D R A F T
LegCo Paper No. CB(1) /96-97
Ref : CB1/BC/20/95
Paper for the House Committee meeting on 10 January 1997 Report of the Bill Committee on Enviromental Impact Assesment Bill
1. This paper reports on the deliberations of the Bills Committee on Environmental Impact Assessment (EIA) Bill and seeks members support for the Bill to resume its Second Reading debate on 29 January 1997.
2. The current EIA procedures are administrative in nature. Project proponents generally comply with the requirements for notification of proposals and for undertaking EIA studies. However, there has been difficulty in attaining full implementation of the mitigation measures recommended in EIA studies because the proponent sometimes fails to anticipate or allow for the cost and programming implications of EIA findings at the planning stage. Under the current administrative arrangements, there is no satisfactory and effective mechanism to enforce EIA recommendations. The lack of legal backing also makes it difficult to apply the EIA requirements consistently to major development projects. Moreover, in the absence of a formalized enforcement mechanism, project proponents and the Environmental Protection Department (EPD) have to negotiate on how EIA recommendations can be enforced. The time this process takes can be saved if a clear mechanism for enforcement can be defined under legislation. In view of these drawbacks in the current administrative arrangements, the 1993 Second Review of the 1989 White Paper, "Pollution in Hong Kong - A Time to Act", recommended the enactment of legislation to make EIA for major development projects a statutory requirement.
3. The Bill provides a statutory framework for the prediction, assessment and mitigation of potentially adverse environmental impacts from development projects undertaken by the public and private sectors. It is largely a formalization of the existing procedures laid down in a Technical Circular issued jointly by Planning, Environment and Lands Branch and Works Branch for government projects and in an Advice Note issued by EPD for private sector projects, which have been in force since 1992. The key features of the Bill are as follows -
- All projects that are likely to have a significant impact on the environment are listed as designated projects;
- At the planning stage of a designated project, an EIA has to be carried out in accordance with a study brief prepared by the Director of Environmental Protection (DEP);
- An EIA report has to be compiled and submitted to DEP for approval, subject to such consultation as DEP thinks necessary;
- Before a designated project commences construction or operation, an environmental permit (EP) has to be granted by DEP, having regard to inter alia the EIA report; and
- A Technical Memorandum will be issued under the Bill to set out technical requirements.
The Bills Committee
4. At the House Committee meeting held on 2 February 1996 members agreed to set up a Bills Committee to study the Bill. Hon Edward HO Sing-tin and Hon Christine LOH were elected Chairman and Deputy Chairman of the Bills Committee. A membership list of the Bills Committee is at Appendix I.
5. The Bills Committee has held ten meetings with the Administration. It has received 25 written submissions and has met the following 18 organizations -
- Aspinwall Clouston Ltd
- Environmental Committee, the American Chamber of Commerce in Hong Kong
- Friends of the Earth
- Green Lantau Association
- Green Power
- Hong Kong Environmental Law Association
- Hong Kong Institute of Architects
- Hong Kong Institute of Engineers
- Hong Kong Institute of Environmental Impact Assessment
- Hong Kong Institute of Landscape Architects
- Hong Kong Institute of Planners
- Hong Kong Institute of Surveyors
- Hong Kong University of Science & Technology
- The Conservancy Association
- The Real Estate Developers Association of Hong Kong
- The University of Hong Kong
- Townland Consultants Ltd
- World Wide Fund for Nature Hong Kong
6. A summary of the key comments of the written representations is at Appendix II.
Deliberations of the Bills Committee
7. The Bills Committee has deliberated intensively and extensively on the provisions of the Bill. The main issues considered by the Bills Committee are set out below.
Relationship between the EIA Bill and the planning process
8. Many members are concerned about possible overlap of the EIA Bill with other legislation, in particular the Town Planning Ordinance (TPO), Cap. 131. They share the view of some organizations that there may be a duplication of efforts if a project proponent has to seek the planning approval of the Town Planning Board (TPB) for a development and to apply for EP for the same development under the EIA Bill. A comprehensive TPO should have addressed environmental concerns at the planning stage and the TPB, in making a decision on an application, should have taken into account environmental considerations. Some professional organizations are worried that notwithstanding the planning approval, the proponent for a designated project under the EIA Bill may not be able to obtain an EP because of insurmountable environmental problems identified in an EIA. To save time and resources needed to satisfy the environmental requirements under different legislation, some organizations have suggested that a "one-stop shop approach" should be adopted.
9. The Administration has explained that the EIA Bill and the planning process complement rather than overlap with each other. Planning is the process of guiding and controlling the development and use of land, with the aim of promoting the health, safety, convenience and general welfare of the community. Whilst overall environmental implications of development strategies and land use distribution are considered at various levels of the planning process, such environmental considerations concern primarily compatibility of land uses, cumulative development impacts and long-term development objectives. They do not cover detailed technical environmental requirements for implementation and operation. The EIA Bill, on the other hand, addresses project-specific and site-specific environmental requirements which are not provided for under current environmental legislation. The Administration has advanced the following reasons for the enactment of the EIA Bill -
- Most of the designated projects under the EIA Bill are permitted as of right which do not require case-specific planning approval. For designated projects which require planning approval, the EIA Bill is necessary to deal with detailed technical implementation requirements outside the remit of the planning system. Moreover, planning approval cannot be extended to cover the operation and decommissioning phases of development projects nor to control the on-going environmental impacts of these activities. Merging the EIA arrangements with the planning system will result in confusion of enforcement authority and the existing loopholes regarding enforcement of environmental measures recommended in EIAs will remain unplugged.
- The planning process deals with the on-site use of land. Off-site activities of major development projects also have potential for serious environmental impacts. The EIA Bill provides a mechanism to require proper assessment of these impacts and to enforce controls over the impacts of off-site activities associated with development works.
- Effective mitigation of environmental impacts hinges on proper environmental monitoring and audit to detect actual environmental impacts and timely implementation of remedial measures. The on-going monitoring process is outside the ambit of the planning process. The EIA Bill will enable the enforcement of monitoring and audit requirements through the EP system.
10. On the "one-stop shop approach", the Administration has advised that the system proposed in the EIA Bill provides maximum flexibility for project proponents to expedite the processing of their development proposal. Project proponents can apply for planning approval prior to, in parallel to, or after the conduct of EIA. These choices will not be available if a "one-stop shop" approach implied in an integrated EIA and planning system is adopted. Given that a project which will give rise to insurmountable environmental problems or fundamental land use incompatibility is unlikely to be granted planning approval in the first place, there should not be any worry that a project with planning approval cannot proceed because of rejection of EIA. There is no such a case in the past 15 years operation of the EIA arrangements. The Administration has assured members that in reviewing the TPO, due regard will be given to ensure no overlap with the EIA Bill.
The EIA process
11. The proposed EIA process under the Bill is at Appendix III.
12. Some members are concerned about the lengthy time taken in completing the proposed EIA process. Discounting the time taken by a project proponent to submit additional information concerning the project profile and the EIA report upon the request of DEP and the time spent in preparing the EIA report, the proposed EIA process will take 195 days. Members are worried that the EIA Bill may increase development time and cause delays in completion of projects.
13. The Administration has explained that having regard to public comments received during the consultation process, the EIA process has been significantly simplified. The proposed EIA process will shorten rather than lengthen development time through simplified procedures and the imposition of statutory time limits on all actions by DEP, the public inspection period and the response by the Advisory Council on the Environment (ACE). The Bill provides for fast-track arrangements for projects that have been adequately addressed in other approved EIA reports or projects whose environmental impacts are confirmed to be limited. In these cases, DEP, with the consent of the Secretary for Planning, Environment and Lands (SPEL), may allow the project proponent to apply for an EP direct without going through the EIA process. With a clearly defined list of designated projects under the proposed legislation and the TM laying down the criteria and guidelines, project proponents can plan right from the start to meet such requirements.
14. To provide further safeguards to ensure that the time limits will be strictly adhered to by DEP, the Administration has taken on board members suggestion to deem an application approved if DEP does not respond within the relevant statutory time limit. This concept of "deemed approved" will apply to the following provisions:
- clause 5 - whether to give a permission to apply for an EP without undertaking EIA;
- clause 6 - whether an EIA report submitted by an applicant meets the requirements of the study brief and the TM;
- clause 8 - whether to approve or reject an EIA report after the procedures for public inspection and consultation with ACE have been completed;
- clause 10 - whether to issue or refuse an EP;
- clause 12 - whether to issue a further EP where responsibility for a designated project for which an EP has been issued changes; and
- clause 13 - whether to approve an application for variation of an EP.
15. Members have noted that the Administration will review the EIA process 12 months after the coming into operation of the Bill.
Public participation in the EIA process
16. B Under clause 5, a project proponent shall apply to DEP for a study brief to proceed with an EIA study for the project. A number of organizations have raised concern about the lack of public participation at the early stage of the EIA process. They consider it an unsatisfactory arrangement that the EIA study brief shall be decided solely by DEP. To ensure that public concerns will be adequately reflected in the study brief, some environmental organizations have suggested that the Bill should provide for public participation during its preparation. On the other hand, there are concerns that enhancement of public participation may lengthen the overall EIA process and delay project implementation.
17. The Administration has advised that an EIA study brief is intended to comprehensively define all possible broad areas of environmental concerns that may arise during the construction, implementation or decommissioning of a designated project. Typically a study brief will require a proponent to investigate potential waste impacts and impacts on air quality, water quality, and the noise environment. Depending on the nature of the project, the brief may also cover areas outside the expertise of EPD. In practice, DEP will act as a co-ordinator in developing an EIA study brief in consultation with the relevant authority within Government. Having regard to the public aspiration for participation and the need to avoid lengthening the time required for the EIA process, the Administration has proposed and members agree with a mechanism to allow for public inputs at the study brief stage. Under the proposal as soon as the applicant submits a project profile under clause 5(2)(b) or further information concerning the project profile under clause 5(4) to DEP, whichever is the latter, the applicant will be required to place an advertisement in widely circulated newspapers advising the availability of the project profile and inviting submissions on broad environmental concerns. The project profile submitted by the applicant will also be sent to ACE for comments. In parallel to the consideration of the project profile by DEP and other departments, members of ACE and the public will be given 14 days to provide DEP with written comments in relation to broad environmental concerns which may arise from the project. DEP, having regard to the public comments received, will prepare the EIA study brief in consultation with relevant Government departments. This procedure will also apply to applications for permission to apply for an EP without going through the EIA process under clause 5(1)(b). The statutory time limit of 45 days for DEP to consider the project profile and to issue a study brief will remain unchanged.
18. The Administration has noted some members concern that district boards should be given an opportunity to comment on the project profile. It has agreed to establish an administrative mechanism whereby the District Offices under the Home Affairs Department will be informed of the project profile. The project profile and any additional information will be placed in a public register available for public inspection. Members consider the proposed arrangement acceptable.
19. Clause 7 (1)(a) of the Bill provides that the applicant shall make the EIA report available for public inspection free of charge for a period of 30 days. Clause 7(5) states that ACE may comment on the report within 60 days of its receiving of a copy of it. Some members are of the view that both ACE and members of the public should be given 60 days to comment on EIA reports. Other members, however, hold the view that any increase in public inspection period will prolong the EIA process.
20. In the Administrations view, a period of 30 days for public inspection of EIA reports is a right balance. Clause 7 requires the applicant to advertise the availability of the report once every ten days during the public inspection period in a Chinese language newspaper and an English language newspaper. The Administration may also require the applicant to formally consult the district board concerned. Together with the proposal to provide for public participation at the EIA study brief stage, members of the public already have several opportunities to comment on a project, at the planning stage, the study brief stage and the EIA report stage. Since public involvement will start at an early stage and the public should be familiarized with the project before inspecting the EIA report, 30 days should therefore be adequate. ACE is given a longer period to comment on EIA reports because this will allow it to take into account public views in formulating its comments.
Quality control and qualifications of personnel involved in undertaking EIA studies
21. Some organizations have doubts about the quality control of EIA studies on a number of grounds, including the availability of sufficient expertise and resources both within the field of consultants and within EPD. They are of the view that EIAs should be conducted, enforced and monitored by professionals. The absence of statutory qualifications of professionals involved in conducting EIAs in the Bill is a cause for concern.
22. The Administration has explained that the Bill has already provided for a number of mechanisms to ensure the quality of EIA reports. These include setting out a comprehensive set of guidelines and criteria and a checklist of quality requirements for EIA reports in the TM, stating project specific requirements in the study brief, vetting EIA reports by DEP in conjunction with other government departments, and allowing selective detailed consideration of EIA reports by ACE and public scrutiny of EIA reports. The Bill has made no provision for statutory qualifications because EIA requires multi-disciplinary inputs from a broad spectrum of professionals. Since the Bill is to formalize the existing EIA system, there is already a system adopted by project proponents to select suitable professionals to conduct EIA studies. Moreover, a statutory system for qualifying EIA professionals is not a common practice among overseas countries having legislation on EIA. Most of these countries rely on statutory EIA requirements to ensure the quality of EIA reports, rather than stipulating qualification requirements in the legislation. Given that Hong Kong is an international city, some overseas or local project proponents may like to bring in their own EIA professionals or to assemble an integrated team comprising local and overseas professionals to conduct EIA studies.
23. Nevertheless, having considered the views expressed, the Administration has proposed to the Bills Committee that while the statutory requirements on qualifications of personnel involved in conducting EIA should not be set as a pre-requisite for the implementation of the Bill, to cater for future needs arising from practice experiences, a provision be added to the Bill to empower SPEL to make regulations on the qualifications of personnel involved in conducting EIA studies or certifying EIA reports. After the Bill comes into effect, the Administration will consult relevant professional bodies and trade organizations on the desirability and practicability of introducing statutory requirements. It will review the need for such requirements 12 months after the operation of the Bill, having regard to actual experiences on the statutory EIA process, the outcomes of the consultation and the latest overseas experience.
24. Whilst members have raised no objection to the Administrations proposal, Hon Christine LOH and Dr Hon LAW Cheung-kwok have opined that there is no need for statutory requirements on the qualifications of EIA professionals.
25. Under the Bill, all projects that are likely to have significant impacts on the environment are listed as designated projects. Schedule 2 to the Bill specifies designated projects requiring EPs and Schedule 3 lists out major designated projects requiring EIA reports. Clause 4 provides that SPEL may amend the lists of designated projects in Schedules 2 and 3 by adding projects to or removing projects from the lists. Both members and the deputations are concerned about the power of SPEL in this respect. Some organizations have suggested that the detailed criteria for amending the lists of designated projects be spelt out, proper consultation be made before such changes are introduced, and appeals rights be established in relation to amendments to the lists.
26. The Administration has clarified that the power of SPEL to add projects to or remove projects from the lists of designated projects is intended to provide for flexibility. The addition or deletion of designated projects will have to be made by an order in the Gazette which will be subject to the negative approval by the Legislative Council. In the Administrations view, this should provide the necessary checks and balances. Moreover, the relevant parties will be consulted before such changes are made. The Administration has further assured members that any changes will not have impacts on mature projects as clause 4(3)(b) provides that the addition of a designated project to Schedules 2 or 3 should not affect projects the construction of which commences within six months of the addition of the project to the Schedule.
27. Of the various designated projects, both members and the organizations are concerned in particular about residential developments. Under item P.1 in Schedule 2, a residential development will be taken as a designated project if it is built within Deep Bay Buffer Zone 1 or 2 or it has not less than 2,000 flats and is not served by public sewerage networks before a flat is occupied. Organizations hold different views on the threshold for residential developments being treated as designated projects. Some organizations are of the view 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 projects and that the limit of 2,000 units should be reduced. Other organizations, however, consider that if more residential developments come under the purview of the Bill, it may lengthen the construction time of such projects and have adverse impacts on housing supply.
28. The Administration has explained that the Bill is targeted at polluters rather than those affected by polluting land uses. It has therefore made a conscious decision to exclude from the Bill residential developments which will not cause adverse environmental impacts. Only potentially polluting residential developments or residential developments in ecologically sensitive areas will be controlled by the Bill. The Administration draws the line at 2,000 flats after considering past EIA studies. The Administration has taken note of some organizations concern that the current drafting of item P.2 in Schedule 2 is unclear and proposes to amend it to the effect that P.2 will only apply to residential developments exceeding 2,000 flats and not served by public sewerage by the time the flats are occupied. These developments will create sewage disposal problems which will affect the ecological environment or the water quality.
29. To address many deputations concern that a project proponent may tend to split up a project into a number of smaller projects to circumvent the Bill, the Administration has proposed to plug this loophole by adding a provision to the effect that SPEL has the power to specify a series of projects as a designated project. These projects have to be contiguous and proposed by the same person or associated persons and SPEL has to be satisfied that the purpose behind the separation of the projects is to avoid the purpose of the Bill. As a balance to the use of this power, the Administration has also proposed to make provisions to enable the project proponent to ascertain with DEP on whether a series of contiguous projects will be treated as a designated project and to provide for the right of a project proponent to appeal to the Appeal Board against the decision to designate the project.
30. Clause 30 provides that the Governor in Council may exempt a project from the provisions of the Bill. Some deputations have made the point that there should be proper criteria for assessing exemptions by the Executive Council and that such provisions should not be used lightly. On the other hand, there is also a suggestion that projects approved by TPB should be exempted by the Executive Council from the application of the Bill if that project cannot obtain an EP.
31. The Administration has stressed that only under very rare circumstances and invariably in the public interest will an exemption be granted by the Executive Council from the application of the Bill. Any exemption will be granted by an order published in the Gazette and subject to the negative approval by the Legislative Council. Other environmental protection laws also have such reserved power.
32. Hon Christine LOH and Hon MOK Ying-fan have expressed reservations about the exemption provisions.
33. The Bills Committee has received divided views on sanction provisions. The Bill makes it a criminal offence for carrying out a designated project without an EP, breaching the terms of an EP and interfering with the enforcement of the legislation. Offences under the proposed legislation will be liable to a maximum fine of $5 million and a commensurate custodial sentence. Some organizations feel strongly about the need for criminal sanctions to have sufficient deterrent effect . They call on the Administration to do all in its power to press for maximum fines and to extend the clean-up remedy to all offences by, for example, establishing performance bonds to provide for reparation costs. A few deputations, on the other hand, consider the sanction provisions too onerous in particular that company directors and other officers may be criminally liable for acts undertaken by companies. Members are concerned that criminal sanctions do not apply to public servants and criminal proceedings may not be taken against them for doing anything in the course of carrying out their duties as a public officer. The Bill only provides that the Chief Secretary shall undertake a review of their activities which are in breach of the provisions.
34. The Administration has maintained its view that for the Bill to be effective, there must be sufficiently strong deterrent effect. The Administration does not consider it appropriate to set out guidelines on the application of criminal sanctions nor on level of penalties to be applied to offences as sentencing should be a matter for the Judiciary. In the Administrations view, it is not advisable to establish performance bonds because this will place undue financial burden on the law-abiding developers. Moreover, the administration of performance bonds may place onerous demands on EPD. Clause 26(5) is a due diligence provision. A person will only be held accountable if he knowingly or specifically permits the carrying out of the project contrary to the provisions of the Bill, or that he, as the director responsible for the project, has not exercised all due diligence to ensure compliance with the provisions.
35. As regards non-application of criminal sanctions to public officers under clause 3, the Administration has clarified that constitutionally criminal liability will not be imposed upon a person doing anything in the course of carrying out his duties as a public officer because he is representing public interest at that time. Clause 3 models on the provisions of the existing environmental legislation. The United Kingdom and Australia have similar provisions in their EIA legislation. If DEP considers that a public officer, in carrying out his duties in the service of the Government, has done, or has omitted to do something in contravention of the proposed Ordinance, DEP may report the matter to the Chief Secretary. On receiving the report, the Chief Secretary may inquire with the matter and, if the inquiry shows that the public officer is continuing or is likely to contravene the proposed Ordinance again, she will ensure that the best practicable steps will be taken to stop the contravention or avoid the recurrence. Notwithstanding, the Administration has accepted members suggestion to tighten clause 3 to empower the Chief Secretary to require actions be taken to remedy the damage done to the environment. The Administration has also undertaken that the Chief Secretary will give the public an explanation should any Government action not comply with the provisions of the Bill.
36. The Bills Committee has had considerable discussions on the rights of appeal under the Bill. Clause 17 establishes an Appeal Broad and provides that the project proponent may appeal to the Board if he is aggrieved by a decision of DEP. Parties other than the proponent are not given the statutory rights of appeal.
37. Organizations hold different views on the issue. Some consider the rights of appeal under the Bill too restrictive. The rights of appeal to the Appeal Board are limited both in the category of persons who can appeal and in the matters which can be appealed. They request that such rights be extended to the public. Other organizations, however, contend that in most cases a project proponent should have already gone to great lengths to establish the lack of adversity in complying with the requirements of the Bill and the TM, a third party should not be given the right to object a project without first establishing that he will be directly affected or victimized by the adverse environmental impacts of the project.
38. Hon Christine LOH has put forth a proposal to allow members of the public who have participated at the early stages of the EIA process and have cogent objections to DEPs decisions to bring the matter to the Appeal Board for an independent re-assessment. Miss LOH has explained that in deciding whether and subject to what conditions to permit a designated project to go forward, DEP is called on to make difficult decisions balancing a variety of factors. This is particularly the case where the decision is referred to SPEL on the ground that refusal to grant an EP may not be in the public interest, probably for reasons other than environmental factors. Given that a project proponent may lodge an appeal with the Appeal Board against every major decision by DEP, members of the public who have participated in the EIA process by commenting on a project during the consultation stage should be able to appeal against a decision ultimately permitting the project to go forward, including a decision by DEP to grant an EP or not to impose conditions on the permit and the particular conditions DEP imposes on the permit. To shut out malicious or frivolous appeals, members of the public are required to obtain leave to appeal from the Appeal Board. Miss LOH has further advised that the general right to apply for judicial review is no substitute for the statutory right of appeal to the Appeal Board. Leave to seek judicial review will be denied unless the High Court considers the applicant to have a sufficient interest in the matter to be reviewed. Moreover, even if leave for judicial review is granted, the resulting proceedings concern only the legality and procedural correctness of the decision under review, not its merits.
39. Members are divided on Miss LOHs proposal. Dr Hon LAW Cheung-kwok has expressed support for the proposal while other members call for prudence in extending the rights of appeal to members of the public. The Administration has emphasized that it is appropriate to confine the rights of appeal to project proponents for the purpose of the Bill. The Administration are deeply concerned about the likely impacts on the programming and implementation of approved development projects should the appeal process be opened up to third parties. In the Administrations view, under the existing mechanism, there has already had a well-established system for dealing with objections to development proposals at the planning stage through the gazetted procedures under TPO, the Foreshore and Sea-bed Reclamations Ordinance, Cap. 127 and the Roads (Works, Use and Compensation) Ordinance, Cap. 370. Objections to development proposals and planning arrangements are resolved by the Governor in Council having regard to the interests of all parties involved. A third party appeal system under the EIA Bill may to some extent duplicate this conflict resolution process. The EIA Bill has moved a long way towards meeting the publics aspirations for wider participation in the statutory EIA process. Members of the public are given opportunities to comment on the study brief and the EIA report of a project and to inspect a EIA register. Moreover, a mechanism for independent assessment of DEPs decisions has already existed. The Bill has made provisions for ACE, which comprises representatives from well-established environmental groups, members from various professional disciplines and respectable community personalities, to scrutinize EIA reports and advise DEP on matters such as issue of EP and its conditions. In countries where third party appeal or equivalent legal review is provided, decisions on how to address the environmental consequences identified by an EIA are made by authorities in charge of the project in question, instead of an independent environmental authority like Hong Kong. As far as the Administration is aware, there is no jurisdiction which allows both judicial review and a judicial mechanism for third party appeals. Overseas experiences show that the time and costs involved in third party appeals are considerable and the resultant delay to development projects can be serious. The recent trend is for these countries with statutory third party appeal arrangements to move back to the use of administrative mediation to resolve disputes. In the Administrations view the requirement to seek leave to appeal is not a sufficient safeguard to screen out completely malicious or frivolous appeals.
40. As regards some members concern over clause 16(2) which may allow SPEL to make a decision outside the parameters of the Bill, the Administration has clarified that this is a standard enabling provision in all existing environmental legislation to allow disagreements between DEP and other concerned parties and any controversial decisions to be resolved and deliberated at a senior level of the Administration. The Administration has stressed that decisions made under the Bill are bound by its legislative intention to protect the environment and any decision which leads to environmental damage will be legally untenable. Legal advice has also confirmed that in advising DEP on the issue of EP, SPEL is required to abide by clause 10(2) to have regard to environmental factors and public comments. These constraints in practice mean that where a project may cause environmental damage but should proceed because of public interest, it will require an exemption order with or without conditions from the Governor in Council under clause 30. The exemption order, being subsidiary legislation, will be subject to negative approval by the Legislative Council. Nonetheless, to allay members concerns about possible conflict between the TM and the EIA legislation, the Administration has proposed to qualify clause 16(2) by explicitly requiring SPEL to ensure that the effect of his advice to DEP is to protect the environment.
41. Having had thorough discussions with the Administration, Miss Christine LOH has withdrawn her proposal.
42. On composition of the Appeal Board, the Administration has taken on board the suggestion of some organizations not to include public officers and proposed an amendment to clause 19(5). The Administration has also undertaken to consider members view to include representatives from a wide range of professional disciplines in the Appeal Board.
43. While the Bills provides the statutory framework for the conduct of EIA and its enforcement, the detailed assessment methodologies and criteria are prescribed in the TM. The TM is intended to guide DEP on key decisions under the proposed legislation and to provide a clear set of guidelines, criteria and ground rules for project proponents. The TM is a legal document which will be subject to negative approval by the Legislative Council. Since the TM is in a draft form only and will be subject to consultation with the relevant bodies before the Administration submits its final version to the Legislative Council for consideration, the Bills Committee has decided not to scrutinize it at the present stage. The Bills Committee has requested the Administration to commence consultation on the TM as soon as possible since the legislation will not come into force until the TM is in place. Given the length and the importance of the TM, members are concerned that the scrutiny period of 28 days as provided in clause 16(5) may be too short for proper vetting.
44. The Administration has taken note of members view to proceed with consultation on the TM without awaiting the enactment of the Bill. In its view, the making of the TM should be subject to the negative vetting procedures. The Administration has explained that the negative approval procedures apply to all TMs made under six pieces of legislation of which five are environmental in nature. The TM to the EIA Bill sets the technical scene for the administrative infrastructure of the legislative scheme and contains operational guidelines and technical environmental criteria. If positive vetting is required, the TM will consume considerable legislative time. Clause 16(4) requires the TM be published in the Gazette and this will enable the public and interested parties to learn of its contents. The draft TM has already taken into account the views and suggestions of various Government departments and many concerned groups. Before finalizing the document, the Administration will formally consult the professional organizations, statutory and advisory bodies and green groups. Future amendments to the TM will undergo a similar consultation process. Furthermore, the materials contained in the TM are inter-related. If changes are required in one section, corresponding changes involving significant amendments may be necessary in other sections to ensure adherence to established policies. This makes the TM generally unamendable to stand alone modifications, which occur under the positive resolution mechanism. In view of members interest in the TM, the Administration proposes to consult members on the finalized version through the LegCo Panels on Environmental Affairs and on Planning, Lands and Works before submitting the agreed version to the full Council for negative approval.
45. Members accept the Administrations proposal.
Committee stage amendments
46. A full set of the Committee stage amendments to be moved by the Administration is at Appendix IV.
47. The Bills Committee recommends the resumption of the Second Reading debate on the Bill on 29 January 1997.
48. Members are invited to support the recommendation at para 47 above.
Legislative Council Secretariat
23 December 1996
Last Updated on 9 December 1998