerned. Moreover, given that the Bill had set out clearer criteria for approval of EIA reports and provided for mandatory implementation of EIA recommendations, ACE could focus on the acceptability of EIA study reports.

II. Meeting with the Hong Kong Environmental Law Association (HKELA)

(Submission tabled at this meeting and circulated to Members not present vide LegCo Paper No. CB(1)1507/95-96)

Ms Terri Mottershead briefed members on HKELA’s submission. The HKELA was generally supportive of the aims and intention of the Bill and requested that the Bill and the Technical Memorandum (TM) should be enacted simultaneously. The HKELA however was concerned that the Government had yet to demonstrate a clear understanding of the difference in approach to EIA under the existing procedures and the new procedures proposed under the Bill. In particular, the Government had not taken full account of the need for education and training of all those to be affected by the Bill or involved in its application and the fact that the Bill imposed criminal liability on an offender the consequences of which were beyond environmental considerations.

HKELA was concerned that public participation in the EIA process under the Bill was limited. Their main concerns and recommendations in this area were as follows:

  1. There were restricted rights for a project proponent, its consultants and the public at large to be involved at the early stage of drawing up the terms of reference for the EIA, namely in the study brief. While ACE and public input should be permitted in the study brief, the Bill should also require that the project proponent and its consultants be consulted in drawing up the study brief.

  2. There were restricted rights of appeal under the Bill. The rights of appeal to the appeal board were limited both in the category of persons who could appeal and in the matters which could be appealed. Such rights should be extended to give rights of appeal to the public under the Bill. Time limits should also be introduced in relation to the appeal process.

  3. The opportunity to object might be restricted by delay in having information placed on the public register. HKELA therefore recommended that the Bill should specify a time limit by which information which should be contained in the register should be placed in it.

  4. The opportunity to object might also be restricted by insufficient information being placed on the public register. The HKELA therefore recommended that the Bill should specify the type of information that would be available. If it was intended to grant the project proponent or others exemption from disclosing certain information, then the nature of the exemption, application procedures and the determining criteria should be specified in the Bill or the TM.

  5. HKELA recommended that the criteria for changing the list of designated projects and granting exemptions be developed and made part of the TM. Full rights should also be granted to the public and the project proponent to appeal against any such decisions.

On monitoring, auditing and mitigation, HKELA’s views as presented by Ms Terri Mottershead were as follows:

  1. HKELA was concerned that construction was the main phase monitored, audited and mitigated through an environmental permit under the Bill. Moreover, there was nothing in the Bill that compelled monitoring, auditing or mitigation but rather this would be left to the discretion of the Director of Environmental Protection (DEP). HKELA therefore recommended that monitoring, auditing and mitigation measures should be mandatory requirements and detailed as such in the Bill for all stages of construction: before during and after the construction.

  2. Further consideration should be given to the release to the general public of monitoring, auditing and mitigation data provided to the Environmental Protection Department (EPD) so that such information could be used to take legal actions against inappropriate or illegal practices.

As regards the enforcement provisions of the Bill, HKELA had the following concerns and recommendations:

  1. Guidelines in relation to indictable and summary offences and for due diligence should be developed and made part of the TM.

  2. Despite the due diligence defence, there was still a likelihood that the offences might be challenged as strict liability offences under the Bill of Rights Ordinance. HKELA recommended that this be further considered.

  3. The remedies provided under the Bill were limited and might not be effective in rectifying environmental damage. HKELA recommended that the remedies be expanded by amending the provisions of the Bill with regard to sentencing options available under existing criminal laws. The HKELA also recommended that consideration be given by the Government to do all in its power to press for maximum fines and to extend the clean-up remedy to all offences. There should also be a provision for performance bonds or similar mechanisms to provide for clean-up/reparation costs in the Bill.

  4. As the appeal board might not have the expertise to deal with the technical data relevant to the appeals before it, HKELA recommended that the membership of it should be reviewed to ensure that there were sufficient members with the necessary scientific or technical expertise.

HKELA had other comments on the Bill as follows :

  1. The HKELA was concerned about the likelihood of duplication of process under the Bill and other legislation. In particular, it was concerned about the Bill’s possible overlap with the TPO and urged for the adoption of a ‘one stop shop’ approach.

  2. The Government should consider providing incentives to project proponents like tax relief for costs associated with a comprehensive EIA report or for the use of clean technologies.

In reply to members’ questions, Ms Terri Mottershead supplemented the following points :

  1. There was a high possibility of the Bill surviving challenges under the Bill of Rights Ordinance.

  2. The HKELA would like to see other remedies expanded before the Administration resorted to criminal conviction as a deterrent.

III. Meeting with the Environmental Committee of the American Chamber of Commerce in Hong Kong (AmCham)

(Appendix I to LegCo Paper No. CB(1)1458/95-96 and LegCo Paper No. CB(1)1482/95-96)

Mr Kevin Shaw briefed members on the submission of AmCham’s Environmental Committee (the EC) and highlighted the following points :

  1. The EC supported the Bill in principle and would like the Bills Committee to conduct similar consultations on the TM as this would be the key mechanism for implementing the Bill.

  2. The EC appreciated the comprehensiveness of Schedules 2 and 3, which detailed projects covered by the Bill. Such predictability and certainty were commendable.

  3. While EC welcomed formalisation of public participation in the Bill, it considered that the public should be involved at an early stage and not until after the DEP had accepted the EIA report. This would avoid unnecessary delays and minimise resources expended on an unwelcome project.

  4. The role of the ACE, while formalised in the Bill, was not well-defined. It was necessary to state how this voluntary body would carry out its functions under the Bill.

  5. The time required for a project proponent to obtain an environmental permit under the proposed Bill should be reviewed.

In reply to Hon Emily LAU’s question on the criterion for deciding whether a residential development was a designated project, Mr John LOWE supplemented that the availability of the sewerage system should not be the sole criterion for determining whether a residential development exceeding 2,000 flats should be a designated project. Moreover, the limit of 2,000 flats was too lenient. In his view, other factors such as the visual impact should be taken into consideration in the EIA process. There might also be the need to address visual impact during the planning process with regard to the zoning of land. Ms Christine LOH echoed this point and said that under the proposed Country Parks Amendment Bill, the Secretary for Planning, Environment and Lands would have a wide discretion to approve developments and as such the limit of 2,000 flats should be tightened to counter-balance such discretionary power.

In response, Miss Joey LAM made the following points :

  1. The Bill was targeted at polluters rather than those affected by polluting land uses. The Administration had therefore made a conscious decision to exclude from the Bill residential developments which would not cause adverse environmental impact.

  2. The limit of 2,000 flats was proposed as a possible option. The Administration was open-minded on the matter.

  3. Aesthetic and visual impacts were not the prime concerns of the Bill. They were issues that should be properly addressed at the land use planning stage.

In reply to members’ questions, Ms Gael Ogilvie said that since the DEP, under the Bill, would require formal feedback from the ACE throughout the process of approving EIA reports, the ACE might, being a voluntary body, find it difficult to cope with the amount of work upon formalisation of its role.

In response, Miss Joey LAM emphasised that ACE would continue to play an advisory role under the Bill and its workload would be more or less the same as at present. This was because full evaluation would continue to be done by the EPD and ACE would only select projects that were of interest to them for further study. Dr LEONG Che-hung said that the Chairman of the ACE’s EIA Subcommittee had just stated that they could cope with the potential workload without lengthening the EIA process.

IV. Meeting with The Real Estate Developers Association of Hong Kong (REDA)

(Appendix II to LegCo Paper No. CB(1)1336/95-96, Appendix II to LegCo Paper No. CB(1)1458/95-96 and paper tabled at this meeting and circulated to Members not present vide LegCo Paper No. CB(1)1507/95-96)

Ms Terri Mottershead briefed members on the executive summary of REDA’s views. She highlighted the following points :

  1. REDA was generally supportive of putting in place some form of administrative measures through legislation of the EIA process but emphasised that any such measures should be specific, understandable, user friendly and flexible enough to cater for an ever changing field of expertise and scientific advancement.

  2. There was a need for detailed criteria for assessing exemptions from the provisions of the Bill. In this regard, REDA recommended that the criteria used to decide whether or not a development could be exempted and the means of seeking such an exemption be detailed in the Regulations to the Bill. REDA also recommended that the project proponent be given the right to appeal against such decisions.

  3. There was a need for detailed criteria for assessing changes to the list of designated projects. REDA therefore recommended that the Government should be required to consult developers before making any change to the list , adhere to criteria in the Regulations to the Bill for amending the list and ensure that the Regulations were advertised for the benefit of all affected parties. Appeal rights should also be established and preserved in relation to amendments to the list.

  4. REDA recommended that specific guidelines and criteria be established noting the basis on which DEP would approve or disapprove mitigating measures proposed by the project proponent and/or his consultants and the expectations of the DEP with regard to mitigation and auditing.

  5. REDA recommended that the Bill provide that the study brief be drawn up by the project proponent and be submitted to DEP for approval. According to REDA, this input into the study brief was very important.

  6. REDA acknowledged that participation of the general public in the EIA process under the Bill had been limited and encouraged the Government to resist suggestions to increase this. If the Government intended to increase this, the objector to a project must be required to first establish that he would be directly affected or victimised by the adverse environmental impact of the project. This was because in most cases the developer should have already gone to great lengths to establish the lack of adversity in complying with the requirements of the Bill and the TM.

  7. REDA recommended that the Government should insert in the Bill a provision under which a developer could be exempted from releasing certain information to the register if such release would compromise his trade secrets. The Government could develop guidelines in the TM as to the categories of information which would be released on the register as of right and others whose release the project proponent could object to.

  8. There should be defence against self incrimination in relation to the release of monitoring and auditing data.

  9. As regards the content of the enforcement provisions, REDA was concerned that there were no guidelines as to what would amount to an indictable or summary offence and how to interpret the application of the due diligence defence under the Bill. It was also concerned that the category of offender was too wide, that the criminal sanctions provided under the Bill were inappropriate and ineffective, and that the adjudicators of appeals under the Bill might not be properly qualified.

  10. REDA felt that the EIA report produced pursuant to the Bill should be final and should not be subject to further environmental requirements or challenge under the TPO. REDA therefore recommended that the Bill and the TPO be amended to entrench these requirements and this approach.

Mr S Y WAI then put forward the following initial recommendations of REDA on enforcement:

  1. It should be clearly stated in the TPO that a project granted the environmental permit should be considered as having satisfied all environmental requirements imposed by the Town Planning Board (TPB).

  2. It should be clearly stated in the Bill that a project granted the environmental permit should be treated as having satisfied the environmental requirements specified in the land grant.

  3. Clauses 24, 26, 27 and 29 of the Bill should be reviewed to ensure that only those persons who had actual control and a decision making role in relation to a project would be liable for contravention of these provisions.

  4. To the extent possible, offences under the Bill should be decriminalised so as to remove fines and imprisonment as a remedy and instead increase the use of clean-up requirements. In this regard, developers could be required to put in cash bonds with the Government to finance mitigation measures.

Mr S Y WAI also opined that as long as there was a sewerage system to take care of the waste water, all residential developments should be exempted from conducting EIAs. He pointed out that at present developers already had to run a risk with every purchase of land because they had no idea of how many resources they would have to put in to satisfy accompanying environmental requirements. In response, Miss Joey LAM clarified that the Bill was directed at putting the responsibility for implementing prevention and mitigation measures on the infrastructure projects instead of on the developments in their vicinity. Even if such developments might still be subject to certain development constraints, enhanced transparency of the EIA process which the Bill would bring about would ensure that the developers would know the development constraints for land acquisition. Addressing REDA and members’ concern about the need for residential developments along new roads to satisfy certain environmental requirements before construction could commence, Miss Joey LAM agreed to provide a paper on this issue later.Admin

(Post-meeting Note: The paper was circulated to members vide LegCo Paper No. CB(1)1583/95-96)

V. Meeting with Townland Consultants Ltd.

Miss Catherine Shaw made the following comments on the Bill :

  1. There was not enough public participation at the early stage of the EIA process to ensure that the scope of the study brief would be comprehensive enough to identify all key issues.

  2. There should be greater and more direct public consultation in the EIA process. For example, apart from advertising a project in the newspaper, notice boards should be put up around the site boundary to advise affected parties.

  3. By requiring a great degree of expertise in conducting EIAs, the Bill might put a heavy burden on the EPD.

  4. The degree of control the DEP could exercise was worrying. Not only would his power to require non-designated projects to conduct EIAs lead to a certain degree of uncertainty but also his power to grant exemptions when only little information of a project was available gave rise to concerns that some environmental or ecological problems might be easily missed out.

  5. There should be some performance bonds in place to ensure that mitigation measures specified in the environmental permit would be actually carried out.

  6. There was concern about the possible duplication of the Bill with the TPO. It was not clearly defined who, the DEP or the TPB, would be the final deciding body in cases where a project approved by the TPB was refused an environmental permit.

  7. There should be close linkage between the Bill and the TPO because environmental and planning issues related to each other.

At the request of the Chairman, Ms Catherine Shaw agreed to provide a paper setting out how the Bill’s possible duplication with the TPO might result in some practical problems.Townland
Consultants

Members agreed to meet on 11 June 1996 at 8:30 a.m. to continue scrutiny of the Bill.

(Post-meeting Note: Two more meetings were subsequently scheduled for 27 June and 5 July 1996 respectively.)

The meeting ended at 4:45 p.m.

LegCo Secretariat
17 July 1996

Last Updated on {{PUBLISH AUTO[[DATE("d mmm, yyyy")]]}}