A decision to use a section of Hong Kong’s best-known golf course for much-needed public housing became a major controversy. The necessary environmental impact assessment was misunderstood as a referendum on the public housing project, leading to widespread confusion, reports retired judge Henry Litton.
The government’s proposal to take over a portion of the Fanling Golf Club land for the purpose of a large housing project has aroused much community interest and controversy.
It resulted in judicial review proceedings brought by the Club – Hong Kong Golf Club v Director of Environmental Protection [HCAL 1258/2023] – where Coleman J, in a 225-page judgment, dated 2 December 2024, declared that the Environmental Impact Assessment Report on the project, approved by the Director with conditions, was unlawful.
BACKGROUND FACTS
The Club once occupied a large area of land in the northern New Territories: 172 hectares (ha). It ranked high in the golfing world and regularly hosted international tournaments.
The lease under which the Club held the land was due to expire in September 2023. Given Hong Kong’s shortage of land for housing, the government set up a Task Force on Land Supply back in 2017, which recommended a year later that 32 ha of the Club land should be taken back for housing and ancillary development. This recommendation was accepted by the government. It triggered the process, began in early 2019, which led eventually to the litigation five years later.
The Club was, in the meanwhile, given a short-term lease for the remaining 140 ha of land, to expire on 30 June 2027.
The 32 ha comprised part of the “Old Course”. This had been laid down as an 18-hole golf course back in 1911. It was modelled on the golf course in St. Andrews, Scotland, the “home” of golfing in the world. To this extent, it had heritage value. Later golf courses were designed differently, having none of the features of the “Old Course”.
PRACTICAL IMPLICATIONS
Once the necessary work permits have been given and the bull-dozers move in for the housing project, impact on the fauna and flora existing on the 32 ha of land would be devastating. And when the project is completed, the buildings are up, bringing in thousands more residents into the region, and the businesses and amenities which go with a large housing project, the social impact on the region would be wide-spread.
As the Old Course has been in existence for well over a century, there were clusters of old growth woods, bushes and foliage on site, associated with the golf- course, of particular ecological significance.
Of course, until site-formation work starts on the ground, nature continues in its own sweet way. The moths, bats and birds existing on the land – which later became subjects of controversy in the litigation – remained blissfully unconcerned.
ENVIRONMENTAL IMPACT ASSESSMENT
To lessen the environmental impact of a project of this size, it came under the regime of the Environmental Impact Assessment Ordinance, Cap 499; an Ordinance “to provide for the assessment of certain projects and proposals, for protecting the environment and for incidental matters”. The Director bears overall responsibility for implementing its objectives.
The schedule to the Ordinance defines “environmental impact” in wide terms. It includes “an on-site or off-site change that the project may cause in the environment” and, more specifically, an effect of the change on “(i) the well-being of people, flora, fauna and ecosystems, (ii) physical and cultural heritage”.
THE PROCESS OF ASSESSMENT
The process of assessment is laid down in Part 2 of the Ordinance. In practical terms, it starts with the proponent (here CEDD) preparing a project profile which requires to be exhibited and notified to the Advisory Council on the Environment (ACE). As can be seen, public participation starts at an early stage: section 5.
A strict time-table is provided for each step. The ultimate aim is to prepare an Environmental Impact Assessment report (EIA report) which, when approved by the Director (with, or without conditions), would then be put on a register for permanent record: section 8.
THE EIA REPORT
CEDD’s consultants, after appraisal of the site constraints, divided the 32 ha into four sub-areas and, after discussion, it was decided that Sub-Area 1 only be developed for public housing, leaving the remaining sub-areas (of higher ecological value) to be preserved as a public park, with minimum development.
Sub-Area 1 comprised 8.1 ha. The proposal was to put up 12 high-rise blocks of up to 164m in height, yielding 12,000 public housing units. There were provisions for commercial and retail facilities, a transport interchange, and educational and social facilities.
The EIA report addressed also a whole range of issues: ecological impact, landscape and visual impact, tree survey and a cultural heritage impact assessment.
Between 20 May and 18 June 2022, the EIA report was exhibited for public comment. The Director received more than 1,400 sets of response. There were also questions put to the proponent by ACE.
Arising from all this, the Director wrote to CEDD on 31 August 2022 seeking additional input from a list of eight numbered matters; this included a bird survey, a moth survey and a bat survey.
Of particular relevance for the purposes of this case is No. 5: “A detailed layout plan of the proposed housing development, which shall illustrate with the help of an overlay plan of the proposed housing blocks the preservation of an additional 0,39 ha of secondary woodland at Sub-Area 1, with location of the trees to be retained, the location, disposition and design of the proposed housing blocks with a view to minimizing adverse ecological impact”.
This list of eight items was categorised by the judge as “Additional Information”.
It was later on uploaded to the internet as an annex to an ACE paper, for discussion by the members of ACE.
All this was uploaded to the Department’s website for public access. This took place in April 2023.
In early May 2023 the Club wrote to the Director, raising eleven points, some arising from the Director’s earlier request for information, some new matters.
THE DIRECTOR’S DECISION
All this material was in the Director’s possession when, on 11 May, he approved the EIA report with five conditions. These conditions were, in effect, to fine-tune the project to lessen the environmental impact. For example, condition (a) : to “review and revise the Layout Plan by adjusting the housing footprint, disposition and density” to minimize the number of trees to be felled and to preserve a patch of woodland (0.39 ha) at the centre of Sub-Area 1 “as far as possible”. Condition (d) required CEDD to prepare a “tree management plan” for the undeveloped Sub-Areas 2 & 3.
A CONTINUING PROCESS
It is clear from the statutory scheme that the assessment of impact is a continuing process. The approval of the EIA report, as provided for in s. 8, Part 2 of the Ordinance, is an important stage, but there are the requirements in Part 3 (s. 9 and 10) to be fulfilled. These provide for environmental permits to be granted before work could actually begin.
Section 9 prohibits the carrying out of work unless an environmental permit has been issued. And where the EIA report is approved with conditions, s.9 (1)(b) prohibits the carrying out of work contrary to the conditions.
Then, importantly, there is section 10, which gives to the Director a residual discretion. Section 10(2)(c) says that, in granting or refusing an environmental permit, the Director “shall have regard to …..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”.
THE CLUB’S INTERVENTION
In July 2023 the Club applied for leave to start proceedings against the Director for having approved the EIA report (with conditions). It obtained an interim stay of the Director’s decision. The effect was that CEDD could not proceed to the next step: to apply for a work permit under section 9. The stay order was made by Coleman J on 24 August 2023. How much that delayed the carrying out of the housing project is not known.
THE REALITY ON THE GROUND
By the time the Club started proceedings (July 2023) it must have known that the 32 ha comprising the Old Course would be resumed by the government. It could continue as a golf club with its remaining 140 ha, comprising two 18-hole courses and ancillary facilities, until some further decision is made concerning extension of its lease beyond 30 June 2027. Then, before long, the character of the entire neighbourhood would radically change, with a huge public housing estate close to the golf course (if the lease be extended). That is the natural course of events which no judge could change.
What advice the Club received from its lawyers is unknown. But what could the Club have possibly gained by these proceedings? At best, a delay of the housing project. Did the judge fail to see this?
THE GROUNDS OF COMPLAINT
The trouble with this case is that the packaging is so thick – 225 pages – that few could penetrate its content. The reality is that there never were arguable grounds for impeaching the Director’s decision.
GROUNDS 1 AND 2
These are in effect the same ground, dressed up differently. As mentioned earlier, the Director raised with CEDD a list of eight matters seeking, for instance, a bird survey, a moth survey and a bat survey. This formed the basis of Ground 1. The Club also intervened with comments on those matters: Ground 2. The argument urged in support for relief in public law in both cases was the same: that “transparence and public participation” required that all this be “exhibited for public comment”.
No such requirement can be found in the statutory scheme. And there is no doctrine of “transparency” known to the common law, if that is what the judge had in mind.
And, of course, public comment would evoke response: the thing could go round in circles forever. It was a devise for delay, not a formula for resolution.
The judge said that such failure to exhibit for public comment was “unfair”. Unfair to whom? Were there members of the public clamouring to enter the courtroom to be heard?
The complaint was, on its face, absurd.
GROUND 3
This ground raises a black-letter point, with a hidden agenda.
The guidelines for assessment issued by the Director for this project (called the “study brief”) required the EIA report to have regard to “the potential cumulative impacts of the Project”: SB 3.3.2(xiii).
“Cumulative impacts” required consideration of other developments outside the site.
This then brings one to the announcement made by the Chief Executive in October 2021 of a “Northern Metropolis Development Strategy Report” concerning an ambitious development involving the Greater Bay Area and Hong Kong.
The judge referred to this as “one of the key issues”: para 413 (p.183).
The government website says the Metropolis has an area of 30,000 ha, around one-third of Hong Kong’s total. It covers Yuen Long and Northern Districts, Tin Shui Wai, Fanling and Sheung Shui, etc. Such a development would require a time-scale of about 20 years.
How, one might ask, was the Director to have “regard” to this mammoth project except to put the housing development on hold, to see how it might eventually integrate into this Northern Metropolis project?
That, in effect, was how counsel for the Club put his case:
“Para 417: Mr Yu submitted that the Northern Metropolis is significant in at least two major respects:
(1) First, the Northern Metropolis presents the opportunity to generate far greater housing yields without the same degree of damage to the environment and cultural heritage.
(2) Secondly, the proposal to build housing over the Old Course is in tension with the Government’s published policy with respect to the Northern Metropolis which regards the Club as a green corridor and open space amenity lying at the very heart of the planned Northern Metropolis area”.
In other words: delay: put everything on hold. That is the Club’s real agenda.
Amazingly, the judge accepted the argument: he swallowed it hook, line and sinker: para 432.
GROUND 4A
This ground is, in effect, a rehash of Grounds 1 and 2. It is said that the conditions imposed on the approval of the EIA report meant in reality it was no approval at all. The whole thing “should have been opened up for public comment and comment by the ACE”. So, here we go again: comment on comment: let the matter go round and round.
Once again, the judge said that this failure to open up for public comment and comment by ACE was “unfair”.
What he never asked himself was this: how “fair” was it to the public that a public housing project should have been delayed by proceedings of this kind?
Like Grounds 1 and 2, this Ground succeeded before the judge.
THE MATTER IN THE ROUND
Apart from Ground 3, which stands alone, the other Grounds, if they had the least merit at all, would have been met by the process in s. 9 and 10. If, for instance, the revised Layout Plan were not forthcoming or inadequate, the Director would simply have refused to give a work permit. His discretion in s. 10(2)(c) gives him ample power to do so.
CONCLUSION
According to the judge (para 69), of the 1,451 sets of comments received from the public, all but 2 “objected to the proposed housing project”.
As can be seen, the environmental impact assessment was mistakenly taken by the public to be referendum on the housing project. In reality, it was nothing of the kind.
The housing project was an accomplished fact. The Director had acted with total propriety in dealing with the environmental impact of the project, in accordance with the statutory scheme. The grounds for impeachment were contrived by lawyers. They were totally without merit. But, given the outcome of the litigation, the public would most likely take the judgment as a black-eye to the “government” and a thumbs up to scratching the entire housing project.
A judgment of this nature is highly confusing to the public, and damaging to the rule of law.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.