Chu Yee Wah v. Director Of Environmental Protection

[2011] HKCA 217; [2011] 5 HKLRD 469; [2012] 1 HKC 35; CACV 84/2011
Download Judgment: English
Country:
Region: Asia
Year: 2011
Court: The High Court of the Hong Kong Special Administrative Region Court of Appeal
Health Topics: Environmental health
Human Rights: Right to a clean environment
Tags: Air pollution, Environmental hazard, Industrial waste, Water pollution

This case addressed the issue of whether Hong Kong’s Director of Environmental Protection (the ͞Director) had the authority to approve an environmental impact assessment (the ͞EIA) of certain proposed Hong Kong-Zhuhai-Macau Bridge projects (the ͞HKZMB Projects) if the EIA did not contain a quantitative stand-alone analysis of the projected environmental impact of the HKZMB Projects.

Hong Kong’s Environmental Impact Assessment Ordinance (the Ordinance) requires an EIA to be performed to determine the potential environmental impact of proposed construction projects before environmental permits for such projects can be approved by the Director.
Chu Yee Wah (the Applicant), a resident of an area affected by the HKZMB Projects, brought a suit in the Court of First Instance challenging the Director’s approval of the EIAs and subsequent issuance of environmental permits for the HKZMB Projects on several grounds, including that the EIAs did not contain a quantitative stand-alone analysis of the projected environmental impact of the HKZMB Projects. Although the trial court did not agree with the other challenges, it did rule that the Technical Memorandum (͞TM) and Study Briefs (SBs) which govern the requirements for EIAs, do in fact require EIAs to contain a quantitative stand-alone analysis of the environmental impact of a proposed project. Since the EIAs for the HKZMB Projects did not contain such an analysis, the court quashed the Director’s approval of the EIAs and issuance of the environmental permits. The Director appealed the trial court ruling to the High Court of the Hong Kong Special Administrative Region Court of Appeal (the Court of Appeal), where the lower court’s ruling was reversed.

Legal Provision:

Section 10(2) of the Environmental Impact Assessment Ordinance (Cap. 499)
Section 10(2) provides: “(2) In granting or refusing an environmental permit, the Director shall have regard to- (a) the approved environmental impact assessment report on the register; (b) the attainment and maintenance of an acceptable environmental quality; (c) whether the environmental impact caused or experienced by the designated project is or is likely to be prejudicial to the health or well being of people, flora, fauna or ecosystems; (d) any relevant technical memorandum; (e) any environmental impact assessment report approved under this Ordinance or any conditions in an approval; and (f) the comments, if any, submitted to him under section 7 on the report.”

The Court of Appeal held that the decision of the Director to approve the EIAs and issue the environmental permits was a matter of professional judgment and that the Court of First Instance was not entitled to interfere with that judgement unless the decision of the Director was unreasonable according to the standard set forth in the English case of Associated Provincial Picture Houses v. Wednesbury Corporation (1947). The Wednesbury standard defines a public official’s act as unreasonable if it is so absurd that no sensible person could ever dream that it lay within the powers of the authority."

Since the Court of Appeal determined that the Director’s decision was not Wednesbury unreasonable, it reversed the Court of First Instance’s decision to quash the Director’s approval of the EIA and issuance of the environmental permits.

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